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The United Nations Human Rights Treaties

How To Complain About Human Rights Treaty Violations

Introduction to Complaints Procedures

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  1. Introduction
    1. What is a Complaints Procedure
    2. What is the Purpose of Making an Individual Complaint
    3. Which Treaties Have Complaints Procedures?
    4. Which States Can Be the Subject of an Individual Complaint?
  2. The Basis for the Right to Lodge a Complaint
    1. The International Covenant on Civil and Political Rights (CCPR)
      1. The Optional Protocol to the CCPR
      2. When Entered into Force
      3. Number of Ratifying States
      4. The Committee's Jurisprudence
    2. The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
      1. The Article 22 Procedure
      2. When Entered into Force
      3. Number of States Which Have Made the Declaration of Competence under Article 22
      4. The Committee's Jurisprudence
    3. The Convention on the Elimination of All Forms of Racial Discrimination (CERD)
      1. The Article 14 Procedure
      2. When Entered into Force
      3. Number of States Which Have Made the Declaration of Competence under Article 14
      4. The Committee's Jurisprudence
    4. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
      1. The Optional Protocol to CEDAW
      2. When Entered into Force
      3. Number of Ratifying States
      4. The Committee's Jurisprudence
  3. General Overview of the Process
  4. Preparation of the Communication
  5. Submitting the Communication - the Addresses
  6. Receipt of the Communication by the Treaty Body
  7. Reservations
    1. Substantive Reservations
    2. Procedural Reservations
  8. Date of Ratification
  9. Making Decisions
  10. Interim Measures
  11. Admissibility of Communications
  12. Determination of the Merits
  13. Issuance of Views
  14. Follow-up to Views
  15. Summary of Matters That Should Be Included in the Communication/Complaint
  16. Pitfalls to Avoid

1. Introduction

a) What Is a Complaints Procedure?

A complaints procedure is a formal process by which an individual or, in some cases, a group of individuals, make a complaint to the treaty body associated with the treaty. The individual would claim that a state party has violated his or her individual rights under the treaty.

Complaints of human rights violations are referred to in the treaties as "communications". One treaty body prefers the word "complaints". A complaint may also be referred to as an "application" or "petition".

b) What Is the Purpose of Making an Individual Complaint?

The purpose of an individual complaint is to address an individual case of violation by a state party of its human rights obligations under the treaty. This can be contrasted with other international procedures that may focus on the general human rights situation in a state, rather than addressing a particular violation. In this sense, an individual complaints procedure functions in a similar manner to domestic legal proceedings.

The advantage of making an individual complaint is that a person who believes his or her rights have been violated has an opportunity to receive a determination from an international expert body that supports his or her claim of a violation and an entitlement to a remedy. Although the decisions of the UN human rights treaty bodies are not legally binding, the treaty bodies have been given the authority by states parties to express their expert views as to whether a violation of rights, and the states' international obligations to protect those rights, has occurred. The expertise of the committees developed over decades of monitoring the implementation of the treaties, combined with the legal requirement that states parties ratify treaties in good faith, means that there is an obligation for states parties to take the decisions of the treaty bodies seriously. The treaty bodies expect states parties to implement their decisions, and call upon states to provide the victim with an appropriate remedy. Even if this call is not enforceable in a domestic court, and there is no international police force to ensure its implementation, a decision of an international expert body that an individual's human rights, and a particular state's obligations to protect those rights, have been violated can be a powerful tool for achieving redress.

c) Which Treaties Have Complaints Procedures?

Four human rights treaties, the International Covenant on Civil and Political Rights (CCPR), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), currently have operating individual complaints procedures associated with them.

d) Which States Can Be the Subject of an Individual Complaint?

Although the four treaties, CCPR, CERD, CEDAW and CAT, have individual complaints procedures associated with them, mere ratification of the treaty itself does not empower the treaty body to scrutinize complaints made against a particular state.

In each case, specific acceptance of the complaints procedure is optional for states parties to the treaty. A complaint can only be brought against a particular state if, in addition to ratification of the treaty itself, the state has separately recognized the competence of the treaty body to receive and consider complaints.

2. The Basis for the Right to Lodge a Complaint

a) The International Covenant on Civil and Political Rights (CCPR)

i) The Optional Protocol to the CCPR

The International Covenant on Civil and Political Rights does not contain an individual complaints procedure within the text of the actual treaty. A complaints procedure is contained in a separate treaty, the Optional Protocol to the Covenant.

By becoming a state party to the Optional Protocol, a state recognizes the competence of the treaty body, the Human Rights Committee, to receive and consider written complaints (called "communications" or "petitions") from individuals who believe their rights under the Covenant have been violated by the state party concerned (Optional Protocol, articles 1 and 2).

ii) When Entered into Force

The Optional Protocol was drafted at the same time as the Covenant and came into force on the same day, 23 March 1976. It is a treaty in its own right, and only binds states parties that have separately ratified it. Where a state party ratified the Optional Protocol after 23 December 1975, the Optional Protocol came into force three months after the date of deposit of its instrument of ratification.

iii) Number of Ratifying States

The Optional Protocol is only open for signature and ratification by states parties to the CCPR. Almost three-quarters of states parties to the Covenant have ratified or acceded to the Protocol. In order to lodge a complaint, it is necessary to first determine whether the state that is the intended object of the complaint is a party to the Optional Protocol.

iv) The Committee's Jurisprudence

The complaints procedure under the Optional Protocol has been used much more extensively than the procedures under the other treaties. Communications have been registered against at least 70 different states, and over 1000 individual communications had been registered by the Committee.

The Human Rights Committee is responsible for receiving and considering communications under the Optional Protocol.

The Human Rights Committee has been able to develop case law that more specifically interprets and develops the principles and rights set out in the CCPR. Past communications are indicative of how the Human Rights Committee has previously interpreted, defined or addressed a specific right.

The Views and other decisions of the Human Rights Committee regarding complaints are published in the annual reports of the Committee. Most of these decisions are also available online.

b) The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

i) The Article 22 Procedure

The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) contains an individual complaints procedure which enables individuals who believe they have been victims of a violation of the rights set out in the Convention, to complain to the treaty body, the Committee against Torture (CAT).

Individuals can only submit a complaint to CAT if the state party they believe violated their rights has made a declaration that it recognizes the competence of the Committee to receive and consider such complaints (article 22).

ii) When Entered into Force

The complaints procedure became operative on the same date as the Convention came into force, 26 June 1987. Where a state party made the declaration of competence under article 22 after 26 June 1987 , the complaints procedure became operative immediately upon making the declaration.

iii) Number of States Which Have Made the Declaration of Competence under Article 22

Over one-third of states parties have made the declaration under article 22 recognizing the competence of the Committee to receive individual communications.

iv) The Committee's Jurisprudence

The complaints procedure under article 22 of CAT has been used quite frequently by individuals, although not to the same extent as the Optional Protocol to the CCPR. Communications have been registered against at least 20 different states, and approximately 200 individual communications have been registered.

The Committee Against Torture (CAT) is responsible for receiving and considering communications under article 22.

CAT has developed case law that more specifically interprets and develops the principles and rights set out in the Convention. The majority of cases to date have concerned the provision which prohibits a state party from expelling, returning or extraditing a person to another state where there are substantial grounds for believing that the person would be in danger of being subjected to torture. (article 3) It is valuable to examine past communications to help determine how the Committee has previously interpreted, defined or addressed a specific right.

The Decisions of CAT regarding complaints are published in the annual reports of the Committee. Most of these decisions are available online.

c) The Convention on the Elimination of All Forms of Racial Discrimination (CERD)

i) The Article 14 Procedure

The Convention on the Elimination of all Forms of Racial Discrimination contains an individual complaints procedure that enables individuals, or groups of individuals, who believe they have been victims of a violation of the rights set forth in the Convention, to complain to the treaty body, the Committee on the Elimination of Racial Discrimination.

Individuals (or groups of individuals) can only make a complaint to the Committee if the state party that they believe violated their rights has made a declaration that it recognizes the competence of the Committee to receive and consider such complaints (article 14(1)).

ii) When Entered into Force

The complaints procedure entered into force on 3 December 1982. Where a state party to the Convention has made the declaration of competence under article 14 after 3 December 1982, the complaints procedure became operative immediately upon making the declaration.

iii) Number of States Which Have Made the Declaration of Competence under Article 14

Only about one-third of states parties have made the declaration recognizing the competence of the Committee to receive individual communications under article 14. In order to lodge a complaint, it is necessary to determine whether the state that is the intended object of the complaint has made the declaration under article 14.

iv) The Committee's Jurisprudence

The complaints procedure under CERD has been used infrequently to date by individuals. Communications have been registered against less than 10 different states, and only about two dozen communications have been registered in the history of the complaint process.

The Committee on the Elimination of Racial Discrimination is responsible for receiving and considering communications under article 14 of CERD.

CERD has been able to develop some case law that more specifically interprets and develops the principles and rights set out in the Convention. The decisions (Opinions) of CERD are published in the annual reports of the Committee and are available online.

d) The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

i) The Optional Protocol to CEDAW

The Convention on the Elimination of All Forms of Discrimination Against Women does not contain an individual complaints mechanism within the text of the treaty. In 1999 a right of individual communication associated with the treaty was adopted in the form of an Optional Protocol. The Optional Protocol establishes, among other things, an individual complaints procedure.

By becoming a state party to the Optional Protocol, a state recognizes the competence of the treaty body, the Committee on the Elimination of Discrimination Against Women (CEDAW), to receive and consider written communications from individuals or groups of individuals who claim to be victims of a violation by that state party of any of the rights set forth in the Convention (articles 2 and 3).

ii) When Entered into Force

The Optional Protocol was adopted by the General Assembly on 6 October 1999 and entered into force on 22 December 2000. The Optional Protocol is a treaty in its own right, and only binds states parties that have separately ratified it. Where a state party ratified the Optional Protocol after 22 September 2000, the Optional Protocol came into force three months after the date of deposit of its instrument of ratification.

iii) Number of Ratifying States

The Optional Protocol is only open for signature and ratification to states parties to CEDAW. About one-quarter of the states parties to the Convention have ratified the Optional Protocol.

iv) The Committee's Jurisprudence

As the Optional Protocol has only recently come into force, the Committee on the Elimination of Discrimination Against Women, does not yet have a body of case law.

3. General Overview of the Process

Although the complaints procedures associated with each of the four human rights treaties are not identical, the process of making a complaint is similar. This section describes the general process of making a complaint and explains the kind of information that needs to be included in a communication to a treaty body. Additional sections of the website will discuss separately and in more detail the individual complaints process for each treaty.

See flow chart indicating the main steps in determination of a complaint.

The main steps to making a complaint:

  • The author or complainant prepares the complaint, also called a "communication" or "petition".

  • The communication is received by the Secretary-General of the United Nations (Secretariat of the Office of the UN High Commissioner for Human Rights in Geneva or the Division for the Advancement of Women in New York), who brings it to the attention of the relevant treaty body.

  • The treaty body registers the communication.

  • The treaty body examines the communication and considers:

    • the admissibility of the communication, and if admissible
    • the merits of the communication.

The treaty body issues its "Views", also called an "Opinion" or "Decision", to the parties.

The treaty body may engage in some follow-up activities to monitor the states parties' response to its Views.

Each of these steps is discussed below.

4. Preparation of the Communication

The first step is for the person who believes his or her rights have been violated ("the author"/ "the complainant") to prepare a complaint ("communication").

Important points to note:

  • The communication must be in written form.

  • For some of the treaty bodies, there is no formal time limit for bringing a claim. CERD, however, requires that the claim be brought within six months after the final national judgment. In any event, delay in bringing the claim should be avoided so as to ensure that the claim is credible and so as to maximize the availability of evidence.

  • A victim may seek assistance in drafting the communication (for example, from a lawyer or a non-governmental organization (NGO))

  • In general, a communication must be lodged in the name of the victim. A person submitting a communication on behalf of a victim must show proper authority to do so. Class actions or cases brought by parties not personally affected, are not accepted.

  • None of the relevant treaties facilitate the provision of legal aid for the purposes of submitting an individual complaint to the treaty bodies. Accordingly, the treaty bodies are unable to assist in that regard. However, national legal systems may provide legal aid in this context, and domestic provisions for legal aid should therefore be checked.

  • Every attempt should be made to include in the communication all the information necessary to enable the treaty body to determine both that the complaint is admissible and that there has been a violation of a treaty provision.

  • One or more of the treaty bodies provide model complaint forms to assist prospective complainants. The model form outlines the information that needs to be included in the communication. Use of this form is optional.

5. Submitting the Communication - the Addresses

Once the communication has been drafted, it should be submitted to the relevant treaty body. In the case of the CCPR, CERD and CAT, the address is the Office of the High Commissioner for Human Rights in Geneva. In the case of CEDAW, the address is the Division for the Advancement of Women in New York. The addresses are:

CCPR

Human Rights Committee,
c/o Office of the UN High Commissioner for Human Rights,
Palais Wilson,
52 Rue des Pacquis,
1211 Geneva, Switzerland

fax: (41 22) 917-9022
email: tb-petitions.hchr@unog.ch

CERD

Committee on the Elimination of Racial Discrimination,
c/o Office of the UN High Commissioner for Human Rights,
Palais Wilson,
52 Rue des Pacquis,
1211 Geneva, Switzerland

fax: (41 22) 917-9022
email: email: tb-petitions.hchr@unog.ch

CAT

Committee Against Torture,
c/o Office of the UN High Commissioner for Human Rights,
Palais Wilson,
52 Rue des Pacquis,
1211 Geneva, Switzerland

fax: (41 22) 917-9022
email: tb-petitions.hchr@unog.ch

CEDAW

Committee on the Elimination of Discrimination against Women,
c/o Division for the Advancement of Women, Department of Economic and Social Affairs,
United Nations Secretariat,
2 United Nations Plaza,
DC-2/12th Floor,
New York, New York 10017
U.S.A.

fax: (1) (212) 963-3463
[no email address yet]

Important points to note:

  • The complaint should clearly specify the treaty body which the author intends should examine the communication.

  • Communications sent by fax or email can be received, but not registered unless the Secretariat receives a signed original.

  • Communications specifically requesting urgent action should be sent by fax or email, if necessary with documentation to follow.

  • If the communication is not sufficiently detailed, before registering the communication, the UN Secretariat may seek more information from the author. This will slow down the process of having the communication reach the intended treaty body for consideration.

6. Receipt of the Communication by the Treaty Body

The treaty bodies will not receive complaints unless they concern the actions of a state party that has both:

  • ratified the relevant treaty; and
  • either:
    (a) in the case of the CCPR and CEDAW, ratified the Optional Protocol recognizing a right of individual communication; or
    (b) in the case of CERD and CAT, made the declaration recognizing the competence of the treaty body to receive and consider such communications.

Accordingly, prior to submitting the communication, it is important to verify whether the state party has ratified the relevant treaty and made the necessary declarations of competence.

Points to note about verifying ratification:

  • States parties' ratifications and declarations can be obtained online.

7. Reservations

When verifying whether the state party has ratified the relevant treaty, the author or complainant should investigate whether the state party has made any reservations that affect the complainant's ability to bring a complaint about a particular matter. Reservations may be substantive or procedural in nature.

a) Substantive Reservations

These are reservations that affect the content of the obligations undertaken by the state party under the treaty. States parties may make reservations that limit or qualify their assent to be bound by a particular right.

A complaint cannot be brought alleging the breach of an obligation under the relevant treaty if the state has indicated, through a reservation, that it does not consent to be bound by that obligation. Such complaints will be declared inadmissible.

Note, however, that certain reservations are deemed to be contrary to the object and purpose of the treaty. If the treaty body considers that a reservation is contrary to the object and purpose of the treaty, it might disregard the reservation and treat the relevant obligation as binding on the state party. The Human Rights Committee and CEDAW have directly told states parties their conclusions as to whether a reservation is incompatible with the object and purpose of their respective treaties. CERD and CAT have not yet made a statement about the incompatibility of reservations with each of their treaties.

b) Procedural Reservations

The state party may have made procedural reservations when ratifying the Optional Protocol or making the declaration of competence, that limit the circumstances in which the state recognizes the competence of the relevant treaty body to receive and consider individual communications. For example, a state party may specify in a reservation that the relevant treaty body cannot consider complaints against the state if the complainant has already utilized some other international investigative procedure.

8. Date of Ratification

Since the four treaties do not have retroactive effect, violations that took place before the date of ratification to the relevant treaty cannot be the subject of complaint.

Exception:

Where a right was breached prior to the relevant treaty being ratified, but the effect of the breach continued after ratification, the breach of that right can be the subject of a complaint. An example would be where a person has been arbitrarily detained by a state prior to ratification of the CCPR, but remains in prison after the date of ratification.

9. Making Decisions

The treaty body proceeds to hear and decide the communication. The procedure followed may differ among treaty bodies and from case to case. However, there are some common features:

  • The treaty bodies usually deal with communications in the order in which they were received.
  • In each case, the relevant treaty body will make two decisions:
  • a) a decision about the admissibility of the communication; and
    b) if the communication is admissible, a further decision about the merits of the complaint.

  • If the treaty body considers that the communication is clearly inadmissible, the treaty body may declare the communication inadmissible without inviting the state party against whom the allegation is made to respond to the complaint on the merits, or deal with the substance of the complaint.

  • In all other cases, the treaty body will invite the state party against whom the allegations are made to respond to the communication, both on the question of the admissibility of the complaint and on the merits of the complaint. In some cases a treaty body may ask a state party to respond to the question of admissibility first as a separate and prior issue.

  • The author/complainant will be given an opportunity to respond to any submissions received by the treaty body from the state party.

  • Regardless of whether the state party has been asked to respond on the questions of admissibility and merits separately or at the same time, the treaty body will not determine the merits of a communication unless it has determined that the communication is admissible.

  • If a communication is found to be inadmissible and the complainant subsequently believes that the ground of inadmissibility no longer exists, the complainant may ask the treaty body to reconsider the complaint.

Example: if the complaint is found to be inadmissible because the complainant has not exhausted all domestic remedies and the complainant subsequently exhausts all such remedies, the complainant is entitled to re-submit the complaint.

  • If the communication is found to be admissible, the treaty body will proceed to determine the communication on the merits.

  • All deliberations take place in private, on the basis of the written information provided to the treaty body by the parties. Although the Human Rights Committee and CAT theoretically have the power to hear from the complainant and the state party in person, that power has never been exercised. A complainant who believes an oral hearing would be appropriate should make that request known to the treaty body.

  • Since this is an individual complaints procedure aimed at solving the problems of a particular person, the name of the person must be communicated to the state party so that the state party may investigate and take appropriate action. However, when necessary confidentiality is maintained in relation to the broader public during the examination of the complaint, and the "Views"/ "Opinions"/ "Decisions" may be issued without disclosing the name of the author or victim.

10. Interim Measures

At any stage prior to the final determination of a communication, a treaty body may request that a state party take interim measures in order to avoid irreparable damage to the alleged victim. The treaty bodies will only do so when the matter is urgent, and delay will result in irreparable damage. Such a request, however, will only be made where the author has provided sufficient information to indicate that his or her case will likely meet admissibility criteria.

A request for interim measures from the treaty bodies to the state party does not imply any result on the merits of the communication, or that the treaty body will ultimately find in the author's favour.

Example: a case in which the death penalty may be applied imminently, or extradition to a state in which the complainant fears torture

11. Admissibility of Communications

A number of admissibility requirements are common to all four complaints mechanisms. These are as follows:

Standing: the complaint must be made by an individual or, in certain circumstances, a group of individuals.

The rights guaranteed in the treaties are, for the most part, individual rights. The Optional Protocol to the CCPR and the complaints procedure under article 22 of CAT only allow for communications to be brought by individuals. In certain circumstances, a right may be held by an individual to engage in a group based activity. Breach of such a right can be complained about by any member of the group. However, it is still the individual who is making the complaint, not the group itself.

Examples: the right to practice one's own religion "in community with others"; or the right of persons belonging to a minority to enjoy their culture "in community with the other members of the group".

Several members of the group may complain at the same time about the same matter. In this situation, the treaty bodies are likely to join the cases.

In contrast, the complaints procedure contained in CERD and the Optional Protocol to CEDAW specifically contemplate that complaints can be brought by "groups of individuals", but not by businesses or corporations. However, one individual is not permitted to bring a case on behalf of many individuals in the same position as him or herself, unless he or she has been given express permission to act on their behalf.

The CAT and CEDAW Committees can also investigate systematic violations by states parties of treaty rights, but this is distinguished from the individual complaint process.

Standing: the author of the communication must be personally affected by the violation

Ordinarily, the victim himself or herself must bring the claim. If, however, the victim is unable to make the claim, another person (a relative or representative) may bring a claim on his or her behalf. In such cases:

  • The person bringing the claim must justify his or her authority to act on behalf of the victim.
  • The person bringing the claim does not necessarily have to be a family member, but there must be a personal relationship with the victim.
  • Unrelated third parties cannot submit a claim on behalf of a victim, unless they can clearly show that the victim authorized them to act on his or her behalf.

In certain circumstances, the consent of the victim may be unable to be obtained. If so, the author must explain why not, and why the individual is authorized to bring the complaint on the victim's behalf.

Examples: the victim is dead or being held incommunicado.
An unrelated person cannot bring a complaint simply because they know a violation has occurred, even if there is abundant evidence to prove the violation. Accordingly, an NGO cannot bring a claim on behalf of a victim on the NGO's own initiative. However, if the victim is unable to make the claim, the family may bring the claim and authorize an NGO or legal counsel to act on behalf of the victim. An NGO can also assist the victim or his or her family or representative in making the claim (for example, by paying for a lawyer or gathering evidence).

The complaint must not be anonymous

The identity of both the victim and the complainant (if different from the victim) must be revealed in the communication.

If the complainant 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 complainant not be revealed to the public.

Victims must have been subject to the jurisdiction of the alleged violating state party at the time the alleged violation occurred.

Victims must have been subject to the jurisdiction of the state party at the time the violation occurred. In most cases, this will mean that the victim was present within the territory of the state party at the time of violation. In some cases, however, a person may have been subject to the jurisdiction of a state party even though they were not within the state's territory at the relevant time.

Example:

(a) A person who is refused the right to enter the territory of the state party when his or her spouse is in that territory, can claim that his or her right to family life has been violated by the state, even though he or she was outside the state's territory at the relevant time.

(b) A victim who has fled the state that violated his or her human rights can bring a claim, even though he or she is no longer subject to the jurisdiction of that state. What matters is that the victim was under the jurisdiction at the time of the violation.

Note, however, that even though a victim is outside the territory of a state party at the time he or she makes the complaint, he or she must still exhaust any domestic remedies that are available within the violating state party before bringing a claim.

The victim does not need to be a citizen or resident of the violating state party. Refugees and illegal immigrants can bring claims. Persons who are held in transit zones at airports can complain about violations that occur there, even though the states may try to claim that such persons are not under their jurisdiction.

Victims must exhaust all domestic remedies before bringing a communication

In principle, the victim of a violation must, before bringing a communication, use all procedural means that are at his or her disposal within the legal system of the violating state to obtain relief. This includes exhaustion of all available judicial remedies (including appeal to the highest available court) and, in addition, exhaustion of any non-judicial procedures that might be available.

The requirement of exhaustion of domestic remedies may be satisfied, however, if it is shown that such remedies are ineffective, unavailable, or unreasonably prolonged.

In the following circumstances, the victim will not be required to exhaust all domestic remedies:

The local remedies are not available:

  • because there is no legal process available to protect the rights;
  • because access to the courts or other legal procedures to bring the claim related to the right has been denied; or
  • because in a criminal case there is no legal aid available, or the legal assistance that can be obtained is not effective because of fear in the legal community to argue such claims.

The local remedies are not effective in bringing relief:

  • because there is no independent adjudicator available;
  • because the prior case law concerning the violation of the right which is the subject of the complaint indicates that there is no real possibility of a remedy;
  • because there is a consistent pattern of violations which makes recourse to legal proceedings meaningless; or
  • for any other reason, the available procedures are unlikely to provide effective relief;
  • using the domestic procedures would involve unreasonable delay; or the courts have delayed hearing the complaint for an unreasonable length of time.

The author must go beyond a certain threshold of evidence to substantiate why he or she believes that local remedies are not effective.

To enable the treaty body to establish the admissibility of the complaint, the complainant should set out in detail in the communication both the domestic procedures that the complainant has attempted to utilize and the outcome of such procedures. If domestic remedies have not been fully exhausted, the complainant must explain why in detail.

The same complaint must not be pending before another international forum in the case of CCPR, CAT and CEDAW; in the case of CAT and CEDAW, the same complaint must not have been examined under another procedure of international investigation or settlement

With respect to all the treaty complaint mechanisms except CERD, at the time the complaint is lodged, the matter must not be under investigation by another procedure of international investigation or settlement.

Exception: some international procedures are not considered to amount to procedures of "international investigation or settlement." For example, the fact that the matter has been brought to the attention of a United Nations Special Rapporteur, or is being considered under the UN Economic and Social Council "1503 procedure" by the Working Groups of the United Nations Sub-Commission on the Promotion and Protection of Human Rights (Working Group on Communications) or the Commission on Human Rights (Working Group on Situations), will not be considered sufficient to render an individual communication inadmissible.

Once a procedure of international investigation or settlement has fully ended, with respect to CCPR and CERD there is, in theory, nothing to prevent an individual communication being brought about the same matter. However in practice, many states parties have made reservations to these treaties that preclude recourse to the treaty bodies once another international procedure, whether regional or universal (UN), has been utilized.

The victim's claim must be sufficiently substantiated

If there is not sufficient evidence to make the claim credible, the treaty body may dismiss the claim for lack of substantiation. Although the treaties themselves do not provide for a criterion of "manifestly ill-founded", the rules of procedure of the treaty bodies have created the similar category of non-substantiation.

The victim's claim must not be incompatible with the provisions of the relevant treaty

This means the case will be found to be inadmissible if the right itself is not protected by the treaty. For example the CCPR does not protect the right to property, the right to seek asylum, the right to acquire a nationality, or the right to strike. Sometimes, however, committees have declared communications inadmissible as incompatible when they were compatible, but not properly substantiated.

The complaint must not constitute an abuse of the right of submission

The same matter may not be complained about several times. This means that identical claims will not be accepted. However, different victims of the same act of violation can all bring their claim separately.

There may be no insulting language in the complaint. Since this is a quasi-judicial procedure, the parties are required to argue in an appropriate manner.

The treaty bodies will dismiss a complaint if they believe the complaints procedure is being used for other reasons than for a genuine human rights complaint.

Examples:

a) The complaint constitutes a political attack on the state party.

b) A racist group complains about limitations on their freedom of expression when they were inciting racial hatred.

Time delays in bringing a complaint may result in inadmissibility

A long delay in submitting a case entails difficulties for the state party and for the Committee to determine the facts. Thus, if the delay is unjustified, the Committee may deem it an abuse of the right of submission. CERD specifies a 6-month rule in bringing a complaint past the exhaustion of domestic remedies.

12. Determination of the Merits

At the merits stage, the treaty body will determine whether any of the rights guaranteed in the treaty have been violated, bearing in mind any relevant reservations made by the state party.

Important points to note:

  • The complainant does not have to prove the facts beyond any doubt but he or she must make an initially sufficient (prima facie) case and submit enough evidence to go over the admissibility threshold.

  • In order to enable the treaty body to reach a decision on the merits, the author should include in the communication a detailed fact statement, containing all the evidence that is at his or her disposal. The committees attach importance to specific dates. Copies of arrest warrants, court judgments, affidavits, medical reports should be submitted, whenever available.

  • If the treaty body considers that it does not have sufficient information to decide the complaint, it may ask the complainant for more information.

  • Burden of proof: if all or most of the information is in the hands of the state party, non-cooperation with the Committee will lead to a reversal of the burden of proof.

  • Third-party/amicus curiae briefs: The Committees do not formally accept third-party submissions. However, the usefulness of submitting supporting, well-argued analysis from third parties cannot be completely discounted and may prove more valuable in the future.

13. Issuance of Views

Once the treaty body has reached a view on the merits of the communication, it will send its decision ("Views"/ "Opinions"/ "Decisions") to the complainant and to the state party.

Important points to note:

  • In its Views the treaty body expresses its opinion about the complaint, after having considered the position of both the complainant and the state. If the treaty body finds that there has been a violation, it can recommend measures to the state to remedy the violation.

  • These Views and recommendations are not legally binding. At the same time, by ratifying the treaty the state party undertook legal obligations not to violate those rights. The treaty body's considered opinion as to whether those legal obligations have been breached should be considered as authoritative.

  • There are no sanctions for non-implementation of Committee Views. Although a treaty body cannot "force" a state to remedy a violation, in many cases states have in fact provided remedies to the complainants involved.

14. Follow-up to Views

States parties must report to the treaty bodies on the measures they have taken in response to Views. The Human Rights Committee has appointed one of its members to undertake to ensure the treaty body has this information and to recommend further action when unsatisfactory replies are received from states parties. This individual, known as the Special Rapporteur on Follow-up, monitors the compliance with the committee's decision. The mechanism of a Rapporteur for Follow-up has recently been adopted by CAT, and is also anticipated in relation to the CEDAW Optional Protocol.

15. Summary of Matters That Should Be Included in the Communication/Complaint

In order to ensure that the treaty body has sufficient information before it to determine both the admissibility and merits of the complaint the following information should be clearly included.

  • The name of the treaty body to which the complaint is directed;

  • The name of the victim and, if different, the author of the complaint. If possible, the application must be signed by the victim. (Otherwise, the author must sign the complaint and show the authority on which he or she is acting).

  • A contact address (this can be the address of a representative rather than the complainant).

  • The nationality of both the victim (and if different the author) of the complaint.

  • The state against which the complaint is brought.

  • The rights under the relevant treaty that are alleged to have been violated (indicate the relevant articles in the treaty and keep in mind any relevant state reservations).

  • The domestic remedies that have been exhausted and the outcome of any such domestic procedures, or evidence as to why domestic remedies are ineffective, unavailable or unreasonably prolonged.

  • Any other procedure of international investigation or settlement that has been engaged. (In the case of CAT and CEDAW a prior or pending decision of another procedure of international investigation or settlement on the same matter will preclude a communication to either treaty body).

  • A detailed fact statement, including all available evidence, such as medical reports.

  • The remedy requested.

16. Pitfalls to Avoid

  • Common grounds for failing to satisfy preliminary criteria for the registration and subsequent examination of the petition:

  • the state alleged to violate the rights of the author is not a party to the relevant complaints procedure (the Optional Protocol to the CCPR, article 14 CERD, article 22 CAT, the Optional Protocol to CEDAW)

  • the state party has entered a reservation to the relevant treaty as a result of which the complaint cannot be examined

  • the complaint is being examined (in the case of CCPR, CAT and CEDAW) by the European Court of Human Rights, the Inter-American Commission or Court of Human Rights, the African Commission on Human and People's Rights

  • the complaint has been examined (in the case of CAT and CEDAW) by the European Court of Human Rights, the Inter-American Commission or Court of Human Rights, the African Commission on Human and People's Rights

  • the object of the complaint, such as the rights violations cited, fall outside the scope of the relevant treaty

  • the events complained of occurred prior to the entry into force of the relevant treaty or treaty provision for the state concerned

  • domestic judicial/administrative remedies do not appear to have been exhausted, and it has not been substantiated that the application of domestic remedies would be unreasonably prolonged or that the remedies would be otherwise unavailable or ineffective

  • the Human Rights Committee will generally not review the evaluation of facts and evidence by the national courts and authorities, nor the interpretation of domestic legislation

  • the Human Rights Committee will generally not review a sentence imposed by national courts, nor the question of innocence or guilt

  • the treaty bodies will not generally examine disputes between private individuals or alleged violations of human rights that have been committed by non-state actors

  • the individual petition has not been presented by the alleged victims themselves or by duly authorized representatives

  • the petition is anonymous

  • the petition does not provide sufficient details as to the facts of the case, and/or how the alleged victim's rights under the relevant treaty have been violated

  • correspondence has been submitted in a language which is not a working language of the Secretariat (at OHCHR - English, French, Spanish and Russian); CEDAW may accept complaints in the two remaining languages of the UN (Arabic and Chinese)