Issues Final Conclusions and Recommendations

Human Rights Committee
72nd session
27 July 2001
Morning


The Human Rights Committee concluded its seventy-second session this morning by issuing its final conclusions and recommendations on reports submitted to it by the Netherlands, the Czech Republic, Monaco, Guatemala, and the Democratic Republic of Korea.

The five countries submitted their reports and sent Government delegations to appear before the Committee to answer questions relating to their obligations as States parties to the International Covenant on Civil and Political Rights. The Committee, as a monitoring body, periodically examines reports submitted to it by States parties on their promotion and protection of civil and political rights. One hundred and forty-eight countries have ratified the Covenant.

Following its consideration of the report of the Netherlands, the Committee welcomed the establishment of an independent National Ombudsman and the Equal Treatment Commission; it was, however, concerned about the application of the law on euthanasia and assisted suicide; the Committee recommended, among other things, that the State party should reexamine its law on euthanasia and assisted suicide in order to ensure that the procedures employed offered adequate safeguards against abuse or misuse, including undue influence by third parties.

With regards to the report of the Czech Republic, the Committee commended the State party for its commitment to rebuilding a democratic legal order and undertaking the process of bringing its legislation into harmony with its international obligations, since the road to democracy started in 1989; however, it was deeply concerned about discrimination against minorities, particularly the Roma; and about the disproportionate number of Roma children who were assigned to special schools designed for mentally disabled children; it recommended, among other things, that firm measures be taken to eradicate all forms of police harassment of foreigners and vulnerable groups; and further measures should be taken to overcome overcrowding in prisons.

Concerning Monaco, the Committee welcomed the State party's ratification of the Second Optional Protocol to the Convention in 2000, although the death penalty had been abolished in the country for many years; it expressed concern at the discriminatory nature of certain provisions of the civil code, which said that the husband was the head of the family; and among its recommendations, it said that legislation should be adopted that would afford men and women equal rights in the transmission of nationality to children.

On the report of Guatemala, the Committee said it was pleased that efforts had been made to provide resources for the State's human rights institutions. It expressed, however, grave concern at the numerous reports of human rights violations, most especially the glaring and systematic violations of the right to life, liberty and security of persons, and at reports of disappearances in the State party; it recommended that the State party should give priority to investigating and bringing to justice the perpetrators of human rights violations, including police and military personnel; and it should conduct investigations to identify those responsible for extrajudicial executions.

And concerning the Democratic People's Republic of Korea, the Committee said it welcomed the reduction of the number of criminal offences carrying the death penalty from 33 to five, as well as the further readiness to review the issue of capital punishment; it said it remained concerned about the many allegations of cruel, inhuman and degrading treatment and conditions, and of inadequate medical care in reform institutions, prisons and prison camps; among its recommendations, the Committee said that the State party should consider the establishment of a national human rights institution; and that access should be granted to its territory to international human rights organizations and other international bodies.

During its three-week session, the Committee also considered complaints from individuals submitted to it under the first Optional Protocol to the Covenant. The Protocol, for States which have ratified it, allows review of complaints alleging violations of the terms of the Covenant. Ninety-five States have ratified the Protocol. Committee discussion of individual complaints is carried out in private sessions. The Committee's conclusions on cases considered during the session will be released at a later date.

Also, during this session, the Committee adopted a general comment on article 4 of the Covenant on states of emergency and non-derogable rights under the provisions of the treaty.

The next session of the Committee is scheduled to take place from 15 October to 2 November 2001 in Geneva. During that session, the Committee is expected to discuss reports submitted by Azerbaijan, Switzerland, the United Kingdom, Afghanistan and Ukraine.

Conclusions and Recommendations of the Committee on Country Reports

Following the consideration of the report of the European part of the Netherlands, the Committee welcomed the establishment of an independent National Ombudsman and the Equal Treatment Commission.

Among its principal concerns, the Committee said that the law on euthanasia and assisted suicide contained a number of conditions under which the physician was not punished when he or she terminated the life of a person, among other things, on the “voluntary and well-considered request” of the patient in a situation of “unbearable suffering” offering “no prospect of improvement and “no other reasonable solution”. It was concerned lest such a system might fail to detect and prevent situations where undue pressure could lead to those criteria being circumvented. The Committee was seriously concerned that the new law was also applicable to minors who had reached the age of 12 years. Further, the Committee was gravely concerned at reports that newborn disabled infants had had their lives ended by medical personnel. It was also concerned at ongoing reports of sexual exploitation of significant numbers of foreign women in the country. And it was gravely concerned at the scope afforded to the use of an anonymous witness in the State party’s criminal procedure.

The Committee recommended, among other things, that the State party should reexamine its law on euthanasia and assisted suicide in order to ensure that the procedures employed offered adequate safeguards against abuse or misuse, including undue influence by third parties. It should scrupulously investigate any allegations of violations of the right to life of newborn infants. The State party should complete its investigations as to the involvement of its armed forces in Srebrenica, Bosnia-Herzegovina, in July 1995, as soon as possible. It should continue to develop strategies designed to prevent child abuse; and it should make greater efforts to safeguard the right of a defendant to a fair trial by providing a greater opportunity for the evidence to be tested and contested.

With regard to the report of the Netherlands Antilles, the Committee welcomed the comprehensive revision of the civil code, removing a large variety of elements discriminating against women. However, it was concerned as to the breadth of article 137 of the Constitution which regulated the imposition of a state of emergency without taking into account the limitations imposed by article 4 of the Covenant. After expressing concerns, the Committee recommended that the rules on states of emergency should be made in full compliance with the requirements of the Covenant; that measures should be taken to ensure that the prison staff act with the highest professional standards; that reference to the death penalty should be removed in revising the criminal code; that the rights of peaceful assembly should be ensured; and that distinctions between legitimate and illegitimate children be removed.

As regards the report on Aruba, the Committee welcomed the fundamental safeguards against unlawful actions by the authorities contained in the revised code of criminal procedure, and appreciated the establishment of universal jurisdiction for the crime of torture. After having expressed concern, the Committee recommended that the State party should consider the most appropriate way to ensure adequate legal protection for domestic workers; and that it should remove the legal distinctions between the legitimate family of a man born in Aruba with Netherlands nationality and the legitimate family of a woman born in Aruba with Netherlands nationality.

Concerning the report of the Czech Republic, the Committee commended the State party for its commitment to rebuilding a democratic legal order and undertaking the process of bringing its legislation into harmony with its international obligations, since the tradition to democracy, which started in 1989.

Among other things, the Committee was, however, concerned about the lack of independent mechanisms for monitoring the practical implementation of rights; it was deeply concerned about discrimination against minorities, particularly the Roma; and about the disproportionate number of Roma children who were assigned to special schools designed for mentally disabled children. It remained concerned at violence and harassment by some groups with respect to the Roma minority, and the failure on the part of the police and judicial authorities to investigate, prosecute and punish hate crimes. It was deeply concerned about reports of trafficking in women; about reports of domestic violence; about persistent allegations of police harassment, particularly of the Roma minority and foreigners; about the scope and length of pre-trial detention; about prison overcrowding; and about sexual abuse of children, including child pornography.

The Committee recommended that the State party should reconsider its present law regarding the right to seek restitution of property or compensation; adopt measures to establish effective independent monitoring mechanisms for implementation of the Covenant rights, particularly in the area of discrimination; take all necessary measures to combat racial violence and incitement, providing proper protection to Roma and other minorities; measures should be adopted to increase the participation of women in the public and private sectors; a strong step should be taken to prevent trafficking in women; a policy and a legal framework should be adopted to combat domestic violence; firm measures should be taken to eradicate all forms of police harassment of foreigners and vulnerable groups; further measures should be taken to overcome overcrowding in prisons; and effective measures should be adopted for combatting sexual abuse of children including child pornography and for rehabilitating abused children.

With regard to Monaco, the Committee welcomed the State party’s ratification of the Second Optional Protocol to the Convention in 2000, although the death penalty had been abolished in the country for many years.

Among its principal causes of concern, the Committee noted the existence of six interpretative declarations and one reservation made by the State party upon ratifying the Covenant; and that no national human rights commission had been established and that there was no plan to do so. The Committee expressed concern at the discriminatory nature of certain provisions of the civil code, which said that the husband was the head of the family; at the discriminatory legal status of women insofar as transmission of Monegasque nationality to children; and that there was no legislation defining racial discrimination. The Committee also expressed concern at inadequacy of guarantees available to persons in police custody; and that no justification was given for the administrative measures pertaining to the expulsion of foreigners.

The Committee, among other things, recommended that the State party reduce the number of the interpretative declarations and encouraged it to review them; that it should contemplate on establishing an independent institution for the protection of human rights; that it should bring its legislation in line with the provisions of the Covenant; that detailed information should be included in the next report about the exact status of women in light of the Covenant and, particularly, the principle of nondiscrimination on the basis of sex; that discriminatory provisions of the civil code should be nullified; that legislation should be adopted that would afford men and women equal rights in the transmission of nationality to children; that appropriate legislation should be adopted to ensure that children born out of wedlock enjoyed the same rights as other children; that the principle of the presumption of innocence should be incorporated in the State party’s legislation; that appropriate legislative measures should be taken to ensure that the rights of persons in police custody were protected and that they were allowed to obtain the assistance of a lawyer; that naturalization should be granted on the basis of objective criteria and within a reasonable time-frame; and that the State party should include in its next report data which would allow the Committee to assess the situation of religious communities.


With regard to the report of Guatemala, the Committee said it was pleased that efforts had been made to provide resources for the Office of the Human Rights Procurator and the Presidential Commission coordinating the human rights policy of the executive.

Among its subjects of concern, the Committee said it was concerned at the wide variety of states of emergency listed in the Constitution; and at the absence of a State policy intended to combat impunity, which had prevented the identification, trial and punishment of those responsible for violations of article 6 of the Covenant. It was gravely concerned at the numerous reports of human rights violations, most especially the glaring and systematic violations of the right to life, liberty and security of persons, and at reports of disappearances in the State party. The deep concern of the Committee extended also to the many reports and the lack of response of the State party regarding extrajudicial executions and regarding the traffic in children abducted from their parents, all acts that were believed to be perpetrated by former members of the military and paramilitary forces and were ascribed to common criminality. It was deeply concerned at the reports of lynching of members of the judiciary in breach of articles 6 and 7 of the Covenant and at the apparent delay by the State party in reacting to such incidents. Further, the Committee was concerned at the application of the death penalty, and particularly the increase in the number of crimes carrying that penalty; at the removal of the right to mercy; at the criminalization of abortion; at the high rate of maternal mortality; at the insufficient participation of women in political life; and at the situation of street children.

The Committee recommended, among other things, that the State party ensure that its constitutional provisions for emergency situations were compatible with article 4 of the Covenant; that it should strictly apply the National Reconciliation Act, which explicitly excluded crimes against humanity from amnesty; set up an appropriate body to investigate disappearances; and provide adequate compensation for the victims of human rights violations. It said that the State party should give priority to investigating and bringing to justice the perpetrators of human rights violations, including police and military personnel; it should conduct investigations to identify those responsible for extrajudicial executions; the application of the death penalty should be limited to the most serious crimes and the State party should restrict the number of crimes carrying that penalty; it should adopt the necessary measures to guarantee the right to life of pregnant women who decided to interrupt their pregnancy; it should continue to take all necessary measures to solve the problem of pre-trial detention; and should take effective measures to protect and rehabilitate street children.

And concerning the report of the Democratic People's Republic of Korea, the Committee said it welcomed the reduction of the number of criminal offences carrying the death penalty from 33 to five, as well as the readiness further to review the issue of capital punishment. It appreciated that the delegation acknowledged the need to improve the condition of human rights in several areas covered by the Covenant; and it welcomed as a positive sign the exchange of visits between families from the State party and the Republic of Korea.

However, the Committee remained concerned that constitutional and legislative provisions seriously endangered the impartiality and independence of the judiciary; that there was no independent national institution for the promotion and protection of human rights; about the limited number of human rights organizations in the country; about the lack of measures taken by the State party to deal with the food and nutrition situation in the country and the lack of measures taken to address, in cooperation of the international community, the causes and consequences of the drought and other national disasters, which had seriously affected the country's population in the 1990s.
Further, the Committee was deeply concerned about consistent and substantial allegations of violations by law enforcement personnel; it also remained concerned about the many allegations of cruel, inhuman and degrading treatment and conditions and of inadequate medical care in reform institutions, prisons and prison camps; that the administrative permission to travel abroad was incompatible with article 12, paragraph 2, of the Covenant; and that various provisions of the press law were difficult to reconcile with the provisions of article 19 of the Covenant.

The Committee recommended, among other things, that the independence and impartiality of the judiciary be insured; that the State party consider the establishment of a national human rights institution; that access be granted to its territory to international human rights organizations and other international bodies; that it take all possible measures to reduce infant mortality and increase life expectancy; that it should ensure that all instances of ill-treatment and of torture and other abuses committed by agents of the State were promptly considered and investigated; that the next report should contain statistics on the number of persons held in pre-trial detention; that the State party should consider the elimination of the requirement of traveller's certificate; and that it should investigate allegations of trafficking in women.

General Comment on Article 4

The General Comment on article 4 of the Covenant, said, among other things, that the safeguards related to derogation, as embodied in article 4 of the Covenant, were based on the principles of legality and the rule of law, inherent to the Covenant as a whole. As certain elements of the right to a fair trial were explicitly guaranteed under the international humanitarian law during armed conflict, the Committee found no justification for derogation from those guarantees during possible other emergency situations. The Committee was of the opinion that those principles and the provision of effective remedies required that fundamental principles of fair trial should be respected during a state of emergency.

The General Comment recalled that article 4, paragraph 1, stipulated that in time of public emergency, States parties might take measures derogating from certain of their obligations under the Covenant. Pursuant to paragraph 2, no derogation was allowed from articles 6, 7, 8, 11, 15, 16 and 18, which were related to fundamental freedoms and non-derogable rights. In addition, pursuant to article 3, any derogation should be immediately notified to the Secretary-General, who in turn should immediately inform the other States parties; and a further notification was required upon the termination of the derogation.

Background on the Covenant

The International Covenant on Civil and Political Rights was adopted by the General Assembly and opened for signature in 1966, together with the International Covenant on Economic, Social and Cultural Rights. Both entered into force in 1976.

The Civil and Political Rights Covenant begins by stating that all peoples have the right of self-determination. It recognizes that everyone has the right to life, liberty and security of person. It prohibits torture, cruel or degrading treatment or punishment, and the arbitrary deprivation of life. Anyone arrested is to be informed of the reasons for the arrest, and anyone arrested or detained on a criminal charge is to be brought promptly before a judge or other legally authorized person.

The Covenant also provides, among other things, for freedom of movement, and places limitations upon the expulsion of aliens present lawfully in the territory of a State party. In addition, the right to freedom of thought, conscience, religion and to freedom of expression are recognized by the Covenant, which also prohibits any propaganda for war or any advocacy of national, racial or religious hatred.

States Parties to Covenant

The following 148 States have ratified or acceded to the Covenant: Afghanistan. Albania, Algeria, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic People's Republic of Korea, Democratic Republic of the Congo, Denmark, Dominica, Dominican Republic Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, India, Iran, Islamic Republic of Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Latvia, Lebanon, Lesotho, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Mali, Malta, Mauritius, Mexico, Monaco, Mongolia, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Saint Vincent and the Grenadines San Marino, Senegal, Seychelles, Sierra Leone, Slovakia, Slovenia, Somalia, South Africa, Spain, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, the former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia, Turkmenistan, Uganda, Ukraine, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, United States of America, Uruguay, Uzbekistan, Venezuela, Viet Nam, Yemen, Yugoslavia, Zambia, and Zimbabwe.

Optional Protocols to Covenant

The Optional Protocol to the Covenant provides for the confidential consideration of communications from individuals who claim to be victims of a violation of any rights proclaimed in the Covenant. No communications can be received by the Committee if it concerns a State party to the Covenant that is not also a party to the Optional Protocol.

The following 98 States are parties to the Optional Protocol: Algeria, Angola, Argentina, Armenia, Australia, Austria, Barbados, Belarus, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Bulgaria, Burkina Faso, Cameroon, Canada, Cape Verde, Central African, Republic, Chad, Chile, Colombia, Republic of the Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Estonia, Finland, France, Gambia, Georgia, Germany, Ghana, Greece, Guinea, Guyana, Hungary, Iceland, Ireland, Italy, Jamaica, Kyrgyzstan, Latvia, Lesotho, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malta, Mauritius, Mongolia, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Romania,
Russian Federation, Saint Vincent and the Grenadines, San Marino, Senegal, Seychelles, Sierra Leone, Slovakia, Slovenia, Somalia, Spain, Sri Lanka, Suriname, Sweden, Tajikistan, the former Yugoslav, Republic of Macedonia, Togo, Trinidad and Tobago, Turkmenistan, Uganda, Ukraine, Uruguay, Uzbekistan, Venezuela and Zambia.

The Human Rights Committee is also mandated, under article 41 of the Covenant, to consider communications from a State party alleging violations of the Covenant’s provisions by another State party. This procedure can be applied when both States recognize this competence of the Committee by a relevant declaration.

So far, 47 States have made the declaration under article 41. They are: Algeria, Argentina, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Chile, Congo, Croatia, Czech Republic, Denmark, Ecuador, Finland, Gambia, Germany, Guyana, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Netherlands, New Zealand, Norway, Peru, Philippines, Poland, Republic of Korea, Russian Federation, Senegal, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Tunisia, Ukraine, United Kingdom, United States and Zimbabwe.

The Second Optional Protocol to the Covenant, which aims at the abolition of the death penalty, was adopted by the General Assembly on 15 December 1989 and entered into force on 11 July 1991. The following 45 States have ratified or acceded to the Second Optional Protocol: Australia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Cape Verde, Colombia, Costa Rica, Croatia, Cyprus, Denmark, Ecuador, Finland, Georgia, Germany, Greece, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Norway, Panama, Portugal, Romania, Seychelles, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, United Kingdom, Turkmenistan, Uruguay and Venezuela.

Membership of Committee

The Committee's 18-expert members, who serve in their individual capacity, are elected by the State parties to the Covenant 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."

Members of the Committee are Abdelfattah Amor (Tunisia); Nisuke Ando (Japan); Prafullachandra Natwarlal Bhagwati (India); Christine Chanet (France); Maurice Glele Ahanhanzo (Benin); Louis Henkin (United States); Eckart Klein (Germany); David Kretzmer (Israel); Rajsoomer Lallah (Mauritius); Cecilia Medina Quiroga (Chile); Rafael Rivas Posada (Colombia), Nigel Rodley (United Kingdom); Martin Scheinin (Finland); Ivan Shearer (Australia); Hipolito Solari Yrigoyen (Argentine); Ahmed Tawfik Khalil (Egypt); Patrick Vella (Malta); and Maxwell Yalden (Canada).

Mr. Bhagwati is Chairperson of the session while Mr. Kretzmer and Mr. Yrigoyen are Vice-Chairpersons. Mr. Klein is the Rapporteur.