Joint submission to the Human Rights Committee in relation to the strengthening of the follow-up procedure concerning Views on individual communications
The UN Human Rights Committee in session. © courtesy of Alexis Thiry.
The Redress Trust (REDRESS), TRIAL International, the CCPR Centre, MENA Rights Group, and the Human Rights and Justice Centre (HRJC) make this submission to the United Nations (UN) Human Rights Committee (hereinafter, “the Committee”) in relation to the strengthening of the follow-up procedure concerning Views on individual communications. This topic is of particular relevance to our work as our organisations engage with the Committee in relation to victims’ rights under international human rights standards, regularly bring individual communications before the Committee on behalf of victims and engage with a range of States on implementation of the Committee’s Views.
The importance of the First Optional Protocol to the International Covenant on Civil and Political Rights (hereinafter, “the Optional Protocol”) is illustrated by the continued increase in the number of individual communications being brought to the Committee. Our organisations welcome the important work of the Committee under the Optional Protocol and recognise efforts to achieve greater implementation, in particular the work of the Special Rapporteur for follow-up on Views. However, over many years of bringing cases of violations of the International Covenant on Civil and Political Rights (hereinafter, “the Covenant”) by various countries before the Committee we have learned that even when the Committee adopts significant Views, achieving implementation of these often gives rise to difficulties.
In this sense, in its last annual report, the Committee noted with concern that “many States parties fail to implement the Views adopted under the Optional Protocol”. Where the Committee’s Views remain unimplemented, this can result in re-victimisation, hinder trust towards domestic authorities and international human rights mechanisms – and undermine the effectiveness of these mechanisms – and ultimately, leave victims without access to an effective remedy at the international level.
Since 2015, our organisations have engaged in a dialogue with members of the Committee, as well as of its Secretariat and, in general, with the Petitions and Urgent Actions Section (PUAS) of the Office of the High Commissioner for Human Rights (OHCHR) to identify the main obstacles encountered and explore potential solutions to strengthen the follow-up procedure and, ultimately, enhance the level of implementation of the Committee’s Views. This submission, where a number of concrete suggestions for proposed improvements are put forward, must be read in the framework of the mentioned ongoing dialogue. Accordingly, the signatory organisations call on the Special Rapporteur on follow-up on Views and the Committee to consider these proposals, in particular in regard to the upcoming review of the Guidelines on the follow-up procedure on the views that will take place in 2022. We welcome the opportunity to discuss these proposals further.
2. Assessment of the level of implementation of the Committee's views
In general terms, the Committee noted that “in light of the high number of Views on which follow-up is required and the limited resources that the secretariat can devote to follow-up on Views, it has been and continues to be impossible to ensure systematic, timely and comprehensive follow-up on all cases, particularly given the applicable word limitations”. The signatory organisations take note of this unfortunate situation and wish that adequate human, financial and technical resources are allocated so that the Secretariat can reinforce its work on the follow-up procedure on Views.
The Committee amended several times the criteria used to assess the level of implementation of Views. The methodology and procedure for monitoring follow-up to Views was revised on 9 November 2017. On such occasion, the Committee decided that: (a) grading will no longer be applied in cases where the Views have been merely published and/or circulated; (b) grading will be applied for the State party’s response on measures of non-repetition only if such measures are specifically included in the Views; and (c) the follow-up report will contain only information on cases that are ready for grading by the Committee, that is, where there is a reply by the State party and information provided by the author.
Moreover, at its 127th session (14 October–8 November 2019), the Committee decided to further adjust the methodology for preparing the reports on follow-up to Views and the status of cases by establishing a list of priorities based on objective criteria. Specifically, the Committee decided in principle to: (a) close cases in which it has determined that implementation has been satisfactory or partially satisfactory; (b) retain active those cases on which it needs to maintain dialogue; and (c) suspend cases for which no further information has been provided in the past five years either by the State party concerned or by the author(s) and/or counsel, moving them to a separate category of “cases without sufficient information on satisfactory implementation”. The Committee is not expected to ensure any proactive follow-up on these cases that have been “suspended for lack of information”, unless one of the parties submits an update. Priority and focus will be given to recent cases and cases on which one or both parties are regularly providing the Committee with information.
The signatory organisations contend that the assessment criteria currently applied might have the unwarranted effect of rewarding the party that is less diligent in engaging in the follow-up procedure. This might generate re-victimisation, especially among the authors of communications and their representatives, who find themselves without an interlocutor and see their attempts to seek justice and redress unduly hindered.
In particular, it has already been brought to the attention of the Committee that the suspension of the follow-up dialogue due to lack of implementation of the Views has an especially disruptive effect, in that it contributes to depriving victims of human rights violations and their relatives of their right to an effective remedy.
The signatory organisations consider that a further review of the assessment criteria and the methodology of the follow-up procedure is in order. In particular, the Committee could study the establishment of a separate category of cases that, albeit acknowledging the lack of cooperation of the States parties concerned, avoids the use of the term “suspension” and does not convey the message that authors have been left without any interlocutor and the Committee remains somehow seized of the matter and maintains the follow-up procedure if one of the parties submits information on the implementation of Views. The signatory organisations remain at disposal of the Committee, and in particular of the Special Rapporteur on Follow-up on Views and the Deputy, to explore further this option.
Furthermore, although welcoming the adoption of a detailed grading system by the Committee, the signatory organisations note that there is a lack of information about the application of the grading system. Increased clarity regarding the meaning of each grade when it is assigned, the criteria the Committee applies when assigning grades, and the timing and operation of the grading system would thus be beneficial.
Assigning grades alone does not provide the State party concerned with concrete information on how to improve compliance with its Covenant obligations. We thus suggest that an improvement to the application of the grading system would be to include explanatory notes and recommended actions in order to better explain the grades assigned by the Committee in the reports on follow-up on individual communications and to outline actions required in order to implement the recommendations. This could provide essential guidance to States parties and would allow for more effective implementation. Additionally, this would allow for more effective advocacy by victims and victims’ groups at the national level.
Regular Assessments and Reports on Follow-up on Individual Communications
In order to maintain momentum on implementation of Views and to increase the effectiveness of the follow-up process, implementation of Views should be assessed on at least an annual basis, taking the date of publication of the Views as a reference.
We call on the Committee to publish its follow-up reports on Views after each of its three sessions. Follow-up reports should include assessments of implementation of individual communications as well as explanatory notes and recommended actions.
In addition, the responses provided by State parties should be made public.
Including Explanatory Notes and Recommended Actions in the Assessments of Implementation on Individual Communications
In its assessments of implementation, the Committee should follow the existing grading system. To provide greater clarity, it should include an explanatory paragraph in which it provides the reasons for the grades assigned to the State. Moreover, where the level of implementation of the measures is deemed non satisfactory, the Committee should identify the concrete actions required by the State party concerned in order to implement the recommendations included in the Views. Bearing in mind the limited capacity of the PUAS, we note that the identification of such actions would generally occur in the first two assessments after the Views are adopted (within 24 months after adoption) and subsequent assessments could refer back to the actions previously identified if there is no progress.
Where the Views have not been implemented and no explanation is provided, the Committee could identify specific questions regarding efforts to implement the Views, to be answered by the State party in the subsequent follow-up submission. For example, in the process of follow-up to Concluding Observations, the Committee systematically includes concrete questions in follow-up letters sent to the Government.
Application of Assessment Criteria
The Committee should prepare an explanatory note on application of the assessment criteria. This note on application of the assessment criteria would be used by the Committee in assessing the adequacy of the implementation of Views and assigning relevant grades. It would also provide useful clarity to States parties, authors and their representatives.
It should be made clear that the grading system is not a linear process but one that continues to monitor the effectiveness of the implementation of Views. Thus, a State may be assigned a lower grade after having initially received a grade that welcomes progress if implementation stalls. For example, the commencement of an investigation may result in a positive grade but if it becomes clear that the investigation is not effective a subsequent grade should be lower.
Consistently Grading the Failure to Respond
It is here contended that it is essential that the Committee grade a State party’s failure to provide a response. In order for such grading systems to be effective, deadlines for submissions must be clearly established.
Reminders sent by the PUAS in situations where a deadline has passed should identify a new deadline for the response to be submitted. When a deadline passes without receipt of a submission, a reminder should be sent on a regular basis by the PUAS as soon as possible after the deadline has expired. The list of cases assessed with a category D should be regularly updated and accessible on the Committee’s website.
Avoiding the Closing of a Case in the Absence of an Answer from One of the Parties
Bearing in mind that, as explained above, the ‘suspension’ of the follow-up procedure in the absence of a reply from one of the parties might leave authors without an effective remedy and generate instances of re-victimisation, a different category could be established, to avoid – even symbolically – the risk of conveying the message that victims and their relatives have been left without an interlocutor in their quest for justice and redress.
If a submission sent as part of the follow-up process is an exact duplicate of a previous submission, this should be identified in a communication from the PUAS Unit to both parties and in the subsequent grades assigned. The communication should call on the relevant party to provide a new submission which responds to issues raised in previous exchanges.
Communication with States and Authors’ Representatives
When adopted, and as a matter of priority, grades should be communicated both to the State party and to the author and/or their representatives. Such communication would enhance the effectiveness of the follow-up process and would encourage engagement and dialogue. These communications providing the grades should be made public, available online on the OHCHR website. Furthermore, the Committee’s regular reports on follow-up on Views should be posted online without undue delay following adoption.
The signatory organisations would also like to suggest additional potential measures to enhance the follow-up procedure and exchanges between the parties, including: holding “dedicated hearings” to discuss the level of implementation of the Committee’s Views concerning a specific State party; the possibility for the Special Rapporteur on Follow-up to Views and/or her or his Deputy to carry out country visits to promote implementation; and the creation of a common form for the submission of follow-up information by the parties.
With regard to “dedicated hearings”, the signatory organisations wish to refer to the practice of other international human rights mechanisms, including the Inter-American Court and Commission of Human Rights (hereinafter, IACtHR and IACHR), which could be studied and applied, mutatis mutandis, by the Committee. In this regard, it is worth noting that, from time to time, the mentioned international mechanisms convene hearings (usually lasting two hours) where the parties illustrate the respective position on the status of compliance with reports or judgments. In these hearings, the international mechanism concerned plays a ‘conciliatory role’ not only listening to the parties, but also suggesting alternative solutions, promoting concrete proposals to ensure compliance, etc. States usually bring a delegation to such hearings, including members from the relevant national Ministries in charge of the implementation. This often results in concrete commitments being made by State officials during the hearing on the implementation of specific reparation measures. In the experience of the Inter-American system of human rights these hearings have been quite fruitful and facilitated in practice the implementation of the measures of reparation identified. To remain efficient, hearings need not be held per case but could group cases from the same country dealing with the same reparation measure or covering the same thematic issues.
Moreover, the signatory organisations consider that country-visits by the Special Rapporteur and/or his or her Deputy could play a pivotal role in the promotion of implementation of Views. In this regard, it is worth recalling that the Special Rapporteur’s mandate allows for follow-up visits to countries regarding implementation of the Committee’s Views. For example, in 1995, the Special Rapporteur undertook a visit to Jamaica. However, over the years, budgetary issues have been encountered in seeking to carry out further similar visits. As such, in its 1999 Annual Report the Committee “again expresse[d] its regret that its recommendation, formulated in its three previous Reports, to the effect that at least one follow-up mission per year be budgeted by the Office of the United Nations High Commissioner for Human Rights, has still not been implemented”. It is here contended that this practice should be resumed and specific funding sought for this purpose.
We would also like to emphasise that, in some of the cases that we have brought to the Committee, the State party concerned has failed entirely to respond to the Committee’s Views, while in others we have found that the responses do not always address all of the measures of redress recommended. This hampers the ability of authors and/or their representatives to engage effectively with the State party and hinders the Committee’s assessment of the State party’s implementation efforts. Furthermore, the concerned States parties have regularly failed to outline how they intend to implement the Committee’s Views. We consider that the described situation could be improved by developing a common reporting form to be filled by the parties.
Finally, the signatory organisations consider that the follow-up procedure would benefit from greater transparency and accessibility, which could be achieved through the establishment of a user-friendly and up-to-date database.
Suggestions in relation to the Monitoring Process
Organising “Dedicated Hearings” to Discuss the Level of Implementation of Views
The Committee could organise implementation hearings at which all the parties to the process would be duly represented. These hearings could consider submissions – from the author and/or his representatives and the State party – regarding progress on implementation of Views as part of the follow-up process and would allow a dialogue to take place. Participation of victims in such hearings, either in person or via phone or video call, should be facilitated. Where possible, in order to rationalise the use of resources, these hearings (generally organised to discuss a State party’s record of implementation of Views and not for each View delivered by the Committee) could take place when the State concerned is undergoing the examination of its periodic report. If the Committee or the Special Rapporteur deems it necessary, extraordinary hearings could be convened during a country visit or in relation to individual Views, for example where implementation raises particularly complex issues.
Conducting Country Visits
The Committee should consider undertaking visits to relevant States parties to encourage implementation of Views on individual communications. In determining which countries to visit, the Committee should take into consideration factors such as the number of cases decided against a specific State and the general level of implementation. Notably, such visits are already carried out in an informal manner regarding follow-up to concluding observations in collaboration with the CCPR-Centre. In years where adequate funding is not available to the Committee, NGOs could facilitate such follow-up visits regarding implementation of Views, provided there is no conflict of interest, in order to ensure that visits are consistently undertaken.
Developing a Common Reporting Form to be Filled by the Parties
To contribute to the harmonisation of the reporting process, the Committee could develop a form that both the State party and the author of the communication or their representatives should fill when submitting their follow-up reports on the status of implementation of the Committee’s Views. In the form, each measure included in the remedies section of the Views adopted by the Committee should be dealt with autonomously, in order to prevent omission of information from any of the parties. The form could include standard sections regarding measures that are consistently included in Views (such as the requirement that Views should be published) but should be adapted to each case to reflect the measures of redress indicated by the Committee in that particular case. Further, the standard form could include additional questions, for instance concerning the involvement of the authors of the communication in the design and implementation of the measures of redress at the domestic level and an open question on the difficulties encountered by the parties in the implementation phase.
This form should be provided to the parties with the Views and should be developed by the Petitions Unit staff member who is already familiar with the Views. The State party’s 180-day response should be based on this form.
As a standard approach, States should be encouraged to develop an implementation plan which sets out how they will implement the Views adopted by the Committee and provides a timeframe for implementation. This plan should be shared with the Committee and the author and/or his or her representatives as part of the follow-up process, with the 180-day response.
Establishing an accessible, user-friendly and up-to date database
The Committee should create a database on the implementation of its Views that includes, in a graphic way, the assessment made by the Committee in each case, and allows filtering data both for each State party and for each measure of redress recommended in the Views concerned. The database should be publicly accessible from the Committee’s website and it should be regularly updated.
The signatory organisations note that the Special Rapporteur on Follow-up on Views mandate provides that she or he “may make such contacts and take such action as appropriate for the due performance of the follow-up mandate. The Special Rapporteur shall make such recommendations for further action by the Committee as may be necessary” (Rule of Procedure 106, para. 2). Pursuant to her or his mandate, the Special Rapporteur may introduce new methods to achieve more effective implementation of Views. We suggest that, to further strengthen the follow-up procedure, some steps could be taken to enhance the Special Rapporteur’s impact on implementation of Views:
Suggestions in relation to the Role of the Special Rapporteur for Follow-up on Views
Notification of Meetings with State party’s Representatives
In advance of a planned meeting with State party’s representatives, the Special Rapporteur should notify the authors of the communication and/or their representatives and invite the author and/or his or her representatives to submit an update on developments regarding implementation of the measures of redress outlined in the Views before the meeting takes place.
Publication of the Outcome of Meetings
After the meeting has taken place, information regarding the relevant discussions should be provided to the author and/or his representative and, to the extent possible, publicly reported. Notably, Rule 112 of the Committee’s Rules of Procedure establishes that information furnished by the parties within the framework of follow-up to the Committee’s Views is not subject to confidentiality, unless the Committee decides otherwise.
Views adopted by the Committee represent important acknowledgements of violations of rights and fundamental freedoms enshrined in the Covenant and provide authoritative guidance on the requirements on States parties to abide by their treaty obligations, including measures to provide redress. Efforts to strengthen the follow-up process should aim to optimise the impact of the Views and implementation assessments, to standardise best practices and to ensure that the various bodies of the UN system coordinate and share information on these matters consistently.
Suggestions in relation to an Effective Use of the Views and Implementation Assessments
Information regarding States Parties’ Implementation Records
Information regarding each State party’s record of implementation of Views should be consistently compiled and published in the Committee’s Annual Reports (pursuant to Rule of Procedure 106, para. 4) and Follow-up progress reports on individual communications. In order to maximise the impact of the follow-up process, these compilations of the State party’s record of implementation should be provided to:
(i) relevant UN Special Procedures in advance of country visits; and
(ii) the OHCHR team preparing the compilation of United Nations information on a State when that country’s human rights record is being examined as part of the Universal Periodic Review.
Considering Record on Implementation of Views as Part of State Party’s Periodic Examination
States parties that have ratified the Optional Protocol are also regularly required to be present in Geneva for periodic examinations of their compliance with obligations under the ICCPR. The monitoring of implementation of Views through the follow-up process should be linked to the regular reviews of the relevant State party by the Committee and questions on implementation of cases should systematically be added to the List of Issues or the List of Issues Prior to Reporting. The PUAS should consistently share the compilation of the State’s record of implementation of Views with the country rapporteurs in advance of the examination. Direct reference to the follow-up assessment should be made.
Sharing Views and Follow-up Reports with Field Presence of the OHCHR
When Views are adopted, they should be provided to relevant OHCHR regional and country offices, as is currently the practice. Similarly, the compilation of the State party’s record of implementation of Views mentioned above should be provided. A focal point for implementation of Treaty Body Views should be appointed in such offices who would have a mandate to monitor implementation and would receive training to that effect. Such training should be based on best practices from those offices, which are already actively engaged in working towards implementation.
3. Achieving greater compliance with Views
Finally, the signatory organisations are of the view that there is a correlation between the measures of redress indicated by the Committee, the specificity of those measures, and the effective implementation of Views. For example, in one case during discussions with the Special Rapporteur, a State party “expressed the need for more guidance from the Committee on the remedies expected with respect to its Views,” while in another case the Committee was informed in a follow-up submission that a Ministerial Committee did not recommend that compensation be paid to the victim “given the absence of a specific remedy recommended by the Committee”.
We consider that the Guidelines on Measures of Reparation under the Optional Protocol to the Covenant, adopted by the Committee in 2016, represent a significant step forward and should be consistently used in the determination of the measures identified by the Committee in its Views.
In this regard, the content of the measures of redress that are indicated in the Views adopted by the Committee can provide important guidance to the relevant State party on measures required to implement the Committee’s Views, thereby facilitating implementation. We believe that greater specificity and consistency in relation to measures of redress included in the Views would assist States parties that are committed to complying with the Views adopted. Similarly, in cases where a State party is reluctant to implement, greater specificity would assist authors, their representatives, and civil society organisations advocating for effective implementation. The inclusion of more precise measures of redress in the text of the Views would also serve the purpose of facilitating the subsequent task of supervision by the Committee and the Special Rapporteur.
In our experience working on cases before the Committee, we have further found that effective implementation and engagement with governments in certain States parties has been hampered by a failure to assign responsibility for coordination of implementation to a particular entity and a failure to identify which domestic authority is responsible for implementation. Identifying responsible authorities could thus help to achieve more effective implementation.
Suggestions in relation to Precision of measures of redress indicated in Views
More Precision in the Measures of Redress Indicated
The Committee should provide more details on the measures of redress recommended in Views on individual communications, for instance by specifying what kind of damages should be included in the calculation of amounts of pecuniary compensation to the authors of the communications.
Inclusion of Timeframes for the Implementation of Remedies
In order to achieve more expeditious implementation, the Committee should identify in its Views the timeframes within which it expects the specific measures of redress indicated to be implemented. These timeframes could be shorter for measures such as the payment of compensation, while measures such as the investigation of violations and the prosecution and sanction of those responsible would be allotted longer timeframes with more flexibility, taking into account the circumstances of each specific case. The State party should identify whether it is meeting these timeframes in its follow-up reports to the Committee and, if not, should provide reasons and indicate what remedial action will be taken. The timeframes for implementation would be independent from the deadlines to regularly submit follow-up reports to the Committee.
Alternatively, as done by other international human rights mechanisms, the Committee may request the State party concerned to identify a tentative implementation plan and timeline for the implementation of each measure.
Identifying the Domestic Authorities Responsible for Implementation
In its Views, the Committee should request the State party, to identify the domestic authorities responsible for implementation in its 180-day response. Notably, the Committee has done so in the past, and this practice should be regularly applied.
Explicitly Referring to the Participation of the Authors in the Implementation Process
The Committee should include in its Views an explicit reference to the obligations of the State party vis-à-vis the authors and/or their representatives in the implementation phase. It should explicitly mention that the domestic authorities must consult and inform the author of the communication and/or her or his representative about decisions adopted in the implementation process and guarantee full participation (to the extent desired by the author) throughout the implementation process.
In its 1990 Annual Report, the Committee noted that it had “received letters of complaint from a number of victims stating that their situation remained unchanged or that no appropriate remedy had been provided”. Despite the passage of time, implementation remains an ongoing challenge in 2021. The proposals outlined in this submission are intended to contribute to the Special Rapporteur’s and the Committee’s efforts to prevent such situations in the future, to enhance the effectiveness of the Committee’s follow-up process and to ensure that the Committee’s Views are implemented and that violations of the Covenant are repaired and prevented.
The signatory organisations remain at the Committee’s and Special Rapporteur’s disposal to engage in a constructive dialogue to further explore these and other measures to strengthen the follow-up process and the level of implementation of Views on individual communications and would especially welcome the possibility to discuss the measures here proposed on the occasion of a meeting to be held during the Committee’s session in March 2022.
 Human Rights Committee (HRC), 2020 Annual Report, UN Doc. A/75/40, para. 24: “Since the Committee started its work under the Optional Protocol in 1977, 3,624 communications concerning 93 States parties have been registered for consideration by the Committee, of which 367 were registered during the period covered by the present report” (hereinafter, HRC, 2020 Annual Report).
 Ibid., para. 37.
 HRC, Follow-up Progress Report on Individual Communications, UN Doc. CCPR/C/130/R.2 of 19 November 2020, para. 1 (emphasis added).
 The methodology is available here: http://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/1_Global/INT_CCPR_FGD_8108_E.pdf (accessed on 25 October 2021).
 This was highlighted in the signatory organisations’ letter on the suspension of the follow-up procedure, which was submitted to the Committee on 12 October 2021.
 HRC, 1999 Annual Report, 54th session, UN Doc. A/54/40 of 1 January 1999, para. 474.
 For example, TRIAL International and REDRESS have created the website www.realrightsnow.org with a graphic representation of the level of implementation of HRC Views in relation to Nepal. It should also be recalled that an online excel page was regularly updated until the 119th session with the current follow-up status of all the cases decided by the HR Committee. This page is sadly not anymore updated and neither accessible.
 In the past, the outcomes of such meetings were regularly reported in the Committee’s Annual Reports (See for example, HRC, 2006 Annual Report, Vol. II, p. 696.)
 Report of the HRC, eighty-fifth, eighty-sixth and eighty-seventh sessions, UN Doc. a/61/40. Vol. II, 2006, p. 696. (Hereinafter, HRC, 2006 Annual Report, Vol. II).
 Report of the HRC, Vol. I, UN Doc. No. A/52/40, 1997, para 535, p. 95. (Hereinafter, HRC, 1997 Annual Report, Vol. I)
 HRC, UN Doc. CCPR/C/158 of 30 November 2016.
 In this regard, see Principle 20, UN Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, Adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005.
 This would be in line with the practice of the Inter-American Court of Human Rights and the European Court of Human Rights.
 E.g. Inter-American Court of Human Rights, Case Acosta and others v. Nicaragua, judgment of 25 March 2017, Ser. C No. 334, operative paragraph No. 13.
 HRC, Case Bholi Pharaka v. Nepal, Views of 15 July 2019, para. 9 (e).
 HRC, 1990 Annual Report, Vol. I, para 633, p. 144-145.