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I. Foundational Human Rights Principles

5. Accountability and the right to an effective remedy

Every State has the obligation to respect and protect the human rights of all persons within its territory and subject to its jurisdiction. Everyone has the right to request and receive information about how States have discharged their human rights obligations in the context of drug policy. Everyone has the right to an effective remedy in the event of actions and omissions that undermine or jeopardise their human rights, including where these actions or omissions relate to drug policy.

In accordance with these rights, States should:

i. Establish appropriate, accessible, and effective legal, administrative, and other procedures to ensure the human rights- compliant implementation of any law, policy, or practice related to drugs.

ii. Ensure that independent and transparent legal mechanisms and procedures are available, accessible, and affordable for individuals and groups to make formal complaints about alleged human rights violations in the context of drug control laws, policies, and practices.

iii. Ensure independent, impartial, prompt, and thorough investigations of allegations of human rights violations in the context of drug control laws, policies, and practices.

iv. Ensure that those responsible are held accountable for such violations in accordance with criminal, civil, administrative, or other law, as appropriate.

v. Ensure that adequate, appropriate, and effective remedies and means of redress are available, accessible, and affordable for all individuals and groups whose rights have been found to be violated as a result of drug control laws, policies, and practices. This should include accessible information on mechanisms and processes for seeking remedies and redress, and appropriate means of ensuring the timely enforcement of remedies.

vi. Take effective measures to prevent the recurrence of human rights violations in the context of drug control laws, policies, and practices.

Commentary:

Accountability in the context of human rights requires States’ full and good-faith implementation of their human rights obligations. This means ensuring that all State officials, as well as any non-State actors empowered or delegated by the State to exercise elements of governmental authority in certain contexts, comply with the State’s human rights obligations. States are also obligated to exercise due diligence to ensure that the private acts of non-State actors do not impinge on individuals’ or groups’ human rights. Such obligations require States to take appropriate legislative, administrative, and other measures to prevent violations; investigate and, where appropriate, take action against those responsible; provide equal and effective access to justice to those whose rights have been violated; and provide accessible, effective remedies to victims of human rights violations.[58] State obligations to prevent, investigate, punish, and remedy human rights violations extend to both State and non-State actors.[59]

The Human Rights Committee has recommended that accessible, effective remedies to vindicate rights ‘be appropriately adapted so as to take into account the special vulnerability of certain categories of persons, including in particular children’.[60] The Committee has explained that the obligation to provide an effective remedy includes the obligation to make reparation to those whose rights have been violated; reparation can include, inter alia, restitution, compensation, rehabilitation, changes in laws and practices, guarantees of non-repetition, and bringing perpetrators of human rights violations to justice.[61] According to the Committee, in addition to explicitly guaranteeing legal assistance in criminal proceedings, States are encouraged to provide free legal assistance in other cases and in some cases may be obliged to do so to ensure the right to an effective remedy.[62] The Committee has also explained that the specific circumstances of the case should be taken into account when deciding on which measures of reparation are appropriate. For example, in some cases, the Committee has reached decisions that take into account the existence of a gender dimension or the world view of an indigenous group.[63] The Committee on the Elimination of Discrimination against Women has observed that providing ‘free or low-cost legal aid, advice and representation in judicial and quasi-judicial processes in all fields of law’ is a crucial part of ‘guaranteeing that justice systems are economically accessible to women’.[64] The Committee has thus recommended that States ‘[i]nstitutionalize systems of legal aid and public defense that are accessible, sustainable and responsive to the needs of women; and ensure that these services are provided in a timely, continuous and effective manner at all stages of judicial or quasi-judicial proceedings, including alternative dispute resolution mechanisms and restorative justice processes’.[65] The Charter of Fundamental Rights of the European Union provides that ‘[l]egal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’.[66]

The effective exercise of the right to a remedy requires States to ensure access to relevant information regarding violations, complaints processes, and reparation mechanisms.[67] The design and implementation of reparations programmes should be carried out in consultation with those whose rights have been violated.[68] Concerted efforts should be made to ensure the meaningful participation of women and minority groups in these consultations.[69]

UN human rights mechanisms have identified the need for accountability – including effective remedy – for human rights violations in the context of drug policy. For example, they have raised concerns about the torture and ill-treatment of adults and children in private and public drug detention centres,[70] calling on States to take all steps necessary to prevent and punish such violations and recommending that States ensure the prompt investigation of allegations and establish independent mechanisms to receive complaints against alleged perpetrators and provide victims with redress.[71] The Special Rapporteur on extrajudicial, summary, or arbitrary executions and the Special Rapporteur on the right to health have condemned the alleged extrajudicial killings of suspected ‘drug offenders’, calling for these killings to be promptly and thoroughly investigated and for perpetrators to be brought to justice.[72] The UN General Assembly Special Session 2016 Outcome Document also calls on States not only to ‘[p]romote and implement effective criminal justice responses to drug-related crimes to bring perpetrators to justice that ensure legal guarantees and due process safeguards pertaining to criminal justice proceedings’ but also to ‘eliminate impunity’ for human rights violations.[73] Similarly, the Sustainable Development Goals call on States to ‘promote the rule of law at the national and international levels and ensure equal access to just for all’.[74]

  • 58. ^

    Universal Declaration of Human Rights, G.A. Res. 217A (III) (1948), art. 8; International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI) (1966), art. 2(3); American Convention on Human Rights, O.A.S. Treaty Series No. 36 (1969), art. 25; African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5 (1981), art. 1; [European] Convention for the Protection of Human Rights and Fundamental Freedoms, ETS No. 5 (1950), art. 13; Charter of Fundamental Rights of the European Union, 2012/C 326/02 (2012), art. 47; UN General Assembly, Resolution 60/147: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, UN Doc. A/RES/60/147 (2006), para. 3; Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), paras. 7, 8, 15–19; Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 59; Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), para. 64; Committee on the Elimination of Discrimination against Women, General Recommendation No. 28: The Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/GC/28 (2010), paras. 19, 34; Committee on the Elimination of Discrimination against Women, General Recommendation No. 19: Violence against Women, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 9.

  • 59. ^

    See, e.g., Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 8; Human Rights Committee, General Comment No. 36: The Right to Life, UN Doc. CCPR/C/GC/36 (2018), para. 21; Committee on the Elimination of Discrimination against Women, General Recommendation No. 19: Violence against Women, UN Doc. HRI/GEN/1/Rev.1 (1994), para. 9.

  • 60. ^

    Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 15.

  • 61. ^

    Human Rights Committee, Guidelines on Measures of Reparation under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc. CCPR/C/158 (2016), paras. 2, 11(b); Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 16.

  • 62. ^

    Human Rights Committee, General Comment No. 32: Right to Equality before Courts and Tribunals and to a Fair Trial, UN Doc. CCPR/C/GC/32 (2007), para. 10.

  • 63. ^

    Human Rights Committee, Guidelines on Measures of Reparation under the Optional Protocol to the International Covenant on Civil and Political Rights, UN Doc. CCPR/C/158 (2016), para. 5.

  • 64. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation on Women’s Access to Justice, UN Doc. CEDAW/C/GC/33 (2015), para. 36.

  • 65. ^

    Committee on the Elimination of Discrimination against Women, General Recommendation on Women’s Access to Justice, UN Doc. CEDAW/C/GC/33 (2015), para. 37; see also Committee on the Elimination of Discrimination against Women, General Recommendation No. 35: Gender-Based Violence against Women, Updating General Recommendation No. 19, UN Doc. CEDAW/C/GC/35 (2017), para. 40(c) (recommending that States ensure free or low-cost, high-quality legal aid to women complainants and witnesses to gender-based violence).

  • 66. ^

    Charter of Fundamental Rights of the European Union, 2012/C 326/02 (2012), art. 47.

  • 67. ^

    UN General Assembly, Resolution 60/147: Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law, UN Doc. A/RES/60/147 (2006), paras. 11(c), 24; Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), paras. 7, 8, 15–19; Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to Health, UN Doc. E/C.12/2000/4 (2000), para. 59; Committee on Economic, Social and Cultural Rights, General Comment No. 22: The Right to Sexual and Reproductive Health, UN Doc. E/C.12/GC/22 (2016), para. 64.

  • 68. ^

    Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher, UN Doc. E/CN.4/2005/102/Add.1 (2005), principle 32; Committee on the Elimination of Racial Discrimination, Concluding Observations: Rwanda, UN Doc. CERD/C/RWA/CO/13-17 (2011), para. 17; Inter-American Court of Human Rights, Moiwana Community v. Suriname, Judgement, 15 June 2005, paras. 209–218; Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, International Meeting on Women’s and Girls’ Right to a Remedy and Reparation, Nairobi, 19–21 March 2007, principle 1(D).

  • 69. ^

    Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher, UN Doc. E/CN.4/2005/102/Add.1 (2005), principle 32; Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparation, International Meeting on Women’s and Girls’ Right to a Remedy and Reparation, Nairobi, 19–21 March 2007, principle 1(D).

  • 70. ^

    See, e.g., Committee on the Rights of the Child, Concluding Observations: Viet Nam, UN Doc. CRC/C/VNM/CO/3-4 (2012), paras. 43, 44, 63, 64, 69, 70; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), para. 20; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/7 (2018), para. 30.

  • 71. ^

    See Committee against Torture, Concluding Observations: Cambodia, UN Doc. CAT/C/KHM/CO/2 (2010), para. 20; Committee on the Rights of the Child, Concluding Observations: Cambodia, UN Doc. CRC/C/KHM/CO/2 (2011), paras. 38, 39; Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Juan Méndez, UN Doc. A/HRC/22/53 (2013), para. 87(c); Report of the Working Group on Arbitrary Detention, UN Doc. A/HRC/30/36 (2015), para. 62; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/5-6 (2013), para. 21; Committee against Torture, Concluding Observations: Guatemala, UN Doc. CAT/C/GTM/CO/7 (2018), para. 31.

  • 72. ^

    United Nations, ‘UN Experts Urge the Philippines to Stop Unlawful Killings of People Suspected of Drug-Related Offences’, 18 August 2016, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20388&LangID=E.

  • 73. ^

    UN General Assembly, Resolution S-30/1: Our Joint Commitment to Effectively Addressing and Countering the World Drug Problem, UN Doc. A/RES/S-30/1 (2016), para. 4(o).

  • 74. ^

    Sustainable Development Goal 16.3

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