A/HRC/25/31
affordability and access to information — must be fulfilled equally and without
discrimination. Special emphasis has been placed on ensuring that administrative and
judicial mechanisms respect the right to equality for those who historically have been
discriminated against in remedial proceedings. This includes having a victim-sensitive and
human rights-based approach in managing the proceedings and in resolving the matter. In
that respect, the Committee on the Rights of the Child has underscored that, for matters
affecting children, the legal reasoning of all judicial and administrative judgements and
decisions should be based on the principle of the best interests of the child. The Committee
and other experts have also stressed that the design and implementation of adjudication
mechanisms must ensure that children are afforded an opportunity to be heard and that due
weight should be given to those views in accordance with the age and maturity of the child.
VI. Right to due process for remedies relating to economic, social
and cultural rights
25.
The duty to realize economic, social and cultural rights imposes an obligation on
States to establish “appropriate venues of redress” such as courts or administrative
mechanisms.101 For the realization of such rights, the Committee on Economic, Social and
Cultural Rights has indicated that States parties should institute policies and strategies at the
national level that ensure the establishment of effective mechanisms and institutions where
they do not exist, including administrative authorities, ombudspersons and other national
human rights institutions, courts and tribunals.102 Remedies can be an adequate venue of
redress if they are accessible,103 affordable,104 timely or prompt,105 effective,106 legitimate,107
predictable,108 compatible with rights,109 and transparent.110 They also must be equitable,111
requiring that they provide means to include the “poorest and most disadvantaged and
marginalized”.112
26.
Administrative and other remedial mechanisms cannot replace a right to judicial
remedy when it is necessary to realize economic, social and cultural rights. As the
Committee on Economic, Social and Cultural Rights has determined, “whenever a
Covenant right cannot be made fully effective without some role for the judiciary, judicial
remedies are necessary.”113 In such cases, States have a duty to guarantee victims seeking
remedies for alleged violations of economic, social and cultural rights proper access to the
judicial system.114 Courts and tribunals must adjudicate complaints promptly, expeditiously,
101
102
103
104
105
106
107
108
109
110
111
112
113
114
CESCR, general comment No. 16 (2005), para. 21.
Ibid., para. 38; CESCR, general comment No. 20 (2009), para. 40.
CESCR, general comment No. 9 (1998), para. 9; general comment No. 16 (2005), para. 21;
A/HRC/7/11, para. 51 (d).
CESCR, general comment No. 9 (1998), para. 9; A/HRC/15/31/Add.1, para. 54; A/HRC/21/42,
para. 77.
A/HRC/15/31/Add.1, para. 54; CRC, general comment No. 16 (2013), para. 30; CMW/C/GTM/CO/1,
2011, para. 21.
CESCR, general comment No. 20 (2009), para. 40; general comment No. 16 (2005), para. 38;
E/C.12/NPL/CO/2, 2007, para. 32.
CESCR, general comment No. 9 (1998), para. 9; A/HRC/15/31 para. 58.
A/HRC/15/31, para. 58.
Ibid.
A/HRC/7/11, para. 51; A/HRC/15/31 para. 58.
A/67/278, para. 8.
CESCR, general comment No. 16 (2005), para. 21.
CESCR, general comment No. 9 (1998), para. 9. See also A/HRC/15/31/Add.1, para. 55.
E/C.12/1994/5, 1994, para. 21; E/C.12/1/Add.90, 2003, para. 6; CMW/C/MEX/CO/2, 2011, para. 25.
13
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