A/HRC/26/32
wrongful conviction or miscarriage of justice.24 That means that the civil responsibility of
the State could be engaged through both individual and institutional accountability
mechanisms. As a result, compensation could imply some form of reparation for damage
caused following a personal error made by a judge when exercising his or her jurisdictional
function or of the justice system as a whole. In that regard, effective remedies could
encompass the effective recourse to a competent court or tribunal, the right to judicial
protection, access to court and compensation for wrongful judicial acts.
98.
In its general comment No. 32 (2007) on the right to equality before courts and
tribunals and to a fair trial, the Human Rights Committee has emphasized that States should
enact legislation ensuring that compensation can in fact be paid and that the payment is
made within a reasonable period of time (para. 52). In the case of Dumont v. Canada, for
instance, the Committee considered that delays of nine years in civil proceedings had
deprived the victim of an effective remedy (communication No. 1467/2006, para. 23.6).
The Committee has also recalled on many occasions that the supervisory review procedure
against court decisions which have entered into force constitutes an extraordinary means of
appeal which is dependent on the discretionary power of a judge or prosecutors and is
limited to issues of law and does not permit any review of facts and evidence.25
99.
The Committee has consistently emphasized that the requirement to exhaust
domestic remedies applies only to the extent that those remedies are effective and
available.26 The State must give details of the remedies available to the victim, together
with evidence that there would be a reasonable prospect that such remedies would be
effective.27 Similarly, in its general comment No. 31 (2004) on the nature of the general
legal obligation imposed on States parties to the Covenant, the Human Rights Committee
emphasized that all branches of the State (executive, legislative and judicial), and other
public or governmental authorities, at whatever level – national, regional or local – are in a
position to engage the responsibility of the State party to the Covenant (para. 4). It added
that States parties should award reparation and appropriate compensation to individuals and
noted that, where appropriate, reparation can involve restitution, rehabilitation and
measures of satisfaction, such as public apologies, public memorials, guarantees of nonrepetition and changes in relevant laws and practices, as well as bringing to justice the
perpetrators of human rights violations and taking measures to prevent a recurrence of the
type of violation in question (paras. 16–17).
100. The right to a remedy is also enshrined in non-binding instruments, such as the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which
stipulates that compensation could include an effective judicial remedy, access to court or
access to administrative and other bodies. It could also encompass payment for the harm or
loss suffered, reimbursement of expenses incurred as a result of victimization, the provision
of services and the restorations of rights.
101. The 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 go further by explaining that restitution should, whenever
possible, restore the victim to their original situation before the gross violation of his or her
rights took place. The Principles stipulate that compensation should be provided for any
24
25
26
27
18
See, for instance, article 8 of the Universal Declaration of Human Rights and articles 2 and 14 of the
International Covenant on Civil and Political Rights.
See, for instance, Sudalenko v. Belarus, Communication No. 1750/2008, para. 8.3; and Kovaleva et
al. v. Belarus, Communication No. 2120/2011, para. 10.4.
Report of the Human Rights Committee, A/68/40 (Vol. I), para. 163.
Ibid.
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