The role of supranational human rights litigation in strengthening remedies for torture nationally

Abstract

Supranational human rights bodies are generally moving away from a practice of issuing declaratory orders and deferring to the state on the means to comply with their decisions to the issuance of more specific reparation orders, including requiring guarantees of non-repetition such as law reform at the national level. Notwithstanding this general evolution, in this article I suggest that they have not had as significant an impact on strengthening the national remedial framework where torture is alleged. Focusing on the practice and jurisprudence of the European Court, I identify key factors that support this finding and suggest ways in which they can do more to accommodate the objective of strengthening the national remedial framework for torture while continuing to prioritise their role as forums for individual access to justice.

Keywords:

• torture
• remedies
• guarantees of non-repetition
• law reform
• European Court of Human Rights

Acknowledgements

The author would like to thank Michael Birnbaum, Gabriela Echeverria, Carla Ferstman and Lutz Oette for their invaluable and detailed comments on earlier drafts as well as Frans Viljoen for discussions on the points raised in this article. She would also like thank Jon Worgan, LLM in International Human Rights Law candidate at the University of Essex for his excellent research assistance.

Notes

United Nations' 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, adopted by the General Assembly in Resolution 60/147 (16 December 2005).

Preamble (emphasising that they ‘do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms’).

Principle 11.

Ibid.

See the contribution by Lutz Oette in this volume (Lutz Oette, ‘Implementing the Prohibition of Torture: The Contribution and Limits of National Legislation and Jurisprudence’, The International Journal of Human Rights 16, no. 5 (2012): 717–736), for further discussion of these issues.

In Canada, two civil suits against former and incumbent foreign officials are currently pending in Kazemi (Estate of) v. Islamic Republic of Iran and Kunlun Zhang et al. v. Jiang Zemin. For information on both cases, see, the Canadian Centre for International Justice's website: http://www.ccij.ca/programs/cases/index.php (accessed 1 March 2012). In the United States, the Supreme Court remanded the case of Samantar v. Yousef 130 S.Ct. 2278 (2010) to the District Court on the question of whether a former official enjoys immunity under the common law to the District Court. The cases of Jones v. the United Kingdom and Mitchell & Ors v. the United Kingdom are currently pending before the European Court of Human Rights following the decision of the British House of Lords in Jones v. Ministry of Interior Al-Mamlaka Al-Arabiya as Saudiya and others [2006] UKHL 26.

See, for example, Laurence Helfner, ‘Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime’, European Journal of International Law 125 (2008): 134 (noting that ‘it is something of an irony that the length of time cases remain pending before the ECtHR sometimes exceeds the maximum length of proceedings that the Convention allows in national courts’).

Thomas Carothers, ‘The Rule-of-Law Revival’, Foreign Affairs 77, no. 2: 95 (1998).

Francesco Francioni, ‘The Right of Access to Justice under Customary International Law’, in Access to Justice as a Human Right, ed. Francesco Francioni (Oxford: Oxford University Press, 2007), 23.

Antonio Augusto Cancado Trindade, The Access of Individuals to International Justice (Oxford: Oxford University Press, 2011), 209.

Basak Cali, ‘The Purposes of the European Human Rights System: One or Many?’, European Human Rights Law Review 299 (2008): 301.

Dinah Shelton, Remedies in International Human Rights Law, 2nd ed. (Oxford: Oxford University Press, 2005), 255–7.

Jan Paulsson, Denial of Justice in International Law (Cambridge: Cambridge University Press, 2005), 113 (noting that ‘a more apt expression would be that it is a qualification necessary to establish the inherent limits of the rule’).

Ibid., 113 and 116–17.

See Nsongurua J. Udombana, ‘So Far, So Fair: The Local Remedies Rule in the Jurisprudence of the African Commission on Human and Peoples’ Rights', American Journal of International Law 97, no. 1 (2003): 1–37, at 2.

Ibid., 29 (citing Aminu v. Nigeria (2000) AHRLR 258 (ACHPR 2000)).

Jawara v. The Gambia (2000) AHRLR 107 (ACHPR 2000), para. 35.

Ibid., para. 36.

Ibid., para. 34.

See Paulsson, Denial of Justice in International Law, 110 (citing the proposed article 12 of the Second Report on Diplomatic Protection for the International Law Association that ‘affirmed that the local remedies rule is a procedural precondition to the prosecution of an international claim, and not a substantive one’).

Udombana, ‘So Far, So Fair’, 5–6.

Godfrey Musila, ‘The Right to an Effective Remedy under the African Charter on Human and Peoples’ Rights', African Human Rights Law Journal 6 (2006): 444 and 449 (noting that before the African Commission, the issue of remedies ‘has, however, been largely canvassed within the context of the admissibility procedure’).

Sudan Human Rights Organisation v. Sudan, African Commission on Human and Peoples' Rights, Communication No. 279/03, 296/05 (2009), para. 102 (finding the qualification to the exhaustion of local remedies rule to apply as well as a substantive violation of article 7).

Malawi African Association and Others v. Mauritania (2000) AHRLR 149 (ACHPR 2000), para. 83.

Ibid., para. 85.

Musila, ‘The Right to an Effective Remedy’, 454 (attributing this to the lack of a specific right to a remedy in the African Charter on Human and Peoples Rights and noting that ‘[e]xpecting the Commission to make orders for remedies as a matter of routine, complainants have rarely motivated requests for remedies’).

James Cavallaro and Stephanie Brewer, ‘Re-evaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the Inter-American Court’, American Journal of International Law 102 (2008): 777.

Ibid., 770.

Assanidze v. Georgia (71503/01) (2004) 39 E.H.R.R. 32, Partly Concurring Opinion of Judge Costa, paras 3–7; Sudan Human Rights Organisation v. Sudan; Amparo v. Venezuela, Reparations and Costs, IACtHR, Series C 28 (1996), para. 35; and Paniagua Morales et al. v. Guatemala, Reparations and Costs, IACtHR, Series C 76 (2001), para. 105.

For a discussion on this issue, see, Carla Ferstman, ‘Reparation as Prevention: Considering the Law and Practice of Orders for Cessation and Guarantees of Non-Repetition in Torture Cases’, Essex Human Rights Review 6: 7 (2010).

Francoise Hampson, ‘The Future of the European Court of Human Rights’, in Strategic Visions for Human Rights: Essays in Honour of Professor Kevin Boyle, ed. Geoff Gilbert, Francoise Hampson and Clara Sandoval (London: Routledge, 2011), 157 (‘The Court has understood the significance of examining why the violation was not remedied at the domestic level and now does so in a wide range of cases.’).

Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the control system of the Convention (2004).

Helfner, ‘Redesigning the European Court of Human Rights’, 3.

For the most recent statement on this issue, see, High Level Conference on the Future of the European Court, ‘Izmir Declaration’ (April 2011).

Helfner, ‘Redesigning the European Court of Human Rights’, 9.

Ibid., 129 (noting that, ‘[a]t the other end of the spectrum are claims of serious and pervasive human rights abuses such as extrajudicial killings, disappearances, torture, and prolonged arbitrary detention. Applicants in these cases have no meaningful domestic remedies to exhaust, forcing the Court to function as both a first instance finder of fact and a legal arbiter with respect to governments that sometimes resist its powers of review’).

See, Martin Scheinin, ‘Access to Justice before International Human Rights Bodies: Reflections on the Practice of the UN Human Rights Commission and the European Court of Human Rights’, in Access to Justice as a Human Right, ed. Francesco Francioni (Oxford: Oxford University Press, 2007), 135–52, at 139 (characterising the exhaustion of local remedies rule as ‘more an art than a science. The practical application of the requirement of domestic remedies is one of the most unpredictable issues in international human rights litigation’. Accordingly, whether or not one or more local remedies have to be exhausted is not always clear.).

See Airey v. Ireland (1979–1980) 2 E.H.R.R. 305 (9 October 1979), para. 23.

See for example, the state's argument in Gisayev v. Russia, European Court of Human Rights (Application no. 14811/04) (20 January 2011), para. 155.

Assenov & Ors v. Bulgaria, (1999) 28 E.H.R.R. 652 (28 October 1998), para. 86 (noting that ‘the applicant was not required in the absence of a criminal prosecution…to embark on another attempt to obtain redress by bringing a civil action for damages’).

Vladimir Romanov v. Russia, European Court of Human Rights (Application no. 41461/02) (24 July 2008), para. 78.

Ibid., para. 79.

European Court of Human Rights, Application no. 30357/05 (27 May 2010).

Ibid., para. 22.

In some cases concerning article 2, the European Court has on occasion found that applicants have to exhaust both civil and criminal remedies. For example, in McKerr v. United Kingdom (2002) 34 E.H.R.R. 20 (4 May 2001), paras 172–3, the court contrasted its findings that the applicant did not have to exhaust civil proceedings where the state had failed to investigate or prosecute in south-east Turkey due to the ‘close procedural and practical relationship between the criminal investigation and the remedies available to the applicant in the legal system as a whole’ to the legal system to the situation in Northern Ireland in which ‘civil proceedings are wholly independent of any criminal investigation and their efficacy has not been shown to rely on the proper conduct of criminal investigations or prosecutions’ and thus required the exhaustion of both criminal and civil proceedings. Similarly, in Oneryildiz v. Turkey, (2005) 41 E.H.R.R. 20 (30 November 2004), para. 148, the court noted that, ‘[w]hat is important is the impact the State's failure to comply with its procedural obligation under Article 2 had on the deceased's family's access to other available and effective remedies for establishing liability on the part of State officials or bodies for acts or omissions entailing the breach of their rights under Article 2 and, as appropriate, obtaining compensation’.

Adkivar v. Turkey, (1997) 23 E.H.R.R. 143 (16 September 1996), para. 73.

Aktas v. Turkey (2004) 38 E.H.R.R. 18 (24 April 2003), para. 330; Yoyler v. Turkey (Application no. 26973/95) (24 July 2003), para. 84.

Ibid., para. 82.

Ibid., para. 83.

Ibid., para. 84.

Ibid., para. 84.

Ibid., para. 96. See also, Aktas v. Turkey, para. 333.

Aydin v. Turkey (1998) 25 E.H.R.R. 251 (26 August 1997). See also, Partly Dissenting Opinion of Mr N. Bratza, Joined by M.M.S. Trechsel, J.-C. Soyer, H.G. Schermers and B. Marxer (noting ‘I see the problem in this case as concerned not with the right of access to court but rather with the effectiveness of the remedies available under domestic law in the particular circumstances of the case’).

Ibid.; See also, Maksimov v. Russia, European Court of Human Rights (Application no. 43233/02) (18 March 2010), para. 62.

Council of Europe, CDDH Final Report on measures that result from the Interlaken Declaration that do not require amendment to the European Convention on Human Rights' CDDH(2012)R74, Addendum II (15 February 2012), 4.

Ramirez Sanchez v. France, European Court of Human Rights (4 July 2006), para. 165.

European Court of Human Rights (Application no. 12066/02) (19 June 2007), para. 95.

(2007) 44 E.H.R.R. 16 (12 July 2005), para. 116.

Ibid., para. 120.

Ibid., para. 121.

Ibid.

Maksimov v. Russia, para. 59.

Ibid., para. 55.

Ibid., para. 64.

Ibid., para. 69.

Hampson, ‘The Future of the European Court of Human Rights’, 163.

Gisayev v. Russia, para. 159.

Ibid., para. 158.

Ananyev & Ors v. Russia (Applications nos 42525/07 and 60800/08) (12 January 2012), para. 228.

Maksimov v. Russia, para. 70.

Ibid., para. 7.

Ibid., para. 10.

Ibid., para. 11.

Ananyev & Ors v. Russia, para. 99.

Ibid., para. 221.

Ibid., para. 230.

See, for example, Gaefgen v. Germany, European Court of Human Rights (1 June 2010), para. 121.

Sudan Human Rights Organisation v. Sudan, para. 229(2).

Hampson, ‘The Future of the European Court of Human Rights’, 157.

Although it has, in the past, conducted fact-finding missions to take statements from witnesses.

Cavallaro and Brewer, ‘Re-evaluating Regional Human Rights Litigation in the Twenty-First Century’, 797–801.

Udombana, ‘So Far, So Fair’.

Committee against Torture, ‘Working Document on Article 14 for Comments’ (2011), http://www2.ohchr.org/english/bodies/cat/comments_article14.htm (accessed 1 March 2012).