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  Established under Articles 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  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) Standing Rules II) Jurisdictional Requirements a) Ratione Materiae b) Ratione Temporis c) Ratione Loci III) Exhaustion of Remedies IV) No Simultaneous Submission V) Abuse of the Right of Submission VI) 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 Switzerland Tel: Fax: 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) Standing Rules II) Jurisdictional Requirements a) Ratione Materiae b) Ratione Temporis c) Ratione Loci III) Exhaustion of Remedies IV) No Simultaneous Submission V) 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) Standing Rules II) Jurisdictional Requirements a) Ratione Materiae b) Ratione Temporis c) Ratione Loci III) Exhaustion of Remedies IV) No Simultaneous Submission V) 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) Regional Human Rights Bodies (European, African & Inter-American Systems) 2) Other UN Treaty Bodies Non-Analogous Procedures 1) Urgent Appeal to UN Special Rapporteur 2) UN Working Group on Arbitrary Detention 3) 1503 Procedure 4) 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:

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].

Individual Communication SR New Communications Registration (1’490) Forwarded to State Party for Comments Rejected (>4’000 ) SP Reply + Author’s Comments Consideration Admis. & Merits Inadmissible (449) HRC finds Violation (429) No Violation (118) Human Rights Committee Individual Communications Procedure (Stats 1977 – 2006) SP Remdies Violation Seizing SR Follow-Up Severance of Admissibility and Merits Continued SR Monitoring Request for add- itional information

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) State party’s comments on admissibility and merits (within six months) Author’s comments (within two months) Author’s comments (within two months) Ready for decision Ready for decision Special case: the State party contests admissibility within two months, then may be decision of the Committee on admissibility only 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 SP to provide information on implementations of Views within 90 days Author to comment on this information within two months Author to comment on this information within two months Special Rapporteur on follow-up Special Rapporteur on follow-up Information included in Annual Report to GA Information included in Annual Report to GA

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