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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part II Procedural Articles, Art.22 Individual Complaints Procedure

Giuliana Monina

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

Content type:
Book content
Product:
Oxford Scholarly Authorities on International Law [OSAIL]
Series:
Oxford Commentaries on International Law
Published in print:
19 December 2019
ISBN:
9780198846178

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 03 October 2023

Subject(s):
Torture — Treaties, interpretation

(p. 582) Article 22  Individual Complaints Procedure

  1. 1.  A State Party to this Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

  2. 2.  The Committee shall consider inadmissible any communication under this article which is anonymous or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.

  3. 3.  Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

  4. 4.  The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.

  5. 5.  The Committee shall not consider any communications from an individual under this article unless it has ascertained that:

    1. (a)  The same matter has not been, and is not being, examined under another procedure of international investigation or settlement;

    2. (b)  The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.

  6. 6.  The Committee shall hold closed meetings when examining communications under this article.

  7. 7.  The Committee shall forward its views to the State Party concerned and to the individual.

  8. 8.  The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party has made a new declaration.

(p. 583)

(p. 584) 1.  Introduction

1  The right of victims of torture, ill-treatment, and other torture-related violations stipulated in the CAT, such as violations of the non-refoulement principle under Article 3, to an effective remedy and reparation derives from the human right not to be subjected to torture, ill-treatment, and similar violations of the Convention. Since torture constitutes a typical example of a gross violation of human rights, this important procedural right is also underlined by the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.1 This right shall primarily be provided by respective complaints procedures on the domestic level. Most importantly, Article 13 CAT contains the obligation of States parties to ensure that any victim of torture and other forms of ill-treatment has ‘the right to complain to, and to have his case promptly and impartially examined by, its competent authorities’.2 If such domestic remedies are not effective or, for whatever reason, do not provide satisfactory redress, the victim shall be granted the possibility of submitting an individual complaint to a competent international monitoring body.

2  While a mandatory right of individual complaints is guaranteed, for example, by Article 34 ECHR and Article 44 ACHR, UN human rights treaties only provide for optional individual complaints mechanisms to quasi-judicial bodies.3 The respective provisions of UN treaties, most of which were drafted during the Cold War and constitute a kind of lowest common denominator between the Western and the Socialist concepts of human rights,4 contain extremely weak language. Instead of complaints, they speak of ‘communications’, instead of judgments or at least decisions on the merits, they use the term ‘views’, which are considered as non-legally binding even vis-à-vis States parties that have explicitly and voluntarily accepted the competence of the respective monitoring bodies to receive and consider individual complaints.

3  Nevertheless, over the course of the years the Human Rights Committee (HRC) and the Committee against Torture (CAT Committee or Committee) have developed these weak procedures into fairly effective quasi-judicial complaints procedures by clearly going beyond the powers originally entrusted to them. The CAT Committee even changed the terminology and speaks about individual complaints and decisions on the merits (Rule 118 (4)), which in their structure and substance clearly resemble judicial decisions. Following the model of the HRC, it also developed the practice of issuing requests for interim measures and appointing Rapporteurs on follow-up.

4  Only 68 out of a total of 162 States parties to the Convention have accepted the optional individual complaints procedure, and the clear majority of these States are from (p. 585) Europe and Latin America and are also subject to the respective mandatory complaints procedures under the ECHR and the ACHR.

5  During the roughly thirty years of its existence, the CAT Committee has registered 825 complaints concerning thirty-eight States parties. Up until May 2017, 234 of them were discontinued, 86 found inadmissible, 175 were still pending, and in the remaining 329 cases the Committee took a decision on the merits.5 In 131 cases of all decisions on the merits, the Committee established violations of one or more provisions of the Convention. The vast majority of decisions on the merits do not concern allegations of the practise of torture or other forms of ill-treatment itself, but allegations of the violation of the non-refoulement principle in Article 3 CAT.6 This is the result of the fact that European and other industrialized States constitute the majority of States parties which accepted the optional complaints procedure. In addition victims of torture and other forms of ill-treatment in countries known for their practise of torture often lack effective access to international complaints procedures or are afraid of submitting complaints.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

6  Original Swedish Draft (18 January 1978)7

Article 20

  1. 1.  A State Party may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to have been subjected to torture or other cruel, inhuman or degrading treatment or punishment in contravention of the obligations of that State Party under the present Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration.

  2. 2.  Communications received under this article shall be dealt with in accordance with the procedure provided for in the Optional Protocol to the International Covenant on Civil and Political Rights and in the Rules of Procedure of the Human Rights Committee.

7  Swedish Proposal for the Implementation Provisions (22 December 1981)8

Article 32

  1. 1.  A State Party to the present Convention may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention. No communication shall be received by the Committee if it concerns a State Party to the Convention which has not made such a declaration.

  2. (p. 586) 2.  The Committee shall consider inadmissible any communication under this article which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of the present Convention.

  3. 3.  Subject to the provisions of paragraph 2, the Committee shall bring any communications submitted to it under this article to the attention of the State Party to the present Convention which has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.

  4. 4.  The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.

  5. 5.  The Committee shall not consider any communications from an individual under this article unless it has ascertained that

    1. (a)  the same matter has not been, and is not being, examined under another procedure of international investigation or settlement

    2. (b)  the individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of the present Convention.

  6. 6.  The Committee shall hold closed meetings when examining communications under this article.

  7. 7.  The Committee shall forward its views to the State Party concerned and to the individual.

  8. 8.  The provisions of this article shall come into force when five States Parties to the present Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration.

2.2  Analysis of Working Group Discussions

8  Deliberations in the Working Group on Article 22 only began in 1982. However, in 1978 some States had already submitted their comments to Article 20 of the original Swedish draft.9 Austria had objected to the examination of individual complaints under the CAT by the HRC, arguing that this would mean that obligations voluntarily assumed by States under the CAT would be monitored by a body whose nominating States had not assumed the same obligations. Austria therefore suggested that individual complaints be referred to a sub-group (or chambers) of the Committee composed of nationals of (p. 587) States which had made the declaration under Article 20.10 Whilst noting that no Arab State and only few African, Asian, and Latin American States had made a declaration recognizing the competence of the HRC in accordance with the OP to the CCPR, Morocco expressed its support for the individual complaints procedure to the HRC provided for in draft Article 20.11

9  In 1982, the Working Group based its discussions on the individual complaints procedure (as well as the inter-State communications) on a revised draft text on the implementation provisions submitted by Sweden.12 Draft Article 32, which later became Article 22 CAT, was modelled on the provisions of the first OP to the CCPR. Some delegations expressed their support for the individual complaints procedure under draft Article 32. Other delegations felt that, in light of the fact that the proposal also suggested two parallel Committees, the HRC and the CAT Committee, there would be a risk of duplication or, even worse, a conflict between the two procedures. Some delegations even went as far as suggesting that it be considered that the two complaints procedures (individual and inter-State complaint procedure) be omitted from the Convention, given that they were of an optional character.13

10  In 1983, the complaints procedures (under Articles 31 and 32 of the new Swedish proposal) were discussed only briefly in the Working Group. The Swedish delegation informed the Working Group that it wished to maintain its proposal. Switzerland expressed its strong support for including an individual complaints procedure in the draft Convention.14 No other delegation expressed its opinion on the issue at this stage.

11  In the 1984 Working Group session all States agreed on the inclusion of an optional individual complaints procedure as provided for in draft Article 32 and consequently the Article was adopted without any substantial changes.15

12  At the fortieth session of the Commission on Human Rights in 1984, States had a substantial debate on the achievements of the Working Group. During this session Bangladesh expressed concern with regard to Article 22 that complaints could only be launched against States which had made the declaration. The delegation wondered how many States would be willing to make the declaration. With regard to the requirement of exhaustion of all available domestic remedies before submission of a complaint to the Committee, the delegation stated that it would be extremely difficult for political opponents to do so and to fulfil this condition. Despite these comments, Bangladesh expressed its support for the draft Convention and hoped that it would be transmitted to the General Assembly as soon as possible.16

(p. 588) 3.  Issues of Interpretation

3.1  Optional Character

13  In contrast to the mandatory character of individual complaints under regional human rights treaties,17 the UN has been for long time extremely reluctant to accept the right of victims of human rights violations to submit complaints. Therefore, they only provide for optional individual complaints mechanisms to quasi-judicial bodies on the basis of a separate optional protocol or an optional clause in the text of the respective treaty. Individual complaints are provided for by all nine treaty bodies.18

14  The drafting history of Article 22 shows that the optional character of the individual complaints procedure under the CAT, which is modelled on the provisions of the first OP to the CCPR, was never seriously put into question.19 Consequently, victims of alleged violations of the CAT may only submit a complaint to the Committee against a State party which has made a declaration explicitly recognizing the competence of the Committee to deal with such complaints in accordance with Article 22(1).

15  The procedure concerning declarations is regulated by Article 22(1) and (8) and Rule 102. A State party may declare that it recognizes the competence of the Committee at any time.20 Such declarations are deposited with the Secretary-General of the United Nations, who acts as the depositary of the Convention.21 As of December 2017, 68 States parties have made a declaration under Article 22.22

16  Article 22(8) CAT provides for the possibility for States parties to withdraw declarations under Article 22(1) at any time by notification to the Secretary-General. In contrast to a denunciation under Article 12 of the first OP to the CCPR, which takes effect three months after the date of receipt of the notification by the Secretary-General, the withdrawal of a declaration under Article 22(8) CAT takes effect immediately, ie the day after the notification of withdrawal is received. Yet, as indicated in Rule 102(2), the withdrawal of the declaration ‘shall not prejudice the consideration of any matter which is the subject of a complaint already transmitted under that article’. Thus, all individual complaints which reach the OHCHR in Geneva prior to the notification of withdrawal shall be accepted, registered, and considered by the Committee. Any subsequent complaints are to be declared inadmissible by the Committee pursuant to Article 22(2) as incompatible ratione personae, regardless of whether the alleged violation of the Convention has occurred at a date on which the State party still had accepted the individual complaints (p. 589) procedure.23 While some States have made use of their right to denounce the first OP to the CCPR,24 to date no State party to the CAT has withdrawn its declaration under Article 22(8) CAT.25

17  Article 22(8) stipulates that five declarations are needed for the individual complaints procedure to enter into force. Since among the first twenty States that ratified or acceded to the Convention in accordance with Articles 25 and 26, there were more than five States which also made the respective declaration under Article 22(1), the individual complaints procedure entered into force together with the Convention on 26 June 1987.26

3.2  Article 22(1): Standing of the Applicant

3.2.1  Meaning of ‘individuals’

18  By making an optional declaration under Article 22(1), a State party accepts the competence of the Committee to ‘receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State party of the provisions of the Convention’. This formulation is based on Articles 1 and 2 of the first OP to the CCPR.27

19  First of all, only individuals have standing to lodge a complaint to the Committee. As with the first OP to the CCPR, the CAT individual complaints procedure does not provide a remedy for the violation of collective rights. Legal persons such as corporations, NGOs, or religious groups cannot claim to be victims under Article 22. While this requirement seems too narrow for a general human rights treaty such as the CCPR, and has led to controversial discussions as to the standing of groups and legal entities,28 it is less problematic in relation to victims of torture and other forms of ill-treatment. The right not to be subjected to torture or other forms of ill-treatment is a typical individual right, and it is difficult to imagine how a legal entity might become a victim.

20  However, torture can be practised systematically against a particular group of individuals, and victims can collectively suffer harm, as stated by the Committee in its General Comment No 3 to Article 14.29 In such cases collective complaints may be divided into individual cases by the Secretariat in accordance with Rule 111(5).30 Thus, complaints may be brought on behalf of a group of individuals, as long as each individual is identified. In practice, the Committee has received very few such complaints.

(p. 590) 3.2.2  Meaning of ‘victim’

21  Complaints can only be submitted by or on behalf of a victim, generally a person who is directly affected by a violation of a provision of the Convention by a State party. The victim requirement aims at preventing an actio popularis, ie the challenging of a law, State policy or practice in the abstract without demonstrating how the alleged victim is individually affected. In this regard, the Committee clarified that to be victims and, thus, have legal standing individuals have to be ‘personally and directly affected by the alleged breach in question’.31 For example, in Rosenmann v Spain, concerning a Spanish citizen of Chilean origin claiming that Spain had violated Articles 5, 8, 9, 13, and 14 by failing to investigate and prosecute alleged acts of torture falling within its jurisdiction and to pursue the extradition proceedings to the furthest extent possible, the Committee found that the victim requirement was not met. The main reason for this was that the complainant was not a civil party to the criminal proceedings in Spain against the alleged offender (General Pinochet) nor did his case form part of the Spanish extradition request. In other words, the Committee noted that ‘even if General Pinochet had been extradited to Spain, the complainant’s situation would not have been materially altered (at least without further legal action on the complainant’s part)’. The fact that he had standing under Spanish law to join the case if he wished did not seem to be relevant for the Committee, as the complainant had failed to demonstrate that he was a victim of the alleged failure of the State ‘at the time of the communication’.32

22  More recently, however, the question arose as to whether the Convention also covers indirect victims. For what concerns Article 14, this issue has been addressed by the Committee in its General Comment No 3, where it was clarified that the notion of victim extends to ‘affected immediate family or dependants of the victim as well as persons who have suffered harm in intervening to assist victims or to prevent victimization’.33 Similarly, under Article 14(1), dependants are entitled to compensation in case of death of the direct victim.34

23  More in general, since the CAT, as a specialized treaty aimed at strengthening the universally recognized absolute prohibition of torture and other forms of ill-treatment, primarily contains procedural obligations of States, the question arises whether any non-compliance with such obligations necessarily produces victims with the right to submit an individual complaint to hold the respective State party accountable. A victim is a person whose human rights have been violated by a State party. Consequently, the right to submit a complaint under Article 22 only refers to violations of CAT provisions which entail subjective rights of individuals. Every right of an individual creates a corresponding obligation of States, but not every obligation of States corresponds to a particular individual right. The obligation to submit periodic State reports certainly belongs to the second category, and nobody has the right to submit a complaint alleging to be a victim of a violation of Article 19. On the other hand, the prohibition of refoulement under Article 3 is a subjective right which can be enforced by the victims through individual (p. 591) complaints, as the rich case law of the Committee in relation to Article 3 illustrates. But for certain provisions, it is difficult to assess whether an alleged violation had a direct effect on a particular person who would therefore meet the victim requirement. Often, this can only be decided on a case-by-case basis taking into account all circumstances of the specific case.35

24  In this regard it may be useful to look at the Committee’s jurisprudence. Strictly speaking, the Convention does not contain a specific right not to be subjected to torture or other forms of ill-treatment. But a person who has been subjected to torture can claim to be a victim of a violation of the respective State party’s obligation under Article 2 to take effective measures to prevent torture. In such cases, the Committee normally finds a violation of Article 2 alone or in conjunction with Article 1.36 Similarly, in the case of other forms of ill-treatment, the Committee found violations of the States’ obligations to prevent such acts in accordance with Article 16.37 Thus far the Committee has equally found violations of the obligations enshrined by Articles 11, 12, 13, 14, and 15.38 Several questions remain with regard to Article 10. Does the failure of a State party to include the prohibition of torture in the training of staff at a particular prison in clear violation of Article 10 constitute a legitimate subject of a complaint by every detainee of this prison, or only by detainees who have been tortured, or does the victim have to prove that the lack of training was the decisive reason for his or her being subjected to torture? Those questions have not yet been addressed by the Committee.39

25  More difficult to answer is the question whether a failure of a State party to criminalize torture with appropriate penalties under domestic law in accordance with Article 4 or to establish the respective types of jurisdiction, including universal jurisdiction, in accordance with all requirements laid down in Articles 5 to 9, and to bring alleged perpetrators of torture to justice constitutes a violation of respective rights of torture victims. In the leading case of Guridi v Spain, the Committee admitted a claim of torture victims and found a violation of Article 4 in view of the much too lenient measures taken by the Spanish authorities against the perpetrators.40 Similarly, in the Hissène Habré case, the Committee found violations of Articles 5 and 7 CAT by Senegal for its failure to establish universal jurisdiction in its criminal justice system and to take respective action either to extradite the former dictator of Chad to Belgium or to bring him to justice before Senegalese courts.41 On the other hand, in Rosenmann v Spain, the Committee denied that a victim of the Pinochet regime had a right under Articles 5(1)(c), 8 and 9 such that the Spanish authorities should insist on the extradition of General Pinochet from the United Kingdom to Spain.42

(p. 592) 3.2.3  Meaning of ‘on behalf of individuals’

26  Complaints may also be submitted ‘on behalf of individuals’. These words were inserted already in the Swedish draft of 1981 on the basis of the experience with many complaints which had been submitted to the HRC on behalf of detainees in Uruguay by family members who had fled the country.43 The RoP give some guidance on how this could be interpreted providing that ‘[t]he complaint should be submitted by the individual himself/herself or by his/her relatives or designated representatives, or by others on behalf of an alleged victim when it appears that the victim is unable personally to submit the complaint and, when appropriate authorization is submitted to the Committee’.44

27  Unlike Rule 110 on the conditions for registration, Rule 113 does not require that relatives bringing the complaint be ‘close’ to the victim. Although the admissibility language seems more inclusive, in practice during the admissibility phase the Committee may apply the standards more strictly than at the registration stage.45

28  In addition, Rule 113 provides for a residual category of unspecified ‘other persons’ that may act on behalf of the victim. More specifically, Rule 113(a), as modified in 2002, provides that ‘other persons’ can only act on behalf of a victim ‘when appropriate authorization is submitted to the Committee’. The amendment setting up a much stricter criteria for the concept of ‘other persons’ aimed at minimizing the risk of persons acting without good reasons or even against the intentions of the victim.46 The previous text of the Rule, in fact, stated

[t]he communication should be submitted by the individual himself or by his relatives or designated representatives or by others on behalf of an alleged victim when it appears that the victim is unable to submit the communication himself, and the author of the communication justifies his acting on the victim’s behalf.47

29  The standing requirement was interpreted by the Committee in JHA v Spain. In this case, the complaints were lodged by a member of a Spanish NGO acting on behalf of a number of Indian citizens held in detention outside Spain (in Mauritania) but under Spanish de facto control. Although recognizing Spain’s jurisdiction, the Committee declared the case inadmissible due to the lack of standing (locus standi) of the complainant.48 The Committee found that the alleged victims should have expressly authorized the complainant to approach the Committee on their behalf, unless it was impossible for them to do so, given the situation. In the present case, the Committee did not find it to be impossible to obtain express authorization, especially because the alleged victims had previously provided authorization to lodge a domestic appeal to the Spanish Commission for Refugee Assistance, and had been interviewed by representatives of various international and NGOs during their detention.49

30  If the reasons beyond the 2002 amendments to Rule 113 are understandable, one should similarly avoid to apply the standing requirement in a too restrictive manner as (p. 593) this may frustrate the very reason of why this provision was adopted. It is clear from this provision that complaints may be submitted directly by the victim, by duly authorized representatives (lawyers, NGOs, or other representatives explicitly authorized by the victim), or by other persons who are not explicitly authorized by the victim but who act on the victim’s behalf because he or she is unable personally to submit a complaint. This is the case, for example, if a torture victim is held incommunicado, has disappeared, if he or she has been tortured to death, or has been disabled, or for similarly serious reasons is unable to act personally. In such exceptional cases, relatives, close friends, or other persons may submit a complaint on behalf of the victim, but they must justify this with good reasons. It is, therefore, recommended that the wording ‘appropriate authorization’ should be interpreted in a broad sense of justifying why the author is unable to provide a proper authorization by the victim.

3.3  Article 22(1): Individuals Subject to Its Jurisdiction

31  In order to submit a complaint to the Committee, an individuals must be subject to that State party’s jurisdiction. The concept of jurisdiction of States parties goes beyond their immediate territory and also applies to persons and territories where authorities of the respective State party exercise ‘directly or indirectly, in whole or in part, de jure or de facto effective control, in accordance with international law’.50 The Committee has further clarified this concept with regard to interception measures. In JHA v Spain, it stipulated that the broad interpretation of the concept of jurisdiction is applicable not only ‘in respect of article 2, but of all provisions of the Convention, including article 22’.51 In this case, the Committee recognized Spain’s jurisdiction with regard to a complaint lodged on behalf of a number of Indian citizens who were rescued in international waters by a Spanish vessel and, after days of negotiations between the Spanish and Mauritanian authorities, disembarked in Mauritania in the port of Nouadhibou, where they were held in detention in a former fish-processing plant. Given these circumstances, the Committee found that Spain had indeed exercised constant de facto control over the complainants ‘from the time the vessel was rescued and throughout the identification and repatriation process that took place at Nouadhibou’, and it had done so ‘by virtue of a diplomatic agreement concluded with Mauritania’.52 Similarly, in Sonko v Spain the Committee concluded that the complainants were subject to Spain’s jurisdiction due to the control exercised by Spanish officers on board the vessel, despite the interception measure was performed in the territorial waters of another State (Morocco).53

32  The issue as to how the term ‘individuals subject to its jurisdiction’ within the meaning of Article 22 should be interpreted arose in two leading cases on universal criminal jurisdiction. In the Guengueng et al v Senegal case, Senegal argued that the communication invoking Articles 5 and 7 was inadmissible because the torture acts alleged by the complainant were suffered by foreign nationals, had occurred in a foreign country and were committed by a foreign actor. Senegal further argued that the complainants were not subject to its jurisdiction under Article 22, since in such cases its domestic law did not allow to lodge a complaint before Senegalese courts regardless of the victims’ (p. 594) nationality.54 In this case, however, the Committee rejected Senegal’s arguments, holding that in order to establish whether a communication falls within the jurisdiction of a State party under Article 22, various factors that are not confined to the complainant’s nationality must be considered. The Committee also noted that Senegal did not ‘dispute that the authors were the plaintiffs in the proceedings brought against Hissène Habré in Senegal’ and considered that, as required by domestic law, the complainants had accepted Senegalese jurisdiction in order to pursue the proceedings against Habré, which they instituted. Based mainly on these considerations, the Committee found that the complainants were indeed subject to the jurisdiction of Senegal for the purpose of Article 22 and thus declared the communication admissible.55 Without elaborating further, the Committee concluded by saying that ‘the principle of universal jurisdiction enunciated in article 5 … and article 7 of the Convention implies that the jurisdiction of States parties must extend to potential complainants in circumstances similar to the complainants’.56

33  The issue of jurisdiction within the meaning of Article 22 arose again in HBA v Canada. In this case, Mr Bush (former President of the US) travelled to Toronto to give a talk. The complainants, alleging to be torture victims of the CIA detention programme, argued that the presence of Mr Bush in the territory of Canada triggered universal jurisdiction. The complainants’ counsel called upon the Attorney General of Canada to launch a criminal investigation against Mr Bush for his role in authorizing and overseeing his administration’s torture programme. As no reply had been provided, the complainants’ counsel attempted to file information to commence private prosecution, a procedure allowed under Canadian law.57 Such procedure was, however, ultimately stayed. Mr Bush was not questioned, investigated, or prosecuted by the Canadian authorities who also did not take any measure to secure his presence, hence he returned to the US. Under these circumstances, the complainants claimed that Canada had violated Articles 5, 6, and 7 CAT. In this case, the Committee reiterated the argument made in Guengueng et al v Senegal that various factors that are not only confined to the complainant’s nationality should be considered, and specified that ‘a decisive factor is whether the complainant has accepted the jurisdiction of a particular State party in order to pursue the proceedings that the complainant has initiated against an alleged perpetrator of torture’.58 When applying such principles to the present case, the Committee observed that Canada, contrary to Senegal, had disputed that the complainants were party to the private prosecution brought against Mr Bush in Canada.59 It further noted that the complainants, who were (p. 595) listed as victims of torture, did not show to have authorized the person who submitted the information before the Canadian prosecution (the Director of the Canadian Centre for International Justice) to act as their legal representative before Canadian authorities.60

34  While the two cases mentioned above provide some guidance for the interpretation of this provision in cases of criminal universal jurisdiction, various questions remain. Namely, what requirements need to be fulfilled by a complainant in order to be considered a ‘party’ of a criminal proceeding for the purpose of establishing jurisdiction under Article 22? Does the Committee consider that the acceptance of the State’s jurisdiction within the meaning of Article 22 can be exercised by victims of torture that are not present on the territory of the State party through a legal representative? In replying to those questions it will be of utmost importance not to set up too strict requirements, as this would risk, on the one side, to weaken the States obligations under Articles 5, 6, and 7 and, on the other side, to frustrate the subjective rights of victims of torture, above all, the victims’ right to bring a complaint before the Committee.

3.4  Article 22(2): Inadmissibility of Anonymous Complaints

35  As established by Article 22(2) a complaint shall not be anonymous. It is a general rule of individual complaints procedures under international law that the identity of the applicant must be revealed to the authorities of the State party, otherwise, the State party would not be in a position to investigate and respond properly to the allegations. Rule 104(b) suggests that anonymous complaints are not even registered by the Secretariat, in that they do not fulfil the criteria for registration.61 Yet under Rule 105(a) the Secretariat may also request clarification from anonymous applicants as to their name, address, age, occupation, and the verification of their identity. A combined reading of these provisions seems to suggest that in order to comply with Article 22(2) the Committee and at least its Rapporteur on new complaints must have an opportunity to review such a decision of the Secretariat.62

36  The need to reveal the identity of applicants to the respondent State party and the Committee does, however, not require to reveal the identity of all applicants to the public. Upon request the Committee will normally agree to keep a complainant’s identity anonymous to the public in both inadmissibility and decisions on the merits.63

(p. 596) 3.5  Article 22(2): Abuse of the Right of Submission

37  Inadmissibility on grounds of abuse is an exception in the practice of the Committee.64 As with the HRC, the CAT Committee is extremely reluctant to make use of its power under Article 22(2) and Rule 113(b) to declare a complaint inadmissible because of considering it as an abuse of the right to submit a complaint. So far, the Committee has rarely dismissed a complaint on grounds that the complaint constitute an abuse of right.65

38  In order for a complaint to be inadmissible for abuse of right, the Committee requires that one of the following conditions are met: (1) the submission amount to a malice or a display of bad faith or intent at least to mislead, or be frivolous; or (2) the acts or admissions referred to must have nothing to do with the Convention.66 Typical examples of abusing the right of submitting a complaint are attempts to mislead the Committee with incorrect information, the use of extremely insulting and offensive language, or facts which show that the applicant is not taking the procedure seriously at all.

39  In contrast, complaints concerning related victims and similar, but not identical facts are not re-submissions of an already decided issue, and do not, therefore, constitute abuse of process.67 Furthermore, in Thabti v Tunisia, Abdelli v Tunisia, and Ltaief v Tunisia, the Committee rejected the State party’s arguments that complainants had abused their right to submit communications by virtue of their alleged political and partisan commitments.68 In response to Tunisia’s further allegations that the complaints constituted defamation and thus, also abuse of procedure, the Committee noted that reports of torture were always serious and could not be deemed defamatory without a review on the merits.69

3.6  Manifestly Unfounded

40  Although not explicitly provided for in Article 22, Rule 113(b) regulates the inadmissibility ground of manifestly unfounded complaints. As with the HRC,70 the CAT Committee applied this controversial inadmissibility ground and rejected as inadmissible a number of cases where it considered the complaint to lack sufficient evidence to substantiate the applicant’s claim. As will be seen below, this bar to admission has been used mainly in the rejection of Article 3 claims but also other Convention Articles such as Article 16.

41  Sometimes, it is difficult to distinguish between manifestly unfounded complaints and those declared inadmissible as incompatible ratione materiae,71 and both (p. 597) inadmissibility grounds usually involve the risk of deciding questions on the merits at the admissibility stage. Since the CAT Committee usually combines both questions in one decision, this risk is less serious than with other procedures. To avoid such risk, the Committee has often decided that that ‘the arguments before it raise substantive issues which should be dealt with on the merits and not on admissibility considerations alone’.72

42  Similarly, it is not always easy to identify what standards the Committee applies to determine whether or not a complaint is sufficiently substantiated in accordance to Rule 113(b), especially because normally the Committee gives very few details as to why a certain conclusion is reached.73 From the case law, it emerges that the Committee has declared complaints inadmissible on this ground mainly when they provided almost no evidence or arguments at all; or when the evidence or arguments provided were insufficient to substantiate the claim.

43  In the first category, the Committee has normally rejected complaints as inadmissible because they fail to raise to the basic level of substantiation required for purposes of admissibility,74 especially when the complainants had ample opportunity to provide evidence before domestic authority. The same conclusion was reached when no ‘fresh evidence’ casting doubts on the findings of the domestic authorities was submitted.75

44  More controversial are, instead, decisions rejecting complaints for failing to provide sufficient evidence or arguments to substantiate the claim.76 In conducting such an assessment the Committee has, for example, taken into consideration whether the complaint included a detailed and punctual description of the facts, the legal proceedings/complaints initiated against the alleged violations, and their results;77 but above all whether the complainant had submitted any corroborating documentary evidence supporting the claim,78 such as a copy of the domestic judgment,79 and especially medical evidence.80

45  For example, in its jurisprudence on Article 3, in RS v Denmark the Committee has rejected the complaint for failing to establish a prima facie case because the complainant (p. 598) had not provided evidence supporting the claim that he was politically active, or explaining why the political group he worked for was targeted by the State.81 Moreover, even if provided, the Committee may find that medical evidence is not sufficient if it is inconclusive about the reasons underlying the complainant’s physical and psychological symptoms,82 or if it substantiates only past incidents of torture, without providing sufficient proof or argument as to why the alleged victim would be at risk in the future.83

46  For cases invoking Article 16 in relation to medical care while in detention, the Committee further considered whether the complainant submitted any medical or other evidence concerning the medical treatment received while in detention or any deterioration of the victim’s state of health as well as information on any complaints he/she might have lodged.84 This ground was equally applied in regard to Article 16 cases alleging that a return measure to the country of origin of the complainant would constitute a violation of Article 16 per se due to the complainant’s state of health.85 In these cases, the Committee has consistently repeated that an aggravation of the condition of an individual’s physical or mental health by virtue of a deportation is generally insufficient, in the absence of additional factors, to amount to a violation of Article 16.86 In its assessment the Committee also considered whether health care was available in the country of origin.87

3.7  Article 22(2): Incompatibility with the Provisions of the Convention

47  Pursuant to Article 22(2) and Rule 113(c), the Committee shall consider inadmissible any complaints which are incompatible with the provisions of the Convention. As with other complaints procedures, there are four incompatibility grounds: ratione personae, materiae, loci, and temporis.88

3.7.1  Ratione personae

48  Incompatibility ratione personae deals with the requirements of active and passive legitimacy of complaints.

49  Active legitimacy concerns the legal standing of the complainant. This means that the Committee may dismiss complaints on the basis of this ground if they are not submitted by an individual who is a victim of a Convention’s violation or on his/her behalf.89

50  Passive legitimacy concerns the State party against which a complaint has been lodged before the Committee and can encompass various situations: first, this grounds allows the Committee to dismiss complaints that are submitted against States that have not ratified the Convention or States that have ratified the Convention but have not made the (p. 599) optional declaration under that Article 22 and, hence, do not recognize the competence of the Committee to receive and consider individual complaints. Second, complaints directed against other States or against non-State actors are to be declared inadmissible ratione personae, if they are not imputable to the State party in question.