It is important to consider carefully which complaint procedure is best suited to a particular case. Each has its own strengths, specific requirements and limitations. They need to be considered in the interests of the victim(s) and of the individual(s) or
organization(s) presenting the complaint.
A. Individual complaints under the international human rights treaties Seven international human rights treaties allow for individual complaints to human rights treaty bodies:
l TheInternational Covenant on Civil and Political Rightsunder itsFirst Optional Protocol;
l TheConvention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishmentunder its article 22;
l TheConvention on the Elimination of All Forms of Discrimination against Women under itsOptional Protocol(this treaty also allows communications from groups of individuals);
l TheInternational Convention on the Elimination of All Forms of Racial
Discriminationunder its article 14 (this treaty also allows communications from groups of individuals);
l TheInternational Convention on the Protection of the Rights of All Migrant Workers and Members of Their Familiesunder its article 77. However, this provision will come into force only after 10 States parties have made a declaration to that effect.69
l TheConvention on the Rights of Persons with Disabilitiesunder itsOptional Protocol(this treaty also allows communications from groups of individuals); and
l TheInternational Convention for the Protection of All Persons from Enforced Disappearance under its article 31. By September 2008 this Convention had not yet entered into force.
Upon its entry into force, the Optional Protocol to theInternational Covenant on Economic, Social and Cultural Rights70will also allow for individual complaints.
Strengths
l An important advantage of submitting a complaint to a treaty body is that, once a State party has made the relevant declaration under the treaty, itshould comply with its obligationsunder that treaty, including the obligation to provide an effective remedy for breaches of the treaty. The relevant human rights treaty body, through individual complaints, authoritatively determines whether there has been a violation, and the State concerned has an obligation to give effect to the treaty body’s finding(s);
l Human rights treaty bodies can issue interim measures in urgent cases to preserve a situation until they make a final decision on the matter. This interim measure will stay in place until the decision is made;
l Decisions of human rights treaty bodies can go beyond the circumstances of the individual case and provide proactive guidelines to prevent a similar violation occurring in the future;
l Human rights treaty bodies can also consider complaints that are being or have been addressed by a special procedure.
Specific requirements and limitations
l The complainant’s case must fall within the scope of application of one of the treaties that allow for individual complaints;
l The State in question must be a party to the treaty and must have ratified the relevant optional protocol or accepted the competence of the specific human rights treaty body to accept complaints;
l When submitting an allegation to a human rights treaty body, a number of requirements must be met, including the consent or authorization of the victim. If any of these
requirements are not met or are missing, the complaint may not be considered;
69By September 2008 only one State had made such a declaration.
70The Optional Protocol was adopted by the Council on 18 June 2008 and is expected to be adopted by the General Assembly later in 2008.
l Under the International Convention on the Elimination of All Forms of Racial
Discrimination, complaints must be lodged within six months of the final decision by a national authority in a given case;
l The complainant must have exhausted all available and effective domestic remedies before sending a complaint to a treaty body—a remedy is considered effective if it offers a reasonable prospect of redress for the complainant;
l It takes two to three years, on average, for a final decision to be taken on a complaint;
l Generally, a complaint addressed to a human rights treaty body does not relate to a widespread pattern of human rights violations;
l Human rights treaty bodies may not consider a case that is already being considered by another international or regional adjudicative complaint procedure.71
B. Communications under special procedures
A number of the special procedures mechanisms allow for allegations to be made concerning either individual cases or a more general pattern of human rights abuse. All individuals, or others acting on an individual’s behalf, can submit individual cases to special procedures mandate-holders, if the mandate allows for this. Civil society actors can often support individuals seeking protection from human rights abuses.
Strengths
l Individual communications under special procedures are a procedure that may be used for individual cases as well as for a more general pattern of violations;
l They can be a useful tool in urgent cases as they allow for urgent or preventive action (known asurgent appeals);
l Cases may be broughtregardless of the Statein which they occur and of whether that State has ratified any of the human rights treaties;
l It is not necessary to have exhausted all domestic remedies before using the procedure;
l The communication is not required to be made by the victim, although the source must be reliable; and
l A complaint may be lodged simultaneously before a human rights treaty body and a special procedure (if there is a relevant mandate).
For detailed information on thehuman rights treaty bodies, please refer to chapter IV (Human rights treaty bodies)of this Handbook.
71This can be another treaty body, the European Court of Human Rights or the Inter-American Court of Human Rights, but does not include the special procedures of the Human Rights Council.
Limitations
l There must be a special procedure in place covering that specific human rights issue or that specific country (not all special procedures mandate-holders can act on individual cases);
l Special procedures are not legally binding mechanisms: it is at each State’s discretion to comply with the recommendations of special procedures mandate-holders; and
l Procedures vary depending on the mandate.
C. Human Rights Council’s complaint procedure
Any individual or group claiming to be the victim of human rights violations may submit a complaint under this procedure, as may any other person or group with direct and reliable knowledge of such violations. The Council’s complaint procedure is the only universal complaint procedure covering all human rights and all fundamental freedoms in all States.
Communications under it are not tied to the acceptance of treaty obligations by the country concerned or the existence of a special procedures mandate. The complaint procedure deals with consistent patterns of gross human rights violations in a State. It neither compensates alleged victims, nor does it seek a remedy for individual cases.
Strengths
l The procedure can deal withviolations of all human rights and fundamental
freedoms; a State does not need to be a party to a treaty for a complaint against it to be submitted under this procedure;
l Complaints may be broughtagainst any State;
l Complaints may be submitted by the victim or anyone acting on the victim’s behalf and does not necessarily require the victim’s written authorization;
l Complainants (authors of communications) are informed of the decisions taken at the various key stages of the process; and
l The admissibility criteria are generally less strict than for other complaints mechanisms.
For detailed information on the special procedures, please refer tochapter VI (Special procedures)of this Handbook.
Possible limitations
l The process can be lengthy, since the complaint goes through several stages of consideration, and therefore may not be suitable for urgent cases;
l The complainant must have exhausted all available and effective domestic remedies before sending information under this procedure;
l There are no provisions for urgent interim measures of protection;
l Communications must generally refer to a consistent pattern of human rights violations, in other words affecting a larger number of people, rather than individual cases;
l Due to its confidentiality, this procedure may not draw public attention to the human rights situation in a given State; and
l Cases that appear to reveal a consistent pattern of gross violations of human rights already being dealt with by a special procedure, a treaty body or other United Nations or similar regional human rights complaint procedure are not admissible under this procedure.