1  Human rights bodies are treaty bodies mandated to monitor adherence by the member states to the respective human rights treaties (Human Rights, Treaty Bodies). Human rights bodies may be required to receive, adduce, and assess evidence in communication/complaints proceedings. There are nine United Nations (‘UN’) human rights treaty bodies that may receive individual complaints in communication proceedings (Human Rights, Individual Communications/Complaints):

1. 1.  UN Human Rights Committee (‘HRC’)—International Covenant on Civil and Political Rights (‘ICCPR’);

2. 2.  Committee on the Elimination of Racial Discrimination (CERD)—International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’);

3. 3.  United Nations Committee against Torture (CAT)—Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (‘CAT Convention’);

4. 4.  Committee on the Elimination of Discrimination against Women (CEDAW) —Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW Convention’);

5. 5.  Committee on the Rights of Persons with Disabilities (CRPD)— Convention on the Rights of Persons with Disabilities;

6. 6.  Committee on Enforced Disappearances (CED)—International Convention for the Protection of All Persons from Enforced Disappearance (‘ICPPED’);

7. 7.  Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW)—International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (‘ICMW’);

8. 8.  Committee on Economic, Social and Cultural Rights (CESCR)—International Covenant on Economic, Social and Cultural Rights (‘ICESCR’);

9. 9.  Committee on the Rights of the Child (CRC)—Convention on the Rights of the Child (‘ICRC’).

The individual complaint mechanism for the CMW has not yet entered into force.

2  Five of these treaty bodies may also receive inter-state complaints, namely CAT, CMW, CED, CESCR, and CRC. The ad hoc Conciliation Commissions under Articles 11–13 ICERD and Articles 41–43 ICCPR as well as the Inquiry Procedures of the CAT, CEDAW, CED, CRPD, CESCR, and the CRC will not be addressed in this entry (Inquiry Procedures: United Nations Human Rights Bodies). The aforementioned human rights bodies ought to be distinguished from UN Charter bodies such as the Human Rights Council (United Nations Commission on Human Rights/United Nations Human Rights Council) and the United Nations High Commissioner for Human Rights (Human Rights, United Nations High Commissioner for (UNHCHR)), whose mandates to promote and protect human rights are established by UN General Assembly (‘UNGA’) resolutions. Evidence in proceedings of the UN Charter entities will also not be discussed in this entry.

3  Alongside the UN human rights bodies, regional human rights commissions, for example, the Inter-American Commission on Human Rights (IACommHR) and the African Commission on Human and Peoples’ Rights (ACommHPR) (or ‘African Commission’), may also receive individual and inter-state complaints (Admissibility: Inter-American Commission on Human Rights (IACommHR), Inter-American Court of Human Rights (IACtHR)). Evidence in the proceedings of regional human rights courts which are empowered to adopt binding decisions, for example, the European Court of Human Rights (ECtHR) and the IACtHR (Inter-American Court of Human Rights (IACtHR)), are also not subject to this entry.

4  Human rights bodies and their approach towards evidence interrelates with their procedural nature. The HRC, for example, in its individual complaints procedure is mandated to determine the legality of the actions of the parties under the respective treaties. Its complaints procedure is thus not construed as a ‘diplomatic communiqué’ (Tomuschat (1980) 255) but follows the pattern of a judicial decision (Shelton (2014) 254; Opsahl (1992) 426–27). The procedure stands in contrast to, for example, proceedings of the UN Commission on Human Rights, the Human Rights Council or the HRC’s own conciliation procedure pursuant to Articles 41 and 42 ICCPR, all of which do not determine adherence by the member states to a treaty but merely promote a treaty’s object and purpose (Buergenthal (2001) 341, 367).

5  The complaints procedure of the HRC has been described as quasi-judicial in its nature (HRC, General Comment No. 33 (2009) para. 11; Quasi-Judicial Body). The Committee’s views ‘exhibit some important characteristics of a judicial decision’ (Adjudication; see HRC, General Comment No. 33 (2009) para. 11). ‘They are arrived at in a judicial spirit, including the impartiality and independence of Committee members, the considered interpretation of the Covenant, and the determinative character of the decisions’ (HRC, General Comment No. 33 (2009) para. 11). Other human right bodies as well as regional human rights commissions have concluded similarly that their decisions and their decision-making processes are quasi-judicial in nature (see, e.g., CAT, ‘Working Methods’; ACommHPR, ‘Information Sheet No. 3’ (1987) 10; see also Liwanga (2015) 105 et seq.).

6  While the views are quasi-judicial, they are not ‘judicial’ because the decisions are not binding (Buergenthal (1997) 463). Insofar as human rights bodies arrive at their decisions in a quasi-judicial procedure, their approach towards evidence must adhere to procedural principles, most importantly the principles of audiatur et altera pars—always hear the other side—and equality of arms (Stirner (2021) 69 et seq.). Some argue that these principles should apply to any UN-based fact-finding regardless of whether the underlying procedure is of a quasi-judicial nature (Equality of Arms: International Adjudication (Viljoen (2004) 54 et seq.).

7  This entry will discuss the elements of the procedure of facts and evidence in chronological relevance. It will firstly address the question under which circumstances the human rights bodies will defer to the factual findings of the domestic courts and authorities (Section B). Secondly, the entry will address the question of how human rights bodies establish the facts if there is a need to re-assess the facts of the case (Section C). Thirdly, it will address whether human rights bodies exclude certain evidence based on rules for the admissibility of evidence (Section D). Finally, this entry will elaborate on fact-finding instruments and specific evidence in proceedings before international human rights bodies (Section E) and analyse the bodies’ approaches to the assessment of evidence (Section F). The conclusion highlights the main pillars of the law of evidence in proceedings before international human rights bodies (Section G).

8  The main source for subsidiarity in proceedings of human rights bodies is the prerequisite of the exhaustion of domestic remedies (Local Remedies, Exhaustion of). All of the UN human rights bodies mandated to receive individual or inter-state complaints (Human Rights, State Complaints), as well as the ACommHPR and the IACommHR, require the author/applicant to exhaust all domestic remedies before submitting a complaint. This principle of subsidiarity entails that human rights institutions do not function as courts of first instance. The human rights treaties establish a system of human rights protection where the states’ judicial systems are first and foremost mandated to investigate and rectify alleged human rights violations (see, e.g., Santiago Marzioni v Argentina (Admissibility) (1996) para. 52; Ms G (Name Deleted) v Canada (Merits) (2000) para. 4.3).

9  This section assesses the treaty background and the reasons for deference in fact-finding. It will then analyse to which extent international human rights bodies defer to the fact-finding of the domestic proceedings.

10  Subsidiarity in fact-finding and the deference to the national court’s assessment of the facts is, aside from the legal precept of the treaties, based on procedural necessity. Based on the number of complaints, human rights bodies cannot engage in a de novo assessment of the facts. The HRC, for example, receives between 100 and 400 new communications annually, while only being able to conclude between 72 and 188 of these. At the end of 2021, the HRC, therefore, had a backlog of 1200 cases (see for these statistics HRC, ‘Report of the Human Rights Committee’ (2021) para. 24). More importantly, a broad deference regarding the production and evaluation of evidence is predicated by the proximity of the first trier of fact to the evidence and the local situation (see, for example, O’Neill et al v Ireland (Merits) (2006) para. 8.4). A considerable amount of time will have passed by the time an international human rights body addresses a complaint which thus would impede the production and de novo evaluation of the relevant evidence (O’Boyle and Brady (2013) 283). With regard to the former European Commission of Human Rights (ECommHR), the ECtHR adequately summarized the position:

11  Deference to fact-finding of the domestic proceedings must recognize two exceptions. The first being that no domestic procedure took place (Viljoen (2004) 49, 84). The second being that the domestic remedy procedure was defective (Fitzpatrick (2000) 65, 70). Not just any procedural irregularity, however, should lead to the human rights body discarding the domestic fact-finding. Fact-finding and the assessment of evidence in the course of a flawed domestic procedure may nonetheless be better suited for the factual foundation of the facts than the fact-finding of an international body years after the alleged human rights violation occurred. The exact demarcation line between a faulty yet still suitable domestic fact-finding procedure and a fact-finding and evaluation of evidence that ought to be discarded to ensure an effective human rights protection is subject to ongoing debate (Viljoen (2004) 49, 82; Schürer (2014) 512; Paúl (2015) 25, 26). Human rights courts and bodies have come to different conclusions where this line of deference should be drawn.

12  International human rights bodies have adopted different levels of deference to the domestic fact-finding. The IACommHR only resorts to the evidence gathered by domestic courts if is able to conclude that the domestic proceedings adhered to procedural standards or if the parties agree on the information therein (see, e.g., García and Family v Ecuador (Admissibility and Merits) (2019) para. 51 et seq. and 59). But generally, the Commission does not recognize any obligation to defer to the fact-finding of the domestic proceedings (Paúl (2015) 25, 26). Scholars have noted that the limited deference is motivated by the perceived institutional deficiencies of some of the domestic courts (Paúl (2015) 25, 26–27). The IACommHR’s limited deference stands in contrast to the ECtHR’s approach, for example, which has developed the most detailed system in international human rights proceedings requiring

It has been rightfully criticized by scholars that the IACommHR ignores the pressing need for more deference in its proceedings (Paúl (2015) 25, 26–27; Cortesse (2016) 123, 143).

13  UN human rights bodies have adopted intermediate approaches to subsidiarity in fact-finding (Viljoen (2004) 49, 69). The treaty frameworks of the human rights bodies do not explicitly require deference in fact-finding and the (re-)evaluation of evidence. Deference is based on the general subsidiarity of the treaty body system and on consideration of feasibility. The CAT adequately summarizes this by stating:

14  The HRC also usually defers to the findings of the domestic courts unless their findings were clearly arbitrary. For example, in O’Neill et al v Ireland it was stated that:

However, unlike the ECtHR the Committee has not adopted an extensive jurisprudence on this matter, and it has not always strictly adhered to its deference precept which, for example, in Thuraisamy v Canada (2012), was criticized by Committee Member Thelin in his individual (dissenting) opinion (Thuraisamy v Canada (2012) Appendix at 16).

15  Non-refoulement cases are usually at the heart of the subsidiarity question. The human rights body is required to determine whether there are substantial grounds for believing that the victim faces a real risk of ill-treatment when deported. These cases rely heavily, often exclusively, on the assessment of the credibility of the victim’s statements. In most cases the author alleges that the domestic authorities have not given due weight to the victim’s statement. In these cases, any re-assessment of evidence is generally limited, since human rights bodies cannot question the alleged victim, nor make on-site visits. Therefore, re-assessing the evaluation of evidence in non-refoulement cases must also be limited to those cases where procedural defects in the domestic proceedings did not allow a due process assessment of the facts (see, e.g., RSAA et al v Denmark (Merits) (2019) para. 8.4: ‘irregularity and arbitrariness in the decision-making process’).

16  The HRC has had to address subsidiarity in fact-finding often in the context of non-refoulement cases (see, e.g., deference in GK v The Netherlands (Merits) (2012) para. 11.2). Views adopted by the HRC in these cases have led to debates among the Committee members, in particular, where it did not accord deference to fact-based assessments of the domestic authorities (for the majority opinion, see Shakeel v Canada (Merits) (2013) para. 8.5). But the Individual opinion of HRC member Shany, joined by Committee members Flinterman, Kalin, Rodley, Seibert-Fohr, and Vardzelashvili (dissenting) states that: ‘We are not persuaded by the majority view that the decision of the Canadian authorities demonstrated a serious procedural defect’ (Shakeel v Canada (Merits, Individual Opinion) (2013) para. 5). In a different case, two HRC members, Wedgwood and Yalden, pointedly summarized that ‘the Committee cannot sit in review of the facts and evidence de novo in each deportation case, especially where a case turns upon an evaluation of a complainant’s credibility’ (Byahuranga v Denmark (Merits, Individual Opinion of Committee Members Ms Ruth Wedgwood and Mr Maxwell Yalden (Dissenting)) (2004) 13). In the communication of RSAA et al v Denmark, the CEDAW extensively elaborated on its approach to subsidiarity regarding the facts by firstly stating that:

17  Stricter deference to the fact-finding of the domestic authorities will raise additional questions. The ECtHR has had to address the question to which extent subsidiarity in fact-finding applies when the facts significantly change since the last domestic remedy was exhausted. A lack of deference has led to significant dissent between member states and the international human rights institution where the extradition had not yet occurred at the time of the ECtHR’s decision (see, e.g., Udeh v Switzerland (Merits and Just Satisfaction) (2013)). In instances of non-refoulement complaints where the extradition had already occurred, the CAT has argued that:

18  When there are reasons to overcome subsidiarity in fact-finding, the human rights body may re-assess the factual basis of the complaint. Any fact-finding by human rights bodies is limited by institutional constraints (McGoldrick (1991) 144; Viljoen (2004) 49, 81). Human rights bodies do not have extensive financial and structural frameworks. Secondly, any evidence necessary to establish the facts is in the sphere of the sovereign member states.

19  The production of evidence in a judicial procedure may be described as either following the investigatory or the adversary paradigm (see Stirner (2021) 27 et seq., with further references). Judicial bodies may or ought to engage in fact-finding to clarify the facts of a case on the one hand. On the other hand, the parties may be entirely burdened with producing the relevant evidence to sustain their argument (Burden of Proof). In this case, the judicial body would be limited to the evidence presented by the parties and must disregard evidence obtained from other sources. Generally, there are few instances where a judicial procedure strictly follows either the investigatory or the adversary paradigm (see for this theoretical foundation, Jolowicz (2003) 281). Many jurisdictions that implement adversary procedures allow the judicial body to engage in fact-finding to some extent (e.g., German Code of Civil Procedure (1879) para. 139). Correspondingly, judicial bodies, in many investigatory procedures, will consider the parties’ submissions first and foremost and will conduct additional fact-finding only when the parties disagree on the presented facts or when there is reason to doubt the veracity of the parties’ facts (e.g., IACtHR, ‘Rules of Procedure’ (2009) Rule 41(3)). Therefore, fact-finding by a judicial body should be defined broadly to encompass all potential initiatives: ‘The term fact-finding describes a process in which a body attempts to clarify an unclear or disputed fact or set of facts’ (Leach and others (2010) 45; see also definition in Jachec-Neale (2021)). In an investigatory procedure, the judicial body is primarily mandated to establish the facts and, therefore, will take the fact-finding initiative. The deciding body is not bound by certain motions of the parties to consider and adduce evidence. In an adversarial system, the burden to produce the relevant facts lies with the parties to the dispute.

20  The treaty framework of international human rights bodies usually limits itself to very few rules on fact-finding. According to Article 5 Optional Protocol (‘OP’) ICCPR (1976), ‘the Committee shall consider communications received under the present Protocol in the light of all written information made available to it by the individual and by the State Party concerned’. Article 10 OP ICRC (2014) states that the ‘Committee shall consider communications received under the present Protocol as quickly as possible, in light of all documentation submitted to it, provided that this documentation is transmitted to the parties concerned’ (see UNGA Resolution 66/138 (2011)). Similar wording is used in Article 8 OP ICESCR (2013), and Article 7 OP CEDAW Convention (2000). Lastly, according to Article 14(7)(a) ICERD (1969), ‘the Committee shall consider communications in the light of all information made available to it by the State Party concerned and by the petitioner’, with similar wording also used in Article 22 CAT Convention (1987). These frameworks establish evidentiary systems that are more of an adversarial nature regarding the production of evidence (see Kokott (1998) 194; Scheinin (2013) 54, 60). Generally, the UN human rights bodies cannot initiate their own inquiries into the alleged violations, nor can they conduct on-site visits regarding the specific communication (see on these limitations in fact-finding, Scheinin (2013) 54, 60). The author of the communication and, regarding certain facts, the state party are burdened with producing the relevant evidence. International human rights bodies may, however, steer the submission of evidence, being able to and request certain evidence, mostly in the form of documents (e.g., Khadzhiev v Turkmenistan (Merits) (2011) para. 8.5; Documentary Evidence). The CAT and the CERD, for example, may ‘indicate … the type of information it wishes to receive from the State party concerned’ pursuant to Rule 117(2) CAT Rules of Procedure (2014) and Rule 94(2) CERD Rules of Procedure (1986).

21  In contrast to strict adversarial proceedings, international human rights bodies are not barred from considering other evidence brought to their attention. The HRC, for example, has considered evidence gathered by other international human rights institutions and evidence submitted in other communications (Nieto v Uruguay (Merits) (1983) para. 10.4; Baboeram et al v Suriname (Merits) (1985) para. 11.3). State parties have not criticized this practice although it may exceed the limitations of Article 5 OPICCPR which states that the Committee shall consider information ‘made available to it by the individual and by the State Party concerned’. Scholars, on the other hand, have argued that Article 5 does provide some leeway referring to the wording whereas the Committee ‘shall consider’ (International Commission of Jurists (1982) 42). Additionally, the Committee has also accepted submissions by third parties on rare occasions (Länsman et al v Finland (Merits) (1996) para. 4.3). In its reform of the Rules of Procedure in 2019, the HRC has gone further and introduced a new Rule 96 whereby ‘the Committee or its special rapporteur may accept information and documentation submitted by third parties which may be relevant for the proper determination of the case’ (Rules of Procedure of the Human Rights Committee (2021)). Other human rights bodies—in particular where the source of information is not limited to information submitted by the parties—have received and considered third-party information (see, e.g., NBF v Spain (Merits) (2018) para. 8.1. et seq.). The rules of procedure for the CRPD explicitly allow the Committee, ex officio, to ‘obtain through the Secretary-General any documentation from organizations within the United Nations system or other bodies that may be of assistance in the consideration of the communication’ (Rule 73(2) CRPD Rules of Procedure (2016); even more extensive, Rule 76(1) CED Rules of Procedure (2012); see generally on amicus curiae submissions in international human rights proceedings, Amicus Curiae: Human Rights Bodies ).

22  The treaty frameworks of the regional human rights commissions provide more regulatory background to the fact-finding than those of the UN treaty bodies. Article 48(1)(d) of the American Convention on Human Rights (‘ACHR’), for example, explicitly mandates the IACommHR to verify the facts the individual asserts. The IACommHR is allocated an array of fact-finding methods to conduct an investigation. It may conduct onsite visits and hearings. If necessary, the Commission may convene several hearings (see, e.g., Gallo, Cariaga and Maluf de Christin v Argentina (Merits) (2015) paras 8 and 10). Besides fact-finding powers, the IACommHR also actively steers the submission of evidence by the authors or the state party. It has pressed the parties to submit specific evidence and usually sets strict time limits (e.g., Guida da Silva and Family v Brazil (Merits) (2016) para. 8 et seq.). The procedural paradigm differs from those of the UN human rights bodies. The evidentiary procedure is of a more investigatory nature. This precept does not preclude the IACommHR from starting its assessment of the case with the arguments and evidence presented by the parties, which it usually does pursuant to Article 43(1) IACommHR Rules of Procedure (2013) (e.g., JSCH and MGS v Mexico (Merits) (2015) para. 35).

23  Similarly, the African Charter on Human and Peoples’ Rights grants the African Commission extensive fact-finding powers through its Article 46: ‘[t]he Commission may resort to any appropriate method of investigation’. According to Article 101(1) Rules of Procedure (2020), the Commission may, of its initiative or at the request of a party, adopt any investigative measures which it considers capable of clarifying the facts of the case. The African Commission is also empowered to conduct inquiries, visit the scene, or take evidence in any other manner (Art 101(3) ACommHPR Rules of Procedure (2020)). It is also not limited to evidence submitted by the parties, as the Commission may request any third party person, organization, or institution of its choice to make available any relevant documentation and other materials in its possession (Art 101(2) ACommHPR Rules of Procedure (2020); see also, e.g., Front for the Liberation of the State of Cabinda v Angola (Merits) (2013) para. 27). The ACommHPR Rules of Procedure provide very detailed procedural rules for the various modes of the production of evidence.

24  The admissibility of evidence concerns whether specific evidence may be considered by the judicial body at all (Wigmore and Chadbourn (1940) section 12, 296). Evidence that does not pass this threshold is excluded without evaluating its probative value. Therefore, the concepts of admission and evaluation of evidence are sequential. Evidence found inadmissible is excluded prior to the judicial body’s assessment (‘weighting’) of whether the evidence provides sufficient proof to the applicable standard of proof to establish the fact in question. This section briefly describes the theoretical basis of exclusionary rules (1) after which it analyses to which extent international human rights bodies outright exclude certain evidence (2).

25  Rules on the admissibility of evidence fall into two general categories (on the sources of and reasoning behind exclusionary rules in domestic and international law, see Stirner (2021) 419 et seq. with further references). Intrinsic exclusionary rules exclude evidence based on the general lack of probative value, for example, irrelevance, immediacy, or hearsay (Wigmore and Chadbourn (1940) section 11, 296). Extrinsic exclusionary rules relate to evidence with a probative value that is nonetheless excluded because of certain principles and policies (Wigmore and Chadbourn (1940) section 11, 296). In these instances, adherence to external principles is deemed more important than the contribution of the evidence to the truth. Extrinsic exclusionary rules in domestic procedures most often concern evidence adduced in violation of constitutional law, for example, illegally seized evidence (Ma (1999) 280).

26  Intrinsic exclusionary rules shield the trier of fact from unreliable evidence (Lester and others (2012) 163). These exclusionary rules are thus required and mostly rooted in a jury-based judicial system. In bench proceedings, where the umpire decides on the evidence’s admissibility and evaluates the evidence’s probative value, intrinsic exclusionary rules would not serve their presupposed purpose. For example, judges in bench proceedings do not outright exclude certain, usually unreliable, hearsay evidence as inadmissible but would attribute little to no probative value in evaluating evidence.

27  International human rights bodies do not feature jury proceedings. The members of these human rights bodies and those of regional human rights commissions are legal professionals who undergo thorough scrutiny regarding their legal qualification (see, e.g., Art. 10 CAT Convention). Considering their underlying reasoning, there should be no need for intrinsic exclusionary rules in international human rights proceedings. On the other hand, extrinsic exclusionary rules may be derived from limitations in the treaty framework or mandated by procedural principles (see Stirner (2021) 427 et seq.).

28  Article 5 Optional Protocol ICCPR contains the narrowest wording regarding the evidence submitted by either the individual or the state party. Under Article 5 Optional Protocol ICCPR shall only consider submitted ‘written information’. A strict reading of Article 5 could lead to excluding any submitted evidence attempting to circumvent the limitation to written evidence. The Committee, however, has adopted a broad understanding of what constitutes ‘written evidence’ and has been very flexible regarding the admission of various types of evidence (Forms of Evidence; see Baldinger (2013 97; Young (2002) 215) The Committee has accepted transcripts of statements as admissible evidence, i.e., it allowed the submission of verbatim records and affidavits of oral statements as written evidence (e.g., Lopez Burgos v Uruguay (Merits) (1981) para. 2.3; Thompson v Saint Vincent and the Grenadines (Merits) (2000) para. 6.3). When the author in Howard v Canada submitted a videotape with interviews as evidence, the Committee rejected the tape as evidence (Howard v Canada (Merits) (2005) para. 4). It referred to the limitations imposed by the wording of Article 5 Optional Protocol ICCPR. However, when the author subsequently submitted a transcript of the taped testimony, the Committee accepted the transcript as evidence and highlighted the author’s cooperation. Lastly, the Committee has also considered photographic evidence as admissible in its proceedings (Kouidis v Greece (Merits) (2006) paras 2.5 and 7.3; Kanana v Zaire (Merits) (1993) para. 5.3; Weismann and Perdomo v Uruguay (Merits) (1980) para. 11(c)).

29  International human rights bodies do not recognize exclusionary rules for unwarranted evidence (see, e.g., Martinez Machado v Uruguay (Merits) (1983) para. 4.4), superfluous evidence (see, e.g., Morael v France (Merits) (1989) paras 5.3–5.5 and 9.5), written evidence submitted as copies, and evidence lacking objectivity (see, e.g., Hamida v Canada (Merits) (2010) para. 6.2). Although the African Commission has highlighted the importance of independent reports, there are no indications that it would outright exclude prima-facie biased reports (see, e.g., Jawara v The Gambia (Merits) (2000) para. 55).

30  The treaty frameworks underlying the communications proceedings mostly contain rules for the timely submission of documents. Strictly applying these rules would require that any observation of the facts and corroborating evidence is considered inadmissible if submitted past the deadline. The HRC has not understood these time limits as strict exclusionary rules (see, e.g., Santullo Valcada v Uruguay (Merits) (1979) para. 8; Weismann and Perdomo v Uruguay (Merits) (1980) para. 12). Human rights bodies are not precluded because of these rules to consider belated submissions of evidence (see, e.g., Marais v Madagascar (Merits) (1983) paras 15.1–16.1; see also Tomuschat (1980) 249, 254). These rules were drafted to speed up the proceedings, but during the drafting process it was made clear that the HRC should be granted some leeway regarding time limits (see Young (2002) 220 with further references). On the other hand, the HRC has excluded belated evidence where the late submission was aimed at deliberately delaying the proceedings (see, e.g., Hamida v Canada (Merits) (2010) para. 3.1).

31  Evidence may be excluded because it was not presented in the domestic proceedings. This relates to the prerequisite of exhaustion of domestic remedies. The HRC has had to address the admissibility of certain evidence not presented in the domestic proceedings in the communication Khan v Canada (Admissibility) (2006) paragraph 5.5). During the proceedings before the Committee, the author submitted a psychological report. It showed that he suffered from post-traumatic stress disorder due to the events in his home country. The author had not presented this report in the domestic proceedings. The Committee ultimately considered the communication inadmissible because the author had not exhausted all domestic remedies by not presenting the evidence in the domestic proceedings.

32  By design, the communication proceedings before international human rights bodies are almost exclusively based on written briefs and written evidence (see para. 20 above). However, the treaty frameworks of international human rights bodies either already provide for additional fact-finding instruments or implicitly leave this possibility open (see generally, Viljoen (2004) 49, 81). Therefore, this section will firstly explain the legal basis for hearings (1) and on-site visits (2) as fact-finding instruments and their past and future roles in the proceedings of international human rights bodies. Secondly, this section will consider the relevance of specific evidence in the human rights proceedings (3).

33  Regional human rights commissions may conduct hearings. Article 48(1)(e) ACHR and Article 30(5) IACommHR Rules of Procedure allow the IACommHR to invite the parties to a hearing. Chapter VI of its Rules of Procedure (2013) establishes a detailed framework for hearings. Parties may also request a hearing, but the Commission is not required to commence hearings upon requests (see the wording of Arts 64 and 65 IACommHR Rules of Procedure (2013)). Article 65(1) IACommHR Rules of Procedure (2013) highlights that the parties may submit any document, testimony, expert report, or item of evidence during the hearing. At the same time, witnesses or expert testimony may also be heard at the request of the parties or proprio motu by the Commission.

34  Rules 102 and 103 Rules of Procedure (2020) of the African Commission provide detailed regulations on the conduct of hearings regarding parties, witnesses, and experts in the context of communications. Similarly to the procedure of the IACommHR, the African Commission may convene hearings at its initiative or the request of one of the parties. The African Commission is not obligated to convene a hearing upon request, but the Bureau of the Commission must make a formal decision (Rule 102(3) African Commission Rules of Procedure (2020)). Since Rule 103 addressing the hearing of witnesses and experts does not contain a corresponding rule, it appears that the Commission cannot per se deny a request to hear witnesses and experts. However, it is the Commission that issues the invitations to witnesses and experts (Rule 101(6) African Commission Rules of Procedure (2020)) and decides on objections in this respect (Rule 101(8) African Commission Rules of Procedure (2020)). During hearings, the Commission critically reviews the state party submissions. The Commission has on occasion concluded ‘that the government did not seriously contest the allegations brought against it’ (Malawi African Association v Mauritania (Merits) (2000) para. 33). Hearings have also been held to elaborate on the question of conformity of the applicable domestic law with the African Charter (see, e.g., Uwimana-Nkusi and Mukakibibi v Rwanda (Merits) (2019) para. 86 et seq.).

35  In contrast to the regional human rights courts and bodies, only some UN human rights bodies can conduct hearings and only in exceptional circumstances while others cannot. In the communications proceedings of UN treaty bodies, the introduction and procedure of hearings faces significant objections. Some of these objections are practical in nature (see Ulfstein (2008) 73, 90; Viljoen (2004) 49, 82). Hearings would put significant financial strains on the authors of the communication. Since the state party does not face this limitation, hearings could threaten the equality of the parties in the proceedings if this problem is not addressed. Other objections relate to the limitations in the wording of the treaties. The wording of Article 5 Optional Protocol ICCPR, in particular, limits the Committee to written information. The HRC itself had referred to the limitations of Article 5(1) Optional Protocol ICCPR (although regarding on-site visits, see Bahamonde v Equatorial Guinea (Merits) (1993) para. 8.1). On the contrary, scholars have argued that the implied powers doctrine provides a sufficient legal basis for the introduction of hearings (Schmidt (1992) 645, 651).

36  Despite these limitations, the HRC amended Rule 101(4) HRC Rules of Procedure (2019), which now reads: ‘[t]he Committee may decide in exceptional cases to invite the parties to comment on each other’s submissions orally, in accordance with its guidelines on making oral comments concerning communications’. The procedure requires that both parties consent to the hearing. The guidelines for making oral comments concerning communications provide a rather detailed procedure for the hearings (HRC, ‘Guidelines on Making Oral Comments Concerning Communications’ (2019)). The hearings will be conducted in closed meetings. The Committee addressed one of the major practicality concerns raised beforehand. Paragraph 3(c) of the Guidelines allows the parties to ‘participate in the meeting in person or through reliable means of telecommunication’ (HRC, ‘Guidelines on Making Oral Comments Concerning Communications’ (2019)). Other human rights bodies also feature hearings where the complainant and the state party may provide further clarifications or answer questions on the merits (see, e.g., Rule 117(4) CAT Rules of Procedure (2014); Rule 94(5) CERD Rules of Procedure (1986)).

37  To expedite and simplify the proceedings regarding witness statements, international human rights bodies have also allowed the submission of affidavits (see, e.g., The Nubian Community in Kenya v The Republic of Kenya (Merits) (2015) para. 127; Elgak, Hummeida and Suliman v Sudan (Merits) (2014) para. 100).

38  The regional human rights commissions may also conduct on-site visits (Site Visit). Although not explicitly mentioned in Article 48(1)(d) ACHR, Article 39 IACommHR Rules of Procedure (2013) provides a framework for the IACommHR to conduct on-site investigations during the procedure of the merits. On-site visits by the IACommHR were originally not envisioned to enable fact-finding regarding individual communications but as a fact-finding method in the context of special reports addressing universal problems in the respective country (see Faundez Ledesma (2007) 395). Expanding beyond this precept, the Commission has also made use of this fact-finding tool to verify facts in communication proceedings (see Pasqualucci (2013) 103–4; Norris (1980) 733, 746). According to Article 53 IACommHR Rules of Procedure (2013), a ‘special commission’ is created for each case’s on-site observation. While the Commission decides whether visits are necessary and advisable, petitioners may also request an on-site visit (see, e.g., Mayagna (Sumo) Awas Tingni Community v Nicaragua, IACtHR (2001) para. 14). The Commission is not bound to follow up on such a request. The petitioner’s request is a mere suggestion. If the state consents, an on-site visit may be conducted in urgent cases as long as the communication prima facie fulfils the admissibility requirements (see Art. 48(2) ACHR). For feasibility reasons, the IACommHR must limit its on-site visits to a small fraction of cases (see Padilla (1993) 95, 101).

39  In accordance with the broad fact-finding mandate of Article 46 African Charter on Human and Peoples’ Rights, the African Commission may carry out on-site visits and take evidence in any other manner (see on-site visits, Gumedze (2003) 133 et seq.). In contrast to hearings, the African Commission Rules of Procedure (2020) do not contain detailed rules for the conduct of on-site hearings. The on-site visit composes of a delegation which will draft a mission’s report at the end of the on-site visit (see Malawi African Association v Mauritania (Merits) (2000) para. 33 et seq.).

40  UN human rights bodies cannot conduct on-site fact-finding in the context of communication proceedings. In a unique instance, the HRC had to address whether it could conduct an on-site visit when the respondent state explicitly invited the Committee to do so. The government had invited ‘the Committee to ascertain in situ that there have been no violations’ (Bahamonde v Equatorial Guinea (Merits) (1993) para. 8.1). The Committee referred to the limitations imposed by Article 5(1) OP ICCPR and that it ‘has no choice but to confine itself to formulating its Views in the present case on the basis of the written information received’ (Bahamonde v Equatorial Guinea (Merits) (1993) para. 8.2).

41  Official documents have played a significant role in substantiating alleged human rights violations. Authors and the respondent states have submitted court transcripts (see, e.g., Korolko v Russian Federation (2010) para. 2.2; Kouidis v Greece (Merits) (2006) para. 2.6; A v New Zealand (1999) footnote 2; Yrusta and Yrusta v Argentina (Merits) (2018) para. 7.7), government documents (Äärelä and Nakkalajarvi v Finland (2001) para. 5.4; Hamida v Canada (Merits) (2010) para. 5.1), and official correspondence (Marais v Madagascar (Merits) (1983) para. 15.1). Human rights bodies have attributed limited probative value to incomplete official records submitted by the state party for evidence unless the parties agreed on the information they provided (see, e.g., García and Family v Ecuador (Admissibility and Merits) (2019) para. 59). In non-refoulement cases where the human rights body would need to assess a real risk of ill-treatment in the receiving country, the HRC has accepted diplomatic assurances as evidence (see, e.g., Alzery v Sweden (Merits) (2006) para. 11.3). Aside from official documents, human rights bodies have also considered submitted photographic evidence (see, e.g., Kanana v Zaire (Merits) (1993) para. 5.3), newspaper articles and newspaper photos as evidence (see, e.g., Kouidis v Greece (Merits) (2006) paras 2.5 and 7.3).

42  In cases concerning enforced disappearances and ill-treatment, the submission of police registers (see, e.g., Kurbanova v Tajikistan (Merits) (2003) para. 7.2), post-mortem reports (Jawara v The Gambia (Merits) (2000) para. 52), and medical/autopsy reports (Elgak, Hummeida and Suliman v Sudan (Merits) (2014) para. 100; García and Family v Ecuador (Admissibility and Merits) (2019) para. 51) have been of particular importance. Medical reports have often served as the evidentiary foundation of communications regarding inhumane and degrading treatment (e.g., Weismann and Perdomo v Uruguay (Merits) (1980) para. 11(c); Pillai et al v Canada (Merits) (2011) para. 10.5; Shumba v Zimbabwe (Merits) (2012) para. 154 et seq.; KH v Denmark (Merits) (2012) para. 8.8).

43  The assessment of evidence describes the process of weighting evidence to determine whether it sufficiently establishes an alleged fact to the respective standard of proof (Paúl (2012) 193). The assessment of evidence by judicial bodies generally adheres to either one of two assessment paradigms. A judicial body may be bound to assess certain evidence by statutory regulations or jurisprudence, so-called ‘legal proof’ (Kunert (1966–67) 123). Alternatively, the weighting of evidence may be entirely left to the discretion of the judicial body, the so-called ‘free evaluation of evidence’ (Bovino (2005) 65).

44  The concept of legal proof is best understood when considering its historical origin. In the nineteenth century, when the judiciary was not separated from the monarchy, legal proof sought to enhance the independence and fairness of the evidentiary process (see Stirner (2021) 445 et seq. with further references). The weighting of evidence followed strict rules, such as a confession constituted full proof, to preclude an arbitrary evaluation of evidence by a potentially biased umpire (Paúl (2012) 202). Considering its inherent flaws, the concept of legal proof in its strict form has disappeared from most jurisdictions with the introduction of an independent judiciary (Paúl (2012) 206).

45  The concept of free evaluation of evidence has since become the standard approach to the evaluation of evidence in most jurisdictions (Kunert (1966–67) 144). ‘Free evaluation of evidence’ is implemented in two variants (Bovino (2005) 65). There is the variant of ‘free conviction’, whereas the trier of fact is not bound by any rules when weighting the case’s evidence. The other variant is ‘sound criticism/sana crítica’ whereas the trier of facts must explain and substantiate its weighting of the evidence. The trier of facts must not assess the evidence contradicting rules of logic and general knowledge. The evaluation of evidence will be subject to judicial review based on these rules.

46  International human rights bodies follow the concept of free evaluation of evidence since the treaty frameworks do not contain strict rules on the appreciation of the evidences’ probative value. Whether human rights proceedings adhere to the variant free conviction or sound criticism is more difficult to assess. Human rights bodies usually provide few insights into their weighting of evidence since their description of the relevant evidence is often neutral and has been described as ‘formulaic’ (Byrnes (2000) 139, 148). The HRC ‘takes note’ of certain evidence in most cases (Kanana v Zaire (Merits) (1993) para. 5.3). The brevity of the remarks on evidence may be caused by word count limitations and the general precept of concise views concluding the communications (see, on the word count limit, UNGA Resolution 68/268 (2014) para. 15). Therefore, the high probative value attributed by the human rights body may often only be inferred from the fact that the human rights bodies explicitly mention certain evidence in essential sections of the merits (see, e.g., the HRC’s reference to photographic evidence in Kanana v Zaire (Merits) (1993) para. 5.3). On the contrary, there is usually little indication when human rights bodies consider evidence of little probative value.

47  In some instances, human rights bodies elaborate on the probative value of key pieces of evidence. In the case of MC v The Netherlands, the CAT referred to medical evidence and discarded the ‘discrepancies’ alleged by the state party, saying that the state party ‘does not clearly refute the findings of the medical examination’ (MC v The Netherlands (Merits) (2015) para. 8.6). Human rights bodies often elaborate further on the probative value of the victim’s account in cases of enforced disappearances and ill-treatment, where the account may be the only available evidence. The HRC infers a particularly high ‘due weight’ probative value of the victim’s account when the account is very detailed, and there are no indications to the contrary, for example, in court transcript and police reports (see, e.g., Dunaev v Tajikistan (Merits) (2009) para. 7.3).

48  Evidence is usually not at the centre of the considerations of international human rights bodies. As a treaty prerogative and for reasons of feasibility, international human rights give considerable weight to findings of fact made by the domestic entities of the member states. Departing from the factual findings of the domestic entities requires human rights bodies to balance two competing aspects. Effective human rights protection, as mandated by international human rights treaties, does not allow the considerations to be based on arbitrary or biased factual findings. On the other hand, human rights bodies must take their limitations regarding fact-finding and the re-evaluation of evidence into account. UN human rights bodies and regional human rights commissions are generally not bound to defer to the factual findings of the domestic authorities. However, they will either give due weight to these findings or will reassess the finding only when the author/applicant has shown major procedural defects.

49  The UN human rights bodies rely mostly on the information the parties submit. In contrast, the regional human rights commission are more active in fact-finding and are granted more significant fact-finding powers. However, UN human rights bodies are not barred from considering other evidence brought to their attention. Human rights bodies have referred extensively to findings of other organizations and have also accepted third-party submissions.

50  With the changes made by the HRC, several human rights bodies now allow hearings in exceptional circumstances. Whether these hearings will take up a larger role in the proceedings is uncertain. Several structural limitations hamper the effective implementation of hearings. However, human rights bodies are advancing the possibility of remote hearings. The HRC’s Guidelines on Making Oral Comments specifically allow the parties to participate in the meeting through reliable telecommunication. Communication procedures may generally benefit from using new technologies, most importantly the electronic submission of communications, briefs, and evidence.

51  International human rights bodies seldom recognize and apply exclusionary rules for evidence. There seem to be no intrinsic exclusionary rules outright excluding unwarranted, superfluous, hearsay, or prima facie biased evidence. Instead, if necessary, human rights bodies allocate little to no probative value in these instances in the context of the assessment of evidence. In general, human rights bodies are flexible when applying procedural rules regarding the submission of information. Time limits are not interpreted as strict exclusionary rules as long as the procedural principles of equality of the parties and audiatur et altera pars are adhered to. The only exception to this flexibility relates to evidence not presented in the domestic proceedings, as this raises the issue of the non-exhaustion of domestic remedies. International human rights bodies are not bound by strict rules when assessing evidence. Instead, the concept of free evaluation of evidence applies.

ACommHPR

• Agnes Uwimana-Nkusi & Saidati Mukakibibi v Rwanda (Merits) (10 November 2019) Comm No. 426/12.

• Front for the Liberation of the State of Cabinda v Angola (Merits) (5 November 2013) Comm No. 328/06.

• Gabriel Shumba v Zimbabwe (Merits) (2 May 2012) Comm No. 288/04.

• Malawi African Association v Mauritania (Merits) (11 May 2000) Comm No. 54/91 et al.

• Monim Elgak, Osman Hummeida and Amir Suliman v Sudan (Merits) (14 March 2014) Comm No. 379/09.

• The Nubian Community in Kenya v The Republic of Kenya (Merits) (28 February 2015) Comm No. 317/2006.

• Sir Dawda K Jawara v The Gambia (Merits) (11 May 2000) Comm Nos 147/95 and 149/96.

CAT

• AA v Sweden (Merits) (24 November 2021) UN Doc. CAT/C/72/D/918/2019.

• Estela Deolinda Yrusta and Alejandra del Valle Yrusta v Argentina (Merits) (23 November 2018) UN Doc. CAT/C/65/D/778/2016.

• Inass Abichou v Germany (Merits) (21 May 2013) UN Doc. CAT/C/50/D/430/2010.

• KH v Denmark (Merits) (23 November 2012) UN Doc. CAT/C/49/D/464/2011.

• MC v The Netherlands (Merits) (30 November 2015) UN Doc. CAT/C/56/D/569/2013.

CEDAW

• RSAA et al v Denmark (Merits) (10 September 2019) Communication No. 86/2015; UN Doc. CEDAW/C/73/D/86/2015.

CRC

• NBF v Spain (Merits) (27 September 2018) Communication No. 11/2017; UN Doc. CRC/C/79/D/11/2017.

ECtHR

• S, V and A v Denmark (Merits and Just Satisfaction) (22 October 2018) App 35553/12 <https://hudoc.echr.coe.int/eng?i=001-187391> (accessed 13 January 2025).

• Tanrıkulu v Turkey (Merits and Just Satisfaction) (8 July 1999) App 23763/94 <https://hudoc.echr.coe.int/eng?i=001-58289> (accessed 13 January 2025).

• Udeh v Switzerland (Merits and Just Satisfaction) (English translation only in extracts) (16 April 2013) App 12020/09 <https://hudoc.echr.coe.int/eng?i=001-118936> (accessed 13 January 2025).

HRC

• A v New Zealand (Merits) (15 July 1999) Communication No. 754/1997; UN Doc. CCPR/C/66/D/754/1997; (1999) 7 IHRR 44.

• Äärelä and Näkkäläjärvi v Finland (Merits) (24 October 2001) Communication No. 779/1997; UN Doc. CCPR/C/73/D/779/1997.

• Alzery v Sweden (Merits) (25 October 2006) Communication No. 1416/2005; UN Doc. CCPR/C/88/D/1416/2005.

• Baboeram et al v Suriname (Merits) (4 April 1985) Communication No. 146/1983; UN Doc. CCPR/C/24/D/146/1983.

• Bahamonde v Equatorial Guinea (Merits) (20 October 1993) Communication No. 468/1991; UN Doc. CCPR/C/49/D/468/1991.

• Byahuranga v Denmark (Merits) (1 November 2004) Communication No. 1222/2003; UN Doc. CCPR/C/82/D/1222/2003.

• Dunaev v Tajikistan (Merits) (30 March 2009) Communication No. 1195/2003; UN Doc. CCPR/C/95/D/1195/2003.

• GK v The Netherlands (Merits) (22 March 2012) Communication No. 1801/2008; UN Doc. CCPR/C/104/D/1801/2008.

• Hamida v Canada (Merits) (18 March 2010) Communication No. 1544/2007; UN Doc. CCPR/C/98/D/1544/2007.

• Howard v Canada (Merits) (26 July 2005) Communication No. 879/1999; UN Doc. CCPR/C/84/D/879/1999.

• Kanana v Zaire (Merits) (2 November 1993) Communication No. 366/1989; UN Doc. CCPR/C/49/D/366/1989.

• Khadzhiev v Turkmenistan (Merits) (1 April 2015) Communication No. 2079/2011; UN Doc. CCPR/C/113/D/2079/2011.

• Khan v Canada (Admissibility) (25 July 2006) Communication No. 1302/2004; UN Doc. CCPR/C/87/D/1302/2004.

• Korolko v Russian Federation (Admissibility) (25 October 2010) Communication No. 1344/2005; UN Doc. CCPR/C/100/D/1344/2005.

• Kouidis v Greece (Merits) (28 March 2006) Communication No. 1070/22; UN Doc. CCPR/C/86/D/1070/2002.

• Kurbanova v Tajikistan (Merits) (6 November 2003) Communication No. 1096/2002; UN Doc. CCPR/C/79/D/1096/2002.

• Länsman et al v Finland (Merits) (30 October 1996) Communication No. 671/1995; UN Doc. CCPR/C/58/D/671/1995.

• Lopez Burgos v Uruguay (Merits) (29 July 1981) Communication No. 52/1979; UN Doc. CCPR/C/13/D/52/1979.

• Marais v Madagascar (Merits) (24 March 1983) Communication No. 49/1979; UN Doc. CCPR/C/18/D/49/1979.

• Martinez Machado (on behalf of Martinez Machado) v Uruguay (Merits) (4 November 1983) Communication No. 83/1981; UN Doc. CCPR/C/20/D/83/1981.

• Morael v France (Merits) (28 July 1989) Communication No. 207/1986; UN Doc. CCPR/C/36/D/207/1986.

• Ms G (Name Deleted) v Canada (Merits) (17 July 2000) Communication No. 934/2000; UN Doc. CCPR/C/69/D/934/2000.

• Nieto v Uruguay (Merits) (25 July 1983) Communication No. 92/1981; UN Doc. CCPR/C/19/D/92/1981.

• O’Neill et al v Ireland (Merits) (24 July 2006) Communication No. 1314/2004; UN Doc. CCPR/C/87/D/1314/2004.

• Pillai et al v Canada (Merits) (25 March 2011) Communication No. 1763/2008; UN Doc. CCPR/C/101/D/1763/2008.

• Santullo Valcada v Uruguay (Merits) (26 October 1979) Communication No. 9/1977; UN Doc. CCPR/C/8/D/9/1977.

• Shakeel v Canada (Merits) (24 July 2013) Communication No. 1881/2009; UN Doc. CCPR/C/108/D/1881/2009.

• Thompson v Saint Vincent and the Grenadines (Merits) (18 October 2000) Communication No. 806/1998; UN Doc. CCPR/C/70/D/806/1998.

• Thuraisamy v Canada (Dissenting Opinion) (31 October 2012) Communication No. 1912/2009; UN Doc. CCPR/C/106/D/1912/2009.

• Weismann and Perdomo v Uruguay (Merits) (3 April 1980) Communication No. 8/1977’ UN Doc. CCPR/C/9/D/8/1977.

IACommHR

• Adrian Beatriz Gallo, Ana María Cariaga and Silvia Maluf de Christin v Argentina (Merits) (28 July 2015) Case 12.632; IACommHR Report No. 43/15; OEA/Ser.L/V/II.155 doc.23.

• Aristeu Guida da Silva and Family v Brazil (Merits) (13 April 2016) Case 12.213; IACommHR Report No. 7/16; OEA/Ser.L/V/II.157 doc.11.

• Jorge Darwin García and Family v Ecuador (Admissibility and Merits) (14 June 2019) Case 11.624; IACommHR Report No. 92/19; OEA/Ser.L/V/II doc.101.

• JSCH and MGS v Mexico (Merits) (28 October 2015) Case 12.689; IACommHR Report No. 80/15; OEA/Ser.L/V/II.156 doc.33.

• Mayagna (Sumo) Awas Tingni Community v Nicaragua (Merits, Reparations and Costs) (31 August 2001) IACHR Series C No 79; [2001] IACHR 9.

• Santiago Marzioni v Argentina (Admissibility) (15 October 1996) Case 11.673; IACommHR Report No. 39/96; OEA/Ser.L/V/II.95 doc.7.