The concept of access to justice has many different elements, mostly connected to the right to a fair trial. However, perhaps the main right through which it materializes is the right to an effective remedy. This right is commonly included in international human rights instruments, but perhaps where it has become more important is in the context of the European Convention on Human Rights (ECHR). It is laid down in Article 13 of this instrument, and throughout the years it has gained enormous weight, becoming one of the Convention’s cornerstones as a result of the case law of the European Court of Human Rights (ECtHR). Actually, in those exceptional cases in which the ECtHR has ordered states to implement general measures going beyond the case at hand, these measures have mostly consisted in the introduction of effective remedies in the respondent states’ legislation. Article 13 ECHR establishes that “[e]veryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”.
This implies in a nutshell that those who have arguable complaint about a violation of their human rights must be able to lodge this complaint before national authorities, who must be able to examine the merits of it and issue a legally binding decision. The idea behind this right is to provide individuals with a way of obtaining reparations for human rights violations at the domestic level, without having to initiate a procedure before an international court. This aim is also reflected in the requirement of admissibility stating that effective domestic remedies need to be exhausted before applying to international human rights bodies. The weight given to the right to an effective remedy by the ECtHR reflects the great importance of the principle of subsidiarity in the European system of human rights protection, giving priority to the domestic level and limiting the ECtHR’ interventions to those cases in which the domestic remedy was not available or ineffective.
Although states enjoy a certain margin of appreciation when implementing this right, there are a number of conditions and requirements for domestic remedies to be considered effective under international law. This blogpost will examine the main case law of the ECtHR related to the right to an effective remedy, in order to provide an overview of the main features that such remedies should possess for guaranteeing access to justice. It will explore in this respect the availability of remedies, its legal nature, as well as its effectiveness requirements in general and in particular situations. It is useful for citizens to know in which cases domestic remedies for human rights violations may be considered ineffective, as this would allow them to appear before international human rights bodies without having to previously exhaust such remedies.
The availability of remedies in law and practice
One important element is that domestic remedies for human rights violation cannot depend on the goodwill of the state or other practical arrangements, but instead they need to be laid down and regulated in domestic legislation.1 This is shown in several cases dealing with domestic remedies against expulsion orders that had no automatic suspensive effect. The states argued in these cases that it was sufficient for remedies to have a suspensive effect “in practice”, as the domestic courts decided in almost every case to stay the deportation procedure. However, the ECtHR considered that this arrangement did not comply with Article 13, as there was no guarantee that the authorities would comply with that practice in every case. The Court stated that in accordance with the rule of law, “the requirements of Article 13 (…) take the form of a guarantee and not of a mere statement of intent or a practical arrangement”.2
Similarly, in a case related to the excessive length of judicial proceedings in Bulgaria, the state argued that domestic judges took into account the excessive length of criminal proceedings when sentencing. However, the ECtHR did not consider this to be an effective remedy because “that practice is not based on express statutory language”.3 Thus, as can be observed, legislative incorporation is a necessary element of an effective domestic remedy. However, it is not a sufficient one. The ECtHR has clarified in this regard that remedies must be available “in law and in practice”, in the sense that its application cannot be prevented without justification through acts or omissions of the state in question.4 This availability in practice is usually shown through decisions in similar cases, whereby a single judicial decision is usually no enough, as there needs to be proof of a consolidated case law in this regard.5
The nature of remedies: beyond the judiciary
Notably, Article 13 requires effective remedies “before a national authority” instead of a national court. This implies that the authority does not need to be a judicial one, but can also be an administrative authority or even a legislative one, such as a parliamentary commission.6 However, in the case of non-judicial authorities the ECtHR will carry out a closer review of its independence and of the procedural safeguards in place. In addition, these authorities must have the competence to issue decisions that are legally binding for the state. For example, a body that has only advisory powers cannot be considered an appropriate national authority in the sense of Article 13.7
Domestic remedies must be available in order to challenge acts of the administration or the executive. However, Article 13 does not require remedies that allow to challenge domestic laws for being contrary to the ECHR. The Court has argued in this respect that this would be tantamount to requiring states to incorporate the Convention.8 Concerning acts of the judiciary, Article 13 does not encompass the right to appeal before a higher instance, this only being recognised by Article 2 of Protocol No. 7 in a limited number of cases. Thus, in general Article 13 is not applicable when the alleged violation has taken place in the context of domestic judicial proceedings.9 Finally, with respect to the acts of private persons, remedies must apply only for cases in which the state has not taken the necessary preventive measures or otherwise shares responsibility for them.
The effectiveness of remedies
Although states are given discretion in the way of ensuring that its domestic laws effectively guarantee the protection of human rights, there are requirements for the effectiveness of remedies in general and in particular situations. With respect to the general requirements, first the remedy must be able to provide sufficient redress in the concrete situation of the applicant. Therefore, the effectiveness of a remedy is not assessed in abstracto but with respect to the specific complaint submitted by the applicant. In this respect, remedies must be accessible specifically to the alleged victim of the human rights violation. However, it is important to note that effectiveness does not depend on the certainty of a favourable outcome for the applicant. Secondly, the concept of effectiveness comprises the guarantees established in the right to a fair trial. This is a key requirement that shows the close link between these two rights. When a remedy does not comply with the principles and guarantees of a fair trial, such as the principle of equality of arms or the guarantees of promptness, it cannot be considered effective.
Besides the general requirements of effectiveness, there are additional requirements that apply to violations of specific rights or to other concrete situations. For example, remedies related to deportation procedures need to have an automatic suspensive effect, as was explained before. In cases concerning violations of the right to life or the prohibition of torture, the remedy must entail an investigation capable of leading to the identification and punishment of those responsible, as well as an award of compensation comprising moral damages as part of the redress. There are in addition specific situations in which the preventive and/or compensatory elements of a remedy are taken into consideration when examining its effectiveness.
The preventive and compensatory elements
A particular situation in this regard concerns remedies related to conditions of detention amounting to ill-treatment. In these cases, the ECtHR has established that prisoners need to have access to remedies both of a preventive and compensatory nature. The Court has argued in this respect that compensatory remedies alone are not sufficient, as this would “legitimise particularly severe suffering in breach of Article 3 and unacceptably weaken the legal obligation on the State to bring its standards of detention into line with the Convention requirements”.10 Thus, remedies for inhuman conditions of detention must be able to ensure the prompt termination of the violation.
The right to trial within a reasonable time is the only field in which the ECtHR has found a violation of the right to an effective remedy in the context of judicial proceedings. Contrary to the remedies for inhuman conditions of detention, in this area remedies will be effective if they are either preventive or compensatory. The effectiveness of remedies related to the excessive length of judicial proceedings thus depend on their capacity to either expedite a decision by the courts or to provide the litigant with adequate redress for the delays. The importance of these preventive and compensatory elements is shown in the fact that orders of the ECtHR to introduce such remedies are mostly related to situations of inhuman conditions of detention and to the excessive length of domestic judicial proceedings, in cases where domestic remedies failed to include the aforementioned elements.
In sum, it can be observed that domestic remedies need to fulfil an important number of conditions in order to be considered effective. If that is not the case, the ECtHR will most likely find a violation of the right to an effective remedy. It is important to note in this regard that Article 13 ECHR cannot be infringed independently, but always in connection to another right laid down in the Convention. This is because the states only have to provide an effective remedy if there has been a human rights violation in the first place, or at least an arguable complaint in this respect.
Although the ECtHR is the international tribunal that has defined more clearly the contours of the right to an effective remedy and the conditions of effectiveness, this is not a right pertaining exclusively to the European region. An almost identic provision can also be found in Article 25 of the American Convention on Human Rights and a similar one in Article 7 of the African Convention on Human and Peoples’ Rights. At the universal level, the general obligations included in Article 2 ICCPR include that to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy”. Thus, the interpretation of this right provided by the ECtHR can also be extended to other instruments including it. Citizens can therefore submit a complaint before the regional human rights courts or before the UN Human Rights Committee if their human rights have been violated and no effective domestic remedy is available to redress such violations.
1 ECtHR, A.C. and others vs Spain, 2014, para. 95; Allanazarova v. Russia, 2017, para. 97.
2 EctHR, Čonka v. Belgium, 2002, para. 83; Gebremedhin [Gaberamadhien] v. France, 2007, para. 66.
3 ECtHR, Dimitrov vs Bulgaria, para. 118.
4 ECtHR, A.C and others vs Spain, para. 85.
5 ECtHR, Sürmeli v. Germany [GC], 2006, para. 113; Abramiuc v. Romania, 2009, para. 128.
6 As in ECtHR, Klass vs. Germany.
7 See ECtHR, Chahal v. the United Kingdom, 1996 para. 154; Zazanis v. Greece, 2004 para. 47.
8 ECtHR, Christine Goodwin v. the United Kingdom [GC], 2002, para. 113.
9 With the exception of the right to be judged in a reasonable time, as will be explained below.
10 ECtHR, Ananyev and Others v. Russia, 2012, para. 98; Varga and Others v. Hungary, 2015, para. 49.