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Summary: Summary notes from discussion on fifth topic of the UN Working Group for the communications procedure on implications of a communications procedure.
Discussion Topic Five: Implications of a communications procedure Ms Lee, Chair of the CRC, proceeded with her address by responding to a number of concerns raised by delegates during the course of the working group discussions. She firstly said that the reporting process of the CRC will not be jeopardized in any way by the addition of a communications procedure. Secondly, she addressed the workload issue on two levels. She said that in terms of the Committee’s workload, the Committee would look at how other mechanisms carry out their work, considering in particular the unique needs of children. In terms of the Secretariat’s workload, Ms Lee stated that there would need to be a consideration of additional resources which will be looked at. The third issue Ms Lee drew upon was the expertise of the Committee. She told the floor how currently seven experts in the Committee of the Rights of the Child have a legal background and raised that point that only the Human Rights Committee has a high level of legal expertise. Italy opened the discussions in this session addressing two concrete and practical questions. Firstly the delegation raised the issue of time constraints, asking what happens in the instance of a violation that occurred when the individual was a child, but the complaint is presented when that child is older than 18. Italy also asked how the Committee would envisage organising the treatment of a complaint within the Committee. Should there be an ad hoc Committee set up for complaints, Italy asked. The NGOs made a statement on unique rights of the CRC – See statement Slovenia then stated that “there are different types of implications. We have heard lots of positive implications and they have been discussed in depth, including strengthening of the national remedy systems. There is a strong and united view that the communications procedure is needed. We are confident that the way should not be too complicated. If the Committee, with their expertise and knowledge, believe that it would be in the best interests, then we should support this process,” the representative said. Slovenia continued by saying that “states should continue to seek advice of the Committee and experts in this field. We must make sure that the communications procedure is accessible, easily understandable and child sensitive. It is crucial to have child views and perspectives in mind when constructing the complaints mechanism. In our view, there is no doubt that the elaboration of an Optional Protocol is needed. There is no need to spend additional financial resources on this process of discussion," he continued. He further explained that in the second phase, they should discuss the specific provisions of an Optional Protocol and these should be drawn up prior to the next session. Switzerland commented on the future function of the Committee to develop jurisprudence. “How can we ensure that the necessary legal know how is represented on the Committee,” the delegation asked. They also said they were looking forward to hearing the implications on the Petitions Unit. Marcus Schmidt, from the Petitions Unit at the OHCHR, joined the discussion and provided a number of very useful insights into the workings of the other international human rights treaties with existing complaints mechanisms. He started by saying “I want to provide a few statistics of complaints before the bodies. There is sometimes a perception that the unit is swamped. The number of cases before the UN treaty bodies is very moderate, 432 cases pending on the Human Rights Committee, CAT has just over 80 and under CEDAW and CERD, a very small number of complaints. CRPD has not yet formally registered complaints but a limited number have been received.” He continued “When you look at the overall picture of complaints across the UN treaty bodies, about two per cent are for minors or children” Schmidt then broke down the various categories in terms of type of complaints registered, including the rights of children in the disseverment of marriages of their parents, personal security of minors in detention, sexual abuse of minors and issues relating to religious education of children in some countries, to name a few categories. Regarding the Standing issue, Schmidt said “this is by no means an easy issue to solve and was a high issue during CEDAW discussions. They are technical issues best left for the drafting stage”. Likewise he said that the issue of collective and individual complaints is best left to the drafting stage. He said “other treaty bodies do though have experience of group complaints. However it was always a requirement that each individual made the case for being a victim or having been violated (See ICCPR)” On exhaustion of domestic remedies, he states “the Human Rights Committee is the best jurisprudence for this. The means of redress is the most important characteristic to look at”. Schmidt responded to the issue of the deadline for submissions and said it should be flexible and not too long. The Human Rights Committee has had some experiences with minors where the complaints had gone back and forth. And the case of when the violation happened when the person was a minor but the claim was issued once s/he was older and no longer deemed a child needed to be avoided. He had a clear message on the backlog issue, “I also want to dispel the idea that as soon as an Optional Protocol is formed, the Petition Unit is swamped. This is certainly not the case as it actually usually takes a year or two to get the first complaints as you have to go through the exhaustion of domestic remedies”. “On the additional resources issue, this will be monitored as the process moves forward. Experience shows that resources are gradually needed to increase but only gradually over time. CEDAW has only had 23 cases and only one person is allocated to this. This gives you an idea of what might be expected if an Optional Protocol is entered into force for the CRC” Schmidt says. Ms Lee then responded to some of the questions and issues raised during the session, “I want to respond to how the current chamber may be reviewing the communications, the idea of say an ad hoc committee. I want to reiterate that we will build on best practices of other treaty bodies.” Responding to Switzerland’s legal expertise question Ms Lee says, “If you look at CRPD with 12 committee members, they only have 5 legal people, so I don’t see this as a problem. The Committee is not responsible for its own composition; the multi-disciplinary nature of the CRC will enhance the decision process on complaints”. Mr Zermatten joined this area of discussion saying, “It is important to have lawyers but also to have other professions represented. The full disciplinary range is appropriate. This does add a lot if you have non lawyers”. Schmidt then stated “I want to just supplement what Ms Lee said. Other Conventions do have working groups who work on the complaints issues in order to save time, by looking into certain cases. This has worked well in the Human Rights Committee and is beginning to work quite well with CEDAW. CAT works with case rapporteurs as they find this way more useful”. He continues, “Regarding the composition of treaty bodies, it is useful to have plenty of legal bodies but it is not a necessity and those without a legal background have made some very big contributions. Members of the Committee under CAT have made real contributions and are not all lawyers”. The Netherlands said it was good to hear from Marcus Schmidt about the workload and stated they were happy the number of complaints is quite low. The delegation asked if Mr Schmidt could provide statistics on admissibility. China then took to the floor saying they had some specific issues. The delegation stated, “Under the existing mechanisms, the child complaints are very low (2% as you say). We want to know then how valuable this Optional Protocol could be, considering that at the moment this percentage is so low. Why is it so low? Maybe the awareness raising effort is lacking or maybe there are other reasons. Is this mechanism efficient enough in protecting the rights of the child? We need to explore why this percentage is so low?” Poland asked if it was possible to provide an estimation of the highest possible number of cases that the Petitions Unit could deal with. Schmidt explained that there are statistics on inadmissibility both prior to registration and after. Prior, the Secretariat does pre-screening of complaints. To take away screening activities, out of incoming complaints, 80 to 90 per cent are screened out, shown to be inadmissible. For instance, they have not exhausted domestic remedies, or rights that are not protected under UN instruments. Often, alleged violations are not substantiated. Often, they are not in a position to further substantiate. Regarding backlog, he explained that treaty bodies that experience a little bit of backlog include the CAT and ICCPR bodies. Working methods are being reviewed to try to reduce this, for instance clustering cases that are almost identical. CAT has a smaller backlog and is also looking at options to resolve that. The average time is one year, he said, was 21 to 14 months. Ms Lee said that “we cannot at this moment foresee how many cases will come into the Committee”. The President then summarised the session’s discussion, saying that the CRC Committee will most likely operate in two chambers, that resources have been analysed. On the expertise of the Committee, he concluded that it is up to states to decide which members they want on the Committee, they can choose the composition in terms of lawyers. Finally, on the issue of resources, he said that as soon as they finish the elaboration of the Optional Protocol, more resources will be given. Peter Newell, expert, then made some final points referring to the European Court and applications made to this mechanism. He said that the European Court is the mechanism that has received the most applications from children. In describing one application, Newell said “one application was lodged on behalf of a 9 year old boy and his father. The initial application was filled in by a legal representative, authorised in signature by the boy and father. The Court found the boy’s case admissible, not the father’s”. In terms of protection, Peter Newell stated that “the court guarantees the individuals’ anonymity. They don’t have to attend in Strasbourg as their legal advisor can attend in their place, so this protects them” He also stated that “these hearings are against a state, not individuals which is worth bearing in mind. I am confident that the Committee’s procedures will safeguard protection.” Further information