HUMAN RIGHTS COUNCIL DISCUSSES PROGRESS OF WORKING GROUP ON COMPLAINT PROCEDURE

The Human Rights Council this morning discussed the progress of the Working Group on the Complaint Procedure, which is examining the effectiveness of the 1503 procedure as part of the overall review of the mechanisms inherited from the Commission on Human Rights.

Blaise Godet, facilitator of the Working Group on the Complaint Procedure, said the Complaint Procedure was a mechanism which covered all human rights, whether they were civil and political rights or economic, social and cultural rights. Even if further discussions could be held in order to fine tune how the principle was taken on board, there was a clear belief in the principle of exhausting domestic remedies before the Complaint Procedure could be launched.

Over the course of the debate, a number of speakers highlighted the need to maintain the 1503 procedure as a basis for discussions, to be improved as required. They also emphasized that the admissibility criteria for the Complaint Procedure should be clearly identified to include all categories of human rights violations, including economic, social and cultural rights and the right to development. Several speakers agreed with the emerging consensus that the 1503 procedure should be kept as a basis for discussion, and be improved as required.

With regard to admissibility of complaints, many delegations were of the view that the exhaustion of domestic remedies should remain a basic criterion. They also noted that a very slow decision-taking process affected the judicial system in many countries. Speakers expressed their views on the two-stage admissibility process in which the first Working Group should be composed of experts, chosen from a roster of experts with wide geographical representation and to be elected by the President of the Council, or by the High Commissioner for Human Rights, while the second Working Group should be composed of Member States, while ensuring geographical representation.

Issues concerning the confidentiality of the Complaint Procedure and when this confidentiality should be raised; making the procedure “victim-oriented”; informing complainants about the stage of the complaints; and whether the new system should take on an early-warning role were also discussed.

Speaking this morning were the representatives of Finland (on behalf of the European Union), Pakistan (on behalf of the Organization of the Islamic Conference), Russian Federation, Azerbaijan, Argentina, Bangladesh, Brazil, Philippines, China, Mexico, Canada, Algeria (on behalf of the African Group), Poland, India, Malaysia, Morocco, Indonesia, Nigeria, Tunisia, Guatemala, United Kingdom, Republic of Korea, Japan, Czech Republic, Uruguay, Cuba, Thailand, Belgium, United States, Singapore, Iran, Colombia, Bhutan, Spain, Sudan and Norway.

Also speaking were representatives of non-governmental organizations from International Commission of Jurists, UN Watch, and Centre–Europe Tiers Monde.

When the Council reconvenes at 10 a.m. on Thursday, 7 December, it will discuss the issue of expert advice.

Presentation by Facilitator of Working Group on Complaint Procedure

BLAISE GODET, Facilitator of the Working Group on the Complaint Procedure, said this was an open-ended inter-Governmental Working Group which was tasked with formulating specific recommendations on the re-examination of the confidential Complaint Procedure - the 1503 Procedure, which was inherited from the Commission. It had until mid-June 2007 to accomplish the task. The Working Group had held several meetings, which had been open to all interested delegations. The meetings had allowed the facilitator to draw up a list of several points upon which discussions could focus, and then, as the process matured, the list had become a kind of Road Map. This latter had no other ambition than to focus discussions by providing some options.

The preliminary conclusions of the facilitator were more preliminary than conclusions, Mr. Godet said - the paper was food for thought, an attempt to draw up an inventory or list of the points upon which he felt he could identify the emergence of a consensus, as well as issues upon which further discussions would be necessary. There were also suggestions on the way in which the discussion could be focussed. In these points for consideration, Mr. Godet had just wished to help the discussion, structure it, and give it a clearer context. The elements which were of consensus and convergence included that delegations seemed to be in agreement to recognise that the 1503 procedure could be a useful basis of work, given that the mandate and raison d’être of the Working Group were to improve the procedure.

The Complaint Procedure was a mechanism which covered all human rights, whether they were civil and political rights or economic, social and cultural rights. Even if further discussions could be held in order to fine tune how the principle was taken on board, there was a clear belief in the principle of exhausting domestic remedies, so the Complaint Procedure could only be launched once all domestic remedies had been exhausted at the national level. There was also agreement on the fact that the complaint mechanism should be made up of two separate stages - the one that was today carried out by the Communications Working Group, and the one carried out by the Situations Working Group. The procedure should remain confidential. In establishing the mechanism, the Council should ensure that it avoided duplication and any gaps in protection. Discussions needed to continue on the links to establish, or not, between the Complaint Procedure and the Universal Periodic Review.


Statements on Presentation by Facilitator of Working Group on Complaint Procedure

KATRI SILFVERBERG (Finland), speaking on behalf of the European Union, said that the European Union shared the opinion that the current 1503 procedure was to be kept as a basis for their work. However, the deficiencies of the current procedure must be addressed and the Human Rights Council should focus its work to improve the procedure to guarantee a complaint mechanism that in an efficient, impartial, objective and reliable information, victim-oriented and timely manner, addressed violations that met the threshold of a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms.
In order to keep the Complaint Procedure truly victim-oriented and geared towards the promotion, protection and prevention mandate of the Human Rights Council, the threshold for violations should not be higher than in the current system, as rightly put forth in the facilitator’s paper.

Effective implementation of the admissibility criteria was ensured inter alia by appointing independent and impartial experts who possessed the relevant expertise to the first Working Group that was made up of experts. The High Commissioner should make the appointments from a roster of experts that should be regularly updated and maintained by the Office of the High Commissioner for Human Rights. With regard to the second session Working Group that consisted of Member States, there should be in the Working Group representation from each of the regional groups.

MASOOD KHAN (Pakistan), speaking on behalf of the Organization of the Islamic Conference (OIC), said the OIC supported the continuation of the 1503 procedure. The ideas about the preventive or early warning role of the complaint procedure, as of now, were not clear and would require further consideration. The new concept of a high “threshold” of violations was vague and imprecise. It could be subjectively interpreted and it could lead to politically motivated complaints. “Gross and consistent violations of human rights” should remain the anchor of admissibility and should be used as the barometer. The existing criteria for admissibility of complaints or allegations of human rights violations under the 1503 procedure should be faithfully observed. Complaints should be made by persons or by groups of persons who were victims of violations and not by individuals “acting in good faith”. Domestic remedies needed to be exhausted before a complaint was considered. The UN Charter should continue to be the basis for the admissibility criteria of complaints.

Confidentiality should remain the fundamental principle of the Complaint Procedure. Instead of naming and shaming States in public proceedings, a confidential procedure would work effectively to redress complaints at the first stage. Information should be made public only if a State demonstrated unwillingness to cooperate with the procedure. Confidentiality was also necessary to provide relief to an individual or group of individuals. The author should not be involved in the consideration of the complaint. Such involvement would undermine confidentiality. Focus might be given to the capacity building and technical assistance needs of the developing countries whose cases were under consideration of the complaint procedure.

NATALIA ZOLOTOVA (Russian Federation) said the preliminary conclusions in general completely and fully reflected the contents of the discussions, and could be a good basis for future work. The Russian Federation’s position on the 1503 procedure had been stated a number of times. On the scope of the procedure, Russia disagreed with the conclusion that there was consensus, and fundamental discussions needed to be held. The Council was not ready for a wider procedure which would include such rights as third-generation or collective rights, in particular the right to development. It was also not yet clear what the victim-oriented procedure should be. On the confidentiality of the procedure, the many years of the existence of the procedure had shown that it was a unique non-judicial and non-treaty procedure which had proved its worth due to its confidentiality, and therefore this should not be changed.

The Council could examine how to introduce more open and inclusive procedures, for example by considering how to inform complainants on the results of their complaints. There was a link between the confidentiality principle and the Universal Periodic Review, as well as other Council mechanisms. There should be additional admissibility criteria for the 1503 procedure. It was unacceptable for the procedure to be used as an early-warning mechanism for the Universal Periodic Review - this would violate the confidential nature of the procedure and interrupt the regular cycle of review of countries, as well as turn the Universal Periodic Review to a quasi-judicial procedure.

ELCHIN AMIRBAYOV (Azerbaijan) said that all efforts should be made to attain consensus. Azerbaijan supported the definition of gross and reliably attested violations of human rights and fundamental freedoms as provided in the General Assembly resolution. On admissibility of complaints, they should not be politically motivated, and it was important that first domestic procedures should be exhausted.

Azerbaijan believed that the composition of the first Working Group should be made up of experts. It agreed on the duration of mandates and frequency with which the Human Rights Council should deal with the complaint procedure, as proposed in the facilitator’s paper. It did not support any links with the Universal Periodic Review, as this would endanger the confidentiality fixture of the complaint procedure

SERGIO CERDA (Argentina) said significant progress had been made in the discussions of the Working Group. The 1503 procedure should further be strengthened through reviewing the procedure. Victims should be provided with ample information on the situation of their complaints and the stage in which it was found. Confidentially should be the main issue that should be stressed in order to protect the victims from any further abuses. The capacity of the Office of the High Commissioner for Human Rights in addressing information on the complaints should also be strengthened. The Chairperson of the Communications Working Group should work in cooperation with the Bureau of the Council. The permanent nature of the Council would also allow it to take follow-up measures.

MUSTAFIZUR RAHMAN (Bangladesh) said the 1503 procedure was one of the oldest human rights complaints procedures in the United Nations system. It had evolved over the years to the present shape, and should be improved without moving away from the stated objectives. Addition of new elements such as early-warning would jeopardise the procedure and make it controversial. The main problem of the procedure lay in the non-compliance with admissibility criteria. The mechanism should be improved if the Working Group as a whole, not the President, decided on the admissibility of communications. The comments on the difference between politically-motivated and politicised communications had been read, and a legal opinion could be given on this.

The two stages for consideration, the first by Experts drawn from the future advisory body, and the second from States, were supported. Election to these bodies was preferred. Confidentiality was the cornerstone of the procedure, and should be maintained, unless the Council decided otherwise during consideration of single cases. The procedure should not be too long. There should be no conflation between the procedure and the Universal Periodic Review, as this would endanger confidentiality.

SERGIO ABREU E LIMA FLORENCIO (Brazil) supported the main fixtures of the 1503 procedure as it was fundamental in the promotion and protection of human rights. It agreed with the emerging consensus that the 1503 procedure should be kept as a basis for discussion, and be improved as required. Brazil favoured that exhaustion of domestic remedies should remain as a basic criteria. Nevertheless, they should be realistic and keep in mind that a very slow-decision process affected the judicial system in many countries.

Brazil supported the two-stage admissibility process. The first Working Group should be composed of experts, chosen from a roster of experts with wide geographical representation and should be elected by the President of the Human Rights Council. The second Working Group should be composed of Member States representing the different regional groups.

On confidentiality, the complaint mechanism should be kept confidential as to ensure protection of victims. Brazil favoured that the Human Rights Council consider situations under this procedure at least twice a year.
JUNEVER MAHILUM WEST (Philippines) noted that many areas of consensus or emerging consensus had been identified in the preliminary conclusions of the facilitator, and a significant number still needed further discussion. The Philippines welcomed the initiative of the facilitator to suggest possible points for compromise on certain items, as part of the overall effort to bring the Council closer to its goal. The Working Group and the Council were now mid-way in that task. The results of the open-ended consultations by the Working Group had equipped the Council Member States with a good basis to start negotiations. On the issue of admissibility criteria, specifically on non-duplication, there was a near consensus in wanting no duplication by the Council’s Complaint Procedure and other human rights complaint mechanisms such as the Special Procedures, in addressing exactly the same complaints. In that regard, some way had to be devised in order to determine the most appropriate body to handle such a complaint.

KE YOUSHENG (China) said the progress report had a clear format, contained areas of consensus and areas for further comment, and reflected the discussions of the Working Group. On the objective and scope, the existing objective and scope of the procedure were supported, in particular the use of the term “allegations”, as many reports could only be described thus, as their reliability remained to be proved. The criteria list in the emerging consensus was supported, but there was a need for further discussion. The mention of politically-motivated criteria should remain.

Many delegations had emphasised that the composition of the Secretariat should reflect geographical considerations. Most delegations had stressed the importance of confidentiality, and the new mechanism should remain confidential throughout the process. On the participation of the author of the communication, this was supported, however, there was no emerging consensus on when complaints should be taken up for informal consideration. There was no emerging consensus on the frequency for which the Council should consider situations. There should be no link between the procedure and the Universal Periodic Review.

JOSE GUEVARA (Mexico) said the discussions on the Complaint Procedure had taken the 1503 procedure as a basis. Mexico hoped that Member States would reach further convergence over the necessary changes to make to the 1503 procedure. The main objective of the Complaint Procedure should be that it offered victims of violations of human rights a genuine possibility that their cases should be considered on an individual basis, and not only as one more case in the identification of a pattern of gross violations and reliably attested violations of human rights and fundamental freedoms.

Nevertheless, Mexico did not find any merits in supporting a threshold based on “consistent pattern of gross and reliably attested violations,” under the pretext of attaining a “manageable and doable” procedure. On the contrary, for the procedure to be manageable and doable, it should not duplicate procedures of communications of identical nature. To reach this objective and reliable information, the Secretariat had an important role to play, as it had been doing in the past.

On confidentiality, this matter required further discussion, in particular considering that the Human Rights Council, according to General Assembly resolution 60/251, should set up methods of work that were transparent, fair, impartial, and that also enabled a genuine dialogue.

JOHN VON KAUFMANN (Canada) agreed that the current 1503 procedure criteria should remain the basis for the Complaint Procedure, with improvements where necessary. In particular, the scope and admissibility criteria should remain the same. The number of stages should be simplified and shortened in order to provide for more timely consideration of complaints and more rapid action by the Council. On confidentiality, there should be provisions that would automatically waive confidentiality where a State did not respond by the necessary deadline. As with communications to a Special Procedure, a State should have 90 days to respond. Upon request, that deadline could be extended by a further 30 days. However, if no response was forthcoming by the deadline, the communication should be made public, subjected to privacy and security concerns of the author, and considered by the working group on its merits. That could serve as an incentive for States to cooperate with the Council by providing prompt responses to communications.

In order to ensure a more timely response to complaints, the Council should consider the recommendations of the Working Group at each of its regular sessions. On possible action by the Council, Canada would suggest that, where further information was requested from a State, a deadline for the response should be set, following which the Council should take a decision. Canada would support the inclusion of options such as the establishment of a fact-finding mission or referring the communication to a Special Procedure for follow-up and dialogue, as well as the option of offering or recommending technical assistance and advisory services.

IDRISS JAZAIRY (Algeria), speaking on behalf of the African Group, said the Complaint Procedure should avoid taking the form of a tribunal, and should emphasise cooperation and capacity-building. On admissibility criteria, the criteria of the exhaustion of domestic remedies was approved. Other criteria concerning avoidance of politically-motivated initiatives, avoidance of duplication and respect for the United Nations Charter were supported. The selection of acceptable complaints should be the remit of the first Expert Working Group, and not just its Chairperson. It should be accountable for screening decisions to the second Working Group, composed of Council members. The members of both Groups should be chosen by the Council, and elected in such a way to ensure equitable gender and geographical representation.

Neither Working Groups could break the confidentiality of the procedure - only the Council had this authority. The Secretariat should continue to keep States informed at the same stages as the author of the complaint. The number of Members of the Group could be maintained or increased, while keeping an equitable balance. The Chair should be elected from among the Members, by the Members. The Council should elect the members of the Group. The outcome of the procedure should be reviewed annually, at the March-April session. Linking the procedure to the Universal Periodic Review was not acceptable, as this made it look like a sanction. There should also be no linkage between the 1503 procedure and suspension of Human Rights Council membership.

MACIEJ JANCZAK (Poland) said that the Complaint Procedure should focus on the victims of violations of human rights. In this context, Poland advocated for swift consideration of cases before the two Working Group, and shortening the 12-month existing period. Nevertheless, swift consideration did not mean hasty treatment of the cases; on the contrary, the Council should appropriately deal with them.

The first Working Group, focusing on the admissibility criteria, should be composed of experts of proven expertise in judicial systems and professionalism. The High Commissioner should appoint them. The second Working Group should be composed of Member States and would propose measures to be taken by the Council.

The Office of the High Commissioner for Human Rights should carry out pre-screening of the complaints procedure at an early stage. It was important to strike a balance between confidentially and transparency.

RAJIV CHANDER (India) said that the Council’s focus should be on addressing situations where a consistent pattern of gross, systematic and reliably attested violations of human rights had been established. In that regard, India did not envisage the complaint mechanism to be playing the role of an early warning system with a preventive role. Consideration of complaints, including those received by Special Procedures, by a single complaint mechanism, offered several advantages, which had been elaborated on several occasions by India. The national human rights institutions had a useful role to play in various stages of the Complaint Procedure with merited careful consideration. In that context, India might refer to the exhaustion of domestic remedies, processing of complaints and implementation of the recommendation of the Council.

HSU KING BEE (Malaysia) said the preliminary conclusions identified the relevant key subjects for continuing work in this area. There should be a clear, objective and all-encompassing definition of the objectives of the future mechanism. The confidentiality of the whole process should be preserved. There should be a clear and universal understanding of what was meant by the term “victim”. The future complaint mechanism should not take the form of a trial or court of law, but should seek necessary clarification instead. The scope should follow the existing 1503 procedure. The mechanism should be applied universally, so it did not target just certain countries.

The Complaint Procedure should not deal with communications that were manifestly politicised, or that were dealt with by another Special Procedure or treaty body. The admissibility criteria should be strictly observed and applied at all levels. The Secretariat should undertake the original screening for allegations that were manifestly unfounded before passing them on to the Working Group. Confidentiality was an essential element, and should be maintained at all stages, and it should be up to the Council to decide if a matter should remain confidential after it had been considered. The work programme for each Council’s session should not be overburdened, and therefore the report of the Working Group should only be taken up once a year. There should be an efficient complaint mechanism in order to address violations in a timely manner.

MOHAMMED LOULICHKI (Morocco) said with reference to the scope of the Complaint Procedure that it should remain confidential and deal with gross and reliably attested violations of human rights and fundamental freedoms wherever they occurred in the world. Violations should be dealt with in a fair manner taking full account of the victims’ rights.

Domestic remedies must have been exhausted before a communication was considered. On the first Working Group of experts, this body should consider the admissibility of complaints, and then report to the second Working Group, composed of Member States. Both Working Groups should enjoy the support of the Secretariat of the United Nations High Commissioner.

Morocco stressed that confidentially should be observed throughput the two- stage admissibility process. The complaint mechanism should promote and improve the capacity of developing countries in the provision of information.

ANDRE MARENTEK (Indonesia) fully supported the retention of a system of Complaint Procedure in the further work of the Council, which would offer a good basis for new modalities for addressing human rights violations in a less politicized, more constructive manner. It was also equipped with a mechanism for the follow-up of discussions on recommendations and their implementation. Two fundamental elements reflecting the best aspects of the existing mechanisms were confidentially and staged deliberations. In that respect, the present 1503 procedure provided a sound basis for the discussion. The Working Group generally accepted the principle that in order to improve the present system, some modifications as well as improvements were called for. That approach was in line with the view that the Council should maintain that procedure using the best and strongest elements as practised under the current 1503 procedure, while leaving out its shortcomings.

ABDUL BIN RIMDAP (Nigeria) said as a time-tested human rights complaints mechanism, the 1503 procedure remained relevant, as it sought to reveal systematic gross human rights violations in all parts of the world. The Complaint Procedure should be impartial, objective, efficient, victim-oriented, and carried out in a timely manner. Its scope should be all human rights and fundamental freedoms, including the right to development and the right to water. It should not be based on mass media reports, nor duplicate a case already being dealt with by a Special Procedure, and should ensure that all domestic recourses were taken first.
All stages in the procedure should remain confidential, and the decision to go public on any individual case should be the decision of the Council, based on advice from the second Working Group. The first Working Group should be made up of qualified, independent and impartial experts, and the Second by representatives of States. Neither should ignore the concept of geographical representation and gender. The Human Rights Council should dedicate time in one session to complaints under the mechanism. Where requested, the Council should provide technical and capacity-building aid in order to avoid the repetition of the problem.

MOHAMMED CHAGRAOUI (Tunisia) said the Human Rights Council should follow the criteria of the 1503 procedure and thus avoid pitfalls and politization of the question. The1503 procedure should deal with gross and reliably attested violations of human rights and fundamental freedoms. The work had to be done by the two Working Groups, which should base their work on the Universal Declaration of Human Rights and any other relevant human rights treaties Member States had become parties to. There was a need to avoid abuse of the procedure, and enforce transparent rules. Confidentiality was a major asset and it should be maintained to foster a dialogue of cooperation among all parties.

CARLOS RAMIRO MARTINEZ ALVARADO (Guatemala) said the job of the Working Group was to review the complaint mechanism and contribute to its improvement. During the negotiation process, the Working Group had identified areas of improvement and had raised issues that should be focused on. One needed to avoid duplication so that the Council and any other complaint mechanism did not deal with the same communication. A State was responsible for providing information at the right time after receiving the communication from the Council. The issue of confidentiality should also be addressed even if the State was not cooperating. When the State thoroughly investigated complaints at the domestic level and responded to the communication of the Council, in reality it was cooperating.

NICHOLAS THORNE (United Kingdom) said the emerging consensus on the objectives of the Complaint Procedure included the intention that it would handle complaints in an impartial, objective, efficient, victim-oriented and timely manner. It was very easy to get caught up in the intricacies of bureaucratic processes and to lose sight of the fact that this was, in the end, about allegations, which could or could not ultimately be substantiated, of the most serious human rights violations. It was self-evident that such a mechanism was required. The terribly serious issues raised should be dealt with more efficiently and more rapidly than they were in the current process.

A system should be designed which allowed the Working Groups to meet more often and to process cases more efficiently, with tighter deadlines for States to respond. The Council should consider cases at the first session after they had been referred to it. What needed to be excluded were complaints which sought a political outcome which was extraneous to the human rights issue at stake.

LIM HOON-MIN (Republic of Korea) said that in developing the objectives of the mechanism, the Republic of Korea noted with satisfaction that a consensus was emerging. Even though confidentiality was a fundamental element of the Complaint Procedure, it was also one of the main obstacles present in the 1503 procedure. Therefore, there was a need to continue discussions on this matter. A balance should be stricken between confidentiality and transparency. The author of a complaint procedure should be kept informed throughout the process.

On the composition of the Working Groups, equitable geographical representation should only be applied to the second Working Group. The first Working Group should be composed of experts drawn from a roster to be updated by the Office of the High Commissioner for Human Rights. On duration of the complaint procedure process, three years was too long period in ensuring the protection of victims of gross violations of human rights and fundamental freedoms. Human rights violations should be dealt with in a victim-oriented and timely manner. The period of consideration should not exceed two years.

SHIGERU ENDO (Japan) believed that the current system for complaints, which was amended in 2000, worked quite well. Therefore, only corrections should be made where changes were really necessary. With regard to areas requiring further discussion, Japan thought that one more issue should be added, namely, whether or not “reasonable grounds” or “evidence” to believe that communications might reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms was necessary. With regard to the emerging consensus, Japan agreed with those elements given by the facilitator, except “when it is taken up for substantive consideration”. Japan fully recognized the importance of the participation of the author of the communication. However, it would be a tremendous burden on secretaries to notify the author if they had to do so every time the communication was taken up for substantive consideration.

LUKAS MACHON (Czech Republic) said on the objectives of the mechanism, the Complaint Procedure should primarily provide protection against human rights violations and reliably attested violations. Protection should not only be provided to exposed victims, and there was an essential preventative function. It should not serve as an early-warning mechanism for the Special Procedures. On complaints not meeting the threshold criteria, these could be transmitted to the Council for consideration through an appropriate mechanism such as the Universal Periodic Review. On admissibility criteria, these needed to be clearly stated.

It was essential that the application of domestic remedies did not have to apply in certain cases, such as when these remedies were ineffective. There should be no admissibility criteria such as identifying the author and the procedure. The composition of the first Working Group should be Experts appointed by the High Commissioner from candidates on the roster. The composition of the second Working Group should be one representative per regional groups, and there should be certain guarantees or criteria that the Members would not protect the interests of fellow States.

ALEJANDRA DE BELLIS (Uruguay) said that the 1503 procedure should be improved to become an effective tool to protect the victims of persistent patterns of gross and reliably attested violations of human rights and fundamental freedoms. On admissibility of complaints, independent experts should manage it. Further discussions would be necessary to address the question of the exhaustion of domestic remedies. Uruguay was concerned about those cases in which some States did not have the capacity to deal with the gross violations or in which the process was too lengthy. Confidentially was a way of facilitating the cooperation of the States concerned.

RODOLFO REYES RODRIGUEZ (Cuba) attached great importance to the Complaint Procedure. It constituted a fundamental tool for the work of the Council. The Complaint Procedure required the full cooperation of States in order to reach arrangements. It was essential that the review mechanism put an end to politically motivated complaints. The complaint mechanism should be able to establish clearly the criteria for the admissibility of complaints. Cuba would support the consensus reached in the Working Group with regard to the Complaint Procedure. And also, Cuba would continue to support the work that the Council was doing. Cuba believed that the new complaint mechanism would guarantee legitimacy and avoid the aspects that were used by the former Commission on Human Rights. The effectiveness of recommendations should also be given a thought.

PITCHAYAPHANT CHARNBHUMIDOL (Thailand) said the objectives, principles, scope, admissibility criteria and mode of operation of the current 1503 procedure was useful and should constitute a basis for the future complaint mechanism of the Human Rights Council. The complaint mechanism should consider only the allegations of a consistent pattern of gross, systematic and reliably-attested violations of human rights and fundamental freedoms. Confidentiality should remain the main characteristic of the complaint mechanism. The future complaint mechanism should maintain the existing practice of the 1503 procedure, which comprised two Working Groups.

The consideration of communications should be undertaken in a timely manner. The existing four possible measures to be taken by the complaint mechanism upon proposals made by the second Working Group were supported. On the possible relationship with the Universal Periodic Review, it was not appropriate at this stage to link the two mechanisms together.

JOCHEN DE VYLDER (Belgium) stressed the importance of improving cooperation of States and having a Complaint Procedure that was victim-oriented, and ensured an efficient procedure. It was proven that confidentiality improved the prospect of cooperation of States. The Complaint Procedure should be composed of two stages enabling the concerned country to be invited to demonstrate its cooperation before the two Working Groups, while maintaining confidentiality. This approach entailed the intrinsic link between confidentiality and cooperation. Nevertheless, if the concerned country was not able to solve the question, the Working Group would then refer the matter directly to a plenary open session of the Council, without resorting first to a confidential plenary session. This would improve the credibility of the Working Groups by positively encouraging effective cooperation on the ground.

JEFFREY KOVAR (United States) said that there was widespread agreement that the current 1503 procedure worked in a satisfactory way to address gross and systematic violations that had not been resolved though domestic procedures. The United States view was that one should start with the presumption that the current system should not be changed unless a compelling need was established. The current complaints mechanism played a vital role, and did so quite well. Two basic admissibility criteria had existed since the procedure was created in 1970, and they should remain unchanged. The United States had proposed that the Secretary perform a more robust technical screening-out of inadmissible complaints together with a single Working Group of government experts to review the remaining cases. However, even if the Council would choose to maintain the current structure of two Working Groups, it was essential that the second-stage government expert Working Group be clearly empowered to reject complaints that did not meet the admissibility criteria. The United States did not agree with suggestions that the second Working Group could only look at possible measures.

WEI JIANG HO (Singapore) said there were three key points in the report. On the objectives of the complaint mechanism, the original aims of the 1503 procedure should be retained. Some delegations would like to widen the objective by having the procedure play a preventative role, but this was not necessarily a good idea. In the case of early warning, the Universal Periodic Review would be better placed to play this role. Trying to broaden the scope of all mechanisms to cover all violations would compromise effectiveness. On the broadening of criteria, the concept of exhaustion of domestic remedies was well defined and understood in international law. The key problem of the 1503 procedure was strict adherence to the key admissibility process.

A system of checks and balances would require the retaining of the Secretariat. Confidentiality was essential to the effectiveness of the Complaint Procedure, and it was important for all stages to remain confidential, unless the Council decided otherwise. The Human Rights Council was a standing body and recommendations could be raised at any one of the regular sessions throughout the year - timeliness was no longer an issue.

SEYED KAZEM SAJJADPOUR (Iran) said with reference to the scope of the Complaint Procedure, Iran firmly believed that it should be mandated to address allegations of violations in all parts of the world having implications within and outside the national borders. In addition to the admissibility criteria mentioned under the emerging consensus, the criteria should also include: information and knowledge transmitted by the author should be complete enough to give the possibility to the concerned State to make a through investigation; admissibility criteria to be applied at all levels, including within the second Working Group; and both Working Groups should have a mandate to take measures, including discontinuing a case before they decided whether they needed to be transmitted to the higher body when the admissibility or other criteria had not been met. Iran supported two separate stages together with a pre-screening phase.

CLEMENCIA FORERO UCROS (Colombia) said the establishment of criteria for admissibility was essential to set up a parameter on the complaints. The Working Groups on the complaint mechanism should represent equitable geographical representation. The Complaint Procedure could not be a judicial body. The first Working Group dealing with communications should be composed of experts while the second Working Group should be composed of representatives of governments. The presence of governments in the Working Group would be essential so diplomatic channels could be used with regard to the working of the group.

SONAM T. RABGYE (Bhutan) said the future complaint mechanism should be based on the strengths of the 1503 procedure. It should bear in mind the interests of the victims of gross, systematic and reliably attested violations, who should be the focus of the protective aspects of the procedure. However, there was a need for balance, and the burden of proof should not be borne entirely by Governments - claims should be substantiated by factual evidence.

On the admissibility criteria, the provision should be retained that allegations should not be manifestly politically motivated. Omission of this essential criterion could turn the system into a political free for all, excessively overburdening the mechanism as well as States. All stages of the procedure should remain confidential unless the Council decided otherwise. It had been suggested that the mechanism be directly linked to the Universal Periodic Review, but Bhutan was not convinced that the recommendation for the country concerned to be urgently reviewed under the Universal Periodic Review should feature among possible measures to be taken by the Human Rights Council.

JOAQUIN MARIA DE ARISTEGUI LABORDE (Spain) said that the Working Group had been working on the basis of a growing consensus. Spain underscored the need to improve the previous mechanisms. Spain attached great importance to duly reflect in the conclusions references to dealing with significant and persistent patterns of gross and reliably attested violations of human rights and fundamental freedoms. It was essential that the list of criteria to be established were applied in a coherent and effective fashion.

ALI IDRIS ALI (Sudan) said the admissibility criteria for the Complaint Procedure should also focus on economic, social and cultural rights and the right to development. It was essential that the Complaint Procedure should not duplicate the work of the treaty bodies. The role of the Office of the High Commissioner for Human Rights would be limited as the two Working Groups took over some aspects of the Complaint Procedure. The first Working Group should be made up of competent experts to deal with communications while representatives of States should be present in the second Working Group. The second Working Group should always stress the importance of the provision of advisory services and technical assistance to States under scrutiny.

PETTER WILLE (Norway) said one of the strengths of the 1503 procedure was that it covered all human rights in all countries, irrespective of the ratification of human rights treaties. The scope of the revised procedure should remain as for the 1503 procedure, namely all human rights and fundamental freedoms with a high threshold of violations. New admissibility criteria should not be added to the existing ones. Domestic remedies should be exhausted, but this was not required when it appeared that these would be ineffective or unreasonably prolonged.

The number of stages that existed currently should be kept. The expertise and independence of experts should be ensured. On confidentiality, the authors of a complaint should be informed when the complaint was received, as well as about the result of the process. The author should have the possibility to provide further information.

SUSAN APPLEYARD, of International Commission of Jurists, said that to ensure the integrity, expertise and the non-political nature of the expert advice body in charge of the assessment, clear rules and procedures should be established for the nomination of experts on how to ensure their independence and impartiality, including ensuring that experts did not hold government positions and that they did not participate in the examination of a country if they were a national or resident of this country.

LEONIE WAGNER, of United Nations Watch, said a mechanism that allowed human rights victims and their advocates to bring to the Council’s attention to situations of gross and systematic human rights violations would be an essential aspect of that body’s ability to promote and protect human rights effectively worldwide. Under the 1503 procedure, only a very small number of the situations raised in victims’ complaints actually came before the Commission and, for those that did, the time from complaints to consideration by the Commission was quite long – an average of three years. It was hoped that under the new procedure, the review process would be streamlined and speeded up.

MALIK OZDEN, of Europe-Third World Centre, in a joint statement with International League for the Rights and Liberation of peoples; Movement against Racism and for Friendship among Peoples (MRAP); and Women's International League for Peace and Freedom, said the goal of the mechanism should be efficiency. Complaints should be based on the Universal Declaration of Human Rights and the obligations contracted by States after ratifying human rights treaties. Admissibility criteria should be clearly defined. The procedure should be public, and should be further simplified, and be given to a group of independent Experts elected by the Council on the basis of geographical representation. In the case of possible reprisals or difficulties, victims should be represented by non-governmental organizations.

For use of the information media; not an official record

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