Seconding the Case for More Transparency on Human Rights Bodies’ Decisions

[Lisa Reinsberg is an international human rights lawyer and the founding executive director of the International Justice Resource Center.]

I nodded along with Moisés Montiel’s recent post, in which he called for the Inter-American Commission on Human Rights to provide an individualized explanation when rejecting petitions at the initial processing stage. The secondary effects of the IACHR’s pro forma rejections can include second-guessing, cynicism, and resentment – especially when they come so many years after a petition’s submission; Montiel suggests that reasoned rejections would better satisfy petitioners while also improving the IACHR’s credibility and efficiency and helping advocates to meet the admissibility requirements. I welcome Montiel’s call for the start of a conversation on this topic, and would like to contribute by identifying some relevant concerns shared across supranational human rights systems, as well as some possible steps for achieving the objectives Montiel identifies. 

Initial Review of Human Rights Complaints

First, a few words on initial review as a feature of human rights complaint processes. The United Nations human rights treaty bodies and the regional mechanisms of Africa, the Americas, and Europe all screen individual complaints to ensure that they satisfy certain criteria in order for their petitions to be considered and communicated to the State. Complaints must generally include information about the petitioner, victim, and responsible State; a concise recitation of the facts; identification of the rights allegedly violated; and, an explanation of whether and how domestic remedies were exhausted and if other international dispute settlement procedures were pursued. Increasingly, human rights bodies provide (or mandate the use of) a standard complaint form and publish guidance on its completion. Based on the information supplied, the human rights body’s elected members (or, more often, its secretariat staff) will conduct a prima facie determination of admissibility and of its personal, territorial, subject matter, and temporal jurisdiction. Importantly, when a complaint survives initial screening, it will then enter the admissibility phase, during which these same criteria will be assessed in full, based on both the petitioner’s and the State’s submissions.

The initial review is confidential and conducted out of public view. Perhaps as a consequence, applicants may be unaware that their complaint could be rejected without a full evaluation by the body’s elected members. As Montiel notes with regard to the IACHR, individual rejection letters offer little clarity even to those directly involved, given their formulaic nature or lack of detailed reasoning. The decisions are not published. Human rights bodies generally lack processes through which the public can request information on these rejected complaints, or standards to guide its divulgence.

The majority of complaints do not survive a first screening. The IACHR’s Executive Secretariat rejects approximately 75 percent of petitions following an “initial review.” The European Court of Human Rights (ECtHR) Registry filters out clearly inadmissible applications to be handled by single judges, albeit with more detailed reasoning than had been previously provided; 64 percent of incoming applications were thus allocated to single-judge formations in 2020. Communications to the UN human rights treaty bodies undergo an initial screening (prior to registration and transmission to the State) by staff of the Office of the High Commissioner for Human Rights, which does not publish the relevant statistics. The European Committee of Social Rights (ECSR) may declare a complaint inadmissible if the “admissibility conditions are… manifestly unfulfilled,” but does not share information on rejected complaints.

A notable outlier is the African Commission on Human and Peoples’ Rights (ACHPR), which recently reduced the relevant requirements in its 2020 Rules of Procedure and rejects a lower proportion of complaints in its initial “seizure” phase. In order to avoid duplication of the Commission’s admissibility analysis and put the Secretariat in charge of seizure decisions, the ACHPR no longer asks complainants to show compliance with the time limit, exhaustion of domestic remedies, and non-duplication requirements at this stage. While the ACHPR does not publish annual statistics on communications, it appears to have rejected seizure of approximately 10 to 20 percent of communications identified in recent activity reports (however, approximately half of surviving complaints are later deemed inadmissible).

On the other hand, the ACHPR’s changes to the seizure phase can be seen as part of a broader trend toward streamlining complaint processes in the interest of efficiency. The ECtHR, for example, recently introduced “summary-formula judgments and decisions” for three-judge committees. Similarly, the African Court on Human and Peoples’ Rights’ new Rules of Procedure follow the ECtHR in authorizing a pilot judgment procedure. Human rights bodies seem to view efficiency and transparency as opposed, while Montiel argues that transparency can improve efficiency. Which is true?

Transparency as Instrument

In the opening chapter of Transparency in International Law, Andrea Bianchi walks through different formulations of transparency: as culture, concept, information, illusion, and power. Bianchi describes transparency as “always an attribute; an accident to substance; an instrument to purpose.” I see this idea mirrored in Montiel’s appeal to the practical benefits of increased transparency in the initial processing phase, including enhanced credibility for the IACHR, improved efficiency, and better-informed advocacy. We can view increased transparency in this particular context as an instrument of public relations and of advocacy, for example.

On the individual level, receiving a more reasoned explanation of a rejection could reduce second-guessing and confusion on the part of complainants. It may not, however, eliminate resentment or cynicism regarding the outcome (or its delay in arriving). Aoife Nolan recently wrote, for example, of the UN Committee on the Rights of the Child’s inadmissibility decision in the climate change case and the (partly inaccurate) criticism it generated, despite the Committee issuing a detailed analysis as well as a simplified explanation. In Montiel’s example of rejected precautionary measures, I bet he would still disagree with the outcome, no matter how detailed the explanation. I take his point, though, that any explanation is better than an inscrutable or non-existent one, both for litigants’ peace of mind and as a signal of the human rights body’s integrity.

Adopting more robust decisions may improve public perceptions of transparency and accountability, as well, thereby increasing confidence in human rights bodies. Here, I am reminded of Bianchi’s description of transparency as “illusion.” If (almost) no one would read these decisions, except in the rare high-profile case, would their dissemination make a difference? Perhaps so. When one thinks of the underfunding, lack of visibility, weak compliance, and hostility that human rights bodies endure, a boost in public confidence seems pretty important. There is also the possibility that sharing their reasoning could help combat the perception that human rights bodies sometimes avoid particularly controversial cases by rejecting them as early and quietly as possible.

Would greater transparency around initial review decisions also reduce the number and rate of rejected complaints? It seems undeniable that if initial rejections included detailed reasoning and were available publicly, practitioners could better understand and meet the screening requirements. As he says, Montiel would know how to change or augment future submissions if he understood precisely why the IACHR rejected his arguments, even if he disagreed with the reasoning. More broadly, being able to read these decisions would clarify how, exactly, a particular body approaches this task – that is, with what level of analytical rigor and consistency. This point, I think, is particularly important given the limited visibility into this procedural phase and the variations in practice across human rights bodies.

Transparency as Right & Obligation

Beyond the pragmatic considerations, perhaps the most compelling reason for human rights bodies to explain rejections at the preliminary stage is that petitioners may – or should – have a right to a reasoned decision. Some human rights mechanisms allow petitioners to seek reconsideration of an initial rejection, but this right can only be properly exercised if the petitioner understands the legal reasons and factual basis for the rejection. As the ACHPR stated in Kwoyelo v. Uganda, “the right to a reasoned judgment is an inherent part of the right to a fair trial.” As such, “judgments of courts and tribunals should adequately state the reasons on which they are based” because this is “essential for litigants to be able to decide what course of action to take next including appeal and review. The principle of judicial transparency also demands it.” In deciding whether to reject applications on “fourth instance” grounds, for example, the ECtHR considers, inter alia, whether the “the factual and legal reasons for the impugned [domestic] decision were set out at length.” Although the specific nature and context of a decision may allow for summary reasoning, the ECtHR has stated that domestic courts of appeal “with responsibility for filtering out unfounded appeals and with jurisdiction to deal with questions of fact and law in civil proceedings are required to give reasons for their refusal to accept an appeal for adjudication.”

The publication of human rights bodies’ decisions has implications for the human right of access to information, as well. The Inter-American Juridical Committee’s Principles on the Right of Access to Information, for example, assert that “all public bodies” are subject to access-to-information requirements, including the judicial branch. At the international level, experts including former  UN Special Rapporteur on freedom of opinion and expression David Kaye, have argued that access-to-information obligations should apply to international organizations. To the extent that human rights mechanisms have obligations under customary international law – and from both a moral and pragmatic perspective – respect for petitioners’ due process rights and the public’s freedom of information should be part of this conversation.

Costs of Full Transparency

Achieving the broadest benefits of transparency would require that initial review decisions be: 1) reasoned and detailed; 2) published (ideally, online); 3) translated (at least in keeping with the practices for other types of decisions); 4) and, searchable via a database or digest. If these four conditions are satisfied, the public – including practitioners – would be able to locate relevant precedent and apply it in their advocacy. If rejection decisions remain unpublished, then the only change required would be in fleshing out the reasoning in the letter or decision sent to the petitioner, to the extent that this would be a new practice. What are the foreseeable costs involved?

While Montiel suggests that the effort required to produce more detailed initial review decisions “should not be too great or taxing,” perhaps this underestimates the resources required. While the IACHR Registry, for example, does prepare an internal summary of the facts and abbreviated analysis regarding the admissibility requirements, this document is a preliminary evaluation for review and discussion by other Secretariat lawyers. For the IACHR to move from a pro forma letter to sharing detailed reasoning with petitioners would require more than simply sharing that internal analysis (some of which crystallizes through oral discussions); it could require additional drafting time on the part of a Registry lawyer and revision by more senior staff, presenting ample opportunity for a backlog to grow, further delaying notification of the decision. Again, rejections upon initial review outnumber accepted complaints in at least some human rights systems.

Then there are the resources and time needed for the publication and translation of this comparatively huge volume of decisions if they are made public. Where, as is true of the IACHR and ACHPR, the human rights body does not maintain a searchable case law database, publication alone does little to advance advocates’ access and understanding. Regardless, additional digital infrastructure would be required; for example, the European Court of Human Rights does not publish single-judge decisions in its case law database and destroys the relevant files after one year. Changing these practices would require investment.

Some Possible Solutions

Would this use of resources be worthwhile? On the individual level, I agree that petitioners should receive detailed, individualized decisions when a human rights body decides to reject their petition upon initial review. As a matter of legitimacy, due process, and clarity, this practice makes sense. Additional resources would be required, to be sure, but this seems to me to be a duty that human rights bodies should not shirk.

However, rather than prioritizing the public dissemination of initial review decisions, I would propose that human rights bodies instead prioritize: 1) publication and accessibility of admissibility decisions; 2) enhanced statistical reporting for the public; and, 3) guidance and explanations of the initial review phase. Human rights bodies would better serve petitioners by ensuring that their admissibility decisions are available online in all official languages and can be researched through full-text search or filtering criteria. These decisions contain more in-depth analysis of the criteria assessed during initial review, but are sometimes unavailable or difficult to research. The ACHPR, for example, does not currently publish positive admissibility decisions, and prohibits petitioners from publishing them, interpreting the African Charter and its rules to prohibit disclosures in pending cases.

Second, the ACHPR, ECSR, and UN human rights treaty bodies, in particular, could share information on the number and proportion of petitions rejected in the preliminary stage; all bodies could provide additional statistical information on the grounds for rejection and other significant details. Doing so would aid legitimacy and public confidence.

Third, all human rights bodies could more clearly and transparently explain the initial review phase as an important, formal aspect of the complaint process and detail the analysis involved. The IACHR’s Digest on admissibility and competence, first published in 2020, provides some welcome clarity in this regard, for example. Taken together, these improvements would likely advance both efficiency and transparency. Finally, as always, States and other funders should allocate additional funds for these purposes.