HRC COMPLAINT PROCEDURE – Discussion Paper

Received by mail, 1503, 18 October 2006:

1. Introduction

Pursuant to operative paragraph 6 of General Assembly resolution 60/251, the Council shall review within one year all mandates, mechanisms, functions and responsibilities of the Commission on Human Rights with a view to maintaining a complaint procedure. By its decision 1/102, the Human Rights Council decided to extend the 1503 procedure, among all mandates and mechanisms of the former Commission, exceptionally for one year, subject to the review to be undertaken by the Council and requested it to continue with the implementation of its mandate.

By its decision 1/104, the Council decided to establish an open-ended intergovernmental working group with the task of formulating concrete recommendations on the issue of reviewing and, where necessary, improving and rationalizing all mandates, mechanisms, functions and responsibilities in order to maintain a system of special procedures, expert advice and a complaint procedure. The Permanent Representative of Switzerland has been appointed by the President of the Council as facilitator of the discussions on the review of the complaints procedure.

Established in 1970 by ECOSOC resolution 1503 (XLVIII), the 1503 procedure is the oldest human rights complaints mechanism in the United Nations system and is recognized as a channel for individual and groups to bring allegations of human rights violations directly to the attention of the Commission. The working methods under the procedure have been revised by the Commission in subsequent decisions, and most recently by ECOSOC in its resolution 2000/3.

The present discussion paper has been prepared by the Secretariat at the request of the facilitator and seeks to provide an overview of the main characteristics and modalities of the 1503 procedure with a view to facilitating discussions on the review of the complaint procedure in accordance with operative paragraph 6 of the General Assembly resolution 60/251 .

2. Objective of 1503 procedure

The 1503 procedure seeks to bring to the attention of the main intergovernmental human rights body (Commission on Human Rights, now Human Rights Council) allegations of a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.

3. Main characteristics of the 1503 procedure

Universality: Based on the Universal Declaration of Human Rights, the 1503 procedure was established to deal with complaints of violations of all human rights and in all States. Confidentiality: All proceedings under the complaint procedure are confidential and remain confidential unless otherwise decided by the Commission/Council, usually at the request of the Government concerned. Examples of material or decisions made public include Argentina (examined between 1980 and 1985), Uruguay (examined between 1978 and 1985), Paraguay (examined between 1978 and 1990), Philippines (examined between 1984 and 1986).

4. Modalities of the 1503 procedure

4.1 Stages of the deliberation

The 1503 procedure involves three stages of deliberation, with the Secretariat providing support at the various levels: the Working Group on Communications (composed of experts), the Working Group on Situations (five members of the Commission/Council), and the Commission on Human Rights/Human Rights Council.

Work of the Secretariat: The Secretariat, with the prior approval of the Chairperson-Rapporteur of the Working Group on Communications, screens out manifestly ill-founded communications [e.g. communications from mentally disturbed persons, anonymous communications, communications not referred to human rights violations], it being understood that communications screened out are not transmitted to the Governments concerned for a reply.

The Secretariat compiles a monthly list of confidential summaries of communications that have been transmitted to the Governments concerned. After the approval of the Chairperson-Rapporteur of the Working Group on Communications, a copy of the communication is transmitted to the Government concerned for reply, without revealing the identity of the author if he or she so requests. Receipt of the communication is acknowledged to the author.

Working Group on Communications: The Working Group on Communications consists of five experts of the Sub-Commission from each regional group (appropriate rotation of membership was recommended by the
inter-sessional open-ended Working Group on Enhancing the Effectiveness of the Mechanisms of the Commission) and meets annually for two weeks (in August every year) to consider the communications that have passed the initial screening and have been transmitted to the Governments concerned not later than 12 weeks prior to its meeting (the so-called 12 weeks rule endorsed by ECOSOC resolution 2000/3), and any government replies relating thereto with a view to bringing to the attention of the Working Group on Situations any particular situations which appear to reveal “a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.” Decisions of the Working Group are taken in conformity with the admissibility criteria outlined in resolution 1 (XXIV) of the Sub-Commission (see below). Alternatively, the Working Group on Communications may decide to discontinue consideration of a communication or to keep the communication pending in light of further information received from the Government concerned. When keeping a communication pending, specific requests for information are generally addressed to the Government concerned. Exceptionally, supplementary information has also been requested from the author of the communication. Despite the established practice of the Working Group not to keep pending a communication before it for more than a year, a number of exceptions have been made in recent years with a view to continuing the dialogue with the Government concerned.

Working Group on Situations: The Working Group on Situations consists of five members of Commission/Council, nominated by regional groups, who serve in their personal capacity (the inter-sessional open-ended Working Group on Enhancing the Effectiveness of the Mechanisms of the Commission recommended that due attention should be paid to rotation in membership) . The Working Group meets annually for a week, to consider the situations referred to it by the Working Group on Communications as well as the ones pending before it. It moreover considers those situations of which the Commission/Council remained seized from its last session. In light of all the material received from the previous stages, the Working Group may decide to (i) discontinue consideration of the situation, (ii) keep the situation under review, (iii) refer the situation to the Commission/Council, in which case the Working Group usually makes specific recommendations for action in the form of a draft decision or resolution to be adopted by the Commission/Council.

Commission on Human Rights // Human Rights Council: The Commission/Council considers the particular situations placed before it by the Working Group on Situations, as well as the situations kept under review, in two separate closed meetings (normally spaced a week apart), and attended by a delegation from the concerned countries.

At the first closed meeting, each country concerned is invited to make opening presentations, followed by a discussion between members of the Commission/Council and the Government concerned based on the contents of confidential files and the report of the Working Group on Situations, which normally contains specific recommendations for action by the Commission/Council. In the interim between the first and second closed meetings, any member or members of the Commission/Council may submit an alternative or an amendment to any draft proposals forwarded by the Working Group on Situations. Any such drafts are circulated confidentially by the Secretariat in advance of the second closed meeting.

At the second closed meeting, members of the Commission/Council discuss and take action on the draft resolutions or decisions. Representatives of the Governments concerned have the right to be present during the adoption of the final decision/resolution on their countries. In accordance with ECOSOC resolution 2000/3, the Chairperson of the Commission/President of the Council subsequently announces in a public meeting which countries have been examined under the 1503 procedure, as well as the names of countries no longer being dealt with under the procedure. The 1503 files will remain confidential, except where the Commission/Council decides otherwise, normally at the request of the Government concerned.

4.2 Proceedings

The proceedings of the Working Group on Communications and the Working Group on Situations are based on written information only, so that neither the Government concerned nor the author of the communication appear before either body. Only in the final stage of the procedure, at the level of the intergovernmental body, is the Government concerned invited to be present at the two closed meetings.

4.3 Admissibility criteria

In accordance with the admissibility criteria laid down in resolution 1 (XXIV) of the Sub-Commission on Prevention of Discrimination and Protection of Minorities (now the Sub-Commission for the Promotion and Protection of Human Rights) of 13 August 1971, communications may be submitted by a person or group of persons, and must contain a description of the facts as well as indicate the purpose of the claim and the rights that are alleged to have been violated. A communication shall be deemed inadmissible, if:
- it has manifestly political motivations and its subject is contrary to the provisions of the Charter of the United Nations;
- it appears that it is based exclusively on mass media reports;
- it contains abusive language;
- it is anonymous;
- domestic remedies have not been exhausted, unless it appears that such remedies would be ineffective or unreasonably prolonged;
- it is not submitted to the United Nations within a reasonable time.

4.3 Action taken in respect of a particular situation by the Commission/Council

The action taken in respect of a particular situation may be one of the following:
- To discontinue consideration of the case when further consideration or action is not warranted;
- To keep the situation under review in the light of any further information received from the

Government concerned and any further information which may reach the Commission under the 1503 procedure;
- To keep the situation under review and to appoint an independent expert (Under the 1503 procedure, direct contacts and independent experts were established/appointed for the following 15 countries: Albania, Armenia, Azerbaijan, Chad, Democratic Republic of Congo, Equatorial Guinea, Ethiopia, Haiti, Liberia, Myanmar, Paraguay, Somalia, Uganda, Uruguay, Uzbekistan,);
- To discontinue consideration of the matter under the confidential procedure governed by ECOSOC resolution 1503 (XLVIII) in order to take up consideration of the same matter under the public procedure governed by ECOSOC resolution 1235 (XLII). In some cases, the Commission decided to take up consideration in public under the former agenda item 19 of the Commission on technical cooperation and advisory services (Chad, Liberia).

5. Facts and Figures

Over the years, the “1503 procedure has […] provided a valuable vehicle for the Commission to take action on a number of serious human rights situations” . To date, situations in 84 countries from all regions have been considered at the level of the Commission and the Council. In recent years, an average of 30,000 communications representing about 120 different cases, have been processed under the procedure every year. The rate of cooperation from Governments has been extremely high – with a reply rate of around 90 percent.

6. Issues for discussion

Enhancing transparency: Under the current procedure, the Secretariat acknowledges receipt of the communication to the author. As from that particular moment, there is no exchange of correspondence anymore between the author and the Secretariat. Since decisions on the action taken in respect of a particular communication (by the WGC, the WGS, or the CHR/HRC) are only communicated to the Government concerned, the former is thus unaware of subsequent developments regarding his/her communications.

Even when the matter is eventually made public by the President of the Council, there is absolutely no possibility for him/her to identify whether the situation was considered as a result of the submission of his/her complaint. With a view to enhancing transparency of the procedure, it is the secretariat’s considered opinion that options should be envisaged to redress this peculiarity and enabled some communications with the author after the last stage of consideration of the communications. This could encompass sharing a copy of the final decision or of its contents with the author.

Timely consideration of communications: The average amount of time taken for a case to reach the Commission was 3 years. This is a direct result of the complexity of the procedure marked by the careful consideration of these communications by the Chairperson of the WGC, the consideration of the case by the WGC and the WGS, the interaction with the governments concerned at the various stages of the proceedings and eventually the final discussion at the plenary level. Given the fact that these bodies were, in the Commission’s environment, meeting only once per year, there was not much possibility to reduce this average. At present, however, with the differences introduced by resolution 60/251 in terms of the number of session per year, it is the Secretariat’s opinion to take this opportunity to envisage requesting the relevant deliberations to take place several times per year. Hence, the screening bodies could be requested to meet several times per year to discuss communications/situations under his procedure and discussions at the plenary level could be scheduled at different sessions throughout the year.

Complementarity with other human rights mechanisms: With an increasing number of human rights mechanisms mandated to consider human rights-related complaints, adequate coordination of the procedures to avoid overlap and duplication in processing of communications is essential. In this regard, while the existence of continuously updated human rights databases on communications and petitions processed by the various mechanisms at OHCHR has proven to be effective in reducing duplication, further efforts should be contemplated with a view to establish a unified human rights database for communications processed by all the mechanisms. END).

Comments are closed.