How To Complain About Human Rights Treaty Violations
The Convention on the Elimination of Racial Discrimination - Description
- Overview of the Committee
on the Elimination of Racial Discrimination (CERD)
- Individual Complaints
Procedure of CERD
of the Communication and Preliminary Procedures
of the Communication
- Registration of the Communication
- Transmittal to the State Party
and Submissions from the Parties
of the Merits and Follow-up
- Examples of Cases
Relating to CERD
1. Overview of the Committee on the Elimination of Racial
The Committee on the Elimination
of Racial Discrimination (CERD) is responsible for considering all
communications submitted under Article 14 of the Convention. CERD is composed
of 18 experts, nominated and elected by States parties to the Convention.
Members serve in their personal capacity.
The Committee follows certain and
specific procedures in the consideration of individual communications. The
individual communications 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 CERD 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 the making of any decision in
the case before it reached the Committee (Rule 89).
The Committee meets annually in Geneva for two three-week long sessions in March and August. Although most meetings are
public, when the Committee considers individual communications, the meetings
are "closed" to the public (Rule 88).
Generally, the 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, the individual
members may express individual Opinions which are attached to the Committee's
CERD does not have a formal
pre-sessional working group which handles communications. Registration is
determined by the Secretariat. An informal open-ended working group on
communications meets during the CERD sessions on an as-needed basis. All
decisions concerning communications are taken by the Committee as a whole.
See flow chart on
CERD Complaints Procedure
2. Individual Complaints
Procedure of CERD
a) Registration of the
Communication and Preliminary Procedures
The basic process for
submitting a complaint should be read together with the more specific
information provided in relation to CERD.
i. Submission of the
A communication should be
submitted to the Petitions team at the UN Secretariat of the Office of the High
Commissioner for Human Rights, Geneva in writing, by letter, fax or email.
Faxed or electronic 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 the communication, the use of the model complaint
form can streamline the communication process and is helpful in the
preparation of a complaint.
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
It is important to include, at a
minimum, the following information:
- the identity and contact information
of the victim;
- the state against which the
communication is directed;
- the rights and articles of the
Convention alleged to have been breached;
- steps taken to exhaust local remedies,
or evidence why local remedies are ineffective, unavailable or
- all the relevant facts together with
any supporting documentation (such as a factual account signed by the
victim, witness statements, court documents); and
- the remedy requested.
Other important points:
Groups Can Submit Complaints
Not only may complaints be made by
or on behalf of individuals, groups of individuals may also submit complaints.
Under many of the complaint provisions found in the other UN human rights
treaties, groups are not able to make a complaint of violations of group
The Committee's working languages
are at present English, French, Spanish and Russian. 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.
A claim must be brought within 6
months after the exhaustion of domestic remedies (article 14, paragraph 5).
Cases have been declared inadmissible on this ground.
The UN does not provide legal aid
or financial assistance to authors, nor does CERD 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 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 the assistance of NGO's or appointing them as their
Withdrawal of the Communication
An author may subsequently
withdraw his or her communication.
All documents relating to a
communication are confidential and CERD does not publicize cases, except by the
eventual release of a decision. Decisions concerning inadmissibility,
discontinuation or merits (Opinions) will be made public. The Committee may
decide that the identity of the author remain confidential from the public.
However, the communication must
not be anonymous. The identity of both the victim and the author (if different
from the victim) must be revealed to the Committee and State party.
If the author fears reprisals from
the State party which has committed the violation, he or she may request that
the identity of the victim and/or the author not be revealed to the public.
ii) Registration of the
Communications are initially
reviewed by the UN Secretariat servicing the Committee prior to their
registration. The Secretariat brings to the attention of the Committee all
communications which are, or appear to be, submitted for consideration by the
Committee. The Committee has delegated to the Secretariat the authority to
register new cases. The Secretariat may defer registration 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 84):
- Name, address, age and occupation of
- The state against which the
communication is directed
- The object of the communication
- The precise CERD provision which is
- Information about which local or
domestic remedies have been used
- Clarification about the facts of the
The Secretariat will indicate a
time limit for replying to such requests (Rule 84), 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 communication not
being registered. A decision to register a case may be made pending the
response to questions for additional information.
iii) Transmittal to the
Once the Secretariat is satisfied
the communication contains sufficient information, the communication is
transmitted by the Committee to the State party for a response.
iv) Interim Measures
At any time after the Committee
has determined that a claim is admissible, the Committee may request the State
party to take interim measures to avoid possible irreparable damage to the
claimant. Any such requests are not prejudicial to the Committee's final
Opinion (Rule 94), nor are they an indication that the Committee has made any
final decision as to the merits of the claim. Until now CERD has not requested
interim measures from States parties.
b) Admissibility and
Submissions from the Parties
Once the communication has been
transmitted to the State party, the State has three months in which to respond
to the communication (CERD article 14(6)). The practice of the Committee is to
seek a response from the State party on the issue of admissibility separately
from the merits.
Neither the Convention, nor the
Rules of Procedure, provide for specific requirements or deadlines for the
author to respond to the state's submissions. However in practice the author is
normally given three months to respond.
The Committee may decide a
communication is inadmissible before transmitting it to the State party for
CERD will review all the
information submitted by the parties, and adopt a decision on whether or not
the communication is admissible. The criteria for the admissibility of a case
is set out in Rule 91 of its Rules of Procedure. The Committee may decide that
a complaint is admissible when the communication:
- is not anonymous;
- alleges a violation of the Convention
against a State party that has also made the necessary declaration under
- is compatible with the provisions of
- is not an abuse of the right of
submission in conformity with article 14;
- establishes that all domestic remedies
have been exhausted, unless the application of the remedies is
unreasonably prolonged; and
- is submitted within six months after
all available domestic remedies have been exhausted, unless exceptional
circumstances have been established.
If the Committee decides that the
communication is inadmissible, the case is finished. If the Committee decides
that the communication is admissible, then it moves on to the merits stage. All
decisions of CERD concerning individual communications are taken by the full
c) Determination of the Merits
Once the Committee has decided
that the communication is admissible, the admissibility decision is transmitted
to the State party and the claimant is advised of the decision. The state then
has three months to submit its arguments or explanations as to the merits of
the claim (Rule 94).
The Committee will then send the
state's submissions to the author for reply (Rule 94).
The author is usually given three
months to respond.
The Committee will consider all
the information before it and adopt its Opinion 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
communication is admissible (Rule 94(6)).
CERD considers communications in
closed meetings. The Committee has discretion under its rules of procedure to
invite the author of the communication 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
The final decision on the merits
by CERD is termed an "Opinion" not "Views" as it is in the
case of the Human Rights Committee. CERD invites the State party to inform it
"in due course" of the action it takes pursuant to the Committee's
Opinion (Rule 95(3)).
The Opinions of the Committee will
not necessarily be unanimous. Any member of the Committee may request that his
or her individual opinion be attached to the Opinions of the Committee.
Remedies which have been requested
by CERD from the State party include compensation to victims, a call to the State
party to investigate a particular situation, amend legislation, or to ensure
that similar violations do not occur in the future.
In 2005, CERD instituted a formal
procedure to follow up after Opinions have been adopted, to determine if the
victim has been provided with a remedy for the violation of his or her rights.
The Special Rapporteur on Follow-up reports to the Committee as to the status
of the measures taken by States parties on cases, and further actions that may
be advisable. The annual reports of the Committee contain information on
follow-up to cases.
There is no sanction for failure
to comply with the Committee's Opinions. The Committee's Annual Reports to the
General Assembly include the text of its Opinions and the text of any decision
declaring a communication inadmissible.
Reservations to CERD may
substantially limit the ability of an individual to successfully make a case
against a particular State party. It is therefore necessary to check any
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 CERD in the context of a communication. CERD has as yet not directly made a
statement about the incompatibility of reservations with the Convention.
3. Examples of Cases Relating
Since the Committee has not issued
many Opinions, guidance as to the meaning and application of treaty rights may
also be drawn from the Committee's General Recommendations and concluding
observations on state reports. The following examples of the Committee's
approach to the interpretation of Convention rights and freedoms are based on
CERD cases, general recommendations and concluding observations.
The definition of "racial
discrimination" (article 1)
Which groups are protected
Meaning of "based on" - The definition of "discrimination" in article
1(1) of the Convention protects against distinctions, exclusions, restrictions
or preferences "based on" race, color, descent, or national or ethnic
origin. The words "based on" have the same meaning as the words
"on the grounds of", which are found in paragraph 7 of the preamble
to the Convention.
How to identify group
membership - The question arises as to how
it is to be decided whether a person belongs to a particular racial or ethnic
group for the purposes of the Convention. The Committee has said that, unless
there are good reasons to the contrary, the primary method should be
self-identification by the individual concerned.
Meaning of "descent" - The term "descent" does not solely refer to
race, and also covers the situation of certain castes and tribes (for example,
under the traditional Indian caste system).
"nationality" - A preference for
persons trained in a particular country is not considered by the Committee to
amount to discrimination on grounds of "nationality." Thus, in a case
involving an Australian examination and quota system for overseas trained
doctors that favoured doctors trained in Australia and New Zealand, the Committee
considered that the system did not discriminate on the basis of race or
national origin since medical students in Australia did not share a single
national origin, and all overseas trained doctors were subject to the same
system, irrespective of race or national origin. Accordingly, the system did
not work to the benefit or detriment of persons of any particular race or
national origin. In another case, a derogatory public statement about
“foreigners” was not considered to single out a group of persons contrary to
the provisions of the Convention.
Guidance with respect to
particular vulnerable groups - There are
certain, particularly vulnerable, groups that have come to the Committee's
attention with sufficient frequency that the Committee has issued special
guidance to states parties concerning their situations.
Indigenous peoples - The Committee has stressed that indigenous peoples fall
under the scope of the Convention and that all appropriate means must be taken
to combat and eliminate discrimination against them.
Roma - The Committee has expressed particular concern about the
treatment of Roma and has issued a lengthy General Recommendation setting out
specific "recommendations" to States parties on their treatment.
Refugees - The Committee has also expressed concern about the
vulnerability of refugees and displaced people, and has issued a General
Recommendation on their treatment, particularly once they return to their homes
of origin. This entails rights to:
- have property restored
- be compensated for property that
cannot be restored
- participate fully and equally in
public affairs at all levels
- have equal access to public services
- receive rehabilitation assistance.
Women - The Committee is conscious of the fact that because of
the different life experiences of women and men, in areas of both public and
private life, there are circumstances in which racial discrimination only or
primarily affects women, or affects women differently than men. Examples of
forms of racial discrimination which may be directed towards women specifically
because of their gender are:
- sexual violence committed against
women members of particular racial or ethnic groups in detention or during
- the coerced sterilization of
- abuse of women workers in the informal
sector or of domestic workers employed abroad by their employers.
In addition, racial discrimination may have consequences that affect primarily
or only women. For example, in some societies, in the case of pregnancy
resulting from racially motivated rape, women victims of such rape may be
ostracized. Women may also be further hindered by a lack of access to remedies
and complaint mechanisms for racial discrimination because of gender-related
impediments, such as gender bias in the legal system and discrimination against
women in private spheres of life.
Recognizing that some forms of racial discrimination have a unique and specific
impact on women, the Committee endeavours to take into account gender factors
or issues that may be interlinked with racial discrimination.
Relationship with article 5 - The definition of discrimination in article 1 refers to
distinctions that nullify or impair the recognition, enjoyment or exercise of
human rights, on an equal footing "in any field of public life, including
political, economic, social or cultural life." Article 5 lists a number of
"notable" examples of human rights that must be protected in the
fields of political, economic, social or cultural life.
Permissible distinctions - The definition of "discrimination" in article
1 refers to distinctions, exclusions, restrictions or preferences that nullify
or impair the recognition, enjoyment or exercise of human rights on an equal
footing. However, there are a number of situations in which such distinctions,
exclusions, restrictions or preferences are not considered to amount to
discrimination under the Convention:
Distinctions between citizens
and non-citizens - The Convention does not
protect against distinctions between citizens and non-citizens. (This does not
mean that it is permissible to differentiate between different kinds of
non-citizens.) Where a private (non-state) party seeks to justify a distinction
on the grounds of citizenship, States parties must be vigilant to ensure that
citizenship is, in reality, the basis for the distinction that is being drawn.
Thus, in a Danish case where a bank denied a permanent resident a loan on the
basis that he was not a Danish citizen, claiming that it was motivated by the
need to ensure that the loan was repaid, the Committee expressed skepticism as
to whether a person's nationality was relevant to his or her capacity to repay.
The Committee concluded that the state should have initiated a proper
investigation into the "real reasons" behind the bank's loan policy
with respect to foreign residents in order to ascertain whether or not criteria
involving racial discrimination within the meaning of article 1 were being
Positive discrimination - Differentiation of treatment is legitimate if it falls
within the scope of article 1(4) of the Convention, which allows for positive
but temporary measures aimed at securing the advancement of certain racial or
ethnic groups or individuals that have been disadvantaged, and are necessary to
ensure such groups or individuals equal enjoyment or exercise of human rights
and fundamental freedoms.
Justifiable differentiation - The Committee has said that differentiation of treatment
will not constitute discrimination if the criteria for such differentiation,
judged against the objectives and purposes of the Convention, are
"legitimate". Similarly, in seeking to determine whether an action
has an effect contrary to the Convention, the Committee will ascertain whether
that action has an unjustifiable impact upon a group distinguished by race,
colour, descent, or national or ethnic origin.
Condemnation and elimination of
racial discrimination (article 2)
The Committee's role when
reviewing the decisions of domestic tribunals as to whether discrimination has
occurred - Where a claim of discrimination
brought before the Committee has already been examined by a domestic tribunal,
the Committee faces a question as to how much respect to accord the domestic
tribunal's factual assessment of the case.
The Committee considers that, as a general rule, it is for the domestic courts
of States parties to the Convention to review and evaluate the facts and
evidence in a particular case. The Committee will consider whether the author
was treated by the domestic tribunal that examined the allegation of
discrimination, in a non-discriminatory fashion. Where, however, such a
domestic tribunal has examined the case in a thorough and equitable manner, in
the absence of an obvious defect in the decision the Committee will not
substitute its own judgment for that of the domestic tribunal.
Obligation to bring to an end
racial discrimination by private (non-state) parties (article 2(d)) - The Committee requires that States parties prohibit
private acts of discrimination in their laws, and that they enforce such laws
in good faith. Accordingly, findings by the Committee of a breach of article
2(d) are accompanied by findings of a breach of article 6 (the obligation to
provide effective protection and remedies).
Racial segregation and apartheid
Although the reference to
apartheid may have been initially directed exclusively to the situation in South Africa, article 3 as adopted prohibits all forms of racial segregation, whether
institutional or non-institutional, in all states. The obligation to eradicate
all practices of this nature includes the obligation to eradicate the
consequences of such practices undertaken or tolerated by previous governments
in the state, or imposed by forces outside the state. The Committee has also expressed
concern with "racial segregation" arising without any initiative or
direct involvement by the public authorities, as an unintended by-product of
the actions of private persons.
Propagation of race hatred
Scope of article 4(a) - Article 4(a) requires States parties to penalize four
categories of misconduct:
- dissemination of ideas based upon
racial superiority or hatred;
- incitement to racial hatred;
- acts of violence against any race or
group of persons of another colour or ethnic origin; and
- incitement to such acts.
By way of example of what
constitutes "incitement", the Committee has found that acts amounting
to incitement to racial discrimination and to acts of violence had taken place
in a case involving the antagonistic reaction of members of a local community
to a prospective lessee. The behaviour that the Committee considered amounted
to such incitement included shouting the slogan "no more foreigners"
when the author came to look at the house, intimating that if the author were
to accept the house they would set fire to it and damage his car, telling
officials that they could not accept the author as their neighbour, and
drafting a petition rejecting the author's right to live in the neighbourhood.
Article 4(a) also penalizes the
provision of assistance, including financing, for "racist
activities." The term "racist activities" includes activities
deriving from ethnic as well as racial differences.
With regard to speeches based on
racial hatred, when the Committee evaluates the content of the remarks made,
the lack of logic to the particular comments is not relevant to whether or not
they violate article 4 of the Convention.
Scope of article 4(b) - Article 4(b) requires States parties to prohibit all
organizations and activities that promote and incite racial discrimination, and
to prohibit participation in such organizations or activities.
Penal legislation must be drafted
in sufficiently wide terms to catch all such organizations. Thus, an offence
provision limited solely to organizations adhering to "fascist"
ideology does not fully comply with article 4, since the protection provided by
law does not cover the wide variety of racist organizations that may exist or
Scope of article 4(c) - Article 4(c) outlines the obligations of public
authorities and public institutions not to promote or incite racial
discrimination. Public authorities at all administrative levels, including
municipalities, are bound by this provision.
Requirement both to enact penal
laws and to enforce them - The enactment
of appropriate penal legislation does not, on its own, represent full
compliance by States parties with their obligations under article 4. States
parties must, in addition, ensure that such legislation is effectively
This does not mean that states
parties are obliged to prosecute every case of behaviour prohibited by article
4. The Committee recognizes that prosecuting authorities have a degree of
discretion in deciding whether to institute a prosecution, which is governed by
considerations of public policy. The Committee refers to this as the
"expediency principle." Nevertheless, any prosecutorial discretion
must be applied in light of the guarantees laid down in the Convention. When
threats of racial violence are made, and especially when they are made in
public and by a group, it is at least incumbent upon the state to investigate
with due diligence.
Obligations under article 4 are
mandatory and immediate - The provisions of article 4 are of a mandatory
character. Further, the Committee has said that because threats and acts of
racial violence easily lead to other such acts and generate an atmosphere of
hostility, only immediate intervention can meet the obligations of effective
Relationship with freedom of
expression - The Committee considers that
article 4 is consistent with the obligations undertaken by States parties in
other international human rights treaties to protect freedom of expression. In
particular, the requirement in article 4 that States parties act with "due
regard" to the principles embodied in the Universal Declaration of Human
Rights, requires balancing the right to protection from racial discrimination
with the right to freedom of expression. However, the Committee will give the
principle of freedom of speech a more limited role in cases of racist or hate
speech, by limiting the exercise of the right to freedom of expression.
Not all States parties, however,
consider that the relationship between article 4 and the right to freedom of
expression is clear, and accordingly, there are a high number of reservations
and interpretive declarations to this article.
Equality before the law
General - Article 5 reiterates the state's obligation laid down in
article 2 to prohibit and to eliminate racial discrimination in all its forms,
and to guarantee the right of everyone, without distinction as to race, colour,
or national or ethnic origin, to equality before the law. Article 5 then lists
in detail a number of "notable" human rights that the state must
guarantee to everyone without discrimination. This list is not exhaustive. It
contains examples of contexts in the social, political, economic and cultural
spheres in which the principle of freedom from racial discrimination must
The rights and freedoms listed in
article 5 are principally derived from the Universal Declaration of Human
Rights, as recalled in the preamble to CERD. Most of these rights have been
elaborated in the International Covenant on Civil and Political Rights, and/or the
International Covenant on Economic, Social and Cultural Rights. Under CERD,
however, these rights are not guaranteed in themselves, rather, States parties
are required to prohibit and eliminate racial discrimination in the enjoyment
of such rights. Whenever a state imposes a restriction upon one of the rights
listed in article 5 of the Convention, it must ensure that, neither in purpose
nor effect, is the restriction incompatible with article 1 of the Convention.
The protection of the rights
listed in article 5 may be guaranteed either by the use of public institutions
or through the activities of private institutions. To the extent that private
institutions influence the exercise of rights or the availability of
opportunities, the State party must ensure that the result has neither the
purpose nor the effect of creating or perpetuating racial discrimination.
Article 5(a) - The rule laid down in article 5(a) to
equal treatment before tribunals, without distinction as to race, colour or
national or ethnic origin, applies to all types of judicial proceedings,
including trial by jury. If members of a jury are suspected of displaying or
voicing racial bias against the accused, it is incumbent upon the national
judicial authorities to investigate, and to disqualify the juror if there is a
suspicion that the juror might be biassed.
Nevertheless, on a complaint of juror bias, the Committee
will be reluctant to interfere with a decision by a competent judicial body as
to the interpretation and application of domestic rules concerning
disqualification of jurors. As long as the competent judicial body has duly and
diligently investigated any claim of racial bias on the part of a juror, the
Committee is unlikely to second-guess its decision.
Article 5(c) - Article 5(c) requires that governments
represent the whole population, without distinction as to race, colour, descent
or national or ethnic origin. The Committee considers this protection to be an
aspect of the right to self-determination of peoples, which is protected in
other international instruments.
Article 5(d) - Article 5(d) concerns the right to
equality in the enjoyment of other "civil" rights.
Article 5(d)(i), which protects the right to freedom
of movement and residence within the border of the state, protects against
forced resettlement of groups of people.
The right to nationality under article 5(d)(iii) is denied
if, for example, citizenship requires that persons prove they have several
generations of ancestry in the country of residence.
Article 5(e) - Article 5(e) protects against
discrimination in the provision of economic, social and cultural rights. The
Committee's task is to monitor the implementation of these rights, once they
have been granted, on equal terms. In other words, the Committee's role is to
ensure that to the extent such rights are available within a state, the
availability is not determined on a discriminatory basis.
The Committee has expressed grave concerns to States parties
about socio-economic conditions such as poverty, housing, education,
employment, absence of social security, medical care, and lack of access to
basic social services such as water and electricity. The Committee has also
noted that the withholding of basic supplies of food and medicine to a racial
or ethnic group in itself constitutes a grave violation of human rights.
By way of an example of a violation of the right to
non-discrimination in the right to work under article 5(i)(e), the Committee
considered that there had been such a violation where a Court had upheld a
decision by an employer to terminate the author's employment when she became
pregnant, on the basis that the employer had dismissed the author because of
his view that foreign women workers take their children to a neighbour or
family and, at the "slightest setback", take sick leave.
The state's obligation to
provide effective protection and remedies (article 6)
The state's obligations under
article 6 are to provide effective protection and remedies against acts of
racial discrimination, as well as to provide a right to just and adequate
reparation or satisfaction for any damages suffered as a result of
Extent of obligation to
investigate and prosecute - States parties
are required to initiate a proper investigation into allegations of
discrimination. The investigation must be full and comprehensive, and not
simply rely on the explanations offered by the alleged perpetrator of the
discrimination. Thus, where a Danish bank refused the author a loan,
purportedly because he was not a Danish citizen, and the prosecuting authority
had accepted the Bank's explanations without investigating further, the
Committee considered that the state's obligations under article 6 had been
violated. The state should have initiated a proper investigation into the
"real reasons" behind the bank's loan policy in order to ascertain
whether or not criteria involving racial discrimination were being applied.
Because the police had not done so, the author had been denied an effective
remedy within the meaning of article 6.
The Committee recognizes that
state authorities have a discretion about whether to prosecute criminal
offences, which is governed by considerations of public policy. Nevertheless,
that discretion should be applied in each case of alleged racial discrimination
in the light of the Convention guarantees. The Committee will not necessarily
accept at face value a decision not to prosecute, particularly if the Committee
does not consider that a careful investigation has been conducted. Thus, where
the perpetrator had called the author and his brother "a bunch of
monkeys" and the prosecuting authority had discontinued the investigation
because the statements were made in connection with a "tense episode"
and might have referred to the nature of the author's conduct rather than his
race, the Committee found a violation of article 6. Because the investigation
was discontinued, it had never been established whether the author had been
insulted on the grounds of his national or ethnic origin, in violation of the
Convention. It followed that the author had been denied effective protection
and remedies against racial discrimination.
Extent of judicial
review/appeal rights - The Committee is
likely to look more favourably on state prosecutorial and other decisions if
judicial review or a right to an appeal were made available. At the same time,
the Committee does not consider that article 6 necessarily imposes upon States
parties the duty to institute a mechanism of sequential remedies, up to and
including the court of final appeal, in cases of alleged racial discrimination.
The state's obligation to
provide economic compensation - The
Committee considers that the conviction and punishment of the perpetrator of a
criminal act, and the order to pay economic compensation to the victim are
legal sanctions with different functions and purposes. Thus, although the
victim is not necessarily entitled to compensation in addition to the criminal
sanction under all circumstances, in accordance with article 6, the victim's
claim for compensation has to at least be considered. This is the case even
where no bodily harm has been inflicted and where the damage to the victim is
in the nature of humiliation, defamation or other attacks against his or her
reputation and self esteem. Thus, where the author was refused access to a
place of service intended for the use of the general public solely on the
ground of his national or ethnic background, the Committee observed that this
was a humiliating experience which may merit economic compensation and cannot
always be adequately repaired or satisfied by merely imposing a criminal
sanction on the perpetrator.
Delay - The Committee has given States parties a certain amount
of leeway in relation to the length of time they take to provide a remedy, and
has held in at least one case that the condemnation of a perpetrator and
imposition of a penalty satisfied the State party's obligations under article
6, even though there had been a considerable lapse of time following the events
giving rise to the communication.
The kind of recommendations
that can be expected from the Committee
If the Committee concludes there
has been a violation of the Convention, the Committee usually concludes its
Opinions with a recommendation to the State party as to how to redress the
violation. The remedies proposed by the Committee are not always personal in
nature. In some cases, the Committee does no more than recommend that the State
party review its policy and procedures in the relevant area, or otherwise take
general measures to counteract racial discrimination in the future.
However, in other cases, the
Committee has recommended a personalized remedy to assist the author. For
- in a case where the right to work had
been breached, the Committee recommended that the State party secure
alternative employment for the author and/or provide her with such other
relief as may be considered equitable.
- in a case where the author had been
refused a bank loan in violation of the Convention, the Committee recommended
that the State party provide the author with reparation or satisfaction
commensurate with any damage he had suffered.
- In several cases, the Committee has
recommended that the State party grant the author “adequate” compensation
for the moral and/or material injury that resulted from a violation of the
provisions of the Convention.
In some cases the Committee has
also made recommendations of a general nature to a State party about how it can
improve its practice, even though the Committee has ultimately concluded that
the communication did not disclose a violation of the Convention.
The cases or circumstances
discussed here are only samples of decisions made by CERD, or suggested from
its General Recommendations, or concluding observations on state reports. This
list is not exhaustive, and individuals are entitled to make additional kinds
of claims on the basis of the rights in the Racial Discrimination Convention.