6.1 Various types of remedies

Remedies for ESC rights violations, as with any human rights violations, are aimed at achieving justice and repairing injuring for the victim(s) of such violations. In some instances the remedy may consist in the requirement of the State to adopt measures that lead to changes in law, policy or practices, the impact of which reaches well beyond the individual victims in a particular case. However, as highlighted throughout this Guide, redress for ESC rights violations does not always necessitate systemic remedies with far-reaching policy or legal reforms, and with significant budgetary implications. Nonetheless, the remedial phase of ESC rights adjudication will typically be important for clarifying the measures that have to be taken to realize these rights more generally.

1. Avoiding irreparable harm

In some ESC rights litigation, repairing a harm will not, in the first instance, be the objective. Rather, litigation may be aimed at preventing a harm from occurring by petitioning a judicial or quasi-judicial body, sometimes on an urgent basis, to order measures, which may be temporary in character, aimed at avoiding irreparable harm. Most international human rights treaties, directly or under rules of procedures, provide for the possibility of the designated, judicial and quasi-judicial bodies to prescribe interim, provisional or precautionary measures.^[265] The absence of availability of such interim or equivalent measures to judicial and quasi-judicial bodies would in many cases render further litigation futile, emptying such a complaint of its raison d’être. This is true, for instance, in cases in which the implementation of an extractive industrial project, such as a dam construction, would be likely to definitively destroy the means of subsistence and the environment upon which the community depends; in cases in which the denial by public health authorities of a particular treatment would affect the health and life of a patient; or in cases in which a wrongful decision of an educational institution would have an irreparable impact on the ability of a student to follow his or her education studies.

At the domestic level, judicial and quasi-judicial bodies also have procedures that allow for interim relief and possibilities to provide interim and urgent measures to avoid irreparable harm that cannot be compensated by subsequent monetary or other damage awards. In many civil law countries, the procedure of référé in civil and administrative law, provides for the possibility for the judge to give an urgent response, within days, in the form of any necessary measures to avoid an irreparable infringement of a right or to secure the availability of important documentary evidences.^[266] The Colombian acción de tutella procedure, described in Chapter 3, is another example of procedures that address the need to avoid irreparable harm and give an urgent and provisional response in cases of violations of rights. Common law jurisdictions will typically also have arrangements providing for immediate injunctive relief in respect of various situations.

2. Types of remedies

The notion of “remedy” may vary from jurisdiction to jurisdiction. In some cases, remedy refers mainly to the procedural aspect of redress; in others remedy is the substantive relief obtained. Under international law, at a minimum, an effective remedy must lead to the cessation of the violation and the provision of reparation. Reparation may include restitution, compensation, rehabilitation but also the satisfaction of victims and the guarantee of non-repetition. The latter, in particular, will often require policy and legal changes when normative and policy gaps are at the source of the violation.

In certain cases, the remedy required will be very specific and limited to the case at play. For example, it may only involve the payment of a due wage or a social benefit in cases of administrative abuse and wrongful decision making towards an individual, or the reinstatement of an illegally dismissed worker or the admission of a student illegally rejected on a discriminatory ground. In such cases, the violations do not necessarily reveal a structural and systematic failure in a policy or law.

In the same vein a simple declaratory order may be sought, as in the case described below.^[267] In this instance, the plaintiffs sought a clarification of a point of law through a declaratory order of the Supreme Judicial Court, and more precisely whether the exclusion, of lawful immigrants with less than five-year residency, from the State subsidized health care program was discriminatory and hence unconstitutional.

→ Dorothy Ann Finch and others v. Commonwealth Health Insurance Connector Authority, Case No. SJC-11025 (MA S. Jud. Ct., Jan. 5, 2012)

Similarly, in a case from 2013 decided by the Ugandan Constitutional Court, Advocates for Natural Resources & 2 Ors v. Attorney General & Anor,^[268] a declaratory order was sought by the petitioners concerning the constitutionality of both a law and an act under article 137 of the Constitution. The declaration of the Court nullified section 7(1) of the Land Acquisition Act because of its inconsistency with article 26(2) of the Constitution on the right to property, as it failed to provide for prior payment of compensation in cases of compulsorily acquisition of land by the government. It also declared unconstitutional, under the same article 26(2) of the Constitution, the acts of the Uganda National Roads Authority who took possession of land without prior payment of compensation.

In other cases, violations will be identified by judicial and quasi-judicial bodies not in the context of a concrete review, but through a general or abstract review of constitutionality or conventionality of a law or administrative act.

The South African, Indian and Colombian courts offer interesting examples of systemic remedies with orders to design policies or extend benefits to specific groups of the population. These cases involve inter alia a violation of the constitutional right to adequate housing in South Africa; restrictions on the provision of anti-retroviral drugs to HIV positive pregnant women, a violation of the rights to life and health in Colombia; a violation of the right to food resulting in starvation deaths, which occurred despite excess grain stocks in India; and a violation of the constitutional and reproductive rights of two women below the poverty line who were denied access to adequate maternal care in India. In these cases, courts have used a range of different orders and injunctions directed at the authorities to act.^[269]

→ Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, W.P.(C) No. 8853 of 2008

In Guatemala, a case decided by the juvenile Court in favour of the Chiquimula children,^[270] for violations of the rights to food, life, an adequate standard of living, health and housing, entailed a comprehensive list of remedies and measures to be taken to address both immediate needs of the children and their families and the more structural issues that needed to be addressed for a more sustainable improvement of their situation. In order to implement the decision, the Court ordered the establishment of a protocol that includes the creation of an inter-ministerial and inter-administration committee aimed at guaranteeing coordination and effective implementation.

The Decision T-291/09 of the Colombian Constitutional Court described in Chapter 5, which deals with the situation of waste pickers in Cali, also illustrates a more fully-fledged form of remedial measure, with immediate as well as mid and long-term actions. These included measures in favour of the realization of the recyclers’ rights to health, education, decent housing and food, from emergency measures to attend to the survival needs of the waste pickers to more mid and long term measures to facilitate access to social protection schemes, education, or to reform the waste management system of the municipality and to integrate the waste pickers in the formal economy.