11.1 Introduction
The procedural steps through which the United Nations Human Rights Treaty Bodies (UNTBs) resolve individual communications are often broadly similar, if not identical. This broad commonality holds in particular for the ways in which the treaty bodies go about establishing the facts underpinning the individual communications they receive. As such, UNTBs’ evidentiary principles and practices share common features. They also suffer from similar gaps and flaws, namely lack of consistency, legal clarity, visibility and fairness (including due to the inequality of evidentiary arms between individuals and states being insufficiently redressed).
This chapter is our response to these problems. It identifies practical recommendations for the consideration of every treaty body authorised to decide individual complaints,Footnote 1 thereby complementing reforms previously suggested by academics and practitioners.Footnote 2 Although this chapter has been written by its three indicated authors, the recommendations it offers have been endorsed by all the contributors to this volume – bar one who feels constrained by a conflict of interest.Footnote 3 Our collective sense is that the implementation of the advocated normative changes and transparency efforts would put future parties in a better position to understand and fulfil what is evidentiarily required of them, at the same time as enhancing the UNTB system’s public legitimacy and efficiency.
The text is divided into two parts. The first part addresses evidence-specific matters. The second discusses general issues of access and information within the UNTB individual communications’ procedure, as they relate to evidence.
11.2 Evidentiary Legal Principles
Fact-finding in general, and evidentiary principles in particular, are hardly addressed in the UNTBs’ founding instruments. The facts of a complaint are generally expected to have been determined by the national judge before recourse to the communication procedure, which itself does not include a phase for discovery or investigation. Yet, rare are the cases where a UNTB can afford not to be concerned with reviewing the facts at all: domestic fact-finding may have been limited or flawed, if not inexistent; a committee may have to establish the relevant factual basis of its jurisdiction and determine the legal significance of the factual allegations, applying standards that differ from those of national jurisdictions; and a factual examination is in order if the complaint may be part of a wider state pattern or practice of human rights violations. Notwithstanding all this, UNTBs are not constrained by specific evidentiary rules, and those they have devised in practice may lack specificity or consistent interpretation. Our view is that this flexibility needs to be reined in. We propose that the standards of proof applicable through the various stages of the proceedings should be identified (Section 11.2.1); that the broad principles governing the burden of proof should be clarified (Section 11.2.2); and that so should evidentiary forms and formats (Section 11.2.3).
11.2.1 Standards of Proof
The individual complaint procedure involves three decision points: registration, admissibility and merits. Each of these three decisions tends to involve an assessment of factual claims. However, neither the UNTBs’ founding instruments nor their rules of procedureFootnote 4 address the relevant standards of proof. We believe that a uniform and clearly defined standard of proof should be adopted in respect of each procedural stage of the procedure, as follows: for registration, a complainant’s factual allegation should be considered to have been sufficiently proven when it is possible; for admissibility, when it is plausible; for the merits to be upheld, when it is probable. These standards should be subject to certain exceptions when the complainant could not possibly have accessed relevant evidence or when the respondent state refrains from (fully) participating in the proceedings. Below we detail our proposals in respect to each main stage of the procedure.
11.2.1.1 Registration
Supposedly an initial, quick and simple stage, registration is clearly not so straightforward in practice, at least not from a complainant’s perspective: more than 80 per cent of individual communications are rejected at this stage.Footnote 5 The reasons for non-registration are not detailed in a written decision, nor are they shared with individual complainants or reported externally in statistical form. Accordingly, the public has insight into neither the common nor the individualised reasons for non-registration in actual cases.
Interestingly, none of the treaty texts explicitly mentions ‘registration’. Rather, they indicate that communications will be ‘received’ if they are submitted by individuals claiming to be victims of a violation of a treaty right by a statetate that has accepted the individual complaint procedure. Other textual conditions for a communication to be received include, for example, that the communication is not anonymous. Table 11.1 compiles the relevant treaty provisions.
UNTBs’ rules of procedure, by contrast, refer – variably and inconsistently – to the steps and requirements to ‘receive’, ‘transmit’ to the UNTB or ‘register’ communications.Footnote 6 Rules typically delegate decisions on registration to one or several committee members or to the UN Secretary-General (in practice, staff in the Office of the High Commissioner for Human Rights, OHCHR).Footnote 7 Nothing is said about delegating decisions on admissibility, which therefore must be understood to be for the committees to take.
Despite registration and admissibility clearly being conceived as two different procedural stages, OHCHR guidance and some UNTBs’ rules strangely suggest that communications should satisfy admissibility requirements – including substantiation – to be registered. One guidance note indicates that ‘[l]ack of sufficient substantiation of facts and allegations may result in the rejection of the registration of a communication’.Footnote 8 The OHCHR webpage states that ‘the Committee will decide whether the case should be registered, that is to say formally listed as a case for consideration’ … ‘ [b]ased on the above mentioned requirements’, in reference to explanation of criteria including timely submission, a complete and chronological recitation of the facts, an explanation as to exhaustion of domestic remedies, and basic personal information.Footnote 9 Similarly, the CERD’s new Rules of Procedure allow for the Secretary-General to ‘request clarification’ concerning the elements of the communication, including ‘information to substantiate the allegations’, prior to its transmission to the Committee for a decision on registration;Footnote 10 and the Committee on the Rights of the Child (CRC)’s rules prohibit the receipt (registration) of any communication that fails to satisfy the admissibility criteria, including substantiation.Footnote 11
Elsewhere, the OHCHR and UNTBs have referred to registration as a prima facie assessment of (all) admissibility requirements.Footnote 12 They have not publicly defined this legal standard (which can have different meanings in different legal systems) nor explained why admissibility would be assessed at this stage. This, however, is the actual practice: each individual complaint that is submitted gets reviewed by a member of the OHCHR’s Petitions Section, who filters out communications deemed ‘clearly inadmissible’,Footnote 13 before conveying the remainder to the relevant treaty body’s designated rapporteur or working group responsible for registration. In other words, only those complaints that appear, at first look, to satisfy all admissibility requirements, on the basis of the complainant’s submissions, will be registered.
The UNTBs’ regional counterparts provide instructive – if limited – examples of how the registration requirements may be assessed without imposing a higher burden on complainants than what is required by their founding instruments and rules.Footnote 14 The African Commission on Human and Peoples’ Rights (ACHPR) and Inter-American Commission on Human Rights (IACHR), for example, make registration decisions based on whether the complainant’s allegations might constitute a right’s violation.Footnote 15 The IACHR terms this a ‘colourable claim’ standard, requiring it to determine whether the facts alleged, if proven to be true, could constitute a violation of a protected right.Footnote 16 As such, the IACHR is not assessing the evidentiary support, but rather whether the factual allegations – if substantiated – would allow the possible legal conclusion that the state violated its obligations. For its part, the European Court of Human Rights (ECtHR) requires that applicants fully complete and sign the application form and attach supporting documentation in order for their applications to be lodged (received).Footnote 17 As in the UNTB system, the regional bodies (with the exception of the ECtHR) may, or must, request additional information from the petitioner if compliance with the registration criteria is unclear.Footnote 18
Taking into account the UN human rights treaty texts’ limited registration criteria (most often, simply that an individual claim be a victim of a violation of a treaty right by a State Party that has accepted the complaint procedure), the broader and more stringent criteria currently applied in practice (namely prima facie admissibility), the lack of clear guidance to complainants, the high proportion of communications rejected at registration and the fact that filtering and registration decisions are often made with only minimal UNTB member involvement while admissibility decisions are theoretically the sole prerogative of the treaty bodies themselves, the following recommendations should be considered:
1) Implement a truly prima facieFootnote 19 or ‘colourable claim’ standard of proof for registration, based on the common requirement that individual complainants claim to be victims of a treaty violation by a State Party.Footnote 20 This means that when what a communication asserts, if taken to be true, could constitute a violation of the relevant treaty by a State Party, the communication will be registered. Registration should take place even if the factual allegations and supporting documentation are incomplete, so long as they are not clearly false and could make out a legally cognisable claim, and any other treaty/rule-specific registration requirements (such as that the communication is in writing and not anonymous) are met.
2) When a particular text imposes additional registration requirements, ensure that these requirements are clearly explained in the public guidance to complainants.
3) For any communication, only assess the registration requirements that apply to communications brought under that particular treaty.
4) Refrain from evaluating admissibility requirements at the registration stage, unless the relevant rules make them applicable at registration.
5) Reconcile actual practice and the rules of procedure, such that, for example, if a UNTB is not willing to register communications that do not appear to satisfy all admissibility criteria, this condition is clearly indicated as a registration requirement, at least in the relevant guidance to complainants to begin with and as soon as possible afterwards in an amendment to the rules of procedure.
11.2.1.2 Admissibility
Admissibility requirements are much more clearly set out in the UNTBs’ founding instruments. They typically include the requirements applicable to registration, plus the following: that domestic remedies have been exhausted; that the claim be sufficiently substantiated or not manifestly unfounded; that it is compatible with the treaty; that it has not been lodged elsewhere (non-duplication); and that it does not constitute an abuse of the right of submission (including by being untimely).Footnote 21
However, the standard of proof to be applied when assessing whether they are met remains opaque. For instance, in regard to the sufficiently substantiated/not manifestly unfounded requirement, UNTB decisions and guidance frequently reference a prima facie threshold, but as Reinsberg has shown in Chapter 3, this standard is inconsistently interpreted, with its common legal understanding distorted in various ways that result in it being taken to imply a higher standard of proof than is normatively appropriate.Footnote 22 In addition, the exhaustion rule brings a lot of difficulties.
We therefore offer a number of recommendations.
1) Regarding the rule of the exhaustion of domestic remedies:
1.1) When the complainant presents a prima facie argument that they have exhausted domestic remedies, and the state disputes this argument, shift the burden of proof onto the state and require it to provide a convincing and substantiated (thus well above prima facie) explanation that the exhaustion requirement has not been met.Footnote 23
1.2) Recognise an exception to the exhaustion rule when information available to the treaty body, even from sources beyond the parties’ submissions, such as its own case law, information it has gathered in the exercise of its other functions or findings emanating from other human rights mechanisms or organisations, demonstrates the existence of a pattern or practice of violations relevant to the submitted complaint, which makes clear that local remedies are unavailable, ineffective or insufficient.Footnote 24
1.3) Extend the exceptions to the exhaustion rule to all situations where the complainant was, in practice, facing obstacles that prevented them from accessing domestic remedies.Footnote 25
2) Regarding the ‘sufficiently substantiated’ requirement:
2.1) Apply a prima facie (i.e., plausibility) standard of proof, whereby if the complainant’s allegations and arguments could be true and possible, the complaint is admissible.
2.2) Apply this standard without consideration for the Sstate’s submissions.Footnote 26
2.3) Whatever doubt arises due to missing or conflicting evidence, consider the allegations sufficiently substantiated/not manifestly unfounded (for admissibility purposes) as long as they are plausible.
2.4) In assessing plausibility, consider the complainant’s circumstances, including: their difficulties/inability to access justice or legal representation; their proven presence (or absence) in the location mentioned in the complaint; their membership in a vulnerable or marginalised group; the state’s conduct in clarifying and responding to the alleged facts at the national level; and the way the trauma of the alleged violation would have affected their ability to provide evidence or explanations, etc.Footnote 27
2.5) In assessing plausibility, take into account relevant findings from within the UN system, including those developed internally by the UNTB or its counterparts in the course of all their functions, concerning, for example, similar alleged violations, state policies and practices and the background to the situation complained of.
2.6) Explicitly examine the factual allegations disputed by the parties by reference to the prima facie standard for purposes of admissibility. In other words, do not amalgamate the admissibility and merits stages. If appropriate, indicate that the facts are proven to a standard of proof which is higher than prima facie, and specifically name this higher standard of proof.Footnote 28
2.7) As appropriate, fully and consistently exercise the power granted to UNTBs to request additional information necessary to the determination of admissibility, including by inviting parties to oral hearings where possible and relevant.Footnote 29
11.2.1.3 Merits
The merits stage calls for a higher standard to be applied than at admissibility. However, this standard should not be so high as to defeat the purpose and possibility of accepting individual complaints. There is broad agreement in human rights scholarship that the appropriate standard of proof for the merits stage in human rights complaint proceedings should generally be the ‘balance of probabilities’,Footnote 30 also known as the ‘preponderance of evidence’ or ‘more probable than not’ standard. However, there are circumstances when the standard should be either lowered or heightened, as we shall indicate below.
The fundamental problem here is that UNTBs, like other human rights bodies such as the regional courts, rarely specify the standard of proof they are applying. A fortiori, their decisions fail to observe when the factual basis of a complaint is proven in practice to a higher standard than legally required. This risks resulting in an inadvertent upscaling of the applicable standard, due to the level of proof achieved in some cases, unconsciously setting the bar to be met by subsequent complainants.
Vagueness regarding standards of proof is problematic.Footnote 31 Not only does it inevitably produce inconsistencies, but it also keeps decision-makers from resolving the crucial issue of defining the level of evidence sufficient to confirm a complaint’s factual allegations. This lack of clarity affects all other stakeholders, including the complainants who are left without guidance as to what evidence they need to submit.
We recommend the following:
1) UNTBs should declare the balance of probabilities to be the standard of proof generally applicable for confirming disputed factual allegations at the merits stage.
2) The complainant’s factual allegations are to be presumed true when the state does not contest them and other evidence does not negate them.Footnote 32
3) When considering whether the balance of probabilities standard of proof is met, UNTBs should consider not only the submissions before it, but also:
3.1) limitations on the complainant’s ability to submit additional evidence, for example due to their limited ability to access justice or legal representation, or disability, trauma, membership in a vulnerable or marginalised group, etc.Footnote 33
3.2) what information the state was or should have been in a good position to submit, but did not submit, drawing adverse inferences from this as appropriate;Footnote 34
3.3) information generated through their other functions.
4) When the complainant alleges that a particular violation is part of a systematic pattern or administrative practice, the standard of proof should be heightened to ‘clear and compelling’ regarding the context (existence of the pattern/practice), but lowered to prima facie regarding the link between the context and the individual violation claimed.Footnote 35
5) A similar heightening and lowering of the standard of proof should take place when the claim arises in a context such that it is reasonable to presume that the state has acted in the way alleged by the complainant.Footnote 36
6) Final views should specifically indicate when a standard of proof higher than the balance of probabilities has actually been met in a particular case, so as to avoid the level of evidence met in that case becoming the standard expected to be met in subsequent cases.
11.2.2 Burden of Proof
As a general rule, in legal proceedings, the party making allegations bears the burden of proving them to the relevant standard of proof.Footnote 37 UNTBs have nonetheless recognised that variations to this default may be necessary when the parties do not enjoy equal access to information and evidence.Footnote 38 This is especially so when violations of human rights take place covertly, such as in cases of incommunicado detention, enforced disappearance, extraordinary rendition and pushbacks of people on the move.Footnote 39
The Human Rights Committee (HRC) has observed that the ‘burden cannot rest alone on the author of a communication, especially if one considers that the author and the State Party do not always have equal access to the evidence, and that frequently the State Party alone is in possession of the relevant information’, in part because of the state’s ‘duty to investigate in good faith all allegations of violations’ of a human rights treaty.Footnote 40 The CRC has similarly recognised that ‘the burden of proof does not rest solely 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 the relevant information’.Footnote 41 Coming from a different angle, the Committee against Torture (CAT) has stated that ‘when the complainant cannot elaborate on his or her case, for instance when the complainant … is deprived of his or her liberty, the burden of proof is reversed and it is up to the State Party concerned to investigate the allegations and verify the information on which the complaint is based’.Footnote 42 Additionally, treaty bodies have recognised states’ duty to cooperate with individual complaint procedures they have accepted.Footnote 43
Despite these general recognitions, the UNTBs have not always clearly and consistently allocated the burden of proof in their consideration of the merits of individual complaints. This is true both with respect to the burden of production (which goes to the issue of which party is responsible for furnishing which kinds of evidence) and the burden of persuasion (which goes to the issue of which party is responsible for meeting the relevant standard of proof).
With regard to the burden of proof, UNTBs should consider the following recommendations:
1) The state should bear the burden of proof relative to information to which the state has superior access. Inter alia, this includes:
1.1) producing evidence concerning persons in the custody of the state, including their fate after detention, and whether they have been appropriately treated;Footnote 44
1.2) proving the existence and adequacy of procedural guarantees relative to detention;Footnote 45
1.3) proving the conventionality of decisions to use allegedly excessive force,Footnote 46 as well as other key decisions taken by authorities;
1.4) producing records in the hands of the authorities, including those pertaining to nationality;Footnote 47
1.5) producing information concerning the potential risk of being subjected to torture if expelled, returned or extradited;Footnote 48
1.6) proving compliance with the relevant treaty in situations in which investigations or court proceedings have been delayed;Footnote 49
1.7) proving a non-discriminatory justification for differences in treatment in cases of alleged discrimination, where the complainant has made a plausible claim.Footnote 50
2) When information available to a treaty body indicates a pattern or practice of violations has occurred or is occurring,Footnote 51 and the applicant has made a plausible case that they were subject to a violation or violations constituting part of that pattern or practice, the state should bear the burden of proof of showing it is more likely than not that the violation alleged did not in fact occur.
3) As appropriate, fully and consistently exercise UNTBs’ authority to request additional information necessary to the determination of the merits, including by inviting parties to oral hearings where possible and relevant.
11.2.3 Forms and Formats of Evidence
The UNTBs, like other human rights mechanisms, have taken a free approach to the evaluation of evidence.Footnote 52 This means that they are not constrained by rules requiring certain forms or sources of evidence to be afforded particular weight, and can consider the probative value of the information before them on a case-by-case basis. While the individual complaint proceedings are primarily written proceedings, some UNTBs have also opted to allow, at least in principle, the submission of evidence through oral hearings,Footnote 53 although to date this has seldom been used. Nonetheless, important gaps in policy and practice remain, which may result in incomplete or inconsistent consideration of complainants’ evidence. For example, the OHCHR instructs complainants not to send audiovisual or ‘electronic’ content,Footnote 54 and provides no guidance on the inclusion of, or reference to, digital materials such as webpages. The public guidance does not advise complainants on how to submit forms of evidence that are not written documents, nor are there publicly identified channels for doing so. Beyond the possible inconsistencies that this may engender, lack of clarity in this area also means complainants cannot be assured that OHCHR or UNTBs will actually review the links, videos, photographs or other content they submit. When so much relevant information is audiovisual or digital, including open-source evidence, treaty bodies ought to confirm that they will receive and evaluate these various forms of evidence.Footnote 55
Additionally, and despite the UN’s extensive system of fact-finding mechanisms, UNTBs have not clarified whether, when and to what extent they will consider evidence already collected and analysed either by the UNTBs – including through the individual complaint, state review, and inquiry procedures – or by other international investigative mechanisms. Adopting the following changes would increase the consistency, comprehensiveness and clarity of UNTBs’ evidentiary standards:
1) Adopt consistent standards of acceptance regarding types and formats of evidence across UNTBs, with a view to maintaining the accessibility of the complaint procedure to individuals and ensuring an open, consistent, and comprehensive approach to fact-finding.
2) Expressly permit the submission of audiovisual and digital forms of evidence, in recognition of the important factual evidence they provide.
3) Modify the individual complaint form to indicate the accepted forms of evidence and provide submission instructions.
4) Allow complainants to present evidence in oral hearings,Footnote 56 which may be held virtually, and establish a clear process for requesting, granting and holding hearings, in line with the existing policies on oral comments from the CRCFootnote 57 and HRC.Footnote 58
5) Take official notice motu proprio of UN documents, including treaty body decisions and communications and reports from Special Procedures and UN fact-finding and investigative bodies, that are relevant to the credibility of the alleged violations or the complainant’s ability to satisfy admissibility criteria (e.g., exhaust domestic remedies), and reference them in views adopted.
6) Formalise and implement the practice of explaining, in writing, the reasons for which a third-party submission is rejected, and communicate these to the submitting entity and to the parties to the complaint.
7) Develop clear norms through jurisprudence and public guidance concerning the UNTBs’ approach to:
7.1) taking official notice of widely accepted or widely reported facts;
7.2) testimonial evidence, including through hearings;
7.3) digital evidence;
7.5) third-party submissions.Footnote 59
11.3 Procedural Transparency and Accessibility
Consistency and transparency of UNTB practice, as well as express acknowledgment and explanation in instances when a UNTB comes to diverge from prior practice, are important for the coherent functioning, legitimacy and fairness of the UNTB complaint procedures.Footnote 60 This chapter has highlighted several areas in which UNTB practice may be unclear or inconsistent with regard to evidentiary standards and the handling of evidence in individual complaint proceedings. For example, some treaty bodies’ instruments or rules include an admissibility requirement that individual complaints be ‘sufficiently substantiated’ or ‘not manifestly ill-founded’, but not all do.Footnote 61 Similarly, UNTBs sometimes announce their conclusions concerning these differing substantiation requirements in individual cases without referencing to or sharing their analysis of the relevant evidence.Footnote 62 Nonetheless, and despite the fact that not all UNTBs apply the same requirement, the OHCHR advises all complainants that a communication may be rejected at registration or be considered inadmissible if it is not ‘sufficiently substantiated’.Footnote 63 These statements fail to distinguish between the UNTBs’ different requirements, and also provide little meaningful guidance to complainants. Additionally, the public guidance to complainants appears to have been written for an audience with legal training, and is dispersed in multiple, lengthy, sometimes inconsistent documents.Footnote 64
The public guidance provided by the OHCHR is critically important for both experienced and novice users of the complaint procedure. If clearly and accurately written, this guidance can save complainants time and effort and make the complaint procedure more accessible to its intended beneficiaries. Of course, the UNTBs themselves also stand to benefit from increased public understanding of their law and procedure, including to the extent that access to relevant information helps individuals assess the appropriateness of submitting a complaint and meet the evidentiary requirements.
11.3.1 Clarity of Guidance
In order to increase the consistency of UNTB decision-making concerning evidence, as well as allow individual complainants and the public to accurately understand the relevant requirements and procedures, UNTBs, with the support of the OHCHR, should:
1) Revise the OHCHR guidance to complainants to be more accessible to the general public, including with regard to substantiation as an admissibility requirement
2) Expressly define any legal terms used as a standard in the context of, respectively, registration, admissibility, and merits decisions
3) Modify the individual complaint form as necessary to request, and provide space for, information related to complainants’ difficulties obtaining evidence
4) Synthesise and consolidate public guidance to individual complainants, with a view to eliminating duplicative and contradictory content and ensuring its accuracy and consistency
5) Explicitly state the burden(s) and standard(s) of proof at each stage of the proceedings, and make clear any variations among treaty bodies in documents made publicly available, such as OHCHR factsheets and guidance on individual communications
6) Explicitly state in the OHCHR guidance to complainants when (how and in which circumstances) the burden of proof is shifted or the standard of proof is lowered
7) Where appropriate, modify rules of procedure to clearly reflect the principles and standards applied in practice with regard to burden and standard of proof and acceptable forms of evidence
8) Identify and clearly explain differences in practice where those exist, in publicly available guidance to complainants
11.3.2 Clarity in Practice
1) Clearly explain the evaluation of evidence in admissibility and merits decisions, with reference to the relevant pieces of information in treaty body views. More detailed explanation could be accommodated by condensing the summaries of the parties’ arguments and incorporating the evidentiary details into treaty bodies’ analyses.
2) Consider eliminating the (unofficial) limit on the length of adopted views.
3) Consistently apply principles concerning the burden and standard of proof and evaluation of evidence.
4) Seek to harmonise UNTB practice regarding evidentiary standards and the handling of evidence in individual complaint proceedings, to the maximum extent allowable under their respective founding instruments.Footnote 65
11.3.3 Effective and Equal Participation
In order for individual complainants to submit relevant evidence and for UNTBs to be able to review material information, complainants must be able to effectively and fully participate in the complaint process. This includes ensuring accommodation and assistance for persons with disabilities, minimising the barriers imposed by language requirements, protecting complainants and their representatives from the risks of non-secure communication channels, enabling parties’ access to case files and processing information, and providing individualised support as necessary to overcome technological and other challenges. Currently, the OHCHR website and guidance documents contain no information regarding accommodation or assistance. In light of these needs, UNTBs should consider the following recommendations:
1) Actively involve users of the system, including treaty body petitioners, in the process of developing tools, procedures and guidelines which affect individual communications, including but not limited to evidentiary regimes.Footnote 66
2) Provide assistance and accommodation for persons with disabilities in presenting their complaints if and when required, and clearly explain the process and any requirements for requesting assistance or accommodation in the OHCHR guidance to complainants.
3) Abstain from requiring that complainants translate their submissions or evidence when presented in an official UN language, even if this is not the State Party’s language.Footnote 67
4) Building on positive precedents of OHCHR support to individual petitioners at risk,Footnote 68 establish a User Support Section or Victim/Witness Unit to provide support to complainants and witnesses, as well as protection if and when required, including in hearings, and to address, among other issues, their privacy and digital security needs.
11.3.4 Transparency and Accessibility of Information
Individual complainants’ ability to understand and comply with evidentiary standards depends, in large part, on their access to timely and relevant information on UN human rights treaties’ substantive protections and UNTBs’ procedural rules and practices. UNTBs have fleshed out the interpretation of their founding instruments and rules through concluding observations, individual cases, amendments to their rules of procedure and, to a lesser extent, in general comments or general recommendations. Current and future parties to a complaint proceeding must be able to locate and search these documents in order to craft and support their own legal arguments and anticipate how a UNTB will likely resolve factual and legal questions.
Other actors also depend on access to UNTB information. Third-party intervenors can identify opportunities to contribute to a UNTB’s consideration of a communication only when they have adequate notice of the existence and substance of pending complaints.Footnote 69 Scholars and researchers require access to decisions in order to effectively analyse and explain the UNTBs’ substantive and procedural functioning.
However, while the UNTBs and OHCHR have made enormous strides toward making information accessible in recent years, important gaps remain. For example, the JURIS database of UNTB decisions is often out of date and can produce incomplete or irrelevant search results.Footnote 70 Translations of decisions and guidance are not available in all six official UN languages.
Many of the current gaps likely stem from insufficient resources, which leave the treaty body system with too few people and too little money to ensure optimal access to information.Footnote 71 A vital, shared goal for all those invested in human rights protection must be the allocation of adequate resources to the UNTB system.
Resources aside, however, adoption of the following key principles and specific changes could result in significantly improved access to information:
1) Regularly update and publish lists of registered communications pending review by individual treaty bodies,Footnote 72 ideally indicating the relevant keywords and list of articles allegedly violated.Footnote 73 If necessary, consider amending the rules of procedure to allow for publication of the list of registered communications.
2) Ensure that all adopted decisions, as well as relevant reports such as follow-up reports on views, are made publicly available in the JURIS Database in a timely manner.
3) Improve access to decisions through timely communication to the parties.
4) Consider publishing parties’ submissions, subject to complainants’ consent and the relevant UNTB treaty requirements and with appropriate redactions to respect confidentiality and data privacy. Where current UNTB rules prohibit publication of complaints or submissions, consider revising those rules in line with treaty requirements and in the interest of transparency.
Improve searchability of decisions in the JURIS database, through:
5) improved accuracy of the full-text functionality
expansion of the list of keywords
showing snippets or previews in results view, and
enabling users to search views by treaty articles which the UNTB has found to have been violated, rather than merely alleged to have been violated.
6) Ensure that all functions of the JURIS database are available in the six UN languages.
7) Implement a system for tagging or identifying lead cases or views that UNTBs frequently refer to or that establish important or precedential principles.
8) Consistently publish annual data and statistics on petitions, including those rejected in the registration phase,Footnote 74 such as in the OHCHR annual report.Footnote 75
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