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Remedies in International Human Rights Law, 3rd Edition by Shelton, Dinah (1st October 2015)

Part II The Institutional Framework, 6 The Functions and Competence of Human Rights Tribunals

From: Remedies in International Human Rights Law (3rd Edition)

Dinah Shelton

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 February 2020

Human rights remedies

(p. 191) The Functions and Competence of Human Rights Tribunals

6.1  Introduction

Human rights treaties outline mechanisms to monitor compliance by states parties with the rights and duties prescribed therein. International supervisory organs, generally composed of independent experts, typically have ‘competence with respect to matters relating to the fulfilment of the commitments made by the States Parties to th[e] Convention’1 or a mandate to ‘ensure the observance of the engagements undertaken by the High Contracting Parties’.2 United Nations treaty bodies review periodic reports that must be filed by states parties, and they may have jurisdiction to receive individual and interstate complaints.3 Complaints procedures are sometimes included in optional clauses within the treaty itself,4 but are more often contained in a separate protocol, which the state must also accept.5 The ICESCR is unique in having no individual complaints procedure; instead, it provides for collective complaints pursuant to an optional protocol.6 As of the end of 2014, all UN member states have adhered to at least one of the nine core human rights treaties and three-quarters of them have ratified or acceded to six or more.

No global human rights treaty makes specific reference to the competence of a monitoring body to afford remedies for human rights violations. International complaints procedures were relatively late in coming to the United Nations (first included as a optional clause in the 1965 Convention on the Elimination of All Forms of Racial Discrimination) and they remain weaker than regional mechanisms. Human rights treaty bodies that hear complaints nonetheless express their views on remedies as part of their inherent or implied authority to decide matters properly before them.

In general, monitoring bodies undertake fact-finding and prepare a report on the merits of admissible communications. The report may declare that a violation has occurred and recommend an appropriate course of action, including remedies for the victim. Regional systems in Europe, the Americas, and Africa parallel and extend the (p. 192) global efforts. In particular, three regional systems allow at least some cases to be heard by a court that can issue binding judgments on remedies.

The remedial jurisdiction and competence of the various institutions and tribunals are considered in this chapter. As noted, specific provisions on the remedial powers of human rights bodies exist only for the courts. As a result, the various committees and commissions often appear uncertain about the scope of their authority and they join human rights courts in appearing divided over their primary purpose in hearing complaints. Some members see dual aims: to provide redress and to induce future compliance.7 There may be concern with the competing interests of the victim, the victim’s representative (especially when it is a non-governmental organization with its own agenda), other members of society, the respondent government and other governments, and the tribunal’s own institutional legitimacy and functioning.

The European Court of Human Rights has expressly referred to the public order of Europe in describing its role as being to provide advice for states on compliance with their human rights obligations under the European Convention on Human Rights (ECHR). The ECHR is held to have a ‘special character’ deriving from its purpose in creating a system for the collective enforcement of human rights. The role of the European Court is to interpret and apply the agreement ‘so as to make its safeguards practical and effective’.8 The Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions.9 More broadly, the Court has stated that it ‘has never’ considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein; instead, it must also take into account any relevant rules and principles of international law applicable in relations between the Contracting Parties.10 Also, as a ‘living’ instrument, the Convention must be interpreted in the light of present-day conditions, taking into account evolving norms of national and international law. As discussed further below, the Inter-American and African institutions apply similar principles in hearing cases.

The views of the majority on the European Court differ, however, from those of the judges of the Inter-American Court. The European judges express the view that the Court’s primary mission is one of determining issues on public-policy grounds in the common interest, rather than ensuring full redress for the victim applicants.11 In the Varnava case, the Court claimed that it is not its role to function akin to a domestic court deciding tort cases in apportioning fault and compensatory damages between civil parties.12 It may be argued to the contrary that determining compensatory damages is precisely one of the Court’s most significant roles in the European system. A tort is a legal wrong and it is a general principle of law that the commission of a legal wrong, which must be decided by the European Court, entails an obligation on the part of the wrongdoer to redress the wrong adjudicated by the Court. An inherent part of the judicial (p. 193) function is to assess the magnitude of the wrong and the resulting harm to the injured party. This is not part of the enforcement of a judgment—it is part of the judgment itself.

Even if an international monitoring body is clear that it has a mandate to consider remedies and redress, the members may be divided over whether this means providing the full or integral reparations indicated in the law of state responsibility, or whether it should simply provide general guidelines to the state and leave the modalities and scope of reparations to internal laws and mechanisms. Given that complaints are only admissible if all domestic remedies have failed, it may not be warranted to assume that internal procedures will redress the violation without some clear direction. Human rights bodies nonetheless recognize an institutional cost in providing full redress, which can require deciding what is compensable harm, standards of proof, offsets, payment schedule, currency, interest rate, beneficiaries, and succession in case of death. For this reason, many bodies call for the state to provide an effective remedy, but give few details.13 More victim-oriented views express concern about redressing the consequences to the victim and preventing similar injury to others, thus often recommending systematic changes, such as repeal of legislation inconsistent with human rights.

6.2  The United Nations System

None of the permanent United Nations treaty bodies or organs has explicit legal competence to order compensation or other remedies. The Human Rights Committee, the Committee on the Elimination of Racial Discrimination, and other bodies that accept individual communications express their ‘views’ to the state concerned about whether a complaint filed reveals a violation of a right protected by the treaty in question. Nonetheless these decisions also increasingly call on the state involved to give restitution, pay compensation, or afford other remedies. Many treaty bodies also have instituted a follow-up procedure and insist that good faith compliance with treaty obligations requires that the state concerned provide the remedies indicated.

6.2.1  United Nations organs and subsidiary bodies

Some of the UN’s special procedures accept communications or petitions. The former UN Human Rights Commission created the Working Group on Disappearances in 1980 to ‘examine questions’ concerning enforced or involuntary disappearances. Its primary role is ‘as a channel of communication between families of the missing persons and the governments concerned, with a view to ensuring that sufficiently documented and clearly identified individual cases are investigated and the whereabouts of the missing persons clarified’.14 It works on individual cases, country reports, and the general phenomenon of disappearances, including the question of impunity. It has emphasized the importance of habeas corpus as ‘one of the most powerful legal tools for discovering the fate or whereabouts of a disappeared person; its rapid implementation could help to prevent grave violations of human rights from occurring and enhance the accountability of those responsible for disappearances and arbitrary detention’.15(p. 194)

The Working Group on Arbitrary Detention, which may investigate cases of arbitrary deprivation of liberty,16 accepts communications from detained individuals or their families, as well as governments and inter-governmental and non-governmental organizations. If the Working Group decides after investigation that the arbitrary nature of the detention is established, it makes recommendations to the government concerned and transmits these to the complainant shortly after sending them to the government. The standard language of the recommendation is as follows:

Consequent upon the decision of the Working Group declaring the detention of … to be arbitrary, the Working Group requests the government of … to take the necessary steps to remedy the situation in order to bring it into conformity with the provisions and principles incorporated in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.17

Giving greater precision to the generality of this recommendation, the Working Group has cited the right to a remedy contained in the Universal Declaration of Human Rights and the guarantee contained in the Covenant on Civil and Political Rights that anyone deprived of liberty is entitled to test the lawfulness of the detention before a court. The Working Group has identified the latter remedy as habeas corpus, calling it ‘the best remedy’ against unlawful or unjust imprisonment.18 In the same report the Working Group called for preparation of an international document on this remedy, ‘particularly regarding the non-derogable nature of habeas corpus as an inherent human right’.19 The Working Group also has recommended to all states that they legislate the remedy of habeas corpus as an individual right.20

The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions accepts communications about violations of the right to life.21 The primary function of the Special Rapporteur is to ascertain whether the state has complied with its obligations under international law to prevent violations of the right to life, or, if the death has already occurred, to investigate the cause and circumstances, identify the perpetrators, and impose appropriate sanctions. The Rapporteur considers the rights of victims, based on the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, in particular Principle 11, which calls on the state to redress harm caused by official conduct.22 States are expected to provide indemnification ‘on a systematic basis’ in compliance with the norms and principles contained in the pertinent international instruments.23

In a 1994 report24 to the former UN Human Rights Commission, the Special Rapporteur referred to the international obligation to provide compensation to victims of violations of the right to life, together with legal duties

to carry out exhaustive and impartial investigations into allegations of violations of the right to life, to identify, bring to justice and punish their perpetrators, to grant compensation to the victims or their families, and to take effective measures to avoid future recurrence of such violations. The recognition of the duty to compensate victims of human rights violations, and the actual granting of compensation to them, presupposes the recognition by the Government of its obligation to ensure (p. 195) effective protection against human rights abuses on the basis of the respect for the fundamental rights and freedoms of every person.25

The Special Rapporteur consistently requests information from a government to clarify allegations regarding an execution, including ‘the nature and amount of any compensation made to the family of the victim’26 and has complained repeatedly that states fail to provide this information.27

In 2003, the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment addressed a revised series of recommendations to UN member states which specify that all detained persons should have the ability to challenge the lawfulness of detention, for example through habeas corpus or amparo. In addition, the Rapporteur recommended that an inquiry always be undertaken when there is a complaint of torture. If the complaint is well founded, it should result in compensation to the victim or relatives. Anyone suspected of committing torture or severe maltreatment should be tried and, if found guilty, punished.28 Paragraph (l) of the recommendations details the various forms of redress:

Legislation should be enacted to ensure that the victim of an act of torture obtains redress and fair and adequate compensation, including the means for the fullest rehabilitation possible. Adequate, effective and prompt reparation proportionate to the gravity of the violation and the physical and mental harm suffered should include the following elements: restitution, compensation, rehabilitation (including medical and psychological care as well as legal and social services), and satisfaction and guarantees of non-repetition. Such legislation should also provide that a victim who has suffered violence or trauma should benefit from special consideration and care to avoid his or her re-traumatization in the course of legal and administrative procedures designed to provide justice and reparation.29

Following adoption of the UN Draft Guidelines on reparations and the separate but related principles on impunity, the Human Rights Council by Resolution 18/7 of 29 September 2011, created a new mandate for a Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence to deal with situations in which there have been gross violations of human rights and serious violations of international humanitarian law. The rapporteur looks at the ‘specific context of each situation’ with a view to preventing the recurrence, using a comprehensive approach incorporating a full range of judicial and non-judicial measures. The primary role is to provide technical assistance or advisory services, gather relevant information on national situations, normative frameworks, good practices and lessons learned. The rapporteur can make recommendations concerning judicial and non-judicial measures when designing and implementing strategies and policies. Country visits are foreseen and the rapporteur is to integrate a victim-centred approach.

Taken together, the work of the UN organs and subsidiary bodies has resulted in recommendations for redress in the nature of: (1) restitution, including rehabilitation and restoration of honour and dignity; (2) compensation; (3) satisfaction, including investigation and revelation of the truth; and (4) guarantees of non-repetition, such as prosecution and punishment of offenders. These remedies in international human rights law have been strongly influenced by the law of state responsibility and, as a general rule, follow its emphasis on compensatory justice.

(p. 196) 6.2.2  United Nations treaty bodies

United Nations treaty bodies have addressed remedies in their observations on periodic state reports, in general comments, and in their views on communications. The chairpersons of the treaty bodies utilize guidelines for reporting that call on states to provide information on remedies as required by the various treaties. States should describe the effective remedies that are available to any individual through the competent national tribunals for acts violating the rights guaranteed by the constitution or by law. In addition, states should indicate what procedural guarantees exist to ensure that the rights are respected and enforced by an independent tribunal in a fair hearing.

In its consideration of state reports, the Human Rights Committee monitoring compliance with the ICCPR has commented on the right to remedies, reminding states, for example ‘that the family members of missing persons have the right to be informed about the fate of their relatives, and that failure to investigate the cause and circumstances of death, as well as to provide information relating to the burial sites of missing persons increases the suffering inflicted [on] family members and may amount to a violation of Article 7 of the Covenant’.30 Considering Guatemala’s National Reparations Program, the Committee emphasized the importance of ‘comprehensive care with cultural and linguistic relevance, with a focus on psychosocial support, restoration of dignity and recovery of historical memory’.31

In the aftermath of widespread violations occurring in the context of an internal armed conflict, the Human Rights Committee has provided detailed guidance for states. It has criticized de facto amnesty and impunity, noting in its observations on Colombia’s report32 that of 280,420 victims registered by 2009 under the Reparations Act No. 975 of 2005, judicial reparation for victims had been awarded in only one case33 and moreover the Act did not explicitly recognize the state’s duty to guarantee rights. It expressed concern that reparation was tending to take the form of humanitarian assistance and had not provided for full reparation. The Committee advised that ‘the State party should ensure that legislation is adopted and should implement a policy that fully guarantees the right to an effective remedy and to full reparation’. Implementation of the law must take into account the UN Basic Principles and the five elements of the right to a remedy: restitution;34 compensation; rehabilitation; satisfaction; and guarantees of non-repetition. Resources should be specifically assigned to provide psychological and social care and rehabilitation. The Committee also recommended that particular attention be paid to gender issues and to victims who are children, Afro-Colombians or indigenous people. Other observations called for investigation, prosecution, and punishment of perpetrators and recommended allocating sufficient resources to implement the plan to search for disappeared persons, in cooperation with families and civil society organizations. Finally, the Committee suggested changes in the law to criminalize racial discrimination and to hold prior consultations with communities to seek their free prior and informed consent on programs potentially affecting them.(p. 197)

The Convention against Torture, Article 14, provides a ‘right to fair and adequate compensation’ and rehabilitation, which the Committee against Torture (CAT) has referred to in observations on state reports. In its conclusions and recommendations to the United States in 2006, the CAT expressed concern that some victims of abuse have faced difficulties obtaining redress and adequate compensation. The CAT urged the US to ensure that ‘mechanisms to obtain full redress, compensation, and rehabilitation are accessible to all victims of … abuse … perpetrated by its officials’.35

The treaty bodies have almost all issued general comments on the issue of remedies. In 2012, the CAT adopted a general comment on the content and scope of state obligations to provide redress pursuant to Article 14.36 The Committee affirmed that Article 14 applies to all victims of torture and acts of cruel, inhuman or degrading treatment or punishment without discrimination of any kind. It interpreted the term ‘redress’ to encompass the concepts of ‘effective remedy’ and ‘reparation’, the latter deemed to entail restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.37 In terms of process, the Committee emphasized the importance of victim participation, given that the ultimate objective of redress is the restoration of the dignity of the victim. To satisfy their procedural obligations, states parties are to enact legislation and establish complaints mechanisms, investigative bodies and institutions, including independent judicial bodies, capable of determining the right to and awarding redress to a victim of torture and ill-treatment, and ensure that such mechanisms and bodies are effective and accessible. At the substantive level, states parties shall ensure that victims of torture or ill-treatment obtain full and effective redress and reparation, including compensation and the means for as full rehabilitation as possible.

In terms of individual petitions submitted against states that are party to the ICCPR’s First Optional Protocol, decisions of the Committee finding that a state party has violated the Covenant are expressed in ‘views’ transmitted to the state and published in the Committee’s annual reports. From the first views adopted in 1979 finding a violation,38 the Committee has consistently stated that such a finding places an obligation on the state party to provide an effective remedy to the victim. In 1981, the Committee made clear that this obligation flows from Article 2(3) of the Covenant. Over time, there has also been an evolution towards more specificity in the Committee’s views about the appropriate remedy in each case. In 2002, for the first time, the Committee indicated that the appropriate compensation was equivalent to restitution: a sum not less than the fine wrongfully imposed on the applicant for his free exercise of expression together with his legal costs.39(p. 198)

In the jurisprudence of the Human Rights Committee the indicated remedies have included one or more of the following:

  1. (a)  public investigation to establish the facts40

  2. (b)  bringing to justice the perpetrators41

  3. (c)  compensation42

  4. (d)  ensuring non-repetition of the violation43

  5. (e)  amending the law44

  6. (f)  providing restitution of liberty,45 employment,46 property,47 and human remains48(p. 199)

  7. (g)  rehabilitation, including medical care and treatment49

  8. (h)  permitting the victim to leave the country50 and

  9. (i)  enjoining an imminent violation.51

In terms of satisfaction, the Committee once urged a state party to provide a public apology, in a case involving racial discrimination. Like other human rights bodies, the Committee has referred to its Views as a measure of satisfaction, but its practice has been to indicate this only if it is not specifying other measures of redress.

The Human Rights Committee has developed a practice of requesting the state party involved in a proceeding to publish the Committee’s Views finding a violation.52 In addition, the Committee asks the state to prevent future violations of a similar nature. Guarantees of non-repetition are an important aspect of the Committee’s approach to remedies. It frequently calls upon states parties to take steps to ensure that similar violations do not occur in the future. It also has stressed repeatedly that states parties are under an obligation to take immediate steps to ensure strict observance of the provisions of the Covenant.53 When more detail is provided, the decisions are not consistent, because the Committee sometimes indicates the need for ‘adequate’ reparations and at other times calls for ‘full’ redress. The lack of consistency is likely the result of different opinions among Committee members about remedies.

In a series of prisoner cases, the Committee has found that the failure to provide legal aid interferes with the right of access to justice in violation of Article 14(3)(d) in conjunction with Article 2(3).54 In these cases prisoners alleged violations that included denial of the right to appeal; cruel, inhuman, and degrading treatment; and procedural delay. The Committee insisted that the applicants be afforded an effective remedy and suggested a range of appropriate remedies, including release,55 ‘further measures of clemency’,56 (p. 200) payment of compensation,57 improved conditions of confinement,58 release from prison,59 medical treatment,60 and for those subject to the death penalty, commutation of the sentence.61 In cases of mistreatment it has urged the state to carry out an official investigation into the allegations and where appropriate identify the perpetrators and punish them.62

As these cases indicate, the Human Rights Committee often appropriately combines a recommendation for compensation with other remedies, such as early release for victims of torture,63 review of management systems or legislation,64 and retrial of convicted persons.65 On some occasions going back to 1981, the Committee has gone further and ordered that the person be freed, if it cannot presume that due process will be afforded in a new trial, especially in criminal prosecutions. It has suggested this remedy when a person has already served most or all of the sentence handed down in the trial where procedural safeguards were not respected.

In July 2011, the Human Rights Committee recognized the need to establish criteria that would standardize and improve its policy on recommending measures of redress at the conclusion of its consideration of individual communications. The HRC’s rapporteur on the issue presented a progress report in 2012 and a fuller report in April 2013. The 2013 study provided a systematic overview of the decisions taken by the Committee between 1977 and 2012. After discussion and debate, a revised report was presented in October 2013.

The rapporteur relied on the norms on state responsibility to note that ‘[w]hen a treaty body considers an individual communication and determines that a State bears responsibility for a violation of one or more of the rights recognized in an international human rights convention, the State in question has an immediate obligation to offer the victims adequate reparation based on the principle of good faith in giving effect to international obligations (p. 201) and by virtue of the general obligations to respect and guarantee the rights set forth in the corresponding international instrument’.66 The Committee’s role is to be precise on the rights that have been violated and the appropriate measures of redress in order to make reparation to the victim (and, in some cases, to the victim’s family) but also to benefit society through measures designed to ensure non-repetition. For this to happen, greater consistency in decisions would be advisable.

The report recommended that when the Committee has found violations of Covenant rights, it should set out one or more measures designed to make full reparations to the victims (restitution, compensation, rehabilitation and measures of satisfaction) and others aimed at preventing a reoccurrence of such violations in the future (guarantees of non-repetition). It should also attempt to have greater consistency with respect to the same types of violations and indicate the legal foundations for redress as contained in ICCPR Article 2. The report suggested, however, that the Committee continue its present practice of not, as a general rule, specifying sums of money for material and moral (or non-material) harm.

For each communication, the Committee should deliberate on the advisability of providing for restitution with a view to restoring rights that have been violated or indicating measures of rehabilitation. In some cases it may be appropriate to include in the Committee’s Views a statement that the Committee’s decision in and of itself constitutes a form of redress.

The report found no reason to change the Committee’s practice of recommending the release of an offender and/or review of a case as a measure of satisfaction and of deciding on a case-by-case basis whether to focus on having the person in question released or whether to request that the case be reviewed, or give the state party the option of retrying the case, or releasing the person. Public apology is seen as a very important measure of satisfaction in cases involving certain types of especially serious violations (discrimination, torture, extrajudicial killings and enforced disappearances). The Committee should take this measure into special consideration when specifying the redress to be provided in a given case. As for other measures of satisfaction, the Committee should consider the possibility of including, as appropriate, recommendations for symbolic measures such as constructing a monument, putting up a commemorative plaque or changing the name of a street or other public place, in cases involving grave or systematic violations.

The Committee could be more specific in identifying and recommending measures in order to optimize the redress afforded in each case. When laws or regulations in the state party violate Covenant obligations, the Committee should direct changes in the law or regulation as a measure of redress, specifying exactly what should be amended; if the violation stems from the absence of legal provisions, then the measures of redress should include the adoption of the necessary laws or regulations.67 Where appropriate, the Committee could recommend training for law enforcement officers, members of the judiciary or medical or administrative personnel, as appropriate, as a measure designed to avert the repetition of violations such as those that gave rise to the communication under consideration. It remains to be seen if the majority of the Committee will agree to change its prior practices.(p. 202)

For its part, the CAT Committee has invoked the UN Guidelines on Reparations to indicate a wide range of measures that must be taken in cases of torture. The CAT Committee recommended to the government of Zambia that it establish rehabilitation centres and called on the government of Indonesia to ‘take immediate steps to address the urgent need for rehabilitation of the large number of victims of torture and ill treatment in the country’.68 In the case of O.R., M.M. and M.S. v. Argentina, the Committee found the cases inadmissible because they related to events prior to the entry into force of the Convention for the state. The Committee nonetheless expressed its view that the national ‘Full Stop Law’ and ‘Law of Due Obedience’ were ‘incompatible with the spirit and purpose’ of the Torture Convention.69 The state was also asked to adopt ‘appropriate measures’ of reparation.

CEDAW’s optional petition procedure is relatively recent, but in Vertido v. Philippines, concerning judicial discrimination in a rape case, the CEDAW committee recommended appropriate compensation commensurate with the gravity of the violations, and for the state to take specific measures to review its legislation and conduct training for judges, lawyers and law enforcement officers. In fact, CEDAW often recommends the adoption and implementation of training programs (usually for law enforcement officers, judges, prosecutors and lawyers).70 It also consistently recommends publication of its recommendations.

Given the type of dignitary harm resulting from discrimination, which often does not involve material losses, both the CEDAW Committee and the Committee on the Elimination of Racial Discrimination have, on occasion, emphasized compensation for moral injury or psychological harm. The CERD called on the Netherlands to compensate for moral damages after it found that state officials had failed to respond adequately to racial incidents directed at the applicant and that the police and judicial proceedings did not afford the victim effective protection and remedies as required by Article 6 of the Convention.71 Both CERD and CEDAW have also recommended investigations into violations and determination of responsibility for violent acts, as well as improvements in victims’ effective access to justice, and the adoption and implementation of public policies of prevention.

In some instances, CERD and CEDAW have called for the re-examination, adoption or amendment of national legislation, in some instances specifying the particular elements that the Committee wishes to be taken into account. In its Views on individual communications, the Committee on the Rights of Persons with Disabilities also identifies specific measures of redress for victims, as well as general measures designed to ensure non-repetition.

Among the UN treaty bodies, the CERD Committee stands out for its varied and specific recommendations to redress violations of indigenous rights.72 In recent (p. 203) observations on Bolivia, for example, the Committee recommended specific legislative reforms, education programs to eradicate discrimination, as well as swift investigation and prosecution of various ‘acts of racist violence’ against members of indigenous communities.73 The CERD Committee urged Rwanda to complete numerous actions on behalf of the Batwa people, whose territory had been ‘expropriated without prior consultation’.74 It called on the state to ‘take all necessary steps, in consultation with and with the agreement of the Batwa, to offer them adequate land … so that they can retain their traditional lifestyle and engage in income-generating activities’.75 Among other measures, the Committee requested Rwanda to ensure that the community had access to health care, education and housing.76

UN treaty bodies generally agree that they have the authority to indicate measures of satisfaction, which they usually view as including measures to ensure non-repetition.

6.2.3  UNESCO

The Executive Board of the United Nations Educational, Scientific and Cultural Organization created a complaint procedure in 1978 to permit human rights advocates to submit individual cases and general questions of human rights violations to UNESCO.77 A communication may originate ‘from a person or group of persons who, it can be reasonably presumed, are victims of alleged violations’ or ‘from any person, group of persons or non-governmental organization having reliable knowledge of these violations’. The issues must be within the educational, scientific and cultural mandate of UNESCO.

Upon receipt of a communication, the organization sends a form that includes a questionnaire about the object or goal of the complaint. The communications are transmitted to the government, then brought to the Committee on Conventions and Recommendations during its semi-annual meetings. The Committee gathers information and attempts to achieve a friendly settlement, sometimes with the Director-General, who has a specific role in helping to reach solutions to particular human rights problems. The preamble to the Executive Decision creating the procedure refers to ‘moral considerations’ and ‘international cooperation’ and explicitly states that ‘UNESCO should not play the role of an international judicial body’. Thus, the Committee works to settle matters but does reach some decisions on the merits and recommends measures to redress the situation. It does not award compensation, but often achieves measures of restitution or restoration of the right that had been infringed.

Once the Committee deems a communication to be admissible, it may request further information from the government concerned and/or the author of the communication or recommend some other action. It can, for example, request the Executive Board to invite the Director-General to address an appeal to a government for clemency or the release of a detainee. The Committee prepares confidential reports to the Executive Board containing information about the communications that it has examined as well (p. 204) as recommendations. The Executive Board examines them in closed meetings and may endorse the Committee’s views.

The procedure laid down in 104 EX/Decision 3.3 of the Executive Board of UNESCO has specific characteristics in comparison with similar procedures in other organizations of the United Nations system. At the 185th session of the Executive Board, the members of the Committee stressed that Procedure 104 was unique and at the same time complementary to other mechanisms of the United Nations system responsible for protecting human rights. In accordance with 104 EX/Decision 3.3, a complaint may be directed at any Member State, for the very reason that it is a member of UNESCO; and the complaint will be examined under a procedure that will preserve its individual character from beginning to end.

Various aspects of UNESCO’s procedure are not, taken separately, very original. It is the combination of these aspects and the spirit in which they are applied that gives the procedure its originality. While the other procedures seem most often to take an adversarial and accusatory form, the UNESCO procedure—although it is largely similar—has from the very beginning been deliberately applied exclusively with a view to seeking a solution with the state concerned. For this reason, everything has been done to avoid reaching the conclusion that a state has violated human rights. Such a conclusion would in fact mean a deadlock, preventing the continued search for a solution. This is the background against which the many and varied stages of the procedure must be understood, since each stage represents a further level of dialogue with the state concerned and, consequently, another opportunity to find a satisfactory solution. The desire shown by the Committee to take its decisions solely by consensus is no doubt a reflection of the same concern. However, what is perhaps the overriding characteristic of the UNESCO procedure is the emphasis, or indeed the insistence, on its strictly confidential nature, even after cases have been settled. No publicity has ever been given to the successes achieved through the UNESCO procedure, in order to sustain the confidence of the states concerned and secure their cooperation.

The desire for confidentiality has even been taken to the point of declaring inadmissible those communications whose confidentiality had clearly been breached by their authors. At the 171st session of the Executive Board, the Committee examined its methods of work and decided that the documents of the Committee would be published or made accessible to the public after a period of twenty years, as provided for by Rule 29, paragraph 4, of the Rules of Procedure of the Executive Board, so as to ensure that the Committee’s achievements were more widely known.

According to UNESCO’s statistics, from 1978 to September 2013, 586 communications were considered by the Committee on Conventions and Recommendations.78 Of these, 372 resulted in a positive action, including 221 detainees who were released. The remaining cases were deemed inadmissible or continue to be under study.

6.2.4  The International Labour Organization

The mandate of the International Labour Organization includes human rights, including the rights to form trade unions and bargain collectively, the right to freedom of association, rights of indigenous peoples and migrant workers, and the rights to be free from child labour, discrimination in employment, and forced labour. The ILO monitors state compliance with its norms and standards, contained in conventions (p. 205) and recommendations, through various procedures, including international complaint mechanisms.

Three ILO complaint procedures have been utilized to raise human rights issues: (1) representations made pursuant to Article 24 of the ILO Constitution; (2) complaints under Article 26 of the Constitution; and (3) complaints on freedom of association. Representations that a state has failed to observe any ILO Convention to which it is a party may be submitted by a trade union or an employer organization. The Governing Body appoints a special committee to examine the substance of the representation and reviews the report of the committee, including its recommendations. The Governing Body may publish the representation, the government’s reply and its analysis of the case.

Article 26 complaints may be filed by governments, delegates to the ILO Conference, or the Governing Body on its own motion, and are considered by a quasi-judicial Commission of Inquiry. The Commission makes conclusions and recommendations, following which a report of the case is communicated to the Governing Body and published. A recommendation may suggest changes in law or practice to conform to ILO Conventions. If the government does not implement the recommendations within a specified time, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance.79

Most ILO complaints are brought under the procedure on freedom of association, established by agreement between the ILO and the UN Economic and Social Council (ECOSOC) in 1950. A Committee on Freedom of Association (CFA) hears complaints filed by trade unions, employer organizations, governments, the United Nations General Assembly, or ECOSOC and may refer the case to a Fact-Finding and Conciliation Commission on Freedom of Association. If the CFA finds that a violation has occurred, it makes recommendations to the parties to remedy the situation, including changes in law or practice. In 1991, the ILO created a Commission of Inquiry in accordance with Article 26(4) of the ILO Constitution to report to the Governing Body on a complaint concerning Romania’s observance of Convention No. 111 on discrimination in employment.80 The report included a chapter on reparations that described measures taken to remedy the consequences of human rights violations committed by the former regime in Romania.81 The Report reviewed measures by the new government that included amnesties, establishment of ad hoc committees to settle cases of persons claiming to have been wronged, adoption of regulations designed to remove discriminatory measures, re-examination of certain verdicts, and compensation granted by tribunals.

6.3  Regional Human Rights Systems

6.3.1  The European Human Rights System

The European Convention on Human Rights (ECHR) instituted the first regional human rights system in 1950. The ECHR permits both states parties and individuals to bring applications against contracting states.82 Until 1998, the obligations of states (p. 206) parties were overseen by two organs, the European Commission on Human Rights and the European Court of Human Rights.83 A reform of the system, enacted by Convention Protocol 11, replaced both organs with a new European Court of Human Rights (European Court) which functions on a permanent basis with forty-seven full-time judges (one for each state party) resident in Strasbourg. The European Court has jurisdiction to decide all cases brought by victims against states parties to the Convention; the procedure is not optional for the states. The Committee of Ministers, the governing body of the Council of Europe, enforces decisions of the Court pursuant to ECHR Article 46.

Only a small percentage of cases is ruled admissible and some of those are settled; in 2014, for example, of 86,063 applications decided, 83,675 were declared inadmissible or struck out and only 2,388 were decided by a judgment on the merits. In dealing with the remaining cases on the merits, the Court may hold hearings, receive written submissions, examine witnesses both at its seat in Strasbourg and, if necessary, by interviewing them elsewhere (Arts. 38, 40). The Court may ask any person or institution of its choice for information, to express an opinion, or to make a report on any specific point. It also may accept written or oral comments from amicus curiae and must allow the intervention of the state of nationality of the applicant if the state wishes to participate in the proceedings (ECHR Art. 36). Hearings are open to the public unless the Court ‘in exceptional circumstances’ decides otherwise and submissions must also be public unless the President of the Court closes the record (ECHR Arts. 38, 40).

Most merits judgments are decided by a seven-judge Chamber. The Convention provides a limited review procedure of Chamber decisions. Within three months of the date of the judgment, any party to the case may request that the case be referred to the Grand Chamber, which consists of seventeen judges. A panel of five judges may decide to accept the request, but only ‘if the case raises a serious question affecting the interpretation or application of the Convention or the protocols thereto, or a serious issue of general importance’ (ECHR, Art. 43(2)). The Chamber may also relinquish jurisdiction in favour of the Grand Chamber prior to issuing its judgment, for any of the same stated reasons (ECHR, Art. 30). The Grand Chamber will then issue its own judgment, which is final. Chamber decisions become final in any of the three following circumstances: when the parties declare that they will not ask for a review of the judgment by a Grand Chamber; three months from the date of the judgment if no request is made; or when the Grand Chamber panel rejects a referral request. A judgment of the Grand Chamber is final on the date it is issued (ECHR, Art. 44).

The ECHR gives the Court competence to afford remedies when it determines that a breach of the Convention has occurred.84 Article 41,85 a slightly amended version of the original Article 50 provides:

If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from [the] Convention, and if the internal law of the said party allows only partial reparation to be (p. 207) made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.

According to some commentators, ‘this provision shows the Court’s lack of competence to annul or nullify acts of member states which are in conflict with the Convention’.86 As discussed further below, the Court’s inability to nullify legislative or other domestic acts does not limit its power to hold that the appropriate remedy for a violation is for the state itself to amend or nullify measures that violate the Convention.

The ECHR drafters made clear their aim to afford adequate remedies to victims of human rights violations. The delegates to the 1948 Congress of Europe adopted a ‘Message to Europeans’ at the final plenary session of the Congress expressing the following: ‘We desire a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as the right to form a political opposition; We desire a Court of Justice with adequate sanctions for the implementation of this Charter’.87

The draft Convention presented by the Congress to the Committee of Ministers in 1949 envisaged a Court able to prescribe both monetary compensation and to require that the state concerned take penal or administrative action against the person responsible for infringing human rights. The Court could also order ‘repeal, cancellation or amendment’ of the domestic act.88 At the first session of the Consultative Assembly of the Council of Europe in 1949, it became clear that the proposal for a Court with sanctioning power was not universally accepted,89 although the draft report of the Legal and Administrative Commission of the Assembly contained a proposal very similar to that of the Congress.90 The final report submitted by the Commission to the Assembly omitted the proposal.91

The Committee of Experts on Human Rights, which first met in February 1950, further considered ‘the competence of the Court to pronounce judgments according damages, reparations (restitutio in integrum) or moral damages’.92 In the end the Committee recommended the adoption of a provision substantially like present Article 41. The Committee noted in its report to the Committee of Ministers that ‘the Court will not in any way operate as a Court of Appeal, having power to revise internal orders and verdicts’.93 In a Report to the Committee of Ministers,94 the article as adopted was said to be:

in accordance with the actual international law relating to the violation of an obligation by a State. In this respect, jurisprudence of a European Court will never, therefore, introduce any new (p. 208) element or one contrary to existing international law. In particular, the Court will not have the power to declare null and void or amend Acts emanating from the public bodies of the signatory States.95

At the Second Session of the Consultative Assembly a proposal was again made to enlarge the powers of the Court to give it ‘appellate jurisdiction’, so that ‘the Court may declare the impugned judicial laws to be null and void’.96 The Committee rejected the proposal by majority vote.97

The language of Article 41 finally approved was derived from treaty provisions on the enforcement of arbitral awards in inter-state proceedings, notably Article 32 of the 1928 General Act on Arbitration, which provides:

If, in a judicial sentence or arbitral award it is declared that a judgment, or a measure enjoined by a court of law or other authority of one of the parties to the dispute, is wholly or in part contrary to international law, and if the constitutional law of that party does not permit or only partially permits the consequences of the judgment or measure in question to be annulled, the parties agree that the judicial sentence or arbitral award shall grant the injured party equitable satisfaction.98

The reliance on precedents from arbitration agreements may have been based on an expectation that adjudication before the Court would be primarily inter-state in nature, rather than originating in individual communications, and that earlier arbitral practice would therefore be particularly relevant.99

The European Court recognized early on that Article 41 was modelled after the provisions of dispute settlement treaties, including the General Act quoted above and Article 10 of the German–Swiss Treaty on Arbitration and Conciliation.100 The relevant provisions clearly contemplated cessation of the breach, and restitutio in integrum, based on principles of state responsibility. At the same time, these agreements appeared to foresee the problem of enforcing an international arbitral judgment. Therefore, when strict compliance could not be obtained due to domestic law, the treaties allowed compensation and other forms of satisfaction in lieu of restitution. The intent was to ensure that the complex and varied interactions of international and municipal law in different countries should not prevent redress, especially for an injured alien and the state of nationality. The approach is of dubious merit when applied to modern human rights cases. Injured aliens could accept compensation and leave the state that committed the injury, escaping further violation of their rights. Human rights victims, in contrast, are normally harmed by their state of nationality and remain subject to its laws and practices. Compensation may remedy a violation that has already occurred, but does not reduce the threat of future violations if the law or practice is not changed. Moreover, compensation is a clearly inadequate remedy for one wrongfully incarcerated, as the Court recognized beginning with the Assanidze case.101

The term ‘satisfaction’ as used in arbitral treaties and in the European Convention draws upon international practice in regard to state responsibility for injury to aliens. Injuries to aliens ranged from wrongful death to property losses, while the indirect (p. 209) harm to the state of nationality generally affected its honour and dignity. The state usually claimed pecuniary and non-pecuniary reparations for the injury to the alien, and non-monetary satisfaction to remedy its own moral injury. Satisfaction could require punishment of the guilty and assurances as to future conduct, monetary awards, or declaration of the wrong, especially when coupled with an apology from the offending state. Many such non-monetary remedies afforded under the heading of satisfaction in inter-state proceedings may be appropriately applied in the human rights context, especially apologies and guarantees of non-repetition.

The issue of remedies first came to the Court in the Vagrancy cases.102 The then-Commission had no comment and, in most subsequent cases, it did not discuss the Article 41 claims of the applicant. The Commission never provided to the Court a legal analysis of principles on which the Court could base decisions about remedies. Applicants and their attorneys were also unhelpful, asking for a variety of remedies without briefing the powers of the Court or providing a rationale or principles on which damages should be calculated or other relief awarded.

During its first decade, the Court did not have to address the issue of remedies. It found no violation in the Lawless case,103 its first judgment, while the second case, De Becker, was settled.104 In the Belgian Linguistics case,105 the constitution and institutions of Belgium were revised and reformed to comply with the Court’s decision without the issue of remedies being decided. No violation was found in Wemhoff.106 Not until 1968, in the Neumeister107 case, did the issue of remedies require adjudication by the Court. The Court separated its consideration of just satisfaction from the proceedings on the merits and, ultimately, decided the claim after its 1972 judgments on just satisfaction in the Vagrancy cases and Ringeisen.108 Between 1972 and 1998, the former Court awarded one or more of the following remedies in application of Article 41:

  1. (a)  a declaration that the state had violated the applicant’s rights

  2. (b)  pecuniary damages

  3. (c)  non-pecuniary damages

  4. (d)  costs and expenses.

In general, the former Court did not demonstrate much enthusiasm for Article 50/41, reflected in its rules and its decisions. The narrow interpretation of former Article 50, given by the Court in its first case,109 hampered the evolution of remedies in the European system. It left the Court with little flexibility. The Court gave unnecessarily important weight to the words ‘if necessary’, setting stringent requirements for proving a causal link between the violation and the injury and rarely affording relief that (p. 210) corresponded to the harm done. In numerous cases it found that the judgment alone afforded just satisfaction for the moral injury.110 There was no indication of concern for deterrence (guarantees of non-repetition), although that was traditionally a focus of ‘satisfaction’ in the law of state responsibility for injury to aliens. The broader issues were left for the political Committee of Ministers.

Belgium argued in the Vagrancy cases that litigants should never receive compensation for challenging a law applicable to a broad segment of the population.111 The state appeared to have assumed that successful litigants would receive a windfall, while others would remain uncompensated. The Court rightly rejected this argument. The fact that some injured parties choose not to enforce their rights has never been deemed a justification for refusing to redress the wrongs done to those who do seek vindication. Indeed, the failure to compensate them would deter anyone from challenging government wrongdoing.112

In the same case, the Court outlined the requirements for affording just satisfaction:

  1. (i)  the Court finds a decision or measure taken by an authority of a Contracting State to be in conflict with the obligations arising from the Convention

  2. (ii)  there is an injured party; i.e. material or moral damage, and

  3. (iii)  the Court considers it necessary to afford just compensation.113

The last-mentioned criterion means that the Court could decide that no compensation is due despite a violation and consequent injury: ‘as is borne out by the adjective “just” and the phrase “if necessary” the Court enjoys a certain discretion in the exercise of the power conferred by Article 41’.114 The Court has repeatedly stated that applicants are not entitled to an award of just satisfaction, rather the Court has discretion to grant a remedy based on equitable considerations and the facts of each case.115 In the Scozzari and Giunta v. Italy case the Court emphasized the element of necessity:

[U]nder Article 41 of the Convention the purpose of awarding sums by way of just satisfaction is to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied.116

(p. 211)
This restrictive application of Article 41 seems inconsistent with the principle the Court applies in interpreting other rights:

As has been noted on previous occasions the Convention must be interpreted in the light of its special character as a treaty for the protection of individual human beings and its safeguards must be construed in a manner which makes them practical and effective.117

The former Court’s decisions on redress varied considerably and lacked a coherent approach. The Court sometimes seemed to apply a notion of presumed damages while in other proceedings it refused to make an award based on the lack of proof of a causal link between the violation and the injury. The Court enunciated clear standards only in regard to awarding costs and fees; they must have been actually incurred, necessarily incurred and reasonable in amount.118 Even so, the Court viewed the award as discretionary and rarely awarded the full amount claimed.119

Applicants have always struggled and largely failed to convince the Court to order the government to adopt non-monetary measures as just satisfaction.120 The Court held on numerous occasions over its first four decades that it had no jurisdiction to make ‘consequential orders’ in the form of directions or recommendations to the state to remedy violations. It rejected requests, for example, that the state be required to refrain from corporal punishment of children or to take steps to prevent similar breaches in the future.121 It also refused to insist that a state judged to have wrongfully expelled an alien allow the victim to rejoin his family.122 The Court continues to insist that it is for the states to choose the method of remedying the violation, that Convention Article 53 means that ‘a judgment in which the Court finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach’.123

Nonetheless, since 1998 several developments have had significant impacts on the European Court’s practice and jurisprudence. First, the expansion of the system into Central and Eastern Europe brought new judges and new cases into the system. The caseload had already begun to rise in the 1980s (leading to the reform of Protocol 11), but the volume expanded at an unprecedented rate from the late 1990s. The number of decisions rose from 5,979 in 1998 to 86,063 in 2014, and even with enhanced productivity, 69,900 cases were pending decision at the end of 2014. According to the Court (p. 212) more than 34,000 of the pending cases are repetitive ones, most often the result of states’ failing to comply with judgments and make the necessary changes to domestic law and practice.124 At the beginning of 2015, the president of the Court was considering using single judges to decide such cases because ‘what matters most in repetitive cases is that applicants are able to receive compensation as quickly as possible’.125

Two other trends can be observed in recent years. First, the percentage of cases concerning procedural delay of justice or lack of due process in violation of Article 5 or 6(1) rose to become the largest category of cases (forty-two per cent in 2014). Sadly, the second most frequently found violation was of Article 3, the right to be free from torture and inhuman or degrading treatment. Violations of the right to an effective remedy (Article 13) constituted just over ten per cent of the cases, the third highest category. The second trend is qualitative rather than quantitative: the Court has received a growing number of large and politically sensitive cases stemming from armed conflicts and separatist movements, including major inter-state cases filed by Georgia and Ukraine against the Russian Federation. Cases filed involving armed conflicts in parts of Turkey and Russia, and efforts to have the Court address the aftermath of conflicts in the former Yugoslavia,126 the Transdniestrian region of Moldova,127 and even the Second World War128 add to the considerable pressure on the Court. Taken together, the trends mean the Court is receiving more and larger, more politically-sensitive cases than ever before.

Several actions have been taken in response to what is perceived to be a growing crisis. In May 2004, the Committee of Ministers asked the Court to change its practice on remedies, to give states and the Committee itself more guidance on the measures necessary to stop further violations. Reflecting its concern with the many repetitious cases stemming from an unresolved state practice, the Committee adopted a resolution on cases revealing an underlying systemic problem.129 The Committee of Ministers invited the Court ‘to identify in its judgments finding a violation of the Convention what it considers to be an underlying systemic problem and the source of that problem, in particular when it is likely to give rise to numerous applications, so as to assist States in finding the appropriate solution and the Committee of Ministers in supervising the execution of judgments’.130

The Court has followed the direction of the Committee in recent cases by ordering restitution and detailing other required actions.131 Even before the resolution, the Court had moved toward more of an emphasis on non-repetition of the violation and on restitution as the preferred remedy when it is possible to effectuate. In Papamichalopoulos and others v. Greece,132 the Court indicated that although each state can choose the manner of execution of the judgment, ‘if the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself’.133 In Scozzari and Giunta v. Italy,134 the Court discussed (p. 213) Article 46 on compliance with judgments of the Court along with Article 41 on just satisfaction, indicating that, taken together, they require the state to do away with the situation responsible for the violation.

In another change, the Court has moved to deal with repetitive cases by creating the ‘pilot judgment’ procedure, where a single case can produce findings and directions on the means to cure a situation affecting many other applicants. In the Broniowski judgment, the first pilot case, the European Court held that Poland must either (1) amend existing or adopt new legislation that would effectively eliminate the systemic violation of the property rights at issue, or (2) compensate those who were affected with equivalent redress. On 8 July 2005, a little over one year after the Broniowski judgment, the Polish Parliament passed ‘the Law on the realisation of the right to compensation for property left beyond the present borders of the Polish State’, which remedied Poland’s existing systemic failures. In addition, a friendly settlement was reached between the Applicant and Poland, in which the Applicant was compensated up to the maximum percentage allowed by statute (twenty per cent). The enactment of new legislation, coupled with the friendly settlement, signified to the Committee of Ministers that Poland had sufficiently complied with the Court’s judgment of 22 June 2004.135

In another case taken up under the pilot judgment procedure, the European Court discussed remedies extensively in light of the serious violations found by the Court. Luric and Others v. Slovenia136 concerned Slovenia’s laws depriving thousands of persons of nationality and/or permanent residence following the breakup of the former Yugoslavia. The case was filed by eight applicants among those ‘erased’ by the domestic law and six of the complaints were found admissible. By the time of the judgment, the status of the individuals, most of whom had been rendered stateless, had been corrected by domestic law and the government claimed they no longer qualified as victims. The Court rejected this argument because the requisite remedies had not been afforded: a ‘decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention’.137 The scope of redress required depends on all the circumstances of the case, including, in particular, the nature of the Convention violation at stake. The Court suggested that it will examine the level of compensation awarded at the domestic level, or at least look into the ability of the victims to seek and obtain compensation in domestic law for the damage sustained. With respect to the facts in Kuric, the Court found the local remedies inadequate and this in turn affected the Court’s decision on the merits, leading it to find a violation of the right to a remedy under Article 13 in respect to Article 8, and to make its own award under Article 41.

The factors the Court pointed to in finding this violation and making its award included ‘the widespread human-rights concern created by the “erasure” and the fact that the situation lasted nearly twenty years for the majority of the applicants’. Moreover, the government failed to comply with decisions of its own Constitutional Court on the matter for more than a decade. Both the lengthy period in which the applicants experienced insecurity and legal uncertainty and the gravity of the consequences of the ‘erasure’ coupled with the lack of compensation led the Court to reject the adequacy of the remedies provided domestically. The Court concluded that their prospects of receiving (p. 214) compensation in Slovenia ‘appear, for the time being, to be too remote to be relevant for the purposes of the present case’.138

The Court considered that it would be premature to examine whether the legal reforms and other steps taken by the Government had satisfactorily regulated the residence status of the thousands of ‘erased’ who had been treated in a similar manner to the applicants. But the absence of compensation was something the Court could address and it decided to adopt a pilot-judgment procedure because the situation necessarily extended beyond the interests of the individual applicants to many other potentially affected persons in the context of systemic, structural, or similar violations. The Court therefore decided ‘to indicate’, that the government should, within one year, set up an ad hoc domestic compensation scheme. The Court adjourned examination of Article 41 pecuniary compensation as well as all similar applications pending the adoption of the suggested remedial measures. The Court went ahead and awarded €20,000 to each successful applicant for non-pecuniary damage ‘having regard to the nature of the violations found’ in the case and the suffering of the applicants, and also awarded € 30,000 in costs and expenses, below the amount requested, which the Court found ‘excessive’.

The third innovation, adopted in June 2009, is the Court’s ‘priority policy’ establishing in its Rules of Procedure seven different categories of cases in order to concentrate more resources on the most important cases, namely the cases falling within the top three categories (priority applications). The highest category is that of urgent applications, in particular where there is risk to life or health of the applicant, or other circumstances linked to the applicant’s personal or family situation, particularly where the well-being of a child is at issue. Category two consists of cases concerning structural or endemic situations that the Court has not yet examined, or applications raising an important question of general interest, in particular a serious question capable of having major implications for domestic legal systems or for the European system, and inter-state cases. The third category is that of applications which on their face raise as main complaints issues under Articles 2, 3, 4 or 5 § 1 of the Convention (‘core rights’), irrespective of whether they are repetitive, and which have given rise to direct threats to the physical integrity and dignity of human beings. It remains to be seen whether these cases will give rise to innovations in the Court’s jurisprudence on individual remedies. Unfortunately, it is quite likely for the foreseeable future that the Court will not reach those applications that fall in categories 4–7.

In a final major change, the Court now normally discusses not only Article 41,139 but Article 46, which concerns the role of the Committee of Ministers in the cases in which it finds a violation. The Court’s standard language explains its current approach:

By Article 46 of the Convention the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a breach imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction under Article 41, but also to choose the general or, if appropriate, individual measures or both to be adopted. As the Court’s judgments are essentially declaratory, the respondent State remains free, subject to the supervision of the Committee of Ministers, to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment.140(p. 215)

However, in exceptional cases, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court will seek to indicate the type of measure that might be taken in order to put an end to a situation it has found to exist.

Indeed, the Court has increasingly developed its recommendations regarding both individual and general measures. In L. v. Lithuania, the Court appeared to coordinate the individual and the general measures to be adopted, because

[t]he Court … considers that the applicant’s claim for pecuniary damage would be satisfied by the enactment of the subsidiary legislation at issue in the present case within three months of the present judgment becoming final in accordance with Article 44 § 2 of the Convention. However, should that prove impossible, and in view of the uncertainty about the medical expertise currently available in Lithuania, the Court is of the view that this aspect of the applicant’s claim could be satisfied by his having the final stages of the necessary surgery performed abroad and financed, at least in part, by the respondent State. Consequently, as an alternative in the absence of any such subsidiary legislation, the Court would award the applicant EUR 40,000 in pecuniary damage.141

The Court is increasingly referring to the need for legislative reforms. This development began with the general observation that the state must ‘remove any obstacles in its domestic legal system that might prevent the applicant’s situation from being adequately redressed’.142 Pilot judgment cases go further, as in Hutten-Czapska v. Poland, where the Court said that the state had to ‘secure in its domestic legal order a mechanism maintaining a fair balance between the interests of landlords, including their entitlement to derive profit from their property, and the general interest of the community … ’ to protect property rights under the Convention. The means to do this is left to the state. The Court sometimes refers to Convention obligations when recommending legislation.143 In Urper and Others v. Turkey, the Court said that Turkey should revise its domestic law at issue in the case ‘with a view to putting an end to the practice of suspending the future publication and distribution of entire periodicals’.144

The European Court continues to have a restrained approach to redress. It probably adopted its initially narrow interpretation of its remedial powers because the individual was not the focus of the system at its inception.145 Moreover, in most instances, states may comply with a judgment through any of several means.146 A domestic court is not (p. 216) obliged to give direct effect to the Court’s judgments,147 but international law requires a change in any law or practice found incompatible with the Convention, in order to comply with the state’s Article 1 obligation to secure the rights and freedoms guaranteed by the treaty. Until recently states generally complied with the Court’s judgments by changing laws and practices, although the changes have not always had retrospective effect to remedy the harm caused the applicant. Also affecting interpretation is the governing principle of subsidiarity, particularly emphasized and reiterated by a few states unhappy with decisions taken against them. It has served to reinforce the Court’s caution:

It is fundamental to the machinery of protection established by the Convention that the national systems themselves provide redress for breaches of its provisions, the Court exerting its supervisory role subject to the principle of subsidiarity.148

The failure of states to comply with this obligation is revealed in the large series of successive cases against the same state for the same breach, which has not only left several applicants without a remedy to repair the consequences of the violation,149 but threatens the effectiveness of the system. Yet, the Court appears divided on its role in remedying and deterring violations. On 21 January 2005, Court President Wildhaber posited a constitutional aim for the Court during a speech delivered at the opening of the judicial year, stating that ‘the Court is progressively reverting to its core business, to the substantial cases, cases which actually contribute to enhancing the protection of human rights throughout the Council of Europe States and even beyond’.150

Observers have concluded that Article 41 is a secondary matter for the Registry, the majority of the judges and the contracting states.151 The Court expressly claims that ‘the awarding of sums of money to applicants by way of just satisfaction is not one of the Court’s main duties but is incidental to its task of ensuring the observance by States of their obligations under the Convention’.152 Reform proposals in 2010 recommended that the Registry create a department for examining Article 41 claims, but the recommendation was not followed. According to expert Elizabeth Lambert, just one person in the Registry provides assistance and expertise on this issue to lawyers preparing (p. 217) the judgments; making sure that the Court’s early practice on Article 41 is consistently followed.153

Nonetheless, as Articles 41 and 46 are now seen as closely interconnected, the Court appears increasingly willing to adopt orders of individual and/or general measures when such measures are deemed necessary in order to help the state to redress a violation, prevent similar cases from arising, or because the nature of a violation is considered to leave no choice to the state on how to implement the judgment (e.g. liberty in the case of wrongful detention).154 This new jurisprudence on Article 46 has had little impact on the way the Court determines individual redress under Article 41, however, and generally the Court continues to view its remedial role restrictively and shifts much of the judicial burden onto the Committee of Ministers.155 For its part the Committee of Ministers has defined in its Rules of Procedure the types of measures that a respondent state must take to comply with a judgment.156

In terms of procedure, the early Court often reserved the issue of just satisfaction and, before making its decision, took into account the individual measures the state adopted after the decision on the merits.157 It may still decide to reserve the issue of pecuniary damage,158 or even dismiss the claim on the assumption that domestic remedies can provide the remedy.159 The Court is not always consistent on this point, however.160 In Dacia S.R.L. v. Moldova, for example, domestic proceedings were pending, but the Court decided to proceed with just satisfaction based on the failure of the Supreme Court of Justice to provide an appropriate remedy for the violation.161

The role the ECHR assigns to the Committee of Ministers is to supervise the execution of judgments, but to the extent the Ministers specify individual and general measures the state must take, its role becomes as much judicial as executive. Individual measures provide redress to the applicant, including any just satisfaction which the Court may have awarded the applicant under Article 41 of the Convention,162 but may (p. 218) also require action to arrive as closely as possible to restitutio in integrum. The Committee of Ministers163 can require the reopening of unfair criminal proceedings, destruction of information gathered in breach of the right to privacy, enforcement of an unenforced domestic judgment, or revocation of a deportation order issued against an alien who faces a real risk of torture or other forms of mistreatment in the country of destination.164 Beyond these individual measures of redress, general measures aim to prevent violations similar to the one(s) found and may imply a review of constitutional provisions, legislation, regulations and/or judicial practice, administrative procedures, and prison conditions. When determining general measures, the Committee of Ministers pays particular attention to the efficiency of domestic remedies, in particular where the judgment reveals important structural problems. The Committee has insisted, however, that the principle of subsidiarity governs all Convention matters, meaning that states are, in principle, free to choose the means to meet their obligations under the Convention, under the Committee’s supervision.

Finally, it is evident that in recent years there has been a general trend to limit access by individual applicants, based on the argument that restrictions are necessary to prevent the system from collapsing due to a constantly rising caseload. The problem should rather be seen as one for which a few states are responsible as they continue to violate rights and fail to comply with judgments, causing large numbers of repetitive cases. Most actions taken by the Court have been directed at the applicants, however. A single judge can now declare a case inadmissible, without appeal or reasoned decision. In addition, Protocol No. 15 reinforces the principle of subsidiarity and the states’ margin of appreciation in implementing the Convention. When it enters into force, the time to file cases will be shortened to four months. Protocol 14 has already added a further admissibility criterion of significant disadvantage to the applicant resulting from the alleged violation. The Committee of Ministers has placed new emphasis on the applicants’ responsibility to inform the Committee of Ministers in case of problems receiving the just satisfaction awarded by the Court. This means the Department for the execution of the Court’s judgments limits itself in principle to registering the payments of the sums awarded by the Court. Applicants have only two months to bring any complaints to the attention of the Department. If such complaints are received, the payment will be subject to a special examination by the Department, and if necessary, the Committee of Ministers itself. Even more stringent proposals have been considered and may yet be adopted, such as the introduction of fees for applicants. It does not appear that the same degree of attention is being paid to non-compliance by the persistent violators.

For those cases that succeed in arriving at a merits determination, however, the Court’s practice seems to be moving in a more favourable direction. The development of positive obligations, particularly the procedural obligations under Article 2 and 3, has (p. 219) been considerable. The pilot-judgment procedure adds an ability to redress numerous violations with a single case. In addition to, or as an alternative to, a pilot judgment, when the Court finds a systematic practice, it has begun, pursuant to Article 46, to make indications of general or individual measures the government must take to address the violations; the Court insists, however, that these indications are non-binding and separate from just satisfaction under Article 41.165

6.3.2  The European Social Charter

The European Social Charter has evolved and gained strength over time, adding to its list of rights by an Additional Protocol adopted in 1988 and a Revised Charter in 1996 and reforming its system of supervision in a 1991 Protocol.166 An Additional Protocol of 1998 provided for a system of collective complaints that allows complaints of ‘unsatisfactory application of the Charter’ (Art. 1) to originate with one of several types of groups: international organizations of employers and trade unions which participate in the work of the Governmental Committee according to Article 27(2); other international non-governmental organizations having consultative status with the Council of Europe and appearing on a special list drawn up by the Governmental Committee; and national organizations of employers and trade unions from the contracting party concerned. Each state also may declare that it accepts the right of its national non-governmental organizations to lodge complaints against it. Organizations may submit complaints only in respect of those matters regarding which they have been recognized as having particular competence (Additional Protocol, Art. 3).

Collective complaints are examined by the ECSR. It determines admissibility first and then examines admissible complaints on the basis of written submissions and hearings, if necessary. The Committee prepares a report on its examination of the complaint and the conclusions reached. The report is transmitted to the Committee of Ministers, the complaining organization, and the states parties. On the basis of the report, the Committee of Ministers adopts a resolution on the matter, which may contain recommendations to the state concerned. At the time the resolution is adopted, or four months after the Committee of Ministers receives the report, the Parliamentary Assembly also receives the report, which is then made public. The state must submit information on its measures to comply with the recommendations made (Art. 10).

In the first two years after the Protocol entered into force, ten complaints were registered. The first application, International Commission of Jurists v. Portugal, Application No. 1/1998, complained of child labour in violation of Article 7(1) of the Charter. The ECSR transmitted the report containing its decision on the merits of the complaint to the Committee of Ministers on 10 September 1999. The Committee of Ministers adopted Resolution ChS (99)4 on 15 December 1999 agreeing that a violation had been shown. Several consecutive complaints were then lodged against France, Italy, Greece, and Portugal concerning the right of armed forces to organize and bargain collectively.

Over the period 1998–2013, the European Committee of Social Rights received 103 collective complaints. The Committee issued 186 decisions, including eighty-five decisions on the merits. Among the developments during this time, a growing number of civil society organizations sought to intervene before the Committee as third parties. The (p. 220) Committee has also begun to receive requests for immediate measures. Substantively, in 2013 alone, the Committee adopted decisions concerning the health risks posed by environmental problems in Greece, the retirement age for seamen in Norway, posting of workers and problems of reconciling economic freedoms and social rights in Sweden, protection of foreign minors in Belgium, truancy and protection of autistic persons in France, access to abortion procedures in Italy, and decisions concerning the reduction of pensions in Greece. The Committee makes findings on violations, but rarely issues any views on recommended redress. Instead, in February 2012, the Committee of Ministers instructed its Group of Rapporteurs on social and health issues to follow up on the decisions of the European Committee of Social Rights in the context of the system of collective complaints and it now does so to monitor compliance with required changes in law and practice.

6.3.3  The European Court of Justice

Individual claimants in the EU may seek an award of damages or other remedies for violations of the fundamental rights which are an integral part of the general principles of law the Court is required to apply. The Court looks to the European Convention on Human Rights167 and the EU Charter of Fundamental Rights adopted in 2000. Although not a human rights court per se, the European Court of Justice considers issues of human rights. The Treaty on European Union first specified that the Union ‘shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … and as they result from the constitutional traditions common to the Member States, as general principles of Community law’.168 In this framework, the European Court of Justice has developed a law of remedies that provides a useful contrast to the jurisprudence of the European Court of Human Rights.169

As early as 1960, the ECJ declared that if it ruled in a given case that a legislative or administrative measure is contrary to Community law, ‘the Member State is obliged … to rescind the measure in question and make reparation for any unlawful consequences which may have ensued’.170 In Francovich and Bonifaci v. Italian Republic,171 the Court held that a member state may be liable in damages for failure to implement a directive because ‘the full effectiveness of Community rules would be weakened if individuals were unable to obtain compensation when their rights are infringed by a breach of Community law for which a Member State can be liable’.172 The directive must confer rights on individuals, the content of the rights should be identifiable, and there should be a causal link between the damage suffered and the member state’s failure to implement the directive.(p. 221)

On the basis of the principle of subsidiarity the ECJ has declared itself competent to decide whether or not national courts provide an adequate remedy. In the Von Colson judgment, the Court discussed the duty of national courts to construe national law in conformity with Community law. The case related to Article 6 of Council Directive 76/207 of 9 February 1976, pursuant to which member states must provide an effective judicial remedy and impose sanctions in respect of prohibited discrimination between men and women. The Court noted that actions for damages are not only intended to repair existing damages, but also to prevent future harm; thus, compensation must be ‘effective’ and ‘have a deterrent effect’. ‘[C]ompensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation’.173 The Court held that the prohibition of discrimination must be enforced by sanctions that have a real deterrent effect and that national law must be interpreted to achieve the result envisaged by Article 6.

In Dekker174 and Marshall v. Southampton and South West Hampshire Area Health Authority,175 the Court expanded on the duty to provide effective remedies. In Dekker, the Court held that the duty to provide effective judicial protection set forth in Article 6 of the directive implies that unlawful discrimination constitutes an objective breach of the principle of equal treatment and entails liability on the part of the employer without need for further proof of fault or the absence of any ground discharging such liability.

Marshall concerned gender discrimination in respect of the age of retirement. Marshall I resulted in a finding in the individual’s favour176 and the case was remanded by the English Court of Appeal to the industrial tribunal on the question of a remedy. The national Sex Discrimination Act prohibited sex discrimination, but treated it differently from other types of employment discrimination, including placing a limit on compensation for breaches (at the time it was UK£6,250). After the statutory maximum was paid by the health authority, the industrial tribunal found that Marshall’s financial loss was actually UK£18,405, including interest on the loss. The tribunal awarded that amount plus UK£1,000 for moral injury. The tribunal specifically found that the statutory limit made the compensatory remedy inadequate and this inadequacy constituted a further breach of the EC directive. On appeal, the House of Lords referred the question to the ECJ for a preliminary ruling on the compatibility of the statutory remedy with Article 6 of Council Directive 76/207.

The Court decided that it is impossible to establish real equality without an appropriate system of sanctions that the state is free to choose within limits. The system of sanctions must be appropriate: i.e. ‘such as to guarantee real and effective judicial protection. Moreover it must also have a real deterrent effect on the employer’. Therefore, if the state chooses to sanction through the award of compensation to victims of a breach, that compensation must be adequate in relation to the damage sustained. In Heylens,177 the Court reiterated that effective remedies must be provided for all breaches of fundamental rights in the Community.178(p. 222)

Other judgments affirm the right to a remedy.179 According to the Court, the right to a remedy is afforded for all rights guaranteed by Community law, and applies to the member states when they are implementing Community law, as well as to the institutions of the Union. Judicial review by the ECJ itself ‘reflects a general principle of Community law stemming from the constitutional traditions common to the Member States and enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms’.180 Indeed, the ECJ views access to justice as ‘one of the constitutive elements of a Community based on the rule of law’.181 In this respect, in recent cases the Court has noted the inclusion of the right to an effective remedy in Article 47 of the now binding Charter of Fundamental Rights,182 finding the Charter to ‘show the importance of the rights it sets out in the Community legal order’.183

Charter Article 47 corresponds to Article 6(1) of the ECHR, but is broader, because the right to a fair and public hearing is not limited to disputes relating to civil rights and obligations. According to the ECJ, the right to a fair hearing is one of the consequences of the fact that the Community is a community based on the rule of law.184 The final paragraph of Article 47 is based upon the ECtHR Airey185 decision and requires provision be made for legal aid where the absence of such aid would make it impossible to secure an effective remedy.

The Charter seems favourable to affording remedies, but in practice the restrictive rules on standing make it difficult to present certain types of cases to the ECJ. The basis for challenging the acts of EC institutions, for example, is Art. 230 of the EC Treaty which allows actions to be brought to annul a decision either addressed to the applicant or ‘of direct and individual concern’ to that person.186 The case law of the ECJ imposes stringent requirements as to the particular interest that individuals must have in order to be able to institute proceedings before the Community courts. Persons have locus standi only if a ‘decision affects them by reason of certain attributes which are peculiar to them, or by reason of factual circumstances which differentiate them from all other persons and thereby distinguish them individually in the same way as the person addressed’.187 Although the restrictive standing doctrine was enunciated prior to adoption of the Charter of Fundamental Rights, it has been reaffirmed subsequently,188 despite the right (p. 223) to a remedy contained in the Charter, the misgivings expressed by different Advocates General,189 and disagreement expressed by the Court of First Instance.190

Whether an action is open to challenge or not depends on its substance rather than its form and requires that the act have binding effect and an impact on the interests of the applicant. In effect, there must be a distinct change in the legal position of the applicant to meet the jurisdictional requirements. In the Philip Morris Case,191 the Court held that a lawsuit brought by the Commission in the United States is not an act that can be challenged by an annulment proceeding. According to the EJC this is not a denial of access to justice because there might still be an action against the Commission for damages for non-contractual liability under Art. 235 EC. While the EJC says it may seem desirable that individuals should have injunctive or preventive relief in respect to actions of Community institutions that do not amount to decisions, ‘it is clear that a remedy of that nature … is not provided for by the Treaty’.192 Any change to the system of legal remedies and procedures would have to come from the Member States through amending the Treaty.

Individuals and legal persons affected by directives prior to their incorporation into domestic law and directly enforceable regulations may also find themselves without a remedy. In Salamander and Others v. Parliament and Council,193 the Court of First Instance ruled that a directive which requires Member States to impose obligations on economic operators is not of itself, before the adoption of national transposing measures and independently of them, of such a nature as to affect directly the legal position of the operators. Any harm incurred by persons during the implementation period is seen to bear only on their factual situation and does not result from the directive. The Commission further takes the position that no directive is ripe for challenge before either national courts or the ECJ until the period for its implementation has expired.194 However, if a national court is faced with a genuine dispute concerning Community law and submits a question for a preliminary ruling it is appropriate for the Court to respond,195 especially because Art. 230 EC does not allow private parties to challenge the validity of a directive directly before the Court of First Instance. The preliminary reference procedure can be deemed to be another form of remedy designed to offer legal protection to individuals.

In some instances there may be no potentially available redress unless the individual is willing to violate the EC measure and risk the consequences. In Jego-Quere et Cie,196 the applicant fishing company was subject to a Commission Regulation on fishing but unable to bring an action to challenge it in a national court through a request for a preliminary ruling or to begin an action for non-contractual liability against the Commission under Arts. 235 and 288(2). The company sought to use Art. 230, despite the strict standing requirements previously established. The Court of First Instance (CFI) agreed that it was unsatisfactory to require the company to violate the law in order to have access to justice (p. 224) and that the applicant should not be deprived of the right which is an essential element of the Community legal order and affirmed in the Charter of Fundamental Rights. The CFI thus refused to follow precedent and enunciated a broader standing test: a natural or legal person was to be regarded as individually concerned by a Community measure of general application that concerned the person directly if the measure affected his or her legal position in a definite and immediate manner by restricting the individual’s rights or imposing obligations on him or her.197 It is immaterial how many other persons are likewise affected. Despite this ruling, the plenary Court of Justice in the July 2005 UPA198 case, reaffirmed the traditional doctrine.

The Charter does not indicate the type or scope of remedies that should be afforded, only that they should be ‘effective’. The ECJ, when seeking to repair damage caused by the Community, applies ‘the general principles common to the laws of the Member States’, i.e. national laws concerning state liability. As early as 1960, the ECJ declared that if it ruled in a given case that a legislative or administrative measure is contrary to Community law, ‘the Member State is obliged … to rescind the measure in question and make reparation for any unlawful consequences which may have ensued’.199 In Brasserie du Pecheur,200 the Court indicated its approach to remedies due to applicants whose rights under Community law have been violated. The Court relied on its case law on non-contractual liability of the Community because it found that the liability of member states should not differ from that of the Community in like circumstances. The Court applied the principle that

[r]eparation for loss or damage caused to individuals as a result of breaches of Community law must be commensurate with the loss or damage sustained so as to ensure the effective protection for their rights. In the absence of relevant Community provisions, it is for the domestic legal system of each Member State to set the criteria for determining the extent of reparation. However, those criteria must not be less favourable than those applying to similar claims based on domestic law and must not be such as in practice to make it impossible or excessively difficult to obtain reparation.201

The jurisprudence of the ECJ is helpful in emphasizing the underlying purpose of affording a remedy to those who are injured by breaches of the law. Its concern with both the compensatory and deterrent effects of remedies offers a useful approach that could be applied by other international tribunals seeking to uphold the rule of law as well as provide justice to victims.

6.3.4  The Inter-American System

The Inter-American system for the protection of human rights has a dual institutional structure, one has evolved from the Charter of the Organization of American States (1948) and the other was created by the entry into force of the American Convention on Human Rights (1969). Two independent organs safeguard implementation of the American Convention: the Inter-American Commission on Human Rights (IACHR or Commission) and the Inter-American Court of Human Rights. In a reverse of the original European system, the OAS inter-state complaint mechanism is optional and the individual petition (p. 225) procedure is not. All states ratifying the Convention accept the right of ‘any person or group of persons, or any non-governmental entity legally recognized in one or more member states of the Organization’202 to present petitions to the IACHR. In addition, the Commission has jurisdiction over petitions filed by victims of human rights violations committed by OAS member states that have not ratified the Convention; the applicable human rights standards in such instances are those of the American Declaration.203 Admissibility requirements for petitions are similar to those of the European Convention.

The Commission examines the petition and determines the facts. If a settlement is not reached, the Commission prepares a report and, if it finds a violation, makes recommendations to the state. The recommendations can specify remedies. Upon completion of procedures before the Commission, either the Commission or the state concerned can submit the case to the Court, if the state has accepted the Court’s jurisdiction. The Court’s judgment is binding, but there is no analogue to the European Committee of Ministers to oversee enforcement. The Court itself keeps the case open until compliance with the judgment is achieved.

The system increasingly emphasizes the desire to reach a friendly settlement in cases. Remedies in settled matters include compensation and some reference to non-pecuniary or ‘symbolic’ redress.204 Common non-pecuniary measures include a public acknowledgement of the agreement at official ceremonies;205 publication of the settlement in local media,206 an official apology by state officials,207 or other public acts designed ‘to restore the victims’ reputation and honour’.208 Many settlements involve the state acknowledging the violation,209 but not all.210 The majority of settlements have included a pledge ‘to bring civil and criminal proceedings and pursue administrative sanctions against those persons who are alleged to have participated in the violation … ’211 In exchange for the reparations measures agreed upon by the state, petitioners as a rule relinquish their claims, agreeing ‘to desist from the petition … filed with the Inter-American Commission’ and to recognize that the basic claims have been resolved212 without (p. 226) prejudice to any domestic civil or criminal remedies still available. The Commission’s role is to ensure that the agreement is compatible with the American Convention and that the state fulfils its commitments.213

In admissible cases where no settlement is reached, the Commission proceeds to consider the merits of the case, on rare occasions conducting a hearing or making a country visit. While on-site investigations are conducted more frequently in the Inter-American system than by other human rights bodies, they are rarely undertaken solely to investigate a single or individual case. Instead, they are utilized to investigate allegations of widespread human rights violations within the target country, as part of which individual cases may be examined.

The Commission sometimes makes detailed comments on reparations and routinely reports on the measures states have taken in response to the recommendations in its merits reports.214 The Commission normally recommends that a state found to have violated human rights pay monetary compensation to the victim or, in the case of death or disappearance, to the family members of the victims. The Commission has stated that when such a recommendation is made, the duty to provide compensation becomes an international legal obligation that may not be limited by national law.215 In addition to or as an alternative to compensation, the Commission has recommended reform of a military court system,216 investigation, prosecution and punishment of violators,217 adoption or modification of legislation,218 and guarantees for the safety of witnesses.219 The Court has said that ‘the Commission may recommend to a state the derogation or amendment of a conflicting norm that has come to its attention by any means whatsoever, whether or not that norm has been applied to a concrete case’.220

In setting forth the nature and scope of required remedies, the Commission often has applied the law of other human rights bodies, such as the criteria established in the ‘principles governing the effective prevention and investigation of extralegal, arbitrary or summary executions’.221 The principles provide that the investigation of such cases must aim to determine the cause, manner and time of death, the person responsible and the procedure or practice which might have led to the events.222 Another UN Manual (p. 227) establishes procedures for gathering evidence,223 which the Commission applies to test whether or not the government has fulfilled its duty to investigate suspicious deaths. Failure to comply with these requirements seems to establish a prima facie case that the state has violated its obligations under the Convention, exacerbated when the state’s own criminal procedures are not followed.224

If the Commission finds a state liable for any serious human rights violation such as extrajudicial execution, forced disappearance, torture or inhumane treatment, it consistently urges a ‘prompt, impartial and effective’ investigation with a view to identifying the responsible parties and bringing them to justice. It has denounced amnesties for such violations225 and recommended the investigation and punishment of persons and authorities that impede proper state investigations or judicial proceedings.226

After the Commission decides the merits of a petition, either the state or the Commission can refer the case to the Inter-American Court of Human Rights, if the state involved is a party to the Convention and has expressly recognized the Court’s jurisdiction, as most states parties have done. Under current rules there is a presumption that all cases should go to the Court if the Commission has found one or more violations and the responsible state has not complied with the Commission’s recommendations within the time period specified by the Commission. A reasoned decision by an absolute majority of the Commission is required to withhold such a case from the Court. The Commission considers the views of the petitioner; the nature and seriousness of the violation; the need to develop or clarify case law; the future effect of the decision on member states and the quality of the evidence.

The American Convention does not give individuals standing to bring a case before the Court but once a case is filed, the victims can appear separately with their own (p. 228) representatives. The Commission’s role has been likened by the Court to that of a ‘Ministerio Publico’, akin to a public prosecutor.227

The American Convention on Human Rights gives the Inter-American Court broad jurisdiction to decide on remedies:

If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.228

The plain language of Article 63 indicates the Court’s power to order remedies other than compensation. The drafting history of the American Convention reveals no debate about conferring broad competence on the Court.229 The early drafts generally replicated the language of Article 50 of the European Convention on Human Rights,230 but some states sought to strengthen the article.231 The drafting Committee largely accepted these proposals and the Plenary adopted the Committee version of Article 63(1) without discussion, giving the Court the three powers it currently enjoys to order measures that: (1) ensure that the victim enjoys future respect for the right or freedom that was violated; (2) remedy the consequences of the violation; and (3) compensate for the harm.

The Court has adopted standard language on the duty of states to afford reparations and on its own powers, as follows:

199.  Based on the provisions of Article 63(1) of the American Convention, the Court has held that any violation of an international obligation that has caused damage creates a duty to make adequate reparation232 and that this provision, based on a general concept of law, constitutes one of the fundamental principles of contemporary international law on State responsibility.233

200.  Reparation of the damage caused by a violation of an international obligation requires, wherever possible, full restitution (restitutio in integrum), which implies restoring the previous situation. If this is not feasible, as in most cases involving human rights violations, the Court will decide on measures to guarantee the infringed rights and to repair the consequences of the violations.234 Accordingly, the Court has considered the need to grant various measures of reparation, so as to provide full redress for the damage caused; therefore, in addition to pecuniary compensation, (p. 229) measures of restitution, satisfaction and guarantees of non-repetition are of special relevance given the damage caused.235

201.  This Court has established that reparations must have a causal link with the facts of the case, the violations declared, the damages verified and the measures requested to repair the respective damages. Therefore, the Court shall adhere to that concurrence in order to rule appropriately and according to law.236

Reparation requires, where possible, restitution. If it is not possible, the Court will ‘order a series of measures that will safeguard the violated rights, redress the consequences that the violations engendered, and order payment of compensation for the damages caused’.237 Reparations should aim to erase the effects of the violations committed, not to enrich or impoverish the victims or his heirs. Their nature and amount depend on the damage caused, and must be proportionate to the violations. In the Blake Case, among others, the Court cautioned litigants not to rely too heavily on prior cases, expressing its opinion that earlier jurisprudence cannot be invoked as an absolute criterion, as each case must be examined individually.

Like the former practice of the European Court, the Inter-American Court in the past often reserved the issue of reparations for a second phase, after its judgment on the merits of a case.238 Memorials are sought from the Commission, the state, and the victims and public hearings usually are held. The judgment is final, but may be subject to a request for interpretation. The Inter-American system has no organ equivalent to the European Committee of Ministers to oversee compliance with the judgment, and thus the Court holds cases open until the state complies with the remedial measures directed by the Court.239

The Court has made broad use of its jurisdiction. It has awarded pecuniary and non-pecuniary damages, granting both monetary and non-monetary remedies. Unlike the usual practice of the European Court, the Inter-American Court has ordered a state to take specific action to remedy a breach of the Convention. Where legislation is incompatible with the Convention, the Court originally held it need not make a specific order, because once it declares the law is incompatible with the Convention the state is obliged to bring the law into conformity. More recent awards have expressly called upon states to change impugned laws. The Court has been innovative in controlling all aspects of the awards, including setting up trust funds, and determining the apportionment of moneys given heirs and other beneficiaries. Attorneys’ fees and costs are now awarded, at least in part.

The Court has been receptive to specific claims for reparations that fulfil the aim of restoring the petitioner as fully as possible to a pre-injury status. In Suarez Rosero v. Ecuador (Reparations),240 the petitioner expressed concern over a fine that had been (p. 230) imposed upon him in the domestic proceedings. The Court agreed that because the process against the applicant was itself a violation of the Convention, the state must not execute the judgment imposing the fine and should expunge the record.

In Loayza Tamayo v. Peru (Reparations), the Court accepted the applicant’s argument for a new category of damages, in addition to dano emergente and lucrum cessans. The judgment recognized that human rights victims suffer interference with their ‘proyecto de vida’, a concept similar to but broader than enjoyment of life. Linked to the notion of individual self-determination, it allows a damage claim for interference with the victim’s fulfilment founded upon personal capabilities and goals.241 Individual opinions of judges expressed their agreement that human rights law requires reparations that take into account the totality of the human person and the impact of a human rights violation, departing from a material perspective and looking at all potentialities and capacities. For the judges, non-monetary reparations are therefore more important than compensation.242

Most judges on the Court see their role as extending beyond providing redress for the victims in a case.243 Like the European Court, the Inter-American Court looks to the larger issue of the international rule of law. As a result, some of the Court’s decisions are specific and far-reaching, such as a direction to a government to seek the extradition of a high government official responsible for violations,244 and to commemorate or honour the memory of law enforcement officers who were killed in retaliation for investigating violations.245 The Court has often insisted on the duty to prosecute and punish perpetrators, despite problems of compliance.246

Judgments are usually comprehensive and seek restitution of the right that has been violated, compensation, satisfaction, rehabilitation of the victims, and measures of non-repetition. The judgment itself is held to constitute a form of reparation, but compensation is the most frequent form of reparation in the Court’s case law and, in turn, has the highest rate of prompt compliance.

The Inter-American Court has developed extensive doctrine on the scope of pecuniary and non-pecuniary damage. Pecuniary damage recognized by the Inter-American Court includes consequential damage, loss of earnings or profit, and damage to personal wealth. Compensation has been seen as the natural means of reparation for this kind of harm. Non-pecuniary damage includes the suffering and hardship caused to the victims, harm to objects of value or great significance, psychological and moral injury, and detrimental changes in the living conditions of the victims. The amount of the compensation is set in relation to the facts that constitute the violation. Article 63(1) of the American Convention refers to ‘fair compensation’ and the Court has reiterated (p. 231) that the compensatory character of monetary awards, the nature and amount of which depend on the harm caused, means that they must neither enrich nor impoverish the victims or their heirs. The Court thus takes into account the compensation awarded at the domestic level.247

The Court may order measures of satisfaction and guarantees of non-repetition of a non-pecuniary nature for moral injury, such as amendment of domestic legislation or improvement of prison conditions to meet international standards; such measures may have national public impact248 and be deemed adequate in lieu of monetary awards. For the most serious violations the Court will often include collective measures of redress. In Plan de Sánchez v. Guatemala,249 the Court awarded collective measures of redress for the survivors and next of kin of a massacre. The Court required the state to investigate, prosecute and punish the responsible parties; publicly accept responsibility for the violations; establish a village housing program; provide medical and psychological treatment for all survivors; implement educational and cultural programs; and translate the judgment into the Mayan language.250

States frequently issue an apology, motu propio, to victims during the Court’s public hearings, after accepting responsibility for the violations at issue.251 Scholars have commented that many victims particularly want an apology from the wrongdoer252 and that compensation is often ‘much less important than emotional or symbolic reparation’.253 Acknowledgement of the wrong, with an apology, helps address the individual’s need for ‘dignity, emotional relief, participation in the social polity, or institutional reordering’.254 In contrast, a mere declaratory judgment ‘conveys little more to the public than who won the case’.255

In the absence of an acknowledgement or apology, the Court initially refused to order the state to acknowledge the violations,256 but began doing so in 2001 in the Cantoral-Benavides case.257 The formulation of this order has evolved as it has become a commonly required measure, often requiring an elaborate public ceremony with the participation of high-level government authorities.258 The Court also routinely orders publication of at least part of the judgment in national newspapers, and on official (p. 232) websites or radio.259 If the victims could face persecution or other dangers260 the Court may order that their names be withheld.261

In late 2014, the Court enunciated a new doctrine, indicating that even though international law establishes the individual right to full reparation, in situations of transitional justice in which states must afford reparation to numerous victims of violations beyond the capacities of domestic courts to handle, administrative reparation programs are a legitimate way to comply with the obligation of reparation.262 It added that, in these circumstances, such measures of reparation must be understood in conjunction with other measures of truth and justice, provided that a series of requirements are met relating, among other issues, to their legitimacy based on the consultation with and participation of the victims; their adoption in good faith; the level of social inclusion they permit; the reasonableness and proportionality of the pecuniary measures; the type of reasons given to make reparations by family group and not individually; the distribution criteria among members of a family (order of succession or percentages); parameters for a fair distribution that take into account the position of women among the members of the family, and other differentiated factors such as whether collective ownership of land or other means of production exist.263

This retreat from the principle of full reparations appears to represent the Court’s acceptance of the developing theory and practice of transitional justice, but may also be an acknowledgment of the difficulties it has faced in obtaining compliance with its judgments thus far.264

6.3.5  The African System

The African Charter on Human and Peoples’ Rights, which entered into force on 21 October 1986,265 obliges states parties to recognize the rights, duties, and freedoms contained in the Charter and to adopt legislative or other measures to give effect to them. States are to report biennially on these measures. In addition, states parties have a duty to promote and ensure respect for the rights, through teaching, education and publication. The Charter provides for an eleven member independent African Commission on (p. 233) Human and Peoples’ Rights whose functions are ‘to promote human and peoples’ rights and ensure their protection in Africa’266 as well as monitor state compliance with the provisions of the Charter. A protocol adopted on 8 June 1998 added an eleven member African Court of Human Rights.267

The Charter confers broad four functions on the Commission268: the promotion of human and peoples’ rights in Africa; the protection of those rights; interpretation of the Charter; and the performance of other tasks that may be entrusted to it by the AU Assembly of Heads of State and Government. The Commission may receive communications from individuals, non-governmental organizations or other entities who have exhausted local remedies. It may investigate the merits of admissible claims and make recommendations to the states concerned. In formulating and laying down principles and rules aimed at solving legal problems relating to human rights,269 the Commission is to draw inspiration from other international human rights instruments, customary international law, and general principles of law recognized by African states.270 Beyond these general guidelines, the authority of the Commission in regard to complaints is not clear and nothing is said about remedies. Yet, the African Commission’s practice respecting remedies has evolved considerably from being largely deferential to the governments to issuing specific instructions.

The African Commission has described the primary purpose of its communications procedure as initiating a positive dialogue resulting ultimately in an amicable resolution designed to remedy the prejudice suffered,271 the emphasis being placed on non-confrontation and diplomacy. In early individual cases, the Commission has issued declaratory statements on the responsibility of the state for the violations found and demanded cessation of the breach,272 but often limited itself to declaratory judgments even in instances of violations of the right to life273 or gross and systematic violations.274(p. 234)

Still, the African Commission has indicated that states have a duty to provide reparations once the Commission has determined that they have committed violations of the African Charter275 usually by a declaration that the state is ‘responsible for the reparation’ of human rights abuses.276 It has directed states to ‘adopt measures in conformity with this decision’,277 ‘take steps to repair the prejudice suffered’,278 or ‘take the necessary steps to bring its law into conformity with the Charter’.279 Numerous cases suggest or require restitution, including through the release of prisoners.280 More recently, the African Commission has made specific recommendations in several cases that appear close to injunctive orders, including restitution (demanding the release of persons wrongfully detained),281 repeal of laws or decrees found to be in violation of the Charter282 and the reinstatement of wrongfully dismissed workers.283 It has also acknowledged the necessity of compensation in some cases, but has appeared reluctant to make compensatory awards. In Huri-Laws v. Nigeria, the Commission limited relief to a declaration of the violation, despite a request for compensation for the victims’ loss of income, which was quantified, and compensation for the mental distress that they suffered; the return of any equipment seized during the illegal search and seizure of their offices, and compensation for equipment damaged or lost.284(p. 235)

In cases where the Commission has found serious or massive violations it has provided more extensive remedies.285 In Malawi African Association, Amnesty International, Ms Sarr Diop, et al. v. Mauritania, the Commission offered its first detailed recommendations following a finding of gross and systematic violations of the African Charter. The measures set forth included for the government to set up an independent inquiry to investigate disappearances; identify and prosecute the perpetrators; carry out an assessment of degrading practices with a view to identifying deep-rooted causes for their persistence and put in place a strategy aimed at their complete eradication; take appropriate administrative measures for the effective enforcement of the domestic law on the abolition of slavery; and take diligent measures to replace the national identity documents of Mauritanian citizens who had been expelled to ensure their return without delay, restitute their belongings, and provide reparation for the deprivations. The Commission also called for the reinstatement of the rights due to workers unduly dismissed or forcibly retired. More recently, the African Commission has moved to adopt clearer and more targeted decisions on remedies that mirror those indicated in other global and regional systems: investigate, prosecute, and punish286 or compensate victims.

The Commission acknowledged the need for compensation in recent cases like Kenneth Good v. Republic of Botswana.287 The Commission noted that adequate compensation should include, but not be limited to, recovery of the salary and benefits the applicant lost as a result of his expulsion, but also added that he should recover the legal costs incurred both before the domestic courts and the Commission. In African Institute for Human Rights and Development v. Guinea,288 the Commission recommended that a Joint Commission be set up by the Sierra Leone and Guinea governments to assess the losses of various refugee victims ‘with a view to compensate’ them. While the Commission has yet to specify a quantum of compensation, this appears more linked to the pleadings than to any lack of competence. In one case, the Commission appeared to presume that the applicant was satisfied with measures taken by a new government to remedy violations by the previous regime.289

One of the Commission’s most innovative decisions on remedies came in a case concerning economic, social and cultural rights. In Social and Economic Rights Action Center v. Nigeria,290 the African Commission found Nigeria to have violated the right to enjoy Charter-guaranteed rights and freedoms without discrimination (Art. 2), the right to life (Art. 4), the right to property (Art. 14), the right to health (Art. 16), the right to housing (implied in the duty to protect the family, Art. 18(1)), the right to food (implicit in Arts. 4, 16, and 22), the right of peoples freely to dispose of their wealth and natural resources (Art. 21), and the right of peoples to a ‘general satisfactory environment favourable to their development’ (Art. 24). Most of the violations stemmed from actions taken by or (p. 236) involving the Nigerian National Petroleum Development Company (NNPC) in a consortium with Shell Petroleum Development Corporation (SPDC).

The Commission first assessed the claimed violations of the rights to health (Art. 16) and to a general satisfactory environment (Art. 24). It found that the right to a general satisfactory environment ‘imposes clear obligations upon a government’, requiring the state ‘to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources’.291 Moreover,

[g]overnment compliance with the spirit of Articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities.292

The Commission concluded that although Nigeria had the right to produce oil, it had not protected the Article 16 and Article 24 rights of those in the Ogoni region. The Commission also found that, taken together, the lack of involvement of the Ogoni people, the destructive role played by oil development, the repressive tactics of the government, and the lack of material benefits accruing to the local population ‘may well be said’ to constitute a violation of the Ogoni people’s Article 21 rights concerning the disposal and use of wealth and natural resources.

The Commission emphasized that collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa, that the Commission intended to apply them, and that ‘there is no right in the African Charter that cannot be made effective’.293 While governments may labour under difficult circumstances in trying to improve the lives of their peoples, they must reconsider their relationships with multinational corporations if these relationships fail to be mindful of the common good and of the rights of individuals and communities.

In terms of remedies, the Commission called on the Nigerian government:

  • •  to stop all attacks on Ogoni communities

  • •  to allow independent investigators free access to the territory to conduct an investigation into the human rights violations that occurred

  • •  to prosecute those responsible for any such violations

  • •  to ensure adequate compensation for victims of violations, including a comprehensive cleanup of lands and rivers damaged by oil operations

  • •  to ensure that appropriate environmental and social assessments are prepared for future oil operations and that effective and independent oversight bodies exist for the petroleum industry, and

  • •  for communities likely to be affected by oil operations, to provide information on health and environmental risks, and meaningful access to regulatory and decision-making bodies.

In 2012, the Commission addressed the issue of redress for wrongful killings through use of excessive force, failure of accountability, and lack of compensation for the death of (p. 237) four persons.294 The state argued that under domestic law governing actions for wrongful death, damages were limited to medical, hospital and funeral expenses, and excluded moral damages. The complainant asserted, in contrast, ‘that the right to a remedy or reparation in the event of a human rights violation is well-entrenched in international law’.295 The African Commission concluded that the use of lethal force by the police was unlawful and then commented that ‘Human rights law and the international law on State responsibility require that individuals should have an effective remedy when their rights are violated, and that the State must provide reparations for its own violations. States must ensure that victims’ families are able to enforce their right to compensation through judicial remedies where necessary’.296 The remedies must be full and effective, including satisfactory compensation, covering any financially assessable damage, and satisfaction that consists of an acknowledgment of the breach and a formal apology. The state is also obliged to make diligent efforts to harmonize legislation with provisions of the treaty. The final recommendations therefore included one to the state to undertake law reform to bring domestic laws on compensation in case of wrongful killings into conformity with the African Charter and other international standards, especially in respect to effective and satisfactory compensation, as well as to pay compensatory damages to the legal heirs and next of kin of the four deceased persons.

The Commission’s judgments reveal a number of inconsistencies on remedies, particularly with regards to different outcomes in analogous cases. In Civil Liberties Organisation v. Nigeria, for example, the Commission found multiple violations when civilians and military personnel had been tried in secret by a Special Military Tribunal, precluding the jurisdiction of ordinary courts, and without due process. The Commission appealed to the Nigerian government ‘to permit the accused persons a civil re-trial with full access to lawyers of their choice; and improve their conditions of detention’. In Centre For Free Speech v. Nigeria, the Commission recommended release of the four journalists who had been tried and convicted by the same Special Military Tribunals. In Marcel Wetsh’okonda Koso and others v. Democratic Republic of Congo, in contrast, the Commission recommended only that the DRC guarantee the independence of tribunals, grant of fair and equitable compensation and harmonize domestic law with the state’s international obligations.

The Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights,297 which entered into force on 25 January 2004, provides that either the Commission, a complainant state or a respondent state may submit cases to the Court concerning the interpretation and the application of the African Charter, the Protocol or ‘any other applicable African Human Rights instrument’.298 States may declare that they accept the competence of the Court to receive cases from individuals and non-governmental organizations with observer status.299 Article 26(1), the remedies provision, states that ‘[i]f the Court finds that there has been a violation of a human or people’s right, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation’. This (p. 238) provision is broader than all the current mandates of international human rights bodies to afford remedies to victims of human rights abuse.

In its first judgment on the merits,300 the African Court made limited use of its remedial powers, after finding that Tanzania’s prohibition of independent candidates in elections for president, parliament, and local government violated the African Charter. It called upon the government to take all constitutional, legal and other measures to rectify the violations found. The order was open-ended, but the violations found suggested the appropriate action must be taken ‘within a reasonable time’. Compensation for the long and costly litigation was not awarded because it was not fully argued; the Court gave the applicants leave to submit a request following the merits determination.301

6.4  Conclusions

The authority of international tribunals to afford remedies is increasingly accepted. Judicial bodies have inherent power to remedy breaches of law in cases within their jurisdiction. In addition, some human rights treaties confer explicit competence to afford redress on the organs they create to hear cases. The language conferring this authority differs in the European, American and African treaties but the linguistic distinctions alone cannot explain the different views of the courts on the scope of their powers. Instead, the initial conservatism of the European Court, understandable in the context of its ground-breaking role, has long solidified into an unsatisfactory jurisprudence. The Court has recently moved towards use of restitution and other non-monetary remedies that are likely to afford more complete redress for victims of human rights violations. The new approach is consistent with the drafting history, which aimed to prevent the court from becoming a tribunal of ‘fourth instance’ or an appellate court that could itself annul a wrongful conviction or strike down legislation incompatible with treaty obligations. Nothing, however, precludes the court from ruling that such a remedy would be the appropriate one in a given case and calling on the state to implement the decision in its domestic law.

The Inter-American Court, while more generous to litigants, has suffered from inconsistency, probably due to changes in the composition of the Court. In both the Inter-American and the European courts, litigants bear considerable responsibility for the state of the law. Until recently, the memorials and briefs filed paid little attention to the issue of remedies. There is still room for improvement in all the regional systems.

UN treaty bodies are seemingly paying greater attention to remedies, as they should. In most cases, it is not enough to declare that a right has been violated. States need guidance and direction on the measures necessary to afford redress to those whose rights have been violated and who have sought relief, often at considerable risk to themselves and their families. The right to a remedy is well established, even a norm of customary international law. Where states fail to provide the necessary remedies for human rights violations, international institutions are the forum of last resort. Affording redress to victims not only serves the interests of remedial justice, it may help reduce the climate of impunity that exists in many regions and, thereby, induce greater compliance with human rights norms.


1  American Convention on Human Rights (22 November 1969), Art. 33, 1144 UNTS 123, OASTS No. 36, 1.

2  European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950) Art. 19, 213 UNTS 221 as amended by Protocols No. 11 and 14.

3  The eighteen-member Human Rights Committee for example supervises state compliance with the ICCPR by reviewing and commenting on periodic reports. It also administers an optional inter-state complaint mechanism provided for in the CCPR, and considers individual petitions submitted pursuant to the CCPR’s First Optional Protocol (16 December 1966) 999 UNTS 171.

4  E.g., CERD, Art. 14; Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 1 July 2003) UN Doc. A/45/49, Arts. 76, 77.

5  See, e.g., Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure (19 December 2011) UN Doc. A/RES/66/138; Optional Protocol to the Convention on the Rights of Persons with Disabilities (13 December 2006) UN Doc. A/61/611.

6  Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (10 December 2008) UN Doc. A/RES/63/117.

7  See, e.g., Gerald L. Neuman, ‘Bi-Level Remedies for Human Rights Violations’, (2014) 55 Harvard Int’l L. J. 323, 324 (‘Ordinarily, the goal of international human rights institutions is to induce action at the national level for the remediation of past injuries and the prevention of future injuries’).

8  European Court of Human Rights, Mamatkulov, App. No. 46827/99, ¶ 101.

9  European Court of Human Rights, Demir and Baykara v. Turkey [GC] (Judgment of 12 November 2008), para. 66.

10  Ibid, para. 67.

11  European Court of Human Rights, Karner v. Austria (Judgment of 24 July 2003) 38 EHRR 24 (2004), para. 26.

12  European Court of Human Rights, Case of Varnava and Others v. Turkey [GC] (18 September 2009), para. 226.

13  See, e.g., Committee against Torture, K.H. v. Denmark Decision adopted by the Committee, 49th Session, 29 Oct.-23 Nov. 2012, Comm. No. 464/2011, UN Doc. CAT/C/49/D/464/2011 (23 Nov. 2012). Gerald Neuman argues that this is appropriate, because the requirement is for the state to provide an effective remedy, not the most effective remedy. Newman, supra n. 7, 333.

14  Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/2002/79, para. 3.

15  E/CN.4/1994/38, para. 45(a).

16  The Working Group on Arbitrary Detention was established by the Commission on Human Rights in its Res. 1991/42 and entrusted with the investigation of instances of alleged arbitrary deprivation of liberty. The mandate of the Group was clarified and extended by the Commission in its Res. 1997/50 to cover the issue of administrative custody of asylum-seekers and immigrants.

17  See e.g. Decision 43/1993 (People’s Republic of China) in E/CN.4/1995/31/Add.1, 3.

18  E/CN.4/1995/31, para. 45.

19  Ibid.

20  E/CN.4/1996/40, para. 124(4).

21  E/CN.4/1993/46.

22  Ibid, para. 68.

23  E/CN.4/1993/46.

24  E/CN.4/1994/7, para. 11.

25  Ibid.

26  E/CN.4/1993/46, para. 79(g).

27  See ibid, para. 688 and E/CN.4/1994/7, para. 711 (‘The Special Rapporteur notes with concern that, with the exception of Nepal, no Government provided him with information about any such compensation provided to victims or their dependents’).

28  E/CN.4/2003/68, 12.

29  Ibid.

30  CCPR Concluding Observations on Bosnia and Herzegovina (2006), CCPR/C/BIH/CO/1, para. 14. See also Human Rights Committee, General Comment 20, Article 7, 44th Session 1992, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 at 30 (1994).

31  Guatemala, CCPR/C/GTM/CO/3 (19 April 2012), para. 7. The Committee also recommended legislative and policy reform, as well as education campaigns (paras. 8–10, enhanced interpretation services and training programs for legal officials (para. 26), and for the government to ‘carry out prior and informed consultations with indigenous peoples for all decisions relating to projects that affect their rights’ (para. 27).

32  Colombia, CCPR/C/COL/CO.6 (4 August 2010).

33  Ibid, para. 10.

34  Ibid, paras. 23–25 (calling for restitution of the lands of displaced persons, indigenous peoples and Afro-Colombians).

35  UN Comm. against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Conclusions and Recommendations of the Committee against Torture: United States of America, UN Doc. CAT/C/USA/CO/2 (25 July 2006), para. 28.

36  Committee against Torture, ‘Implementation of Article 14 by States Parties, General comment No. 3, (13 December 2012) CAT/CG/3.

37  The Committee ‘recognized’ these elements of full redress ‘under international law and practice’ as outlined in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Res. 60/147.

38  Comm. No. 5/1977 (Moriana Hernandez Valentini de Bazzano et al. v. Uruguay), I Selected Decisions of the Human Rights Committee under the Optional Protocol 40, para. 10.

39  Comm. No. 790/1997 (Vladimir Petrovich Laptsevich v. Belarus), UN Doc. A/55/40, vol. II, 178. See also Comm. No. 919/2000 (Müller and Engelhard v. Namibia), Views of 26 Mar. 2002, UN Doc. A/57/40, vol. II, 243 (where judicial costs were imposed, the order should not be enforced or if already enforced, the state should refund the money).

40  Comm. No. 30/1978 (Irene Bleier Lewenhoff and Rosa Valino de Bleier v. Uruguay) GAOR 37th Session Supp. 40, 130, UN Doc. A/37/40 (1982) (deprivation of the right to life); Comm. No. 84/1981 (Guillermo Ignacio Dermit Barbato and Hugo Harold Dermit Barbato v. Uruguay) GAOR, 38th Session Supp. 40, 124, UN Doc. A/38/40 (1983) (deprivation of the right to life); Comm. No. 107/1981 (Elena Quinteros Almeida and Maria del Carmen Almeida de Quinteros v. Uruguay) GAOR Hum. Rts. Comm. 38th Session Supp. 40, 216, UN Doc. A/38/40 (1983) (disappearance); Comm. No. 146/1983 and 148–154/1983 (John Khemraadi Baboeram et al. v. Suriname) UN GAOR, 40th Session Supp. 40, 187, UN Doc. A/40/40 (1985) (deprivation of the right to life); Comm. No. 161/1983 (Joaquin David Herrera Rubio v. Columbia) GAOR, Hum. Rts. Comm., 43rd Session Supp. 40, 190, UN Doc. A/43/40 (1988) (disappearance and death); Comm. No. 194/1985 (Jean Miango Muigo v. Zaire) GAOR, Hum. Rts. Comm., 43rd Session Supp. 40, 218, UN Doc. A/43/40 (1988) (right to life); Comm. No. 181/1984 (A. and H. Sanjuan Arevalo v. Columbia) GAOR, Hum. Rts. Comm., 45th Session Supp. 40, 31 (vol. 1), UN Doc. A/45/40 (1990) (disappearances); Comm. No. 25/1978 (Carmen Amendola and Graciela Baritussio v. Uruguay) GAOR, Hum. Rts. Comm., 37th Session Supp. 40, 187, UN Doc. A/37/40 (1982) (torture); Comm. No. 124/1982 (Tshitenge Muteba v. Zaire) GAOR, Hum. Rts. Comm., 39th Session Supp. 40, 182, UN Doc. A/39/40 (1984) (torture); Comm. No. 176/1984 (Walter Lafuente Penarrieta et al. v. Bolivia) GAOR, Hum. Rts. Comm., 43rd Session Supp. 40, 199, UN Doc. A/43/40 (1988).

41  Cases Bleier; Barbato; Quinteros; Baboeram; Miango; and Muteba, all supra n. 40; Case 1186/2003 (Titiahonjo v. Cameroon) and Case 1436/2005 (Sathasivam v. Sri Lanka), GAOR, Hum. Rts. Comm., 63rd Session Supp. 40, UN Doc. A/63/40 (2008) (death in detention).

42  Cases Amendola and Baritoussio; Bleier; Barbato; Muteba; Quinteros; Baboeram; Miango; and Penarrieta, all supra n. 40; Case 45/1979 (Suarez de Guerrero v. Colombia) GAOR, Hum. Rts. Comm., 37th Session Supp. 40, 137, UN Doc. A/37/40 (1982) (killing by deliberate police action); Case No. 110/1981 (Antonio Viana Acosta v. Uruguay) GAOR, Hum. Rts. Comm., 39th Session Supp. 40, 169, UN Doc. A/39/40 (1984) (torture); Uteev v. Uzbekistan, Case 1150/2003, GAOR, Hum. Rts. Comm., 63rd Session Supp. 40, UN Doc. A/63/40 (2008); Titiahonjo v. Cameroon, supra n. 41.

43  Cases Bleier; Barbato; Quinteros; Baboeram; Herrera; Muteba; Penarrieta, all supra n. 40; Case No. 80/1980 (Elena Beatriz Vasilskis v. Uruguay) GAOR, Hum. Rts. Comm., 38th Session Supp. 40, 173, UN Doc. A/38/40 (1983) (torture); Case No. 88/1981 (Gustavo Raul Larrosa Bequio v. Uruguay) GAOR, Hum. Rts. Comm., 38th Session Supp. 40, 173, UN Doc. A/38/40 (1983) (torture).

44  Cases Bleier; Barbato; Quinteros; Baboeram; Herrera, Muteba; Penarrieta, all supra n. 40; Vasilskis; Bequio, both supra n. 43; Comm. No. 965/2000 (Karakurt v. Austria) (modify the applicable law to eliminate discrimination); UN Doc. CCPR/C/74/D/965/2000, Views adopted 4 Apr. 2000.

45  Comm. No. 577/1994 (Polay Campos v. Peru), UN Doc. A/53/40, vol. II, 36, para. 10 (denial of a fair trial requires release of the applicant); Comm. No. 788/1997 (Cagas et al. v. The Philippines), UN Doc. A/57/40, vol. I, 116 (where authors had been detained for more than nine years without trial, either try them promptly or release them).

46  Comm. 641/1995 (Gedumbe v. Congo), UN Doc. A/57/40, vol. II, 24, para. 6.2 (the author is entitled to reinstatement to public service and to his post, with all the consequences that this implies, or, if necessary to a similar post, with arrears of salary); an identical remedy was awarded in Comm. No. 906/2000 (Chira Vargas v. Peru), Views of 22 July 2002, ibid, 228. The Committee also called for measures to ensure that similar violations do not recur in the future.

47  Comm. 747/1997 (Des Fours Walderode v. the Czech Republic), Views of 30 Oct. 2001, UN Doc. A/57/40, vol. II, 88, para. 95; Comm. No. 774/1997 (Brok v. Czech Republic), Views of 31 Oct. 2001, UN Doc. A/57/40, vol. II, 110, para. 9 (restitution required for discrimination in property restitution).

48  Zarzi (on behalf of Aouabdia and others) v. Algeria (Merits), Communication No. 1780/2008, UN Doc. CCPR/C/101/D/1780/2008.

49  Comm. No. 63/1979 (Raul Sendic Antonaccio v. Uruguay) (cruel, inhuman or degrading treatment or punishment), Views of 28 Oct. 1981, UN Doc. A/37/40, Annex VIII, 114; Comm. 684/1996 (Sahadath v. Trinidad and Tobago), Views of 2 Apr. 2002, UN Doc. A/57/40, vol. II, 66, para. 9 (the state party is under an obligation to provide appropriate medical and psychiatric care and improve the conditions of detention).

50  Comm. No. 52/1979 (Sergio Ruben Lopez Burgos v. Uruguay), I Selected Decisions 88, para. 14 (‘the State party is under an obligation, pursuant to Art. 2(3) of the Covenant, to provide effective remedies to Lopez Burgos, including immediate release, permission to leave Uruguay and compensation for the violations which he has suffered, and to take steps to ensure that similar violations do not occur in the future’.).

51  Comm. No. 930/2000 (Hendrick Winata et al. v. Australia), UN Doc. A/56/40, 199, para. 9 (wrongful threatened deportation of foreign parents of a naturalized child requires ‘refraining from removing the authors from Australia before they have had an opportunity to have their application for parent visas examined with due consideration given to the protection required by Barry Winata’s status as a minor’.).

52  Kim v. the Republic of Korea, CCPR/C/64/D/574/1994. CEDAW’s committee also consistently recommends publication of its decisions.

53  Comm. No. 63/1979, supra n. 49. See, e.g., J.D. Herrera Rubio case, CCPR, views of 2 Nov. 1987, ICCPR, Selected Decisions of the Human Rights Committee under the Optional Protocol, ii, 1990, 194–5; Case No. 899/1999 (Frances et al. v. Trinidad and Tobago), Views of 25 July 2002, UN Doc. A/57/40, vol. II, 211, para. 7.

54  Comm. No. 532/1993 (Thomas v. Jamaica), Views of 3 Nov. 1997, II Rep. of the Human Rights Committee, GAOR, 53rd Session Supp. 40, UN Doc. A/53/40, 1 (1998) [hereinafter, II Reports].

55  Ibid, 5, para. 7.

56  Comm. No. 554/1993 (R. LaVenda v. Trinidad and Tobago), Views of 29 Oct. 1997, II Reports, 8, 13; Comm. No. 635/1995 (R. Morrison v. Jamaica), Views of 27 July 1998, II Reports, 113, 125; Comm. No. 672/1995 (C. Smart v. Trinidad and Tobago), Views of 29 July 1998, II Reports, 142, 149.

57  Comm. No. 564/1993 (J. Leslie v. Jamaica), Views of 31 July 1998, II Reports at 21, 29; Comm. No. 585/1994 (T. Jones v. Jamaica), Views of 6 Apr. 1998, II Reports at 45, 54; Comm. No. 591/1994 (I. Chung v. Jamaica), Views of 9 Apr. 1998, II Reports at 55, 61; Comm. No. 615/1995 (B. Young v. Jamaica), Views of 4 Nov. 1997, II Reports at 69, 75; Comm. No. 617/1995 (A. Finn v. Jamaica), Views of 31 July 1998, II Reports at 78, 86; Comm. No. 619/1995 (Deidrick v. Jamaica), Views of 9 Apr. 1998, II Reports at 87, 93; R. Morrison, supra n. 56 ; C. Smart, supra n. 56.

58  Comm. No. 569/1993 (P. Matthews v. Trinidad and Tobago), Views of 31 Mar. 1998, II Reports, 30, 34.

59  T. Jones v. Jamaica, supra n. 57. See also Comm. 623-624-626-627/1995 (V.P. Domukovsky, Z. Tsiklauri, P. Gelbakhiani and I. Dokvadze v. Georgia), Views of 6 Apr. 1998, II Reports at 95, 112; Comm. No. 676/1996 (A.S. Yasseen and N. Thomas v. Guyana), Views of 30 Mar. 1998, II Reports at 151, 162; Comm. No. 577/1994 (R. Espinoza de Polay v. Peru), Views of 6 Nov. 1997, II Reports at 36, 43. In the Peruvian case, the Committee found that the victim had been sentenced on the basis of a trial that failed to provide the basic guarantees of a fair trial. It considered that he should be released unless Peruvian law provided the possibility of a new trial that conformed to the requirements of the Covenant. In its suggested remedy, the Committee’s decision is similar to that of the Inter-American Court of Human Rights in the case of Inter-American Court of Human Rights, Loayza Tamayo v. Peru (Merits) (1997) Series C No. 34.

60  Comm. No. 609/1995 (Williams v. Jamaica), Views of 4 Nov. 1997, II Reports, 63, 68.

61  Comm. No. 704/1996 (S. Shaw v. Jamaica), Views of 2 Apr. 1998, II Reports at 164, 171; Comm. No. 705/1996 (D. Taylor v. Jamaica), Views of 2 Apr. 1998, II Reports, 174, 180; Comm. No. 732/1997 (B. Whyte v. Jamaica), Views of 27 July 1998, II Reports, 195, 202; Comm. No. 733/1997 (A. Perkins v. Jamaica), Views of 19 Mar. 1998, II Reports, 205, 211.

62  Comm. No. 749/1997 (D. McTaggart v. Jamaica), Views of 31 Mar. 1998, II Reports, 221, 228.

63  Cases 1209/2003, 1231/2003 and 1241/2004 (Sarifova et al. v. Tajikistan), A/63/40, supra n. 41.

64  Case 1306/2004 (Haraldsson and Sveinsson v. Iceland); Cases 1448/2006 (Kohoutek), 1463/2006 (Gratzinger), 1533/2006 (Ondracka), 1484/2006 (Lnenicka), 1485/2006 (Vlcek), 1488/2006 (Susser) and 1497/2006 (Preiss), all against the Czech Republic, II Reports, supra n. 54.

65  Case no. 1310/2004 (Babkin v. Russian Federation), II Reports.

66  Fabian Salvioli, Rapporteur, ‘The Specification of Measures of Redress within the scope of individual communications considered by the Human Rights Committee, CCPR/C/109/R.3 (2013)(unpublished).

67  The Committee’s jurisprudence reveals numerous cases where it has been stated that changes in national law are necessary. The Committee has recommended that a State party ‘ensure that the right to life is duly protected by amending the law’; ‘adjust its laws in order to give effect to the right set forth in article 14 (5) of the Covenant’; ‘adjust its laws in order to give effect to the rights set forth in article 9 (4) of the Covenant’; ‘remedy the violation of article 19 of the Covenant by an appropriate amendment to the law’; ‘make changes to the law’ in order to restore a person’s right to vote and ‘make such changes to the law … as are necessary to avoid similar violations in the future’.

68  CAT/C/SSVII/Concl., 23 Nov. 2001 (Zambia); CAT/C/XXVII/Concl. 2, 22 Nov. 2001 (Indonesia).

69  Comms. 1/1988, 2/1988 and 3/1988, decision 23 Dec. 1989, U.N. Report of the Committee against Torture, GAOR 45th Session 1990, 111–12.

70  In contrast, the Human Rights Committee generally does not refer to the provision of training to law enforcement officers or the judiciary as a non-pecuniary guarantee of non-repetition. In L.M.R. v. Argentina, for example, the Committee called for compensation and the prevention of similar violations in the future, even though it was clear that medical and court personnel had not been sufficiently trained about which abortions are legally permitted in that country.

71  Comm. No. 4/1991 (L.K. v. The Netherlands), Decision of 16 Mar. 1993, UN Doc. CERD/C/ 42/D/4/1993.

72  See, Fergus MacKay (ed.) Indigenous Peoples and United Nations Human Rights Bodies: A Compilation of UN Treaty Body Jurisprudence, The Recommendations of The Human Rights Council and Its Special Procedures, and the Advice of the Expert Mechanism on the Rights of Indigenous Peoples (2011–2012), available at http://www.forestpeoples.org/sites/fpp/files/publication/2013/01/cos-2011-12.pdf.

73  Bolivia (Plurinational State of), CERD/C/BOL/CO/17-20, 8 April 2011, paras. 12–17.

74  Rwanda, CERD/C/RWA/CO/13-17, 19 April 2011, para. 17.

75  Ibid.

76  Ibid, para. 16.

77  Decision 104 EX/3.3 of the Executive Board of UNESCO, reprinted at http://www.unesco.org/general/eng/legal/hrights/text.htm. See Stephen Marks, ‘The Complaint Procedure of the United Nations Educational, Scientific and Cultural Organization, in Hurst Hannum (ed.) Guide to International Human Rights Practice (4th edn, 2004), 107.

78  UNESCO, Information Document, 194 EX/CR/2, 20 February 2014.

79  ILO Constitution, Art. 33.

80  Commission of Inquiry to Examine the Observance by Romania of the Discrimination (Employment and Occupation) Convention 1958 (No. 111), Report of the Commission of Inquiry, 74 ILO OFF.BULL. Series B (1991), supp. 3.

81  Ibid, paras. 471–506.

82  The original Convention made individual petition an optional proceeding for the states parties, but with the entry into force of Protocol 11, individual petition pursuant to Article 34 is a matter of right and no longer optional. Interstate complaints may be filed under ECHR Article 33.

83  The Commission was created out of fears that a Court alone would be inundated with frivolous complaints and exploited for political ends. States were unwilling to allow individuals immediate and direct access to an international court.

84  On remedies in the European system, see J.L. Sharpe, ‘Article 50’, in L.-E. Pettiti, E. Decaux, and P.-H. Imbert (eds.), La Convention Europeene des Droits de L’Homme: Commentaire Article par Article (Paris, 1995), 809–42; Alastair Mobray, ‘The European Court of Human Rights’ Approach to Just Satisfaction’ [1997] Public Law 647.

85  For consistency, Art. 41 is used throughout the book, even for cases decided under the former procedure when the provision was Art. 50 of the Convention.

86  S. Thomsen, ‘Restitution’, in R. Bernhardt (ed.), 10 Encyclopedia of Public International Law (Amsterdam, 1987), 378.

87  See Council of Europe, Report of the Control System of the European Convention on Human Rights, H (92) 14 (Dec. 1992), 4.

88  Council of Europe, Collected Edition of the ‘Travaux Preparatoires’ of the European Convention on Human Rights (1975), i, 301–3 [hereinafter I Trauvaux Preparatoires].

89  See e.g. the remarks of Churchill during the first session: ‘we hope that a European Court might be set up, before which cases of the violation of these rights in our own body of twelve nations might be brought to the judgment of the civilized world. Such a Court, of course, would have no sanctions and would depend for the enforcement of their judgment on the individual decisions of the States now banded together in this Council of Europe’: Council of Europe, I Travaux Preparatoires, supra n. 88, 34. See also I Trauvaux Preparatoires, 156, 213, 217–35 and II Travaux Preparatoires, 275–83.

90  The proposal stated: ‘Art. 24. The verdict of the Court shall order the State concerned: (1) to annul, suspend or amend the incriminating decision; (2) to make reparation for damage caused; (3) to require the appropriate penal, administrative or civil sanctions to be applied to the person or persons responsible’: I Travaux Preparatoires, supra n. 88, 212.

91  Ibid 217–35.

92  III Travaux Preparatoires, supra n. 88, 36. M. Perassi proposed the current text of Art. 50: II Travaux Preparatoires, 231; IV Travaux Preparatoires, 75. An earlier version perhaps more clearly called for just satisfaction ‘if the constitutional law of the said party only allows the consequences of th[e impugned] decision or measure to be imperfectly repaired’: III Travaux Preparatoires, 230.

93  I Travaux Preparatoires, supra n. 88, 204.

94  Doc. CM/WP I (50) I; A 847 of 24 Feb. 1950, III Travaux Preparatoires, supra n. 88, 246–7.

95  Ibid 276; IV Travaux Preparatoires, 44.

96  IV Travaux Preparatoires, 10.

97  Ibid, 64.

98  General Act of Arbitration (Pacific Settlement of International Disputes) (Geneva, 26 September 1928), UNTS No. 2123.

99  It should be recalled that former Art. 25 allowing individual communications was optional with states parties to the European Convention while inter-state jurisdiction was compulsory. The entry into force of Protocol 11 eliminated the optional acceptance of the right of individual petition.

100  European Court of Human Rights, De Wilde, Ooms and Versyp cases (Vagrancy cases) (Article 50) (1972) Series A 14.

101  European Court of Human Rights, Assanidze v. Georgia, (2004), Reports 2004-II.

102  European Court of Human Rights, De Wilde, Ooms and Verspy cases (Vagrancy cases) (Article 50), supra n. 100.

103  European Court of Human Rights, Lawless v. Ireland (Merits) (1961) Series A (1979–80) 1 EHRR 15.

104  Belgium revised its law to relax the restrictions applicable to de Becker because of his collaboration with the enemy during the Second World War: European Court of Human Rights, De Becker v. Belgium (1962) Series A no. 4.

105  European Court of Human Rights, Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ (1968) Series A no. 6.

106  European Court of Human Rights, Wemhoff v. Germany (1968) Series A no. 7.

107  Neumeister v. Austria (Merits) (1968) Series A no. 8; Neumeister v. Austria (1974) Series A no. 17 (Art. 50).

108  European Court of Human Rights, Ringeisen v. Austria (1971) Series A no. 13.

109  European Court of Human Rights, Lawless v. Ireland (Preliminary Objections) (1960) Series A no. 1, para. 20.

110  Rosalyn Higgins justifiably criticized this practice: ‘[t]he phrase “the decision of the Court shall if necessary afford just satisfaction to the party” does not refer to the Court decision (judgment) as to whether there has been a breach of the Convention. In other words, the intention is not that a party has to rest content, in the last analysis, with the judgment as his satisfaction. In spite of the unclear terminology, the intention is exactly the opposite—that the Court shall itself be able to assist by providing, if necessary, for ‘just satisfaction’: Rosalyn Higgins, ‘Damages for Violation of One’s Human Rights’, in Nicolas A. Sims (ed.), Explorations in Ethics and International Relations (London, 1981), 45, 47. Members of the European Court have also criticized this practice: see the dissents in e.g. Aquilina v. Malta (2000) EHRR 185, 207; Nikolova v. Bulgaria (2001) 30 EHRR 878 and Kingsley v. UK (2002) 33 EHRR 13.

111  Vagrancy Cases, supra n. 100.

112  Where applicants alleged violations of the fair trial provisions of Article 5, states sometimes argued that Article 5(5) provides lex specialis requiring the Court to consider the possibility of domestic remedies. In the Court’s view, however, the Article 5(5) right of compensation for wrongful detention corresponds to a substantive duty imposed on states parties, while Article 41 is a jurisdictional norm applicable to the Court. See European Court of Human Rights Barbera, Messegue, and Jabardo v. Spain, (1994) Series A no. 285C, para. 17 (Art. 50).

113  Ibid, para. 21.

114  European Court of Human Rights, Guzzardi v. Italy (1980) Series A no. 39, para. 114.

115  See European Court of Human Rights, Delcourt v. Belgium (1970) Series A no. 11, para. 114; Handyside v. United Kingdom (1976) Series A no. 24, para. 9; The Holy Synod of the Bulgarian Orthodox Church (Metropolitan Inokentiy) and Others v. Bulgaria, Application Nos. 412/03 & 35677/04, Judgment [Just Satisfaction] of 16 September 2010, para. 23 (‘[t]he Court enjoys a certain discretion in the exercise of that power, as the adjective ‘just’ and the phrase ‘if necessary’ attest’).

116  European Court of Human Rights, Scozzari and Giunta v. Italy, Application Nos. 39221/98 & 41963/98, Judgment of 13 July 2000, para. 250 (emphasis by the author). See also Savriddin Dzhurayev v. Russia, Application No. 71386/10, Judgment of 25 April 2013, para. 252: ‘Article 41 … is only designed to make reparation for such consequences of a violation that cannot otherwise be remedied’.

117  European Court of Human Rights, Cruz Varas and others v. Sweden (1991) Series A no. 201, para. 94.

118  Sunday Times v. United Kingdom (1979) Series A no. 30.

119  See European Court of Human Rights, Matznetter v. Austria (1969) Series A no. 10; Engel and others v. The Netherlands (1976) Series A no. 22; National Union of Belgian Police v. Belgium (1975) Series A no. 19; Johnston and others v. Ireland [1986] ECHR 17, 9697/82, [1986] 9 EHRR 203.

120  Recent examples of this include European Court of Human Rights, Kurić and Others v. Slovenia, (2012), para. 401; European Court of Human Rights, Oleksandr Volkov v. Ukraine, (2013).

121  See Campbell and Cosans v. United Kingdom (1982) Series A no. 48, para. 16; McGoff v. Sweden (1984) Series A no. 83, para. 31; Dudgeon v. United Kingdom (1981) Series A no. 45, para. 15; Gillow v. United Kingdom (1986) Series A no. 109, para. 9.

122  European Court of Human Rights, Mehemi v. France, (1997) Reports 1997-VI, p. 1959 (holding that the judgment of violation constituted just satisfaction with regard to the non-pecuniary damage and that the Court did not have jurisdiction to order the respondent state to permit the applicant to return to French territory and issue him a residence permit).

123  European Court of Human Rights, Papamichalopoulos and others v. Greece (1995) Series A no. 330B (Art. 50), para. 34.

124  European Court of Human Rights, Analysis of Statistics 2014 (2015), 8. Italy, Russia and the Ukraine account for more than 48% of the current cases, with Turkey adding another 13.6%: ibid.

125  European Court of Human Rights, ‘Foreword’, Annual Report 2014.

126  See e.g. Bankovic et al. v. Belgium et al. (Admissibility), Decision of 12 Dec. 2001.

127  European Court of Human Rights, Ilascu and others v. Moldova and Russia, [GC] judgment of 7 Aug. 2004, available at http://www.echr.coe.int.

128  European Court of Human Rights, Broniowski v. Poland, (2004) judgment of 22 June 2004, available at http://www.echr.coe.int. See also Broniowski v. Poland (friendly settlement) [GC], (2005) Reports IX.

129  Committee of Ministers, Res. of 12 May 2004, DH Res. (2004) 3.

130  Ibid, para. 1.

131  See infra Chapters 10, 12.

132  Papamichalopoulos and others v. Greece supra n. 123.

133  Ibid.

134  Scozzari and Giunta v. Italy (2002) 35 EHRR 12.

135  Joshua L. Jackson, ‘Broniowski v. Poland: A Recipe for Increased Legitimacy of the European Court of Human Rights as a Supranational Constitutional Court’, (2006) 39 Conn. L. Rev. 759.

136  European Court of Human Rights, Luric and Others v. Slovenia, (2012) [GC].

137  Ibid, para. 259.

138  Ibid, para. 268.

139  Despite the restrictive approach to compensation, the sheer number of cases means the total awards of just satisfaction are significant. The amounts were EUR 119,558,467 in 2012; and 71,284,302 in 2013. Against Turkey the amounts were: 23,424,794 in 2012; and 8,232,823 in 2013.

140  Citing Scozzari and Giunta v. Italy, para. 249, ECtHR 2000-VIII; Sejdovic, § 119; and Aleksanyan v. Russia, (2008) § 238.

141  European Court of Human Rights, L. v. Lithuania, (2007) Application No. 27527, para. 74.

142  Maestri v. Italy, (2004) ECtHR 76; and Assanidze v. Georgia, (2004) Application No. 71503/03.

143  European Court of Human Rights, Manole and Others v. Moldova, (2009). Application No. 13936/02 (legislative reform to comply with art. 10); Lukenda v. Slovenia, (2005) Application No. 23032/0 (legislative amendments on legal remedies ‘characteristics [of which] are to be found in the Court’s case-law cited in the judgment’ at para. 98). See also Volkov v. Ukraine, (2013) Application No. 21722/11; Aslakhanova and Others v. Russia, (2012), para. 238; Dimitrov and Hamanov v. Bulgaria, (2011) Application Nos. 48059/06, 2708/09; Gulmez v. Turkey, (2008) Application No. 16330/02.

144  European Court of Human Rights, Urpur and Others v. Turkey (2009). See also Auad v. Bulgaria, (2011) Application No. 46390/10 (five specific recommendations to amend the Bulgarian Aliens Act).

145  ‘The original purpose of the Convention was not primarily to offer a remedy for particular individuals who had suffered violations of the Convention but to provide a collective inter-state guarantee that would benefit individuals generally by requiring the national law of the contracting parties to be kept within certain bounds. An Article 25 application was envisaged as a mechanism for bringing to light a breach of an obligation owed by one state to others, not to provide a remedy for an individual victim’: D. Harris, M. O’Boyle, and C. Warbrick, Law of the European Convention on Human Rights (2nd edn, Oxford), 33.

146  See e.g. Vgt Verein gegen Tierfabriken v. Switzerland (2002) 34 EHRR 4, para. 154: ‘Various possibilities are conceivable as regards the organization of broadcasting television commercials; the Swiss authorities have entrusted the responsibility in respect of national programmes to one sole private company. It is not the Court’s task to indicate which means a State should utilize in order to perform its obligations under the Convention’.

147  European Court of Human Rights, Vermeire v. Belgium (1991) Series A no. 214C. Some national courts can enforce judgments of the European Court (e.g. Malta, Spain) and others cannot (e.g. Germany). See ‘The European Convention on Human Rights: Institution of Relevant Proceedings at the National Level to Facilitate Compliance with Strasbourg Decisions’, Council of Europe Committee of Experts Study at (1992) 13 Hum.Rts.L.J. 71.

148  Z. and others v. United Kingdom (2002) 34 EHRR 3.

149  See e.g. Incal v. Turkey, [GC] decision of 9 June 1998. By a 12–8 vote, the Court decided that Turkey had violated the freedom of expression and right to a fair trial of the applicant. The consequence of the conviction included a substantial loss of civil rights. The applicant could not found an association or trade union, or become a member of trade union executive committee. He was also barred from founding or joining a political party and could not stand for election and was debarred from entering the civil service. The applicant sought a restoration of his civil rights. The Court said it had no jurisdiction to order such measures.

150  Luzius Wildhaber, Pres. of the Eur. Ct. of Hum. Rts., Speech at the Solemn Hearing of the European Court of Human Rights on the Occasion of the Opening of the Judicial Year, 21 Jan. 2005, at 4, available at http://www.echr.coe.int/ECHR/EN/Header/Press/Other+Information/Presidents+ speeches/. Contrast the Court’s judgment in Karner v. Austria (2004) 38 EHRR 24 (stating that ‘the primary purpose of the Convention system is to provide individual relief … ’ para. 26).

151  Elizabeth Lambert-Abdelgawad, ‘Is There a Need to Advance the Jurisprudence of the ECtHR with Regard to the Award of Damages?’, paper delivered at the Conference Judgments of the European Court of Human Rights—Effects and Implementation, 20–21 September 2013, Georg-August-University Göttingen, Germany.

152  European Court of Human Rights, Salah v. The Netherlands, (2006), Application no. 1948/04, para. 50.

153  Lambert, supra n. 151.

154  See, e.g. Yakisan v. Turkey, (2007) Application No. 11339/03.

155  European Court of Human Rights, Youth Initiative for Human Rights v. Serbia, (2013) Application No. 48135/06, concerned an NGO that had sought information and won a domestic judgment of disclosure that was not enforced. The European Court decided: ‘The respondent State must ensure, within three months of the European court’s judgment becoming final, in accordance with Article 44 sec. 2 of the Convention, that the intelligence agency of Serbia provide the applicant with the information requested’.

156  The specific requirements for compliance are defined in the Committee of Ministers’ Rules of Procedure for the supervision of the execution of judgments and of the terms of friendly settlements. Rule 6.2 explains that the measures to be taken are of two types. First, individual measures concern the applicants and relate to the obligation to erase the consequences suffered by them because of the violations established so as to achieve, as far as possible, restitutio in integrum. Second, general measures relate to the obligation to prevent violations similar to that or those found or putting an end to continuing violations. In certain circumstances they may also concern the setting up of remedies to deal with violations already committed.

157  European Court of Human Rights, Piersack v. Belgium, (1984) Application No. 8692/79; De Cubber v. Belgium, (Just Satisfaction) (1987) Application No. 9186/80.

158  In Oleksandr Volkov v. Ukraine, supra n. 120, para. 211, the Court considers that ‘the question of compensation for pecuniary damage is not ready for decision’ while, at the same time, awarding the applicant the sum of 6,000 euro for non-pecuniary damage. See also Kurić v. Slovenia, supra n. 120, para. 10.

159  European Court of Human Rights, Lo Tufo v. Italy, (2005) Application No. 64663/01, para. 69.

160  European Court of Human Rights, Ernst and Others v. Belgium, (2003) Application No. 33400/96; Iatridis v. Greece, (1999) and Iatridis v. Greece, (2000) (Just Satisfaction); Baybasin v. The Netherlands, (2006) Application No. 13600/02 and Baybasin v. The Netherlands, (2007) (Just Satisfaction). Contra: Mikheyev v. Russia, (2006) Application No. 77617/01.

161  Dacia S.R.L. v. Moldova (Just Satisfaction) (2009) 48 EHRR SE17, para. 45.

162  The payment of just satisfaction is usually specified in considerable detail in the Court’s judgments but the mode of payment may nevertheless raise complex issues, regarding such matters as the validity of powers of attorney, the acceptability of the exchange rate used, the incidence of important devaluations of the currency of payment, the acceptability of seizure and taxation of the sums awarded etc. The practice of the Committee of Ministers is detailed in a memorandum prepared by the Department for the execution of judgments of the Court CM/Inf/DH(2008)7(final).

163  See Committee of Ministers Recommendations CM/Rec. (2004)6 and CM/Rec. (2010)3 on domestic remedies.

164  The Committee of Ministers issued a specific recommendation to member states in 2000 inviting them ‘to ensure that there exist at national level adequate possibilities to achieve, as far as possible, “restitutio in integrum” and, in particular, adequate possibilities of re-examination of the case, including reopening of proceedings, in instances where the Court has found a violation of the Convention’. Recommendation No. R(2000)2 on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights and Explanatory memorandum.

165  European Court of Human Rights, Annual Report 2014, 82.

166  For a general review of the evolution of the European Social Charter, see David Harris, ‘The Council of Europe (II): The European Social Charter’, in R. Hanski and M. Suksi (eds.), An Introduction to the International Protection of Human Rights (Turku, 1997), 243.

167  See e.g. Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, [1980] 3 CMLR 42, (1981) 3, EHRR 140; Case 4/73, Nold v. Commission (Nold II) [1974] ECR 491 at 507, para. 13. See, generally, Nanette A. Neuwal and Allan Rosas (eds.), The European Union and Human Rights (1995); M.H. Mendelson, ‘The European Court of Justice and Human Rights’ (1981) 1 Y.B. Eur. Law 125.

168  This provision confirms the jurisprudence of the ECJ, which classified fundamental rights as ‘general principles of Community law’. See Case 29/69, Stauder v. Ulm [1969] ECR 419; Case 11/70, Internationale Handelsgesellschaft [1970] ECR 1125; Case 4/73, Nold v. Commission, supra n. 167.

169  See, generally, T. Heukels and A. McDonnel (eds.), The Action for Damages in Community Law (The Hague, 1997).

170  Case 6/60, Humblet v. Belgium [1960] ECR 559.

171  C-6/90 and C-9/90, Francovich and Bonifaci v. Italian Republic [1991] 1 ECR I-5357.

172  Ibid, para. 33.

173  Case 14/83, Von Colson and Kamann v. Lord Nordrhein-Westfalen [1984] ECR 1891, 1909, para. 28.

174  Case C-177/88, [1990] ECR I-3941.

175  Case C-271/91, Marshall II [1993] ECR I-4400, [1993] 3 CMLR 293.

176  Case 152/84, Marshall v. Southampton and Southwest Hampshire Area Health Authority [1986] ECR 723, [1986] 1 CMLR 688.

177  Case 222/86, UNECTEF v. Heylans and others [1987] ECR 4097, citing Case 222/84 Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, 1663.

178  Case 222/86, UNECTEF v. Heylans and others [1987] ECR 4097, para. 14.

179  Case C-97/91, Borelli [1992] ECR I-6313, judgment of 3 December 1992.

180  Joined Cases T-116/01 and T-18/01, P&O European Ferries (Vizcaya) v. Commission, [2003] ECR ___ (Court of First Instance, 5 Aug. 2003). Competitors have standing to challenge unlawful aid and require reinstatement of the prior situation because to conclude otherwise would render ineffective Community judicial review of the legality of measures adopted by the Community institutions.

181  Joined Cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01, Philip Morris International Inc. and Others v. Commission [2003] ECR __ (Court of First Instance, 15 Jan. 2003) (Inadmissibility of applications to annul two decisions by the Commission to commence legal proceedings against applicants in a U.S. federal court because the action does not alter the applicants’ legal position).

182  Ibid, para. 122; P&O Ferries, supra n. 180, para. 207. The Charter of Fundamental Rights, originally adopted as a declaration, was incorporated and given treaty status by the Treaty of Lisbon.

183  Philip Morris, supra n. 181, para. 122.

184  See Case 294/83, ‘Les Verts’ v. European Parliament, [1988] ECR 1339, judgment of 23 April 1986.

185  Airey v. UK, 32 ECtHR 11.

186  Art. 230(4) EC provides that ‘[a]ny natural or legal person may … institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former’.

187  Case 25/62, Plaumann & Co. v. Commission, [1963] ECR 95, 107; Case C-321/95, Greenpeace Council and Others v. Commission [1998] ECR I-1651, para. 7.

188  See Case C-50/00, Union de Penquenos Agricultores (UPA), [2002] 3 CMLR 1.

189  See Opinion of Advocate General Geelhoed of 10 Sept. 2002 in The Queen v. Secretary of State for Health, ex parte British American Tobacco (Investments) Ltd. And Imperial Tobacco Ltd, [2002] ECR I-11453, para. 51; Opinion of Advocate General Jacobs in Case-50/00, UPA.

190  Case T-177/01, Jego-Quere et Cie SA v. Commission, [2002] ECR II-2365, [2002] 2 CMLR 44.

191  Philip Morris v. Commission, supra n. 181.

192  Ibid, para. 124.

193  Joined Cases T-172/98, T-175/98, T-176/98 and T-177/98, Salamander and Others v. Parliament and Council, [2000] ECR II-2487, para. 54.

194  Case C-316/93, Vaneetveld [1994] ECR I-763.

195  Case C-491/01, R. v. Secretary of State for Health ex parte British American Tobacco (Investments) Ltd. And Imperial Tobacco Ltd, [2002] ECR I-11453; [2003] 1 CMLR 14. See also, Opinion of A.G. Geelhoed, supra n. 189 at para. 47, citing Art. 47 of the Charter of Fundamental Rights.

196  Jego-Quere, supra n. 190.

197  Ibid, at para. 51.

198  UPA, supra n. 188 (finding the requirement of ‘individual concern’ for standing to be required by the EC Treaty).

199  Case 6/60, Humblet v. Belgium, [1960] ECR 559.

200  Brasserie du Pecheur [1996] ECR I-1029.

201  Ibid, paras. 82–3.

202  American Convention on Human Rights, supra n.1, Art. 44.

203  The OAS created the Inter-American Commission in 1959, giving it a mandate to further respect for human rights among the OAS member states, hence its broad jurisdiction.

204  Carabantes Galleguillos Case, Inter-Am. Comm’n H.R., Report No. 33/02, para. 13, 14. The state agreed to ‘symbolic measures to restore the good name and dignity of the victims’.

205  Contreras San Martin Case, Inter-Am.Comm’n H.R., Report No. 32/02, at para. 17; Carrillo Saldana Case, at para. 13.

206  Livia Robles Case, Report 75/02, case 12.035 (Peru) at para. 13, Inter-Am.Comm’n H.R., Annual Report, OAS Doc. OEA/Ser.L/V/II/117 doc. 1, rev. 1 (2003). See also Case 11.307 (Merciadri de Morini v. Argentina) (Friendly Settlement), 2001 Inter-Am.Comm’n H.R., Annual Report, OAS Doc. OEA/Ser.L/V/II.114, doc. 5 rev. at para. 14. In Merciadri de Morini, the state decreed amendments to national electoral legislation that reflected the state’s decision in the petition before the Commission.

207  Contreras San Martin Case, supra n. 205, paras. 14, 22–3.

208  Carabantes Galleguillos Case, supra n. 204 at paras. 12, 14; Contreras San Martin Case, supra n. 205 at para. 14.

209  Case 11.542 (Vega Jimenez v. Ecuador) (2001) Inter-Am.Comm’n H.R. 7, OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.441 (Munoz Arcos et al. v. Ecuador) (2001) Inter-Am.Comm’n H.R. 7, OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.443 (Ayora Rodriguez v. Ecuador) (2001) Inter-Am.Comm’n H.R. 7, OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.450 (Almeida Calispa v. Ecuador) (2001) Inter-Am.Comm’n H.R. 8, OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.574 (Manzano v. Ecuador) (2001) Inter-Am.Comm’n H.R. 8, OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.632 (Segura Hurtado v. Ecuador) (2001) Inter-Am.Comm’n H.R. 9, OEA/ser.L/V/II.114, doc. 5 rev.; Case 12.007 (Andrade Benitez v. Ecuador) (2001) Inter-Am.Comm’n H.R. 9, OEA/ser.L/V/II.114, doc. 5 rev.; Case 11.779 (Reascos v. Ecuador) (2001) Inter-Am.Comm’n H.R. 10, OEA/ser.L/V/II.111, doc. 20 rev.

210  Sucunu Panjoj Case, para. 15.

211  Vega Jimenez Case, supra n. 209, para. 7.

212  Case 11.307 (Merciadri de Morini v. Argentina (Friendly Settlement)) (2001) Inter-Am.Comm’n H.R. Annual Report, Report No. 103/01, OEA/ser.L/V/II.114, doc. 5 rev., para. 114; Vega Jimenez Case, supra n. 209, para. 7; Munoz Arcos et al. Case, supra n. 209, para. 7; Ayora Rodriguez Case, supra n. 209, para. 7; Almeida Calispa Case, supra n. 209, para. 8; Manzano Case, supra n. 209, para. 8; Segura Hurtado Case, supra n. 209, para. 9; Andrade Benitez Case, supra n. 209, para. 9; Reascos Case, supra n. 209, para. 10.

213  Vega Jimenez Case, supra n. 209, para. 7.

214  See e.g. Report No. 4/98, Case 9853, Ceferino ul Musicue and Leonel Coicue v. Colombia, Inter-Am.Comm’n H.R., Annual Report 1998, OAS/Ser.L/V/II.91 doc. 7, rev. 3 (1996), paras. 68–70.

215  Report No. 26/97, Case 11.142, Colombia, Inter-Am.Comm’n H.R., Annual Report 1997, 478, OEA/Ser.L/V/II.98, doc. 7 rev. (1998).

216  Ibid.

217  Ibid. See also Report 3/98, Case 11.221 Tarcisio Medina Charry v. Colombia, Annual Report supra n. 215, 482, 508.

218  Ibid, 509.

219  Report 26/97, supra n. 215.

220  Inter-American Court of Human Rights, Advisory Opinion OC-14/94 (9 Dec. 1994), 1994 II Inter-Am. Y.B.H.R. 1510, para. 39.

221  The principles were adopted by the United Nations Economic and Social Council in Resolution 1989/65, in order to determine whether or not a state has fulfilled its obligation to investigate immediately, exhaustively, and impartially the summary executions of persons under its exclusive control. See Report No. 10/95, Case 10.580, Ecuador, Inter-Am.Comm’n H.R., Annual Report 1995, OAS/Ser.L/V/II.91, doc. 7, rev. 3 (1996), paras. 32–4; Report 55/97, Case 11.137, Juan Carlos Abella v. Argentina, Inter-Am.Comm’n H.R., Annual Report 1998, OEA/Ser.L/V/II.98, doc. 7 rev. (1998), para. 413; Report No. 48/97, Case 11.411, Mexico, Inter-Am.Comm’n H.R., Annual Report 1998 at 637, 659.

222  The United Nations principles have been complemented by a Manual on the Effective Prevention and Investigation of Extralegal, Arbitrary or Summary Executions, UN Doc. ST/CSDHA/12.

223  The standards require that:

  1. (A)  the area surrounding the corpse must be secured. Access to the area must be permitted only to investigators and their staff

  2. (B)  colour photographs of the victim must be taken, since, in comparison with black and white photos, colour photographs may reveal in greater detail the nature and circumstances of the death of the victim

  3. (C)  both the interior and exterior of the place must be photographed, as well as any physical evidence

  4. (D)  a record must be made of the position of the corpse and of the condition of the clothing

  5. (E)  a note should be taken of the following factors which serve to determine the time of death

    1. (i)  temperature of the body (warm, cool, cold)

    2. (ii)  position of corpse and degree of discolouration

    3. (iii)  rigidity of corpse, and

    4. (iv)  state of decomposition

  6. (J)  All evidence of the existence of weapons, such as firearms, projectiles, bullets and shells or cartridges, must be collected and preserved. Where appropriate, efforts must be made to find the residue from shots fired and/or to detect metal fragments.

224  In the Abella case, supra n. 221, 373–4, the Commission found that the minimum requirements for conducting investigations were expressly provided for in the Argentinean Code of Criminal Procedure and were not followed in the case.

225  Case 11.771 (Catalan Lincoleo v. Chile) (2001) Inter-Am.Comm’n H.R. 96, OEA/ser.L/V/II.111, doc. 20 rev.; Case 10.247 (Extrajudicial Executions and Forced Disappearances) (2001) Inter-Am.Comm’n H.R. OEA/Ser./L/V/II.114 doc. 5 rev.; Case 10.488 (Ellacuria, S.J., et al. v. El Salvador) (1999) Inter-Am.Comm’n H.R. 241, OEA/ser.L/V/II.106, doc. 6 rev.; Inter-Am.Comm’n H.R., Report 29/92, Cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374, 10.375, 1992–3, Annual Report of the Inter-Am.Comm’n H.R., OEA/Ser.L/II.83, doc. 14, corr. 1, 12 Mar. 1993, pp. 154–165; Inter-Am.Comm’n H.R., Report 28/92, Cases 10.147, 10.181, 10.240, 10.262, 10.309 and 10.311, Argentina, 1992–3 Annual Report, Inter-Am.Comm’n H.R., 1992–3, OEA/Ser.L/II.83, doc. 14, corr.1, 12 Mar. 1993, pp. 41–51.

226  Case 11.286 (Aluisio Cavalcanti, et al. v. Brazil) (2001) Inter-Am.Comm’n H.R. 168, OEA/ser.L/V/II.111, doc. 20 rev.

227  Matter of Viviana Gallardo, Decision of 13 Nov. 1981, Inter-Am.Ct.H.R. No. G 101/81, para. 22, reprinted in (1981) 20 ILM 1424, 1428. See D. Shelton, ‘The Participation of Nongovernmental Organizations in International Judicial Proceedings’ (1994) 88 Am. J. Int’l L. 622, 625.

228  American Convention on Human Rights, supra n. 1, Art. 63(1).

229  Draft Art. 52(1) contained the language of the last part of present Art. 63(1), allowing the Court to order that fair compensation be paid: T. Buergenthal and R. Norris, Human Rights: The Inter-American System (looseleaf publication from 1982), ii, bk. 13, p. 20. For a discussion of the travaux préparatoires of the American Convention see, e.g., Inter-American Court of Human Rights, Baena-Ricardo v. Panama (Competence), (2003) Series C No. 104, para. 89; Jo M. Pasqualucci, The Practice and Procedure of the Inter-American Court of Human Rights (Cambridge, 2003), 233–235.

230  OAS, Inter-American Council of Jurists, Fourth Meeting, Santiago, Chile, Aug.–Sept. 1959, OAS Doc. 128, Rev. (1959), reprinted in Buergenthal and Norris, supra n. 229, iii, bk. 16(1) at 26, 57, 86.

231  Ibid 132.

232  Inter-American Court of Human Rights, Case of Velásquez Rodríguez v. Honduras (Reparations and Costs) Judgment of 21 July 1989. Series C No. 7, para. 25, and Case of Suárez Peralta v. Ecuador, Judgment of 21 May 2013, Series C No. 261, para. 161.

233  Case of Velásquez Rodríguez v. Honduras (Reparations and Costs), supra n. 232, para. 25, and Case of Suárez Peralta v. Ecuador, supra n. 232, para. 161.

234  Case of Velásquez Rodríguez v. Honduras (Reparations and Costs) supra n. 232, para. 26, and Case Mendoza et al. v. Argentina, Judgment of 14 May 2013, Series C No. 260, para. 307.

235  Inter-American Court of Human Rights, Supreme Court of Justice (Quintana Coello et al.) v. Ecuador (2013) Series C No. 266, citing Case of Velásquez Rodríguez v. Honduras, supra n. 232 para. 25, and Case Mendoza et al. v. Argentina, supra n. 234, para. 307.

236  Case of Ticona Estrada v. Bolivia (Merits, Reparations and Costs) Judgment of 27 November 2008. Series C No. 191, para. 110, and Case Mendoza et al. v. Argentina, supra n. 234, para. 306.

237  Ibid, para. 41.

238  The few early exceptions are Inter American Court of Human Rights, Gangaram Panday v. Suriname (1994) Series C No. 16, Genie Lacayo v. Nicaragua (1997) Series C No. 30, Baena Ricardo (2001) Series C No. 72 and Last Temptation (Olmedo Bustos et al.) v. Chile (2001) Series C No. 73.

239  For the Court’s assessment of its supervisory competence, see Inter-American Court of Human Rights, Baena-Ricardo v. Panama (2003) Series C No. 104. During the supervisory process, the Court will address any issues over how the measures of redress should be implemented.

240  Suárez Rosero v. Ecuador, was the first contentious case in which the victim testified to the Court. The Court found that the government had illegally arrested the petitioner, that he had been held for an unreasonable time period, that he had been denied access to the courts, and that his rights to the presumption of innocence and to prepare a defence were violated. It additionally found that he had been subjected to cruel, inhuman and degrading treatment by reason of being held incommunicado and because of the conditions in the jail: Suarez Rosero v. Ecuador (Reparations), Judgment of 20 Jan. 1999, Series C No. 44.

241  As discussed infra in Chapter 9, the Court placed no monetary value on the claim in the Loayza case.

242  Inter-American Court of Human Rights, Loayza Tamayo v. Peru (Reparations) (1998) Series C No. 42, Separate Opinion of Judges Antonio Cancado Trindade and Y.A. Abreu Burelli, paras. 10–11.

243  For a perceptive critique of the Court’s approach to reparations, see Gerald L. Neuman, ‘Import, Export, and Regional Consent in the Inter-American Court of Human Rights’, (2008) 19 EJIL 101–123.

244  Inter-American Court of Human Rights, Goiburu (2006) Series C No. 153, 130-132; La Cantuta (2006) Series C No. 162, para. 227.

245  Inter-American Court of Human Rights, Moiwana Village (2005) Series C No. 124, 216; Carpio Nicolle (2004) Series C No. 117, para. 137; and Myrna Mack Chang (2003) Series C No. 101, para. 279.

246  Cesar (2005) Series C No. 123, (sep. Opinion of Ventura Robles, para. 19).

247  Ibid, para. 474.

248  The Last Temptation of Christ (Olmedo Bustos et al.) v. Chile, supra n. 238.

249  See Inter-American Court of Human Rights, Plan de Sánchez Massacre v. Guatemala (2004) Series C No. 105, para. 1 (29 April 2004).

250  See Inter-American Court of Human Rights, Plan de Sánchez Massacre v. Guatemala (2004) Series C No. 116, paras. 93-111 (19 Nov. 2004). The Court also granted costs for legal representation.

251  See Inter-American Court of Human Rights, Molina-Theissen v. Guatemala, (2004) Series C No. 108, para. 71; Plan de Sánchez Massacre v. Guatemala, (2004) Series C No. 105, para. 9 (separate opinion of Judge García-Ramírez).

252  See Brent T. White, Say You’re Sorry: Court-Ordered Apologies as a Civil Rights Remedy’, (2006) 91 Cornell L. Rev. 1261, 1271–1272.

253  See ibid, 1273 (citing John Braithwaite, A Future Where Punishment Is Marginalized: Realistic or Utopian? (1999) 46 UCLA L. Rev. 1727, 1744).

254  See E. Yamamoto, Interracial Justice: Conflict and Reconciliation in Post-Civil Rights America 156 (NYU Press, 1999).

255  See White, supra n. 252, 1283–1284.

256  See, e.g., Inter-American Court of Human Rights, Suárez-Rosero v. Ecuador (1999) Series C No. 44. See also Pasqualucci, supra n. 229, 253–254.

257  Inter-American Court of Human Rights, Cantoral-Benavides v. Peru (2001) Series C No. 88, para. 81.

258  See Inter-American Court of Human Rights, Mack Chang v. Guatemala (2003) Series C No. 101, para. 278; Moiwana Cmty v. Suriname (2005) Series C No. 124, para. 216.

259  Inter-American Court of Human Rights, Yatama v. Nicaragua (2005) Series C No. 127, paras. 252-53. Radio broadcast of the judgment may be ordered in the relevant indigenous language throughout the region where the petitioners live. See also Serrano-Cruz Sisters v. El Salvador (2005) Series C No. para. 195.

260  See Marcie Mersky & Naomi Roht-Arriaza, ‘Guatemala’, in Katya Salazar & Thomas Antkowiak, (eds.) Victims Unsilenced: The Inter-American Human Rights System and Transitional Justice in Latin America (Washington, 2007) 7, 19–21.

261  Inter-American Court of Human Rights, Children’s Rehabilitation Institute v. Paraguay, (2006) paras. 2–4 (Compliance with Judgment), available at http://www.corteidh.or.cr/docs/supervisiones/instituto_04_07_06_%20ing.pdf.

262  On the Colombian reparations program, see further the March 2014 hearing of the IACHR, discussing the implementation of Law 906/2004.

263  Inter-American Court of Human Rights, Case of the Afrodescendant Communities displaced from the Cacarica River Basin (Operation Genesis) v. Colombia (2013) Series C No. 270, para. 470.

264  See further Chapter 15. In contrast to the Inter-American Court’s approach, see the European Court judgment in Jelic v. Croatia, 2014 Reports, holding that while allowance may be made for the difficulties which confront states emerging from conflict in creating effective and independent mechanisms to deal with numerous war-crimes cases, such difficulties cannot of themselves relieve authorities of their procedural obligations under Article 2. The Court found that the applicant should have been able to avail herself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation, for the purposes of Article 13; it awarded her 20,000 euros in non-pecuniary damages.

265  African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 Oct. 1986, OAU Doc. CAB/LEG/67/3 Rev. 5, reprinted in (1982) 21 ILM 58.

266  Art. 30.

267  The Protocol entered into force on 24 Jan. 2004.

268  The former Secretary-General of the OAU claims that ‘it was left to the Commission to affirm its role without complex or hesitation and to elaborate its jurisprudence and pronounce the law in the absence of something better’: Edem Kodjo, ‘The African Charter on Human and Peoples’ Rights’ (1990) 11 Hum.Rts L.J. 271, 289. Others have argued that the Commission lacks a mandate to address individual communications. See Rachel Murray, ‘Decisions by the African Commission on Individual Communications Under the African Charter on Human and Peoples’ Rights’ (1998) 46 Int’l & Comp.L.Q. 412, 413; Wolfgang Benedek, ‘The African Charter and Commission on Human and Peoples’ Rights: How to Make it More Effective’ (1993) Neth.Q.Hum.Rts 25, 31.

269  Art. 45(1)(b).

270  Arts. 60, 61.

271  See Communications 25/89, 47/90, 56/91, 100/93, World Organization Against Torture, Lawyers Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Temoins de Jehovah v. Zaire (Merits), adopted at the 19th Ordinary Session of the Commission, Ouagadougou, Burkina Faso, Mar. 1996, para. 39.

272  See e.g. Comm. Nos. 48/90, 50/91, 52/91 and 89/93, Amnesty International, Comite Loosli Bachelard, Lawyers Committee for Human Rights, and Association of Members of the Episcopal Conference of East Africa v. Sudan, Thirteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights 1999–2000 (calling for an end to the violations in order for the state to abide by its obligations).

273  64/92 Krischna Achutan (on behalf of Aleke Banda), 68/92 Amnesty International on behalf of Orton and Vera Chirwa 78/92 Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, 8th Annual Activity Report of the African Commission on Human and Peoples’ Rights 1994-1995, Annex VI; 25/89, 47/90, 56/91, 100/93 Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Temoins de Jehovah v. Zaire, 9th Annual Activity Report of the African Commission on Human and Peoples’ Rights 1995-1996, Annex VIII; 74/92 Commission Nationale des Droits de l’Homme et des Libertes v. Chad, 9th Annual Activity Report of the African Commission on Human and Peoples’ Rights 1995-1996, Annex VIII and 223/98 Forum of Conscience v. Sierra Leone, 14th Annual Activity Report of the African Commission on Human and Peoples’ Rights 2000-2001, Annex V.

274  In cases of serious or massive violations, the Commission sometimes merely referred such cases to the Assembly, which in turn refrained from taking action. See in this regard, 47/90 Lawyers Committee for Human Rights v. Zaire, 7th Annual Activity Report of the African Commission on Human and Peoples’ Rights 1993-1994, Annex IX; 64/92 Krischna Achutan (on behalf of Aleke Banda), 68/92 Amnesty International on behalf of Orton and Vera Chirwa 78/92 Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, 7th Annual Activity Report of the African Commission on Human and Peoples’ Rights 1993-1994, Annex IX; 25/89, 47/90, 56/91, 100/93 (joined) Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Temoins de Jehovah v. Zaire, 9th Annual Activity Report of the African Commission on Human and Peoples’ Rights 1995-1996, Annex VIII.

275  See generally Gino J. Naldi, ‘Reparations in the Practice of the African Commission on Human and Peoples’ Rights’, 14 Leiden J. Int’l L. 681–93 (2001).

276  Kirschna Achutan (on behalf of Aleke Banda) and Amnesty Int’l (on behalf of Orton and Vera Chirwa) v. Malawi Comms. Nos. 64/92, 68/92, 78/92, 3 IHRR 134, para. 12 (1996).

277  Organization Mondiale Contra La Torture and the Association Internationale des Juristes Democrates and Others v. Rwanda.

278  Alhassan Abubakar v. Ghana, Comm. No. 103/93, 6 IHRR 832 (1999).

279  Media Rights Agenda and Constitutional Rights Project v. Nigeria, (2000) AHRLR 262 (ACHPR 2000).

280  See, e.g., Constitutional Rights Project v. Nigeria, Comm. No. 60/91, 3 IHRR 132, 133 (1996); Comm. 87/93, 3 IHRR 137, 139 (1996); Comm. 153/96, 13th ann. activity rep. 1999-200. Annette Pagnoulle—‘draw all the necessary legal conclusions to reinstate the victim in his rights’. Comm. 39/90, 6 IHRR 819, 822 (1999).

281  Comm. 60/91, Constitutional Rights Project v. Nigeria (in respect of Wahab Akamu, G. Adega and others), 8th Annual Report of the ACHPR 1994–1995, ACHPR/8TH/ACT/RPT/XVII, Annex IX. See also Comm. No. 60/91, 3 IHRR 132, at 133 (1996); Comm. No. 87/93, 3 IHRR 137 at 139 (1996); Comm. No. 153/96, Thirteenth Annual Activity Report; Comm. 148/96, ibid, Comm. No. 192/93, 7 IHRR 259 (2000) and Comm. No. 39/90, (1999) 6 IHRR 819.

282  In Comm. 101/93, Civil Liberties Organization in re the Nigerian Bar Association v. Nigeria, applicants protested against the Legal Practitioners’ Decree which, inter alia, excluded recourse to the courts and made it an offence ‘to commence or maintain an action or any legal proceeding whatever relating to or connected with or arising from the exercise of any of the powers of the Body of Benchers’. The decree was given retroactive effect. The Commission stated that the decree should therefore be annulled: 8th Annual Report, ibid. See also International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation v. Nigeria, Comm. 137/94, 139/94, (1997) 18 HRLJ 35.

283  Malawi African Association, Amnesty International, Ms Sarr Diop, Union Interaftricaine des Droits de l’Homme and RADDHO, Collective des Veuves et Ayant-droit, and Association Mauritanienne des Doits de l’Homme v. Mauritania, Comm. Nos. 54/91, 61/91, 98/93, 164/97 and 210/98, Thirteenth Annual Activity Report of the African Commission on Human and Peoples’ Rights 1999–2000.

284  See also Amnesty International v. Zambia, Comm. No. 212/98 (1999), 12th Activity Report 1988-1989, Annex V, where the Commission noted that one of the complainants ‘was a prominent businessman’ and ‘[h]is deportation must have caused prejudice to his business interests’, but failed to explore compensation for losses which it accepted the complainant incurred as a result of the violation.

285  ACHPR, art. 58(2). See e.g., Commn Nationale des Droits de l’Homme et des Libertes v. Chad (2000) AHRLR 66; Free Legal Assistance Group and another v. Zaire (2000) AHRLR 74, both 1995 decisions.

286  Comm. 204/97 Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, para. 50.

287  Kenneth Good v. Botswana, Comm. 313/05 (20 July 2000), adopted at the 47th Ordinary Session of the Commission, May 2010.

288  African Institute for Human Rights and Development v. Guinea, Comm. 249/02, EX.CL/279 (IX (Dec. 2004).

289  See Comite Cultural Pour la Democratie au Benin, Hilaire Badjougoume, El Hadj Boubacar Diawara v. Benin (Merits), adopted at the 16th Ordinary Session of the Commission, Oct. 1994, para. 38.

290  Decision Regarding Communication 155/96 (Social and Economic Rights Action Center/Center for Economic and Social Rights v. Nigeria). Case No. ACHPR/COMM/A044/1 (Afr. Comm’n Hum. & Peoples’ Rts, 27 May 2002) [hereinafter Decision] available at http://www.umn.edu/humanrts/africa/comcases/allcases.html.

291  Decision, supra n. 288, para. 52.

292  Ibid, para. 53.

293  Ibid, para. 68.

294  Comm. 295/04, Noah Kazingachire, John Chitsenga, Elias Chemvura and Batanai Hadzisi (represented by Zimbabwe Human Rights NGO Forum) v. Zimbabwe, 51st Sess., AfCHPR, 18 April to 2 May 2012.

295  Ibid, para. 60

296  Ibid, para. 127, citing ICCPR General Comment 31, para. 16. The Commission also referred to the Basic Principles and Guidelines on remedies.

297  9 June 1998, OAU Doc. OAU/LEG/EXP/AFCHPRPR/PROT. (III) 1997.

298  Ibid, Art. 3.

299  Ibid, Art. 6.

300  Tanganyka Law Society et al. v. United Republic of Tanzania, App. Nos. 009/2011, 011/2011 (Afr. Ct. H.P.R. 14 June 2013)

301  Ibid, at paras. 55–56.