The right to an effective remedy : an analysis of Article 13 of the European Convention on Human Rights

Abstract

Breaches of human rights should be remedied, us for as possible, in the country in which they occur. This is the raison d'etre of Article 13, which aims at making the European Convention on Human Rights effective in the legal order of States which have ratified it. The Article creates an international obligation incumbent on Contracting States to provide the appropriate means through which an individual may obtain relief in his domestic forum when his Convention rights are violated. This obligation is granted the status of an individual right which may be invoked before the Strasbourg Court. Article 13 illustrates the subsidiary function of the Strasbourg organs in the enforcement of Convention rights, as opposed to the primary obligation of Contracting States to secure to everyone within their jurisdiction the rights and freedoms enshrined in the Convention and to provide effective remedies for breaches of Convention rights. The role of the Strasbourg Court should be to supervise the implementation and enforcement of the Convention by national authorities, rather than to act as a court of first instance. Somewhat paradoxically, the Strasbourg institutions have interpreted the liberally drafted Article 13 in quite a restrictive manner. This approach did not only have negative effects on the individual applicant. It also had adverse effects on the international machinery of collective enforcement created by the Convention. Indeed, the backlog of cases before the Strasbourg institutions, particularly in matters relating to complaints of excessive judicial delays of national tribunals, is partly attributed to the Court's confined approach to Article 13. Recently however, necessity has prompted the European Court of Human Rights to broaden particular aspects of interpretation of the Article in order to counteract these problems.