![]() |
![]() |
|
||||
|
3/3
I. FRAMEWORKS FOR PROTECTION OF RIGHTS
D. MONITORING IMPLEMENTATION3. Regional LevelThe UN has established 5 Regional Commissions in order to be more effective in its decisions. 3.1 Economic Commission for EuropeThe Economic Commission for Europe (ECE) is involved in the monitoring implementation of rights of disabled persons. It has published the "European Handbook for Persons with Disabilities"16 and is involved in projects on rehabilitation, settlement and housing of the disabled. 3.2 Economic and Social Commission for Asia and the PacificThe Economic and Social Commission for Asia and the Pacific (ESCAP) and several Members' Governments of the region established a Trust Fund to promote the Decade of Disabled Persons in the Asia and Pacific Area (1993-2002) due to the scarce resources devoted to rehabilitation of persons with disabilities. Regional action should create self-help organisations for persons with disabilities, promote non-handicapped environments and facilitate regional and / or sub-regional co-operation on production of low-cost, high quality technical aids. During the UN Decade, ESCAP organised training workshops on management of self-help organisations to carry out surveys, prepare technical guidelines and regional conferences of non-Governmental organisations to promote the Decade for Disabled Persons in the Asia and Pacific Area. 3.3 Economic and Social Commission for Western AsiaSince 1981, the Member States of the Arab Gulf Programme for the United Nations Development Organisations, the Economic and social Commission for Western Asia (ESCAW), in co-operation with the UN Voluntary Fund on Disability have been financing projects and programmes for disabled persons world-wide. 3.4 Economic Commission for AfricaThe Economic Commission for Africa (ECA) called in the African Regional Conference on the International Year of Disabled Persons in 1980 for the development of regional programmes for the socio-economic integration of disabled persons in Africa. 3.5 Economic Commission for Latin AmericaIn Latin-America, the Economic Commission for Latin America (ECLAC)s efforts focus upon financial constraints and elimination of negative cultural factors on the image of disabled persons. 3.6 European Commission on Human RightsAccording to Protocol 11 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, a single permanent Court will replace the present enforcement of the Convention. This Protocol will come into force in November 1998; after this, the European Commission will no longer exist. Protocol 11 will then be entered into force. In order to be comprehensive, following are some quick reminders on the procedure before November 1998: The European Commission on Human Rights (ECHR) as established under the European Convention on the Protection of Human Rights and Fundamental Freedoms, monitors the implementation of the Convention by States Parties. It is able to receive complaints by the State Parties (article 24) or by any person, or group of individuals or NGO who claims to be a victim of a violation of the Convention (article 25). The Commission examines the petition and tries to reach a friendly settlement (article 28). If a friendly settlement cannot be reached, the Commission decides whether the facts found disclose a breach by the State concerned of its obligations under the Convention (article 31). The Commission reports its findings to the Committee of Ministers (article 31 (2), (3)). The Commission may bring the case before the European Court of Human Rights (article 48). If the Commission does not bring the case before the Court, the Committee of Ministers decides whether there has been a violation of the Convention. If the Committee decides that there has been a violation, it then prescribes a period during which the Contracting Party concerned must take the required measures according to the decision of the Committee of Ministers. If the Party concerned does not take the necessary measures within the prescribed period, the Committee of Ministers will decide the effects to be given to its original decision and shall publish the report (article 32). 3.7 Inter-American Commission on Human RightsThe Inter-American Commission on Human Rights (IACHR) is one of two bodies in the Inter-American System for the promotion and protection of human rights. Its mandate is found in the Charter of the Organisation of American States and the American Convention on Human Rights. The IACHR represents all of the member States of the OAS. It has seven members who act independently, without representing any particular country. In 1965, the IACHR was expressly authorised to examine complaints or petitions regarding specific cases of human rights violations. Up until 1997, the IACHR has received thousands of petitions, which have resulted in 12,000 cases, which have been processed or are currently being processed. The IACHR has the principal function of promoting the observance and the defence of human rights. The Commission receives a petition from any person, group of persons or non-governmental organisations alleging violations of the rights protected in the American Convention on Human Rights and / or the American Declaration on the Rights and Duties of Man. The Commission may only process individual cases where it is alleged that one of the Member States of the OAS is responsible for the human rights violation at issue. If domestic remedies were exhausted, the petition must be presented within six months after the final decisions in the domestic proceedings. When a case is opened and a number is assigned, the pertinent parts of the petition are sent to the Government with a request for relevant information. During the processing of the case, each Party is asked to comment on the responses of the other Party. The Commission also may carry out its own investigations, conducting on-site visits or requesting specific information from the parties. The Commission may also hold a hearing during the processing of the case. When the processing of the case is completed, the Commission prepares a report, which includes its conclusions, and also generally provides recommendations to the State concerned. This report is not public. The Commission gives the State a period of time to resolve the situation and to comply with the recommendations of the Commission. Upon the expiration of this period of time granted to the State, the Commission has two options. The Commission may prepare a second report and the State is given a second period of time to resolve the situation. Rather than preparing a second report for publication, the Commission may decide to take the case to the Inter-American Court. If it wishes to take the case to the Court, it must do so within three months from the date in which it transmits its initial report to the State concerned. The Commission will appear in all proceedings before the Court. 3.8 African Commission on Human and Peoples RightsArticle 30 of the African Charter on Human and Peoples' Rights stresses the existence of an African Commission on Human Rights within the Organisation of African Unity. The mandate of the Commission is to promote Human and Peoples' Rights. In particular, it collects documents; undertakes studies and research on African problems in the field of human and peoples' rights; organises seminars, symposia and conferences; disseminates information; encourages national and local institutions concerned with human and peoples' rights; and make recommendations to Governments (article 45, 1). The Commission also ensures the protection of human and peoples' rights under conditions laid down by the African Charter on Human and Peoples Rights (article 45, 2). The Commission receives communications from a State, when this State believes that another State Party has violated the provisions of the Charter (article 49). The Commission can only deal with a matter submitted to it after making sure that all local remedies, if they exist, have been exhausted (article 50). The Commission shall prepare a report stating the facts and its findings. This report shall be sent to the States concerned and communicated to the Assembly of Heads of State and Government (article 52). The Commission also receives other communications, which have to be brought to the knowledge of the State concerned. The Commission also makes a report on the other communications, as well (article 55-59). The applicable principles of Commission are as follows: "The Commission shall draw inspiration from international law on human and peoples' rights, particularly from the provisions of various African instruments on human and peoples' rights, the Charter of the United Nations, the Charter of the Organisation of African Unity, the Universal Declaration of Human Rights, other instruments adopted by the United Nations and by African countries in the field of human and peoples' rights, as well as from the provisions of various instruments adopted within the Specialised Agencies of the United Nations of which the parties to the (African Charter) are Members." 3.9 European Court of Human Rights3.9.1 Before November 1998The European Court of Human Rights17 was set up in 1959 under the European Convention for the Protection of Human Rights and Fundamental Freedoms to ensure the observance of the engagements undertaken by Contracting States under the Convention. Under the terms of the Convention, cases submitted to the Court must have originated in an application lodged with the European Commission of Human Rights by a State, a person, a non-governmental organisation, or a group of individuals. Protocol 9 enables an individual, a group of individuals or a NGO to refer their case to the Court after it has been examined by the Commission. The State or States are Parties to the case, as well as individual applicants who have referred their case to the Court in accordance with Protocol 9. The Commission also takes part in the proceedings. The Court decides all disputes regarding its jurisdiction. By majority vote, it gives final judgements which are binding on the States concerned and whose execution is supervised by the Committee of Ministers. The Court may, in certain circumstances, afford just satisfaction to the victim of a violation and consider requests for the interpretation or revision of its judgements. 3.9.2 After November 1998Protocol 11 provides for the setting up of a single permanent Court in the place of the Commission and the Court. The new single Court will have jurisdiction to deal with both individual and inter-State applications. It will usually sit in Chambers of seven judges, but cases may be declared inadmissible by the unanimous decision of a panel of three judges. On the other hand, the Chamber may, in certain circumstances, relinquish jurisdiction in favour of a Grand Chamber of seventeen judges. Judgements of Chambers shall become final, unless a party requests, within a period of three months from the date of the judgement, that the case be referred to a Grand Chamber. A panel of five judges shall decide whether the case should be examined by a Grand Chamber or not. Final judgements are to be binding for Contracting States and their execution will be supervised by the Committee of Ministers. With this new system, for the first time, the citizens of the Member States of the Council of Europe, and the States themselves, will be able to take their complaints of human rights violations under the Convention directly before an international tribunal. 3.10 Inter-American Court of Human RightsThe Ninth International Conference of American States18, in its resolution XXXI entitled "Inter-American Court to Protect the Rights of Man," considered that the protection of these rights " should be guaranteed by a juridical organ, inasmuch as no right is genuinely assured unless it is safeguarded by a competent court." and that " where internationally recognised rights are concerned, juridical protection, to be effective, should emanate from an international organ." The OAS General Assembly, in 1979, approved the Statute of the Court (Resolution 448). Article 1 defines the Court as " an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights." The Court has adjudicatory and advisory jurisdiction. Regarding its adjudicatory jurisdiction, only the Commission and the States Parties to the Convention are empowered to submit cases concerning the interpretation and application of the Convention. In addition, in order for a case against a State Party to be brought before the Court, the State Party must recognise the jurisdiction of the Court. In conclusion, one can say that the most effective protection that a person (especially a disabled person) can have, is when he / she is allowed to bring his / her case before the Regional Court and he / she is treated as a Party in the trial. The only system nowadays which applies this procedure seems to be the new European system of the European Court of Human Rights. Notes16 Published by the ECE in Spring 1995 17 For more information see Pentikainen / Scheinin and Bernhardt 18 Held in Bogota, 1948 |
Copyright © United Nations / Division for Social
Policy and Development |