KEY INTERNATIONAL AND

EUROPEAN HUMAN RIGHTS MONITORING AND COMPLAINT

MECHANISMS

Convening in Legal Advocacy on Roma Health RightsMacedonia, Ohrid, July 9-11, 2012

Human Rights Monitoring and Complaint Mechanisms

UN/European (Council of Europe)

Judicial/non-judicial

UN Human Rights Bodies

Charter-based bodies (5) Human Rights Council Universal Periodic Review Commission on Human Rights Special Procedures of the Human

Rights Council Human Rights Council Complaint

Procedure

Treaty based bodies (10) Human Rights Committee (CCPR) Committee on Economic, Social and

Cultural Rights (CESCR)

Committee on the Elimination of Racial Discrimination (CERD)

Committee on the Elimination of Discrimination against Women (CEDAW)

Committee against Torture (CAT) Subcommittee on Prevention of Tort

ure (SPT)

Committee on the Rights of the Child (CRC)

Committee on Migrant Workers (CMW)

Committee on the Rights of Persons with Disabilities (CRPD)

Committee on Enforced Disappearances (CED)

UN Complaint Procedures

Individual communications not all HR treaty bodies can consider individual complaints Individual who claims his/her human rights have been violated or a third

party on a behalf of the individuals State-to-state complaints

Never used Inquiries

HR body may on its own initiative initiate inquiries if they have received reliable information containing well-founded indications of serious or systematic violations of the conventions in a State party.

Only CAT and CEDAW Applicable to SRB, MK, RO

Special procedures mechanisms to address either specific country situations or thematic issues,

including the right to health, in all parts of the world Activities: responding to individual complaints, conducting studies, providing

advice on technical cooperation at the country level, promotional activities Human Rights Council complaint procedure

Individual communications

Only 5 human rights bodies can consider individual complaints (communications)

The most relevant for Roma health rights: Human Rights Committee - communications

relating to the International Covenant on Civil and Political Rights

CEDAW - the Convention on the Elimination of Discrimination Against Women

CAT - Convention Against Torture CERD - the Convention on the Elimination of

Racial Discrimination

Lodging a complaint - general rules

Anyone claiming his/her rights have been violated

Possibility to bring a claim on behalf of another person if his/her written consent is obtained and provided to the committee

Against a State that is party to the treaty and recognized competence of the committee

No particular form; in written and signed by the applicant

In one of the working languages

Lodging a complaint - content

Provide basic personal information Specify State party against which claim is directed Set out, in chronological order, all the facts on which the claim

is based Describe the steps taken to exhaust the remedies available

domestically State whether the case have been submitted to another

means of international investigation or settlement Explain why the facts outlined in the claim constitute a human

rights violation of the treaty Not strictly necessary to identify the specific articles of the

treaty that have allegedly been violated. Provide evidence - supply all documents of relevance to the

claims and arguments Legal aid is not provided by the procedure NO TIME LIMITS!!! Exception, CERD – 6 month after the final

decision at national level

Interim measures

Each committee has the facility to take urgent action where irreparable harm would otherwise be suffered before the case is examined in the usual course

Such requests are issued to prevent actions that cannot later be undone

It is advisable to state request for urgent action explicitly in the claim

Admissibility criteria

Provided proof of consent if acting on behalf of another person

Victim has to demonstrate personal and direct affect of the law, policy, practice, act or omission of the State party

Compatibility of the complaint with rights actually protected by the treaty

Sufficiently substantiated complaint Exhaustion of all domestic remedies. Limited exceptions

to this rule Bringing repeated claims to the committee on the same

issue although they have already been dismissed Reservation of the State precluding the complaint Complaint being examined under another mechanism of

international settlement

Committee’s decision

Case is inadmissible Case constitutes violation of the treaty Case does not constitutes violation of the

treaty

Committee’s decision is final If found that the applicant was a victim of a

violation of the State party, it invites the State party to supply information within three months on the steps it has taken to give effect to its findings

European HR complaint mechanisms

Key instruments ECHR – European Convention on Human Rights European Social Charter (Revised)

Key mechanisms ECtHR – European Court of Human Rights ECSR – European Committee of Social Rights

European Committee of Social Rights

The rights guaranteed by the Charter concern all individuals in their daily lives: Housing Health Education Employment Legal and Social Protection Free movement of persons Non-discrimination

The ECHR’s mandate: to judge that States party are in conformity in law and in practice with the provisions of the European Social Charter.

Collective complaint mechanism – but RO, SRB and MK have not ratified protocol on collective complaint mechanisms

European Court of Human Rights

ECtHR protects the rights guaranteed in the ECHR ECHR- does not explicitly protect right to health Right to health (including patient’s rights) can be

brought under the right to life, prohibition of inhuman and degrading treatment, respect for private and family life, right to effective legal remedy, prohibition of discrimination

Key admissibility criteria: Individual application Victim status Right guaranteed under ECHR All available domestic legal remedies exhausted Time limit: 6 months from the final decision at national

level Other

Examples of health rights violations

Right to PrivacyEXAMPLES OF (POTENTIAL) VIOLATIONS A doctor discloses a patient’s history of drug use or addiction

without his or her consent Government requires disclosure of HIV status on certain forms Health care workers require young people to obtain parental Consent as a condition of receiving sexual health services

Right to InformationEXAMPLES OF (POTENTIAL) VIOLATIONS Government bans publications about drug use or harm reduction,

claiming it promotes illegal activity  Young people are deliberately denied information about sexually

transmitted diseases (STDs) and the use of condoms  Roma women lack access to information on sexual and

reproductive health

Examples of health rights violations

Right to Bodily IntegrityEXAMPLES OF (POTENTIAL) VIOLATIONS A Roma woman is sterilized against her will  Doctors compel a drug-using pregnant woman to undergo an

abortion  Treatment is routinely given to residents of an institution without

their consent as they are assumed to lack the capacity to make decisions about their treatment and care

Right to LifeEXAMPLES OF (POTENTIAL) VIOLATIONS Doctors refuse to treat a person who is experiencing a drug overdose

because drug use is illegal, resulting in the person’s death  Drug users die as a result of poor fire safety in a locked hospital

ward  The mortality rate of an institution is particularly high during the winter months due to the poor condition of the building, inadequate sanitation and heating, and poor quality of care

Examples of health rights violations

Right to LifeEXAMPLES OF (POTENTIAL) VIOLATIONS Doctors refuse to treat a person who is experiencing a drug overdose

because drug use is illegal, resulting in the person’s death  Drug users die as a result of poor fire safety in a locked hospital ward  The mortality rate of an institution is particularly high during the winter

months due to the poor condition of the building, inadequate sanitation and heating, and poor quality of care

Right to the Highest Attainable Standard of HealthEXAMPLES OF (POTENTIAL) VIOLATIONS State fails to take progressive steps to ensure access to antiretroviral drugs

for people living with HIV or to prevent mother-to-child HIV transmission  Doctors and health facilities are not located in proportionate proximity to

certain poor neighborhoods  State systematically fails to provide training in palliative care for its medical

personnel  A child in a social care home becomes bedridden due to malnutrition  Women with mental disabilities are denied reproductive health