Diapositive 1

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INDIVIDUAL COMMUNICATIONS Geneva,
Switzerland 6 9 May 2008 Bo
ris Wijkström OMCT Legal Advisor
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LECTURE Outline

• INTRODUCTION
• ADMISSIBILITY
• SUBMISSION CONSIDERATION OF COMPLAINTS
• FOLLOW-UP

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International Supervision

• Committee against Torture
• Established under Articles 17 -24 of CAT
• 10 Members (independent experts nominated by
  States Parties)
• 2 meetings per year in Geneva
• Operates under its own Rules of Procedure

• Human Rights Committee
• Established under Articles 28 - 45
• 18 Members (independent experts nominated by
  States Parties)
• 3 meetings/year (2 Geneva, 1 New York)?
• Operates under its own Rules of Procedure.

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International Supervision

• Human Rights Committee
• State Reports
• Individual Communications (OP ICCPR)
• Interstate Complaints
• General Comments

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International Supervision

• Committee against Torture
• State Reports
• Individual Communications
• Interstate Complaints
• General Comments
• Inquiry Procedure

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Admissibility Criteria

• Standing Rules
• Jurisdictional Requirements
• a) Ratione Materiae
• b) Ratione Temporis
• c) Ratione Loci
• Exhaustion of Remedies
• No Simultaneous Submission
• Abuse of the Right of Submission
• Reservations

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SOURCES OF RULES

• ICCPR
• Optional Protocol to the ICCPR
• Jurisprudence
• CAT
• Article 22
• Jurisprudence

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Who has Standing to Bring a Complaint?

• Victims (Art. 1 OP ICCPR)
• Natural Persons
• Affected by Violation(s)

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Who has Standing to Bring a Complaint?

• Rule Victims of Violations
• OP ICCPR Article 1
• A State Party to the Covenant that becomes a
  Party to the present Protocol recognizes the
  competence of the Committee to receive and
  consider communications from individuals subject
  to its jurisdiction who claim to be victims of a
  violation by that State Party of any of the
  rights set forth in the Covenant.

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Authorization Form

• I, Mr. John Doe, hereby authorize
• World Organisation Against Torture (OMCT)
• 8, rue du Vieux-Billard, CP 21 Geneva 8
• 1211 Switzerland
• Tel [phone]
• Fax [phone]
• 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, conclusion and follow-up of
  proceedings in my case, before that body.
• Place .
• Date..

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JURISDICTIONAL REQUIREMENTS

• a) Ratione Materiae (ICCPR OP Art. 3)
• A person must have a complaint under one of the
  substantive rights of the treaty in question.
• b) Ratione Temporis
• The violation complained of must relate to an
  incident which takes place after the relevant
  instrument has entered into force in that
  country.
• c) Ratione Loci
• The violation must have take place within the
  jurisdiction of the State Party normally on
  its territory.

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JURISDICTIONAL REQUIREMENTS

• Ratione Materiae (ICCPR OP Art. 3)
• The Committee shall consider inadmissible any
  communication which is incompatible with
  the provisions of the Covenant

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JURISDICTIONAL REQUIREMENTS

• b) Ratione Temporis (see Table 1 in Seeking
  Remedies p. 40)
• i) Rule The violation must relate to events
  which takes place after the relevant instrument
  has entered into force in that country.
• ii) Exception Continuing Violations
• Sankara et al v. Burkina Faso (1159/03) OP
  entered into force 12 years after violation
  giving rise to the case.

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JURISDICTIONAL REQUIREMENTS

• c) Ratione Loci (OP ICCPR Art. 1)
• Rule A State Party is responsible for
  respecting its treaty obligations within its
  territory and jurisdiction ICCPR Art. 2(1).
• Applic. States Parties obligations also
  extend to 1) territory over which it has
  effective control (colonies, military
  occupation etc) 2) States Parties obligations
  extend to the conduct of its agents,
  regardless of where those agents are located.
  Eg. Montero v. Uruguay (106/81),
  Lichtensztejn v. Uruguay (77/1980).

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COMPLAINTS PROCEDURES

• Admissibility Criteria
• Standing Rules
• Jurisdictional Requirements
• a) Ratione Materiae
• b) Ratione Temporis
• c) Ratione Loci
• Exhaustion of Remedies
• No Simultaneous Submission
• Abuse of the Right of Submission

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Exhaustion of Remedies

• Rule Victims must exhaust domestic remedies
  before lodging complaints before the
  Committee (OP Art. 5(2)(b)).
• Rationale  subsidiarity principle 

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Application of Exhaustion Rule

• Appeal to Highest Domestic Instance
• No New Claims
• Obligation of Diligence on Applicant
• What Remedies must be Exhausted (for torture)?
• Initial Burden of Proof on Author

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Exceptions

• 1) Unavailable / Ineffective / Futile / Dangerous
  
• Applicants are not required to exhaust remedies
  that are 1) not available, Henry v. Jamaica,
  (230/87) 2) have no objective prospect of
  success , Pratt and Morgan v. Jamaica (210/86,
  225/87) 3) which are not sufficient to afford
  redress, Vicente et al. v. Colombia (612/95) 4)
  which expose the applicant to retaliation by
  State Party, Phillip v. Trinidad and Tobago
  (594/92).
• 2) Exceptional Remedies
• Applicants are not required to exhaust remedies
  that are highly discretionary, e.g. pardons,
  Singarasa v. Sri Lanka (1033/01) Urra Guridi v.
  Spain, CAT (212/2002), or which can only be
  invoked by public authorities.
• 3) Unduly Prolonged Remedies
• Express exception in both the ICCPR OP Art.
  5(2)(b) and CAT, see Rajapakse v. Sri Lanka
  (1250/04).

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Practice Pointers

• Practice Points 1) Argue all exceptions in the
  alternative
• 2) If in doubt, continue exhausting
  (futile) national remedies while in
  parallel submitting case to international
  instance.
• 3) Resubmit case after exhausting
  remedies if it was previously found to be
  inadmissible.

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COMPLAINTS PROCEDURES

• Admissibility Criteria
• Standing Rules
• Jurisdictional Requirements
• a) Ratione Materiae
• b) Ratione Temporis
• c) Ratione Loci
• Exhaustion of Remedies
• No Simultaneous Submission
• Abuse of the Right of Submission

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No Simultaneous Submission to another
International Body

• OP ICCPR - Article 5(2)(a)
•  The Committee shall not consider any complaint
  from an individual unless it has ascertained that
  the same matter is not being examined under
  another procedure of international investigation
  or settlement. 
• CAT - Article 22(5)(b)
• The Committee shall not consider any
  communications from an individual under this
  article unless it has ascertained that
• a) The same matter has not been, and is not
  being, examined under another procedure of
  international investigation or settlement

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No Simultaneous Submission to another
International Body

•  another procedure of international
  investigation or settlement
• Analogous Individual Complaints Procedures
• Regional Human Rights Bodies (European, African
  Inter-American Systems)
• Other UN Treaty Bodies
• Non-Analogous Procedures
• Urgent Appeal to UN Special Rapporteur
• UN Working Group on Arbitrary Detention
• 1503 Procedure
• Studies by international organizations or NGOs

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No Simultaneous Submission to another
International Body

• OP ICCPR Art. 5(2)(a) and CAT Art. 22(5)(1)
•  the same matter 
• same claim concerning the same individual
  Fanali v. Italy (75/80)
• 3 Elements to identical claims 1) same
  individual, Leirvag and others v Norway 2) refer
  to the same facts and events and 3) raise
  substantially the same issues Glaziou v. France
  (452/91)

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No Simultaneous Submission to another
International Body

• OP ICCPR Art. 5(2)(a) and CAT Art. 22(5)(1)
•  examined  
• Generally inadmissibility findings on purely
  procedural grounds non exhaustion, 6 month
  rule, ratione materiae have not been examined
  for purposes of the OP.

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No Simultaneous Submission to another
International Body continued

• CAVEAT State Party reservations (European
  States reservations to the OP.)
• Reservations can be found on the UN Treaty
  Body Database http//www.unhchr.ch/tbs
  /doc.nsf

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Abuse of the Right of Submission

• Submitting false or misleading information (NB
  provision in your  retainer agreement with
  client ).
• Submitting a case a very long period of time
  after the violation with no convincing reason.
• NB this ground of inadmissibility is rarely
  invoked compare to the 6-month rule of the other
  tribunals.

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Human Rights Committee Individual Communications
Procedure (Stats 1977 2006)
Individual Communication
SR New Communications
Rejected (gt4000)
Request for add- itional information
Registration (1490) Forwarded to State Party for
Comments
SP Reply Authors Comments
Severance of Admissibility and Merits
Consideration Admis. Merits
Inadmissible (449)
No Violation (118)
HRC finds Violation (429)
Seizing SR Follow-Up
SP Remdies Violation
Continued SR Monitoring

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Interim Measures of Protection

• Objective to avoid  irreparable damage
• Risk imminent, real and personal
• Decision by the Special Rapporteur on New
  Complaints and Interim Measures
• Usually granted provisionally
• May be contested by State party afterwards

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Procedure after Registration

• State partys comments on admissibility and
  merits (within six months)
• Authors comments (within two months)
• Ready for decision
• Special case the State party contests
  admissibility within two months, then may be
  decision of the Committee on admissibility only

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Follow-up procedure

• SP to provide information on implementations of
  Views within 90 days
• Author to comment on this information within two
  months
• Special Rapporteur on follow-up
• Information included in Annual Report to GA

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Relationship with other Supervisory Functions of
Treaty Body
Alternative Reports
Individual Complaints
Inquiry Procedure (CAT)
General Comments
Other