Transcript Diapositive 1 - World Organisation Against Torture

INDIVIDUAL
COMMUNICATIONS
Geneva, Switzerland
6 – 9 May 2008
Boris Wijkström
OMCT Legal Advisor
LECTURE Outline
I.
INTRODUCTION
II.
ADMISSIBILITY
III.
SUBMISSION & CONSIDERATION
OF COMPLAINTS
IV.
FOLLOW-UP
International Supervision
Committee against Torture




Human Rights Committee
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

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.
International Supervision
Human Rights Committee
1)
State Reports
2)
Individual Communications (OP ICCPR)
3)
Interstate Complaints
4)
General Comments
International Supervision
Committee against Torture
1)
State Reports
2)
Individual Communications
3)
Interstate Complaints
4)
General Comments
5)
Inquiry Procedure
Admissibility Criteria
I)
II)
Standing Rules
Jurisdictional Requirements
a) Ratione Materiae
b) Ratione Temporis
c) Ratione Loci
III)
IV)
V)
VI)
Exhaustion of Remedies
No Simultaneous Submission
Abuse of the Right of Submission
Reservations
SOURCES OF RULES
ICCPR


Optional Protocol to the ICCPR
Jurisprudence
CAT


Article 22
Jurisprudence
Who has “Standing” to Bring a
Complaint?
« Victims » (Art. 1 OP ICCPR)

Natural Persons

Affected by Violation(s)
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.
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: + 41 22 809 4939
Fax: +41 22 809 4929
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:………………………..
Signature: ………………………………….
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.
JURISDICTIONAL
REQUIREMENTS
a)
Ratione Materiae (ICCPR
OP Art. 3)
«The Committee shall consider inadmissible any
communication … which is … incompatible with
the provisions of the Covenant »
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.
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).
COMPLAINTS
PROCEDURES
Admissibility Criteria
I)
II)
Standing Rules
Jurisdictional Requirements
a) Ratione Materiae
b) Ratione Temporis
c) Ratione Loci
III)
IV)
V)
Exhaustion of Remedies
No Simultaneous Submission
Abuse of the Right of Submission
Exhaustion of Remedies
Rule:
Victims must exhaust domestic
remedies before lodging
complaints before the Committee
(OP Art. 5(2)(b)).
Rationale:
« subsidiarity principle »
Application of Exhaustion
Rule
1)
Appeal to Highest Domestic Instance
2)
No New Claims
3)
Obligation of Diligence on Applicant
4)
What Remedies must be Exhausted (for torture)?
5)
Initial Burden of Proof on Author
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).
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.
COMPLAINTS
PROCEDURES
Admissibility Criteria
I)
II)
Standing Rules
Jurisdictional Requirements
a) Ratione Materiae
b) Ratione Temporis
c) Ratione Loci
III)
IV)
V)
Exhaustion of Remedies
No Simultaneous Submission
Abuse of the Right of Submission
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;
No Simultaneous
Submission to another
International Body
« another procedure of international investigation or
settlement »
Analogous Individual Complaints Procedures
1)
2)
Regional Human Rights Bodies (European, African & Inter-American
Systems)
Other UN Treaty Bodies
Non-Analogous Procedures
1)
2)
3)
4)
Urgent Appeal to UN Special Rapporteur
UN Working Group on Arbitrary Detention
1503 Procedure
Studies by international organizations or NGOs
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)
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.
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
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].
Human Rights Committee
Individual Communication
Individual Communications Procedure
(Stats 1977 – 2006)
Rejected
SR New Communications
Registration (1’490)
(>4’000)
Request for additional information
Forwarded to State Party for Comments
SP Reply + Author’s
Comments
Severance of
Admissibility and
Merits
Consideration Admis. &
Merits
Inadmissible
(449)
No Violation
HRC finds Violation
(429)
(118)
Seizing SR
Follow-Up
SP Remdies Violation
Continued SR
Monitoring
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
Procedure after Registration




State party’s comments on admissibility and
merits (within six months)
Author’s 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
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
Relationship with other
Supervisory Functions of
Treaty Body
Alternative Reports
Individual
Complaints
Inquiry Procedure (CAT)
General Comments
Other