Right to an effective remedy



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BLAKE DAWSON WALDRON

LAWYERS



RIGHT TO AN EFFECTIVE REMEDY

ARTICLE 2(3) OF THE ICCPR

  1. Introduction

    Where the HRC establishes that a breach under the ICCPR has occurred, it will as part of its findings make recommendations as to what "effective remedy" a State party should provide, pursuant to article 2(3) of the ICCPR.



This memo considers what "effective remedies" the HRC has recommended where it has found a breach of the ICCPR to have occurred; in particular articles 7 and 10(1), and also articles 9 and 14. It also considers the extent to which Australia has fulfilled its obligations under domestic law to provide effective remedies.

  1. Executive summary

International jurisprudence of the ICCPR indicates that "effective remedies" commonly include requiring that the State party:

  • provide adequate compensation;

  • improve conditions of detention;

  • make official inquiries into the circumstances giving rise to the breach;

  • take measures to prevent similar violations in the future;

  • commute the sentence; and/or

  • ensure early or immediate release.

At domestic level, the Human Rights and Equal Opportunity Commission (HREOC) is responsible for facilitating effective remedies pursuant to article 2(3) of the ICCPR. Where an allegation of a breach has been made, it commonly recommends that the State party:

  • prevent the repetition of the act or a continuation of the practice;

  • pay compensation; and/or

  • take other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice.

Ultimately, in order for there to be an effective (domestic) remedy, there must in the first place be effective rights. Australia’s attitude to its international treaty obligations, and its failure to adequately codify these rights into domestic law, reflects the limitations of effective remedies in the domestic sphere.

    1. The right to an effective remedy

Article 2(3) of the ICCPR sets out the right to an effective remedy:

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

ICCPR General Comment 311 underpins the rights set out in article 2(3), stating that

In addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person … The Committee attaches importance to States Parties' establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law. The Committee notes that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end.

General Comment 31 goes on to suggest that an effective remedy "generally entails compensation", and may also include "restitution, rehabilitation and measures of satisfaction, such as public apologies …".2

ICCPR General Comment 293 states that article 2(3) of the Covenant:

requires a State party to the Covenant to provide remedies for any violation of the provisions of the Covenant. This clause is not mentioned in the list of non-derogable provisions in article 4, paragraph 2, but it constitutes a treaty obligation inherent in the Covenant as a whole. Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of their procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant, to provide a remedy that is effective.

The term "effective remedy" has been described as a remedy which is "accessible, affordable, timely and effective".4 It has been suggested that these criteria are probably the benchmarks by which the effectiveness of all remedies should be judged.5

The right to an effective remedy is reflected in two further principles of international law. First, article 27 of the Vienna Convention on the Law of Treaties, which states that:

a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

In other words, States should modify the domestic legal order as necessary in order to give effect to their treaty obligations. Secondly, article 8 of the Universal Declaration of Human Rights, states that:

[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.


  1. HRC jurisprudence

    1. Violations of articles 7 and 10

      1. Yasseen and Thomas v Republic of Guyana

In Abdool Saleem Yasseen and Noel Thomas v Republic of Guyana,6 the HRC found article 10 and 14 violations in relation to two men who had been sentenced to death for murder. Specifically, the men had been held in deplorable conditions for over nine years, as well as being held in solitary confinement for 23 hours a day, during which time they were deprived of natural light.

The recommendation of the Committee was that the prisoners be released.



      1. McTaggart v Jamaica

In McTaggart v Jamaica,7 a Jamaican national awaiting execution was kept in conditions that were found to be in violation of Articles 7 and 10 of the ICCPR, including being kept in deplorable conditions of incarceration, having restrictions on visitations; being held in solitary confinement; and being beaten and intimidated by wardens.

The Committee found that an effective remedy for such treatment included compensation. Commutation of sentence was also recommended in an individual opinion.



      1. Simpson v Jamaica8

      In Simpson v Jamaica, the author was convicted of murder and incarcerated. The HRC found significant violations by the prison authorities of articles 7 and 10, including extended periods of solitary confinement, unhygienic conditions, failure to provide adequate medical treatment and lack of water.

In light of these breaches (together with a breach of article 14 discussed below) the HRC recommended that the author receive adequate compensation, an improvement in his conditions of detention and due consideration of early release.

      1. Wanza v Trinidad and Tobago9

The author in this case claimed that the condition of his cell, including its size, and the lack of light and ventilation, in combination with extended periods of solitary confinement (22-24 hours per day) amounted to a breach of article 7 and 10(1) of the ICCPR. The Committee found a violation of article 10(1) and recommended the State party consider early release, pursuant to article 2(3).

    1. Violations of article 14

      1. Simpson v Jamaica10

As well as claiming article 7 and 10(1) violations, the author in this case alleged that his lawyer had been absent for the hearing of two of the four witnesses during the preliminary hearing. No attempt had been made by the magistrate to adjourn the proceedings until counsel's return. The Committee emphasised that "it is axiomatic that legal assistance be available at all stages of criminal proceedings, particularly in capital cases".11 In the absence of such assistance, it found a violation of article 14(3)(d) of the ICCPR.

On the basis of this breach (together with the breach of articles 7 and 10 discussed above) the Committee considered that the author was entitled to an appropriate remedy pursuant to article 2(3), including adequate compensation, an improvement in the present conditions of detention and due consideration of early release.



      1. Wanza v Trinidad and Tobago12

Again, as well as claiming a breach of article 7 and 10, the author claimed a breach of article 14(3)(c) on account of the delay of almost five years between his conviction and the determination of his appeal. The Committee found an article 14 violation had occurred and recommended the State party consider early release of the author.

      1. Lantsova v Russian Federation13

In this case the author was held in a prison with a population five times greater than its capacity. Conditions included poor ventilation and hygiene and inadequate food. The Committee found a breach of article 10(1). Inadequate medical attention led to the author's death, for which the Committee found a breach of article 6(1) of the ICCPR.

The Committee recommended, amongst other things, appropriate compensation for the author's family, an official inquiry into the death of the author, an assurance from the State party that similar violations did not occur in the future, and the taking of immediate steps to ensure that conditions of detention were compatible with the State party's obligation under articles 6 and 10.



      1. Polay Campos v Peru

In Polay Campos v Peru,14 the detained person, the leader of a Peruvian revolutionary movement, was allegedly denied the right to a fair trial. Specifically, the detainee was brought before a special tribunal of "faceless judges" who convicted him of "aggravated terrorism". The HRC found that such trials by special tribunals, composed of anonymous judges, were incompatible with article 14. As such, the HRC recommended that an effective remedy under article 2(3) required that the prisoner be released.

    1. Violations of article 9

      1. Kennedy v Trinidad and Tobago15

In this case the author alleged violations of article 9(2) and (3), because he was not charged until five days after his arrest, and not brought before a judge until six days after his arrest. The HRC noted that, while the meaning of the term "promptly" under this article must be determined on a case-by-case basis, it recalled its jurisprudence under the Optional Protocol which said that "delays should not exceed a few days".16 On this basis the Committee found a breach of article 9(3).

In this case, the HRC also found breaches of article 6, 7, 10(1) and 14(3). It recommended that the State party provide an effective remedy, including compensation and consideration of early release. It also noted that the State party was under an obligation to take measures to prevent similar violations in the future.



  1. "Effective remedies" in the Australian context

Article 2(3)(b) enunciates the position that the proper realisation of an effective remedy can only occur where the right is judicially, administratively or legislatively incorporated into domestic law. In Australia, we have seen that the federal governments have been consistently reluctant to do this, in spite of their constitutional power to legislate to implement their international treaty obligations under the external affairs power,17 amongst other things.18

Instead, successive federal governments have adopted cooperative approaches towards the implementation of international obligations. The present Government, for example, has attested loudly to the effectiveness of the “Principles and Procedures for Commonwealth-State Consultation on Treaties”.19 But mechanisms based only on consultation and cooperation are always vulnerable to political exigencies and are not effective instruments of accountability. The absence of proper domestically incorporated instruments has been deemed a “major flaw” in the Australian system of rights, which hamper the realisation of effective remedies for breaches of international law. 20



  1. Criticism of Australia: Concluding observations of the Human Rights Committee

In its most recent concluding observations on Australia (2000),21 the HRC reinforced this point:

The Committee is concerned that in the absence of a constitutional Bill of Rights, or a constitutional provision giving effect to the Covenant, there remain lacunae in the protection of Covenant rights in the Australian legal system. There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the Covenant have been violated.

The State party should take measures to give effect to all Covenant rights and freedoms and to ensure that all persons whose Covenant rights and freedoms have been violated have an effective remedy (art. 2).

It also stated that:

[t]he Committee is of the opinion that the duty to comply with Covenant obligations should be secured in domestic law. It recommends that persons who claim that their rights have been violated should have an effective remedy under that law.

The HRC expressed its concern about the Principles and Procedures for Commonwealth-State Consultation on Treaties, stating that:

[w]hile noting the explanation by the delegation that political negotiations between the Commonwealth Government and the governments of states and territories take place in cases in which the latter have adopted legislation or policies that may involve a violation of Covenant rights, the Committee stresses that such negotiations cannot relieve the State party of its obligation to respect and ensure Covenant rights in all parts of its territory without any limitations or exceptions (art. 50).

The Committee considers that political arrangements between the Commonwealth Government and the governments of states or territories may not condone restrictions on Covenant rights that are not permitted under the Covenant.

The HRC was also critical of Australia's approach to the HRC's views in A v Australia:22

Rejecting the Committee's interpretation of the Covenant when it does not correspond with the interpretation presented by the State party in its submissions to the Committee undermines the State party's recognition of the Committee's competence under the Optional Protocol to consider communications.

The Committee recommends that the State party reconsider its interpretation with a view to achieving full implementation of the Committee's Views.

Finally, the HRC observed that Australia's mandatory detention laws:

raise[d] questions of compliance with article 9, paragraph 1, of the Covenant, which provides that no person shall be subjected to arbitrary detention. The Committee is concerned at the State party's policy, in this context of mandatory detention, of not informing the detainees of their right to seek legal advice and of not allowing access of non-governmental human rights organizations to the detainees in order to inform them of this right.

The HRC urged Australia to reconsider its policy of mandatory detention and recommended that it inform all detainees of their legal rights, including their right to seek legal counsel.



  1. Domestic arbiters of international rights

HREOC is the primary statutory authority for the conciliation of, amongst other things, complaints about violations of the ICCPR in Australia. It does this pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the Act), which brings into Australian law the rights contained in various international human rights instruments, including the ICCPR.23

For example, if HREOC receives a complaint alleging a breach of a human right under the Act, it will make inquiries into the complaint under sections 11(1)(f) and 20(1) of the Act. If a complaint is unable to be conciliated, the President or his delegate may make preliminary findings that the alleged act or practice is inconsistent with or contrary to a human right.

If such preliminary findings are made, these findings will be provided to the parties. The respondent, or person or organisation against whom the complaint is made, will be advised at that time that it has an opportunity to make written or oral submissions on the preliminary findings. The respondent will be advised of the time-frame in which it should provide the submissions.24

Upon receipt of written submissions, or upon the completion of an oral hearing, the President or his/her delegate will consider all of the information. If the President or delegate makes a finding that the act or practice complained of is inconsistent with or contrary to any human right she/he will issue a Notice to both the complainant and the respondent.25 This Notice will set out the reasons for the findings, and may include recommendations for:



  • the prevention of the repetition of the act or a continuation of the practice;

  • the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;

  • the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice.

Following service of the Notice on the parties, the respondent will have 28 days in which to inform the President or his delegate of any action proposed to be taken by them in response to the recommendations made in the notice. The President or his delegate will then report on his findings to the Attorney-General. The Report will contain:

  • details of the inquiry into the act or practice;

  • the findings made and the reasons for those findings;

  • any recommendations made by the President or his delegate in the notice; and

  • whether, to the Commission's knowledge, the respondent has taken, or is intending to take, any action as a result of the findings and recommendations, and if so, the nature of that action.

The Attorney-General must table the Report in each House of Parliament within 15 sitting days of receipt. This Report will be issued to both the complainant and the respondent after it has been tabled in Parliament as its contents are under embargo until then.

If the President or his/her delegate makes a finding that either the existence of an act or practice has not been established, or, that the act or practice is not inconsistent with or contrary to any human right, (s)he will prepare a report setting out the findings, and reasons for those findings. These will be provided to both parties; however, will not be provided to the Attorney-General, and is not tabled in Parliament.26 It is also not judicially enforceable.



BLAKE DAWSON WALDRON

38908.67


1 UN Doc CCPR/C/21/Re.1/Add.13 (2004) at [15].

2 At [16].

3 UN Doc CCPR/C/21/Rev.1/Add.11 (2001) at [14].

4 CESCR, General Comment No 9 on domestic implementation of the ICESCR para [2].

5 Dianne Otto and David Wiseman, ‘In search of “effective remedies”: Applying the International Covenant on Economic, Social and Cultural Rights to Australia’, Public Law and Legal Theory Working Paper No 15, (2001) at 15.

6 Communication No 676/1996, UN Doc CCPR/C/62/D/676/1996 (1998).

7 Communication No 749/1997, UN Doc CCPR/C/62/D/749/1997 (1998).

8 Communication No. 695/1996, UN Doc CCPR/C/73/D/695/1996 (2001).

9 Communication No 683/1996UN Doc CCPR/C/74/D/683/1996 (2002).

10 Communication No. 695/1996, UN Doc CCPR/C/73/D/695/1996 (2001).

11 At [7.3].

12 Communication No 683/1996UN Doc CCPR/C/74/D/683/1996 (2002).

13 Communication No 763/1997, UN Doc CCPR/C/74/763/1997 (2002).

14 Communication No 577/1994, UN Doc CCPR/C/61/D/577/1994 (1998).

15 Communication No 845/1998, UN Doc CCPR/C/74/D/845/1998 (2002).

16 At [7.6].

17 See, for example, Commonwealth v Tasmania (The Tasmanian Dam case) (1983) 158 CLR 1.

18 The options available on how international treaty obligations may be implemented are discussed in Otto and Wiseman at 17-22. From a model that entrenches treaty obligations to a model where these obligations are at best optional reference points, they consider: constitutional implementation (not as yet applicable in Australia); legislative enactment in a general scheme or bill of rights (e.g. the Sex Discrimination Act 1985, the Human Rights and Equal Opportunity Act 1986, the Racial Discrimination Act 1975); legislative enactment in a particular area of policy; legislative enactment of sub-rights in particular legislation (e.g. the Social Security Act 1991 (Cth), the Residential Tenancies Act 1997 (Vic)); rights enacted as statements of objectives in legislation (e.g. the Disability Services Act 1991 (ACT)); or rights that are recognised as providing interpretive guidance where legislation is ambiguous (Teoh).

19 See http://www.coag.gov.au/meetings/140696/attachment_c.htm.

20 For further discussion on this subject, in particular as it relates to the implementation of the ICESCR, see Dianne Otto and David Wiseman, ‘In search of “effective remedies”: Applying the International Covenant on Economic, Social and Cultural Rights to Australia’, Public Law and Legal Theory Working Paper No 15, (2001).

21 'Consideration of reports submitted under article 40', 28/07/00, CCPR/CO/69/AUS, in consideration of Australia's third and fourth periodic reports.

22 Communication No 560/1993. The author of the communication is A, a Cambodian citizen who, at the time of submission of his communication on 20 June 1993, was detained at the Department of Immigration Port Headland Detention Centre, Cooke Point, Western Australia. He was released from detention on 27 January 1994. He claimed to be the victim of violations by Australia of article 9(1), (4) and (5), and article 14(1) and 3(b), (c) and (d), juncto article 2, paragraph 1, of the ICCPR.

23 Also the Convention on the Rights of the Child (CROC), the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons. Not covered by the Act is the International Covenant on Economic, Cultural and Social Rights (ICESCR), the Convention relating to the Status of Refugees, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Prevention and Punishment of the Crime of Genocide.

24 Section 27.

25 Section 29.

26 See HREOC website at http://www.hreoc.gov.au/complaints_information/guides/hreoca_reporting.html.

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