INDIVIDUAL COMMUNICATIONS Geneva, Switzerland 6 – 9 May 2008 Boris Wijkström OMCT Legal Advisor.

INDIVIDUAL COMMUNICATIONS

Geneva, Switzerland6 – 9 May 2008

Boris WijkströmOMCT Legal Advisor

LECTURE OutlineLECTURE Outline

I.I. INTRODUCTION INTRODUCTION

II.II. ADMISSIBILITYADMISSIBILITY

III.III. SUBMISSION & CONSIDERATION SUBMISSION & CONSIDERATION OF COMPLAINTSOF COMPLAINTS

IV.IV. FOLLOW-UP FOLLOW-UP

International International SupervisionSupervisionCommittee against TortureCommittee against Torture

Established under Articles 17 -Established under Articles 17 -24 of CAT24 of CAT

10 Members (independent 10 Members (independent experts nominated by States experts nominated by States Parties) Parties)

2 meetings per year in 2 meetings per year in GenevaGeneva

Operates under its own Rules Operates under its own Rules of Procedureof Procedure

Human Rights CommitteeHuman Rights Committee

Established under Articles Established under Articles 28 - 4528 - 45

18 Members (independent 18 Members (independent experts nominated by experts nominated by States Parties) States Parties)

3 meetings/year (2 Geneva, 3 meetings/year (2 Geneva, 1 New York)1 New York)

Operates under its own Operates under its own Rules of Procedure. Rules of Procedure.

International International SupervisionSupervisionHuman Rights CommitteeHuman Rights Committee

1)1) State ReportsState Reports

2)2) Individual Communications (OP ICCPR)Individual Communications (OP ICCPR)

3)3) Interstate ComplaintsInterstate Complaints

4)4) General CommentsGeneral Comments

International International SupervisionSupervisionCommittee against TortureCommittee against Torture

1)1) State ReportsState Reports

2)2) Individual CommunicationsIndividual Communications

3)3) Interstate ComplaintsInterstate Complaints

4)4) General CommentsGeneral Comments

5)5) Inquiry ProcedureInquiry Procedure

Admissibility CriteriaAdmissibility Criteria

I)I) Standing RulesStanding RulesII)II) Jurisdictional RequirementsJurisdictional Requirements

a) a) Ratione MateriaeRatione Materiae

b) b) Ratione TemporisRatione Temporisc) c) Ratione LociRatione Loci

III)III) Exhaustion of Remedies Exhaustion of Remedies IV)IV) No Simultaneous SubmissionNo Simultaneous SubmissionV)V) Abuse of the Right of Submission Abuse of the Right of Submission VI)VI) ReservationsReservations

SOURCES OF RULESSOURCES OF RULES

ICCPRICCPR

Optional Protocol to the ICCPROptional Protocol to the ICCPR JurisprudenceJurisprudence

CATCAT Article 22Article 22 JurisprudenceJurisprudence

Who has “Standing” to Who has “Standing” to Bring a Complaint?Bring a Complaint?

« Victims » (Art. 1 OP « Victims » (Art. 1 OP ICCPR) ICCPR)

Natural PersonsNatural Persons

Affected by Violation(s)Affected by Violation(s)

Who has “Standing” to Who has “Standing” to Bring a Complaint?Bring a Complaint?

Rule: Rule: Victims of Victims of ViolationsViolations

OP ICCPR Article 1OP ICCPR Article 1

A State Party to the Covenant that becomes a Party A State Party to the Covenant that becomes a Party to the to the present Protocol recognizes the competence of the present Protocol recognizes the competence of the

Committee to receive and consider communications Committee to receive and consider communications from from individuals subject to its jurisdiction who claim to be individuals subject to its jurisdiction who claim to be victims victims of a violation by that State Party of any of the rights of a violation by that State Party of any of the rights set forth set forth in the Covenant. in the Covenant.

Authorization FormAuthorization Form

I, Mr. John Doe, hereby authorize:I, Mr. John Doe, hereby authorize:

World Organisation Against Torture (OMCT)World Organisation Against Torture (OMCT)8, rue du Vieux-Billard, 8, rue du Vieux-Billard, CP 21 Geneva 8CP 21 Geneva 8

1211 Switzerland1211 SwitzerlandTel: + 41 22 809 4939 Tel: + 41 22 809 4939 Fax: +41 22 809 4929Fax: +41 22 809 4929

To present, on my behalf as my representative, a petition to the Human Rights To present, on my behalf as my representative, a petition to the Human Rights Committee and to take all action required for the successful continuation, Committee and to take all action required for the successful continuation, conclusion and follow-up of proceedings in my case, before that body. conclusion and follow-up of proceedings in my case, before that body.

Place: ………………….Place: ………………….Date:………………………..Date:………………………..

Signature: ………………………………….Signature: ………………………………….

JURISDICTIONAL JURISDICTIONAL REQUIREMENTSREQUIREMENTS

a) a) Ratione Materiae Ratione Materiae (ICCPR OP Art. 3)(ICCPR OP Art. 3)

A person must have a complaint under one of the substantive rights of the A person must have a complaint under one of the substantive rights of the treaty in question.treaty in question.

b) b) Ratione TemporisRatione Temporis

The violation complained of must relate to an incident which takes place The violation complained of must relate to an incident which takes place after after the relevant instrument has entered into force in that country.the relevant instrument has entered into force in that country.

c) c) Ratione LociRatione LociThe violation must have take place within the jurisdiction of the State Party – normally The violation must have take place within the jurisdiction of the State Party – normally

on on its territory. its territory.


a)a) Ratione Materiae Ratione Materiae (ICCPR OP Art. 3)(ICCPR OP Art. 3)

««The Committee shall consider The Committee shall consider inadmissible any inadmissible any communication … which is communication … which is … … incompatibleincompatible with with the provisions of the the provisions of the Covenant » Covenant »


b) b) Ratione Temporis (see Table 1 in Ratione Temporis (see Table 1 in “Seeking Remedies” p. 40)“Seeking Remedies” p. 40)

i) Rule:i) Rule: The violation must relate to events The violation must relate to events which takes which takes place after the relevant instrument has place after the relevant instrument has entered into force entered into force in that country.in that country.

ii) Exception: Continuing Violations ii) Exception: Continuing Violations

Sankara et al v. Burkina Faso Sankara et al v. Burkina Faso (1159/03) (1159/03) – – OP OP entered entered into force 12 years after violation giving into force 12 years after violation giving

rise to the case.rise to the case.


c) c) Ratione Loci Ratione Loci (OP ICCPR Art. 1)(OP ICCPR Art. 1)

Rule:Rule: A State Party is responsible for respecting its A State Party is responsible for respecting its treaty treaty obligations within its « territory and obligations within its « territory and jurisdiction » jurisdiction » ICCPR Art. 2(1).ICCPR Art. 2(1).

Applic.Applic.:: States Parties’ obligations also extend to 1) States Parties’ obligations also extend to 1) territory territory over which it has effective control over which it has effective control (colonies, military (colonies, military occupation etc); 2) occupation etc); 2) States Parties obligations extend States Parties obligations extend to the conduct to the conduct of its agents, regardless of where of its agents, regardless of where those those agents are located. Eg. agents are located. Eg. Montero v. Uruguay Montero v. Uruguay

(106/81),(106/81), Lichtensztejn v. Uruguay Lichtensztejn v. Uruguay (77/1980). (77/1980).

COMPLAINTS COMPLAINTS PROCEDURESPROCEDURES





III)III) Exhaustion of Remedies Exhaustion of Remedies IV)IV) No Simultaneous SubmissionNo Simultaneous SubmissionV)V) Abuse of the Right of SubmissionAbuse of the Right of Submission

Exhaustion of Remedies Exhaustion of Remedies

Rule:Rule: Victims must exhaust Victims must exhaust domestic domestic remedies before remedies before lodging lodging complaints before complaints before the Committee the Committee (OP Art. 5(2)(b)). (OP Art. 5(2)(b)).

Rationale:Rationale: « subsidiarity principle » « subsidiarity principle »

Application of Application of Exhaustion RuleExhaustion Rule1)1) Appeal to Highest Domestic InstanceAppeal to Highest Domestic Instance

2)2) No New ClaimsNo New Claims

3)3) Obligation of Diligence on ApplicantObligation of Diligence on Applicant

4)4) What Remedies must be Exhausted (for torture)What Remedies must be Exhausted (for torture)??

5)5) Initial Burden of Proof on AuthorInitial Burden of Proof on Author

ExceptionsExceptions

1)1) Unavailable / Ineffective / Futile / Dangerous Unavailable / Ineffective / Futile / Dangerous

Applicants are not required to exhaust remedies that are 1) not available, Applicants are not required to exhaust remedies that are 1) not available, Henry v. JamaicaHenry v. Jamaica, (230/87); 2) have « no objective prospect of success », , (230/87); 2) have « no objective prospect of success », Pratt and Morgan v. JamaicaPratt and Morgan v. Jamaica (210/86, 225/87); 3) which are not sufficient to (210/86, 225/87); 3) which are not sufficient to afford redress, afford redress, Vicente et al. v. ColombiaVicente et al. v. Colombia (612/95); 4) which expose the (612/95); 4) which expose the applicant to retaliation by State Party, applicant to retaliation by State Party, Phillip v. Trinidad and TobagoPhillip v. Trinidad and Tobago (594/92). (594/92).

2)2) Exceptional RemediesExceptional Remedies

Applicants are not required to exhaust remedies that are highly discretionary, Applicants are not required to exhaust remedies that are highly discretionary, e.g. pardons, e.g. pardons, Singarasa v. Sri LankaSingarasa v. Sri Lanka (1033/01) & (1033/01) & Urra Guridi v. SpainUrra Guridi v. Spain, CAT , CAT (212/2002), or which can only be invoked by public authorities. (212/2002), or which can only be invoked by public authorities.

3) 3) Unduly Prolonged RemediesUnduly Prolonged RemediesExpress exception in both the ICCPR OP Art. 5(2)(b) and CAT, see Express exception in both the ICCPR OP Art. 5(2)(b) and CAT, see Rajapakse Rajapakse v. Sri Lankav. Sri Lanka (1250/04). (1250/04).

Practice PointersPractice Pointers

Practice Points:Practice Points: 1) Argue all exceptions in the 1) Argue all exceptions in the alternativealternative

2) If in doubt, continue 2) If in doubt, continue exhausting exhausting (futile) national (futile) national remedies while in remedies while in parallel parallel submitting case to international submitting case to international instance. instance.

3) Resubmit case after exhausting 3) Resubmit case after exhausting remedies if it was remedies if it was

previously found to be previously found to be inadmissible. inadmissible.

COMPLAINTS COMPLAINTS PROCEDURESPROCEDURES





III)III) Exhaustion of Remedies Exhaustion of Remedies IV)IV) No Simultaneous SubmissionNo Simultaneous SubmissionV)V) Abuse of the Right of SubmissionAbuse of the Right of Submission

No Simultaneous No Simultaneous Submission to another Submission to another International BodyInternational BodyOP ICCPR - Article 5(2)(a) OP ICCPR - Article 5(2)(a)

« The Committee shall not consider any complaint from an individual « The Committee shall not consider any complaint from an individual unless it has ascertained that the same matter unless it has ascertained that the same matter is not being is not being examinedexamined under another procedure of international investigation or under another procedure of international investigation or settlement. »settlement. »

CAT - Article 22(5)(b)CAT - Article 22(5)(b)

The Committee shall not consider any communications from an The Committee shall not consider any communications from an individual under this article unless it has ascertained that: individual under this article unless it has ascertained that:

a) The same matter a) The same matter has not been, and is not beinghas not been, and is not being, , examined under examined under another procedure of international investigation or another procedure of international investigation or settlement;settlement;

No Simultaneous No Simultaneous Submission to another Submission to another International BodyInternational Body

« another procedure of international investigation « another procedure of international investigation or settlement »or settlement »

Analogous Individual Complaints ProceduresAnalogous Individual Complaints Procedures

1)1) Regional Human Rights Bodies (European, African & Inter-Regional Human Rights Bodies (European, African & Inter-American Systems)American Systems)

2)2) Other UN Treaty BodiesOther UN Treaty Bodies

Non-Analogous ProceduresNon-Analogous Procedures

1)1) Urgent Appeal to UN Special RapporteurUrgent Appeal to UN Special Rapporteur2)2) UN Working Group on Arbitrary DetentionUN Working Group on Arbitrary Detention3)3) 1503 Procedure1503 Procedure4)4) Studies by international organizations or NGOsStudies by international organizations or NGOs


OP ICCPR Art. 5(2)(a) and CAT Art. 22(5)OP ICCPR Art. 5(2)(a) and CAT Art. 22(5)(1)(1)

« …the same matter… »« …the same matter… »

« same claim concerning the same individual » « same claim concerning the same individual » Fanali Fanali v. Italy (75/80)v. Italy (75/80)

3 Elements to identical claims: 1) same individual, 3 Elements to identical claims: 1) same individual, Leirvag and Leirvag and others v Norwayothers v Norway 2) refer to the 2) refer to the same factssame facts and events and 3) raise « and events and 3) raise « substantially the substantially the same issuessame issues » » Glaziou v. FranceGlaziou v. France (452/91) (452/91)


OP ICCPR Art. 5(2)(a) and CAT Art. OP ICCPR Art. 5(2)(a) and CAT Art. 22(5)(1)22(5)(1)

« …examined … »« …examined … »

Generally inadmissibility findings on purely Generally inadmissibility findings on purely procedural grounds – non exhaustion, 6 procedural grounds – non exhaustion, 6

month month rule, rule, ratione materiae ratione materiae have not been have not been examined for examined for purposes of the OP. purposes of the OP.

No Simultaneous No Simultaneous Submission to another Submission to another International Body International Body continuedcontinued

CAVEAT: CAVEAT: State Party reservations State Party reservations (European (European States States reservations to the OP.)reservations to the OP.)

Reservations can be found on Reservations can be found on the the UN Treaty Body Database: UN Treaty Body Database:

http://www.unhchr.ch/tbs/doc.nsfhttp://www.unhchr.ch/tbs/doc.nsf

Abuse of the Right of Abuse of the Right of SubmissionSubmission Submitting false or misleading information (NB: Submitting false or misleading information (NB:

provision in your « retainer agreement with client »). provision in your « retainer agreement with client »).

Submitting a case a very long period of time after the Submitting a case a very long period of time after the violation with no convincing reason. violation with no convincing reason.

NB: this ground of inadmissibility is rarely invoked NB: this ground of inadmissibility is rarely invoked [compare to the 6-month rule of the other tribunals]. [compare to the 6-month rule of the other tribunals].

Individual Communication

SR New Communications

Registration (1’490)Forwarded to State Party for Comments

Rejected(>4’000)

SP Reply + Author’s Comments

Consideration Admis. & Merits

Inadmissible(449)

HRC finds Violation (429)

No Violation (118)

Human Rights Committee Individual Communications Procedure (Stats 1977 – 2006)

SP Remdies Violation

Seizing SR Follow-Up

Severance of Admissibility and

Merits

Continued SRMonitoring

Request for add-itional information

Interim Measures of Interim Measures of ProtectionProtection Objective: to avoid Objective: to avoid « irreparable damage»« irreparable damage»

RiskRisk: imminent, real and personal: imminent, real and personal

Decision by the Special Rapporteur on New Decision by the Special Rapporteur on New Complaints and Interim MeasuresComplaints and Interim Measures

Usually granted provisionallyUsually granted provisionally

May be contested by State party afterwardsMay be contested by State party afterwards

Procedure after Procedure after RegistrationRegistration

State party’s comments on admissibility State party’s comments on admissibility and merits (within six months)and merits (within six months)

Author’s comments (within two months)Author’s comments (within two months) Ready for decision Ready for decision Special case: the State party contests Special case: the State party contests

admissibility within two months, then admissibility within two months, then may be decision of the Committee on may be decision of the Committee on admissibility onlyadmissibility only

Follow-up procedureFollow-up procedure

SP to provide information on SP to provide information on implementations of Views within implementations of Views within 90 days90 days

Author to comment on this Author to comment on this information within two monthsinformation within two months

Special Rapporteur on follow-upSpecial Rapporteur on follow-up Information included in Annual Information included in Annual

Report to GAReport to GA

Relationship with other Relationship with other Supervisory Functions of Supervisory Functions of Treaty BodyTreaty Body

IndividualComplaints

Alternative Reports

Inquiry Procedure (CAT)

General Comments

Other

INDIVIDUAL COMMUNICATIONS Geneva, Switzerland 6 – 9 May 2008 Boris Wijkström OMCT Legal Advisor.

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Transcript of INDIVIDUAL COMMUNICATIONS Geneva, Switzerland 6 – 9 May 2008 Boris Wijkström OMCT Legal Advisor.