If human rights restrictions go unchallenged, this could quickly lead to abuses. Therefore, the possibility to challenge restrictions on human rights is essential to keep state authorities in check, prevent abuses and correct mistakes.
The right to an effective remedy is a distinct human right that guarantees the possibility for each person to challenge restrictions on human rights before an independent body, which can verify whether a violation of their human rights has occurred and, if necessary, offer a remedy. This right ensures the effectiveness of human rights.
note In the context of the right to an effective remedy, the term “remedy” can refer to a process before an independent authority where potential violations of human rights can be challenged. It can also refer to compensation, a restoration of rights, an apology, or other means of redressing a violation. In the European Union, this right is also sometimes referred to as the principle of “effective judicial protection.”
Requirements for an effective remedy
The legal process to verify whether there has been a violation of human rights has to be effective in law and in practice. This means that it must be accessible and work effectively in practice.
The process must offer the opportunity to examine an applicant’s complaint on its merits before an independent court or other independent body capable of reviewing both the relevant facts and the law. This body must also be able to offer an appropriate preventive or at least compensatory remedy. The procedure for this review must offer minimum guarantees of fairness similar to those required by fair trial rights. For example, the process must be based on equality between the parties and requires a reasoned decision.
An effective remedy must satisfy these conditions:
- it must be independent
- it must be accessible, prompt and offer minimum guarantees of fairness by ensuring conditions which allow an applicant to challenge a decision that restricts their rights (e.g., equality of arms)
- the complaint must be addressed on its substance
- it must be capable of directly remedying the situation by granting appropriate relief, i.e., preventing the alleged violation or its continuation, or providing adequate redress for any violation that had already occurred.
Types of remedies
There are many ways to redress a violation of human rights. Most commonly, where a violation of human rights has been recognized by courts or other bodies charged with redressing that violation, they will offer monetary compensation. This is especially true if the violation of your rights has also caused you to lose income, property or otherwise caused monetary loss.
example If a court has recognized that you have been unlawfully detained, and in addition to moral suffering, it has also caused you loss of income, you are entitled to monetary compensation to cover that loss of income.
A remedy may also take other forms in addition to monetary compensation. If the violation of human rights has caused moral suffering, this may be rectified in different forms, such as the restoration of rights or an apology. This is known as non-pecuniary or non-material damage. The type of redress which is most appropriate depends on the gravity of the moral suffering caused and is determined on a case-by-case basis.
example Moldovan legislation provides that non-material damage shall be compensated by restoring the condition which existed before the damage was caused, or, if it is not adequate, possible or is only partially possible, by apologising or paying corresponding compensation.
Effective remedies in Moldova
If your rights have been violated by the decisions or actions of state institutions, you can appeal the decision or complain about the actions to the court.
In administrative litigation, you must first submit a prior application to the issuing authority and then you can go to the court. There are however, multiple exceptions – in some cases you do not have to follow the prior administrative procedure at all, thus filing the appeal directly to the administrative court, in other cases you have to file the preliminary application to the higher administrative body.
Read more about administrative court proceedings.
Decisions or actions that are taken within a criminal procedure have special appeals procedures laid out in the Criminal Procedure Code.
Read more about criminal proceedings.
According to the Civil Procedure Code, if your case is being examined in the court and you think that your rights have been violated directly by a provision of the law, you can request an appeal to the Constitutional Court of Moldova. Also, if a norm that may be unconstitutional is to be applied during the examination of the criminal case, the court itself or at the request of a participant in the trial, reports to the Constitutional Court.
Read more about the Constitutional Court of Republic of Moldova.
After having tried to have your human rights violation recognized and remedied on a national level, you can also complain further to international or regional human rights mechanisms such as the European Court of Human Rights or the United Nation’s Human Rights Committee.
Read more about human rights institutions.