What Remedies Are Available?

Once a court finds there has been a legal wrong, the following remedies may be available:

(i) A Declaratory Judgement

A declaratory judgement is a ruling that expresses authoritative support for a group’s argument or complaint.

• An example could be a statement that a law violates your human rights.

(ii) A legal order requiring an action to be taken

This is sometimes known as a mandatory injunction.

• An example could be an order requiring the government to provide housing for homeless peoples.

(iv) A legal order stopping an event from happening

This is often known as a prohibitive injunction.

• An example could be an order stopping a mine being built near your land.

(v) Compensation

A ruling ordering a payment to a group of people who have been legally wronged. This is often known as damages or restitution.

Compensation can relate to:

• Economic loss (e.g. property damage)
• Physical harm (e.g. physical injury)
• Psychological harm (e.g. the loss of a family member)

(vi) Law Reform

In addition to remedies relating to a specific action, a successful case can change the law or government policy. This is done by creating a “legal precedent” (a rule that must be followed in the future). This changes the law so that if a similar event or activity happens in the future, it will also be unlawful. This can help stop injustices from happening again.

This can happen in the following ways:

• Judgements can invalidate other laws
• Judgements can influence the writing of laws in the future
• Judgements can order Parliament or Congress to make or abolish a certain law
• Judgements can order government to change its policy in an area

As you prepare your case, it is important to think about what solution you want to achieve. This means thinking about what “remedy” you want the court to order. The remedy sought must be determined by your objectives in taking legal action.

Think
What solution do I need to secure justice?

Consider the following objectives and the remedies that could achieve them:

(i) Changing the Law which Violates your Rights

If this is your objective, it is likely a structural remedy will be required. This could be order that requires the government to change the law.

Example: Toonen v Australia
In Australia, laws criminalising homosexuality were considered discriminatory by the UN Human Rights Committee. This lead to the law being changed, ending the discrimination.

(ii) Getting Clarity on the Meaning of Unclear Laws

A declaratory ruling will be most appropriate if this is your objective. This is important, as unclear laws can be abused by other groups.

Example: Mwenda v Attorney-General
In Uganda, the Supreme Court has outlined the boundaries of the right to freedom of expression in the constitution. By clearing up the law, this has protected free speech against future government interference.

(iii) Securing Something that You Are Entitled to

A court order requiring a government/company to act will often be the most appropriate remedy. This can uphold your rights.

Example: Treatment Action Campaign v South Africa
In South Africa, the government was ordered to make available anti-retroviral drugs to pregnant women suffering from HIV across the country.

(iv) Ending an On-Going Violation

If you want to stop a specific ongoing violation, an injunction or court order stopping an event/action will be most appropriate.

Example: Legal Action Against Arbitrary Detention
Across the world, courts regularly order police to release people who have been wrongfully arrested, often without charge or evidence.

(v) Preventing a Violation from Happening Again

Forcing governments/companies to pay compensation for past wrongs can have a useful deterrent effect, stopping future abuses. Equally, obtaining structural remedies (changing government policy/law) or declaratory judgements (confirming the legal position on an issue) can prevent future violations.

Example: Koraou v Niger
In the ECOWAS Community Court of Justice, key judgements have forced change on laws and customary rules concerning slavery in Niger and Mauritania. This has protected future generations from exploitation.

(vi) Preventing a Violation Before it Occurs

An injunction stopping an event from happening, or order requiring government action, will be most appropriate in this circumstance.

Example: Deportation of Asylum Seekers
A wide range of courts around the world have prevented governments from deporting individuals to countries where they would be persecuted.

(vii) Raising Public Awareness about a Violation

If you want to raise public awareness, asking for a large sum of compensation could be a bad idea as the public may think the case is only about money and not about establishing an important principle. Instead, a declaratory judgement or a structural remedy may be appropriate.

Example: Attorney-General v Dow
In Botswana, declaratory judgements have been given to highlight the unlawfulness of citizenship laws which discriminate against women.

In other situations, the very process of bringing a case, regardless of the outcome, may raise public awareness of an issue and create public support for change in a law or practice. An official remedy may not even be needed in such cases.

Example: The Rana Plaza Cases
After the Rana Plaza tragedy, where a textile manufacturing complex burned down, killing over 1000 Bangladeshi workers, several cases have been brought against large clothing companies for neglecting for their workers’ health and safety. While many cases have failed due to complex subcontracting arrangements that big companies hide behind, the publicity and outrage created by the cases have led some companies to adjust their manufacturing practices.

(viii) Restoring Victims to the Position They Were in Before the Violation

Achieving this may involve a combination of financial compensation, and orders by the court for restoration of the victims’ property/rights.

Example: Sawhoyamaxa v Paraguay
In Paraguay, after an indigenous community had been removed from their land, the Inter-American Court on Human Rights ordered the government to return their lands, pay compensation, and provide essential services as they re-established themselves on their land. This effectively returned them to their original position.

This will depend on the wrong that has been committed and the suffering it has created.

(ix) Making Amends for Irreversible Loss Suffered by Victims

Where the victim cannot be restored to their original position, financial compensation will be the most appropriate remedy.

Example: Sanchez v Guatemala
The Inter-American Court on Human Rights ordered Guatemala to pay $8,000,000 to compensate victims for the wrongful killing of civilians during the civil war.

(x) Seeking Accountability and Acknowledgement of Wrongdoing

Declaratory judgements can provide for accountability/acknowledgement by making a wrong public. Courts can also make orders requiring investigations into violations, or even setting up public inquiries to provide for accountability.

Example: Velasquez v Guatemala
In Guatemala (in relation to the abduction and murder of a person by armed forces), the Inter-American Court on Human Rights ordered the government to begin investigations, and publicly publish their finding.

Compensation can provide a form of accountability, by required a government/company to pay for their wrongs.

(xi) Ending Systemic Violations

A simple injunction may be too narrow to deal with widespread violations carried out on a regular basis. Ending systemic violations may require structural remedies, such as the ordering of law reform, policy changes, or encouraging greater social change.

Example: Mabo v Queensland
In Australia, High Court rulings recognising the native land rights of indigenous groups forced the government to change the laws regarding land title, overturning decades of legalised discrimination.

Sometimes, there may be no court remedy that can provide the solution you want. If this is the case, consider alternatives to bringing a legal case. For example:

• If you want to achieve a compromise with another party, entering into negotiations may be better.
• If solving your issue requires greater social or political change, you may need to launch a campaign outside the courtroom to change public opinion.

Practical Tips
Legal action can be used alongside other methods of promoting change like negotiations and campaigning. All can be useful tools in the broader project of enforcing one’s rights.

If you are bringing a case as a group or with an organisation, there may be differences between;

• What the person or organisation making the legal complaint hopes to achieve (e.g. a change in the law); and
• What the victims want (e.g. compensation for the wrong suffered)

It’s important to discuss and resolve any differences like this at an early stage, before you bring a legal case (for more information, see How do I Manage my Group?).

Once you have chosen what remedy you want to get, this can influence:

• How the case is argued
• Who the case is brought against
• On whose behalf the case is brought.

Arguments must be prepared to convince the court that the remedies asked for should be granted:

• If you want to get individual remedies (e.g. compensation for a victim), your argument should focus on the harm/loss of the victim. You will need evidence not only to show a violation, but you must show that it has caused damage and what the level of damage is.
• If the objective is to challenge systematic violations, your argument should focus on the broader impact of an unjust law. An individual story can be an example of this, as can statistical evidence.

It is especially important to prepare good arguments if you are asking for a particularly strong or unusual remedy. For example, asking for simple declaration that the law was broken will not require as strong arguments as asking, the court to order the state to change a policy or law.

When preparing a case, it is important to have a strategy that ensures a remedy granted by the Court is actually implemented. This means identifying the persons or institutions responsible for the implementation of the remedy and working out ways of ensuring that they act appropriately.

For further information, see How Can I Enforce a Court Order?