Overview of procedure

One of the clearest signs of progress in human rights is the fact that individuals who claim that their rights and freedoms have been violated may call the State in question to account for its actions - if it is a party to the Optional Protocol to the  International Covenant on Civil and Political Rights.

In the latter part of the 1980s, growing public awareness of the Human Rights Committee's work under the Optional Protocol led to an upsurge in the number of communications it received from individuals complaining of violations of their rights.

The Committee considers communications from individuals in closed meetings.

Is the communication admissible?

Communications must not be anonymous and cannot be considered unless they come from a person or persons subject to the jurisdiction of a State that is a party to the Optional Protocol.

Normally, a communication should be sent in by the individual who claims that his or her rights have been violated by the State. When it appears that the alleged victim is unable to submit the communication, the Committee may consider a communication from another person who must prove that he or she is acting on behalf of the alleged victim. A third party with no apparent links with the person whose rights have allegedly been violated cannot submit a communication.

The complaint cannot be considered if the same problem is being investigated under another international procedure, and all domestic remedies must have been exhausted before it can be taken up by the Committee.

Even before deciding whether a communication is admissible or not, the Committee - or its Working Group on Communications - may ask the alleged victim or the State concerned for additional information or comments and set a time limit. If the State has anything to say at this stage, the person complaining receives a copy of its reply for comment.

If the case is merely referred back to the author for more information and then found inadmissible, nothing will be transmitted to the State concerned.

The Committee may decide to drop a complaint without a written decision, for example when the author withdraws it or shows in some other way that he or she has no wish to proceed with the matter.

Assessing a complaint

Once a communication has been declared admissible, the Committee asks the State concerned to explain or clarify the problem and to indicate whether anything has been done to settle it. A time limit of six months is set for the State party's reply. The author of the complaint then has an opportunity to comment on the State's reply. Once this stage is completed, the Committee expresses its final views and sends them to the State concerned and to the author.

The Committee places individuals who complain and States that are alleged to have violated their rights on an equal footing throughout its proceedings. Each has an opportunity to comment on the other's arguments.

The findings of the Committee - its views on communications that have been declared admissible and examined on their merits, and its decisions declaring other communications inadmissible - are always made public immediately after the session at which the findings are adopted and are reproduced in the Committee's annual report to the General Assembly.

Interim protection

It usually takes about 12 to 18 months to declare a case admissible or inadmissible. The process of examining the merits of the case may then take a year or two, depending on how cooperative States parties and the authors of complaints are in submitting all the information needed by the Committee.

People who allege that their human rights are being violated may need protection before the Committee adopts it final views. Without prejudging the merits of complaints, the Committee has for this reason sometimes addressed urgent requests to the States involved. There have been cases, for example, in which the Committee has advised against a threatened expulsion, requested the suspension of a death sentence or drawn attention to the need for an urgent medical examination.

Evidence and burden of proof

The Committee has as yet no independent fact-finding functions, but it is bound to consider all written information made available by the parties concerned.

In a number of cases dealing with the right to life, torture and ill-treatment, and arbitrary arrests and disappearances, the Committee has established that the burden of proof cannot rest alone with the person complaining of the violation of rights and freedoms. The Committee also views a refutation in general terms of a complaint of a violation of a person's human rights as insufficient.

Individual opinions

The Human Rights Committee works by consensus, but individual members can append their opinions to the views it expresses on the merits of a case or to its decisions to declare communications inadmissible.

Results

Several countries have changed their laws as a result of decisions by the Committee on individual complaints under the Optional Protocol. In a number of cases, prisoners have been released and compensation paid to victims of human rights violations. In 1990, the Committee instituted a mechanism to assist it in monitoring more closely whether States parties have given effect to its final decisions on the merits; cooperation from States parties has been encouraging.