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					THE UNITED NATIONS TREATY-
         BASED BODIES
Individual Complaints Procedures
Office of the High Commissioner for Human Rights
                      (OHCHR)
      Petitions Unit, Geneva, 8 January 2010
                 Anita Trimaylova
Expected outcome of session
Develop skills to use treaty bodies’ individual
complaints procedure by NGOs of persons with
disabilities Complaint presentation guidelines
• Procedure, interim measures of protection
• Follow Up
• Complaints submitted to the CRPD in 2009
• Jurisprudence on disability issues
• Advantages
•Q&A
                       OHCHR                      2
Which treaty bodies?
• Human Rights Committee (CCPR)            • Covenant on Civil and Political Rights
                                               & Optional Protocol

• Committee on the Elimination of Racial   • Convention on the Elimination of All
   Discrimination (CERD)                       Forms of Racial Discrimination &
                                               article 14

• Committee Against Torture (CAT)          • Convention against Torture and Other
                                               Cruel, Inhuman or Degrading
                                               Treatment or Punishment & article 22

• Committee on the Elimination of          • Convention on the Elimination of All
   Discrimination Against Women                Forms of Discrimination Against
   (CEDAW)                                     Women & Optional Protocol

• Committee on the Rights of Persons       • Convention on the Rights of Persons
   with Disabilities (CRPD)                    with Disabilities & Optional Protocol




                                       OHCHR                                           3
Individual complaints procedures
not yet in force
• Committee on Migrant Workers       • International Convention on the
   (CMW)                                  Protection of the Rights of All
                                          Migrant Workers and Members of
                                          Their Families & article 77 (10
                                          declarations required)
• Committee on Economic, Social      • Covenant on Economic, Social and
   and Cultural Rights (CESCR)            Cultural Rights (10 ratifications of
                                          the Optional Protocol required)

                                     • International Convention for the
• Committee on Enforced                   Protection of All Persons from
   Disappearances (CED)*                  Enforced Disappearance & article
                                          31 (20 ratifications for the
                                          Convention required)




                                  OHCHR                                          4
The procedure
                   Who can complain?
•   Any individual under the jurisdiction of a State
    party that has accepted the competence of the
    Committees + groups of individuals (CERD +
    CRPD only)
                 Against which country?
•   Must have accepted the competence of the
    Committees – optional procedure
              What can be complained of?
•   Violations of rights in treaties
•   Certain conditions must be fulfilled

                         OHCHR                         5
How to submit a complaint


Written procedure
  (confidential);
  there are no oral hearings

Allege specific
  violations of treaties
                      OHCHR    6
Principal admissibility criteria
• HRC
     – OP & Rule 96
•   CAT
     – Art. 22 CAT & Rules 98 and 107
•   CERD
     – Art. 14 CERD & Rules 83 and 91
•   CEDAW
     – OP & Rule 56(3)
•   CRPD
     – OP

                           OHCHR        7
Principal admissibility criteria (2)
• Must relate to a SP which has accepted
  the competence of the relevant Committee
• Communication must not be anonymous
• Individual must be a “victim” of a violation
  of a right protected by the relevant treaty




                     OHCHR                   8
Principal admissibility criteria (3)

• Admissibility ratione temporis / continuing
  violations
• Adequate substantiation of alleged
  violation
• No abuse of the right of submission
• Admissibility ratione materiae
• Time limits (CERD – 6 months)
                     OHCHR                      9
Principal admissibility criteria (4) =
“same matter”
• Art. 5(2)(a) OP to CCPR: the same matter is
 not being examined under another procedure
 of int’ investigation or settlement – see
 reservations
• Art. 4(2)(a) OP to CEDAW: the same matter
 has not already been examined by the
 Committee, has not been or is not being
 examined under another procedure

                     OHCHR                  10
Principal admissibility criteria (5) =
“same matter”
• Art. 22(5)(a) CAT: the same matter has
 not been, and is not being, examined
 under another procedure of int’
 investigation or settlement

• Would include: ECtHR, IACtHR, ACHPR


                   OHCHR                   11
Principal admissibility criteria (6)

Exhaustion of domestic remedies
• Obligation to exhaust

• EXCEPT if:
  – Remedies not available or effective
  – Exhaustion of remedies unduly or
    unreasonable prolonged

                     OHCHR                12
Submission of complaints –
practical hints
• Be complete in the submissions
  – Court decisions with translations
  – Affidavits/testimonies: facts
  – No originals!
• Provide power of attorney (free form)
• Submit in the working languages
  – EN, FR, SP, RU + AR/CH for CEDAW
• Ask for interim measures?
                       OHCHR              13
Interim Measures of Protection
• Basis for competence
   – Rule 92 HRC Rules of Procedure
   – Rule 63 CEDAW Rules of Procedure
   – Rule 108 CAT Rules of Procedure
   – Rule 94(3) CERD Rules of Procedure
   – Article 4 of OP-CRPD
• Aim: to avoid “irreparable damage” to the petitioner
• E.g. risk of imminent execution, extradition, deportation
= request it in submission / give details


                           OHCHR                          14
Procedure upon receipt of new
communication
• Secretariat may request further information –
    enclose full contact details
•   Special Rapporteur for new communications (&
    I.M.) decision
•   Case is registered – number given
    – Petitioner is informed
    – All documents transmitted to SP with request for
      comments within time limit


                           OHCHR                         15
State party response & comments

• Two months from date of letter to
  challenge admissibility of communication
• Six months to present comments on
  merits & admissibility (three months for
  CERD)
• Can request lifting of interim measures
• All submissions transmitted to author for
  comments (2 months deadline)

                    OHCHR                     16
State party challenge to
admissibility
• The Special Rapporteur determines
  whether or not to grant “the split”
• Both parties informed
• If split is granted
  – Admissibility will be examined first
  – If admissible, both parties will make
    comments on merits
  – Committee will determine merits

                       OHCHR                17
State party challenge to
admissibility (2)
• If split is not granted
  – State party invited to make comments on
    merits
  – Petitioner can answer those observations
    (within 2 months)
  – Any petitioner’s comments sent to SP for
    information
  – Committee takes a decision on admissibility
    and merits together

                      OHCHR                       18
(In)admissibility Decisions
• The Committees/WGs examine cases in light of
    all the admissibility criteria
•   If one admissibility criteria is not fulfilled: the
    case is declared inadmissible
                    END OF THE CASE
•   Possible review?
•   If all admissibility criteria are fulfilled, the
    Committee proceeds on the merits

                            OHCHR                         19
Decisions on the Merits
•   Based on all information before the Committee
•   Transmitted to parties & Made public
•   Individual Opinions / Decision making process
•   If violation found
    – Decision indicates remedies
    – SP has to inform the Committee of steps taken to give effect to
      the decision
    – Special Rapporteur on Follow Up / missions

• Legally binding?
• Possible review?

                                OHCHR                                   20
Summary of Procedure
                     INDIVIDUAL COMMUNICATIONS


                   CONSIDERATION OF ADMISSIBILITY

     ADMISSIBLE                                         INADMISSIBLE


                     CONSIDERATION OF THE MERITS        END OF CASE



            VIOLATION                    NO VIOLATION



   SP MUST OFFER EFFECTIVE REMEDY AND INFORM COMMITTEE OF STEPS TAKEN



            FOLLOW UP UNTIL SATISFACTORY RESOLUTION


                              OHCHR                                     21
Special Rapporteur for Follow
Up to Views
• Mandated to monitor compliance by SP
  with recommendations
• Meets, where appropriate, with SP reps
  and discusses options for compliance
• Presents an annual FU progress report to
  Committee and chapter to AR to GA
• Maintains a dialogue/pressure with SP

                    OHCHR                    22
Admissibility criteria under OP-
CRPD
• Communication shall concern a State party to the OP-CRPD (article 1, paragraph 1);
• Communication from or on behalf of individuals or groups of individuals (article 1,
    paragraph 2) – NEW

The Committee shall consider a communication inadmissible when (article 2):

• The communication is anonymous;
• The communication constitutes an abuse of the right of submission of such
    communications or is incompatible with the provisions of the Convention;
•   The same matter has already been examined by the Committee (NEW) or has been
    or is being examined under another procedure of international investigation or
    settlement;
•   All available domestic remedies have not been exhausted. This shall not be the rule
    where the application of the remedies is unreasonably prolonged or unlikely to bring
    effective relief;
•   It is manifestly ill-founded or not sufficiently substantiated; or when
•   The facts that are the subject of the communication occurred prior to the entry into
    force of the present Protocol for the State Party concerned unless those facts
    continued after that date.

                                         OHCHR                                         23
Communications submitted to the
CRPD in 2009
As of 8 January 2010, a total of 29 communications received from 12
                                countries

• None of them was registered by the CRPD, as all 29 communications do not
   satisfy one or more preliminary criteria:

- State against which the communication was submitted did not ratify
the OP-CRPD – 17 (59%)
- Non-exhaustion of domestic remedies – 7 (24%)
- State against which the communication was submitted did not ratify the OP
CRPD + non-exhaustion of domestic remedies – 2 (7%)
- Other (request for info, lack of legal standing to represent a victim,
simultaneous examination under another procedure of international
investigation or settlement, the object of communication falls outside the scope
of the CRPD) – 3 (10%)


                                     OHCHR                                    24
Human Rights Committee
Jurisprudence (1)
• ► In Communication 616/1995, Hamilton v. Jamaica, the HRCtte adopted
  an interesting and robust view on the application of article 10 of the
  Covenant (treatment of detained persons with humanity) to disabled
  prisoners. The case essentially involved the treatment and conditions of
  confinement of a disabled prisoner on death row. He was paralysed in both
  legs and experienced extreme difficulty in slopping out his cell and climbing
  onto his bed. It was argued before the HRCtte that his rights under articles
  7 and 10 of the Covenant had been violated because the prison authorities
  had failed to take his disability into account and make proper arrangements
  for him. In essence, he argued that the absence of “reasonable
  accommodation” of his condition violated the ICCPR. The HRC agreed and
  stated that:
• 8.2…the conditions described…are such as to violate the author's right to be
  treated with humanity and with respect for the inherent dignity of the
  human person, and are therefore contrary to article 10, paragraph 1.
• 10. In accordance with article 2, paragraph 3 (a), of the Covenant, the
  State party is under an obligation to provide Mr. Hamilton with an effective
  remedy, entailing compensation and placement in conditions that take full
  account of his disability. The State party is under an obligation to ensure
  that similar violations do not occur in the future.
                                    OHCHR                                    25
Human Rights Committee
Jurisprudence (2)
• ► In Communication No. 606/1994, Clement Francis v Jamaica , the complainant
    was convicted of murder in 1980 and sentenced to death. He remained on death row
    until murder was reclassified as a non-capital offence in 1992. Among other things,
    he complained that his mental health had substantially deteriorated as a result of the
    stress of waiting for the execution of the death penalty and in the absence of
    appropriate psychiatric attention. It was alleged that the circumstances of his
    incarceration therefore amounted to cruel, inhuman or degrading treatment and a
    lack of respect for his dignity contrary to article 7 and article 10, paragraph 1. To a
    certain extent, the essence of the complaint was that the conditions of confinement
    caused the onset of a disability. In its Views, the HRC found, inter alia, violations of
    article 7 and article 10, paragraph 1. It stated that:
•   Whereas the psychological tension created by prolonged detention on death row may
    affect persons in different degrees, the evidence before the Committee … indicates
    that his mental health seriously deteriorated during incarceration on death row.
    Taking into consideration the author’s description of the prison conditions, including
    his allegations about regular beatings inflicted on him by warders, as well as the
    ridicule and strain to which he was subjected during the five days he spent in the
    death cell awaiting execution in February 1988, which the State party has not
    effectively contested, the Committee concludes that these circumstances reveal a
    violation of Jamaica’s obligations under articles 7 and 10, paragraph 1, of the
    Covenant.

                                          OHCHR                                           26
Advantages of UN complaints
procedures
• Procedure
  – No time limit for bringing complaints (except for
    CERD)
  – Less complex e.g. no requirement of legal
    representation
  – Faster
  – Interim measures
• Substance
  – Domestic remedies rule less strict
  – Jurisprudence can be more advantageous on similar
    issues

                          OHCHR                         27
The Role of NGOs/Civil Society

• In the Committees’ view, crucial role
• Assist individuals in bringing complaints
• Represent them before the Committees
• Can and should monitor compliance by SP
  with recommendations
• Disseminate the jurisprudence


                    OHCHR                 28
QUESTIONS




            OHCHR   29
For further information
Petitions Unit, OHCHR
Palais Wilson
CH-1201 Geneva, Switzerland
Fax: + 41 22 917 9022
tb-petitions@ohchr.org
Fact sheet 7 on www.ohchr.org
http://www.unhchr.ch/tbs/doc.nsf
http://sim.law.uu.nl/SIM/Dochome.nsf?Open

                     OHCHR                  30

				
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