The procedure

January 9, 2018 | Author: Anonymous | Category: Social Science, Psychology, Conformity
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Complaint procedures within the UN human rights system

A Quick Guide by the International Service for Human Rights

Complaint procedures within the UN human rights system



Human Rights Council: the 1503 procedure



Special Procedures of the Human Rights Council



Treaty monitoring bodies



Commission on the Status of Women

Human Rights Council: the 1503 procedure

The 1503 Procedure   

Economic and Social Council (ECOSOC) resolution 1503 (1970); It is the oldest human rights complaint mechanism in the United Nations system. This is a confidential procedure that enables individuals, groups and NGOs to inform the UN of any human rights situation that may reveal: A consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.

 

This is not a procedure for dealing with individual complaints, and complaints do not have to be submitted by the victims themselves. This procedure has universal applicability – the State concerned does not have to have ratified the human rights treaties. It refers to common standards for all states (UDHR).

Criteria of Admissibility 

The test for admissibility: reasonable grounds to believe that a consistent pattern of gross violations exists.



The contents of the communication must not be inconsistent with the principles of the UN Charter, the UDHR and other HHRR instruments.



Anonymous communications or those based on media stories are not accepted.



Communications must describe the facts, the purpose of the petition and the rights that have been violated.



Communications must not contain insulting language against the state.



Domestic remedies must have been exhausted before a communication is considered. (Unless ineffective or unreasonable long).

Submitting a complaint Individuals, groups or NGOs who claim to be victims of, or who have direct knowledge of violations may submit a communication under the 1503 Procedure. What material should be included in it?    

The relevant facts in as much detail as possible, providing names of alleged victims, dates, locations and other evidence. A group or series of cases. The procedure mainly examines patterns of violations rather than individual violations. Specific evidence. It is not sufficient to rely on mass media reports. Outline standards allegedly violated.

How does the 1503 Procedure work? Initial Screening

WG on Communications

WG on Situations

Commission on Human Rights

1. Initial Screening    



The complaint is initially examined by the secretariat; Dismissal is manifestly ill-founded; The complainant will be informed if their complaint passes initial screening; The communication is sent to the government concerned for comments and passed for consideration to the Sub-Commission Working Group on Communications; After that point, you will not be informed of any further progress of the complaint, nor will you receive information about the government response.

The fact that a communication is being transmitted to the State and acknowledged to the complainant does not imply any judgment on the admissibility or merits of the communication.

2. The Working Group on Communications 

The Sub-Commission on the Promotion and Protection of Human Rights designates a Working Group every year from among its members.



It meets annually immediately after the SubCommission (usually August) to examine communications received from individuals and groups alleging violations and any government responses.

The procedure The procedure of the Working Group: • • •

is confidential. is conducted on the basis of written material only, neither party appears before it. where the Working Group finds reasonable evidence of a consistent pattern of violations, the matter is referred to the Working Group on Situations.

Most complaints fail to proceed past this point. Governments are informed of the decisions of the Working Group but you are not.

3. The Working Group on Situations  

The Working Group on Situations meets one month prior to the Commission on Human Rights (February). it examines the situations forwarded to it by the WG on Communications and decide whether or not to refer any of these situations to the Commission.

Possible outcome: 1. 2. 3.

The WG forwards a situation to the Commission with specific recommendations for action; It may decide to keep a situation pending before it; It decides to close the file.

The proceedings are confidential. The decision is only communicated to Governments, not complainants.

4. The Commission on Human Rights 

The Commission on Human Rights (CHR) meets in March and examines communications forwarded by the WG on Situations.



The government concerned is invited to answer questions.

The CHR may recommend one of the following actions: 1. 2. 3. 4.

Discontinue the case with no further monitoring; Keep the situation under review; Keep the situation under review and appoint an expert to collect more information and report back to the Commission; Discontinue the case and place it under a public procedure (1235);

The chair of the CHR makes a public statement listing the States under consideration and the States that are no longer subject to scrutiny.

Confidentiality 

You must state your name in the complaint, but you can request that it be supressed if the complaint is forwarded to the Government concerned.



All material provided by individuals and Governments, as well as the decisions taken at the various stages of the procedure, remain confidential and are not made public.



This also applies to situations that have been discontinued, unless the Economic and Social Council or the government concerned want the dossier to be made public.



However, you can disclose the fact that you have submitted a complaint under the 1503 Procedure.

How does the 1503 Procedure work? Initial Screening

Manifestly Ill-founded: END

WG on Communications

No reasonable evidence: END

END

WG on Situations Under review

Commission on Human Rights

END Under review

Independent expert

1235

A case study: Saudi Arabia In 1996 Amnesty International (AI) submitted a communication about violations in Saudi Arabia. The content of the communication indicated that gross and systematic violations took place in the country. 

The communication alleged that many people are detained indefinitely on political grounds, that torture in the form of amputations and floggings continue to be carried out and people continue to be executed without a fair trial.



The Sub-Commission forwarded the communication to the Commission who invited the Saudi government to respond.



The government responded with a 17 page report. It alleged that AI’s figures were inaccurate and that the report was exaggerated, inaccurate and extreme.

Case study (cont’d) In 1998, the UN Commission met in a private session under the 1503 procedure to decide the case. The 2 reports were the main document for the consideration of the case. The Saudi representative indicated the Government’s faith in human rights and its confidence in the UN mechanisms. It also indicated that the government was considering contributing more funds to the UN Fund for the Victims of Torture and that it had tried to improve the judicial system. A succession of speakers from different countries welcomed the governments cooperation and recommended that the 1503 examination of the situation in Saudi Arabia be discontinued. The Commission discontinued the case without providing reasons or details of the debate. 

Disadvantages of the 1503 Procedure •

You will not be informed of the decisions taken at the various stages of the process, or the reason for them.



You will not be informed of the relevant Government’s responses to your complaint.



There is no provision for urgent measures of protection.



It is a very political procedure. It was designed to ensure that governments would not lightly be accused of violations.

Advantages of the 1503 Procedure •

No need to check a country’s ratifications of human rights treaties.



Enables to pay attention to situations that otherwise would be ignored.



Once you have submitted a complaint, you do not have to respond again at a later point with further information – the initial complaint is sufficient.



Your complaint can reach the highest level of the United Nations human rights machinery, the Commission on Human Rights. It may thus result in very significant pressure being brought to bear upon a State to change laws, policies or practices that infringe internationally guaranteed human rights.

Where to send Communications?

o

Communications should be sent to: Treaties and Commission Branch Office of the High Commissioner for Human Rights United Nations Office at Geneva 1211 Geneva 10, Switzerland Fax: (41 22) 9179011 Email: [email protected]

Special Procedures of the Human Rights Council

Complaints to Special Procedures



SPs can respond to information received from NGOs, individuals and others about human rights violations;



The SP contact the government concerned requesting clarifications and action (protection, investigation)



Governments are requested to communicate the results of investigations and actions taken.

Complaints to Special Procedures 

Not a judicial procedure, but a tool to seek clarification and action on alleged violations;



Confidential until the publication of the annual report to the Commission;



Potentially powerful tool: - highlight pattern of violations in country; - draw attention of international community; - trigger response from national authorities; - offer protection to individuals.

Individual communications 

Sources of information: State authorities, NGOs, UN agencies, the media, individual HRDs, etc.



What does the SR do when information is received? 

Determines if it falls within the mandate;



Try to determine the credibility of the source and the probable validity of the allegation;



Contact the government concerned through “urgent action” or “allegation” letters.

Individual communications A) “Urgent action” letters 

Used to communicate to the government information about a violation that is allegedly ongoing or about to occur.



Objective: to ensure that State authorities are informed quickly so that they can intervene to end or prevent the violation.



Examples: arbitrary detention, death threats.

Individual communications B) “Allegation” letters 

Used to communicate information about a violation that has already occurred and whose effects can no longer be changed.



Objective: to ensure that the authorities are informed and take action to investigate and prosecute those responsible for the violation.



Example: killing, police brutality.

Individual communications 

The SP can send joint letters with other mandate holders whose mandate is involved in that particular case.



How much time does the process take?  



In most serious and urgent cases, contact with the State authorities may be made within a few hours from the receipt of information. If insufficient information is sent to the SR, the process may take up to several days.

Confidentiality:   

The identify of the author is kept confidential; The identity of the victim is revealed to the State authorities; Communications sent to governments are kept confidential until the annual report of the SR to the CHR is published.

How to submit a case to the Special Procedures 

Essential information: 1) Identification of the author of the complaint (person or organisation); 2) Identification of the victims(s); 3) Detailed description of the violation, including date and place; 4) Identification of the perpetrator(s); 5) Action taken by the authorities, if any;



NO exhaustion of domestic remedies.



NO ratification of any treaty by the State.

How to submit a case to the Special Procedures Contact details to send communications: Office of the High Commissioner for Human Rights United Nations Office at Geneva 1211 Geneva 10, Switzerland Fax: (41 22) 9179006 Email: [email protected]

Further information:  

OHCHR Fact Sheet No. 7 and 27; OHCHR website (www.ohchr.org).

Treaty monitoring bodies

Individual Complaints to Treaty Bodies 

Admissible under HRC, CERD, CAT, CEDAW (and CMW);



Competence of the committee to receive individual complaints: –

Provided for by an optional protocol: ICCPR and CEDAW; 



Provided by the treaty: CERD, CAT, CMW 



To file a complaint it is necessary that the State concerned has ratified it.

The procedure is optional. States need to make a declaration recognizing the competence of the committee.

With regard to CMW, the 10 declarations required for the procedure to become operative have not yet been made. Thus, the procedure is not yet operative.

Individual Complaints to Treaty Bodies 

General admissibility criteria: – – – – – –



Individual, or group, victim of a violation, or acting on behalf of a victim; No valid reservations or derogations have been made; Domestic remedies have been exhausted, unless unreasonably prolonged or unlikely to bring effective relief; The communication is not anonymous, although it is possible to request that the victim’s identity is not passed on to the relevant state party; The complaint must not be abusive or incompatible with treaty provisions; The same matter is not currently being adjudicated by another international body;

Further conditions: – –

Under CERD and CAT: time-limit; Under CAT and CEDAW: case inadmissible if already decided by another international body (not only if pending) as well as if it appears manifestly illfounded.

Individual Complaints to Treaty Bodies 

Interim measures may be adopted in case of urgency;



Request of information and State replies;



Burden of proof: no general rule; decisions are based on the strength and substantiation of allegations;



Decision: the committee wil adopt non-binding views including recommendations for future actions by the state party; –

Measures beyond a victim-specific remedy may also be recommended to avoid recurrence of the violation; for example, amendments to legislation.

Individual Complaints to Treaty Bodies 

Follow-up: request to submit info on implementation within 3/6 months;



Confidentiality/publicity: although the process is confidential, the committees’ views are published the annual report to the GA.



Choose the best forum: – – – –



Admissibility requirements (time limit); Previous case law on similar cases; Interpretation given in general comments; Backlog in the examination; Expertise of the committee (multiple violations).

Individual Complaints to Treaty Bodies 

The complaint does not need to take any particular form, although a model is available at OHCHR website;



What information should the complaint include? – – –

– – – – –



Treaty body to which the complaint is addressed; Personal information (complainant, victim) and State party concerned; All facts on which the complaint is based, as complete as possible; Steps taken to exhaust domestic remedies; Whether the case is pending before another international body; Where the violation took place, and what provision has been violated; All useful/necessary supporting documents (e.g. domestic decisions on the case, copies of national legislation, etc.); Providing translation in the Secretariat’s working languages (EN, FR, ES, RU, CH) will speed up the process;

Impact of the Views beyond the individual case: –

Example of HRC Toonen case.

Belarus and TB complaint procedures

Belarus

HRC (OP)

CERD

CAT

CEDAW (OP)

CMW

1992

1969

1987

2004

/

34

/

/

(as of Aug 2006): 21 pre-adm. 0 adm. 3 discont. 10 violat.

/

Comparison and choice 1503 -Political

-Systematic

Special Procedures -Dialogue

and gross

-Individual

Treaty bodies -Quasi

violations

judicial

-Individual

violations

violations -Admissibility

-Confidential

criteria at all stages

-NO

admissibility criteria

-Confidential

until annual report

-Admissibility

-Confidential

-NO

ratification

-NO

ratification

-Ratification

-NO

acceptance

-NO

acceptance

-Acceptance

-Very

long and uncertain

-Very

quick reaction

criteria until decision

relevant treaty

individual complaint procedure -Long

process

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