A/HRC/38/20
request a review of decisions by a State-based non-judicial mechanism with respect to the
transfer or referral of proceedings, allegations or evidence to judicial mechanisms and/or
other law enforcement bodies.
3.5
The procedural rules and practices of judicial mechanisms provide for the
participation of State-based non-judicial mechanisms in judicial proceedings to the extent
relevant and appropriate (for example, as prosecutors, advocates, representatives, expert
witnesses or as persons authorized to intervene on the basis of having a specific interest or
relevant expertise).
3.6
State-based non-judicial mechanisms and judicial mechanisms have adopted and
implemented equitable, predictable, rights-compatible and transparent procedures to be
followed in the event that more than one mechanism (whether judicial or non-judicial) has
been called upon to investigate, adjudicate upon and/or mediate a set of allegations arising
from a single event and/or similar sets of circumstances and involving the same business
enterprises.
3.7
Rights holders retain the ability to alter a remedial course of action in response to
evolving circumstances, including by transferring a complaint and/or dispute from a Statebased mechanism to a judicial mechanism in the event that it becomes clear that judicial
recourse is an essential part of having access to remedy and/or alternative methods of
achieving effective remedy are unavailable.
3.8
In cases where both State-based non-judicial mechanisms and judicial mechanisms
may have a role in the delivery of an effective remedy, their procedural rules and practices
operate in a manner that serves to reduce barriers to remedy for rights holders and does not
contribute to the creation of new barriers to remedy.
Policy objective 4: State-based non-judicial mechanisms, individually and in
combination, contribute to the realization of effective remedial outcomes for
individuals and communities that have been subjected to business-related human
rights abuses.
4.1
The State adopts and implements laws and policies with respect to State-based
mechanisms that are aligned with the principles of equal and effective access to justice,
adequate, effective and prompt reparation for harm suffered, and access to relevant
information concerning violations and reparation mechanisms. 1 To this end, laws and
policies relevant to the realization of remedial outcomes in cases of business-related human
rights abuses draw appropriately from all recognized categories of full and effective
reparation (namely, restitution, compensation, rehabilitation, satisfaction and guarantees of
non-repetition),2 and wherever possible, provide for choice by rights holders of the type of
remedial outcomes most appropriate in the light of the specific circumstances of the case.
4.2
The State has made appropriate arrangements to address the risk of nonimplementation of remedial outcomes (including non-compliance with the terms of a
remedial agreement or determination), which may include (depending upon the mandates
and functions of the relevant mechanisms) (a) the use of robust self-executing enforcement
powers; (b) the possibility of enforcement through judicial mechanisms; (c) regulatory or
administrative follow-up activities (including monitoring); or (d) the imposition of
regulatory and/or other consequences. Agencies responsible for enforcement, follow-up,
monitoring or other action are appropriately responsive to requests by rights holders to
exercise their powers of enforcement and/or supervision (as relevant), and operate in a
manner consistent with international standards relating to the prompt implementation of
remedial outcomes in cases of human rights abuse.
1
2
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 (General Assembly resolution 60/147, annex).
Ibid., sect. IX, para. 18.
11
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