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13. Remedies

Everyone has a right to an effective remedy for acts violating their human rights.^[1] When the right to freedom of association has been infringed, both associations and their members have the right to an effective remedy, which includes access to judicial review and reparations. States have an obligation to investigate fully any allegations of a violation of the right to freedom of association and to hold individuals, including State authorities, responsible for malicious infringement of the right. In addition, States must take measures to prevent future violations of the right, such as the revision of laws, the issuance of prosecutorial guidelines, and any other necessary measures.

In its General Comment 31, the UN Human Rights Committee explained that:

15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children. The Committee attaches importance to States Parties’ establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law. The Committee notes that the enjoyment of the rights recognised under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretative effect of the Covenant in the application of national law. Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy.

16. Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes 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.

17. In general, the purposes of the Covenant would be defeated without an obligation integral to article 2 to take measures to prevent a recurrence of a violation of the Covenant. 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.^[2]

13.1. Right to judicial review

The right to an effective remedy is integral to the exercise of the right to freedom of association. This right to a remedy includes the right to a fair hearing by an independent and impartial tribunal on matters affecting one’s realization of the right to freedom of association. The right to a fair trial or adjudication of one’s rights before an impartial tribunal is guaranteed in Article 14 of the ICCPR, Article 7 of the ACHPR, Article 6 of the ECHR, and Article 8 of the ACHR.

The right to judicial review applies to both associations and members:

116. Associations, their founders and members should have the right to an effective remedy concerning all decisions affecting their fundamental rights, in particular those concerning their rights to freedom of association, expression of opinion and assembly. This means providing them with the right to appeal or to have reviewed by an independent and impartial court the decisions or inaction by the authorities, as well as any other requirements laid down in legislation, with respect to their registration, charter requirements, activities, prohibition and dissolution or penalties…

117. All associations should have equal standing before impartial tribunals and, in case of an alleged violation of any of their rights, have full protection of the right to a fair and public hearing. This is a fundamental aspect of protecting associations from undue control by the executive or administrative authorities.

118. The founders, members and representatives of associations should likewise enjoy the right to a fair trial in any proceedings commenced by or against them. Therefore, in matters concerning restrictions placed on an association, the right to receive a fair hearing by an independent and impartial tribunal established by law is an essential requirement to be secured by legislation.^[3]

13.2. Restitution/compensation

Under international law, a State Party is obliged to provide reparation for any injury or damage caused when it violates its obligation to promote or protect the right to freedom of association under an international or regional human rights treaty. As the Permanent Court of International Justice (PCIJ) (which preceded the current International Court of Justice – ICJ) explained almost 100 years ago, reparation “is the indispensable complement of a failure to apply a convention and there is no need for this to be stated in the convention itself.”^[4]

In cases of infringement of freedom of association, associations and their members have the right to restitution as well as compensation for any damages that resulted from the violation.^[5]

The AComHPR Draft Guidelines specify that “[i]n addition to restitution remedying the specific harms inflicted, associations shall have the right to compensation for any and all damages that may have occurred.”^[6] The OSCE/ODIHR and Venice Commission’s Joint Guidelines on Freedom of Association similarly instruct States that effective remedy for violations of freedom of association in the national courts “should include compensation for moral or pecuniary loss.”^[7]

In addition, each of the major human rights treaties has a treaty-monitoring body, or mechanism, that explicitly envisions States Parties’ obligation to attempt to make victims’ of rights violations whole, including through compensation for injuries sustained. The pertinent regional human rights courts retain a great deal of discretionary power in ordering reparations and specific remedial measures.

Article 63 of the ACHR provides:

1. If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.

2. In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not yet submitted to the Court, it may act at the request of the Commission.

Article 41 of the ECHR states that:

If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.

Article 27 of the Protocol to the African Charter on the Establishment of the African Court states that:

1. If the Court finds that there has been violation of a human or peoples’ rights, it shall make appropriate orders to remedy the violation, including the payment of fair compensation or reparation.

2. In cases of extreme gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court shall adopt such provisional measures as it deems necessary.

In Baena-Ricardo v. Panama, a case involving the wrongful termination of government workers on the basis of their involvement in workers’ organizations, the IACtHR awarded the workers: (1) unpaid salary and employment benefits from the period of termination; (2) reinstatement, if possible, and indemnification for termination if not; (3) small lump sums for moral damages to each individual; and (4) reimbursement for expenses and costs incurred by the workers in bringing the case.^[8] In HADEP and Demir v. Turkey, the ECtHR refused to award the large sums requested in damages by the applicants where they had failed to show a causal link between the violation and the damages sought but awarded instead a smaller amount in non-pecuniary, or moral, damages to the members of the dissolved political party.^[9] Similarly, it ordered the State to pay only those costs and expenses for which the applicants submitted evidence, in this case a bill for translation services. In Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, the ECtHR refused to award pecuniary damages to a wrongfully dissolved association on the basis that the sum submitted was hypothetical and based only on an estimate of lost opportunities to seek and solicit funds. It did, however, award them non-pecuniary damages upon its finding that:

the Association’s founders and members must have suffered non-pecuniary damage as a consequence of the Association’s dissolution, which cannot be compensated solely by the finding of a violation. Ruling on an equitable basis, the Court awards the Association the sum of EUR 8,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. This sum is to be paid to Mr Sabir Israfilov, who will be responsible for making it available to the Association.^[10]

In Tanganyika Law Society et al. v. United Republic of Tanzania, the ACtHPR found that Tanzania’s prohibition on independent candidates in elections violated its obligation to promote freedom of association by requiring individuals to join a political association to run for office. It then ordered Tanzania to “to take constitutional, legislative and all other necessary measures within a reasonable time to remedy the violations found by the Court and to inform the Court of the measures taken” and gave the individual applicant the further opportunity to make submissions concerning compensation and other reparation.^[11]

13.3. Duty to investigate

The failure to undertake a complete, impartial, and effective investigation into instances of intimidation or attacks upon members of an association constitutes a violation of the association members’ rights to freedom of association.

In the case of Huilca Tecse v. Peru, the IACtHR found a series of violations, including of the right to freedom of association, where a Peruvian trade union leader, Pedro Huilca Tecse, was extra-judicially executed by members of the “Colina Group,” a death squadron with links to the Peruvian Army.^[12] The State subsequently failed to undertake a complete, impartial and effective investigation into the facts. The IACtHR determined that the State violated Huilca Tesca’s rights to life (Article 4) and freedom of association (Article 16) where it had used its military intelligence to facilitate the covert operation to execute Huilca Tesca and subsequently been actively involved in covering up the assassination.^[13] It reasoned that this had not only deprived him arbitrarily of his life but also restricted his ability to freely associate without pressure or fear by the Government:

Article 16(1) of the Convention includes the “right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes.” These words establish literally that those who are protected by the Convention not only have the right and freedom to associate freely with other persons, without the interference of the public authorities limiting or obstructing the exercise of the respective right, which thus represents a right of each individual; but they also enjoy the right and freedom to seek the common achievement of a licit goal, without pressure or interference that could alter or change their purpose. Therefore, the execution of a trade union leader, in a context such as that of this case, not only restricts the freedom of association of an individual, but also the right and freedom of a determined group to associate freely, without fear; consequently, the right protected by Article 16 has a special scope and nature, and this illustrates the two dimensions of freedom of association.^[14]

The Court held that when an individual’s rights to life and safety are not fully guaranteed and respected, the freedom of association cannot be fully exercised because it is implied that the freedom of association contains the power to choose how to exercise it:

The Court considers that the content of freedom of association implies the power to choose how to exercise it. In this regard, an individual does not enjoy the full exercise of the freedom of association, if, in reality, this power is inexistent or is limited so that it cannot be implemented. The State must ensure that people can freely exercise their freedom of association without fear of being subjected to some kind of violence; otherwise, the ability of groups to organize themselves to protect their interests could be limited.^[15]

The Court found that, in this case, the right to freedom of association became illusory because Huilca Tecse was not capable of exercising his right to freely associate without being subjected to fatal repercussions by State authorities.^[16] The Court also considered that Huilca Tecse’s murder, and the failure to investigate or hold anyone accountable for the murder, would intimidate other workers in the trade union movement to self-impose a limitation on associating with a group for fear of similar reprisals.^[17]

Similarly, where State authorities have misused legal or regulatory powers with the intent to harass associations or their members, the State must investigate and hold accountable those who misused the authority of the State. Abuses may include frivolous criminal charges, arbitrary audits, warrantless searches, and other forms of intimidation where pursued with the intent of harassing particular associations. The AComHPR Draft Guidelines note that:

Where the authorities pursue warrantless sanctions, or have pursued sanctions with the aim of harassing particular associations, those responsible for prosecuting the cases in question shall be held liable for violating the right to freedom of association. ^[18]

In cases of infringement of the right to freedom of association, associations and their members have the right to restitution and compensation for any damages that resulted from the violation.^[19]

The AComHPR Draft Guidelines specify that “[i]n addition to restitution remedying the specific harms inflicted, associations shall have the right to compensation for any and all damages that may have occurred.”^[20] The joint guidelines of the OSCE/ODIHR and Venice Commission similarly instruct States that effective remedy for violations of freedom of association in the national courts “should include compensation for moral or pecuniary loss.”^[21]

13.4. Investigation and prosecution

In cases where infringement on the right to freedom of association takes the form of intentional harassment or intimidation of an association or its members, responsible authorities must be held liable for their role in the infringement. According to the AComHPR Draft Guidelines:

In addition, where non-State actors have threatened or attacked association members on the basis of their membership, the State must investigate and, if sufficient evidence exists, prosecute those responsible. The failure to undertake a complete, impartial, and effective investigation of such incidents constitutes a violation of the association members’ rights to freedom of association.^[23]