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HUMAN RIGHTS COMMITTEE CONCLUDES NINETY-FOURTH SESSION
31 October 2008
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Human Rights Committee
ROUNDUP
31 October 2008
Adopts Final Conclusions and Recommendations on Reports of Denmark,
Monaco, Japan, Nicaragua and Spain
The Human Rights Committee concluded today its ninety-fourth session, during which it considered and adopted concluding observations and recommendations on the reports submitted by Denmark, Monaco, Japan, Nicaragua and Spain on how they implement the provisions of the International Covenant on Civil and Political Rights.
In concluding observations on the fifth periodic report of Denmark, the Committee welcomed the extensive legislative, administrative and policy measures adopted to improve the promotion and protection of human rights since the examination of the fourth periodic report. The Committee was disturbed about allegations that the airspace and airports of the State party had been used for so-called rendition flights of persons from third countries to countries where they risked being subjected to torture or ill-treatment. Regarding indigenous peoples, Denmark should pay particular attention to self-identification of the individuals concerned in the determination of their status as persons belonging to minorities or indigenous peoples.
Following its consideration of the second periodic report of Monaco, the Committee welcomed the legislative progress achieved concerning the equality of men and women. The Committee expressed a number of concerns, in particular, that abortion was still illegal under all circumstances. The Committee was concerned about the wide definition of terrorist acts in the Penal Code. It recommended the review of the definition of terrorism and asked for further information as to the scope of “ecological” terrorism.
Regarding the fifth periodic report submitted by Japan, the Committee welcomed the State party’s accession to the Rome Statute of the International Criminal Court in 2007. The Committee noted with concern that the number of crimes punishable by the death penalty had still not been reduced and that the number of executions had steadily increased in recent years. The Committee recommended that Japan accept legal responsibility and apologize unreservedly for the “comfort women” system in a way that was acceptable to the majority of victims and restored their dignity, prosecute perpetrators who were still alive and take immediate and effective legislative and administrative measures to adequately compensate all survivors as a matter of right.
Having reviewed the third periodic report of Nicaragua, the Committee welcomed the establishment of ombudsmen for the protection of human rights. The Committee was concerned about the conditions in detention centres, especially the poor hygiene, lack of potable water, lack of food and medical assistance. The Committee urged the State Party to take immediate action in order to put an end to the phenomenon of murder of women, including the investigation and punishment of the acts and aggressors, effective access to justice for the victims of domestic violence, police protection for victims and appropriate shelters.
Following its consideration of the fifth periodic report of Spain, the Committee welcomed the strategic plan for the integration of immigrants. The Committee was concerned about the large scope of the definition of terrorism in the Spanish Penal Code which could lead to various violations of the rights stipulated in the Covenant. The Committee recommended that Spain define terrorism in a more restrictive manner and ensure that measures taken in the fight against terrorism were in conformity with the Covenant. The Committee noted with concern that cases of torture continued to be reported. The Committee recommended that Spain accelerate the adoption process of a national mechanism for the prevention of torture.
During the session, the Committee considered 31 communications from individuals submitted under the first Optional Protocol to the Covenant. The Protocol, for the 111 States that have ratified it, allows review by the Committee of complaints from persons alleging violations of the terms of the Covenant. In private meetings the Committee's decided that 14 communications were inadmissible, 9 views were adopted under the Optional Protocol Article 5, Paragraph 4, 4 communications were deemed admissible and the consideration would be discontinued for 4 communications.
The Committee adopted a revised General Comment on the Optional Protocol to the Covenant, which states that Article 1 of the Optional Protocol provides that a State party to it recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State party of any of the rights set forth in the Covenant. It follows that States parties are obliged not to hinder access to the Committee and to prevent any retaliatory measures against any person who has addressed a communication to the Committee. States parties must use whatever means lie within their power in order to give effect to the views issued by the Committee.
The Chairperson of the Committee said the next General Comment would be on Article 19 of the Covenant relating to the freedom of expression.
The Committee debated its working methods and adopted a paper on a strategic approach to public relations, including relations with the media. The paper states that relations with the media should be viewed in the broader context of relations with the public, which would include making its work better known, and more effective an influence on national laws and practices, by means other than the media. It recommends, among other issues, that web casting, pod casting and streaming of proceedings should be permitted of open meetings of the Committee. The media should be encouraged to cover by radio or film the public proceedings of the Committee, subject to any guidelines that may be adopted for the decorum and dignified conduct of proceedings, and provided that the Committee’s work is not disrupted. Individual members, in particular country rapporteurs, should be encouraged to speak at press conferences during or at the conclusion of the Committee’s sessions.
The Committee also considered progress reports on follow-up to its concluding observations and follow-up to the Committee's decisions on individual communications.
The next session of the Committee, its ninety-fifth, will take place from 9 to 27 March 2009 in New York, at which time the Committee is scheduled to consider reports from Rwanda, Australia, Chad and Sweden.
Concluding Observations On Country Reports
Denmark
Having reviewed the fifth periodic report of Denmark, the Committee welcomed the extensive legislative, administrative and policy measures adopted to improve the promotion and protection of human rights since the examination of the fourth periodic report, including the adoption of the Act on Equal Ethnic Treatment and the Action Plan to Promote Equal Treatment and Diversity and Combat Racism; the introduction of a special section on torture in the Criminal Code; the adoption of a number of legislative and policy measures aimed at eliminating violence against women; and the far-reaching reform of the judicial system, which aimed at rationalising the court system and reducing the processing time of criminal and civil cases.
The Committee regretted that the State party intended to maintain all the reservations entered upon ratification of the Covenant. It recommended that Denmark keep the reservations to the Covenant under constant review, with a view to withdrawing them in whole or in part. The Committee also noted with concern the decision taken by the State party not to incorporate the Covenant into its domestic legal order and recommended that Denmark reconsider this decision. As to violence against women, including domestic violence, the Committee remained concerned about the persistence of the phenomenon, in spite of the efforts made by the State party to eliminate it. The Committee recommended that Denmark continue its efforts towards the elimination of violence against women, including domestic violence, inter alia through information campaigns on the criminal nature of this phenomenon and the allocation of sufficient financial resources to prevent such violence and provide protection and material support to victims. The Committee was also concerned about allegations that the airspace and airports of the State party have been used for so-called rendition flights of persons from third countries to countries where they risk being subjected to torture or ill-treatment. The Committee asked Denmark to provide the Committee with the report of the governmental task force investigating allegations related to transit through its territory of rendition flights as soon as it became available. The Committee recommended that Denmark exercise the utmost care in relying on diplomatic assurances when considering the return of foreign nationals to countries where such treatment was believed to occur.
Regarding the right of freedom of religion, the Committee took note of the explanation provided by the delegation that the special position granted to the Evangelical Lutheran Church as the “Established Church of Denmark” was based on historical and social factors, as well as on the fact that the vast majority of the population belonged to this church. Nevertheless, the Committee noted with concern that the direct financial support that the Evangelical Lutheran Church received from the State, and the administrative functions entrusted to it such as civil status registration and the management of burial grounds, could lead to discrimination vis-à-vis other religious groups. The Committee recommended that Denmark consider reviewing its legislation and administrative practices regarding the direct financial support provided to the Established Church, and that it entrust the administrative functions relating to civil status registration and the management of burial grounds to State authorities. Concerning indigenous peoples, the Committee noted with concern that in its decision of 28 November 2003, the Supreme Court did not recognise the Thule Tribe of Greenland as a separate group capable of vindicating its traditional rights, despite the tribe’s own perception to the contrary. The Committee said that Denmark should pay particular attention to self-identification of the individuals concerned in the determination of their status as persons belonging to minorities or indigenous peoples.
Monaco
Concerning the second periodic report of Monaco, the Committee welcomed the change of the Constitution by a law adopted in 2002 establishing the independence of judicial power and the control of the legality of administrative acts by the Supreme Court; the legislative progress achieved concerning the equality of men and women, such as the fact that naturalized Monegasque women could now transmit their nationality to their children and the equality of rights of children born out of wedlock and children born in wedlock; and the adoption of the justice and liberty act concerning persons in police custody which provided various guarantees of human rights such as the right to consult a lawyer of one’s own choice.
Among principle subjects of concern, the Committee reiterated its concerns about the interpretative declarations and reservations Monaco had undertaken regarding the Covenant. The Committee recommended that Monaco review those interpretative declarations and reservations and that it reduce their number. Following various changes that the State Party had undertaken, many had become obsolete. As to the national human rights institution, the Committee acknowledged that a human rights and fundamental freedoms unit had been established within the Ministry of Foreign Affairs in 2005. However, this unit was not an independent body. Therefore, the Committee recommended the establishment of an independent national human rights institution after consultations with civil society. The Committee further regretted that Monaco had not yet adopted legislation concerning domestic violence and encouraged the State Party to do so. Regarding abortion, the Committee noted that it was still illegal under all circumstances. The Committee stressed that Monaco had to adapt its legislation on this issue to the Covenant. It further recommended that Monaco take measures to help women avoid an involuntary pregnancy in order not to resort to illegal abortion that could put their lives in danger.
Taking into account the security requirements related to the fight against terrorism, the Committee was concerned about the wide definition of terrorist acts in the Penal Code. In particular, the lack of clarity in the definition of “ecological” terrorism was noted. The Committee recommended the review of the definition of terrorism and asked for further information as to the scope of “ecological” terrorism. As to banishment, which was still part of the Penal Code, the Committee took note of Monaco’s assurances that it would be deleted during the reform of the Penal Code. The Committee underlined that the State Party had to get rid of such as provision which was in total contradiction to the Covenant. As to the right to associate, the Committee noted the planned law on creation of associations by mere declaration. However, the Committee was concerned by the power given to the Administration regarding a possible sectarian nature of the association. The Committee recommended that Monaco define more precisely the requirements for the creation of associations and that it clarify what it understood by the term “sectarian nature”.
Japan
Regarding the fifth periodic report of Japan, the Committee welcomed the adoption of a Basic Law for a Gender-Equal Society in 1999; the appointment of a Government Minister for Gender Equality; the approval by the Cabinet in 2005 of the Second Basic Plan for Gender Equality which sets the objective that women should occupy at least 30 percent of leadership positions in all fields of society by 2020; the measures taken by the State party to protect and assist victims of gender-based violence and exploitation, including domestic violence, sexual violence and trafficking in persons; and the State party’s accession to the Rome Statute of the International Criminal Court in 2007.
Among the principal subjects of concern was the fact that many of the Committee’s recommendations issued after the consideration of the State party’s fourth periodic report had not been implemented. The State party should give effect to the recommendations adopted by the Committee in the present as well as in its previous concluding observations. Also, the Committee noted that Japan had still not established an independent national human rights institution. The Committee recommended that the State party establish an independent national human rights institution outside the Government, in accordance with the Paris Principles with a broad mandate covering all international human rights standards accepted by the State party and with competence to consider and act on complaints of human rights violations by public authorities, and allocate adequate financial and human resources to the institution. The Committee noted with concern that the definition of rape in the Criminal Code only covered actual sexual intercourse between men and women. It was also concerned about reports that perpetrators of sexual violence frequently escaped just punishment or received light sentences. The Committee recommended inter alia, that Japan broaden the scope of the definition of rape in the Criminal Code and ensure that incest, sexual abuse other than actual sexual intercourse, as well as rape of men, were considered serious criminal offences.
While noting that in practice the death penalty was only imposed for offences involving murder, the Committee reiterated its concern that the number of crimes punishable by the death penalty had still not been reduced and that the number of executions had steadily increased in recent years. It was also concerned that death row inmates were kept in solitary confinement, often for protracted periods, and were executed without prior notice before the day of execution and, in some cases, at an advanced age or despite the fact that they had mental disabilities. The Committee found that regardless of opinion polls, the State party should favourably consider abolishing the death penalty and inform the public, as necessary, about the desirability of abolition. In the meantime, the death penalty should be strictly limited to the most serious crimes, in accordance with the Covenant. Consideration should be given by the State party to adopting a more humane approach with regard to the treatment of death row inmates and the execution of persons at an advanced age or with mental disabilities. The Committee noted with concern that the State party had still not accepted its responsibility for the “comfort women” system during World War II, that perpetrators had not been prosecuted, that the compensation provided to victims was financed by private donations rather than public funds and was insufficient, that few history textbooks contained references to the “comfort women” issue, and that some politicians and mass media continued to defame victims or to deny the events. The Committee recommended that Japan accept legal responsibility and apologize unreservedly for the “comfort women” system in a way that was acceptable to the majority of victims and restore their dignity, prosecute perpetrators who were still alive and take immediate and effective legislative and administrative measures to adequately compensate all survivors as a matter of right.
Nicaragua
Following its consideration of the third periodic report of Nicaragua, the Committee welcomed the ratification of the second Optional Protocol of the Covenant on Civil and Political Rights in September 2008; the ratification of the Optional Protocol of the Convention Against Torture in August 2008; the creation of a system of judicial facilitators who would facilitate access to the judicial system for citizens, especially women; the establishment of ombudsmen for the protection of human rights, women’s rights, indigenous peoples, disabled persons, persons deprived of freedom and participation of civil society; the adoption of the Penal Procedural Code which should improve administrative processes in the judicial system.
The Committee, among others, was concerned about the lack of a specific definition of penalties for crimes of trafficking and sexual exploitation of women and children. The Committee recommended that Nicaragua strengthen its measures against trafficking in women and children by defining trafficking and exploitation and ensuring that sanctions were imposed against perpetrators. Nicaragua should also continue awareness raising campaigns and protect victims of sexual exploitation. Taking into account a law passed in February 2008 relating to equality of rights and opportunities, the Committee remained concerned regarding the low participation of women in public functions. The Committee recommended that Nicaragua implement measures to reach the objectives set forth in the law on equality of opportunities. In particular, measures should be taken to increase the presence of women on the highest level of political functions. The Committee was also very concerned about the increase in domestic and sexual violence. In this context, the impunity enjoyed by the aggressors was especially worrisome. The Committee urged the State Party to take immediate action in order to put an end to the phenomenon of murder of women, including the investigation and punishment of the acts and aggressors, effective access to justice for the victims of domestic violence, police protection for victims and appropriate shelters. The Committee noted with concern the general prohibition of abortion, which included cases of rape, incest and pregnancies that posed a risk to the women’s life. It was alarming that women did not have any access to therapeutic abortion anymore after the change of the law in 2006. The State Party had to adjust its legislation in order to comply with its obligations under the Covenant. The Committee recommended that Nicaragua take measures to avoid involuntary pregnancies so that women did not have to resort to illegal abortion that put their lives in danger.
Regarding cases of torture in detention facilities and police stations, the Committee recommended that the State Party take immediate and effective measures to end such abuse. Police officers and prison officials that engaged in such acts should be sanctioned and the victims indemnified. The Committee was also concerned about the condition of detention centres, especially the poor hygiene, lack of potable water, lack of food and medical assistance. The Committee urged Nicaragua to augment its efforts to improve the situation of persons deprived of freedom, complying with all requirements of the minimal rules on the treatment of prisoners. The State Party should provide the Committee with data documenting the progress made in this regard. The Committee was also concerned about the racial prejudices that the general public held with respect to the indigenous peoples, especially in the Autonomous Atlantic Region, as well as the grave deficiencies in the health and education services and the absence of a consultative process for the exploitation of natural resources on the territory of indigenous peoples. The Committee recommended that Nicaragua guarantee the right to education for indigenous peoples in an effective manner. It should also guarantee the access of all indigenous persons to adequate health services, especially to those living in the Autonomous Atlantic Region. Also, a consultative process should be undertaken before licences for economic exploitation of the land on which indigenous peoples were living were handed out.
Spain
Having reviewed the fifth periodic review of Spain, the Committee welcomed the law which provided reparation for the victims of the dictatorship; the efforts to promote equality of men and women, in particular the adoption of a law on the effective equality of men and women in health, education, the public and private sector; the plan adopted in December 2005 to improve detention conditions in prisons and first steps for implementation; the strategic plan for the integration of immigrants; and the integration of the obligations of the Covenant in domestic jurisdiction.
Among others, the Committee expressed concerns regarding disappearances and the fact that the amnesty law of 1977 remained in force. The Committee reminded the State Party that amnesty concerning grave violations of human rights was in contradiction to the provisions of the Covenant. It recommended that Spain abolish the amnesty law of 1977 and take legislative measures to guarantee the non-applicability of statutory limitations to crimes against humanity by the national jurisdiction. Also, a fact-finding commission should be established and the families should be allowed to identify and exhume the bodies of the victims. The Committee was concerned about the large scope of the definition of terrorism in the Spanish Penal Code which could lead to various violations of the rights stipulated in the Covenant. The Committee recommended that Spain define terrorism in a more restrictive manner and ensure that measures taken in the fight against terrorism were in conformity with the Covenant. Taking into account the measures taken by Spain to combat violence against women, the Committee noted with concern the persistence of domestic violence in Spain. It recommended that Spain intensify its efforts in the prevention and the fight against violence against women, in particular domestic violence. Public authorities should provide any assistance needed to the victims.
The Committee noted with concern that cases of torture continued being reported and that the State Party did not seem to have elaborated a global strategy in this regard or taken sufficient measures to ensure eradication of torture. The Committee recommended that Spain accelerate the adoption process of a national mechanism for the prevention of torture, taking into account the recommendations of different organs and international experts, as well as the opinion of civil society and all non-governmental organizations involved in the fight against torture. The Committee was also concerned about the rule « secreto de sumario » following which in a penal investigation, the judge could prohibit partially or totally the access of the defense to information resulting from the investigation. The Committee recommended that the State Party envisage the abolishment of this rule in order to adapt to the jurisprudence reiterated by the Committee according to which the principle of equality of arms meant that the parties did have to have the time and facilities necessary to the preparation of their argumentation, which implied access to the necessary documents. The Committee was concerned about information relating to the situation of unaccompanied children that arrived on Spanish territory and were repatriated without taking into account the superior interest of the child. These children were victims of ill-treatment in the reception centres and sometimes detained in the facilities of the police or the Guardia Civil without the assistance of a lawyer and without being taken to a judge quickly. Spain should make sure that the rights of the unaccompanied children entering Spanish territory were respected. In particular, it should ensure that every unaccompanied child benefited from free legal assistance during the administrative process and more general during expulsion.
General Comment on Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights
The General Comment States that the Optional Protocol to the International Covenant on Civil and Political Rights was adopted and opened for signature, ratification or accession by the same act of the United Nations General Assembly, resolution 2200 A (XXI) of 16 December 1966, that adopted the Covenant itself. Both the Covenant and the Optional Protocol entered into force on 23 March 1976.
Article 1 of the Optional Protocol provides that a State party to it recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State party of any of the rights set forth in the Covenant. It follows that States parties are obliged not to hinder access to the Committee and to prevent any retaliatory measures against any person who has addressed a communication to the Committee. The first obligation of a State Party, against which a claim has been made by an individual under the Optional Protocol, is to respond to it within the time limit of six months set out in article 4 (2). In the experience of the Committee, States do not always respect their obligation. The views of the Committee under the Optional Protocol represent an authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument. The character of the views of the Committee is further determined by the obligation of States parties to act in good faith, both in their participation in the procedures under the Optional Protocol and in relation to the Covenant itself.
In the General Comment, the Committee notes that failure by a State party to implement the views of the Committee in a given case becomes a matter of public record through the publication of the Committee’s decisions inter alia in its annual reports to the General Assembly of the United Nations. Some States parties, to which the views of the Committee have been transmitted in relation to communications concerning them, have failed to accept the Committee’s views, in whole or in part, or have attempted to re-open the case. Measures may be requested by an author, or decided by the Committee on its own initiative, when an action taken or threatened by the State party would appear likely to cause irreparable harm to the author or the victim unless withdrawn or suspended pending full consideration of the communication by the Committee. Examples include the imposition of the death penalty and violation of the duty of non-refoulement. Most States do not have specific enabling legislation to receive the views of the Committee into their domestic legal order. The domestic law of some States parties does, however, provide for the payment of compensation to the victims of violations of human rights as found by international organs. In any case, States parties must use whatever means lie within their power in order to give effect to the views issued by the Committee.
Paper on a Strategic Approach to Public Relations, Including Relations with the Media
The paper states that the Committee’s previous consideration of relations between it and the media represented too narrow an approach. Relations with the media should be viewed in the broader context of relations with the public, which would include making its work better known, and more effective an influence on national laws and practices, by means other than the media. It recommends, among other issues, that the Human Rights Section of the United Nations web site, and especially the OHCHR web site to which it is linked, should be constantly reviewed, updated, and improved for their layout, content, topicality, and ease of use. There was also an evident need to promote that knowledge at the grass roots level. It also recommends that at its annual meetings with NGOs the Committee should enlist their aid in establishing strategies for, and secure their co-operation in, the dissemination of information about the Covenant and the Committee.
The paper recommends that the consideration of selected State party reports at the Geneva sessions should be held in the Palais des Nations in order to allow a greater number of the public to attend and for the convenience of the Press Corps present there, where the anticipated public interest in the report under consideration is likely to exceed the capacity of the Palais Wilson. It recommends that web casting, pod casting and streaming of proceedings should be permitted of open meetings of the Committee. The media should be encouraged to cover by radio or film the public proceedings of the Committee, subject to any guidelines that may be adopted for the decorum and dignified conduct of proceedings, and provided that the Committee’s work is not disrupted. Individual members, in particular country rapporteurs and CRTF members, should be encouraged to speak at press conferences during or at the conclusion of the Committee’s sessions. The traditional final press conference should be retained, unless in the circumstances of a particular session it would seem unlikely to attract sufficient interest. An executive summary of the COBs adopted by the Committee at the session should be made available, prepared by the Secretariat, to help inform the media. In consultation with the Media Unit and Public Affairs Office, arrangements for press briefings during the session should be made so that items of particular interest on the Committee’s agenda for that session can be highlighted. On press releases, the paper recommends that the opportunity should be taken to issue press releases during the course of a session of the Committee whenever it seems appropriate to do so.
Membership of Committee
The States parties to the Covenant elect the Committee's 18 expert members who serve in their individual capacity for four-year terms. Article 28 of the Covenant requires that "they shall be persons of high moral character and recognized competence in the field of human rights." They are: Rafael Rivas Posada (Colombia); Elisabeth Palm (Sweden); Ivan Shearer (Australia); Ahmed Tawfik Khalil (Egypt); Abdelfattah Amor (Tunisia); Christine Chanet (France); Prafullachandra Natwarlal Bhagwati (India); Maurice Ahanhanzo Glèlè-Ahanhanzo (Benin); Edwin Johnson (Ecuador); Helen Keller (Switzerland); Rajsoomer Lallah (Mauritius); Michael O'Flaherty (Ireland); Nigel Rodley (United Kingdom); Ruth Wedgwood (United States); Yuji Iwasawa (Japan); Zonke Zanele Majodina (South Africa); Iulia Antoanella Motoc (Romania); José Luis Perez Sanchez-Cerro (Perú).
The Committee Chairperson is Mr. Rivas Posada. The Vice-Chairpersons are Ms. Palm, Mr. Shearer and Mr. Tawfik Khalil. Mr. Amor is the Rapporteur.
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For use of the information media; not an official record
ROUNDUP
31 October 2008
Adopts Final Conclusions and Recommendations on Reports of Denmark,
Monaco, Japan, Nicaragua and Spain
The Human Rights Committee concluded today its ninety-fourth session, during which it considered and adopted concluding observations and recommendations on the reports submitted by Denmark, Monaco, Japan, Nicaragua and Spain on how they implement the provisions of the International Covenant on Civil and Political Rights.
In concluding observations on the fifth periodic report of Denmark, the Committee welcomed the extensive legislative, administrative and policy measures adopted to improve the promotion and protection of human rights since the examination of the fourth periodic report. The Committee was disturbed about allegations that the airspace and airports of the State party had been used for so-called rendition flights of persons from third countries to countries where they risked being subjected to torture or ill-treatment. Regarding indigenous peoples, Denmark should pay particular attention to self-identification of the individuals concerned in the determination of their status as persons belonging to minorities or indigenous peoples.
Following its consideration of the second periodic report of Monaco, the Committee welcomed the legislative progress achieved concerning the equality of men and women. The Committee expressed a number of concerns, in particular, that abortion was still illegal under all circumstances. The Committee was concerned about the wide definition of terrorist acts in the Penal Code. It recommended the review of the definition of terrorism and asked for further information as to the scope of “ecological” terrorism.
Regarding the fifth periodic report submitted by Japan, the Committee welcomed the State party’s accession to the Rome Statute of the International Criminal Court in 2007. The Committee noted with concern that the number of crimes punishable by the death penalty had still not been reduced and that the number of executions had steadily increased in recent years. The Committee recommended that Japan accept legal responsibility and apologize unreservedly for the “comfort women” system in a way that was acceptable to the majority of victims and restored their dignity, prosecute perpetrators who were still alive and take immediate and effective legislative and administrative measures to adequately compensate all survivors as a matter of right.
Having reviewed the third periodic report of Nicaragua, the Committee welcomed the establishment of ombudsmen for the protection of human rights. The Committee was concerned about the conditions in detention centres, especially the poor hygiene, lack of potable water, lack of food and medical assistance. The Committee urged the State Party to take immediate action in order to put an end to the phenomenon of murder of women, including the investigation and punishment of the acts and aggressors, effective access to justice for the victims of domestic violence, police protection for victims and appropriate shelters.
Following its consideration of the fifth periodic report of Spain, the Committee welcomed the strategic plan for the integration of immigrants. The Committee was concerned about the large scope of the definition of terrorism in the Spanish Penal Code which could lead to various violations of the rights stipulated in the Covenant. The Committee recommended that Spain define terrorism in a more restrictive manner and ensure that measures taken in the fight against terrorism were in conformity with the Covenant. The Committee noted with concern that cases of torture continued to be reported. The Committee recommended that Spain accelerate the adoption process of a national mechanism for the prevention of torture.
During the session, the Committee considered 31 communications from individuals submitted under the first Optional Protocol to the Covenant. The Protocol, for the 111 States that have ratified it, allows review by the Committee of complaints from persons alleging violations of the terms of the Covenant. In private meetings the Committee's decided that 14 communications were inadmissible, 9 views were adopted under the Optional Protocol Article 5, Paragraph 4, 4 communications were deemed admissible and the consideration would be discontinued for 4 communications.
The Committee adopted a revised General Comment on the Optional Protocol to the Covenant, which states that Article 1 of the Optional Protocol provides that a State party to it recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State party of any of the rights set forth in the Covenant. It follows that States parties are obliged not to hinder access to the Committee and to prevent any retaliatory measures against any person who has addressed a communication to the Committee. States parties must use whatever means lie within their power in order to give effect to the views issued by the Committee.
The Chairperson of the Committee said the next General Comment would be on Article 19 of the Covenant relating to the freedom of expression.
The Committee debated its working methods and adopted a paper on a strategic approach to public relations, including relations with the media. The paper states that relations with the media should be viewed in the broader context of relations with the public, which would include making its work better known, and more effective an influence on national laws and practices, by means other than the media. It recommends, among other issues, that web casting, pod casting and streaming of proceedings should be permitted of open meetings of the Committee. The media should be encouraged to cover by radio or film the public proceedings of the Committee, subject to any guidelines that may be adopted for the decorum and dignified conduct of proceedings, and provided that the Committee’s work is not disrupted. Individual members, in particular country rapporteurs, should be encouraged to speak at press conferences during or at the conclusion of the Committee’s sessions.
The Committee also considered progress reports on follow-up to its concluding observations and follow-up to the Committee's decisions on individual communications.
The next session of the Committee, its ninety-fifth, will take place from 9 to 27 March 2009 in New York, at which time the Committee is scheduled to consider reports from Rwanda, Australia, Chad and Sweden.
Concluding Observations On Country Reports
Denmark
Having reviewed the fifth periodic report of Denmark, the Committee welcomed the extensive legislative, administrative and policy measures adopted to improve the promotion and protection of human rights since the examination of the fourth periodic report, including the adoption of the Act on Equal Ethnic Treatment and the Action Plan to Promote Equal Treatment and Diversity and Combat Racism; the introduction of a special section on torture in the Criminal Code; the adoption of a number of legislative and policy measures aimed at eliminating violence against women; and the far-reaching reform of the judicial system, which aimed at rationalising the court system and reducing the processing time of criminal and civil cases.
The Committee regretted that the State party intended to maintain all the reservations entered upon ratification of the Covenant. It recommended that Denmark keep the reservations to the Covenant under constant review, with a view to withdrawing them in whole or in part. The Committee also noted with concern the decision taken by the State party not to incorporate the Covenant into its domestic legal order and recommended that Denmark reconsider this decision. As to violence against women, including domestic violence, the Committee remained concerned about the persistence of the phenomenon, in spite of the efforts made by the State party to eliminate it. The Committee recommended that Denmark continue its efforts towards the elimination of violence against women, including domestic violence, inter alia through information campaigns on the criminal nature of this phenomenon and the allocation of sufficient financial resources to prevent such violence and provide protection and material support to victims. The Committee was also concerned about allegations that the airspace and airports of the State party have been used for so-called rendition flights of persons from third countries to countries where they risk being subjected to torture or ill-treatment. The Committee asked Denmark to provide the Committee with the report of the governmental task force investigating allegations related to transit through its territory of rendition flights as soon as it became available. The Committee recommended that Denmark exercise the utmost care in relying on diplomatic assurances when considering the return of foreign nationals to countries where such treatment was believed to occur.
Regarding the right of freedom of religion, the Committee took note of the explanation provided by the delegation that the special position granted to the Evangelical Lutheran Church as the “Established Church of Denmark” was based on historical and social factors, as well as on the fact that the vast majority of the population belonged to this church. Nevertheless, the Committee noted with concern that the direct financial support that the Evangelical Lutheran Church received from the State, and the administrative functions entrusted to it such as civil status registration and the management of burial grounds, could lead to discrimination vis-à-vis other religious groups. The Committee recommended that Denmark consider reviewing its legislation and administrative practices regarding the direct financial support provided to the Established Church, and that it entrust the administrative functions relating to civil status registration and the management of burial grounds to State authorities. Concerning indigenous peoples, the Committee noted with concern that in its decision of 28 November 2003, the Supreme Court did not recognise the Thule Tribe of Greenland as a separate group capable of vindicating its traditional rights, despite the tribe’s own perception to the contrary. The Committee said that Denmark should pay particular attention to self-identification of the individuals concerned in the determination of their status as persons belonging to minorities or indigenous peoples.
Monaco
Concerning the second periodic report of Monaco, the Committee welcomed the change of the Constitution by a law adopted in 2002 establishing the independence of judicial power and the control of the legality of administrative acts by the Supreme Court; the legislative progress achieved concerning the equality of men and women, such as the fact that naturalized Monegasque women could now transmit their nationality to their children and the equality of rights of children born out of wedlock and children born in wedlock; and the adoption of the justice and liberty act concerning persons in police custody which provided various guarantees of human rights such as the right to consult a lawyer of one’s own choice.
Among principle subjects of concern, the Committee reiterated its concerns about the interpretative declarations and reservations Monaco had undertaken regarding the Covenant. The Committee recommended that Monaco review those interpretative declarations and reservations and that it reduce their number. Following various changes that the State Party had undertaken, many had become obsolete. As to the national human rights institution, the Committee acknowledged that a human rights and fundamental freedoms unit had been established within the Ministry of Foreign Affairs in 2005. However, this unit was not an independent body. Therefore, the Committee recommended the establishment of an independent national human rights institution after consultations with civil society. The Committee further regretted that Monaco had not yet adopted legislation concerning domestic violence and encouraged the State Party to do so. Regarding abortion, the Committee noted that it was still illegal under all circumstances. The Committee stressed that Monaco had to adapt its legislation on this issue to the Covenant. It further recommended that Monaco take measures to help women avoid an involuntary pregnancy in order not to resort to illegal abortion that could put their lives in danger.
Taking into account the security requirements related to the fight against terrorism, the Committee was concerned about the wide definition of terrorist acts in the Penal Code. In particular, the lack of clarity in the definition of “ecological” terrorism was noted. The Committee recommended the review of the definition of terrorism and asked for further information as to the scope of “ecological” terrorism. As to banishment, which was still part of the Penal Code, the Committee took note of Monaco’s assurances that it would be deleted during the reform of the Penal Code. The Committee underlined that the State Party had to get rid of such as provision which was in total contradiction to the Covenant. As to the right to associate, the Committee noted the planned law on creation of associations by mere declaration. However, the Committee was concerned by the power given to the Administration regarding a possible sectarian nature of the association. The Committee recommended that Monaco define more precisely the requirements for the creation of associations and that it clarify what it understood by the term “sectarian nature”.
Japan
Regarding the fifth periodic report of Japan, the Committee welcomed the adoption of a Basic Law for a Gender-Equal Society in 1999; the appointment of a Government Minister for Gender Equality; the approval by the Cabinet in 2005 of the Second Basic Plan for Gender Equality which sets the objective that women should occupy at least 30 percent of leadership positions in all fields of society by 2020; the measures taken by the State party to protect and assist victims of gender-based violence and exploitation, including domestic violence, sexual violence and trafficking in persons; and the State party’s accession to the Rome Statute of the International Criminal Court in 2007.
Among the principal subjects of concern was the fact that many of the Committee’s recommendations issued after the consideration of the State party’s fourth periodic report had not been implemented. The State party should give effect to the recommendations adopted by the Committee in the present as well as in its previous concluding observations. Also, the Committee noted that Japan had still not established an independent national human rights institution. The Committee recommended that the State party establish an independent national human rights institution outside the Government, in accordance with the Paris Principles with a broad mandate covering all international human rights standards accepted by the State party and with competence to consider and act on complaints of human rights violations by public authorities, and allocate adequate financial and human resources to the institution. The Committee noted with concern that the definition of rape in the Criminal Code only covered actual sexual intercourse between men and women. It was also concerned about reports that perpetrators of sexual violence frequently escaped just punishment or received light sentences. The Committee recommended inter alia, that Japan broaden the scope of the definition of rape in the Criminal Code and ensure that incest, sexual abuse other than actual sexual intercourse, as well as rape of men, were considered serious criminal offences.
While noting that in practice the death penalty was only imposed for offences involving murder, the Committee reiterated its concern that the number of crimes punishable by the death penalty had still not been reduced and that the number of executions had steadily increased in recent years. It was also concerned that death row inmates were kept in solitary confinement, often for protracted periods, and were executed without prior notice before the day of execution and, in some cases, at an advanced age or despite the fact that they had mental disabilities. The Committee found that regardless of opinion polls, the State party should favourably consider abolishing the death penalty and inform the public, as necessary, about the desirability of abolition. In the meantime, the death penalty should be strictly limited to the most serious crimes, in accordance with the Covenant. Consideration should be given by the State party to adopting a more humane approach with regard to the treatment of death row inmates and the execution of persons at an advanced age or with mental disabilities. The Committee noted with concern that the State party had still not accepted its responsibility for the “comfort women” system during World War II, that perpetrators had not been prosecuted, that the compensation provided to victims was financed by private donations rather than public funds and was insufficient, that few history textbooks contained references to the “comfort women” issue, and that some politicians and mass media continued to defame victims or to deny the events. The Committee recommended that Japan accept legal responsibility and apologize unreservedly for the “comfort women” system in a way that was acceptable to the majority of victims and restore their dignity, prosecute perpetrators who were still alive and take immediate and effective legislative and administrative measures to adequately compensate all survivors as a matter of right.
Nicaragua
Following its consideration of the third periodic report of Nicaragua, the Committee welcomed the ratification of the second Optional Protocol of the Covenant on Civil and Political Rights in September 2008; the ratification of the Optional Protocol of the Convention Against Torture in August 2008; the creation of a system of judicial facilitators who would facilitate access to the judicial system for citizens, especially women; the establishment of ombudsmen for the protection of human rights, women’s rights, indigenous peoples, disabled persons, persons deprived of freedom and participation of civil society; the adoption of the Penal Procedural Code which should improve administrative processes in the judicial system.
The Committee, among others, was concerned about the lack of a specific definition of penalties for crimes of trafficking and sexual exploitation of women and children. The Committee recommended that Nicaragua strengthen its measures against trafficking in women and children by defining trafficking and exploitation and ensuring that sanctions were imposed against perpetrators. Nicaragua should also continue awareness raising campaigns and protect victims of sexual exploitation. Taking into account a law passed in February 2008 relating to equality of rights and opportunities, the Committee remained concerned regarding the low participation of women in public functions. The Committee recommended that Nicaragua implement measures to reach the objectives set forth in the law on equality of opportunities. In particular, measures should be taken to increase the presence of women on the highest level of political functions. The Committee was also very concerned about the increase in domestic and sexual violence. In this context, the impunity enjoyed by the aggressors was especially worrisome. The Committee urged the State Party to take immediate action in order to put an end to the phenomenon of murder of women, including the investigation and punishment of the acts and aggressors, effective access to justice for the victims of domestic violence, police protection for victims and appropriate shelters. The Committee noted with concern the general prohibition of abortion, which included cases of rape, incest and pregnancies that posed a risk to the women’s life. It was alarming that women did not have any access to therapeutic abortion anymore after the change of the law in 2006. The State Party had to adjust its legislation in order to comply with its obligations under the Covenant. The Committee recommended that Nicaragua take measures to avoid involuntary pregnancies so that women did not have to resort to illegal abortion that put their lives in danger.
Regarding cases of torture in detention facilities and police stations, the Committee recommended that the State Party take immediate and effective measures to end such abuse. Police officers and prison officials that engaged in such acts should be sanctioned and the victims indemnified. The Committee was also concerned about the condition of detention centres, especially the poor hygiene, lack of potable water, lack of food and medical assistance. The Committee urged Nicaragua to augment its efforts to improve the situation of persons deprived of freedom, complying with all requirements of the minimal rules on the treatment of prisoners. The State Party should provide the Committee with data documenting the progress made in this regard. The Committee was also concerned about the racial prejudices that the general public held with respect to the indigenous peoples, especially in the Autonomous Atlantic Region, as well as the grave deficiencies in the health and education services and the absence of a consultative process for the exploitation of natural resources on the territory of indigenous peoples. The Committee recommended that Nicaragua guarantee the right to education for indigenous peoples in an effective manner. It should also guarantee the access of all indigenous persons to adequate health services, especially to those living in the Autonomous Atlantic Region. Also, a consultative process should be undertaken before licences for economic exploitation of the land on which indigenous peoples were living were handed out.
Spain
Having reviewed the fifth periodic review of Spain, the Committee welcomed the law which provided reparation for the victims of the dictatorship; the efforts to promote equality of men and women, in particular the adoption of a law on the effective equality of men and women in health, education, the public and private sector; the plan adopted in December 2005 to improve detention conditions in prisons and first steps for implementation; the strategic plan for the integration of immigrants; and the integration of the obligations of the Covenant in domestic jurisdiction.
Among others, the Committee expressed concerns regarding disappearances and the fact that the amnesty law of 1977 remained in force. The Committee reminded the State Party that amnesty concerning grave violations of human rights was in contradiction to the provisions of the Covenant. It recommended that Spain abolish the amnesty law of 1977 and take legislative measures to guarantee the non-applicability of statutory limitations to crimes against humanity by the national jurisdiction. Also, a fact-finding commission should be established and the families should be allowed to identify and exhume the bodies of the victims. The Committee was concerned about the large scope of the definition of terrorism in the Spanish Penal Code which could lead to various violations of the rights stipulated in the Covenant. The Committee recommended that Spain define terrorism in a more restrictive manner and ensure that measures taken in the fight against terrorism were in conformity with the Covenant. Taking into account the measures taken by Spain to combat violence against women, the Committee noted with concern the persistence of domestic violence in Spain. It recommended that Spain intensify its efforts in the prevention and the fight against violence against women, in particular domestic violence. Public authorities should provide any assistance needed to the victims.
The Committee noted with concern that cases of torture continued being reported and that the State Party did not seem to have elaborated a global strategy in this regard or taken sufficient measures to ensure eradication of torture. The Committee recommended that Spain accelerate the adoption process of a national mechanism for the prevention of torture, taking into account the recommendations of different organs and international experts, as well as the opinion of civil society and all non-governmental organizations involved in the fight against torture. The Committee was also concerned about the rule « secreto de sumario » following which in a penal investigation, the judge could prohibit partially or totally the access of the defense to information resulting from the investigation. The Committee recommended that the State Party envisage the abolishment of this rule in order to adapt to the jurisprudence reiterated by the Committee according to which the principle of equality of arms meant that the parties did have to have the time and facilities necessary to the preparation of their argumentation, which implied access to the necessary documents. The Committee was concerned about information relating to the situation of unaccompanied children that arrived on Spanish territory and were repatriated without taking into account the superior interest of the child. These children were victims of ill-treatment in the reception centres and sometimes detained in the facilities of the police or the Guardia Civil without the assistance of a lawyer and without being taken to a judge quickly. Spain should make sure that the rights of the unaccompanied children entering Spanish territory were respected. In particular, it should ensure that every unaccompanied child benefited from free legal assistance during the administrative process and more general during expulsion.
General Comment on Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights
The General Comment States that the Optional Protocol to the International Covenant on Civil and Political Rights was adopted and opened for signature, ratification or accession by the same act of the United Nations General Assembly, resolution 2200 A (XXI) of 16 December 1966, that adopted the Covenant itself. Both the Covenant and the Optional Protocol entered into force on 23 March 1976.
Article 1 of the Optional Protocol provides that a State party to it recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State party of any of the rights set forth in the Covenant. It follows that States parties are obliged not to hinder access to the Committee and to prevent any retaliatory measures against any person who has addressed a communication to the Committee. The first obligation of a State Party, against which a claim has been made by an individual under the Optional Protocol, is to respond to it within the time limit of six months set out in article 4 (2). In the experience of the Committee, States do not always respect their obligation. The views of the Committee under the Optional Protocol represent an authoritative determination by the organ established under the Covenant itself charged with the interpretation of that instrument. The character of the views of the Committee is further determined by the obligation of States parties to act in good faith, both in their participation in the procedures under the Optional Protocol and in relation to the Covenant itself.
In the General Comment, the Committee notes that failure by a State party to implement the views of the Committee in a given case becomes a matter of public record through the publication of the Committee’s decisions inter alia in its annual reports to the General Assembly of the United Nations. Some States parties, to which the views of the Committee have been transmitted in relation to communications concerning them, have failed to accept the Committee’s views, in whole or in part, or have attempted to re-open the case. Measures may be requested by an author, or decided by the Committee on its own initiative, when an action taken or threatened by the State party would appear likely to cause irreparable harm to the author or the victim unless withdrawn or suspended pending full consideration of the communication by the Committee. Examples include the imposition of the death penalty and violation of the duty of non-refoulement. Most States do not have specific enabling legislation to receive the views of the Committee into their domestic legal order. The domestic law of some States parties does, however, provide for the payment of compensation to the victims of violations of human rights as found by international organs. In any case, States parties must use whatever means lie within their power in order to give effect to the views issued by the Committee.
Paper on a Strategic Approach to Public Relations, Including Relations with the Media
The paper states that the Committee’s previous consideration of relations between it and the media represented too narrow an approach. Relations with the media should be viewed in the broader context of relations with the public, which would include making its work better known, and more effective an influence on national laws and practices, by means other than the media. It recommends, among other issues, that the Human Rights Section of the United Nations web site, and especially the OHCHR web site to which it is linked, should be constantly reviewed, updated, and improved for their layout, content, topicality, and ease of use. There was also an evident need to promote that knowledge at the grass roots level. It also recommends that at its annual meetings with NGOs the Committee should enlist their aid in establishing strategies for, and secure their co-operation in, the dissemination of information about the Covenant and the Committee.
The paper recommends that the consideration of selected State party reports at the Geneva sessions should be held in the Palais des Nations in order to allow a greater number of the public to attend and for the convenience of the Press Corps present there, where the anticipated public interest in the report under consideration is likely to exceed the capacity of the Palais Wilson. It recommends that web casting, pod casting and streaming of proceedings should be permitted of open meetings of the Committee. The media should be encouraged to cover by radio or film the public proceedings of the Committee, subject to any guidelines that may be adopted for the decorum and dignified conduct of proceedings, and provided that the Committee’s work is not disrupted. Individual members, in particular country rapporteurs and CRTF members, should be encouraged to speak at press conferences during or at the conclusion of the Committee’s sessions. The traditional final press conference should be retained, unless in the circumstances of a particular session it would seem unlikely to attract sufficient interest. An executive summary of the COBs adopted by the Committee at the session should be made available, prepared by the Secretariat, to help inform the media. In consultation with the Media Unit and Public Affairs Office, arrangements for press briefings during the session should be made so that items of particular interest on the Committee’s agenda for that session can be highlighted. On press releases, the paper recommends that the opportunity should be taken to issue press releases during the course of a session of the Committee whenever it seems appropriate to do so.
Membership of Committee
The States parties to the Covenant elect the Committee's 18 expert members who serve in their individual capacity for four-year terms. Article 28 of the Covenant requires that "they shall be persons of high moral character and recognized competence in the field of human rights." They are: Rafael Rivas Posada (Colombia); Elisabeth Palm (Sweden); Ivan Shearer (Australia); Ahmed Tawfik Khalil (Egypt); Abdelfattah Amor (Tunisia); Christine Chanet (France); Prafullachandra Natwarlal Bhagwati (India); Maurice Ahanhanzo Glèlè-Ahanhanzo (Benin); Edwin Johnson (Ecuador); Helen Keller (Switzerland); Rajsoomer Lallah (Mauritius); Michael O'Flaherty (Ireland); Nigel Rodley (United Kingdom); Ruth Wedgwood (United States); Yuji Iwasawa (Japan); Zonke Zanele Majodina (South Africa); Iulia Antoanella Motoc (Romania); José Luis Perez Sanchez-Cerro (Perú).
The Committee Chairperson is Mr. Rivas Posada. The Vice-Chairpersons are Ms. Palm, Mr. Shearer and Mr. Tawfik Khalil. Mr. Amor is the Rapporteur.
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For use of the information media; not an official record