| United Nations | A/50/40 |
General Assembly
Distr. GENERAL
3 October 1995
ORIGINAL:
ENGLISH/FRENCH
Fiftieth session
REPORT OF THE HUMAN RIGHTS COMMITTEE*
________________________
* The present document is a mimeographed version of the nineteenth
annual report of the Human Rights Committee. The report will be issued
subsequently as Official Records of the General Assembly, Fiftieth Session,
Supplement No. 40 (A/50/40).
95-29692 (E) 091195/...
*9529692*
CONTENTS
Chapter Paragraphs Page
I. ORGANIZATIONAL AND OTHER MATTERS ......................1 - 278
A. States parties to the Covenant ....................1 - 48
B. Sessions and agenda ............................... 58
C. Election, membership and attendance ...............6 - 78
D. Solemn declaration ................................ 89
E. Election of officers .............................. 9 - 109
F. Working groups ....................................11 - 139
G. Other matters .....................................14 - 1810
H. Staff resources ................................... 1911
I. Publicity for the work of the Committee ........... 2012
J. Publications relating to the work of the Committee 21 - 2412
K. Facilities ........................................ 2512
L. Future meetings of the Committee .................. 2612
M. Adoption of the report ............................ 2713
II. ACTION BY THE GENERAL ASSEMBLY AT ITS FORTY-NINTH
SESSION AND BY THE COMMISSION ON HUMAN RIGHTS AT ITS
FIFTY-FIRST SESSION ...................................28 - 3414
III. METHODS OF WORK OF THE COMMITTEE UNDER ARTICLE 40 OF
THE COVENANT: OVERVIEW OF PRESENT WORKING METHODS ....35 - 4516
A. The Committee's procedures in dealing with
emergency situations and in cases of reports that
have been overdue for a very long period ..........36 - 3916
B. Participation by the specialized agencies and other
United Nations organs in the Committee's work .....40 - 4216
C. Equality and human rights of women ................43 - 4517
IV. SUBMISSION OF REPORTS BY STATES PARTIES UNDER
ARTICLE 40 OF THE COVENANT ............................46 - 5618
A. Reports submitted by States parties under
article 40 of the Covenant during the period
under review ......................................49 - 5418
B. Special decisions by the Human Rights Committee
concerning reports of particular States ........... 5520
CONTENTS (continued)
Chapter Paragraphs Page
C. Reports submitted by States parties in accordance
with a special decision of the Human Rights
Committee ......................................... 5620
V. STATES THAT HAVE NOT COMPLIED WITH THEIR OBLIGATIONS
UNDER ARTICLE 40 ......................................57 - 5821
VI. CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 40 OF THE COVENANT ......................59 - 47622
A. Nepal .............................................60 - 7822
B. Tunisia ...........................................79 - 9825
C. Morocco ...........................................99 - 12228
D. Libyan Arab Jamahiriya ............................123 - 14332
E. Argentina .........................................144 - 16535
F. New Zealand .......................................166 - 19138
G. Paraguay ..........................................192 - 22342
H. Haiti .............................................224 - 24146
I. Yemen .............................................242 - 26549
J. United States of America ..........................266 - 30452
K. Ukraine ...........................................305 - 33357
L. Latvia ............................................334 - 36162
M. Russian Federation ................................362 - 40765
N. United Kingdom of Great Britain and
Northern Ireland ..................................408 - 43572
O. Sri Lanka .........................................436 - 47675
VII. GENERAL COMMENTS OF THE COMMITTEE .....................477 - 48181
VIII. CONSIDERATION OF COMMUNICATIONS UNDER THE OPTIONAL
PROTOCOL ..............................................482 - 54382
A. Progress of work ..................................484 - 49082
B. Growth of the Committee's case-load under the
Optional Protocol ................................. 49183
C. Approaches to examining communications under the
Optional Protocol .................................492 - 49484
CONTENTS (continued)
Chapter Paragraphs Page
D. Individual opinions ...............................495 - 49684
E. Issues considered by the Committee ................497 - 54185
F. Remedies called for under the Committee's Views ... 54294
G. Non-cooperation by States parties ................. 54395
IX. FOLLOW-UP ACTIVITIES UNDER THE OPTIONAL PROTOCOL ......544 - 56596
Annexes
I. States parties to the International Covenant on Civil and
Political Rights and to the Optional Protocols and States
which have made the declaration under article 41 of the
Covenant as at 28 July 1995 .......................................104
A. States parties to the International Covenant on Civil and
Political Rights ..............................................104
B. States parties to the Optional Protocol .......................107
C. Status of the Second Optional Protocol aiming at the abolition
of the death penalty ..........................................110
D. States which have made the declaration under article 41 of
the Covenant ..................................................111
II. Members and officers of the Human Rights Committee (1995-1996) ....113
A. Membership ....................................................113
B. Officers ......................................................113
III. Submission of reports and additional information by States parties
under article 40 of the Covenant during the period under review ...114
IV. Status of reports considered during the period under review and
of reports still pending before the Committee .....................121
V. General comments adopted under article 40, paragraph 4, of the
International Covenant on Civil and Political Rights ..............124
General comment No. 24 (52) on issues relating to reservations
made upon ratification or accession to the Covenant or the
Optional Protocols thereto, or in relation to declarations under
article 41 of the Covenant ........................................124
VI. Observations of States parties under article 40, paragraph 5, of
the Covenant ......................................................131
A. United States of America ......................................131
CONTENTS (continued)
Page
B. United Kingdom of Great Britain and Northern Ireland ..........135
VII. Revised guidelines regarding the form and contents of reports
from States parties ...............................................140
A. Guidelines regarding the form and contents of reports from
States parties under article 40 (1) (a) of the Covenant .......140
B. General guidelines regarding the form and contents of
periodic reports from States parties ..........................141
VIII. Letter from the Chairman of the Committee
.........................144
IX. List of States parties' delegations that participated in
consideration of their respective reports by the Human Rights
Committee at its fifty-second, fifty-third and
fifty-fourth sessions .............................................145
X. Observations of the Human Rights Committee under article 5,
paragraph 4, of the Optional Protocol relating to the International
Covenant on Civil and Political Rights* ...........................152
A. Communication No. 386/1989; Famara Kone v. Senegal
(Views adopted on 21 October 1994, fifty-second session)
B. Communication No. 400/1990; Darwinia R. Monaco de Gallichio
v. Argentina
(Views adopted on 3 April 1995, fifty-third session)
C. Communication No. 447/1991; Leroy Shalto v. Trinidad and Tobago
(Views adopted on 4 April 1995, fifty-third session)
D. Communication No. 453/1991; A. R. and M. A. R Coeriel v.
the Netherlands
(Views adopted on 31 October 1994, fifty-second session)
Appendix
E. Communication Nos. 464/1991 and 482/1991; G. Peart and
A. Peart v. Jamaica
(Views adopted on 19 July 1995, fifty-fourth session)
F. Communication No. 473/1991; Isadora Barroso v. Panama
(Views adopted on 19 July 1995, fifty-fourth session)
G. Communication No. 493/1992; Gerald J. Griffin v. Spain
(Views adopted on 4 April 1995, fifty-third session)
________________________
* To be issued subsequently in Official Records of the General
Assembly, Fiftieth Session, Supplement No. 40 (A/50/40), vol. II.
CONTENTS (continued)
Page
H. Communication No. 500/1992; Joszef Debreczeny v.
the Netherlands
(Views adopted on 3 April 1995, fifty-third session)
I. Communication No. 511/1992; Limari Lansman et al. v. Finland
(Views adopted on 26 October 1994, fifty-second session)
J. Communication No. 514/1992; Sandra Fei v. Colombia
(Views adopted on 4 April 1995, fifty-third session)
K. Communication No. 516/1992; Alina Simunek et al. v. the
Czech Republic
(Views adopted on 19 July 1995, fifty-fourth session)
L. Communication No. 518/1992; Jong-Kyu Sohn v. the Republic
of Korea
(Views adopted on 19 July 1995, fifty-fourth session)
M. Communication No. 539/1993; Keith Cox v. Canada
(Views adopted on 31 October 1994, fifty-second session)
Appendix
N. Communication No. 606/1994; Clement Francis v. Jamaica
(Views adopted on 25 July 1995, fifty-fourth session)
XI. Decisions of the Human Rights Committee declaring communications
inadmissible under the Optional Protocol relating to the
International Covenant on Civil and Political Rights* .............153
A. Communication No. 437/1990; B. Colamarco Patino v. Panama
(decision of 21 October 1994, fifty-second session)
B. Communication No. 438/1990; Enrique Thompson v. Panama
(decision adopted on 21 October 1994, fifty-second session)
C. Communication No. 460/1991; T. Omar Simons v. Panama
(decision of 25 October 1994, fifty-second session)
D. Communication No. 494/1992; Lloyd Rogers v. Jamaica
(decision of 4 April 1995, fifty-third session)
E. Communication No. 515/1992; Peter Holder v. Trinidad and Tobago
(decision adopted on 19 July 1995, fifty-fourth session)
F. Communication No. 525/1992; Pierre Gire v. France
(decision adopted on 28 March 1995, fifty-third session)
________________________
* To be issued subsequently in Official Records of the General Assembly,
Fiftieth Session, Supplement No. 40 (A/50/40), vol. II.
CONTENTS (continued)
Page
G. Communication No. 536/1993; Francis P. Perera v. Australia
(decision adopted on 28 March 1995, fifty-third session)
H. Communication No. 541/1993; Errol Simms v. Jamaica
(decision adopted on 3 April 1995, fifty-third session)
I. Communication No. 553/1993; Michael Bullock v.
Trinidad and Tobago
(decision adopted on 19 July 1995, fifty-fourth session)
J. Communication Nos. 575 and 576/1994; Lincoln Guerra and
Brian Wallen v. Trinidad and Tobago
(decision adopted on 4 April 1995, fifty-third session)
K. Communication No. 578/1994; Leonardus J. de Groot v.
the Netherlands
(decision adopted on 14 July 1995, fifty-fourth session)
L. Communication No. 583/1994; Ronald H. van der Houwen v.
the Netherlands
(decision adopted on 14 July 1995, fifty-fourth session)
XII. List of documents issued during the reporting period
..............154
I. ORGANIZATIONAL AND OTHER MATTERS
A. States parties to the Covenant
1. As at 28 July 1995, the closing date of the fifty-fourth session of the
Human Rights Committee, 131 States had ratified or acceded or said they
would accede to the International Covenant on Civil and Political Rights
and 94 States had ratified or acceded or said they would accede to the
Optional Protocol to the Covenant. Both instruments were adopted by the
General Assembly in resolution 2200 A (XXI) of 16 December 1966 and opened
for signature and ratification in New York on 19 December 1966. They
entered into force on 23 March 1976 in accordance with the provisions of
their articles 49 and 9, respectively. Also as at 28 July 1995, 44 States
had made the declaration envisaged under article 41, paragraph 1, of the
Covenant, which came into force on 28 March 1979.
2. The second Optional Protocol, aiming at the abolition of the death
penalty, which was adopted and opened for signature, ratification or
accession by the General Assembly in resolution 44/128 of 15 December 1989,
entered into force on 11 July 1991 in accordance with the provisions of its
article 8. As at 28 July 1995, there were 28 States parties to the second
Optional Protocol.
3. A list of States parties to the Covenant and to the Optional Protocols,
with an indication of those which have made the declaration under article
41, paragraph 1, of the Covenant, is contained in annex I to the present
report.
4. Reservations and other declarations made by a number of States parties
in respect of the Covenant or the Optional Protocols are set out in
document CCPR/C/2/Rev.4 and in notifications deposited with the Secretary-
General.
B. Sessions and agenda
5. The Human Rights Committee has held three sessions since the adoption
of its previous annual report. The fifty-second session (1358th to 1386th
meetings) was held at the United Nations Office at Geneva from 17 October
to 4 November 1994, the fifty-third session (1387th to 1415th meetings) at
United Nations Headquarters from 20 March to 7 April 1995, and the fifty-
fourth session (1416th to 1444th meetings) at the United Nations Office at
Geneva from 3 to 28 July 1995.
C. Election, membership and attendance
6. At the fourteenth meeting of States parties, held at United Nations
Headquarters on 8 September 1994, nine members of the Committee were
elected, in accordance with articles 28 to 32 of the Covenant, to fill the
vacancies resulting from the termination of some terms of office on 31
December 1994. Mr. Prafullachandra Natwarlal Baghwati, Mr. Thomas
Buergenthal, Mr. Eckart Klein, Mr. David Kretzmer and Mrs. Cecilia Medina
Quiroga were elected for the first time. Mr. Nisuke Ando, Mrs. Christine
Chanet, Mr. Omran El Shafei and Mr. Julio Prado Vallejo were re-elected. A
list of the members of the Committee appears in annex II to the present
report.
7. All the members of the Committee participated in the fifty-second
session. Mr. Lallah attended only part of that session. Mrs. Chanet did
not attend the fifty-third session. Mr. Ban and Mr. Baghwati attended only
part of that session. Mrs. Higgins attended only part of the fifty-fourth
session.
D. Solemn declaration
8. At the 1387th, 1397th and 1416th meetings of the Committee (fifty-third
and fifty-fourth sessions), the members of the Committee who had been
elected or re-elected at the fourteenth meeting of States parties to the
Covenant made a solemn declaration in accordance with article 38 of the
Covenant before assuming their functions.
E. Election of officers
9. At the 1387th and 1399th meetings of the Committee (fifty-third
session), held on 20 and 28 March 1995, the Committee elected its officers
for a term of two years, in accordance with article 39, paragraph 1, of the
Covenant: they are listed in annex II.
10. The Committee expressed its sincerest appreciation to Mr. Nisuke Ando,
the outgoing Chairman, for the contribution which he had made to the
success of the Committee's work by presiding over it so competently.
F. Working groups
11. In accordance with rules 62 and 89 of its rules of procedure, the
Committee established working groups which were to meet before its fifty-
second, fifty-third and fifty-fourth sessions.
12. The working group established under rule 89 was entrusted with the
task of making recommendations to the Committee regarding communications
received under the Optional Protocol. At the fifty-second session, the
working group was composed of Mr. Ban and Mr. El Shafei, Ms. Evatt, Mr.
Mavrommatis and Mr. Prado Vallejo. It met at the United Nations Office at
Geneva from 10 to 14 October 1994 and elected Mr. Mavrommatis as its
Chairperson/Rapporteur. At the fifty-third session, the working group was
composed of Mr. Ando, Mr. Francis, Mrs. Higgins, Mr. Mavrommatis and Mr.
Prado Vallejo. It met at United Nations Headquarters from 13 to 17 March
1995 and elected Mrs. Higgins as its Chairperson/Rapporteur. At the fifty-
fourth session, the working group was composed of Mr. Baghwati, Mr. El
Shafei, Mr. Mavrommatis, Mr. Pocar and Mr. Prado Vallejo. It met at the
United Nations Office at Geneva from 3 to 7 July 1995 and elected Mr. Pocar
as its Chairperson/Rapporteur.
13. The working group established under rule 62 was mandated to prepare
concise lists of issues concerning the second, third and fourth periodic
reports to be considered by the Committee at its fifty-second, fifty-third
and fifty-fourth sessions. At the fifty-second session, the working group
was composed of Mr. Aguilar Urbina, Mr. Dimitrijevic, Mr. Sadi and Mr.
Francis. It met at the United Nations Office at Geneva from 10 to 14
October 1994 and elected Mr. Aguilar Urbina as its Chairperson/Rapporteur.
It had the task of studying the Committee's methods of work as well as a
draft general comment on issues relating to reservations made by States
parties upon ratification of or accession to the Covenant or the Optional
Protocols thereto or in relation to declarations made under article 41 of
the Covenant. The members of the working group also held a joint meeting
with the members of the working group established under the note relating
to questions related to the structure of annual reports and the procedure
to be followed by the Committee in response to emergency situations. At
the fifty-third session, it was composed of Mr. Ban, Mr. Bruni Celli, Ms.
Evatt and Mr. Lallah; it met at United Nations Headquarters from 13 to 17
March 1995 and elected Mr. Ban as its Chairperson/Rapporteur. It had the
task of studying a draft general comment on article 25 and of considering
the Committee's methods of work. In addition, pursuant to a decision taken
at the Committee's 1384th meeting (fifty-second session) (see paras. 40 and
41), the working group held a closed meeting on 13 March with
representatives of specialized agencies in order to obtain advance
information on reports to be considered at the fifty-third session; the
meeting was attended by representatives of the International Labour Office,
the Office of the United Nations High Commissioner for Refugees and the
World Health Organization. At the fifty-fourth session, the working group
was composed of Mr. Aguilar Urbina, Mr. Francis, Mr. Klein and Mrs. Medina
Quiroga. It met at the United Nations Office at Geneva from 3 to 7 July
1995 and elected Mr. Klein as its Chairperson/Rapporteur. It had the task
of studying the Committee's methods of work and of considering general
comments already adopted in the past in order to determine which of them
warranted updating. Pursuant to a decision taken at the 1384th meeting
(fifty-second session), the working group held a meeting on 3 July with
representatives of the International Labour Office, the Office of the
United Nations High Commissioner for Refugees and the World Health
Organization in order to obtain advance information on reports to be
considered by the Committee at its fifty-fourth session.
G. Other matters
1. Fifty-second session
14. The Assistant Secretary-General for Human Rights referred to the aim
of treaty universalization, as established by the Declaration and Programme
of Action adopted by the World Conference on Human Rights held at Vienna,
and emphasized that the Secretary-General had addressed a request to Heads
of State and Government calling for the universal ratification of the
principal human rights instruments and, in particular, the Covenant and its
two Optional Protocols. In his report on the work of the Organization, the
Secretary-General had called for better synergy between the work of the
treaty bodies and the programme of advisory services and technical
assistance of the Centre for Human Rights. The members of the Committee
were also informed of the work of the fifth meeting of persons chairing the
human rights treaty bodies held in September 1994, as well as the recent
session of the Committee on the Rights of the Child and the Committee on
the Elimination of Racial Discrimination.
2. Fifty-third session
15. The Committee was informed by the representative of the Secretary-
General of the recent activities of the General Assembly in regard to human
rights, particularly its resolution 49/178 concerning effective
implementation of international instruments on human rights, in which the
Assembly noted with appreciation the initiatives taken by treaty bodies in
respect of urgent measures to prevent human rights violations. The
Assembly also urged them to amend their reporting guidelines so as to
request gender-specific information from States parties. The
recommendation of the meeting of persons chairing the human rights treaty
bodies that such meetings should in future be held on an annual basis was
also endorsed by the Assembly. In addition, the members were informed of
developments at the fifty-first session of the Commission on Human Rights
and of the activities of the Committee on Economic, Social and Cultural
Rights, the Committee against Torture, the Committee on the Rights of the
Child and the Committee on the Elimination of Discrimination against Women.
16. The High Commissioner for Human Rights stressed the importance he
attached to the Committee's work and, in particular, emphasized the leading
role it played in the human rights treaty system. Further efforts were,
however, needed in order to publicize the results of its work more widely
and bring them to the attention of the competent national authorities. At
every one of his meetings with government representatives, he had
systematically drawn their attention to the comments adopted by the
Committee following its consideration of the reports of States parties.
Although it was too early to draw any firm conclusions about that practice,
he had been struck by the fact that Governments were extremely sensitive to
the issues raised and had on the whole given assurances that they would
take steps to apply the Committee's recommendations.
17. The High Commissioner also stressed the importance of the treaty
system in the international protection of human rights, saying that an
unprecedented meeting had just been held between the persons chairing human
rights treaty bodies and the Secretary-General. That meeting, which the
High Commissioner had made a point of attending in person, had been the
result of an initiative taken at the most recent meeting of the persons
chairing such bodies in September 1994. Among the subjects discussed had
been the action taken by the different committees to prevent human rights
violations, such as early warning measures and urgent procedures.
18. The Committee also had an exchange of correspondence with the Federal
Republic of Yugoslavia (Serbia and Montenegro) concerning the submission of
reports in conformity with the Covenant (see paras. 53 and 54 and annex
VIII of this report).
H. Staff resources
19. The greater complexity and more intensive pace of the Committee's
operations, resulting from the increased number of States parties to the
Covenant as well as from qualitative changes in the Committee's methods of
work, have added significantly to the workload of the Secretariat in
providing substantive servicing to the Committee in relation to the
monitoring of States parties' reports. The number of communications
submitted to the Committee under the Optional Protocol has also grown (see
chap. VIII). The Committee noted that under the terms of article 36 of the
Covenant the Secretary-General of the United Nations was to provide the
necessary staff and facilities for the effective performance of the
functions of the Committee under the Covenant. It accordingly requested
the Secretary-General to take the necessary steps to ensure a substantial
increase in the specialized staff assigned to service the Committee in
relation both to the monitoring of States parties' reports and to
consideration of communications submitted under the Optional Protocol.
I. Publicity for the work of the Committee
20. The Chairman gave press conferences at each of the Committee's three
sessions. The Committee expressed the wish that the information services
should be associated more closely with its work so as to give it greater
publicity. The Committee noted with appreciation the great interest in its
work taken by the non-governmental organizations and thanked them for the
information provided.
J. Publications relating to the work of the Committee
21. The Committee noted that the Official Documents (Yearbooks) of the
Human Rights Committee had been published until 1991. Given the resources
on hand, the Committee said that publication of the Official Documents
(Yearbooks) should be expedited in order to liquidate the backlog and
eliminate the delay in issuing the French version.
22. The Committee once again urged that the work be speeded up for the
purpose of publishing volume III of the selection of decisions taken under
the Optional Protocol so as to reduce the backlog as soon as possible. In
future, the selected decisions should be issued in a regular and timely
fashion.
23. The Committee also insisted on the need for its annual report together
with its annexes to be submitted to the General Assembly on time.
24. The Committee wishes to draw attention to the fact that it was
deprived of summary records at its forty-ninth session for financial
reasons, but that the Secretariat undertook to produce them from the
recorded tapes, in English only. 1/ That has not yet been done, and the
Committee therefore wishes to reiterate its request.
K. Facilities
25. The Committee expressed a wish for additional facilities to be made
available during its sessions. It would like to have a room in which
members could receive delegations, meet in informal groups, or work between
meetings. In due course, all the documentation members of the Committee
might need in preparing their work could be kept in the room in question,
which could be used by other treaty bodies (see decision along those lines
adopted at the most recent meeting of persons chairing human rights treaty
bodies in September 1994).
L. Future meetings of the Committee
26. At its fifty-third session, the Committee confirmed the following
schedule of meetings for 1996-1997: the fifty-sixth session will be held
at United Nations Headquarters from 18 March to 5 April 1996, the fifty-
seventh session at the United Nations Office at Geneva from 8 to 26 July
1996, the fifty-eighth session at the United Nations Office at Geneva from
21 October to 8 November 1996, the fifty-ninth session at United Nations
Headquarters from 24 March to 11 April 1997, the sixtieth session at the
United Nations Office at Geneva from 14 July to 1 August 1997 and the
sixty-first session at the United Nations Office at Geneva from 20 October
to 7 November 1997. In each case, the working groups of the Committee will
meet during the week preceding the session.
M. Adoption of the report
27. At its 1443rd and 1444th meetings, held on 27 and 28 July 1995, the
Committee considered the draft of its nineteenth annual report, covering
its activities at the fifty-second, fifty-third and fifty-fourth sessions,
held in 1994 and 1995. The report, as amended in the course of the
discussion, was adopted unanimously.
II. ACTION BY THE GENERAL ASSEMBLY AT ITS FORTY-NINTH
SESSION AND BY THE COMMISSION ON HUMAN RIGHTS AT
ITS FIFTY-FIRST SESSION
28. At its 1415th meeting, held on 7 April 1995, the Committee considered
the agenda item in the light of the relevant summary records of the Third
Committee, General Assembly resolution 49/178 of 23 December 1994,
Commission on Human Rights resolutions 1995/18 and 1995/22 of 24 February
1995, and Commission on Human Rights decision 1995/110 of 3 March 1995.
29. The Committee noted that, in accordance with General Assembly
resolution 45/175 of 18 December 1990, substantive resolutions on the human
rights treaty bodies should be adopted every two years (in uneven years)
and that, consequently, at its forty-ninth session, the Third Committee had
limited itself to taking note of its report.
30. With reference to the discussion in the General Assembly relating to
the effective implementation of international instruments on human rights,
including reporting obligations under those instruments, and the effective
functioning of the treaty bodies, the Committee noted with satisfaction
that the Assembly had once again stressed the importance of compliance by
States parties with their reporting obligations. The Committee took note
of the importance attached by the Assembly to the final comments on the
reports considered by the human rights treaty-monitoring bodies. The
Committee noted that the conclusions and recommendations of the 5th meeting
of persons chairing the human rights treaty bodies had been endorsed by the
General Assembly, particularly the recommendation that their meetings
should be held annually.
31. The Committee discussed the relevant resolutions adopted by the
Commission on Human Rights at its fifty-first session. It wholeheartedly
endorsed the resolution on succession of States in respect of international
human rights treaties as well as that on the Covenants, in particular the
recommendation that countries having difficulties in introducing changes in
their legislation that might be necessary for the ratification of
international instruments on human rights should be encouraged to request
appropriate support from the Centre for Human Rights on advisory services
and technical cooperation programmes, as well as the recommendation
stressing the importance for States parties to observe the agreed
conditions and procedure for derogation under article 4 of the
International Covenant on Civil and Political Rights. The Committee noted
with satisfaction the Commission's request that the recent periodic reports
of States parties to the human rights treaty-monitoring bodies, the summary
records of Committee discussions pertaining to them, and concluding
observations and final comments of the treaty bodies should be made
available to the United Nations information centres.
32. The Committee considered Commission on Human Rights decision 1995/110
on the right to a fair trial and noted that, as recommended by the
Subcommission on Prevention of Discrimination and Protection of Minorities
in its resolution 1994/35 of 26 August 1994, the Commission was considering
the establishment of an open-ended working group to draft a third optional
protocol to the International Covenant on Civil and Political Rights aiming
at guaranteeing under all circumstances the right to a fair trial and to a
remedy. In that regard, the Committee recalled that it had submitted its
own recommendations to the Subcommission on Prevention of Discrimination
and Protection of Minorities. In those recommendations, adopted at its
1314th meeting (fiftieth session) on 6 April 1994, 2/ the Committee had
concluded that it was inadvisable to pursue the elaboration of a draft
optional protocol to the Covenant with the aim of adding article 9,
paragraphs 3 and 4, as well as article 14 to the list of non-derogable
rights enumerated in article 4, paragraph 2, of the Covenant.
33. The Committee again noted that the purpose of the possible third
optional protocol was to add article 9, paragraphs 3 and 4, and article 14
to the list of non-derogable provisions in article 4, paragraph 2, of the
Covenant. Based on its experience derived from the consideration of States
parties' reports submitted under article 40 of the Covenant, the Committee
wishes to point out that, with respect to article 9, paragraphs 3 and 4,
the issue of remedies available to individuals during states of emergency
has often been discussed. The Committee is satisfied that States parties
generally understand that the right to habeas corpus and amparo should not
be limited in situations of emergency. Furthermore, the Committee is of
the view that the remedies provided in article 9, paragraphs 3 and 4, read
in conjunction with article 2, are inherent in the Covenant as a whole.
Having this in mind, the Committee believes that there is a considerable
risk that the proposed draft third optional protocol might implicitly
invite States parties to feel free to derogate from the provisions of
article 9 of the Covenant during states of emergency if they do not ratify
the proposed optional protocol. Thus, the protocol might have the
undesirable effect of diminishing the protection of detained persons during
states of emergency.
34. The Committee is also of the view that it would simply not be feasible
to expect that all provisions of article 14 can remain fully in force in
any kind of emergency. Thus, the inclusion of article 14 as such in the
list of non-derogable provisions would not be appropriate.
III. METHODS OF WORK OF THE COMMITTEE UNDER ARTICLE 40 OF
THE COVENANT: OVERVIEW OF PRESENT WORKING METHODS
35. This section of the Committee's report aims at providing a concise and
up-to-date overview of the modifications recently introduced by the
Committee in its working methods under article 40 of the Covenant and is
particularly designed to make the current procedure more transparent and
readily accessible to all, so as to assist States parties and others
interested in the implementation of the Covenant. A detailed account of
the methods of work usually applied by the Human Rights Committee for the
consideration of reports submitted by States parties appears in the
Committee's last annual report. 3/
A. The Committee's procedures in dealing with emergency
situations and in cases of reports that have been
overdue for a very long period
36. Since April 1991 (forty-first session), and in the light of recent or
current events indicating that the enjoyment of human rights protected
under the Covenant has been seriously affected in certain States parties,
the Committee has resorted to the practice of requesting the States parties
concerned to submit urgently reports on the situation (generally within
three months). Such decisions have been taken regarding, in chronological
order, Iraq (11 April 1991), the Federal Republic of Yugoslavia (4 November
1991), Peru (10 April 1992), Bosnia-Herzegovina, Croatia and the Federal
Republic of Yugoslavia (Serbia and Montenegro) (6 October 1992), Angola,
Burundi (29 October 1993), Haiti and Rwanda (27 October 1994).
37. The situation regarding overdue reports has grown worse over the
years, seriously jeopardizing the attainment of the objectives of the
Covenant and hampering the ability of the Committee to monitor the
implementation of the Covenant in the States parties concerned. As at 28
July 1995, a total of 106 reports (27 initial, 21 second periodic, 37 third
periodic and 21 fourth periodic reports), involving a total of 85 States
parties, were outstanding.
38. In view of the foregoing, the Committee decided at its fifty-second
session that in future States parties that had not replied favourably to a
special request or to a decision by the Committee and whose reports were
overdue by five years or more should be sent an energetically worded note
verbale requesting them to submit their reports as soon as possible. Such
notes verbales were sent for the first time on 12 December 1994.
39. At the same session, the Committee also decided that, where the
consideration of a report revealed a grave human rights situation, the
Committee could request the State party concerned to receive a mission
composed of one or more of its members in order to re-establish dialogue
with it, explain the situation better and formulate appropriate suggestions
or recommendations.
B. Participation by specialized agencies and other United
Nations organs in the Committee's work
40. At its fifty-second session, the Committee modified its working
methods so as to enable the specialized agencies and other United Nations
organs to take a more active part in its activities. The Committee
accordingly decided that a meeting would be scheduled at the beginning of
each session of the pre-sessional working group so that it might suitably
receive oral information provided by those organizations. Such oral
information should thus relate to the reports to be considered during the
Committee's session and, if need be, supplement the written information
already provided.
41. Consequently, starting with the fifty-third session, the Working Group
on Article 40 devoted a meeting to listening to such statements by
specialized agencies and other United Nations organs concerning the reports
to be considered during the plenary session. The Committee was highly
appreciative both of the wealth of the oral or written information received
and of the level of representation of the specialized agencies or other
United Nations organs participating in such exchanges of views, in
particular the International Labour Office and the Office of the United
Nations High Commissioner for Refugees.
42. On the basis of this experience and noting that the special
rapporteurs or representatives and the working groups of the Commission on
Human Rights were tending to make increasingly frequent reference to its
comments, the Committee, at its fifty-third session, expressed the wish
that they should also be allowed as far as possible to avail themselves of
the procedure described in the previous paragraph. It therefore decided
that, whenever possible, the special rapporteurs or representatives and
representatives of working groups of the Commission on Human Rights that
had drafted country reports or thematic reports would be invited to attend
the aforementioned meeting of the Working Group on Article 40.
C. Equality and human rights of women
43. The Committee took note of the various recommendations made by the
World Conference on Human Rights concerning the integration of a component
regarding equality of status and human rights of women in the activities of
the human rights treaty bodies (principles 36 to 42 of the Declaration of
the Vienna Programme of Action). The Committee stressed in that connection
that the lists of issues to be dealt with during the Committee's
consideration of States' reports submitted under article 40 of the Covenant
systematically included practical matters concerning equality of status and
the human rights of women. Furthermore, General Comment No. 4 (13) was
devoted to matters concerning measures to be taken to give effect to
article 3 of the Covenant, while General Comment No. 18 (37) covered all
the provisions against discrimination under articles 2, 3 and 26 of the
Covenant. The Committee is envisaging the possibility of supplementing
these two texts by a specific general comment.
44. Lastly, at its fifty-third session, the Committee decided to amend
paragraph 4 (c) of the Committee's guidelines concerning the initial
reports submitted by States parties as follows:
"(...) The part of the report relating specifically to parts I, II and III
of the Covenant should describe in relation to the provisions of each
article:
"(...) (c) Any other factors or difficulties affecting the enjoyment of
the right by persons within the jurisdiction of the States, including any
factors affecting the equal enjoyment by women of that right".
45. Paragraph 6 (e) of the Committee's guidelines for periodic reports is
amended accordingly. The guidelines as amended are reproduced in annex
VII.
IV. SUBMISSION OF REPORTS BY STATES PARTIES UNDER
ARTICLE 40 OF THE COVENANT
46. Under article 2, paragraph 1, of the International Covenant on Civil
and Political Rights, each State party undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the
rights recognized and enumerated in Part III of the Covenant. In
connection with this provision, article 40, paragraph 1, of the Covenant
requires States parties to submit reports on the measures adopted and the
progress achieved in the enjoyment of the various rights, and on any
factors and difficulties that may affect the implementation of the
Covenant. States parties undertake to submit reports within one year of
the entry into force of the Covenant for the States parties concerned and
thereafter whenever the Committee so requests. In order to assist States
parties in submitting reports, the Human Rights Committee approved, at its
second session, general guidelines regarding the form and contents of
initial reports (see annex VII).
47. Furthermore, in accordance with article 40, paragraph 1 (b), of the
Covenant, the Committee adopted a decision on periodicity at its thirteenth
session requiring States parties to submit subsequent reports to the
Committee every five years. 4/ At the same session, the Committee adopted
guidelines regarding the form and contents of periodic reports from States
parties under article 40, paragraph 1 (b), of the Covenant (see annex VII).
48. At its thirty-ninth session, the Committee adopted an amendment to its
guidelines for the submission of initial and periodic reports relating to
reporting by States parties on action taken in response to the issuance by
the Committee of views under the Optional Protocol. 5/ At its forty-second
session, the Committee revised its general guidelines for the submission of
initial and periodic reports to take into account the consolidated
guidelines for the initial part of the reports of States parties to be
submitted under the various international human rights instruments,
including the Covenant (HRI/CORE/1). 6/ In addition, at its fifty-third
session, the Committee further amended its guidelines with a request to
States to include in their reports information on any factors affecting the
equal enjoyment by women of the rights protected under the Covenant (see
para. 44 and annex VII).
A. Reports submitted by States parties under article 40
of the Covenant during the period under review
49. During the period covered by the present report, the Committee
received 16 initial or periodic reports, representing a significant
increase by comparison with previous years. Initial reports were submitted
by Brazil, Estonia, Guatemala, Latvia, Switzerland and Zambia; Cyprus,
Denmark, Iceland, Mauritius, the Netherlands and Peru submitted their third
periodic reports; and Belarus, the Russian Federation, Sweden and the
United Kingdom of Great Britain and Northern Ireland submitted their fourth
periodic reports.
50. The Committee noted that the reports submitted by States parties under
article 40 of the Covenant increasingly reproduced the texts of legislation
in extenso, which made the reports extremely bulky. The Committee noted
that the States concerned adopted this practice with the clear intention of
complying with the Committee's guidelines on initial reports
(CCPR/C/5/Rev.2), which refer, inter alia to a description of the
legislative, administrative or other
measures in force relating to each right. The Committee nevertheless
considers that States should include only necessary information in their
reports, and in particular avoid simply paraphrasing the law without
describing its practical application; this would obviate the huge increase
in the volume of information furnished to the Committee, and consequently
the growing constraints faced by the Secretariat in translating and
reproducing documents as well as the inevitable delays occasioned in the
consideration of reports.
51. The Committee received a communication from the Government of Mexico,
dated 18 July 1994, regarding the consideration of its third periodic
report by the Committee in March 1994 (fiftieth session). 7/ The
communication included replies to certain oral questions to which the
delegation had been unable to reply during the consideration of that
report, as well as comments on the observations of the Committee contained
in document CCPR/C/79/Add.32. The Government's communication is reproduced
in document CCPR/C/108.
52. The Committee also received a communication dated 27 July 1995 from
the Government of Latvia concerning consideration of its initial report
(see paras. 332 to 359). It contained replies to certain oral questions
which the delegation could not answer when its report was considered. In
addition, in a communication of the same date, the Government of Ukraine
made a number of observations about the Committee's final comments
reproduced in paragraphs 303 and 331 of the present report. The
Government's communication appears in document CCPR/C/109.
53. In a letter dated 26 January 1995, addressed to the Chairman of the
Committee, the Permanent Representative of the Federal Republic of
Yugoslavia to the United Nations Office at Geneva stated, inter alia, that
in view of the fact that the rights of Yugoslavia under the Covenant,
particularly the right to equitable participation in the Meetings of States
parties, had been denied, its Government would only submit the fourth
periodic report of the Federal Republic of Yugoslavia to the Committee when
the Federal Republic of Yugoslavia is treated as an equal party to the
Covenant.
54. In his reply on behalf of the Committee, on 13 July 1995, the Chairman
underlined that the submission of reports under the Covenant constitutes a
solemn legal obligation assumed by each State party and is indispensable
for carrying out the Committee's basic function of establishing a positive
dialogue with States parties in the field of human rights. Therefore, non-
submission of reports greatly hinders the process of dialogue and seriously
undermines the objectives of the Covenant by hampering the Committee's
ability to monitor the implementation of the Covenant. He further recalled
that in an earlier decision the Committee had emphasized that all the
people within the territory of the former Yugoslavia were entitled to the
guarantees of the Covenant and that the Federal Republic of Yugoslavia was
bound by the obligations under the Covenant. While it was not for the
Committee to take a position on the action of the Meeting of States parties
with regard to the Federal Republic of Yugoslavia (Serbia and Montenegro),
the Committee would continue to proceed on the basis of that understanding
and expressed the hope that the Government of the Federal Republic of
Yugoslavia (Serbia and Montenegro) would reconsider its decision and submit
its report to the Committee as soon as possible (the content of the latter
is reproduced in annex VII of the report).
B. Special decisions by the Human Rights Committee
concerning reports of particular States
55. In view of the special difficulties encountered by Haiti and Rwanda in
the implementation of the Covenant, the Committee adopted, at its 1374th
meeting (fifty-second session), held on 27 October 1994, the following
special decisions:
Haiti
The Human Rights Committee,
Deeply concerned at the difficulties encountered by Haiti in regard to
protection of the human rights set forth in the International Covenant on
Civil and Political Rights,
Acting under article 40, paragraph 1 (b) of the Covenant,
1. Decides to request the Government of Haiti to submit its initial
report without delay for discussion by the Committee at its fifty-third
session, to be held from 20 March to 7 April 1995, and, in any event, to
submit not later than 31 January 1995 a report, in summary form if
necessary, relating in particular to the application of articles 6, 7, 9,
10 and 14 of the Covenant;
2. Requests the Secretary-General to bring this decision to the
attention of the Government of Haiti.
Rwanda
The Human Rights Committee,
Deeply concerned at the difficulties encountered by Rwanda in regard to
protection of the human rights set forth in the International Covenant on
Civil and Political Rights,
Acting under article 40, paragraph 1 (b) of the Covenant,
1. Decides to request the Government of Rwanda to submit its third
periodic report without delay for discussion by the Committee at its fifty-
third session, to be held from 20 March to 7 April 1995, and, in any event,
to submit not later than 31 January 1995 a report, in summary form if
necessary, relating in particular to the application during the present
period of articles 6, 7, 9, 10, 14 and 27 of the Covenant;
2. Requests the Secretary-General to bring this decision to the
attention of the Government of Rwanda.
C. Reports submitted by States parties in accordance with
a special decision of the Human Rights Committee
56. Burundi submitted a special report pursuant to a decision to that
effect adopted by the Committee on 29 October 1993 at its forty-ninth
session. 8/ Haiti submitted a special report which was considered at the
Committee's fiftythird session (see para. 55 and paras. 222 to 239).
V. STATES THAT HAVE NOT COMPLIED WITH THEIR OBLIGATIONS
UNDER ARTICLE 40
57. States parties to the Covenant must submit the reports referred to in
article 40 of the Covenant on time so that the Committee can duly perform
its functions under that article. These reports are the basis of the
dialogue between the Committee and States parties, and any delay in their
submission means an interruption of this process. However, serious delays
have been noted since the establishment of the Committee. During the
period covered by the present report, the Committee took various measures
to induce States parties effectively to carry out their reporting
obligation under article 40 of the Covenant. Reminders were sent on 12
December 1994 and 29 June 1995 to States parties whose reports had not been
submitted as scheduled. In addition, at the session of March/April 1995,
the members of the Bureau met in New York with the Permanent
Representatives of all States parties whose initial report, periodic report
or report under a special decision of the Committee had been overdue for
more than four years. Such contacts were made with the Permanent
Representatives of all the States concerned with the exception of Angola,
the Gambia and the Democratic People's Republic of Korea.
58. After reviewing the situation with respect to the late submission both
of initial and periodic reports, the Committee noted with regret that 85
States parties to the Covenant, or more than two thirds of all States
parties, were in arrears with their reports. The Committee again
considered itself duty-bound to express its serious concern about the fact
that so many States parties are in default of their obligations under the
Covenant. This state of affairs seriously impedes the Committee's ability
to monitor the implementation of the Covenant, and it therefore decided to
list in the core of its annual report to the General Assembly, as it had
already done in its previous annual report, the States parties that have
more than one report overdue. The Committee wishes to reiterate that these
States are in serious default of their obligations under article 40 of the
Covenant.
VI. CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 40 OF THE COVENANT
59. At its 1314th meeting (fiftieth session), the Committee decided to
discontinue its practice of including in its annual report summaries of the
consideration of the reports submitted by States parties under article 40
of the Covenant. In accordance with that decision, the annual report shall
contain, inter alia, the final comments adopted by the Committee at the end
of the consideration of States parties' reports. Accordingly, the
following paragraphs, arranged on a country-by-country basis in the
sequence followed by the Committee in its consideration of the reports,
contained the final comments adopted by the Committee with respect to the
States parties' reports considered at its forty-ninth, fiftieth and fifty-
first sessions.
A. Nepal
60. The Committee considered the initial report of Nepal (CCPR/C/74/Add.2)
at its 1359th and 1363rd meetings, held on 17 and 19 October 1994, and
adopted 9/ the following final comments:
1. Introduction
61. The Committee welcomes the initial report (CCPR/C/74/Add.2) and the
core document (HRI/CORE/1/Add.42) of Nepal and expresses its appreciation
to the State party for the opening of a constructive dialogue. The
Committee regrets, however, that the information provided in the report was
in many respects incomplete and did not follow the Committee's guidelines
regarding the form and contents of initial reports (CCPR/C/5/Rev.1). The
lack of information on factors and difficulties impeding the implementation
of the Covenant prevented the Committee from gaining a clear idea of the
real human rights situation in the country.
62. The Committee expresses its appreciation to the State party for taking
part in the dialogue and for responding to the questions raised by members
of the Committee. The valuable information provided orally supplemented to
a certain extent the report, thereby providing a sound basis for a frank
and fruitful dialogue between the Committee and the State party. It,
however, regrets that the delegation could not include representatives of
the various Ministries concerned with the implementation of the Covenant,
in particular of the Ministry of Justice.
2. Factors and difficulties affecting the implementation
of the Covenant
63. The Committee recognizes that Nepal is emerging from a long period of
isolation, and that the remnants of authoritarian rule have not yet been
overcome. Steps remain to be taken in engaging, consolidating and
developing democratic institutions for better implementation of the
Covenant. Economic depression, extreme poverty and widespread illiteracy
constitute obstacles to the effective implementation of the Covenant.
3. Positive aspects
64. The Committee welcomes the efforts undertaken by the State party to
establish democratic institutions and multipartism as well as its declared
commitment to the rule of law and the independence of the judiciary. It
takes note, in particular, of the adoption of a new Constitution which
provides the basis for a parliamentary system of government based on multi-
party democracy as well as for an independent Supreme Court. The right of
citizens to petition the Supreme Court to challenge laws which violate
human rights and the use of this right is particularly welcomed. The
Committee also notes with satisfaction that Nepal has recently acceded to a
number of international human rights instruments, including the First
Optional Protocol to the Covenant.
4. Principal subjects of concern
65. The Committee notes that the status of the Covenant within the legal
system is unclear and that the necessary steps to adopt legislative and
other measures to give effect to the rights recognized in the Covenant have
not yet been taken. Furthermore, a significant gap exists between
provisions of the Constitution and other legal norms on the one hand, and
their application in practice, on the other. Accordingly, there is a need
to clearly define the place of the Covenant within the Nepalese legal
system to ensure that domestic laws are applied in conformity with the
provisions of the Covenant and that the latter can be invoked before the
courts and applied by the other authorities concerned. The lack of
publicity given to the provisions of the Covenant and the Optional Protocol
is also a matter of concern. Since provisions of the Constitution seem to
provide rights and freedoms to citizens only, the Committee draws the State
party's attention to its obligations to ensure to all individuals within
its jurisdiction the rights and freedoms recognized in the Covenant.
66. The Committee notes that the non-discrimination clauses in article 11
of the Constitution do not cover all the grounds provided for in articles 2
and 26 of the Covenant. It is particularly disturbed by the fact that the
principle of non-discrimination and equality of rights suffers serious
violations in practice and deplores inadequacies in the implementation of
the prohibition of the system of castes. The persistence of practices of
debt bondage, trafficking in women, child labour, and imprisonment on the
ground of inability to fulfil a contractual liability constitute clear
violations of several provisions of the Covenant.
67. The Committee expresses its concern about the situation of women who,
despite some advances, continue to be de jure or de facto the object of
discrimination as regards marriage, inheritance, transmission of
citizenship to children, divorce, education, protection against violence,
criminal justice, and wages. The Committee is also concerned that the
average life expectancy of women is shorter than that of men. It regrets
the high proportion of women prisoners sentenced for offences resulting
from unwanted pregnancies.
68. The Committee deplores the lack of clarity of the legal provisions
governing the introduction and administration of a state of emergency,
particularly article 115 of the Constitution, which would permit
derogations contravening the State party's obligations under article 4,
paragraph 2, of the Covenant.
69. The Committee is deeply concerned about the cases of summary and
arbitrary executions, enforced or involuntary disappearances, torture and
arbitrary or unlawful detention committed by members of the army, security
or other forces during the period under review which have been brought to
its attention. It deplores that those violations were not followed by
proper inquiries or investigations, that the perpetrators of such acts were
neither brought to justice nor punished, and that the victims or their
families were not compensated. It regrets that the draft laws against
torture and ill-treatment of the person and on the compensation of victims
of torture have not yet been adopted. Moreover, the quasi-judicial
authority of the Chief District Officer and the insufficient protection of
the independence of the judiciary undermine the efforts aimed at preventing
the recurrence of such acts.
70. The Committee notes with concern the excessive restrictions on the
right to freedom of expression and information and the restrictions which
apply to the manifestation of religion and to change of religion.
5. Suggestions and recommendations
71. The Committee recommends that the legislative reforms presently under
way in Nepal be expanded and intensified in order to ensure that all
relevant legislation is in conformity with the Covenant. It emphasizes the
need for the provisions of the Covenant to be fully incorporated into
domestic law and made enforceable by domestic courts. The necessary steps
should be taken to give effect to the rights recognized in the Covenant.
The text of the Covenant and the First Optional Protocol should be
translated into all languages spoken in Nepal, widely publicized and
included in school curricula, to ensure that the provisions of these
instruments are widely known to members of the legal profession, the
judiciary and law enforcement officials, as well as to the general public.
The legal profession and non-governmental organizations should be
encouraged to contribute to the process of reform.
72. The Committee stresses the need to take appropriate action in order to
ensure the effective application of articles 2 and 3 of the Covenant,
particularly through the adoption of administrative and educational
measures designed to eliminate traditional practices and customs
detrimental to the well-being and status of women and vulnerable groups of
Nepalese society.
73. The Committee recommends that appropriate information be gathered and
educational measures be taken to eradicate practices of debt bondage,
trafficking in women and child labour. Prison reforms now envisaged should
be accelerated.
74. The Committee recommends that the authorities adopt legislation to
bring its domestic legal regime into harmony with its obligations under
article 4, paragraph 2, of the Covenant.
75. The Committee urges the Government of Nepal to take all necessary
measures to prevent extra-judicial and summary executions, enforced or
involuntary disappearances, torture and degrading treatment and illegal or
arbitrary detention. The Committee recommends that all such cases be
systematically investigated in order to bring those suspected of having
committed such acts before the courts and that the victims be compensated.
76. The Committee recommends that Nepal study measures directed towards
the abolition of the death penalty, and give consideration to accession to
the Second Optional Protocol.
77. The Committee also recommends that the necessary measures be taken by
the Government to give effect to the separation of executive and judicial
functions and to ensure the full independence and proper functioning of the
judiciary. The texts of the draft laws against torture and ill-treatment of
the person as well as on compensation of victims of torture should be
brought into line with the provisions of the Covenant and adopted as soon
as possible. Specifically targeted training courses on human rights for
law enforcement officials, members of the judiciary, and members of the
police and security forces should be organized.
78. The Committee calls upon the State party to prepare its second
periodic report in compliance with the Committee's guidelines regarding the
form and contents of State party reports (CCPR/20/Rev.1). The report
should, in particular, include detailed information on the specific laws
applicable to each right protected under the Covenant and the extent to
which each right is enjoyed in practice, and refer to specific factors and
difficulties that might impede its application. In undertaking this
obligation, the State party may avail itself of the Advisory Services and
Technical Assistance Programmes of the United Nations Centre for Human
Rights.
B. Tunisia
79. The Committee considered the fourth periodic report of Tunisia
(CCPR/C/84/Add.1) at its 1360th to 1362nd meetings, held on 18 and 19
October 1994, and adopted 10/ the following comments:
1. Introduction
80. The Committee welcomes the timely submission of the fourth periodic
report of Tunisia and appreciates the promptness with which the State party
continues to meet its reporting obligations under the Covenant. The report
contains useful and detailed information on measures taken by the
Government, particularly with regard to legislative reform and
institutional developments affecting the application of the Covenant.
However, the Committee notes that the report does not contain sufficient
information on factors and difficulties encountered in the implementation
of the Covenant.
81. The Committee also welcomes the presence, during the examination of
the report, of a high-level and competent delegation of experts
knowledgeable in the implementation of the Covenant in Tunisia. The
delegation provided much useful and updated information which facilitated a
constructive dialogue with the State party.
2. Factors and difficulties affecting the implementation
of the Covenant
82. The Committee is aware that Tunisia is in a period of economic,
political and social transition and that it has to face the challenge of
extremist movements.
3. Positive aspects
83. The Committee notes with satisfaction the attempt to build a
comprehensive constitutional and legal framework for the promotion and
protection of human rights. The Committee welcomes recent progress in
enhancing and strengthening that framework, notably the establishment of a
number of human rights posts, offices and units within the executive branch
with a view to ensuring greater conformity of Tunisian law and practice
with the Covenant and other international human rights instruments.
84. The Committee also notes with satisfaction recent legislative reforms
aimed at bringing Tunisian law into closer harmony with the requirements of
the Covenant. In this connection, the Committee welcomes changes in the
Penal Code which have reduced the duration of preventive detention and
strengthened sanctions in cases of family violence directed against women.
The Committee also welcomes recent reforms in the Personal Status Code and
other laws aiming to guarantee and reinforce the equal rights of women in a
number of areas, including divorce, custody and maintenance, and to
strengthen the protection of women against violence.
4. Principal subjects of concern
85. The Committee cannot conceal its disappointment with the deterioration
in the protection of human rights in Tunisia in the period under review.
It is concerned, in particular, about the growing gap between law and
actual practice with regard to guarantees and safeguards for the protection
of human rights. Although there is now in place an impressive array of
State organs for the promotion and protection of human rights at various
levels, the Committee notes that they have been concentrated exclusively
within the executive branch of the Government. Consequently, it is not
clear whether there are sufficiently independent mechanisms within the
public administration and the judiciary to effectively monitor and enforce
the implementation of existing human rights standards, including the
investigation of abuses.
86. The Committee is particularly concerned about continuing reports of
the abuse, ill-treatment and torture of detainees, including deaths in
custody under suspicious circumstances. In this connection, it appears
that Tunisian regulations are not strictly adhered to with respect to the
prompt registration of persons arrested, the immediate notification of
family members, the limitation of pre-trial detention to the 10-day
maximum, the requirement of medical examinations whenever allegations of
torture or other abuse are made and the carrying out of autopsies in all
cases of death in custody. It is also not clear whether these and other
requirements are being systematically monitored or whether investigations
are automatically undertaken in all cases where there are either
allegations or suspicious circumstances indicating that torture may have
taken place. The Committee is also concerned that present laws are overly
protective of government officials, particularly those concerned with
security matters; it is particularly concerned that those government
officials who have been found guilty of wrong-doing remain anonymous to the
general public, becoming immune from effective scrutiny.
87. The Committee is concerned about the independence of the judiciary.
It is also concerned by the reports on harassment of lawyers who have
represented clients accused of having committed political offences and of
the wives and families of suspects. With respect to article 6 of the
Covenant, the Committee is concerned about the large number of crimes in
Tunisia for which the death penalty may be imposed.
88. The Committee regrets that, despite the significant progress which has
been achieved regarding the equal rights of women, there remain a number of
outdated legal provisions that are contrary to the Covenant. Those
provisions concern the status of married women and their equal rights in
matters of child custody, the transmission of nationality and parental
consent for the marriage of minor children. The Committee is also
concerned about legal discrimination against non-Muslims with respect to
eligibility for public office.
89. The Committee is concerned that dissent and criticism of the
Government are not fully tolerated in Tunisia and that, as a result, a
number of fundamental freedoms guaranteed by the Covenant are not fully
enjoyed in practice. In particular, it regrets the ban on the publication
of certain foreign newspapers. The Committee is concerned that those
sections of the Press Code dealing with defamation, insult and false
information unduly limit the exercise of freedom of opinion and expression
as provided for under article 19 of the Covenant. In this connection, the
Committee is concerned that those offences carry particularly severe
penalties when criticism is directed against official bodies as well as the
army or the administration, a situation which inevitably results in self-
censorship by the media when reporting on public affairs. The Committee
also notes with concern that it is not clear how procedures ensure
independent review on the merits, including judicial appeal, in cases where
those provisions of the Press Code have been invoked.
90. The Committee is concerned that the Associations Act may seriously
undermine the enjoyment of the freedom of association under article 22,
particularly with respect to the independence of human rights non-
governmental organizations. In this connection, the Committee notes that
the Act has already had an adverse impact on the Tunisian League for Human
Rights. The Committee believes that the Political Parties Act and the
conditions imposed on the activities of political parties are not in
conformity with articles 22 and 25 of the Covenant. The Committee is also
concerned that, under the Passport Act, the grounds for refusing a passport
are not clearly specified by law in a way that complies with article 12 of
the Covenant, leaving open the possibility of refusal on political or other
unacceptable grounds.
91. The Committee is concerned that, while generally there is a well-
protected freedom to practise and manifest one's religion, this right is
not made available in respect of all beliefs.
5. Suggestions and recommendations
92. The Committee recommends that steps be taken to strengthen the
independence of human rights institutions in Tunisia and thereby close the
gap between law and practice and enhance the confidence of the public in
those institutions. The Committee emphasizes that the work of the
"mediateur administratif", the Presidential Human Rights Commissioner and
any commission investigating reports of human rights abuses should be
transparent and the results should be made public. The Committee notes
that a better balance is needed between State and private institutions
concerned with human rights and, in that connection, suggests that steps be
taken to provide more encouragement to human rights nongovernmental
organizations in Tunisia. The Committee also recommends that steps be
taken to strengthen the independence of the judiciary, particularly from
the executive branch.
93. The Committee strongly recommends that the State party consider
ratifying or acceding to the First Optional Protocol to the International
Covenant on Civil and Political Rights. Acceptance of the First Optional
Protocol would strengthen the capacity of the Government with respect to
inquiries into allegations of human rights abuses and also in regard to
further elaborating jurisprudence relating to human rights matters.
94. With respect to reports of torture and abuse of detainees, the
Committee strongly recommends closer monitoring of the arrest and detention
process; systematic, prompt and open investigation into allegations;
prosecution and punishment of offenders; and the provision of legal
remedies for victims. There should be strict enforcement of registration
procedures, including prompt notification of family members of persons
taken into custody, and the 10-day limit to preventive detention. Steps
should also be taken to ensure that medical examinations are automatically
provided following allegations of abuse and that thorough autopsies are
performed following any death in custody. In all cases where
investigations are undertaken, the findings should be made public.
95. The Committee also recommends that the State party take steps to
reduce the number of crimes for which the death penalty may be imposed and
envisage acceding to the Second Optional Protocol to the Covenant.
96. With respect to discrimination, the Committee recommends that a
further review of relevant legislation be undertaken with a view to
amending the law where necessary in order to bring it into conformity with
the requirements of the Covenant. Such a review should focus on the equal
rights of women, particularly in regard to their parental and custodial
rights and the transmission of nationality, as well as on existing legal
impedimentsto theequal participationofnon-Muslims inpresidential elections.
97. The Committee recommends that measures be taken to ensure the exercise
of freedom of opinion and expression in accordance with article 19 of the
Covenant. In particular, there should be a review and, where appropriate,
amendment of those provisions of the Press Code which unduly protect
government policy and officials from criticism. Provision should also be
made for independent judicial review of all sanctions imposed under the
relevant act.
98. The Committee also recommends that a review be undertaken of the
Associations Act, the Passport Act and the Political Parties Act to ensure
that they are in full conformity with the requirements of the Covenant.
With respect to freedom of religion, the Committee recommends that there be
close and independent monitoring of the exercise of that right by all
groups in Tunisia. The Committee emphasizes that its General Comment on
article 18 should be reflected in government policy and practice.
C. Morocco
99. The Committee considered the third periodic report of Morocco
(CCPR/C/76/Add.3 and Add.4) at its 1364th to 1366th meetings
(CCPR/C/SR.1364 to 1366), held on 20 and 21 October 1994, and adopted 11/
the following comments:
1. Introduction
100. The Committee welcomes the opportunity to resume its dialogue with
the State party and thanks the Government for its report (CCPR/C/76/Add.3
and Add.4) and core document (HRI/CORE/1/Add.23). The Committee regrets,
however, that although the report contained detailed information on laws
and regulations giving effect to the Covenant, it did not include
sufficient information about the implementation of the Covenant in practice
or about factors and difficulties affecting the application of the
Covenant.
101. The delegation provided valuable additional information on a number
of issues not covered in the report which enabled the Committee to obtain a
better understanding of the human rights situation in Morocco. This
enhanced the dialogue between the delegation and the Committee.
2. Factors and difficulties affecting the implementation
of the Covenant
102. The Committee recognizes that the State party has embarked on a wide-
ranging process of amending its domestic legislation to bring it into line
with the Covenant. The process has not yet been completed and steps remain
to be taken to harmonize the Constitution with the Covenant and develop
democratic institutions and human rights machinery for better
implementation of the Covenant. The remnants of certain traditions and
customs constitute an obstacle to the effective implementation of the
Covenant, particularly with regard to equality between men and women.
3. Positive aspects
103. The Committee recognizes that the attitude of the Government has
recently changed towards a greater openness in its handling of human rights
issues, including its reporting obligations under the Covenant. In the
latter regard, some frank oral answers given during the consideration of
the report to questions raised by members regarding issues such as
disappearances, the existence of the Tazmamart detention centre, the
whereabouts of persons previously detained therein and the fate of the
Oufkir family were appreciated.
104. The Committee welcomes the numerous measures taken during the period
under review to improve democracy and institute a legal environment more
favourable to the promotion and protection of human rights. The Committee
notes with satisfaction the promulgation in 1992 of an amended Constitution
and the amnesty of a number of political prisoners. Compensation is being
paid to certain persons illegally detained. The Committee was also glad to
learn of the commutation of death sentences to life imprisonment sentences,
the establishment of the Constitutional Council and the Economic and Social
Council, the holding on 27 September 1993 of parliamentary elections and
the holding of a national symposium on problems affecting the news,
information and communication services to recommend modifications in the
legislation to, inter alia, bring it into line with international human
rights standards, which constitute steps to consolidate the rule of law.
Some progress has been made in the promotion of the status of women and
women have been elected to Parliament for the first time. The Committee
also welcomes the information that measures have been taken to teach the
Covenant and other international human rights instruments to members of the
judiciary and the police. The freedom now given to non-governmental
organizations to be active in the country is also a matter of appreciation.
4. Main subjects of concern
105. The Committee notes that the Constitution does not contain specific
provisions as to the relationship between international treaties and
domestic law. Accordingly, there is a need to better define the place of
the Covenant within the Moroccan legal system to ensure that domestic law
is applied in conformity with the provisions of the Covenant.
106. The Committee is concerned about Morocco's role with regard to the
persistent problems regarding self-determination in Western Sahara.
107. The Committee regrets that, although some improvement has been
achieved as regards the status of women, the State party has not yet
embarked on all the necessary reforms to combat the difficulties still
impeding equality between men and women. The Constitution provides for
equality only in the area of political rights, and the situation of women
in both public and private law continues to be de jure or de facto the
object of discrimination as regards the right to leave the country, freedom
to pursue commercial activities, personal status, marriage, divorce,
inheritance rights, transmission of nationality, education, access to work
and participation in the conduct of public affairs.
108. The Committee is concerned that the categories of crimes punishable
by the death penalty include crimes in respect of which, by reference to
article 6 of the Covenant, the death penalty should not be imposed.
109. Despite the amnesty of political prisoners and the destruction of
certain unregistered places of detention, the Committee continues to
deplore that a large number of cases of summary and arbitrary executions,
enforced or involuntary disappearances, torture and arbitrary or unlawful
detention committed by members of the army, including cases concerning
persons previously detained in Tazmamart, have not yet been investigated.
Furthermore, the perpetrators of such acts were neither brought to justice
nor punished. The Committee deplores that measures of clemency adopted
during the period under review were generally not extended to Western
Sahara.
110. The Committee is concerned that guarantees contained in articles 9,
10 and 14 of the Covenant are not complied with. Despite some efforts to
build new prisons, the Committee remains concerned about conditions of
detention, particularly overcrowding of prisons, which frequently lead to
malnutrition, diseases and deaths of detainees. Concern is also expressed
about the long period of detention without charge under article 154 of the
Code of Criminal Procedure, which appears to be incompatible with article 9
of the Covenant. The Committee is also concerned about the obstacles to
the independence and impartiality of the judiciary.
111. The Committee is concerned about the full implementation of the right
to freedom of movement, including in particular the restrictions still
imposed on members of the Oufkir family.
112. The Committee notes with regret the shortcomings in the observance of
article 18 of the Covenant, in particular the restrictions affecting the
Baha'i right to profess and practise their belief and limitations on inter-
religious marriage. Concern is also expressed at the impediment placed
upon the freedom to change one's religion.
113. The Committee expresses concern about the extent of the limitations
on the freedom of expression, assembly and association under the Dahir of
1973 and especially limitations on the right to criticize the Government.
Governmental control of the media as well as the imprisonment of some
journalists for having expressed criticisms give rise to serious concern.
114. The Committee is concerned that the electoral system, under which two
thirds of members of the House of Representatives are elected by direct
universal suffrage and one third by an electoral college, may raise issues
as to the requirements, under article 25 (b) of the Covenant, that
elections be held by "universal and equal suffrage". The wide scope of
executive power in the hands of the King has implications for the effective
independence of the judiciary and the democratic processes of Parliament.
5. Suggestions and recommendations
115. The Committee recommends that the State party consolidate the process
of constitutional revision in order to ensure that all the requirements of
the Covenant are reflected in the Constitution, thereby bringing the
Constitution into true compliance with the Covenant and ensuring that the
limitations imposed on the exercise of rights and freedoms under national
legislation do not go beyond those permitted under the Covenant.
116. The Committee hopes that the Government of Morocco will give serious
consideration to becoming a party to the First Optional Protocol.
117. The Committee further recommends that Morocco study measures to limit
the categories of crimes punishable by the death penalty to the most
serious offences, with a view to its eventual abolition.
118. The Committee emphasizes the need for the Government to prevent and
eliminate discriminatory attitudes and prejudices towards women and to
revise domestic legislation to bring it into conformity with articles 2, 3
and 23 of the Covenant, taking into account the recommendations contained
in the Committee's general comments Nos. 4, 18 and 19. It recalls in that
regard that, although several reservations were made by Morocco in acceding
to the Convention on the Elimination of All Forms of Discrimination against
Women, Morocco remains bound to the fullest extent by the provisions of
articles 2, 3, 23 and 26 of the Covenant.
119. The Committee recommends that the Moroccan authorities ensure that
summary and arbitrary executions, enforced or involuntary disappearances,
torture, ill-treatment and illegal or secret detention do not occur and
that any such cases be investigated in order to bring before the courts
those suspected of having committed or participated in such crimes, to
punish them if found guilty, and to provide compensation to victims. The
Committee expresses the wish that any measures of clemency be granted on a
non-discriminatory basis in conformity with articles 2 and 26 of the
Covenant. It also recommends that measures of administrative detention and
incommunicado detention be restricted to very limited and exceptional
cases, and that the guarantees concerning pre-trial detention provided for
in article 9, paragraph 3, of the Covenant be fully implemented. Further
measures should also be taken to improve detention conditions and,
particularly, to ensure that the United Nations Standard Minimum Rules for
the Treatment of Prisoners are complied with and the relevant regulations
and directives known and accessible to prisoners. Proposed measures to
strengthen the presumption of innocence should be implemented as soon as
possible.
120. The Committee emphasizes the need to take further measures to
guarantee the freedom of religion and to eliminate discrimination on
religious grounds. It suggests in this connection that the State party
take into account the recommendations contained in the general comment on
article 18 of the Covenant.
121. The Committee recommends that restrictions imposed on the rights to
freedom of expression, assembly and association under the Dahir of 1973 be
modified and brought into line with those permitted under the Covenant to
ensure their application in conformity with the Covenant on a non-arbitrary
basis.
122. The Committee recommends that the authorities ensure that the third
periodic report of Morocco and the comments of the Committee are
disseminated as widely as possible in order to encourage the involvement of
all sectors concerned in the improvement of human rights.
D. Libyan Arab Jamahiriya
123. The Committee considered the second periodic report of the Libyan
Arab Jamahiriya (CCPR/C/28/Add.16) at its 1275th, 1276th, 1376th and 1377th
meetings, held on 26 October 1993 and 28 October 1994, and adopted 12/ the
following comments:
1. Introduction
124. The Committee welcomes the opportunity to renew its dialogue with the
State party, as 15 years have elapsed between the consideration of the
Government's initial report and the submission of its second periodic
report. The Committee, however, regrets this considerable delay. It
regrets also that the reporting guidelines have not been met. The report
does not give sufficient information about the restrictions or limitations
imposed on rights or about factors and difficulties affecting the enjoyment
of rights and the implementation of the Covenant in the Libyan Arab
Jamahiriya. In addition, the report lacks information about abuses
affecting human rights in the country which have been acknowledged even by
the head of State; and also about administrative and other measures adopted
to give effect to the rights provided for in the Covenant.
125. The Committee welcomes the additional written information provided by
the Libyan authorities to reply to the questions raised by the members of
the Committee during the first part of the consideration of the report in
October 1993, while regretting that the late submission of that information
did not make it possible to have the document available in all the working
languages of the Committee. The Committee takes note with satisfaction of
the efforts made by the Libyan Government to reply to its questions and to
clarify certain issues, both in writing and orally through the Government's
representatives. Those efforts clearly indicate the willingness of the
Government to continue the dialogue with the Committee.
2. Factors and difficulties affecting the implementation
of the Covenant
126. Among the factors affecting the implementation of the Covenant, the
Committee notes economic difficulties and the existence of extremist
movements. The Committee also notes that the embargo on air travel, imposed
by the Security Council on the Libyan Arab Jamahiriya since April 1992, is
considered by the Libyan Government as a difficulty affecting the
implementation of certain provisions of the Covenant.
3. Positive aspects
127. The Committee notes with satisfaction that the Covenant is part of
the domestic law of the Libyan Arab Jamahiriya and that certain aspects of
the Covenant have been included in the Great Green Charter of Human Rights
of the Jamahiriyan Era (1988), in the Promotion of Freedom Act of 1991 and
in the draft Constitution. It welcomes the fact that the Covenant has been
published in the Official Bulletin and publicized in the media, while
noting that the information provided to the Committee was not sufficient to
clarify the precise application of the Covenant provisions or the practical
steps open to people to enforce rights or to obtain remedies in case of
violation.
128. The Committee also notes with satisfaction the measures taken in the
Libyan Arab Jamahiriya to overcome discriminatory attitudes towards women
and the initiatives introduced in the country to advance women's rights, to
ensure their greater involvement in public life and to improve women's
equality in employment and in marriage.
129. The Committee further welcomes the information in the report about
the release of certain political and other prisoners, the demolition of
certain prisons, the cancellation of the lists of persons banned from
travelling and the proposed abolition of the special courts.
4. Principal subjects of concern
130. The Committee is seriously concerned that although the report
mentions the objective of eliminating the death penalty, a large number of
offences remain punishable by the death penalty in the Libyan Arab
Jamahiriya, including economic crimes and other crimes which appear to go
beyond the limitations of article 6 (2) of the Covenant. The Committee
deplores that there appears to be have been an increase in the number of
executions in the last year.
131. The Committee is seriously concerned at information it has received
from United Nations and other reliable sources concerning summary or
extrajudicial execution and torture perpetrated by the Libyan security
forces. It deplores the introduction of cruel punishments such as flogging
and amputation. The practice of arbitrary arrest and detention, the
detention of persons sentenced after unfair trials and the length of pre-
trial detention are also matters of serious concern. The Committee regrets
the lack of information about certain identified people who are said to be
held in incommunicado detention without trial for lengthy periods and about
persons who oppose the Government and are said to have disappeared.
132. The Committee is also concerned at certain restrictions imposed in
the Libyan Arab Jamahiriya on the freedom of opinion and expression, the
right of assembly and the right to freedom of association, which are not in
conformity with articles 19, 21 and 22 of the Covenant. These restrictions
also unduly limit the rights to participate in the conduct of public
affairs, including the opportunity to criticize and to oppose the
Government.
133. Lack of information makes it difficult for the Committee to assess
the effectiveness in practice of safeguards protecting the rights of
detainees and of those charged with criminal offences. The lack of
independence of the legal profession and doubts about the openness and
fairness of trial procedures remain concerns of the Committee.
134. In regard to women the Committee remains concerned about their lack
of equality in certain areas of law such as inheritance rights and
nationality. It also regrets the lack of specific information concerning
the equality of women.
135. Another area of concern is that of freedom of religion. The severe
punishments for heresy (which are said not to have been used) and the
restrictions on the right to change religion appear to be inconsistent with
article 18 of the Covenant. The lack of provision for conscientious
objection to military service is another concern.
136. A general concern of the Committee is that in regard to many of the
rights under the Covenant the basic law allows for broadly defined
exceptions to these rights and no information has been provided as to the
way in which those exceptions have been incorporated in specific laws or as
to whether their application is in conformity with the Covenant.
5. Suggestions and recommendations
137. The Committee encourages the State party to take the necessary steps
to adopt legislative or other measures to give effect to the rights
recognized in the Covenant, as provided for by article 2, paragraph 2, of
the latter. The Committee emphasizes that these rights represent minimum
standards of universal application. This will require a detailed
examination of specific laws and practices to ensure that they are fully
consistent with the Covenant and do not impose limitations on rights other
than those permitted by the Covenant.
138. Noting the statement in the report that the objective of Jamahiri
society is to abolish the death penalty, the Committee encourages the State
party to move forward with its plans to abolish the death penalty so that
it may accede to the Second Optional Protocol to the Covenant.
139. The Committee calls on the Libyan Arab Jamahiriya to investigate all
allegations of summary or extrajudicial execution, disappearances, torture
and incommunicado detention, including those referred to by the Committee,
and to ensure that those responsible for violations of articles 6, 7 and 9
of the Covenant are prosecuted and that appropriate remedies are provided
to the victims. It should implement effective measures to prevent further
violations of those provisions of the Covenant and to ensure that the
rights of detainees are respected and that the requirements of fair trial
are met.
140. The Committee recommends that the State party review its laws which
impose limitations on freedom of opinion, expression, association and
assembly, to ensure that the restrictions on those freedoms conform to the
limits permitted under articles 19, 21 and 22 of the Covenant.
141. The Committee urges the State party to continue with its programme
to secure full legal and de facto equality for women in all aspects of
society. It should also ensure that its obligations to respect freedom of
religion in accordance with article 18 of the Covenant are met. In this
connection, the Committee draws attention to its general comment on article
18 of the Covenant.
142. The Committee finally recommends that more detailed information about
specific laws and more concrete and factual information about the enjoyment
of rights be provided by the Libyan Arab Jamahiriya in its next periodic
report so as to enable the Committee to clearly understand the progress
made in the implementation of the Covenant in the State party.
143. The Committee urges the State party to discharge, in future, its
reporting obligations under article 40 of the Covenant on a more timely
basis.
E. Argentina
144. The Committee considered the second periodic report of Argentina
(CCPR/C/75/Add.1) at its 1389th to 1391st meetings, held on 21 and 22 March
1995 (see CCPR/C/SR.1389 to 1391), and adopted, 13/ the following final
comments:
1. Introduction
145. The Committee welcomes the second periodic report submitted by the
State party and views with satisfaction the frank and constructive manner
in which the dialogue with the Committee has been conducted. It welcomes
in particular the comprehensive answers provided by the high-level
delegation representing the State party. None the less, the Committee
expresses its regret that the report does not adequately deal with the
factors and difficulties encountered with regard to the actual
implementation of the Covenant. The Committee notes that this shortcoming
was compensated in part by the oral update of the report, as well as the
oral replies provided to the list of issues and other questions raised by
the Committee during the consideration of the State party's report.
2. Factors and difficulties affecting the implementation
of the Covenant
146. The Committee notes that the compromises made by the State party with
respect to its authoritarian past, especially the Law of Due Obedience and
Law of Punto Final and the presidential pardon of top military personnel,
are inconsistent with the requirements of the Covenant.
3. Positive aspects
147. The Committee notes with satisfaction Argentina's continuous progress
in its efforts to democratize and to match its level of human rights
protection with international standards. Although much work remains to be
done in this area, legislative developments since 1983 indicate that
Argentina is committed to the protection of human rights at the highest
levels. In this connection, the Committee welcomes the constitutional
reforms of August 1994, which elevate several international human rights
instruments, including the Covenant and the First Optional Protocol, above
national laws and grants them constitutional status (arts. 31 and 75 (22)
of the Constitution). The Committee further welcomes the creation of the
post of "Defender of the People", which was established in December 1993
under Act 24,284. This post is responsible for the protection of the
rights of the Argentine people against possible infringement by the
national authorities.
148. The Committee welcomes the programmes established for the advancement
of women's equality and particularly welcomes the recognition on the part
of the State party of violence against women as a matter of concern.
149. The Committee welcomes the enactment of Act 24,043 granting
compensation to those who were detained by order of the Executive. It also
welcomes Act 24,411 which grants some benefits to relatives of disappeared
persons.
150. The Committee welcomes the revisions made to the Code of Criminal
Procedure, those which are under way to the Code of Civil Procedure, the
reform of the prison system and the establishment of the Office of the
Government Procurator for the Prison System. It also welcomes the efforts
by the State party to rehabilitate convicted prisoners and construct more
facilities to alleviate prison crowding.
151. The Committee notes with satisfaction the elimination in the
constitutional reforms of 1994 of the qualification that the President of
the Republic must be Catholic.
152. The Committee also notes with satisfaction that the Ministries of the
Interior and of Foreign Affairs are conducting human rights training
programmes for law enforcement officials, personnel engaged in the
administration of justice, and the general public.
4. Principal subjects of concern
153. The Committee reiterates its concern that Act 23,521 (Law of Due
Obedience) and Act 23,492 (Law of Punto Final) deny effective remedy to
victims of human rights violations, in violation of article 2, paragraphs 2
and 3, and article 9, paragraph 5, of the Covenant. The Committee is
concerned that amnesties and pardons have impeded investigations into
allegations of crimes committed by the armed forces and agents of national
security services and have been applied even in cases where there exists
significant evidence of such gross human rights violations as unlawful
disappearances and detention of persons, including children. The Committee
expresses concern that pardons and general amnesties may promote an
atmosphere of impunity for perpetrators of human rights violations
belonging to the security forces. Respect for human rights may be weakened
by impunity for perpetrators of human rights violations.
154. In the latter connection, the Committee regrets that evidence
presented to the Senate against members of the armed forces, proving that
they have engaged in extrajudicial executions, forced disappearances,
torture, or other violations of human rights, may in some cases prevent the
promotion of those accused but does not in itself cause their dismissal.
155. The Committee is concerned about threats to members of the judiciary,
which through intimidation seek to compromise the independence of the
judiciary as set forth in article 14 of the Covenant. The Committee is
further concerned about attacks against journalists and unionists, and the
lack of protection afforded to them, which restricts the enjoyment of the
rights of expression and association provided for in articles 19 and 22 of
the Covenant.
156. While the Committee welcomes Act 24,043 and Act 24,411, it regrets
that they do not provide for compensation for victims of torture. The
Committee expresses concern about cases of excessive use of force, torture
and arbitrary or unlawful detentions committed by members of the police and
the armed forces which have been brought to its attention. It is concerned
that there is no clear mechanism for investigating complaints of police
violence that ensures there will be no reprisals against complainants, that
where provincial administrations are lax in dealing with allegations of
police violence the federal authorities do not ensure compliance with the
Covenant, and that the perpetrators of acts of police violence generally
are not punished and the victims are not compensated. It expresses concern
about the delay in resolving the situation of children of disappeared
persons and is especially disturbed at the failure of the report to provide
any information at all on the real situation as it relates to article 7 of
the Covenant.
157. The Committee is concerned that the Penal Code appears to be
deficient in certain key areas that apparently conflict with the principle
of presumption of innocence (art. 14, para. 2, of the Covenant). It is
concerned about the system of pre-trial detention, which it considers to be
one of the remaining vestiges of authoritarian rule. The Committee also
expresses concern that persons may be detained for a period longer than the
maximum penalty allowed by law and regrets, in this connection, that
article 317 of the Constitution does not order their release. The
Committee further notes that bail is established according to the economic
consequences of the crime committed and not by reference to the probability
that the defendant will not appear in court or otherwise impede due process
of law. Nor is it compatible with the presumption of innocence that the
length of pre-trial detention is not a product of the complexity of the
case but is set by reference to the possible length of sentence. The
Committee is also concerned that accused persons are held in detention in
the same facilities as convicted persons, and that the grounds for judicial
authorization of telephone tapping may be too broadly drawn.
5. Suggestions and recommendations
158. The Committee recommends that the State party, in accordance with
article 2, paragraph 2, of the Covenant, develop mechanisms for
compensating all remaining victims of past violations of human rights by
amending Act 24,043 or enacting appropriate legislation for the victims of
such crimes. The Committee especially recommends that appropriate care be
taken in the use of pardons and general amnesties so as not to foster an
atmosphere of impunity (see the Committee's general comment No. 7 (16)).
The Committee recommends that members of the armed forces or security
forces against whom sufficient evidence of involvement in gross human
rights violations exists be removed from their posts.
159. The Committee urges the State party to continue to investigate the
whereabouts of disappeared persons, to complete urgently investigations
into the allegations of illegal adoption of children of disappeared
persons, and to take appropriate action. It also urges the State party
fully to investigate recent allegations of murders committed by the
military during the period of military rule and to take action on the
findings.
160. The Committee notes that the Office of the Under-Secretary-General of
Human and Social Rights falls under the jurisdiction of the Ministry of the
Interior, which also regulates the police forces. The Committee recommends
that measures to guarantee the independence of the Under-Secretary-General
be taken, particularly with respect to investigations of human rights
violations.
161. The Committee urges that all necessary steps be taken to prevent
cases of excessive use of force, torture, arbitrary detention or
extrajudicial execution by members of the armed forces or the police.
These steps should include preventive, disciplinary and punitive measures,
as well as appropriate training. All violations should be investigated and
the victims compensated.
162. The Committee recommends that special protection be provided to
journalists and members of trade unions under threat or intimidation so as
effectively to protect the rights provided for in articles 19 and 22 of the
Covenant.
163. With respect to the Code of Criminal Procedure, the Committee
recommends that the system of pre-trial detention be carefully reviewed.
Legal safeguards should be established to ensure that, in instances where
pre-trial detention exceeds the maximum applicable penalty for a crime, the
defendant will be released without qualification. The Committee urges the
State party to define clearly the purpose of pre-trial detention and to set
the length of detention accordingly, applying the principle of presumption
of innocence. It recommends the same consideration in the setting of bail.
164. The Committee recommends that the State party include information in
its next report on the procedures established to ensure compliance with the
views and recommendations adopted by the Committee under the First Optional
Protocol, also bearing in mind its obligations under article 2 of the
Covenant.
165. The Committee recommends that Argentina include, in its next periodic
report, information on the measures adopted to follow up on the present
comments and give effect to its suggestions and recommendations. It
further recommends that its comments be widely disseminated and
incorporated into the curriculum of the human rights training programmes
organized for law enforcement officials and administrators of justice.
F. New Zealand
166. The Committee considered the third periodic report of New Zealand
(CCPR/C/64/Add.10 and HRI/CORE/1/Add.33) at its 1393rd to 1395th meetings,
held on 23 and 24 March 1995 (see CCPR/C/SR.1393 to 1395) and adopted 14/
the following final comments:
1. Introduction
167. The Committee expresses its appreciation to the State party for its
excellent report, which contains detailed information on law and practice
relating to the implementation of the Covenant and is in full conformity
with the Committee's guidelines. The Committee appreciates the fact that
the report shows continuous development in the protection of rights and
allows the dialogue with the Committee to take place as an unbroken
continuation of the examination of the initial and second reports. The
Committee is also grateful for the oral responses provided by the competent
delegation and considers that the dialogue with the State party has been
most fruitful and constructive.
168. The Committee commends the State party for the core document
(HRI/CORE/1/Add.33), which has been drawn up in accordance with the
consolidated guidelines for the initial part of reports to be submitted by
States parties under the various international human rights instruments
(HRI/1991/1).
2. Factors and difficulties affecting the implementation
of the Covenant
169. The Committee finds that there are no important difficulties which
may affect the implementation of the Covenant in New Zealand.
3. Positive aspects
170. The Committee notes with appreciation the level of achievement in
respect of human rights in New Zealand. It particularly welcomes the
positive developments that have been realized following recommendations of
the Committee at the end of the consideration of the second periodic report
of New Zealand. Among these developments, the Committee notes the accession
to the First Optional Protocol to the Covenant and the ratification of the
Second Optional Protocol to the Covenant following the adoption of the
Abolition of the Death Penalty Act, 1989.
171. The Committee considers the adoption and entry into force on 25
September 1990 of the Bill of Rights Act, which expressly affirms New
Zealand's commitment to the Covenant and which provides a statutory basis
for the protection of human rights and fundamental freedoms in New Zealand,
as an important step towards the full protection of the rights set forth in
the Covenant. The Committee also welcomes the passage into law of the
Privacy Act 1993, which promotes and protects individual privacy, and of
the Human Rights Act, which entered into force on 1 February 1994. The
latter Act further enhances protection of article 2, paragraph 1, of the
Covenant by extending the grounds on which discrimination is prohibited.
The Act also expands the role of the Human Rights Commission and enables it
to inquire into any matter where it appears that human rights have been
infringed.
172. The Committee welcomes widely based legislation to provide protection
against domestic violence. The Committee is also pleased to note the
provision of appeals procedures for refugees and that applicants for
refugee status are entitled to work pending a decision on their status.
Planned improvements of prison conditions are also welcome.
173. The Committee welcomes the important developments that have occurred
in relation to the interests of the Maori. Among these developments, the
Committee notes the increasing importance of the work of the Treaty of
Waitangi Tribunal in dealing with Maori claims against the Crown. The
Committee also appreciates the fact that New Zealand has dedicated the
first year of the International Decade of the World's Indigenous People to
the Maori language. In this connection, the Committee takes note with
satisfaction of the adoption of a language nest programme whereby Maori
language, customs and values are taught to pre-school children, as well as
other programmes set up to promote Maori language, art and culture.
174. The Committee also welcomes the changes introduced in the electoral
law which may provide greater opportunities for the representation of
minority groups, Maori and women.
175. With regard to the right of self-determination, the Committee
welcomes the development of local institutions of government in Tokelau and
the gradual delegation of powers to Tokelauan authorities, which
corresponds to the desire of the people of Tokelau to be self-reliant to
the greatest extent possible.
4. Principal subjects of concern
176. The Committee regrets that the provisions of the Covenant have not
been fully incorporated into domestic law and given an overriding status in
the legal system. Article 2, paragraph 2, of the Covenant requires States
parties to take such legislative or other measures which may be necessary
to give effect to the rights recognized in the Covenant. In this regard
the Committee regrets that certain rights guaranteed under the Covenant are
not reflected in the Bill of Rights, and that it does not repeal earlier
inconsistent legislation and has no higher status than ordinary
legislation. The Committee notes that it is expressly possible, under the
terms of the Bill of Rights, to enact legislation contrary to its
provisions and regrets that this appears to have been done in a few cases.
177. The Committee expresses concern about the absence of express
provision for remedies for all those whose rights under the Covenant or the
Bill of Rights have been violated.
178. The Committee regrets that the operation of the new prohibited
grounds of discrimination, contained in section 21 of the Human Rights Act
1993, is postponed until the year 2000. It also notes with concern that
the prohibited grounds of discrimination do not include all the grounds in
the Covenant and, in particular, that language is not mentioned as a
prohibited ground of discrimination.
179. The Committee is concerned about provisions in the Criminal Justice
Amendment Act which provide for a sentence of indeterminate detention for
offenders convicted of serious crimes who are likely to repeat such crimes.
The imposition of punishment in respect of possible future offences is
inconsistent with articles 9 and 14 of the Covenant.
180. In relation to the right of freedom of expression, the Committee
expresses its concern over the vagueness of the term "objectionable
publication" and the fact that section 121 of the Films, Videos and
Publications Classification Act makes the "possession of any objectionable
publication" a criminal offence, even if the person concerned has no
knowledge or no reasonable cause to believe that the publication is
considered to be objectionable.
181. The Committee is concerned about the fact that, while the Human
Rights Act contains a provision corresponding to article 20, paragraph 2,
of the Covenant, this provision does not include a prohibition of advocacy
of religious hatred.
182. The Committee regrets that despite improvements, Maori still
experience disadvantages in access to health care, education and
employment. The Committee is also concerned that the proportion of Maori
in Parliament and other high public offices, liberal professions and in the
senior rank of civil service remains low.
183. The Committee also regrets the delay in the submission of reports
under the Covenant by the Tokelau and the Cook Islands governments and
reminds the Government of New Zealand of its obligations under the Covenant
in this regard.
State party
Type of
report
Date due
Years
overdue
Number of
reminders
sentGabon
Initial
Second
Third
20 April 1984
20 April 1989
20 April 1994
11 years
23
12
3Syrian Arab
Republic
Second
Third
18 August 1984
18 August 1989
11 years
23
12Gambia
Second
Third
21 June 1985
21 June 1990
10 years
21
10Lebanon
Second
Third
Fourth
21 March 1986
21 March 1988
21 March 1993
9 years
20
15
3Suriname
Second
Third
2 August 1985
2 August 1990
10 years
20
10Kenya
Second
Third
11 April 1986
11 April 1991
9 years
19
9Mali
Second
Third
11 April 1986
11 April 1991
9 years
19
9Jamaica
Second
Third
1 August 1986
1 August 1991
9 years
15
8Guyana
Second
Third
10 April 1987
10 April 1992
8 years
17
7Democratic
People's
Republic of
Korea
Second
Third
13 December 1987
13 December 1992
8 years
15
5Equatorial
Guinea
Initial
Second
24 December 1988
24 December 1993
7 years
13
3Central
African
Republic
Second
Third
9 April 1989
7 August 1992
6 years
12
6Congo
Second
Third
4 January 1990
4 January 1995
5 years
11
1Trinidad and
Tobago
Third
Fourth
20 March 1990
20 March 1995
5 years
11
1Saint Vincent and
the Grenadines
Second
Third
31 October 1991
8 February 1993
4 years
8
5Panama
Third
Fourth
31 March 1992
6 June 1993
3 years
7
4Madagascar
Third
Fourth
31 July 1992
3 August 1993
3 years
6
4Angola
Special
31 January 1994
1 year
2Rwanda
Special
31 January 1995
-1
5. Suggestions and recommendations
184. The Committee recommends that the State party take appropriate
measures to incorporate all the provisions of the Covenant into domestic
law and to provide remedies for all persons whose rights under the Covenant
have been violated.
185. The Committee recommends that the Bill of Rights be revised in order
to bring it into full consistency with the provisions of the Covenant and
to give the courts power as soon as possible to strike down or decline to
give effect to legislation on the ground of inconsistency with Covenant
rights and freedoms as affirmed in the Bill of Rights.
186. The Committee recommends that the State party revise the provisions
relating to "indeterminate sentence of preventive detention" contained in
the Criminal Justice Amendment Act in order to bring the Act into full
consistency with articles 9 and 14 of the Covenant.
187. The Committee equally recommends amendment of the Films, Videos and
Publications Classification Act by a more specific definition of
"objectionable publication" or by removing criminal liability for
possession without knowledge of or reasonable cause to believe in the
objectionability of material.
188. The Committee expresses the hope that any decisions to be taken about
future limitations to the entitlement of Maori to advance claims before the
Waitangi Tribunal will take full account of Maori interests under the
Treaty of Waitangi.
189. The Committee recommends that the State party include information in
its next report on the procedures established to ensure compliance with the
views and recommendations adopted by the Committee under the First Optional
Protocol, also bearing in mind its obligations under article 2 of the
Covenant.
190. The Committee recommends that the State party review its reservations
relating to articles 10 and 22 of the Covenant with a view to withdrawing
them.
191. The Committee would appreciate receiving in the next periodic report
information on the experience gained in applying the new Electoral Act and
about the Equal Employment Opportunity provisions and their effects on
women's entitlement to equal pay and equal employment opportunity. The
Committee would also like to be informed on further activities of the
National Human Rights Commission and the Treaty of Waitangi Tribunal, and
about progress in prison reform.
G. Paraguay
192. The Committee considered the initial report of Paraguay
(CCPR/C/84/Add.3 and HRI/CORE/1/Add.24) at its 1392nd and 1396th meetings,
on 22 and 24 March 1995 (see CCPR/C/SR.1392 and 1396), and adopted 15/ the
following comments:
1. Introduction
193. The Committee welcomes the initial report submitted by the State
party and views with satisfaction the cooperative attitude of the
delegation in engaging in the dialogue with the Committee. It regrets,
however, that the report, while providing detailed information on
prevailing legislation in Paraguay, does not adequately deal with the
actual state of implementation of the Covenant in practice and the
difficulties encountered during implementation. Although the information
provided orally by the delegation has addressed some of the concerns of the
Committee, the Committee has obtained only a partial picture of the human
rights situation in the country.
194. The Committee commends the State party for the core document
(HRI/CORE/1/Add.24), which has been drawn up in accordance with the
consolidated guidelines for the initial part of reports to be submitted by
States parties under the various international human rights instruments
(HRI/1991/1).
2. Factors and difficulties affecting the implementation
of the Covenant
195. The Committee recognizes that the State party, which is emerging from
a change of government in 1989 that ended a long period of dictatorial
rule, is undergoing a transition towards democracy in which the
infrastructure necessary for the implementation of the Covenant has not
been fully developed. The Committee understands that the many encouraging
legislative initiatives with respect to human rights are being implemented
with difficulty, and that a full assessment of such implementation is not
yet possible.
3. Positive aspects
196. The Committee notes with satisfaction Paraguay's continuous progress
since 1989 in its efforts to democratize and to match its level of human
rights protection with international standards. It particularly welcomes
the signing and ratification of a number of international human rights
instruments, including the Covenant and the First Optional Protocol, and
the legislative and administrative steps taken to advance their
implementation. The Committee also commends the State party for ratifying
the Covenant without entering any reservations.
197. The Committee particularly welcomes the promulgation of the 1992
Constitution, which incorporates provisions for the protection of civil and
political rights and grants constitutional status to a number of
international human rights instruments, including the Covenant, thus
elevating them above national law.
198. The Committee further welcomes the creation of machinery to receive
complaints and manage various aspects of human rights issues, including the
Directorate-General for Human Rights under the Ministry of Justice and
Labour, the Office of the Ombudsman, and the Human Rights Commissions
established in the two Chambers of Congress.
199. The Committee welcomes the amendments made to the Civil Code in 1992
and other relevant legislation that advanced the equal enjoyment of civil
and political rights by women. It also welcomes the establishment of the
Women's Secretariat.
200. The Committee appreciates the declaration made by the delegation
according to which the Government will not enact any amnesty law, and that,
on the contrary, concrete steps have already or are being taken to make
accountable perpetrators of human rights abuses under the past dictatorial
regime. It notes in this regard that such laws, where adopted, are
preventing appropriate investigation and punishment of perpetrators of past
human rights violations, undermine efforts to establish respect for human
rights, further contribute to an atmosphere of impunity among perpetrators
of human rights violations, and constitute impediments to efforts
undertaken to consolidate democracy and promote respect for human rights.
201. The Committee notes with satisfaction the Government's initiative to
make public the military's archives, thus enabling individuals to file
complaints based on the information contained in those archives.
202. The Committee notes with satisfaction the incorporation of human
rights issues into the formal secondary education curriculum.
203. The Committee welcomes Paraguay's efforts to modernize the judicial
process with international assistance. It also notes that a revision of
the Penal Code and the Code of Criminal Procedure is under way.
204. The Committee takes note of the will of the State party to ratify the
Second Optional Protocol to the Covenant on the abolition of the death
penalty.
4. Principal subjects of concern
205. The Committee regrets that no information was provided about the
compensation of victims of human rights violations during the dictatorship.
206. The Committee expresses concern about the continuing occurrence of
torture and ill-treatment of detainees, even after the restoration of
democracy in 1989. In this connection, the Committee is concerned that
there remain officials who are identified and committed to the
authoritarian practices of the former regime.
207. The Committee is concerned that, despite constitutional guarantees
for the rights of women, women continue to receive unequal treatment in
Paraguay, owing in part to outdated laws that clearly contradict the
provisions of the Covenant. These would include laws that are more lenient
in instances of infanticide committed to protect the honour of a woman than
in ordinary cases of homicide and laws that make distinctions in the
punishment accorded to persons who rape or abduct women depending on the
marital status of the victim. It further notes that labour laws do not
adequately protect the rights of women. It notes that domestic work, which
is a principal occupation among women, is excluded from minimum wage laws.
208. The Committee expresses its concern about the high level of deaths
among expectant mothers referred to in the report. In this regard, it
regrets that the State party could not provide information about the effect
of the enforcement of abortion laws on this high level of deaths.
209. The Committee is concerned that national laws in conflict with the
Constitution remain on the books. In addition, some constitutional
provisions, such as the right to compensation for violation of rights (art.
39), still require implementing laws.
210. The Committee notes with concern the practice of not separating
accused from convicted persons in prisons, which violates article 10,
paragraph 2 (a), of the Covenant. The Committee also notes with concern
that there are not sufficient measures to limit pre-trial detention, which
makes such detention a common practice rather than an exceptional measure.
In the view of the Committee, the conditions in the law do not provide
sufficient justification for pre-trial detention in the absence of a
reasonable possibility of escape from justice or danger to the community.
211. The Committee expresses concern about the lack of information
regarding the independence of the judiciary, principally as to the security
of tenure.
212. The Committee is concerned that the predominant role of the Catholic
Church in Paraguay appears to lead to certain de facto discrimination
against other religions.
213. The Committee is concerned that poverty and lack of education,
particularly among indigenous people, adversely affect many people in their
ability to enjoy civil and political rights.
214. The Committee notes that the restriction on voting for students of
military schools seems to be an unreasonable restriction on article 25 of
the Covenant on the right to participate in public life.
5. Suggestions and recommendations
215. Regarding the application of the Covenant, the Committee requests
that it be informed in future periodic reports of the State party of any
instances that may arise where the Covenant was directly invoked in the
courts, as well as the results of any such proceedings.
216. The Committee commends the State party, in accordance with article 2,
paragraph 2, of the Covenant, for its efforts to bring to justice
perpetrators of past human rights abuses. It urges the State party to
continue to investigate allegations of human rights violations, past and
present, for which purpose all archives of the past regime should be
carefully explored. It further urges the State party to act on the
findings of its investigations, to bring to justice the perpetrators and to
provide proper compensation to the victims, particularly with respect to
continuing occurrences of torture and ill-treatment by the police and
security forces. The Committee recommends that an independent and credible
mechanism be instituted for dealing with complaints of police violence and
that the existence of this mechanism be publicized.
217. The Committee urges the State party to comply with article 10,
paragraph 2 (a), of the Covenant by separating in prison accused persons
from convicted prisoners. The Committee further recommends that the State
party review its laws and practices concerning pre-trial detention to
ensure that such detention is not regarded as the general rule and that,
where it is imposed, its period is subject to strict limits, in conformity
with article 4 of the Covenant.
218. The Committee recommends that all national legislation on women be
reviewed with a view to modernizing the outdated legal standards currently
in force to bring them into line with the relevant provisions of the
Covenant. The Committee recommends in particular that the State party
review its laws on criminal offences committed against women and all labour
laws that discriminate against women and take the measures necessary to
overcome traditional attitudes concerning the role of women in society. It
further recommends that the State party encourage the political
participation of women in public, particularly in political life, which
remains low despite the legal advances that have reduced restrictions in
this area.
219. The Committee requests the State party to provide information in its
next report about the incidence of illegal abortion, the relationship
between illegal abortions and the high incidence of maternal mortality, and
its implementation of article 61 of the Constitution.
220. The Committee recommends that the State party undertake a thorough
review of its national legislation to ensure conformity with the standards
set by both the Constitution and the Covenant. It recommends in this
connection that the Covenant and the specific recommendations made in the
present comments be taken into account in the revision of the Penal Code
currently under way.
221. The Committee recommends that the State party include in its next
report comprehensive information on the issues raised during the
consideration of the report, particularly on the effectiveness of the laws
under review or in existence, the evolving roles of the institutions
established for the protection of human rights, and the system of
coordination of the various institutions.
222. The Committee recommends that the State party include information in
its next report on the procedures established to ensure compliance with the
views and recommendations adopted by the Committee under the First Optional
Protocol, also bearing in mind its obligations under article 2 of the
Covenant.
223. The Committee recommends that the Covenant, the Optional Protocols
and the Committee's comments be widely disseminated among the Paraguayan
public and that the scope of human rights education be extended to members
of the police and security forces, the legal profession and other persons
involved in the administration of justice, with a view to making it a part
of their regular training.
H. Haiti
224. In the light of past and continuing events in Haiti affecting the
human rights guaranteed by the International Covenant on Civil and
Political Rights, and in accordance with article 40, paragraph 1 (b), of
the Covenant, the Committee requested the Government of Haiti, on 27
October 1994, to submit a special report, not later than 31 January 1995
and if necessary in summary form, describing in particular, the
implementation of articles 6, 7, 9, 10 and 14 of the Covenant during the
current period, for consideration by the Committee at its fifty-third
session. In response to that request, the Government of Haiti submitted a
report on 27 February 1995 (CCPR/C/105), which was considered by the
Committee at its 1397th and 1398th meetings, on 27 March 1995 (see
CCPR/C/SR.1397 and 1398), which adopted 16/ the following comments:
1. Introduction
225. The Committee welcomes the willingness of the Government of the State
party to cooperate and to enter into a constructive dialogue with the
Committee on the application of the Covenant in Haiti, as evidenced by the
submission of the special report and the sending of a high-level delegation
to present the report. The Committee notes that, while providing some
information about constitutional and legal measures giving effect to
articles 6, 7, 9, 10 and 14, the report lacked information on the practice
concerning human rights and on the difficulties affecting the application
of the Covenant in the country. The Committee, mindful of the difficulties
facing all branches of government in Haiti since the restoration of the
legitimate Government, thanks the delegation for endeavouring to reply to
the questions raised in the course of the dialogue and thus, to a certain
extent, make up for the report's shortcomings.
2. Factors and difficulties affecting the implementation
of the Covenant
226. The Committee notes that Haiti is only now emerging from a long and
devastating military dictatorial past during which grave human rights
violations occurred, including summary executions, torture and other
inhuman or degrading treatment and arbitrary arrests and detentions. The
country has only recently initiated a process of recovery and has just
embarked on a course of transition to democracy. The Committee further
notes that, despite efforts undertaken by the Government, political and
social attitudes still prevalent in the country are not conducive to the
promotion and protection of human rights. Violence and disorder continue
to disrupt society and many weapons remain in the hands of members of
former paramilitary groups and the public in general. The lack of a
functioning judicial system, and deeply rooted social and economic
problems, affect the application of the Covenant.
3. Positive aspects
227. The Committee welcomes the restoration of the legitimate Government
of Haiti and the considerable efforts made by the present Government to
ensure respect for human rights. In this connection the establishment by
presidential decree of a National Commission on Truth and Justice with the
task of carrying out investigations into human rights violations and
ensuring justice for the victims of such violations is particularly
appreciated. The Committee also notes the creation of a civilian police
force separated from the armed forces as an important step. The Committee
appreciates the fact that programmes for the training of judges and police
officers are being initiated.
228. The Committee notes with satisfaction the adoption of a number of
laws directly affecting the establishment and development of institutions
and policies for the protection of human rights, such as the recent Act
declaring all paramilitary groups illegal, the Territorial Communities Act,
which eliminates the former autocratic system of section chiefs and
provides for local authorities elected by the people, and the Electoral
Act. The Committee also welcomes the beginning of the process which will
lead to the holding of parliamentary elections in June 1995 and
presidential elections in December 1995.
4. Principal subjects of concern
229. Given the general conditions prevailing at the present time in Haiti,
the Committee has not detailed all its concerns relating to inconsistencies
between provisions of Haitian legislation, including the Constitution and
the Covenant.
230. The Committee expresses its concern about the effects of the Amnesty
Act, agreed upon during the process which led to the return of the elected
Government of Haiti. It is concerned that, despite the limitation of its
scope to political crimes committed in connection with the coup d'etat or
during the past regime, the Amnesty Act might impede investigations into
allegations of human rights violations, such as summary and extrajudicial
executions, disappearances, torture and arbitrary arrests, rape and sexual
assault, committed by the armed forces and agents of national security
services. In this connection, the Committee wishes to point out that an
amnesty in wide terms may promote an atmosphere of impunity for
perpetrators of human rights violations and undermine efforts to re-
establish respect for human rights in Haiti and to prevent a recurrence of
the massive human rights violations experienced in the past.
231. The Committee emphasizes the importance of investigation of human
rights violations, determination of individual responsibility and fair
compensation for the victims, and regrets that the Commission on Truth and
Justice has not yet initiated its work.
232. The Committee is concerned that failure to screen and exclude human
rights violators from service in the military, the police force and the
judiciary will seriously weaken the transition to security and democracy.
The Committee is also concerned that human rights violations by members of
the armed forces, agents of security services, and members of former
paramilitary groups still occur. The Committee notes with particular
concern the lack of full and effective control by civilian authorities over
the military. The Committee is concerned that the composition, command and
number of the armed forces is not clearly defined.
233. The Committee expresses its concern at the numerous problems
affecting the proper functioning of the justice system, including long
periods of pre-trial detention and overcrowding of prisons. It wishes to
point out in this regard that, unless a serious effort is undertaken to
reform the judiciary and re-establish a proper functioning of the judicial
system, efforts to strengthen the rule of law and to promote respect for
human rights will be seriously undermined.
234. The Committee is concerned about allegations of forced labour of
minors in violation of article 8 of the Covenant.
5. Suggestions and recommendations
235. In view of the fact that the Amnesty Act was adopted before the
reinstallation of the legitimate Government, the Committee urges the State
party to apply that Act in conformity with the Covenant and to exclude from
its scope the perpetrators of past human rights violations.
236. The Committee emphasizes the obligation of the State party under
article 2, paragraph 3, of the Covenant to ensure that victims of past
human rights violations have an effective remedy. It strongly recommends
that the Commission on Truth and Justice initiate its work as soon as
possible and that other mechanisms be set up to investigate human rights
violations by members of the police, the armed forces and other security
services and the judiciary to ensure that persons closely associated with
human rights abuses do not serve in those offices.
237. In order to guarantee the safety of the population, the Committee
recommends that a clear policy be implemented to disarm members of former
paramilitary groups and that effective measures be taken to reduce the
number of weapons in the community.
238. The Committee recommends that a major reform of the judiciary be
undertaken with a view to establishing an independent and impartial
judicial system which will safeguard human rights and enforce the rule of
law.
239. The Committee strongly recommends that the State party confirm the
ratification of the Optional Protocols to the Covenant by depositing the
necessary instruments of ratification or accession with the Secretary-
General of the United Nations. Acceptance of the First Optional Protocol
would affirm the commitment of the Government with respect to inquiries
into allegations of human rights abuses and help to protect the human
rights of individuals in the difficult period the country is facing.
240. The Committee urges that respect for human rights be recognized as an
essential element of the process of national reconciliation and
reconstruction. To that end, the Committee recommends that all provisions
of the Covenant be fully incorporated into the national legal system; that
the administration and Parliament, as a confidence-building measure, set up
special institutions, open to individuals, to assist in the daily
implementation of human rights; that comprehensive human rights training be
provided to judges, the police and the military; and that human rights
education be provided in schools at all levels.
241. The Committee urges the State party to submit information on measures
taken to implement these suggestions and recommendations together with the
submission of the initial report, which was due on 6 July 1992, and for
whose submission the Committee sets the date of 1 April 1996.
I. Yemen
242. The Committee considered the second periodic report of Yemen
(CCPR/C/82/Add.1) at its 1372nd and 1373rd meetings, on 26 October 1994,
and at its 1403rd and 1404th meetings, on 30 March 1995, and subsequently
adopted 17/ the following comments:
1. Introduction
243. The Committee welcomes the second periodic report submitted by the
State party and welcomes the delegation's willingness to resume its
dialogue with the Committee. The Committee regrets, however, that although
the report provides information on general legislative norms in Yemen, it
fails to deal with the actual state of implementation of the Covenant in
practice and the difficulties encountered in the course of implementation.
The Committee appreciated the presence of a competent delegation which
provided helpful information to the Committee in addressing some of its
questions. Nevertheless, the Committee has obtained only a partial picture
of the human rights situation in the country.
244. The Committee welcomes in this connection the intention expressed by
the delegation to send additional information as requested by the
Committee, particularly information on the difficulties encountered in the
implementation of the Covenant, statistics relating to specific articles
and the texts of the Civil Code, Code of Criminal Procedure, the amendments
to the Constitution, and other relevant laws and regulations.
2. Factors and difficulties affecting the implementation
of the Covenant
245. The Committee notes that the civil war has left much of the
infrastructure destroyed and created severe economic difficulties, which
have served to restrict the resources allocated to the protection of human
rights. The Committee also notes that national reconstruction and
reconciliation remains handicapped by internal disorder.
246. The Committee notes the existence in the State party of customs and
traditions, particularly in the area of equality between men and women,
which may tend to impede the proper observance of international standards
of human rights.
3. Positive aspects
247. The Committee welcomes the succession of Yemen to the Covenant, which
was previously acceded to by the Democratic Republic of Yemen in 1986.
248. The Committee welcomes the Government's efforts to raise awareness of
human rights issues by disseminating the texts of human rights treaties,
including the Covenant, and by holding seminars in this field. It further
welcomes the Government's assertion that newspapers are free to publish the
reports submitted by the Government and other information released by human
rights groups and international organizations.
249. The Committee welcomes the delegation's indication of the
Government's willingness to investigate specific cases of human rights
violations brought to its attention. In this regard, the Committee notes
the assurances of the delegation that the courts are receiving cases of
human rights violations which took place during the civil war.
4. Principal subjects of concern
250. The Committee is concerned that some aspects of the legal provisions
in the State party do not conform entirely with the Covenant.
251. The Committee calls attention to the contradictions between the
Covenant and the Constitution, which affords a lower level of human rights
protection than does the Covenant. The Committee expresses concern that
victims of human rights violations, despite the direct applicability of the
Covenant, may be denied effective remedy if the courts adhere to the
standards set forth in the Constitution.
252. The Committee notes with concern the general amnesty granted to
civilian and military personnel for human rights violations they may have
committed against civilians during the civil war. The Committee notes in
this regard that some amnesty laws may prevent appropriate investigation
and punishment of perpetrators of past human rights violations, undermine
efforts to establish respect of human rights, contribute to an atmosphere
of impunity among perpetrators of human rights violations, and constitute
impediments to efforts undertaken to consolidate democracy and promote
respect for human rights.
253. The Committee notes with concern that the role and the competences of
the political security forces have not been clarified.
254. The Committee expresses its deep concern at allegations of
arbitrary deprivation of life, acts of torture or other cruel, inhuman or
degrading treatment, arbitrary arrest and detention, abusive treatment of
persons deprived of their liberty, and violations of the rights to a fair
trial. It is deeply concerned that those violations were not followed by
inquiries or investigations, that the perpetrators of such acts were not
punished, and that the victims were not compensated. Ill-treatment of
prisoners and overcrowding of prisons continue to be of concern.
255. The Committee notes with concern reports of female genital
mutilation, which appears to be a common practice in some parts of the
country. It also notes with concern that the provisions of the Personal
Status Act No. 20 of 1992, particularly articles 40 and 41, establish
unequal obligations of wives and husbands where wives are relegated to an
inferior position. The Committee is concerned that the requirements of
this Act, particularly that wives must obey their husbands' orders and may
not leave their homes except in limited situations, contradict articles 3
and 23 of the Covenant. The Committee further regrets that the laws of
Yemen contain no specific provisions for dealing with domestic violence.
256. The Committee is concerned about the lack of information concerning
the death penalty in Yemen and, bearing in mind that article 6 of the
Covenant limits the circumstances under which the death penalty may be
imposed, regrets that it is unable to assess whether the State party is in
conformity with article 6 due to the lack of information on the specific
crimes that may result in the imposition of the death penalty and on the
number of cases in which it was imposed. The Committee deplores that,
according to information before it, executions of persons below the age of
18 have taken place that would be a clear violation of article 6, paragraph
5, of the Covenant. The Committee requests that the State party provide
information on the cases mentioned during the dialogue. In this regard,
the Committee regrets that the right to life has not been incorporated in
the new Constitution. The Committee is also deeply concerned about the
maintenance of corporal punishments like amputation of limbs and whipping,
which is in violation of article 7 of the Covenant.
257. The Committee notes with deep concern the widespread employment of
minors, especially in rural areas.
5. Suggestions and recommendations
258. The Committee recommends that a thorough review be undertaken of the
legal framework for the protection of human rights in the State party to
ensure full conformity with the Covenant. The Committee takes note of the
indication by the delegation of the lack of technical expertise in the
legal field in the State party and its appeal for assistance in this area.
Accordingly, the Committee recommends that the State party avail itself of
the technical cooperation services of the Centre for Human Rights and
address through the Centre's programmes the question of the status of the
Covenant in relation to the Constitution.
259. Regarding the application of the Covenant, the Committee requests
that it be informed in future periodic reports of the State party of any
instances that may arise where the Covenant was directly invoked in the
courts, as well as the results of any such proceedings.
260. The Committee recommends that the State party endeavour to bring to
justice perpetrators of human rights abuses, in accordance with article 2
(2) of the Covenant. It urges the State party to continue to investigate
allegations of human rights violations, past and present, to act on the
findings of its investigations, to bring to justice the perpetrators and to
compensate the victims of such acts. To this end, the Committee recommends
that an independent mechanism be instituted for receiving complaints of
human rights violations and that this mechanism be given investigative
authority to pursue such complaints. The Committee suggests that the
Government pursue in this manner not only individual complaints but also
violations reported by national and international non-governmental
organizations.
261. The Committee recommends that the State party review its laws and
make appropriate amendments to ensure full legal and de facto equality for
women in all aspects of society, particularly in the laws governing the
status of women, women's rights and obligations in marriage. The Committee
further recommends that the Government conduct a study on the practice of
female genital mutilation within its territory and formulate specific plans
to eradicate this practice.
262. The Committee recommends that the Government review its policy on the
death penalty with a view to its eventual abolishment. Recalling that
article 6 of the Covenant limits the circumstances under which the death
penalty may be imposed, it recommends that the Government include in its
next report a list of all of the crimes that, when tried, may result in the
imposition of the death penalty. If the imposition of the death penalty in
respect of some of these crimes is found to be inconsistent with article 6,
the Committee recommends that the relevant laws be appropriately amended.
The Committee recommends that the Government take the initiative for the
total abolishment of corporal punishment.
263. The Committee recommends that the Government conduct a study on the
phenomenon of working children, especially children in rural areas, and
include its findings in its next periodic report to the Committee.
264. The Committee recommends that more detailed information about
specific laws and more concrete and factual information about the enjoyment
of rights be provided by Yemen in its next periodic report so as to enable
the Committee to clearly understand the progress made in the implementation
of the Covenant in the State party.
265. The Committee recommends that appropriate mechanisms be established
to revise the relevant legal codes, to provide human rights training for
personnel involved in the administration of justice, to draft the State
party's reports to various human rights treaty bodies, and to collect and
analyse data on human rights issues. In this regard, the Committee
recommends that the Government draw on the assistance available through the
Centre for Human Rights technical cooperation services.
J. United States of America 18/
266. The Committee considered the initial report of the United States of
America (CCPR/C/81/Add.4 and HRI/CORE/1/Add.49) at its 1401st, 1402nd,
1405th and 1406th meetings, held on 29 and 31 March 1995 (CCPR/C/SR.1401-
1402 and SR.1405-1406), and adopted 19/ the following comments:
1. Introduction
267. The Committee expresses its appreciation at the high quality of the
report submitted by the State party, which was detailed, informative and
drafted in accordance with the guidelines. The Committee regrets, however,
that, while containing comprehensive information on the laws and
regulations giving effect to the rights provided in the Covenant at the
federal level, the report contained few references to the implementation of
Covenant rights at the state level.
268. The Committee appreciates the participation of a high-level
delegation which included a substantial number of experts in various fields
relating to the protection of human rights in the country. The detailed
information provided by the delegation in its introduction of the report,
as well as the comprehensive and well-structured replies provided to
questions raised by members, contributed to making the dialogue extremely
constructive and fruitful.
269. The Committee notes with appreciation that the Government gave
publicity to its report, thus enabling non-governmental organizations to
become aware of its contents and to make known their particular concerns.
In addition, a number of representatives of these organizations were
present during the Committee's consideration of the report.
2. Factors and difficulties affecting the implementation
of the Covenant
270. The Committee notes that, despite the existence of laws outlawing
discrimination, there persist within society discriminatory attitudes and
prejudices based on race or gender. Furthermore, the effects of past
discriminations in society have not yet been fully eradicated. This makes
it difficult to ensure the full enjoyment of the rights provided for under
the Covenant to everyone within the State party's jurisdiction. The rise
in crime and violence also affects the enjoyment of the rights provided for
in the Covenant.
271. The Committee also notes that under the federal system prevailing in
the United States, the states of the union retain extensive jurisdiction
over the application of criminal and family law in particular. This
factor, coupled with the absence of formal mechanisms between the federal
and state levels to ensure appropriate implementation of the Covenant
rights by legislative or other measures may lead to a somewhat
unsatisfactory application of the Covenant throughout the country.
3. Positive aspects
272. The Committee recognizes the existence of effective protection of
human rights available to individuals under the Bill of Rights and federal
laws. The Committee notes with satisfaction the rich tradition and the
constitutional framework for the protection of human rights and freedoms in
the United States.
273. The Committee notes with satisfaction that the United States has
recently ratified or acceded to some international human rights
instruments, including the Covenant, the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment and the
Convention on the Elimination of All Forms of Racial Discrimination. These
ratifications reflect a welcome trend towards acceptance of international
scrutiny, supervision and control of the application of universal human
rights norms at the domestic level.
274. The Committee welcomes the efforts of the Federal Government to take
measures at the legislative, judicial and administrative levels to ensure
that the states of the union provide human rights and fundamental freedoms.
It further appreciates the expression of readiness by the Government to
take such necessary further measures to ensure that the states of the union
implement the rights guaranteed by the Covenant.
275. The Committee notes with satisfaction that in the first statement of
understanding made at the time of ratification the principle of non-
discrimination is construed by the Government as not permitting
distinctions which would not be legitimate under the Covenant.
276. The Committee takes note of the position expressed by the delegation
that, notwithstanding the non-self-executing declaration of the United
States, American courts are not prevented from seeking guidance from the
Covenant in interpreting American law.
277. The Committee further notes with satisfaction the assurances of the
Government that its declaration regarding the federal system is not a
reservation and is not intended to affect the international obligations of
the United States.
4. Principal subjects of concern
278. The Committee has taken note of the concerns addressed by the
delegation in writing to its Chairman about the Committee's General Comment
No. 24 (52) on issues relating to reservations made upon ratification or
accession to the Covenant or the Optional Protocols thereto
(CCPR/C/21/Rev.1/Add.6). Attention is drawn to the observations made by
the Chairman of the Committee at the 1406th meeting, on 31 March 1995
(CCPR/C/SR.1406).
279. The Committee regrets the extent of the State party's reservations,
declarations and understandings to the Covenant. It believes that, taken
together, they intended to ensure that the United States has accepted only
what is already the law of the United States. The Committee is also
particularly concerned at reservations to article 6, paragraph 5, and
article 7 of the Covenant, which it believes to be incompatible with the
object and purpose of the Covenant.
280. The Committee regrets that members of the judiciary at the federal,
state and local levels have not been fully made aware of the obligations
undertaken by the State party under the Covenant, and that judicial
continuing education programmes do not include knowledge of the Covenant
and discussion on its implementation. Whether or not courts of the United
States eventually declare the Covenant to be non-self-executing,
information about its provisions should be provided to the judiciary.
281. The Committee is concerned about the excessive number of offences
punishable by the death penalty in a number of states, the number of death
sentences handed down by courts, and the long stay on death row which, in
specific instances, may amount to a breach of article 7 of the Covenant.
It deplores the recent expansion of the death penalty under federal law and
the re-establishment of the death penalty in certain states. It also
deplores provisions in the legislation of a number of states which allow
the death penalty to be pronounced for crimes committed by persons under 18
and the actual instances where such sentences have been pronounced and
executed. It also regrets that, in some cases, there appears to have been
lack of protection from the death penalty of those mentally retarded.
282. The Committee is concerned at the reportedly large number of persons
killed, wounded or subjected to ill-treatment by members of the police
force in the purported discharge of their duties. It also regrets the easy
availability of firearms to the public and the fact that federal and state
legislation is not stringent enough in that connection to secure the
protection and enjoyment of the right to life and security of the
individual guaranteed under the Covenant.
283. The Committee is concerned that excludable aliens are dealt with by
lower standards of due process than other aliens and, in particular, that
those who cannot be deported or extradited may be held in detention
indefinitely. The situation of a number of asylum-seekers and refugees is
also a matter of concern to the Committee.
284. The Committee does not share the view expressed by the Government
that the Covenant lacks extraterritorial reach under all circumstances.
Such a view is contrary to the consistent interpretation of the Committee
on this subject, that, in special circumstances, persons may fall under the
subject-matter jurisdiction of a State party even when outside that State's
territory.
285. The Committee is concerned about conditions of detention of persons
deprived of liberty in federal or state prisons, particularly with regard
to planned measures which would lead to further overcrowding of detention
centres. The Committee is also concerned at the practice which allows male
prison officers access in women's detention centres and which has led to
serious allegations of sexual abuse of women and the invasion of their
privacy. The Committee is particularly concerned at the conditions of
detention in certain maximum security prisons, which are incompatible with
article 10 of the Covenant and run counter to the United Nations Standard
Minimum Rules for the Treatment of Prisoners and the Code of Conduct for
Law Enforcement Officials.
286. The Committee is concerned that, in some states, non-therapeutic
research may be conducted on minors or mentally-ill patients on the basis
of surrogate consent in violation of the provisions in article 7 of the
Covenant.
287. The Committee is concerned at the serious infringement of private
life in some states which classify as a criminal offence sexual relations
between adult consenting partners of the same sex carried out in private,
and the consequences thereof for their enjoyment of other human rights
without discrimination.
288. The Committee is concerned about the impact which the current system
of election of judges may, in a few states, have on the implementation of
the rights provided under article 14 of the Covenant and welcomes the
efforts of a number of states in the adoption of a merit-selection system.
It is also concerned about the fact that in many rural areas justice is
administered by unqualified and untrained persons. The Committee also
notes the lack of effective measures to ensure that indigent defendants in
serious criminal proceedings, particularly in state courts, are represented
by competent counsel.
289. The Committee welcomes the significant efforts made in ensuring to
everyone the right to vote but is concerned at the considerable financial
costs that adversely affect the right of persons to be candidates at
elections.
290. The Committee is concerned that aboriginal rights of Native
Americans may, in law, be extinguished by Congress. It is also concerned
by the high incidence of poverty, sickness and alcoholism among Native
Americans, notwithstanding some improvements achieved with the Self-
Governance Demonstration Project.
291. The Committee notes with concern that information provided in the
core document reveals that disproportionate numbers of Native Americans,
African Americans, Hispanics and single parent families headed by women
live below the poverty line and that one in four children under six live in
poverty. It is concerned that poverty and lack of access to education
adversely affect persons belonging to these groups in their ability to
enjoy rights under the Covenant on the basis of equality.
5. Suggestions and recommendations
292. The Committee recommends that the State party review its
reservations, declarations and understandings with a view to withdrawing
them, in particular reservations to article 6, paragraph 5, and article 7
of the Covenant.
293. The Committee hopes that the Government of the United States will
consider becoming a party to the First Optional Protocol to the Covenant.
294. The Committee recommends that appropriate inter-federal and state
institutional mechanisms be established for the review of existing as well
as proposed legislation and other measures with a view to achieving full
implementation of the Covenant, including its reporting obligations.
295. The Committee emphasizes the need for the Government to increase its
efforts to prevent and eliminate persisting discriminatory attitudes and
prejudices against persons belonging to minority groups and women
including, where appropriate, through the adoption of affirmative action.
State legislation which is not yet in full compliance with the non-
discrimination articles of the Covenant should be brought systematically
into line with them as soon as possible.
296. The Committee urges the State party to revise federal and state
legislation with a view to restricting the number of offences carrying the
death penalty strictly to the most serious crimes, in conformity with
article 6 of the Covenant and with a view eventually to abolishing it. It
exhorts the authorities to take appropriate steps to ensure that persons
are not sentenced to death for crimes committed before they were 18. The
Committee considers that the determination of methods of execution must
take into account the prohibition against causing avoidable pain and
recommends the State party to take all necessary steps to ensure respect of
article 7 of the Covenant.
297. The Committee urges the State party to take all necessary measures to
prevent any excessive use of force by the police; that rules and
regulations governing the use of weapons by the police and security forces
be in full conformity with the United Nations Basic Principles on the Use
of Force and Firearms by Law Enforcement Officials; that any violations of
these rules be systematically investigated in order to bring those found to
have committed such acts before the courts; and that those found guilty be
punished and the victims be compensated. Regulations limiting the sale of
firearms to the public should be extended and strengthened.
298. The Committee recommends that appropriate measures be adopted as
soon as possible to ensure to excludable aliens the same guarantees of due
process as are available to other aliens and guidelines be established
which would place limits on the length of detention of persons who cannot
be deported.
299. The Committee expresses the hope that measures be adopted to bring
conditions of detention of persons deprived of liberty in federal or state
prisons in full conformity with article 10 of the Covenant. Legislative,
prosecutorial and judicial policy in sentencing must take into account that
overcrowding in prisons causes violation of article 10 of the Covenant.
Existing legislation that allows male officers access to women's quarters
should be amended so as to provide at least that they will always be
accompanied by women officers. Conditions of detention in prisons, in
particular in maximum security prisons, should be scrutinized with a view
to guaranteeing that persons deprived of their liberty be treated with
humanity and with respect for the inherent dignity of the human person, and
implementing the United Nations Standard Minimum Rules for the Treatment of
Prisoners and the Code of Conduct for Law Enforcement Officials therein.
Appropriate measures should be adopted to provide speedy and effective
remedies to compensate persons who have been subjected to unlawful or
arbitrary arrests as provided in article 9, paragraph 5, of the Covenant.
300. The Committee recommends that further measures be taken to amend any
federal or state regulation which allow, in some states, non-therapeutic
research to be conducted on minors or mentally-ill patients on the basis of
surrogate consent.
301. The Committee recommends that the current system in a few states in
the appointment of judges through elections be reconsidered with a view to
its replacement by a system of appointment on merit by an independent body.
302. The Committee recommends that steps be taken to ensure that
previously recognized aboriginal Native American rights cannot be
extinguished. The Committee urges the Government to ensure that there is a
full judicial review in respect of determinations of federal recognition of
tribes. The Self-Governance Demonstration Project and similar programmes
should be strengthened to continue to fight the high incidence of poverty,
sickness and alcoholism among Native Americans.
303. The Committee expresses the hope that, when determining whether
currently permitted affirmative action programmes for minorities and women
should be withdrawn, the obligation to provide Covenant's rights in fact as
well as in law be borne in mind.
304. The Committee recommends that measures be taken to ensure greater
public awareness of the provisions of the Covenant and that the legal
profession as well as judicial and administrative authorities at federal
and state levels be made familiar with these provisions in order to ensure
their effective application.
K. Ukraine
305. The Committee considered the fourth periodic report of Ukraine
(CCPR/C/95/Add.2) at its 1418th to 1420th meetings (see CCPR/C/SR.1418 to
1420), held on 11 and 12 July 1995 and adopted 20/ the following final
comments:
1. Introduction
306. The Committee welcomes the fourth periodic report of Ukraine and
views with satisfaction the cooperative attitude of the delegation in
engaging in a frank and constructive dialogue with the Committee. The
Committee appreciates the fact that the report did not conceal difficulties
encountered by the State party in implementing the Covenant. However,
those difficulties were described in very broad terms and without
describing the steps envisaged by the State party to overcome them.
Furthermore, the report did not provide sufficient information on the
implementation of the Covenant in practice. The additional information
provided in the oral replies given by the delegation to the questions posed
and comments raised by the Committee members have enabled the Committee to
gain a clearer picture of the overall situation in the country, especially
with regard to Ukraine's approach to compliance with the obligations
undertaken under the Covenant.
2. Factors and difficulties affecting the
application of the Covenant
307. The Committee notes that it is necessary to overcome vestiges of the
totalitarian past and that much remains to be done to strengthen democratic
institutions and respect for the rule of law. In this connection, the
Committee notes that the Government's efforts in restructuring the legal
system and endeavours to better implement the Covenant have been hampered
by lacunae in the national legislation as well as by a continuing resort to
a large number of outdated - albeit still in force - laws of the former
regime, many of them incompatible with corresponding provisions of the
Covenant. The Committee also notes that extremist and discriminatory
attitudes are emerging in the country that are not conducive to the full
promotion and protection of human rights. In addition, this period of
transition to a market-oriented economy has been marked by severe economic
and social difficulties.
3. Positive aspects
308. The Committee expresses its satisfaction as to the fundamental and
positive changes which have recently taken place in Ukraine. These changes
will create a better political, constitutional and legal framework for the
full implementation of the rights enshrined in the Covenant.
309. The Committee welcomes the fact that, through the adoption of the Act
on the Effect of International Agreements on Ukrainian Territory in
December 1991 and of the Act on Ukraine's International Treaties in
December 1993, international treaties ratified by Ukraine are now
automatically part of the domestic legal order. The recognition by Ukraine
of the competence of the Committee to receive and consider communications
from individuals under the Optional Protocol to the Covenant and its
willingness to adopt appropriate procedures to implement the Committee's
views without delay is of particular importance for the effective
implementation of the Covenant.
310. The Committee welcomes the many other recent legal developments in
Ukraine and the present progress in the transition towards democracy and
pluralism. In general, the Committee is encouraged by the adoption of the
Act on Provisional Detention in June 1993 and of the Decree of the
Ukrainian Cabinet on Programmes for Bringing up to World Standards the
Conditions of Detention in January 1994, which take into account the United
Nations Standard Minimum Rules for the Treatment of Prisoners. The
Committee also welcomes the adoption of the Acts on the Ukrainian Public
Prosecutor's Office in November 1991, the Legal Profession in December
1992, the Status of Judges in December 1992, and the Self-Governance of the
Judiciary in February 1994, aimed at strengthening the independent status
of the judicial system and improving judicial guarantees for individuals.
311. The Committee also notes the adoption by the Government of Ukraine of
the 1991 Act on Freedom of Conscience and Religious Organizations, of the
1993 Acts on Information and on Printed Media, of the 1993 Act on
Television and Radio Broadcasting and of the Act on Public Association of
Citizens. The adoption by Ukraine of the Act on Environmental Protection
in 1991, along with special provisions in the Penal Code establishing
liability for the preparation, processing or selling of radiation-
contaminated foodstuffs or other products and their accession to the
nuclear non-proliferation treaties are also a welcome development.
312. The Committee further notes the adoption by the Supreme Council of
Ukraine of the 1991 Declaration of Rights of the Nationalities of Ukraine,
which was given legal force through the Act on National Minorities in 1992.
313. The Committee takes note with appreciation of the confirmation by the
delegation that victims of past human rights violations are entitled to
compensation. It further welcomes the efforts initiated by the Government
of Ukraine to encourage and facilitate the return of minorities displaced
by the Soviet regime and especially the resettlement in Crimea of the
Crimean Tartars.
4. Principal subjects of concern
314. The Committee is concerned by the continuing applicability in Ukraine
of a Constitution which does not provide guarantees and recourse procedures
in full conformity with the Covenant. Furthermore, it has not been made
sufficiently clear during the consideration of the report whether, under
the law and in the practice of the courts and administrative authorities,
provisions of the Covenant are systematically applied in precedence to a
conflicting provision to domestic law.
315. The Committee expresses its concern about actual cases of
discrimination against women and, in general, the persistence - in a
climate of economic and social difficulties - of gender disparities in
practice with regard to such issues as equal pay, the equitable
participation of women in the conduct of public affairs and in the
economic, social and cultural life of the country. The State party has not
yet adopted effective measures to overcome attitudes based on traditional
roles which hinder equality between men and women. Additionally, the
Committee regrets the high level of family violence within the country and
recalls that the Covenant requires States parties to implement measures of
protection.
316. The Committee expresses its deep concern about the current trend in
Ukraine to impose and carry out an increasing number of death sentences,
and about the inhumane circumstances in which those sentences are carried
out. It recalls that under article 6 of the Covenant a sentence of death
may be imposed only for the most serious crimes.
317. The Committee is concerned that the guarantees contained in articles
7, 9, 10 and 14 of the Covenant are not fully complied with. In
particular, it is concerned that torture and ill-treatment of persons
committed by members of the police and other security forces continue to be
reported, particularly to the Public Prosecutor's Office. In this regard,
it is concerned that the right to personal security may be restricted
without any involvement of a judicial body. The Procurator's functions
during the investigation process as well as throughout the trial do not
ensure the minimum requirements contained in articles 9 and 14 of the
Covenant. Furthermore, cases of administrative detention, in particular of
vagrants, denial of access of detainees to legal counsel and long periods
of pre-trial detention are matters of great concern.
318. The Committee is also concerned at the conditions in places of
detention, whether in prisons or curative labour establishments, which do
not comply with article 10 of the Covenant or other international
standards. Prison overcrowding is a further matter of concern to the
Committee.
319. The Committee expresses concern that the independence of the
judiciary has not yet been ensured. In this connection, it regrets that
the Constitutional Court, which is to be established under the Act on the
Constitutional Court of June 1992, has not yet been set up. The Committee
is further concerned by the very long delays in the administration of
justice, which are not in conformity with the requirements of both articles
9 and 14 of the Covenant, and notes in that regard that the judicial system
in Ukraine cannot be efficient until there is a sufficient number of well-
trained and qualified judges and lawyers. The absence of special
provisions for juvenile offenders is also a matter of concern.
320. The Committee is further disturbed by continuing obstacles to freedom
of movement in Ukraine and in particular by the legal provisions which
allow for the rejection of passport applications from holders of State
secrets. The requirement of exit visas and the persistence of the internal
passport are unacceptable and incompatible with article 12 of the Covenant.
321. The Committee expresses its concern that, although Ukraine adopted a
domestic refugee law in December 1993, currently no concrete measures have
been taken to implement this law, or to establish a refugee determination
procedure for asylum-seekers in Ukraine.
322. The Committee expresses concern arising from the information in the
report, corroborated by cases brought to its attention, that there are
incidents and situations which may be conducive to acts of discrimination
on ethnic, gender, religious, linguistic or property grounds. The
Committee regrets that appropriate steps have not yet been taken by the
authorities to resolve those difficulties and, in particular, to prevent
and suppress the advocacy of national, racial or religious hatred in
conformity with the requirements of article 20 of the Covenant. This
situation is particularly alarming in that it may undermine harmonious
relations with minorities. In that regard, the Committee regrets that the
definition of minorities under the Declaration of the Rights of the
Nationalities of Ukraine does not conform fully with article 27 of the
Covenant, which grants protection to persons belonging to all ethnic,
religious or linguistic minorities, and not only to those belonging to
"national" minorities. Lastly, the Committee notes with regret that
measures have not yet been taken to grant automatically Ukrainian
citizenship to Crimean Tartars who have returned to Crimea.
5. Suggestions and recommendations
323. The Committee recommends that the constitutional reform presently
under way be accelerated in order to ensure the adoption and implementation
of the new Constitution and that the text of the Covenant be taken into
account in that regard. In drafting new legislation affecting human
rights, attention should systematically be paid to the establishment of
effective guarantees for the safeguard of civil and political rights. In
that regard, the authorities may avail themselves of the advisory services
and technical cooperation programmes developed by the United Nations Centre
for Human Rights.
324. The Committee urges the Government to set up an independent body,
such as a human rights ombudsman, to monitor the implementation of the law
in conformity with the obligations under the various human rights
instruments to which Ukraine is a party, and to receive complaints by
individuals.
325. The Committee recommends that the State party review and include
information in its next periodic report on the procedures established to
ensure compliance with the views and recommendations adopted by the
Committee under the first Optional Protocol to the Covenant, also bearing
in mind the obligations under article 2 of the Covenant.
326. With respect to the rights of women, the Committee believes that
affirmative measures should be taken to strengthen their participation in
the political, economic, and social life of the country, as well as
positive measures to ensure effective protection against domestic violence.
327. The Committee recommends that Ukraine study measures to limit the
categories of crimes punishable by death to the most serious offences, in
conformity with article 6 of the Covenant, with a view to its prospective
abolition, and to make when appropriate more extensive use of the rights of
commutation or pardon.
328. The Committee emphasizes the need for greater control over the
police. There should be intensive training and educational programmes in
the field of human rights aimed at law-enforcement officials. Steps should
be taken to strengthen recourse procedures for victims of police abuse and
detained persons. Adequate follow-up to reports of such abuse should be
ensured by thorough investigations and appropriate penal and administrative
sanctions. Prison conditions should be brought into compliance with
article 10 of the Covenant and with the United Nations Standard Minimum
Rules for the Treatment of Prisoners.
329. The Committee recommends that, in order to ensure the independence
and impartiality of the judiciary, as well as the confidence of the
individuals in the proper administration of justice, further steps be taken
to speed up and complete the reform process. Measures for juveniles should
be appropriate to their needs and status. Furthermore, vigorous efforts
should also be made to encourage a culture of independence among the
judiciary itself and to establish a well-trained and independent legal
profession. A first priority should, for instance, be to adopt a law
containing all the safeguards set forth in the Covenant.
330. Existing provisions limiting or restricting the exercise of the right
to freedom of movement, including the internal passport requirements, as
well as the legal provisions relating to holders of State secrets, should
be reviewed to bring the legislation fully in conformity with article 12 of
the Covenant.
331. The Committee recommends that Ukraine undertake to implement its
domestic refugee law of December 1993 and, in this connection, that it seek
assistance and advice from relevant international organizations, including
the Office of the United Nations High Commissioner for Refugees.
332. The Committee expresses the wish that vigorous measures be taken to
give full implementation to article 20 of the Covenant.
333. The Committee welcomes the publication of the report in Ukraine and
the Government's intention to disseminate the record of the dialogue. It
emphasizes that the text of the Covenant and the Optional Protocol be
widely publicized in the languages spoken in Ukraine, so that the public be
made fully aware of the rights enshrined in the provisions of these
instruments. It also recommends that education in human rights and
democracy be included in school and university curricula and that its
comments be widely disseminated and incorporated into the curricula of all
human rights training programmes organized for law-enforcement officials
and administration officers.
L. Latvia
334. The Committee considered the initial report of Latvia
(CCPR/C/81/Add.1/Rev.1) at its 1421st, 1422nd and 1425th meetings (see
CCPR/C/SR.1421, 1422 and 1425), held on 12 to 14 July 1995, and adopted 21/
the following final comments:
1. Introduction
335. The Committee welcomes the initial report (CCPR/C/81/Add.1/Rev.1) of
Latvia and expresses its appreciation to the State party for the open and
constructive dialogue with the Committee. However, it notes that, while
providing detailed information on prevailing legislation in Latvia, the
report does not contain enough information on the way in which the Covenant
is implemented in practice. To some extent, the information provided by the
delegation and the responses to the questions raised by members of the
Committee largely covered these deficiencies and provided the Committee
with a better insight into the human rights situation in Latvia.
2. Factors and difficulties affecting the application
of the Covenant
336. The Committee notes that it is necessary to overcome vestiges of the
totalitarian past and that much remains to be done to strengthen democratic
institutions and respect for the rule of law. The Government's efforts in
restructuring the legal system and endeavouring to better implement the
Covenant have been hampered by lacunae in some existing legislation as well
as by continuing resort to a number of outdated laws which are incompatible
with corresponding provisions of the Covenant.
337. In consequence of large-scale emigration from and immigration to
Latvia in the past, there coexisted in the country, at the time of the
renewal of independence, a significantly large proportion of persons
belonging to various national minorities. The policy of the Government to
establish precise criteria with regard to naturalization and citizenship
has raised a number of difficulties which are affecting the application of
the Covenant.
3. Positive aspects
338. The Committee expresses its satisfaction as to the fundamental and
positive changes which have taken place since Latvia re-established itself
as a sovereign State in 1990. These changes will create a better
political, constitutional and legal framework for the full implementation
of the rights enshrined in the Covenant.
339. Latvia's accession, soon after its renewal of independence on 4 May
1990, to various human rights international instruments, such as the
Covenant, confirms the genuine commitment of the State party to guarantee
the basic human rights of all individuals. The recognition by Latvia of
the competence of the Committee to receive and consider communications from
individuals under the first Optional Protocol to the Covenant is of
particular importance for the effective implementation of the Covenant.
340. The Committee notes with satisfaction that there has been
significant progress in securing civil and political rights in Latvia since
the proclamation of the renewal of independence. Particular satisfaction
is expressed at the adoption in January 1995 of the National Programme for
the Protection and Promotion of Human Rights in Latvia and at the
establishment of a Human Rights Council in July 1995.
341. The Committee also notes with satisfaction the elimination of capital
punishment as a potential penalty for several types of economic crimes as
well as the planned revision of the Criminal Code which should lead to the
abolition of the death penalty.
4. Principal subjects of concern
342. The Committee regrets that the Covenant has not been given an
overriding status in the Latvian legal order and that the Constitutional
Law on the Rights and Obligations of a Citizen and a Person of 10 December
1991 has no constitutional status. Furthermore, the Constitution of 15
February 1922, which was restored in 1993, has not yet been fully amended
so as to incorporate all the rights enshrined in the various articles of
the Covenant. At the same time, the Committee notes with concern the
absence of a body, such as a Constitutional Court, charged with
determining, inter alia, the conformity of domestic laws with the
provisions of the Covenant and other relevant human rights instruments.
343. The Committee also notes that it has not been made sufficiently
clear, during the consideration of the report, how the human rights of
resident non-citizens are guaranteed, in accordance with article 2,
paragraph 1, of the Covenant.
344. The Committee notes with concern that the Latvian legal system has
not yet provided for effective mechanisms of investigation in respect of
violations of human rights, as required under article 2, paragraph 3, of
the Covenant. In the view of the Committee, the need to make effective
remedies available to any person whose rights are violated is particularly
urgent in respect of the obligations embodied in articles 7, 9 and 10 of
the Covenant.
345. The Committee further regrets that the respective functions and
mandates of the State Minister on Human Rights and of the newly created
Human Rights Council have not been clearly described during the discussion
and believes that there may be certain overlapping in their activities as
well as a lack of effective coordination.
346. While expressing satisfaction at the impending changes in the
Criminal Code which are expected to abolish the death penalty in due
course, the Committee is concerned that the death penalty can be imposed
for crimes which cannot be qualified as the most serious crimes under
article 6 of the Covenant.
347. The Committee is concerned that the rights contained in articles 7
and 10 of the Covenant are not fully respected. The Committee is, in
particular, concerned at allegations of mistreatment of detainees and at
the conditions in places of detention, which do not comply with article 10
of the Covenant or other international standards. The apparent non-
separation of accused persons from convicted persons and juveniles from
adults is a further matter of concern. The Committee is especially
concerned that there do not seem to be clear mechanisms for dealing with
complaints of violence by law enforcement authorities and of conditions in
detention centres and prisons. The Committee also notes that the judicial
system in Latvia will not be able to exercise its functions properly until
there is a sufficient number of well-trained and qualified judges and
lawyers.
348. With regard to articles 9 and 14 of the Covenant, the Committee is
particularly concerned that the new Code of Criminal Procedure has not been
enacted. The role of the Prosecutor under the Law on Prosecutor's
Supervision, enacted on 19 May 1994, runs counter to the principle of
equality of arms in criminal trials and does not protect in a proper way
the right to personal security.
349. The Committee is concerned that, as a result of the absence of
domestic legislation and procedure governing the treatment of asylum-
seekers trying to enter or who have entered Latvia, the Government has
resorted to an excessive use of detention and removal of asylum-seekers
from the country.
350. While welcoming the attempts at bringing the naturalization and
citizenship legislation in conformity with regional human rights
instruments, the Committee remains concerned that a significant segment of
the population will not enjoy Latvian citizenship owing to the stringent
criteria established by the law and the policy deliberately chosen to
consider each case on an individual basis and pursuant to a timetable
calculated to delay the naturalization process for many years. In the view
of the Committee, the legislation still contains criteria of exclusion
which give room to discrimination under articles 2 and 26 of the Covenant
and raises difficulties under articles 13 and 17 of the Covenant.
5. Suggestions and recommendations
351. The Committee recommends that a review of the existing legal framework
for the protection of human rights in the State party be undertaken in
order to clarify the status of international human rights treaties,
particularly the Covenant, in the domestic legal hierarchy. In this
regard, the Committee emphasizes the importance of giving the Covenant an
overriding status in the national legal order. Regarding the actual
application of the Covenant, the Committee requests the State party to
indicate in its second periodic report any possible instances where the
Covenant was directly invoked before the courts, as well as about the
results of any such proceedings.
352. The Committee recommends that the State party review and include
information in its next periodic report on the procedures established to
ensure compliance with the views and recommendations adopted by the
Committee under the first Optional Protocol to the Covenant, also bearing
in mind the obligations under article 2 of the Covenant.
353. The Committee urges that the State party take appropriate measures to
provide effective and efficient remedies for all persons whose rights under
the Covenant have been violated. In that regard, the Committee requests
the State party to ensure due coordination between existing and planned
institutions aiming at protecting human rights. The Committee also
recommends that measures be taken to ensure greater public awareness of the
remedies available to individuals, including the provisions of the first
Optional Protocol.
354. The Committee would welcome information on the situation of women, to
be provided in the second periodic report, and recommends the State party
to take appropriate steps to educate the population of Latvia on the
equality of men and women.
355. While strongly endorsing the steps envisaged towards the abolition of
the death penalty in Latvia, the Committee recommends that a firm policy be
adopted aiming at commuting, during the interim period, all death sentences
to life imprisonment.
356. The Committee recommends that the State party take any necessary
measures to ensure that the conditions of detention of persons deprived of
their liberty comply fully with article 10 of the Covenant, as well as the
United Nations Standard Minimum Rules for the Treatment of Prisoners.
357. The Committee emphasizes the need for greater control over the
police, particularly in the context of the recent authoritarian past from
which Latvian society is emerging. Intensive training and education
programmes in the field of human rights for law enforcement officials as
well as officials of the correctional service are recommended. Steps
should be taken to institute effective recourse procedures for victims of
police abuse and detained persons. Adequate publicity should be given to
pronounced administrative and penal sanctions.
358. The Committee recommends that, in order to ensure the independence
and impartiality of the judiciary, as well as the confidence of the
individuals in the proper administration of justice, further steps be taken
to speed up and complete the reform process. Further vigorous efforts
should also be made to encourage a culture of independence among the
judiciary itself.
359. The Committee recommends that the Government of Latvia take steps to
adopt domestic legislation governing the treatment of refugees and asylum-
seekers in compliance with the Covenant and international refugee law. In
this regard, the Committee further recommends that the Government of Latvia
seek assistance from relevant international organizations, including the
Office of the United Nations High Commissioner for Refugees (UNHCR). The
Committee also recommends that the Latvian Government consider acceding to
the 1951 Convention relating to the Status of Refugees and its 1967
Protocol.
360. The Committee recommends that the State party take all necessary
measures to guarantee that the citizenship and naturalization legislation
facilitate the full integration of all permanent residents of Latvia, with
a view to ensuring compliance with the rights guaranteed under the
Covenant, in particular with articles 2 and 26.
361. The Committee recommends that the Covenant, the Optional Protocol and
the Committee's comments be widely disseminated among the Latvian public.
Additionally, the Committee recommends that human rights education be
provided in school at all levels and comprehensive human rights training be
provided to judges, lawyers, law enforcement officers and other persons
involved in the administration of justice. In this regard, the Committee
suggests that the State party avail itself of the technical cooperation
services of the United Nations Centre for Human Rights, and seek the
cooperation of the relevant non-governmental organizations.
M. Russian Federation
362. The Committee considered the fourth periodic report of the Russian
Federation (CCPR/C/84/Add.2) at its 1426th to 1429th meetings (see
CCPR/C/SR.1426 to 1429), held on 17 and 18 July 1995, and adopted 22/ the
following comments:
1. Introduction
363. The Committee welcomes the fourth periodic report of the Russian
Federation and views with satisfaction its dialogue with the delegation,
particularly the delegation's willingness to engage in a frank discussion
with the Committee and the detail in which its written and additional oral
questions were addressed. The Committee regrets that, while the report was
mainly drafted on the basis of legal measures enacted or under
consideration, insufficient information was provided regarding the actual
enjoyment of some of the rights guaranteed in the Covenant. The Committee
appreciates that this situation was partly remedied through the oral
responses to the Committee's questions, which allowed it to obtain a
clearer view of the overall situation in the State party.
2. Factors and difficulties affecting the application
of the Covenant
364. The Committee notes that it is necessary to overcome vestiges of the
totalitarian past and that much remains to be done to strengthen democratic
institutions and respect for the rule of law. This has created a legal
vacuum in certain areas, in which the principles set forth in the
Constitution are not implemented by corresponding laws and regulations.
The Committee notes that the enactment of new laws is being undertaken by
the Government but their consideration by two Chambers of the Federal
Assembly prior to promulgation is generally a slow process.
365. The Committee is aware of economic difficulties facing the State
party, which inevitably affect the application of the Covenant.
3. Positive aspects
366. The Committee expresses its satisfaction as to the fundamental and
positive changes which have recently taken place in the Russian Federation.
These changes will create a better political, constitutional and legal
framework for the full implementation of the rights enshrined in the
Covenant.
367. The Committee welcomes the new Constitution of 1993, which gives
legal recognition to the concept of human rights and freedoms of the
individual. The Committee considers that chapter 2 of the Constitution,
which enumerates the rights and liberties of the individuals, conforms to
many of the basic rights provided under the Covenant.
368. The Committee welcomes the provisions of article 15, paragraph 4, of
the Constitution, which, together with the limiting provision of article
125, paragraph 6, establishes that international treaties, including the
Covenant, are part of the Russian legal system and superior to domestic
law. It further welcomes the inclusion of article 17, paragraph 1, which
stipulates that the basic rights and liberties, in conformity with the
commonly recognized principles and norms of international law, shall be
recognized and guaranteed by the State party under the Constitution, the
recognition in the Constitution of the right to apply to international
bodies when domestic remedies are exhausted and the written and oral
affirmations that the provisions of the Covenant are directly invocable in
domestic courts of law.
369. In this context, the Committee also welcomes the fact that the
Russian Federation is party to the Optional Protocol to the Covenant.
370. The Committee welcomes the progress made towards democracy since the
consideration of the third periodic report. It also welcomes the
promulgation of a number of legal instruments aimed at guaranteeing human
rights for all persons in the territory of the State party, including the
new Civil Code and Criminal Code. It further welcomes the draft law aimed
at a comprehensive reform of the judicial process and the Code of Criminal
Procedures currently in the drafting stage and notes with appreciation that
the right of all persons whose rights are violated to have access to
judicial recourse has been legally established.
371. The Committee welcomes the establishment of several bodies charged
with the protection of human rights, including the Office of the Human
Rights Commissioner under the State Duma and the Presidential Human Rights
Commission, as well as the newly established Commission for Human Rights of
the Commonwealth of Independent States.
372. The Committee welcomes the Government's assurances that a systematic
review of persons placed in psychiatric facilities under previous regimes
will be carried out and trusts that all those found to be placed in such
facilities without due cause will be released.
373. The Committee welcomes the special legislation enacted to provide
compensation to victims of the events of October 1993.
4. Principal subjects of concern
374. The Committee is concerned that the profound legislative changes
taking place within the State party have not been matched by the actual
protection of human rights at the implementation level. Specifically, it
regrets that many of the rights established under the Constitution have not
been put into effect through the enactment of implementing laws and
regulations and that the relationship of the various bodies entrusted with
the protection of human rights has not been clearly defined. In this
connection, it regrets that the responsibilities of the Human Rights
Commissioner, although understood to be broad in nature and to include the
power to investigate complaints of human rights violations, to bring cases
to the Constitutional Court whenever Constitutional rights are infringed
and to take legislative initiatives, are not specified in the Constitution
and have not yet been legally defined in subsequent legislation. In
addition, the responsibilities of the Procurator's Office with respect to
the protection of human rights would appear to coincide in many respects
with those of the Human Rights Commissioner. In relation to these bodies,
it is not clear why the Presidential Human Rights Commission operating
directly under the President, who is personally responsible as guarantor of
human rights under the Constitution, is empowered only with recommendatory
functions, or what mechanisms are in place to ensure that presidential
decrees conform with the Covenant.
375. The Committee is concerned that, despite guarantees of equality in
the Constitution and in labour legislation, the de facto situation of women
is one of continuing inequality. The failure to ensure equal remuneration
for work of comparable worth and the persistence of attitudes and practices
which impose child-rearing and other domestic responsibilities entirely on
women contribute to this inequality and to discrimination in the workplace.
The Committee is especially alarmed at the extent of rape and domestic
violence and the inadequate efforts made by the authorities to deal with
this problem. It is also alarmed at the high incidence of unemployment
among women.
376. Although the Committee notes that the draft Criminal Code before the
Federal Assembly would reduce the number of crimes that may result in the
imposition of the death penalty, it is still concerned at the wide range of
crimes still punishable by such penalty. Moreover, the Committee notes
that while the number of persons actually executed has declined
dramatically since 1993, sentencing continues, which has resulted in a
large and growing number of persons on death row.
377. The Committee expresses deep concern over the practice of pre-trial
detention and over the fact that temporary detention has been extended from
10 to 30 days in certain cases. It is concerned by the extent of the
Procurator's competence to decide on matters relating to arrest or
detention which cannot be challenged by the person concerned before a
court. Under article 9, paragraph 3, of the Covenant, the detention of
persons before they are granted a trial should not be the norm and, when it
occurs, persons so detained should be granted a trial within a reasonable
time or be released. The Committee is concerned that pre-trial detention
is practised, not only in cases of serious criminal charges but more so on
misdemeanour charges and frequently for unreasonably long periods of time,
and that no effective mechanism exists for monitoring such detention.
378. The Committee further expresses grave concern over the lack of a
monitoring mechanism for penitentiary facilities to ensure humane treatment
of detainees and prisoners. In this regard, it deplores the cruel,
inhumane and degrading conditions that persist in many detention centres
and penitentiary facilities and condemns the use of food deprivation as
punishment.
379. The Committee expresses concern about the lack of independence and
efficiency of the judiciary and the long delays in the administration of
justice, which do not conform with the requirements of both articles 9 and
14 of the Covenant, and notes in that regard that the judicial system in
the Russian Federation cannot be effective to ensure protection of rights
until there is a sufficient number of well-trained and qualified judges and
lawyers.
380. The Committee is concerned that actions may continue which violate
the right to protection from unlawful or arbitrary interference with
privacy, family, home or correspondence. It is concerned that the
mechanisms to intrude into private telephone communication continue to
exist, without a clear legislation setting out the conditions for
legitimate interferences with privacy and providing for safeguards against
unlawful interferences.
381. Although federal law has provided for the abolition of the propiska
(residence permit) system, the Committee is concerned that at regional and
local levels, the system is still applied in practice, thus violating not
only the Constitution, but also article 12 of the Covenant. It expresses
further concern that the most important legal restriction on the right to
leave the country is still cast in terms of a State secret. This does not
correspond with the requirements of article 12, paragraph 3, of the
Covenant and the Committee deplores, in that regard, the resistance to date
in bringing the legislation in conformity with the Covenant. The Committee
further regrets that all individuals not having yet performed their
national service are excluded in principle from enjoying their right to
leave the country.
382. The Committee is concerned that conscientious objection to military
service, although recognized under article 59 of the Constitution, is not a
practical option under Russian law and takes note in this regard of the
draft law on alternative service before the Federal Assembly. It expresses
its concern at the possibility that such alternative service may be made
punitive, either in nature or in length of service. The Committee is also
seriously concerned at the allegations of widespread cruelty and ill-
treatment of young conscript-soldiers.
383. The Committee is concerned at reports of growing number of homeless
and abandoned children in need of measures of protection.
384. The Committee expresses its concern that the limited definition of
the term "national minorities", which serves as the basis for much of the
legislation in the State party concerning the rights of persons belonging
to minorities, does not give protection to all persons referred to in
article 27 of the Covenant. It is also concerned at reports of harassment
shown towards persons belonging to minority groups from the Caucasus
region, in the form of searches, beatings, arrests and deportation.
385. The Committee deeply regrets the lack of familiarity of law
enforcement and prison officers with the guarantees provided in the new
Constitution and with international human rights standards under the
Covenant.
386. The Committee expresses concern over the jurisdiction of the military
courts in civil cases. Persons detained by members of the armed forces are
said to be able to raise complaints before the Military Procurator's Office
in charge of the detention centre where they were held. This would appear
to create a situation in which the army is entrusted with the judgement and
sentencing of the crimes committed by its own members. The Committee is
concerned that such a situation may cause miscarriages of justice,
particularly in the light of the Government's acknowledgement that the
army, even at the highest levels, is not familiar with international human
rights law, including the Covenant.
387. The Committee expresses deep concern at the high number of refugees
following the events that occurred in North Ossetia in 1992 and at the
difficult conditions faced by these displaced persons in the neighbouring
Republic of Ingushetia, as well as at the numerous incidents that occurred
during their attempts to return to their homeland.
388. With reference to the specific situation in Chechnya, the Committee
expresses concern that article 4 of the Covenant, which specifies the
provisions that are non-derogable even in times of public emergency, has
not been complied with. It maintains that this article is applicable to
the situation in Chechnya, where the use of weapons by combatants has led
to the loss of life and deprivation of freedom of large numbers of persons,
regardless of the fact that a state of emergency has not been formally
declared.
389. The Committee deplores the excessive and disproportionate use of
force by Russian forces in Chechnya, indicating grave violation of human
rights. It further deplores the fact that no one has been made responsible
for the inhumane treatment of prisoners and other detained persons, that
investigations on charges of human rights violations by Russian forces,
including killing of civilians, have so far been inadequate, that civilian
installations such as schools and hospitals were destroyed by government
forces, and that a large number of civilians have been killed or displaced
as a consequence of the destruction of their homes.
390. The Committee expresses deep concern about the large number of
reported cases of torture, ill treatment of the person and arbitrary
detention in "reception centres" or "filtration camps", which were
originally established to determine the identities of captured combatants
but are reported to accommodate large numbers of civilians as well. It
deplores the maltreatment of detainees in these centres and is concerned
that the International Committee of the Red Cross (ICRC) has not been given
access to all such camps.
391. The Committee is concerned that, as a result of the violent excesses
of recent developments in Chechnya, the level of confidence of the people
in the reconstruction efforts by the local authorities and the attempts to
bring relief to human rights violations is extremely low.
5. Suggestions and recommendations
392. The Committee recommends that the relationship between the various
bodies charged with the protection of human rights be clearly defined and
coordinated and that the existence and functions of these bodies be widely
publicized. The Committee further recommends that a mechanism be clearly
established to ensure conformity of all presidential decrees and laws with
the provisions of the Covenant and other international human rights
instruments to which the State is party.
393. The Committee recommends that the State party review and include
information in its next periodic report on the procedures established to
ensure compliance with the views and recommendations adopted by the
Committee under the first Optional Protocol to the Covenant, also bearing
in mind the obligations under article 2 of the Covenant.
394. The Committee recommends that greater efforts be made to collect
information on the situation of women and the effects on them of the
structural political, economic and social changes taking place. On this
basis, the Government should initiate or strengthen programmes aimed at
providing assistance to women in difficult circumstances, including
unemployed women, victims of domestic violence and victims of rape, with a
view to ensuring their equality before the law and the equal protection of
the law. In particular, it should consider allocating responsibility for
that purpose to an appropriate high-level governmental body.
395. The Committee urges the Government to reduce substantially the number
of crimes for which the death penalty may be imposed, in accordance with
article 6 of the Covenant, with a view to its eventual elimination.
396. The Committee recommends that the treatment of persons deprived of
their liberty, whether in detention centres or in penitentiary facilities,
be effectively monitored. In this connection, it strongly recommends the
adoption of new rules and regulations that comply fully with articles 7, 9,
10 and 14 of the Covenant and the United Nations Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment and
that the texts of all prison rules and orders and international norms on
prison administration be made public and accessible. The Committee further
recommends that priority be given to the establishment of the Visitors'
Committee for the correctional institutions of the Federation and that
legislation on the judicial review of arrest and detention be urgently
passed in compliance with article 9, paragraph 3, of the Covenant, and
article 22, paragraph 2, of the Constitution. It urges that the Government
should refrain from placing first-time, non-violent and petty offenders in
detention centres, and give consideration to various other practical
measures designed to reduce the overcrowding of pre-trial detention
centres, particularly the greater use of release pending trial. It also
calls for an immediate end to the practice of food deprivation as
punishment in prisons and encourages the Government's initiatives to
institute alternative forms of punishment.
397. The Committee stresses the need for a prompt enactment of the
legislation on the judiciary and urges that this legislation fully
incorporate the essential guarantees for the independence of the judiciary,
including the United Nations Basic Principles on the Independence of the
Judiciary. The Committee recommends that efforts be made to make the
Covenant and other international human rights norms as widely known as
possible, particularly among the authorities invested with the
administration of justice, law enforcement and prison officers but also
among the general public. It recommends that the State party avail itself
of the technical cooperation services of the United Nations Centre for
Human Rights.
398. The Committee recommends that the abolition of the propiska system
be carried out all over the country without exceptions. Further steps
should be taken to bring the law concerning the right to leave the country
in full line with the State party's obligations under article 12,
paragraphs 2 and 3, of the Covenant and, in particular, to remove
restrictions to knowledge of State secrets. The Committee urges that all
regional and local authorities be made to comply with the Federal policy of
abolishing the propiska system (i.e. the system of "internal passes" or
"passports").
399. The Committee urges that legislation be passed on the protection of
privacy, as well as that strict and positive action be taken to prevent
violations of the right to protection from unlawful or arbitrary
interference with privacy, family, home or correspondence.
400. The Committee urges that stringent measures be adopted to ensure an
immediate end to mistreatment and abuse of army recruits by their officers
and fellow soldiers. It further recommends that every effort be made to
ensure that reasonable alternatives to military service be made available
that are not punitive in nature or in length of service. It urges that all
charges brought against conscientious objectors to military service be
dropped.
401. The Committee recommends that national legislation be amended to
reflect the broad concept of minorities contained in articles 2, 26 and 27
of the Covenant, which prohibit discrimination on the basis of race,
colour, sex, opinion or other status, and further protect the rights not
only of "national minorities" but also of ethnic, religious and linguistic
minorities.
402. The Committee urges that appropriate and effective measures be
adopted to enable all persons displaced as a consequence of the events that
occurred in North Ossetia in 1992 to return to their homeland.
403. The Committee firmly urges that the serious violations of human
rights which occurred and continue to occur in Chechnya be vigorously and
immediately investigated, the perpetrators punished and the victims
compensated. It urges the Government to ensure that all persons held in
detention are held for legitimate cause, for a reasonable period of time
and under humane conditions, in conformity with the State party's
obligations under the Covenant.
404. The Committee, noting with appreciation the Government's assurances
that ICRC will be granted access to all detention camps, urges that such
access be granted immediately in the region of Chechnya and neighbouring
republics, to allow ICRC not only to monitor the treatment of detainees but
also to provide supplies and services.
405. The Committee recommends that, in order to address the lack of
confidence in the local government authorities, the Government consider
inviting a greater international presence, including from the Centre for
Human Rights, to assist the Special Multilateral Commission established to
investigate recent events in Chechnya in improving the effectiveness of
human rights investigations and ensuring fairness of trials until such time
as the judiciary is functioning properly. Such a measure would make clear
that the Government is committed to ending human rights violations both by
submitting itself to international scrutiny and by drawing on international
expertise toward this end.
406. The Committee urges that adequate measures be adopted to alleviate
the conditions of all displaced persons following the fighting in Chechnya,
including measures aimed at facilitating their return to their towns and
villages.
407. The Committee recommends that education in human rights be included
in school and university curricula and that its comments be widely
disseminated and incorporated into the curricula of all human rights
training programmes organized for law-enforcement officers and
administration officials.
N. United Kingdom of Great Britain and Northern Ireland
408. The Committee considered the fourth periodic report of the United
Kingdom of Great Britain and Northern Ireland (CCPR/C/95/Add.3) at its
1432nd, 1433rd and 1434th meetings (see CCPR/C/SR.1432 to 1434), on 20 and
21 July 1995 and adopted 23/ the following final comments: 24/
1. Introduction
409. The Committee expresses its appreciation to the State party for its
detailed and exhaustive report, which largely complies with the Committee's
guidelines, although regret is expressed concerning the failure to address
adequately issues properly arising under article 26 of the Covenant. The
high competence of the delegation which presented the report is to be
acknowledged, as is their willingness to offer thorough and helpful answers
to the wide range of questions put by members. The Committee particularly
appreciates the frank acknowledgement by the delegation of those legal
issues regarding which the Government of the United Kingdom is still in
disagreement with views of the Committee and for their willingness to
engage in dialogue with regard to those issues. In this context, the
delegation indicated that it would present written observations setting out
the view of the Government on the Committee's general comment No. 24(52) on
issues relating to reservations made upon ratification or accession to the
Covenant or to the Optional Protocols thereto, or in relation to
declarations under article 41 of the Covenant. 25/ It is the view of the
Committee that the exchange of views with the State party has been
particularly fruitful and constructive.
410. The detailed information submitted by a wide range of non-
governmental organizations has not only greatly assisted the Committee but
is also a tribute to the democratic nature of United Kingdom society.
These organizations play an essential role in furthering the protection of
human rights in the country.
2. Factors and difficulties affecting the
implementation of the Covenant
411. With regard to all parts of the United Kingdom other than Northern
Ireland, the Committee finds that there are no significant factors or other
difficulties which should prevent the effective implementation of the
Covenant by the Government. With regard to Northern Ireland, the Committee
notes that, despite the recent cease-fire and political negotiations, the
lack of a final political solution and the continuation of emergency
legislation present difficulties affecting full implementation of the
Covenant.
3. Positive aspects
412. The Committee warmly welcomes and encourages the initiation of the
peace process in Northern Ireland. It acknowledges the historic
significance of the recent initiatives and of their importance for the
promotion and protection of human rights, including the right of self-
determination.
413. While the Committee does not agree with some of the positions of the
State party concerning the implementation of the Covenant, it acknowledges
the vibrant climate of debate in the United Kingdom, which ensures that
issues of human rights are comprehensively discussed and in which it is
clear that all points of view are seriously considered.
414. The Committee acknowledges the efforts of the State party to combat
racial and ethnic discrimination. The programmes to promote the position
of racial and ethnic minorities in society are welcomed, including relevant
changes to the entry examination system for the police force, proposed
similar changes for the prison service, the activities of the Commission
for Racial Equality, and the attention paid to race and ethnic sensitivity
training in the training programmes for the judiciary.
415. Improvements in the prison system are welcomed. The Committee
welcomes the improvements in prison sanitation conditions and the steps
taken in addressing problems of overcrowding within prisons. The
Government is to be commended for introducing a system whereby
participation by prisoners in programmes of education is remunerated in the
same way as engagement in prison labour. The statement by the delegation
that accommodation of prisoners in cells at police stations has ceased from
June of this year is also to be welcomed. The appointment of a Prisons
Ombudsman by the Government in April 1994 is highly appreciated.
4. Principal subjects of concern
416. The Committee notes that the legal system of the United Kingdom does
not fully ensure that an effective remedy is provided for all violations of
the rights contained in the Covenant. The Committee is concerned by the
extent to which implementation of the Covenant is impeded by the combined
effects of the non-incorporation of the Covenant into domestic law, the
failure to accede to the first Optional Protocol and the absence of a
constitutional Bill of Rights.
417. The Committee also regrets the decision of the State party not to
withdraw any of its reservations under the Covenant.
418. It is the view of the Committee that the powers under the provisions
permitting infringements of civil liberties, such as of extended periods of
detention without charge or access to legal advisers, entry into private
property without judicial warrant, imposition of exclusion orders within
the United Kingdom, etc., are excessive. Note is taken of the Government's
own admission that conditions at the Castlereagh detention centre in
Northern Ireland are unacceptable and concern is therefore expressed at the
Government's admission that it has not decided definitively to close the
facility. The Committee is also disturbed by reports of the continuation
of the practice of strip searching male and female prisoners in the context
of the low security risk that now exists and in view of the existence of
adequate alternative search techniques.
419. Despite the recent improvements in prison conditions in the United
Kingdom, the Committee is still disturbed by the high number of suicides of
prisoners, especially among juveniles.
420. The Committee is concerned that, notwithstanding the establishment in
the United Kingdom of mechanisms for the external supervision of
investigations of incidents in which the police or military are allegedly
involved, especially incidents that result in the death or wounding of
persons, as the investigations are still carried out by the police, they
lack sufficient credibility.
421. The Committee notes with concern that members of some ethnic
minorities, including Africans and Afro-Caribbeans, are often
disproportionately subjected to stop and search practices that may raise
doubts under the non-discriminatory provisions of the Covenant,
particularly its articles 3 and 26.
422. The treatment of illegal immigrants, asylum-seekers and those ordered
to be deported gives cause for concern. The Committee observes that the
incarceration of persons ordered to be deported and particularly the length
of their detention may not be necessary in every case and it is gravely
concerned at incidences of the use of excessive force in the execution of
deportation orders. The Committee also notes with concern that adequate
legal representation is not available for asylum-seekers effectively to
challenge administrative decisions.
423. The Committee is concerned that the practice of the State party in
contracting out to the private commercial sector core State activities
which involve the use of force and the detention of persons weakens the
protection of rights under the Covenant. The Committee stresses that the
State party remains responsible in all circumstances for adherence to all
articles of the Covenant.
424. The Committee notes with concern that the provisions of the Criminal
Justice and Public Order Act of 1994, which extended the legislation
originally applicable in Northern Ireland, whereby inferences may be drawn
from the silence of persons accused of crimes, violates various provisions
in article 14 of the Covenant, despite the range of safeguards built into
the legislation and the rules enacted thereunder.
425. The Committee is concerned at the levels of support offered for the
protection of cultural and ethnic diversity within the United Kingdom. The
Committee further notes with concern that many persons belonging to
minorities frequently feel that acts of racial harassment are not pursued
by the competent authorities with sufficient rigor and efficiency. The
Committee also regrets the lack of success in the adequate recruitment of
ethnic minorities into the police. It further believes that much remains
to be done to effect changes in public attitudes and to combat and overcome
racism.
426. The Committee regrets that corporal punishment may still be permitted
in certain circumstances in independent schools.
5. Suggestions and recommendations
427. The Committee strongly recommends that the State party take urgent
steps to ensure that its legal machinery allows for the full implementation
of the Covenant. Accordingly, it is urged to examine the need to
incorporate the Covenant into domestic law or introduce a bill of rights
under which legislative or executive encroachment on Covenant rights could
be reviewed by the courts. It should also reconsider its current position
as to accession to the first Optional Protocol.
428. The State party is recommended to review the reservations which it
has made to the Covenant.
429. In the context of the elaboration of a peace settlement for Northern
Ireland, the Committee recommends that further concrete steps be taken so
as to permit the early withdrawal of the derogation made pursuant to
article 4 and to dismantle the apparatus of laws infringing civil liberties
which were designed for periods of emergency. It also recommends that
specific efforts be made to enhance in Northern Ireland confidence in the
administration of justice by resolving outstanding cases and by putting in
place transparently fair procedures for the independent investigation of
complaints. The Committee further recommends that the Castlereagh
detention centre be closed as a matter of urgency.
430. Given the significant decline in terrorist violence in the United
Kingdom since the cease-fire came into effect in Northern Ireland and the
peace process was initiated, the Committee urges the Government to keep
under the closest review whether a situation of "public emergency" within
the terms of article 4, paragraph 1, of the Covenant still exists and
whether it would be appropriate for the United Kingdom to withdraw the
notice of derogation which it issued on 17 May 1976, in accordance with
article 4 of the Covenant.
431. The State party should ensure that all those who are involved in the
detention of prisoners be made fully aware of the international obligations
on the State party concerning the treatment of detainees, including the
United Nations Standard Minimum Rules for the Treatment of Prisoners.
432. The Committee recommends that the Criminal Justice and Public Order
Act of 1994 and the equivalent legislation in Northern Ireland be reviewed
in order to ensure that the provisions which allow inferences to be drawn
from the silence of accused persons do not compromise the implementation of
various provisions in article 14 of the Covenant.
433. The State party is urged to take further action to tackle remaining
problems of racial and ethnic discrimination and of social exclusion. A
concerted campaign is called for, to address issues of research, juvenile
and adult education, recruitment policies for the public and private
sectors, legislative initiative and law enforcement. Similarly forceful
action is needed to ensure that women play an equal role in society and
that they enjoy the full protection of the law. Law enforcement officers,
the judiciary and the legal profession should receive information and
education to ensure that laws which protect women from violence are fully
enforced and that the interpretation of laws, such as those relating to the
doctrine of provocation, does not unfairly discriminate against women. All
public officials should be made fully cognizant of the programmes of action
and receive guidance to ensure that their actions always serve to support
and promote the stated aims.
434. The Committee recommends that corporal punishment administered to
privately funded pupils in independent schools be abolished.
435. The Committee recommends that the State party give wide publicity to
the Covenant, to its report and the reporting procedure. It recommends
that these comments and information about the dialogue with the Committee
be distributed to interested non-governmental groups and the public at
large.
O. Sri Lanka
436. The Committee considered the third periodic report (CCPR/C/70/Add.6
and HRI/Core/1/Add.52) at its 1438th to 1440th meetings, held on 24 and 25
July 1995, and adopted 26/ the following final comments:
1. Introduction
437. The Committee appreciates the opportunity to resume its dialogue with
the State party. It regrets, however, that the State party report was not
satisfactory in that it failed to provide detailed information on the
actual implementation in practice of the provisions of the Covenant.
Moreover, the Committee, while welcoming the updated additional information
prepared by the Government and presented to the Committee, notes that the
lateness of its submission did not allow for wide distribution, including
its availability in all the working languages of the Committee.
Notwithstanding this point, the Committee wishes to express its gratitude
to the delegation for the supplementary information it provided orally in
answer to both the written and oral questions posed by members of the
Committee.
2. Factors and difficulties affecting the
implementation of the Covenant
438. The Committee recognizes and appreciates the firm commitment of the
Government to a durable and peaceful solution to the conflict in the north
and east of the country. In view of the considerable efforts undertaken by
the Government to initiate and bring peace to the island, the Committee
deeply regrets the breakdown of the negotiations and the resumption of
armed conflict. The return of hostilities has given rise to serious
violations of human rights on both sides, thus adversely affecting the
application of the Covenant.
3. Positive aspects
439. The Committee welcomes the initiatives being undertaken by the
Government to further the protection and promotion of human rights. In
this respect the Committee notes that a package of constitutional reforms
is in the process of preparation. The Committee notes that draft proposals
are currently under consideration for establishing a new procedure for
direct petitioning to the Supreme Court in the case of the infringement of
fundamental rights and for broadening the scope of local standings in such
cases so as to permit a non-governmental organization to file a petition
before the Supreme Court.
440. The Committee further welcomes the enactment of Parliamentary
Commissioner for Administration (Amendment) Act No. 26 of 1994, which
provides for more direct public access to the Ombudsman. In addition, the
Committee notes that the final report by the Committee appointed to inquire
into matters relating to persons detained under the Prevention of Terrorism
Act and the Emergency Regulations has recommended the immediate revocation
of detention orders relating to 140 persons whom the Attorney General has
decided not to prosecute. The appointment of a Commission to inquire into
election-related violence is also noted.
441. The Committee expresses its satisfaction at the Government's stated
policy of not implementing death sentences and that corporal punishment as
a penalty has been suspended for the last 10 years.
442. The Committee notes with satisfaction the important role being played
by non-governmental organizations in Sri Lanka in contributing to the
reform of laws protecting human rights, for example with respect to the
recent amendment of regulations under Section 5 of the Public Security
Ordinance, by which members of the armed forces and the police have been
directed to issue "arrest receipts" even in the case where such information
has not been requested by the interested parties, such as family members.
443. The Committee welcomes the recent adoption of an Act establishing the
National Human Rights Commission of Sri Lanka. It also welcomes the
establishment of the Human Rights Advisory Group.
444. The Committee expresses its appreciation at the efforts undertaken to
include human rights education within the curricula of secondary schools
and higher educational establishments, and that human rights training
programmes are being organized for the security forces.
4. Principal subjects of concern
445. The Committee considers that the domestic legal system of Sri Lanka
contains neither all the rights set forth in the Covenant nor all the
necessary safeguards to prevent their restriction beyond the limits
established by the Covenant. It notes also that the Government does not
appear to be considering the incorporation of all Covenant rights into
domestic law or the ratification of the Optional Protocol; individuals are
thus unable to invoke all the rights conferred under the Covenant before
national courts or before the Human Rights Committee.
446. The Committee is of the opinion that the time-limit of two years
proposed in the draft new Constitution for challenging the validity of
enacted legislation with the Constitution is a matter of serious concern.
Equally, the Committee expresses its concern with respect to the provisions
of article 16 (1) of the Constitution, which permits all existing laws to
remain valid and operative notwithstanding any inconsistency with the
Constitution's provisions relating to fundamental rights.
447. With regard to the recent establishment of various mechanisms for
protecting and promoting human rights, the Committee appreciates the
undertaking of these initiatives but remains concerned as to whether
sufficient attention is being given to the coordination of the work of the
respective committees, commissions and the Human Rights Task Force so as to
avoid any duplication of efforts and thus maximize the effectiveness of
their work.
448. The Committee is concerned that the derogation of rights under the
various emergency laws and regulations may not be in full compliance with
the requirement of the provisions of article 4, paragraph 2, of the
Covenant. It is further concerned that courts do not have the power to
examine the legality of the declaration of emergency and of the different
measures taken during the state of emergency. The Committee emphasizes
that the obligations assumed by Sri Lanka as a State party to various
international instruments must be respected even in times of states of
emergency.
449. With reference to article 6 of the Covenant, the Committee is
concerned that under Sri Lankan law, the death penalty may be imposed for
crimes such as abetting suicide, drug-related offences, and certain
offences against property. Some of these offences do not appear to be the
most serious offences under article 6 of the Covenant.
450. The Committee is seriously concerned about the information received
of cases of loss of life of civilians, disappearances, torture, and summary
executions and arbitrary detention caused by both parties in conflict. The
Committee notes with particular concern that an effective system for the
prevention and punishment of such violations does not appear to exist. In
addition, concern is expressed that violations and abuses allegedly
committed by police officers have not been investigated by an independent
body, and that frequently the perpetrators of such violations have not been
punished. The Committee notes that this may contribute to an atmosphere of
impunity among the perpetrators of human rights violations and constitute
an impediment to the efforts being undertaken to promote respect for human
rights.
451. With respect to the functions of the three Presidential Commissions
of Inquiry into Involuntary Removals and Disappearances, the Committee is
concerned that the Commissions are not mandated to inquire into such human
rights violations allegedly committed between 1984 and 1988 nor into
summary executions.
452. The Committee is concerned that the undetermined detention which may
be ordered by the Secretary of the Ministry of Defence violates the
Covenant, particularly when such detention can be challenged only one year
after detention. In view of this, the Committee remains concerned about
the effectiveness of the habeas corpus remedy in respect of those arrested
under the Prevention of Terrorism Act.
453. The Committee is concerned that the rights under article 10 of the
Covenant of persons deprived of their liberty in prisons and other places
of detention are not fully respected. It regrets that conditions in places
of detention other than prisons are not regulated by law and that prisons
and other places of detention are not regularly visited by magistrates or
other independent bodies.
454. With respect to the independence of the judiciary, the Committee
expresses its concern about the procedure set forth under article 107 of
the Constitution read with standing orders made by Parliament.
455. The low age of criminal responsibility and the stipulation within the
Penal Code by which a child above 8 years of age and under 12 years of age
can be held to be criminally responsible on the determination by the judge
of the child's maturity of understanding as to the nature and consequence
of his or her conduct are matters of profound concern to the Committee.
456. The provisions of the Special Presidential Commissions of Inquiry Act
which permit the acceptance of evidence otherwise inadmissible in a court
of law and which stipulate that any decision adopted by a Commission
established under the Act is final and conclusive and may not be called
into question by any court and tribunal are matters of serious concern to
the Committee in view of the fact that the findings of these Commissions
can lead to a penalty of civic disability being imposed by Parliament on
those subject to an investigation.
457. The Committee is also concerned that Article 15 (2) of the
Constitution allows the right to freedom of expression to be restricted in
relation to parliamentary privilege, particularly in view of the fact that
the Parliament (Power and Privileges) Act as amended in 1978 gives
Parliament the power to impose penalties for breaches of this Act. The
Committee is also concerned with the proposed amendments in the
Constitution which seek to restrict the right to freedom of expression, "in
the interest of the authority of Parliament", which would be in violation
of article 19 of the Covenant. It is equally concerned that government
ownership and control over much of the electronic media might undermine the
right of everyone to seek, receive or impart information and ideas of all
kinds.
458. The Committee notes that the workers employed in the free trade
zones, 80 per cent of whom are women, are unable, in practice, to enjoy
fully the rights set forth in articles 21 and 22 of the Covenant.
459. While the Committee welcomes the proposed changes to legislation for
offences committed against children, such as incest and the sexual
exploitation of children, it is concerned about the situation of the
economic and sexual exploitation of children both with respect to the use
of children in domestic service and the prostitution of boys.
460. The Committee notes that reforms are in place to raise the
marriageable age for girls to 18. However, the current legislation permits
the marriage of girls from the age of 12 and contains discriminatory
provisions with regard to property between men and women, thus preventing
women from fully enjoying the rights protected under articles 3, 23,
paragraph 3 and 26 of the Covenant.
5. Suggestions and recommendations
461. The Committee strongly recommends that the State party take urgent
steps to ensure that its domestic laws are in full compliance with the
Covenant. In this regard, it further recommends that within the context of
the present efforts to reform the Constitution due consideration be given
to the provisions of the Covenant.
462. The Committee recommends that the State party consider acceding to
the Optional Protocol.
463. The Committee notes the efforts being undertaken by the Government to
establish various mechanisms to promote and protect human rights, including
with respect to the National Human Rights Commission. In this regard, the
Committee would like strongly to recommend that the proliferation of bodies
with parallel competences should be avoided and that the coordination of
such mechanisms should be ensured. It also urges the State party to take
into account that investigation and prosecution of criminal offences should
be carried out by an independent body and that punishment of criminal
offences should be carried out by the judiciary.
464. The Committee recommends that the State party review the provision of
article 16 of the Constitution which permits all existing laws to remain
valid and operative notwithstanding any inconsistency with constitutional
stipulations relating to fundamental rights. It also recommends that the
two-year time-limit for challenging the constitutionality of enacted
legislations should be abolished.
465. The Committee recommends that the provisions of the Covenant should
be fully respected in the areas where a state of emergency has been
proclaimed. The Committee also urges the State party vigorously to
investigate all violations of human rights - both past and present -through
an independent agency, to punish those guilty of such acts and to
compensate the victims.
466. The Committee recommends that the State party ensure that the death
penalty may only be imposed for the most serious of crimes as required by
article 6 of the Covenant. Moreover, in view of the fact that the death
penalty has not been carried out since 1977, the Committee wishes further
to recommend that the State party consider taking measures for the
abolition of the death penalty and the ratification of or accession to the
second Optional Protocol.
467. Noting that the definition of torture given in the Convention Against
Torture Act passed by Parliament on 25 November 1994 is somewhat
restrictive, the Committee recommends that the Act be amended to bring it
into conformity with article 7 of the Covenant, taking into account the
Committee's General Comment No. 20(44). It further recommends that in view
of the statement by the Government that corporal punishment has been
suspended the provisions of the domestic legislation allowing this form of
punishment be revoked.
468. With regard to articles 9 and 10 of the Covenant, the Committee
recommends that as a matter of priority all legal provisions or executive
orders be reviewed to ensure their compatibility with the provisions of the
Covenant and their effective implementation in practice.
469. The Committee recommends that the State party review the existing
procedure relating to the removal of Supreme Court judges and judges of the
Courts of Appeal with a view to its amendment as a means of ensuring the
greater independence of the judiciary.
470. The Committee recommends the amendment of the Special Presidential
Commissions of Inquiry Act to bring it into conformity with the provisions
of articles 14 and 25 of the Covenant.
471. The Committee recommends that the present provisions by which freedom
of the press can be restricted by reason of parliamentary privilege should
be removed. The State party should also take the necessary steps to
prevent control and manipulation of the electronic media by the Government.
472. With respect to the implementation of article 22, the Committee
recommends that the State party ensure that workers within the free trade
zones effectively exercise their right to organize.
473. The Committee recommends that measures be taken to ensure the
protection of the child and in this regard the particular attention of the
State party is drawn to the Personal Status Act, which permits the marriage
of a girl at the age of 12, and its incompatibility with the provisions of
the Covenant.
474. The Committee urges the State party to develop a comprehensive
programme to deal with the issues of child labour, particularly of children
in domestic service, and the sexual exploitation of children of both sexes.
475. The Committee strongly recommends that greater efforts be undertaken
to ensure that all ethnic groups are provided with the opportunity to
participate fully in the conduct of public affairs and are ensured
equitable access to public service.
476. The Committee recommends that further measures be taken to develop
greater awareness of the Covenant; in particular, law enforcement officials
and members of the legal profession should be made fully cognizant of the
provisions of the Covenant.
VII. GENERAL COMMENTS OF THE COMMITTEE
Work on general comments
477. At its fifty-second session, the Committee began discussion of a
draft general comment that would address issues relating to reservations
made upon ratification of or accession to the Covenant or the Optional
Protocols thereto, or relating to statements made under article 41 of the
Covenant. It considered that general comment at its 1368th, 1369th,
1380th, 1381st and 1382nd meetings during its fifty-second session, on the
basis of a draft prepared by its working group pursuant to successive
drafts revised in the light of the observations and proposals put forward
by members during and after the fifty-first session. The Committee adopted
the general comment at its 1382nd meeting, held on 2 November 1994 (see
annex V).
478. Pursuant to the request of the Economic and Social Council, the
Committee decided to transmit the general comment addressing issues
relating to reservations made upon ratification of or accession to the
Covenant or the Optional Protocols thereto, or relating to statements made
under article 41 of the Covenant, to the Council at its substantive session
in 1995.
479. During the three sessions covered by this report, the Committee
considered a draft general comment on article 25 of the Covenant at its
1384th, 1385th, 1399th, 1414th, 1422nd and 1423rd meetings on the basis of
successive drafts revised by its working groups in the light of the
observations and proposals of its members.
480. At its fifty-fourth session, the Committee noted that the pre-
sessional working group had begun consideration of the general comments
already adopted in the past, so as to determine which of them should be
updated.
481. The Committee received comments under article 40, paragraph 5, of the
Covenant, concerning its General Comment No. 24 (52) on issues relating to
reservations made upon ratification of or accession to the Covenant or the
Optional Protocols thereto, or relating to statements made under article 41
of the Covenant. These comments, which were transmitted by the United
States of America and the United Kingdom of Great Britain and Northern
Ireland, are contained in annex VI to this report.
VIII. CONSIDERATION OF COMMUNICATIONS UNDER THE OPTIONAL PROTOCOL
482. Individuals who claim that any of their rights under the
International Covenant on Civil and Political Rights have been violated,
and who have exhausted all available domestic remedies, may submit written
communications to the Human Rights Committee for consideration under the
Optional Protocol. Of the 130 States that have ratified or acceded to the
Covenant, 84 have accepted the Committee's competence to deal with
individual complaints by becoming parties to the Optional Protocol (see
annex I, sect. B). Since the Committee's last report to the General
Assembly, seven States have ratified or acceded to the Optional Protocol:
Bosnia and Herzegovina, Chad, El Salvador, Kyrgyzstan, Namibia, Paraguay
and the former Yugoslav Republic of Macedonia. No communication can be
examined by the Committee if it concerns a State party to the Covenant that
is not also a party to the Optional Protocol.
483. Consideration of communications under the Optional Protocol is
confidential and takes place in closed meetings (art. 5, para. 3, of the
Optional Protocol). All documents pertaining to the work of the Committee
under the Optional Protocol (submissions from the parties and other working
documents of the Committee) are confidential. Rules 96 to 99 of the
Committee's rules of procedure regulate the confidentiality of documents.
The texts of final decisions of the Committee, consisting of Views adopted
under article 5, paragraph 4, of the Optional Protocol, are, however, made
public. As regards decisions declaring a communication inadmissible (which
are also final), the Committee has decided that it will normally make these
decisions public.
A. Progress of work
484. The Committee started its work under the Optional Protocol at its
second session, in 1977. Since then, 636 communications concerning 46
States parties have been registered for consideration by the Committee,
including 49 placed before it during the period covered by the present
report.
485. The status of the 636 communications registered for consideration by
the Human Rights Committee so far is as follows:
(a) Concluded by Views under article 5, paragraph 4, of the Optional
Protocol: 208;
(b) Declared inadmissible: 213;
(c) Discontinued or withdrawn: 108;
(d) Declared admissible, but not yet concluded: 39;
(e) Pending at the pre-admissibility stage: 68.
486. In addition, the secretariat of the Committee has several hundred
communications on file, in respect of which the authors have been advised
that further information would be needed before their communications could
be registered for consideration by the Committee. The authors of a number
of additional communications have been informed that their cases will not
be submitted to the Committee, as they fall clearly outside the scope of
the Covenant or appear to be frivolous.
487. Two volumes containing selected decisions of the Human Rights
Committee under the Optional Protocol, from the second to the sixteenth
sessions and from the seventeenth to the thirty-second sessions,
respectively, have been published (CCPR/C/OP/1 and 2).
488. During the fifty-second to fifty-fourth sessions, the Committee
concluded consideration of 15 cases by adopting Views thereon. These are
cases Nos. 386/1989 (Kone v. Senegal), 400/1990 (Monaco de Gallicchio v.
Argentina), 447/1991 (Shalto v. Trinidad and Tobago), 453/1991 (Coeriel v.
the Netherlands), 464/1991 and 482/1991 (Peart v. Jamaica), 473/1991
(Barroso v. Panama), 493/1992 (Griffin v. Spain), 500/1992 (Debreczeny v.
the Netherlands), 511/1992 (Lansman et al. v. Finland), 514/1992 (Fei v.
Colombia), 516/1992 (Simunek et al. v. the Czech Republic), 518/1992 (Sohn
v. the Republic of Korea), 539/1993 (Cox v. Canada and 606/1994 (Francis v.
Jamaica). The texts of the Views in these 15 cases are reproduced in annex
X.
489. The Committee also concluded consideration of 13 cases by declaring
them inadmissible. These are cases Nos. 437/1990 (Colamarco Patino v.
Panama), 438/1990 (Thompson v. Panama), 460/1991 (Omar Simons v. Panama),
494/1992 (Rogers v. Jamaica), 515/1992 (Holder v. Trinidad and Tobago),
525/1992 (Gire v. France), 536/1993 (Perera v. Australia), 541/1993 (Simms
v. Jamaica), 553/1993 (Bullock v. Trinidad and Tobago), 575/1994, 576/1994
(Guerra and Wallen v. Trinidad and Tobago), 578/1994 (De Groot v. the
Netherlands) and 583/1994 (van der Houwen v. the Netherlands). The texts
of these decisions are reproduced in annex XI.
490. During the period under review, 29 communications were declared
admissible for examination on the merits. Decisions declaring
communications admissible are not made public. Consideration of 15 cases
was discontinued. Procedural decisions were adopted in a number of pending
cases (under article 4 of the Optional Protocol or under rules 86 and 91 of
the Committee's rules of procedure). The Committee requested Secretariat
action in other pending cases.
B. Growth of the Committee's case-load
under the Optional Protocol
491. As the Committee has already stated in previous annual reports, the
increasing number of States parties to the Optional Protocol and better
public awareness of the Committee's work under the Optional Protocol have
led to a growth in the number of communications submitted to it. In
addition, the Secretariat took action on several hundred cases which, for
one reason or another, were not registered under the Optional Protocol and
placed before the Committee. Furthermore, follow-up activities are
required in the majority of the 154 cases in which the Committee found
violations of the Covenant. This workload means that the Committee can no
longer examine communications expeditiously and highlights the urgent need
to reinforce the Secretariat staff. In this connection the Committee also
notes that an increasing number of communications are being submitted in
languages which are not among the working languages of the Secretariat, and
expresses its concern about the consequent delays in the examination of
such communications. The Human Rights Committee reiterates its request to
the Secretary-General to take the necessary steps to ensure a substantial
increase in the number of staff, specialized in the various legal systems,
assigned to service the Committee, and wishes to record that the work under
the Optional Protocol continues to suffer as a result of insufficient
Secretariat resources.
C. Approaches to examining communications
under the Optional Protocol
1. Special Rapporteur on new communications
492. At its thirty-fifth session, the Committee decided to designate a
Special Rapporteur to process new communications as they were received,
i.e. between sessions of the Committee. Mrs. Rosalyn Higgins served as
Special Rapporteur for a period of two years. She was succeeded as Special
Rapporteur by Mr. Rajsoomer Lallah (forty-first to forty-sixth sessions)
and by Ms. Christine Chanet (forty-seventh to fifty-second sessions). At
the Committee's fifty-third session, Mr. Fausto Pocar was designated to
succeed Ms. Chanet as Special Rapporteur. Since the end of the fifty-first
session, the Special Rapporteur has transmitted 38 new communications to
the States parties concerned under rule 91 of the Committee's rules of
procedure, requesting information or observations relevant to the question
of admissibility. In some cases, the Special Rapporteurs issued requests
for interim measures of protection pursuant to rule 86 of the Committee's
rules of procedure. Regarding other communications, the Special
Rapporteurs recommended to the Committee that the communications be
declared inadmissible without forwarding them to the State party.
2. Competence of the Working Group on Communications
493. At its thirty-sixth session, the Committee decided to authorize the
Working Group on Communications to adopt decisions declaring communications
admissible when all five members so agreed. Failing such agreement, the
Working Group would refer the matter to the Committee. It could also do so
whenever it believed that the Committee itself should decide the question
of admissibility. While the Working Group could not adopt decisions
declaring communications inadmissible, it might make recommendations in
that respect to the Committee. Pursuant to those rules, the Working Group
on Communications that met prior to the fifty-second, fifty-third and
fifty-fourth sessions of the Committee declared 23 communications
admissible.
3. Joinder of admissibility and merits
494. At its fifty-fourth session, the Committee decided that it would join
the consideration of admissibility and merits of communications when both
parties consented and the Committee considered it appropriate.
Consequently, at its fifty-fourth session the Committee declared
communication No. 606/1994 (Francis v. Jamaica) admissible and adopted its
Views thereon.
D. Individual opinions
495. In its work under the Optional Protocol, the Committee strives to
arrive at its decisions by consensus. However, pursuant to rule 94,
paragraph 3, of the Committee's rules of procedure, members can add their
individual concurring or dissenting opinions to the Committee's Views.
Pursuant to rule 92, paragraph 3, members can append their individual
opinions to the Committee's decisions declaring communications
inadmissible.
496. During the sessions covered by the present report, individual
opinions were appended to the Committee's Views in cases Nos. 453/1991
(Coeriel v. the Netherlands) and 539/1993 (Cox v. Canada).
E. Issues considered by the Committee
497. A review of the Committee's work under the Optional Protocol from its
second session in 1977 to its fifty-first session in 1994 can be found in
the Committee's annual reports for 1984 to 1994, which, inter alia, contain
summaries of the procedural and substantive issues considered by the
Committee and of the decisions taken. The full texts of the Views adopted
by the Committee and of its decisions declaring communications inadmissible
under the Optional Protocol have been reproduced regularly in annexes to
the Committee's annual reports.
498. The following summary reflects further developments on issues
considered during the period covered by the present report.
1. Procedural issues
(a) No claim under article 2 of the Optional Protocol
499. Article 2 of the Optional Protocol provides that "individuals who
claim that any of their rights enumerated in the Covenant have been
violated and who have exhausted all available domestic remedies may submit
a written communication to the Committee for consideration".
500. Although an author does not need to prove the alleged violation at
the admissibility stage, he must submit sufficient evidence substantiating
his allegation for purposes of admissibility. A "claim" is, therefore, not
just an allegation, but an allegation supported by a certain amount of
substantiating evidence. Thus, in cases where the Committee finds that the
author has failed to substantiate his claim for purposes of admissibility,
the Committee has held the communication inadmissible, under rule 90 (b) of
its rules of procedure, declaring that the author "has no claim under
article 2 of the Optional Protocol".
501. Cases declared inadmissible, inter alia, for lack of substantiation
of the claim or failure to advance a claim, are communications Nos.
460/1991 (Simons v. Panama), 536/1993 (Perera v. Australia) and 541/1993
(Simms v. Jamaica).
(b)Competence of the Committee and incompatibility with the provisions of
the Covenant (Optional Protocol, art. 3)
502. In its work under the Optional Protocol, the Committee has on several
occasions had to point out that it is not an appeal instance intended to
review or reverse decisions of domestic courts and that it cannot be used
as a forum for pursuing a complaint on the basis of domestic law.
503. In case No. 541/1993 (Simms v. Jamaica), the author, who had been
sentenced to death, complained that his trial was unfair and that the judge
had misdirected the jury on the issue of identification. The Committee
decided that the communication was inadmissible under article 3 of the
Optional Protocol. It found that the author's claims did not come within
the competence of the Committee, as they related primarily to the judge's
instructions to the jury and the evaluation of evidence by the court. The
Committee recalled that it was generally for the appellate courts of States
parties to the Covenant and not for the Committee to evaluate the facts and
evidence and to review specific instructions to the jury by the judge,
unless it can be ascertained that the instructions were clearly arbitrary
or amounted to a denial of justice.
504. The Committee reached a similar conclusion with regard to cases Nos.
460/1991 (Simons v. Panama), 536/1993 (Perera v. Australia) and 553/1993
(Bullock v. Trinidad and Tobago).
505. Communication No. 583/1994 (van der Houwen v. the Netherlands) was
declared inadmissible as incompatible with the provisions of the Covenant,
as was part of communication No. 578/1994 (De Groot v. the Netherlands).
(c)The requirement of exhaustion of domestic remedies (Optional Protocol,
art. 5, para. 2 (b))
506. Pursuant to article 5, paragraph 2 (b), of the Optional Protocol, the
Committee shall not consider any communication unless it has ascertained
that the author has exhausted all available domestic remedies. However,
the Committee has already established that the rule of exhaustion applies
only to the extent that these remedies are effective and available. The
State party is required to give "details of the remedies which it submitted
that had been available to the author in the circumstances of his case,
together with evidence that there would be a reasonable prospect that such
remedies would be effective" (case No. 4/1977 (Torres Ramirez v. Uruguay)).
The rule also provides that the Committee is not precluded from examining a
communication if it is established that the application of the remedies in
question is unreasonably prolonged.
507. Communications Nos. 437/1990 (Colamarco v. Panama), 438/1990
(Thompson v. Panama), 515/1992 (Holder v. Trinidad and Tobago), 525/1993
(Gire v. France) and 575/1994 (Guerra v. Trinidad and Tobago) were declared
inadmissible for failure to pursue available and effective domestic
remedies.
(d) Inadmissibility ratione temporis
508. As at previous sessions, the Committee was faced with communications
based on events that occurred prior to the entry into force of the Optional
Protocol for the State concerned. The criterion of admissibility is
whether the events have had continued effects which themselves constitute
violations of the Covenant after the entry into force of the Optional
Protocol.
509. In communication No. 536/1993 (Perera v. Australia), the author,
inter alia, complained that the police had used violence against him in
1986. Since the Optional Protocol entered into force for Australia on 25
December 1991, the Committee declared this part of the communication
inadmissible ratione temporis.
510. In case No. 516/1992 (Simunek et al. v. the Czech Republic), the
Committee observed that:
"the State party's obligations under the Covenant applied as of the date
of its entry into force. A different issue arose as to when the
Committee's competence to consider complaints about alleged violations of
the Covenant under the Optional Protocol was engaged. In its jurisprudence
under the Optional Protocol, the Committee has consistently held that it
cannot consider alleged violations of the Covenant which occurred before
the entry into force of the Optional Protocol for the State party, unless
the violations complained of continue after the entry into force of the
Optional Protocol. A continuing violation is to be interpreted as an
affirmation, after the entry into force of the Optional Protocol, by act or
by clear implication, of the previous violations of the State party" (annex
X, sect. K, para. 4.5).
Since the authors alleged that the continuous application of a law
discriminated against them, the Committee declared the communication
admissible.
(e) Interim measures under rule 86
511. Under rule 86 of the Committee's rules of procedure, the Committee
may, after receipt of a communication and before adopting its views,
request a State party to take interim measures in order to avoid
irreparable damage to the victim of the alleged violations. The Committee
has applied this rule on several occasions, mostly in cases submitted by or
on behalf of persons who have been sentenced to death and are awaiting
execution, and who claim that they were denied a fair trial. In view of
the urgency of the communications, the Committee has requested the States
parties concerned not to carry out the death sentences while the cases are
under consideration. Stays of execution have specifically been granted in
this connection. Rule 86 has also been applied in other circumstances, for
instance in cases of imminent extradition.
2. Substantive issues
(a) Right to life (Covenant, art. 6)
512. Article 6, paragraph 2, provides that a "sentence of death may be
imposed only for the most serious of crimes in accordance with the law in
force at the time of the commission of the crime and not contrary to the
provisions of the present Covenant". Thus, a nexus is established between
the imposition of a sentence of death and observance by State authorities
of guarantees under the Covenant. Accordingly, in cases where the
Committee found that the State party had violated article 14 of the
Covenant, in that the author had been denied a fair trial and appeal, the
Committee held that the imposition of the sentence of death also entailed a
violation of article 6. In its Views in case Nos. 464/1991 and 482/1991
(Garfield and Andrew Peart v. Jamaica) the Committee observed:
"The Committee is of the opinion that the imposition of a sentence of
death upon conclusion of a trial in which the provisions of the Covenant
have not been respected constitutes, if no further appeal against the
sentence is possible, a violation of article 6 of the Covenant. As the
Committee noted in its general comment 6(16), the provision that a sentence
of death may be imposed only in accordance with the law and not contrary to
the provisions of the Covenant implies that 'the procedural guarantees
therein prescribed must be observed, including the right to a fair hearing
by an independent tribunal, the presumption of innocence, the minimum
guarantees for the defence, and the right to review of conviction and
sentence by a higher tribunal'" (annex X, sect. E, para. 11.8).
513. Having concluded that the final sentence of death had been imposed
after a trial that failed to comply fully with the requirements of article
14, the Committee found that the right protected by article 6 had been
violated.
514. In case No. 539/1993 (Keith Cox v. Canada), the Committee had
occasion to affirm its earlier decisions with regard to the scope of the
requirement under article 6, paragraph 1, to protect the right to life. In
Mr. Cox's case, the Committee had to determine whether the requirement
under article 6, paragraph 1, prevented the State party from extraditing
the complainant to the United States, where he was to stand trial on two
murder charges and, if convicted, could be sentenced to death. The
Committee observed that, if Mr. Cox's extradition from Canada had exposed
him to a real risk of a violation of article 6, paragraph 2, in the United
States, this would have entailed a violation by Canada of its obligations
under the said provision. In the circumstances of this particular case,
the Committee found that the existence of such risk had not been shown and
consequently found no violation of article 6, paragraph 1, by Canada.
515. Five members of the Committee appended dissenting opinions, arguing
that Canada had violated article 6 in the instant case. One member
appended an individual opinion arguing that Mr. Cox's extradition would
entail a violation by Canada of article 7 of the Covenant. Furthermore,
two members appended individual opinions, agreeing with the finding of no
violation, but arguing that the Committee should have revised its decision
on admissibility and not have proceeded to the merits. As to the
Committee's decision on admissibility, seven members appended dissenting
opinions.
(b)The right not to be subjected to torture or to cruel, inhuman or
degrading treatment (Covenant, art. 7)
516. Article 7 of the Covenant provides that no one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.
517. In its jurisprudence regarding claims that a prolonged stay on death
row constitutes cruel, inhuman and degrading treatment, the Committee has
consistently held that the facts and circumstances of each case must be
examined to see whether an issue under article 7 arises and that prolonged
judicial proceedings do not per se constitute that kind of treatment, even
if they might be a source of mental strain and tension for detained
persons.
518. In case No. 541/1993 (Simms v. Jamaica), the Committee observed:
"Although some national courts of last resort have held that prolonged
detention on death row for a period of five years or more violates their
constitutions or laws, 27/ the jurisprudence of this Committee remains that
detention for any specific period would not be a violation of article 7 of
the Covenant in the absence of some further compelling circumstances"
(annex XI, sect. H, para. 6.5).
519. In case No. 606/1994 (Francis v. Jamaica), the Committee had to
determine whether the author's treatment during his nearly 12 years'
detention on death row entailed violations of articles 7 and 10 of the
Covenant. After having reaffirmed its established jurisprudence, the
Committee found that the delays in this case were attributable to the State
party and considered:
"Whereas the psychological tension created by prolonged detention on
death row may affect persons in different degrees, the evidence before the
Committee in this case, including the author's confused and incoherent
correspondence with the Committee, indicates that his mental health
seriously deteriorated during incarceration on death row. Taking into
consideration the author's description of the prison conditions, including
his allegations about regular beatings inflicted upon him by warders, as
well as the ridicule and strain to which he was subjected during the five
days he spent in the death cell awaiting execution in February 1988, which
the State party has not effectively contested, the Committee concludes that
these circumstances reveal a violation of Jamaica's obligations under
articles 7 and 10, paragraph 1, of the Covenant" (annex X, sect. N, para.
9.2).
(c)Liberty and security of person (Covenant, art. 9)
520. Article 9 of the Covenant guarantees to everyone the right to liberty
and security of person. Under paragraph 1, no one shall be subjected to
arbitrary arrest or detention. Paragraph 2 prescribes that anyone who is
arrested shall be informed, at the time of his arrest, of the reasons for
his arrest and shall be promptly informed of any charges against him.
Paragraph 3 gives anyone arrested or detained on a criminal charge the
right to be brought promptly before a judge and states that it shall not be
the general rule that persons awaiting trial shall be detained in custody.
Paragraph 4 entitles anyone deprived of his liberty to take proceedings
before a court, in order to have the court decide on the lawfulness of his
detention. Paragraph 5 gives anyone who has been the victim of unlawful
arrest or detention a right to compensation.
521. In communication No. 493/1992 (Griffin v. Spain), the author, a
Canadian citizen who did not speak Spanish, claimed a violation of article
9, paragraph 2, because there was no interpreter present when he was
arrested and he was therefore not informed of the reasons for his arrest.
The Committee noted:
"that the author was arrested and taken into custody at 11:30 p.m. on 17
April 1991, after the police, in the presence of the author, had searched
the camper and discovered the drugs. The police reports further reveal
that the police refrained from taking his statement in the absence of an
interpreter, and that the following morning the drugs were weighed in the
presence of the author. He was then brought before the examining
magistrate and, with the use of an interpreter, he was informed of the
charges against him. The Committee observes that, although no interpreter
was present during the arrest, it is wholly unreasonable to argue that the
author was unaware of the reasons for his arrest. In any event, he was
promptly informed, in his own language, of the charges held against him"
(annex X, sect. G, para. 9.2).
The Committee concluded that no violation of article 9, paragraph 2, had
occurred.
522. In communication No. 386/1989 (Kone v. Senegal), the author had been
arrested on 15 January 1982 and released on 9 May 1986; during this time no
trial date was set. The Committee concluded that the author's detention of
four years and four months was incompatible with the provisions of article
9, paragraph 3, that anyone arrested on a criminal charge shall be entitled
to trial within a reasonable time or release.
523. In communication No. 447/1991 (Shalto v. Trinidad and Tobago), the
author had been found guilty of murdering his wife. However, the Court of
Appeal, on 23 March 1983, quashed his conviction and ordered a retrial.
The author remained in detention until the retrial, which started on 20
January 1987. The Committee found that the author's detention for a period
of almost four years between the judgement of the Court of Appeal and the
beginning of the retrial could not be deemed compatible with the provisions
of article 9, paragraph 3.
(d)Treatment during imprisonment (Covenant, art. 10)
524. Article 10, paragraph 1, prescribes that all persons deprived of
their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person. Paragraph 2 of article 10 states
that accused persons shall be segregated from convicted persons, save in
exceptional circumstances, and that accused juvenile persons shall be
separated from adults. The Committee found a violation of article 10,
paragraphs 1 and 2, in case No. 493/1992 (Griffin v. Spain).
(e)Guarantees of a fair trial (Covenant, art. 14)
525. Article 14, paragraph 1, provides that all persons shall be equal
before the courts and gives everyone the right to a fair and public hearing
in the determination of criminal charges against him.
526. In case No. 514/1992 (Fei v. Colombia), the author, who had separated
from her husband and had subsequently left Colombia and taken up residence
in Italy, was engaged in procedures before the Colombian courts concerning
visiting rights and custody of her two children. She claimed that the
proceedings had been deliberately delayed by the Colombian judicial
authorities. The Committee observed that the concept of "fair trial"
includes also other elements than those of impartiality and independence of
the judicial authorities:
"Among these ... are the respect for the principles of equality of arms, of
adversary proceedings and of expeditious proceedings. In the present case,
the Committee is not satisfied that the requirement of equality of arms and
of expeditious procedure have been met. It is noteworthy that every court
action instituted by the author took several years to adjudicate - and
difficulties in communication with the author, who does not reside in the
State party's territory, cannot account for such delays, as she had secured
legal representation in Colombia. The State party has failed to explain
these delays. On the other hand, actions instituted by the author's ex-
husband and by or on behalf of her children were heard and determined
considerably more expeditiously. As the Committee has noted in its
admissibility decision, the very nature of custody proceedings or
proceedings concerning access of a divorced parent to his children requires
that the issues complained of be adjudicated expeditiously. In the
Committee's opinion, given the delays in the determination of the author's
actions, this has not been the case" (annex X, sect. J, para. 8.4).
527. Article 14, paragraph 3 (c), gives every accused person the right to
be tried without undue delay. In case No. 447/1991 (Shalto v. Trinidad and
Tobago), the Committee found that the delay of almost four years between
the judgement of the Court of Appeal ordering a retrial and the beginning
of the retrial could not be deemed compatible with this provision. In case
No. 473/1991 (Barroso v. Panama), the Committee found a violation of
article 14, paragraph 3 (c), because of a delay of over three and a half
years between indictment and trial.
528. Pursuant to article 14, paragraph 3 (e), an accused person shall have
the right to examine, or have examined, the witnesses against him and to
obtain the attendance and examination of witnesses on his behalf under the
same conditions as witnesses brought against him. In communication No.
536/1993 (Perera v. Australia), which was declared inadmissible by the
Committee, the author complained that his defence lawyer had not called a
certain witness for his defence. The Committee considered:
"that the State party cannot be held accountable for alleged errors made by
a defence lawyer, unless it was or should have been manifest to the judge
that the lawyer's behaviour was incompatible with the interests of justice"
(annex XI, sect. G, para. 6.3).
529. In case Nos. 464/1991 and 482/1991 (Garfield and Andrew Peart v.
Jamaica), a statement made to the police by the main prosecution witness in
the evening after the murder for which the complainants were charged was
not made available to the defence. It was shown that the statement
materially differed from the statement at the preliminary hearing and at
the trial. In the specific circumstances of the case, the Committee
considered that the failure to make the statement available to the defence
had seriously obstructed the defence in its cross-examination of the
witness, thereby precluding a fair trial.
530. Article 14, paragraph 5, gives anyone convicted of a crime the right
to have his conviction and sentence reviewed by a higher tribunal according
to law. In case No. 536/1993 (Perera v. Australia), the Committee had
occasion to observe that article 14, paragraph 5, does not require that a
Court of Appeal proceed to a factual retrial, but that a Court conduct an
evaluation of the evidence presented at the trial and of the conduct of the
trial.
(f)Right to privacy (Covenant, art. 17)
531. Under article 17, paragraph 1, of the Covenant no one shall be
subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and
reputation. In case No. 453/1991 (Coeriel v. the Netherlands), the
Committee had to determine whether article 17 protected the right to choose
and change one's own name. The authors of the communication had requested
a change of surname in order to enable them to pursue their religious Hindu
studies, which had been refused by the State party. The Committee
considered:
"that the notion of privacy refers to the sphere of a person's life in
which he or she can freely express his or her identity, be it by entering
into relationships with others or alone. The Committee is of the view that
a person's surname constitutes an important component of one's identity and
that the protection against arbitrary or unlawful interference with one's
privacy includes the protection against arbitrary or unlawful interference
with the right to choose and change one's own name. For instance, if a
State were to compel all foreigners to change their surnames, this would
constitute interference in contravention of article 17" (annex X, sect. D,
para. 10.2).
In the circumstances of the case, the Committee found that the refusal of
the authors' request to have their surnames changed was unreasonable and
therefore arbitrary within the meaning of article 17, paragraph 1, of the
Covenant. Two members of the Committee appended a dissenting individual
opinion to the Committee's finding of a violation.
(g)Freedom of expression (Covenant, art. 19)
532. Under article 19, paragraph 1, everyone has the right to hold
opinions without interference; paragraph 2 gives everyone the freedom of
expression. The rights provided for in article 19, paragraph 2, may be
subject to certain restrictions, but only as are provided by law and are
necessary for the protection of the rights or reputations of others or for
the protection of national security, public order (ordre public), or public
health or morals.
533. In case No. 518/1992 (Sohn v. the Republic of Korea), the author, a
labour union leader, had been arrested, charged and convicted for having
issued a statement of support for a strike at a shipyard. His conviction
was based on article 13 (2) of the Labour Dispute Adjustment Act, which
prohibits third-party intervention in labour disputes. The Committee
observed:
"that any restriction of the freedom of expression pursuant to paragraph 3
of article 19 must cumulatively meet the following conditions: it must be
provided for by law, it must address one of the aims enumerated in
paragraph 3 (a) and (b) of article 19, and must be necessary to achieve the
legitimate purpose. While the State party has stated that the restrictions
were justified in order to protect national security and public order and
that they were provided for by law, under article 13 (2) of the Labour
Dispute Adjustment Act, the Committee must still determine whether the
measures taken against the author were necessary for the purpose stated.
The Committee notes that the State party has invoked national security and
public order by reference to the general nature of the labour movement and
by alleging that the statement issued by the author in collaboration with
others was a disguise for the incitement to a national strike. The
Committee considers that the State party has failed to specify the precise
nature of the threat which it contends that the author's exercise of
freedom of expression posed and finds that none of the arguments advanced
by the State party suffice to render the restriction of the author's right
to freedom of expression compatible with paragraph 3 of article 19" (annex
X, sect. L, para. 10.4).
The Committee concluded that article 19 had been violated in the author's
case.
(h)The rights of the family and to marry (Covenant, art. 23)
534. Article 23 of the Covenant protects the family and the right to
marry. Paragraph 4 of the article provides that States parties should
ensure equality of rights and responsibilities of spouses as to marriage,
during marriage and at its dissolution. In the case of dissolution,
provision shall be made for the necessary protection of any children.
535. In case No. 514/1992 (Fei v. Colombia), the author, whose marriage
was dissolved, had been hindered in having regular contact with her
children. The Committee recalled its observations in case No. 201/1985
(Hendriks v. the Netherlands) that article 23, paragraph 4, grants, barring
exceptional circumstances, a right to regular contact between children and
both of their parents upon dissolution of a marriage. The unilateral
opposition of one parent generally does not constitute such an exceptional
circumstance. The Committee found that no special circumstances were
discernible in the case at hand which could justify that the mother was
virtually excluded from having access to her two daughters and it concluded
that there had been a violation of article 23, paragraph 4.
(i)The right of a minor to protection on the part of his family, society
and the State (Covenant, art. 24)
536. Article 24 of the Covenant provides that every child shall have,
without any discrimination, the right to such measures of protection as
required by his status as a minor, on the part of his family, society and
the State. The facts of case No. 400/1990 (Monaco de Gallicchio v.
Argentina) showed that the author's granddaughter disappeared, together
with her parents, in 1977, when she was nine years old. The grandmother
managed to locate her granddaughter in 1984; she was then living as the
adopted daughter of one S.S., who was subsequently charged with concealing
the whereabouts of a minor and forgery of documents. In January 1989, the
grandmother was granted provisional guardianship over the child, but denied
the right to represent the child in the various proceedings; S.S. was
granted visiting rights. On 11 August 1992, the adoption of the child by
S.S. was nullified. In 1993, the granddaughter's legal identity was
established.
537. Noting the long delay in the completion of the judicial proceedings,
the Committee, in the specific circumstances of the case, found:
"that the protection of children stipulated in article 24 of the Covenant
required the State party to take affirmative action to grant Ms. Vicario
prompt and effective relief from her predicament. In this context, the
Committee recalls its general comment on article 24, 28/ in which it
stressed that every child has a right to special measures of protection
because of his/her status as a minor; those special measures are additional
to the measures that States are required to take under article 2 to ensure
that everyone enjoys the rights provided for in the Covenant. Bearing in
mind the suffering already endured by Ms. Vicario, who lost both of her
parents under tragic circumstances imputable to the State party, the
Committee finds that the special measures required under article 24,
paragraph 1, of the Covenant, were not expeditiously applied by Argentina,
and that the failure to recognize the standing of Mrs. Monaco in the
guardianship and visitation proceedings and the delay in legally
establishing Ms. Vicario's real name and issuing identity papers also
entailed a violation of article 24, paragraph 2, of the Covenant, which is
designed to promote recognition of the child's legal personality" (annex X,
sect. B, para. 10.5).
(j)The right to vote and to be elected (Covenant, art. 25)
538. Article 25 (b) of the Covenant protects the right and the
opportunity, without any of the distinctions mentioned in article 2 of the
Covenant and without unreasonable restrictions, to vote and to be elected.
In case No. 500/1992 (Debreczeny v. the Netherlands), the author, a local
policeman, was elected to the municipal council, but was not allowed to
take his seat because under Dutch law the membership in the municipal
council was incompatible with employment as a civil servant in
subordination to local authorities. In its Views, the Committee notes that
while the right provided for by article 25 is not an absolute right,
restrictions of this right must be neither discriminatory nor unreasonable.
In the Committee's opinion, the application of the lawful restrictions to
the author did not constitute a violation of article 25 of the Covenant.
(k)The right to equality before the law and to equal protection by the law
and the prohibition of discrimination
539. Article 26 of the Covenant provides that all persons are equal before
the law and are entitled without any discrimination to the equal protection
of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against
discrimination.
540. In case No. 516/1992 (Simunek et al. v. the Czech Republic), the
authors had left their country (Czechoslovakia) for political reasons and
had had their property confiscated. A law enacted in 1991 provided for
restitution or compensation for confiscations carried out by the Communist
Government, but excluded non-residents and non-Czech citizens. The authors
argued that the application of this law violated their rights under article
26. The Committee considered that:
"In examining whether the conditions for restitution or compensation are
compatible with the Covenant, the Committee must consider all relevant
factors, including the authors' original entitlement to the property in
question and the nature of the confiscations. The State party itself
acknowledges that the confiscations were discriminatory, and this is the
reason why specific legislation was enacted to provide for a form of
restitution. The Committee observes that such legislation must not
discriminate among the victims of the prior confiscations, since all
victims are entitled to redress without arbitrary distinctions. Bearing in
mind that the authors' original entitlement to their respective properties
was not predicated either on citizenship or residence, the Committee finds
that the conditions of citizenship and residence in Act 87/1991 are
unreasonable. In this connection the Committee notes that the State party
has not advanced any grounds which would justify these restrictions.
Moreover, it has been submitted that the authors and many others in their
situation left Czechoslovakia because of their political opinions and that
their property was confiscated either because of their political opinions
or because of their emigration from the country. These victims of
political persecution sought residence and citizenship in other countries.
Taking into account that the State party itself is responsible for the
departure of the authors, it would be incompatible with the Covenant to
require them permanently to return to the country as a prerequisite for the
restitution of their property or for the payment of appropriate
compensation.
"The State party contends that there is no violation of the Covenant
because the Czech and Slovak legislators had no discriminatory intent at
the time of the adoption of Act 87/1991. The Committee is of the view,
however, that the intent of the legislature is not alone dispositive in
determining a breach of article 26 of the Covenant. A politically
motivated differentiation is unlikely to be compatible with article 26. But
an act which is not politically motivated may still contravene article 26
if its effects are discriminatory" (annex X, sect. K, paras. 11.6 and
11.7).
Consequently, the Committee found a violation of article 26 in the authors'
case.
(l)The right of persons belonging to minorities to enjoy their own culture,
to profess and practise their own religion, or to use their own language
(Covenant, art. 27)
541. Article 27 of the Covenant protects the right of persons belonging to
minorities to enjoy their own culture, to profess and practise their own
religion, or to use their own language. In case No. 511/1992 (Lansman et
al. v. Finland), the authors, who belonged to a local Sami community,
argued that the quarrying going on in their area interfered with their
reindeer husbandry. In its Views, the Committee recalled that economic
activities may come within the ambit of article 17 if they are an essential
element of the culture of an ethnic community:
"The right to enjoy one's culture cannot be determined in abstracto but
has to be placed in context. In this connection, the Committee observes
that article 27 does not only protect traditional means of livelihood of
national minorities, as indicated in the State party's submission.
Therefore, the fact that the authors may have adapted their methods of
reindeer-herding over the years and may practise it with the help of modern
technology does not prevent them from invoking article 27 of the Covenant"
(annex X, sect. I, para. 9.3).
In the specific circumstances of the case, the Committee concluded that the
quarrying which had taken place did not constitute a denial of the authors'
right to enjoy their own culture. The Committee noted, however, that if
mining activities were to be approved on a large scale in the future, this
might constitute a violation of the authors' rights under article 27. The
Committee stated that the State party was under a duty to keep this in mind
when either extending existing contracts or granting new ones.
F. Remedies called for under the Committee's Views
542. The Committee's decisions on the merits are referred to as "Views" in
article 5, paragraph 4, of the Optional Protocol. After the Committee has
made a finding of a violation of a provision of the Covenant, it proceeds
to ask the State party to take appropriate steps to remedy the violation.
For instance, in the period covered by the present report, the Committee,
in a case concerning custody and children's rights, found as follows:
"In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
remedy. In the Committee's opinion, this entails guaranteeing the author's
regular access to her daughters, and that the State party ensure that the
terms of the judgments in the author's favour are complied with. The State
party is under an obligation to ensure that similar violations do not occur
in the future" (annex X, sect. J, para. 10).
The Committee further observed that:
"Bearing in mind that, by becoming a party to the Optional Protocol, the
State party has recognized the competence of the Committee to determine
whether there has been a violation of the Covenant or not and that,
pursuant to article 2 of the Covenant, the State party has undertaken to
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant and to provide an
effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to the Committee's
Views" (annex X, sect. J, para. 11).
G. Non-cooperation by States parties
543. The following States have offered no cooperation in the Committee's
consideration of communications under the Optional Protocol relating to
them: Central African Republic, Dominican Republic, Equatorial Guinea and
Zaire.
IX. FOLLOW-UP ACTIVITIES UNDER THE OPTIONAL PROTOCOL
544. From its seventh session, in 1979, to its fifty-fourth session, in
July 1994, the Human Rights Committee has adopted 208 Views on
communications received and considered under the Optional Protocol. The
Committee has found violations in 154 of them. For many years, however,
the Committee was informed by States parties in only a limited number of
cases of any measures taken by them to give effect to the Views adopted.
Because of lack of knowledge about State party compliance with its
decisions, the Committee has devised a mechanism that should enable it to
evaluate State party compliance with its Views.
545. During its thirty-ninth session (July 1990), following a thorough
debate on the Committee's competence to engage in follow-up activities, the
Committee established a procedure for monitoring the follow-up to its Views
under article 5, paragraph 4, of the Optional Protocol. At the same time,
the Committee created the mandate of Special Rapporteur for the follow-up
on Views. His mandate is spelt out in annex XI of the Committee's report to
the General Assembly at its forty-fifth session. 29/ From the thirty-ninth
(July 1990) to the forty-seventh (March 1993) session, the late Mr. Janos
Fodor acted as Special Rapporteur for the follow-up on Views. At the
forty-seventh session (March 1993), Mr. Andreas Mavrommatis was appointed
Special Rapporteur for follow-up on Views. His mandate was extended for
another two years at the fifty-third session (March 1995). During its
fifty-first session the Committee adopted a new rule of procedure, rule 95,
which spells out the mandate of the Special Rapporteur. 30/
546. Pursuant to his mandate, the Special Rapporteur has requested follow-
up information from States parties since the autumn of 1990. Follow-up
information has systematically been requested in respect of all Views with
a finding of a violation of the Covenant. At the beginning of the
Committee's fifty-fourth session, follow-up information had been received
in respect of 81 Views. No information had been received in respect of 62
Views; in five cases, the deadline for receipt of follow-up information had
not yet expired. It may be noted that in many instances, the Secretariat
has also received information from authors to the effect that the
Committee's Views had not been implemented. Conversely, in some rare
instances, the author of a communication has informed the Committee that
the State party did give effect to the Committee's recommendations, whereas
the State party did not provide this information.
547. There are certain difficulties in attempting to categorize follow-up
replies. By the beginning of the fifty-fourth session, it transpired that
approximately 30 per cent of the replies received were satisfactory in that
they displayed a willingness on the part of the State party to implement
the Committee's Views or to offer the applicant an appropriate remedy.
Many replies simply indicated that the victim had failed to file a claim
for compensation within the statutory deadlines and that, therefore, no
compensation could be paid to the victim. Another category of replies
cannot be considered fully satisfactory in that they either did not address
the Committee's recommendations at all or merely related to one aspect
thereof.
548. The remainder of the replies either explicitly challenged the
Committee's findings on factual or on legal grounds (nine replies),
indicated that the State party would not, for one reason or another, give
effect to the Committee's recommendations (nine replies), promised an
investigation of the matter considered by the Committee or constituted much
belated submissions on the merits of the case.
549. A country-by-country breakdown of follow-up replies received or
requested and outstanding as of 28 July 1995 gives the following picture:
Argentina1 decision finding violations, follow-up deadline not yet
expired.
Australia1 decision finding violations (preliminary), follow-up reply
received.
Austria1 decision finding violations (unsatisfactory), follow-up reply
received.
Bolivia2 Views finding violations, no follow-up reply received.
Cameroon1 decision finding violations, no follow-up reply received.
Canada6 Views finding violations, 3 fully satisfactory follow-up replies,
2 (incomplete) follow-up replies, no follow-up reply in 1 case.
Central African Republic1 decision finding violations, no follow-up reply
received.
Colombia7 Views finding violations, 6 follow-up replies challenging the
Committee's findings or amounting to late submissions on the merits;
deadline for follow-up submission not expired in 1 case.
Dominican Republic3 Views finding violations, 1 follow-up reply, no
replies in 2 cases.
EcuadorThree Views finding violations, 1 follow-up reply received, no
replies received in 2 cases.
Equatorial Guinea2 Views finding violations, no follow-up reply received.
Finland4 Views finding violations, follow-up replies received in all 4
cases.
France1 decision finding violations, no follow-up reply received.
HungaryOne decision finding violations (preliminary), follow-up reply
received.
Jamaica37 Views finding violations, 9 follow-up replies received, all
indicating that the State party will not implement the Committee's
recommendations; no follow-up reply in 18 cases.
Libyan Arab Jamahiriya1 decision finding violations, no follow-up reply
received.
Madagascar4 Views finding violations, no follow-up reply received.
Mauritius1 decision finding violations, follow-up reply received.
Netherlands4 Views finding violations, follow-up replies received in all
4 cases.
Nicaragua1 View finding violations, no follow-up reply received.
Panama1 decision finding violations, no follow-up reply received.
Peru4 Views finding violations, follow-up replies indicating that Views
were passed on to the Supreme Court for action in 2 cases, no followup
replies received in 2 cases.
Senegal1 decision finding violations, follow-up reply received.
Spain1 decision finding violations, follow-up reply received.
Suriname8 Views finding violations, no follow-up reply received.
Trinidad and Tobago3 Views finding violations, 1 follow-up reply
received, no follow-up reply in 1 case, followup deadline in 1 case not yet
expired.
Uruguay45 Views finding violations, 43 follow-up replies received, no
follow-up replies in 2 cases.
Venezuela1 decision finding violations, follow-up reply received.
Zaire9 Views finding violations, no follow-up reply received.
Zambia2 Views finding violations, 1 complete and 1 (preliminary) follow-
up reply received.
550. The overall results of the first five years of experience with the
follow-up procedure are encouraging, yet they cannot be termed fully
satisfactory. Some States parties replying under the follow-up procedure
have indeed argued that they are implementing the Committee's Views by, for
example, releasing from detention victims of human rights violations, by
granting the victim compensation for the violations suffered, by amending
legislation found incompatible with the provisions of the Covenant, or by
offering the complainant other forms of remedies. Some States parties have
acted on the Committee's Views and granted or offered some form of remedy
but failed to inform the Committee accordingly.
551. On the other hand, a number of States parties have indicated that
compensatory payments to the victim or victims were made ex gratia, notably
where the domestic legal system does not provide for compensation in a
different manner, or that a remedy was offered ex gratia. This, for
example, was the argument of the Government of the Netherlands in its
follow-up replies on the Committee's Views in respect of communications No.
305/1988 (Hugo van Alphen v. Netherlands) and No. 453/1991 (Coeriel v. the
Netherlands).
552. The Committee is equally aware that the absence of specific enabling
legislation is a crucial factor which often stands in the way of monetary
compensation to victims of violations of the Covenant. This argument was,
for example, adduced by the Government of Austria in its follow-up reply on
the Views in case No. 415/1990 (Pauger v. Austria), and by the Government
of Senegal in its follow-up reply on the Views in case No. 386/1989 (Kone
v. Senegal). The Committee commends those States parties which have
compensated victims of violations of the Covenant; it encourages States
parties to consider the adoption of specific enabling legislation and,
pending this, to make ex gratia payments by way of compensation.
553. In the case of Peru, where enabling legislation does exist, the
Committee considered whether it was appropriate to treat the complaint of
the author of communication No. 203/1986 (Munoz Hermosa v. Peru),
contending that the Committee's Views had not been implemented by the
Peruvian courts, as a new case under the Optional Protocol. The Committee
concluded that, on balance, the author's contention that the State party
had failed to provide him with a remedy should be examined in the context
of the follow-up procedure.
554. Since it began to discuss follow-up matters in 1990, the Committee
has carefully examined and analysed all the information gathered through
the followup procedure. Between the forty-first and fiftieth sessions, it
considered follow-up information on a confidential basis. Periodic reports
on follow-up activities (so-called "progress reports") were not made
public, and the discussions on follow-up issues took place in closed
meetings.
555. At the same time, however, the Committee acknowledged that publicity
for follow-up activities would be the most appropriate means for making the
procedure more effective. Thus, publicity for follow-up activities would
not only be in the interest of victims of violations of the Covenant's
provisions, but could also serve to enhance the authority of the
Committee's Views and provide an incentive for States parties to implement
them. The reaction of States parties to the increased publicity and
visibility of follow-up activities since the publication of the last Annual
Report, and the interest of academic and non-governmental institutions in
the follow-up procedure, has reinforced the Committee's resolve to continue
to give publicity to the procedure.
556. During its forty-seventh session in March-April 1993, the Committee
agreed in principle that information on follow-up activities should be made
public. Discussions on this issue have been held regularly since then.
During the fiftieth session in March 1994, the Committee formally adopted a
number of decisions concerning the effectiveness and publicity of the
follow-up procedure. These decisions were the following:
(a) Every form of publicity will be given to follow-up activities;
(b) Annual Reports shall include a separate and highly visible chapter
on follow-up activities under the Optional Protocol. This should clearly
convey to the public which States have cooperated and which States have
failed to cooperate with the Special Rapporteur for the follow-up on Views.
Paragraph 547 above conveys which States parties have and which have not
provided follow-up information or cooperated with the Special Rapporteur
for the follow-up on Views;
(c) Reminders shall be sent to all States parties which have failed to
provide follow-up information. Thus, between December 1994 and June 1995,
some 65 follow-up reminders were sent to States which had failed to reply
to requests for follow-up information from the Special Rapporteur. As a
result of these reminders, some States did formulate follow-up replies and
forward them to the Special Rapporteur;
(d) Press communiques will be issued once a year after the summer
session of the Committee, highlighting both positive and negative
developments concerning the Committee's and the Special Rapporteur's
follow-up activities;
(e) The Committee welcomes information which non-governmental
organizations might wish to submit as to what measures States parties have
taken, or failed to take, in respect of the implementation of the
Committee's Views;
(f) The Special Rapporteur and members of the Committee should, as
appropriate, establish contacts with particular Governments and permanent
missions to the United Nations to make further inquiries about the
implementation of the Committee's Views. Following the fifty-second
session, Committee member Julio Prado Vallejo had contacts with government
authorities in Colombia and Peru, during which the question of follow-up to
some of the Committee's Views was raised. During the fifty-third session
of the Committee (March-April 1995), the Special Rapporteur met with the
Permanent Representatives of Colombia, Suriname and Zambia to discuss what
the Governments concerned might be prepared to do to give effect to the
Committee's Views adopted in respect of those States. The Special
Rapporteur regrets that, during the same session, he was unable to
establish direct contacts with the Permanent Missions of Equatorial Guinea
and Zaire;
(g) The Committee should draw the attention of States parties, at their
biannual meetings, to the failure of certain States to implement the
Committee's Views and to cooperate with the Special Rapporteur in providing
information on the implementation of Views.
Follow-up mission by the Special Rapporteur to Jamaica, June 1995
557. In accordance with his mandate under rule 95 of the rules of
procedure, the Special Rapporteur conducted his first mission in the
context of the follow-up procedure. From 24 to 30 June 1995, he visited
Jamaica and held discussions with the Jamaican Government, judicial
authorities, and non-governmental organizations.
558. During his mission, the Special Rapporteur had the opportunity to
meet many government officials and representatives of the judiciary and the
penitentiary system, as well as the Governor-General of Jamaica. He
appreciates the spirit of cooperation and the frankness of the exchanges
which characterized the entire mission.
559. The Special Rapporteur thoroughly discussed the status of
implementation of the Committee's Views adopted in respect of Jamaica with
the authorities. He was informed of the constitutional and legal
constraints which have tended to make it difficult for the State party to
implement fully the Committee's Views. None the less, many death sentences
had recently been commuted, and the Minister for Foreign Affairs pledged
full cooperation with the Committee and the Special Rapporteur under the
follow-up procedure.
560. At other levels, the Special Rapporteur was told that the Jamaican
Government considers the Committee's Views to be mere recommendations,
thereby implying a reluctance to comply with the Views. The Special
Rapporteur did indicate, while acknowledging the State party's readiness to
"consider" the Committee's Views, that compliance with its Views still left
much to be desired.
561. Finally, the Special Rapporteur was able to ascertain the efforts
undertaken by the Jamaican Government to improve certain aspects of the
administration of justice. He was informed about efforts to improve prison
facilities in general and sanitary conditions in particular; about
improvements in the examination of allegations of prisoner abuse by wardens
and the payment of compensation to inmates, where appropriate; about
improvements relating to the availability of written judgements of the
Court of Appeal of Jamaica; about better medical care in the penitentiary
system; and about draft legislation currently under consideration which
would greatly improve the system of legal aid in capital cases. The
Special Rapporteur expresses his hope that these reforms or improvements
will be implemented and effected with all due speed.
562. On 25 July 1995, the Special Rapporteur reported to the Committee on
his mission to Jamaica. Following its discussion on the mission, the
Committee, noting the improved compliance by Jamaica with its Views,
requested the Special Rapporteur to continue his contacts with the
Government of Jamaica, with a view to ensuring that Jamaica achieves a
greater degree of compliance with the Committee's decisions. In this
context, the Special Rapporteur recalled that formal follow-up replies
remained outstanding in respect of 18 Views, and noted that the State party
had promised to forward the outstanding replies with all due speed.
Concern over instances of non-cooperation under the follow-up mandate
563. In spite of the progress in collecting follow-up information since
the adoption of the last Annual Report, the Committee and the Special
Rapporteur note with concern that a number of countries have either not
provided any follow-up information or have not replied to requests from the
Special Rapporteur. Those States which have not replied in respect of at
least two follow-up requests, or which have not replied to requests for
information in spite of two follow-up reminders, are: Bolivia (no reply in
respect of two cases); Dominican Republic (no reply in respect of two
cases); Equatorial Guinea (no reply in respect of two cases); France (no
follow-up reply in respect of one decision in spite of two reminders); Peru
(no reply in respect of two cases); Suriname (no reply in respect of eight
cases); Uruguay (no reply in respect of two cases); and Zaire (no reply in
respect of nine cases).
564. The Special Rapporteur urges these States parties and all those which
have failed to reply to his requests for follow-up information to do so in
a timely manner. In future Annual Reports, the Committee will single out
the worst cases of non-compliance with its Views and report on them
individually, should there be no reaction to further requests for follow-up
information.
565. The Committee reconfirms that it will keep the functioning of the
follow-up procedure under constant review. It has requested that at least
one follow-up mission per year be budgeted and scheduled by the Centre for
Human Rights in the years to come.
Notes
1/ Official Records of the General Assembly, Forty-ninth Session,
Supplement No. 40 (A/49/40), para. 14.
2/ Official Records of the General Assembly, Forty-ninth Session,
Supplement No. 40 (A/49/40), annex XI.
3/ Official Records of the General Assembly, Forty-ninth Session,
Supplement No. 40, (A/49/40), paras. 36 to 56.
4/ Official Records of the General Assembly, Thirty-sixth Session,
Supplement No. 40 (A/36/40), annex V.
5/ Ibid., Forty-fifth Session, Supplement No. 40 (A/45/40), vol. I,
para. 12.
6/ Ibid., Forty-sixth Session, Supplement No. 40 (A/46/40), paras. 21
and 32 and annex VII.
7/ Ibid., Forty-eighth Session, Supplement No. 40 (A/48/40), paras. 166-
182.
8/ Ibid., Forty-ninth Session, Supplement No. 40 (A/49/40), para. 61.
9/ At its 1382nd meeting (fifty-second session), held on 2 November
1994.
10/ At its 1382nd meeting (fifty-second session), held on 2 November
1994.
11/ At its 1383rd meeting (fifty-second session), held on 3 November
1994.
12/ At its 1383rd meeting (fifty-second session), held on 3 November
1994.
13/ At its 1411th meeting (fifty-third session), held on 5 April 1995.
14/ At its 1411th meeting (fifty-third session), held on 5 April 1995.
15/ At the 1412th meeting (fifty-third session) held on 5 April 1995.
16/ At its 1412th meeting (fifty-third session), held on 5 April 1995.
17/ At its 1414th meeting (fifty-third session), held on 5 April 1995.
18/ Consistent with the practice of the Committee, the State party's
expert, Mr. Buergenthal, did not take part in the formulation of these
comments.
19/ At the 1413th meeting (fifty-third session) held on 6 April 1995.
20/ At its 1440th meeting (fifty-fourth session), held on 26 July 1995.
21/ At its 1441st meeting (fifty-fourth session), held on 26 July 1995.
22/ At its 1440th meeting (fifty-fourth session), held on 26 July 1995.
23/ At its 1442nd meeting (fifty-fourth session), held on 27 July 1995.
24/ In accordance with the Committee's practice, the expert from the
State party, Mrs. Higgins, did not take part in the preparation of the
comments.
25/ The written observations setting out the view of the Government on
the Committee's General Comment No. 24(52) were submitted to the Chairman
of the Committee on 21 July 1995.
26/ At its 1443rd meeting (fifty-fourth session), held on 27 July 1995.
27/ See, inter alia, the judgement of the Judicial Committee of the
Privy Council dated 2 November 1993 (Pratt and Morgan v. Jamaica).
28/ General Comment No. 17, adopted at the thirty-fifth session of the
Committee in 1989.
29/ Official Records of the General Assembly, Forty-fifth Session,
Supplement No. 40 (A/45/40).
30/ Ibid., Forty-ninth Session, Supplement No. 40 (A/49/40), vol. I,
annex VI.
--Annex I
STATES PARTIES TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS AND TO THE OPTIONAL PROTOCOLS AND STATES WHICH HAVE MADE THE
DECLARATION UNDER ARTICLE 41 OF THE COVENANT AS AT 28 JULY 1995
Date of receipt of the
instrument of ratification
or accession (a)Date of entry into
State party or succession (d) force
A. States parties to the International Covenant
on Civil and Political Rights (131)
Afghanistan 24 January 1983 (a) 24 April 1983
Albania 4 October 1991 (a) 4 January 1992
Algeria 12 September 1989 12 December 1989
Angola10 January 1992 (a) 10 April 1992
Argentina 8 August 1986 8 November 1986
Armenia 23 June 1993 23 September 1993
Australia 13 August 1980 13 November 1980
Austria 10 September 1978 10 December 1978
Azerbaijan 13 August 1992 (a) 13 November 1992
Barbados 5 January 1973 (a) 23 March 1976
Belarus 12 November 1973 23 March 1976
Belgium 21 April 1983 21 July 1983
Benin12 March 1992 (a) 12 June 1992
Bolivia 12 August 1982 (a) 12 November 1982
Bosnia and
Herzegovina 1 September 1993 (d) 6 March 1992
Brazil24 January 1992 (a)24 April 1992
Bulgaria 21 September 1970 23 March 1976
Burundi 9 May 1990 (a) 9 August 1990
Cambodia 26 May 1992 (a) 26 August 1992
Cameroon 27 June 1984 (a) 27 September 1984
Canada 19 May 1976 (a) 19 August 1976
Cape Verde 6 August 1993 (a) 6 November 1993
Central African
Republic 8 May 1981 (a) 8 August 1981
Chad 9 June 1995 (a) 9 September 1995
Chile 10 February 1972 23 March 1976
Colombia 29 October 1969 23 March 1976
Congo 5 October 1983 (a) 5 January 1984
Costa Rica 29 November 1968 23 March 1976
Cote d'Ivoire 26 March 1992 (a) 26 June 1992
Croatia 12 October 1992 (d) 8 October 1991
Date of receipt of the
instrument of ratification
or accession (a)Date of entry into
State party or succession (d) force
Cyprus 2 April 1969 23 March 1976
Czech Republic 22 February 1993 (d) 1 January 1993
Democratic People's
Republic of Korea 14 September 1981 (a) 14 December 1981
Denmark 6 January 1972 23 March 1976
Dominica 17 June 1993 (a) 17 September 1993
Dominican Republic 4 January 1978 (a) 4 April 1978
Ecuador 6 March 1969 23 March 1976
Egypt 14 January 1982 14 April 1982
El Salvador 30 November 1979 29 February 1980
Equatorial Guinea 25 September 1987 (a) 25 December 1987
Estonia21 October 1991 (a)21 January 1992
Ethiopia 11 June 1993 (a) 11 September 1993
Finland 19 August 1975 23 March 1976
France 4 November 1980 (a) 4 February 1981
Gabon 21 January 1983 (a) 21 April 1983
Gambia 22 March 1979 (a) 22 June 1979
Georgia 3 May 1994 (a) 3 August 1994
Germany 17 December 1973 23 March 1976
Grenada 6 September 1991 (a) 6 December 1991
Guatemala 6 May 1992 (a) 5 August 1992
Guinea24 January 197824 April 1978
Guyana15 February 197715 May 1977
Haiti 6 February 1991 (a) 6 May 1991
Hungary 17 January 1974 23 March 1976
Iceland 22 August 1979 22 November 1979
India 10 April 1979 (a) 10 July 1979
Iran, Islamic
Republic of 24 June 1975 23 March 1976
Iraq 25 January 1971 23 March 1976
Ireland 8 December 1989 8 March 1990
Israel 3 October 1991 (a) 3 January 1992
Italy 15 September 1978 15 December 1978
Jamaica 3 October 1975 23 March 1976
Japan 21 June 1979 21 September 1979
Jordan 28 May 1975 23 March 1976
Kenya 1 May 1972 (a) 23 March 1976
Kyrgyzstan 7 October 1994 (a) 7 January 1995
Latvia 14 April 1992 (a) 14 July 1992
Lebanon 3 November 1972 (a) 23 March 1976
Lesotho 9 September 1992 (a) 9 December 1992
Libyan Arab
Jamahiriya 15 May 1970 (a) 23 March 1976
Date of receipt of the
instrument of ratification
or accession (a)Date of entry into
State party or succession (d) force
Lithuania20 November 1991 (a)20 February 1992
Luxembourg 18 August 1983 18 November 1983
Madagascar 21 June 1971 23 March 1976
Malawi 22 December 1993 (a) 22 March 1994
Mali 16 July 1974 (a) 23 March 1976
Malta 13 September 1990 (a) 13 December 1990
Mauritius 12 December 1973 (a) 23 March 1976
Mexico 23 March 1981 (a) 23 June 1981
Moldova, Republic of 26 January 1993 (a) 26 April 1993
Mongolia 18 November 1974 23 March 1976
Morocco 3 May 1979 3 August 1979
Mozambique 21 July 1993 (a) 21 October 1993
Namibia 28 November 1994 (a) 28 February 1995
Nepal 14 May 1991 14 August 1991
Netherlands 11 December 1978 11 March 1979
New Zealand 28 December 1978 28 March 1979
Nicaragua 12 March 1980 (a) 12 June 1980
Niger 7 March 1986 (a) 7 June 1986
Nigeria 29 July 1993 (a) 29 October 1993
Norway 13 September 1972 23 March 1976
Panama 8 March 1977 8 June 1977
Paraguay 10 June 1992 (a) 10 September 1992
Peru 28 April 1978 28 July 1978
Philippines 23 October 1986 23 January 1987
Poland 18 March 1977 18 June 1977
Portugal 15 June 197815 September 1978
Republic of Korea 10 April 1990 (a) 10 July 1990
Romania 9 December 1974 23 March 1976
Russian Federation16 October 197323 March 1976
Rwanda 16 April 1975 (a) 23 March 1976
Saint Vincent and
the Grenadines 9 November 1981 (a) 9 February 1982
San Marino 18 October 1985 (a) 18 January 1986
Senegal 13 February 1978 13 May 1978
Seychelles 5 May 1992 (a) 5 August 1992
Slovakia 28 May 1993 (d) 1 January 1993
Slovenia 6 July 1992 (d)25 June 1991
Somalia 24 January 1990 (a) 24 April 1990
Spain 27 April 1977 27 July 1977
Sri Lanka 11 June 1980 (a) 11 September 1980
Sudan 18 March 1986 (a) 18 June 1986
Date of receipt of the
instrument of ratification
or accession (a)Date of entry into
State party or succession (d) force
Suriname 28 December 1976 (a) 28 March 1977
Sweden 6 December 1971 23 March 1976
Switzerland 18 June 1992 (a) 18 September 1992
Syrian Arab Republic 21 April 1969 (a) 23 March 1976
The former Yugoslav
Republic of
Macedonia 18 January 1994 (d) 17 September 1991
Togo 24 May 1984 (a) 24 August 1984
Trinidad and Tobago 21 December 1978 (a) 21 March 1979
Tunisia 18 March 1969 23 March 1976
Uganda 21 June 1995 (a) 21 September 1995
Ukraine 12 November 1973 23 March 1976
United Kingdom of
Great Britain and
Northern Ireland 20 May 1976 20 August 1976
United Republic of
Tanzania 11 June 1976 (a) 11 September 1976
United States of
America 8 June 1992 8 September 1992
Uruguay 1 April 1970 23 March 1976
Venezuela 10 May 1978 10 August 1978
Viet Nam 24 September 1982 (a) 24 December 1982
Yemen 9 February 1987 (a) 9 May 1987
Yugoslavia 2 June 1971 23 March 1976
Zaire 1 November 1976 (a) 1 February 1977
Zambia 10 April 1984 (a) 10 July 1984
Zimbabwe 13 May 1991 (a) 13 August 1991
B. States parties to the Optional Protocol (84)
Algeria 12 September 1989 (a) 12 December 1990
Angola10 January 1992 (a) 10 April 1992
Argentina 8 August 1986 (a) 8 November 1986
Armenia 23 June 1993 23 September 1993
Australia 25 September 1991 (a) 25 December 1991
Austria 10 December 1987 10 March 1988
Barbados 5 January 1973 (a) 23 March 1976
Belarus 30 September 1992 (a) 30 December 1992
Belgium 17 May 1994 (a) 17 August 1994
Benin 12 March 1992 (a) 12 June 1992
Date of receipt of the
instrument of ratification
or accession (a)Date of entry into
State party or succession (d) force
Bolivia 12 August 1982 (a) 12 November 1982
Bosnia and
Herzegovina 1 March 1995 1 June 1995
Bulgaria 26 March 1992 (a) 26 June 1992
Cameroon 27 June 1984 (a) 27 September 1984
Canada 19 May 1976 (a) 19 August 1976
Central African
Republic 8 May 1981 (a) 8 August 1981
Chad 9 June 1995 (a) 9 September 1995
Chile 28 May 1992 (a) 28 August 1992
Colombia 29 October 1969 23 March 1976
Congo 5 October 1983 (a) 5 January 1984
Costa Rica 29 November 1968 23 March 1976
Cyprus 15 April 1992 15 July 1992
Czech Republic 22 February 1993 (d) 1 January 1993
Denmark 6 January 1972 23 March 1976
Dominican Republic 4 January 1978 (a) 4 April 1978
Ecuador 6 March 1969 23 March 1976
El Salvador 6 June 1995 6 September 1995
Equatorial Guinea 25 September 1987 (a) 25 December 1987
Estonia21 October 1991 (a)21 January 1992
Finland 19 August 1975 23 March 1976
France 17 February 1984 (a) 17 May 1984
Gambia 9 June 1988 (a) 9 September 1988
Georgia 3 May 1994 (a) 3 August 1994
Germany 25 August 1993 25 November 1993
Guinea 17 June 1993 17 September 1993
Guyana 10 May 1993 (a) 10 August 1993
Hungary 7 September 1988 (a) 7 December 1988
Iceland 22 August 1979 (a) 22 November 1979
Ireland 8 December 1989 8 March 1990
Italy 15 September 1978 15 December 1978
Jamaica 3 October 1975 23 March 1976
Kyrgyzstan 7 October 1994 (a) 7 January 1995
Latvia 22 June 1994 (a) 22 September 1994
Libyan Arab
Jamahiriya 16 May 1989 (a) 16 August 1989
Lithuania20 November 1991 (a)20 February 1992
Luxembourg 18 August 1983 (a) 18 November 1983
Madagascar 21 June 1971 23 March 1976
Malta 13 September 1990 (a) 13 December 1990
Mauritius 12 December 1973 (a) 23 March 1976
Mongolia 16 April 1991 (a) 16 July 1991
Date of receipt of the
instrument of ratification
or accession (a)Date of entry into
State party or succession (d) force
Namibia 28 November 1994 (a) 28 February 1995
Nepal 14 May 1991 (a) 14 August 1991
Netherlands 11 December 1978 11 March 1979
New Zealand 26 May 1989 (a) 26 August 1989
Nicaragua 12 March 1980 (a) 12 June 1980
Niger 7 March 1986 (a) 7 June 1986
Norway 13 September 1972 23 March 1976
Panama 8 March 1977 8 June 1977
Paraguay 10 January 1995 (a) 10 April 1995
Peru 3 October 1980 3 January 1981
Philippines 22 August 1989 (a) 22 November 1989
Poland 7 November 1991 (a) 7 February 1992
Portugal 3 May 1983 3 August 1983
Republic of Korea 10 April 1990 (a) 10 July 1990
Romania 20 July 1993 (a) 20 October 1993
Russian Federation 1 October 1991 (a) 1 January 1992
Saint Vincent and
the Grenadines 9 November 1981 (a) 9 February 1982
San Marino 18 October 1985 (a) 18 January 1986
Senegal 13 February 1978 13 May 1978
Seychelles 5 May 1992 (a) 5 August 1992
Slovakia 28 May 1993 1 January 1993
Slovenia 16 July 1993 (a) 16 October 1993
Somalia 24 January 1990 (a) 24 April 1990
Spain 25 January 1985 (a) 25 April 1985
Suriname 28 December 1976 (a) 28 March 1977
Sweden 6 December 1971 23 March 1976
the former Yugoslav
Republic of
Macedonia12 December 1994 (a)12 March 1995
Togo 30 March 1988 (a) 30 June 1988
Trinidad and Tobago 14 November 1980 (a) 14 February 1981
Ukraine 25 July 1991 (a) 25 October 1991
Uruguay 1 April 1970 23 March 1976
Venezuela 10 May 1978 10 August 1978
Zaire 1 November 1976 (a) 1 February 1977
Zambia 10 April 1984 (a) 10 July 1984
Date of receipt of the
instrument of ratification
or accession (a)Date of entry into
State party or succession (d) force
C. Status of the Second Optional Protocol aiming
at the abolition of the death penalty (28)
Australia 2 October 1990 (a) 11 July 1991
Austria 2 March 1993 2 June 1993
Denmark 24 February 1994 24 May 1994
Ecuador 23 February 1993 (a) 23 May 1993
Finland 4 April 1991 11 July 1991
Germany 18 August 1992 18 November 1992
Hungary 24 February 1994 (a) 24 May 1994
Iceland 2 April 1991 11 July 1991
Ireland 18 June 1993 (a) 18 September 1993
Italy 14 February 1995 14 May 1995
Luxembourg 12 February 1992 12 May 1992
Malta29 December 199429 March 1995
Mozambique 21 July 1993 (a) 21 October 1993
Namibia 28 November 1994 (a) 28 February 1995
Netherlands 26 March 1991 11 July 1991
New Zealand22 February 1990 11 July 1991
Norway 5 September 1991 5 December 1991
Panama 21 January 1993 (a) 21 April 1993
Portugal 17 October 1990 11 July 1991
Romania 27 February 1991 11 July 1991
Seychelles 15 December 1994 (a) 15 March 1995
Slovenia 10 March 1994 10 June 1994
Spain 11 April 1991 11 July 1991
Sweden 11 May 1990 11 July 1991
Switzerland 16 June 1994 (a) 16 September 1994
The former Yugoslav
Republic of
Macedonia26 January 1995 (a)26 April 1995
Uruguay 21 January 1993 21 April 1993
Venezuela 22 February 1993 22 May 1993
State party Valid from Valid until
D. States which have made the declaration under
article 41 of the Covenant (44)
Algeria 12 September 1989 Indefinitely
Argentina 8 August 1986 Indefinitely
Australia 28 January 1993 Indefinitely
Austria 10 September 1978 Indefinitely
Belarus 30 September 1992 Indefinitely
Belgium 5 March 1987 Indefinitely
Bosnia and
Herzegovina 6 March 1992 Indefinitely
Bulgaria 12 May 1993 Indefinitely
Canada 29 October 1979 Indefinitely
Chile 11 March 1990 Indefinitely
Congo 7 July 1989 Indefinitely
Czech Republic 1 January 1993 Indefinitely
Denmark 23 March 1976 Indefinitely
Ecuador 24 August 1984 Indefinitely
Finland 19 August 1975 Indefinitely
Gambia 9 June 1988 Indefinitely
Germany 28 March 1979 27 March 1996
Guyana 10 May 1993 Indefinitely
Hungary 7 September 1988 Indefinitely
Iceland 22 August 1979 Indefinitely
Ireland 8 December 1989 Indefinitely
Italy 15 September 1978 Indefinitely
Luxembourg 18 August 1983 Indefinitely
Malta 13 September 1990 Indefinitely
Netherlands 11 December 1978 Indefinitely
New Zealand 28 December 1978 Indefinitely
Norway 23 March 1976 Indefinitely
Peru 9 April 1984 Indefinitely
Philippines 23 October 1986 Indefinitely
Poland 25 September 1990 Indefinitely
Republic of Korea 10 April 1990 Indefinitely
Russian Federation 1 October 1991 Indefinitely
Senegal 5 January 1981 Indefinitely
Slovakia 1 January 1993 Indefinitely
Slovenia 6 July 1992 Indefinitely
Spain 25 January 1985 25 January 1993
Sri Lanka 11 June 1980 Indefinitely
Sweden 23 March 1976 Indefinitely
Switzerland 18 September 1992 18 September 1997
Tunisia 24 June 1993 Indefinitely
State party Valid from Valid until
Ukraine 28 July 1992 Indefinitely
United Kingdom of
Great Britain and
Northern Ireland 20 May 1976 Indefinitely
United States
of America 8 September 1992 Indefinitely
Zimbabwe 20 August 1991 Indefinitely
--Annex II
MEMBERS AND OFFICERS OF THE HUMAN RIGHTS COMMITTEE
1995-1996
A. Membership
Mr. Francisco Jose AGUILAR URBINA* Costa Rica
Mr. Nisuke ANDO** Japan
Mr. Prafullachandra NATWARLAL BAGHWATI** India
Mr. Tamas BAN* Hungary
Mr. Marco Tulio BRUNI CELLI* Venezuela
Mr. Thomas BUERGENTHAL** United States of America
Ms. Christine CHANET** France
Mr. Omran EL SHAFEI** Egypt
Ms. Elizabeth EVATT* Australia
Mr. Laurel FRANCIS* Jamaica
Ms. Rosalyn HIGGINS* United Kingdom of Great Britain
and Northern Ireland
Mr. Eckart KLEIN** Germany
Mr. David KRETZMER** Israel
Mr. Rajsoomer LALLAH* Mauritius
Mr. Andreas V. MAVROMMATIS* Cyprus
Ms. Cecilia Medina QUIROGA** Chile
Mr. Fausto POCAR* Italy
Mr. Julio PRADO VALLEJO** Ecuador
* Term expires on 31 December 1996.
** Term expires on 31 December 1998.
B. Officers
The officers of the Committee, elected for two-year terms at the 1387th
and 1399th meetings, held on 20 and 28 March 1995, are as follows:
Chairman: Mr. Francisco Jose AGUILAR URBINA
Vice-Chairmen: Mr. Prafullachandra NATWARLAL BAGHWATI
Mr. Tamas BAN
Mr. Omran EL SHAFEI
Rapporteur: Ms. Christine CHANET
Annex III
SUBMISSION OF REPORTS AND ADDITIONAL INFORMATION BY STATES PARTIES
UNDER ARTICLE 40 OF THE COVENANT DURING THE PERIOD UNDER REVIEW 1/
Date of
written reminder(s)
sent,
during the period
under
review, to States
Type of Date of whose
reports have not yet
State party report Date due submission
been submitted
Afghanistan Third 23 April 1994 Not yet received -Albania Initial 3
January 1993 Not yet received (4) 12 December 1994
(5) 29 June 1995
Angola Initial 2/ 9 April 1993 Not yet received -Armenia Initial 22
September 1994 Not yet received (1) 12 December 1994
(2) 29 June 1995
Australia Third 12 November 1991 Not yet received (6) 12 December 1994
(7) 29 June 1995
Austria Third 9 April 1993 Not yet received (3) 12 December 1994
(4) 29 June 1995
Barbados Third 11 April 1991 Not yet received (8) 12 December 1994
(9) 29 June 1995
Belarus Fourth 4 November 1993 11 April 1995 -Belgium Third 20 July
1994 Not yet received (1) 12 December 1994
(2) 29 June 1995
Benin Initial 11 June 1993 Not yet received (2) 29 June 1995
Bolivia Second 3/ 13 July 1990 Not yet received (8) 29 June 1995
Third 11 November 1994 Not yet received (1) 29 June 1995
Bosnia and Initial 5 March 1995 Not yet received (1) 29 June 1995
Herzegovina
Brazil Initial 23 April 1993 17 November 1994 -Bulgaria Third 4/ 31
December 1994 Not yet received (1) 29 June 1995
Cambodia Initial 25 August 1993 Not yet received (2) 12 December 1994
Canada Fourth 4 April 1995 Not yet received (1) 29 June 1995
Cape Verde Initial 5 November 1994 Not yet received (1) 29 June 1995
Central African Second 5/ 9 April 1989 Not yet received (11) 12
December 1994
Republic (12) 29 June 1995
Third 7 August 1992 Not yet received (5) 12 December 1994
(6) 29 June 1995
Chile Fourth 28 April 1994 Not yet received (1) 12 December 1994
(2) 29 June 1995
Congo Second 4 January 1990 Not yet received (10) 12 December 1994
(11) 29 June 1995
Third 4 January 1995 Not yet received (1) 29 June 1995
Date of
written reminder(s)
sent,
during the period
under
review, to States
Type of Date of whose
reports have not yet
State party report Date due submission
been submitted
Cote d'Ivoire Initial 25 June 1993 Not yet received (3) 12 December
1994
(4) 29 June 1995
Croatia Initial 7 October 1992 Not yet received (3) 12 December 1994
(4) 29 June 1995
Cyprus Third 18 August 1989 28 December 1994 -Czech Republic Initial
31 December 1993 Not yet received (1) 29 June 1995
Democratic Second 13 December 1987 Not yet received (14) 12 December
1994
People's Republic (15) 29 June 1995
of Korea
Third 13 December 1992 Not yet received (4) 12 December 1994
(5) 29 June 1995
Denmark Third 1 November 1990 7 April 1995 -Dominica Initial 16
September 1994 Not yet received (1) 12 December 1994
(2) 29 June 1995
Dominican Fourth 3 April 1994 Not yet received (2) 12 December 1994
Republic (3) 29 June 1995
Ecuador Fourth 4 November 1993 Not yet received (3) 12 December 1994
(4) 29 June 1995
Egypt Third 6/ 31 December 1994 Not yet received (1) 29 June 1995
El Salvador Third 7/ 28 February 1991 - -Equatorial Initial 24
December 1988 Not yet received (12) 12 December 1994
Guinea (13) 29 June 1995
Second 24 December 1993 Not yet received (2) 12 December 1994
(3) 29 June 1995
Estonia Initial 20 January 1993 27 September 1994 -Ethiopia Initial
10 September 1994 Not yet received (1) 12 December 1994
(2) 29 June 1995
Finland Fourth 18 August 1994 Not yet received (1) 12 December 1994
(2) 29 June 1995
France Third 3 February 1992 Not yet received (6) 12 December 1994
Gabon Initial 20 April 1984 Not yet received (21) 12 December 1994
(22) 29 June 1995
Second 20 April 1989 Not yet received (11) 12 December 1994
(12) 29 June 1995
Third 20 April 1994 Not yet received (2) 12 December 1994
(3) 29 June 1995
Gambia Second 21 June 1985 Not yet received (20) 12 December 1994
(21) 29 June 1995
Third 21 June 1990 Not yet received (9) 12 December 1994
(10) 29 June 1995
Date of
written reminder(s)
sent,
during the period
under
review, to States
Type of Date of whose
reports have not yet
State party report Date due submission
been submitted
Germany Fourth 3 August 1993 Not yet received (3) 12 December 1994
(4) 29 June 1995
Grenada Initial 5 December 1992 Not yet received (4) 12 December 1994
(5) 29 June 1995
Guatemala Initial 4 August 1993 7 December 1994 -Guinea Third 31
December 1994 Not yet received (1) 29 June 1995
Guyana Second 10 April 1987 Not yet received (16) 12 December 1994
(17) 29 June 1995
Third 10 April 1992 Not yet received (6) 12 December 1994
(7) 29 June 1995
Haiti Initial 8/ 5 May 1992 - -Iceland Third 31 December 1994 23
March 1995 -India Third 9/ 31 March 1992 Not yet received (6) 12
December 1994
(7) 29 June 1995
Iran (Islamic Third 10/ 31 December 1994 Not yet received (1) 29 June
1995
Republic of)
Iraq Fourth 4 April 1995 Not yet received -Israel Initial 2 January
1993 Not yet received (4) 12 December 1994
(5) 29 June 1995
Jamaica Second 1 August 1986 Not yet received (16) 12 December 1994
(15) 29 June 1995
Third 1 August 1991 Not yet received (7) 12 December 1994
(8) 29 June 1995
Kenya Second 11 April 1986 Not yet received (18) 12 December 1994
(19) 29 June 1995
Third 11 April 1991 Not yet received (8) 12 December 1994
(9) 29 June 1995
Latvia Initial 13 April 1993 26 September 1994 -Lebanon Second 21
March 1986 Not yet received (19) 12 December 1994
(20) 29 June 1995
Third 21 March 1988 Not yet received (14) 12 December 1994
(15) 29 June 1995
Fourth 21 March 1993 Not yet received (2) 12 December 1994
(3) 29 June 1995
Lesotho Initial 8 December 1994 Not yet received (1) 29 June 1995
Lithuania Initial 19 February 1993 Not yet received (4) 12 December
1994
(5) 29 June 1995
Libyan Arab Third 11/ 4 February 1988 - -
Jamahiriya
Date of
written reminder(s)
sent,
during the period
under
review, to States
Type of Date of whose
reports have not yet
State party report Date due submission
been submitted
Luxembourg Third 17 November 1994 Not yet received (1) 29 June 1994
Madagascar Third 12/ 31 July 1992 Not yet received (5) 12 December 1994
(6) 29 June 1995
Fourth 3 August 1993 Not yet received (3) 12 December 1994
(4) 29 June 1995
Malawi Initial 21 March 1995 Not yet received (1) 29 June 1995
Mali Second 11 April 1986 Not yet received (18) 12 December 1994
(19) 29 June 1995
Third 11 April 1991 Not yet received (8) 12 December 1994
(9) 29 June 1995
Mauritius Third 18 July 1990 2 June 1995 - Fourth 4 November 1993 -
-Mongolia Fourth 4 April 1995 Not yet received (1) 29 June 1995
Mozambique Initial 20 October 1994 Not yet received (1) 12 December
1994
(2) 29 June 1995
Netherlands Third 31 October 1991 6 February 1995 -Nicaragua Third
11 June 1991 Not yet received (7) 12 December 1994
(8) 29 June 1995
Niger Second 1_?h_1R2D/ 31 March 1994 Not yetreceived (2) 12December 1994
(3) 29 June 1995
Nigeria Initial 28 October 1994 Not yet received (1) 12 December 1994
(2) 29 June 1995
Panama Third 14/ 31 March 1992 Not yet received (6) 12 December 1994
(7) 29 June 1995
Fourth 6 June 1993 Not yet received (3) 12 December 1994
(4) 29 June 1995
Peru Third 9 April 1993 24 October 1994 -Philippines Second 22
January 1993 Not yet received (4) 12 December 1994
(5) 29 June 1995
Poland Fourth 27 October 1994 Not yet received (1) 12 December 1994
(2) 29 June 1995
Portugal Third 1 August 1991 Not yet received (7) 12 December 1994
Republic of Initial 25 April 1994 Not yet received (1) 12 December 1994
Moldova (2) 29 June 1995
Romania Fourth 31 December 1994 Not yet received (1) 29 June 1995
Russian Fourth 4 November 1993 27 September 1994 -Federation
Rwanda 2/ Third 10 April 1992 Not yet received -
Date of written reminder(s)
sent,
during the period
_1_?h_1R2D States
Type of Date of whose
reports have not yet
State party report Date due submission
been submitted
Saint Vincent and Second 15/ 31 October 1991 Not yet received (7) 12
December 1994
the Grenadines (8) 29 June 1995
Third 8 February 1993 Not yet received (4) 12 December 1994
(5) 29 June 1995
San Marino Second 17 January 1992 Not yet received (6) 12 December 1994
(7) 29 June 1995
Senegal Fourth 4 April 1995 Not yet received (1) 29 June 1995
Seychelles Initial 4 August 1993 Not yet received (3) 12 December 1994
(4) 29 June 1995
Slovakia Initial 31 December 1993 Not yet received (1) 29 June 1995
Slovenia Initial 24 June 1992 1 October 1993 -Somalia Initial 23
April 1991 Not yet received (7) 12 December 1994
(8) 29 June 1995
Sudan Second 17 June 1992 Not yet received (4) 12 December 1994
(5) 29 June 1995
Suriname Second 2 August 1985 Not yet received (19) 12 December 1994
(20) 29 June 1995
Third 2 August 1990 Not yet received (9) 12 December 1994
(10) 29 June 1995
Sweden Fourth 5 December 1994 1R2Der 1994 -Switzerland Initial 17
September 1993 24 February 1995 -Syrian Arab Second 18 August 1984 Not
yet received (22) 12 December 1994
Republic (23) 29 June 1995
Third 18 August 1989 Not yet received (11) 12 December 1994
(12) 29 June 1995
Fourth 18 August 1994 Not yet received (1) 12 December 1994
(2) 29 June 1995
The former Initial 6 September 1992 Not yet received (1) 29 June 1995
Yugoslav Republic
of Macedonia
Trinidad and Third 20 March 1990 Not yet received (10) 12 December 1994
Tobago (11) 29 June 1995
Fourth 20 March 1995 Not yet received (1) 29 June 1995
United Kingdom of Fourth 19 May 1994 14 October 1994 -of Great Britain
Northern Ireland
United Republic Third 16/ 31 December 1993 Not yet received (2) 12
December 1994
of Tanzania (3) 29 June 1995
Uruguay Fourth 31 December 1994 Not yet received (1) 29 June 1995
Date of
written reminder(s)
sent,
during the period
under
review, to States
Type of Date of whose
reports have not yet_1_?h_1R2Dty report Date due
submission been submitted
Venezuela Third 17/ 31 December 1993 Not yet received (2) 12 December
1994
(3) 29 June 1995
Viet Nam Second 18/ 31 July 1991 Not yet received (7) 12 December 1994
(8) 29 June 1995
Third 23 December 1993 Not yet received (2) 12 December 1994
(3) 29 June 1995
Yugoslavia Fourth 3 August 1993 Not yet received (3) 12 December 1994
(4) 29 June 1995
Zaire Third 19/ 31 July 1991 Not yet received (7) 12 December 1994
(8) 29 June 1995
Zambia Second 9 July 1990 27 January 1995 -Zimbabwe Initial 12 August
1992 Not yet received (5) 12 December 1994
(6) 29 June 1995
Notes
1/ From 1 August 1994 to 29 July 1995 (end of the fifty-fourth session).
2/ Notes verbales have been sent to Angola and Rwanda on 12 December
1994 and 23 June 1995, as reminders t_1_?h_1R2Dal report pursuant to a
special decision taken by the Committee.
3/ At its thirty-sixth session (914th meeting), the Committee decided to
extend the deadline for the submission of the second periodic report of
Bolivia from 11 November 1988 to 13 July 1990.
4/ At its forty-eighth session (1258th meeting), the Committee decided
to extend the deadline for the submission of the third periodic report of
Bulgaria from 28 April 1989 to 31 December 1994.
5/ At its thirty-second session (794th meeting), the Committee decided
to extend the deadline for the submission of the second periodic report of
the Central African Republic from 7 August 1987 to 9 April 1989.
6/ At its forty-eighth session (1258th meeting), the Committee decided
to extend the deadline for the submission of the third periodic report of
Egypt from 13 April 1993 to 31 December 1994.
7/ Pursuant to a decision taken by the Committee at its fiftieth session
(1319th meeting), the new date for the submission of the third periodic
report of El Salvador is 31 December 1995.
8/ Pursuant to a decision taken by the Committee at its fifty-third
session (1415th meeting), the new date for the submission of the initial
report of Haiti is 31 December 1996.
9/ At its forty-first session (1062nd meeting), the Committee decided
to extend the deadline for the submission of the third periodic report of
India from 9 July 1990 to 31 March 1992.
10/ At its forty-eighth session (1258th meeting), the Committee decided
to extend the deadline for the submission of the third periodic report of
the Islamic Republic of Iran from 21 March 1988 to 31 December 1994.
11/ Pursuant to a dec_1_?h_1R2Dhe Committee at its fifty-second session
(1386th meeting), the new date for the submission of the third periodic
report of the Libyan Arab Jamahiriya is 31 December 1995.
12/ At its forty-third session (1112th meeting), the Committee decided
to extend the deadline for the submission of the third periodic report of
Madagascar from 3 August 1988 to 31 July 1992.
13/ At its forty-seventh session (1215th meeting), the Committee decided
to extend the deadline for the submission of the second periodic report of
Niger from 6 June 1992 to 31 March 1994.
14/ At its forty-first session (1062nd meeting), the Committee decided
to extend the deadline for the submission of the third periodic report of
Panama from 6 June 1988 to 31 March 1992.
15/ At its thirty-eighth session (973rd meeting), the Committee decided
to extend the deadline for the submission of the second periodic report of
Saint Vincent and the Grenadines from 8 February 1988 to 31 October 1991.
16/ At its forty-sixth session (1205th meeting), the Committee decided
to extend the deadline for the submission of the third periodic report of
the United Republic of Tanzania from 11 April 1991 to 31 December 1993.
17/ At its forty-sixth session (1205th meeting), the Committee decided
to extend the deadline for the submission of the third periodic report of
Venezuela from 1 November 1991 to 31 December 1993.
18/ At its thirty-ninth session (1003rd meeting), the Committee decided
to extend the deadline for the submission of the second periodic report of
Viet Nam from 23 December 1988 to 31 July 1991.
19/ At its thirty-ninth session (1003rd meeting), the Committee decided
to extend the deadline for the submission of the third periodic report
_1_?h_1R2D January 1988 to 31 July 1991.
--Annex IV
STATUS OF REPORTS CONSIDERED DURING THE PERIOD UNDER REVIEW
AND OF REPORTS STILL PENDING BEFORE THE COMMITTEE
State party
Date due
Date of submission
Meetings at
which considered
A. Initial reportsBrazil
23 April 1993
17 November 1994
Not yet consideredEstonia
1R2Duary 1993
27 September 1994
Not yet consideredGuatemala
4 August 1993
7 December 1994
Not yet consideredLatvia
13 April 1993
26 September 1994
1421st, 1422nd and 1425th (fifty-fourth session)Nepal
13 August 1992
30 March 1994
1359th and 1363rd (fifty-second session)Paraguay
9 September 1993
1 February 1994
1392nd and 1396th (fifty-third session)Switzerland
17 September 1993
24 February 1995
Not yet consideredUnited States of America
7 September 1993
29 July 1994
1401st, 1402nd, 1405th and 1406th (fifty-third session)B. Second periodic
reportsAfghanistan
23 April 1989
23 March 1992
Not yet consideredArgentina
7 November 1992
7 January 1994
1389th-1391st (fifty-third session)Libyan Arab Jamahiriya
4 February 1983
4 February 1993
1376th-1377th 1/ (fifty-second session)Yemen
8 May 1993
10 May 1993
1403rd and 1404th (fifty-third session)Zambia
9 July 1990
1R2Dry 1995
Not yet considered
C. Third periodic reportsCyprus
18 August 1989
28 December 1994
Not yet consideredDenmark
1 November 1990
7 April 1995
Not yet consideredIceland
30 October 1992
23 March 1995
Not yet consideredMauritius
18 July 1990
2 June 1995
Not yet consideredMorocco
31 December 1992
20 July 1993
1364th-1366th (fifty-second session)Netherlands
31 October 1991
6 February 1995
Not yet consideredNew Zealand
27 March 1990
1 April 1994
1393rd-1395th (fifty-third session)Peru
9 April 1993
24 October 1994
Not yet consideredSri Lanka
10 September 1991
18 July 1994
1436th-1438th (fifty-fourth session)D. Fourth periodic reportsBelarus
4 November 1993
11 April 1995
Not yet consideredRussian Federation
4 November 1994
27 September 1994
1426th_1_?h_1R2Dourth session)Spain
28 April 1994
2 June 1994
Not yet consideredSweden
5 December 1994
27 October 1994
Not yet consideredTunisia
4 February 1993
23 March 1993
1360th-1363rd (fifty-second session)Ukraine
18 August 1994
13 July 1994
1418th-1420th (fifty-fourth session)United Kingdom of Great Britain and
Northern Ireland
19 May 1994
14 October 1994
1432nd-1434th (fifty-fourth session)
E. Reports submitted pursuant to a special decision taken
by the CommitteeBurundi 2/
-12 July 1994
1349th and 1350th (fifty-second session)Haiti 3/
-28 February 1995
Not yet considered
F. Additional information submitted subsequent to the
examination of initial reports by the Committee 4/Gambia
-5 June 1984
Not yet consideredKenya
-4 May 1982
Not yet considered
Notes
1/ The Committee concluded the consideration_1_?h_1R2Df the Libyan Arab
Jamahiriya, which was initiated at the forty-ninth session of the
Committee, at its fifty-second session, held at the United Nations Office
at Geneva from 17 October to 4 November 1994.
2/ Special decision adopted by the Committee on 27 October 1994
(fiftysecond session).
3/ Special decision adopted by the Committee on 27 October 1994
(fiftysecond session).
4/ At its twenty-fifth session (601st meeting), the Committee decided to
consider additional information submitted subsequent to the examination of
initial reports together with the State party's second periodic report.
--Annex V
GENERAL COMMENTS ADOPTED UNDER ARTICLE 40, PARAGRAPH 4, OF THE
INTERNATIONAL COVENANT ON CIVIL_1_?h_1R2DIGHTS 1/
General Comment No. 24 (52) 2/ and 3/
General comment on issues relating to reservations made upon
ratification or accession to the Covenant or the Optional
Protocols thereto, or in relation to declarations under
article 41 of the Covenant
As of 1 November 1994, 46 of the 127 States parties to the International
Covenant on Civil and Political Rights had, between them, entered 150
reservations of varying significance to their acceptance of the obligations
of the Covenant. Some of these reservations exclude the duty to provide
and guarantee particular rights in the Covenant. Others are couched in
more general terms, often directed to ensuring the continued paramountcy of
certain domestic legal provisions. Still others are directed at the
competence of the Committee. The number of reservations, their content and
their scope may undermine the effective implementation of the Covenant and
tend to weaken respect for the obligations of States parties. It is
important for States parties to know exactly what obligations they, and
other States parties, have in fact undertaken. And the Committee, in the
performance of its duties under either article 40 of the Covenant or under
the Optional Protocols, must know whether a State is bound by a particular
obligation or to what extent. This will require a determination as to
whether a unilateral statement is a reservation or an interpretative
declaration and a determination of its acceptability and effects.
For these reasons the Committee has deemed it useful to address in a
General Comment the issues of international law and human rights policy
that arise. The General Comment identifies the principles of international
law that apply to the making of reservations and by reference to which
their acceptability is to be tested and their purport to be interpreted.
It addresses the role of States parties in relation to the
reservati_1_?h_1R2DIt further addresses the role of the Committee itself in
relation to reservations. And it makes certain recommendations to present
States parties for a reviewing of reservations and to those States that are
not yet parties about legal and human rights policy considerations to be
borne in mind should they consider ratifying or acceding with particular
reservations.
It is not always easy to distinguish a reservation from a declaration as
to a State's understanding of the interpretation of a provision, or from a
statement of policy. Regard will be had to the intention of the State,
rather than the form of the instrument. If a statement, irrespective of
its name or title, purports to exclude or modify the legal effect of a
treaty in its application to the State, it constitutes a reservation. 4/
Conversely, if a socalled reservation merely offers a State's understanding
of a provision but does not exclude or modify that provision in its
application to that State, it is, in reality, not a reservation.
The possibility of entering reservations may encourage States which
consider that they have difficulties in guaranteeing all the rights in the
Covenant none the less to accept the generality of obligations in that
instrument. Reservations may serve a useful function to enable States to
adapt specific elements in their laws to the inherent rights of each person
as articulated in the Covenant. However, it is desirable in principle that
States accept the full range of obligations, because the human rights norms
are the legal expression of the essential rights that every person is
entitled to as a human being.
The Covenant neither prohibits reservations nor mentions any type of
permitted reservation. The same is true of the first Optional Protocol.
The Second Optional Protocol provides, in article 2, paragraph 1, that "No
reservation is admissible to the present Protocol, except for a reservation
made at the time of ratification or ac_1_?h_1R2Dvides for the application
of the death penalty in time of war pursuant to a conviction for a most
serious crime of a military nature committed during wartime". Paragraphs 2
and 3 provide for certain procedural obligations.
The absence of a prohibition on reservations does not mean that any
reservation is permitted. The matter of reservations under the Covenant
and the first Optional Protocol is governed by international law. Article
19 (3) of the Vienna Convention on the Law of Treaties provides relevant
guidance. 5/ It stipulates that where a reservation is not prohibited by
the treaty or falls within the specified permitted categories, a State may
make a reservation provided it is not incompatible with the object and
purpose of the treaty. Even though, unlike some other human rights
treaties, the Covenant does not incorporate a specific reference to the
object and purpose test, that test governs the matter of interpretation and
acceptability of reservations.
In an instrument which articulates very many civil and political rights,
each of the many articles, and indeed their interplay, secures the
objectives of the Covenant. The object and purpose of the Covenant is to
create legally binding standards for human rights by defining certain civil
and political rights and placing them in a framework of obligations which
are legally binding for those States which ratify; and to provide an
efficacious supervisory machinery for the obligations undertaken.
Reservations that offend peremptory norms would not be compatible with
the object and purpose of the Covenant. Although treaties that are mere
exchanges of obligations between States allow them to reserve inter se
application of rules of general international law, it is otherwise in human
rights treaties, which are for the benefit of persons within their
jurisdiction. Accordingly, provisions in the Covenant that represent
customary international law (and a fortiori when they have the
c_1_?h_1R2Dmptory norms) may not be the subject of reservations.
Accordingly, a State may not reserve the right to engage in slavery, to
torture, to subject persons to cruel, inhuman or degrading treatment or
punishment, to arbitrarily deprive persons of their lives, to arbitrarily
arrest and detain persons, to deny freedom of thought, conscience and
religion, to presume a person guilty unless he proves his innocence, to
execute pregnant women or children, to permit the advocacy of national,
racial or religious hatred, to deny to persons of marriageable age the
right to marry, or to deny to minorities the right to enjoy their own
culture, profess their own religion, or use their own language. And while
reservations to particular clauses of article 14 may be acceptable, a
general reservation to the right to a fair trial would not be.
Applying more generally the object and purpose test to the Covenant, the
Committee notes that, for example, reservation to article 1 denying peoples
the right to determine their own political status and to pursue their
economic, social and cultural development, would be incompatible with the
object and purpose of the Covenant. Equally, a reservation to the
obligation to respect and ensure the rights recognized in the Covenant, and
to do so on a non-discriminatory basis (art. 2 (1)) would not be
acceptable. Nor may a State reserve an entitlement not to take the
necessary steps at the domestic level to give effect to the rights of the
Covenant (art. 2 (2)).
The Committee has further examined whether categories of reservations may
offend the "object and purpose" test. In particular, it falls for
consideration as to whether reservations to the non-derogable provisions of
the Covenant are compatible with its object and purpose. While there is no
hierarchy of importance of rights under the Covenant, the operation of
certain rights may not be suspended, even in times of national emergency.
This underlines the great importance of_1_?h_1R2Dights. But not all rights
of profound importance, such as articles 9 and 27 of the Covenant, have in
fact been made non-derogable. One reason for certain rights being made non-
derogable is because their suspension is irrelevant to the legitimate
control of the state of national emergency (for example, no imprisonment
for debt, in art. 11). Another reason is that derogation may indeed be
impossible (as, for example, freedom of conscience). At the same time,
some provisions are non-derogable exactly because without them there would
be no rule of law. A reservation to the provisions of article 4 itself,
which precisely stipulates the balance to be struck between the interests
of the State and the rights of the individual in times of emergency, would
fall in this category. And some non-derogable rights, which in any event
cannot be reserved because of their status as peremptory norms, are also of
this character - the prohibition of torture and arbitrary deprivation of
life are examples. 6/ While there is no automatic correlation between
reservations to non-derogable provisions and reservations which offend
against the object and purpose of the Covenant, a State has a heavy onus to
justify such a reservation.
The Covenant does not merely establish specific rights; it accompanies
them with important supportive guarantees. These guarantees provide the
necessary framework for securing the rights in the Covenant and are thus
essential to its object and purpose. Some operate at the national level
and some at the international level. Reservations designed to remove these
guarantees are thus not acceptable. Thus, a State could not make a
reservation to article 2, paragraph 3, of the Covenant, indicating that it
intends to provide no remedies for human rights violations. Guarantees
such as these are an integral part of the structure of the Covenant and
underpin its efficacy. The Covenant also envisages, for the better
attainment of its stated objectives, a monitoring role for the
C_1_?h_1R2Dvations that purport to evade that essential element in the
design of the Covenant, which is also directed to securing the enjoyment of
the rights, are also incompatible with its object and purpose. A State may
not reserve the right not to present a report and have it considered by the
Committee. The Committee's role under the Covenant, whether under article
40 or under the Optional Protocols, necessarily entails interpreting the
provisions of the Covenant and the development of a jurisprudence.
Accordingly, a reservation that rejects the Committee's competence to
interpret the requirements of any provisions of the Covenant would also be
contrary to the object and purpose of that treaty.
The intention of the Covenant is that the rights contained therein should
be ensured to all those under a State party's jurisdiction. To this end
certain attendant requirements are likely to be necessary. Domestic laws
may need to be altered properly to reflect the requirements of the
Covenant; and mechanisms at the domestic level will be needed to allow the
Covenant rights to be enforceable at the local level. Reservations often
reveal a tendency of States not to want to change a particular law. And
sometimes that tendency is elevated to a general policy. Of particular
concern are widely formulated reservations which essentially render
ineffective all Covenant rights which would require any change in national
law. No real international rights or obligations have thus been accepted.
And when there is an absence of provisions to ensure that Covenant rights
may be sued on in domestic courts, and, further, a failure to allow
individual complaints to be brought to the Committee under the first
Optional Protocol, all the essential elements of the Covenant guarantees
have been removed.
The issue arises as to whether reservations are permissible under the
first Optional Protocol and, if so, whether any such reservation might be
contrary to the object and purpo_1_?h_1R2Dnt or of the first Optional
Protocol itself. It is clear that the first Optional Protocol is itself an
international treaty, distinct from the Covenant but closely related to it.
Its object and purpose is to recognize the competence of the Committee to
receive and consider communications from individuals who claim to be
victims of a violation by a State party of any of the rights in the
Covenant. States accept the substantive rights of individuals by reference
to the Covenant, and not the first Optional Protocol. The function of the
first Optional Protocol is to allow claims in respect of those rights to be
tested before the Committee. Accordingly, a reservation to an obligation
of a State to respect and ensure a right contained in the Covenant, made
under the first Optional Protocol when it has not previously been made in
respect of the same rights under the Covenant, does not affect the State's
duty to comply with its substantive obligation. A reservation cannot be
made to the Covenant through the vehicle of the Optional Protocol but such
a reservation would operate to ensure that the State's compliance with that
obligation may not be tested by the Committee under the first Optional
Protocol. And because the object and purpose of the first Optional
Protocol is to allow the rights obligatory for a State under the Covenant
to be tested before the Committee, a reservation that seeks to preclude
this would be contrary to the object and purpose of the first Optional
Protocol, even if not of the Covenant. A reservation to a substantive
obligation made for the first time under the first Optional Protocol would
seem to reflect an intention by the State concerned to prevent the
Committee from expressing its views relating to a particular article of the
Covenant in an individual case.
The Committee considers that reservations relating to the required
procedures under the first Optional Protocol would not be compatible with
its object and purpose. The Committee must cont_1_?h_1R2Dedures as
specified by the Optional Protocol and its rules of procedure.
Reservations have, however, purported to limit the competence of the
Committee to acts and events occurring after entry into force for the State
concerned of the first Optional Protocol. In the view of the Committee
this is not a reservation but, most usually, a statement consistent with
its normal competence ratione temporis. At the same time, the Committee
has insisted upon its competence, even in the face of such statements or
observations, when events or acts occurring before the date of entry into
force of the first Optional Protocol have continued to have an effect on
the rights of a victim subsequent to that date. Reservations have been
entered which effectively add an additional ground of inadmissibility under
article 5, paragraph 2, by precluding examination of a communication when
the same matter has already been examined by another comparable procedure.
In so far as the most basic obligation has been to secure independent third
party review of the human rights of individuals, the Committee has, where
the legal right and the subject-matter are identical under the Covenant and
under another international instrument, viewed such a reservation as not
violating the object and purpose of the first Optional Protocol.
The primary purpose of the Second Optional Protocol is to extend the
scope of the substantive obligations undertaken under the Covenant, as they
relate to the right to life, by prohibiting execution and abolishing the
death penalty. 7/ It has its own provision concerning reservations, which
is determinative of what is permitted. Article 2, paragraph 1, provides
that only one category of reservation is permitted, namely one that
reserves the right to apply the death penalty in time of war pursuant to a
conviction for a most serious crime of a military nature committed during
wartime. Two procedural obligations are incumbent upon States parties
wishi_1_?h_1R2Dselves of such a reservation. Article 2, paragraph 1,
obliges such a State to communicate to the Secretary-General, at the time
of ratification or accession, the relevant provisions of its national
legislation applicable during wartime. This is clearly directed towards
the objectives of specificity and transparency and in the view of the
Committee a purported reservation unaccompanied by such information is
without legal effect. Article 2, paragraph 3, requires a State making such
a reservation to notify the Secretary-General of any beginning or ending of
a state of war applicable to its territory. In the view of the Committee,
no State may seek to avail itself of its reservation (that is, have
execution in time of war regarded as lawful) unless it has complied with
the procedural requirement of article 2, paragraph 3.
The Committee finds it important to address which body has the legal
authority to make determinations as to whether specific reservations are
compatible with the object and purpose of the Covenant. As for
international treaties in general, the International Court of Justice has
indicated in the Reservations to the Genocide Convention Case (1951) that a
State which objected to a reservation on the grounds of incompatibility
with the object and purpose of a treaty could, through objecting, regard
the treaty as not in effect as between itself and the reserving State.
Article 20, paragraph 4, of the Vienna Convention on the Law of Treaties
1969 contains provisions most relevant to the present case on acceptance of
and objection to reservations. This provides for the possibility of a
State to object to a reservation made by another State. Article 21 deals
with the legal effects of objections by States to reservations made by
other States. Essentially, a reservation precludes the operation, as
between the reserving and other States, of the provision reserved; and an
objection thereto leads to the reservation being in operation as between
the reserving and objectin_1_?h_1R2Dthe extent that it has not been
objected to.
As indicated above, it is the Vienna Convention on the Law of Treaties
that provides the definition of reservations and also the application of
the object and purpose test in the absence of other specific provisions.
But the Committee believes that its provisions on the role of State
objections in relation to reservations are inappropriate to address the
problem of reservations to human rights treaties. Such treaties, and the
Covenant specifically, are not a web of inter-State exchanges of mutual
obligations. They concern the endowment of individuals with rights. The
principle of inter-State reciprocity has no place, save perhaps in the
limited context of reservations to declarations on the Committee's
competence under article 41. And because the operation of the classic
rules on reservations is so inadequate for the Covenant, States have often
not seen any legal interest in or need to object to reservations. The
absence of protest by States cannot imply that a reservation is either
compatible or incompatible with the object and purpose of the Covenant.
Objections have been occasional, made by some States but not others, and on
grounds not always specified; when an objection is made, it often does not
specify a legal consequence, or sometimes even indicates that the objecting
party none the less does not regard the Covenant as not in effect as
between the parties concerned. In short, the pattern is so unclear that it
is not safe to assume that a non-objecting State thinks that a particular
reservation is acceptable. In the view of the Committee, because of the
special characteristics of the Covenant as a human rights treaty, it is
open to question what effect objections have between States inter se.
However, an objection to a reservation made by States may provide some
guidance to the Committee in its interpretation as to its compatibility
with the object and purpose of the Covenant.
It_1_?h_1R2Dls to the Committee to determine whether a specific
reservation is compatible with the object and purpose of the Covenant.
This is in part because, as indicated above, it is an inappropriate task
for States parties in relation to human rights treaties, and in part
because it is a task that the Committee cannot avoid in the performance of
its functions. In order to know the scope of its duty to examine a State's
compliance under article 40 or a communication under the first Optional
Protocol, the Committee has necessarily to take a view on the compatibility
of a reservation with the object and purpose of the Covenant and with
general international law. Because of the special character of a human
rights treaty, the compatibility of a reservation with the object and
purpose of the Covenant must be established objectively, by reference to
legal principles, and the Committee is particularly well placed to perform
this task. The normal consequence of an unacceptable reservation is not
that the Covenant will not be in effect at all for a reserving party.
Rather, such a reservation will generally be severable, in the sense that
the Covenant will be operative for the reserving party without benefit of
the reservation.
Reservations must be specific and transparent, so that the Committee,
those living in the territory of the reserving State and other States
parties may be clear as to what obligations of human rights compliance have
or have not been undertaken. Reservations may thus not be general, but
must refer to a particular provision of the Covenant and indicate in
precise terms its scope in relation thereto. When considering the
compatibility of possible reservations with the object and purpose of the
Covenant, States should also take into consideration the overall effect of
a group of reservations, as well as the effect of each reservation on the
integrity of the Covenant, which remains an essential consideration.
States should not enter so many reservations that they are in
eff_1_?h_1R2Dlimited number of human rights obligations, and not the
Covenant as such. So that reservations do not lead to a perpetual non-
attainment of international human rights standards, reservations should not
systematically reduce the obligations undertaken only to those presently
existing in less demanding standards of domestic law. Nor should
interpretative declarations or reservations seek to remove an autonomous
meaning to Covenant obligations, by pronouncing them to be identical, or to
be accepted only in so far as they are identical, with existing provisions
of domestic law. States should not seek through reservations or
interpretative declarations to determine that the meaning of a provision of
the Covenant is the same as that given by an organ of any other
international treaty body.
States should institute procedures to ensure that each and every proposed
reservation is compatible with the object and purpose of the Covenant. It
is desirable for a State entering a reservation to indicate in precise
terms the domestic legislation or practices which it believes to be
incompatible with the Covenant obligation reserved; and to explain the time
period it requires to render its own laws and practices compatible with the
Covenant, or why it is unable to render its own laws and practices
compatible with the Covenant. States should also ensure that the necessity
for maintaining reservations is periodically reviewed, taking into account
any observations and recommendations made by the Committee during
examination of their reports. Reservations should be withdrawn at the
earliest possible moment. Reports to the Committee should contain
information on what action has been taken to review, reconsider or withdraw
reservations.
Notes
1/ For the nature and purpose of the general comments, see Official
Records of the General Assembly, Thirty-sixth Session, Supplement No. 40
(A/36/40), annex VII, introduc_1_?h_1R2Dcription of the history of the
method of work, the elaboration of general comments and their use, see
ibid., Thirty-ninth Session, Supplement No. 40 (A/39/40 and Corr.1 and 2),
paras. 541-557. For the text of the general comments already adopted by
the Committee, see ibid., Thirty-sixth Session, Supplement No. 40
(A/36/40), annex VII; ibid., Thirty-seventh Session, Supplement No. 40
(A/37/40), annex V; ibid., Thirty-eighth Session, Supplement No. 40
(A/38/40), annex VI; ibid., Thirty-ninth Session, Supplement No. 40
(A/39/40 and Corr.1 and 2), annex VI; ibid., Fortieth Session, Supplement
No. 40 (A/40/40), annex VI; ibid., Fortyfirst Session, Supplement No. 40
(A/41/40), annex VI; ibid., Forty-third Session, Supplement No. 40
(A/43/40), annex VI; ibid., Forty-fourth Session, Supplement No. 40
(A/44/40), annex VI; ibid., Forty-fifth Session, Supplement No. 40
(A/45/40), annex VI; ibid., Forty-seventh Session, Supplement No. 40
(A/47/40), annex VI; ibid., Forty-eighth Session, Supplement No. 40
(A/48/40), annex VI; ibid., Fiftieth Session, Supplement No. 40 (A/50/40),
annex V. Also issued in documents HRI/GEN/1/Rev.1 and
CCPR/C/21/Rev.1/Add.5.
2/ Adopted by the Committee at its 1382nd meeting (fifty-second
session), on 2 November 1994.
3/ The number in parentheses indicates the session at which the general
comment was adopted.
4/ Article 2 (1) (d), Vienna Convention on the Law of Treaties 1969.
5/ Although the Vienna Convention on the Law of Treaties was concluded
in 1969 and entered into force in 1980 - i.e. after the entry into force of
the Covenant - its terms reflect the general international law on this
matter as had already been affirmed by the International Court of Justice
in The Reservations to the Genocide Convention Case of 1951.
1R2D Reservations have been entered to both article 6 and article 7, but
not in terms which reserve a right to torture or to engage in arbitrary
deprivation of life.
7/ The competence of the Committee in respect of this extended
obligation is provided for under article 5 - which itself is subject to a
form of reservation in that the automatic granting of this competence may
be reserved through the mechanism of a statement made to the contrary at
the moment of ratification or accession.
--Annex VI
OBSERVATIONS OF STATES PARTIES UNDER ARTICLE 40, PARAGRAPH 5,
OF THE COVENANT1R2Dent annex is being published as received, without formal
editing.
Observations on General Comment No. 24 (52), on issues relating
to reservations made upon ratification or accession to the
Covenant or the Optional Protocols thereto, or in relation to
declarations under article 41 of the Covenant
A. United States of America 1/
There can be no serious question about the propriety of the Committee's
concern about the possible effect of excessively broad reservations on the
general protection and promotion of the rights reflected in the Covenant,
nor any reasonable doubt regarding the general desirability of reservations
that are specific, transparent and subject to review with an eye to
withdrawal where appropriate. General Comment 24, however, appears to go
much too far. The United States would therefore like to set forth in
summary fashion a number of observations concerning the General Comment as
follows.
1. Role of the Committee
The last sentence of paragraph 11 states that "a reservation that rejects
the Committee's competence to interpret the requirements of any provisions
of the Covenant would also be contrary to the object and purpose of that
treaty".
This statement can be read to present the rather surprising assertion
that it is contrary to the object and purpose of the Covenant not to accept
the Committee's views on the interpretation of the Covenant. This would be
a rather significant departure from the Covenant scheme, which does not
impose on States Parties an obligation to give effect to the Committee's
interpretations or confer on the Committee the power to render definitive
or binding interpretations of the Covenant. The drafters of the Covenant
could have given the Committee this role but deliberately chose not to do
so.
In this respect, it is unnecessary for a State to reserve as to the
Committee's power or interpretiv_1_?h_1R2Dce the Committee lacks the
authority to render binding interpretations or judgements. The quoted
sentence can, however, be read more naturally and narrowly in the context
of the paragraph as a whole, to assert simply that a reservation may not be
taken to the reporting requirement. This narrower view would be consistent
with the clear intention of the Convention.
In this regard, the analysis in paragraphs 16-20, regarding which body
has the legal authority to make determinations concerning the
permissibility of specific reservations, is of considerable concern. Here
the Committee appears to reject the established rules of interpretation of
treaties as set forth in the Vienna Convention on the Law of Treaties and
in customary international law. The General Comment states, for example,
that the established provisions of the Vienna Convention are "inappropriate
to address the problem of reservations to human rights treaties ... [as to
which] [t]he principle of inter-State reciprocity has no place, save
perhaps in the limited context of reservations to declarations on the
Committee's competence under article 41".
Moreover, the Committee appears to dispense with the established
procedures for determining the permissibility of reservations and to divest
States Parties of any role in determining the meaning of the Covenant,
which they drafted and joined, and of the extent of their treaty
obligations. In its view, objections from other States Parties may not
"specify a legal consequence" and States with genuine objections may not
always voice them, so that "it is not safe to assume that a non-objecting
State thinks that a particular reservation is acceptable". Consequently,
because "the operation of the classic rules on reservations is so
inadequate for the Covenant, ... [i]t necessarily falls to the Committee to
determine whether a specific reservation is compatible with the object and
purpose of the Covenant".
The Committee's position, g, runs contrary to the Covenant scheme and
international law.
2. Acceptability of reservations: governing legal principles
The question of the status of the Committee's views is of some
significant in light of the apparent lines of analysis concerning the
permissibility of reservations in paragraphs 8-9. Those paragraphs reflect
the view that reservations offending peremptory norms of international law
would not be compatible with the object and purposes of the Covenant, nor
may reservations be taken to Covenant provisions which represent customary
international law.
It is clear that a State cannot exempt itself from a peremptory norm of
international law by making a reservation to the Covenant. It is not at
all clear that a State cannot choose to exclude one means of enforcement of
particular norms by reserving against inclusion of those norms in its
Covenant obligations.
The proposition that any reservation which contravenes a norm of
customary international law is per se incompatible with the object and
purpose of this or any other convention, however, is a much more
significant and sweeping premise. It is, moreover, wholly unsupported by
and is in fact contrary to international law. As recognized in the
paragraph 10 analysis of non-derogable rights, an "object and purpose"
analysis by its nature requires consideration of the particular treaty,
right, and reservation in question.
With respect to the actual object and purpose of this Covenant, there
appears to be a misunderstanding. The object and purpose was to protect
human rights, with an understanding that there need not be immediate,
universal implementation of all terms of the treaty. Paragraph 7 (which
forms the basis for the analysis in para. 8 and subsequently) states that
"each of the many articles, and indeed their interplay, secures the
objectives of the Covenant". The implied corollary is, of course, that any
reservation to any substantive provision necessarily contravenes the
Covenant's object and purpose.
Such a position would, of course, wholly mistake the question of the
object and purpose of the Covenant in so far as it bears on the
permissibility of reservations. In fact, a primary object and purpose of
the Covenant was to secure the widest possible adherence, with the clear
understanding that a relatively liberal regime on the permissibility of
reservations should therefore be required.
3. Specific reservations
The precise specification of what is contrary to customary international
law, moreover, is a much more substantial question than indicated by the
Comment. Even where a rule is generally established in customary
international law, the exact contours and meaning of the customary law
principle may need to be considered.
Paragraph 8, however, asserts in a wholly conclusory fashion that a
number of propositions are customary international law which, to speak
plainly, are not. It cannot be established on the basis of practice or
other authority, for example, that the mere expression (albeit deplorable)
of national, racial or religious hatred (unaccompanied by any overt action
or preparation) is prohibited by customary international law. The
Committee seems to be suggesting here that the reservations which a large
number of States Parties have submitted to article 20 are per se invalid.
Similarly, while many are opposed to the death penalty in general and the
juvenile death penalty in particular, the practice of States demonstrates
that there is currently no blanket prohibition in customary international
law. Such a cavalier approach to international law by itself would raise
serious concerns about the methodology of the Committee as well as its
authority.
Another point worthy of clarification is whether the Committee really
intends that, in the many areas which it mentions in paragraphs 8-11, any
reservation whatsoever is impermissible, or only those which wholly vitiate
the right in question. At the end of paragraph 8, for example, it is
suggested that while reservations to particular clauses of article 14 may
be acceptable, a general reservation could not be taken to the article as a
whole. Presumably, the same must also be true for many of the other
subjects mentioned. For example, even where there is a reservation to
article 20, one would not expect such a reservation to apply to advocacy of
racial hatred which constitutes incitement to murder or other crime.
4. Domestic implementation
The discussion in paragraph 12, as it stands, is very likely to give rise
to misunderstandings in at least two respects. The Committee here states,
with regard to implementing the Covenant in domestic law, that such laws
"may need to be altered properly to reflect the requirements of the
Covenant; and mechanisms at the domestic level will be needed to allow the
Covenant rights to be enforceable at the local level". (Emphasis added.)
First, this statement may be cited as an assertion that States Parties
must allow suits in domestic courts based directly on the provisions of
Covenant. Some countries do in fact have such a scheme of "self-executing"
treaties. In other countries, however, existing domestic law already
provides the substantive rights reflected in the Covenant as well as
multiple possibilities for suit to enforce those rights. Where these
existing rights and mechanisms are in fact adequate to the purposes of the
Covenant, it seems most unlikely that the Committee intends to insist that
the Covenant be directly actionable in court or that States must adopt
legislation to implement the Covenant.
As a general matter, deciding on the most appropriate means of domestic
implementation of treaty obligations is, as indicated in article 40, left
to the internal law and processes of each State Party.
Rather, the Committee may properly be concerned about the case in which
a State has joined the Covenant but lacks any means under its domestic law
by which Covenant rights may be enforced. The Sth_?_could even have
similar constitutional guarantees which are simply ignored or non-
enforceable. Such an approach would not, of course, be consistent with the
fundamental principle of pacta sunt servanda.
Second, paragraph 12 states that "[r]eservations often reveal a tendency
of States not to want to change a particular law". Some may view this
statement as sweepingly critical of any reservation whatsoever which is
made to conform to existing law. Of course, since this is the motive for a
large majority of the reservations made by States in all cases, it is
difficult to say that this is inappropriate in principle. Indeed, one
might say that the more seriously a State Party takes into account the
necessity of providing strictly for domestic implementation of its
international obligations, the more likely it is that some reservations may
be taken along these lines.
It appears that the Comment is not intended to make such a criticism, but
rather is aimed at the particular category of "widely formulated
reservations" which preserve complete freedom of action and render
uncertain a State Party's obligations as a whole, e.g., that the Covenant
is generally subordinated to the full unspecified range of national law.
This, of course, would be neither appropriate nor lawful. The same is not
true, however, when by means of a discrete reservation, a State Party
declines for sufficient reasons to accept a particular provision of the
Covenant in preference for existing domestic law.
5. Effect of invalidity of reservations
It seems unlikely that one can misunderstand the concluding point of this
General Comment, in paragraph 18, that reservations which the Committee
deems invalid "will generally be severable, in the sense that the Covenant
will be operative for the reserving party without benefit of the
reservation". Since this conclusion is so completely at odds with
established legal practice and principles and even the express and clear
terms of adherence by many States, it would be welcome if some helpful
clarification could be made.
The reservations contained in the United States instrument of
ratification are integral parts of its consent to be bound by the Covenant
and are not severable. If it were to be determined that any one or more of
them were ineffective, the ratification as a whole could thereby be
nullified.
Articles 20 and 21 of the Vienna Convention set forth the consequences of
reservations and objections to them. Only two possibilities are provided.
Either (i) the remainder of the treaty comes into force between the parties
in question or (ii) the treaty does not come into force at all between
these parties. In accordance with article 20, paragraph 4 (c), the choice
of these results is left to the objecting party. The Convention does not
even contemplate the possibility that the full treaty might come into force
for the reserving State.
The general view of the academic literature is that reservations are an
essential part of a State's consent to be bound. They cannot simply be
erased. This reflects the fundamental principle of the law of treaties:
obligation is based on consent. A State which does not consent to a treaty
is not bound by that treaty. A State which expressly withholds its consent
from a provision cannot be presumed, on the basis of some legal fiction, to
be bound by it. It is regrettable that General Comment 24 appears to
suggest to the contrary.
B. United Kingdom of Great Britain and Northern Ireland 2/
1. The United Kingdom is of course aware that the General Comments adopted
by the Committee are not legally binding. They nevertheless command great
respect, given the eminence of the Committee and the status of the
International Covenant on Civil and Political Rights. The issue dealt with
in General Comment Number 24 (52) (reservations to the Covenant) is one of
great importance, both in respect of the development of the Covenant and
the Committee's role under it and in its wider ramifications. The United
Kingdom is therefore grateful for the opportunity provided under article 40
(5) of the Covenant to submit to the Committee certain observations on the
General Comment.
2. These will be divided into four parts: the legal regime regulating
reservations to the Covenant; the criteria for assessing compatibility with
the object and purpose of the Covenant; the power to determine
compatibility with the object and purpose; the legal effect of an
incompatible reservation.
The legal regime regulating reservations to the Covenant
3. The United Kingdom shares the Committee's concern that the integrity of
the Covenant's treaty regime should not be determined by too extensive a
practice of reservations formulated by States on becoming Party to them.
The United Kingdom agrees also that individual reservations may on occasion
be so widely drawn as to cast doubt on whether their maintenance is
compatible with being Party to the Covenant. Regrettable though it may be,
such a situation is not materially different from that obtaining in other
areas of international relations, and would not provide a justification for
a different legal regime to regulate reservations to human rights treaties.
To create such a special regime by amendment of the Covenant would be a
major task. To do so as part of the development of general international
law would, all other considerations aside, be undesirable if the effect was
to fragment this aspect of the law of treaties which is currently under
study by the International Law Commission.
4. The modern law of reservations to multilateral treaties moreover owes
its origin to the Advisory Opinion of the International Court of Justice of
28 May 1951 on Reservations to the Genocide Convention. The Genocide
Convention is itself (in the Committee's phrase) a human rights treaty
concluded for the benefit of persons within the jurisdiction of the States
Parties to it. As the International Court observed, the Genocide
Convention is of a type in which "the contracting States do not have any
interests of their own; they merely have, one and all, a common interest,
namely the accomplishment of those high purposes which are the raison
d'etre of the Convention". It was in the light precisely of those
characteristics of the Genocide Convention, and in the light of the
desirability of widespread adherence to it, that the Court set out its
approach towards reservations. The United Kingdom does not accordingly
believe that rules different from those foreshadowed by the International
Court and in due course embodied in the Vienna Convention on the Law of
Treaties are required to enable the international community to cope with
reservations to human rights treaties. The correct approach is rather to
apply the general rules relating to reservations laid down in the Vienna
Convention in a manner which takes full account of the particular
characteristics of the treaty in question.
5. The argument that the existing rules of international law are
inadequate to cope with human rights treaties rests in any case, as the
United Kingdom sees it, on a mistaken assumption. The Committee says in
paragraph 17 that the Vienna Convention's provisions on the role of State
objections in relation to reservations are inappropriate to address the
problem of reservations to human rights treaties. This is because such
treaties "are not a web of inter-State exchanges of mutual obligations" and
because "[t]he principle of reciprocity has no place". The United Kingdom
does not find this to be an adequate account, for various reasons. In the
first place, it is not the basis on which the International Court of
Justice approached the Genocide Convention (para. 3 above). In the second
place, it is not the view taken by other authoritative bodies, such as the
European Court of Human Rights, which held in 1978 3/ that at the European
Convention on Human Rights "comprises more than mere reciprocal engagements
between Contracting States. It creates over and above a network of mutual
bilateral understandings, objective obligations which in the words of the
preamble benefit from a 'collective enforcement'" (emphasis added). 4/ In
the third place, both the faculty under article 41 of the Covenant for
bringing inter-State complaints and the widespread practice of States in
invoking the Covenant as against other States Parties in respect of the
treatment of individuals show that in a very real and practical sense even
the substantive provisions of the Covenant are indeed regarded as creating
"a network of mutual bilateral undertakings". Finally, it must be assumed
that, in respect of reservations which are clearly compatible with the
object and purpose of the Covenant, the Committee accepts that States
Parties exercise the rights and functions assigned to them by the Vienna
Convention. If so, it is not easy to discover a logical ground for ruling
out these rights and functions for other reservations, including those
where there is at least a reasonable measure of doubt as to whether the
reservation is or is not compatible with the object and purpose of the
Covenant. Given therefore that the bilateral rights and general interests
of other Parties are, as indicated, directly affected, the United Kingdom
regards it as a self-evident proposition that the reaction of those Parties
to a reservation formulated by one of them is of direct significance both
in law and in practice. In short, the legal effect of any particular
reservation to a human rights treaty is an amalgam of the terms of the
treaty and the terms and import of the reservation, in the light of the
reactions to it by the other treaty Parties and in the light of course of
any authoritative third-party procedure that may be applicable.
The criteria for assessing compatibility with the object and purpose of the
Covenant
6. The United Kingdom shares the Committee's view that an automatic
identification between non-derogability and compatibility with the object
and purpose is too simplistic. Derogation from a formally contracted
obligation and reluctance to undertake the obligation in the first place
are not the same thing. The United Kingdom is likewise of one mind with
the Committee that multifaceted treaties like the Covenants pose
considerable problems over the ascertainment of their object and purpose.
The problem is one common to all lengthy treaties containing numerous
provisions of coordinate status with one another.
7. The United Kingdom is however less convinced by the argument that,
because human rights treaties are for the benefit of individuals,
provisions in the Covenant that represent customary international law may
not be the subject of reservations. It is doubtful whether such a
proposition represents existing customary international law; it is not a
view shared by most commentators, and States have not expressly objected to
reservations on this ground. In the United Kingdom's view, there is a
clear distinction between choosing not to enter into treaty obligations and
trying to opt out of customary international law. Such a distinction is
inherent in the Committee's recognition that reservations to articles that
guarantee customary international law rights are permitted provided that
the right is not deprived of its basic purpose.
8. For broadly similar reasons, the United Kingdom does not wholly share
the Committee's concern over reservations which exclude the acceptance of
obligations which would require changes in national law to ensure
compliance with them. The Committee's comments that "no real international
rights or obligations have thus been accepted" and that "all the essential
elements of the Covenant guarantees have been removed" miss the fact that
States Parties, even while entering such reservations, do at least accept
the Committee's supervision, through the reporting system, of those
Covenant rights guaranteed by their national law.
The power to determine compatibility with the object and purpose
9. The United Kingdom shares the Committee's view as to the seriousness
of the issue of compatibility of reservations with the object and purpose
of the treaty in question. It does not however believe that this is the
central issue in the law and practice of reservations to multilateral
conventions. The vast majority of reservations are in practice dealt with
satisfactorily through the operation of the normal rules in the Vienna
Convention, it being borne in mind that another Contracting State always
has the right formally to object even to a reservation which is undoubtedly
admissible (except in the special case of a reservation expressly permitted
by the treaty). The question of compatibility with the object and purpose
is confined to a small number of extreme cases.
10. It is clear however that a legal regime of reservations that depends
to any extent on the general criterion of compatibility with the object and
purpose of a treaty as a whole will be uncertain in its operation in the
absence of an objective method for determining whether the criterion is
satisfied. The availability of binding third-party procedures could be of
great importance in this respect, as the International Law Commission
itself recognized at the outset. This state of affairs inevitably raises a
serious question as to the proper role which the Committee itself may play,
to which the Committee has given serious consideration at pages 6-7 of the
General Comment.
11. The United Kingdom shares the analysis that the Committee must
necessarily be able to take a view of the status and effect of a
reservation where this is required in order to permit the Committee to
carry out its substantive functions under the Covenant. Thus, the Committee
might find itself unable in particular cases to deliver a report under the
special powers conferred upon it by article 41 or the First Optional
Protocol, except on the basis of a view as to the impact of a given
reservation. Similarly, the Committee might, according to the
circumstances, find it appropriate to form or express its view on a
reservation for the purpose of questioning a State Party in its reports
under article 40 or for the purpose of reporting its own conclusions.
Paragraph 20 of the General Comment, however, uses the verb "determine" in
connection with the Committee's functions towards the status of
reservations, and does so moreover in the context if its dictum that the
task in question is inappropriate for the States Parties. This would
appear to have implications which call for comment.
12. Without wishing to take a final view on the matter, the United Kingdom
would make the following points:
(a) Even if it were the case (as the General Comment argues but the
United Kingdom doubts: see paras. 3-5 above) that the law on reservations
is inappropriate to address the problem of reservations to human rights
treaties, this would not of itself give rise to a competence or power in
the Committee except to the extent provided for in the Covenant; any new
competence could only be created by amendment to the Covenant, and would
then be exercisable on such terms as were laid down;
(b) No conclusion as to the status or consequences of a particular
reservation could be properly determinative unless it were binding not only
on the reserving State Party but on all the Parties to the Covenant, which
would in turn automatically presuppose that the Parties had undertaken in
proper form a prior legal obligation to accept it;
(c) There is a qualitative distinction between decisions judicially
arrived at after full legal argument and determinations made without the
benefit of a judicial process.
The legal effect of an incompatible reservation
13. The Committee correctly identifies articles 20 and 21 of the Vienna
Convention on the Law of Treaties as containing the rules which, taken
together, regulate the legal effect of reservations to multilateral
treaties. The United Kingdom wonders however whether the Committee is
right to assume their applicability to incompatible reservations. The rules
cited clearly do apply to reservations which are fully compatible with the
object and purpose but remain open for acceptance or objection (see para. 9
above). It is questionable however whether they were intended also to
cover reservations which are inadmissible in limine. For example, it seems
highly improbably that a reservation expressly prohibited by the treaty
(the case in art. 19 (a) of the Vienna Convention) is open to acceptance by
another Contracting State. And if so, there is no clear reason why the
same should not apply to the other cases enumerated in article 19,
including incompatibility with the object and purpose under 19 (c). The
Genocide Convention Advisory Opinion did indeed deal directly with the
matter, by stating that acceptance of a reservation as being compatible
with the object and purpose entitles a party to consider the reserving
State to be party to the treaty. In the converse case (i.e. the case where
the reservation is not compatible with the object and purpose) the Court
states plainly, "that State cannot be regarded as being a party to the
Convention". 5/ This is the approach which the United Kingdom has
consistently followed in its own treaty practice.
14. The General Comment suggests, per contra, that an "unacceptable"
reservation will generally be severable, in the sense that the Covenant
will be operative for the reserving party as if the reservation had not
been entered. The United Kingdom agrees that severability of a kind may
well offer a solution in appropriate cases, although its contours are only
beginning to be explored in State practice. However the United Kingdom is
absolutely clear that severability would entail excising both the
reservation and the parts of the treaty to which it applies. Any other
solution they would find deeply contrary to principle, notably the
fundamental rule reflected in Article 38 (1) of the Statute of the
International Court of Justice, that international conventions establish
rules "expressly recognized by" the Contracting States. The United Kingdom
regards it as hardly feasible to try to hold a State to obligations under
the Covenant which it self-evidently has not "expressly recognized" but
rather has indicated its express unwillingness to accept. The United
Kingdom fears that, questions of principle aside, an approach as outlined
in paragraph 20 of the General Comment would risk discouraging States from
ratifying human rights conventions 6/ (since they would not be in a
position to reassure their national Parliaments as to the status of treaty
provisions on which it was felt necessary to reserve) or might even lead to
denunciations by existing Parties who ratified against a set of assumptions
different from those now enunciated in the General Comment.
15. The United Kingdom believes that the only sound approach is
accordingly that adopted by the International Court of Justice: a State
which purports to ratify a human rights treaty subject to a reservation
which is fundamentally incompatible with participation in the treaty regime
cannot be regarded as having become a party at all - unless it withdraws
the reservation. The test of incompatibility is and should be an objective
one, in which the views of competent third parties would carry weight.
Ultimately however it is a matter for the treaty parties themselves and,
while the presence or absence of individual State "objections" should not
be decisive in relation to an objective standard, it would be surprising to
find a reservation validly stigmatized as incompatible with the object and
purpose of the Covenant if none of the Parties had taken exception to it on
that ground. For all other reservations the rules laid down in the Vienna
Convention do and should apply except to the extent that the treaty
regulates such matters by its own terms.
16. The United Kingdom wishes finally to express its gratitude to the
Committee for having focused attention on what is undoubtedly a real and
serious problem and for having illuminated the underlying issues. Inasmuch
as these issues go wider than the Covenant itself, or than human rights
treaties in general, the United Kingdom proposes to reflect further on how
international consideration of these matters can best be carried forward.
Notes
1/ Observations transmitted by letter dated 28 March 1995.
2/ Observations transmitted by letter dated 21 July 1995.
3/ Ireland v. United Kingdom.
4/ Series A, No. 25, p. 90, para. 239.
5/ ICJ Report 1951, at p. 29.
6/ A similar point applies for example to the First Optional Protocol,
to which the United Kingdom is not, however, a party.
--Annex VII
REVISED GUIDELINES REGARDING THE FORM AND CONTENTS
OF REPORTS FROM STATES PARTIES
A. Guidelines regarding the form and contents of reports
from States parties under article 40 (1) (a)
of the Covenant 1/
1. Under article 40 of the International Covenant on Civil and Political
Rights each State party has undertaken to submit, within one year of the
entry into force of the Covenant in regard to it and thereafter whenever
the Human Rights Committee established under the Covenant so requests,
reports on the measures which it has adopted to give effect to rights
recognized in the Covenant and on the progress made in the enjoyment of
those rights. Article 40 also provides that the reports shall indicate the
factors and difficulties, if any, affecting the implementation of the
Covenant.
2. In order to assist it in fulfilling the tasks entrusted to it pursuant
to article 40 of the Covenant, the Committee has decided that it would be
useful to inform States parties of its wishes regarding the form and
contents of reports. Compliance with the following guidelines will help to
ensure that reports are presented in a uniform manner and enable the
Committee and States parties to obtain a complete picture of the situation
in each State as regards the implementation of the rights referred to in
the Covenant. This will also reduce the need for the Committee to request
additional information under its rules of procedure.
3. The general part of the report should be prepared in accordance with
the consolidated guidelines for the initial part of the reports of States
parties to be submitted under the various international human rights
instruments, including the Covenant, as contained in document HRI/1991/1.
4. The part of the report relating specifically to parts I, II and III of
the Covenant should describe in relation to the provisions of each article:
(a) The legislative, administrative or other measures in force in regard
to each right;
(b) Any restrictions or limitations, even of a temporary nature, imposed
by law or practice or any other manner on the enjoyment of the right;
(c) Any other factors or difficulties affecting the enjoyment of the
right by persons within the jurisdiction of the State, including any
factors affecting the equal enjoyment by women of that right;
(d) Any other information on the progress made in the enjoyment of the
right.
5. When a State party to the Covenant is also a party to the Optional
Protocol, and if in the period under review the Committee has issued views
finding that the State party has violated provisions of the Covenant, the
report should include a section explaining what action has been taken
relating to the communication concerned. In particular, the State party
should indicate what remedy it has afforded the author of the communication
whose rights the Committee found to have been violated.
6. The report should be accompanied by copies of the principal
legislative and other texts referred to in the report. These will be made
available to members of the Committee. It should be noted, however, that,
for reasons of expense, they will not normally be reproduced for general
distribution with the report except to the extent that the reporting State
specifically so requests. It is desirable, therefore, that when a text is
not actually quoted in or annexed to the report itself, the report should
contain sufficient information to be understood without reference to it.
7. The Committee will welcome at any time information on any significant
new development in regard to the rights referred to in the Covenant, but in
any event it intends, after the completion of its study of each State's
initial report and of any additional information submitted, to call for
subsequent reports under article 40 (1) (b) of the Covenant. The aim of
such further reports will be to bring the situation up to date in respect
of each State.
8. On the basis of reports prepared according to the above guidelines, the
Committee is confident that it will be able to develop a constructive
dialogue with each State party in regard to the implementation of the
Covenant and thereby contribute to mutual understanding and peaceful and
friendly relations among nations in accordance with the Charter of the
United Nations.
B. General guidelines regarding the form and contents
of periodic reports from States parties 2/
1. Under article 40 (1) of the Covenant, every State party has undertaken
to submit reports to the Human Rights Committee on the implementation of
the Covenant:
(a) Within one year of the entry into force of the Covenant for the
State party concerned;
(b) Thereafter whenever the Committee so requests.
2. At its second session, in August 1977, the Committee adopted guidelines
for the submission of reports by States parties under article 40. 3/ In
drawing up these guidelines the Committee had in mind in particular the
initial reports to be submitted by States parties under article 40 (1) (a).
These guidelines have been followed by the great majority of States parties
that have submitted reports subsequent to their issuance and they have
proved helpful both to the reporting States and to the Committee.
3. In paragraph 5 of those guidelines, the Committee indicated that it
intended, after the completion of its study of each State's initial report
and of any subsequent information submitted, to call for subsequent reports
under article 40 (1) (b) of the Covenant.
4. At its eleventh session, in October 1980, the Committee adopted by
consensus a statement concerning the subsequent stages of its future work
under article 40. It confirmed its aim of engaging in a constructive
dialogue with each reporting State and determined that the dialogue should
be conducted on the basis of periodic reports from States parties to the
Covenant (para. (d)). It also decided that, in the light of its experience
in the consideration of initial reports, it should develop guidelines for
the purpose of subsequent reports. Pursuant to this decision and to the
decision taken by the Committee at its thirteenth session to request States
parties to submit reports under article 40 (1) (b) on a periodic basis, the
Committee has drawn up the following guidelines regarding the form and
contents of such reports, which are designed to complete and to bring up to
date the information required by the Committee under the Covenant.
5. General information should be prepared in accordance with the
consolidated guidelines for the initial part of reports of States parties
to be submitted under the various international human rights instruments,
including the Covenant, as contained in document HRI/1991/1.
6. Information relating to each of the articles in parts I, II and III of
the Covenant should concentrate especially on:
(a) The completion of the information before the Committee as to the
measures adopted to give effect to rights recognized in the Covenant,
taking account of questions raised in the Committee on the examination of
any previous report and including in particular additional information as
to questions not previously answered or not fully answered;
(b) Information taking into account general comments which the Committee
may have made under article 40 (4) of the Covenant;
(c) Changes made or proposed to be made in the national laws and
practices relevant to the Covenant;
(d) Action taken as a result of experience gained in cooperation with
the Committee;
(e) Factors affecting and difficulties experienced in the implementation
of the Covenant, including any factors affecting the equal enjoyment by
women of rights referred to in the Covenant;
(f) The progress made since the last report in the enjoyment of rights
recognized in the Covenant.
7. When a State party to the Covenant is also a party to the Optional
Protocol and if, in the period under review, the Committee has issued views
finding that the State party has violated provisions of the Covenant, the
report should include a section explaining what action has been taken
relating to the communication concerned. In particular, the State party
should indicate what remedy it has afforded the author of the communication
whose rights the Committee found to have been violated.
8. It should be noted that the reporting obligation extends not only to
the relevant laws and other norms, but also to the practices of the courts
and administrative organs of the State party and other relevant facts
likely to show the degree of actual enjoyment of rights recognized by the
Covenant.
9. The report should be accompanied by copies of the principal legislative
and other texts referred to in it.
10. It is the desire of the Committee to assist States parties in
promoting the enjoyment of rights under the Covenant. To this end, the
Committee wishes to continue the dialogue which it has begun with reporting
States in the most constructive manner possible and reiterates its
confidence that it will thereby contribute to mutual understanding and
peaceful and friendly relations among nations in accordance with the
Charter of the United Nations.
Notes
1/ Adopted by the Committee at its 44th meeting (second session), on 29
August 1977, and embodying amendments adopted by the Committee at its
1002nd meeting (thirty-ninth session), on 24 July 1990, its 1089th meeting
(forty-second session), on 25 July 1991, and its 1415th meeting (fifty-
third session), on 7 April 1995.
2/ Adopted by the Committee at its 308th meeting (thirteenth session),
on 27 July 1981, and embodying amendments adopted by the Committee at its
1002nd meeting (thirty-ninth session), on 24 July 1990, its 1089th meeting
(forty-second session), on 25 July 1991, and its 1415th meeting (fifty-
third session), on 7 April 1995.
3/ See Official Records of the General Assembly, Thirty-second Session,
Supplement No. 44 (A/32/44), annex IV.
--Annex VIII
LETTER FROM THE CHAIRMAN OF THE COMMITTEE
Letter dated 13 July 1995 from the Chairman of the Committee
to the Permanent Representative of the Federal Republic of
Yugoslavia to the United Nations Office at Geneva
We wish to refer to your letter No. 55/1 dated 26 January 1995, in which
you conveyed your Government's position concerning the submission of the
fourth periodic report under article 40 of the International Covenant on
Civil and Political Rights.
We would like to inform you that the Human Rights Committee at its
fiftythird session, held at United Nations Headquarters from 20 March to 7
April 1995, deeply regretted the decision of the Government of the Federal
Republic of Yugoslavia (Serbia and Montenegro) not to comply with its
reporting obligations. The Committee observed that the submission of
reports under the Covenant constitutes a solemn legal obligation assumed by
each State party and is indispensable for carrying out the Committee's
basic function of establishing a positive dialogue with States parties in
the field of human rights. Therefore, non-submission of reports greatly
hinders the process of dialogue and seriously undermines the objectives of
the Covenant by hampering the Committee's ability to monitor the
implementation of the Covenant.
The Committee has taken note of the reasons presented by your Government
as forming the basis of its position. In that regard, we would like to
recall that, in a decision of 7 October 1992 requesting your Government to
submit a report on specific issues in respect of persons and events under
its jurisdiction, the Committee emphasized that all the people within the
territory of the former Yugoslavia are entitled to the guarantees of the
Covenant and that the Federal Republic of Yugoslavia (Serbia and
Montenegro) is bound by the obligations under the Covenant. In its
comments adopted at the end of the consideration of that report
(CCPR/C/79/Add.16), the Committee stated that it regarded the submission of
the report by the Government and the presence of a delegation as
confirmation that the Federal Republic of Yugoslavia (Serbia and
Montenegro) had succeeded, in respect of the territory of Serbia and
Montenegro, to the obligations undertaken under the Covenant by the former
Socialist Federal Republic of Yugoslavia.
While it is not for the Committee to take a position on last September's
action of the Meeting of States parties with regard to the Federal Republic
of Yugoslavia (Serbia and Montenegro), the Committee will continue to
proceed on the basis of the above-mentioned understanding and expresses the
hope that the Government of the Federal Republic of Yugoslavia (Serbia and
Montenegro) will reconsider its decision and submit its report to the
Committee as soon as possible.
(Signed) Francisco Jose Aguilar Urbina
Chairman
Human Rights Committee
Annex IX
LIST OF STATES PARTIES' DELEGATIONS THAT PARTICIPATED IN
CONSIDERATION OF THEIR RESPECTIVE REPORTS BY THE HUMAN
RIGHTS COMMITTEE AT ITS FIFTY-SECOND, FIFTY-THIRD AND
FIFTY-FOURTH SESSIONS
NEPAL RepresentativeMr. Banmali Prasad Lacoul, Minister Counsellor, Charge
d'affaires a.i., Permanent Mission of the Kingdom of Nepal to the United
Nations Office at Geneva
AdviserMr. Ram Badu Dhakal, Third Secretary, Permanent Mission of the
Kingdom of Nepal to the United Nations Office at Geneva
TUNISIA RepresentativeMr. Mohamed Ennaceur, Ambassador, Permanent
Representative of Tunisia to the United Nations Office at Geneva
Alternate Mr. Abdessalem Hetira, Representative in
representativethe Ministry of Foreign Affairs, Director of the Human
Rights Unit, Ministry of Foreign Affairs
AdvisersMr. Hatem Kotrane, Professor, in charge of the Human Rights unit,
Ministry of Social Affairs
Mr. Habib Cherif, Representative in the Ministry of Justice
Mr. Youssef Neji, Chief of the Human Rights Service, Ministry of the
Interior
Mr. Moncef Baati, Counsellor, Permanent Mission of Tunisia to the United
Nations Office at Geneva
Mr. Samir Koubaa, Counsellor, Permanent Mission of Tunisia to the United
Nations Office at Geneva
Mr. Raouf Chatti, Counsellor, Permanent Mission of Tunisia to the United
Nations Office at Geneva
Mrs. Rafla Mrabet, Secretary, Permanent Mission of Tunisia to the United
Nations Office at Geneva
MOROCCORepresentativeMr. Mohamed Majdi, Charge d'affaires a.i., Permanent
Mission of the Kingdom of Morocco to the United Nations Office at Geneva
Alternate Mr. Mohamed Lididi, Advisor to the
representativeSupreme Court, Director of the Prison and Rehabilitation
Service
AdvisersMiss Saadia Belmir, Advisor to the Supreme Court on secondment to
the General Secretariat of the Ministry of Justice
Mr. Moulay Lahcen Aboutahir, First Secretary, Permanent Mission of the
Kingdom of Morocco to the United Nations Office at Geneva
LIBYAN ARAB RepresentativeMr. Said Hafyana, Chairman of the General
JAMAHIRIYA People's Committee of Justice and General Security
AlternateMr. Mohamed Abdelfattah El Zahrah,
representativeChairman of the Supreme Court, General People's Committee
of Justice and General Security
AdvisersMr. Bachir Alhadi Al Jnuli, Member of the General People's
Committee of Justice and General Security
Ms. Najat El Hajjaji, Counsellor, Permanent Mission of the Libyan Arab
Jamahiriya to the United Nations Office at Geneva
ARGENTINA RepresentativeMr. Rodolpho Carlos Barra, Minister of Justice
AlternateMs. Zelmira Regazzoli, Director General
representativeof Human Rights, Ministry of Foreign Affairs, International
Trade and Worship
AdvisersMrs. Maria Eva Gatica, General Coordinator, Social Welfare
Services, Secretary General, Office of the President
Mr. Francisco Javier Fernandez, Private Secretary, Ministry of Justice
NEW ZEALAND RepresentativeMr. Colin R. Keating, Ambassador, Permanent
Representative of New Zealand to the United Nations in New York
AlternateMs. Gabrielle Rush, Policy Officer,
representativeMinistry of Foreign Affairs and Trade
AdviserMr. Patrick Rata, Second Secretary, Permanent Mission of New
Zealand to the United Nations in New York
PARAGUAY RepresentativeMr. Juan Rafael Caballero Gonzalez, Deputy
Minister of Justice, Ministry of Justice and Labour
AlternateMr. Jose Felix Fernandez Estigarribia,
representativeAmbassador, Permanent Representative of Paraguay to the
United Nations
AdvisersMr. Eric Maria Salum Flecha, Director General of Human Rights,
Ministry of Justice and Labour
Mrs. Ana Maria Balardi Quesnel, First Secretary, Permanent Mission of
Paraguay to the United Nations
HAITIRepresentativeMme Nicole Denerville, Secretary of State for Justice
AdviserMr. Napoleon Aubourg, Advisor to the Minister of Justice
UNITED STATES Representative Mr. John Shattuck, Assistant Secretary
OF AMERICA for Democracy, Human Rights and Labor, Department of State
Alternate Ms. Ada E. Deer, Assistant Secretary for
representativesIndian Affairs, Department of the Interior
Mr. Conrad K. Harper, Legal Adviser, Department of State
Ms. Jo Ann Harris, Assistant AttorneyGeneral, Criminal Division,
Department of Justice
Mr. Deval L. Patrick, Assistant AttorneyGeneral, Civil Rights Division,
Department of Justice
AdvisersMr. T. Alexander Aleinikoff, General Counsel, Immigration and
Naturalization Service, Department of Justice
Ms. Jamison S. Borek, Deputy Legal Adviser, Department of State
Mr. Kevin Digregory, Deputy Assistant Attorney-General, Criminal
Division, Department of Justice
Ms. Juanita C. Hernandez, Counsel to the Assistant Attorney-General,
Civil Rights Division, Department of Justice
Ms. Elizabeth Homer, Director, Office of American Indian Trust,
Department of the Interior
Mr. David P. Stewart, Assistant Legal Adviser, Department of State
Ms. Beverly Zweiben, Office of Economic and Social Affairs, Bureau of
International Organization Affairs, Department of State
Ms. Sandra J. Ashton, Attorney Adviser, Office of the Solicitor,
Department of the Interior
Mr. Bradford M. Berry, Counsel to the Deputy Attorney-General, Department
of Justice
Mr. Owen B. Cooper, Associate General Counsel, Immigration and
Naturalization Service, Department of Justice
Ms. Catherine Kay, Program Officer, Bureau of Democracy, Human Rights and
Labor, Department of State
Mr. Craig Kuehl, United States Mission to the United Nations
Mr. Yehudah Mirsky, Office of External Relations, Bureau of Democracy,
Human Rights and Labor, Department of State
Ms. Cynthia Stewart, Office of the Legal Adviser, Department of State
Ms. Tracy Toulou, Special Assistant to the Assistant Attorney-General,
Criminal Division, Department of Justice
Ms. Nancy Wade, United States Mission to the United Nations
Ms. Lisa Winston, Special Assistant to the Assistant Attorney-General,
Civil Rights Division, Department of Justice
YEMEN RepresentativeMr. Yahya Geghman, Ambassador, Permanent
(52nd session) Representative of the Republic of Yemen to the United
Nations Office at Geneva
AdviserMr. Abdul Rahman Al-Musibli, Counsellor, Permanent Mission of the
Republic of Yemen to the United Nations Office at Geneva
YEMEN RepresentativeMr. Hussein Al-Hubaishi, Adviser to the
(53rd session) Government of Yemen
AdvisersMr. Abdallah Saleh Al-Ashtal, Ambassador Extraordinary and
Plenipotentiary, Permanent Representative of Yemen to the United Nations
Ms. Noria Abdullah Ali Al-Hamami, First Secretary, Permanent Mission of
Yemen to the United Nations
UKRAINE RepresentativeMr. Vitali Krukov, Chief Consultant, Administration
of the President of Ukraine, Head of the Delegation
AdvisersMr. Oleg Shamshur, Counsellor, Permanent Mission of Ukraine
Mr. Yevhen Semashko, Second Secretary, Permanent Mission of Ukraine
LATVIA RepresentativeMs. Inese Birzniece, Head of Delegation, Chairperson
of the Parliamentary Commission for Human Rights
AdvisersMs. Sandra Kalniete, Ambassador, Permanent Representative of
Latvia to the United Nations Office at Geneva
Mr. Eglils Levits, Ambassador of Latvia to the Swiss Confederation,
Former Minister of Justice
Ms. Dace Dobraja, Chief of the International Law Division, Ministry of
Foreign Affairs
Ms. Vija Jakobsone, Attorney at Law
RUSSIAN RepresentativeMr. Valentin Kovalev, Head of Delegation,
FEDERATION Minister of Justice, Chairman of the Provisional Supervisory
Commission on the Observance of Constitutional Rights and Freedoms of
Citizens
AdvisersMr. Andrei Kolossovsky, Ambassador, Permanent Representative,
Geneva
Ms. Ludmila Zavadskaya, Chairperson, Subcommittee on Federal Legislation
and Human Rights of Russia's State Duma Committee on Legislation, Legal and
Judicial Reform
Mr. Valery Chernikov, Chief, Legal Department, Ministry of the Interior
Mr. Roman Chermenteev, Consultant, State and Law Department to the
President of Russia
Mr. Victor Makazan, Chief of Executive Board, Provisional Supervisory
Commission on the Observance of Constitutional Rights and Freedoms of
Citizens
Mrs. Lelia Alehicheva, Chief of Legal Expertise Branch, Central
Commission on Elections
Mr. Andrei Maksimov, Assistant to the Minister of Justice
Mr. Mikhail Otdelnov, Assistant to the Minister of Justice
Mr. Mikhail Lebedev, Deputy Head, Department of International
Humanitarian Cooperation and Human Rights, Ministry of Foreign Affairs
Mr. Aleksey Rogov, Chief, Human Rights Unit, Ministry of Foreign Affairs
Mr. Oleg Malginov, Senior Counsellor, Permanent Mission, Geneva
Mr. Andrey Kovalev, Senior Counsellor, Permanent Mission, Geneva
Mr. Youri Boitchenko, Second Secretary, Permanent Mission, Geneva
Mr. Nikolay Okinin, Second Secretary, Permanent Mission, Geneva
Mr. Vladimir Dolgoborodov, Third Secretary, Permanent Mission, Geneva
UNITED KINGDOM OF Representative Mr. J. F. Halliday, Deputy Secretary,
GREAT BRITAIN AND Criminal Department, Home Office
NORTHERN IRELAND
AlternatesMrs. S. A. Evans, Principal Assistant, Legal Adviser, Home
Office
Mr. S. Bramley, Assistant Secretary on secondment from the Home Office
AdvisersMs. F. Spencer, Principal, Home Office
Sir Franklin Berman, The Legal Adviser, Foreign and Commonwealth Office
Mr. I. Barnard, First Secretary, United Kingdom Mission, Geneva
Ms. E. Doherty, Third Secretary, United Kingdom Mission, Geneva
SRI LANKA RepresentativeMr. Bernard A. B. Goonetilleke, Permanent
Representative to the United Nations (Leader of the delegation)
AdvisersMr. Rohan Perera, Legal Advisor, Ministry of Foreign Affairs
Ms. A. Wijewardena, Deputy Director, Ministry of Foreign Affairs
Mr. A. L. Abdul Azeez, Third Secretary, Permanent Mission of Sri Lanka to
the United Nations Office at Geneva
--Annex X
OBSERVATIONS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5,
PARAGRAPH 4 OF THE OPTIONAL PROTOCOL RELATING TO THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS*
________________________
* To be issued subsequently in Official Records of the General Assembly,
Fiftieth Session, Supplement No. 4 (A/50/40), vol. II.
Annex XI
DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING COMMUNICATIONS
INADMISSIBLE UNDER THE OPTIONAL PROTOCOL RELATING TO THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS*
________________________
* To be issued subsequently in Official Records of the General Assembly,
Fiftieth Session, Supplement No. 40 (A/50/40), vol. II.
Annex XII
LIST OF DOCUMENTS ISSUED DURING THE REPORTING PERIOD
Reports of States parties
CCPR/C/28/Add.17 Second periodic report of the Libyan Arab
Jamahiriya
- additional information
CCPR/C/70/Add.6 Third periodic report of Sri Lanka
CCPR/C/74/Add.2 Initial report of Nepal
CCPR/C/81/Add.1/Rev.1 Initial report of Latvia
CCPR/C/81/Add.4 Initial report of the United States of America
CCPR/C/81/Add.5 Initial report of Estonia
CCPR/C/81/Add.6 Initial report of Brazil
CCPR/C/81/Add.7 Initial report of Guatemala
CCPR/C/84/Add.2 Fourth periodic report of the Russian Federation
CCPR/C/84/Add.3 Initial report of Paraguay
CCPR/C/95/Add.1 Fourth periodic report of Spain
CCPR/C/95/Add.2 Fourth periodic report of Ukraine
CCPR/C/95/Add.3 Fourth periodic report of the United Kingdom
CCPR/C/95/Add.4 Fourth periodic report of Sweden
CCPR/C/105 Initial report of Haiti
Comments of the Human Rights Committee on States parties' reports
CCPR/C/79/Add.42 Comments of the Human Rights Committee on States
parties' reports - Nepal
CCPR/C/79/Add.43 Comments of the Human Rights Committee on States
parties' reports - Tunisia
CCPR/C/79/Add.44 Comments of the Human Rights Committee on States
parties' reports - Morocco
CCPR/C/79/Add.45 Comments of the Human Rights Committee on States
parties' reports - Libyan Arab Jamahiriya
CCPR/C/79/Add.46 Comments of the Human Rights Committee on States
parties' reports - Argentina
CCPR/C/79/Add.47 Comments of the Human Rights Committee on States
parties' reports - New Zealand
CCPR/C/79/Add.48 Comments of the Human Rights Committee on States
parties' reports - Paraguay
CCPR/C/79/Add.49 Comments of the Human Rights Committee on States
parties' reports - Haiti
CCPR/C/79/Add.50 Comments of the Human Rights Committee on States
parties' reports - United States of America
CCPR/C/79/Add.51 Comments of the Human Rights Committee on States
parties' reports - Yemen
CCPR/C/79/Add.52 Comments of the Human Rights Committee on States
parties' reports - Ukraine
CCPR/C/79/Add.53 Comments of the Human Rights Committee on States
parties' reports - Latvia
CCPR/C/79/Add.54 Comments of the Human Rights Committee on States
parties' reports - Russian Federation
CCPR/C/79/Add.55 Comments of the Human Rights Committee on States
parties' reports - United Kingdom of Great Britain
and Northern Ireland
CCPR/C/79/Add.56 Comments of the Human Rights Committee on States
parties' reports - Sri Lanka
General comments
CCPR/C/21/Rev.1/Add.6General Comments adopted under article 40, paragraph
4, of the International Covenant on Civil and Political Rights - General
Comment No. 24 (52) (reservations and declarations)
Guidelines
CCPR/C/5/Rev.2Revised guidelines regarding the form and contents of
initial reports from States parties
CCPR/C/20/Rev.2Revised guidelines regarding the form and contents of
periodic reports from States parties
Provisional agendas and annotations
CCPR/C/99Provisional agenda and annotations (fifty- second session)
CCPR/C/104Provisional agenda and annotations (fifty- third session)
CCPR/C/107Provisional agenda and annotations (fifty- fourth session)
Notes concerning the consideration of reports submitted by States parties
CCPR/C/100Consideration of initial reports submitted by States parties
under article 40 of the Covenant due in 1995: note by the Secretary-
General
CCPR/C/101Consideration of second periodic reports submitted by States
parties under article 40 of the Covenant due in 1995: note by the
Secretary-General
CCPR/C/102Consideration of third periodic reports submitted by States
parties under article 40 of the Covenant due in 1995: note by the
Secretary-General
CCPR/C/103Consideration of fourth periodic reports submitted by States
parties under article 40 of the Covenant due in 1995: note by the
Secretary-General
Summary records of Committee discussions
CCPR/C/SR.1358-1386 Summary records of the fifty-second session
CCPR/C/SR.1387-1415 Summary records of the fifty-third session
CCPR/C/SR.1416-1444 Summary records of the fifty-fourth session
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