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The United Nations Human Rights Treaties |
How To Complain About Human Rights Treaty ViolationsThe Convention on the Protection of All Persons from Enforced Disappearance - Description1. Overview of the Committee on Enforced Disappearance 2. Individual Complaints Procedure of the Committee on Enforced Disappearance a. Registration of the Communication and Preliminary Procedures i. Submission of the Communication ii. Registration of the Communication iii. Transmittal to the State Party iv. Interim Measures b. Admissibility and Submissions from the Parties c. Determination of the Merits and Follow-up d. Urgent Action Procedure 3. Examples of Potential Cases Relating to the CED 1. Overview of the Committee on Enforced Disappearance The Committee on Enforced Disappearance (CED) is responsible for receiving and considering complaints under article 31 of the Convention on the Protection of All Persons from Enforced Disappearance. The Convention entered into force on 23 December 2010. The Committee follows specific procedures in the consideration of individual complaints. Generally, a committee’s procedure originates from three sources: the provisions Convention, the Rules of Procedure that have been adopted formally by the Committee, and the Committee’s customary practices. By 2012, the CED has adopted its Rules of Procedure, but has not considered any individual complaints under article 31 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 meets in Geneva. As of mid-2012, only two sessions have been held. Although most meetings are public, when the CED or its working group considers individual complaints, the meetings are “closed” to the public. To help maintain impartiality in the complaint process, the Rules of Procedure of the CED provide that a member shall not take part in the deliberation of a case in which they are an employee or a national of the state party concerned, have a personal interest in the case, where they have participated in any way in the making of any decision in the case before it reached the Committee, or if any other conflict of interest is present (Rule 47). Special Rapporteur on Communications and Working Group on Communications According to the Rules of Procedure of the Committee, the CED may establish one or more Working Groups, and may appoint one or more Special Rapporteurs to assist it in any way in which the Committee may decide (Rule 41). At its first session in November 2011, the Committee appointed a Special Rapporteur to consider urgent action requests and requests for interim measures between sessions. A Working Group has also been created to develop guidelines and rules concerning individual complaints. Under the Rules of Procedure, Working Groups and Special Rapporteurs are permitted to make decisions regarding interim measures, admissibility, requests for explanation, fix the time limits for making submissions, and make recommendations to the Committee on the merits of a communication. 2. Individual Complaints Procedure of the Committee on Enforced Disappearance
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 relating to the CED. i. Submission of the Communication A communication should be submitted to the CED through the Petitions Team, Office of the High Commissioner for Human Rights, in writing, by letter, fax or e-mail. 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 complaint must be clearly identified, and must be both a party to the Convention on Enforced Disappearance and have made the necessary declaration under Article 31 of the Convention. Although there is no mandatory format for communications, the CED has created a model communication form for potential complaints. Use of the form can streamline the communication process and is advisable. Where the communication does not provide the necessary information for it to be registered, the Secretariat may request further information from the author. Since the Committee will rely heavily on the facts in each particular case, it is especially important to set out all the relevant information at the outset. It is important to include, at minimum the following information: · the identity and contact information of the victim and author; · the name of the State against which the communication is directed; · the provisions of the Convention alleged to have been breached; · all the relevant facts together with any supporting documentation (such as a statement signed by the victim, witness statements, court documents, power of attorney); · steps taken to exhaust local remedies, or evidence why local remedies are ineffective, unavailable or unreasonably prolonged; · information regarding whether this matter is or has been before any other procedure of international investigation or settlement of the same nature; and · the remedy requested. Other important points: Languages of Communication The official languages (and to the extent possible, the working languages) of the Committee are Arabic, Chinese, English, French, Russian and Spanish (Rule 23). However, in light of Committee’s composition, communications that are submitted in English, French or Spanish may be processed in less time than those submitted in other languages, and it is therefore advisable to use one of these three languages when submitting a complaint. Time Limitations There is no stipulated time limit within which to bring a claim, but very long delays in bringing the claim may be considered by CED to lessen the credibility of the claim. Where a case involves an enforced disappearance, the disappearance must have commenced after the date of entry into force of the Convention for the state party concerned. Legal Aid The UN does not provide legal aid or financial assistance to authors, nor does the Convention 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 (with their approval). Victims are encouraged to seek assistance from NGO’s or legal professionals, or to appoint them as representatives, so as to focus their claims and facilitate the Committee’s examination. Withdrawal of the Communication Complainants may subsequently withdraw their communications.
Confidentiality (Rule 80) All documents pertaining to a communication are confidential. Cases are not publicized, except by the eventual release of a decision. All meetings are closed to the public when considering communications. However, the author and the State party may make public “any submissions or information bearing on the proceedings”, provided that the Committee does not expressly ask them to refrain from doing so. At all times, the Committee may decide that certain elements of the case must remain confidential. Decisions concerning inadmissibility, discontinuation or merits (Views) will be made public. Decisions that find a communication admissible will not be made public until the Committee has considered the merits of the communication. The Committee may, however, decide that the name or identifying details of the author or victim of a communication not be disclosed in its inadmissibility decisions or final views. The Committee may make such decisions on its own initiative, or at the request of the author, victim, or state party. ii. Registration of the Communication Communications will be initially reviewed by the UN Secretariat servicing the CED prior to their registration. The Secretariat may request clarification from the author of a communication regarding any of the following issues (Rule 67): · name, address, date of birth and occupation, or other forms of identifying details or data; · the State party against which the communication is directed; · the object of the communication; · the precise CED provision(s) being invoked; · clarification of the facts of the claim; · information about which local or domestic remedies have been used; or · information about other international investigation/settlement procedures that are being used. The Secretary-General will indicate a time limit for replying to such requests. Failure to provide adequate information necessary to register a case may result in the communication not being registered. iii. Transmittal to the State Party Once the Committee is satisfied the communication contains sufficient information, the communication will be transmitted confidentially by the Committee to the State party for a response. iv. Interim Measures At any time after receipt of the communication and before a determination on the merits has been reached, the Committee may request the State party to take interim measures to avoid possible irreparable damage to the claimant or victims. Any such requests are not prejudicial to the Committee’s final Views, nor are they an indication that the Committee has made any final decision as to the merits of the claim (Rule 70). After the Committee has sent a request for interim measures, the State party may present arguments on why a request should be lifted. On the basis of these explanations or arguments, the Committee has the discretion to withdraw its request for interim measures (Rule 70). b. Admissibility and Submissions from the Parties Once the communication has been transmitted to the State party, the state has four months in which to respond to the communication in writing (Rule 73). According to its Rules of Procedure, the regular practice of the Committee will be to seek a response from the State party simultaneously on both the issue of the admissibility and the merits of the communication, as well as any remedies provided in the matter. The State party’s response will then be transmitted to the author, who will be given an opportunity to comment, within a time frame fixed by the Committee. The Committee may request the State party or the author to submit additional written explanations or statements relevant to the issues of the admissibility or merits and, if it does so, will give the other party an opportunity to comment, again within a fixed time frame. The Committee is also entitled to obtain any documents that may assist in the consideration of the communication (for example, general country information held by NGOs or other United Nations bodies). If it does so, however, the Committee is obliged to offer both parties an opportunity to comment on the information, within fixed time limits, before relying on it (Rule 76). In exceptional circumstances, the Committee may choose to depart from its ordinary procedure, and to request that the State party’s initial written explanation or statement relate only to the admissibility of a communication (Rule 73). It is also possible for the State party to request that the Committee deal separately with the admissibility and the merits of a communication. Within two months of receiving a request from the Committee for its response to a communication, the State party may submit a request in writing that the communication be rejected as inadmissible, together with reasons in support of that request. The Committee will then decide whether to accede to the request to deal separately with the admissibility question. However, unless the Committee grants the State party an extension, the State party is still obliged to respond on the merits within the four month time frame. Having given the author(s) a chance to comment on the State party’s submission on admissibility, the CED will review all the information submitted by the parties, and adopt an admissibility decision. If the Committee as a whole makes the decision on admissibility, it is decided by a simple majority vote. Where a Working Group makes a decision of admissibility, the decision must be made by consensus (Rule 72). If the Committee decides that the communication is inadmissible, the case is finished. Where a communication has been found to be inadmissible, the author(s) may subsequently seek a review of the decision if the circumstances that gave rise to the inadmissibility of the decision no longer exist or apply (Rule 74). Under article 31 of the Convention, the Committee will find communications inadmissible where:
A complaint will also be inadmissible where the facts that are the subject of the communication occurred prior to the entry into force of the Convention for the State party concerned. Where the case involves an enforced disappearance, the disappearance must have commenced after the entry into force of the Convention for the State party. Communications may be made by or on behalf of individuals (Article 31). Groups or organizations do not have standing under the Convention. The Committee may divide a communication and consider it separately if it sets forth distinct facts, concerns more than one person, or refers to alleged violations that are not interconnected in time and place. The Committee may also decide to consider jointly two or more separate complaints (Rule 71). c. Determination of the Merits and Follow-up If the issue of admissibility and merits has been considered separately, once the complaint is found to be admissible, the State party is given an opportunity to make submissions on the merits of the claim. After considering the state’s submissions on the merits, the Committee is also entitled to revoke its decision that the complaint is admissible. The submissions of the State party are sent to the complainant, who is given an opportunity to submit additional written information or observations (Rule 75). The Committee may refer any communication to a Working Group to make recommendations on the merits prior to the consideration of the merits by the Committee. Where the admissibility and the merits are considered together, the Committee must decide if the communication is admissible before it considers the merits and adopts its final Views. The Committee will consider all the information before it and adopts its “Views” on whether or not there has been a violation of the Convention. Both parties will be informed of its final decision. The Views of the Committee will be determined by simple majority and will therefore not necessarily be unanimous. Any member of the Committee who has participated in the decision may request that his or her individual opinion be attached to the Views of the Committee. Where a violation of the Convention has been found, the state concerned is required to submit “follow-up” information six months of the adoption of Views (Rule 79). The state party is required to inform the Committee of any action taken in the light of the Views and recommendations of the Committee. The Committee will consider this information and may require further information to be submitted. The Committee will designate a Special Rapporteur or Working Group on Follow-up, who will ascertain the measures to be taken in response to the Committee’s Views. (Rule 79(4)). Other important points: Annual Reports of the Committee There is no sanction for failure to comply with the Committee’s Views. The Committee will follow the practice adopted by other Committees of giving publicity to its Views and follow-up information through the Committee’s annual reports to the General Assembly. Reservations Reservations to the CED 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 compatible with the object and purpose of the treaty. In these cases, it is possible that CED will refuse to apply the reservation in a manner which would limit the application of the Convention in the context of a communication. d. Urgent Action Procedure (Article 30) In addition to the right of individual complaint under article 31 of the CED, Article 30 of the Convention provides for an urgent action procedure whereby relatives of a disappeared person (or their legal representatives, counsel or any person authorized by them) may make a request that a disappeared person should be sought and found. Where the Committee determines that:
the Committee will request that the State party provide it with information on the situation of the persons sought, within set time limits. The Committee may then transmit recommendations to the State party, including a request to take all measures to locate and protect the person. The person submitting the urgent action request shall be informed of all recommendations and information provided by the State party as it becomes available. 3. Examples of Potential Cases Relating to the CED The Committee has not yet made any decisions under the complaint procedure and has not yet adopted any concluding observations on State party reports. Once the Committee has developed its case law and started considering State party reports, this can provide some assistance to their approach in the interpretation of Convention rights and freedoms. The following information, taken from the wording of the Convention, suggests some subject matter for potential communications. The application of these general principles and statements to specific circumstances will have to be further developed in the context of an individual case. Definition of enforced disappearance (Article 2) “Enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such a person outside the protection of the law. Failure to investigate (Article 3) State parties have an obligation to investigate acts of enforced disappearance committed by persons or groups of persons acting without the authorization, support or acquiescence of the State, and to bring those persons to justice. Criminal offence and prosecution (Articles 4-15) States are required to ensure that enforced disappearance is a criminal offence, punishable by appropriate penalties. No order or instruction from a public authority should be invoked to justify an offence of enforced disappearance. Articles 4 to 12 establish what measures the State should take with regard to laws, prosecution and jurisdiction of offences. Removal of individuals to other states and the danger of enforced disappearance (Article 16) A person shall not be expelled, returned, surrendered or extradited to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance. Secret detention, incommunicado detention, and official places of detention (Article 17) There is an absolute prohibition on secret detention. Any person deprived of their liberty is to be held only in officially recognized and supervised places. Any person deprived of their liberty has the right to communicate with and be visited by his or her family, counsel, and if a foreigner, with consular authorities. Article 17(3) sets out the official information a State party should maintain regarding records of detention. Review of lawfulness of detention (Article 17) Any person deprived of their liberty, and in the case of a suspected enforced disappearance, any person with a legitimate interest, is entitled to take proceedings before a court to review the lawfulness of detention. Access to information (Articles 18-20) With regard to a person deprived of their liberty, any person with a legitimate interest, such as a relative or legal counsel, has a right of access to the following information:
Protection of persons and information (Articles 18-20) Any person requesting or searching for information concerning a person deprived of liberty shall be protected from ill-treatment, intimidation or sanction as a result of the search for information. Any personal information, including medical or genetic data, which is transmitted within the framework of searching for a disappeared person, shall only be used for the purpose of searching for that person. The collection, processing, storing or use of the personal or medical data should not infringe on human rights or dignity. Verification of release from custody (Article 21) States have an obligation to ensure that persons deprived of their liberty are released in a manner permitting the reliable verification that they have actually been released. At the time of release, the State party should also ensure both the physical integrity of each person and their ability to fully exercise their rights. Remedies to victims (Article 24) A victim under article 24 includes both the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance. Each victim has the right to know the truth about the circumstances of the disappearance, the progress and results of the investigation, and the fate of the disappeared person. States are obligated to search for, locate and release disappeared persons, and in the event of death, to locate, respect and return their remains. Victims have the right to obtain reparation and prompt, fair and adequate compensation. Forms of reparation may include: restitution, rehabilitation, “satisfaction” – including restoration of dignity and reputation, and guarantees of non-repetition. Organizations and associations (Article 24(7)) Individuals have the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearance and the fate of disappeared persons, and to assist victims of enforced disappearance. Enforced disappearance of children (Article 25) States are under an obligation to prevent and punish the wrongful removal of children who are subjected to enforced disappearance, or their parents or children born during captivity of a mother subjected to enforced disappearance. States are also under an obligation to search for, identify and locate these children. Children have the right to preserve or re-establish their identity. State parties are obligated to establish legal procedures to review any adoption or placement of these children, and where appropriate, these procedures should allow for the annulment of any child adoption or placement that originated in an enforced disappearance. The best interests of the child is the primary consideration in all proceedings. The above paragraphs are examples of possible subject matter for future cases under the Convention Against Enforced Disappearance. It is not exhaustive. Individuals are entitled to make many types of claims on the basis of the rights set out in the Convention for the Protection of All Persons from Enforced Disappearance. |