A/HRC/25/31
effectively, impartially and independently.115 Judicial remedies regarding economic, social
and cultural rights violations must, inter alia, be accessible, affordable, and equitable. The
remainder of this section will discuss the characteristics that both administrative and
judicial mechanisms must have in order to fulfil the right to due process for victims of
economic, social and cultural rights violations, in the terms set forth by United Nations
treaty bodies and experts.
A.
Competence, independence, transparency and accountability
27.
As recalled by the Committee on Economic, Social and Cultural Rights, remedial
proceedings for economic, social and cultural rights violations require competent and
independent administrative and judicial bodies.116 One way to assure the competence of
those in charge of adjudicating complaints is by providing training on international legal
standards regarding economic, social and cultural rights. The Committee on Migrant
Workers and other treaty bodies has emphasized the importance of providing training on
the human rights treaties to the officials involved in the protection of rights, “particularly
public prosecutors, judges, magistrates and personnel involved in the administration of
justice.”117 States have also been requested to ensure that the training is provided on a
permanent and continuous basis.118
28.
Adjudication mechanisms, whether judicial or administrative, must also be
independent. The Special Rapporteur on the right to education has noted that the very
purpose of adjudicating alleged violations of that right is “to have a credible, independent
body monitoring the legal compliance of State actors in the field of education.”119
Independence of adjudicatory bodies cannot be limited to formal legal or constitutional
requirements but also must include guarantees to ensure the de facto independence of
officials, judges and magistrates.120 Various special rapporteurs have stated that
independence requires proper financing, as well as adequate human resources allocations to
and institutional structure of the adjudicative bodies.121
29.
Finally, courts and other remedial mechanisms for economic, social and cultural
rights violations must be transparent and accountable. The Committee on Economic, Social
and Cultural Rights has emphasized that, because the realization of rights requires good
governance, the courts and administrative bodies responsible for providing remedies for
rights violations must be both transparent and accountable.122 In this regard, both United
Nations treaty bodies and experts have emphasized the State duty to combat corruption
among officials responding to economic, social and cultural rights violations.123 The
Committee on Migrant Workers has underscored that States must take a proactive role in
eliminating corruption, including by investigating and sanctioning those involved.124
115
116
117
118
119
120
121
122
123
124
14
CESCR, general comment No. 20, para. 40, and general comment No. 15 (2002), para. 49.
CESCR, general comment No. 17 (2005), paras. 18 (c) and 51.
CMW/C/MEX/CO/2, 2011, para. 22. See also CMW/C/DZA/CO/1, 2010, para. 15 (a);
CMW/C/ECU/CO/1, 2007, para. 9; E/C.12/IND/CO/5, 2008, para. 53.
CMW/C/MEX/CO/2, 2011, para. 22.
A/HRC/23/35 para. 82 (e).
E/C.12/1/Add.20, 1997, para. 15.
A/67/278, paras. 41–42; A/HRC/15/31/Add.1, para. 53.
CESCR, general comment No. 15 (2002), para. 49.
E/C.12/KHM/CO/1, 2009, para. 14; CMW/C/MEX/CO/2, 2011, para. 27.
CMW/C/MEX/CO/2, 2011, para. 28.
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