Human Rights Committee: Communication procedure

Applies to/Se aplica a

State practice
State law
Individual cases
For Urgent Action
Only under 18-s

Summary

The First Optional Protocol establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about a violation of one or several of their rights guaranteed by the International Covenant on Civil and Political Rights. Communications may only be submitted against a State that has ratified the First Optional Protocol and after domestic remedies have been exhausted. In addition, the claim should not have been submitted to another treaty body mechanism, nor to a regional mechanism such as the Inter-American Commission on Human Rights, the European Court of Human Rights, the African Commission on Human and Peoples' Rights, or the African Court on Human and Peoples' Rights.

If the Committee finds that a State Party has failed in its obligations under the ICCPR, it will require that the violation be remedied and ask that the State Party provide follow-up information in this regard. The Human Rights Committee's decisions and its follow-up activities are made public and are included in the Committee's Annual Report to the General Assembly.

1. Likely results from use of mechanism

A decision from the Human Rights Committee on the case either declaring a violation of the Covenant by the State concerned, or declaring the case inadmissible. If a violation of the Covenant is found, the Committee may recommend that the State concerned make amends, or rectify the situation. This might include recommending compensation to the complainant, or releasing him or her from prison.

2. To which States does the mechanism apply?

This mechanism applies to States parties to the ICCPR which have also signed and ratified the First Optional Protocol (http://www2.ohchr.org/english/law/ccpr-one.htm).
A complaint can be brought against any State which had jurisdiction over the victim at the moment of the violation, and which has ratified the Optional Protocol. While the violation itself can have taken place before the Optional Protocol entered into force for the State concerned, it is important that some domestic court took a decision in relation to this violation after the Optional Protocol came into force.

3. Who can submit information?

Under the First Optional Protocol the Committee can receive Individual Communications from any individual under the jurisdiction of a State that is party to the First Optional Protocol who claims that his or her rights under the Covenant have been violated by the State Party.
If you wish to file a complaint on behalf of someone else or a group, you must submit a written consent from each of the victims you wish to represent or proof that they are incapable of giving such consent.

4. When to submit information?

There is no time limit after the alleged event for receiving information but it is best to submit the communication as soon as possible after the exhaustion of domestic remedies. In exceptional cases, submission after a protracted period may result in your case being considered inadmissible by the Committee.
Under Rule 96c of the Working Methods of the Committee, a communication submitted after 5 years from the exhaustion of domestic remedies, or after 3 years from the conclusion of another procedure of international investigation or settlement may constitute an abuse of the right of submission.
Repeated claims to the Committee on the same issue although they have already been dismissed are considered an abuse of the complaints process.

5. Special rules of procedure or advice for making a submission?

How to write a complaint:

The complaint mechanisms are designed to be simple and accessible to all. You do not need to be a lawyer or even familiar with legal and technical terms to bring a complaint to a Committee.

For a complaint to be admissible, it needs to meet the following requirements:

  • It has to be submitted by the individual whose rights have been violated, or with the written consent of the individual. Only in exceptional cases, where the individual concerned is unable to give consent, this requirement may be ignored. Anonymous complaints will not be considered.
  • Domestic remedies need to have been exhausted, which means all domestic appeal procedures need to have been tried. However, if you can demonstrate that local remedies are not effective (for example, because the highest court of the country already ruled on a very similar case), not available, or unduly prolonged, this requirement may be ignored.
  • Not be under consideration by another international investigation or settlement procedure.

A complaint, sometimes also called a “communication” or a “petition” need not take any particular form. However, it needs to be in writing and signed (which means email complaints will not be considered). It should provide basic personal information - your name, nationality and date of birth - and specify the State party against which your complaint is directed.

A complaint needs to include – preferably in chronological order – all the facts on which your claim is based, and all efforts that have been made to exhaust domestic remedies (include copies of relevant court decisions and a summary in one of the working languages of the Committee).

It is useful to quote the relevant treaty articles which correspond to your case. It should be explained how the facts of the case disclose a violation of those articles. A model complaint form that can be used can be found at http://www2.ohchr.org/english/bodies/docs/annex1.pdf.

Emergency procedures:

If there is a fear of irreparable harm (for example in cases of imminent execution or deportation to torture) before the Committee has examined the case, it is possible to request an intervention by the committee to stop an imminent action (or omission) by a State, which may cause such harm. Such an intervention is called a “request for interim measures of protection”.

6. What happens to the submission (how long will it take)?

The two major stages in any case are known as the “admissibility” stage and the “merits” stage. The "admissibility" of a case refers to the formal requirements that your complaint must satisfy before the relevant committee can consider its substance. The "merits" of the case are the substance, on the basis of which the committee decides whether or not rights under a treaty have been violated.

If the complaint contains the essential elements outlined above, the case is registered, that is to say formally listed as a case for consideration by the Committee. Due to a big back-log of complaints it can take at least two years for a case to be considered after registration.
After the registration the complaint is transmitted to the State party concerned to give it an opportunity to comment. The State is required to respond to the complaint within six months. If the State party fails to respond to the complaint, you are not disadvantaged, Reminders are sent to the State party. If there is still no response, the committee takes a decision on the case on the basis of the original complaint.
Once the State replies to a submission, the complainant is offered an opportunity to comment. At that point the, the case is ready for a decision by the Committee.
The committee considers Individual Communications in closed session, but its Views (decisions) and the follow-up are public.

7. History of the use of the mechanism

The Communication Procedure has been used successfully in a range of CO cases, which has helped to establish important jurisprudence on the length and terms of substitute service (Foin v. France, 1999) and on the right to conscientious objection itself (Yeo-Bum Yoon and Mr. Myung-Jin Choi vs. Republik of Korea, 2007).

Contact Details: 
Petitions Team OHCHR-UNOG 1211 Geneva 10 Switzerland E-mail: tb-petitions@ohchr.org (indicate “Human rights complaint” in the Subject line of your e-mail.) Fax: +41.22.917.90.22
Further Reading: 
Views adopted (Jurisprudence)
Title Date
Zafar Abdullayev vs. Turkmenistan 25/03/2015

7.2...The Committee takes note of the author’s claim that, upon arrival at the LBK-12 prison on 3 April 2012, he was subjected to ill-treatment by the prison guards in violation of article 7 of the Covenant. It notes that the author has provided a detailed description of the manner in which he was ill-treated while in isolation, as well as the identity of the organizer of his ill-treatment. The author claimed that he was placed in the colony’s isolation block for 10 days, was beaten, subjected to “goose stepping”, doing push-ups, running, and sitting on the floor with stretched-out legs. The Committee further notes that the author’s detailed allegations and his argumentation regarding the lack of adequate mechanisms for investigation of torture claims in Turkmenistan were not refuted by the State party. The Committee also recalls that complaints of ill-treatment must be investigated promptly and impartially by competent authorities.1 In the absence of any other pertinent information on file, the Committee decides that due weight must be given to the author’s allegations. Accordingly, it concludes that the facts as presented reveal a violation of the author’s rights under article 7 of the Covenant.

7.3...The Committee recalls that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty: they must be treated in accordance with, inter alia, the Standard Minimum Rules for the Treatment of Prisoners.2 In the absence of any other pertinent information on file, the Committee decides that due weight must be given to the author’s allegations. Accordingly, the Committee finds that confining the author in such conditions constitutes a violation of his right to be treated with humanity and with respect for the inherent dignity of the human person under article 10 (1) of the Covenant. 3

7.5... The Committee notes that, in the present case, the author has been tried and punished twice under the same provision of the Turkmen Criminal Code on account of the fact that, as a Jehovah’s Witness, he objected to, and refused to perform, his compulsory military service. In the circumstances of the present case, and in the absence of contrary information from the State party, the Committee concludes that the author’s rights under article 14 (7) of the Covenant have been violated.

7.8 In the present case, the Committee considers that the author’s refusal to be drafted for compulsory military service derives from his religious beliefs and that the author’s subsequent convictions and sentences amounted to an infringement of his freedom of conscience, in breach of article 18 (1) of the Covenant. The Committee recalls that repression of the refusal to be drafted for compulsory military service exercised against persons whose conscience or religion prohibit the use of arms is incompatible with article 18 (1) of the Covenant.4

9. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy, to include an impartial, effective and thorough investigation of the author’s claims falling under article 7, prosecution of any person(s) found to be responsible; expunging of his criminal record; and full reparation, including appropriate compensation. The State party is under an obligation to avoid similar violations of the Covenant in the future, including the adoption of legislative measures guaranteeing the right to conscientious objection.

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