The scope of protection

Article 13 of the ECHR provides certain procedural guarantees. This constitutional right implies the obligation on the legislature to avail an individual of an effective mechanism to enforce the rights and freedoms set forth in the ECHR. The competent national authority must be able to deal with alleged violations of human rights and freedoms in cases where an individual has an arguable claim to be the victim of a violation and, if appropriate, to order redress as necessary. In this regard, States enjoy a certain margin of appreciation as to the form or manner in which they conform to their obligations.¹⁷⁰²

However, Article 13 of the ECHR has a limited scope as it provides for the right to an effective remedy only for the rights and freedoms set forth in the Convention. Therefore, where an individual claims a violation on account of the absence of an effective remedy in respect of certain rights that are not protected by the ECHR (for example, the right to work), such a claim is inadmissible, according to the terminology used by the BiH Constitutional Court, i.e., it is ratione materiae incompatible with the ECHR.¹⁷⁰³ Thus, the BiH Constitutional Court, unlike its previous case-law, follows the case-law of the ECHR.¹⁷⁰⁴

The remedy must be effective in practice as well as in law. It must not be available only in theory, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the State.¹⁷⁰⁵

There are four elements for determining the effectiveness of an appeal mechanism. First, its institutional effectiveness, which requires that a decision- maker be independent of the authority at fault for the alleged or actual violation of the ECHR. The effectiveness as to the substance of a case requires that a complainant be able to raise the substance of the right at issue before the national authority from which he is seeking the remedy. The effectiveness as to the legal assistance entails that a competent national authority must be afforded an opportunity to establish the alleged violations of one or more of the rights referred to by a complainant.¹⁷⁰⁶ Finally, Article 13 of the ECHR requires the material effectiveness of an appeal mechanism, which requires that any remedy a person may have been awarded in his favour be such that the person may take effective advantage of it.¹⁷⁰⁷ This case-law discloses that Article 13 of the ECHR guarantees only the effective mechanism to enforce the ECHR rights. However, this does not necessarily guarantee success, i.e., a positive result at the end of the proceedings to decide on the remedy sought. Therefore, in case the outcome of the proceedings does not satisfy the applicant’s expectations, this does not mean that it would constitute a per se violation of Article 13 of the ECHR.¹⁷⁰⁸

In Case No. U 18/00, the BiH Constitutional Court established the absence of an effective mechanism as BiH had failed, in the course of its constitutional re-organisation after Dayton, to establish all bodies necessary to perform its constitutional obligations towards its citizens or, in other words, it had failed to establish an operative body which would be competent for inter-Entity transport or a judicial body that would deal with cases brought by appellants against the decisions of those State bodies.¹⁷⁰⁹ The available mechanisms were useless for the appellant since he could not obtain any copy of an administrative act, which limited his rights. On the one side, this act would disclose which legal remedies were available to him and, on the other hand, the appellant would be able to see the reasoning (legal grounds) for limiting his rights in order to properly frame any appeal against such an act.¹⁷¹⁰ In the same manner, theoretical remedies cannot be defined as being effective in a case where an individual avails himself of this remedy and the competent authority persists in ignoring and not offering any adequate answer to it.¹⁷¹¹

Article 13 of the ECHR shall apply as from the moment when an individual has an arguable claim to be the victim of a breach of the rights set forth in the Convention. Evidence that a person’s rights and freedoms guaranteed by the ECHR are violated is not indispensable.¹⁷¹² However, where it appears that a violation of the Convention rights and freedoms is prima facie ill-founded, Article 13 of the ECHR shall not apply. An arguable claim of a violation may be taken into account in cases where several courts have presented their views on the matter at issue.¹⁷¹³

Given the fundamental importance of the prohibition of torture and the especially vulnerable position of victims of torture, Article 13 of the ECHR imposes, without prejudice to any other remedy available under the domestic system, an obligation on States to carry out a thorough and effective investigation of incidents of torture. In cases where there are sufficient indications that a person has been tortured by agents of the State, an “effective remedy” requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible, including effective access for the complainant to the investigatory procedure. It is true that no express provision exists in the Convention such as can be found in Article 12 of the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which imposes a duty to proceed to a “prompt and impartial” investigation whenever there are reasonable grounds to believe that an act of torture has been committed. However, such a requirement is implicit in the notion of an “effective remedy”.¹⁷¹⁴ Likewise, this applies equally to forms of inhuman or degrading treatment, which, in a substantive sense, do not exceed the limit necessary to disclose an appearance of the elements of the criminal offence of “torture”.¹⁷¹⁵

In Case No. CH/97/45-A&M, the Human Rights Chamber, while deciding on the remedy, could not establish that the national law stipulated an effective remedy, which would enable the victim to institute appropriate legal proceedings under the previously described standards. The State Public Prosecutor’s Office failed to make use of his powers to carry out any investigations directed against those responsible.¹⁷¹⁶