Access to justice

1. Access to justice – an overview

Script

According to international human rights law the state should respect, protect and
promote everyone’s right to freedom of religion or belief without any
discrimination. But we know from experience that many people’s rights are not
respected or protected! So what can we do when freedom of religion or belief is
violated?

There are many different ways to work to build more just societies in which
freedom of religion or belief is respected. In the five presentations on access to
justice we are going to focus on how we can use legal systems and institutional
bodies to stop violations of freedom of religion or belief and find justice. On the
website you can also find films and materials that look at other methods and
strategies for working to make freedom of religion or belief a reality such as
advocacy, awareness raising and documenting violations.

So how can you use law and institutions to access justice if your
freedom of religion or belief is violated?

As you might have guessed this is a tricky question to answer at the global level
because the answer depends almost entirely on who you are, what kind of
violations you experience and where you live. That might sound unfair, but there
is a reason for it.

Human rights are meant to be ensured through the actions of the governments
who stated that they would respect, protect and promote them when they signed
human rights conventions. You are meant to be able to turn to local and national
justice systems when your rights are violated. You should have access to justice at
the local and national level.

– Now in some countries justice systems do well in upholding human rights.
– But in many countries there are problems within the justice system, for
example police who refuse to take up minorities’ cases, judges who make
judgements based on their own prejudices rather than the law or really
long waiting times to have cases heard.
– And in some countries the law itself undermines rights as do the
government, police force and judiciary. The entire system actively
oppresses people.

So what can we do when we don’t have access to justice at the local and national level?

Once again this depends on where you live. In some parts of the world there are
regional systems to turn to, for example the Inter-American Court of Human
Rights, The African Court of Human and Peoples’ Rights or the European Court
of Human Rights. These courts make judgements that are binding upon the state.

At the global level we can also turn to the human rights system of the United
Nations.

But even though regional courts and global systems can result in binding
judgements against, criticism of and recommendations to a government, these
judgements and recommendations can’t be enforced.

That’s because there is no international police force that can force the
government to change their laws, policies and practices. Human rights law is
often called soft law, precisely because judgements that are binding in theory
can’t be enforced in practice, unless the state chooses to enforce them.

Many governments do want to improve their human rights record and are
sensitive to international criticism. But it’s important to remember that
international human rights law can’t be enforced at the regional and global level
in the way national laws can.

You might be wondering if the United Nations isn’t a global police force given
that the UN Security Council can order military interventions under the UN flag.
In truth there aren’t very many such interventions, partly because the different
political interests of Security Council members make it hard for the council to
agree. And when the Council can agree, troops are only sent in when conflicts
threaten international security. Their job isn’t to make sure human rights treaties
are followed in general.

You might also be wondering if the International Criminal Court, the ICC, isn’t a
global human rights court that can make governments follow human rights. But
the ICC only tries individuals, for example a head of state or a member of the
military, and only for having ordered or committed the most severe and
systematic crimes – genocide, war crimes and crimes against humanity.

History gives us good reason to believe that it is wiser to base the human rights
system on strengthening governments’ home grown commitment and willingness
to change than on military intervention.

The process of building societies that respect, protect and promote human rights
is often long, painful and frustrating. It involves building knowledge of and
respect for human rights in justice systems, in the policies and practices of local
and national authorities and in the minds of ordinary people. It also involves
making human rights a reality through the ACTIONS of people like you and me,
as we respect them in our everyday lives.

Lots of people and organisations are striving to make rights a reality.
In India a coalition of organisations highlighted violence and discrimination
against Christians and Muslims ahead of a United Nations review of how India
upholds human rights. As a result over 20 countries asked the Indian government
questions about freedom of religion or belief during the UN review.

To sum up:
National governments have signed human rights treaties and are thereby
responsible for making sure that human rights are respected in local and national
contexts. So when human rights are violated we should be able to turn to local
and national systems of justice to find remedies.

When these systems don’t work we can also turn to regional or global human
rights courts and systems.

But although international courts and bodies can make binding judgements
against and criticize national governments, international bodies have no way of
forcing governments to stop violating rights and protect people. There is no
international police force to ensure human rights are followed.

For a more in depth look at access to justice at the local, national, regional and
global levels, watch the separate videos on these topics which you can find on the
website.

Copyright SMC 2017

2. Access to justice at the local and national level

Script

So how can we find justice in our local communities and at the national level
when rights are being violated?

This is a tricky question to answer on a general and global level as a relevant
answer to a very large degree will depend on:

– who you are
– what violations you have experienced and whether they are being
committed by the state or by non-state actors
– what the your country’s laws say on FoRB and how they are implemented
in reality.

The answer is also going to depend on whether the legal system in your country
can be trusted and whether there are non-legal human rights institutions such as
well-functioning ombudsmen or minority commissions.

Another way of putting this is to say that the first thing you need to do in order to
access justice is some research into your own context! In this film we’re going to
give you some pointers about the kind of information you need to find so that you
and your organisation will know what to do when rights are violated.

The first thing to look at is the law. What does the law say about
religion or belief in general, and about the issues that concern you in
particular?

The national constitution plays an important role in setting the overall framework
for how freedom of religion or belief is to be implemented. What does the
constitution of your country say? Looking at the issue that concerns you, is it
handled in civil or criminal law and are there local bylaws that might be relevant?
It’s also important to look at bureaucratic regulations that have to be followed.
For example what regulations apply to building or running places of worship,
religious charities or schools?

When you are looking at the law it’s important both to find out if there are laws
that can be used to support your rights and if there are laws that undermine your
rights. Sometimes national laws aren’t in line with the constitution, or local
bylaws contradict national laws. Knowing this can help you choose the best
strategy.

If you don’t know much about the law, then finding the information you need
might sound like a daunting process. A great shortcut is to ask a civil society
organisation that specialises in the issue, or a national network of faith
communities that has the information you need!

It’s also very helpful to have good, trustworthy lawyers to help you when you want
to understand what the law says, report a violation or challenge a law. Is there a
lawyer within your community that could help? Or a non-governmental
organisation that provides legal help to minorities or victims of human rights
abuses? In India a number of lawyers in 2014 formed a national hotline to which
individuals could call in order to receive free legal advice when they experienced
freedom of religion or belief violations. If similar networks of trustworthy human
rights lawyers exist in your country then do contact them for help!

Once you know what the law says about your issue of concern you
need to find out who you can turn to for help:

Let’s start with your local police station:

Local police stations should be key to enabling people to access justice. Their
work to collect evidence and document crime forms the basis of successful
convictions. So it’s important to know and understand the procedures for
reporting a crime: what forms have to be filled in, what kind of information is
required, and what should you keep a record of when you meet the police.

If possible, it’s a good idea to build a relationship with your local police station in
order to try to counteract any prejudices officers have and help them take the
risks your community faces seriously.

A common problem in some countries is that local police officers are unaware of
the rights of citizens and of laws concerning religion or belief. Finding ways to
raise police officers’ awareness of legal rights might prove useful in motivating
police to act more effectively when violations happen.

Local police stations should also be key to preventing crime. Making them aware
of rising tensions between religious communities at an early stage is one way for
religious communities to help the police to act early to prevent violence erupting.
In the United Kingdom an NGO called Tell Mama documents hate crimes against
Muslims. By mapping where and how often attacks occur they’re able show the
police, local authorities and local religious leaders that tensions are rising in a
particular community and encourage them to act to prevent the situation from
escalating. Of course, dialogue with the police isn’t always possible – in some
places the police are deeply prejudiced, corrupt or actively involved in violations.
But where it is possible dialogue can be a very useful method. Constructive
relationships of dialogue with local police can be of great value to individuals and
communities affected by freedom of religion or belief violations.

The court system connects the local level to the national level. Most cases are first
heard at the lowest level courts in a local area or region, but if one of the parties to
the case is unhappy with the outcome, they can appeal the case to a higher court.
Usually there are several levels of courts such as magistrate’s courts, high courts,
courts of appeal and supreme courts, each having more authority than the one
below it.

When a local or national law itself violates freedom of religion or belief you need
different strategies and a different kind of court. The job of constitutional courts
is to decide if laws made by parliaments or local authorities are in line with the
constitution or not. You might need to cooperate with other victims as well as
lawyers to bring a case to a constitutional court. Of course if the constitution itself
violates human rights then this won’t help.

If you want to take a case to a regional international human rights court you have
to exhaust all avenues for legal redress in your own country first, taking your case
all the way up to the national Supreme Court or Constitutional Court.

Another way to change laws is work with advocacy and awareness raising to make
politicians understand why the law is problematic and create public opinion in
support of change. Watch our separate videos on advocacy and awareness raising
to learn more about this.

Police, lawyers and courts make up the justice system but pursuing cases through
the courts whilst very important is often a costly, time consuming process that
can take many years. None the less some organisations succeed in pursuing cases
through the courts. The Egyptian Initiative for Personal Rights managed to get a
ruling from the administrative courts which allowed Bahais to leave the religion
section of their identity card blank, instead of being forced to identify themselves
as Muslims or Christians.

Working with court cases can consume a lot of time and money. So in many
cases it’s worth looking for non-judicial bodies that can help in other ways.

In many local contexts religious or community leaders and politicians can use
their influence to help put things right when a violation occurs. Building
relationships of trust with them can help to motivate them to use that influence,
and use it wisely!

In some places there are local negotiation and reconciliation systems that can
help settle disputes without involving the courts. In some cases victims find these
systems helpful, not least because they can be much cheaper and faster than the
courts. But sometimes reconciliation processes can be abused as a way of
bypassing justice, with minority communities feeling obliged to participate in a
process that time and again allows offenders from majority communities to get
away with just saying sorry or providing symbolic compensation.

At the national level, many countries have institutions such as discrimination
ombudsmen, minority commissions or national human right institutions that can
help follow up and resolve freedom or religion or belief violations. Sometimes a
telephone call from the national minority commissioner is enough to make a
police station take a complaint seriously and do something about it.

In many countries national human rights institutions are accredited by the
United Nations. These accredited institutions have the task of linking the national
and the international levels of the human rights system. For example, they
prepare reports for the UN on the human rights situation in the country. They
gather and receive complaints about human rights violations from both
individuals and organisations and this information is passed on to the diplomatic
channels of the UN. They also play an important part in putting pressure on
national governments to abide by the human rights conventions they’ve signed.

So it’s well worth finding out whether there are ombudsmen, minority
commissions or national human rights institutions in your country, learning how
they operate and making a habit of relating to them when violations occur. One
word of caution, in some countries these institutions don’t have independence
from the state. Check out the reputation of institutions in your country with an
NGO that you trust.

Whether you’re working at the national or local level to seek justice, your choice
of strategy is going to be context specific, case specific and will depend on the
kind of organisation you are. A thorough context analysis, including a conflict
analysis is an important basis for choosing a strategy.

On the website you’ll find films and other resources on how to do context and
conflict analyses. There are also group exercises that can help your organisation
to identify and develop methods and strategies to prevent and respond to
Freedom of religion or belief violations.

To sum up:

In order to seek justice you will need to learn about the law and about the various
bodies – police, courts and other bodies that might be able to help you find justice
at the local and national level. You will also need to work out your strategy based
on an analysis of your context and your organisations identity and opportunities.
Even if approaching the police or the legal system in your local and national
context at first seems pointless, it’s important to look at what possibilities local
and national systems offer before disregarding them in favour of international
systems. Not least because making local and national systems work better is at
the heart of promoting human rights.
There are some countries where local and national remedies are not available, but
it’s not uncommon that people are unaware of laws that could actually help to
protect them. And if you want to take a specific case to international courts or
complaints systems you will usually need to exhaust the opportunities to get help
at the national level first.
In the next three films we’ll look at how international levels can be approached
and used in order to access justice when freedom of religion or belief is violated.

Copyright SMC 2017

4. Access to justice at the global level

Script

Access to justice at the global level; what to do when local and national
systems haven’t worked

As we mentioned in the other films on access to justice the primary level at which
we should be able to access legal justice is at the local and national level. But in
some contexts local and national systems don’t exist or don’t work effectively. So
what do you do when all your domestic options are used up or if domestic options
don’t exist?

There are two possibilities, regional human rights systems and global
mechanisms. In this film we’re going to focus on global mechanisms – on the
human rights mechanisms of the United Nations.

It’s important to remember that UN human rights mechanisms are not courts.
They don’t have legal authority and can’t order international intervention into the
affairs of sovereign states. There is no international police force. What UN human
rights mechanisms can do is put international pressure on states to respect,
protect and promote human rights.

Three United Nations bodies that it’s useful to know about are the Office of the
High Commissioner for Human Rights, the Human Rights Committee, and the
Human Rights Council.

1. The Office of the High Commissioner supports the human rights work of the
United Nations as a whole. The Office assists States in upholding human rights,
for example by providing technical training on legislative reform or the
administration of justice. The office also empowers individuals for example
through human rights education.

2. The governments of the world have agreed on nine core human rights
conventions or treaties. For each one of these treaties there is a so called treaty
body. A Treaty Body is a committee of independent experts that monitors what
states are doing to implement the treaty. Freedom of religion or belief is provided
in article 18 of the International Covenant on Civil and Political Rights or ICCPR.
The treaty body that monitors the ICCPR is called the human rights
committee. If your government has signed the ICCPR then once every four
years it has to submit a report to the Committee on how the rights in the covenant
are being implemented. The Committee examines the report and puts its
concerns and recommendations to the government in a document called
“concluding observations”. Civil society organisations can contribute to this
process by producing shadow reports and engaging in dialogue with the
committee to highlight violations.

Do you know if your country has signed a document called the First Optional
Protocol to the ICCPR? If you don’t know then find out! If your country has
signed, then it’s given the Human Rights Committee permission to consider
individual complaints. That means that anyone in your country can complain to
the committee if their freedom or religion or belief, or other civil and political
rights, have been violated. A complaint can be brought either by the individuals
affected or by a third party working on their behalf (like an NGO). A third party
can only bring a complaint if they have written consent from the individuals
affected or if those affected are in prison without access to the outside world.

So treaty bodies like the Human Rights Committee monitor how states are
implementing human rights treaties, make recommendations to states and
receive and act upon individual complaints.

“http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCCPR1.aspx”

3. The Human Rights Council has been set up by the UN General Assembly – in
other words by all 193 member countries of the UN. And the General Assembly
elects 47 countries to sit on the Council. So the council is an inter-governmental
body – with diplomats sitting on it.

The Human Rights Council’s task is to strengthen and promote all human rights
in all countries and to address human rights violations. The Council has two ways
of working that are particularly important to know about – the Universal Periodic
Review and appointing special rapporteurs, including the special rapporteur on
freedom of religion or belief.

The Universal Periodic Review or UPR reviews the situation for all human
rights in all of the UN’s 193 member states. It’s the only process in the world
where the human rights records of all UN member states are examined in the
same way regardless of whether the countries are powerful or weak, rich or poor.

The UPR is a system of peer review, where good practices and experiences from
one country can be shared with others. But there’s also an element of “naming
and shaming”. States don’t like having their human rights weaknesses pointed
out publicly by other states so many states do make efforts to improve even if
there are others that don’t.

You can find a separate film on how the UPR works in practice and how civil
society organisations can participate in it on the website.

So the Human Rights Council is responsible for the Universal Periodic review.
Another way in which the Council works is to appoint so called ‘special
procedures’, these are independent experts who look at a specific theme or
country as part of a working group or individually, holding the title independent
expert or special rapporteur.

The special rapporteur on freedom of religion or belief, the special rapporteur on
freedom of expression and the special rapporteur on minority issues are three
examples of thematic ‘special procedures’. There are also special rapporteurs for
some countries where the Council regard the human rights situation as being
particularly bad, like Eritrea and Iran. You can find more information about what
countries and themes have special rapporteurs or working groups on the
OHCHR’s website. If there is a special rapporteur for your country it’s important
to know about it!

But let’s focus on the role of the special rapporteur on freedom of religion or
belief – Mr Ahmed Shaheed.

The special rapporteur’s role is:

– to encourage governments to take action to promote and protect freedom
of religion or belief;
– to identify obstacles to freedom or religion or belief and recommend ways
to overcome them;
– to examine violations of freedom of religion or belief;
– and to apply a gender perspective.

The rapporteur has several ways of working:

One is to make fact finding country visits to investigate incidents or learn about
good practices. Visits are made on invitation from the government concerned.

The special rapporteur also receives complaints about violations from individuals
and organisations. Complaints can submitted through an online form on the
Office of the High Commissioner for Human Rights’ website. When submitting a
complaint it’s good to keep in mind that the information needs to be accurate,
include details of the event you are complaining about and what state action has
been taken. Remember that the rapporteur will only act on the complaint if
permission is given by the victim or their family or legal counsel.

Complaints are important because if they provide enough evidence that a
violation of freedom of religion or belief is taking place, the special rapporteur
can write an urgent appeal or allegation letter asking the state concerned to
provide explanations and suggest solutions.

Unlike complaints to regional courts or UN Treaty Bodies, victims can raise their
case with special rapporteurs before exhausting national remedies and even when
the State concerned has not ratified the relevant human rights conventions.

Communications between the special rapporteur and the government concerned
are initially confidential, but the full text of all communications sent and replies
received are published in communications reports to the Human Rights Council
three times a year. The names of alleged victims are usually included in
communications and reports, although they’re sometimes removed due to
concerns about privacy or protection. The identity of the source of information is
always kept confidential: It’s not included in the communication sent to the
Government or in the public communications report.

Reports from the Special Rapporteur to the Human Rights Council are useful
resources and important inputs to the UPR process. Special Rapporteurs work
hard but they do have limited time. That’s because they are not paid and have to
do the work of the rapporteur at the same time as having another job.

If you haven’t related to the United Nations before then all this information
probably sounds very bureaucratic and complicated. But don’t be put off! It is
possible for ordinary people and organisations to use this knowledge. Getting in
touch with the special rapporteur, for example, is easier than you might think.

To sum up

When local and national systems of justice haven’t worked you can highlight
violations through to the global human rights mechanisms of the United Nations.

The Human Rights Committee monitors what states are doing to live up to the
rights specified in the International Covenant on Civil and Political Rights,
including freedom of religion or belief. States have to report to them once every
four years and the Committee recommends steps that the government could take
to improve the situation. The committee also receives individual complaints.

The Human Rights Council oversees the Universal Periodic Review, which looks
at the state of human rights in each country of the world once every four and a
half years. There are several ways for civil society to feed information about
violations into the review so watch the separate film on this for more information.

The Council also appoints special procedures. The special rapporteur on freedom
of religion or belief is one of these and undertakes country visits, receives and acts
upon complaints about violations and produces reports on freedom of religion or
belief.

Together with local, national and regional systems of justice, these global human
rights mechanisms form the framework through which we can try to find justice
in relation to human rights violations, including of course violations of freedom of
religion or belief.

Copyright SMC 2017

5. Access to justice – the Universal Periodic Review

Script

In this film we’re going to take a look at one way in which civil society can
highlight human rights violations at the global level and work for change – the
Universal Periodic Review or UPR.

The UPR takes place in the United Nations Human Rights Council. The Council
has been set up by the United Nations General Assembly which Assembly elects
47 countries to sit on the Council. The Council meets three times a year in
Geneva, and you can watch the Council’s sessions via the web on UNTV.
(http://webtv.un.org/)

The Human Rights Council’s task is to strengthen and promote all human rights
in all countries and to address human rights violations.

The Universal Periodic Review is a good example of this. The UPR reviews the
situation for all human rights in all of the UN’s 193 member states. It’s the only
process in the world where the human rights records of all UN member states are
examined in the same way regardless of whether the countries are powerful or
weak, rich or poor.

The UPR is a system of peer review, where good practices and experiences from
one country can be shared with others. But there’s also an element of “naming
and shaming”. States don’t like having their human rights weaknesses pointed
out publicly by other states so many states do make efforts to improve even if
there are others that don’t.

So how does the UPR work in practice?

42 countries are reviewed every year meaning that each United Nations member
country is reviewed once every four and a half years. You can find a link to the
timetable for UPRs on the website of the Office of the High Commissioner for
Human Rights – it’s a good idea to find out when your country is going to be
reviewed next!

There are four stages to the UPR process:

Firstly three reports are prepared and submitted to the Human Rights Council:
one from the government being reviewed, one summarising input from UN
experts and one summarising input from civil society and national human rights
institutions.

The government report is 20 pages long, so really quite short! In it the
government describes how they see the human rights situation in the country and
what they’ve done to implement the recommendations made by the Human
Rights Council, when it last reviewed the country. The government is meant to
consult with civil society organisations in the country when preparing the report.

The report summarising input from independent UN experts is 10 pages long and
is prepared by the Office of the High Commissioner for Human Rights. The UN
Special Rapporteur on Freedom of religion or belief is one of the experts whose
input is included.

The Office of the High Commissioner also submits a 10 page report summarising
credible information from National Human Rights Institutions and civil society
organisations regarding the human rights situation in the country.

It should be possible for civil society organisations to feed into all three reports –
by being part of government consultations, by engaging in dialogue with the
special rapporteur, and by feeding into reports from National Human Rights
Institutions and other NGOs, or by preparing their own reports to send to the
Office of the High Commissioner. Any civil society organisation can send in
reports – you don’t need to be UN accredited!

Of course, doing all of that is a lot of work. For most organisations a good place to
start is to send well documented information on violations to National Human
Rights Institutions, national and international NGOs and to the Special
Rapporteur so that your concerns can be included in their reports.

The three reports form the basis for the review and are made public shortly before
it takes place.

The second stage of the UPR process is a three and a half hour review session at
the Human Rights Council in Geneva. During that session any member country of
the Council can comment on the reports and make recommendations as to how
the government can improve the situation. Although they can’t make statements
at the review session UN accredited civil society organisations can observe these
review sessions and often organise seminars and lobby meetings in connection
with them.

The third stage of the process is the publication of a report summarising the
review and listing the Council’s recommendations to the government.

The government then makes a written response to these recommendations.
Usually governments pledge to implement some recommendations, give reasons
for delaying work on others, and reject or ‘take note’ of some recommendations.
These written responses are discussed at a regular session of the Human Rights
Council and UN accredited civil society organisations are allowed to make
statements at that session.

The final and most important stage of the process is of course the four and a half
years of implementation that follows the review, during which the government is
supposed to live up to its pledges. Monitoring whether it does and advocating for
implementation are important tasks for civil society.

All of the documents linked to the UPR, including civil society submissions, the
Human Rights Council’s recommendations and the government’s pledges are
published on the Office of the High Commissioner’s website. It’s really useful to
know about the recommendations and pledges as you can refer to them in
advocacy work. National media often pays attention to the country review which
can also create opportunities for you to highlight the issues you’re working on.

Experience has shown that civil society input to and follow up on the UPR is most
effective when it’s done by coalitions rather than lots of separate organisations in
an uncoordinated way. Which NGOs and faith communities could you collaborate
with?

A good place to learn more about the UPR and to link up to other NGOs working
to influence your government is via an NGO called UPR Info, based in Geneva.
UPR info works to raise awareness of the Universal Periodic Review and build the
capacity of civil society and other actors to engage with the UPR.

To sum up:
The UPR reviews the situation for all human rights in all of the United Nations
193 member states. Each country is reviewed once every four and a half years.

There are several stages to the review process:

1. Firstly, three reports are prepared one from the government concerned,
one from UN experts and one from civil society and national human rights
institutions.
2. The Human Rights Council has a three and a half hour discussion of these
reports. UN accredited civil society organisations can observe these review
sessions and often organise seminars and lobby meetings in connection
with them.
3. After the review session a report of the Council’s recommendations is
published.
4. And the government concerned provides a written response by pledging to
act on some recommendations, delay action on others or to just take note
of recommendations without pledging any action.

During the four and a half years that follows, the government should implement
its pledges. Civil society can monitor this and both the council’s
recommendations and the government’s pledges are useful in advocacy work.

On the website you’ll find links to the Human Rights Council’s website as well as
films and other resources to help your organization promote freedom of religion
or belief in your context.

Copyright SMC 2017