1. Overview of the Human Rights Committee
a. Special Rapporteur on New Communications
b. Case Rapporteur
c. Working Group on Communications
d. Special Rapporteur on Follow-up
2. Individual Complaints Procedure of the Human Rights Committee
a. Registration of the Communication and Preliminary Procedures
i. Submission of the Communication
ii. Registration of the Communication
iii. Transmittal to the State Party
iv. Interim Measures
b. Admissibility and Submissions from the Parties
c. Determination of the Merits and Follow-up
3. Examples of Human Rights Committee Cases
1. Overview of the Human Rights Committee
The Human Rights Committee is responsible for receiving and considering complaints under the Optional Protocol to the International Covenant on Civil and Political Rights (CCPR). The Committee is composed of 18 experts, nominated and elected by states parties. Members serve in their personal, independent capacity.
A Committee member may sit in judgment of Optional Protocol cases even though his or her state of nationality has not ratified the Optional Protocol.
The Committee follows specific procedures in the consideration of individual communications. The individual communications procedures originate from three sources: the provisions of the Optional Protocol itself, the Rules of Procedure that have been adopted formally by the Human Rights Committee, and the Committee's customary practices.
To help maintain impartiality in the complaint process, the Rules of Procedure of the Human Rights Committee provide that members shall not take part in the deliberation of a case involving the state party in respect of which they were elected, in which they have a personal interest, or in which they have been participated in any way in the making of any decision in the case before it reached the Committee (Rules 90 and 91).
The Committee meets three times per year, with each session being three weeks in duration. The meetings are held in Geneva (July and October/November) and in New York (March). Although most meetings are public, when the Committee considers individual communications, the meetings are "closed" to the public (Optional Protocol, article 5). The summary records of closed meetings remain confidential.
Generally, the Human Rights Committee tries to make decisions on communications by consensus, although formal decisions can be made by a majority. In cases where no consensus can be reached, or where a member wishes to explain his or her position in greater detail, the individual members may express their concurring or dissenting Views which are appended to the Committee's decision.
a) Special Rapporteur on New Communications
The Human Rights Committee has appointed, from among its members, a Special Rapporteur on New Communications. This is a position that was created by the Committee in 1989 to assist both the Secretariat and the Committee in dealing with cases at the preliminary stages. The responsibilities of the Special Rapporteur on New Communications are to:
- decide on the registration of cases
- decide whether additional information is to be requested from the author prior to the Committee's consideration of the case
- decide whether the examination of admissibility should be separated from that of the merits
- request states parties to take interim measures where they are warranted (Rule 92).
b) Case Rapporteur
Case rapporteurs are appointed at every session. They prepare draft recommendations on each case for the Working Group. The case rapporteur gives instructions to the Secretariat how the decision is to be drafted and presents the draft to the Working Group and to the full Committee.
c) Working Group on Communications
The Committee has established a Working Group on Communications which meets for one week prior to every session and reviews all of the draft decisions prepared by case rapporteurs. The Working Group makes recommendations to the full Committee. The five-member Working Group can declare cases admissible if all five members agree. The Committee as a whole also normally decides on the admissibility and merits of a communication together; in exceptional circumstances, the Working Group may decide to address admissibility separately.
d) Special Rapporteur on Follow-up
The function of the Special Rapporteur on Follow-up of Views was established in 1990. The Rapporteur monitors compliance with the Committee's recommendations. The Rapporteur may visit the state party concerned to further the goal of implementation. The latter, however, has rarely occurred in practice. The Rapporteur also conducts private meetings with state party representatives on an ad-hoc basis to encourage compliance with the Committee's Views.
See flow chart of the CCPR Complaints Procedure.
2. Individual Complaints Procedure of the Human Rights Committee
The basic process for submitting a communication found in the previous section of the website should be read together with the more specific information provided in relation to the Human Rights Committee.
a) Registration of the Communication and Preliminary Procedures
i) Submission of the Communication
A communication should be submitted to the Petitions Team at UN Secretariat of the Office of the High Commissioner for Human Rights, Geneva in writing, by letter, fax or email. Fax or email communications must be confirmed by signed copies received by the Secretariat. Communications cannot be anonymous. The state that is the subject of the communication must be clearly identified. Although there is no mandatory format for communications, the use of model communication forms created by the Committee can streamline the communication process, and is advisable.
Of the thousands of general letters of complaint that arrive at the UN each year, only a small fraction are channelled to the Human Rights Committee by the UN secretariat. If the communication is not expressly addressed to the Human Rights Committee, it may not get there, or its receipt may be delayed.
Where the communication does not provide the necessary information in order for it to be registered, the secretariat may send a standardized form to the author and request that the communication be resubmitted providing all the information indicated on the form. Since the Committee relies heavily on the facts in each particular case, it is important to set out all the relevant information at the outset.
At a minimum the following information should be included:
- the identity and contact information of the victim,
- the state against which the communication is directed,
- the provisions of the Covenant alleged to have been breached,
- all the relevant facts together with any supporting documentation (such as a statement signed by the victim, witness statements, court documents),
- steps taken to exhaust local remedies, or evidence why local remedies are ineffective, unavailable, or unreasonably prolonged,
- information regarding whether this matter is before any other procedure of international investigation or settlement,
- the remedy requested.
Other important points:
The Human Rights Committee's working languages are at present English, French, and Spanish. Although communications theoretically can be registered in any of the official languages of the UN (Arabic, Chinese, English, French, Russian, Spanish), there will likely be significant delays in the processing of the case if the author uses a language other than English, French or Spanish. Cases received in Russian are sent to translation once initially processed, sometimes at a considerable delay. Cases received in Arabic or Chinese are normally returned to the author who is requested to resubmit in English, French or Spanish. If a communication is received in a non-UN official language, the author will normally receive at the outset a letter requesting the re-submission of the communication in English, French or Spanish. If it happens that a communication has been submitted in an additional language which a UN secretariat member servicing the Committee understands, it may be processed initially without translation. Authors are strongly advised to submit communications in English, French or Spanish.
There is no time limit within which to bring a claim, but very long delays in bringing the claim may be considered by the Human Rights Committee to be an abuse of the right of submission. The Human Rights Committee requires that a 'convincing' or 'reasonable' explanation be given to justify a significant delay in bringing a communication in order to avoid the finding of an abuse of the right of submission.
The UN does not provide legal aid or financial assistance to authors, nor does the Optional Protocol require that states parties provide legal aid where an individual wishes to submit a communication. Authors should determine whether or not their own domestic legal aid system voluntarily provides for the possibility of legal aid.
However, NGO's and other legal professionals are allowed to represent the victims. Victims are encouraged to seek assistance from NGO's or legal professionals, or to appoint them as representatives, so as to focus their claims and facilitate the Committee's examination.
Withdrawal of the Communication
A author may subsequently withdraw his or her communication.
The Committee normally accepts the withdrawal, but if there is an indication there might have been external pressure to do so, the Committee will try to ascertain whether withdrawal was the result of undue pressure by the state or other threats.
All documents relating to a communication are confidential and the Human Rights Committee does not publicize cases, except by the eventual release of a decision. However, the author and the state party may make public 'any submissions or information bearing on the proceedings', provided that the Committee does not expressly ask them to refrain from doing so. At all times the Committee may decide that certain elements of the case must remain confidential. This relates especially, but not exclusively, to the identity of the author.
Decisions concerning inadmissibility, discontinuation or merits (Views) will be made public. The names of the authors and/or victims will be disclosed, unless the Committee decides otherwise, at the request of the authors. A discontinuance may be made public by number without divulging the name of the author or victim. Decisions concerning interim measures are also made public. With respect to follow-up information concerning the Committee's Views received from the author or the state party, everything is in principle within the public domain.
ii) Registration of the Communication
All communications are initially reviewed by the UN Secretariat servicing the Committee prior to their registration. The secretariat must bring to the attention of the Committee all communications which are, or appear to be, submitted for the consideration of the Committee. In practice, the Secretariat may wait to do so until further information is requested and obtained from the author.
The Secretariat may ask the author for clarification regarding any or all of the following issues (Rule 86):
- Name, address, place and date of birth, occupation of the author and the verification of the author=s identity
- The state against which the communication is directed
- The object of the communication
- The precise CCPR provision which is being invoked
- Clarification about the facts of the claim
- Information about which local or domestic remedies have been used
- Information about other international procedures that have been used.
- Medical or other records where relevant.
The Secretariat will indicate a time limit for replying to such requests (Rule 86), but strict sanctions are not applied when this limit is not met. Failure to provide adequate information necessary to register a case, may result in a communication not being registered. A decision to register a case may be made pending the response to questions for additional information.
Once a communication appears to contain sufficient information required for registration, the Secretariat forwards a summary to the Special Rapporteur on New Communications who will decide whether or not to register the case. If the Special Rapporteur determines that there are genuine issues as to a violation of the CCPR, the case will be registered and added to the Committee's list of registered cases. The Special Rapporteur will not register cases that manifestly do not meet the admissibility criteria set out in the Optional Protocol and elaborated in the Rules of Procedure of the Committee.
If the Special Rapporteur finds that there are no real issues in the case or that it clearly does not meet admissibility criteria, then the communication is not registered and the author is informed of the decision not to register. Generally, this ends the case. However, a decision of the Special Rapporteur not to register a case is not final in the sense that the author of the communication may insist that the case be registered and the practice is for the Special Rapporteur to comply. In these circumstances, however, the Special Rapporteur will usually send the communication directly to the Committee with a recommendation that the case be declared inadmissible. The recommendation not to address the case on the merits will normally be adopted by the Committee.
In order to expedite the registration process, authors should consider submitting a summary of their case (limited to about 5 pages) along with the full argument and supporting documentation.
iii) Transmittal to the State Party
If the Special Rapporteur believes that the communication is likely to be admissible, then he or she will transmit the case to the state party and request submissions on both the issues of admissibility and merits. A state party may object to the two issues being determined simultaneously and may request that the issue of admissibility be dealt with separately and resolved by the Committee, before a consideration of the merits. The Special Rapporteur has authority to separate the two issues. The Special Rapporteur may refuse a request by the state party to separate the admissibility and the merits and insist on a state party response to both. The normal practice of the Committee is to consider the issues simultaneously in order to avoid delay. Most states parties agree to the Committee's request to consider the two issues together.
iv) Interim Measures
The Special Rapporteur on New Communications will also review the communication to decide whether or not to make a request for interim measures. Interim measures are measures taken in the interim between the receipt of the case and its final determination. The Special Rapporteur may decide to ask a state to take urgent measures in order to avoid irreparable damage to the author prior to a final decision being taken. These types of requests are made in emergency situations (for example, the claimant is on death row awaiting imminent execution, or faces imminent expulsion or extradition to a state where he may be tortured). The Human Rights Committee expressly states that these requests do not mean that the communication will result in a finding of a violation by the state of Covenant rights. In many of the cases the Committee eventually finds no violation. The point of interim measures is to avoid harmful and irreparable outcomes prior to the Committee's ability to reach a final conclusion.
Interim measures may be requested before or after a decision has been made about the admissibility of the case. In some cases, interim measures may be requested from a State even in order to allow a person to complete the filing of a claim before the Committee.
b) Admissibility and Submissions from the Parties
After a communication is registered, the case is handled by the Secretariat until it is ripe for decision. Only when the case has been fully prepared will a Committee member be appointed as a Case Rapporteur. The Rapporteur's task is to study the case and all supporting documents closely and provide the Working Group, and later the Committee, with a draft decision of the case on both admissibility and merits. The Rapporteur usually sits on the Working Group, but if he or she is absent, another member of the Working Group may present the Rapporteur's draft. The Working Group does not always agree with the Rapporteur's recommendations and may make a different recommendation to the plenary, which in turn, is free to disagree with the Working Group's recommendation. The Working Group on Communications will make an initial evaluation of admissibility. It is possible for the Working Group to recommend to the plenary that a case be dismissed as inadmissible without requesting comments from the state party.
A frequent ground of inadmissibility is Article 2 of the Protocol which states that authors must "claim that...their rights enumerated in the Covenant have been violated". The Rules of Procedure interpret this to mean that an individual must claim "in a manner sufficiently substantiated, to be a victim of a violation...of the rights set forth in the Covenant." In other words, a case must sufficiently substantiate that a right has been violated for the purposes of admissibility. In practice this criterion serves a similar function to the "manifestly ill-founded" criteria of the European Convention on Human Rights system.
Another important ground of inadmissibility, the requirement that domestic remedies be exhausted, is frequently misunderstood. The exhaustion of domestic remedies condition may be satisfied, not by the existence or use of domestic proceedings, but by the fact that they are ineffective, unavailable, or unreasonably prolonged. According to the jurisprudence of the Human Rights Committee the rule of exhaustion of domestic remedies "applies only to the extent that those remedies are effective and available" and not "unreasonably prolonged".
In the case where admissibility and merits have been separated, and the Working Group unanimously decides that the case is admissible, it will inform the state party of its decision and the state party will then be required to make submissions on the merits. The Working Group is empowered to declare communications admissible if all five of its members unanimously so decide. A recommendation on inadmissibility, however, must be reviewed by the Committee in plenary. A formal written decision will be adopted declaring the communication inadmissible, including the reasons for such a decision. This ends the case.
If the Working Group cannot reach unanimity on the admissibility of the case, it will forward the case to the Committee as a whole, which will then decide the issue. If at this stage the Committee considers the case to be inadmissible, this will be a final decision. A formal written decision will be adopted declaring the communication inadmissible, including the reasons for such a decision. This ends the case.
Once the state party is sent a written request from the Committee on both the admissibility of the communication and on the merits, article 4 of the Optional Protocol requires that the state party respond within six months. The author is subsequently sent the state party's response and given the opportunity to respond to the state's submissions within two months. Subsequently, the author's comments are sent to the state party and further submissions are permitted. The Committee's practice permits the exchange to continue, but it does not encourage a limitless number of rounds. After the first round each party's submission is transmitted to the other party "for information". Of course, the other party may - and often does - react to the submission, thus resulting in a back and forth exchange of submissions. The Committee, however, determines at some point that it has enough information to proceed to a decision on the merits. The Committee will not rely on one party's information unless the other party has received it and has had the opportunity to comment thereon. Time limits for states and for authors are not strictly adhered to, which tends to lengthen significantly the overall process. The Committee may, in the future, change its practice and demand that the parties respect the deadlines or risk that their submission will not be accepted.
If the state party does not submit replies, then it will be perceived to have accepted the admissibility of the case. On the merits, the absence of a state response is viewed very negatively by the Committee, and may result in a finding of a violation of Covenant rights.
c) Determination of the Merits and Follow-up
When all arguments on both the admissibility and merits of the case have been submitted, the submissions are considered by the Working Group on Communications. The Working Group will make recommendations to the Committee as to an appropriate disposition of the case. The Committee as a whole will then take the final decision. A decision that the communication is inadmissible ends the case and the Committee does not go on to consider the merits of the communication. If the Committee decides that the communication is admissible, then it will go on to make a decision on the merits of the communication and will find either that there is, or is not, a violation of a treaty right.
The final decision may set out a specific remedy, but often leaves the determination of the remedy to the state party. The Committee may recommend, for example, compensation, amending legislation, a new trial, commutation of a sentence of death, or release from police custody. Authors of communications should include a request for a specific remedy in the initial complaint, although the Committee may choose to leave the matter open to the state party, and simply recommend that the state party grant an "appropriate remedy".
If the Committee finds that a person's rights have been violated, the Committee will request the state to inform them within 90 days (from the date of the "note verbale" transmitting the decision) of the remedy provided to the victim.
The Committee has appointed one of its members as Special Rapporteur on Follow-up (of Views). The Rapporteur on Follow-up is responsible for monitoring the responses of states parties to the Committee's request for information on the remedy provided. He or she will also meet at each session with representatives of selected states parties that have not responded positively to the Committee's request. The Annual Reports of the Committee contain information from the Rapporteur on state responses and these meetings. On one occasion the Rapporteur has visited a state party in the course of follow-up activities, although their report on the mission was not made public.
Other important points:
The Human Rights Committee publishes an Annual Report which contains information on the number of cases pending before it and all the Views and inadmissibility decisions adopted during that annual reporting cycle. The Committee will also indicate the number of cases it has found admissible or has discontinued during its sessions that cycle.
Before publication of the Annual Report, the final Views on individual communications may already be posted online.
Reservations to the CCPR or the Optional Protocol may substantially limit the ability of an individual to successfully make a case against a particular state party. It is therefore necessary to check the reservations made by the state party.
At the same time, some reservations may not be legitimate, that is, they may be incompatible with the object and purpose of the treaty. In these cases, it is possible that the treaty body will refuse to apply the reservation in a manner which would limit the application of the CCPR or the Optional Protocol in the context of a communication. Where reservations would potentially affect the communication, it is also important to check prior comments of the Committee which may have been made on the compatibility of the reservation with the object and purpose of the treaty. The Human Rights Committee has directly told some states parties in the course of considering state reports their views as to whether a reservation is incompatible with the object and purpose of the Covenant.
Reservations to the Optional Protocol concerning the prior examination of the complaint by another international procedure of investigation or settlement may or may not preclude the Committee's competence, since the Covenant may provide for rights not justiciable under the other procedure. Moreover, if a case is declared inadmissible by another body on the grounds of late submission, it is not deemed to have been examined and the reservation would not apply.
Members of the Committee can append their individual concurring or dissenting opinions to the Committee's Views. Sometimes these opinions are more revealing of the Committee's actual rationale than the majority opinion, which may have been reduced to a brief common denominator so as to reach a compromise on the reasoning or the result. Individual opinions are a source of legal reasoning that may point to the direction of the Committee's jurisprudence in future cases.
3. Examples of Human Rights Committee Cases
The Human Rights Committee has developed a body of case law which interprets and applies Covenant rights. The prior decisions of the Committee are a valuable tool in advancing a case, since the Committee will attempt to be consistent in its interpretation of the substantive rights in the CCPR.
Below is a sample of the types of cases decided by the Human Rights Committee. This list is not exhaustive, and the Committee is continually being asked to make decisions in different types of cases. Under the Optional Protocol, the Committee considers violations of the provisions in Part III of the Covenant (articles 6-27), whereas the provisions in Parts I and II are deemed general undertakings by states parties, not directly invocable under the Optional Protocol.
Right to self-determination (article 1)
The Human Rights Committee has decided that the right to self-determination is not "justiciable". In other words, it cannot be the subject of a claim or decision by the Committee, on the ground that this is a group right and that an individual cannot claim to be a victim of a violation of such a right. On the other hand, self-determination issues are often discussed in the context of minority rights. (article 27)
Right to a Remedy (article 2)
States parties must ensure the rights in the Covenant to all persons under their jurisdiction. This right cannot be invoked autonomously, or on its own, by an individual. Nevertheless, the Committee frequently makes findings of violations of "article 14, in conjunction with article 2", or of "article 26, in conjunction with article 2", when it wants to emphasize that the state has failed to ensure a remedy for a violation of Covenant rights.
Equality of men and women (article 3)
The Committee has made findings of violation of article 3 in conjunction with article 26, but not of article 3 alone.
Derogation (article 4)
States may derogate in times of national emergency, and only for limited periods of time, from certain Covenant rights. The UN Secretary General must be officially notified of a derogation.
Most favourable law and practice (article 5)
A state party must apply the most favourable law to an individual and cannot misuse the Covenant to limit enjoyment of rights under national law.
Right to Life (article 6)
Killings during police action - The Human Rights Committee has considered many cases where the killing of individuals by police or other state actors could not be justified as self-defence or for any other legitimate purpose. Even if killings by state actors are considered to be lawful actions under the domestic law of that state, the Human Rights Committee will scrutinize the situation in order to determine whether the killings were proportionate to the requirements of law enforcement. The Committee takes the position that if killings are lawful, where the use of force is disproportionate, the domestic law has not adequately protected the right to life, and the victims' right to life has therefore been violated.
Killings while in detention - Many cases have been brought to the Committee involving deaths while in detention by police or in prisons. When the Human Rights Committee finds that the use of lethal force cannot be justified under the circumstances, a violation of the right to life will be found. States are said to have a duty to protect persons in their custody and take effective measures for that purpose.
Duty to investigate killings by state actors - States not only have a duty to protect the right to life, they also have a duty to investigate who is responsible for the death of an individual, for example, unexplained deaths in police custody or in prisons, and to pay compensation to the family of the victim. A similar duty of investigation exists in cases of 'disappearances', where there is evidence to suggest state involvement. States have an obligation to punish the perpetrators of extrajudicial or illegal killings by state actors. If domestic legislation does not provide for adequate penalties, this will be held to be a failure to protect the right to life.
Attempted killings - Attempts on the life of an individual, even if unsuccessful, carried out by state agents also entail a violation of article 6.
Killings or attempted killings by non-state actors - Killings or attempted killings by non-state actors, such as paramilitary forces, whose actions cannot be directly imputed to the state, do not constitute a violation of article 6. They may, however, entail a violation of article 9, paragraph 1, security of the person.
Death penalty cases - The CCPR does not prohibit the imposition of the death penalty, although this is prohibited by the Second Optional Protocol which must be separately ratified to take effect with respect to a particular state. Nevertheless, the Human Rights Committee has found that the imposition of the death penalty entails a violation of the right to life in certain circumstances, including:
- The death penalty may only be imposed for the "most serious crimes" (article 6(2)). The Committee has limited the meaning of "most serious crimes" to crimes such as those that involve the infliction (or attempted infliction) of death or serious injury to other human beings. Capital offences, according to the domestic laws of some states parties, such as drug offences, robbery, crimes against property, apostasy or adultery, do not justify the imposition of capital punishment, and the imposition itself would entail a violation of article 6.
- Mandatory death sentences for certain crimes without consideration of mitigating circumstances
- The imposition of the death penalty against minors (under 18) or pregnant women is prohibited by article 6(5) of the CCPR.
- The Human Rights Committee has held that if the method of execution may amount to a violation of article 7 (torture, cruel or inhuman punishment) extradition is prohibited.
- Early jurisprudence of the Committee established that extradition to a country which still has the death penalty is not a violation of the right to life, even if the extraditing country has itself abolished capital punishment. However, more recent jurisprudence has evolved: for countries that have abolished the death penalty, the Committee has interpreted the CCPR to impose the obligation not to expose a person to a real risk of application of the death penalty, by either deportation or extradition.
- In many cases, the Human Rights Committee has held that where a trial resulting in the imposition of the death penalty does not meet the requirements of a fair trial under article 14, a violation of the right to life also occurs by virtue of the imposition of the sentence regardless of the actual execution. In these cases, it is not sufficient for individuals to allege their innocence; they must establish that they have had an unfair trial.
Duty to prevent deaths - States must adequately train, equip and regulate police forces in order to protect the life of its citizens during police action. States are responsible for the lives of those persons they hold in detention. Therefore they have a positive duty to ensure that detained people do not die while under detention, and to take measures to avoid and prevent suicide.
Although states are not responsible for killings by non-state actors, a state will be held to violate the right to life if they do not take adequate measures to prevent and punish killings by private actors. This duty also requires criminalizing all forms of killings including the deliberate refusal of help to persons in serious danger.
Abortion and Euthanasia - The Human Rights Committee has not examined cases of abortion or euthanasia on the merits under the article 6 of the Optional Protocol, although it has considered the failure of medical authorities to permit a therapeutic abortion in the context of article 7. In that case, the Committee decided that the refusal to permit a therapeutic abortion, which resulted in pain and mental suffering, constituted a violation of article 7 of the CCPR. In its concluding observations it has criticized states for laws permitting euthanasia. On the other hand, it has not held abortion to be a violation of the right to life and has criticized certain anti-abortion legislation.
Freedom from Torture and Cruel, Inhuman or Degrading Treatment or Punishment (article 7)
Torture by state agents - Numerous cases have been successfully brought concerning torture, cruel, inhuman or degrading treatment or punishment. Apart from the actual physical infliction of pain, the infliction of mental distress or fear (for example, mock executions, threats against family, failure to provide family members with information concerning the fate of a detained person or location of their body), humiliation, and the refusal of medical care in some circumstances can also amount to torture. In the case of the families of detainees, the failure of the authorities to advise the family of the fate of the detainee, the failure to produce their body or advise where they are buried, can also be a violation of the family members’ article 7 rights.
Female Genital Mutilation – The failure of a state to protect women and girls from being subjected to female genital mutilation amounts to prohibited treatment under article 7. Similarly, states who return a person to a country where they run a real and personal risk of being subjected to female genital mutilation have been found to violate articles 7 and 24(1). The fact that there may be formal laws prohibiting this practice is insufficient; the Committee will look at the facts in each case, including whether the practice is in fact practiced with impunity.
Time spent on death row/Death row phenomenon - The Human Rights Committee does not recognise the time spent on death row in itself as a violation of article 7. A violation of article 7 has been found in rare cases involving very prolonged periods of detention on death row that were attributable to the state, and in which there were harsh living conditions.
Death Cell Detention - Distinct from death row detention is the detention of a person in a death cell immediately before execution. If a person is detained in such a cell for an unreasonably long period, this can violate article 7.
Method of execution of death penalty - The Human Rights Committee has accepted that certain methods of execution can amount to torture, cruel, inhuman or degrading treatment and that others do not. For example, death by gas asphyxiation is a violation of article 7, whereas death by lethal injection does not violate article 7. Public executions or lapidation (stoning) may amount to degrading treatment or punishment, but no such cases have yet been decided.
Extradition and non-refoulement/return - States are not allowed to extradite or return persons to another country where they run the risk of being tortured. The issue of non-refoulement arises with respect to asylum seekers whose applications for refugee status have been unsuccessful. Although the Committee cannot decide the asylum question, it has said that the Covenant requires the protection of an individual from the risk of torture. (To date, most of these cases have been brought to the Committee Against Torture.)
Medical experimentation - One author has claimed that he was subjected to medical and pharmacological experiments during detention, and that he was subjected to torture and ill-treatment. A violation of article 7 was found without, however, elaborating on the alleged medical experimentation.
Refusal by medical authorities to permit therapeutic abortions – In one case, the Committee found that the refusal to permit a therapeutic abortion, which resulted in pain and mental suffering constituted a violation of article 7.
Corporal Punishment - Corporal punishment is prohibited under article 7, and criminal penalties involving corporal punishment, such as whipping, have been held to violate article 7.
Conditions of Detention - There have been cases where article 7 has been violated because of appalling prison conditions. This may relate directly to the physical conditions (such as very confined spaces, too many persons in one cell) or the way the detainee is treated. A person should be allowed to have sufficient contact with other human beings and be afforded a minimal level of respect by the guards. Note that poor living conditions in themselves do not necessarily amount to a violation of article 7, but rather fall under article 10.
Incommunicado Detention - Incommunicado detention of a person or denial of contact with anyone outside of the prison (including family, friends or lawyers) can amount to cruel and degrading treatment if it is for prolonged periods of time. Very long periods of solitary confinement (several years) have also been found to breach article 7.
Duty to investigate, prosecute and punish violators of article 7 - There is a duty upon the state to investigate all allegations of torture, cruel, inhuman or degrading treatment and provide for adequate penalties against the perpetrators. A state must also provide remedies and compensation to victims of torture.
Prohibition of Slavery, Servitude and Forced Labour (article 8)
So far, no cases have been successfully brought under the prohibition of slavery. Attempts have been made to subsume the right of conscientious objection under the prohibition of forced labour, but this argument has not been successful.
Liberty and security of the person, including the prohibition of arbitrary arrest or detention (article 9(1))
Security of the person - The right to security of the person is independent from the issue of liberty of the person and has to be guaranteed as such. Persons who are in real danger must be protected by the state. For example, a state was found to violate article 9 because it failed to take appropriate measures to ensure the security of a person who had received death threats. Arguably, if the state is aware of serious situations of domestic violence and abstains from interfering, this will also be a violation of article 9.
States must also protect individuals against threats made by officials. Consequently, a state was held to have violated article 9 by not investigating the shooting from behind of a person during an arrest.
Liberty of the person - The right to liberty does not only apply to cases of criminal detention. Liberty also includes detention in the context of immigration, psychiatric institutions and military discipline. Other kinds of limitations on the freedom of movement, such as the prohibition to leave a certain geographical area do not amount to a deprivation of liberty in this sense (see article 12).
The legality or arbitrariness of the deprivation of liberty - There must be a legal basis for any deprivation of liberty, which may not be arbitrary in form or application. The Human Rights Committee has held this requirement to mean that detention must not only be lawful, but also necessary and reasonable. Even if the initial arrest is not arbitrary or unreasonable, the duration of the detention subsequently can be arbitrary. Hence, cases where persons were kept in prison after they had finished their sentence were found to be violations of article 9. If the purpose of the detention is illegal or arbitrary, even very short periods of detention are prohibited.
The detention of undocumented aliens and persons seeking refugee status is not in itself arbitrary, but the detention must be justified and the duration of the detention cannot be unreasonably long.
Detention in a mental institution has also been before the Human Rights Committee as a claim under article 9, although the Committee found no violation of article 9 in the particular case. The detention was justified on the basis of several reports of psychiatrists.
Detention of persons because of the danger they pose to society has not as such been found to be a violation of article 9.
Rights upon Arrest or Detention (articles 9(2), 9(3), 9(4))
Right to be informed of the reason for the arrest (at the time of arrest) (article 9 (2)) - Providing reasons for arrest is not identical to informing the accused of the precise criminal charges. However, article 9(2) requires that the accused also be "promptly" informed of any charges against him or her. Failure by the state to provide reasons for any deprivation of liberty is a violation of article 9 (2). Even if no charges have already been brought, pending the police investigation, people held in remand have the right to know why they are kept in custody. These reasons must be given immediately, although the shortest period which has been found to be a violation was seven days. However, in cases where the author was undoubtedly aware of the reasons (for example, because he or she was present during a house search and drugs were found), it is accepted that he or she is aware of the reasons, even if the charges still have to be specified.
Cases have also been brought because the arrested person allegedly did not understand the language and no competent interpreter was provided.
Right to be brought promptly before a judicial officer (article 9(3)) -Although there is no specific time limit that is deemed unacceptable, the Committee has found delays of five days or more to be in violation of article 9 (3). The independence and impartiality of the "judicial officer" has also been challenged and found to be a breach of article 9 (3) where the arrested person was only brought before the public prosecutor, and not an impartial judicial officer.
Trial within a reasonable time or release (article 9(3)) - Article 9(3) refers to the period of detention of an accused before a criminal trial. Article 14(3) (c) refers to the period of time between the laying of the charges and the trial, regardless of whether the person is in detention or not. Violations of article 14(3)(c) will also be violations of article 9(3) where the accused is in pre-trial detention.
Although the reasonable time requirement differs from case to case, (depending, for example, on the seriousness of the crime and the likelihood of escape or danger to society), states must give adequate reasons for long delays. Detention without bail must be justified, for example, when it is feared that the person will tamper with the evidence, intimidate witnesses or escape the jurisdiction. Budgetary restrictions, or administrative arguments, have not been accepted by the Committee as sufficient justification. The behaviour of the accused, or the conduct of the accused's defence, will be taken into consideration to determine the reasonableness of the duration of detention.
Right to take proceedings before a court to have the lawfulness of an arrest or detention determined without delay (article 9 (4)) - This is a right of the detained person to initiate proceedings (habeas corpus). If the detainee fails to seek review of detention or arrest, the state is not responsible to initiate such proceedings.
Review of lawfulness of detention to be determined without delay (article 9(4)) - The delay experienced awaiting a judicial decision on the lawfulness of detention will be judged on a case-by-case basis. Periods of delay of as little as three days have been found to violate article 9(4), but in another case, a delay of three months after an appeal was brought was not found to be incompatible in itself. It is the state's responsibility to give reasons for the delay.
Detainees have the right to have the lawfulness of their detention reviewed on a regular basis.
Effective exercise of the right of review - The Committee has linked the right to review of detention under article 9(4) with the right to have legal representation (article 14). However, it has been held that there is no violation of the CCPR where a detainee was moved to several different places of detention and was thus forced to seek different legal representatives each time.
Persons held incommunicado cannot exercise their right to review, so prolonged periods of incommunicado detention amount to a breach of article 9(4). For example, five days of incommunicado detention has been held to be a violation.
Review before a "court" - Situations where a detained person only has access to a real court on appeal violates article 9(4) because this article requires access to a court without delay. A prior appearance before another authority only delays this right.
Military discipline - Disciplinary sanctions against military personnel depriving them of their liberty to an extent that cannot be considered to fall within the normal requirements of military discipline also falls under the requirement of article 9(4). Review of such sanctions by a superior officer does not fulfil the requirement of a court review.
A court must exercise real review - When the review of the court is found to be only formal, with no real possibility for the judge to determine the lawfulness of the detention, the state has not guaranteed the right to review.
Right to compensation for unlawful detention (article 9(5))
When it is established that the detention was unlawful, the individual has a right to receive compensation. This applies to all aspects of the rights guaranteed under article 9.
Rights of prisoners (article 10)
Right to adequate food, basic medical care and decent sanitary facilities - The Committee has held that prisoners have a right to adequate food, basic medical care and decent sanitary facilities, as well as minimal recreational facilities (for example, being allowed out of the cell for a minimum period of time each day). It is unacceptable under article 10(1) for a prisoner to become ill due to the prison conditions and especially the lack of medical care. Prisoners also have a right to have a bed or mattress to sleep on. The Committee has accepted the UN Standard Minimum Rules for the Treatment of Prisoners (Adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977) as the minimum standard, and will consider lower standards of treatment or detention to be in violation of article 10(1). It makes reference to these Rules in decisions under the Optional Protocol.
Incommunicado Detention - Very long periods of incommunicado detention have been found to amount to violations of article 7 (torture). However, shorter periods of incommunicado detention can amount to a violation of article 10(1). Periods of incommunicado detention as short as 15 days have been held by the Committee to violate article 10(1). There is no set minimum or maximum time period which will amount to a violation. The Committee makes its decisions on a case-by-case basis.
Prisoners have a general right to communicate with family and friends under article 10(1), and only justifiable restrictions are allowed.
Time spent on death row/Death Row Phenomenon - The Committee has not found the time spent on death row in itself to amount to a violation of article 10.
Segregation of accused from convicted prisoners - The requirement to segregate convicted from unconvicted persons is considered to be met when accused persons are kept in a separate part of the building. Occasional contacts with convicted persons does not violate article 10, paragraph 2.
Segregation of juvenile prisoners from adults - A juvenile means a person below the age of 18. A case on this issue has not yet been decided.
Freedom of movement (article 12)
Freedom of movement within the territory of a state - Restrictions to enter one's home province, district or village are prohibited, unless justified for public order.
Asylum seekers who are lawfully within the territory - The state can restrict freedom of movement, but only on a case-by-case basis. Blanket restrictions on refugees' freedom of movement are prohibited.
Freedom of choice of residence - The Committee has held that this right may be restricted to certain ethnic or minority groups. The issue has been discussed mostly in the context of state party reports, but in one case the Committee recognized the right of a member of an indigenous group to live in a particular locality.
Freedom to Leave - In several cases it has been determined that the state has an obligation to provide its citizens with passports, even if they reside outside of the country. However, exceptions have been found to include situations where the citizen had not performed required military service. The Committee has also indicated that the right of women to leave the country may not be restricted by the requirement of the consent of her husband.
Right to enter one's own country - This right, stipulated in paragraph 4 of article 12, applies not only to nationals of a country, but also to persons who have "special ties" to the country and cannot be considered mere aliens. This right means that a person may not be expelled from a country if he or she has a claim that it is "his own country", even if technically he or she is an alien.
Rights of aliens (article 13)
The Committee has confined the rights under article 13 mostly to procedural guarantees. Moreover, the Committee has shown great deference for states' invocation of security reasons. There is no right to asylum under the Covenant, but a person has a right to due process in determining whether he or she should be expelled.
Right to a fair and public hearing (article 14)
Procedural rights - The right to a fair and public hearing is in essence a procedural one. The Committee examines the procedural fairness of the trial only, not the fairness of the outcome. Complaints about bias of judges, or an incorrect evaluation of the facts, have usually not been accepted by the Committee. In the context of a right to a fair and public hearing, the Committee will not review the facts of a case and decide for itself what occurred (in place of an existing determination of the facts by a domestic court). In exceptional cases, a domestic court's decision has been corrected because it was blatantly irreconcilable with proven facts, but such cases remain exceptional.
Complaints about procedural fairness generally must have been raised in the original trial court (or court of "first instance"), or on appeal, in order for the Committee to consider the issue of procedural fairness on the merits.
The right to a public hearing has not been interpreted as always giving a right to an oral hearing.
Civil/non-criminal proceedings (article 14(1)) - The right to a fair and public hearing applies not only to criminal cases, but also to non-criminal proceedings. The concept of a 'suit at law' is based on the nature of the right in question, rather than the status of the parties and includes civil claims between private parties as well as claims against public authorities. But the alleged violation must be imputable to the state party and not to a private adversary in a civil dispute.
Competent, independent, and impartial tribunal - In clear cases of government influence over the judiciary, the Committee has found that an individual was denied access to an independent court. Trials by anonymous or "faceless" judges are also a violation of article 14.
Right to be presumed innocent until proven guilty (article 14(2)) - This right does not apply in civil proceedings.
Right to be informed of the nature and cause of the charge (article 14(3)(a)) - As soon as the authorities decide to prosecute someone, they must formally inform the individual of the law and the alleged facts.
Right to have adequate time and facilities to prepare a defence (article 14(3)(b)) - The Committee examines the facts of each case and the behaviour of the author to determine whether sufficient time was available to prepare a meaningful defence. When the state withholds certain evidence or information, this will violate the right to adequate facilities to prepare a defence. However, there is no right to have all documents translated into the defendant's language when he or she has the assistance of a lawyer who understands the language of the proceedings and the documents.
Right to be tried without undue delay (article 14(3)(c)) - The Committee proceeds on a case-by-case basis, and will take into account the nature of the alleged crime and the behaviour of the author as well as the state. There is no set time that is considered either to be reasonable or unreasonable. In some cases, the Committee expected the author to prove that the trial could have been held earlier, whereas in other cases it has asked the state to explain why there was a long delay. Economic and financial difficulties do not excuse long delays, nor does judicial backlog.
Right to be present at the trial and defend oneself; and to have legal assistance, in certain circumstances, paid for by the state (article 14(3)(d)) - In absentia trials are permitted if the defendant was duly notified and informed about the trial but failed to show up. In such cases there may be a right to demand a retrial.
It is impermissible to force a defendant to take a specific lawyer, or choose among a limited list, when the defendant has indicated that he or she was appointing a specific lawyer of his or her own choice. Individuals also have a right to defend themselves without assistance of a lawyer.
The right to legal aid is not absolute and applies only in criminal cases.
The right to have legal aid extends beyond the trial to the appellate level. Cases have been successfully brought where convicted persons wanted to challenge the validity of their conviction on appeal or before their constitutional court. The Committee has not applied the right to legal aid to appeals that clearly have no merit, although this does not apply to capital punishment cases.
If the state appoints a free lawyer for the accused, that lawyer must be qualified and competent to handle the case.
Right to examine hostile witnesses, and obtain and examine own witnesses (article 14(3)(e)) - It is for the author to establish that this right was violated by a refusal of the courts to allow an examination of a certain witness.
Right to have the free assistance of an interpreter, if necessary (article 14(3)(f)) - This right has been interpreted narrowly. If the defendant is capable of understanding the language of the trial and can express himself or herself in that language, there is no right to have an interpreter.
Right to have a conviction reviewed by a higher tribunal (article 14(5)) - This right applies only to persons convicted of a crime. The Committee has interpreted the right of review to mean a full review. It requires that there be the opportunity for an appellate court to re-evaluate both the evidence and the law, and also include a review of the sentence. The admissibility of new evidence at appeal may be restricted, however, when the evidence was already available during the trial at first instance.
Right to compensation in case of miscarriage of justice (article 14(6)) - This applies only when a conviction has been reversed, or a person convicted has been pardoned, on the ground that a newly discovered fact showed there was a miscarriage of justice.
Right not to be tried twice for the same offence (article 14(7)) - The prohibition on trying a person twice for the same crime has not been applied to trials that take place in different states.
Non-retrospectivity (article 15)
An accused person shall benefit from an amendment to the law providing for a lighter penalty. Article 15 only applies to penalties and not to other measures that may be imposed by a court, such as mandatory supervision. Parole conditions may be considered as penalties.
Recognition as a person before the law (article 16)
Enforced Disappearance – A violation of article 16 may occur where a person is arrested by authorities, and then intentionally removed from protection of the law for a prolonged period of time, with no news of their fate or investigation into their disappearance.
Interference with privacy, family, correspondence and reputation (article 17)
Privacy - The Committee has not given an expanded definition of what is meant by "privacy", but it has been held to include aspects of one's identity such as one's name and the right to change it. The right to privacy has been held to protect burial sites of indigenous peoples.
Protection of family and home - These are concepts that have to be interpreted on the facts of each case and taking into consideration the prevailing concepts of the culture in question. The workplace has been included under the concept "home". The Committee takes a broad interpretation of the concept of family so as to encompass the large meaning prevalent in certain cultures.
Protection of Correspondence - Censorship of correspondence must be prohibited by law and any interference with correspondence must be subject to sufficient legal safeguards. Prisoners have a right to correspond with family and friends, under reasonable supervision.
Protection of Honour and Reputation - The state must ensure that its laws provide sufficient means for a person to defend himself or herself against unlawful attacks. This also means that when someone's honour is attacked by a lawful exercise of authority (for example, disclosure of certain information during official proceedings), this will not violate article 17. Libel campaigns by the media at the instigation of the government are prohibited.
Right to privacy - sexual orientation - The Committee has condemned domestic laws which criminalize homosexuality.
Protection of Data - Although no cases have been decided on this issue, the Committee has indicated that collection and storage of data must be regulated by law, and that individuals must have access to the information that is kept about them and have a right to correct inaccuracies.
Freedom of thought, conscience and religion (article 18)
Although the Committee has interpreted the freedom of thought and religion broadly and has included atheists, it has shown little willingness to allow exceptions from legal obligations on the basis of religious prescriptions. Limitations based upon public health and safety, public order and public morals have been successfully used to refuse such exceptions. In one recent case, however, the mandatory requirement of the removal of a Sikh turban for identity photographs for a residence permit was found to have violated article 18. Limitations on the manifestation of religion are also possible in certain conditions.
Right to Conscientious Objection - The right to conscientious objection has generally not been recognized as such. However, when a state does recognize such a right, the Committee will determine whether there are too many obstacles to effectively exercise it. The failure to provide alternatives to compulsory military service may constitute a violation of article 18. Moral or religious objections against the use of violence have not been accepted as a ground to refuse paying part of one's taxes (for example, destined for the defence budget).
Religious education - Compulsory religious or moral education does not violate article 18 as long as it is not doctrinal and provides for a pluralistic view.
Freedom of opinion and expression (article 19)
The freedom to hold an opinion is absolute, but the freedom to express that opinion is not. Both verbal and non-verbal expression is protected. The CCPR itself provides limits, and the Committee has also expressed its views on the limits of expression. For example, demolishing property during a protest is not protected expression. Limitations are permissible in as far as they are prescribed in law to protect the rights and reputation of others, national security, public order, public health or morals, but only if the restrictions are proportionate to the value that is sought to be protected.
In this context, the Committee does not espouse one standard of morals or values, but examines the prevailing opinion in the state in question. Thus, in some countries but not in others, the Committee may accept bans on pornography as acceptable limits to expression.
The Committee has also decided several cases involving the prohibition of languages other than the official language as a violation of the freedom of expression.
Prohibition on hate speech (article 20)
The right of freedom of expression does not extend to persons inciting racial hatred, antisemitism or to Holocaust deniers.
Right to peaceful assembly (article 21)
Article 21 includes the right to assemble for political demonstrations. Peaceful assembly may be subject to reasonable restrictions, but permission to demonstrate may not be denied arbitrarily.
Freedom of association (article 22)
The right to form associations (including political parties, non-governmental organizations, trade unions and sporting clubs) is not absolute. Limitations for reasons of national security, public order or other grounds may be acceptable. The Committee has upheld a state ban on neo-fascist parties as a reasonable limitation.
The Committee has not extended article 22 to include a right to strike. It has not had the opportunity to decide whether forced membership in an association can be compatible with article 22.
Protection of the family (article 23)
The Committee has adopted a broad, culturally sensitive definition of "family".
Family unification - With respect to spouses of different nationalities, a state cannot unreasonably, or on discriminatory grounds, interfere or restrict access of foreign spouses to each other. Deportation which results in the splitting of a family is not in itself contrary to article 23. In extraordinary circumstances the Committee has decided that the removal of family members would be a violation of article 23.
Equality of spouses during marriage and at its dissolution - The Committee has been very reluctant to scrutinize the judgments of domestic courts in these matters, on the grounds that they involve very personal matters and factual evaluation of the circumstances in each case.
Child protection proceedings – The Committee will generally defer to the findings of domestic courts in cases of the termination of parental custody and access. However, in exceptional cases, the Committee has reviewed the sufficiency the legal process that took place to terminate family bonds.
Children's rights (article 24)
The CCPR does not contain a definition of "child". The Committee has left it to states to determine the majority age in each country, except in matters of criminal law and the age of criminal liability.
A violation of article 24 was found where a state refused to give legal standing in its domestic courts to a grandmother, in proceedings involving her orphaned and abducted grandchild. A minor seeking asylum may be detained while his or her case is being examined.
Political rights and participation in public life (article 25)
One-party political systems have been found to violate article 25. The rights under article 25 to participate in public life are not absolute, however, and restrictions are allowed as long as they are not discriminatory, or unreasonable and based on objective criteria. Nevertheless, the Committee has held that the right to equal access to public service was violated when public servants were dismissed on the basis of their political activity.
Equality and Freedom from discrimination (article 26)
Article 26 includes several concepts, including equality before the law, equal protection of the law, the prohibition of discrimination, and equal and effective protection against discrimination.
Article 26 obligates states to ensure that legislation applies to all people in a non- discriminatory manner. This obligation applies to all the rights and protections that a state affords in its laws. If a author can establish that a right exists in domestic law, he or she can bring a claim for violation of article 26 if there is any discrimination in the application of that law. Article 26 is an autonomous right to equality and non-discrimination, not limited to the rights enumerated in the Covenant. Hence, article 26 can extend to civil and political rights beyond the Covenant such as the right to property, and to economic, social and cultural rights, including social security. Different treatment has been found to violate article 26, for example, in a case in which some categories of persons received less social security benefits on grounds which the Committee held were arbitrary, and a case in which compensation for confiscated properties was not disbursed in an equitable manner. The latter occurred in the context of post-Communist restitution legislation containing conditions for restitution or compensation which the Committee found to be arbitrary.
Article 26 specifies that race, colour, sex, language, religion, political or other opinion or social origin, property, birth or other status are prohibited grounds for discrimination. The Committee decides on a case-by-case basis what "other grounds" also fall under article 26, or the meaning of "other status". It has found a number of additional grounds.
There have been clear-cut cases where the legislation itself has discriminated, for example, against women, and violations of both articles 3 and 26 have been found. Other cases have been more subtle, in that the law was not discriminatory on its face, but its application was discriminatory.
According to the Committee, the right to equality before the law and to equal protection of the law without any discrimination does not make all differences of treatment discriminatory. A differentiation will amount to prohibited discrimination where it is not based on reasonable and objective criteria.
The Committee is of the opinion that affirmative action is sometimes required, and hence when proportionate, is not a violation of the anti-discrimination provision.
Rights of minorities (article 27)
There is no definition of 'minority' in the CCPR. The Committee determines itself whether a minority is involved in a certain case and whether a person belongs to that minority. It does not rely on the state's position on these issues. Importantly, the Committee looks at the country as a whole to determine the existence of a minority. It has not regarded persons belonging to the overall majority as minorities in specific regions or provinces which are dominated by the minority on state level.
Indigenous peoples, although considered distinct from minorities generally under international law, also enjoy the protection of article 27.
The right to exercise culture comprises not only traditional practices and religions, but also the broader way of life and specific socio-economic activities which are specific to the group, for example, reindeer husbandry by the Scandinavian Sami.
Interference by large-scale industrial logging or mining activity on the territory of minorities or indigenous peoples, may violate article 27.
These cases are only samples of decisions made by the Human Rights Committee, or suggested from its General Comments, or concluding observations on state reports. This list is not exhaustive, and individuals are entitled to make many more kinds of claims on the basis of the rights in the CCPR.