COMPLAINTS MECHANISM: Joint statement by NGO Group on draft OP – Articles 4, 5 and 6

Summary: Compilation of joint oral statements delivered by the NGO Group for the CRC at the second session meeting with the Open-ended Working Group on an Optional Protocol to the Convention on the Rights of the Child 6-10 December 2010.

Joint statement on Articles 4 to 6 of the draft Optional Protocol to the CRC

Delivered on 7 December by Anita Goh, Advocacy Officer of the NGO Group for the CRC
 

This statement is made on behalf of the 77 member organisations of the NGO Group for the CRC. 

Mr Chairman,

We strongly support Articles 4 and 6, as currently drafted in the proposal.

Regarding Article 4:

We would like to stress that it will be very important to make sure that all communications can reach the Committee without any time limit, especially in the case of children, who might encounter special obstacles in reaching this procedure and might not be aware of the existence of this international communications procedure within the time limits proposed by some delegations. 

While regional courts, such as the European Court, are close to potential complainants and well-known by them, it is clear that international communications procedures do not enjoy the same level of knowledge at the national level. 

We are thus concerned that time limits, as the one suggested by some delegations, would in practice limit the access to this communications procedure and would strongly suggest to avoid adding any such limits.

In addition, we would like to recall that regional courts do not have competence to adjudicate cases under the CRC or its OPs. Though regional courts may refer to those international instruments, they are not bound to apply their provisions and therefore, any decision taken by such bodies should not prevent complainants from using the communications procedure we are discussing now.

With regard to exceptions to exhaustion of domestic remedies:

It is the standard practice of other treaty bodies that domestic remedies need not  be exhausted if it can be shown that they are “not effective, not available or unduly prolonged”. Article 4 d only recalls those exceptions while recalling the duty of the Committee to interpret them in accordance with the complainant population concerned, that is to say, children.

With regard to the format of the communication:

We support Brazil's approach of reserving this matter for the Committee's rules of procedures. If States were to decide to include that communications should be submitted in writing, we would like to stress that it will be important to not preclude the submission of other types of material.

Regarding Article 5 of the proposal:

The NGO Group fully supports the possibility of interim measures. The point of such measures is to ensure that the right to complain and seek a remedy is not rendered ineffective through irreparable damage to the complainant. This is an essential part of any communications procedure, as without such measures, irreparable damage to the complainant would make the submission of a communication to the Committee useless.

Therefore, in addition to the possibility for the Committee to request interim measures, it will be indispensable to make explicit the requirement for States Parties to implement the interim measures requested.

We thus support the suggestion made by the Committee on the Rights of the Child and Liechtenstein, to expressly include in the text of the OP a requirement that States parties shall take all appropriate steps to implement the interim measures requested by the Committee.

Finally regarding Article 6:

We welcome and support the statements of several States in support for keeping the three months requirement. While we understand the arguments of federal States, it is essential to ensure that the communications procedure is handle in a swift manner both by the Committee and the responding States and to take into account the impact that delays may cause to a child's well-being and development.

With regard to the anonymity of communications:

We agree that in the context of individual communications, States would generally need to know the identity of the victim and we would like to support the suggestions made by several states that also include the possibility of withholding the identity of the victim in exceptional circumstances. We particularly welcome the proposal made by Finland on that matter.