Complaints Procedures of the International Human Rights Supervisory Bodies

A brief overview of the complaints procedures under the four major human rights supervisory bodies follows. For further explanation of supervisory mechanisms, see theHuman Rights Reference Handbook. Here the focus is primarily on how individuals can submit complaints regarding alleged human rights violations.

Before bringing a case to the international human rights supervisory bodies, several important issues need be taken into account.

Ratification of the respective international legal instrument and acceptance of the competence of the supervisory body

Claims can only be submitted against states that a) are parties to the respective treaty, and b) have recognised the competence of the supervisory body to consider complaints from individuals. For example, in the case of the ICCPR, in order to submit an individual complaint the state concerned must be a party to the ICCPR and the First Optional Protocol to the ICCPR . In the Inter-American system, the jurisdiction of the Inter-American Commission is automatic when states become party to the American Convention (Article 44 ACHR). However, states have to accept the jurisdiction of the Court to examine individual complaints (Article 62 ACHR). Under the European system, since the entry into force of Protocol No. 11 to the ECHR(1 November 1998), individuals have direct access to the Court and the jurisdiction of the Court has become mandatory for parties to the ECHR. Generally, information on this aspect is accessible through the Internet. The CD-ROM also includes relevant information, but it is advisable to check for the latest developments online.

Admissibility ratione materiae

The alleged violation must relate to a right actually protected by treaty. Therefore, the first step is to identify an international instrument that protects the right or rights which allegedly have been violated by the state. One cannot, for example, claim a violation of the right to property before the Human Rights Committee, because the ICCPR does not protect that right. Such a claim would be, in legal terms, inadmissible ratione materiae.On the other hand, the right to property is protected by the African Charter and the American Convention, so a claim could be submitted to the supervisory body if the alleged violation was committed by a state party to one of these treaties.

Reservations and relevant date

After ascertaining that the accused state is party to the relevant human rights treaty and that it has recognised the competence of its supervisory body to consider individual complaints, two further elements need to be examined:

  • Reservations: A state may have entered reservations. Through a reservation, it may have excluded or altered the effects of certain provisions of a treaty in their application to that state, or limited the supervisory body’s competence to examine certain communications. It is therefore important to check whether the state in question has made a reservation on the provision or the mechanism to be invoked. For example, a state may have precluded the HRC’s consideration of claims that have in the past been considered by another international mechanism. In exceptional cases, the supervisory mechanisms may decide that a particular reservation is impermissible because it goes against the object and purpose of the treaty and consider the communication notwithstanding the purported reservation.
  • Date of ratification: The date on which the state becomes party to the treaty and accepts the supervisory mechanism must also be taken into account. Generally, the complaint must relate to events that occurred subsequent to the entry into force of the complaint mechanism for the respective state. As a rule, supervisory bodies do not examine complaints dating from a period prior to the entry into force, in which case the complaint would be regarded, in legal terms, as inadmissible ratione temporis. There are, however, exceptions. In cases where the effects of the event in question have extended into the period covered by the complaint mechanism, and in themselves constitute a human rights violation, such as ‘disappearances’, the supervisory body may consider the overall circumstances.

After examination of the above issues one may find that:

  1. the state allegedly responsible for a violation is not a party to any human rights treaty which protects the right or rights violated, in which case it would be important to check if some other supervisory procedure could be invoked; cases can for instance be brought to the extra-conventional mechanisms . In this regard, attention should be paid to the Special Rapporteurs and Working Groups of the UN Commission on Human Rights (e.g. the Working Group on Enforced or Involuntary Disappearances and the Working Group on Arbitrary Detention), as well as the existing regional human rights rapporteurs.
  2. it is possible to submit the claim to more than one supervisory mechanism, in which case further analysis is required (see below).

Duplication of procedures

Where an alleged violation is covered by more than one human rights instrument to which the responsible state is party, it is necessary to decide which supervisory body would provide the best remedy. It is important to be aware that some supervisory bodies do not examine communications or petitions that have been dealt with under another international mechanism (see below for the relevant information in each instrument). In order to decide which mechanism is the best choice, several factors need to be taken into account. They include the following:

  1. The specific character of a particular procedure has to be taken into consideration. Sometimes, individual complaints are possible both at the universal level (e.g.ICCPR) and under a regional system (e.g. European Convention, Inter-American Convention or African Charter on Human and Peoples 'Rights ). In such cases, making a complaint under the regional systems is sometimes preferable as the regional individual complaints procedures are decided by human rights courts (e.g.the European and the Inter-American Courts of Human Rights). The final judgements are legally binding on the state in question and include an explicit decision on compensation or reparation. The nature of the complaint must also be taken into account; many cases regarding discrimination in Europe have been brought to the quasi-judicial Human Rights Committee instead of the European Court as the Committee’s ‘case-law’ and the text of the Covenant implies better protection regarding non-discrimination than the European system.
  2. It is important to take note that although it is possible to submit a complaint to the Human Rights Committee after a regional procedure has been exhausted (e.g.ECHR), most states parties to the European Convention have made a declaration at the time of the ratification of the Optional Protocol to the ICCPR, which excludes duplication of procedures in the same case. Some states parties, however, allow persons under their jurisdiction to submit claims to both systems successively, even if not concurrently.

Locus standi

Locus standi (‘place of standing’) means the right to bring an action or to be heard in a given forum. Not everyone can lodge a complaint before the human rights supervisory bodies. International human rights treaties establish who can bring a complaint; so the relevant provisions in each instrument need to be checked. In most cases, it is possible to lodge a complaint if you are the victim or you are acting on his/her behalf (with legal consent of the victim). There are exceptions to this rule. Check below for the rules of the supervisory bodies examined in this book. If you are the victim, you must be able to demonstrate that you are personally and directly affected by the law, policy, practice, act, or omission of the state party which you claim has violated or is violating your rights. It is not sufficient simply to challenge a law or state policy or practice in the abstract (a so-called actio popularis) without demonstrating how you are individually affected.

Formal requirements

The petition/communication must satisfy some formal requirements of admissibility. The following factors are relevant:

  • The rule of exhaustion of domestic remedies: A crucial rule governing the admissibility of a complaint is that you must, in general, have exhausted all remedies in the state where the violation occurred before bringing a claim to an international body. This usually includes pursuing your claim through the local court system. There are, however, exceptions to this rule. If the exhaustion of remedies is unreasonably prolonged, or plainly ineffective or otherwise unavailable to you (owing, for example, to denial of legal aid in a criminal case), you may not be required to exhaust domestic remedies (see below for the rules applied by each supervisory body).

    If after examination of the above mentioned issues you find that:

    1. you have exhausted all domestic remedies, in your complaint you should describe the efforts you have made to exhaust local remedies, specifying the claims advanced before the national authorities and the dates and outcome of the proceedings. Some mechanisms require that you submit the complaint within a specified period of time after all domestic remedies have been exhausted (see below).
    2. the exception to the rule on the exhaustion of domestic remedies applies to your case, you should give detailed reasons why the general rule should not apply in your communication.
  • The substance of the compliant: The supervisory bodies would consider your communication inadmissible if you are unable to sufficiently demonstrate that the facts of your complaint tend to establish a violation of the rights guaranteed in the pertinent human rights instrument. Therefore, you should try to sufficiently substantiate your complaint. If the relevant supervisory body considers that, in light of the information before it, you have not sufficiently developed the arguments for a violation of the treaty in question, it may reject the claim as ‘insufficiently substantiated’ or ‘manifestly ill-founded’.
  • No abusive complaint: Supervisory bodies may reject complaints that are considered to make inappropriate use of the complaint procedure, including, for example, repeated claims on an issue that has previously been dismissed. You should try to be effective and efficient in your efforts to seek redress. Therefore, you should try to avoid abuse of your right to submit communications.
  • Time limits: Some instruments contain time limits within which a complaint has to be filed.

    At this point you should make sure that in the communication you have:

    1. sufficiently demonstrated that a violation has occurred;
    2. identified yourself (no anonymous petitions are allowed); and
    3. not used insulting language.

Interim measures

If the violation you are facing is of extreme gravity and urgency and immediate action is required in order to avoid irreparable damage to persons, you can request the supervisory body to adopt ‘interim’ or ‘provisional’ measures, that is, to take urgent action to avoid irreparable damage. Under certain circumstances the supervisory bodies may adopt such measures on their own initiative. When requesting that interim measures be adopted, it is advisable that the urgency of the situation and the measures to be taken to avoid the damage, are clearly described. In addition, you can also approach relevant special rapporteurs and NGOs for help.

Amicus curiae brief

One way to get involved in litigation at the international level is by submitting an amicus curiae brief. Literally, the term means ‘friend of the court’. An amicus curiae brief is filed with the court by someone who is not a party to the case. It can provide legal arguments or valuable information on how the case affects people other than the parties to the case, or it may bring attention to relevant matters not already brought to the Court’s attention by the parties. Each system has its own regulation on permissible third party intervention in proceedings. Information on each system is provided below.

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