Summary of individual cases from 2015

The UN human rights treaty body system continues to receive and decide on individual complaints, one of the core mandates of its responsibilities.

Last year experienced a slight increase in the number of decisions issued, but it is also difficult to measure these types of items because the categories are changing somewhat from year to year. The numbers reported in this article are based on current information available at the UN Office of High Commissioner website, but this information tends to be updated from time to time so it is usually not clear when the final picture has been presented. There may be a few more cases from 2015 that are posted in the future, but it would seem that the total numbers will be very close to the numbers now available.

Total number of decisions/breakdown

There were 163 decisions issued last year, 79 of which concluded that there had been a violation of one or more treaty articles.  This compared to a total of 142 decisions the year before, so about a 15% increase. In addition, in 10 cases reviewed by the Human Rights Committee, the case was dismissed because the state concerned agreed to modify its actions (usually agreement to stop deportation proceedings), which means that these cases also led to a positive outcome for the complainant.  So you could say that in total, 89 of the 163 decisions resulted in a successful outcome for the complainant (a 55% success rate).

Here is a breakdown of these cases by Committee:

	No.	Violations	No violation	Inadmissible	Comment
Human Rights Committee (CCPR)	102	52	11	23	the total of 102 also includes 16 cases that were discontinued,  but 10 of these 16 reached amicable settlement; thus positive outcome for the victim
CAT	40	17	16	7	plus several reprisal complaints being investigated
CEDAW	11	6	0	5	includes 2 inquiry reports, against Canada and the Philippines
CRPD	3	1	1	1
CESC	3	1	0	2	these are the first cases to be decided under this new procedure
CERD	3	2	0	1	plus several urgent actions under the EWUA procedure
CRC	1	0	0	1	this was the first decision under this new procedure
CED	0	0	0	0	*at least one case has reached an admissibility decision, but is still pending on the merits, so there are no reported decisions yet *plus at least 61 active cases under the urgent action procedure
TOTALS	163	79	28	40

Notice that every Committee that has an individual complaint mechanism issued at least one case decision in 2015, except for the Committee on Enforced Disappearances (CED) but they reported they had one pending case which had received a favorable admissibility ruling and which would continue to be reviewed on the merits, so not to be reported publicly yet.  In addition the CED had an active caseload of urgent actions that are being reviewed during this time period (the decisions on these urgent action matters apparently will remain confidential, so it may not be possible to measure them statistically, other than as a bulk number (61 pending cases at present)). 

Another interesting statistic is the number of cases where legal counsel was involved and helped to represent the complainant -- 112 cases involved legal representatives (68.7%).  In the past the number of cases where legal counsel has been involved hovered around 50%, so we will see whether this latest figure is a trend to greater involvement of legal representation, or a one year aberration. 

The above statistics however only represent the traditional individual complaint mechanisms under these human rights treaties. In actuality there are a growing number of additional mechanisms that also function as quasi complaint mechanisms and should be noted in assessing the overall impact and availability of redress mechanisms under the treaty body system.  Many of these non-traditional mechanisms are just getting under way in the system. 

Reprisals

All treaty bodies are now accepting complaints concerning reprisals against persons who provide testimony to the treaty body system. Pursuant to the procedure adopted by the treaty body chairpersons last year, each Committee has appointed a focal point -- a person to receive these complaints.  The Committee will then review and act on the complaint as appropriate. The exact procedure and available remedies remain largely undefined.   Only one Committee so far, CAT, appears to be regularly reporting when it receives a reprisal complaint and how it responds, but it is hoped that other Committees will soon adopt a more transparent procedure as well. 

In 2015, one reprisal letter was issued by CAT, to the government of Bahrain. In 2014, 8 such letters were issued: to Burundi (3 letters), Cyprus, Lebanon, Thailand (2 letters) and Cyprus. 

According to the guidelines adopted by the treaty body chairs last June, 

"The treaty bodies possess a range of means to assist and protect individuals and groups alleging that they have been the object of intimidation or reprisals for seeking to cooperate or cooperating with them. Such responses may be taken by the treaty bodies concerned or in cooperation with others, including States, the Secretary-General, the United Nations High Commissioner for Human Rights, the special procedures mandate holders of the Human Rights Council, international and regional organizations, resident coordinators and United Nations country."

It appears there will also be an effort at the annual meeting of the treaty body chairs to take stock of how this reprisals mechanism is performing, how many cases are being received, and whether any changes need to be made to improve the procedure's effectiveness. 

CEDAW inquiry reports

As noted above, two of the cases reported by CEDAW in 2015 involved final reports under its special inquiry procedure.  These reports concluded violations of human rights had occurred and recommendations were made. The procedure is an important one but it has moved slowly in most cases; information about the procedure remains confidential until the final report. Several years have gone by where investigations were pending but no final reports issued.  This year (2015) marked the first year since 2005 when new inquiry reports were issued. However, it would appear that several other important investigations are pending and will result in final reports soon.

The Committee has recently taken some steps to regularize the inquiry process and shorten the total time required to conclude an investigation. A special working group now meets each session to take actions on the pending reports.

In its most recent session report (UN Doc CEDAW/C/2016/I/CRP), the Committee reported as follows on pending cases under this procedure:

"The Committee ratified the following decisions taken by the working group on inquiries:

(a) In relation to inquiry 2011/1 concerning Canada, to grant a two-month extension of the time limit to the State party concerned to submit information on follow-up to the Committee’s concluding observations;

(b) In relation to inquiry No. 2011/2, further to a meeting of the designated members with representatives of the Permanent Mission of the State party concerned to discuss the modalities of a visit to its territory, that the designated members should continue to engage with the State party on such modalities;

(c) In relation to submission No. 2011/4, to grant a one-month extension of the time limit to the State party concerned to submit its observations with regard to the information received by the Committee under article 8 of the Optional Protocol;

(d) In relation to submission No. 2012/1, to grant a final extension until 30 April 2016 to the sources of information to provide additional information, failing which the Working Group would proceed based on the information at its disposal;

(e) In relation inquiry No. 2013/1, to defer the decision on whether or not to conduct a visit to the territory of the State party concerned to the fourth session of the Working Group so as to enable the Working Group first to analyse the visit report of the Special Rapporteur on violence against women, its causes and consequences, to be released in June 2016;

(f) In relation to inquiry No. 2014/1, to request the designated members to propose new dates for a visit to the territory of the State party concerned in September 2016; and

(g) In relation to submission No. 2014/2, to grant, on an exceptional basis, a one month extension of the time limit to the State party concerned to submit its observations with regard to the information received by the Committee under article 8 of the Optional Protocol."

Several other Committees have similar inquiry procedures in their mandates, but other than occasional reports from CAT, no other cases appear to be pending in these other Committees yet.

CERD emergency warning/urgent action procedure

CERD has an emergency warning/urgent action procedure (EWUA) that applies to all states who have ratified the Convention on the Elimination of All Forms of Racism (177 states).  Several cases were pending and under continuing attention under this procedure in 2015. No new decisions were issued, but letters were sent responding to submissions and requesting more information in the cases of Indonesia, Papua New Guinea, the Russian Federation and Thailand. In addition, a general statement was issued under this procedure on the migrant crisis. 

CED urgent action procedure 

The Committee on Enforced Disappearances (CED) reported in its latest annual report the following information regarding its activities under the urgent action procedure provided for under the Convention:

“13. Since March 2012, date of submission of the first Urgent Action registered by the Committee, 72 petitions for urgent actions under article 30 of the Convention have been received, out of which 61 were registered. Out of the 61 registered, 1 relates to a disappearance occurred in Brazil, 1 in Cambodia, 2 in Colombia, 52 in Mexico and 5 in Iraq. In accordance with article 30, paragraph 3, of the Convention and Rule 62 of its Rules of procedure, the Committee has requested the States parties concerned to take all the necessary measures, including interim measures, to locate and protect the persons concerned in accordance with the Convention and to inform the Committee, within a specified period of time.

14. The Committee also requested the States parties concerned to report to the Committee on the measures adopted within a deadline determined in view of the urgency of the situation. Upon receipt of the information by the States parties, the Committee has transmitted it to the persons submitting the urgent action requests for their comments. The Committee also informed the authors of the measures requested to the States parties and of the recommendations made in the context of the Urgent Action.

15. The two special rapporteurs on Urgent Actions presented the Note of the Secretary- General on Urgent Actions, describing all the actions taken since the 7th session with regard to the 61 registered urgent actions, and to the 11 submissions that could not be registered. The Committee adopted decisions as to the next measures to be taken for each of the registered urgent actions." 

Under the article 30 procedure the Committee is tasked with following through on each case until it is finally resolved and the disappeared person is located. From the numbers indicated it clearly is an important mechanism in the treaty body system, although the confidential nature of the procedure makes it difficult to track statistically. 

Jurisprudence databases

The Office of High Commissioner is now maintaining two different databases that report on these case developments -- the treaty body database which contains all documents from the treaty body system and the jurisprudence database which focusses only on these case decisions and was taken over from the Netherlands SIM Institute two years ago. Unfortunately neither database is kept very current. As of today, the treaty body database lists only 109 of the 163 decisions issued in 2015 and the jurisprudence database lists only 103 of these 163 decisions.  By checking each Committee website and each session sub-website, you can access the full 163 case decisions. The decisions are also eventually available as annexes to the relevant annual reports of the treaty bodies that are filed each fall with the UN General Assembly. 

Analytical report/Human Rights Committee decisions

The Human Rights Committee also offers an analysis of case decisions in association with their annual report. The latest analysis covers the 111th, 112th and 113th sessions (July 2014 to March 2015). 

Pending cases

Two Committees now also offer a table of pending cases, so you can see what types of issues are being considered in the cases yet to be decided.  This practice applies to the Committee on Economic, Social and Cultural Rights and Committee on the Rights of Persons with Disabilities. It is hoped that other committees will also adopt this practice. 

Available complaint mechanisms

It should also be noted that there are now 19 different mechanisms in the treaty body system that can be considered complaint mechanisms of one kind or another. 

1. Reprisals -- this procedure now applies to all treaty bodies
2. Individual complaint mechanism of the Human Rights Committee
3. Individual complaint mechanism of the Committee on All Forms of Discrimination Against Women (CEDAW)
4. Inquiry procedure under CEDAW
5. Individual complaint under CERD
6. Early warning/urgent action procedure under CERD (EWUA)
7. Individual complaint under the Convention against Torture (CAT)
8. Inquiry procedure under CAT
9. Country visit under OPCAT (while not technically a complaint mechanism, the Subcommittee can hear testimony and receive evidence from victims or NGOs in its country visit procedure)
10. Individual complaint under CRPD
11. Inquiry procedure under CRPD
12. Individual complaint under CED
13. Urgent action under CED
14. Inquiry procedure under CED
15. Systematic, widespread violations under CED (the Committee is authorized to bring serious cases to the attention of the UN General Assembly on an urgent basis under this procedure)
16. Individual complaint under CESC
17. Inquiry procedure under CESC
18. Individual complaint under CRC
19. Inquiry procedure under CRC

A 20th mechanism, individual complaint under the CMW (migrant workers), has not yet come into effect. It requires 10 ratifications of article 77 to enter into force.

Most of these mechanisms are new within the last 5-10 years.  Very few of them are being utilized yet by human rights victims and their advocates. One would expect more use in the future.

Conclusion 

There is much activity going on in the various complaint procedures available in the human rights treaty system. But many of these mechanisms are little used so far.  For many it is also difficult to track developments and measure usage. It is hoped the treaty body system can progressively improve the transparency of these mechanisms and that victims of human rights abuses become more generally aware of them and are able to redress their rights more effectively through use of them. 

116th session of the Human Rights Committee (March 2016)

Reviewing the Rwanda report, 17 Mar 2016

The Human Rights Committee met in Geneva from March 7-31, 2016.

This summary will focus on some of the highlights and notable events of the session.

For a more comprehensive review please check the Committee website or the website of the NGO Centre for Civil and Political Rights which does a great job of covering this Committee from session to session.

50th anniversary

This year marks the 50th anniversary of the adoption of the two International Covenants -- the Covenant on Civil and Political Rights that is administered by this Committee and the Covenant on Economic, Social and Cultural Rights, which is administered by the Committee of the same name, the Committee on Economic, Social and Cultural Rights.  Events are planned throughout the calendar year in celebration of the 50th anniversary, including a joint meeting of the two Committees in June.  There is also a microsite launched to track these 50th anniversary events.

Background and summary

The Human Rights Committee meets three times per year, in March, July and October. There are 18 members, half of whom are elected/re-elected every even numbered year. The next election is scheduled for June 23, 2016 at UN Headquarters in New York.

This session the Committee reviewed seven country reports, issued concluding recommendations for each, issued an estimated 29 individual case decisions, continued work on a draft general comment on the right to life, and adopted its annual report covering the prior 3 sessions. The backlog of individual cases and the lateness of state reports continue to be issues of concern.

The Committee also continued its follow up procedures of looking into whether states are fully implementing its prior recommendations.  Improvements in its procedures were also discussed, including a pilot program to speed up consideration of individual complaints, and extending its so-called grading system on implementation to those states who fail to submit any information at all in response to the Committee's requests.

Ratifications, commitments

This is one of the most ratified human rights treaties in the system, currently with 168 state parties. Its Optional Protocol on an individual complaint mechanism is now ratified by 115 states. The Second Optional Protocol, which abolishes the death penalty, has been ratified by 81 states.

State reports

The Committee reviewed seven countries' reports this session, and issued observations and recommendations briefly summarized as follows:

•  Costa Rica – 6 pages, 45 paragraphs, 22 of which contain recommendations.  Counting sub-items there are a total of 32 recommendations. Next report is due 31 March 2021 (5 years).  Follow up response in one year to paragraphs 10 (discrimination), 18 (abortion) and 42 (rights of indigenous peoples)

• Namibia – 9 pages, 47 paragraphs, 24 of which contain recommendations.  Counting sub-items there are a total of 43 recommendations. Next report is due 31 March 2020 (4 years).  Follow up response in one year to paragraphs 10 (non discrimination), 22 (prohibition of torture and ill-treatment), and 24 (torture, violence and sexual violence against women and right to life).

• New Zealand -- 10 pages, 52 paragraphs, 27 of which contain recommendations.  Counting sub-items there are a total of 52 recommendations. Next report will be an LOIPR report and is due 31 March 2023 (7 years).  Follow up response in one year to paragraphs 30 (domestic and gender-based violence), 32 (child abuse), and 44 (the Marine and Coastal Area (Takutai Moana) Act of 2011)

• Rwanda -- 9 pages, 51 paragraphs, 25 of which contain recommendations.  Counting sub-items there are a total of 39 recommendations. Next report is due 31 March 2019 (3 years).  Follow up response in one year to paragraphs 16 (violence against women and children), 20 (unlawful detention and allegations of torture and ill-treatment), 32 (prison conditions) and 40 (freedom of expression)

•  Slovenia -- 7 pages, 35 paragraphs, 17 of which contain recommendations.  Counting sub-items there are a total of 32 recommendations. Next report is due 31 March 2021 (5 years).  Follow up response in one year to paragraphs 8 (racism and xenophobia, including hate speech), 16 (asylum-seekers, migrants and refugees) and 20 (vulnerable persons within the migration flow).

•  South Africa -- 9 pages, 50 paragraphs, 24 of which contain recommendations.  Counting sub-items there are a total of 31 recommendations. Next report is due 31 March 2020 (4 years).  Follow up response in one year to paragraphs 13 (Truth & Reconciliation Commission), 15 (racism and xenophobia) and 31 (prison conditions).

•  Sweden -- 9 pages, 43 paragraphs, 22 of which contain recommendations.  Counting sub-items there are a total of 34 recommendations. Next report is to be an LOIPR report and is due 31 March 2023 (7 years).  Follow up response in one year to paragraphs 17 (racism and hate speech) and 33 (rights of aliens, including migrants, refugees and asylum seekers)

All of these state reports were submitted late, after the specified deadline. The delay ranged from one month, to 14 years, with most being more than one year late. In addition, 3 of the 7 were over the page limits specified for such reports.

Europe migration

It was good to see the Committee focussing on the migration crisis in the two state reports heard this session from countries in Europe.  The concluding recommendations for both the Slovenia report and the Sweden report, called on the government to establish a uniform and formal mechanism to identify vulnerable persons within the migration flow, including unaccompanied minors and victims of sexual and gender-based violence, to use detention as a last resort, and to ensure sufficient guarantees and assistance to migrants and asylum seekers.

In each case the recommendations have also been flagged for followup, meaning that each country is to report back to the Committee within one year on its implementation of the indicated recommendations.

States of emergency, France and Belgium terrorist attacks 

It was disappointing not to see any mention in the Committee's proceedings on the terrorist attacks in both France and Belgium, and the handling of the human rights aspects of the states of emergencies called in each case.

The France attacks (November 13, 2015) had occurred shortly after the last session of the Committee and the Belgium attacks (March 22, 2016) occurred while the Committee was in this session.

Article 4 of the Convention requires states to formally notify the UN if a state of emergency is declared in which certain human rights protections may be restricted.   France submitted a notice on November 25, 2015 of a 3 month state of emergency, and extended it for an additional 3 months in February 2016. Five UN special rapporteurs joined in a statement in January 2016 expressing concern about human rights consequences of the France actions. Several human rights groups also criticized France's extension of the state of emergency for an additional 3 month period.

France's notice read in part, “Some of these measures, prescribed by the decrees of 14 November 2015 and 18 November 2015 and by the Act of 20 November 2015, may involve a derogation from the obligations under the International Covenant on Civil and Political Rights, and particularly its articles 9, 12 and 17.  I would therefore kindly request you to consider that this letter constitutes a notification for the purposes of article 4 of the Covenant.”

Belgium, despite multiple news reports that it had declared official states of emergency immediately after the France attacks and again in March during the Brussels attacks, has made no formal notice to the UN under article 4 of the Covenant, despite it appearing to be legally required.

It is noted that Belgium will be up for review at the Committee's next session, in order to prepare a list of issues prior to reporting. It is hoped that these issues are raised in that list of questions.

Lists of issues

In addition, lists of issues were adopted by the Committee for six countries whose reports will be scheduled in an upcoming session:

• Azerbaijan
• Bangladesh
• Colombia
• Jamaica
• Morocco
• Slovakia

LOIPR procedure

One country, Estonia, had accepted the alternative simplified reporting procedure, which meant that the Committee adopted a list of issues "prior to reporting" (LOIPR) for that country. The Estonian government will now prepare its report, using the LOIPR as the framework for the report.  

At its last session the Committee remarked that 32 countries so far have accepted the new LOIPR procedure. Six such reports have been reviewed so far, two of which were heard this session (New Zealand and Sweden). 

The Committee is continuing to discuss ways to improve the LOIPR procedure, including whether additional time should be given to states who adopt this procedure. In its July 2015 session a proposal was made to add 12 months to the original time line in order to create a more balanced treatment between states that elect the simplified procedure and states that elect the traditional procedure. 

It is also apparent from the NGO reports that are posted, that the LOIPR procedure is getting less NGO participation than the standard reporting procedure. 

NGO and NHRI reports

Here is a table of how many reports from NGOs and National Human Rights Institutions (NHRI) were received for each state report reviewed at this session. 

	Total # NGOs	NHRI
STATE REPTS
Costa Rica	5	1
Namibia	10
New Zealand	14	1
Rwanda	10
Slovenia	4
South Africa	17	1
Sweden	10
Subtotals	70	3
LOIs
Azerbaijan	7
Bangladesh	3	1
Colombia	3	1
Jamaica	3
Morocco	17	1
Slovakia	3	1
Subtotals	36	4
LOIPR
Estonia	0
TOTALS	106	7

Clearly the LOI and LOIPR procedures do not receive as much NGO attention as do the finished reports, but it also seems clear that NGOs are submitting information more often when the report is subject to the standard List of Issues (LOI) mechanism, than the LOIPR mechanism. Admittedly this is a small sample size, the pattern is typical of other sessions as well. It is hoped that the Committee finds ways to make the LOIPR scheduling more transparent, and that NGOs orient their treaty body work to include these LOIPR procedures more frequently.

Individual case decisions 

No case decisions have yet been issued from this session, but remarks in the opening day press release indicated at least 29 decisions would be before the Committee during the session. These cases usually come out a month or two after the close of each session.

The backlog of individual complaints waiting to be decided by the Committee is growing steadily.  The annotated agenda of each session reports on the current number of pending complaints. These have climbed from 486 in April/2015 (Q2), 506 in August 2015 (Q3) and 525 in December 2015 (Q4).  This is happening despite the Committee issuing a high number of decisions in 2015 (102 decisions).

Most complaints are not decided by the Committee for 4-6 years after filing because of this backlog.  There are several causes, including failure of the parties to submit briefing materials timely, inadequate staff resources, inadequate Committee time, and inefficient processing.  The Committee decided at this session to try a pilot procedure for one year, to group cases that have similar legal issues or that do not pose particular or novel legal problems on a faster track.

Follow up

Each session the Committee reviews its prior recommendations and case decisions to determine whether states are following through and implementing the Committee's recommendations.  Most of the Committees observe this practice in some manner, but the Human Rights Committee stands out as one of the best so far in creating a transparent, systematic follow up procedure.

This session, the following countries were reviewed for follow up on the state report system. In each case states had been asked to submit follow up information within 12 months of the original concluding recommendations:

• Bolivia
• Djibouti
• Dominican Republic
• Iceland
• Ireland
• Japan
• Mauritania
• USA

The following countries were reviewed on individual case decisions where violations had been found and remedies had been recommended by the Committee. In each case states were asked to submit information within 6 months on its implementation of the Committee's recocmmended remedy.

• Australia
• Bosnia and Herzegovina
• Cameroon
• Canada
• Colombia
• Denmark
• Kyrgyzstan
• Kazakhstan
• Lithuania
• Nepal
• the Netherlands
• Paraguay
• the Philippines
• the Republic of Korea
• Russian Federation
• Spain
• Ukraine
• Uruguay 
• Uzbekistan

Despite the time spent on these implementation matters, the actual track record of implementation remains very weak.  I plan on doing an annual update of these figures this summer, but last summer's results indicated that full implementation of the Committee's recommendation only occurs in about 12% of the cases and much of the Committee's time is spent pursuing late responses or non-responses from the states concerned.  In approximately 43% of the time the response is submitted late.  No response at all is received 25% of the time.

At this session the Human Rights Committee discussed the need for some improvements in its follow up procedure -- namely revising some of the page limit requirements and extending its grading system to account for those countries who fail to respond at all to the Committee's follow up requests.

Conclusion

As usual the Committee had a busy session and a full workload. Its next session (117th) will be June 27 to July 22, 2016, when it is again scheduled to review 7 state reports, adopt 5 lists of issues for upcoming reports to be reviewed, and adopt 3 lists of issues prior to reporting for states that have accepted the simplified reporting procedure (LOIPR).  In addition, it will probably consider 25 to 35 individual case decisions, as is its normal practice.