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The term 'complaint procedure' is used throughout the text to refer to: A formal judicial-style process in which an individual or group of individuals make a complaint to an international judicial body alleging that their individual rights have been violated in a specific case. A complaint under such a procedure may also be referred to as an application, a petition or a communication. |
International complaint mechanisms are designed to address individual cases of violation by states of their obligations under human rights law, rather than to examine a general human rights situation. They function in a very similar manner to domestic legal proceedings, and are accompanied by more formal requirements than reporting procedures. As a rule, they are not intended to serve as a first resort, but will only accept complaints where it has not proved possible to obtain a remedy at the domestic level (where domestic remedies have been 'exhausted' - see Part III, Chapter 3.3.2.2). The decisions adopted in the context of international complaint procedures are generally binding on states, but can be difficult to enforce.
The following information applies to all individual complaint procedures as a general rule. Any exceptions are noted when the relevant mechanism is discussed in Part III, Chapters 4 and 5.
Complaint procedures can:
Complaint procedures cannot:
Individual complaint procedures can examine complaints which:
A state can be found to have violated its human rights obligations not only through its actions (e.g. the deliberate practice of torture), but also through its omissions (e.g. failure to take effective steps to prevent torture from occurring/failure to prosecute perpetrators/failure to investigate allegations). This means that an alleged violation can cover more than just the incident of torture itself, and could also be demonstrated by the circumstances surrounding the incident.
It should be noted that while some of the treaties considered in this handbook are torture-specific, others are more general in nature and cover a wide range of human rights. Complaints brought under a general treaty can allege violations of more than one right. For example, if an individual was detained arbitrarily and died in custody as a result of torture, it would be possible to allege violations of the right to liberty and security of person and the right to life as well as the right not to be tortured.
Under human rights law, states undertake to respect and protect the rights of all individuals under their jurisdiction. This basically means all individuals over which the state can exercise control. This includes all those within the state's territory (including foreigners, not just nationals of the state), but can also include those affected by the acts of state officials abroad, for example those affected by the acts of a state's armed forces in another territory.
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All individual complaint procedures are based on the same main chronological steps:
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At any stage of the proceedings, most of the bodies which receive individual complaints can:
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Some of these steps need further explanation.
The admissibility stage works as a kind of threshold - if a case is declared admissible, it moves on to an examination of the merits, but if it is declared inadmissible, the case is over.
When a judicial body examines the admissibility of an application, it is basically asking itself if it is allowed to consider the case. It does not examine whether or not the facts reveal a violation of international human rights law (this is what happens at the merits stage) - instead, it is asking if there are reasons which prevent it from looking at the case at all.
The reasons ('grounds') for which an international body will declare a case inadmissible will be indicated when considering that mechanism, but a number of them are common to most of the individual complaint procedures. Most of them are procedural grounds, which means that they do not relate to the facts of the case, but to the way in which the application has been made. The principal grounds of inadmissibility are:
The most common ground for declaring a complaint inadmissible is the non-exhaustion of domestic remedies, but it is also the most difficult to be certain about. It therefore needs to be examined in more detail.
=> What does 'exhaustion of domestic remedies' mean?
Basically, it means that if a victim of a human rights violation wants to bring an individual case before an international body, he or she must first have tried to obtain a remedy from the national authorities. It must be shown that the state was given an opportunity to remedy the case itself before resorting to an international body. This reflects the fact that states are not considered to have violated their human rights obligations if they provide genuine and effective remedies for the victims of actions of state officials, in recognition that certain individuals may engage in unacceptable behaviour without the approval of their governments.
The international bodies do recognise, however, that in many countries, remedies may be non-existent or illusory. They have therefore developed rules about the characteristics which remedies should have, the way in which the remedies have to be exhausted, and special circumstances where it might not be necessary to exhaust them.
=> What kind of remedies must a complainant have exhausted?
A complainant must have exhausted any remedy (whether judicial or administrative in nature) which is:
If the existing domestic remedies do not fulfil these criteria, a victim may not have to exhaust them before complaining to an international body. However, the complainant needs to be able to show that the remedies do not fulfil these criteria in practice, not merely in the opinion of the victim or that of his or her legal representative. For example, it might be necessary to be able to show that no person alleging torture who has ever used a particular remedy has ever been granted compensation. If there is any doubt as to whether a remedy is effective, the complainant should at least be able to show that an attempt was made to use it. Furthermore, if the remedy has become unavailable through the complainant's own fault (e.g. where the complainant has failed to respect the deadline for making an appeal, so that the appeal procedure becomes unavailable), this would not normally be accepted as a justification for non-exhaustion of the remedy.
If a complainant wishes to argue that a particular remedy did not have to be exhausted because it is unavailable, ineffective or inadequate, the procedure is as follows:
=> How must the remedy have been exhausted?
The subject of the complaint argued before the international body must have been referred to in the complaint before the domestic authorities. The reason for this is to make sure that the state has been given an opportunity to provide redress for the specific complaint which is being brought before the international body.
An example might be where a complainant has brought a domestic case seeking compensation for an act of torture, during which he or she did not question the nature of the police investigation into the complaint at any stage. If the court refuses to award compensation on the ground that the evidence presented was insufficient to establish that an act of torture occurred, and the complainant claims before the Committee Against Torture that there has been a violation of the state's obligation to ensure that there is a prompt and impartial investigation of allegations of torture, it is quite possible that this complaint will not be accepted because it was never raised before the domestic authorities - although it may be possible to complain about the failure to provide compensation.
=> When might it not be necessary to exhaust domestic remedies?
In special circumstances, the international body may find that domestic remedies did not have to be exhausted even where they were available, and potentially effective and adequate. Such special circumstances include:
Each case will be considered on its facts, and grounds which have been rejected in one case have sometimes been accepted in another, so do not hesitate to be creative in your arguments. One word of warning, however: ignorance of the existence of available remedies is unlikely to be accepted as a justification for non-exhaustion. You should make sure that you are fully-informed of the potential domestic remedies available in any case.
'Amicus curiae' means 'friend of the court', and the purpose of such a brief (submission) is to assist the judicial body by providing information which will help it to reach a decision. It is a practice which has not yet been accepted in the context of the UN mechanisms, which does not necessarily mean that it will not be developed in the future, but has been resorted to on a fairly regular basis by the European and Inter-American Courts of Human Rights.
An amicus brief is a written submission made by an interested third-party to the proceedings i.e. by an individual, an organisation, or even another state which is neither the complainant, the defendant state, or in the case of an advisory opinion, the requesting state or organ, but who it is felt can contribute something of importance to the proceedings. In general, these interventions will either be requested explicitly by the court, or permission to submit a brief will be sought by the interested third party, which the court may either accept or refuse.
The content of the brief itself will vary from case to case, although it will normally address general issues and situations rather than something specific to an individual complainant. A request for permission ('leave') to submit an amicus brief, however, should normally contain the following elements:
Where an individual complaint procedure allows for the adoption of provisional measures, this makes it possible, at any stage of the proceedings, for the relevant body to request or order the State Party to take steps to avoid possible irreparable damage to persons in relation with the case. Adopting provisional measures has no bearing on the outcome of the case - it does not imply that the body has reached a decision on either admissibility or merits, but is merely a precaution to give it time to deliberate.
This feature is widely used in cases involving the imminent expulsion of an individual to a country where he or she is believed to be at risk of torture. There are three criteria which must be fulfilled when making an application for provisional measures in such cases:
You need to think in terms of two components to your communication. The first is your cover letter, which must include a certain number of details. If these are not provided, you will be asked to supplement your application before it can be processed any further. The second is the supporting documentation.
Your cover letter should include:
Always try to include as much supporting documentation (see also Part II, Chapter 5) with your communication as possible. This could include:
Always send copies of the documents, not the originals, as they will not be returned to you.
Official documents can generally be submitted in their original language, but you should indicate what their relevance is - if possible, provide a short summary in a working language of, for example, the result of the judgment, or of the injuries recorded in the medical certificate.
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