Optional Protocol to the Convention on the Rights of Persons with Disabilities
Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou
- Disability — Jurisdiction
4.6 ‘The Facts that Are the Subject of the Communication Occurred Prior to the Entry Into Force of the Present Protocol for the State Party Concerned Unless those Facts Continued After that Date’ 1233
The Optional Protocol to the Convention on the Rights of Persons with Disabilities was adopted along with its parent Convention (hereafter ‘CRPD’) on 13 December 2006 by the United Nations General Assembly and entered into force on 3 May 2008, in accordance with article 13 paragraph 1 thereto.1 The Optional Protocol establishes the competence of the Committee on the Rights of the Persons with Disabilities (hereafter ‘the Committee’)2 to examine individual complaints with regard to alleged violations of the Convention by states parties to the Optional Protocol and to undertake inquiries in case of reliable evidence of grave and systematic violations of the Convention. To date, among 175 parties to the Convention, ninety-two states have ratified the Optional Protocol.3
The Optional Protocol resembles previous United Nations core human rights instruments.4 It reproduces the binary model of complaints and inquiry procedures established by the Optional Protocol to the Convention on the Elimination of all Forms of Discrimination against Women.5 The procedures of individual communications and inquiries are the only optional procedures of the monitoring mechanism of the CRPD. The states parties’ obligation to report on measures taken to give effect to their obligations under the Convention and on the progress made in that regard is enshrined in article 35 et seq. CRPD, and constitutes the only obligatory international monitoring procedure of the CRPD. In addition, article 33 CRPD provides for a national implementation and monitoring mechanism.
The Committee is one of the nine treaty bodies having the competence to receive and examine individual communications and one of the six treaty bodies with the competence to initiate an inquiry.6 In this chapter we explore how the drafters reached a consensus on the specific content of the Optional Protocol. We also examine how the Committee interpreted its competence under the Optional Protocol. For that purpose, extensive reference will be made to the CRPD Committee’s Rules of Procedure and its working methods. Finally, the practice and the case law of the Committee will provide important insight on its understanding of its monitoring role.
References(p. 1220) 2. Background and Travaux Préparatoires
The Optional Protocol reflects the contradictory situations that prevailed during the drafting of the CRPD. On the one hand, member states supported the drafting of new specialized and separate treaties, such as the CRPD, with the dynamic participation of disabled persons’ organizations, other civil society representatives, and National Human Rights Institutions (NHRIs); on the other hand, during the same period the discussions on the reform of the United Nations treaty body system had a stalling impact on the negotiations related to the international monitoring mechanisms.7 While the autonomy and the specialization of the CRPD was recognized by the drafters by establishing a new Committee to monitor its implementation, the international monitoring mechanism was essentially debated during the last session of negotiations, leaving limited time for more innovative outcomes. However, the CRPD incarnated the opportunity to establish a dynamic monitoring mechanism without the pitfalls of the past and providing the opportunity to persons with disabilities to pursue the elimination of discrimination on a human-rights based approach.
Since the drafting of the International Bill of Rights the negotiations on monitoring procedures of human rights treaties within the United Nations have always revealed tensions among member states. The adoption of optional individual complaint procedures designated by the softer term ‘communications’ reflect the compromise between the advocates of an effective international system of petitions and the opponents of the recognition of locus standi to individuals and groups of individuals. The adoption of an optional procedure providing persons and groups of persons with the right to lodge a complaint claiming that they are victims of a violation has progressively been standardized within the United Nations treaty-based system.
The Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, established under UNGA resolution 56/168,8 decided ‘to organize its work in accordance with a thematic approach, including: kind and scope of legal instrument; the relation of that instrument to other human rights instruments and the United Nations standard rules and overarching principles/rights; equality in civil and political rights; equality in economic, social and cultural rights; panel discussions; monitoring mechanisms; and other topics’.9 During the panel discussions, participants agreed that the individual petition mechanisms instituted by other conventions, such as those on racial discrimination and on the elimination of discrimination against women, would be instrumental in addressing specific rights violations. The panel recommended the establishment of an expert body with an active role played by groups of persons with disabilities. The mechanisms would deal with a wide range of actions that protect and promote the rights of persons (p. 1221) with disabilities, from individual complaints to the means of strengthening monitoring, as well as providing technical support to states.10
Prior to the establishment of the Working Group by the Ad Hoc Committee to draft the text of what later became the CRPD,11 proposals on the establishment of both a national and international mechanism of monitoring were submitted.12 However, the Working Group noted the reluctance of some members to discuss the international monitoring system and considered that the issue might be further discussed by the Ad Hoc Committee considering the ongoing review of the work of the existing UN human rights treaty monitoring bodies.13
The negotiations on the international monitoring mechanism reflect the efforts to avoid the weaknesses of the treaty body system and to establish an efficient and innovative mechanism. In this context, some states maintained their opposition towards the establishment of a new committee with monitoring competences.14 What needs to be stressed, however, is that despite the innovative recommendations on a sophisticated national mechanism as a counterpart to the lack of effective national legislation on the rights of persons with disabilities,15 the international mechanism was continuously supported by several states, NGOs, and National Human Rights Institutions (NHRIs).16
(p. 1222) During the sixth session, the Ad Hoc Committee agreed that the CRPD would best be served by the inclusion of an article on both national and international monitoring. Many delegations expressed the view that the ongoing process on the reform should not determine the timeframe of the adoption of the Convention.17 Following this session, the Chairman prepared a text on international monitoring and national monitoring mechanisms that served as a basis for the seventh session’s negotiations.18 Some delegations continued to strongly oppose the establishment of a new treaty body with an autonomous international monitoring mechanism based on the argument of the reform process.19 In order to accelerate the negotiations and overcome the tensions relating to the monitoring mechanisms, Mexico took the initiative to undertake informal consultations.20
The Ad Hoc Committee reached the eighth session determined to conclude the negotiations. Four issues remained to be resolved: the definition of ‘disability’, international cooperation, legal capacity, and international monitoring. Costa Rica, Chile, and civil society organizations brought new proposals with a broad approach of international monitoring procedures21. The result of the negotiations led to the proposal of an optional protocol following the example of the Optional Protocol to the International Covenant on Civil and Political Rights.22 The Committee adopted the draft Convention on the Rights of Persons with Disabilities, including a draft Optional Protocol, as a whole,23 without a vote and established an open-ended drafting group tasked with ensuring the uniformity of terminology throughout the draft Convention and draft Optional Protocol and finalizing the draft.24
Article 1 introduces the competence of the Committee to receive and examine communications claiming violations of the CRPD. Paragraph 1 stipulates that communications may be submitted by, or on behalf of, individuals or groups of individuals claiming to be victims of a violation. The liability of the state is limited to individuals or groups of individuals subject to its jurisdiction. In other words, paragraph 1 defines the parties of the case, the victim and the respondent state. Paragraph 2 states that a claim can only be brought against a state party to the Convention that is also a party to the Protocol.
References(p. 1223) 3.1 Paragraph 1
The Optional Protocol recognizes the right to submit communications to individuals or groups of individuals. Collective complaints are expressly authorized by paragraph 1 provided that the group of individuals can demonstrate to be victim of a violation. In other words, collective entities do not need to ‘hide’ behind a person, namely one of their members.25 This is an important step, considering that the UN Human Rights Committee (HRCtee), basing itself on article I of the Optional Protocol to the ICCPR, had already declared inadmissible a communication from a group of associations for the defence of the rights of persons with disabilities.26
The alleged violation needs to be associated to one or more victims. In other words, article 1 does not introduce a collective or general interest procedure as the one provided by the Collective Complaints Protocol to the European Social Charter.27 The Committee has clarified that ‘for a person to claim to be the victim of a violation of a right protected by the Convention, he or she must show either that an act or an omission of the state party concerned has already adversely affected his or her enjoyment of that right, or that such an effect is imminent, for example on the basis of existing law and/or judicial or administrative decision or practice’.28
In A.M. v Australia, the complaint raised the issue whether the authorities’ refusal to permit Auslan interpretation of courtroom proceedings and jury deliberations prevented the complainant (a deaf person) from fulfilling potential jury obligation. The Committee declared the complaint inadmissible stating that ‘the author’s submission that he may be imminently selected from the electoral roll to perform jury duties, which in turn would give rise to the assessment of his ability to perform those duties, as well as the outcome of this assessment, is hypothetical and insufficient for the author to claim victim status within the meaning of article 1 (1) of the Optional Protocol.’ The concept of victim and the boundaries between actio popularis and cases where the legislation in force may, but has not yet been specifically enforced against an individual with negative repercussions remain to be further explored.29
Paragraph 1 provides for the possibility of introducing a complaint on behalf of individuals or groups of individuals. Presenting a communication on behalf of the alleged victim is a common practice in the UN treaty-based complaint procedures.30 However, the author does not substitute the victim. The victim requirement does not preclude References(p. 1224) collective entities, such as NGOs and organizations of persons with disabilities, to represent a victim and bring the claim on his/her behalf before the Committee.
In the event of communications submitted by the representative of the victim, the author needs to provide proof of consent.31 The Committee has clarified that any person submitting communications on behalf of individuals or groups of individuals without evidence of consent shall provide a written justification as to why the alleged victim cannot submit the communication in person and why a confirmation of authorisation cannot be provided.32
An exception to this rule may be possible if the Committee follows the practice of other treaty bodies. Treaty bodies accept an exception to the condition of the victim’s consent where it appears that the victim is unable to present the communication.33 The HRCtee adopted this rule after lengthy discussions in response to numerous communications submitted on behalf of persons imprisoned incommunicado, missing, or murdered.34 The burden of proof rests on the author, who must demonstrate that the victim is incapable of acting and has accepted that the author should act in his/her name. The HRCtee considers that this requirement is met when the author has a family or close relationship with the victim,35 whereas the circumstances of the case do not appear sufficient to recognize the standing of third parties.36
The interpretation of the CRPD Committee on this issue may prove of extreme importance in cases of violations occurring in places where no access is provided to possible human rights monitoring entities. In this respect, specific reference should be made at the case of Campeanu v Romania,37 where the European Court of Human Rights (ECtHR) recognized locus standi to an NGO on behalf of the victim without specific authorization. The circumstances of this case demonstrate the importance of this possibility. The victim, a Roma man with intellectual disabilities and while also being HIV positive, died in hospital after being isolated and abandoned in a room for seven days. The ECtHR concluded in view of the exceptional circumstances of the case and the gravity of the allegations made that the Centre for Legal Resources must be granted the power to act as a representative of the applicant. For the Court, it was the extreme vulnerability of the victim that prevented him, while still alive, from introducing such a procedure himself without adequate legal support or advice.38 In the same line of thinking, it seems that any References(p. 1225) ban on visits to places of detention, ie places of detention of aliens with disabilities, could end up covering a systematic practice of avoiding complaints submitted to the competent bodies. If NGOs do not have regular access to such places, it may be difficult to obtain a form of consent by a victim.
It is not clear whether the death of the author of a communication during the examination of the case leads to the end of the proceedings before the Committee. In practice, the victim’s successors have been recognized by other treaty bodies the right to continue the procedure and add themselves to the list of potential authors.39 In cases where the alleged victim is already deceased at the time of submission of the communication, the communication may be presented by his/her descendants. The CEDAW examined communications from associations acting on behalf of descendants of deceased persons in domestic violence cases.40 The Committee should follow this practice which strengthens the fight against impunity for serious human rights violations.
The author of an individual communication shall specify at the time of submission of the communication the state responsible for the alleged violation. According to article 1(1) CRPD, a complaint may be addressed only against a state party to the Convention and the Optional Protocol. Above all, the victim should fall under the jurisdiction of the state party concerned. This principle conveys the obligation of states parties to respect the rights of persons under their jurisdiction and exercise their powers through their legislative, executive, and judicial authorities. In other words, before examining if the state is responsible for the violation of an obligation, it should be examined whether the act or omission from which the violation originates falls within the jurisdiction of the state party.
The state exercises its jurisdiction over all its citizens and aliens within its territory through public authorities, at local, regional, and national level.41 Thus, reference to ‘jurisdiction’ in article 1(1) reflects territorial jurisdiction. However, human rights treaty bodies, regional human rights courts,42 and domestic courts43 have interpreted ‘jurisdiction’ more broadly as encompassing an extra-territorial dimension. Such jurisdiction extends to anyone within the power or effective control of the state party, even if situated outside its territory.44 In the case of the CRPD, a state party’s extra-territorial competence References(p. 1226) may extend to territories under belligerent occupation and entities under its de facto military and political control. Where a state party to CRPD and the Optional Protocol commits a violation in the territory of another state, over which it does not exercise effective control, its ‘jurisdiction’ is not deemed to have been engaged in the sense of article 1(1) to the Optional Protocol. In such circumstances it is only the territorial state’s jurisdiction that is engaged, albeit the latter may not be a party to the CRPD or the Optional Protocol. If the territorial state is a party to the CRPD it is obliged to take all relevant measures under the CRPD irrespective of the origin of the violation and if it does not the victim of the violation may initiate proceedings against the territorial state. The territorial state may raise a claim against the violating (third) state under the rules of state responsibility.
Paragraph 2 states that no communication shall be received by the Committee if it concerns a state party to the CRPD that is not a party to the present Protocol. This is of course logical because if a state is a party to the Protocol but not the CRPD, there will be no substantive obligations for the party to respect and fulfil and hence any individual communication against that state will be meaningless. The Committee included this same principle in its Rules of Procedure.45 In accordance with general principle of treaty law46 only states that have consented to be bound by the treaty in question and for which the treaty is in force are considered parties. Paragraph 2 recalls that the Optional Protocol constitutes a separate instrument requiring an additional international act whereby the state party to the Convention expresses its consent to the procedure of communications. Any communication received by the Committee against a state that has not accepted the procedure of communication is automatically rejected without any further examination. A state is deemed to have become a party to the Optional Protocol if it has either ratified or acceded to the Protocol and the Protocol has entered into force in respect of that state, as per the final provisions of the Protocol. Readers may consult the commentary to the final provisions of the CRPD in this volume for guidance as they are worded in identical terms.
Article 2 sets out the admissibility requirements that a communication must fulfil in order to be examined on its merits. Paragraph 1 of Rule 68 states that: ‘With a view to reaching a decision on the admissibility of a communication, the Committee, or a working group, shall apply the criteria set forth in articles 1 and 2 of the Optional Protocol.’ Article 1 determines the jurisdiction of the Committee, while article 2 sets forth the criteria, procedural and substantive, a communication must satisfy to be admissible. If a complaint fails to comply with article 1 and/or article 2, the Committee will not have authority to examine the substance of the author’s allegations.
References(p. 1227) The admissibility criteria of article 2 resemble other similar procedures and can be found in international and regional human rights treaties.47 They reflect the individual character of the complaint and the need for it to be related to a real and concrete case that the national authorities failed to address effectively. Their application by the Committee may determine how broad the access of individuals and groups of individuals to the complaint procedure may be. Long-standing practice established by older treaty bodies provide the Committee with a useful basis to avoid pitfalls or interpretations reflecting a period with stronger tensions between the individual and the state. However, the Committee is not bound to follow the same approach. The nature and content of the Convention brings new challenges to the application of admissibility criteria. Lack of national legislation on rights of persons with disabilities and failure to implement the existing framework may have a considerable impact on the Committee’s work.
The author should include all necessary information to be identified in the communication. In addition, Rule 57 paragraph 1 (a) states that the UN Secretary-General may request clarification or additional information from the author of a communication concerning the victim’s or the author’s identity, such as name, address, date of birth, and occupation, or other forms of identifying details and data thereof. Treaty bodies have adopted a rule of procedure according to which anonymous communications are not registered.48 Rule 70 paragraph 1 allows to conclude that the communication cannot be registered unless the author consents to the disclosure of her/his/their identity or other forms of identifying details/data to the state party concerned. This is different to the possibility offered to the author to request that only his/her full name does not appear in the related United Nations documentation.
It follows that communications submitted by groups of individuals on behalf of unidentified individuals without alleging that the group is the victim risk being rejected as inadmissible. However, it is not excluded that the Committee demonstrates some flexibility in cases the victim presents credible arguments on existing risks of retaliation as a result of his or her submission of the communication and submits other data to support the examination of the case.49
4.2 ‘Abuse of the Right of Submission of Such Communications or Incompatibility with the Provisions of the Convention’
The notion of abuse of the right of submission of a communication refers mainly to any effort by the complainant to use inappropriately the complaint procedure. A communication on claims that are frivolous or without any real basis may be rejected as inadmissible. References(p. 1228) Apart from the substance of the complaint, the behaviour of the complainant and his/her representative may also lead to the same outcome. A complaint containing offensive language and inappropriate response to procedural rules risks being considered as abusive. Individuals using the communication procedure repeatedly without bringing new evidence on the same issue already examined and dismissed by the Committee may also fall under this category. In recent practice, communications presented several years after the exhaustion of domestic remedies or the conclusion of other international procedures have been also declared inadmissible as a particular form of abuse of the right to submit a communication.50
In the absence of an explicit rule in the Optional Protocol on a deadline to for the submission of a communication, the Committee should be particularly cautious and evaluate the situation on a case-by-case basis, taking into account the situation at national level. Persons with disabilities have routinely been denied access to justice as well as information about their rights, thus making extremely difficult to react within otherwise ‘reasonable’ time following the cessation of a violation. In many cases, adequate remedies are not easily identified by the victims without the assistance of human rights defenders. Moreover, alliances between human rights defenders or organizations of persons with disabilities and victims of discrimination take time to grow and lead to solid cases.
The requirement related to compatibility with the provisions of the Convention should be read as referring to compatibility ratione materiae. Admissibility ratione materiae covers two fundamental aspects: the complaint should concern a matter falling within the scope of the instrument concerned, ie a right protected by the Convention or an interpretation of the provision under question. Communications declared inadmissible ratione materiae may claim violation of a right which is not protected by the instrument concerned, or a provision which may not be the object of the communication’s procedure. A communication bringing to the Committee claims on a provision with respect to which the state party concerned has made a reservation compatible with the object and purpose of the Convention shall be declared inadmissible ratione materiae. However, the Committee is competent ‘to assess the permissibility of reservations formulated by a State or an international organization’.51 In case the reservation does not fulfil the compatibility criteria, the Committee will declare the invalidity of the reservation.52
In S C v Brazil, the state party contested the disability of the author, stating that whereas article 1 CRPD defines disability as consisting of a long-term impairment, the References(p. 1229) author was diagnosed by professionals of the National Institute of Social Security (INSS) with a temporary incapacity to work. In accordance, the communication did not fall within the ratione materiae competence of the Committee. The Committee rejected this interpretation stating that ‘the information provided by the parties does not preclude the Committee from considering that the author’s physical impairment, in interaction with barriers, did in fact hinder her full and effective participation in society on an equal basis with others’.53
The examination of the compatibility of claims with the provisions of the Convention goes beyond the limits of a procedural analysis. Sometimes it is possible that the Committee carries out an extensive analysis or even a sort of preliminary examination on the merits. This approach could weaken the protection of individuals and groups of individuals as it may raise the standards of analysis by the complainant. It would be more consistent with the role of the Committee at this stage to proceed with a review on the basis of a prima facie compatibility.
4.3 ‘The Same Matter Has Already Been Examined by the Committee or Has Been or Is Being Examined under Another Procedure of International Investigation or Settlement’
A communication will be rejected as inadmissible if it concerns the same subject matter that has already been examined by the Committee or if the same matter is being or has been examined by another procedure, or international investigation, or settlement and contains no new facts or information. The first part of this condition aims to guarantee that the Committee’s views on a complaint are final and not subject to review in case the complainant is not satisfied with the outcome. In other words, a complaint cannot be submitted again by the same complainant if the Committee adopted views on the case. The Committee examines whether the two communications concern the same persons, the same set of facts and the same complaint. Subsequent communications may not be lodged on the same matter with different or enriched argumentation. An exception to this rule may only be permitted if the communication contains new information based on facts that the Committee did not have the opportunity to consider.
Several human rights treaties include a provision on the prohibition of lis pendens, or of successive complaints on the same question before international or domestic judicial entities.54 The purpose of this rule is to avoid and in fact eliminate the likelihood of international proceedings between the same parties on the same subject matter before more than one judicial or quasi-judicial entity. A different approach could lead to an abusive forum shopping, multiplication of the resources requested, and eventually contradictory obligations for the state concerned.
The Committee needs to examine two distinct issues related to this admissibility condition: a) if the case before it indeed concerns the same subject matter with the complaint under review, or already examined by another international body and; b) which procedures of international investigation or settlement are covered by this condition.
References(p. 1230) The Committee has not pronounced itself yet on the first issue. In practice, treaty bodies have applied three criteria to assess whether the subject matter of a complaint is the same as another complaint before another body. They verify whether the parties, the facts, and the right concerned are identical.55 If a complaint is related to a case before another body but raises issues based on a set of different facts and events, its examination is not precluded.56 Thus, systematic violations of a right by different means and in similar circumstances can be fragmented into several complaints and presented in parallel to various bodies.
No practice has been established yet about the identification of the procedures of international investigation or settlement covered by this condition. International practice has restricted this concept to procedures that guarantee at least an equivalent level of examination of the case. This assessment entails the examination of the nature of the international body, the evaluation of the procedure followed, and the nature of its decisions. It is rather safe to presume that other treaty bodies’ procedures and regional courts fall under this category of procedures while inquiry procedures or general studies are not covered. The position of the Committee on the nature of the communications sent by the Special Rapporteur on the rights of persons with disabilities remains to be shaped. However, it is the nature of the procedure’s outcome that seems to play the most determinative role in evaluating whether the examination by the other procedure precludes examination by the Committee.
4.4 ‘All Available Domestic Remedies Have Not Been Exhausted. This Shall Not Be the Rule Where the Application of the Remedies is Unreasonably Prolonged or Unlikely to Bring Effective Relief’
The requirement of exhaustion of domestic remedies is based on generally recognized rules of international law. Recognized as a customary rule by the International Court of Justice,57 the rule on the exhaustion of domestic remedies has been introduced in human rights treaties for two main reasons. First, to maintain a balance between domestic authorities, including domestic and international jurisdictions, domestic authorities must have the opportunity to redress the violation of a right before the complaint is brought before an international body. In other words, the Committee has a subsidiary (or complementary) role as opposed to national authorities. As a condition of admissibility, the complainant’s obligation to exhaust local remedies aims to prevent international bodies from becoming inundated with complaints. International human rights bodies have adopted a flexible interpretation in this regard: ‘[T]aking local remedies as an element which integrates the system of international human rights protection itself, with emphasis shifted from the process of exhaustion into the overriding element of redress itself’.58
While assessing this criterion, international human rights bodies avoid a formalistic approach and take into consideration all necessary elements of the case, the individual References(p. 1231) situation of the author, and considerations related to domestic remedies. This does not mean that the complainant is relieved of his/her/their obligation to submit detailed information on the steps taken to exhaust domestic remedies. Thus, the author must demonstrate that domestic remedies have been exhausted, or that non-exhausted domestic remedies are not available in his case, are ineffective, or exceed reasonable time limits.
Treaty bodies assess the effectiveness of a remedy taking into account its nature and potential effect on the case. A remedy may be generally efficient and useful but ineffective under the circumstances of a concrete case. For instance, an appeal to the Migration Court of Appeal against the Migration Court’s decision may be considered useful. However, if the author’s deportation is enforced shortly after the decision of the Migration Court is notified to him, he is deprived of the right to file the respective appeal to the Migration Court of Appeal within the deadline provided by law.59 The CEDAW Committee has adopted a strict position in cases of fatal domestic violence and considered that remedies that cannot effectively protect the physical integrity of women are not effective.60 On the other hand, treaty bodies assess on a case-by-case basis whether the excess of the reasonable period of time in the complaint under consideration is attributable to the state party or the applicant. National authorities must be able to demonstrate that they have exercised due diligence to avoid undue delays.61
Among the obligations imposed on the complainant is the obligation to raise his/her complaints in domestic proceedings by invoking the substance of the provision of the Convention without having to use the exact terms of the provision concerned.62 Alleging that no legal representation was available for the complainant before national authorities without substantiating this complaint does not satisfy this requirement.63
The CRPD Committee has expressed the position that ‘domestic remedies need not be exhausted if they objectively have no prospect of success,64 but that mere doubts as to the effectiveness of those remedies do not absolve the author from the obligation to exhaust them’. In Noble v Australia, the Committee concluded that an appeal against a decision applying a legislation leaving no possibility to the author of exercising his or her legal capacity before the courts was not a domestic remedy to exhaust. The Committee accepted the argument presented by the author, taking into account the clear wording of the relevant sections of the law, that he would have had to demonstrate that the District Court’s decision was in error, while in fact it was adopted in compliance with the applicable Act.65
References(p. 1232) The author should provide reasonable arguments regarding the ineffectiveness of the remedy in respect of his or her complaint. The Committee declined the argument that the Swedish Supreme Administrative Court only grants leave to appeal in two per cent of all cases submitted to it. In the absence of any elements demonstrating that the case under review would not fall under one of the categories for which the Supreme Administrative Court may grant leave to appeal, the Committee did not admit that the appeal by the author would have had no objective prospect of success.66 The Committee considers specific elements concerning the length and duration of domestic proceedings before evaluating whether the available domestic remedy would be unduly prolonged.67
It is positive for reasons of transparency and legal reasoning that the Committee summarizes the arguments of the parties related to the unavailability of domestic remedies. In its early case law, the Committee applied a standard of distributing the burden of proof between the parties. In D R v Australia, the Committee considered that the presentation of arguments related to the author’s position that the existing remedies would have no chance of success without further substantiation was insufficient. In contrast, the Committee referred to a range of successful complaints presented on the basis of existent remedies.68
The Committee may declare a complaint a communication inadmissible as manifestly ill-founded or not sufficiently substantiated. The case law of the Committee does not yet allow a thorough analysis on the first component of this condition of admissibility. In most cases, it has explicitly declared a communication or a part of a communication inadmissible on the ground that it was insufficiently substantiated. In practice, most complaints that lack substantiation are typically considered manifestly ill-founded.69
Apart from this group of complaints, sub-paragraph (e) applies in cases where a preliminary review of the substance of the complaint reveals that there was no violation of pertinent. The practice of treaty bodies suggests that complaints inviting an assessment of the facts and evidence (that have already been assessed by national courts) as a matter of ‘fourth instance’ may also be rejected as inadmissible under this paragraph. The CRPD Committee has stated that ‘it is not [possess] a final instance [competence] to re-evaluate findings of fact or the application of domestic legislation, unless it can be ascertained that the proceedings before the domestic courts were arbitrary or amounted to a denial of justice’.70 However, in cases of discrimination where it must be verified that domestic courts are not influenced by discriminatory stereotypes, it is recommended that the Committee examines the reasoning of the domestic judicial authorities before declaring a communication inadmissible as insufficiently substantiated.
References(p. 1233) The Committee has found complaints to be inadmissible on the ground that they are manifestly ill-founded, in situations where the complainant invoked provisions of the Convention that did not in principle give rise to free-standing claims under the Convention, and therefore could be invoked in the framework of individual communications under the Optional Protocol only in conjunction with other substantive rights guaranteed under the Convention.71
The author must adequately substantiate his or her complaint. It is not enough for a complaint to be based on mere allegations. The author must set out facts and evidence in support of the allegations, without however being required to prove at this stage the violation of which he or she is complaining. It is not uncommon to declare inadmissible the part of the allegations relating to treaty provisions that do not contain any additional clarification.72
4.6 ‘The Facts that Are the Subject of the Communication Occurred Prior to the Entry into Force of the Present Protocol for the State Party Concerned Unless those Facts Continued After that Date’
Paragraph (f) sets forth the principle of non-retroactivity of treaties and clarifies that a state party to the Protocol cannot be held responsible for violations in relation to any fact or act which took place prior to the entry into force of the Optional Protocol. The Committee may, however, examine complaints related to facts prior to ratification of the Optional Protocol as they could have created a situation extending beyond that date or may be important for the evaluation of facts occurring after that date. This rule reflects the restrictive position adopted by the HRCtee according to which the Committee should extend its jurisdiction to facts produced before the entry into force of the Optional Protocol, provided that said facts have been produced or continue to have effect after the entry into force of the Covenant, unless the state party has issued a reservation.73 Nowak suggested that the date of entry into force of the individual communication procedure only determines the critical date for the submission of the communication, whereas it is sufficient that the allegations of violations relate to events which occurred after the date of entry into force of the treaty.
To determine admissibility ratione temporis, the Committee must identify in each case the critical facts and the critical date relating to an alleged breach of the CRPD. The Committee considers that when the critical fact and the judicial review take place before the entry into force of the CRPD and the Optional Protocol in respect of a state party, the communication is inadmissible ratione temporis in accordance with article 2, paragraph (f), of the Optional Protocol. In the McAlpine, the CRPD Committee found that a decision refusing to lodge a new appeal does not ‘in itself constitute an act that reiterated the content of the judgments of the lower courts in their rulings on the question of discrimination raised by the author, and that, consequently, the decision did not violate the References(p. 1234) author’s rights under the Convention’.74 In other words, this decision does not constitute the critical fact based on which the Committee should determine the admissibility ratione temporis of the complaint.
On the contrary, the Committee considers that the review by the Italian Council of State, which does not merely examine formal aspects or errors of law in past decisions of administrative bodies, but examines the author’s claim of discrimination on its merits, constitutes the highest judicial instance competent to deal with the author’s claim of discrimination and its decision on the matter was the most relevant for the purpose of examining the claim of the author. Thus, the critical date is determined by the decision of the Council of State, whereas the decisions of the administrative bodies refusing to hire the author constitute facts which the Committee is requested to examine.75
The Committee is not precluded from examining facts and situations involving a continuing violation originating before the entry into force of the Optional Protocol, but which persist after that date. This is not a question of examining the facts before the critical date but of evaluating the facts at the time of the examination of the communication. In Szilvia Nyusti and Péter Takács, the Committee, noting that the state party did not challenge the admissibility of the communication ratione temporis, accepted that the facts (ie the inaccessibility of the banking card services provided by ATMs operated by the credit institution on behalf of the authors) continued after the entry into force of the Optional Protocol for the state party under consideration.76
Article 3 provides information on the procedure for the consideration of communications received under the Optional Protocol. It stipulates in brief terms the general principle that the complaint is transmitted confidentially to the state party, which is given the possibility to respond by written observations within six months. The Optional Protocol follows other UN human rights treaties and does not provide details on the processing of communications. However, the Committee, like all treaty bodies, has the right to adopt its own rules of procedure and organize in more details the implementation of its functions.77 The rules of procedure provide the basis for transparency and predictability for both parties. The procedure involves several organizational stages and steps that both the complainant and the state party need to understand in advance to prepare their cases.
The capacity to adopt its own rules of procedure provides the Committee with more latitude in the administration of its supervisory competences. The working methods of the treaty bodies determine the quality of their work and consequently their effectiveness. Treaty bodies meet two to three times a year. The plenary of the CRPD Committee holds two sessions per year, which are preceded by the meeting of the pre-sessional working References(p. 1235) group.78 The Committee designated during its third session a special rapporteur on new communications to make recommendations and requested the UN Secretariat to make immediately available to the special rapporteur all communications addressed to the Committee, irrespective of the status of their registration.79 In 2012, the Committee established a Working Group on communications and inquiries consisting of five members.80 In addition, methods for delegating authority and organizing the examination of communications have been developed to minimize delays due to the lack of a permanent structure and adequate human and financial resources.
Article 3 states that the communication shall be brought confidentially to the attention of the state party concerned. Reminiscent of a period when confidentiality at the time of transmission of the communication to the state party was intended to protect it from abuse by the complaint in the guise of a propaganda instrument, this rule is supplemented by the condition that the identity of the person may not be disclosed without his or her consent.81 However, this rule is adjusted to the benefit of transparency and public information as the Committee makes available a list of pending cases.82
The Committee encourages third party interventions according to Rule 72(3). The list contains information on the number of the complaint, the state party concerned, the subject matter and the provisions of the Convention invoked. The name of the author is omitted. In some cases, confidentiality at this stage may protect the author and the victim from reprisals. Reprisals against persons cooperating with the United Nations constitutes a growing concern for treaty bodies. The General Assembly strongly condemned all acts of intimidation and reprisals against individuals and groups for their contribution to the work of human rights treaty bodies, and urged states to take all appropriate action, consistent with the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, and all other relevant human rights instruments, to prevent and eliminate such human rights violations.83 The chairpersons of treaty bodies adopted Guidelines against Intimidation or Reprisals (‘San José Guidelines’) and follow their implementation in the context of their annual meetings.84
The procedure for the consideration of communications is outlined in Rules 55–77 but other provisions may have an impact on the working methods of the Committee. The main steps do not differ from complaints procedures before judicial bodies. Treaty bodies examine whether a communication satisfies the admissibility requirements of the respective instruments before considering the merits of the complaint.
Upon receipt of communications and until they are registered, treaty bodies are assisted by the UN Secretariat, which ensures the administrative processing of the cases (p. 1236) presented.85 The author establishes the first contact with the Committee through the Secretariat which receives all communications. The Secretariat, ie the petitions and inquiries section, receives new communications and handles any related document by ensuring the functional continuity of the committees outside the sessions. It also ensures the maintenance of the central correspondence register. The Secretariat plays an active role in transmitting all necessary information to all involved parties.
A model complaint form and a fact sheet have been made available by the Committee to ensure that minimum important information is submitted at an early stage.86 The model form requests precise information on the identity of the author, the victim of the alleged violation, the facts of the case, the state party concerned, the pertinent instrument and the proceedings already initiated. The processing of a communication depends directly on the extent of the information provided by the author. However, in accordance with Rules 55(3) and 24, the Committee may receive communications in alternative formats, in accordance with Rule 24.87
If the communication appears to meet the conditions for registration, but certain information still needs to be verified or clarified, the Secretariat contacts the author by an individualized letter.88 The letter contains information on the complaint procedures and requests clarification in order to reach a sufficient level of information for the communication to be recorded.
A number of complaints received by the Secretariat are not addressed to a particular committee. The authors merely set out the facts and request the redress of the alleged violations without identifying the committee to which they wish to complain to. The Secretariat may clarify the intentions of the author but where doubt persists, the communication is brought to the attention of the CRPD Committee.89 In these cases where the author does not specify the committee, the Secretariat plays a very important role in channelling the complaint within the treaty body system. By way of example, if the communication raises questions related to a specialized instrument, such as the CRPD, and the state concerned has accepted the communication procedure, the complaint may be channelled to the CRPD Committee. If the state concerned is not a party to any of the procedures, the author is informed that the committee cannot examine its communication.90
References(p. 1237) 5.3 Registration
The decision to register a communication is made according to criteria set by the Committee based on the conditions laid down in the Optional Protocol. New communications are registered if they contain prima facie sufficient information, or as soon as the Secretariat receives from the author additional information and clarification requested for this purpose during the pre-registration stage. The Secretariat maintains a permanent record of all communications submitted for consideration by the Committee.91
The decision on registration is taken by the special rapporteur who enjoys wide discretion. The special rapporteur ensures the continuity and the administrative connection between the Secretariat and the Committee. Between sessions, the Secretariat sends to the special rapporteur the summaries of the new communications throughout the year. The special rapporteur may register the communication or ask the author for more information through the Secretariat. If the special rapporteur considers that the communication is manifestly inadmissible, he or she may refuse to register it. However, if the author insists, the special rapporteur may authorize registration, albeit send the Committee a recommendation to declare it inadmissible.92
Pre-screening by a member or a Working Group constitutes an additional guarantee for the complainant and exceeds a simple administrative task. The registration guarantees the examination of the complaint by the Committee, whereas the refusal to register a communication eliminates any possibility of examination. After registration, any member of the Committee may have access to the full text of the communication upon request.93
Proceedings before the Committee comply with the principle of due process, according to which parties to a case must be heard before the court comes to a decision.94 Article 3 guarantees that the state party receives the communication confidentially and is given an equal opportunity to present its arguments on the case or any other adequate information or counter-claims as regards the requested remedy. Treaty bodies possess the exclusive competence to determine which facts have been established or specify the question of law to be examined for compatibility with the provisions of the treaty concerned. As a result, they have adopted more precise practices with a view to implement an adversarial procedure and the Committee follows this well-established practice.
The CRPD Committee, by the exchange of observations between the parties on the admissibility and merits of the case, leads the dialogue between the parties. In principle, the Committee obtains the necessary information to examine the case on the basis of a written procedure. Two levels of exchange take place during the communications procedure: the initial exchange of comments and observations, including any related documentation and subsequent comments by both parties. Throughout the proceedings the principle of equality of arms is respected and both parties are given the opportunity to References(p. 1238) respond to the other party’s submissions. Article 3 set a deadline of six months to the state party for obtaining information and comments on the complaint.95
The parties’ submissions and any other document submitted to the Committee are sent to the parties in their entirety almost automatically. Treaty bodies have elaborated a practice in cases where one of the parties does not react in order to remind him of his obligation to reply. In accordance with the principle audiatur et altera pars, committees address reminders to the parties except in cases of extreme delays.96 Reminders are sent to parties before proceeding to evaluate the information before them. In addition, contacts are organized with the permanent delegations of states parties to ensure cooperation and the submission of information.
Any failure of the state party to cooperate may have a considerable impact on the outcome of the case. Where the evidence lies mainly with the state party and the effective examination of the case may be obstructed by the lack of cooperation, treaty bodies adopt more active methods akin to the inquisitorial system. Thus, where evidence that is meant to counter that submitted by the complainant is not provided by the state, treaty bodies take as a basis the facts alleged by the individual in the absence of direct evidence and follow in this respect the practice of the international judge. At present, the assessment of evidence by treaty bodies has not been challenged despite the long-term risk inherent in such a process that part of the doctrine has emphasized.97
In order to accelerate proceedings, the examination of admissibility and merits are joined. In this respect, the state party is invited to submit observations on both the admissibility and the merits of the complaint.98 This practice does not imply that the Committee has reached a preliminary finding on the case.
The practice of joint examination on admissibility and merits may be waived in two cases. The Committee may request written explanations regarding only the admissibility of the communication.99 Splitting the examination of the admissibility is usually adopted in treaty-based complaint procedures in cases where the special rapporteur responsible for new communications, or the Working Group on Communications, is not sufficiently convinced that a communication satisfies the admissibility requirements.100 However, the state party maintains the possibility to submit a written reply on both the communication’s admissibility and its merits.101
(p. 1239) The separation of the two stages of examination may also be initiated by a request of the state party. In this case, the state party considers that the communication does not satisfy the conditions of admissibility. In accordance with Rule 70(5), the state party should set out the grounds for inadmissibility and submit the request within two months of the transmission of the communication registered. Failure to exhaust domestic remedies may be considered as one of the most usual criterion for separation in order to guarantee the subsidiarity principle governing international procedures. It is, therefore, reasonable for a state to request inadmissibility on that ground in order to decrease the length proceedings and bring the case back to the national level. The Committee clarifies in its rules that the state presents in detail the remedies available to the alleged victim or victims in the particular circumstances of the case.102
Complaints brought before the Committee may raise an issue related to the absence of legal capacity of the author in the national legal order. The Committee applies the criteria set forth in article 12 CRPD, recognizing the legal capacity of the author or victim before the Committee, regardless of whether that capacity is recognized in the state party against which the communication is directed.103 Following this position that allows broad access to the Committee for issues that may never reach domestic authorities, the state party disputing the author’s legal capacity is requested to give details on laws and remedies available to the victim.104
In S C v Brazil, the state party submitted observations alleging that the communication was inadmissible on three separate grounds, ie ratione materiae, under the ‘fourth district court’s formula’ and due to the author’s failure to exhaust domestic remedies.105 The special rapporteur on communications granted the separation. Following examination of admissibility, the Committee concluded that the author had not substantiated the lack of other options for legal representation available to the complainant, such that would have enabled her to exhaust a domestic remedy.106 By registering the communication, the Committee gave the opportunity to the complainant to submit information on her efforts to exhaust domestic remedies but she failed to satisfy this condition. In A M v Australia, the special rapporteur on new communications and interim measures separated the admissibility examination from the merits. The complainant was found to have failed to substantiate the victim requirement under article 1 of the Optional Protocol.107
Article 4 introduces the competence of the Committee to indicate to the state party interim measures aiming to avoid irreparable damage to the victim until the adoption of a final decision on the merits. Article 4 is supplemented by Rule 64 of the Committee’s rules of procedure, which specifies the procedure related to the request of interim measures. Article 5 of the Optional Protocol to the CEDAW has served as a model for article 4 of the Optional Protocol to the CRPD. The text of the proposed article was not subject References(p. 1240) to significant changes during the drafting of the Convention. The only amendment was submitted by ‘People with Disability Australia Incorporated (PWDA)’ on the possibility of requesting interim measures throughout the period before the formal submission of a communication and until after the decision on the merits. According to the organization, in emergency situations the complainant may not have enough time between the periods of exhaustion of domestic remedies: the submission of a complaint to avoid irreparable harm.108
In human rights complaints procedures, interim measures are indicated so that the applicant does not incur any real risk of serious and irreversible damage during the proceedings. If the submission of a complaint has no suspensive effect, the alleged victim may be placed in a disadvantaged position vis-à-vis the state and in certain circumstances his or her right of individual application remains merely theoretical. In most cases, if the risk of irreparable harm is realized, the final decision is void of any meaning. In human rights law, interim measures serve a preventative goal by protecting fundamental rights in real time. Therefore, they have indeed a function that exceeds the simple conservation of the parties’ status.109
The stipulation of interim measures in article 4 of the Optional Protocol and other human rights treaties is the outcome of a long tradition of human rights bodies.110 The first instruments conferring upon individuals the right to submit a communication do not contain any such provision.111 Treaty bodies subsequently took into consideration the risk that an act or omission of a state party would make the protection under the communication procedure illusory and futile. Despite the absence of related provisions, treaty bodies affirmed their competence in their rules of procedure to indicate provisional measures against the state concerned.112
The imminence of irreparable damage requires that human rights bodies respond in due time. Treaty bodies realized that the procedure would be cumbersome and slow if the plenary is exclusively competent to deal with requests for interim measures against a state party. Thus, they accelerate the processing of requests on the basis of information submitted by the parties, if risk of irreparable harm is demonstrated. The CRPD Committee followed the example of the HRCtee and the CAT Committee and opted for the delegation of this competence to the special rapporteur on new communications.113
References(p. 1241) Reference to interim measures in human rights treaties and rules of procedure is not very detailed. It is generally provided that a request for provisional protection may be made after receiving a communication and before taking a decision on the merits.114 Treaty bodies have not all set out procedural requirements or general guidelines regarding interim measure requests. The information drawn from the case law of the CRPD Committee and the annual reports submitted to the General Assembly enable us to identify some principles concerning the modalities of interim measure requests. The HRCtee remains less explicit, which allows it to maintain a degree of flexibility in practice. However, it provided some guidance in a recent note.115 On the contrary, the number of requests for interim measures submitted to the CAT Committee led it to adopt in 2004 substantive and procedural criteria to be applied by the special rapporteur.116
However, the effectiveness of interim measures is time-dependent and in many cases, it does not depend on the author’s diligence. Potential victims, such as persons under deportation, and their lawyers are not informed of important decisions in due time. In this context, treaty bodies should strike a fair balance between competing interests, namely: guarantee the effectiveness of the interim measures procedure and by extension of the communication procedure and avoid automatic requests of interim measures that would weaken their impact and risk compliance.117 The maintenance of this balance is further pursued by article 4(2), according to which ‘[w]here the Committee exercises its discretion under paragraph 1 of this article, this does not imply a determination on admissibility or on the merits of the communication’. Human rights instruments establishing a communication procedure contain a similar provision clarifying that the request of interim measures by treaty bodies does not have any impact on the committees’ finding on admissibility or merits. This provision tries to emphasize the neutrality of interim measures.
In cases relating to capital punishment, the urgency overrides other interests. If the complaint is submitted shortly before the scheduled execution, the HRCtee is placed in a delicate position: on the one hand, a minimum amount of time is required for the Special Rapporteur for new communications to consider whether the communication contains sufficiently substantiated allegations of non-compliance with the procedure resulting in the imposition of the death penalty with the ICCPR. On the other hand, the victim may be executed in this period.118 In cases of extreme emergency, the requests may be addressed to the state concerned before the registration of the communication or, rather, impose automatic registration of the communication to effectively protect the victim in a preventive way.119 The compliance with interim measures requests is a necessary condition for the effectiveness of the complaint procedure. The ICJ determined in the LaGrand case that ‘the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the References(p. 1242) circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the parties as determined by the final judgment of the Court’.120
In its case law, the CRPD Committee has rejected requests for interim measures in cases declared inadmissible.121 The Committee against Torture establishes a bridge between interim measures procedures and the admissibility of a communication, requiring that the main admissibility criteria stipulated in paragraphs 1 to 5 of article 22 of the Convention be met. These rules effectively codify the CAT’s practice.122 However, the special rapporteur can ask the state to refrain from deporting the complainant until the complaint is heard, even before the domestic remedies have been exhausted if the remedies available have no suspensive effect, or if the applicant runs the risk of immediate expulsion after the final rejection of his application for asylum.123 As a rule, treaty bodies usually announce in their findings whether the author of the communication had submitted a request for interim measures and what action had been taken.124 They may consent to its necessity and address the request for provisional measures, or reject it without setting out the reasons for that decision.
The provisions establishing the competence of treaty bodies to impose interim measures upon states rely on the concept of irreparable harm. In the practice of treaty bodies and regional human rights courts, the protection of the right to life and the physical integrity of the alleged victim concern the vast majority of instances for which interim measures are granted.125 In some rare cases, the HRCtee has requested the states to take action related to the protection of other rights, such as freedom of expression,126 or minority rights.127 The HRCtee has developed an important case law in relation to proceedings leading to the imposition of the death penalty. The increase in communications raising questions relating to non-refoulement gave the opportunity to the CAT Committee, and in fewer cases also the HRCtee, to establish an abundant practice of interim measures in this area.128
The granting of interim measures in respect of individual complaints was developed mainly as a means of provisional protection of the rights of the alleged victim in specific cases. However, in some cases, treaty bodies made requests for interim measures beyond the boundaries of the case under examination. However, some cases raise issues that have References(p. 1243) an impact on the consideration of other individual cases arising from similar facts or practices. By way of illustration, the HRCtee requested Algeria not to invoke against individuals who have submitted or may submit, communications to the Committee, the provisions of the law affirming ‘that no-one, in Algeria or abroad, has the right to use, or make use of, the wounds caused by the national tragedy in order to undermine the institutions of the People’s Democratic Republic of Algeria, render the State fragile, question the integrity of all the agents who served it with dignity, or tarnish the image of Algeria abroad,’ and rejecting ‘all allegations aiming at rendering the State responsible for deliberate disappearances. They [the Algerian people] consider that reprehensible acts on the part of State agents, which have been punished by law each time they have been proved, cannot be used as a pretext to discredit the whole of the security forces who were doing their duty for their country and received public backing.’129
The facts presented in this case ‘extend beyond the sole interests of the individual applicant’,130 since the draft law was likely to cause irreparable harm to the victims of disappearance. On the one hand, the measure consists of deferring the application of a politically charged law claiming national reconciliation. On the other hand, having before it a ‘pilot case’, the HRCtee extended the preventive protection to all, present and future, victims.
In some cases, treaty bodies do not require states to refrain from taking an action but rather to adopt positive measures that correspond to positive obligations. In addition to requests for information on the health and location of victims in cases of disappearances and arbitrary detention, initially made by the HRCtee,131 treaty bodies requested positive interim measures to protect the victim’s health and physical integrity, or in order to prevent threats to life related to the exercise of the right of communication.132 Such requests specify only the objectives pursued and leave the choice of means to the states parties, or otherwise propose measures formulated in general terms.
The CEDAW Committee has initiated a practice in which there is a link between interim measures and reparation measures and requests are formulated in concrete terms. To protect the alleged victim from domestic violence, the CEDAW Committee requests general provisional measures, but indicates at a later stage that the state ‘immediately offer AT a safe place for herself and her children and, where appropriate, to provide the author with the necessary financial assistance’.133 The HRCtee has integrated the psychological well-being of residents of an Australian immigrant centre by recognizing the link between physical and mental health and the impact of intense anxiety resulting from prolonged detention.134
Under the CRPD, some measures may aim at preserving the rights of the parties and therefore the object of the complaint, while others seek to temporarily offer a better level References(p. 1244) of protection during the consideration of the complaint.135 In the course of one communication, the CRPD Committee examined the issue of denial of home arrest and the repercussions to medical care and rehabilitation for persons with disabilities while in detention.136 The special rapporteur on new communications requested that during the examination of the complaint by the Committee, the state party consider taking steps to provide the care, treatment, and rehabilitation that the author required because of his state of health.137 On 31 July 2013, the state party informed the Committee of the steps taken in response to the Committee’s request for temporary measures. Taking note of the Committee’s request for interim measures, the Federal Criminal Court requested a medical assessment of the author’s state of health by the Department of Forensic Medicine, an evaluation of his rehabilitation treatment with a view to determine whether he should continue to be held in the prison hospital. The Federal Criminal Court also ordered that the rehabilitation services should be continued in full respect of the author’s victim. The Department of Forensic Medicine was requested to prepare a general report on his state of health and progress on a monthly basis.138
Interim measures indicated by treaty bodies aim also to ensure that the communication is examined in an appropriate manner. To this end, bona fide cooperation between the CRPD Committee and the parties during the proceedings may contribute to a minimum of effectiveness of the Committee’s views. It is rare that states anticipate a request not to deport the applicant while his or her request is under consideration.139 Overall, the general assessment of the treatment of requests issued by the Committee of interim measures is positive.140
In X v Argentina, the author informed the Committee that the Federal Chamber took note of the Committee’s request for interim measures and ordered the Federal Criminal Court to send a representative to the prison hospital to observe the author’s conditions of detention.141 The state party also submitted information on the action taken in response to the Committee’s request for interim measures.142 A detailed description of steps adopted taking note of the Committee’s request for interim measures was presented. Thus, the Federal Criminal Court requested that the Department of Forensic Medicine conduct a medical assessment to establish the author’s state of health, evaluate his rehabilitation treatment and determine whether he should continue to be held in the prison hospital. It also ordered that the rehabilitation services offered by OSDE should be continued; that, if the author were to refuse to use the service, a record of any such refusal should be kept and steps should be taken to make sure that his refusal reflected a free and informed References(p. 1245) decision; and that the Department of Forensic Medicine should prepare a general report on his state of health and progress on a monthly basis.143
Most states parties respect interim measures requested by treaty bodies, even in the absence of a conventional basis for the procedure. Despite the increase of complaints, states parties continue in principle to comply with requests for interim measures, even in cases where they contest the admissibility of the communication.144 The outcome related to the suspension of expulsion of aliens requested by the CAT Committee is illustrative of this trend.145
In other cases, states comply with requests for interim measures, provided that the treaty body in question will consider the matter at its next session. In general, states parties contribute to a decent conduct of the proceedings. However, compliance with the interim measures does not guarantee compliance with the treaty bodies’ findings. A state may refrain from deporting the applicant during the examination of the communication but may deport him subsequently despite the finding of a violation by the treaty body.146
In few cases before treaty bodies, states parties dispute the necessity of interim measures and request that they be waived. They insist that a request for interim measures be withdrawn and set out their own terms as to the concrete objective pursued by such measures.147 Their argument reveals that they are challenging the extension of the scope of the provisional measures without being refractory to the proceedings before the HRCtee.148 The CAT strengthened the adversarial approach by adding a standardized sentence stating that:
the request is made on the basis of the information contained in the complainant’s submission and may be reviewed, at the initiative of the State party, in the light of information and comments received from the State party and any further comments, if any, from the complainant.149
Nonetheless, the CAT Committee is cautious and proceeds with lifting interim measures on a case-by-case basis.
Non-compliance with interim measures may also reflect the problems in the cooperation between the treaty body and the state party. In this category befall those states that try to progressively impose their unilateral interpretation on commitments under international human rights instruments.150 In two cases, Tajikistan executed the alleged victims while communications were pending before the HRCtee, despite numerous requests addressed by the Committee.151
References(p. 1246) Finally, in some cases, states parties declare that they are not obliged to comply with requests for interim measures. Treaty bodies, especially the HRCtee and the Committee against Torture, have affirmed that by adhering to the communication procedure a state undertakes the obligation to cooperate with the treaty body in good faith. It is incompatible with the obligations under the communication procedure and ‘a state party commits grave breaches of its obligations under the Optional Protocol if it acts to prevent or frustrate consideration by the Committee of a communication alleging a violation of the Covenant, or to render examination by the Committee moot and the expression of its views nugatory and futile’.152 The CAT Committee added that ‘in particular through such irreparable action as deporting an alleged victim, undermined protection of the rights enshrined in the Convention’.153
Article 5 states that the Committee examines communications during closed meetings. The Committee has adopted Rule 76 on the confidentiality of the communications procedure. Paragraph 2 of Rule 76 specifies that unless the CRPD Committee decides otherwise, all working documents prepared by the Secretariat for the Committee,154 a working group or a rapporteur, including summaries of communications prepared prior to registration, the list of summaries of communications shall remain confidential. While the examination of the communication is not completed, the CRPD Committee, the special rapporteur and the Secretariat must respect confidentiality of submissions and any information on the complaint.155 The parties, either the complainant or the state party, may make public any submissions or information bearing on the proceedings. However, the Committee may request them to keep confidential the whole or part of any such submissions or information.156
While the examination of communications takes place during closed meetings, treaty bodies reserve the right to hold public meetings when discussing general issues relating to communications procedures.157 Accordingly, the rule of confidentiality extends to the summary records of private meetings devoted to the examination of individual communications. Thus, information on some aspects of procedural issues, as well as the debates among members on substantive questions, are not available until the publication of official documents.
All the final decisions of the Committee on communications, namely the decisions declaring communications inadmissible, decisions on the merits and discontinuances are made public.158 In case the Committee examines the admissibility separately from the merits of a complaint, the decision on admissibility is published after the consideration on the merits. On its own initiative, or upon request of the author or the victim, the References(p. 1247) Committee may decide to keep confidential the names and identifying details of the author or the victim.159
Although article 5 of the Optional Protocol to the CPRD makes no reference to the term ‘views’ but only to ‘suggestions and recommendations’ that the Committee forwards to the parties, the Committee introduced the term ‘views’ in its rules of procedure and its practice.160 According to Rule 73(3), the Committee may refer any communication to a working group to make recommendations to the Committee on the merits of a communication. In principle, the subsidiary bodies established by treaty bodies to assist them with the examination of communications prepare a draft for plenary with their recommendations on the merits. The draft of the views presented to the plenary of the Committee is usually the outcome of the cooperation between the Secretariat and the Working group.
The preliminary examination of a communication by a Working Group does not mean that the Committee is limited to the automatic adoption of the draft. Committee members may be divided on controversial legal issues or on the formulation of a specific argument. The Secretariat modifies the initial draft according to the instructions of the Committee before the final version is adopted.161 Final views are transmitted to the author and the state party.162 The Committee publishes information relating to the consideration of communications or summaries of the communications considered in its report to the General Assembly and the entire document on the website of the Office of the High Commissioner for Human Rights.
The Optional Protocol does not determine whether views on communications are adopted by consensus or majority. Following the tradition of other treaty bodies, the CRPD Committee adopted Rule 34, according to which it shall attempt to reach decisions by consensus. However, at the request of any member, the Chair may put the proposal to a vote. In general, collegiate bodies or institutions whose founding instruments do not provide for the adoption of binding decisions have recourse to the principle of consensus in order to increase the institutional impact of their decisions. In these cases, consensus is the common denominator of a set of actors who come together around a set of principles.163 Nonetheless, Rule 73(6) states that ‘the Secretary-General shall transmit the views of the Committee, determined by a simple majority, together with any recommendations, to the author or authors of the communication and to the State party concerned’. In other words, the Committee adopts its views on communications by a simple References(p. 1248) majority. In addition, the Committee follows a well-established practice by treaty bodies and appends to its views any individual opinion expressed by any member.164
Apart from the rule on individual opinions, no other rule is provided by the Optional Protocol, or its Rules of Procedure on the structure and content of views. The Committee follows the model elaborated by treaty bodies on views, which incorporates several aspects of traditional international judgments. The facts and the complaint as presented by the author are followed by the observations of the parties on the admissibility and merits in successive order, before the Committee presents its own final findings. Treaty bodies adopt their conclusions on the merits without fully adhering to the ‘persuasive’ model, a model followed in common law countries whereby the parties’ arguments are exhaustively discussed and the authorities on which the court relies are presented specifically and in detail.
In its initial views, the Committee avoids stating clearly that it has found a violation and prefers to stress that the state party concerned has not fulfilled its obligations.165 Thus, the Committee chooses a less offensive approach that transfers the focus to unfulfilled obligations and removes the tension of asserting a violation. Independently of the tone the Committee wishes to adopt, its views have a double challenge to meet, namely: the adoption of creative reasoning to define the content of rights and obligations under the Convention and redress the conceptual problems that the confusion about justiciability of economic, social, and cultural rights and lack of access to justice of persons with disabilities have produced; and on the other hand, to elaborate a convincing motivation conveying consistent interpretations of the rights, the principles of implementation and their significance in the particular case at hand.
The right of members to publish their entire or partial disagreement with the plenary brings committees closer to judicial bodies that respect the freedom of expression of their members and are not thwarted by criticism.166 The only limitation in this respect is that only members of the Committee that participated in the examination of the communication may append a summary of their individual opinion within two weeks of receipt of the final text.167 Thus, there is a presumption that the member who did not participate in the examination did not provide an opportunity to the plenary to debate on his or her opinion.
The Optional Protocol does not include any provision on the legal status of the Committee’s findings. Recently adopted human rights instruments incorporate the drafting experience of all existing treaties, demonstrating that while the drafters expressly recognize the power of treaty bodies to make recommendations following the adoption of References(p. 1249) views: ‘state parties shall give due consideration to the views of the Committee, together with its recommendations’.168 These provisions reflect the prevailing position among international human rights scholars according to which ‘views’ have an indirect legal effect based on the legal content of the obligations of ratified treaty and the role of treaty bodies in interpreting said treaties.
Treaty bodies’ views are not legally binding, albeit international human rights scholarship recognizes that states parties cannot simply disregard their findings and interpretations. This position is based on the legal content of the obligations undertaken by states parties, the dynamics of peer pressure and the role of treaty bodies in their interpretative function. In other words, even if states parties are not formally required to accept the views, their intention in establishing treaty bodies with competence to examine allegations of breaches of treaty obligations must include the competence to specify the content of these obligations and to promote compliance with the treaty concerned.169
Although the Committee is not a court of law, states parties did mandate the Committee to adopt a legal approach in order to come to an objective, Convention-based assessment of the observance of Convention obligations. We may therefore assume that states parties intended to grant a certain authority to Committee decisions.170
Although treaty bodies are not the only and exclusive treaty interpreters, the objective nature of their interpretations following a due process results in the recognition of an important inherent authority.171 This position was confirmed by the ICJ in the case of Ahmadou Sadio Diallo. The Court has strongly supported the case law of the HRCtee by recognizing its considerable interpretative importance:
Since it was created, the Human Rights Committee has built up a considerable body of interpretative case law, in particular through its findings in response to the individual communications which may be submitted to it in respect of States parties to the first Optional Protocol, and in the form of its ‘General Comments’.
Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.172
References(p. 1250) Thus, the importance of the CRPD Committee’s views rests as much on the intention of the states parties that established the treaty body as on the expertise and experience that it brings to the interpretation of states parties’ obligations.
Litigation procedures devoted to the elimination of discrimination have not yet reached their full potential. The recommendations adopted by the CEDAW Committee and the CRPD in recent cases demonstrate in concrete terms that they adopt a holistic approach about the victim’s situation. In the context of the communication procedure, the CRPD has addressed recommendations to states parties to ensure that people with disabilities are treated equally. The dynamic approach of remedies demonstrates that the Committee is not willing to grant an endless transitional period to states parties to attain full implementation of their obligations under the CRPD.
The CRPD Committee adopts two categories of recommendations; one the one hand, it requests states parties to take measures regarding the victim of the violation. On the other hand, general matters are subsequently addressed to help the state to comply with its obligation under the Convention and avoid similar violations in the future. The Committee addresses requests of concrete individual measures for reparation. It usually responds to the object of the complaint and aims to redress the violation of the victim’s rights. By way of illustration, states parties have been requested to: a) provide accessibility to the authors in respect of banking card services provided by ATMs operated by credit institutions;173 b) reconsider an application for a building permit for a hydrotherapy pool, taking into account the Committee’s views;174 c) make accommodations in the victim’s place of detention to ensure his access to prison facilities and services on an equal basis with other prisoners and to ensure that, while patients are free to consent to or refuse medical treatment, the author has access to suitable, timely health care that is in keeping with his state of health as well as full access to suitable rehabilitation therapy on a regular basis;175 d) to reassess the victim’s case applying all measures available under domestic legislation in order to effectively promote employment opportunities in the light of the Convention;176 e) to remedy the lack of accessibility in relation to information that is visually available for all lines of the tram network;177 f) enable the victim’s participation in jury duty, providing him/her with reasonable accommodation at all stages of jury selection and court proceedings;178 g) revoke immediately the ten conditions concerning the author’s release order, replacing these with all necessary support measures for his inclusion in the community.179 In all the above cases, measures include also adequate compensation to the authors for the legal costs incurred during domestic proceedings and the costs incurred in filing the communication. It follows that for the Committee it is not sufficient that the situation of the victim is improved; the victim must be provided with adequate remedies to achieve equality.
References(p. 1251) On the other hand, the Committee follows the example of other treaty bodies and makes recommendations on general obligations aiming to improve the implementation of the CRPD by states parties and prevent similar violations. These measures are not, in principle, restorative. They stem from the obligation to implement pertinent CRPD provisions and aim at giving concrete substance to the general obligation to ensure the non-repetition of the violation.
General recommendations under the communication procedure resemble concluding observations. While they reflect the obligations that the Committee has analysed in relation to the individual case examined in the communication, their content and wording demonstrate that the Committee is aware of the adjustments that states parties have to make in their legislation and practices in order to render these compatible with the provisions of the CRPD.
In the absence of any reference in the Optional Protocol concerning a follow-up procedure for views, the Committee has established its own procedure.180 The CRPD Committee, following the practice of the HRCtee,181 as well as the CAT and CERD Committees, has appointed a special rapporteur on follow-up of communications, in accordance with rules 63 and 75 of its Rules of Procedure. Follow-up on views of the Committee is in principle a written procedure. The Committee first provides the state party with the opportunity to present ‘within six months of the Committee’s transmittal of its views on a communication to submit a written response including any information on any action taken in the light of the views and recommendations of the Committee.’ Further information may be requested from the state party, as well as the submission of any relevant information in its reports under article 35 CRPD.
Treaty bodies recognize the competence of their subsidiary bodies to collect and search for information, to process information with a minimum use of the adversarial principle, and to submit progress reports to the plenary that provide the basis for the publication of information on activities in their annual reports. In practice, the procedure includes the request at more or less periodic intervals for information on the implementation of recommendations, the organization of meetings with representatives of states parties and, less often, visits in situ, the processing of information received, recommendations to the plenary on actions to be taken and the presentation of a report on follow-up activities.
Apart from the author’s involvement on his or her own initiative, when the state party fails to respond, the treaty body may invite the author to send his or her own observations on the treaty body’s views within a specified time period. The CRPD Committee’s Rules of Procedure do not explicitly refer to the author as a potential source of information at this stage. Rule 75(5) states that the special rapporteur or Working Group may make such contacts and take such action as is appropriate for the due performance of their assigned functions and shall make such recommendations for further action by the Committee as may be necessary. It follows that the Committee enjoys a wide margin of appreciation in the identification of the adequate action to follow-up on its views. Other sources of References(p. 1252) information could be envisaged to contribute to an objective and comprehensive assessment of the implementation of the recommendations.182
All information received is analysed and assessed according to criteria established by the Committee. This procedure strengthens transparency and may assist states parties with better understanding the process. States parties’ responses are categorized according to these criteria.183 The response may be satisfactory overall and classified under ‘A’, which indicates that it is partially satisfactory. If concrete steps have been taken but additional information is required, the action in question is classified as ‘B1’. The Committee may finally point out that initial measures have been taken, but additional information is required, in which case it is classified as ‘B2’. On the other hand, the response may receive a negative evaluation (assuming a response has been received), but the measures taken are not deemed sufficient to implement the Committee’s recommendations, in which case it is classified as ‘C1’, or where a response has been received but it is not relevant, in which case it is classified as ‘C2’. The Committee classifies the case under category ‘D1’ when no response has been received to one or more recommendations or parts of recommendations. It classifies the case as ‘D2’ where no answer has been received after one or more reminders. Finally, the cases for which the Committee received a response indicating that the measures taken go against the recommendations fall under category ‘E’. This methodology has the advantage that the Committee can evaluate separately the implementation of its various recommendations as well as the guarantees of non-repetition.
It follows that the procedure of follow-up on views is not finalised unless the Committee decides to make its final assessment. In communication 2/2010, the Committee discontinued the follow-up procedure with regard to the individual recommendations, with an ‘A’ assessment of the measures adopted by the state party. However, the follow-up procedure is ongoing regarding the implementation of the general recommendations (which received a ‘C’ assessment).184
Articles 6 to 8 introduce the inquiry procedure on an optional basis for grave or systematic violations by a state party of rights set forth in the CRPD. The Committee joins the group of treaty bodies with competence to initiate confidential inquiries upon receipt of reliable information on serious, grave or systematic violations by a state party.185 The inquiry procedure may be undertaken with regard to states that have recognized the competence of the Committee in this respect. States may opt-out of the inquiry procedure by making a declaration under article 8 while accepting the communication procedure References(p. 1253) under the Optional Protocol.186 The Committee has adopted Rules 78–91 on the implementation of the inquiry procedure. Its first inquiry took place with regard to the United Kingdom of Great Britain and Northern Ireland.187
The procedure is governed by two major principles: the principle of the state party’s cooperation and the principle of confidentiality at almost all stages. However, the Committee enjoys a wide margin of appreciation in the decision-making process and with respect to the evaluation of information. The inquiry is initiated by the Committee based on reliable information indicating grave or systematic violations. The Optional Protocol as other similar instruments does not specify the sources of information, thus leaving a wide margin of appreciation to the Committees. As mentioned above, the communications that do not fulfil the admissibility requirements but contain reliable allegations on violations of the Convention may be considered in the context of the reporting procedure or the inquiry procedure. In this case, the individual does not enjoy the status of the author or the victim and becomes a source of information. A systemic connection between treaty-based complaint procedures and procedures relating to the examination of grave or systematic violations has been established as a response to the communications received from victims that do not enjoy access to treaty bodies due to the absence of formal requirements.
The concept of grave or systematic violations has not been defined by the drafters of the Optional Protocol.188 The term implies that one or two isolated individual cases are not sufficient to justify recourse to this procedure. This conclusion is further supported by the practice of other treaty bodies. The CAT Committee based its conclusion on systematic practice of torture in Egypt
on the existence of a great number of allegations, which came from different sources. These allegations largely coincide and describe in the same way the methods of torture, the places where torture is practised and the authorities who practice it. In addition, the information comes from sources that have proved to be reliable in connection with other activities of the Committee.189
In the context of the inquiry concerning the UK, the CRPD Committee clarified that between early 2012 until April 2014 it received information on the impact of the welfare reform on persons with disabilities. Significant cuts to social benefits affected several of the rights of persons with disabilities enshrined in the Convention. During this time, the Committee received a formal request from a number of organizations of persons with disabilities alleging that serious and systematic violations of the provisions of the CRPD were occurring against persons with disabilities, all of which requested the initiation of an investigation into these matters. The Committee requested from the state party to submit its comments and after a review of all information it determined that there was reliable information indicating grave or systematic violations of the rights set forth in the Convention. The Committee established an inquiry and appointed two of References(p. 1254) its members as rapporteurs, this decision having being communicated to the state party on 29 May 2014.
The procedure contains two stages of evaluation of the information received: during the first stage, the Committee compiles and assesses all the information raising concerns of grave or systematic violations. After the preliminary consideration of the information received the Committee invites the state party to submit its observations, in accordance with Rules 82 and 83. Additional information may be requested from (a) representatives of the state party concerned; (b) regional integration organizations; (c) governmental organizations; (d) national human rights institutions; (e) non-governmental organizations; (f) individuals, including experts; and (g) other relevant information from the United Nations system.
The evaluation of all the above mentioned information may lead the Committee to designate one or more of its members to conduct an inquiry and to make a report within a fixed time limit (rule 84). With the consent of the state party, the Committee may undertake a visit to its territory. The Committee shall inform the state party of its desired timing of the visit and the facilities required to allow the members of the Committee to conduct the inquiry (rule 86). During the visit, the Committee may request the state party to organize hearings with the specific conditions and guarantees against retaliations or other sort of intimidation against persons appearing before Committee members (rule 87).
The state party is given the opportunity to submit observations on the findings and recommendations of the Committee within six months of their receipt (rule 89).190 Under article 7 of the Optional Protocol, in the absence of any observations, a reminder may be sent to the state party (rule 90(2)). The intersection between the inquiry procedure and the reporting procedure may also serve in the follow-up of recommendations, as the state Party may be invited to include in its report details of any measures taken in response to an inquiry (rule 90). The Committee may receive follow-up information by NGOs and organizations of persons with disabilities.191
It follows that important conclusions may be drawn on the basis of the reports adopted following an inquiry. The Committee reviews a specific situation in depth and has the opportunity to establish the interconnection of violations and the gaps of policies. In the case of the UK, the Committee presented the findings that according to its assessment constitutes reliable evidence that the threshold of grave or systematic violations of the rights of persons with disabilities. The Committee evaluated the policies implemented by the state party taking into account the principles behind the reform of welfare system. Although the impact assessment had foreseen an adverse impact on persons with disabilities, the state party proceeded with applying several measures with disproportionate impact on rights of persons with disabilities without attaining the expected goal of achieving decent and stable employment. The Committee presented numbers as evidence that a large number of persons with disabilities have been affected. Among its sources of evidence, the Committee referred to evidence collected nationally by the Parliament, the References(p. 1255) independent monitoring framework, universities and research institutes and centres and independent experts. Lastly, the Committee took into consideration the lack of a comprehensive human rights-based cumulative impact assessment as well as the fact that the state party has not modified its policies and continues to reduce social benefits.192
Article 8 provides states that have ratified the Optional Protocol to the CRPD the right to opt-out of the inquiry procedure. In accordance with this provision, states may recognize the competence of the Committee to receive and examine communications without accepting the inquiry procedure. Among 92 states parties to the Optional Protocol, only Syria has expressly declared that it does not recognize the competence of the Committee provided for in articles 6 and 7.References(p. 1256)
6 Optional Protocol to the ICCPR, 999 UNTS 171; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85; Optional Protocol to CAT, 2375 UNTS 237; Optional Protocol to CEDAW, 2131 UNTS 83); International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195; International Convention on Enforced Disappearances, 2716 UNTC 3; Optional Protocol to ICESCR, UN Doc A/63/435; CN869.2009; Optional Protocol to Convention on the Rights of the Child on a communications procedure, UNGA RES/66/38. For an early overview see Wouter Vandenhole, The Procedures Before the UN Human Rights Treaty Bodies: Divergence or Convergence? (Intersentia 2004). On the Optional Protocol to the ICESCR see Marco Odello, Francesco Seatzu, The UN Committee on Economic, Social and Cultural Rights (Routledge 2013) 79. For a comparative study on all UN treaty-based complaint procedures, see Tina Stavrinaki, Le Régime des Procédures de Communications Individuelles dans le Système des Traités des Nations Unies relatifs aux Droits de l’Homme (Editions Pedone 2016).
7 The discussion on the reform process has started in late 1990s and they were intensified in 2006 with the High Commissioner’s proposal on a unified standing body. Subsequently to the disapproval of this proposal, the discussions were reinvigorated through a process of strengthening that led to the adoption of UNGA Res 68/268 (21 April 2014) on strengthening and enhancing the effective functioning of the human rights treaty body system. See all available documents on the reform and strengthening process, available at: <http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx>.
9 ‘Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities’ UN Doc A/57/357 (27 August 2002) para 8.
10 Ad Hoc Committee, ‘Annex II, Chairman’s Summary on Panel Discussions, Panel I: Typology of International Conventions and Options for a Convention on the Rights of Persons with Disabilities’ UN Doc A/58/118 & Corr 1 (3 July 2003).
12 See Ad Hoc Committee, ‘Working paper by Mexico’ UN Doc A/AC.265/WP 1 (2002). The Working Paper included the establishment of a committee with the competence to receive national reports on the implementation of the convention by states parties and to examine communications submitted by individuals. See also ‘Bangkok Recommendations on the Elaboration of a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities—Outcome of an Expert Group Meeting and Seminar held in Bangkok at the headquarters of the Economic and Social Commission for Asia and the Pacific from 2 to 4 June 2003 UN Doc A/AC 265/CRP 10 (2003). The international monitoring system, including an individual complaint procedure and an inquiry procedure, was recommended as a component ensuring the individual assessment of implementation by states parties. It was further suggested that the monitoring mechanism includes a regional and a national mechanism. This model was also supported by the participants in the Seminar of Quito, (Declaration of Quito, 11 April 2003 UN Doc A/AC 265/CRP 8 (2003)). See ‘Compilation of Proposals for a Comprehensive and Integral Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities’ UN Doc A/AC 265/2003/CRP 13 (2003) and Add 1.
13 ‘Report of the Working Group to the Ad Hoc Committee, Annex I: Draft articles for a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Article 25’, note 112 UN Doc A/AC 265/2004/WG/1 (27 January 2004). The European Union maintained this position, while Japan insisted on the optional character of the individual communication procedure in order to secure the universality of the Convention; see ‘Compilation of Proposals for Elements of a Convention, Part VII, Monitoring Mechanisms’ (5 January 2004), available at:
14 Australia, China, Russia, Sudan, and the USA—see United States of America: Non-Paper on International Monitoring, 7th session, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata34sevscomments.htm>; and Rosemary Kayess, Phillip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 HRLR 19.
16 Gerard Quinn, ‘Resisting the ‘Temptation of Elegance’: Can the Convention on the Rights of Persons with Disabilities Socialise States in Rights Behaviour?’ in Oddny M Arnardóttir, Gerard Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Martinus Nijhoff 2009) 227–29.
18 Available at: <https://static.un.org/esa/socdev/enable/rights/ahc7chairclose.htm>.
19 The United States suggested a dialogue on how to integrate disabilities perspectives into existing treaty bodies—see Seventh Session, Comments, proposals and amendments submitted electronically, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata34sevscomments.htm>.
20 Ad Hoc Committee, ‘Compilation of Proposals on a Monitoring Mechanism for an International Convention on the Rights of Persons with Disabilities’, New York 12 May 2006 and ‘Draft Elements for a Monitoring Mechanism of the International Convention on the Rights of Persons with Disabilities’, New York 15 June 2006, available at: <http://www.un.org/esa/socdev/enable/rights/ahc8documents.htm>.
21 See all related documents and press releases at: <http://www.un.org/esa/socdev/enable/rights/ahc8.htm>.
22 Information available at: <https://www.un.org/esa/socdev/enable/rights/ahc8media.htm>.
23 Draft Optional Protocol to the International Convention on the Rights of Persons with Disabilities, 23 August 2006, available at: <http://www.un.org/esa/socdev/enable/rights/ahc8contfacilitator.htm>.
27 European Social Charter (adopted 18 October 1961, entered into force 26 February 1965) CETS No 35 and Additional Protocol providing for a system of collective complaints (adopted 9 November 1995, entered into force 01/07/1998) CETS No 158.
32 CRPD Committee, ‘Fact Sheet on the Procedure for Submitting Communications to the Committee on the Rights of Persons with Disabilities under the Optional Protocol to the Convention’ UN Doc CRPD/C/5/2/Rev 1 (2011) para 7.
33 HRCtee, Rules of Procedure r 96 (b); CERD Ctee, Rules of Procedure r 91 (b); CAT Ctee, Rules of Procedure r 113 (a); CEDAW Ctee, Rules of Procedure r 68(1); CED Ctee, Rules of Procedure, r 66; CESCR, Rules of Procedure r 4 and Art 2 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights; CRC Ctee, Rules of Procedure r 13(3) and Art 5(2) Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
34 Nowak (n 30) 836.
35 HRCtee, Communication No 5/1977, Valentini de Bazzano v Uruguay UN Doc CCPR/C/OP/1 (1984) 40 para 5 (a); HRCtee Communication No 1196/2003, Bourchef v Algeria UN Doc CCPR/C/86/D/1196/2003 (27 April 2006) para 1.1.
40 CEDAW Ctee, Communication No 5/2005, Goekce v Austria UN Doc CEDAW/C/39/D/5/2005 (6 August 2007) and Communication No 6/2005, Yildirim v Austria UN Doc CEDAW/C/39/D/6/2005 (1 October 2007); on the Optional Protocol to CEDAW see Jane Connors, ‘Optional Protocol’ in Marsha A Freeman, Christine Chinkin, and Beatte Rudolph (eds), The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (OUP 2012) 650; and Andrew Byrnes, Eleanor Bath ‘Violence against Women: The Obligation of Due Diligence, and the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women—Recent Developments’ (2008) 8 HRLR 517.
44 HRCtee, ‘Concluding Observations on Israel’ UN Doc CCPR/CO/78/ISR (21 August 2003) para 11; HRCtee, ‘Concluding Observations in Israel’ UN Doc CCPR/C/79/Add 93 (18 August 1998) para 10; see Dominic McGoldrick, ‘Extraterritorial Application of the International Covenant on Civil and Political Rights’ in Fons Coomans, Memmo T Kamminga (eds), Extraterritorial Application of Human Rights Treaties, (Intersentia 2004) 50–51 and 63–66; CESCR, ‘Concluding Observations’ UN Doc E/C 12/1/Add 90 (26 June 2003) para 31; HRCtee, ‘General Comment No 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’ UN Doc CCPR/C/21/Rev 1/Add 13 (26 May 2004) para 10.
47 See Art 14(7) ICERD; Arts 3 and 5 Optional Protocol to ICCPR; Arts 2 and 5 CAT; Arts 2 and 3 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW); Arts 3 and 4 Optional Protocol CEDAW; Art 31(1) CED; Art 3 Optional Protocol to ICESCR; Art 7 Optional Protocol to CRC on a communications procedure.
48 However, the HRCtee has registered a communication, even though the author made only his name known to the Committee about seven months after his initial letter. The author argued that the state party could readily identify him through identification numbers—see HRCtee, Communication No 1886/2009, X v The Netherlands UN Doc CCPR/C/107/D/1886/2009 (10 May 2013).
50 The HRCtee has adopted r 96 (c) indicating that ‘an abuse of the right of submission is not, in principle, a basis of a decision of inadmissibility ratione temporis on grounds of delay in submission. However, a communication may constitute an abuse of the right of submission, when it is submitted after 5 years from the exhaustion of domestic remedies by the author of the communication, or, where applicable, after 3 years from the conclusion of another procedure of international investigation or settlement, unless there are reasons justifying the delay taking into account all the circumstances of the communication.’ HRCtee, Rules of Procedure UN Doc CCPR/C/3/Rev 10 (11 January 2012); see also HRCtee, Communication No 1844/2008, B K v Czech Republic UN Doc CCPR/C/105/D/1844/2008 (5 September 2012).
51 See above the relevant discussion on Art 46 CRPD; for the competence of treaty bodies to evaluate the compatibility of reservations with the object and purpose of their respective treaty see Report of the International Law Commission (ILC) UN Doc A/66/10/Add 1 (2011) ‘Guide to Practice on Reservations to Treaties, adopted by the Commission at its sixty-third Session’ para 3.2.1; see also Kasey L McCall-Smith, ‘Reservations and the Determinative Function of the Human Rights Treaty Bodies’ 54 German Yrbk Int’l L (2012) 521.
54 Art 22(5)(a) CAT; Art 77(2)(a) ICMW; Art 4(2)(a) Optional Protocol to CEDAW; Art 3(c) Optional Protocol to ICESCR; Art 7(d) Optional Protocol to the CRC; see also Art 32(2)(b) ECHR and Art 46(1)(c) American Convention on Human Rights (ACHR).
55 HRCtee, Communication No 75/1980, Fanali v Italy UN Doc UN Doc CCPR/C/18/D/75/1980 (31 March 1983) para 7.2; CAT Ctee, Communication No 247/2004, A A v Azerbaïdjan UN Doc CAT/C/35/D/247/2004 (25 November 2005) para 6.8 and Communication No 305/2006, A R A v Sweden UN Doc CAT/C/38/D/305/2006 (30 April 2007) para 6.2.
60 CEDAW Ctee, Communication No 6/2005, Yildirim v Austria, UN Doc CEDAW/C/39/D/6/2005 (1 October 2007) para 11.4 and Communication No 5/2005, Goekce v Austria UN Doc CEDAW/C/39/D/5/2005 (6 August 2007) para 11.4.
61 HRCtee, Communication No 1303/2004, Chiti v Zambia, UN Doc CCPR/C/105/D/1303/2004 (28 August 2012) para 11.5; CAT Ctee, Communication No 433/2010, Gerasimov v Kazakhstan UN Doc CAT/C/48/D/433/2010 (10 July 2012) para 11.5; CEDAW Ctee, Communication No2/2003, A T v Hungary, UN Doc A/60/38 (2005) para 8.4.
69 HRCtee, Communication No 1967/2010, B and C v Czech Republic UN Doc CCPR/C/113/D/1967/2010 (1 July 2015) para 6.5; CEDAW Ctee, Communication No 51/2003, Y W v Denmark UN Doc CEDAW/C/60/D/51/2013 (13 April 2015) para 8.9.
71 CRPD Committee, Communication No 3/2011 H M v Sweden UN Doc CRPD/C/7/D/3/2011 (21 May 2012) para 7.3 and Communication No 11/2013, Beasly v Australia UN Doc CRPD/C/15/D/11/2013 (25 May 2016) para 7.5; Communication No 1/2010, Szilvia Nyusti, Péter Takács and Tamás Fazekas v Hungary UN Doc CRPD/C/9/D/1/2010 (21 June 2013) para 8.3.
72 H M v Sweden (n 71) para 7.4.
73 Nowak (n 30) 854–55; Manfred Nowak, Elizabeth, McArthur, The United Nations Convention Against Torture: A Commentary (OUP 2008) 786–87; Sara Joseph, Jenny Schultz, Melissa Castan, The International Covenant on Civil and Political Rights—Cases, Materials and Commentary (OUP 2013) 35.
76 Szilvia Nyusti and Péter Takács v Hungary (n 71) para 8.2.
82 Available at: <http://www.ohchr.org/EN/HRBodies/CRPD/Pages/Tablependingcases.aspx>.
86 CRPD Committee, ‘Revised Guidelines for Submission of Communications to the Committee on the Rights of Persons with Disabilities under the Optional Protocol to the Convention adopted by the Committee on the Rights of Persons with Disabilities’ UN Doc CRPD/C/5/3/Rev 1 (5 June 2012) and CRPD Committee, ‘Factsheet on the Procedure for Submitting Communications to the Committee on the Rights of Persons with Disabilities under the Optional Protocol to the Convention’ UN Doc CRPD/C/5/2/Rev 1 (12 April 2012). A common model form for communications to the HRCtee, the CERD Ctee and the CAT Ctee is also available, as well as an Info Note for CEDAW communications, and a guide and template for the submission of a submission to the Committee on Enforced Disappearances (CED/C/5), and a model form made available by the CRC, available at: <http://www.ohchr.org/Documents/HRBodies/CRC/ModelCommunicationForm_en.pdf>.
87 Art 24 on methods of communication reads as follows: ‘The methods of communication used by the Committee will include: languages, display of text, Braille, tactile communication, large print and accessible multimedia, as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible formats that may become available in the future through advances made in information and communication technology. The Committee will adopt its standard list of accessible formats of communication.’
96 Yoseph Tyagi, The UN Human Rights Committee: Practice and Procedure (CUP 2011) 534–35; Christian Tomuschat, ‘Evolving Procedural Rules: The UN-Human Rights Committee’s First Two Years of Dealing with Individual Communications’ (1980) 1 HRLJ 254.
98 CRPD Rules of Procedure (2016) r 70(3); see Alfred de Zayas, ‘The Examination of Individual Complaints by the United Nations Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights’, in Gudmundur Alfredsson et al (eds), International Human Rights Monitoring Mechanisms (Kluwer 2001) 77–78.
100 For the introduction of this possibility before the Human Rights Committee and its reasoning see ‘Summary record of the second part (public) of the 1557th meeting’ UN Doc CCPR/C/SR 1557/Add 1 (4 March 1997) para 4 (M Kretzmer).
108 Available at: <http://static.un.org/esa/socdev/enable/rights/ahcstata34sevscomments.htm#pwda>.
109 Matter of the persons imprisoned in the Dr Sebastião Martins Silveira Penitentiary in Araraquara, São Paulo (Brazil), IACtHR Order (30 September 2006), Separate opinion of Judge Cançando Trindade para 27.
112 Jo M Pasqualucci, ‘Interim Measures in International Human Rights: Evolution and Harmonization’ (2005) 38 Vanderbilt J Trans L 1; Eva R Rieter, ‘Provisional Measures: Binding and Persuasive? Enabling Human Rights Adjudicators to Follow up on State Disrespect’ (2012) 59 Netherlands International Law Review 165; Hannah R Garry, ‘When Procedures Involve Matters of Life and Death: Interim Measures and the ECHR’ (2001) 7 European Public Law 417.
113 CRPD Rules of Procedure (2016) r 64(2); in contrast, the CEDAW established a Working Group that delegated the competence to the President of the group—see CEDAW, ‘Report of the Committee on the Elimination of Discrimination against Women’ UN Doc A/67/38 (2012) Part 1 Annex VI.
117 See the interesting discussion between the Special Rapporteur on new communication of the HRCtee and the CAT Ctee on this issue, Summary record of the first part (public) of the 487th meeting UN Doc CAT/C/SR 487 (10 March 2003).
118 De Zayas (n 98) 40.
119 Summary record of the first part (public) of the 487th meeting (n 117).
124 HRCtee, Communication No 2017/2010, Burdyko v Belarus, UN Doc CCPR/C/114/D/2017/2010 (25 September 2015) paras 1.2–1.3; CAT Ctee, Communication No 538/2013, Tursunov v Kazakhstan, UN Doc CAT/C/54/D/538/2013 (3 July 2015) paras 7.1–7.2; CEDAW Ctee, Communication No 2/2003, A T v Hungary UN Doc A/60/38 (2005) paras 4.1–4.8.
125 Rieter (n 110) 205.
127 HRCtee, Communication No 1023/2001, Länsman et al v Finland UN Doc CCPR/C/83/D/1023/2001 (15 April 2005); Communication No 671/1995, Länsman et al v Finland UN Doc CCPR/C/58/D/671/1995 (30 October 1996).
128 Gino J Naldi, ‘Interim Measures in the UN Human Rights Committee’ (2004) 53 ICLQ 449-450; see also HRCtee, Communication No 1051/2002, Ahani v Canada UN Doc CCPR/C/80/D/1051/2002 (15 June 2004) para 1.2. See on the assessment of risk by the CAT Ctee, Rieter (n 110) 818–20.
130 The expression is borrowed from the case law of the ECtHR on pilot cases in order to highlight the structural background of this individual case—see Hutten-Czapska v Poland (2006) ECHR 628, para 238.
131 Rieter (n 110) 311–13, 343–48.
132 HRCtee, Communication No 1189/2003, Fernando v Sri Lanka UN Doc CCPR/C/83/D/1189/2003 (10 May 2005); Communication No 1432/2005, Gunaratna v Sri Lanka UN Doc CCPR/C/95/D/1432/2005 (17 March 2009).
140 Anne F Bayefsky, The UN Human Rights Treaty System, Universality at the Crossroads (Kluwer 2001) 32; Rieter (n 110) 953–54.
141 X v Argentina (n 136) para 5.4.
144 HRCtee, Communication No 1897/2009, SYL v Australia UN Doc CCPR/C/108/D/1897/2009 (11 September 2013); CEDAW Ctee, Communication No 26/2010, Herrera v Canada UN Doc CEDAW/C/50/D/26/2010 (30 November 2011).
145 CAT Ctee, ‘Report of the Committee against Torture’ UN Doc A/61/44 (2006) para 59 and UN Doc A/66/44 (2011) 175–24; Nowak and McArthur (n 73) 737.
160 ibid r 73(1); in contrast, in r 95(3) of its Rules of Procedures, the CERD Ctee preferred the term ‘opinion’, although no such reference is made in Art 14(7)(b) of Convention on the Elimination of All Forms of Racial Discrimination.
161 It is noteworthy that the Committee does not include detailed information on the activities or the working methods related to the Working Group on Communications and Inquiries in its latest annual or sessional reports.
164 CRPD Rules of Procedure (2016) r 73(6); see CRPD Committee, Communication No 5/2011, Jungelin v Sweden UN Doc CRPD/C/12/D/5/2011 (14 November 2014), CRPD/C/12/D/5/2011, and Communication No 7/2012 Noble v Australia UN Doc CRPD/C/16/D/7/2012 (10 October 2016).
165 Szilvia Nyusti and Péter Takács c. Hungary (n 71) para 10; Gröninger et al v Germany, Communication No 2/2010, Views of the Committee UN Doc CRPD/C/D/2/2010 (7 July 2014) para 7; H M v Sweden (n 71) para 9; Communication 4/2011, Bujdosó et al v Hungary UN Doc CRPD/C/10/D/4/2011 para 9.7; X v Argentina (n 136) para 9.
169 Nowak and McArthur (n 73) 777; Dinah Shelton, ‘The Legal Status of Normative Pronouncements of Human Rights Treaty Bodies’ in Holger P Hestermeyer et al (eds), Coexistence, Cooperation and Solidarity (Martinus Nijhoff 2011) 567–68; ILA, International Human Rights Law and Practice, Berlin Conference (2004) para 15, Henry J Steiner, ‘Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?’, in Philip Alston, James Crawford (eds), The Future of UN Human Rights Treaty Monitoring (CUP 2000) 30; Henry J Steiner, Philip Alston, Ryan Goodman, International Human Rights in Context—Law, Politics, Morals (3rd edn, OUP 2008) 915; Geir Ulfstein, ‘Individual Complaints’ in Helen Keller, Geir Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (CUP 2012) 97–98.
173 Nyusti and Takács v Hungary (n 71) para 10.1.
174 H M v Sweden (n 71) para 9.1.
175 X v Argentina (n 136) para 9a.
176 Gröninger v Germany (n 165) para 7a.
178 Beasly v Australia (n 71) para 9a and CRPD Committee, Comm No 11/2013, CRPD Committee, Lockrey v Australia UN Doc CRPD/C/15/D/12/2013 (30 May 2016) para 9a.
179 Noble v Australia (n 31) para 9a.
181 Alfred de Zayas, ‘The Follow-Up Procedure of the UN Human Rights Committee’ (1991) 47 The Review: International Commission of Jurists 30–32; Nisuke Ando, ‘The Follow-up Procedure of the Human Rights Committee’s Views’ in Nisuke Ando et al (eds), Liber Amicorum Judge Shigeru Oda (Kluwer 2002) 1439.
182 Gabriela Kletzel, Camila Barretto Maia, Mónica Zwaig, ‘Strengthening of the UN Treaty Bodies’ Complaint Procedures: Elements for a Reform Agenda from an NGO Perspective’ in Cherif M Bassiouni, William A Schabas (eds), New Challenges for the UN Human Rights Machinery: What Future for the UN Treaty Body System and the Human Rights Council Procedures? (Intersentia 2011) 228.
185 The Committee against Torture (Art 20 CAT), the Committee on the Elimination of Discrimination against Women (Art 8 of the Optional Protocol to CEDAW), the Committee on Enforced Disappearances (Art 33 of CED), the Committee on Economic, Social and Cultural Rights (Art 11 of the Optional Protocol to ICESCR), and the Committee on the Rights of the Child (Art 13 of the Optional Protocol on a communications procedure to CRC).
187 CRPD Committee, ‘Inquiry concerning the United Kingdom of Great Britain and Northern Ireland carried out by the Committee under article 6 of the Optional Protocol to the Convention: Report of the Committee’ UN Doc CRPD/C/15/R 2/Rev 1 (6 October 2016).
188 On this concept see Cecilia Medina Quiroga, The Battle of Human Rights—Gross, Systematic Violations and the Inter-American System (Martinus Nijhoff 1988), and Felix Ermacora, ‘Procedure to Deal with Human Rights Violations: A Hopeful Start in the United Nations?’ (1994) Human Rights Journal 670.
190 The United Kingdom Government Response to the Report by the United Nations Committee on the Rights of Persons with Disabilities under article 6 of the Optional Protocol to the Convention, UN Doc CRPD/C/17/R 3 (undated).
191 See ‘Follow-up submission; response to the CRPD inquiry report and UK Government response. Submitted by organizations of persons with disabilities’, available at: <http://www.ohchr.org/Documents/HRBodies/CRPD/FollowUpSubmissionUK.doc>.