A/HRC/25/31
fee or other direct or indirect cost is introduced, it should be guided by a principle of
equity.135 Moreover, the Committee has highlighted the State’s obligation to provide legal
recourse that is not “unreasonably complicated”.136 The right to reasonably simple
proceedings especially benefits those who have been historically discriminated against or
those who are in particular circumstances of vulnerability. In that sense, United Nations
experts have called upon States to avoid proceedings that are complex, overly legalistic or
employ legal jargon or use languages that make it difficult for disadvantaged people to
understand the proceedings and its consequences and interfere with their ability to demand
the fulfilment of their rights.137
D.
Fair opportunity to prove the violation
33.
Remedial proceedings must ensure that the victim of an economic, social or cultural
rights violation has a fair opportunity to prove his or her claim. In considering the principle
of equality of arms, United Nations experts have signaled the importance of not presuming
conditions of equality between the parties in a dispute when practice and experience have
shown otherwise. The Committee on Economic, Social and Cultural Rights has stressed the
need to include measures to balance inequalities between parties, including provision for
shifting the burden of proof. The Committee has stated, in that regard, that “where the facts
and events at issue lie wholly, or in part, within the exclusive knowledge of the authorities
or other respondent, the burden of proof should be regarded as resting on the authorities, or
the other respondent, respectively.”138
E.
Reasoned decision on the merits
34.
To make administrative and judicial remedial mechanisms effective, the final
decision must include the reasons on which it is based and indicate any applicable
reparations. For the Committee on Economic, Social and Cultural Rights, effectively
addressing economic, social and cultural rights violations entails the opportunity of arriving
at a final decision on the merits of the case.139 This resolution should include a reasoned
basis for the decision, that is, an explanation of the decision on the merits of the legal claim
on which the complaint is founded. Another crucial aspect of the content of the decision,
when a breach of a right has been found, is the determination of the reparations that are to
be provided and effectively implemented. As previously indicated, the right to an effective
remedy requires that the remedy must be capable of providing adequate reparations for the
rights violation.140
F.
Effective enforcement of the decision
35.
Finally, States have also an obligation to take steps in order to ensure that decisions
will be enforced or implemented. The purpose of any remedial proceeding is to give effect
135
136
137
138
139
140
16
Ibid., para. 18 (b) (ii).
Ibid., para. 52.
See, for example, A/67/278, paras. 70–72 and 75–78.
CESCR, general comment No. 20 (2009), para. 40. See also E/C.12/HUN/CO/3, 2008, para. 8;
E/C.12/1/Add.86, 2003, para. 10.
E/C.12/PHL/CO/4, 2008, para. 12; E/C.12/KHM/CO/1, 2009, para. 12.
CESCR, general comment No. 19 (2008), para. 77; general comment No. 18 (2005), para. 48; general
comment No. 15 (2002), para. 55; general comment No. 14 (2000), para. 59; general comment No. 12
(1999), para. 32.
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