KEY International and European human rights monitoring and complaint mechanisms

1. KEY International and European human rights monitoring and complaint mechanisms Convening in Legal Advocacy on Roma Health Rights Macedonia, Ohrid, July 9-11, 2012

2. Human Rights Monitoring and Complaint Mechanisms • UN/European (Council of Europe) • Judicial/non-judicial

3. UN Human Rights Bodies • Charter-based bodies (5) • Human Rights Council • Universal Periodic Review • Commission on Human Rights • Special Procedures of the Human Rights Council • Human Rights Council Complaint Procedure • Treaty based bodies (10) • Human Rights Committee (CCPR) • Committee on Economic, Social and Cultural Rights (CESCR) • Committee on the Elimination of Racial Discrimination (CERD) • Committee on the Elimination of Discrimination against Women (CEDAW) • Committee against Torture (CAT) • Subcommittee on Prevention of Torture (SPT) • Committee on the Rights of the Child (CRC) • Committee on Migrant Workers (CMW) • Committee on the Rights of Persons with Disabilities (CRPD) • Committee on Enforced Disappearances (CED)

4. UN Complaint Procedures • Individual communications • not all HR treaty bodies can consider individual complaints • Individual who claims his/her human rights have been violated or a third party on a behalf of the individuals • State-to-state complaints • Never used • Inquiries • HR body may on its own initiative initiate inquiries if they have received reliable information containing well-founded indications of serious or systematic violations of the conventions in a State party. • Only CAT and CEDAW • Applicable to SRB, MK, RO • Special procedures • mechanisms to address either specific country situations or thematic issues, including the right to health, in all parts of the world • Activities: responding to individual complaints, conducting studies, providing advice on technical cooperation at the country level, promotional activities • Human Rights Council complaint procedure

5. Individual communications • Only 5 human rights bodies can consider individual complaints (communications) • The most relevant for Roma health rights: • Human Rights Committee - communications relating to the International Covenant on Civil and Political Rights • CEDAW - the Convention on the Elimination of Discrimination Against Women • CAT - Convention Against Torture • CERD - the Convention on the Elimination of Racial Discrimination

6. Lodging a complaint - general rules • Anyone claiming his/her rights have been violated • Possibility to bring a claim on behalf of another person if his/her written consent is obtained and provided to the committee • Against a State that is party to the treaty and recognized competence of the committee • No particular form; in written and signed by the applicant • In one of the working languages

7. Lodging a complaint - content • Provide basic personal information • Specify State party against which claim is directed • Set out, in chronological order, all the facts on which the claim is based • Describe the steps taken to exhaust the remedies available domestically • State whether the case have been submitted to another means of international investigation or settlement • Explain why the facts outlined in the claim constitute a human rights violation of the treaty • Not strictly necessary to identify the specific articles of the treaty that have allegedly been violated. • Provide evidence - supply all documents of relevance to the claims and arguments • Legal aid is not provided by the procedure • NO TIME LIMITS!!! Exception, CERD – 6 month after the final decision at national level

8. Interim measures • Each committee has the facility to take urgent action where irreparable harm would otherwise be suffered before the case is examined in the usual course • Such requests are issued to prevent actions that cannot later be undone • It is advisable to state request for urgent action explicitly in the claim

9. Admissibility criteria • Provided proof of consent if acting on behalf of another person • Victim has to demonstrate personal and direct affect of the law, policy, practice, act or omission of the State party • Compatibility of the complaint with rights actually protected by the treaty • Sufficiently substantiated complaint • Exhaustion of all domestic remedies. Limited exceptions to this rule • Bringing repeated claims to the committee on the same issue although they have already been dismissed • Reservation of the State precluding the complaint • Complaint being examined under another mechanism of international settlement

10. Committee’s decision • Case is inadmissible • Case constitutes violation of the treaty • Case does not constitutes violation of the treaty • Committee’s decision is final • If found that the applicant was a victim of a violation of the State party, it invites the State party to supply information within three months on the steps it has taken to give effect to its findings

11. European HR complaint mechanisms • Key instruments • ECHR – European Convention on Human Rights • European Social Charter (Revised) • Key mechanisms • ECtHR – European Court of Human Rights • ECSR – European Committee of Social Rights

12. European Committee of Social Rights • The rights guaranteed by the Charter concern all individuals in their daily lives: • Housing • Health • Education • Employment • Legal and Social Protection • Free movement of persons • Non-discrimination • The ECHR’s mandate: to judge that States party are in conformity in law and in practice with the provisions of the European Social Charter. • Collective complaint mechanism – but RO, SRB and MK have not ratified protocol on collective complaint mechanisms

13. European Court of Human Rights • ECtHR protects the rights guaranteed in the ECHR • ECHR- does not explicitly protect right to health • Right to health (including patient’s rights) can be brought under the right to life, prohibition of inhuman and degrading treatment, respect for private and family life, right to effective legal remedy, prohibition of discrimination • Key admissibility criteria: • Individual application • Victim status • Right guaranteed under ECHR • All available domestic legal remedies exhausted • Time limit: 6 months from the final decision at national level • Other

14. Examples of health rights violations Right to Privacy EXAMPLES OF (POTENTIAL) VIOLATIONS • A doctor discloses a patient’s history of drug use or addiction without his or her consent • Government requires disclosure of HIV status on certain forms • Health care workers require young people to obtain parental • Consent as a condition of receiving sexual health services Right to Information EXAMPLES OF (POTENTIAL) VIOLATIONS • Government bans publications about drug use or harm reduction, claiming it promotes illegal activity •  Young people are deliberately denied information about sexually transmitted diseases (STDs) and the use of condoms •  Roma women lack access to information on sexual and reproductive health

15. Examples of health rights violations Right to Bodily Integrity EXAMPLES OF (POTENTIAL) VIOLATIONS • A Roma woman is sterilized against her will •  Doctors compel a drug-using pregnant woman to undergo an abortion •  Treatment is routinely given to residents of an institution without their consent as they are assumed to lack the capacity to make decisions about their treatment and care Right to Life EXAMPLES OF (POTENTIAL) VIOLATIONS • Doctors refuse to treat a person who is experiencing a drug overdose because drug use is illegal, resulting in the person’s death •  Drug users die as a result of poor fire safety in a locked hospital ward •  The mortality rate of an institution is particularly high during the • winter months due to the poor condition of the building, inadequate • sanitation and heating, and poor quality of care

16. Examples of health rights violations Right to Life EXAMPLES OF (POTENTIAL) VIOLATIONS • Doctors refuse to treat a person who is experiencing a drug overdose because drug use is illegal, resulting in the person’s death •  Drug users die as a result of poor fire safety in a locked hospital ward •  The mortality rate of an institution is particularly high during the winter months due to the poor condition of the building, inadequate sanitation and heating, and poor quality of care Right to the Highest Attainable Standard of Health EXAMPLES OF (POTENTIAL) VIOLATIONS • State fails to take progressive steps to ensure access to antiretroviral drugs for people living with HIV or to prevent mother-to-child HIV transmission •  Doctors and health facilities are not located in proportionate proximity to certain poor neighborhoods •  State systematically fails to provide training in palliative care for its medical personnel •  A child in a social care home becomes bedridden due to malnutrition •  Women with mental disabilities are denied reproductive health