Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 305
domestic remedial mechanism. 1305 It is not necessary that the specific article
of the human rights treaty be used as a ground of judicial review. It
is sufficient that the substance of the human rights claim be arguable. 1306
The domestic remedy must also be “effective”, i.e. able to ascertain
and redress the potential violation once this is established. It must have
the power to give binding orders that reverse the situation of violation
of the person’s rights or, if that is impossible, provide adequate
reparations. Reparation includes, as appropriate, restitution, compensation,
rehabilitation, satisfaction and guarantees of non-repetition. 1307
Remedies whose decisions do not have binding force or whose decisions
or the implementation of them are at the discretion of a political body
are not deemed to be effective. 1308 Furthermore, particularly in cases of
expulsions, the remedy must have the power to suspend the situation
of potential violation when the lack of suspension would lead to irreparable
harm/irreversible effects for the applicant while the case is being
considered. 1309
The remedy must also have certain characteristics of due process
of law. 1310 It must be independent, which means that it must not be
subject to interference by the authorities against which the complaint
is brought. 1311 It must afford due process of law for the protection of
the right or rights alleged to be violated, must be accessible by every-
1305 Muminov v. Russia, ECtHR, op. cit., fn. 343, para. 99.
1306 See, Fressoz and Roire v. France, ECtHR, GC, Application No. 29183/95, Judgment of 21 January
1999, paras. 33–37; Castells v. Spain, ECtHR, Application No. 11798/85, Judgment of
23 April 1992, paras. 24–32.
1307 Articles 19–23, UN Basic Principles and Guidelines on the Right to a Remedy and Reparation.
See also, ICJ, Practitioners Guide No. 2, op. cit., fn. 480, Chapters VI and VII.
1308 See, Madafferi and Madafferi v. Australia, CCPR, op. cit., fn. 460, para. 8.4; C. v. Australia,
CCPR, op. cit., fn. 350, para. 7.3; L.Z. B. v. Canada, CAT, Communication No. 304/2006,
Views of 15 November 2007, para. 6.4; L.M.V.R.G. and M.A.B.C. v. Sweden, CAT, Communication
No. 64/1997, Views of 19 November 1997, para. 4.2; Shamayev and Others v.
Georgia and Russia, ECtHR, op. cit., fn. 434, para. 446. However, there must be evidence
in practice that the discretion of the political power does not lead to a predictable decision
according to legal standards. It must be evident that the discretion is absolute. Otherwise,
the applicant has a duty to try to exhaust also that remedy. See, Danyal Shafiq v. Australia,
CCPR, op. cit., fn. 687, para. 6.5. See also, Article 22.5(b) CAT; Article 4.1 OP-CEDAW;
Article 77.3(b) ICRMW.
1309 See, Dar v. Norway, CAT, Communication No. 249/2004, Views of 16 May 2007, paras. 6.4–6.5;
Tebourski v. France, CAT, op. cit., fn. 353, paras. 7.3–7.4; Na v. United Kingdom, ECtHR,
op. cit., fn. 309, para. 90; Jabari v. Turkey, ECtHR, Application No. 40035/98, Admissibility
Decision, 28 October 1999; Bahaddar v. the Netherlands, ECtHR, Application No. 25894/94,
Judgment of 19 February 1998, paras. 47 and 48; Soldatenko v. Ukraine, ECtHR, op. cit.,
fn. 361, para. 49; Muminov v. Russia, ECtHR, op. cit., fn. 343, para. 101; Gebremedhin v.
France, ECtHR, op. cit., fn. 602, paras. 66–67.
1310 See, Article 46 ACHR; and Article 31, IACHR Rules of Procedure.
1311 See, CCPR, General Comment No. 31, op. cit., fn. 46, para. 15; Keenan v. United Kingdom,
ECtHR, op. cit., fn. 769, para. 122; Muminov v. Russia, ECtHR, op. cit., fn. 343, para. 101;
Judicial guarantees in states of emergency, IACtHR, Advisory Opinion OC-9/87, 6 October
1987, para. 24.