6.1 Introduction
The application of admissibility criteria for the individual communication procedure of the UN treaty bodies (UNTBs) is not a topic that has received much attention. In 2021, however, international headlines did report on the inadmissibility of a communication which youth climate activists had lodged with the UN Committee on the Rights of the Child (CRC Committee). The authors had argued that by failing to address climate change, various states had breached their rights under the Convention on the Rights of the Child (CRC).Footnote 1 The CRC Committee was sympathetic to the merits of the claim,Footnote 2 but found the communication inadmissible for failure to exhaust domestic remedies. No domestic proceedings had been initiated. Why local actions had not been pursued is not entirely clear, but one may hypothesise on potential barriers to justice, as adolescents typically do not have the funds required to bring this expensive type of litigation. The youth climate activists argued before the CRC Committee that they should have been exempt from the requirement to exhaust as domestic remedies were too slow and ill-suited to the claim, particularly the urgent need for international cooperation.Footnote 3 The CRC Committee disagreed. Its rejection of the communication brings to the fore overlooked tensions in the individual communications procedure. Which types of barriers to domestic justice should be considered when assessing whether the requirement to exhaust domestic remedies should be lifted? Should this assessment be sensitive to the circumstances of the individual and institutional structures, as well the political, economic and sociocultural realities that shape the ability to access domestic forums? How should authors evidence that they were prevented from obtaining domestic justice?
This chapter argues that the UNTBs must take a generous approach to the exhaustion rule both in determining whether an exemption is warranted and in how individuals evidence the futility of pursuing domestic remedies. To do otherwise would compound the failures of the domestic justice system at the international level. To achieve this normative aim, the chapter proposes an analytical frame for the exhaustion assessment that is grounded in authors’ individual identities and experiences while being attentive to how these identities and experiences are connected to systemic inequality and broader political, economic, and sociocultural realities. The individual-centred and contextual nature of the assessment positively influences the proof required to demonstrate obstacles to domestic justice, by recognising that producing evidence can be shaped by an array of identities, factors and structures.
In adopting this generous approach to admissibility, the treaty bodies will be fulfilling not only the aims of the individual communication procedure but the very core purpose of the exhaustion rule. Individuals are required to pursue local remedies to respect state sovereignty and the subsidiary role of international justice. States must be given an opportunity to address the alleged violation of human rights before a UNTB weighs in.Footnote 4 There are, however, a wide range of obstacles that can prevent an individual from being able to access accountability at the national level, including financial costs, fears of reprisal, geographic remoteness, linguistic differences, lack of knowledge or discriminatory biases within the justice system. Gaps in the law may prevent individuals from obtaining legal remedies, legal action may be painfully slow, or hostile lines of jurisprudence may make the pursuit of justice futile. Women, children, racial and ethnic groups, migrants, refugees, asylum-seekers and people living in poverty or in rural and remote places are more likely to be confronted with these barriers and denied access to domestic justice.Footnote 5 To navigate these tensions, there is a partial acknowledgement of the barriers to domestic justice in the admissibility criteria. Some treaties and optional protocols hold that there is no requirement to exhaust domestic remedies when it would be unreasonably prolonged.Footnote 6 Others go a step further and craft exemptions for when domestic remedies would be unlikely to bring effective relief.Footnote 7 The exemptions are silent on other barriers, such as costs or fear of retaliation. The proposed approach to the application of the requirement to exhaust in this chapter is consistent with the normative aims of the exhaustion rule as it ensures admissibility only when there is no potential for the domestic system to remedy the alleged violation while simultaneously enriching the application of the rule by heightened awareness of the intricacies of barriers to domestic justice.
Using the guidance from the treaty bodies, Section 6.2 identifies common barriers to domestic justice systems. Section 6.3 argues that the purposes of the individual communications procedures, the exhaustion rule and its exemption point towards a generous application of admissibility criteria. Section 6.4 is doctrinal and normative. It is ambitious in that it pulls together all of the admissibility decisions from the nine UNTBs from 2012 to 2022. Undertaking this mapping exercise reveals how the treaty bodies are accounting for some barriers to justice, but others remain invisible and reveal how the treaty bodies continue to lapse into formalistic reasoning and unrealistic evidentiary requirements. To shift from this black-letter methodology, this chapter proposes an individual-centred, contextual approach to the exhaustion criteria and marks out how it can enrich the admissibility analysis. This approach takes seriously individuals’ lived experiences, accounts for how identity characteristics are linked to systemic inequality and is cognisant of how realities on the ground interact with social norms and institutional structures. It weighs carefully how these combined forces shape domestic attempts to vindicate human rights and provides greater clarity on how individuals can evidence their inability to exhaust. An individual-centred, contextual application of the exhaustion rule will not address all the challenges that beleaguer the individual communications procedure, nor will it always guarantee the vindication of human rights, as many of the barriers to domestic justice are equally applicable to international justice. But greater attention to the relationship between individuals and the structures of domestic justice can ensure international justice does not ignore or silence the vulnerable, marginalised and oppressed.
6.2 Domestic Barriers to Justice
Access to justice is a process whereby individuals can turn to mechanisms to resolve allegations of rights violations.Footnote 8 This broad definition functions as a useful starting point for investigating common barriers to accessing mechanisms to resolve human rights complaints. The justice system is embedded in society and reflects its values.Footnote 9 The oppression, neglect and discrimination that permeate the state are replicated and re-enforced in the domestic justice system.Footnote 10 Individuals do not have an equal ability to access justice in their domestic system nor consequentially an equal ability to meet the individual communications procedure admissibility criteria to exhaust domestic remedies. This section identifies common domestic barriers to justice and reflects on what effective access to justice requires. It does so by borrowing from the General Recommendation on access to justice issued by the UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW Committee).Footnote 11 The necessary elements are justiciability, availability, accessibility, good quality, remedies and accountability. Each element is introduced before being utilised in Section 6.4 to develop the parameters of an individual-centred, contextual exhaustion assessment.
6.2.1 Justiciability
This element requires that individuals have ‘unhindered access to justice’ and recognises that not all ‘rights and correlative legal protections are recognised and incorporated into the law’.Footnote 12 There are many examples of non-justiciability. Socioeconomic rights are still not consistently legally protected.Footnote 13 Racist hate speech is not prohibited in every state.Footnote 14 In these examples, individuals will not be able to remedy violations in domestic settings.
6.2.2 Availability
Availability requires the state to establish and maintain domestic accountability mechanisms.Footnote 15 This requires the building of the infrastructure needed for a functioning justice system. Geographic and ableist biases permeate the design of domestic justice. The clustering of courts in urban centres raises logistical and financial challenges for those living in rural or remote areas.Footnote 16 The facilities and services of the justice system also often fail to account for the needs of persons with disabilities.Footnote 17 Without ensuring justice mechanisms are available in a manner that is mindful of how and where people live their lives, domestic justice is not equally available.
6.2.3 Accessibility
Accessibility demands that all accountability mechanisms be economically, socially, culturally and physically accessible.Footnote 18 Individuals may be unaware that accountability mechanisms exist.Footnote 19 Linguistic barriers can deter individuals from claiming justice.Footnote 20 Sociocultural accessibility can take many forms, but treaty bodies are increasingly concerned about negative repercussions, including violence against individuals who pursue domestic accountability.Footnote 21
Economic accessibility is of primary concern to multiple UN actors. Challenging breaches of human rights is expensive.Footnote 22 The biggest financial obstacle to accessing domestic justice is the cost of legal representation. States are repeatedly urged to fund legal aid.Footnote 23 Despite consensus on the value of legal aid, the treaty bodies have different recommendations on its scope but uniting them is a recognition that states must address economic barriers to justice.Footnote 24
Little attention has been paid to developing global best practices standards with respect to eligibility criteria for legal aid. There are a handful of exceptions. The CEDAW Committee warns that due to the imbalance in control over family resources between women and men, eligibility criteria for women to access legal aid in cases of family conflicts should take account of ‘real income or disposable assets of women’.Footnote 25 The UN Office on Drugs and Crime also recognises the somewhat arbitrary nature of income thresholds. If an individual exceeds the means tests but still is not in a position to afford a lawyer, they should not be excluded from assistance when the ‘urgency or complexity of the case or the severity of potential penalties’Footnote 26 demand legal aid.Footnote 27
6.2.4 Good Quality
This element reflects on the competence, efficiency, independence and impartiality of the justice system.Footnote 28 There are multiple components to a well-functioning justice system. Human and financial resources are needed so human rights claims do not stagnate but are resolved in a timely manner.Footnote 29 Justice officials must have knowledge of human rights law.Footnote 30 Domestic justice systems must be impartial and free of myths and biases. The CEDAW Committee points out that ‘often judges adopt rigid standards about what they consider to be appropriate behaviour for women and penalize those who do not conform to stereotypes’.Footnote 31 The CERD Committee observes the same with respect to racial discrimination.Footnote 32 The UN Special Rapporteur on the right to food highlights another threat to impartiality. She warns that close relations between the executive, legislative and judicial can undermine the independence of domestic accountability mechanisms.Footnote 33 The lack of good quality justice can make pursuing domestic remedies futile and should be accounted for when treaty bodies consider the exhaustion criteria. The treaty bodies have a long track record of assessing how the quality of the justice system impacts the admissibility to the individual communications procedure, particularly around issues of delay, a barrier that can be easily evidenced. There is less consideration of other aspects of quality, such as bias, which can be much more difficult to prove.
6.2.5 Remedies
Remedies for breaches of human rights are an element of access to justice. These must be effective, adequate and timely and holistically and proportionally redress the harm suffered.Footnote 34
6.2.6 Accountability
Lastly, the justice system itself must be accountable and monitored.Footnote 35
6.3 A Formal Accounting of Barriers to Justice
The UN individual communications procedure is, in part, designed to overcome the confluence of obstacles that prevents individuals from vindicating their rights. When justice is unattainable at the domestic level, individuals can turn to international mechanisms. The promise of international human rights accountability hinges, inter alia, on the exhaustion of domestic remedies. This section considers the purposes of the individual communication procedure, and the purpose of and formal exemptions to the exhaustion rule, providing the basis for arguing in Section 6.4 for an individual-centred, contextual application of this admissibility criterion.
6.3.1 The Purpose of the Individual Communications Procedure
An individual can lodge a communication with a treaty body alleging that the state has not fulfilled its human rights obligations under the respective treaty. If the communication meets the admissibility criteria, the treaty body will assess the communication on its merits and, if required, will recommend both individual and structural remedies to prevent future violations of human rights. The individual communications procedure serves multiple purposes.Footnote 36 First, it seeks to secure individual relief.Footnote 37 Second, the individual communications procedure also aims to spark structural reforms to strengthen human rights not only in the state under review but around the world.Footnote 38 And lastly, the communications are an opportunity for the treaty body to develop treaty obligations at a more granular level.Footnote 39 The multiple functions of the individual communications procedure provide a strong foundation for a non-technical application of admissibility criteria. The purposes of the procedure would be hamstrung if individual communications are too readily deemed inadmissible for failing to exhaust.
6.3.2 Purpose of the Exhaustion Rule
A close examination of the function of the exhaustion rule makes it clear why the rule should not be rigidly enforced. The requirement to exhaust domestic remedies has a long history originating in diplomatic relations.Footnote 40 In the modern era, exhaustion is ubiquitous in international human rights adjudication. A majority of regional human rights instruments require individuals to pursue domestic claims before accessing international or regional courts.Footnote 41 Courts and scholars have identified a number of reasons for the exhaustion rule. Its primary purpose is to respect state sovereignty. The state should be given an opportunity to evaluate the claim before it is taken to the global stage. D’Ascoli and Scherr explain that the state should have a chance to ‘discharge its responsibility and to redress the wrong committed’.Footnote 42 Exhaustion is also a method for preserving a relationship of subsidiarity between domestic and international human rights law. Requiring individuals to pursue domestic remedies protects the primacy of domestic accountability and avoids ‘domestic courts being replaced by international courts’.Footnote 43
6.3.3 Purpose of the Recognised Exemptions to Exhaustion
The purpose of the individual communications procedure and the purpose of the exhaustion rule seem to pull in different directions, and as argued below the individual, contextual approach is a bridge between these competing imperatives. On the surface there appears to be a tension as, on one hand, a literal application of the exhaustion rule could frustrate the purpose of international human rights accountability and ‘over-protect the interests of the state at the expense of the protection of the individual’.Footnote 44 Ignoring the exhaustion rule, on the other hand, could upend the carefully crafted relationship between domestic and international accountability. In the UN system, there is an incomplete bridge built between the need to fully protect human rights and the desire to protect subsidiarity through the recognition of exemptions to the exhaustion rule. An individual does not have to exhaust domestic remedies when the domestic justice process would be either unreasonably prolonged and/or unlikely to bring effective relief.Footnote 45 All treaty bodies can assess whether a remedy is unreasonably prolonged, but technically, only the CEDAW, CRC, Committee on the Rights of Persons with Disabilities and Committee against Torture (CRPD and CAT Committee, respectively) can assess whether the remedy is effective. Regarding unreasonable delay, if achieving domestic accountability will take an excessive amount of time, then there is no obligation on the individual to pursue it before accessing the individual communications procedure.Footnote 46 Regarding effective relief, an effective or available remedy is one which is ‘in direct relation with the events that initially gave rise to the claimed violation and that … may be reasonably considered as effective of remedying the claimed violations’.Footnote 47 There is no requirement to pursue domestic remedies when there is no reasonable prospect of success.Footnote 48 Treaty bodies examine an array of factors when assessing effectiveness, including the procedural activity of the claim and the nature and seriousness of the alleged breach of human rights.Footnote 49 On a plain reading of the admissibility rules, there is an acknowledgement that insufficient quality and/or remedial power of the justice system can frustrate domestic accountability. International human rights law recognises that these difficulties, if sufficiently pronounced, alleviate the obligation to seek domestic relief. This, however, amounts to a partial accounting since only two of the six elements of access to justice as identified above are referred to, with the other elements – justiciability, availability, accessibility and accountability – not recognised exemptions from the requirement to exhaust. As the analysis below demonstrates, the treaty bodies are aware of the need for a generous application of the exhaustion rule and interpreting it to address other elements of access to justice,Footnote 50 but have yet to consistently and coherently achieve this aim.
6.4 A Dynamic Accounting of Barriers to Justice
The narrow textual exemptions to the exhaustion requirement have evolved to partially account for the confluence of obstacles that prevent individuals from claiming their human rights. Thus, it appears the treaty bodies are applying the exhaustion rule in a flexible and non-technical manner. This evolution, however, is nascent. The jurisprudence is riddled with contradictions. Sometimes the high costs are recognised as creating obstacles and sometimes they are not. There is deep uncertainty around proving how different barriers to justice make it impossible to give domestic forums an opportunity to address the alleged breach of human rights. While it has been clarified that individuals cannot argue for exemptions to exhaustion based on ‘mere doubts’ or ‘assumptions’,Footnote 51 it nonetheless remains unclear what can/should in practice constitute positive, compelling or persuasive evidence of obstacles to justice that alleviate the need to exhaust. Analysing the admissibility jurisprudence of the treaty bodies over the past decade, this section identifies with greater precision where the inconsistencies lie and marks out how an individual-centred, contextual assessment can evolve the future relationship between domestic and international justice.
This section utilises the access to justice framework outlined in Section 6.3 to explore the dynamics of accounting for barriers to justice at the admissibility stage of the individual communications procedure. As mentioned in the introduction, this is a comprehensive review spanning across a decade. It argues that treaty bodies must account for a wide range of domestic barriers and examine multiple pieces of evidence – ranging from failed efforts at legislative reform to domestic criteria for legal aid, to the realities of poverty, gender stigmas and hostility towards refugees – when determining if the individual is required to pursue all available domestic remedies. The specific barrier and the evidentiary demands will be a function of the factual-legal matrix of the communication, but the guiding principle for the exhaustion assessment must be individually and contextually centred.
The assessment must understand how individual personal circumstances and identity characteristics, factors and experiences influence the ability to access domestic justice. The exhaustion assessment must be intersectional and account for how ‘the dynamics of sameness and difference’ across multiple and intersecting vectors shape access to justice.Footnote 52 The assessment should understand how the individual identity, factors and experience is connected to patterns of systemic inequality. Layered upon this, the exhaustion evaluation must also be contextual, taking account, at all levels, of the political, economic and sociocultural realities in which the individual is seeking accountability.Footnote 53 While the treaty bodies are dependent on the information provided by the parties, they can consider that evidence within its context – for example, understanding failure to exhaust in light of political inertia and animus, post-conflict tensions or community stigmas against sexual violence. Treaty bodies ‘must be sensitive to the reality of the dilemma posed by the particular facts’.Footnote 54
These two elements of the proposed approach to exhaustion should not be conceptualised in isolation from each other but should reinforce and inform each other. The exhaustion evaluation must be holistic, seeking to understand who the person is and the realities they face in trying to vindicate breaches of human rights. An individual-centred, contextual assessment does not demand that the individual produces specific pieces of evidence. Rather, it recognises limits that individuals encounter when trying to identify domestic barriers and looks at all evidentiary sources with probative value for illuminating whether seeking domestic justice is actually futile.
In taking an individual-centred, contextual approach, the UNTBs are not undermining the purpose of the exhaustion rule but are fulfilling it by a thorough investigation into whether the domestic system is able to address the alleged breach of human rights. It more fully identifies instances where domestic justice will never have a chance to assess and remedy the wrong and thus does not undermine subsidiarity. Analysing the jurisprudence of the UNTBs, this section demonstrates how this approach can both enrich and provide greater consistency in the exhaustion assessment so that domestic barriers to justice do not frustrate access to international human rights forums.
6.4.1 Justiciability
The exemptions to exhaustion are being used to account for the justiciability dimension of access to justice, but there is evidentiary confusion on how to prove justiciability. There are relatively straightforward cases. For example, NB was subjected to corporal punishment at kindergarten.Footnote 55 The CRC Committee deemed the communication admissible despite the individual not seeking civil remedies, as the state did not recognise corporal punishment as grounding a cause of action.Footnote 56 This is an uncomplicated example where domestic law precludes human rights accountability, but this was not a barrier to accessing international accountability.
Challenges arise in more complex cases. Individuals routinely point to hostile lines of jurisprudence as evidence of non-justiciability. When there is ‘established jurisprudence of the highest domestic tribunals’ that would result in the claim ‘inevitably be[ing] dismissed’, the individual argues the communication should be deemed admissible.Footnote 57 States, however, hold that domestic courts can re-interpret, modify or even overturn law to ensure human rights compatibility. Drawing on the purpose of the exhaustion rule, the state can argue that the UNTBs should not admit communications that prevent the domestic system from redressing the claim. The treaty bodies must determine when the opportunity to internally reform the law is an illusion and identify when there is more than a mere doubt or assumption that a domestic claim will fail. Under the individual-centred, contextual assessment, the treaty bodies must expand beyond looking at domestic case law and examine multiple forms of evidence, such as legislative animus and lack of political will, to determine whether the claim is non-justiciable such that the individual should be exempt from pursuing domestic remedies.
6.4.1.1 Demanding Hostile Jurisprudence
The treaty bodies are more likely to conclude domestic remedies are inaccessible when the individual cites jurisprudence from apex courts that frustrate the ability to litigate the claim.Footnote 58 In Gomaríz Valera v. Spain, the Human Rights Committee (HRC) held ‘when the highest domestic court has ruled on the matter … thereby eliminating any prospect that a remedy … may succeed, the author is not obliged to exhaust’.Footnote 59 Similarly, in FKAG v. Australia, the HRC held that it was not sufficient for the state to argue that there is a ‘possibility’ that the higher courts may ‘someday’ overrule a precedent.Footnote 60 Individuals should not have to expend time, energy and money merely because the state believes apex courts might uphold the individual’s rights.
In Ali v. Norway, a father and a son did not appeal their immigration detention to the Supreme Court, as they argued that the Court had limited competence to review this decision.Footnote 61 The HRC, however, held that there was still a prospect. This conclusion was based on the lower courts expressing doubts on the individuals’ detention. On the surface, Ali appeared to differ from Gomaríz Valera and FKAG, as the state could point to factors to prove that there was a prospect of success within the domestic system. However, applying an individual-centred, contextual assessment destabilises this chance of success. None of the domestic courts gave serious weight to the fact that one of the individuals detained was a child, and the Supreme Court would not have jurisdiction to consider this crucial element of the claim. Moreover, as the dissenting members of the HRC pointed out, there were no positive facts that supported the conclusion that the Supreme Court would find the detention illegal. The Oslo District Court had repeatedly determined there was a factual basis to conclude that the individuals would abscond such that detention was the only option, and this finding was repeatedly upheld by the Borgarting High Court.Footnote 62 The state provided no positive evidence on why the Supreme Court would find differently. States must be given a chance to rectify human rights abuses, but that chance cannot rest on formalistic assessment of the jurisprudence; it must be deeply sensitive to the individual circumstances and the broader context of the jurisprudence.
In DC v. Germany, the CRC Committee also failed to examine the context of the hostile jurisprudence and did not account for insurmountable domestic barriers to children’s access to justice. DC was a sixteen-year-old living in Germany who was prohibited from voting in local elections due to his age. The age limit was unsuccessfully challenged in the lower courts but not in the Constitutional Court of Saarland. DC argued that pursuing a constitutional remedy would be futile as the Constitution of Saarland only protects the right to vote for those over eighteen years old, and the Court would be bound to follow this provision. Moreover, he submitted that the Constitutional Court of Saarland would also rely on the Basic Law of Germany and on the jurisprudence of the Federal Constitutional Court, both of which prohibited those under eighteen from voting. The CRC Committee dismissed the claim, holding that ‘a constitutional motion should not be considered bound to fail simply because of the current constitutional texts and a few general precedents’.Footnote 63 The Committee believed that the Constitutional Court of Saarland should be given a chance to bring domestic law in line with the CRC. The refusal to admit this communication goes to the heart of the purpose of the exhaustion requirement, that is giving the State an opportunity to resolve the alleged breach of human rights. However, the reasoning in DC implies that there is a degree of ambiguity in the constitutional texts that could potentially be re-interpreted by apex courts. Article 38(A) of the Basic Law holds, on a plain reading, that only those eighteen years or older have the right to vote. The explicit limits on the right to vote for children would seem to be a textbook example of a non-justiciability argument and providing the Constitutional Court of Saarland with an opportunity to re-interpret voting laws in line with the CRC would be doomed. Failing to give serious weight to the context of non-justiciability results in the CRC Committee misapplying the burden of proof, undercutting the purpose of the exhaustion rule. DC was forced to pursue a domestic remedy where there was no reasonable likelihood of success and was procedurally prevented from accessing justice at the international level.
6.4.1.2 Contextualising Non-justiciability
A stronger approach is to use the individual-centred, contextual approach to examine multiple pieces of evidence when assessing whether justiciability frustrates domestic accountability as there may not be hostile jurisprudence to use as evidence.Footnote 64 Clearly worded statutes that bar action should be considered strong evidence that the claim will inevitably fail.Footnote 65 The cumulative effect of different sources of evidence for non-justiciability should also be taken into account, such as the failure of the state to implement recommendations from national human rights bodies or expert domestic legal advice that the ‘case would have no reasonable prospect for success’.Footnote 66 The CRPD Committee did this in Lockrey v. Australia.Footnote 67 Michael Lockrey, who was deaf, was informed that steno-captioning would not be provided for jury selection processes and duty. He provided three types of evidence to support his contention that his claim would have a poor chance of success in the domestic courts. First, he cited numerous examples from the case law; second, he mapped out how the State would rebut the claims of disability discrimination in jury service; and third, he obtained legal advice that this rebuttal would likely be accepted by the domestic courts. In light of these detailed arguments, the CRPD Committee concluded there was no obligation to pursue these domestic remedies to access the individual communications procedure.Footnote 68
Two communications are good examples of how to take account of the individual circumstances and macro-contextual factors that underpin non-justiciability. In Ivanov v. Russian Federation, the HRC exhaustion analysis was sensitive to the social and legal culture of homo- and transphobia. Ivanov was denied permission to hold a sexual orientation and gender identity pride parade in Moscow, and his various appeals failed.Footnote 69 In assessing whether the individual should have pursued a final avenue for appeal, the HRC observed that in a six-year period ‘at least 252 public events on lesbian, gay, bisexual and transgender-related topics … could not be organized owing to persistent refusals by authorities’.Footnote 70 Referencing its own Concluding Observations on the Russian Federation, the HRC noted the laws that banned the promotion of non-traditional sexual activity were discriminatory and violated civil and political rights. The HRC concluded that ‘the systematic application of this legislation to lesbian, gay, bisexual and transgender assemblies … and the support of this practice by the courts, in particular the Constitutional Court of the state party, render improbable a successful outcome’ for any further appeals.Footnote 71 The animus to sexual orientation and gender identity equality was correctly used as contextual evidence of non-justiciability entitling the individual for an exemption from the requirement to exhaust.
The strengths of an individual-centred, contextual assessment were also evident in Matson v. Canada, as the CEDAW Committee took full account of the longstanding lack of political will to redress human rights violations.Footnote 72 Indigenous women in Canada were prohibited from passing their Indigenous status to their descendants when they married a non-Indigenous person.Footnote 73 Reforms from 1985, 2011 and 2019 failed to remedy this discrimination. Matson filed an individual communication, but the state responded that he should have pursued a domestic constitutional challenge to the law. A literal application of the exhaustion rule would have required deeming the communication inadmissible, as no domestic court had examined the law in question. However, an individual-centred, contextual assessment reveals the futility of pursuing domestic remedies for discrimination against Indigenous people. Lower courts had found that the previous reform efforts continued to perpetuate inequality, yet this had not prompted the state to fully remedy the wrong. The CEDAW Committee, in fact, observed ‘that three constitutional claims on the same issue resulted in three sets of legislative reforms … that allegedly maintain the provisions that are discriminatory on the basis of gender’.Footnote 74 There was a sustained track record of failing to redress Indigenous women’s inequality. The CEDAW Committee therefore concluded that the communication was admissible as a further constitutional claim would be unlikely to bring effective relief. An individual and contextual analysis highlighted how discrimination against Indigenous people and political inertia intersected with legal accountability. In taking this generous approach to admissibility, the CEDAW Committee did not transgress the purpose of the exhaustion rule, as discrimination in Indigenous status laws had been repeatedly drawn to the state’s attention. When evaluating whether the individual has exhausted domestic remedies, treaty bodies should not only account for obvious black-letter dead ends. Rather, as in Matson, Ivanov and the dissenting opinion in Ali, they should examine the individual circumstances of claimants and the broader context – including the nuances of hostile jurisprudence and the intersection between legal accountability and political animus and inertia – so the exhaustion rule does not cement insurmountable hostility towards human rights accountability.
6.4.2 Availability
The availability element of access to justice has not been extensively examined by the treaty bodies at the exhaustion stage of the admissibility consideration. The one exception is the case of a member of the Tharu Indigenous community in Nepal who had been sexually assaulted. She had not filed a complaint within the statutory time limit because, inter alia, she ‘lived in a rural area where most inhabitants were illiterate’ and thus did not know how to navigate the justice system.Footnote 75 Taking an individual-centred, contextual approach highlights how a range of identity factors, such as race and gender, interact with the larger context of rural disadvantage to create obstacles that make domestic justice de facto unavailable. Inequalities in the state precluded domestic accountability mechanisms from having a chance to consider the claim. A technical application of the exhaustion rule would not fulfil the rule’s purpose but only compound domestic inequalities. The HRC adopted this generous approach and concluded that domestic limitations meant domestic remedies were unavailable. This is an important recognition of both the practicalities of vindicating human rights and of how these practicalities connect to larger patterns of systemic inequality. The HRC’s evidentiary demands furthered an individual-centred, contextual approach to exhaustion, as the individual did not have to provide concrete data on the distance to the police station, transport options or cost of travel, which may be difficult for a poor, rural, Indigenous woman to obtain. There was also no requirement to provide data on the links between literacy and knowledge of the justice system. The evidentiary burden regarding the availability of justice only required sensitivity to the relationship between access to justice, identity characteristics and geographic remoteness.
6.4.3 Accessibility
Under this element of access to justice, the treaty bodies are to assess when the individual is not required to exhaust domestic remedies due to ignorance of the latter’s existence, language barriers, risk of backlash or costs. An individual-centred, contextual assessment gives the treaty bodies the tools to evaluate the accessibility of access to justice in a manner that ensures domestic barriers do not lock the individual out of international accountability.
6.4.3.1 Lack of Awareness
Lack of awareness of domestic remedies should not be automatically fatal to the communication. There are two examples from the jurisprudence where the UNTBs correctly applied an individual-centred, contextual approach to determining if lack of awareness precludes admissibility.
In Suleymanova and Israfilova v. Azerbaijan, when an individual was neither properly charged nor provided with a lawyer, the HRC held there was no obligation to challenge in domestic courts these breaches of his right to a fair trial.Footnote 76 The violations of his rights prevented him from being aware of domestic remedies. Exempting him from pursuing the latter ensured that the exhaustion requirement was not used as a shield to hide the State from accountability when the failure to initiate domestic remedies flowed from the alleged breaches of human rights.
In the second case, Rosanna Flamer-Caldera did not bring a petition for pre-enactment review of reforms that criminalised same-sex sexual activity for women as she was not aware of this mechanism.Footnote 77 Far from blaming her for this, the CEDAW Committee critiqued the non-availability of information on pre-enactment review. Treaty bodies should not accept at face value the state’s claims on the accessibility of domestic remedies. Rather, taking the individual-centred, contextual approach, they should assess how the mechanism operates in practice. Holding Flamer-Caldera v. Sri Lanka admissible was consistent with the purposes of the individual communications procedure, as it gave the CEDAW Committee an opportunity to condemn the criminalisation of same-sex sexual activity for women – a significant evolution in international human rights law for the recognition and protection of gender and sexual orientation equality. At the same time, admitting Flamer-Caldera also did not offend the exhaustion rule, as the Supreme Court of Sri Lanka was prohibited under the Constitution from reviewing enacted legislation, so there was no possibility for a court to assess the law after it was passed.Footnote 78 The only accessible mechanism was the obscure pre-enactment review: not using it did not preclude admissibility.
6.4.3.2 Linguistic Barriers
There is only one communication whose author raised linguistic barriers as an explanation for failing to exhaust. AP, a Russian national, was unable to appeal the State’s decision to deport him to a country where he faced a risk of torture, as he did not have a lawyer and did not speak Finnish. Thus, he was unable to submit the necessary paperwork in the required language. The CAT Committee found that the inability to participate in the legal process due to linguistic barriers alleviated the need to pursue an appeal before the Supreme Administrative Court.Footnote 79 Future admissibility assessments regarding language and access to justice should follow in the path of AP v. Finland.
6.4.3.3 Backlash Risk
Seeking to vindicate human rights can expose individuals to severe social backlash, loss of employment, deportation, retaliation, criminal liability and even violence. For example, Maharjan was apprehended by the army and tortured. Upon release he did not make a claim within the statutory time limits as he went into hiding fearing reprisals. Using the individual-centred, contextual approach, he cited the CAT Committee’s Concluding Observations against Nepal and several Amnesty International reports as evidence of the legitimacy of his fears of further state violence.Footnote 80 Given the danger in pursuing remedies, there was no obligation to exhaust. This is also a good example of how the treaty bodies’ own work can provide the necessary context and evidence in which to assess exhaustion.
Backlash for championing human rights claims, however, does not always entail the high degree of severity seen in Maharjan v. Nepal. The treaty bodies must determine at what point backlash places the individual in a position of vulnerability that negates the obligation to seek domestic remedies. This subsection argues that the individual-centred, contextual assessment requires the treaty bodies to take account of either acute legal and sociocultural backlash or the risk of such backlash that the individual can prove beyond mere doubt or assumption.
This approach to the exhaustion analysis ensures that individuals do not have to pursue domestic remedies that will have negative legal repercussions.Footnote 81 An example can be seen in the HRC communication regarding Benattia Zerrougui, who was forcibly disappeared in 1995 by the Algerian state defence and security services. Anyone making an allegation against these actors was legally liable to prison and a substantial fine. The HRC concluded that Zerrougui’s brother, who initiated the communication, did not have to undertake these risks to access the individual communications procedure.Footnote 82 In another communication against the Russian Federation, Kesmatulla Khakdar did not have a legal right to reside in the state but had married a citizen.Footnote 83 The State argued he should have pursued a legal right to reside on the basis of his marriage. This, however, would have required him to leave Russia and to return to his country of nationality, namely Afghanistan. There was no guarantee that he would be allowed back into the Russian Federation once he had left it, and he would have been at risk of ill-treatment by the Taliban regime. The HRC held he was not required to pursue this remedy. In Yaker v. France, Yaker was convicted for wearing a ‘garment [the niqab] to conceal her face in public’.Footnote 84 She only raised her human rights claims at the appeal stage. The state argued that to exhaust domestic remedies, she should have raised these claims in the first instance. Yaker pointed out that she tried to attend the initial proceedings but was arrested and fined again for refusing to remove her niqab for a security check. The HRC concluded that where it would be a criminal offense to pursue a domestic remedy, there is no requirement to exhaust.
In all of these communications, the individuals could refer to specific elements of the legal architecture of the state to substantiate the argument that backlash should exempt them from the requirement to exhaust. This deeply contextual understanding of the state’s domestic system does not offend the exhaustion rule, as domestic law prevents state institutions from addressing the alleged breach of human rights. A strict requirement to exhaust would be useless and place the individual in a position of extreme vulnerability. Zerrougui, Khakdar and Yaker are the straightforward communications in this regard. Nakawunde v. Canada, a decision by the CAT Committee, is more challenging. This communication also highlights that an individual-centred, contextual analysis cannot examine the elements of access to justice in isolation from each other. Nakawunde, who was not represented by counsel, did not appeal the decision to deport her to Uganda as she was ‘afraid of being detected by Canadian authorities’.Footnote 85 UN actors have warned that asylum-seekers are often afraid that state officials will deport them and are reluctant to engage in any part of the justice system.Footnote 86 The CAT Committee was unsympathetic to these fears. It held that the author had not exhausted domestic remedies as there was a scheme in the state which would defer the deportation while the appeal was pending. The treaty body failed to show awareness of how her identity characteristics, particularly her migration status, created availability and accessibility hurdles to justice. While the state may have mechanisms in place to mitigate legal backlash, making it seem feasible for the individual to pursue domestic remedies, this surface-level analysis fails to account for how backlash and lack of knowledge are connected to the individual’s status as an asylum-seeker. Nakawunde explained that she did not know of this deferral scheme. It is not difficult to surmise how an asylum-seeker, who is afraid of deportation and does not have a lawyer, is unaware of the complexities of the domestic legal system.Footnote 87 It is also incumbent on the treaty body to consider whether her lack of awareness was connected to her fears of backlash and her immigration status. The CAT Committee’s assessment failed to grasp these lived realities. An individual-centred, contextual approach, however, brings to the fore these nuances and highlights how those with intersecting identity characteristics face multiple hurdles to accessing justice.
The proposed approach to the exhaustion rule would also account for other non-legal repercussions. The treaty bodies have not reflected on the degree of social or economic risk that should alleviate the need to exhaust, or how individuals can demonstrate these types of risks. A recent communication indicates how this could develop. In the context of a prolonged period of armed conflict, a Nepalese woman was unable to file a report of sexual assault within the statutory time frame. She did not seek justice as there was social stigma towards victims of sexual violence. She unsuccessfully appealed to have the time bar removed. Given the gravity of the alleged breaches of human rights, the HRC accepted, without requiring detailed evidence, that there was a practical limitation to pursuing domestic remedies.Footnote 88 This is a good example of an individual-centred, contextual assessment in practice. It establishes that other forms of backlash impact the ability to exhaust. The HRC did so by paying attention to the individual’s identity characteristics, gender and the context of post-conflict and social stigma against sexual violence. Such a broad and holistic assessment of the relationship between backlash and exhaustion should be carried forward in the jurisprudence.
6.4.3.4 Costs
Legal proceedings invariably entail costs. As in cases of backlash, the treaty bodies must determine if there is a tipping point where costs preclude accessibility to the point of alleviating the exhaustion criteria. There is a line of decisions from the HRC, CEDAW, CRC and CERD Committees which have held that ‘the author’s weak financial situation in itself … does not absolve her from’ challenging alleged violations of human rights.Footnote 89 In Sacchi, the CRC Committee gave no real consideration to how young people could fund the costs of climate change litigation and just blithely assumed legal aid was available for this type of legal claim.Footnote 90 This stringent position, which is anathema to the individual-centred, contextual assessment, is oblivious to the relationship between socioeconomic status and access to justice. Failing to account for the economics of domestic accountability limits international justice to those who can afford to access domestic justice. This further marginalises low- and moderate-income individuals, who are often women, children, disabled persons and members of racial and ethnic groups. An individual-centred, contextual assessment, however, would pay close attention to how income poverty relates to identity characteristics and how that interacts with the structures of the justice system. The strict approach of the treaty bodies also does not further the core aims of the exhaustion rule. Domestic courts never have an opportunity to adjudicate on a claim when the domestic system places severe economic hurdles in the way of the individual. A rigid assessment of the relationship between costs and exhaustion will only entrench zones of impunity for human rights violations.
There is an emerging understanding of how costs can impede access to justice. The HRC, CEDAW, CERD and CAT Committees have hinted that if individuals explain why it would be unreasonable to expend resources to pursue domestic remedies, they could be absolved from fulfilling the exhaustion criteria.Footnote 91 There is jurisprudence fleshing out how to demonstrate financial unreasonableness, although it is inconsistent. The proof of the cost of pursuing proceedings – such as financial data on the de facto resources under the individual’s control, the rates of legal fees and the availability and eligibility criteria for legal aid – should be satisfactory evidence, under an individual-centred, contextual assessment, that costs block achieving domestic justice beyond a mere doubt or assumption.
Turning first to the cost of pursuing proceedings, MG’s application for asylum in Switzerland was rejected. He was unable to pursue an appeal, and he filed a communication with the CAT Committee. MG, as an Eritrean asylum-seeker, was not permitted to work and relied exclusively on social welfare. The evidence indicated that during the relevant time, MG received between ten and fourteen francs per day. He did not have the resources to pay the fees of 600 francs to access the Federal Administrative Court. The CAT Committee concluded that since MG was ‘destitute’, it would be unfair and unreasonable to require him to pursue all domestic remedies.Footnote 92 Similarly, in Abdulkarim v. Switzerland, the CAT Committee held that it would be unfair for a Sudanese asylum-seeker to pay the legal application fee of 1,200 francs when the individual was not authorised to work and only received five francs per day from the State.Footnote 93 Given these dire financial circumstances, the CAT Committee held there was no obligation to appeal the deportation decision before the Federal Administrative Court. The evidence before the treaty body readily demonstrated that the mathematics of income and legal fees created insurmountable barriers to justice. Under an individual, contextual assessment, however, the treaty body could more fully engage with the economic accessibility. It is the intersection of poverty, race and migration status with the structures of the social welfare system and the justice system that denied MG and Abdulkarim access to domestic accountability. The exhaustion criteria should fully account for the totality of these obstacles.
An individual-centred, contextual assessment does not require that everyone who lives in poverty be able to provide sophisticated financial data. In a communication to the CRPD Committee, ANP argued he was entitled to a rebate on his municipal taxes as he was a disabled person on low to moderate income. He explained his income was 600 rand per month, while a South African lawyer charged between 2,000 and 3,000 rand per hour. The CRPD Committee characterised ANP’s costs arguments as ‘of a general nature’.Footnote 94 While this assessment of finances and costs was simple, it did reveal a significant obstacle. A more promising way forward comes from the HRC. A child was forced into domestic work due to his family’s financial precarity. His employers accused him of theft. He could not afford bail, was detained in an adult prison, where he was tortured, and ultimately, he was convicted. The HRC held that appealing the verdict would have been a ‘significant financial burden he could not afford due to his economic status’.Footnote 95 The extent of the burden was not evidenced through financial statements but through the individual’s identity characteristics as a young, convicted person who lived in poverty.
An individual-centred, contextual analysis also enriches the exhaustion analysis when access to legal aid is at stake. The CRPD Committee has criticised individuals for not taking any steps to obtain low-cost or free legal aid.Footnote 96 This assumes that the legal aid system is adequately funded. The CEDAW Committee in Matson v. Canada examined the funding model of legal aid programmes, as the state argued that the Indigenous low-income individual should have funded constitutional litigation through the various pro bono and legal aid schemes. It concluded that these schemes did not have sufficient funding.Footnote 97 Scrutinising the legal aid system revealed a chronic lack of funding, and as such, there was no requirement for the individual to secure it and pursue domestic remedies. This stands in contrast to Sacchi v. Argentina where, although it is not clear whether the individuals offered any explanation as to costs, the CRC Committee seems to have accepted at face value the sufficiency of legal aid. A more generous approach to costs, legal aid and the requirement to exhaust would identify how the design of legal aid can cement barriers to domestic justice, particularly for disadvantaged groups.Footnote 98 For example, NB and MWJ decided not to pursue domestic remedies on restrictions placed on the UK’s disability support fund, arguing that the remedies were ‘prohibitively expensive’.Footnote 99 At the admissibility stage before the CRPD Committee, the state argued NB and MWJ should have sought out legal aid. An individual, contextual assessment would bring to the fore gender and disability biases embedded in the structures of legal aid. MJW’s husband’s earnings would be included in the eligibility assessment, furthering assumptions on gendered economic dependency, and the assessment did not account for how much of their earnings were expended in relation to their respective disabilities. Various UN actors, as canvassed in Section 6.2, warned against this type of indirect discrimination in legal aid. The CRPD Committee applied a formalistic approach to the exhaustion requirement and deemed the communication inadmissible as NB and MWJ had not attempted to apply for legal aid.Footnote 100 A more sophisticated approach to exhaustion would identify how the individual circumstances of MWJ and NB interacted within a larger context of gender and disability inequality that had filtered into the design of the legal aid system. This would have revealed the significant economic barriers to accessing domestic justice. Udombana warns that the exhaustion rule should not focus on ticking boxes, as the ultimate point of the exhaustion rule is to ensure the most appropriate body redresses the ‘wrong suffered’.Footnote 101 Forcing individuals to be rejected from legal aid so the treaty body can formally conclude remedies have been pursued loses sight of the ‘raison d’être of the rule’.Footnote 102
In contrast to the CRPD Committee, a dissenting opinion from the HRC in NE v. Denmark and a majority opinion of the CRC Committee in AS v. Denmark placed the individual at the centre of the cost-exhaustion analysis. In both communications, the individual was rejected from legal aid schemes, but due to the high costs of legal proceedings, there was found to be no obligation to pursue remedies they could not afford.Footnote 103 Uniting these communications is a deep appreciation that the individuals were minors and thus less able to secure resources outside of the legal aid system. Using the individual-centred, contextual assessment, the UNTB should examine how the individual’s circumstances – for example being a minor, disabled or from a racial minority – relate to contextual institutional structures, such as the design of legal aid and the costs of remedies.
6.4.4 Good Quality
The final elements of access to justice – good quality and ineffective remedy – directly connect to the textual exemptions in the conventions and optional protocols and have been explored in various commentaries.Footnote 104 The first is an acknowledgement that the lack of quality of the domestic justice system can frustrate the individual’s ability to meet the admissibility criteria. The most common quality issue is delay. This was unsuccessfully pleaded in Sacchi v. Argentina. However, despite the backlogs in courts, exacerbated by COVID-19, and the fact that novel and complex environmental claims can take decades to resolve, the CRC Committee held there was an effective remedy that the individuals should have pursued.Footnote 105 An individual-centred, contextual analysis can spotlight these larger contextual factors and ensure domestic delay does not preclude access to international accountability. As evidence of treaty body inconsistency, the CRC Committee, in relation to a different factual-legal matrix, was able to identify how individual identity characteristics and larger contexts should shape the exhaustion analysis. Within a two-year period, the state had not resolved disputes about a child’s primary school registration. While on its face, two years is not an excessive period of time, it is significant in the context of a child’s access to school, as the right to primary education for a minor must be realised immediately.Footnote 106 The CRC Committee therefore deemed the communication admissible. The larger political context was also relevant in Abaida v. Libya, a decision by the CEDAW Committee. Abaida had been repeatedly beaten, arrested and detained due to her campaigning for women’s rights, but filing a complaint ‘generated only an acknowledgement of receipt’.Footnote 107 The failure to investigate ‘coincided with the breakdown of the rule of law in Libya’.Footnote 108 Despite there being no domestic investigation, the CEDAW Committee held, in light of these circumstances, that it was not precluded from considering the merits of the claim.
Individuals have also challenged the impartiality of the domestic justice system. Again, the treaty bodies adopted an individual-centred, contextual analysis, examining multiple pieces of evidence, to assess if the quality of the domestic remedies exempted the individual from pursuing them. For example, in one case, the HRC decided that international and civil society reports on the lack of independence of the Sri Lankan judiciary meant there was no requirement to pursue a remedy to the apex court.Footnote 109 In another communication against Cameroon, a journalist covering a South Cameroon separatist movement was arrested and tortured numerous times. He argued that the judiciary would not provide effective remedies to individuals involved in the independence movement. In this communication, the state brought evidence of separatists charged with similar offences who had had their charges dismissed by the courts.Footnote 110 Examining all of the evidence, the HRC concluded the accusations of bias were presumptive and unsubstantiated, and that the accusations of impartiality amounted to mere doubt or assumption. This communication is an important reminder that an individual-centred, contextual analysis does not inherently mean the communication is admissible, but it does provide the treaty bodies with a fuller, more detailed picture when coming to a determination on exhaustion.
6.4.5 Ineffective Remedy
The treaty bodies do assess whether the domestic remedy is effective. For example, when the accountability body does not have the competence to order a remedy that addresses the breach of human rights, there is no requirement to initiate any action before that body. The same applies if the remedy does not address the underlying breach of the right. In Sacchi v. Argentina, the individuals argued there were no domestic remedies that could effectively address the international elements of the climate crisis, but the CRC Committee disagreed that domestic remedies would be unable to address international cooperation.Footnote 111 A remedy is ineffective if the time limit for obtaining a remedy is too short. Although in theory, thirty-five days might be ample time to seek a remedy, an individual-centred, contextual assessment, as done by the HRC, revealed the individual could not use the remedy as they had been hospitalised for months after being tortured.Footnote 112 Determining whether a remedy is ineffective or not is enhanced through an individual-centred, contextual assessment, as the likelihood that the remedy will bring relief requires an understanding of on-the-ground realities that could help or hinder implementation of domestic remedies.
6.5 Conclusion
There is a plethora of reasons why individuals fail to bring their claims before domestic accountability bodies. Many of these reasons are rooted in systemic inequalities. Accountability via the individual communications procedure may be the only chance of vindicating grievous violations of human rights. Although little attention has been paid to the exhaustion criteria for admitting individual communications, the application of this rule can either compound the systemic failures of domestic justice, or it can acknowledge the lived experience of individuals. This chapter argues that a non-technical approach to exhaustion is required to both fulfil the purpose of the individual communications procedure and the goals of the exhaustion rule, and proposes an individual-centred, contextual approach be adopted. A generous approach should spillover into the evidencing of the domestic barriers to justice that frustrate the exhaustion rule. The UNTBs should not demand impossible proof from individuals but take into account how evidence can be shaped by identity characteristics, domestic structures and larger sociopolitical contexts.
7.1 Introduction
In the earliest individual communications considered by the Human Rights Committee (HRC or Committee) in relation to breaches of the International Covenant on Civil and Political Rights (ICCPR),Footnote 1 there was little guidance on evidentiary burdens. Over the past four decades of reviewing individual communications, the HRC has developed greater consistency when allocating the burden of proof, particularly in relation to claims of torture. This development makes a unique case study for the consideration of evidence in torture claims, as these are rarely raised in isolation before the HRC. Unlike claims before the Committee against Torture (CAT), the HRC monitors a range of interrelated human rights that expand beyond the prohibition against torture. Allegations of breaches of other rights, such as the right to liberty and security of a person, often foreground torture allegations when raised before the HRC. In claims of torture while in the custody of the state, individual claimants, referred to as ‘authors’ in the treaty body system, and the state are generally on unequal footing in terms of accessing corroborative or exculpatory information. As such, the HRC tends to shift the burden of proof to the state as a means of addressing this asymmetry.
This chapter aims to assess whether the HRC’s practice of shifting the evidentiary burden between the author and the state is consistent and traceable in the Committee’s decisions on individual communications, known as ‘final views’. The grounds on which this shift is made merit consideration: notably, the nature of the allegations, the evidence used to corroborate the allegations, and the extent to which the state engages with the process seem to impact the articulation of the shifted burden in certain cases. For example, in Maya v. Nepal (2017), a particularly egregious but not isolated case, the author alleged that she was beaten and gang raped by officers of the Royal Nepalese Army for being a suspected Maoist supporter.Footnote 2 Based on the alleged conduct by state actors, she claimed violations of multiple rights protected by the ICCPR, including breaches of the prohibition against torture or other cruel, inhuman or degrading treatment (CIDT) (Article 7), the right to liberty and security of person (Article 9) and the right to be free from inhuman treatment in detention (Article 10 (1)), among others. The core of Maya’s claim was grounded in the state’s failure to investigate her claims of torture while being held in an informal place of detention, despite her submission of supporting evidence to the local police. The evidence provided at the local level and to the HRC included detailed witness statements, medical records and legal documents.Footnote 3 In response to the claim before the HRC, Nepal indicated that ‘the Royal Nepalese Army had no record of the author’s detention’.Footnote 4 In its consideration of the merits, the HRC ‘recall[ed] that the burden of proof cannot rest on the author of the communication alone, especially since the author and the State party do not always have equal access to the evidence and it is frequently the case that the State party alone has the relevant information’.Footnote 5 Following a finding that Nepal had breached the prohibition against torture, the HRC went on to discuss the breach of the right to liberty and security of a person. In response to the State’s suggestion that the author failed to evidence her allegations relating to detention in the army barracks, which opened up the circumstances under which she was subsequently tortured, the Committee noted that ‘requiring victims of arbitrary and illegal detention to provide records thereof would amount to a probatio diabolica [devil’s proof]’.Footnote 6
In law, probatio diabolica denotes a proof which cannot possibly be achieved, meaning an impossible proof. In judicial proceedings, whenever such a proof is expected from a party, the latter will by definition not be in a position to bring it. The only remedy against this situation is for the adjudicatory body to shift the burden of proof onto the other party. In effect, if such a shift is operated, a presumption arises in favour of the party originally expected to prove their claim. This presumption will stand unless the party to which the burden has been shifted rebuts it with exculpatory proof. The framing of the burden of proof in the Maya case is interesting because the HRC’s approach to establishing or balancing burdens of proof has not always been self-evident. The HRC has long recognised that the authors and states parties to the ICCPR will not always have equal access to evidence. However, there has been little attention paid to the base levels of evidence required to support a higher burden being placed on the state to disprove an alleged violation of the ICCPR. More reflection, too, is necessary on the ways in which a state’s participation or non-participation in the individual communications process shapes any potential shift of the evidentiary burden.
The analysis presented below interrogates the types of evidence that are required from the author to shift the burden of proof to the state to disprove allegations of torture in violation of the ICCPR. As Joost Pauwelyn has explored previously, the ‘burden of proof’ can be separated in a number of ways, including by distinguishing between the burdens of, respectively, ‘production’ (referring to the evidence a party is expected to submit) and ‘persuasion’ (referring to the risk of losing the case for lack of having properly evidenced it).Footnote 7 While his work examines defences in more complex international claims, here the term ‘burden of proof’ absorbs both concepts for simplicity in the cases raised before a treaty body. A more complete understanding of the operation of the burden of proof in cases before the HRC is important, as treaty bodies shape the outer edges of human rights interpretations in response to the broad range of individual communications they review. In the context of what the HRC is doing in the cases examined, it appears to be developing a (increasingly) consistent practice of adjusting evidentiary burdens as a means of overcoming information asymmetries resulting from the inaccessibility of either inculpatory or exculpatory information. To effect this burden shift, the HRC appears to follow the following steps when assessing claims of a breach of the prohibition against torture or CIDT: (1) the allegations must be corroborated by some level of evidence; (2) the HRC applies a rebuttable presumption that the author’s alleged facts are true; unless (3) the state offers evidence in direct response to the specific allegations of torture or CIDT. Tilmann Altwicker and Alexandra Hansen recently elaborated the main functions that presumptions serve in human rights adjudication, including: ‘(1) overcoming information asymmetries or the inaccessibility of information, (2) helping to bridge general facts and the legal assessment in individual cases, and (3) helping to avoid normative conflicts between legal regimes’.Footnote 8 The first of these functions, overcoming information asymmetries and inaccessibility of information, resonates with the practice of the HRC. Across the claims assessed by the HRC, the presumption is applied where the access to relevant inculpatory or exculpatory evidence is unequal and the state is in the stronger position to access such information. The presumption applied by the HRC also helps address the summary nature of the final views, where a complete account of the evidence presented is not available, but only summarised in the public decision. This reflects the second function of presumptions outlined by Altwicker and Hansen, as the presumption ‘function[s] as a secondary rule on secondary rules of adjudication when they are applied in the context of uncertainties in fact-finding’.Footnote 9 It is suggested here that the presumption employed by the HRC aids in both overcoming information asymmetries and bridging general facts and the ultimate legal assessment.
This chapter will contextualise the situations of evidence burden shifting as they occur in torture claims before the HRC. First, Section 7.2 will briefly explain the individual communications underpinning this analysis. In Section 7.3, the burden of proof in the HRC individual communications procedure will be discussed in the context of (in)equality of access to information and how this sets the stage for the burden of proof to be transferred from the author to the respondent state. It will outline how equality of access to information underpins the concept of equality of arms, which is defeated by state non-participation. Section 7.4 then traces the HRC’s approach to burdens of proof and non-participation by states in cases where a breach of the prohibition against torture is alleged. The aim is to discern patterns in the allocation of evidentiary burdens, as indicated by a presumption being established in favour of the complainant. Section 7.5 offers some final reflections on the ways in which the practice of the HRC has coalesced when faced with information asymmetry and the need to bridge facts and legal assessment.
7.2 Brief Explanation of the Cases Sampled
Under the Optional Protocol to the ICCPR (OP-ICCPR) individuals may raise before the HRC a claim, in writing, that any right set out in the ICCPR has been violated as long as the individual has exhausted all domestic remedies and complies with other procedural requirements.Footnote 10 Notably, consent to the HRC’s review of individual communications is an elective, additional obligation on the state that sits adjacent to obligations arising through the ICCPR. States parties to the OP-ICCPR have six months to explain or clarify the matters raised in a claim, including any remedies delivered at the domestic level, once the Committee has notified the state of the complaint.Footnote 11
This chapter is based on a review of HRC decisions concerning alleged breaches of Article 7 of the ICCPR, which lays down the prohibition against torture or CIDT (the prohibition). Focusing on torture claims is interesting given the extensive codificationFootnote 12 of the prohibition in international law, as well as its recognition as both a rule of customary international law and an inviolable peremptory norm.Footnote 13 Exploring the prohibition under the ICCPR, rather than the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, enables the breach of the prohibition to be understood in the context of other human rights violations addressed in the extensive jurisprudence of the HRC. Furthermore, within the ICCPR system, as explained below, torture is often the consequence that follows the breach of another civil and political right, such as interference with the right to liberty and security of person (Article 9 ICCPR). The content of the prohibition as a norm is constantly evolving in the distinctive treaty regimes. This evolution has the potential to influence the development of the prohibition’s interpretation as both a treaty obligation and a customary rule of international law, which is generally assessed through state practice.Footnote 14 In light of the connective value between treaty interpretations and the progressive development of customary international law, the analysis below relies explicitly on the language deployed by the HRC to address evidentiary burdens in situations where the state does not participate, either fully or partially, in the individual communications process.
The cases underpinning the analysis provided in this chapter were selected using the following process. First, the Office of the High Commissioner for Human Rights (OHCHR) Juris Database was searched using the term ‘forced confession’ in conjunction with Article 7 (prohibition against torture), Article 9 (right to liberty and security of person) and Article 14 (right to fair trial) of the ICCPR (ninety-one results).Footnote 15 The process was repeated using ‘solitary confinement’ in conjunction with the same articles (forty-four results). These cases are premised upon the author being detained, legally or not, and the state using detention as an opportunity to force a confession or to punish the detainee.Footnote 16 As detention triggers an obligation for the state to keep records, these cases serve as a good basis for discussing the impact of the state’s lack of participation in the individual communications process. This set of 135 cases was narrowed down through the elimination of cases that were either about non-refoulement or predominantly related to psychological suffering arising from the enforced disappearance of a family member. These would not have been helpful for examining the question addressed in this chapter, since non-refoulement cases are not claims of torture by the state that is party to the claim, but relate to the potential for torture if returned to another state. As such, the access to evidence about the detention or treatment of the individual author typically is not accessible by the defending state. Claims raised for psychological suffering arising from the enforced disappearance of a family member were excluded, also, because the psychological torture in these cases is an indirect effect of the state’s alleged actions against another individual. Notably, however, some enforced disappearance cases are used to set out the original understanding of evidentiary burden shifting presented in Section 7.3. Narrowing the field to the two items of forced confessions and solitary confinement ensured that the research, although non-exhaustive, would be manageable, as well as broadly comparable in the forms of evidence that could be expected to be offered.
The set of cases was reduced yet further by only keeping decisions that included one (or more) of the following phrases, which indicated that the respondent state did not fully engage with the communications process: ‘failure to refute allegations’, ‘absence of any convincing explanation’, ‘failure to contest’, ‘has not commented on allegations’, ‘absence of information’, ‘failure to provide information’ and ‘failure to provide a response’. This narrowed focus aids in tracing the shifting of the burden of proof in communications alleging a breach of the prohibition against torture. The result is that Section 7.4 is based on an analysis of twenty-six HRC final views.
7.3 The Burden of Proof in the Individual Communications Procedure
This chapter focuses on claims that have cleared the initial admissibility determination by the HRC. Among other information required to access the OP-ICCPR dispute settlement mechanism, communications must include ‘[t]he facts of the claim and evidence to substantiate them’ (emphasis added).Footnote 17 This suggests that the HRC, like other dispute settlement bodies, requires more than a narrative of alleged facts. Typically, the extent to which the author must prove the alleged facts is referred to as the burden of proof. Notably, unlike traditional courts, the publicly available decisions in the HRC individual communications procedure provide only a summary of the written exchanges between the individual and the state, which can obscure the evidentiary support for claims.
The burden of proving allegations links to the right to fair trial. In General Comment 32, the HRC explained that the right to fair trial (Article 14 ICCPR) requires that both sides of a dispute are ‘given the opportunity to contest all arguments and evidence’.Footnote 18 It is a rights-protecting requirement to ensure equality of arms of the author and the respondent. As explored elsewhere, equality of arms in international law does not require ‘mathematical equality’, but rather a proportional opportunity to substantiate or rebut claims in order to uphold the substance of the right to fair trial as interpreted under the ICCPR.Footnote 19 Notably, most of the discussions relating to this aspect of fair trial play out in the context of international criminal law or regional human rights courts’ analysis of domestic criminal prosecutions. The foundation for equality of arms is rooted in these examinations of what information the state might hold about a defendant in the criminal justice system. In such examinations, the defendant is being prosecuted for breaching the laws of the state. There is a concomitant obligation on the state to reveal any evidence in its possession that may exculpate the defendant.Footnote 20 The overarching aim is to ensure that the conditions relating to the presentation of the case, including any available evidence, do not place any party at a disadvantage vis-à-vis their opponent.Footnote 21
As a preliminary matter, it is important to recognise that within the range of activities that give rise to a breach of the torture prohibition, some granularity is required in consideration of the specific actions alleged and the particular status of the victim. The analysis below will focus on two types of claims: forced confessions and torture as punishment of alleged criminals, including political dissidents and alleged terrorists. Some of the cases, unsurprisingly, will traverse both types of claims. However, the analysis will focus on the key evidence features relevant to the HRC’s decision on the merits. The different approaches to balancing burdens of proof in the two types of claims will be addressed in turn in Section 7.4. First, however, the sub-sections below will offer a brief explanation of the HRC’s teleological treatment of evidence across the decades of its operation, as well as a comment on non-participation by states in the individual communications process.
7.3.1 Evidentiary Burdens in Cases of Torture Addressed by the HRC: Brief Teleological Review
In its early reviews of alleged violations of Article 7 (prohibition against torture), the HRC did not explain the process it used for weighing evidence. The Committee, however, noted that the victim’s and the state’s access to evidence substantiating or disproving a claim of torture was typically unequal. In the 1982 case of Bleier v. Uruguay, the HRC explained that this lack of equality necessitated shifting the burden of proof to the state:
With regard to the burden of proof, this cannot rest alone on the author of the communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to relevant information.Footnote 22
Two years later, in the case of Weismann and Perdomo v. Uruguay, Uruguay acknowledged that it had detained the complainants, but it dismissed the claims of torture as ‘figments of the author’s imagination’.Footnote 23 The HRC confirmed that it was up to the State to offer alternative explanations as a means of disproving the author’s detailed allegations of torture while in detention – claims which were supported with medical documentation.Footnote 24 When Uruguay did not offer an alternative explanation, the HRC found a breach of the prohibition against torture and CIDT.
During the 1980s and 1990s, the HRC had the occasion to review many communications in relation to enforced disappearances, torture and other forms of prohibited treatment. Over the years, the Committee refined its evidentiary burden placement into a formula. This expressly recognises that while the author holds the initial burden of proof, certain types of evidence – either implicatory or exculpatory in nature – will be held by the state. In such circumstances, the burden must shift to the state ‘to provide a satisfactory and plausible explanation supported by evidence’.Footnote 25 While there has been no explicit guidance on what amounts to a ‘satisfactory and plausible explanation’, the HRC noted in Khadzhiyev v. Turkmenistan (2018) that ‘[i]f a death occurs in custody, it should be regarded prima facie as a summary or arbitrary execution, unless this presumption can be rebutted by a thorough, prompt and impartial investigation’.Footnote 26 In this particular case, the author had alleged that his sister, Ogulsapar Muradova, had died in state custody as a result of torture and ill-treatment, among other violations of the ICCPR. The evidence offered to the Committee included the personal, detailed observations of Muradova’s body post-mortem, which strongly indicated torture and ill-treatment.Footnote 27 In its consideration of the merits, the HRC found that Turkmenistan’s suggestion that Muradova committed suicide was not supported by any evidence. The State had also not presented any evidence of an investigation into her death that might have rebutted the allegations that she had died as a result of torture.Footnote 28
As made clear by the HRC, the evidentiary shift stems from the onus on the state to take responsibility for the lives of individuals whom it takes into custody.Footnote 29 Part of the responsibility of the state when detaining individuals is the keeping of accurate records, including the legal basis for the original and ongoing detention, the treatment of the individual while in detention and the responses to any allegations of ill-treatment while in detention.Footnote 30 Withholding information about the individual during their time in the custody of the state deprives that individual of equality of arms with the state.Footnote 31 As noted in the Maya case introduced above, the HRC demands that when ‘the author has presented a credible case as to her detention … requiring victims of arbitrary and illegal arrest and detention to provide records thereof would amount to a probatio diabolica’.Footnote 32 The HRC’s use of ‘devil’s proof’ is a compelling framing of the evidentiary burden in the Maya case, where the author had presented detailed, multi-fold allegations of arbitrary detention and torture by members of the Royal Nepalese Army and Armed Police Force. The HRC’s approach in Maya suggests that any burden amounting to ‘devil’s proof’ should be examined carefully to ensure that no party bears an illogical burden. It is sufficient here to acknowledge that use of ‘devil’s proof’ by the HRC in the context of burden shifting appears to resonate with other human rights bodies and warrants a closer examination to better understand such shifts.Footnote 33
Across the different cases examined here, the Committee appears cognisant of the necessity for the teleological interpretation of the prohibition to draw a clear baseline for treatment that states parties should not cross. A question arises, however, in discerning where the facts actually lay in the context of proof of torture when the state fails to participate effectively in the proceedings. Section 7.3.2 considers non-participation in the context of individual communications procedures before the HRC.
7.3.2 Non-participation and Burdens of Proof in Final Views
Consent to the OP-ICCPR individual communications procedure is an additional, voluntary step that each state party must unilaterally elect to take. However, even though states choose to subject themselves to this procedure, this does not ensure that they will necessarily participate in actual proceedings. In claims of torture, decisions finding states in breach of the prohibition often result from the state’s failure to participate in the proceedings. In such cases, states either fail to directly respond to the shifted evidentiary burden or do not participate at all in the proceedings, which permits the author’s allegations to lay uncontested. Common approaches in the deployment of secondary rules of law for non-participation in international dispute settlement proceedings recently were examined by Christopher Lentz, including in relation to the individual communications proceedings by the UN treaty bodies. In addition to the International Court of Justice (ICJ), the Permanent Court of Arbitration and the International Tribunal on the Law of the Sea, Lentz reviewed the HRC, the CAT and the Committee on the Elimination of Discrimination against Women and their approaches to non-participation in the course of assessing individual communications.Footnote 34 As explained by Lentz, the analysis was based on a non-exhaustive review of the three human rights treaty bodies as a means of discerning similarity or divergence in practice across the range of adjudicatory mechanisms. By contrast, this chapter narrows the focus to the HRC and explores whether there is a consistent pattern in the way this body determines claims of torture when the respondent state fails to participate in the proceedings or does not specifically rebut the facts underpinning the claim of torture.
In cases of non-participation, Lentz suggests that one must rely on the constitutive documents of a dispute settlement body to ascertain how far the adjudicator might go to determine a claim.Footnote 35 Similarly, relying on its competence-establishing document, the OP-ICCPR, the HRC must review ‘all information made available to it’ without setting a minimum threshold for what the state must present in response to an author’s claim.Footnote 36 From the perspective of the state, participation affords the opportunity to defend itself against claims of human rights violations. Even if the state holds evidence confirming the facts alleged, opening discussions with the HRC about gaps in implementation or practice would direct the HRC’s attention to the specific circumstances. This type of bilateral dialogue is a key purpose of the treaty bodies.Footnote 37 Provision of specific evidence could also guard against broader assumptions about the state’s adherence to its treaty obligations or the state’s general approach to implementation of the treaty.
7.4 Examining the Burden of Proof Across Two Foci
In the HRC’s earliest reviews of individual communications, some states dismissed the efforts of the Committee in its quasi-judicial pursuits, deeming its requests for information on allegations of torture as ‘not worthy of any further comment’.Footnote 38 Undeterred, the HRC set out that where a government refuses to furnish information in response to allegations under the OP-ICCPR, the HRC ‘cannot but draw appropriate conclusions on the basis of information before it’.Footnote 39 There are countless examples within the treaty body jurisprudence database where the state does not directly respond to the explicit allegations raised. This makes it important to understand what initial burden of proof the HRC applies to the complaining author before shifting the burden of proof onto the state. Across the sample of communications reviewed here, the HRC’s practice is charted chronologically to develop a preliminary picture of how the HRC is balancing evidentiary burdens in cases that involve claims of torture in detention. In this narrowed field of cases, there were only five examples where a state did not participate in the communications process at all. As such, the analysis weaves these cases of absolute non-participation with the cases where the state did not fully participate through a failure to respond directly to the author’s claims. The following sub-sections consider two types of claims: forced confessions and torture as punishment of alleged criminals (including political dissidents and alleged terrorists).
7.4.1 Forced Confessions
The link between torture and forced confessions is a central motivation for the international prohibition against torture and one that is typically elaborated in national laws and rules of evidence.Footnote 40 Two 2004 decisions demonstrate the HRC’s unequivocal practice in response to allegations of forced confessions. In Singarasa v. Sri Lanka, the HRC noted that it is not enough for an alleged victim to be required to meet a low burden of proof to substantiate a torture claim in the national criminal justice system, as was argued by Sri Lanka.Footnote 41 Instead, the HRC considered that the burden of proof to disprove torture resulting in admissions of guilt shifts completely to the State and requires that the State provide specific evidence to account for the treatment of the author during an interrogation resulting in a confession.Footnote 42 This shift is equally present, though less specific, in cases where the state fails to respond in any way to a forced confession claim. This was confirmed in Khomidova v. Tajikistan, where it was found that ‘[i]n the absence of a reply from the State party, due weight must be given to the author’s allegations, to the extent that these have been properly substantiated’.Footnote 43 In this context, ‘due weight’ equates to the HRC’s acceptance of the allegation of torture. ‘Properly substantiated’ initial allegations of fact appeared anchored in the detailed description of the alleged prohibited acts, including identification of the alleged perpetrators, coupled with the failure of the State to respond to the claim of a forced confession.Footnote 44
The same phraseology was repeated in Sultanova v. Uzbekistan in 2006, where the allegations of torture to elicit a confession were presented in significant detail.Footnote 45 The State nevertheless failed to respond directly to Sultanova’s claims.Footnote 46 Again, the Committee did not explain what is required to ‘properly’ substantiate a claim for the purposes of meeting the author’s burden of proof. However, it appears to have treated the state authorities’ failure to ‘discharge their obligation effectively to investigate complaints about incidents of torture’ as adding ‘due weight’ to the complainant’s allegations.Footnote 47 In response to a similar complaint against Uzbekistan the following year, the HRC gave ‘due weight’ to the allegations of torture where the State failed to ‘demonstrate that it conducted any inquiry’ into allegations of a forced confession.Footnote 48 These cases suggest that the state’s failure to carry out its positive obligation to investigate allegations of torture contributes to the weight with which the complaining author’s version of the facts is received. It does appear, too, that some form of presumption is applied in order to counter the information asymmetry affecting evidence presented to the Committee. In both cases against Uzbekistan, the State failed to investigate the original claims of torture to extract confessions and also did not offer any information to directly rebut the claims of torture.
The presumption of factual validity in the absence of the state’s response to allegations of forced confessions continued in Rakhmatov et al v. Tajikistan in 2008. The communication was submitted on behalf of five men, including two minors, who claimed to have been subjected to torture to elicit confessions.Footnote 49 However, it is notable that one of the Article 7 claims (in relation to Bobonyoz Safarov) was dismissed for failure to provide details or supporting documents. This confirms that there is a minimum standard to be met.Footnote 50 Tajikistan failed to engage with the Committee, and as a result, the HRC concluded that ‘due weight must be given to the authors’ allegations’.Footnote 51 Four of the five complainants provided extensive detail of their treatment, were able to identify the alleged perpetrators and provided evidence that they had raised the allegations with the prosecutor’s office and in their first court appearances.Footnote 52 The HRC determined that, at the very least, Tajikistan had failed to fulfil its positive obligation to investigate the allegations of torture.
A similar 2011 decision against Tajikistan found the HRC determining that ‘due weight’ should be given to the detailed allegations of torture to force a confession in the face of the state’s failure to respond.Footnote 53 Once again, the state’s lack of participation led to a final view that Tajikistan had breached Article 7. In this instance, the victim’s status as a prominent opposition politician meant that there was a great deal of open-source material available to support the allegations. The HRC repeated its formulation of ‘due weight’ in numerous subsequent cases of forced confessions where the state either failed to participate or failed to respond to the allegations of torture to elicit confessions.Footnote 54
Throughout the forced confession cases examined, the HRC has repeatedly reminded states that ‘it is incumbent on the State party to produce evidence refuting the author’s allegations’.Footnote 55 This position tracks the requirement in many common law systems that confessions be untainted. In cases of forced confessions, the non-participation of the state yields the same result whether the state fails to respond to the specific allegation or does not engage with the proceedings at all.
7.4.2 Punishment of Alleged Criminals
Allegations of the use of torture as a tool to punish alleged criminals and suppress political opposition, often under the guise of counter-terrorism, is a recurrent theme in the jurisprudence of the HRC. While the cases of forced confessions have a clear history of burden shifting, the use of torture as punishment is examined separately, as the HRC’s approach to evidentiary burdens in this context took longer to emerge. In the 1984 Weismann and Perdomo case against Uruguay, discussed in Section 7.3, the HRC examined allegations of torture through the complainants’ comprehensive narrative, accompanied by medical documentation and photographs.Footnote 56 The complaining authors offered extensive detail regarding which state authorities held them as ‘subversives’ in incommunicado detention and where the various forms of torture and ill-treatment took place.Footnote 57 Uruguay failed to offer any explanation or evidence to contradict the facts presented, other than to confirm that one of the authors had been detained, charged and tried in a military court.Footnote 58 No discussion of the corroborating evidence was presented. Ultimately, the HRC concluded that the ‘present state of physical and mental ill-health for which no other explanation has been offered by the Uruguayan Government, confirms the allegations of ill-treatment which he suffered while under detention’.Footnote 59 The HRC’s conclusion in Weismann and Perdomo laid out a presumption that is rebuttable, as the author’s narrative and evidence were accepted in part due to the State’s failure to offer a reasonable explanation to the contrary. The presumption seems to address information asymmetry between the parties as well as bridge the gap between the facts and the legal conclusion in this particular case, thus reflecting two of the three main functions that presumptions serve in law (as outlined in the introduction).Footnote 60 The level of detail offered by the author appears to be an important prelude to a complete shift of the burden of proof.
A decade later, in Mukong v. Cameroon (1994), the author offered extensive detail in support of his claims regarding the conditions suffered in incommunicado detention, including threats of torture and generally poor conditions of confinement.Footnote 61 As a journalist and outspoken advocate of political reform, Mukong was arrested on multiple occasions for peacefully expressing his opinions. In this instance, Cameroon engaged extensively with the Committee. In part, it defended the poor conditions as a reality of the developing social and economic status of the country, but did not offer any evidence to expressly refute the allegations of torture threats.Footnote 62 Notably, this demonstrated an effort on the part of the State to offer some degree of exculpatory evidence in terms of the environmental conditions that could lead to a breach of Article 7. However, the State also ‘submit[ted] that the burden of proof for his allegations lies with the author’.Footnote 63 The author referred to reports by Amnesty International to reinforce the prevalence of torture in Cameroon, and the State submitted a report by the National Centre for Studies and Research about improvements to the prison system to support its defence.Footnote 64 The HRC considered all of the information made available but appears to have given greater weight to the detailed narrative offered by the complainant, using its previous phrasing that ‘the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information’.Footnote 65 Again, rather than concentrate on the author’s burden, the Committee focused on the lack of detail offered by Cameroon in direct response to the claims of torture, by which the State failed to adequately discharge the state’s evidentiary burden.
Two years after Mukong, the HRC examined a claim addressing the torture and disappearance of a girl-child, following her detention by Peru for alleged terrorist activities.Footnote 66 While the State responded to the HRC, it did not provide any information on what happened to the victim prior to or following her pre-trial release, at which point she disappeared. In its decision, the HRC determined that where the State does not provide direct information on the substance of the claim, ‘due weight must be given to the author’s allegations, to the effect that they have been substantiated’, but the Committee did not discuss what amounted to ‘substantiated’.Footnote 67 This is the beginning of the use of ‘substantiated’ in connection with the complainant’s level of proof in cases of torture as punishment. This was also deployed in cases of forced confessions, as seen in the cases against Uzbekistan discussed in Section 7.4.1. Even at this early stage it appears that the HRC was developing a practice of affording due weight to a ‘substantiated’ claim when the state failed to respond to the explicit allegations.
The following year, a similar case against Peru found the State countering the allegations of ill-treatment of an alleged terrorist by providing multiple medical reports about the victim’s health and extensive information about detention conditions, including visits by the International Committee of the Red Cross (ICRC).Footnote 68 Unlike the previous case, the State provided much more formal evidence than the author, according to the information summarised in the decision. However, the State did not provide information specifically to rebut the allegations regarding incommunicado detention and torture prior to and immediately following the author’s conviction. Some of Peru’s arguments were rebutted by its own evidence and a letter from the ICRC.Footnote 69 Ultimately, the HRC found that although the State offered detailed information about the author’s medical treatment, it failed to respond to specific torture claims, which resulted in a finding that the State breached Articles 7 and 10 of the ICCPR.Footnote 70
These cases against Peru demonstrate differing approaches to the state’s provision of information vis-à-vis the allegations. The state’s failure to respond specifically to detailed allegations of prohibited treatment across these cases suggests that the failure to respond weighs more heavily on the ultimate determination than the formal evidence supplied to corroborate the author’s claims. This was confirmed in 2005 when the HRC examined Carranza v. Peru, another case regarding torture and ill-treatment of an alleged terrorist. The author provided an extensive account of the treatment suffered, while the State failed to provide any observations on the case. The HRC found a violation of Article 7, among other articles, noting that ‘[a]s the State party provides no information to contradict these allegations, due weight must be given to them and it must be taken that the events occurred as described by the author’.Footnote 71 When the state fails to engage effectively in the communications procedure, either through the lack of a direct response to the claim or by non-participation, the balance tips further in favour of the author.
A direct link between the evidence offered by the complainant and the state party’s failure to respond to it was outlined in Aber v. Algeria in 2007. This is one of the first cases that provided unambiguous, succinct insight into the process followed by the HRC in terms of balancing evidence between the parties. As a starting point, the HRC recalled its long-standing principle that the burden of proof does not rest solely on the author of the communication and that a state party has an implicit good faith obligation to investigate allegations made against it and to provide the Committee with all information available.Footnote 72 The Committee then set out that when the alleged facts are ‘corroborated by credible evidence’ (emphasis added) and ‘where further clarification depends on information exclusively in the hands of the State party’, it may then consider the claims ‘substantiated in the absence of satisfactory evidence or explanations to the contrary’.Footnote 73 The evidence provided in the Aber case included a detailed account of the applicant’s treatment at various detention sites, which was uncontested by Algeria. There is no guidance as to what equates to ‘credible’ evidence or whether this is a standard similar to the ‘proper’ substantiation of evidence required in the cases against Uzbekistan, discussed above. The ‘corroboration’ appears grounded in the combination of evidence presented by the complainant and the State’s failure to provide exculpatory material.Footnote 74 Aber offers the clearest language indicating the direct relationship between the author’s level of detail and the State’s non-response being used as corroborating evidence. Algeria’s failure to respond specifically using evidence that should have been in its possession meant that it did not meet its burden to disprove the allegations of torture. This resulted in the presumed factual validity of the claims and a finding that Algeria breached Article 7.
The subsequent case of Almegaryaf and Matar v. Libya (2014) reinforced the principle that the absence of the state’s response leaves the evidence to stand for itself.Footnote 75 In this case, two political opposition leaders were kidnapped in Egypt and renditioned to Libya. Smuggled letters from one of the alleged victims delivered accounts of their whereabouts and their treatment, as outlined in the complaint. This information, coupled with UN reports on the inhuman conditions in the detention facility, information provided by a fellow inmate of one of the victims and the State’s failure to respond, resulted in the finding of a breach of Article 7.Footnote 76 Here, we see the provision of variable forms of evidence by the complainants, coupled with the State’s non-participation, underpinning the complete shift of the burden to the State to disprove the torture claim.
The HRC provided a further increment of guidance on what is required from the state when responding to allegations of torture in detention in Tyan v. Kazakhstan (2017). The author of the complaint offered extensive detail of his detention and treatment while in the custody of the State, as well as the discrepancies in the maintenance of procedure and paperwork that occurred at every stage of his detention, prosecution, conviction, and appeal.Footnote 77 Kazakhstan responded to the author’s complaints on several very specific points relating to his written confessions, medical reports of his condition and evidence used in his trial for murder. However, none of the responses addressed the acts of torture. In its examination of the merits, the HRC determined that it was not enough that the State responded and offered documentation on the decisions taken not to investigate the author’s allegations. In finding a breach of Article 7, the HRC specified that the State must present documentation to support its arguments that torture has not taken place.Footnote 78 This suggests that the state’s burden of proof to counter claims of torture may be higher than the complainant’s burden in establishing a claim. In a number of the cases introduced, up to this point, the claims of torture were grounded entirely in the author’s account of the circumstances underpinning the claim. Until the Tyan case, ‘support’ and ‘corroboration’ of the state’s defences to the alleged breaches of Article 7 had not expressly required the production of exculpatory documentation by the state. With this line of cases, the HRC sets out a more demanding requirement on the state to defend itself against claims of torture as a way of addressing the asymmetry of access to information between the state and the victim.
Though a case of enforced disappearance, another 2017 communication against Nepal finally offered a concise articulation of the HRC’s approach to assigning the burden of proof in cases of torture of an individual detained by the state. In this instance, the disappeared victim was a human rights defender and member of a political opposition group.Footnote 79 The author’s claims were reinforced by further documentation provided to the Working Group on Enforced or Involuntary Disappearances and the ICRC, among others.Footnote 80 Nepal’s response focused on a domestic Supreme Court habeas corpus proceeding, where it had denied detaining the author. It also highlighted the fact that Nepal was planning to establish a truth and reconciliation commission to address the widespread practice of disappearances.Footnote 81 Nepal did not, however, respond to the specific allegations of torture. As such, the HRC determined that:
In cases where the author has submitted allegations to the State party that are corroborated by credible evidence, and where further clarification depends on information that is solely in the hands of the State party, the Committee may consider the author’s allegations substantiated, in the absence of satisfactory or explanations to the contrary presented by the State party.Footnote 82
This formulation was repeated almost verbatim in the subsequent case of Pandey v. NepalFootnote 83 in 2018 and builds upon the cases discussed above that have been decided since 2007. The Committee’s three-stage formulation of the provision of evidence in cases of alleged torture in state detention is as follows. First, the complaining author must provide ‘credible evidence’. Second, the state must offer a response specifically to the evidence of the alleged torture supported by its own evidence. It is not sufficient for the state to offer general statements that laws exist to address the alleged infringements. There must be explicit responses to the facts alleged, supported by documentary evidence. Finally, in the absence of a satisfactory response, the presumption will be that the author’s allegations are true.
Here, we return to the use of probatio diabolica by the HRC in the Maya case against Nepal, which prompted this chapter’s exploration of evidentiary burdens by the HRC in the context of torture. The author in Maya, as well as the author in the subsequent case of Nyaya v. Nepal, submitted detailed witness statements, medical records and legal documents recounting failed attempts to get domestic justice following instances of gender-based violence amounting to torture.Footnote 84 Both women were arrested, raped and punished using various forms of gender-based violence due to their suspected association with Maoists.Footnote 85 A further dimension of vulnerability in Nyaya lies in the fact that the author was an indigenous fourteen-year-old girl-child at the time of the incidents recounted in her communication.Footnote 86 The failure of the domestic justice system to provide a viable means of redress, coupled with cascading breaches of the ICCPR resulting from Nyaya’s initial detention, presented a complete failure by Nepal to comply with its international obligations. While Nepal extensively engaged with the proceedings, it responded that it had no records of the authors being detained, which is where the litany of ICCPR breaches began.Footnote 87 Rather than defend itself against the allegations specifically, Nepal instead demanded further proof of the alleged breaches from the victim. In assessing the capability of the parties to meet their burdens of proof, the HRC foreclosed the State’s attempts to deprive the author of justice on the basis that the State claimed to have ‘no record of the authors’ arrest’.Footnote 88
The HRC’s response in framing the State’s request as a demand that the complainant provide a probatio diabolica seems to solidify a complete shift of the burden of proof to the State. The complete shift requires the state to go much further to defend itself against claims by particularly vulnerable victims when the starting point is arbitrary arrest or detention.Footnote 89 In summary, in the confrontation between evidence that has been corroborated, sometimes by multiple sources, and the state’s failure to respond directly to the factual claims, the HRC will presume that the state has breached its international obligation to prohibit torture or CIDT.
7.5 Final Reflections
In the cases examined above, the HRC appears to have developed an increasingly consistent practice of overcoming information asymmetries, by applying a presumption in favour of the author when the state fails to provide specific, exculpatory evidence negating claims of torture. To do so, the HRC: (1) looks for facts that are corroborated by some level of evidence; and (2) applies a rebuttable presumption that the author’s alleged facts are true; unless (3) the state offers evidence in direct response to the specific allegations of torture or CIDT.
This leaves the question as to what types of evidence must the author present to corroborate the alleged facts. Due to the process and format of final views, it is not always clear what range of evidence had been offered to corroborate the allegations of torture. In some cases, the summary provided suggests the evidence was limited to a detailed account by the author. In other cases, there was not only expansive personal detail, but also extensive supplementary (and sometimes extraneous) evidence provided to corroborate the author’s claims, such as reports by UN Special Procedures or international organisations such as the ICRC or Amnesty International,Footnote 90 medical reports or court documents that speak directly to the indicia of torture.Footnote 91 This chapter’s presentation of HRC’s final views permits only a broad understanding of the range of evidence that might be presented to substantiate torture before the UN treaty bodies. The presumption that the state must overcome the author’s evidence, on the other hand, seems to demand specific documentary evidence that is only available to the state. Both the broad and the specific evidentiary burdens increase understanding about how the HRC assesses alleged violations of the prohibition of torture.
This chapter aimed to examine whether the HRC is developing a consistent practice of overcoming information asymmetries in torture cases where the complaining author benefits from a presumption against the state due to the inaccessibility of evidence held by the state. From the analysis presented above, it is clear that cases raising allegations of forced confessions result in an automatic shifting of the full burden of proof to the state to disprove the claim. This stems from the long-standing view that confessions resulting from torture also interfere with the delivery of justice and an individual’s fair trial rights. In comparison, cases where torture is used to punish alleged criminals, including members of political opposition groups or alleged terrorists, see a rebuttable presumption applied when there is evidence corroborating the author’s allegations of torture. This presumption hinges on the extent to which the state participates in the proceedings. In either situation, if the claim is raised by an individual with distinctive vulnerabilities, there is a presumption that demands that the state bear the full burden of rebutting the facts alleged with specific, documentary evidence.
Ultimately, in all of these cases, where an author provides corroborated evidence of torture while detained by the state, there is ample practice to confirm that ‘the burden of proof to rebut the author’s evidence clearly lies with the State party’.Footnote 92 This not only demands that the state engage with the individual communications process, but that it takes care to provide exculpatory evidence that correlates expressly to the allegations made by the complaining author.
8.1 Introduction
The process of transforming observations about the empirical world into claims of normative right and redress involves three steps: naming, blaming and claiming.Footnote 1 First, most challengingly and most significantly, wrongs must be recognised as such, and rendered visible and articulable. Over the past seventy-five years, the evolution of the international human rights system has advanced the potential for different forms of abusive action to be named. Often, however, international human rights advocacy has proceeded as if human rights violations are isolated events, deviations from a norm of rights respect. In reality, the vast majority of human rights violations are not unique, but rather part of one or more patterns or practices of violations.
Coming to see human rights violations not as isolated occurrences, but rather as part of patterns and practices of violations, where they are in fact such, is an important act of naming. It generates in those who undertake and encounter it a different view of the world. It is, in this sense, fundamentally an evidentiary issue, as adopting such an understanding alters baseline presumptions and impacts the sorts of evidence human rights bodies might consider and the conclusions they are likely to reach. Positively, United Nations human rights bodies have gradually come to possess increasingly sophisticated individual communication consideration functions. At the same time, while United Nations human rights treaty bodies (UNTBs) have on occasion recognised one or another pattern or practice of violations, they have done so inconsistently and haphazardly. Reflecting on human rights bodies with the aim of ensuring their ability to recognise and appropriately address patterns or practices of violations suggests the appropriateness of several sorts of approaches, some better and some less well recognised to date. This chapter considers various ways in which the processes undertaken by UNTBs should be shaped in order to better consider evidence of patterns or practices of violations as an input.
The manner in which United Nations human rights treaty bodies contemplate the evidence before them is only one aspect of the relationship between such bodies and evidence of human rights violations. This is because UNTBs are not only receivers of information relating to human rights, but also key sites for the generation of such information. As such, this chapter is not only concerned with how such bodies process evidence, but also with the information they create and disseminate, in recognition of the significance of such findings and their ability to generate positive (or negative) feedback loops.
This chapter has four parts. Section 8.2 reviews the different routes through which quasi-judicial bodies such as United Nations human rights treaty bodies receive information. The section highlights the multiple evidence-collecting functions engaged in by such bodies and their abilities to undertake their own investigations in certain cases, to consider amicus briefs and to introduce evidence proprio motu/sua sponte (i.e. on their own initiative). Section 8.2 also examines what sources such bodies have addressed and should consider appropriate to reference in their decisions. The more widespread one believes human rights violations to be, the more liberally evidence should be admitted. Positively, United Nations human rights treaty bodies have typically adopted fairly liberal approaches to date, though they might be more consistent in doing so.
Section 8.3 reviews two manners in which addressing patterns or practices of violations can impact on the manner in which cases are considered. Section 8.3.1 considers exhaustion of domestic remedies, examining the differently termed but similar manners in which the regional human rights systems have reflected on admissibility issues relative to patterns or practices of violations. Section 8.3.2 analyses whether and how addressing patterns or practices of violations might impact on the consideration of evidence and the burden of proof. In both cases, it is argued that UNTBs should adopt special approaches where patterns or practices of violations are encountered, including by emulating the practice of the regional systems relative to exhaustion in particular.
Section 8.4 considers how ensuring optimal openness to both the contemplation and finding of patterns or practices of violations militates in favour of particular approaches to case processing. Section 8.4.1 focuses on the input side, considering two modes of case processing that have been adopted in at least partial recognition of the existence of patterns or practices of violations, the repetitive cases procedure adopted by the Human Rights Committee (HRC) and the pilot judgment procedure employed by the European Court of Human Rights (ECtHR). Section 8.4.2 considers how human rights bodies may best recognise and underscore the existence of particular patterns or practices of violations in their findings. It argues that international human rights bodies should explicitly recognise patterns or practices of violations, and that they should clearly articulate ‘general measures’ or ‘structural’ remedies required in response.
Section 8.5 considers the manner in which information concerning patterns or practices of violations is publicly presented. As noted above, international human rights bodies are not only receivers and contemplators of human rights–related evidence and information, but also key nodes in its construction and dissemination. As such, the manner in which they present the information they produce is of great significance. While the information produced by United Nations human rights systems is already presented in several valuable ways, the dissemination of information concerning human rights violations would be enhanced, this chapter argues, by the clearer presentation of information concerning patterns or practices of violations as well. Taking this step would help to ensure a more readily accessible evidential record for future cases, and to produce greater pressure for such situations to be brought to an end.
8.2 Evidential Consideration by Quasi-Judicial Bodies
UNTBs are quasi-judicial bodies. That is to say, they combine court-like functions – considering state and individual communications – with other functions similar to those historically possessed by commissions of inquiry or the like. Typical functions of such bodies include consideration of state party reports and following up on concluding observations, special statements and general comments. In reality, such bodies receive information concerning human rights not only (or even primarily) from individual communications, but also from a wide variety of other sources. Sources of information include not only the formal channels of reports received in the context of state party review, but also the connections committee members and staff have to the wider world, including the broader system of human rights mechanisms based in Geneva.Footnote 2
The Committee against Torture (CAT),Footnote 3 the Committee on the Elimination of Discrimination against Women (CEDAW),Footnote 4 the Committee on the Rights of Persons with Disabilities, the Committee on Enforced Disappearances, the Committee on Economic, Social and Cultural Rights (CESCR) and the Committee on the Rights of the Child (CRC)Footnote 5 have the ability to initiate inquiries on their own initiative where they have received information that serious or systematic violations of convention rights are taking place.Footnote 6 The existence of this expansive fact-finding power suggests general recognition of the appropriateness of utilising all available avenues to obtain evidence where necessary. However, such investigations rarely prove a feasible tool in practice, as the ability of UNTBs to undertake them runs up against resource and practical constraints.
United Nations human rights treaty bodies have generally been open to third-party interventions, and the CAT, the CEDAW and the Committee on the Elimination of Racial Discrimination (CERD) have all recognised their contributions.Footnote 7 Rule 96 of the 2019 Rules of Procedure of the HRC indicates that the Committee ‘may accept information and documentation submitted by third parties which may be relevant for the proper determination of the case’.Footnote 8 That information will be shared with the parties, who may respond if they so wish.Footnote 9 The Guidelines on third-party submissions adopted by the HRC at its 127th Session in October 2019 indicate that the HRC ‘may on its own initiative request from an individual or entity a third-party submission (amicus curiae brief)’.Footnote 10 The openness UNTBs have shown to third-party interventions is especially positive relative to patterns or practices of human rights violations, as in such cases there are likely to be interested parties beyond those submitting the communication(s) in question.
In addition to their ability to consider and even request third-party interventions, UNTBs should be free to draw on other public information when considering cases as well. The Rules of Procedure of the HRC indicate that ‘the Committee shall consider the communication in the light of all the information made available to it’.Footnote 11 The Rules of Procedure of the CESCR, in contrast, more clearly (but perhaps more limitingly) indicate:
At any time after the receipt of a communication and before a determination on the merits has been reached, the Committee … may consult, as appropriate, relevant documentation emanating from other United Nations bodies, specialized agencies, funds, programmes and mechanisms, and other international organizations, including from regional human rights systems that may assist in the examination of the communication, provided that the Committee shall afford each party an opportunity to comment on such third party documentation or information within fixed time limits.Footnote 12
A broad approach to the proprio motu consideration of information seems appropriate. First, a more limited approach would in many cases require a highly artificial pretence of ignorance, given committee members and staff will typically be aware of human rights information from many sources other than the communication in question. Second, such an approach would be impractical, requiring the duplication of the same information, often repeatedly, in the service of a formal limitation. Third, such an approach would be undesirable, asserting the primacy of compliance with narrow procedural rules over factual accuracy and human rights obligation enforcement.
In addition to how information is received, another issue pertains to the sources human rights bodies consider appropriate to reference in the context of case consideration. One particular question is whether human rights bodies may consult the work of prominent non-governmental organisations (NGOs), which provide much of the evidence of human rights violations in practice. Past practice here is mixed. Out of the total of one admissibility decision and seventy-six merits decisions issued by UNTBs in 2022,Footnote 13 Human Rights Watch or Amnesty International were referenced in thirteen cases – ten times by the CATFootnote 14 and once each by the HRC,Footnote 15 the CEDAWFootnote 16 and the CRC.Footnote 17 In seven of those cases, the work of Human Rights Watch and Amnesty International was referenced only while considering complainants’ arguments, rather than as an explicit basis for any of the findings made.Footnote 18 In six cases, the work of such organisations was referenced directly in the context of the committees’ findings.Footnote 19
In one of those cases, A.Y. v. Switzerland, the CAT directly addressed the relevant issues. In particular, the CAT took a moment to consider Switzerland’s claim that the reports from human rights NGOs and a Special Rapporteur relied on by the claimant were ‘intentionally selective’.Footnote 20 In response, the CAT observed that it ‘ha[d] nothing before it to indicate that the State party’s judicial authorities carried out a detailed assessment of the source material relied on by immigration authorities or the complainant at any stage’.Footnote 21 The CAT further reasonably concluded ‘that, on balance, if a particular source were to be given less weight, it should be any that were to be assessed as having a clearly vested interest in the narrative provided’ – meaning in particular ‘information provided by government agents or sources within the country, who might face reprisals for any perceived criticism of the Government of Eritrea’.Footnote 22 The CAT further challenged Switzerland’s suggestion ‘that the refusal of a State to engage with or to accept a fact-finding visit is a reason to dismiss the findings of the report of that fact-finding mission, and that information from individuals who have fled persecution is less reliable’.Footnote 23 The CAT observed that adoption of such an approach ‘would have a dissuasive effect on States engaging with human rights obligations and reduce transparency and accountability’.Footnote 24 On the particulars of the evidence, the CAT observed ‘where sources are drawn widely from civil society and citizens in exile, the information provided is more likely on balance to represent reliable, uncensored first-hand accounts, as persons outside the country who have fled are arguably no longer living under censorship’.Footnote 25
The willingness of UNTBs to consult the work of human rights organisations in the cases considered above demonstrates that there is no legal rule prohibiting them from directly considering the work of human rights NGOs in the course of reaching their findings. At the same time, the relative paucity of references to the work of such organisations in UNTBs’ decisions suggests that the latter exercise a degree of caution in referencing such sources. One reason for such potential caution is readily inferable: human rights bodies’ members and staff are aware that states do not always look favourably on information concerning human rights violations made available through the work of such organisations, and hence seek to limit their references to that work in their decisions.
Several factors suggest UNTBs should consider evidence from human rights NGOs more freely than they have in the past. First, human rights NGOs play a key role in the global system of human rights enforcement, including by generating and making available information on human rights violations. Freely citing and relying on such information helps to support that vital work; refusing to do so limits it. Second, in contrast to UNTBs, numerous other United Nations bodies and mandates, including United Nations Special Rapporteurs, have been readily willing to explicitly cite to the work of such organisations.Footnote 26 There is no reason for human rights treaty bodies not to do the same. Third, if they want to obtain the broadest possible picture, UNTBs should be open to information from as many sources as possible. Instead of adopting a formalistic rule limiting certain sources of information, UNTBs should follow the CAT’s reasoning in A.Y., admitting information while assessing it in light of the potential bias of its sources. Fourth, as the CAT further observed in A.Y., accepting evidence from human rights NGOS is important because failing to rely on such evidence would have a ‘dissuasive effect on States engaging with human rights obligations’.Footnote 27
In sum, this brief overview of UNTBs’ approaches to evidence reveals most have been fairly liberal to date. This appears to have been facilitated by such bodies’ quasi-judicial nature, as well as their recognition of the challenges of gathering information concerning human rights violations. Recognising that many human rights violations constitute part of patterns or practices of violations provides further grounds for the adoption of maximally liberal approaches to the receipt of evidence. This is the case both because there will be multiple sources of information in such cases, and because instances of patterns or practices of violation cannot be recognised or properly understood unless multiple perspectives are taken into account.
8.3 Special Procedural Approaches
In addition to supporting United Nations human rights treaty bodies’ adoption of a liberal approach to the receipt of evidence, recognition that human rights violations may form part of patterns or practices of violations suggests the need to adopt special approaches to certain procedural issues. This section argues that special approaches should be adopted in two areas: relative to admissibility and the burden of proof.
8.3.1 Admissibility
The rule of exhaustion requires that claimants ‘exhaust’ domestic remedies before having recourse to an international human rights body. The rule serves several purposes: placing states on notice; providing them with a first opportunity to remedy the situation in question; helping to ensure that international bodies can consider the issue after legal arguments and evidential submissions have been more fully developed; and promoting efficiency, by encouraging use of the lowest level remedial avenue available. Exhaustion is accomplished by bringing one’s claim before national-level judicial bodies and, following a negative finding, taking advantage of judicial appellate procedures to the point that a final decision has been produced and no subsequent judicial appeal is possible.
In both general international law and before various international human rights bodies, several grounds for exception to the rule of exhaustion have been recognised over time. Most significantly for present purposes, European, Inter-American and African human rights bodies have all used different terminologies to find an exception to the rule of exhaustion in situations involving patterns or practices of violations. In Europe, the formerly operative European Commission of Human Rights found an exception applied in cases involving ‘legislative measures and administrative practices’.Footnote 28 For its part, the ECtHR has similarly identified an exception in cases involving ‘an administrative practice consisting of a repetition of [human rights violations]’.Footnote 29 The Inter-American Court has recognised an exception to the rule of exhaustion in situations involving ‘a practice or policy ordered or tolerated by the government’.Footnote 30 The African Commission has established an exception where ‘serious and massive violations of human rights’ are taking place.Footnote 31 Elsewhere, in response to another situation involving widespread violations, the African Commission observed that:
the Respondent State does not point to any legal procedure which makes it practicable for … a large number of victims to pursue local remedies, for example as a class. The upshot is that the procedure available to individuals cannot practically be utilized by numerous victims to secure redress of the alleged violations of a range of rights in the present case … (as such) the Commission finds it appropriate to exempt [certain claims] from the requirement to exhaust local remedies on the basis that it is practically impossible for the numerous victims to utilize whatever procedure is available to individuals at the domestic level.Footnote 32
Broadly speaking, these precedents suggest an exception to the rule of exhaustion in cases of patterns or practices of violations is justified on several grounds. First, an exception is justified because the existence of a pattern or practice suggests the domestic remedial system is inaccessible or ineffective as such, as a well-functioning remedial system should be able to redress such issues before they rise to such a level. Second, where a pattern or practice of violations exists, the concern with fairness to the state – which underpins the exhaustion rule – is lessened, as the state can be deemed to have already had a chance to redress the violation in question. Where the violations in question are of sufficient extent and/or severity, an exception is also justified by the fact that even if there is some potential to access remedies, those remedies are likely to be unduly delayed relative to the enhanced urgency involved.Footnote 33 It is not apparent that UNTBs have been specific as to the existence of a ground for exception to the rule of exhaustion in cases of patterns or practices of violations. Given the strong rationales for the existence of such an exception, they should follow the regional human rights bodies mentioned above by recognising it.
8.3.2 The Burden of Proof
In addition to recognising the need for an exception to the rule of exhaustion in cases of patterns or practices of violations, the Inter-American system has arguably recognised the appropriateness of a reversal of the burden of proof in such cases as well. In Velásquez Rodríguez v. Honduras, the Inter-American Court held that ‘[w]hen the existence of … a policy or practice has been shown, the disappearance of a particular individual may be proved through circumstantial or indirect evidence or by logical inference’.Footnote 34 The Inter-American Commission has similarly observed that ‘when there is proof of the existence of a policy of disappearances sponsored or tolerated by the Government, it is possible, using circumstantial or indirect evidence, or through relevant logical inference, to prove the disappearance of a specific individual when that would otherwise be impossible given the link between that disappearance and the overall policy’.Footnote 35
This jurisprudence suggests that claimants will succeed in their claims where: (1) a ‘policy or practice’Footnote 36 of rights violations is shown to exist; and (2) a certain amount of evidence is presented that the person on whose behalf the case is filed was a victim of that policy or practice. Relative to (1), a few open questions exist.
First, it is not clear where the burden of proof should lie. Given the structural nature of such claims, it is perhaps appropriate to say human rights bodies should adopt some independent initiative. At the same time, insofar as claimants will be interested in establishing the existence of patterns or practices of violations, the burden clearly also lies on claimants. This is all the more so since in many cases, claimants will fail should the ‘policy or practice’ in question not be recognised.
Second, it is not clear what standard of proof should apply. Those concerned with the seriousness of the charge against the state might suggest the matter should be proved beyond a reasonable doubt. This would import a standard developed to protect criminal defendants to the human rights sphere, however, and would impose a heavy burden on claimants. The standard of the balance of probabilities will, on the other hand, be challenged on the grounds that it is too light relative to so serious a finding. The standard of clear and convincing evidence represents a compromise between these positions. Ultimately, the question is a policy one, on which differences of perspective will doubtless persist.Footnote 37
The burden of proving element (2) more clearly lies on claimants. A question exists here too, however, as to how much proof should be required: should the claimant be required only to make a prima facie case that the person on whose behalf the claim was filed was a victim of the policy or practice of violations in question, or should they have to show this on the balance of probabilities? The answer must be that only a prima facie case need be advanced, as to do otherwise would obviate the need for the first element (the proof of the pattern or practice of violations) to be shown at all.
While it is thus apparent that some details remain to be fleshed out, the Inter-American system has at least pointed the way towards a special approach to the burden of proof in cases in which a policy or practice of violations has been found. The Inter-American system’s findings in this context were reached in the context of enforced disappearance, where the harm is particularly severe and claimants’ access to information is especially limited, and hence application of a special approach is particularly compelling.
Application of a similar approach in all cases of patterns or practices of violations is justifiable on a number of grounds. First, the approach employed may be understood, as the Inter-American system suggests through its reference to ‘logical inference’, as an application of common sense: where there is evidence of a pattern or practice of certain types of violations, and evidence of a particular violation fitting that general pattern or practice, the likelihood that the particular violation has taken place is enhanced by the information concerning the pattern or practice.
Second, adoption of a special approach may be understood as justified as a response to the pattern or practice of human rights violations in question, which enhances the pressure on concerned states to take steps to address that pattern or practice. To put this another way, broadly speaking, whether or not a human rights body adopts a special approach to cases involving patterns or practices of violations relates to its assessment of the relative risks of erroneous judgments. Failing to adopt such an approach will make it harder for claimants to succeed, and hence makes sense where one is more concerned with a wrongful judgment against the respondent than with the claimant failing to obtain justice. Adopting a special approach, in the alternative, makes sense if one is more concerned with rightful claimants failing to obtain justice than with wrongful decisions against respondents. In the context of patterns or practices of violations, the balance of these contemplations shifts in the direction of the latter – as to find against a rightful claimant would not only deprive that claimant of a remedy but also fail to exert pressure against the state to end the patterns or practices of violations in question. A wrongful judgment against a state, on the other hand, while it would not be just in the individual case, would still have merit in bringing such pressure to bear.Footnote 38
Third, to the extent there are concerns with such a process, they will be heightened in the more formal context of a court than in a quasi-judicial body such as a UNTB. The Inter-American Court’s willingness to adopt such an approach makes clear at least one leading international human rights court has no doubts as to the merits of such an approach, however. Quasi-judicial bodies such as the UNTBs should therefore also be willing to adopt such an approach. It is not apparent that UNTBs have adopted such a special approach to the burden of proof in cases involving patterns or practices of violations. Given the strong rationales for such a reversal, they should follow the Inter-American Court in doing so.
8.4 Case Processing
This section considers another component of the UNTBs’ work that might require adjustment if patterns or practices of violations are more regularly recognised: the manner in which cases are processed. From one perspective, human rights violations constitute individuated occurrences that should be considered in isolation from one another. From another perspective, the opposite is the case: most human rights violations are part of one or more patterns or practices of violations, and hence are best considered together with other violations that form part of the same pattern or practice.
In practice, many international human rights bodies have largely proceeded from the (generally unexamined) perspective that human rights violations, at least as and when brought forward by individuals rather than states, are individual occurrences. Interestingly, such approaches have come under challenge not on theoretical grounds, but rather due to the fact that situations involving patterns or practices of violations can generate multiple communications over time. While the issue has not become an urgent one in terms of institutional capacity at most UNTBs, it has been recognised at the HRC, as noted below. The potential for a large caseload to lead to new procedural approaches is demonstrated by the ECtHR, however, where the volume of cases received has prompted the adoption of a major new procedural approach – the pilot judgment procedure – specifically geared to address situations involving patterns or practices of violations.
From one perspective, the manner in which human rights bodies process cases concerns operational efficiency. From another perspective, the approaches adopted are closely related to evidential questions. This is true in the first place, on the input side, because the scope with which the matter before the human rights body in question is understood will impact on the evidence that may be considered. If the matter is considered to be a narrow one, evidence of the pattern or practice of which the matter forms a part may be excluded. If, by contrast, the matter is considered from a wider lens – including simply because multiple individual complaints are considered together – information concerning patterns or practices of violations will naturally arise, and it will be harder to exclude further information along such lines.
In addition, recognising that particular submissions constitute part of patterns or practices of violations also has implications on the output side. Such recognition will allow adjudicatory bodies to better ensure remedial consistency. It will also help them ensure remedies are comprehensive, addressing not only individuated harms but also the broader situation giving rise to the patterns or practices of violations in question. Finally, willingness to recognise patterns or practices of violations explicitly is significant in and of itself, as this recognition will then constitute part of the broader evidential record, enhancing the pressure on the state in question to bring the pattern or practice of violations in question to an end.
Section 8.4.1.) considers two different manners in which human rights bodies can structure individual communications. Section 8.4.1.1 considers the traditional model, under which each communication is considered as it is received. While many systems will likely not be comfortable going beyond this model, substantial variation is possible therein, as the subsection notes. These include streamlined procedures relative to repeat cases, as well as the potential joinder of communications by the human rights body in question. Section 8.4.1.2 considers a major alternative model of case processing, namely the pilot judgment procedure adopted by the ECtHR in 2004. The chapter reflects positively on this approach due to its tendency to make patterns or practices of violations visible.
Section 4.2. considers the findings human rights bodies reach, the orders they issue and the manner in which they engage in follow-up or enforcement of judgments.Footnote 39 Here, the chapter argues that UNTBs should adopt clearer findings relative to the existence of patterns or practices of violations as such, as well as concerning general measures or structural remedies that must be adopted in order to bring patterns or practices of violations to an end. Such findings, where made, should moreover be made readily publicly available, including through their incorporation within information presented by the Office of the High Commissioner for Human Rights (OHCHR) concerning particular patterns or practices of violations, as called for in Section 8.5.
8.4.1 Case Structure
8.4.1.1 The Traditional Model
The traditional model of case processing sees individual cases submitted by lawyers or representatives of one or more victims, which are then processed by the human rights body in question. The speed with which cases are processed varies and appears somewhat flexible within and across human rights bodies. The human rights body considering the case may have a procedure for the issuance of interim orders and may take account of priority factors in relation to the speed of case processing, including, for instance, factors pertaining to the urgency, gravity and extent of the violations in question.Footnote 40 Once a decision is reached, that decision is final.
The traditional method can be stretched in various ways that render it a more suitable vehicle for the recognition of patterns or practices of violations. While cases may be submitted on behalf of solitary individuals, they may also be submitted on behalf of larger groups of individuals. While some systems apply tighter rules around standing and representation, others adopt more liberal approaches, which more readily allow claims to be advanced on behalf of groups as such.Footnote 41 In some instances, moreover, when human rights systems receive similar communications from different parties in close temporal proximity, they may choose to join them together for collective consideration. This too tends to make it easier to recognise patterns or practices of violations that may be involved in the various cases.Footnote 42
The primary motivation for more liberal approaches to standing and representation historically appears to have been a desire to facilitate access to human rights systems. At the same time, consideration of cases that concern wider sets of victims and violations – regardless of the procedural technique applied to facilitate this – carries other benefits as well. In the first place, considering multiple cases together promotes systemic efficiency. In addition, the consideration of cases through a wider-angled lens promotes the development of more expansive, innovative and assertive remedial orders, which are likely to be better designed to holistically address structural situations of violation, rather than to merely provide relief to individual claimants. In this context, the fact that the Inter-American regional system has been more willing to consider cases from a broader perspective may be understood as closely linked to that system’s place at the forefront of remedial jurisprudence.Footnote 43
In addition to employing a flexible approach to joinder, human rights bodies may adopt other procedures that enhance their ability to recognise patterns or practices of violations. This may carry other benefits of the sort described above, as well. The HRC, for instance, has adopted a procedural rule allowing for the appointment of special rapporteurs with responsibility for dealing with ‘repetitive cases’.Footnote 44 In particular, the HRC has received large numbers of similar communications concerning the pattern and practice of forced disappearances in Algeria, to which it has responded with highly similar decisions.Footnote 45 Such a procedure constitutes another relatively straightforward way in which human rights bodies can devote more concerted attention to cases involving patterns or practices of violations.
8.4.1.2 The Pilot Judgment Procedure
The traditional approach has been challenged and complicated in the European human rights system. As noted above, the adoption of a new approach there was motivated in substantial part by the system’s caseload crisis, resulting from the receipt of so large a number of cases that it was impossible to respond to all within a timely manner. A significant subset of cases the system was receiving, moreover, were repetitive cases, namely applications concerning different claimants but concerning the same or highly similar factual situations and rights violation claims.Footnote 46
The European human rights system responded by developing the pilot judgment procedure, often traced to an important resolution by the Committee of Ministers in 2004.Footnote 47 Essentially, the pilot judgment procedure allows the Court to freeze or adjourn repeat applications concerning certain situations, and instead consider a small subset of such cases as pilot judgments. In particular, Rule 61 of the Court’s Rules of Procedure, adopted in 2011, specifies that recourse may be had to the pilot judgment procedure ‘where the facts of an application reveal in the Contracting Party concerned the existence of a structural or systemic problem or other similar dysfunction which has given rise or may give rise to similar applications’.Footnote 48 While the ECtHR has been reluctant for much of its history to issue assertive remedial orders calling for structural reform or the like, these are considered not only possible but essentially required in the pilot judgment context. Here, the Court must order the state to adopt such measures as are necessary to amend the structural situation of violation, addressing not only the pilot case(s) but the situation of all the frozen cases as well. Should such measures not be adopted, the frozen cases may be resumed for consideration.Footnote 49
Some open questions remain in relation to the pilot judgment procedure. Among other issues, the ECtHR has not developed very detailed criteria to ensure all relevant classes and interests of claimants are adequately considered.Footnote 50 In addition, the pilot judgment procedure has been challenged on the grounds that it allows the Court to foreclose claims and hence enable rights violations to go unaddressed in certain cases.Footnote 51 Despite such objections – which can and should be addressed – the pilot judgment procedure offers one effective, proven method through which patterns or practices of violations may be addressed. This can form a basis for other systems, including those at the United Nations level, to reflect on how optimally to process large numbers of similar cases.
8.4.2 Findings, Recommendations and Follow-Up
Recognition that the facts revealed in an individual case may constitute part of broader patterns and practices of violations should inform the manner in which UNTBs structure their decisions and follow-up procedures as well. First and foremost, human rights bodies should explicitly recognise, as clearly, honestly and accurately as possible, the systemic nature of those violations as such.Footnote 52 Simply recognising such situations will constitute a valuable first step towards exerting enhanced pressure for them to change.
Second, that recognition should inform the remedial measures that human rights bodies recommend. This means that those remedies should be oriented not only towards providing satisfaction or redress to the individual claimant or claimants, but also towards ensuring non-repetition. In the context of patterns or practices of violations, this entails the adoption of remedial measures aimed at reforming the aspects of law and policy which allowed for the violations to take place. Among other terminologies, these sorts of remedies have been referred to as general measures and as structural remedies. In this, the UNTBs may look to the example set by the Inter-American, African and European human rights systems. The Inter-American and African systems have both demonstrated a longstanding willingness to issue structural orders. The European system has moved in a similar direction more recently, initially in the context of pilot judgments, and later more broadly.Footnote 53 The UNTBs might also consider adopting the Committee of Ministers of the Council of Europe’s rule that indicates the need to oversee whether ‘general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations’.Footnote 54
A challenge may arise in the context of structural orders, however, insofar as they may take broad and vague forms.Footnote 55 General orders, calling, for instance, for states to take all measures necessary to remedy the situation in question, are a valuable addition to judgments that otherwise only require individual remedies. However, several scholars and practitioners have noted that specificity is highly desirable in human rights bodies’ findings, especially relative to structural orders,Footnote 56 as this helps to make clear exactly what measures states should take to end the structural contexts of violation in question. UNTBs should hence work to ensure that the structural remedies they suggest are as clear as possible. Specific remedial recommendations are valuable not only insofar as they enable stronger and more targeted pressure for compliance, but also because they establish a clearer basis for follow-up investigations.
In addition to more specific remedies, UNTBs should more clearly and accessibly publicise their findings regarding patterns or practices of violations. Pressure on states to comply with findings will be enhanced where those findings are made as publicly available as possible.Footnote 57 In this regard, information as to any findings requiring general measures, structural reforms or the like should be prominently included within any compilation or public presentation of information concerning patterns or practices of violations. This information could then be easily followed up on not only by the human rights body that reached the decision in question,Footnote 58 but also by all those working in and with OHCHR and affiliated mechanisms, as well as the human rights community at large.
8.5 The Public Presentation of Information Concerning Patterns or Practices of Violations
As emphasised in the introduction, it is important to recognise that there are two different angles from which one may consider evidentiary issues in relation to international human rights bodies. First, as explored in much of the above, there is the question of how these bodies receive and consider evidence. However, such bodies are not only receivers of evidence; they are also key actors in the production, shaping and global dissemination of evidence pertaining to human rights standards in theory and violations understood to have taken place in practice. Maximizing the accessibility, accuracy and impact of the information produced is hence of the greatest importance.
Currently, the work done by the United Nations’ various human rights bodies is primarily presented in a functionally disaggregated manner: OHCHR statements (including certain outputs by Special Rapporteurs and others) may be found in one place;Footnote 59 the outcomes of the Human Rights Council’s Universal Periodic Review (UPR) process, whereby states’ compliance with their human rights obligations is regularly reviewed by other states, somewhere else;Footnote 60 human rights treaty bodies’ work may be accessed via their individual pages,Footnote 61 or via a database;Footnote 62 each of the various Special Rapporteurs’ different outputs is primarily accessible from their individual page;Footnote 63 and so on. The relevant information is also clustered and presented under particular unifying headings, including by countryFootnote 64 and by type of violation.Footnote 65
The organisation of human rights information per entity that has produced it, the state it concerns and the types of violation in question makes sense and should persist. However, relevant information may and should be clustered according to particular patterns or practices of violation as well. Such information could include any documentation produced concerning a particular pattern or practice of violations – be it a public statement, the outcome of UPR consideration, part of a Special Rapporteur’s report or part of a country review or a case determination by any of the human rights bodies. Grouping together and presenting information in the context of the patterns or practices of which it forms a part would arguably promote efficiency (by preventing the same research work being done by multiple different parties when developing materials addressing that situation); promote consistency, by helping enable different organisations to respond to such situations in similar manners; make the nature, scope and gravity of such situations clearer; and generate more pressure for the violations in question to be addressed.
Ultimately, such an approach could lead to the consolidation of information under particular headings of (what would typically be ongoing but might also be past) patterns or practices of violations. In a particular state, for example, there might be information concerning patterns or practices of violations relative to: use of force by law enforcement; assembly rights; immigrants’ rights; prison conditions; over-criminalisation; due process violations; the right to health; surveillance; and so on. OHCHR’s Universal Human Rights Index provides a valuable tool through which existing human rights findings relative to particular sorts of violations in different countries may be accessed.Footnote 66 However, recognising where the situation in question rises to one of patterns or practices of violations, and presenting that information directly as such, are steps that have not yet been taken.
With time, it will hopefully be possible to provide relatively comprehensive mapping (according to existing standards) of ongoing patterns or practices of violations in different substantive areas of rights concern across all states. The initial launch of such a mode of presenting information will perhaps pose a challenge, insofar as a great deal of novel informational processing will be necessary, and it may not be readily practicable to compile information on all ongoing patterns or practices of violations at the same time. One principled way in which to sequence attention would be through prioritisation criteria, in other words by beginning in those contexts in which violations are the most severe. Due to constraints of space, this chapter will not go further into that issue, but it is worth noting such issues have been dealt with, for example, by the Inter-American Commission in detailing the criteria it will consider when deciding whether or not to list a particular state in the portion of the Commission’s Annual Reports that specifies where the most serious human rights violations are taking place (chapter IV.B).Footnote 67 Once information has been compiled on the most serious patterns or practices of violations, attention could be expanded to cover patterns or practices of violations which do not rise to the same level of gravity.
8.6 Conclusion
This chapter has argued that UNTBs should more clearly and consistently pay attention to and recognise the existence of patterns or practices of violations. It has considered what impacts this should have on UNTBs’ receipt of information generally; their approaches to the exhaustion of domestic remedies, and the burden of proof; the manner in which cases are processed; and UNTBs’ findings, remedial recommendations and follow-up practices. The chapter has also argued that OHCHR should ensure information concerning patterns or practices of violations is specifically highlighted in their public dissemination of human rights information. Compliance with these recommendations will help to ensure patterns or practices of violation are more consistently recognised, that cases addressing such situations are appropriately handled, that a more readily accessible evidential record is available for future cases, and that information concerning patterns or practices of violations is more extensively publicly shared, resulting in greater pressure for such situations to be brought to an end.
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