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The United Nations Human Rights Treaties |
How To Complain About Human Rights Treaty ViolationsThe Convention Against Torture - Description
The Committee Against Torture (CAT) is responsible for considering all complaints received under article 22 of the Convention. The Committee is composed of 10 experts nominated and elected by states parties. Members serve in their personal, independent capacity. The Committee follows specific procedures in the consideration of individual complaints. The individual complaints procedures originate from three sources: the provisions of the Convention itself, the Rules of Procedure that have been adopted formally by the Committee, and the Committee's customary practices. To help maintain impartiality in the complaint process, the Rules of Procedure of CAT provide that members shall not take part in the deliberation of a case in which they have a personal interest, or in which they have participated in any way in the making of any decision in the case before it reached the Committee (Rule 103). The Committee meets twice annually in Geneva, in April/May and November for a total of five weeks. Although most meetings are public, when the Committee considers individual complaints, the meetings are "closed"to the public. Registration may be made by the Secretariat. If there is a request for interim measures then the case usually proceeds to the Rapporteur on New Complaints and Interim Measures. If not, it will proceed directly to the Working Group (who may also deal with requests for interim measures). a) Rapporteur on New Complaints and Interim Measures CAT has appointed, from among its members, a Rapporteur on New Complaints and Interim Measures. The responsibility of the Rapporteur include the power to:
b) Working Group on Complaints The Committee has established a Working Group which meets prior to each session, reviews the draft decisions prepared by the Secretariat, and makes recommendations to the full Committee. The three to five member Working Group can declare cases admissible by majority vote, or inadmissible by unanimity. The Working Group may also decide to join the issues of admissibility and merits. In about half of the cases these issues have been joined. c) Case Rapporteur Rapporteurs may be designated by the Working Group to deal with specific complaints, by preparing draft recommendations on each case for the Working Group, giving instructions to the Secretariat how the decision is to be drafted, and presenting the draft to the Working Group and to the full Committee. d) Rapporteur for Follow-up The Committee has recently adopted Rules of Procedure which provide for a Rapporteur for Follow-up of the Committee's Decisions. The Rapporteur is expected to monitor compliance with the Committee's findings, and to conduct meetings with state party representatives on an ad-hoc basis to encourage compliance. The Rapporteur may visit the state party concerned, with the approval of the Committee, in the course of his or her activities. See flow chart of CAT Complaints Procedure. 2. Individual Complaints Procedure of CAT The basic process for submitting a complaint should be read together with the more specific information provided in relation to CAT. a) Registration of the Complaint and Preliminary Procedures i) Submission of the Complaint A complaint should be submitted to the Secretariat of the Office of the High Commissioner for Human Rights, Geneva in writing, by letter, fax or email. An original signed complaint must be sent following a submission by fax or email. Complaints cannot be anonymous. The state that is the subject of the complaint must be clearly identified. While the Committee has not developed a standardized complaint form, a model form based on the complaint form of the Human Rights Committee can be found herein, and will likely be helpful in the preparation of a complaint. Of the thousands of general letters of complaint that arrive at the UN each year, only a small fraction are channelled to the Committee Against Torture by the UN secretariat. If the complaint is not expressly addressed to the Committee Against Torture, it may not get there, or its receipt may be delayed. It may be directed by UN staff to the Special Rapporteur on Torture rather than to the Committee. Where the communication does not provide the necessary information in order for it to be registered, the secretariat may request that the communication be resubmitted providing further information. Since the Committee relies heavily on the facts in each particular case, it is especially important to set out all the relevant information at the outset. A complaint should include all the information necessary for the Committee to determine both the admissibility and the merits of the complaint. At a minimum the following information should be included:
Be as specific as possible as to details, such as dates, names and places. A complaint should also include all the supporting evidence available to verify the complaint. Supporting evidence should include:
Other important points: The Relationship between the Special Rapporteur on Torture and the Committee Against Torture The Special Rapporteur is an individual appointed by the UN Commission on Human Rights. The Rapporteur has the task, on a part-time and unpaid basis, to review compliance by all UN members with norms against torture. The Rapporteur considers torture even in the context of states which have not ratified the Convention Against Torture. The role of the Rapporteur in the case of states which have not ratified the Convention is clear, since these states may otherwise avoid scrutiny in this context. But the role of the Rapporteur in the context of those states which have ratified the Convention is more complex. The mandate of the Special Rapporteur has included consideration of individual cases, and hence individual cases on the same subject can go both to the Rapporteur and to the Committee. Any action taken by the Rapporteur to investigate, decide, and to seek a remedy for individual violations is not done under the authority of a treaty obligation. The Rapporteur's interventions are made on the basis of appealing to a state's national and international interests, reputation and moral responsibilities, for example, under the Universal Declaration of Human Rights and other General Assembly resolutions, or legal responsibilities created by international customary law. This is in contrast to the operation of the Committee Against Torture, which investigates and seeks remedies in individual cases on the basis of state legal obligations under the Torture Convention. There may be some instances in which an individual would prefer consideration of his or her case by the Special Rapporteur. To date, in practice, in many if not most instances, individual complaints concerning torture which do not specify the intended addressee of the Committee Against Torture, will be sent to the Special Rapporteur by UN staff. Hence, it is important to specify the Committee, if this is the intended venue of the complainant's case. Languages The Committee's working languages are at present English, French, Spanish and Russian. Although complaints 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 complainant uses a language other than English, French or Spanish. Cases received in Russian will be sent to translation once initially processed, sometimes at a considerable delay. Cases received in Arabic or Chinese are normally returned to the complainant who is requested to resubmit in English, French or Spanish. If a complaint is received in a non-UN official language, the complainant will normally receive at the outset a letter requesting the re-submission of the complaint in English, French or Spanish. If it happens that a complaint has been submitted in an additional language which a UN secretariat member servicing the Committee understands, it may be processed initially without translation. Complainants are strongly advised to submit complaints in English, French or Spanish. Time Limitations There is no time limit within which to bring the claim, but the Committee's rules indicate that a case will be found to be inadmissable if the time elapsed since the exhaustion of domestic remedies is so unreasonably prolonged as to render consideration of the claim unduly difficult for the Committee or the state party. Legal Aid The UN does not provide legal aid or financial assistance to claimants, nor does CAT require that states parties provide legal aid where an individual wishes to submit a complaint. Claimants should determine whether or not their own domestic legal aid system provides for the possibility of legal aid. However, NGO's and other legal professionals are allowed to represent the victims. There is no prohibition on a victim seeking assistance from NGO's or appointing them as their representative. Withdrawal of the Complaint A complainant may subsequently withdraw his or her complaint. The Committee normally accepts the withdrawal, but if there is an indication there might have been pressure on the complainant, will try to ascertain whether withdrawal was the result of undue pressure by the state or other threats. Confidentiality All documents relating to a complaint are confidential. The Committee may decide that certain elements of the case must remain confidential and not be published, including the identity of the complainant. CAT considers complaints in closed meetings (article 22(6); Rule 101). The Committee has discretion under its rules of procedure to invite the complainant or his or her representatives, and representatives of the state party, to be present at the meetings in order to provide further clarifications or to answer questions on the merits (Rule 111). However, this power has never been exercised by CAT. ii) Registration of the Complaint Once the complaint has been received, along with information regarding any obvious or manifest deficiencies, the complaint will be registered. The Committee has delegated to the Secretariat the authority to register new cases. The secretariat or the Rapporteur on New Complaints and Interim Measures may ask the complainant for clarification regarding any or all of the following issues (Rule 99):
The Secretariat will indicate a time limit for replying to such requests, approximately 3 months, (Rule 99), but strict sanctions are not applied when this time limit is not met. Failure to provide adequate information necessary to register a case, may result in a complaint not being registered. After the complaint is registered, it is transmitted to the Working Group. It is important to attempt to adhere to any deadlines given by the Committee and, if observance is not possible, to write to the Committee and formally request an extension. If deadlines are not respected by either party, the Committee may proceed to determine the question of admissibility in light of the information already available. (Rule 109(7)) iii) Transmittal to the State Party After the complaint has been registered, it is transmitted to the state party. The state party is requested to submit a written reply on both the issues of admissibility and merits within 6 months. iv) Interim Measures At any time after the receipt of the complaint, the Rapporteur for New Complaints and Interim Measures, the Committee, or the Working Group, may request a state party to take interim measures to avoid irreparable damage to the victim of an alleged violation (Rule 108(1)). The Committee has appointed one of its members as Rapporteur for the purpose of being able to act quickly upon receiving such requests. This interim procedure is frequently used by CAT, particularly in extradition or expulsion cases, where there is danger of the victim being tortured on their return to another state. CAT's practice has been to ask the state party to take interim measures if there is even a small danger that the person may be tortured if they are expelled. In making a successful case for a request for interim measures, the complainant must satisfy the threshold that he or she personally risks being tortured if, for instance, he or she is removed to a particular country. It is not sufficient that there is a general pattern of torture existing in the receiving state. Such a case can be made out, for example, if individuals can establish that they have already been subjected to torture, or their current activities would reasonably put them at risk. b) Admissibility and Submissions from the Parties The practice of the Committee is to consider complaints in the order in which they have been readied for consideration, unless interim measures are involved. CAT retains a discretion to consider complaints out of order. Accordingly, if the matter is urgent, the complainant should consider requesting that the matter be expedited. If the Committee believes the complaint is manifestly inadmissible, the Committee is empowered under its rules of procedure to declare the complaint inadmissible without referring the matter to the state party. The Committee cannot, however, determine the complaint to be admissible without first sending the text of the complaint to the state party concerned, and giving the state party an opportunity to furnish information and observations relevant to the question of admissibility (Rule 109(8)). The presumption under the Committee's rules of procedure is that the questions of the admissibility of a claim and the merits of a claim will be considered jointly. The Committee can decide to request submissions on the issue of admissibility alone. (Rule 109(2)) The state party may apply for separation of the two issues, although the Committee may not agree to this request. The Committee's practice is to allow states parties 3 months to provide their comments on admissibility. Deadlines are not strictly enforced, and submissions after the deadlines have been accepted in practice. As soon as the Committee receives any information or observations from the state party, they are sent to the complainant, who in practice is given four weeks to submit a response. Although it is strongly advisable to observe the deadlines, the Committee's practice has been to accept submissions received subsequently. The Committee's rules of procedure direct that, ordinarily, non-receipt of a response within the established time limit should not delay the consideration of the admissibility of the complaint. (Rule 109(7)) The Committee may designate one of its members as a rapporteur to deal with specific complaints, and make recommendations. (Rule 106(3) 109(5), 112(1)) In light of all the information, the Working Group can decide by simple majority that a complaint is admissible, or inadmissible by unanimity. If the complaint is found inadmissible because of a failure to exhaust domestic remedies, the Committee may subsequently review that decision, on receipt from the complainant of a request for review and documentary evidence that the reasons for inadmissibility no longer apply. Other important points: The complaint must be made by or on behalf of an individual Complaints can only be made by individuals, not groups of individuals. However, the Committee may also, if it deems appropriate, decide to consider jointly two or more complaints (Rule 105(4)). Accordingly, if two persons wish to consider making complaints under the Convention of acts arising out of the same incident, separate complaints could be filed with a request that they be considered together. There must not be a parallel complaint before another international forum, either currently, or in the past A complaint is inadmissible if the matter is being, or has ever been, examined under another procedure of international investigation or settlement (article 22(5)(a); Rule 107(d)). This is a more stringent rule than under the CCPR, because it applies whenever a procedure of international investigation has been invoked, even if that procedure has been concluded. Moreover, complainants must not split their claims and submit some aspects of it to the Inter-American Commission on Human Rights (for example, the fair hearing aspect), and other aspects (such as the prohibition of expulsion if there is a risk of torture) to CAT. If complainants do so, they risk inadmissibility under article 22(5)(a). Procedure if the merits and admissibility have been joined The complaint is transmitted to the state party for its comments or explanations on both the admissibility of the complaint and the merits. CAT's practice is to require such comments to be provided within six months. Upon receipt, any explanations or statements from the state party are transmitted to the complainant, who is given an opportunity to submit additional written information or observations, usually within six weeks. In practice there is more than one round of submissions between state party and complainant. Sometimes both parties continue commenting on each other's submissions. CAT considers all the information before it and adopts its findings on admissibility and the merits. Exhaustion of domestic remedies An important ground of inadmissibility, the requirement that domestic remedies be exhausted, is frequently misunderstood. The exhaustion of domestic remedies condition may also be satisfied, not by the existence or use of domestic proceedings, but by showing convincingly that such remedies are ineffective, unavailable, or unreasonably prolonged. According to the rules of procedure of CAT the requirement of exhaustion of domestic remedies "shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention". c) Determination of the Merits and Follow-up If the issue of admissibility and merits has been considered separately, once a complaint is found to be admissible, the state party is given an opportunity to make submissions on the merits of the claim. CAT's practice is to give the state party six months to submit written explanations or statements to the Committee. The Committee, however, has set shorter deadlines when appropriate. The submissions of the state party are transmitted to the complainant, who is given an opportunity to submit additional written information or observations, usually within a six week time frame. Frequently neither the state party nor the complainant adhere to deadlines. Thus far the Committee has always accepted late submissions. The Committee has also sent reminders to states parties and complainants informing them that a case will be considered at a given session, whether or not the submission has been received. The Committee, however, dislikes to adopt decisions by default. The case rapporteur and/or the Working Group may make recommendations on the merits prior to the consideration of the merits by the full Committee. (Rule 112(1)) The Committee will consider all the information before it and adopts its "Decisions" on whether or not there has been a violation of the treaty. After considering the state party's submissions on the merits, the Committee is also entitled to revoke its decision that the complaint is admissible. CAT considers complaints in closed meetings (article 22(6). The Committee has a discretion under its rules of procedure to invite the complainant or his or her representatives, and representatives of the state party, to be present at the meetings in order to provide further clarifications or to answer questions on the merits (Rule 111(4)). However, this power has never been exercised by CAT. The Decisions of the Committee will not necessarily be unanimous. Any member of the Committee may request that a summary of his individual opinion be attached to the Decisions of the Committee. The usual remedies which CAT requests are: (1) non-refoulement in cases under article 3 of the Convention, when the Committee establishes that a real risk of torture exists; (2) investigation of reported cases of torture; (3) punishment of persons responsible for torture and ill-treatment; (4) compensation to the victim or to his or her family. The Committee transmits its Decisions to the complainant and the state party. In its Decisions, CAT asks the state party to inform it of the action taken in response to a finding by the Committee of a violation of the Convention. (rule 112(5)). The Committee has recently adopted a follow-up mechanism, and will designate one of its members as Rapporteur for Follow-up. The Rapporteur is expected to monitor the responses of states parties to the Committee's request for information on the remedy provided, and to meet with representatives of selected states parties that have not responded positively to the Committee's request. They are also enabled to make visits to states parties in the course of follow-up activities. Annual Report There is no sanction for failure to comply with the Committee's Decisions. Publicity is given to the Decisions through the Committee's annual reports to the General Assembly. In its report, the Committee includes the text of its Decisions and the text of any decision declaring a complaint inadmissible. (Rule 115(2)) Information on follow-up will also be part of the Committee's Annual Report. (Rule 115(3)) Reservations Reservations to CAT 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 Convention in the context of a complaint. CAT itself has as yet not directly made a statement about the incompatibility of reservations with the Convention. 3. Examples of CAT Cases When determining how the Committee might approach the interpretation of an article in the Convention, consideration should be given to the Committee's final "Decisions" expressed in previous complaints on the same subject matter, the Committee's concluding comments on states parties' reports, and the Committee's General Comments (the Committee having issued to date one comment on article 3). Torture - The right of complaint under the Convention Against Torture is for victims of a violation by a state party of the Convention's provisions. A victim is, for example, a person subject to the jurisdiction of the state party who has been tortured. Such a person may potentially be the victim of a violation not only of the state's obligation to prevent the acts of torture happening in the first place, but also of those articles in the Convention that require the state to respond to the fact that acts of torture may have already occurred and provide a remedy. Articles that may be used by victims of torture when bringing a claim include:
Cruel, Inhuman or Degrading Treatment or Punishment - A person who has been subjected to acts amounting to cruel, inhuman or degrading treatment or punishment will also be a victim of a violation of the Convention. That person may complain about failure to prevent the acts of cruel, inhuman or degrading treatment or punishment, or about the state's subsequent responsibility to respond to the fact that acts of cruel, inhuman or degrading treatment or punishment have occurred. The articles which can be used are more limited than in the case of torture. The victim can potentially use:
Other - There are at least three circumstances in which complainants may legitimately claim that they are victims of a violation of the Convention, even though they have not been subjected to acts of torture or cruel, inhuman or degrading treatment or punishment.
Below are examples of the Committee Against Torture's approach to the interpretation of the Convention, as disclosed in the Committee's final Decisions, concluding comments and general comment. The definition of "torture" (article 1) Under article 1, the definition of torture contains three elements:
Prevention of torture (article 2(1)) In order for a complainant to be in a position to argue that they have been the "victim" of a failure by the state to take effective measures to prevent acts of torture, they will usually have been subject to acts of torture. To substantiate a claimed violation of the state's obligation to take effective measures to prevent acts of torture, the complainant will likely point to the fact that the act(s) of torture have occurred. A complainant may reinforce the claim that a failure of prevention has occurred by pointing to the existence of a state of affairs that made the commission of acts of torture (or cruel, inhuman or degrading treatment or punishment) more likely to occur. For example, in its concluding comments on states parties' reports, the Committee has identified at least the following situations that, in the Committee's view, lead to an increased risk of torture or cruel, or inhuman or degrading treatment or punishment occurring:
Absolute character of the prohibition (article 2) The Committee has repeatedly emphasized that no circumstances whatsoever, no matter how exceptional, can be invoked to justify torture. No forcible return of persons to another state if danger of torture (article 3) The state's obligation under this article is not to return the person to "another state" where there are "substantial grounds" for believing that he or she would be in danger of being subjected to torture. The Committee has been largely unresponsive to concerns by state parties that implementation of this article might be "abused" by asylum seekers and has applied the article rigorously to protect asylum seekers. The article has been used by the Committee both to take action pending a final decision on the merits of the case in the form of an order for interim measures, and upon reaching final Decisions.
Criminalization of acts of torture (article 4); jurisdiction to prosecute (article 5) States parties need to provide for a definition of torture in their penal legislation that fully incorporates all the elements of the definition of torture contained in article 1 of the Convention. Duty to prosecute (article 7) In order to meet this obligation, criminal proceedings must be systematically initiated against persons accused of acts of torture, and should be conducted independently of any disciplinary measures taken. Investigative duties (article 12)
Investigation of complaints (article 13)
Redress / compensation (article 14) In accordance with the Convention, the state should be held civilly responsible for the acts of its servants. Given the distinction between civil and criminal liability, a state might be liable to compensate victims of torture even in the absence of a criminal conviction. Inadmissibility of statements obtained under torture (article 15) Evidence obtained in violation of article 1 of the Convention should never be taken into account by judicial decision-makers in any legal procedure, except against a person accused of torture as evidence that the statement was made. Cruel, inhuman or degrading treatment of punishment (article 16)
These cases are only samples of decisions made by CAT, or suggested from its General Comment, 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 Torture Convention. |