In his book Effective Domestic Remedies and the European Court of Human Rights Michael Reiertsen analyses the legal content and scope of the right to an effective remedy as set out in Article 13 of the European Convention on Human Rights (ECHR), a much-overlooked feature of the Convention and jurisprudence of the European Court of Human Rights.
The discussion and exploration of the jurisprudence surrounding Article 13 is exhaustive. Following an introductory chapter setting the scene for what is to follow, Reiertsen explains his selection of Article 13 case law on which the book is based. In Chapter 4 he sets out an historical and statistical overview explaining how Article 13 was included in the Convention and what was the intention of the drafters. In short, the Court was primarily seen as a tool to strengthen the existing domestic review mechanisms, making it surprising, as the author notes, that Article 13 received so little attention in its early case law.
Reiertsen is right to observe that the Court has provided little justification for reinforcing the scope and application of Article 13 in recent years, apart from references to the principle of subsidiarity and the case load of the Court. General principles are indeed hard to extract. However, this does not deter the author who, in Chapter 3, explores what a requirement of ‘effectiveness’ means in the abstract. A number of purposes, which may be considered intrinsic in the wording, are set out, including correcting injustice, individual prevention, restorative justice, subsidiarity, rule of law, general deterrence, retribution, restitution and accountability. These are then applied to the jurisprudence of the Court and the conclusion is reached that most find some reflection although, as the author notes, the Court has consistently rejected retribution as a goal and pays no attention to reconciliation or restorative justice.
In Chapters 6 to 11 the author explores in detail how Article 13 has been applied in practice. These chapters are invaluable for those trying to understand the finer details of how Article 13 works and what States must provide at the national level in order to satisfy the Court that everyone whose ECHR rights have, arguably, been violated has enjoyed an effective remedy. Against this list, it is possible to test various human rights reform proposals of the current UK government, including its Bill of Rights Bill, although it is important to note that such a claim can only be made at the international level given that Article 13 has not been incorporated into UK national law by the Human Rights Act 1998.
In Chapters 12 and 13 the author provides an interesting contextual reading of the Article and makes a number of conclusions and recommendations in the hope of contributing to the understanding of Article 13 and how it could be construed, applied and further developed by the Court. Chapter 12 is a little difficult to follow—a number of factors are put forward which may influence how Article 13 could be construed and applied by the Court, including the principles of subsidiarity, rule of law and the margin of appreciation. However, the author does not adopt, or recommend, an overarching theoretical framework to guide interpretation. Nevertheless, it is difficult to argue with his conclusion that the Court should make more use of Article 13 and that, when considering its application, it should engage in more principled and abstract reasoning, which, amongst other things, would provide a much stronger signal to States intent upon altering an already fragile framework of national ECHR protection.
This is an important book, filling a gap in the literature around a Convention right that has not quite yet had its time. It will be of particular interest to academics, postgraduate and research students, and the numerous government staff in ECHR Contracting States working on ensuring that human rights protection is guaranteed at the national level in the most effective manner.
