| When speaking about the protection of human rights at the international level, one is regularly confronted with two widely held prejudices: that the individual complaints are the most efficient international remedies against human rights violations, and that the individual petition system under the European Human Rights Convention is the most, if not the only, successful procedure worldwide.
I do not necessarily share this view held by many European scholars and legal practitioners. First of all, there are a number of international monitoring procedures which are in their respective regional or political context as important and efficient as the individual complaints procedures.
When considering to take action in respect of human rights violations, one should carefully balance the advantages and disadvantages of the available procedures before deciding which ofthe international actions shall be taken.
The United Nations system is based on two pillars: the system established by the Commission on Human Rights based on the United Nations Charter and the system of protection based on human rights treaties. Primarily we will consider the treaty-based system. After the adoption of the Universal Declaration of Human Rights in 1948, numerous declarations and treaties were adopted within the framework of the United Nations. Six treaties are generally considered to constitute the core of the United Nations standards. These are: the two International Covenants adopted in 1966 which entered into force in 1976: the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights; the Convention of the Elimination of All Forms of Racial Discriminationadopted in 1965, entered into force in 1969; the Convention on the Elimination of All Forms of Discrimination Against Women (adopted in 1979, entered into force in 1981); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted in 1984, entered into force in 1990) and the Convention on the Rights of the Child (adopted in 1989, entered into force in 1990). The Covenant on Civil and Political Rights was supplemented by two Optional Protocols: the first one adopted in 1966 and ratified in 1976 regulating the individual complaints procedure; the second Optional Protocol (1988-1 991), aimed at the abolition of the death penalty.
The supervision over the States Parties' compliance withtheirobligations is exercised by independent monitoring bodies consisting of independent experts in the field of human rights. Four means of supervision have been created, of which one is laid down in all six treaties: the reporting procedure. Each of these treaties require that the States parties submit reports on the implementation of the obligations set forth in the treaty. Other procedures are the individual complaints procedure, laid down in the Optional Protocol to the International Covenant on Civil and Political Rights, in Article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination and in Article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Today many States Parties (87 out of 132) have ratified the Optional Protocol to the International Covenant on Civil and Political Rights, while for some unclear reasons only a few States (20 out of 146) have accepted the individual complaints procedure under the International Convention on the Elimination of All Forms of Racial Discrimination. In respect of the Convention against Torture, which has a total of only 96 States, only 36 of them have recognised the individual complaints procedure.
The third means of supervision is the inter-state communications procedure, which is optional in the International Covenant on Civil and Political Rights and the Convention against Torture, and mandatory in the Convention on the Elimination of All Forms of Racial Discrimination. However, this procedure has never been used within the framework of the United Nations. The fourth procedure laid down only in Article 20 of the Convention against Torture is the so-called inquiry procedure. If the Committee Against Torture receives reliable information containing well-founded allegations that torture is being systematically practiced in a State Party, the Committee may start an inquiry procedure, which may include, if agreed by the State concerned, a visit of a team of experts to the relevant country.
No individual complaint procedures have been established under the other three treaties. Proposals from experts and non-governmental organisations (NGOs) are circulating trying to persuade governments to establish complaint procedures under the Covenant on Economic, Social and Political Rights, and a complaints procedure as well as an inquiry procedure under the Convention an the Elimination of All Forms of Discrimination against Women. A working group of the Commission of Human Rights drafted an Optional Protocol to the Convention against Torture, establishing the authority of the Committee to pay unannounced visits to States Parties in order to supervise the implementation.
The system of individual communications is becoming more widely used each year. Although there are still a number of States parties from which never a complaint reached the Human Rights Committee, generally speaking, the Committee examined communications from all over the world. The State Party from which most communications have been submitted is Jamaica, most of which regarding the death penalty and fair trial, followed by the Netherlands and Canada. Communications which have been decided upon from Eastern Europe are so far few in numbers. Ukraine ratified the Optional Protocol in 1991 and made a declaration under Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination.
The three United Nations individual communications procedures are fairly similar. In dealing with them I will use the procedure under the Optional Protocol and the activities of the Human Rights Committee. The treaties use the term "communications", in practice this is not different from "petitions" or "complaints". The same holds true for the decisions on the merits, which are referred to as "suggestions and recommendations" in the case of the Convention of the Elimination of All Forms of Racial Discrimination, and "views" in the case of the Optional Protocol and the Convention Against Torture. In practice these decisions follow the model of court judgments. The entire procedure is confidential and relatively informal. Communications are to be submitted by the victim or a representative or a relative of the victim (in case he/she is prevented from lodging a complaint) in any UN language to the United Nations Centre for Human Rights. The communications are registered by the Secretariat, then they are first examined by a five-member working group. In 1989 the Human Rights Committee appointed a Special Rapporteur to expedite the processing of communications. The UN Committees decide both on the admissibility of the communications as well as on the merits. Both stages are separate, although in a few cases both stages are dealt with jointly. The Human Rights Committee can deal with written information only, and therefore cannot hear witnesses or the plaintiff.
In contrast to the European Convention, only individuals or groups of individuals can submit a communication. A non-governmental organisation or, for example, a political party as such cannot be alleged a victim of a violation. In most cases, this has not been a major problem, since human rights violations directed at a political party, religious society, trade union or a media enterprise, as a rule, affect individual representatives as well. It was only in the case of Article 1 that protects the rights of peoples, which is exclusively collective, that a problem has arisen. The Human Rights Committee has taken a decision to the effect that the right of self-determination cannot be monitored by means of the individual complaints procedure.
The admissibility requirements here are not so strict as those under the European Convention. For instance, the Optional Protocol and the Convention Against Torture do not contain the six months time limit (the Convention on the Elimination of All Forms of Racial Discrimination does), there is no explicit competence to reject "manifestly ill-founded" petitions which is so extensively used by the European Court of Human Rights. The Human Rights Committee has, however, developed the admissibility requirement that communications shall be substantiated to the extent of a " prima facie "case — otherwise the author of the communication has "no claim" under Article 2 of the Optional Protocol. In conformity with the Optional Protocol, the communications shall be deemed inadmissibleif they are anonymous, if they abuse the right of submission or are incompatible with the provisions of the Covenant ratione temporis, personae loci or materiae. In addition, the author shall exhaust all available domestic legal remedies, and the same matter shall not be, at the same time, examined under any other procedure of international investigation or settlement, such as, for example, the procedure under the European or the American Convention on Human Rights or the two United Nations procedures. Whereas the European Commission and the Committee Against Torture may not deal with the petitions that had already been submitted before, Article 5 paragraph 2 (a) only rules out the simultaneous examination of the same matter. In other words, an author may submit the same claim first to Strasbourg and, if so desired, next to Human Rights Committee, but not vice versa. Many European States have, at the request of the Committee of Ministers of the Council of Europe, entered a reservation in this respect. The Netherlands did not make such a reservation and some communications had already been examined first in Strasbourg and subsequently in Geneva.
The communication procedure is normally concluded with the inadmissibility decision or with the "final views" ("opinion", in terms of the Convention on the Elimination of All Forms of Racial Discrimination) which are published in full. The Human Rights Committee applies a court-like design which is also followed by the two other Committees. First the facts alleged in the communication and the statements of the parties are summarised in the admissibility procedure; this is followed by the decision on the admissibility, then the allegations by the parties on the merits are dealt with. As the last step, the Committee rules on the facts relevant to the decision, addresses to the questions of law that have arisen, and decides whether or which violations of the Covenant have occurred. It usually concludes the decision with a statement on the resulting obligations for the State Party. Often individual opinions of dissenting or concurring Committee members are appended to the decision. Although the final view is not formally binding under the international law, the Human Rights Committee has gained an international reputation which imparts great moral authority to its decisions that a State party has violated the human rights set forth by the Covenant. From the very beginning, the Committee has shown a keen interest in the domestic enforcement of its decisions by inviting Governments to inform it of the measures taken in response to the Committee's findings. In July 1990, the Committee appointed a Special Rapporteur for the Follow-up of Views. Moreover, the reporting procedure is also used as a means in this respect.
Thus the individual complaints procedure has become an efficient mechanism supplementing the reporting procedure as well as monitoring by political organs such as the Commission on Human Rights and the General Assembly. Even though the procedures appear rather weak at first sight, especially compared with the European Convention of Human Rights, practice shows that their application may in certain aspects even be more effective than that of their European counterpart. This success has been achieved primarily by the dynamic and powerful approach taken by the Human Rights Committee from its very beginning. So far, the Committee against Torture and the Committee on the Elimination of All Forms of Racial Discrimination have not had many cases before them, but they appear to be willing to follow the example set by the Human Rights Committee as well as its experience.
Only in relatively few cases did international complaints procedures actually afford relief to the victim of a human rights violation. In countries where the government is responsible for systematic violations of human rights, political or economic pressure exerted by the international community is usually more successful in changing the government's attitude than the decisions of independent monitoring bodies in individual cases. As many decisions of the Human Rights Committee against the former military dictatorship in Uruguay, against the Mobuto regime in Zaire or similar countries show, these decisions are rarely implemented against the will of the government concerned. These decisions proved, however, very useful as a means of intensifying the political pressure against these governments. Similarly, judgments by the European Court on individual cases against Turkey have not yet brought significant relief to the victims concerned but it may contribute to creating human rights awareness there.
In the countries where the government by and large complies with its international human rights obligations, the main responsibility for implementing these standards in individual cases lies with domestic courts and administrative authorities. Whether a complaint to an international body, after the exhaustion of all available domestic remedies, brings relief to the victim concerned, depends primarily on the right at stake. A victim of a violation of the right to property may even get his or her property back or may be satisfied by means of compensation. A prisoner on death row may finally be saved from execution as a growing number of decisions by the Human Rights Committee in capital punishment cases against Jamaica or Trinidad and Tobago prove. If someone has been arbitrarily deprived of liberty, he or she may finally be released as a result of the decision of an international body. Considering the long duration of international complaints procedures such success stories are, however, extremely seldom. Many human rights violations such as torture, cruel and inhuman treatment, summary and arbitrary executions, the arbitrary breaking up of assemblies and demonstrations, deprivation of the right to vote, etc. cannot be cured at all by means of the complaints procedures ex post facto since the damage is irreparable and cannot be compensated with money.
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prejudice —упереджена думка
remedies against human rights violations — засоби захисту проти порушень прав людини
share this view — поділяти цю думку
balance the advantages and disadvantages — зважити переваги і недоліки
available procedures — наявні процедури
treaty-based system — система, що ґрунтується на договорах
constitute the core — становити основу
International Covenant on Civil and Political Rights — Міжнародний пакт про громадянські та політичні права
Covenant on Economic, Social and Cultural Rights — Пакт про економічні, соціальні та культурні права
Convention of the Elimination of All Forms of Racial Discrimination — Конвенція про ліквідацію всіх форм расової дискримінації
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment — Конвенція проти катувань та іншого жорстокого, нелюдського або такого, що принижує гідність, поводження чи покарання
Convention on the Rights of the Child — Конвенція про права дитини
Optional Protocol — Факультативний протокол
аbolition of the death penalty — скасування смертної кари
supervision over — нагляд (за)
compliance with obligations — виконання зобов’язань
іndividual complaints procedure — процедура індивідуального оскарження
well-founded allegations — добре обґрунтовані твердження
non-governmental organisations (NGOs) —неурядові організації (НУО)
persuade — переконувати
inquiry procedure — процедура розслідування
сommunication — повідомлення
submit — подавати
petition — подання, звернення
lodgе a complaint — подавати скаргу
expedite the processing of communications — прискорювати розгляд повідомлень
admissibility — прийнятність
plaintiff — позивач
affect individuals — зачіпати/торкатися окремих осіб
the right of self-determination — право на самовизначення
reject "manifestly ill-founded" petitions — відхиляти “явно погано обґрунтовані” подання
admissibility requirements — вимоги щодо прийнятності
" prima facie " — на перший погляд
іn conformity with — у відповідності з
deem inadmissible — визнавати неприйнятною
abuse the right of submission — зловживати правом подання
incompatible with the provisions of the Covenant — несумісний з положеннями Конвенції
ratione materiae — стосовно суті справи
ratione temporis — стосовно часу
personae loci — місцезнаходження особи
simultaneous examination of the same matter — одночасний розгляд тієї ж справи
vice versa — навпаки
at the request — на прохання
subsequently — у подальшому
allegations by the parties on the merits — твердження сторін щодо суті
dissenting opinion — окрема думка, що не збігається з думкою інших
concurring opinion — окрема думка, що збігається з думкою інших
append (to) — додавати (до чогось)
impart great moral authority — надавати великої моральної ваги
domestic enforcement of decisions — внутрішньодержавне забезпечення виконання рішень
supplement — доповнювати
at first sight — на перший погляд
afford relief to the victim — надавати допомогу/полегшення потерпілому
economic pressure exerted by the international community — економічний тиск з боку світового співтовариства
contribute to — сприяти
exhaustion of all available domestic remedies — вичерпання всіх наявних внутрішніх засобів захисту
prisoner on death row — в'язень у камері смертників
save from execution — рятувати від страти
arbitrary — свавільний
irreparable damage — непоправна шкода
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