Right to an effective remedy

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The right to an effective remedy is the right of a person whose human rights have been violated to legal remedy. Such a remedy must be accessible, binding, capable of bringing perpetrators to justice, provide appropriate reparations, and prevent further violations of the person's rights. [1] [2] [3] [4] The right to an effective remedy guarantees the individual the ability to seek remedy from the state directly rather than through an international process. It is a practical means of protecting human rights on the state level and requires the state to not just only protect human rights de jure but also in practice for individual cases. [3] [5] [6] [7] The right to an effective remedy is commonly recognized as a human right in international human rights instruments. [1] [2] [8] [9]

Contents

The right to an effective remedy is expressed in Article 8 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights, Article 13 of the European Convention on Human Rights, and Article 47 of the European Union Charter on Fundamental Rights. [8] [1] [2] [9]

Asylum seekers

The right to an effective remedy has been invoked in cases of asylum seekers in which the right has been held to prevent a state from deporting an asylum seeker before adjudicating the seeker's application for asylum, and that upon rejection of an asylum claim, the claimant must have a practical ability to appeal by being granted sufficient time and access to legal representation. [3] [10] Courts have not generally found that the state needs to provide a lawyer, even when an asylum seeker cannot afford one, provided that a lawyer is not necessary to access an effective remedy. Courts have found that an excessively formal process may violate the right to an effective remedy, especially when a lawyer is not provided. [10]

European Union

In European Union law, the right to an effective remedy applies beyond human rights to all rights provided for by EU law that are enforced in the courts of member states. [11]

Torture

The United Nations Human Rights Committee has stated that in cases of torture, the right to an effective remedy requires states to investigate allegations of torture, prosecute perpetrators, provide compensation to victims, and prevent similar violations from occurring again. [12] The principle of the right to an effective remedy is expressed in article 14 of the United Nations Convention against Torture. [1]

See also

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References

  1. 1 2 3 4 "Right to an effective remedy". ag.gov.au. Australian Government: Attorney-General's department. Retrieved 8 June 2018.
  2. 1 2 3 "What is the right to an effective remedy? | Icelandic Human Rights Centre". Icelandic Human Rights Centre. Retrieved 2018-06-08.
  3. 1 2 3 Kuijer, Martin (29 April 2014). "EFFECTIVE REMEDIES AS A FUNDAMENTAL RIGHT" (PDF). Escuela Judicial Española & European Judicial Training Network.
  4. ↑ The Right to a Remedy and Reparation for Gross Human Rights Violations A Practitioners' Guide Revised Edition, 2018 (PDF). 2018. ISBN   978-92-9037-257-8.{{cite book}}: |website= ignored (help)
  5. ↑ Musila, Godfrey (2006-12-20). "The Right to an Effective Remedy Under the African Charter on Human and Peoples' Rights". African Human Rights Law Journal. Rochester, NY. SSRN   2425592.
  6. ↑ "The right to effective remedy" (PDF). universal-rights.org. February 2015. Retrieved 8 June 2018.
  7. ↑ Gutman, Kathleen (2019-09-04). "The Essence of the Fundamental Right to an Effective Remedy and to a Fair Trial in the Case-Law of the Court of Justice of the European Union: The Best Is Yet to Come?". German Law Journal. 20 (6): 884–903. doi: 10.1017/glj.2019.67 . ISSN   2071-8322.
  8. 1 2 Paust, Jordan J. (2009). "Civil Liability of Bush, Cheney, et al., for Torture, Cruel, Inhuman, and Degrading Treatment and Forced Disappearance". Case Western Reserve Journal of International Law. 42 (1): 359. ISSN   0008-7254.
  9. 1 2 "Article 47 - Right to an effective remedy and to a fair trial". fra.europa.eu. European Union Agency for Fundamental Rights. 25 April 2015. Retrieved 8 June 2018.
  10. 1 2 Reneman, Marcelle (2008-09-24). "Access to an Effective Remedy in European Asylum Procedures". Amsterdam Law Forum. 1 (1): 65–98. doi: 10.37974/ALF.38 . hdl: 1871/49269 . ISSN   1876-8156.
  11. ↑ Hofmann, Herwig C.H. (2013). "The Right to an 'Effective Judicial Remedy' and the Changing Conditions of Implementing EU Law". SSRN Electronic Journal. doi:10.2139/ssrn.2292542. ISSN   1556-5068.
  12. ↑ McCall-Smith, Kasey (3 February 2022). "How Torture and National Security Have Corrupted the Right to Fair Trial in the 9/11 Military Commissions". Journal of Conflict & Security Law. 27 (1): 83–116. doi: 10.1093/jcsl/krac002 . hdl: 20.500.11820/20e01d2e-a9a2-4594-87b6-de9b722f4289 .

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