The Human Right to a Judicial Remedy – A Comparative Analysis

• In Event: Human Rights, Migrants, and the Law

Abstract

Tommy Keyes sexually abused nine-year-old Jane Doe repeatedly when public school officials allowed him to check her out of their school five times. School officials failed to check if Keyes was authorized to remove Jane from school. When Jane tried to hold school officials accountable a U.S. appeals court ruled that "Jane had no constitutional right to be protected from harm.” Twelve years earlier the U.S. Supreme Court found the Federal Violence Against Women Act to be unconstitutional. Despite voluminous evidence that state and local officials were failing to protect women from sexual violence, and even though the Constitution expressly authorizes Congress to enforce its anti-discrimination guarantees, the Court ruled that Congress had no authority to give these victims a desperately needed judicial remedy. In the Court’s last term it threw out a case brought by men arbitrarily imprisoned because they were believed to be Muslim, a case brought be the parents of a Mexican teenager gunned down by a U.S. border agent, and a case brought by hundreds of immigrants locked up without any access to a judge. Enforcing rights with civil litigation, the Court declared, “was now considered a disfavored judicial activity.”

Last year the Inter-American Court of Human Rights held Venezuela accountable for failing to protect Linda Lopez from sexual violence after she struggled for years to win justice for being abducted, raped, and tortured when she was 18 years old. The British Supreme Court held the police department liable for failing to protect women from sexual assault that same year. These cases demonstrate the indispensability of the right to an effective remedy for human rights violations.

This paper uses comparative content analysis of cases from Latin America, Europe and the United States to answer the following research questions:
• To what extent do nations fulfill their obligation to provide judicial remedies for human rights violations in the face of immunity, national security, and other legal doctrines?
• What institutional elements influence a judiciary’s protection of human rights?
• Are regional human rights courts effective in promoting the right to a judicial remedy?

Author

• Jeffrey Davis, University of Maryland, Baltimore County