What is the Optional Protocol?
The Optional Protocolis an additional agreement to the United Nations Convention on the Rights of Persons with Disabilities. It establishes an individual complaints mechanism for disabled people who allege that their rights under the Convention have been denied.
The Optional Protocol enables individuals or groups, who claim to have had their rights breached under the Convention, to make a complaint to the United Nations Committee on the Rights of Persons with Disabilities.
When did New Zealand agree to the Optional Protocol?
New Zealand acceded to the Optional Protocol to the Convention on 5 October 2016. It came into force on 4 November 2016.
What does the Optional Protocol mean for disabled people?
The Optional Protocol means that if a disabled person has their rights breached under the Convention, they may be able to make a complaint to the United Nations Committee on the Rights of Persons with Disabilities.
Article 2 of the Optional Protocol sets out guidelines of the complaints that can be brought to the United Nations Committee. It says that:
- There must be a violation of rights under the Convention;
- The same question must not have already been examined by the Committee or another international body;
- You must first have attempted to resolve your complaint using your national law for example by bringing your case to the highest court and bringing the complaint to the attention of all the relevant national authorities;
- The complaint of a violation of rights must be based on facts and be genuine;
- And the right must have been violated after or during the time that the protocol entered into force in your country.
Who can bring a complaint?
Anyone can lodge a complaint with the United Nations Committee. Complaints may be submitted by or on behalf of individuals or groups of individuals.
It is not necessary to have a lawyer prepare the complaint. Legal aid is not provided under the procedures.
A claim can also be made on behalf of another person on the condition that his/her written consent is obtained.
The complaint must be submitted in writing and in one of the working languages of the Secretariat.
There is a model complaint form online which you are encouraged to use. It is available at: www.ohchr.org/EN/HRBodies/CRPD under ‘The Work of the Committee’ and ‘Complaints Procedure’ sections.
When can a complaint be taken to the United Nations Committee?
There is no time limit for the submission of complaints but it is best if complaints are filed quickly, following exhaustion of national remedies.
The United Nations Committee will only accept a complaint if it concerns a denial of a right experienced by a disabled person occurring after the date of accession to the Optional Protocol.
What does the United Nations Committee do with the complaint?
The Committee considers the case on its merits and concludes whether the violation has occurred or not. This takes place in a closed session.
Once the Committee has examined the complaint it will forward its suggestions and recommendations, if any, to the State and to the petitioner.
Within six months, the Government has to submit written explanations or statements to the Committee clarifying the matter and the remedy, if any, that has been taken. (Article 3 of the Optional Protocol).
At any time, the Committee may request the Government to take interim measures to avoid possible irreparable damage to the victim/s of the alleged violation. (Article 4)
If there are grave and systematic violations by a State Party of the Convention rights then the Committee can invite the State Party to cooperate in examining the information and submit observations about it. Committee members may conduct an inquiry to report urgently to the Committee which may include a visit to the country. Comments and recommendations may be made from the inquiry findings.
A State Party shall then submit its observations to the Committee within six months of receiving the findings and comments.
It should be noted that there is no appeal against Committee decisions and decisions are final.
Are the United Nations Committee’s recommendations legally binding?
The Committee’s recommendations are not legally binding but the Committee’s decisions represent an authoritative interpretation of the Convention.
There are procedures in place to monitor whether States parties have implemented their recommendations (so-called follow-up procedures), since they consider that by accepting the procedure, States parties have also accepted to respect the Committee’s findings.
How do I find out what cases have already been bought before the Committee?
You can see the table of pending cases here: www.ohchr.org/EN/HRBodies/CRPD/Pages/Tablependingcases
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