Transcript International and European human rights complaint mechanisms

KEY INTERNATIONAL
AND
EUROPEAN HUMAN RIGHTS
MONITORING AND COMPLAINT
MECHANISMS
Convening in Legal Advocacy on Roma Health Rights
Macedonia, Ohrid, July 9-11, 2012
Human Rights Monitoring and
Complaint Mechanisms
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UN/European (Council of Europe)
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Judicial/non-judicial
UN Human Rights Bodies
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Charter-based bodies (5)
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Human Rights Council
Universal Periodic Review
Commission on Human Rights
Special Procedures of the Human Rights
Council
Human Rights Council Complaint
Procedure
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Treaty based bodies (10)
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Human Rights Committee (CCPR)
Committee on Economic, Social and Cultural
Rights (CESCR)
Committee on the Elimination of Racial
Discrimination (CERD)
Committee on the Elimination of
Discrimination against Women (CEDAW)
Committee against Torture (CAT)
Subcommittee on Prevention of Torture (SPT)
Committee on the Rights of the Child (CRC)
Committee on Migrant Workers (CMW)
Committee on the Rights of Persons with
Disabilities (CRPD)
Committee on Enforced Disappearances
(CED)
UN Complaint Procedures
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Individual communications
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State-to-state complaints
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HR body may on its own initiative initiate inquiries if they have received reliable information
containing well-founded indications of serious or systematic violations of the conventions in a State
party.
Only CAT and CEDAW
Applicable to SRB, MK, RO
Special procedures
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Never used
Inquiries
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not all HR treaty bodies can consider individual complaints
Individual who claims his/her human rights have been violated or a third party on a behalf of the
individuals
mechanisms to address either specific country situations or thematic issues, including the right to
health, in all parts of the world
Activities: responding to individual complaints, conducting studies, providing advice on technical
cooperation at the country level, promotional activities
Human Rights Council complaint procedure
Individual communications
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Only 5 human rights bodies can consider individual
complaints (communications)
The most relevant for Roma health rights:
 Human
Rights Committee - communications relating to the
International Covenant on Civil and Political Rights
 CEDAW - the Convention on the Elimination of Discrimination
Against Women
 CAT - Convention Against Torture
 CERD - the Convention on the Elimination of Racial
Discrimination
Lodging a complaint - general rules
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Anyone claiming his/her rights have been violated
Possibility to bring a claim on behalf of another person
if his/her written consent is obtained and provided to
the committee
Against a State that is party to the treaty and
recognized competence of the committee
No particular form; in written and signed by the
applicant
In one of the working languages
Lodging a complaint - content
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Provide basic personal information
Specify State party against which claim is directed
Set out, in chronological order, all the facts on which the claim is based
Describe the steps taken to exhaust the remedies available domestically
State whether the case have been submitted to another means of
international investigation or settlement
Explain why the facts outlined in the claim constitute a human rights
violation of the treaty
Not strictly necessary to identify the specific articles of the treaty that
have allegedly been violated.
Provide evidence - supply all documents of relevance to the claims and
arguments
Legal aid is not provided by the procedure
NO TIME LIMITS!!! Exception, CERD – 6 month after the final decision at
national level
Interim measures
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Each committee has the facility to take urgent action
where irreparable harm would otherwise be suffered
before the case is examined in the usual course
Such requests are issued to prevent actions that cannot
later be undone
It is advisable to state request for urgent action
explicitly in the claim
Admissibility criteria
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Provided proof of consent if acting on behalf of another person
Victim has to demonstrate personal and direct affect of the law,
policy, practice, act or omission of the State party
Compatibility of the complaint with rights actually protected by
the treaty
Sufficiently substantiated complaint
Exhaustion of all domestic remedies. Limited exceptions to this rule
Bringing repeated claims to the committee on the same issue
although they have already been dismissed
Reservation of the State precluding the complaint
Complaint being examined under another mechanism of
international settlement
Committee’s decision
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Case is inadmissible
Case constitutes violation of the treaty
Case does not constitutes violation of the treaty
Committee’s decision is final
If found that the applicant was a victim of a
violation of the State party, it invites the State
party to supply information within three months on
the steps it has taken to give effect to its findings
European HR complaint mechanisms
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Key instruments
 ECHR
– European Convention on Human Rights
 European Social Charter (Revised)
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Key mechanisms
 ECtHR
– European Court of Human Rights
 ECSR – European Committee of Social Rights
European Committee of Social Rights
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The rights guaranteed by the Charter concern all individuals in their daily
lives:
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Housing
Health
Education
Employment
Legal and Social Protection
Free movement of persons
Non-discrimination
The ECHR’s mandate: to judge that States party are in conformity in law
and in practice with the provisions of the European Social Charter.
Collective complaint mechanism – but RO, SRB and MK have not ratified
protocol on collective complaint mechanisms
European Court of Human Rights
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ECtHR protects the rights guaranteed in the ECHR
ECHR- does not explicitly protect right to health
Right to health (including patient’s rights) can be brought
under the right to life, prohibition of inhuman and degrading
treatment, respect for private and family life, right to
effective legal remedy, prohibition of discrimination
Key admissibility criteria:
Individual application
 Victim status
 Right guaranteed under ECHR
 All available domestic legal remedies exhausted
 Time limit: 6 months from the final decision at national level
 Other
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Examples of health rights violations
Right to Privacy
EXAMPLES OF (POTENTIAL) VIOLATIONS
 A doctor discloses a patient’s history of drug use or addiction without his or her
consent
 Government requires disclosure of HIV status on certain forms
 Health care workers require young people to obtain parental
 Consent as a condition of receiving sexual health services
Right to Information
EXAMPLES OF (POTENTIAL) VIOLATIONS
 Government bans publications about drug use or harm reduction, claiming it promotes
illegal activity
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Young people are deliberately denied information about sexually transmitted
diseases (STDs) and the use of condoms
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Roma women lack access to information on sexual and reproductive health
Examples of health rights violations
Right to Bodily Integrity
EXAMPLES OF (POTENTIAL) VIOLATIONS
 A Roma woman is sterilized against her will
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Doctors compel a drug-using pregnant woman to undergo an abortion
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Treatment is routinely given to residents of an institution without their consent as they
are assumed to lack the capacity to make decisions about their treatment and care
Right to Life
EXAMPLES OF (POTENTIAL) VIOLATIONS
 Doctors refuse to treat a person who is experiencing a drug overdose because drug
use is illegal, resulting in the person’s death
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Drug users die as a result of poor fire safety in a locked hospital ward
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The mortality rate of an institution is particularly high during the
 winter months due to the poor condition of the building, inadequate
 sanitation and heating, and poor quality of care
Examples of health rights violations
Right to Life
EXAMPLES OF (POTENTIAL) VIOLATIONS
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Doctors refuse to treat a person who is experiencing a drug overdose because drug use is
illegal, resulting in the person’s death
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Drug users die as a result of poor fire safety in a locked hospital ward
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The mortality rate of an institution is particularly high during the winter months due to the poor
condition of the building, inadequate sanitation and heating, and poor quality of care
Right to the Highest Attainable Standard of Health
EXAMPLES OF (POTENTIAL) VIOLATIONS
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State fails to take progressive steps to ensure access to antiretroviral drugs for people living with
HIV or to prevent mother-to-child HIV transmission
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Doctors and health facilities are not located in proportionate proximity to certain poor
neighborhoods
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State systematically fails to provide training in palliative care for its medical personnel
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A child in a social care home becomes bedridden due to malnutrition
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Women with mental disabilities are denied reproductive health