With growing jurisprudence emerging from domestic and regional judicial and quasi-judicial bodies, and with the adoption and entry into force of the Optional Protocol to the ICESCR, the theoretical debate around justiciability of ESC rights has been largely overcome. Nevertheless, important procedural and practical issues still represent challenges for judges and lawyers who adjudicate and litigate ESC rights.
1.The right to an effective remedy and reparation for violations of ESC rights under international law
The growing general acceptance of the justiciability of ESC rights will ultimately need to translate into concrete progress in making justice and domestic remedies accessible and effective for rights-holders who want to claim their rights and seek protection. Toward this end, a more in-depth analysis of how judicial and quasi-judicial bodies have been dealing with ESC rights claims, and how they have overcome (or not) the array of legal, procedural and practical issues raised by ESC rights litigation, can provide very valuable knowledge to legal practitioners.
It is a general principle of law that every right must be accompanied by the availability of an effective remedy in case of its violation.
For a remedy to be effective, those seeking it must have prompt access to an independent authority, which has the power to determine whether a violation has taken place and to order cessation of the violation and reparation to redress harm.
The right to an effective remedy is defined in international law. A number of human rights instruments expressly provide for the right to a remedy in the case of violations of rights and freedoms guaranteed under those instruments.
The UDHR provides that: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. In addition, the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Powerestablishes the principles of access to justice and fair treatment of victims who “…should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.”
The United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, as endorsed by consensus of the UN General Assembly in 2005, establishes that “the obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to: (a) Take appropriate legislative and administrative and other appropriate measures to prevent violations; (b) Investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law; (c) Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and (d) Provide effective remedies to victims, including reparation, as described below.”
As far as access to justice for victims of violations of ESC rights is concerned, the Committee on Economic, Social and Cultural Rights has reiterated on several occasions that remedies must be made available to rights-holders by States parties to the International Covenant on Economic, Social and Cultural Rights. In particular, the Committee has stated as a general principle of international law that: “appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place”. The Committee has also indicated that it considers the provision of domestic legal remedies for violations of ESC rights as being part and parcel of State obligations under article 2.1 of the ICESCR, which requires States parties to take all “appropriate means” for the realization of the rights under the Covenant, and adds that “other means used could be rendered ineffective if they are not reinforced or complemented by judicial remedies”.
This Guide describes and evaluates a wide range of possible remedies, including judicial and administrative remedies. As mentioned above, to discharge its obligations, including under article 2 of the ICESCR, the State must provide not simply a remedy, but an “effective” remedy. A fundamental element of the right to an effective remedy is that it must lead to the cessation of the violation and to “full and effective reparation…which include the following forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition”. Furthermore, where domestic remedies are not effective, they need not be exhausted in order for the right-holder to submit an individual communication alleging violation(s) of her or his ESC rights, i.e. in order for the right-holder to have recourse to the Committee on Economic, Social and Cultural Rights under the OP-ICESCR.
2.The position of ESC rights in the domestic legal framework
Rights-holders will first and foremost seek justice at the local or domestic level. This course is necessitated by the practical consideration that recourse to judicial and quasi-judicial bodies will typically require a substantial investment in human and material resources, and the legal mandate that domestic remedies must usually be exhausted before a victim may resort to international mechanisms.
Domestic remedies vary depending on the legal system in which one seeks justice for rights violations. This variability is especially pronounced in respect of ESC rights because they are often not expressly or fully guaranteed in constitutions or legislation.
On the specific issue of the incorporation of the ICESCR into the domestic system, General Comment 9 of the CESCR sets forth the scope of the obligation. States parties to the ICESCR are required to ensure that the national protection of the rights in the Covenant is at least as high as if the ICESCR is directly and fully applicable. Even if some provisions of the ICESCR are not considered self-executing, States are under the obligation to enact the necessary national laws to incorporate these provisions into the domestic legal order. At a minimum, domestic judges should interpret domestic law consistently with the States obligations under the ICESCR.
The provisions of the ICESCR are a primary source of ESC rights obligations. Those provisions must be read in conjunction with the commentaries of the CESCR as an overarching interpretive framework for ESC rights. However, the ICESCR is not the only treaty source for ESC rights. The ICRC contains many highly detailed ESC rights provisions, albeit that they are only applicable to persons under 18 years of age. In addition most other human rights treaties contain some ESC rights elements, with the Convention on the Elimination of All Forms of Discrimination against Women (ICEDAW) and the Convention on the Rights of Persons with Disabilities (ICRPD) containing several particular ESC rights provisions. Finally, a number of regional treaties establish ESC rights obligations, including the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), the African Charter on Human and Peoples’ Rights (ACHPR), the African Charter on the Rights and Welfare of the Child,, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), and the Revised European Social Charter. For practitioners, it is critical to review all of the relevant treaties to which the State at issue is a party, as well as the jurisprudence of their supervisory bodies, to determine the full content and scope of ESC rights that may be engaged.
In the light of these mutually reinforcing international human rights law provisions, and with a view to fully and unambiguously complying with those, several States that have undergone transitional and constitutional reform processes have incorporated, in their new constitutions or legislative framework, international human rights law standards, including the ones related to ESC rights, and clarified the remedies and enforcement mechanisms that are available in cases of violations.
The recognition of the ESC rights contained in international human rights treaties in constitutions, or at least primary legislation, typically provides not only for the fullest protection of ESC rights but it is also the most appropriate way of ensuring legal certainty and predictability. The clarity that is thereby offered to both justice system actors and rights-holders is a fundamental condition to ensure access to justice for victims of rights violations.
Besides constitutional guarantees, the recognition and operationalization of ESC rights in administrative law and regulations also play a fundamental role since many constitutions and legislations of a more general nature may only set out overarching principles and protections. The spelling out of modalities to implement constitutional and/or conventional rights is all the more important since the accessibility of constitutional remedies for rights-holders is very limited in many countries and legal systems.
In this regard it must be noted that, in a number of States of civil law tradition such as Italy, France and francophone African States sharing a similar legal system, control of constitutionality is essentially limited to an a priori review and/or is not directly accessible to rights-holders. Oversight of the conformity of new laws with Constitutional provisions, depending also on the status of international treaties in the internal hierarchy of norms for such States, takes place before these laws are passed. With regard to laws already in force, the (a posteriori) control of the constitutionality of laws, or of their compliance with international treaties (and especially with international standards pertaining to ESC rights), is limited and hardly accessible to individual right-holders. In many of these States, a priori control of constitutionality cannot be triggered by individuals but instead only by those such as the head of State, heads of parliamentary chambers or by a group of members of these chambers. Recently, some reforms within these States have enhanced the possibilities to ensure a posteriori (or diffuse) control of existing legislative provisions. The raising of an “exception of (un)constitutionality” can take place in the course of legal proceedings before judicial and quasi-judicial bodies if a party to the case argues that a legislative provision contradicts fundamental rights and freedoms. The question is thus transmitted for control by the constitutional body in charge. If considered unconstitutional, the provision in question will be repealed.
The role of the judiciary in the protection of ESC rights
While it is important for an independent and robust judiciary to exercise its judicial authority robustly to safeguard rights, judicial posturing alone will not guarantee the continuity, predictability and certainty of an explicit normative recognition of all rights under the ICESCR. Judicial interpretation may also be transitory, and depend on the membership of a judiciary at any moment. Nonetheless, the development of jurisprudence to reinforce human rights can greatly contribute to the clarification of the scope and content of ESC rights, and resolve questions in the interpretation of ESC rights where the treaties and constitutional or legislative provisions are silent or ambiguous. The role of judges in the development of the law in common law countries is in fact essential to the protection of ESC rights. This is true in civil law countries as well where, despite the propensity of judges to more rigidly adopt a predominately textual interpretation of the law, they have found ways in their interpretive work to give greater effect to ESC rights in a number of instances.
This is reflected in the jurisprudence developed by the highest courts of different countries of various legal traditions and systems.
In addition to well-known examples of the highest jurisdictions in countries like Colombia and India, the Constitutional Chamber of the Supreme Court of El Salvador provides a good example of the role of a proactive judicial doctrine in favour of the protection of ESC rights. Decision 53-2005/55-2005 of February 2013 reflects the willingness of the highest levels of the judiciary in El Salvador to ensure an expansive protection of all ESC rights in line with relevant international obligations. In the decision, the Court established the following with regard to its protection of ESC rights:
- certain rights not currently expressly protected under constitutional or legislative provisions may nevertheless be protected by the Constitutional Chamber through its construction or interpretation of existing provisions and rights present in the constitutional or legislative framework;
- public authorities have both negative and positive obligations in respect of ESC rights; and
- the realization of rights may require, depending on the circumstances, that authorities act in a certain way or that they refrain from taking certain action.
- 26. For a detailed analysis of the elements of the right to a remedy under international law, see Chapter III of the ICJ Practitioners’ Guide No. 2, The Right to a Remedy and to Reparation for Gross Human Rights Violations (2006), accessible at: https://www.icj.org/the-right-to-a-remedy-and-to-reparation-for-gross-human-rights-violations/↵
- 27. See, for example, article 2(3)Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.of the ICCPR; article 13Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.of the ICAT;1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. 2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.of the ICESCR; articles 12, 20 and 24 of the CED; article 8Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.of the UDHR; principle 4Effective protection through judicial or other means shall be guaranteed to individuals and groups who are in danger of extra-legal, arbitrary or summary executions, including those who receive death threats.and principle 16Families of the deceased and their legal representatives shall be informed of, and have access to. any hearing as well as to all information relevant to the investigation, and shall be entitled to present other evidence. The family of the deceased shall have the right to insist that a medical or other qualified representative be present at the autopsy. When the identity of a deceased person has been determined, a notification of death shall be posted, and the family or relatives of the deceased shall be informed immediately. The body of the deceased shall be returned to them upon completion of the investigation.of the United Nations Principles Relating to the Effective Prevention and Investigation of Extra-Legal, Arbitrary, and Summary Executions, UN Doc. A/RES/44/159 (1989); principles 4-7 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UN Doc. A/RES/40/34 (1985); article 27Every State should provide an effective framework of remedies to redress human rights grievances or violations. The administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development. In this context, institutions concerned with the administration of justice should be properly funded, and an increased level of both technical and financial assistance should be provided by the international community. It is incumbent upon the United Nations to make use of special programmes of advisory services on a priority basis for the achievement of a strong and independent administration of justice.of the Vienna Declaration and Programme of Action; articles 13, 160-162 and 165 of the Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, UN Doc. A/CONF.189/5 (2001); article 9 of the Declaration on Human Rights Defenders, UN Doc. A/RES/53/144 (1999);Right to an effective remedy. Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.[/expand] of the ECHR; Right to an effective remedy and to a fair trial. Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal 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.[/expand] of the Charter of Fundamental Rights of the European Union, (Date of publication: 26 October 2012), 2012/C 326/02; article 251. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. 2. The States Parties undertake: a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; b. to develop the possibilities of judicial remedy; and c. to ensure that the competent authorities shall enforce such remedies when granted.[/expand] of the ACHR; Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.of the American Declaration of the Rights and Duties of Man; article III(1)The States Parties undertake to adopt, in accordance with their constitutional procedures, the legislative measures that may be needed to define the forced disappearance of persons as an offense and to impose an appropriate punishment commensurate with its extreme gravity. This offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined.[/expand] of the Inter-American Convention on Forced Disappearance of Persons, (adopted 9 June 1994, entered into force on 28 March 1996), OAS Treaty Series No. 68; article 8(1)The States Parties shall guarantee that any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case.[/expand] of the Inter-American Convention to Prevent and Punish Torture, (adopted 9 December 1985, entered into force 28 February 1987, OAS Treaty Series No. 67; article 7(1)(a)Every individual shall have the right to have his cause heard. This comprises: The right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;[/expand] of the ACHPR; and article 9No one shall be subjected to medical or scientific experimentation or to the use of his organs without his free consent and full awareness of the consequences and provided that ethical, humanitarian and professional rules are followed and medical procedures are observed to ensure his personal safety pursuant to the relevant domestic laws in force in each State party. Trafficking in human organs is prohibited in all circumstances.of the Arab Charter on Human Rights, (adopted 22 May 2004, entered into force 15 March 2008), English translation reprinted in 12 Int’l Hum. Rts. Rep. 893 (2005).↵
- 28. Article 8Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.of the UDHR.↵
- 29. Article 4Calls upon Member States to take the necessary steps to give effect to the provisions contained in the Declaration and, in order to curtail victimization as referred to hereinafter, endeavour: (a) To implement social, health, including mental health, educational, economic and specific crime prevention policies to reduce victimization and encourage assistance to victims in distress; (b) To promote community efforts and public participation in crime prevention; (c) To review periodically their existing legislation and practices inorder to ensure responsiveness to changing circumstances, and to enact and enforce legislation proscribing acts that violate internationally recognized norms relating to human rights, corporate conduct, and other abuses of power; (d) To establish and strengthen the means of detecting, prosecuting and sentencing those guilty of crimes; (e) To promote disclosure of relevant information to expose official and corporate conduct to public scrutiny, and other ways of increasing responsiveness to public concerns; (f) To promote the observance of codes of conduct and ethical norms, in particular international standards, by public servants, including law enforcement, correctional, medical, social service and military personnel, as well as the staff of economic enterprises; (g) To prohibit practices and procedures conducive to abuse, such as secret places of detention and incommunicado detention; (h) To co-operate with other States, through mutual judicial and administrative assistance, in such matters as the detection and pursuit of offenders, their extradition and the seizure of their assets, to be used for restitution to the victims;of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.↵
- 30. United Nations General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Resolution A/RES/60/147 (2005).↵
- 31. Principle 3The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to: (a) Take appropriate legislative and administrative and other appropriate measures to prevent violations; (b) Investigate violations effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law; (c) Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice, as described below, irrespective of who may ultimately be the bearer of responsibility for the violation; and (d) Provide effective remedies to victims, including reparation, as described below.of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. This principle applies not only to gross violations but to all human rights violations and thus to the violations of ESC rights.↵
- 32. Committee on Economic, Social and Cultural Rights, General Comment No. 9, supra note 22, paras 2 and 3. See also Committee on Economic, Social and Cultural Rights, General Comment No. 12, UN Doc. E/C.12/1999/5 (1999), paras 32-35; No. 14, UN Doc. UN Doc. E/C.12/2000/4 (2000), paras 59-62; No. 15, UN Doc. E/C.12/2002/11 (2002), paras 55-59; No. 18, E/C.12/GC/18 (2006), paras 48-51; and No. 19, UN Doc. E/C.12/GC/19 (2008), paras 77-81.↵
- 33. Committee on Economic, Social and Cultural Rights, General Comment No. 9, supra note 22, para. 2But this flexibility coexists with the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant. In this respect, the fundamental requirements of international human rights law must be borne in mind. Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.[/expand]↵of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.↵
- 34. Ibid, paras 2 and 3. See also Principle 2If they have not already done so, States shall, as required under international law, ensure that their domestic law is consistent with their international legal obligations by: (a) Incorporating norms of international human rights law and international humanitarian law into their domestic law, or otherwise implementing them in their domestic legal system; (b) Adopting appropriate and effective legislative and administrative procedures and other appropriate measures that provide fair, effective and prompt access to justice; (c) Making available adequate, effective, prompt and appropriate remedies, including reparation, as defined below; (d) Ensuring that their domestic law provides at least the same level of protection for victims as that required by their international obligations.
- 35. See Part IX, “Reparation for harm suffered”, of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. United Nations treaty bodies have also affirmed that these forms and elements of reparation are inherent to the obligations under their respective treaties. This is the case of the Human Rights Committee in its General Comment No. 31, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004), at paras 16-18. In these paragraphs, the Human Rights Committee states that: “where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations. ….Accordingly, it has been a frequent practice of the Committee in cases under the Optional Protocol to include in its Views the need for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State Party’s laws or practices.” As far as it is concerned, the Committee Against Torture adopts the same definition of reparation in its General Comment No.3, UN Doc. CAT/C/GC/3 (2012), especially at .As stated in paragraph 2 above, redress includes the following five forms of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. The Committee recognizes the elements of full redress under international law and practice as outlined in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles and Guidelines).1 Reparation must be adequate, effective and comprehensive. States parties are reminded that in the determination of redress and reparative measures provided or awarded to a victim of torture or ill-treatment, the specificities and circumstances of each case must be taken into consideration and redress should be tailored to the particular needs of the victim and be proportionate to the gravity of the violations committed against them. The Committee emphasizes that the provision of reparation has an inherent preventive and deterrent effect in relation to future violations..[/expand] where it states that: “… redress includes the following five forms of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.”↵
- 36. International protection mechanisms usually foresee exceptions to the exhaustion of domestic remedies when those are not available, or not effective because unduly prolonged or unlikely to bring redress. See, for instance, The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted. This shall not be the rule where the application of such remedies is unreasonably prolonged.[/expand] of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted 10 December 2008, entered into force 5 May 2013), G.A. res. 63/117 [hereinafter OP-ICESCR]; The Committee shall not consider any communication from an individual unless it has ascertained that: (a) The same matter is not being examined under another procedure of international investigation or settlement; (b) The individual has exhausted all available domestic remedies. This shall not be the rule where the application of the remedies is unreasonably prolonged.[/expand] of the OP-ICCPR; The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted unless the application of such remedies is unreasonably prolonged or unlikely to bring effective relief.[/expand] of the OP-ICEDAW; The Committee shall consider a communication inadmissible when:… (d) All available domestic remedies have not been exhausted. This shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief;[/expand] of the OP-ICRPD; or The Committee shall consider a communication inadmissible when:… e) All available domestic remedies have not been exhausted. This shall not be the rule where the application of the remedies is unreasonably prolonged or unlikely to bring effective relief;[/expand] of the OP-ICRC.↵
- 37. African Charter on the Rights and Welfare of the Child (adopted 11 July 1990, entered into force 29 November 1999), OAU Doc. CAB/LEG/24.9/49.↵
- 38. Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, “Maputo Protocol” (adopted 11 July 2003, entered into force 25 November 2005).↵
- 39. For constitutional recognition of ESC rights see also Chapter 4, section II, infra note 184 of the present Guide.↵
- 40. See Lorsque, à l’occasion d’une instance en cours devant une juridiction, il est soutenu qu’une disposition législative porte atteinte aux droits et libertés que la Constitution garantit, le Conseil constitutionnel peut être saisi de cette question sur renvoi du Conseil d’État ou de la Cour de cassation qui se prononce dans un délai déterminé. Une loi organique détermine les conditions d’application du présent article.[/expand] of the French Constitution, introduced by the 2008 constitutional amendment; and La Cour Constitutionnelle est compétente pour connaître d’une exception d’inconstitutionnalité soulevée au cours d’un procès, lorsqu’il est soutenu par l’une des parties que la loi dont dépend l’issue du litige, porte atteinte aux droits et libertés garantis par la Constitution. Une loi organique fixe les conditions et modalités d’application du présent article.[/expand] of the 2011 Constitution of Morocco.↵
- 41. Supreme Court of El Salvador, Constitutional Chamber, Decision 53-2005/55-2005, February 2013.↵