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

Giuliana Monina

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

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 23 January 2022

Subject(s):
Torture — Treaties, interpretation

(p. 582) Article 22  Individual Complaints Procedure

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

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

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

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

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

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

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

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

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

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

(p. 583)

(p. 584) 1.  Introduction

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

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

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

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

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

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Original Swedish Draft (18 January 1978)7

Article 20

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

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

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

Article 32

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

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

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

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

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

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

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

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

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

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

2.2  Analysis of Working Group Discussions

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

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

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

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

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

(p. 588) 3.  Issues of Interpretation

3.1  Optional Character

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

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

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

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

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

3.2  Article 22(1): Standing of the Applicant

3.2.1  Meaning of ‘individuals’

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

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

20  However, torture can be practised systematically against a particular group of individuals, and victims can collectively suffer harm, as stated by the Committee in its General Comment No 3 to Article 14.29 In such cases collective complaints may be divided into individual cases by the Secretariat in accordance with Rule 111(5).