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5.1
The European system
- 5.2 The Inter-American system - 5.3
The African system - 5.4 Other regions |
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A number of international organisations exist within the European region: the Organisation for Security and Co-operation in Europe, the Council of Europe and the European Union. At the time of writing, only the Council of Europe had set up formal procedures to deal with allegations of torture and other forms of ill-treatment, although the OSCE is also active in the field of human rights, as will be noted in Part III, Chapter 7.
Within the Council of Europe, two bodies exist which are of relevance to this handbook: the European Committee for the Prevention of Torture and the European Court of Human Rights. The European Committee for the Prevention of Torture will be examined in detail because it exercises a unique function which no other body is currently enabled to do.
Languages: The Council of Europe official and working languages are English and French. Try to provide at least a brief summary of your allegations in one of those languages. See Part III, Chapter 2.1.1, for suggestions concerning the language of submission of your communication.
Table 21: Basic Facts: European Committee for the Prevention of Torture
| BASIC FACTS ABOUT: The European Committee for the Prevention of Torture | ||
| Origin: | How was it created? | By the 1987 European Convention for the Prevention of Torture |
| When did it become operational? | 1989 | |
| Composition: | How many persons is it composed of? | As many members as there are States Parties to the Convention (currently 40) |
| Are these persons independent experts or state representatives? | Independent experts | |
| Purpose: | General objective | To improve the protection of persons deprived of their liberty by working to prevent torture and inhuman or degrading treatment or punishment |
| Functions |
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The functions of the Committee are strictly preventive, but they are also the most intrusive of any of the mechanisms discussed in this handbook. It carries out visits to places of detention in Member States in order to examine the treatment of persons deprived of their liberty there, and prepares a report of its findings and recommendations which it transmits to the state concerned. This report is confidential, but may be made public with the consent of the state. In exceptional circumstances, where a State Party fails to co-operate with the Committee or refuses to implement its recommendations, the Committee may decide to issue a public statement on that country. The objective of the overall process is not so much to condemn states, as to identify areas of concern and make suggestions for improving the protection of persons deprived of liberty from torture and inhuman or degrading treatment or punishment.
Characteristics of the Committee's visits:
What is particularly significant about the Committee's visits when compared to those carried out by other mechanisms is that:
In other words, once a state has accepted obligations under the Convention, the Committee's activities should not depend on the consent of the State Party.
Modalities of the Committee's visits:
The Committee's visits are mainly of two types: periodic visits and ad hoc visits. Periodic visits take place on a regular basis to all States Parties. Ad hoc visits take place in response to serious and consistent allegations of an urgent problem in a particular State Party and can be carried out at any time. In addition, the Committee may carry out follow-up visits in relation to situations which have previously been investigated, where they appear to be required by the circumstances.
In practice, although notice of visits is not specifically required, the Committee has developed a notification procedure in relation to periodic visits which involves 1) announcing at the beginning of the year which countries it intends to visit, 2) notifying the state in question of the proposed dates of the visit about two weeks prior to the visit, and finally 3) providing the state with a list of the locations the delegation wishes to visit a few days before the start of the visit. During the visit, the delegation may also decide to make unannounced visits to locations it has not previously indicated. This practice of notification does not apply to ad hoc visits, which can be carried out at extremely short notice.
States do have the possibility of invoking a limited list of exceptional reasons (national defence; public safety; serious disorder in places where persons are deprived of their liberty; or that an urgent interrogation relating to a serious crime is in progress) in order to postpone a visit - however, this may only be used for postponement, and not to prevent a visit indefinitely.
The confidential nature of the Committee's work means that, although information sent to the Secretariat is always acknowledged (you will receive a letter to tell you that your communication has been received), it is not able to express any opinion regarding the quality or substance of the material, or indicate if or how it will be used. To the NGO sending such information, the process may appear somewhat like throwing a stone into a very deep well and hearing a little 'plink' that tells you it has reached the bottom, but not being able to see where it has landed. It is very important not to be discouraged by this. From the Committee's standpoint, your information is essential if it is to make the most of its functions, and it is important that you view your potential achievements from a longer-term perspective.
Your information can help the Committee to:
From your perspective, this means that by submitting information, you are contributing to the identification of serious problems relating to the treatment of persons deprived of their liberty and, even more importantly, to the identification of the causes of those problems, and the development and implementation of measures to prevent them.
Unlike many of the other mechanisms, the Committee for the Prevention of Torture does not deal with individual cases for their own sake. In the European region, this is the domain of the European Court of Human Rights, which deals almost exclusively with individual allegations and will be considered below. The Committee for the Prevention of Torture is far better placed and equipped to contribute to a longer term improvement in the overall protection of persons in official custody, and to prevent, rather than remedy, incidents of torture. However, just because the Committee does not provide distinct remedies for individuals as one of its functions does not mean that individuals cannot benefit both directly and indirectly from its activities.
First of all, it is important to recall that it is through individual allegations that patterns can be identified, and that those individuals gain from the elimination of bad practice. If, for example, a significant number of allegations is received about abuses taking place in a children's home, and the Committee investigates and makes recommendations to eliminate the causes, this will be of immediate benefit to the individuals in the institution.
Furthermore, interventions on behalf of individuals are not envisaged in their own right, but do happen in the context of the Committee's general activities. They are used as a form of case-study in order to investigate a particular practice or general allegation. For example, the Committee has acted in cases of individuals detained under anti-terrorism legislation, in order to test allegations concerning a practice of ill-treatment of such persons. Interventions may also occur where an urgent situation is brought to the attention of a delegation during a country visit, and the Committee has even carried out an ad hoc visit in response to the detention of a public figure alleged to be especially at risk. The important point to remember is that, although the Committee's intervention in such cases is not intended to provide an individual remedy, it can in practice have equivalent effects.
You should refer to the general guidelines in Part III, Chapter 2, on how to prepare a submission to a reporting mechanism. In addition, you should bear in mind the following:
Characteristics of the information:
The content of your information will be guided to some extent by the particular purpose you have in mind - for example, if you feel that an ad hoc visit might be desirable, you will want to emphasise the urgency and extreme nature of a situation. Above all else, however, the information must be balanced (see Part III, Chapter 2.1.2, for suggestions on how to achieve this) and capable of verification by the Committee. This means that:
Both are essential if the Committee is to be in a position to verify the information, and the recent nature of the allegations is also important for the Committee to be able to identify current problems. Don't forget that corroborative evidence will support and confirm the details of your allegations, particularly medical evidence which is consistent with the allegations.
In addition, with the exception of information reporting on, for example, the implementation of the Committee's recommendations by a particular State, there is a further important feature which should be present:
This is important because the Committee's work is designed to investigate and improve the general situation throughout Member States. If you send it a single individual case, this can be useful as part of a greater body of information received from other sources (and should certainly be sent), but it is not normally sufficient to establish that there is a generalised problem. If you can present a series of cases, you are going much further towards establishing a pattern, and are more likely to stimulate the Committee into further investigation of the situation.
Subject-matter:
Do not limit yourself to the more obvious custodial institutions like prisons or police stations. These are certainly a primary source of concern to the Committee, but there are other institutions in which persons are deprived of their liberty by state officials which are also within the mandate of the Committee. Examples include military establishments, places of detention for foreigners, detoxification centres, children and old people's home, and psychiatric institutions, but this should not be considered an exclusive list. Relevant institutions should have two characteristics: they should house persons who are not free to leave the establishment at will, and the deprivation of liberty should be the result of action taken by a public authority.
You should bear in mind, also, that the Committee takes an interest in all aspects of the treatment of persons deprived of liberty. This extends not only to incidents of torture in an institution, but to all of the factors contributing to the creation of an inhuman or degrading environment within the institution, including cell size and occupancy, hygiene and sanitation, opportunities for exercise, health care, solitary confinement and restrictions on contacts with the outside world. It can make recommendations not only about the material and social conditions of detention, but also from a longer term perspective, addressing such issues as legislative safeguards or the training of personnel.
The Committee for the Prevention of Torture will never name individuals in its reports unless their cases are already well-known and identifiable within the public domain. It will also not name NGOs with which it meets when on visits and from which it receives information, if this is the wish of the NGOs concerned.
As the procedure is based on the principle of confidentiality, you will not receive any direct feedback about your submission.
Table 22: Basic Facts: European Court of Human Rights
| BASIC FACTS ABOUT: The European Court of Human Rights | ||
| Origin: | How was it created? | By the 1950 European Convention
on Human Rights
Revised by the 11th Protocol to that convention, 1994 |
| When did it become operational? | 1998 under the revised system | |
| Composition: | How many persons is it composed of? | As many judges as there are States Parties to the convention |
| Are these persons independent experts or state representatives? | Independent experts | |
| Purpose: | General objective | To examine complaints of violation of the ECHR |
| Functions |
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A communication will be declared inadmissible if:
Your initial letter should contain:
If you are then sent an application form, you should follow the instructions on that form and in the accompanying letter.
Table 23: Basic Chronology of Individual Complaint Procedure: ECHR
| BASIC CHRONOLOGY OF: Individual Complaint Procedure - ECHR | |||||||||||||||||||||
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Table 24: Practicalities of Using Individual Complaint Procedure: ECHR
| PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: European Convention on Human Rights | |
| Who can bring a case under this procedure? | Individuals, NGOs and groups of individuals claiming to be victim of a human rights violation. A case can be brought by a close relative of the victim in cases where the victim cannot do so in person, e.g. where he or she is disappeared or dead. |
| Is there a time limit for bringing an applications? | Six months from the date of the final decision taken in the case by the state authorities. |
| Can you bring a case under this procedure if you have already brought one under another procedure concerning the same set of facts? | No |
| Do you need legal representation? | It is not necessary at the time of the application, but is required for proceedings after a case has been declared admissible, unless exceptional permission is given by the President of the Court for the applicant to present his or her own case. |
| Is financial assistance available? | Yes, but only if the application is communicated to the Government, not at the time of the application. You will need to fill out a statement of your means signed by your domestic legal aid board, as legal aid is only granted where there is a financial need. |
| Are amicus briefs accepted? | Yes, with permission (Rule 61, Rules of the Court) |
| Who will know about the communication? | In principle, the proceedings are public unless the President of the Chamber decides otherwise. In exceptional case, where an applicant does not wish his or her identity to be made public and submits a statement explaining the reasons for this, anonymity may be authorised by the President. |
| How long does the procedure take? | Several years |
| What measures, if any, can the mechanism take to assist it in reaching a decision? e.g. fact-finding hearings; on-site visits; written pleadings; oral hearings; other. | Fact-finding hearings; expert evidence; written pleadings; oral hearings. |
| Are provisional or urgent measures available? | Yes, but it is a practice which has been developed by the Court and has no basis in the convention. It is applied only in very specific cases, mainly immigration/deportation cases where there is a 'real risk' if a person is returned. (Rule 39, Rules of the Court) |
The regional organisation in the Americas, by which is meant North, Central and South America, as well as the Caribbean region, is the Organisation of American States (OAS). A number of human rights instruments have been adopted within the OAS, including the American Declaration on the Rights and Duties of Man; the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on the Forced Disappearance of Persons, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women. There are two mechanisms which are responsible for the implementation of all of these instruments: the Inter-American Commission and Court of Human Rights.
Languages: The official languages of the Commission and Court are Spanish, French, English and Portuguese. The Court and Commission select their working language(s) in accordance with the languages spoken by their members. In the context of the individual complaint procedure, the Court may decide to work in the language of one of the parties to a particular case, as long as that language is also an official language.
Table 25: Basic Facts: Inter-American Court of Human Rights
| BASIC FACTS ABOUT: The Inter-American Court of Human Rights | ||
| Origin: | How was it created? | By the 1969 American Convention on Human Rights |
| When did it become operational? | 1979 | |
| Composition: | How many persons is it composed of? | 7 |
| Are these persons independent experts or state representatives? | Independent experts | |
| Purpose: | General objective | To supervise the implementation of the American Convention on Human Rights |
| Functions |
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Table 26: Basic Facts: Inter-American Commission on Human Rights
| BASIC FACTS ABOUT: The Inter-American Commission on Human Rights | ||
| Origin: | How and when was it created? | By a resolution of the OAS Foreign
Ministers in 1959 for the purpose of furthering respect for the American
Declaration on the Rights and Duties of Man
Revised by the American Convention on Human Rights in 1969 |
| Composition: | How many persons is it composed of? | 7 |
| Are these persons independent experts or state representatives? | Independent experts | |
| Purpose: | General objective | To promote respect for and defence of human rights |
| Functions |
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The Inter-American Commission is responsible for supervising state respect for obligations under a number of OAS human rights instruments. It has reporting functions as well as receiving individual complaints (the latter will be considered below, Part III, Chapter 5.2.2).
In relation to all OAS Member States (whether or not party to the American Convention on Human Rights), the Inter-American Commission is empowered to develop awareness of human rights, make recommendations to governments, prepare studies and reports, urge governments to supply it with information regarding human rights, and serve as an advisory body regarding human rights. Most importantly for the purposes of this handbook, it can:
In relation to States Parties to the Inter-American Convention to Prevent and Punish Torture, it is also empowered to:
Although it is able to engage in its own fact-finding, it is the information it receives from a variety of sources, including NGOs, which helps the Inter-American Commission to identify those situations most in need of its attention. Submitting information gives you an opportunity to:
In addition, supplying information in the context of preparations for on-site visits provides a further opportunity to draw the attention of the Inter-American Commission to the most pressing problems in a very specific way.
The power of the Inter-American Commission under the Convention to Prevent and Punish Torture to report on the practice of torture in Members States is one which has great potential for helping to focus attention on the problem of torture in the region. It is, however, one which the Inter-American Commission has not yet exercised. NGOs can encourage and facilitate this by supplying torture-specific information for this purpose.
See Part III, Chapter 2, for suggestions on how to submit individual and general information to a reporting body.
See Part III, Chapter 5.2, above for 'Basic Facts About: the Inter-American Commission on Human Rights' and 'Basic Facts About: the Inter-American Court of Human Rights'
A complaint within the Inter-American system can be based either on the American Convention on Human Rights (where a state is a party to that convention) or on fundamental human rights standards under general international law, with particular reference to the American Declaration on the Rights and Duties of Man (where a state is a member of the OAS but not a party to the American Convention on Human Rights).
In practice, the application procedure works in the same way in both cases as long as the complaint remains before the Commission. However, complaints can only be referred to the Court if they concern:
Table 27: Basic Chronology of Individual Complaint Procedure: Inter-American System
| BASIC CHRONOLOGY OF: Individual Complaint
Procedure - Inter-American System [CN = Commission CT = Court] |
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The Inter-American Commission on Human Rights can:
The Inter-American Court of Human Rights can:
By the Inter-American Commission on Human Rights:
Where it concerns a State Party to the American Convention on Human Rights, a complaint can be examined if:
Where it concerns an OAS Member State not a party to the American Convention on Human Rights, a complaint can be examined if:
By the Inter-American Court of Human Rights:
A complaint can be examined if:
A communication will be inadmissible if:
Table 28: Practicalities of Using Individual Complaint Procedure: Inter-American System
| PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: Inter-American System | |
| Who can bring a case under this procedure? | Any group or person, or any NGO entity legally recognised in one or more Member State, either on own behalf or on behalf of a third person. Not necessary to have contact with victim, but usually with victim, family or authorised representative. |
| Is there a time limit for bringing an application? | Six months from the final decision in the case where domestic remedies have been exhausted, or within a reasonable time of the facts alleged where exhaustion of domestic remedies is not possible |
| Can you bring a case under this procedure if you have already brought one under another procedure concerning the same set of facts? | No - unless the case was brought by a third party without the authorisation of the victim or his or her family |
| Do you need legal representation? | Not necessarily but it is advisable |
| Is financial assistance available? | No |
| Are amicus briefs accepted? | Yes |
| Who will know about the communication? | The petitioners can hold a press conference after presenting the petition |
| How long does the procedure take? | May take years |
| What measures, is any, can the mechanism take to assist it in reaching a decision? e.g. fact-finding hearings; on-site visits; written pleadings, oral hearings, other. | Fact-finding hearings; on-site visits; expert evidence; written pleadings; oral hearings. |
| Are provisional or urgent measures available? | Yes |
The African system for the protection of human rights is based on the African Charter on Human and Peoples' Rights, adopted under the auspices of the Organisation of African Unity (OAU). Supervision of respect for the Charter has until now been the exclusive domain of the African Commission on Human and Peoples' Rights. In the context of its work, the African Commission has appointed a number of Special Rapporteurs, namely the Special Rapporteur on Extra-Judicial Executions, the Special Rapporteur on Women and, of particular relevance to this handbook, the Special Rapporteur on Prisons and Conditions of Detention in Africa. In 1998, a Protocol was adopted for the purpose of establishing an African Court to work alongside the Commission, but this Court will only become operational when 15 States have signed the Protocol. On the basis of current indications given by African States, this is likely to take between five and ten years.
Languages: The official languages of the Commission are Arabic, English, French and Portuguese, but in practice the Secretariat works in English and French. If a party wishes to make a presentation in another language, it should arrange for translation.
Table 29: Basic Facts: African Commission on Human and Peoples' Rights
| BASIC FACTS ABOUT: The African Commission on Human and Peoples' Rights | ||
| Origin: | How was it created? | By the 1981 African Charter on Human and Peoples' Rights |
| When did it become operational? | 1987 | |
| Composition: | How many persons is it composed of? | 11 |
| Are these persons independent experts or state representatives? | Independent experts | |
| Purpose: | General objective | To promote and protect human and peoples' rights in Africa |
| Functions |
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The African Commission can:
See Part III, Chapter 2.3, for an indication of how state reporting procedures work.
Any application for observer status should be submitted in writing and should include: the organisation's constitution, and information on its structure, leadership, membership and activities. It would be useful also to include copies of any publications or activity reports. A rapporteur is assigned to the application and makes a recommendation to the African Commission on whether or not to grant the status.
Table 30: Basic Facts: Special Rapporteur on Prisons and Conditions of Detention in Africa
| BASIC FACTS ABOUT: The Special Rapporteur on Prisons and Conditions of Detention in Africa | ||
| Origin: | How was it created? | By a 1996 resolution of the African Commission on Human and Peoples' Rights |
| When did it become operational? | 1996 | |
| Composition: | How many persons is it composed of? | 1 |
| Are these persons independent experts or state representatives? | Independent expert | |
| Purpose: | General objective | To examine the situation of persons deprived of their liberty within the territories of States Parties to the ACHPR. |
| Functions |
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The Special Rapporteur on Prisons is able to exercise its functions in relation to all States Parties to the ACHPR.
The SRP can:
Main areas of concern to the SRP include:
Table 31: Basic Chronology of Individual Complaint Procedure: ACHPR
| BASIC CHRONOLOGY OF: Individual Complaint Procedure - ACHPR | ||||||||||||||||||||||||||||||
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A communication will be declared inadmissible if:
Table 32: Practicalities of Using Individual Complaint Procedure: ACHPR
| PRACTICALITIES OF USING THE INDIVIDUAL COMPLAINT PROCEDURE: African Charter on Human and Peoples' Rights | |
| Who can bring a case under this procedure? | Any person or NGO who can provide sufficiently precise details of an incident to enable its investigation - it does not necessarily have to be either the victim or his or her family, in recognition of the practical difficulties involved in the African context |
| Is there a time limit for bringing an application? | The application should be made within a reasonable time, but the Commission interprets this very generously |
| Can you bring a case under this procedure if you have already brought one under another procedure concerning the same set of facts? | No |
| Do you need legal representation? | No, but it is permitted |
| Is financial assistance available? | No |
| Are amicus briefs accepted? | Any information which can assist the Commission may be received, but the confidentiality of the procedure must be respected by all. |
| Who will know about the communication? | The identity of the author may be kept confidential if requested |
| How long does the procedure take? | There were long delays in initial cases, but the procedure now takes about 18 months to 2 years. |
| What measures, if any, can the mechanism take to assist it in reaching a decision? e.g. fact-finding hearings; on-site visits; written pleadings; oral hearings; other. | Written pleadings; oral hearings; on-site visits in cases involving groups of complainants. |
| Are provisional or urgent measures available? | Yes |
There are currently no other regions which have established formal procedures to consider allegations of human rights violations, although many are beginning to devote increasing interest to human rights in general. The years to come may well see a growth in the number of international bodies able to consider allegations, and it is probable that any new regional bodies will be based on the well-established, tried and tested procedures described in connection with Europe, the Americas and Africa.
In the meantime, it is important not to be discouraged by the absence of international remedies close to home - the UN bodies are subject to no geographical limitations and can examine situations all over the world. Check which treaties your state is a party to, and remember that the non-treaty procedures can examine the human rights situation in any state which is a member of the UN.
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On this page... | top of page | |
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5.1
The European system
- 5.2 The Inter-American system - 5.3
The African system - 5.4 Other regions |
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