A
UNITED
NATIONS
General Assembly
Distr.
GENERAL
A/48/40 (Part I)
7 October 1993
ORIGINAL: ENGLISH
Forty-eighth session
REPORT OF THE HUMAN RIGHTS COMMITTEE*
__________
* The present document is a mimeographed version of part of the report of the Human Rights Committee. The full report will be issued subsequently as Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40).
93-55009 (E) 101193 /...
CONTENTS
Chapter Paragraphs Page
I. ORGANIZATIONAL AND OTHER MATTERS .................... 1 - 24 7
A. States parties to the Covenant .................. 1 - 4 7
B. Sessions and agenda ............................. 5 7
C. Election, membership and attendance ............. 6 - 7 7
D. Solemn declaration .............................. 8 8
E. Election of officers ............................ 9 - 10 8
F. Working groups .................................. 11 - 13 8
G. Other matters ................................... 14 - 19 9
H. Publicity for the work of the Committee ......... 20 10
I. Yearbook (Official Records) of the Human Rights
Committee ....................................... 21 10
J. Future meetings of the Committee ................ 22 - 23 11
K. Adoption of the report .......................... 24 11
II. ACTION BY THE GENERAL ASSEMBLY AT ITS FORTY-SEVENTH
SESSION ............................................. 25 - 29 12
III. REPORTS BY STATES PARTIES SUBMITTED UNDER ARTICLE 40
OF THE COVENANT ..................................... 30 - 755 14
A. Submission of reports ........................... 30 - 42 14
B. Consideration of reports ........................ 43 - 755 16
Burundi ......................................... 45 - 80 16
Senegal ......................................... 81 - 114 23
Luxembourg ...................................... 115 - 145 30
United Republic of Tanzania ..................... 146 - 189 35
Islamic Republic of Iran (1st part) ............. 190 - 214 44
Islamic Republic of Iran (2nd part) ............. 215 - 229 50
Islamic Republic of Iran (3rd part) ............. 230 - 270 53
Venezuela ....................................... 271 - 310 61
Bosnia and Herzegovina .......................... 311 - 332 69
Croatia ......................................... 333 - 362 75
CONTENTS (continued)
Chapter Paragraphs Page
Federal Republic of Yugoslavia (Serbia and
Montenegro) ..................................... 363 - 389 82
Niger ........................................... 390 - 427 88
Dominican Republic .............................. 428 - 466 95
Uruguay ......................................... 467 - 510 102
Guinea .......................................... 511 - 550 111
Ireland ......................................... 551 - 616 119
Hungary ......................................... 617 - 665 128
Egypt ........................................... 666 - 710 139
Bulgaria ........................................ 711 - 755 149
IV. GENERAL COMMENTS OF THE COMMITTEE ................... 756 - 759 159
V. CONSIDERATION OF COMMUNICATIONS UNDER THE OPTIONAL
PROTOCOL ............................................ 760 - 830 160
A. Progress of work ................................ 762 - 768 160
B. Growth of the Committee's case-load under the
Optional Protocol ............................... 769 - 770 161
C. New approaches to examining communications under
the Optional Protocol ........................... 771 - 773 162
D. Individual opinions ............................. 774 - 775 162
E. Issues considered by the Committee .............. 776 - 825 163
F. Remedies called for under the Committee's Views . 826 175
G. Monitoring compliance with the Committee's Views
under the Optional Protocol ..................... 827 - 830 176
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 31 JULY 1993 ..................................... 177
A. International Covenant on Civil and Political Rights (122) .. 177
B. Declaration under article 41 of the Covenant (42) ........... 180
C. Optional Protocol (73) ...................................... 181
CONTENTS (continued)
Page
D. Second Optional Protocol, aiming at the abolition of the
death penalty (19) .......................................... 183
II. MEMBERSHIP AND OFFICERS OF THE HUMAN RIGHTS COMMITTEE, 1993-1994 . 184
A. Membership ................................................... 184
B. Officers ..................................................... 184
III. AGENDAS OF THE FORTY-SIXTH, FORTY-SEVENTH AND FORTY-EIGHTH
SESSIONS OF THE HUMAN RIGHTS COMMITTEE ........................... 185
IV. SUBMISSION OF REPORTS AND ADDITIONAL INFORMATION BY STATES PARTIES
UNDER ARTICLE 40 OF THE COVENANT DURING THE PERIOD UNDER REVIEW .. 187
A. Initial reports of States parties due in 1984 ................ 187
B. Initial reports of States parties due in 1988 ................ 187
C. Initial reports of States parties due in 1991 ................ 187
D. Initial reports of States parties due in 1992 ................ 188
E. Initial reports of States parties due in 1993 (within the
period under review) ......................................... 188
F. Second periodic reports of States parties due in 1983 ........ 188
G. Second periodic reports of States parties due in 1984 ........ 189
H. Second periodic reports of States parties due in 1985 ........ 189
I. Second periodic reports of States parties due in 1986 ........ 191
J. Second periodic reports of States parties due in 1987 ........ 193
K. Second periodic reports of States parties due in 1988 ........ 193
L. Second periodic reports of States parties due in 1989 ........ 193
M. Second periodic reports of States parties due in 1990 ........ 194
N. Second periodic reports of States parties due in 1991 ........ 194
O. Second periodic reports of States parties due in 1992 ........ 195
P. Second periodic reports of States parties due in 1993 (within
the period under review) ..................................... 195
Q. Third periodic reports of States parties due in 1988 ......... 195
R. Third periodic reports of States parties due in 1989 ......... 196
S. Third periodic reports of States parties due in 1990 ......... 196
CONTENTS (continued)
Page
T. Third periodic reports of States parties due in 1991 ......... 197
U. Third periodic reports of States parties due in 1992 ........ 199
V. Third periodic reports of States parties due in 1993 (within
the period under review) .................................... 200
W. Fourth periodic reports of States parties due in 1993 (within
the period under review) .................................... 200
V. STATUS OF REPORTS CONSIDERED DURING THE PERIOD UNDER REVIEW AND
OF REPORTS STILL PENDING BEFORE THE COMMITTEE ................... 203
A. Initial reports ............................................. 203
B. Second periodic reports ..................................... 203
C. Third periodic reports ...................................... 204
D. Fourth periodic reports ..................................... 205
E. Reports submitted pursuant to a special decision taken by the
Committee ................................................... 205
F. Additional information submitted subsequent to the
examination of initial reports by the Committee ............. 205
G. Core documents received from States parties to the Covenant . 205
VI. GENERAL COMMENTS UNDER ARTICLE 40, PARAGRAPH 4, OF THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ............ 208
General comment No. 22 (48) (article 18) ........................ 208
VII. SPECIAL DECISIONS BY THE HUMAN RIGHTS COMMITTEE CONCERNING
REPORTS OF PARTICULAR STATES .................................... 212
A. Bosnia and Herzegovina ...................................... 212
B. Croatia ..................................................... 212
C. Federal Republic of Yugoslavia (Serbia and Montenegro) ...... 213
VIII. LETTERS FROM THE CHAIRMAN OF THE COMMITTEE CONCERNING OVERDUE
REPORTS ......................................................... 215
A. Letter dated 12 May 1993 from the Chairman of the Committee
to the Minister of Foreign Affairs of Haiti, whose initial
report was overdue .......................................... 215
B. Letter dated 12 May 1993 from the Chairman of the Committee
to the Ministers of Foreign Affairs of El Salvador, the
Sudan and Zaire, whose second or third periodic reports were
overdue ..................................................... 216
CONTENTS (continued)
Page
IX. AMENDED RULES OF PROCEDURE ...................................... 217
X. DOCUMENTS SUBMITTED BY THE HUMAN RIGHTS COMMITTEE TO THE WORLD
CONFERENCE ON HUMAN RIGHTS ..................................... 218
A. Work of the Human Rights Committee under article 40 of
the Covenant ............................................... 218
B. Follow-up on Views adopted under the Optional Protocol to
the Covenant ............................................... 222
XI. LIST OF STATES PARTIES' DELEGATIONS THAT PARTICIPATED IN THE
CONSIDERATION OF THEIR RESPECTIVE REPORTS BY THE HUMAN RIGHTS
COMMITTEE AT ITS FORTY-SIXTH, FORTY-SEVENTH AND FORTY-EIGHTH
SESSIONS ....................................................... 226
XII. VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5, )
PARAGRAPH 4, OF THE OPTIONAL PROTOCOL TO THE )
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS )
) To be issued
XIII. DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING ) under the
COMMUNICATIONS INADMISSIBLE UNDER THE OPTIONAL ) symbol
PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND ) A/48/40 (Part II)
POLITICAL RIGHTS .................................... )
XIV. LIST OF DOCUMENTS ISSUED DURING THE REPORTING PERIOD ........... 235
I. ORGANIZATIONAL AND OTHER MATTERS
A. States parties to the Covenant
1. As at 30 July 1993, the closing date of the forty-eighth session of the Human Rights Committee, 122 States had ratified or acceded to the International Covenant on Civil and Political Rights, and 72 States had ratified or acceded 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 of 30 July 1993, 42 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 of 30 July 1993, there were 19 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 States parties in respect of the Covenant and/or the Optional Protocols are set out in document CCPR/C/2/Rev.3 and in notifications deposited with the Secretary-General. By a note of 30 September 1992, the Government of Belarus notified the Secretary-General of the withdrawal of its reservation to article 48, paragraph 1, of the Covenant. By a note of 19 January 1993, the Government of the Republic of Korea notified the Secretary-General of the withdrawal of its reservation to article 14, paragraph 7, of the Covenant. Similarly, by a note of 2 February 1993, the Government of the United Kingdom of Great Britain and Northern Ireland notified the Secretary-General of the withdrawal of its reservation to article 25, subparagraph (c), of the Covenant. On 27 April 1993, the Government of Portugal notified the Secretary-General that the Covenant would henceforth apply to Macau.
B. Sessions and agenda
5. The Human Rights Committee has held three sessions since the adoption of its last annual report. 1/ The forty-sixth session (1177th to 1205th meetings) was held at the United Nations Office at Geneva from 19 October to 6 November 1992; the forty-seventh session (1206th to 1233rd meetings) was held at United Nations Headquarters from 22 March to 8 April 1993; and the forty-eighth session (1234th to 1262nd meetings) was held at the United Nations Office at Geneva from 12 to 30 July 1993. The agendas of the sessions are reproduced in annex III to the present report.
C. Election, membership and attendance
6. At the 12th meeting of States parties, held at United Nations Headquarters, on 10 September 1992, nine members of the Committee were elected, in accordance with articles 28 to 32 of the Covenant, to fill vacancies created by the expiration of terms of office on 31 December 1992. The following members were elected for the first time: Mr. Marco Tulio Bruni Celli, Ms. Elizabeth Evatt and Mr. Laurel B. Francis. Mr. Francisco José Aguilar Urbina, Mr. János Fodor, Mrs. Rosalyn Higgins, Mr. Rajsoomer Lallah, Mr. Andreas V. Mavrommatis and Mr. Fausto Pocar were re-elected. A list of the members of the Committee, as well as its officers, is given in annex II to the present report.
7. All the members attended the forty-sixth session of the Committee. Mr. Ando, Mr. Fodor and Mr. Mavrommatis attended only part of that session. All the members attended the forty-seventh session. All the members attended the forty-eighth session. Mr. Bruni Celli, Mrs. Higgins, Mr. Lallah and Mr. Pocar attended only part of that session.
D. Solemn declaration
8. At the Committee's 1206th meeting (forty-seventh session), members of the Committee who had been elected or re-elected at the 12th meeting of States parties to the Covenant made a solemn declaration before assuming their functions, in accordance with article 38 of the Covenant.
E. Election of officers
9. At its 1106th meeting (forty-seventh session), held on 22 March 1993, the Committee elected the following officers for a term of two years, in accordance with article 39, paragraph 1, of the Covenant:
Chairperson: Mr. Nisuke Ando
Vice-Chairpersons: Mr. Vojin Dimitrijevic
Mr. Omran El Shafei
Mr. Bertil Wennergren
Rapporteur: Mr. Francisco José Aguilar Urbina
10. The Committee expressed its deep appreciation to Mr. Fausto Pocar, the outgoing Chairperson, for his leadership and outstanding contribution to the success of the Committee's work.
F. Working groups
11. In accordance with rules 62 and 89 of its rules of procedure, the Committee established working groups to meet before its forty-sixth, forty-seventh and forty-eighth sessions.
12. The working group established under rule 89 was entrusted with the task of making recommendations to the Committee regarding communications under the Optional Protocol. At the forty-sixth session, the working group was composed of Mrs. Chanet, Mr. El Shafei, Mr. Prado Vallejo, Mr. Sadi and Mr. Wennergren. It met at the United Nations Office at Geneva from 15 to 19 October 1992 and elected Mrs. Chanet as its Chairperson-Rapporteur. At the forty-seventh session, the working group was composed of Mr. Fodor, Mrs. Higgins, Mr. Ndiaye, Mr. Prado Vallejo and Mr. Sadi. It met at United Nations Headquarters from 15 to 19 March 1993 and elected Mrs. Higgins as its Chairperson-Rapporteur. At the forty-eighth session, the working group was composed of Mr. Fodor, Mr. Mavrommatis, Mr. Ndiaye, Mr. Prado Vallejo and Mr. Sadi. It met at the United Nations Office at Geneva from 5 to 9 July 1993 and elected Mr. Mavrommatis as its Chairperson-Rapporteur.
13. The working group established under rule 62 was mandated to prepare lists of issues concerning second and third periodic reports scheduled for consideration at the Committee's forty-sixth, forty-seventh and forty-eighth sessions and to consider any draft general comments that might be put before it. Additionally, the working group that met before the forty-eighth session was requested to review the Committee's procedures under article 40 of the Covenant in the light of the discussion on that subject at the Committee's forty-seventh session. At the forty-sixth session, the working group was composed of Mr. Aguilar Urbina, Mr. Dimitrijevic, Mr. Ndiaye and Mr. Wennergren. It met at the United Nations Office at Geneva from 12 to 16 October 1992 and elected Mr. Aguilar Urbina as its Chairperson-Rapporteur. At the forty-seventh session, the working group was composed of Mr. Aguilar Urbina, Mr. Ando and Mr. Wennergren. It met at United Nations Headquarters from 15 to 19 March 1993 and elected Mr. Aguilar Urbina as its Chairperson-Rapporteur. At the forty-eighth session, the group was composed of Mr. Aguilar Urbina, Mr. Dimitrijevic and Mr. Wennergren. It met at the United Nations Office at Geneva from 5 to 9 July 1992 and elected Mr. Wennergren as its Chairperson-Rapporteur.
G. Other matters
Forty-sixth session
14. The Committee was informed by the Under-Secretary-General for Human Rights of the report of the Secretary-General on the work of the Organization submitted to the General Assembly at its forty-seventh session and took note with interest of the suggestion by the Secretary-General that expert human rights bodies might be empowered to bring massive human rights violations to the attention of the Security Council, together with recommendations for action. The Under-Secretary-General also informed members that the Commission on Human Rights, under the procedure established by Economic and Social Council resolution 1990/48, had held its first special session on 13 and 14 August 1992, devoted to the serious human rights situation in the former Yugoslavia. Among the material brought to the Commission's attention had been the comments adopted by the Committee in connection with its consideration of the third periodic report of Yugoslavia in March 1992. Members were also briefed on the fourth meeting of the persons chairing the human rights treaty bodies, on recent activities of the Committee on the Elimination of Racial Discrimination, the Committee on the Rights of the Child and the programme of advisory services of the Centre for Human Rights, as well as on the third session of the Preparatory Committee for the World Conference on Human Rights.
15. The Committee confirmed on 19 October 1992 (1178th meeting) a decision taken on 7 October 1992, through its Chairperson acting on behalf of and in consultation with the members of the Committee, whereby the Governments of Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro) were requested to submit special reports on events affecting human rights protected under the Covenant in respect of persons and events now coming under their jurisdiction (see para. 36 and annex VII below). The Committee also agreed that, in the case of an exceptional situation arising in the future when the Committee was not in session, a request for submission of a report should be made through the Chairperson acting in consultation with the members of the Committee and decided that a text amending the Committee's rules of procedure in that regard should be presented for adoption at the Committee's forty-seventh session.
Forty-seventh session
16. The Committee was informed by the representative of the Secretary-General that Mr. Ibrahima Fall had been appointed Assistant Secretary-General for Human Rights to succeed Mr. Antoine Blanca as head of the Centre for Human Rights. The Committee was informed of the adoption by the General Assembly in its resolution 47/135 of 18 December 1992. The Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities and of the decision of the Security Council in its resolution 808 (1993) of 22 February 1993, to establish an international tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.
17. Members were also informed of the actions taken by the Commission on Human Rights at its forty-ninth session and welcomed the Commission's request to States parties duly to take into account, in implementing the provisions of the Covenant, the Committee's concluding observations. Members were also briefed on recent activities of the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Rights of the Child and the programme of advisory services of the Centre for Human Rights.
18. The Committee discussed in detail the possibility of modifying its methods of work under article 40 of the Covenant. Various suggestions were made to adapt the Committee's procedures in dealing with emergency situations. The possibility of making known the Committee's views on matters within its competence, as well as its comments on States parties' reports, particularly on reports submitted pursuant to special decisions taken by the Committee, to the appropriate United Nations bodies, including the Security Council, was envisaged. It was also considered that, when it had not been able to ascertain whether its recommendations included in its concluding observations had been acted upon, the Committee might request the State party concerned to accept a mission, consisting of one or two members of the Committee, with a view to learning the responses of the State concerned to the specific proposals for the better enjoyment of human rights. The working group that was to meet prior to the forty-eighth session was requested to study the matter further.
19. In order to react more efficiently to exceptional situations arising when the Committee was not in session, on 8 April 1993 (1233rd meeting) the Committee amended its rules of procedure to the effect that, in such circumstances, a request for the submission of a report might be made through the Chairperson, acting in consultation with the members of the Committee (see annex IX).
H. Publicity for the work of the Committee
20. The Chairperson, accompanied by other officers, held press briefings during each of the Committee's three sessions. The Committee noted with satisfaction the increased level of interest in its activities shown by the media and non-governmental organizations.
I. Yearbook (Official Records) of the Human Right Committee
21. The Committee was informed that the Yearbook for 1987 had just been published. Noting with appreciation the contribution made by the Sasakawa Foundation to facilitate the publication of the Yearbooks of the Committee, it expressed the hope that the backlog would be eliminated as soon as possible and that the Yearbook would henceforth be published on a regular and timely basis.
J. Future meetings of the Committee
22. At its forty-seventh session, the Committee confirmed its calendar of meetings for 1994-1995, as follows: the fiftieth session was to be held at United Nations Headquarters from 21 March to 8 April 1994; the fifty-first session at the United Nations Office at Geneva from 11 to 29 July 1994; the fifty-second session also at the United Nations Office at Geneva from 17 October to 4 November 1994; the fifty-third session at United Nations Headquarters from 20 March to 7 April 1995; the fifty-fourth session at the United Nations Office at Geneva from 10 to 28 July 1995 and the fifty-fifth session also at the United Nations Office at Geneva from 16 October to 3 November 1995. In each case the Committee's working groups would meet during the week preceding the session.
23. At its forty-eighth session, the Committee decided to request that its fifty-first session be extended by one week to allow for additional time to deal with the heavy backlog of communications under the Optional Protocol and reports from States parties.
K. Adoption of the report
24. At its 1260th, 1261st and 1262nd meetings, held on 29 and 30 July 1993, the Committee considered the draft of its seventeenth annual report, covering its activities at the forty-sixth, forty-seventh and forty-eighth sessions, held in 1992 and 1993. The report, as amended in the course of the discussion, was unanimously adopted by the Committee.
II. ACTION BY THE GENERAL ASSEMBLY AT ITS FORTY-SEVENTH SESSION
25. At its 1228th and 1229th meetings, held on 6 April 1993, the Committee considered the agenda item in the light of the relevant summary records of the Third Committee, General Assembly resolution 47/111 of 16 December 1992 and Commission on Human Rights resolution 1993/15 of 26 February 1993.
26. The Committee noted that, pursuant to General Assembly resolution 45/175 of 18 December 1990, substantive resolutions on treaty-based bodies were to be adopted biennially ("odd years") and that, consequently, at its forty-seventh session the Third Committee only took note of its report.
27. With reference to the discussion within the General Assembly relating to the effective implementation of human rights instruments and the effective functioning of human rights treaty bodies, the Committee noted with satisfaction that States resulting from the dissolution of former parties to human rights instruments had been called upon to send official notifications regarding the continued applicability of the relevant treaties. The Committee also noted, with particular satisfaction, the positive comments made in the Third Committee by delegations on the innovations that had been introduced in its methods of work, notably in relation to the formulation of comments by the Committee on each State report and the decision to request urgent reports when necessary to monitor serious situations.
28. The Committee discussed the relevant resolutions adopted by the Commission on Human Rights at its forty-eighth session and expressed strong agreement, in particular, with the recommendation that countries having difficulties in introducing changes in their legislation that might be necessary in advance of ratification of international instruments on human rights should be encouraged to request appropriate support from the Centre for Human Rights under the advisory services and technical assistance programme. The Committee also expressed satisfaction that the Commission had renewed its request to have the recent periodic reports of States parties to treaty-monitoring bodies and the summary records of Committee discussions pertaining to them made available in United Nations information centres in the countries concerned.
29. In accordance with General Assembly resolution 45/155, the World Conference on Human Rights was held at Vienna from 14 to 25 June 1993. During the World Conference, a meeting of the Chairpersons of international and regional human rights treaty-based bodies took place on 15 and 16 June 1993. As a contribution to the World Conference as well as to the meeting, the Human Rights Committee submitted two papers entitled "Work of the Human Rights Committee under article 40 of the Covenant on Civil and Political Rights" (A/CONF.157/TBB/2) and "Follow-up on views adopted under the Optional Protocol to the International Covenant on Civil and Political Rights" (A/CONF.157/TBB/3), respectively (see annex X). The human rights treaty bodies represented at the meeting included the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Racial Discrimination, the Committee on the Elimination of Discrimination against Women, the Committee against Torture, the Committee on the Rights of the Child, the African Commission on Human and Peoples' Rights, the European Commission and the European Court of Human Rights, the European Committee for the Prevention of Torture, the Inter-American Commission and the Inter-American Court of Human Rights, and the International Labour Organization (ILO) Committee on the Application of Conventions and Recommendations. Mr. Nisuke Ando, Chairman of the Human Rights Committee, participated in the Conference and represented the Committee at the meeting. Mr. Omran El Shafei and Mr. Fausto Pocar also participated in the Conference, and attended the meeting. Mr. Marco T. Bruni Celli participated in the meeting as a representative of the Inter-American Commission on Human Rights. At the conclusion of the meeting, the representatives of the international human rights treaty bodies adopted the Vienna Statement of the International Human Rights Treaty Bodies containing specific recommendations to the World Conference (A/CONF.157/TBB/4).
III. REPORTS BY STATES PARTIES SUBMITTED UNDER
ARTICLE 40 OF THE COVENANT
A. Submission of reports
30. States parties have undertaken to submit reports in accordance with article 40, paragraph 1, of the International Covenant on Civil and Political Rights 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 the reports required under article 40, paragraph 1 (a), of the Covenant, the Human Rights Committee, at its second session, approved general guidelines regarding the form and contents of initial reports. 2/
31. Furthermore, in accordance with article 40, paragraph 1 (b), of the Covenant, the Committee at its thirteenth session adopted a decision on periodicity requiring States parties to submit subsequent reports to the Committee every five years. 3/ 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. 4/ 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/
32. At each of its sessions during the reporting period, the Committee was informed of and considered the status of the submission of reports (see annex IV).
33. The action taken, information received and relevant issues placed before the Committee during the reporting period (forty-sixth to forty-eighth sessions) are summarized in paragraphs 34 to 42 below.
Forty-sixth session
34. The Committee was informed that the third periodic report of Italy had been received. The Committee was also informed that "core documents" prepared in accordance with the consolidated guidelines for the initial part of State party reports had been received from Burundi, Egypt, Ireland and Panama.
Requests for special reports
35. The Committee decided to send reminders to the Governments of Gabon, Equatorial Guinea, Nepal, Malta, Somalia and Zimbabwe whose initial reports were overdue. In addition, the Committee decided to send reminders to the Governments of the following States parties whose second periodic reports were overdue: Argentina, Bolivia, Bulgaria, Cameroon, Central African Republic, Congo, Cyprus, Democratic People's Republic of Korea, El Salvador, Gabon, Gambia, Guyana, Iceland, Jamaica, Kenya, Lebanon, Libyan Arab Jamahiriya, Mali, Netherlands (with respect to the Netherlands Antilles), New Zealand (with respect to the Cook Islands), San Marino, Saint Vincent and the Grenadines, Suriname, Syrian Arab Republic, Togo, Viet Nam, and Zambia. Reminders were also sent to the following Governments whose third periodic reports were overdue: Australia, Barbados, Bulgaria, Central African Republic, Costa Rica, Cyprus, Denmark, El Salvador, France, Gambia, Guyana, Iceland, India, Jamaica, Kenya, Lebanon, Libyan Arab Jamahiriya, Mali, Mauritius, Netherlands, New Zealand, Nicaragua, Panama, Portugal, Rwanda, Sri Lanka, Suriname, Syrian Arab Republic, Trinidad and Tobago and Zaire.
36. Deeply concerned by recent events in the territory of the former Yugoslavia affecting human rights protected under the Covenant, having noted that all the peoples within the territory of the former Yugoslavia are entitled to the guarantees of the Covenant, finding that the new States within the boundaries of the former Yugoslavia succeeded to the obligations of the former Yugoslavia under the Covenant in so far as their respective territories were concerned, and acting under article 40, paragraph 1 (b), of the Covenant, the Committee, through its Chairman acting on behalf of and in consultation with the members of the Committee, requested on 7 October 1992, shortly before the session, the Governments of Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro) to submit a special report in respect of persons and events now coming under their jurisdictions. That decision was confirmed by the Committee on 19 October 1992 (1178th meeting). Subsequently, such reports were received from the three Governments (see annex VII).
Forty-seventh session
37. The Committee was informed that the second periodic reports of Bulgaria, Cameroon and the Libyan Arab Jamahiriya, the third periodic report of Costa Rica and the fourth periodic report of Tunisia had been received. Core documents had also been received from Morocco, Paraguay, Poland, Portugal and Zambia.
38. In view of the growing number of outstanding State party reports, the Committee agreed that its officers should meet in New York with the permanent representatives of all States parties whose initial or periodic reports had been overdue for more than three years. Accordingly, contacts were made with the Permanent Representatives of Cyprus, the Democratic People's Republic of Korea, Denmark, Gabon, the Gambia, Guyana, Iceland, Jamaica, Kenya, Lebanon, Mali, the Netherlands, New Zealand, Suriname, the Syrian Arab Republic and Trinidad and Tobago. It was not possible to establish contact with the Permanent Representatives of the Central African Republic, the Congo and Equatorial Guinea.
39. In addition, the Committee decided to send reminders to the Governments of Albania, Estonia, Gabon, Grenada, Equatorial Guinea, Israel, Lithuania, Nepal, Somalia and Zimbabwe whose initial reports were overdue. Reminders were also sent to the Governments of the following States parties whose second periodic reports were overdue: Argentina, Bolivia, Central African Republic, the Congo, Cyprus, the Democratic People's Republic of Korea, Gabon, the Gambia, Guyana, Jamaica, Kenya, Lebanon, Mali, the Netherlands (with respect to the Netherlands Antilles), New Zealand (with respect to the Cook Islands), Philippines, Saint Vincent and the Grenadines, San Marino, Suriname, Syrian Arab Republic, Togo, Viet Nam and Zambia. Reminders were also sent to the following Governments whose third periodic reports were overdue: Australia, Barbados, Central African Republic, Cyprus, the Democratic People's Republic of Korea, Denmark, France, the Gambia, Guyana, India, Jamaica, Kenya, Lebanon, Madagascar, Mali, Mauritius, Morocco, the Netherlands, New Zealand, Nicaragua, Panama, Portugal, Rwanda, Saint Vincent and the Grenadines, Sri Lanka, Suriname, Syrian Arab Republic and Trinidad and Tobago.
40. In view of the special difficulties encountered by El Salvador, Haiti, the Sudan and Zaire in the implementation of the Covenant, the Committee decided to send a special reminder urging them to submit their initial or periodic reports as rapidly as possible. The texts of the letters, dated 12 May 1993, from the Chairman of the Committee to the Minister for Foreign Affairs of El Salvador, Haiti, the Sudan and Zaire are reproduced in annex VIII to the present report.
41. Considering that all the peoples within the territory of a former State party to the Covenant remained entitled to the guarantees of the Covenant, and that Armenia, Georgia, Kazakhstan, Kyrgyzstan, Tajikistan, the former Yugoslav Republic of Macedonia, Turkmenistan and Uzbekistan were bound by the obligations under the Covenant as from the date of their independence, the Committee noted that reports under article 40 of the Covenant became due one year after that date and requested, in notes verbales dated 28 May 1993 addressed to the Minister for Foreign Affairs of those States, that such reports be submitted to it.
Forty-eighth session
42. The Committee was informed that the initial reports of Malta, Latvia and the second periodic reports of Cyprus, Iceland and Yemen as well as the third periodic report of Morocco had been received. Core documents had also been received from Cyprus, Lebanon, Madagascar and Switzerland.
B. Consideration of reports
43. During its forty-sixth, forty-seventh and forty-eighth sessions, the Committee considered the initial reports of Burundi, Ireland and Niger; the second periodic reports of Bulgaria, Egypt, Guinea, the Islamic Republic of Iran, Luxembourg, the United Republic of Tanzania and Venezuela; and the third periodic reports of the Dominican Republic, Hungary, Senegal and Uruguay. At its forty-sixth session, the Committee also considered the special reports submitted by Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro).
Summaries of the consideration by the Committee of States parties' reports
44. The following sections relating to States parties are arranged on a country-by-country basis according to the sequence followed by the Committee in its consideration of reports at its forty-sixth, forty-seventh and forty-eighth sessions. These sections are only summaries, based on the summary records of the meetings at which the reports were considered by the Committee. Fuller information is contained in the reports of and additional information submitted by the States parties concerned 7/ and in the summary records referred to.
Burundi
45. The Committee considered the initial report of Burundi (CCPR/C/68/Add.2) and the core document forming the initial part of reports under the various international human rights instruments (HRI/CORE/1/Add.16) at its 1178th, 1182nd and 1183rd meetings on 19, 21 and 22 October 1992 (CCPR/C/SR.1178, 1182 and 1183). (For the composition of the delegation, see annex XI.)
46. The report was introduced by the representative of the State party, who indicated that, since 1987, the authorities had been working to put an end to the situation of division and violence in the country. The long process of dialogue that had been initiated had led to the drafting of the Charter of National Unity and the new Constitution, which had won a nearly 90 per cent vote of approval in referendums held in February and March 1992. A national commission had been set up for the return, reception and reintegration of refugees. Some 40,000 persons had returned to Burundi under the voluntary repatriation programme, despite attacks by the Hutu People's Liberation Party.
47. The representative drew attention to the human rights provisions introduced in the new Constitution of March 1992. The measures taken in favour of the promotion of human rights extended to the recognition of democracy based on political pluralism. Seven groupings had already been authorized as political parties under a law promulgated in April 1992 and legislative and presidential elections were scheduled for March 1993. Bearing in mind its level of social and cultural development, however, Burundi still had many obstacles to overcome on the path to democracy, social justice and development.
48. The members of the Committee welcomed with satisfaction the initial report of Burundi, which had been submitted shortly after it had been due, and thanked the State party for the core document forming the initial part of reports under the various international human rights instruments (HRI/CORE/1/Add.16). They nevertheless regretted that, because the report contained only a brief description of the legal provisions in force and did not refer to practice or the factors and difficulties impeding the implementation of the Covenant, it was not in keeping with the Committee's guidelines on the preparation of reports.
49. With regard to article 2 of the Covenant, the members of the Committee requested information on the hierarchy of legal norms in Burundi, the status of the Covenant in internal law, the relationship between the Constitution and the Charter of National Unity, the work in progress on the drafting of a new Penal Code and a new Code of Penal Procedure and the tasks of the Centre for the Promotion of Human Rights in Burundi. It was also asked how possible conflicts between the provisions of the Constitution and the Covenant and those of ordinary law were settled, whether the text of the Covenant had been translated into the various local languages, how the authorities had made known the Constitution and the Charter of National Unity to illiterate members of the population and what the powers of the National Security Council were.
50. In respect of article 3 of the Covenant, the members of the Committee asked what specific measures had been taken to promote the equality of men and women, how the nationality of parents was transmitted to children and what provisions governed the property of the spouses in marriage and the custody of children.
51. Referring to article 4 of the Covenant, the members of the Committee asked whether the rights mentioned in article 4, paragraph 2, of the Covenant could be derogated from during a state of emergency, whether the Secretary-General had been notified of the proclamation of the state of emergency and what derogations to the Covenant had been made at that time.
52. In connection with articles 6, 7, 9 and 10 of the Covenant, the members of the Committee asked in what cases the death penalty could be handed down, in how many cases it had been applied in the past, whether there were plans to abolish it, what law regulated the use of force by the police, whether controls had been established to ensure that persons arrested or detained, particularly in police stations, were not subjected to torture or ill-treatment, whether the Code of Penal Procedure did or would establish machinery for the conduct of independent and impartial investigations into allegations of torture, whether persons responsible for such acts were brought to justice and punished, what measures were taken to avoid overcrowding in detention centres, whether the Standard Minimum Rules for the Treatment of Prisoners were observed and whether the relevant rules were known to prisoners and law enforcement officials. It was asked how long it took before a person in custody was brought before a judge, what measures were taken to prevent abusive arrests and pre-trial detention and whether there was a remedy in Burundi law similar to that of habeas corpus.
53. Clarifications were requested on the events of November 1991 and March 1992 that had allegedly resulted in mass arbitrary arrests, enforced or involuntary disappearances, summary or arbitrary executions, many cases of torture and ill-treatment and serious breaches of the Standard Minimum Rules for the Treatment of Prisoners. It was asked whether those tragic events had been investigated, whether the individual responsibility of soldiers or gendarmes in those events had been established and how many members of the armed forces and gendarmerie had been prosecuted.
54. With regard to articles 12 and 13 of the Covenant, the members of the Committee requested further information on the problem of the voluntary repatriation of refugees to Burundi. It was asked whether such repatriation was in accordance with article 33 of the Convention relating to the Status of Refugees and article 18 of the Covenant, whether a general amnesty law was being envisaged and what the functions and activities of the National Commission for the Return, Reception and Reintegration of Refugees were.
55. In respect of article 14 of the Covenant, the members of the Committee asked whether the principle of the irremovability of judges existed in Burundi, how the independence and impartiality of the judiciary were guaranteed, what powers the Judicial Supervisory Commission and the Mandi Commission had, particularly as far as detention was concerned, whether there were political prisoners or prisoners of opinion arrested or detained in Burundi for opposing the Government, what measures had been taken to guarantee their right of defence and what jurisdiction military courts had.
56. Referring to articles 17, 18 and 19 of the Covenant, the members of the Committee requested information on the media bill and how article 18 of the Covenant was being implemented. They asked whether the media were State owned and whether Burundi and foreign journalists were free to express their opinions.
57. In connection with articles 21, 25 and 27 of the Covenant, the members of the Committee requested further information on the political parties and trade unions that now existed in Burundi, on the conditions in which the Decree-Law of 31 December 1991 making it obligatory to request prior authorization to hold a public demonstration was applied and on the implementation of the provisions according to which political parties were prohibited from identifying themselves with an ethnic group or religion. It was also asked what measures were taken to settle ethnic conflicts, whether the Charter of National Unity had achieved its aim of integrating all citizens into the country's political life, whether the restrictions provided for in articles 55, 56 and 57 of the Constitution were in keeping with articles 19, 22 and 25 of the Covenant, whether the opposition parties could present candidates in communal elections, whether measures had been taken to enable the Hutus, the majority ethnic group, to enter the public service and, in particular, to join the army in general conditions of equality and what was meant by the expression "who enjoy their civil and political rights" in article 3 of the Constitution.
58. In her reply, the representative of the State party said that Burundi had a single people, with a single culture and a single language. It had had many ethnic problems for reasons relating to its monarchical and colonial past and the running of State affairs after independence. In the last few years, however, efforts had been made to bring about national reconciliation, as shown by the adoption of the Charter of National Unity and the new Constitution. Legislative and preventive measures had been taken to educate the people and make them aware of the equality of all before the law. The Government was trying to promote ethnic reconciliation through specific actions aimed at preventing exclusion in all areas of national life, particularly concerning appointments of senior officials and the recruitment of security officials.
59. The provisions of articles 10 to 15 of the Constitution recapitulated the principles enunciated in article 2 of the Covenant. Other texts, such as the Penal Code and the Code of Penal Procedure, reproduced the definition of discrimination contained in the International Convention on the Elimination of All Forms of Racial Discrimination. Measures had been taken to promote the principle of the equality of men and women and the rights of children. However, the acceptance of democratic ideas accompanying the emergence of new political parties was still giving rise to problems, especially in rural areas, and there was still some inequality between the sexes as a result of sociocultural problems, particularly as far as the right to inherit was concerned. The Centre for the Promotion of Human Rights had the general task of disseminating information on and increasing awareness of human rights. The Government was endeavouring to make national and international legal instruments known to the illiterate part of the population by organizing rallies and information meetings, as well as radio programmes.
60. Replying to other questions on article 2 of the Covenant, the representative indicated that all the rights and duties embodied in the international human rights instruments were proclaimed in and guaranteed by article 10 of the Constitution. Moreover, the Covenant and the Constitution naturally prevailed over the Penal Code and the Code of Penal Procedure and, if the latter failed to conform to the Covenant or the Constitution, they were automatically amended or annulled by the Appeals Division. The Charter of National Unity was not accompanied by any legal or regulatory sanctions, but had primacy over the law. It was based essentially on the principle embodied in article 20 of the Covenant and was thus fully in conformity with the Covenant.
61. Referring to article 4 of the Covenant, he said that the various legal instruments relating to the maintenance of order and security, the proclamation of a state of emergency or state of siege and the requisitioning of persons and property had been drafted in the light of the need to protect human rights and individual freedoms and to maintain or re-establish law and order. Article 79 of the Constitution, setting forth the special powers of the President of the Republic during a state of exception or emergency, was fully compatible with articles 4 and 9 of the Covenant. In practice, whenever an exceptional measure was taken, for example, during the meningitis epidemic in September 1992, the public was so informed by the media and by the local authorities.
62. With regard to articles 6, 7 and 10 of the Covenant, the representative indicated that, in Burundi, the death penalty could be imposed in cases of assassination, murder, theft followed by murder, cannibalism and torture, rape or abortion resulting in death. Handing down a death sentence, even if it was not carried out, was not a futile act, given the deterrent effect of such a sentence and the infamy it entailed. He also noted that disciplinary and criminal penalties had been applied to security force members who had violated articles 11, 19, 20 and 21 of the Constitution on the individual's right to physical and moral integrity. Although it was undeniable that irregularities had occurred and might reoccur, particularly in the context of ethnic disputes, the competent authorities were endeavouring to ensure respect for the right to life. Detention conditions were consistent with the Standard Minimum Rules for the Treatment of Prisoners. Prisoners were entitled to confer with their lawyers in private.
63. Replying to questions concerning the events of November 1991 and March 1992, he stressed that the human rights violations which had occurred had been the work of an ethnic terrorist faction called the Hutu People's Liberation Party. It took the view that reconciliation was impossible as long as there was ethnic cleansing in Burundi. The members of that faction incited the people to ethnic hatred and sought to deceive international opinion by means of preposterous untruths to the effect that the Hutus were the victims of massacres by the Tutsi minority. In November 1991, some communes had been struck by terrorist attacks which had claimed 500 victims. Clashes between the law enforcement forces and the aggressors had also resulted in many victims on both sides. Legal proceedings had been brought against the terrorists and their accomplices and had been conducted with the greatest possible openness. Abuses by the police had also been reported and members of the military had been prosecuted for summary executions.
64. Referring to article 9 of the Covenant, the representative indicated that measures had been taken to guarantee the right of a detainee to be informed of the reasons for his arrest, to appear before a judge within a reasonable period of time and to have the assistance of a lawyer. In addition, the Code of Penal Procedure was currently being revised to bring it even more closely into line with the constitutional provisions guaranteeing respect for human rights. According to article 4 of the Code of Penal Procedure, the government attorney carried out a weekly inspection of police station premises and had the power to release any person apprehended by the police where evidence against that person was insufficient.
65. In respect of articles 12 and 13 of the Covenant, the representative of the State party indicated that irregularities in the application of the internal provisions relating to freedom of movement had been noted for the last time in 1978. Since 1989, no one had been required to submit his travel documents to the immigration service. In order to facilitate the reception and integration of returnees, the decree of 22 January 1992 empowered the Commission for the Voluntary Repatriation of Refugees to settle disputes over property claimed by the returnees. The Commission's decisions were not open to appeal in order to facilitate reception conditions and encourage the amicable settlement of any family conflicts which might arise.
66. As to article 14 of the Covenant, the representative of the State party said that the military tribunals were empowered to try military personnel and their civilian accomplices and to judge any crimes and offences involving the use of firearms committed by civilians. The judiciary was separate from the military courts and the decisions of the military courts could be set aside by the Supreme Court. Although there had been cases of pressure by the executive on the judiciary from 1980 to 1985, the 1992 Constitution guaranteed the independence of the judiciary. Measures to dismiss judges were taken by a disciplinary body presided over by the Head of State. In Burundi, there were some prisoners of conscience or opinion, and they had been prosecuted for inciting racial hatred. None of them had, however, been prosecuted for criticizing the Government, a party or the administration. Replying to other questions, the representative indicated that the law governing the bar, as well as the laws governing the Code of Penal Procedure and the Criminal Division of the Court of Appeal, provided that a person charged with an offence could be assisted by counsel of his own choosing or could request that counsel should be assigned to him. In 1977, the Mandi Commission had abolished land development contracts under which a person who had cultivated a landholding for several years could be evicted from it at any time by the landowner. The Judicial Control Commission, replaced in 1987 by the Office of the Inspector-General of Justice, dealt exclusively with monitoring the enforcement of judgements in land disputes.
67. The representative of the State party said that the rights covered by articles 18 and 19 of the Covenant had become a reality in Burundi, where many political parties, associations, newspapers, religions and sects had been authorized for some years.
68. As to articles 21, 22 and 25 of the Covenant, the representative of the State party stressed that public demonstrations were authorized under a decree-law adopted in 1992. For security reasons, demonstration organizers had to inform local authorities of the demonstration 48 hours in advance. The restrictions on the right to take part in the conduct of public affairs, to vote and to be elected, as referred to in articles 3 and 29 of the Constitution, were fully consistent with the Covenant. Article 57 of the Constitution prohibited political parties from identifying themselves in any way with an ethnic group, region, religion, sect or sex.
69. With regard to article 27 of the Covenant, the members of the Committee said that there were no ethnic groupings in the strict sense of the word in Burundi, since no population group possessed a territory, culture, language or religion of its own. However, the term "ethnic group" was used for lack of a better word to designate the Hutus, the Tutsis and the Twas, whereas the three groups made up a single population sharing the same culture. During the colonial era, the Hutus had represented 85 per cent of the population, the Tutsis 14 per cent and the Twas 1 per cent and no ethnic census had been organized since then.
Concluding observations by individual members
70. In concluding the consideration of the initial report of Burundi, members of the Committee welcomed the willingness of the State party's delegation to cooperate and enter into a constructive dialogue with the Committee on the application of the Covenant in Burundi. Members noted a number of positive developments that had recently taken place in Burundi, in particular, the opening towards pluralism, the promulgation of a new Constitution, the ratification of a number of international human rights instruments, the establishment of a centre for the promotion of human rights, and the agreement of the Government to the establishment of independent associations for the protection of human rights. Although there was still much to be done, members welcomed the implementation of a policy of voluntary repatriation, resettlement and social and occupational reintegration of refugees.
71. At the same time, members of the Committee expressed special concern over the cases of extrajudicial executions and of torture in connection with the upheavals that took place in 1988, 1991 and 1992. In that connection, they pointed out that no derogation from articles 6 and 7 of the Covenant were permitted under any circumstances. They also expressed concern over the unavailability of effective remedies to victims of human rights violations; the absence of legal provisions prohibiting illegal detention; the shortage of legal personnel and the financial constraints which hampered the administration of justice; the general inadequacy of the legal and other measures designed to promote and protect human rights; the various constitutional limitations on the effective enjoyment of human rights; and over problems relating to the effective implementation of articles 18, 19 and 27 of the Covenant.
72. The representative of the State party expressed her sincere thanks and appreciation for the dialogue which had been initiated and assured the Committee of her Government's desire to make improvements in future periodic reports.
73. In concluding the consideration of the report, the Chairman also thanked the representative for her cooperation and expressed the hope that the Committee's comments would be taken into account by the Government.
Comments of the Committee
74. At its 1203rd meeting (forty-sixth session), held on 5 November 1992, the Committee adopted the following comments.
Introduction
75. 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 Burundi, as evidenced by the timely submission of its initial report, the sending of a high-level delegation to present the report and the submission of an additional document updating the information contained in the initial report. The Committee has, however, noted that the report did not conform to the Committee's general guidelines for the preparation of initial reports. The Committee commends Burundi for the core document (HRI/CORE/1/Add.16) submitted in accordance with the consolidated guidelines for the initial part of reports submitted under the various international human rights instruments (HRI/1991/1).
76. Since neither the initial report nor the additional document contained sufficient information on the actual application of the Covenant, in particular information on the factors and difficulties affecting the implementation of the provisions of the Covenant, it was difficult for the Committee to obtain a clear picture of the human rights situation in the country.
Positive aspects
77. The Committee has noted that recently a number of developments had taken place in Burundi that may have a positive effect on the human rights situation in the country, including the opening towards pluralism; the promulgation of a new constitution; the ratification of a number of international human rights instruments; the establishment of a centre for the promotion of human rights; and the agreement of the Government to the establishment of independent associations for the promotion and protection of human rights. Although there is still much to be done, the Committee welcomes the implementation of a policy of voluntary repatriation, resettlement, and social and occupational reintegration of Burundian refugees.
Factors and difficulties impeding the application of the Covenant
78. The Committee has noted that the upheavals that took place in the country in 1988, 1991 and 1992 had a negative impact on the human rights situation in Burundi as a whole, and seriously affected compliance with the provisions of the Covenant. Furthermore, constitutional provisions stipulating that the enjoyment of human rights had, in many instances, to be subordinated to the imperatives of public order, hindered the effective implementation of the Covenant. The Committee has also noted the absence of laws giving effect to constitutional provisions on human rights, the shortage of legal personnel and the large backlog of cases before the courts, all of which hinder the effective protection of human rights.
Principal subjects of concern
79. The Committee expresses concern about the general inadequacy of the legal and other measures designed to promote and protect human rights and, especially, about the various constitutional limitations on the effective enjoyment of human rights. The Committee is alarmed over the cases of extrajudicial executions and of torture documented in the reports prepared by the Special Rapporteurs of the Commission on Human Rights on those subjects (E/CN.4/1992/30 and E/CN.4/1992/17) and also as reported by various non-governmental organizations. In that connection, the Committee observes that no derogations from articles 6 and 7 of the Covenant are permitted under any circumstances. The Committee has also noted that effective remedies to victims of human rights violations, as envisaged in article 2, paragraph 3, of the Covenant, are not available. In addition, the absence of legal provisions prohibiting illegal detention and of a habeas corpus procedure seriously undermine the rights to liberty and security of person as set forth in article 9 of the Covenant. The non-conformity of legislation and actual practice with articles 18 and 19 of the Covenant was also of special concern.
Suggestions and recommendations
80. The Committee recommends that a determined effort be made to bring national laws and practice more closely into conformity with the provisions of the Covenant, that the use of excessive force by law enforcement officers should be effectively prevented and that, in conformity with articles 2, 26 and 27 of the Covenant, the rights of persons belonging to minorities living in the country should be given full protection. It is also recommended that Burundi's second periodic report should be prepared in conformity with the Committee's general guidelines and provide comprehensive information on measures undertaken, both in law and in practice, to give effect to the provisions of the Covenant.
Senegal
81. The Committee considered the third periodic report of Senegal (CCPR/C/64/Add.5) at its 1179th to 1181st meetings, held on 20 and 21 October 1992 (CCPR/C/SR.1179-1181). (For the composition of the delegation, see annex XI.)
82. The report was introduced by the representative of the State party, who stated that the United Nations human rights instruments had served as a major source of inspiration to Senegal on its accession to international sovereignty, when it had resolved to make the primacy of the law the foundation of the State. As a result, human rights were not merely reflected in the preamble to the Constitution but were defined systematically in articles 6 to 20 and could be evoked and defended before all appropriate bodies. In 1970, the Senegalese Human Rights Committee was established to plan and coordinate government policy and disseminate information on human rights. The Committee had been reorganized, most recently in 1990, in order to adapt it to the national and international situation concerning the promotion and protection of human rights. Additionally, the public authorities had encouraged the establishment of competent non-governmental organizations. About 10 such organizations had been formed and they enjoyed the support of the people and Government.
83. At the national level, fundamental human rights were observed both in legislative acts and in actual practice. This included the whole spectrum of civil and political rights as well as economic, social and cultural rights. At the international level the primacy of the law, particularly in the human rights field, was viewed by Senegal as the basis for its foreign policy. Senegal had acceded to 26 international human rights instruments which, under article 79 of the Constitution, had primacy over national laws and which had been integrated into legislation and could be invoked before all Senegalese courts.
Constitutional and legal framework within which the Covenant is implemented, self-determination, non-discrimination, equality of the sexes, protection of the family and rights of persons belonging to minorities
84. With regard to these issues, the Committee wished to know whether the Optional Protocol had been published in the Journal Officiel; whether an individual could invoke the provisions of the Covenant before Senegalese authorities, especially the courts; what the functions and activities were of the Senegalese Human Rights Committee; what measures had been taken to publicize the Covenant and the Optional Protocol and create public awareness about the rights contained therein; whether the Constitution had been amended to include all the grounds of discrimination covered in the Covenant; and whether specific legislative, administrative and judicial arrangements had been made by the Government of Senegal to prevent racial discrimination.
85. The Committee also wished to have further information on the compatibility with the Covenant of articles 152 to 154 of the Family Code, which grant special rights to men; on the powers vested in the President of the Republic under article 47 of the Constitution; on the definition of the term "minorities", in so far as such groups are recognized by the Government; and on how the provisions on non-discrimination contained in articles 2, 26 and 27 were being applied, particularly in the southern part of the country. They also wished to know whether a commission had been set up to study family law matters and what steps had been taken to ensure a more equitable sharing of the rights and responsibilities of spouses.
86. In his reply to the questions raised by members of the Committee, the representative of the State party said that the Optional Protocol had been published in the Journal Officiel in 1978, following its ratification in 1977 by Act 77-73. Upon ratification, the Covenant became part of domestic law and its provisions could be invoked in any trial in Senegal. Both of those instruments had been focused upon by the Senegal Human Rights Committee, which had a weekly radio programme on human rights. Non-governmental human rights organizations in Senegal also helped to disseminate information in lectures and discussions.
87. Article 154 of the Family Code had been abrogated by Act 89-01 of January 1989. Article 152 of the Code provided that the husband should determine the residence of the household. However, if the wife believed that her husband's choice endangered the health or morals of the family, she could apply to a departmental judge to accord her separate residence. That article could not, therefore, be considered as discriminatory. Recent amendments had been made in the Family Code and in the relevant sections of the Penal Code providing for equitable treatment in cases of desertion. The practice of polygamy was recognized in the Family Code since it was a social custom in the country and it was considered Utopian to attempt to abolish the practice. The Family Code limits the number of wives to three and obliges the husband to treat his wives equally. A woman can complain to a judge if her husband violates his obligations.
88. Article 47 of the Constitution, which vested special powers in the President of the Republic when the nation faced certain serious and imminent dangers, had never been applied nor had the measures that the President could take ever been defined. Article 58 of the Constitution, however, provided adequate means to regulate states of emergency. States of emergency had been declared in 1988 and 1989 for unrelated reasons and merely imposed a curfew. During those emergencies, people had been free to move about during the daytime. An advisory control commission, presided over by a judge, had been established under Law No. 69-29 of 29 April 1969 for the purpose of monitoring states of emergency and to ensure, in particular, that any measures undertaken did not violate human rights.
89. Concerning ethnic, religious or linguistic minorities, there was sufficient interaction and tolerance in Senegal that there were no problems in that regard. Legislation took into consideration the social situation of ethnic and linguistic minorities and there was perfect harmony between the Muslim majority and the Catholic minority. Measures to prevent discrimination were taken in schools where children learned tolerance, a message that was also carried on the radio and in other media. With respect to the situation in the southern part of the country, Casamance, an accord had been signed by the State of Guinea-Bissau, the State of Senegal and the Movement of Democratic Forces of Casamance (MFDC). The accord had been preceded by the amnesty laws of 1988 and 1991 permitting the MFDC to withdraw its troops. Since the serious events of September 1992, dialogue had been restored and a regional commission had been monitoring the application of the accord. The Government of Senegal was currently trying to seek a juridical solution to the problem of Casamance and hoped that the international community would assist it in this respect.
Right to life, treatment of prisoners and other detainees, liberty and security of the person
90. With reference to these issues, the Committee wished to know, in view of the fact that only two death sentences have been pronounced in the last 30 years, whether any consideration had been given to the abolition of the death penalty in Senegal; when, pursuant to article 52 of the Penal Code, was a person considered a minor; whether any investigations had been carried out with regard to accusations made by humanitarian organizations concerning extrajudicial executions and, if so, with what results; what procedures would be followed in the event of violations of rules and regulations governing the use of firearms by the police and armed forces; whether there had been any further developments since the submission of the report relating to the investigation of cases of torture or ill-treatment of persons deprived of their liberty; what measures had been taken to punish those found guilty, to prevent the recurrence of such acts and to disseminate information on the rights recognized in the Covenant among law enforcement officers; and whether a lawyer could have full access to his client immediately after arrest.
91. Members of the Committee also wished to know whether capital punishment was applicable under the code of military justice and whether it could be invoked during a state of emergency; how many people had been compensated for illegal or arbitrary detention; what measures the Government had taken to investigate alleged cases of extrajudicial executions; what measures the Government had taken to prevent the occurrence of such executions; and whether any agents of the Government had been implicated in such executions.
92. In his reply, the representative of the State party said that the Government viewed questions concerning torture or extrajudicial executions with great seriousness. Amnesty laws had been promulgated to restore the peace rather than to assure impunity to the guilty parties. The Government had opened investigations when abuses had been reported by non-governmental organizations and had developed a fruitful cooperation with such organizations. Additionally, article 66 of the Penal Code provided for the opening of an investigation when a body was discovered and the cause of death was either unknown or suspect. Such a case would be brought to the attention of the Public Prosecutor immediately so that an investigation could be undertaken without delay.
93. To protect the rights of the accused, Senegal had opted for an alternative to habeas corpus, in its Code of Criminal Procedure. Under article 55 of the Code, the criminal investigation officer can normally detain suspects only for 24 hours before lodging charges. Only in cases where there are strong reasons implicating the detainee, can detention be extended to 48 hours, with the accord of the Public Prosecutor or his representative. However, at that point the detainee had to be informed of the reasons for his detention. Special custodial arrangements were made for minors between the age of 13, which was the age of criminal liability, and the age of 18, which was the age of majority.
Right to a fair trial
94. In regard to that issue, the Committee wished to have further information on the jurisdiction and activities of the State Security Court, including examples of cases that had been assigned to it, and on its relationship with ordinary courts. In particular, members of the Committee wanted to know whether it was possible to appeal against decisions of that court before the ordinary courts. Also, in the light of paragraph 58 of the report, members of the Committee wished to know whether it was possible to sentence a person in absentia and, if so, under what circumstances.
95. In his reply, the representative of the State party stated that the State Security Court, which was abolished by Law No. 92/31 of 4 June 1992, had been the subject of much criticism at both the national and international levels. A number of practices associated with it, such as the absence of the right of appeal to its decisions, had clearly been in conflict with democratic processes in Senegal. A number of mechanisms were employed to ensure that accused persons were present in court and able to respond to charges. In cases where the accused was not in custody but had personally received a summons, failure to appear in court precluded the possibility of challenging the court. While in such cases both the judgement and the sentence were rendered in the person's absence, the right of appeal was not compromised. In situations where a summons had not been delivered by hand to the accused, the court could either decide to renew the effort to make contact with the accused, or choose to declare the absence as "simple default", which provided for the possibility of the sentenced person opposing the verdict and the sentence. In such a case, the matter would be reconsidered by the same court.
Freedom of movement and expulsion of aliens, right to privacy, freedom of opinion and expression, prohibition of propaganda for war and the incitement to national, racial or religious hatred and freedom of association and assembly
96. With respect to these issues, the Committee wished to know how the expression of different points of view was ensured in the State broadcasting corporation; whether the Government had recently applied penalties in cases where newspaper articles had been considered to jeopardize public security or morals; how the compatibility of Act 78-02 of 29 January 1978 with article 21 of the Covenant was ensured; and how the obligations under article 20 of the Covenant were implemented in Senegalese law and practice. Members of the Committee also wished to have further information on actual cases in which naturalized citizens had been deprived of their status as Senegalese; and on legislation relating to freedom of movement, especially those relating to restrictions thereon.
97. Additionally, members of the Committee wished to know whether the Government had plans to privatize the mass media in Senegal; which authorities were able to authorize the holding of private meetings and whether their decisions could be appealed; whether the Senegalese Human Rights Committee provided any services for the active defence of human rights; and whether the penal provisions restricting freedom of the press had been reviewed in the light of the democratic progress that had been achieved. Members of the Committee also requested further information on possible restrictions on the right of privacy and on the number and frequency of prosecutions against journalists.
98. Replying to the questions, the representative of the State party said that cases in which naturalized citizens were deprived of their status as Senegalese were set forth in article 16 of Act 61-10 of 7 March 1961, as amended by Act 89-42. Under that Act, naturalized citizens could not hold office or practice a profession for which Senegalese nationality was required. These restrictions expired after a specified number of years following naturalization and could be lifted by decree if the naturalized citizen had rendered exceptional services to Senegal. Senegalese nationals wishing to travel outside Africa were required to hold a return ticket, prove that they had the means to live in the country of destination and to have an entry visa for that country. The State broadcasting corporation had recently been reorganized and a body had been created to ensure that pluralism was respected and different points of view were expressed. Private meetings could be held freely and the authorities merely had to be informed about them. The authorities had to be informed in advance of public meetings or requested to authorize them. Such authorizations were usually never refused but refusals were, in any case, subject to appeal to the administrative courts. Following the reform of the electoral law, the requirement to request authorization to hold meetings during an election campaign had been abolished. Propaganda for war and advocacy of hatred were prohibited by law and severe penalties were provided for those guilty of incitement to racial hatred or hostility. Tolerance and fraternity were taught at all educational levels and were also stressed in religious instruction.
99. Concerning freedom of the press, criminal provisions had been introduced as a result of slander and defamatory statements by journalists some years earlier, which were considered to have had a demoralizing effect on the army. However, no prosecutions had been brought against journalists in the past two or three years. The situation in this respect was being reviewed and it was expected that the offences in question would be reduced to ordinary law offences, which would allow anyone who had been slandered to seek compensation.
100. Some private bodies were already present in radio and television in Senegal. Foreign radio and television broadcasting had also begun to operate in Dakar and privatization of the media was expected to proceed further in 1993. Exceptions to the right to privacy could be made during states of emergency but, in practice, there had been no censorship of correspondence or monitoring of telephone communications.
101. The Senegalese Human Rights Committee was chaired by a Supreme Court judge and was made up of one representative of the Office of the President, one representative of each of the main ministries and representatives of workers' organizations, women's and youth movements, non-governmental organizations and others. The Committee published reports on its activities, which included drawing the attention of the competent authorities to human rights violations.
Concluding observations by individual members
102. The Committee expressed its appreciation to the State party for the punctual submission of its reports since its accession to the Covenant and its spirit of cooperation with the Committee. It was noted that the third periodic report did not deal fully enough with the difficulties the country faces, particularly in the south, and how those difficulties affected the implementation of the Covenant. However, the authorities in Senegal had taken the Committee's comments into account in the process of reorienting national legislation and providing the legal guarantees necessary for the enjoyment of human rights. The abolition of the Security Court and the reorganization of the supreme judicial bodies were welcomed, as were the delegation's candid response on shortcomings with regard to notification of derogations under article 4 of the Covenant. However, it was noted that a declaration should have been made, in accordance with article 4 of the Covenant, regarding the limitations on freedom of movement imposed under the recently declared state of emergency.
103. Some areas of concern remained, particularly over the lack of investigation into allegations of extrajudicial executions and torture by members of the army or police. Particular concern was expressed over the danger that the amnesty laws might be used to grant impunity to officials responsible for violations, who had to be brought to justice.
104. Members of the Committee emphasized that the right of access to legal counsel began from the moment an individual was deprived of his freedom. Concern was expressed over the fact that detainees could be held without charge for up to eight days, even though article 55 of the Penal Code offered some protection in such situations. Members of the Committee also expressed their concern over the possibility that the amended Press and Journalism Act of April 1979 still inhibited freedom of expression and infringed on the right of access to information, noting that all such restrictions must accord with the criteria set out in article 19, paragraph 3, of the Covenant. Additionally, concern was expressed over the numerous restrictions on the mass media and the holding of meetings.
105. In regard to non-discrimination, members of the Committee expressed their concern over the Family Code and noted that its provisions were not compatible with the Covenant, particularly in regard to establishing the husband as the sole head of the household. In this regard, members of the Committee also expressed their concern over the continued practice of polygamy in Senegal since, in actual practice, it was impossible for a man to treat his wives equally. Members of the Committee also expressed concern over the reluctance of the Government to recognize the existence of minorities and emphasized that article 27 of the Covenant conferred benefits on members of such groups.
106. The representative of the State party thanked the members of the Committee for their remarks on his Government's implementation of the Covenant. He had taken careful note of the concerns that had been voiced and would faithfully transmit them to his Government.
107. The Chairman of the Committee observed that the delegation had furnished rich material for the Committee's consideration of the report of Senegal. He was certain that the delegation would fully inform the Government of the discussion and ensure that all comments made by Committee members were taken into account. It was obvious that that had been done after the consideration of the second periodic report, and Senegalese legislation had improved accordingly.
Comments of the Committee
108. At its 1203rd meeting (forty-sixth session), held on 5 November 1992, the Committee adopted the following comments.
Introduction
109. The Committee expresses its appreciation for the State party's third periodic report which had been prepared in accordance with the Committee's general guidelines and showed progress in implementing the provisions of the Covenant. At the same time, the Committee finds that the report focuses on laws and administrative regulations rather than on the actual implementation of the provisions of the Covenant and contains little information on factors and difficulties encountered in their application. In its comprehensive replies to the questions raised by Committee members, however, the delegation has endeavoured to complement the written report. The information, both written and oral, provided by the State party has enabled the Committee to make a realistic assessment of the human rights situation in Senegal.
Positive aspects
110. The Committee takes note with satisfaction of the progress that has been achieved in the implementation of provisions of the Covenant in Senegal. Among the positive developments aimed at strengthening the protection of human rights that has occurred since the consideration of the second periodic report in 1987 the Committee notes, inter alia, the adoption of new legislation or legislative amendments more in accordance with the Covenant such as the reorganization of the judicial branch, particularly the establishment of the State Council, the Supreme Court and the Constitutional Council, the abolition of the State Security Court, and the creation of the post of Mediator. The Committee also notes the adoption of a new Electoral Code; the application, for the first time, of certain provisions contained in the Covenant by the national courts; and the careful consideration that had been given by the Government of the State party to the comments and recommendations formulated by the Committee during consideration of the second periodic report.
Factors and difficulties impeding the application of the Covenant
111. The Committee notes that during the period under review, a state of emergency was proclaimed that affected the southern part of Senegal (région de Casamance), and that several of the rights covered by the Covenant were derogated. In addition, the persistence of certain customs and the existence of outmoded legislation hinder Senegal's full compliance with its obligations under the Covenant.
Principal subjects of concern
112. The Committee does not agree with the Government's contention that the provisions of the Covenant must be interpreted and applied against the background of the conditions prevailing in the country. Rather, it believes that all efforts should be made to bring those conditions into conformity with internationally agreed human rights standards. It finds that certain provisions of penal legislation are not in conformity with article 6 of the Covenant, especially in respect of the application of the death penalty to minors, or with article 9 of the Covenant, particularly in so far as they allow detainees to be kept incommunicado during the first eight days following arrest and deprived of access to a lawyer for the period of arrest. The passiveness of the Government in conducting timely investigations of reported cases of ill-treatment of detainees, torture and extrajudicial executions is not consistent with the provision of articles 7 and 9 of the Covenant. To achieve full compliance with article 4 of the Covenant, greater efforts are also needed to ensure the proper protection of human rights under a state of emergency. The Committee considers that amnesty should not be used as a means to ensure the impunity of State officials responsible for violations of human rights and that all such violations, especially torture, extrajudicial executions and ill-treatment of detainees should be investigated and those responsible for them tried and punished. Furthermore, the Committee is concerned about remaining areas of discrimination against women.
Suggestions and recommendations
113. The Committee recommends that laws relating to states of emergency, the protection of the right to life and the death penalty, forced labour, the treatment of detainees and their access to a lawyer and freedom of expression -particularly restrictions imposed on the exercise by journalists of this right - be brought into conformity with articles 4, 6, 8 and 19 of the Covenant, respectively. The proclamation of any state of emergency must be notified to the Secretary-General of the United Nations in a timely manner. Efforts should also be made to remove social barriers in order to ensure the real equality of men and women. The Committee also recommends that training courses should be organized for members of the police, the army and the security forces as well as for other law enforcement officials so as to better acquaint them with the basic principles and norms of human rights and laws aimed at their protection.
114. The Committee has received a communication from the State party dated 17 May 1993, referring to the comments of the Committee (see CCPR/C/90).
Luxembourg
115. The Committee considered the second periodic report of Luxembourg (CCPR/C/57/Add.4) and the core document (HRI/CORE/1/Add.10) at its 1187th and 1188th meetings, held on 26 October 1992 (CCPR/C/SR.1187 and 1188). (For the composition of the delegation, see annex XI.)
116. The report was introduced by the representative of the State party, who pointed out that under article 111 of the Constitution of Luxembourg all foreigners in the territory enjoyed the protection of their fundamental rights subject only to exceptions established by law. Extensive jurisprudence on the matter reflected the fact that foreigners enjoyed the same political rights as citizens of Luxembourg.
Constitutional and legal framework within which the Covenant is implemented and non-discrimination and equality of the sexes
117. With respect to those issues, the Committee wished to know whether there have been any cases where the provisions of the Covenant had been directly invoked before the courts or referred to in court decisions and, if so, what the relevant details were; what the status was of the special commissioner appointed to enforce decisions taken by the litigations committee of the Council of State and what powers were vested in him; whether the term "foreigners" referred only to immigrants or also to non-citizens in general, including asylum seekers or even tourists; whether appeals could be made against decisions of the military courts and, if so, to which body; whether decisions taken by the Committee under the Optional Protocol were known in Luxembourg, particularly among members of the legal profession, the judiciary and government officials; and, with reference to paragraph 35 of the report, whether religious ministers remunerated by the State belonged to a particular religion.
118. Members of the Committee also wished to have further details on the work being accomplished by the special consultative commissions of the various communes, referred to in paragraph 48 of the report, including information on the support they received from communal authorities; on the application of recent laws designed to protect small and lesser-known minorities; on restrictions to the right to take part in elections; and on offences that could result in a person being deprived of the right to vote.
119. In his reply, the representative of the State party said that there had been a number of cases where the provisions of the Covenant had been invoked in a court of law. The judicial authorities in all such cases had held that the provisions of international instruments took precedence even over the provisions of the Constitution and also, therefore, over existing laws and regulations. Where domestic legislation was not in line with international instruments, the courts had the authority to declare the provision in question illegal in relation to a specific case brought by a given claimant. The legislation itself was not declared illegal, however. Currently there was no provision for monitoring legislation to see if it was in accord with the Constitution and international instruments, which admittedly represented a serious gap in the country's legal system.
120. Unfortunately, Luxembourg's citizens were not well aware of the rights contained in the Covenant and even lawyers who could have invoked human rights instruments in legal proceedings had failed to do so because of their unfamiliarity with the relevant conventions. Although the competent ministries had considered the reports of the Committee, only limited publicity was given to such reports. The representative indicated that he would make the necessary recommendations to the authorities on these points.
121. A variety of measures had been taken in order to improve the participation of foreigners in communal life. Foreigners would be accorded the right to vote in communal elections, as a result of the Treaty on European Union, signed in Maastricht on 7 February 1992, and would also be able to vote in professional organizations and chambers of commerce, pursuant to a recent decision of the Council of State. While there were no problems concerning housing, health and social services, there were difficulties in the field of education, where efforts were being made to better integrate foreign children into the school system.
122. There were presently three officially recognized religions in Luxembourg: Catholicism, Protestantism and Judaism. The status of "official religion" entitled ministers of such religions to be remunerated as State employees on the basis of conventions signed with the State. To be recognized as an official religion, other religions would have to take steps to conclude similar conventions with the State.
Treatment of prisoners and other detainees and right to a fair trial
123. With reference to those issues, the Committee wished to have further information on the functions and activities of liaison officers who supervised places of detention, as referred to in paragraph 10 of the report; on guarantees provided under the Acts of 16 June and 7 July 1989 to safeguard the interests of persons under arrest; on the implementation in practice of article 9, paragraph 3, of the Covenant; on the activities of the official appointed in mental health establishments to inform and advise mentally-ill patients of their rights; and on the procedure and criteria for selecting magistrates and appellate court judges.
124. With respect to regulations pertaining to the application of isolation to detainees, members of the Committee wished to know what offences gave rise to isolation as a punishment; who decided when it would be applied; how were prisoners defined as "dangerous" and for how long could they be held in isolation; whether a decision to place a detainee in isolation could be appealed; why isolation also included a prohibition against reading literature; how many people had been placed in isolation in 1992; and whether it was regarded as satisfactory that prisoners in isolation were allowed only one hour's exercise per day out of their cell.
125. Members of the Committee also wished to know whether there were any maximum limits on the length of pre-trial detention; whether the draft bill on the protection of youth had been adopted by the Chamber of Deputies; whether consideration was being given to changing the interpretative declaration made by Luxembourg in respect of article 10, paragraph (2) (b), of the Covenant; whether the prison population included drug abusers and how necessary care was administered to such persons; and whether the Constitution had been modified to reflect the decision, adopted pursuant to the law of 20 June 1979, to abolish the death penalty.
126. In his reply, the representative of the State party said that the public prosecutor and a liaison officer, who was always a judge of the ordinary courts, monitored compliance with the internal regulations of penal institutions. Complaints from prisoners were always heard by the public prosecutor. Existing procedures concerning pre-trial detention provided that a detainee's immediate release had to be ordered if no court decision had been reached within one month of the detainee's initial interrogation. Victims of unlawful arrest or detention had a right to compensation, which was ultimately decided upon by the Minister of Justice.
127. Resort to the isolation of prisoners was very exceptional, and was a disciplinary rather than a punitive measure. The decision to impose isolation could be made only by the public prosecutor, taking into account the advice of a doctor. The detainee's lawyer could appeal the decision, particularly on the grounds that the imposition of isolation would endanger the physical and psychological well-being of the detainee. Any disciplinary measure of such a serious nature could be appealed to the judge responsible for monitoring prison conditions. Detainees were always able to communicate with their families, lawyers or with the public prosecutor, except where such communication was expressly forbidden by the examining judge. Such decisions were made strictly in accordance with the penal code. The sentence of hard labour, which was still provided for under the penal code, was never applied in practice.
128. The Law of 12 November 1971 relating to the protection of minors had been recently replaced by a new law, which would be provided to members of the Committee. Minors in detention were separated from contact with adult prisoners except in workshops or similar activities in which the minors had chosen to participate. Steps for the social rehabilitation of delinquent minors had been elaborated by the Minister of Social Assistance in consultation with experts and specialists in psychology. In general, good results had been obtained by the system, although it was always difficult to eliminate the problem of repeat offenders. Prisoners who were drug addicts could obtain specialized treatment for their problem on request. Drug addicts could also be placed in isolation from other prisoners for their own protection. The death penalty had been abolished from the Penal Code, although the reference to it in the Constitution had been maintained. In practice this means that it cannot be applied by the courts.
Freedom of movement and expulsion of aliens and freedom of expression and assembly
129. Regarding those issues, the Committee wished to know how many aliens have been refused permission to settle in Luxembourg or had had their identity cards withdrawn or their renewal refused because they failed to fulfil legal obligations towards their families; how compatibility with article 21 of the Covenant by communal authorities who were authorized to issue regulations relating to the exercise of the right to freedom of assembly was ensured; and what administrative arrangements had been established for the detention of aliens awaiting expulsion.
130. In his response, the representative stated that no alien had been refused permission to settle in Luxembourg or had had his or her identity card withdrawn or its renewal refused because of the failure to fulfil legal obligations towards the family. The right of peaceful assembly was guaranteed under article 25 of the Constitution. Open-air public assemblies, whether political, religious or otherwise, were subject to laws and regulations of the police and communal authorities. Relevant communal regulations were subject to the approval of the Minister of the Interior and persons or organizations affected by such Ministerial decisions could contest the legality of the decision before an administrative judge. Police regulations applicable to such matters, had been established in conformity with the limitations foreseen in article 21 of the Covenant.
Protection of the family, right to vote and rights of persons belonging to minorities
131. Concerning those issues, the Committee wished to have further information on existing legislative or administrative arrangements for protecting the interests of children in cases of family separation, other than those described in paragraph 37 of the report, and on the ways and means by which the Immigration Council integrated aliens into society. Regarding the deprivation of voting rights as part of sentencing in some cases, members of the Committee wanted to know how long the deprivation of the right to vote lasted and whether the sentence was applied routinely for certain types of crimes or whether it was employed only as an exceptional measure.
132. In his reply, the representative of the State party pointed out that among Luxembourg's 378,000 inhabitants more than 80 nationalities were represented, a situation which made it difficult to speak of specific minorities. Immigrants did not constitute ethnic minorities under Luxembourg law and were extended the same rights as citizens. Foreigners, including nationals of other European Community States, were part of the national community regardless of their race, nationality, colour or religion. As such, they were extended the same rights as citizens in matters pertaining to social security, sickness, pensions and retirement, with the exception of the right to vote. The exclusion of convicted criminals from voting was regulated under article 53 of the Constitution, which provided that persons convicted and sentenced for a variety of crimes could lose their right to vote. In cases of serious crimes, such as murder or rape, the deprivation could be mandatory whereas for minor crimes the right to vote could be temporarily suspended at the discretion of the sentencing judge. In all cases, voting rights could be restored by decision of the Grand Duke.
Concluding observations by individual members
133. Members of the Committee thanked the delegation of Luxembourg for its frankness and cooperation in helping the Committee to better understand Luxembourg's legal system. It was noted that while the general situation with respect to the application of the Covenant was satisfactory, certain problems had persisted. In this regard, members considered that the practice of including a suspension of voting rights as part of sentencing raised a number of problems under article 21 of the Covenant. Members also expressed concern over practices in Luxembourg regarding the application of isolation to detainees including, in particular, the length of isolation, the prohibition of reading materials to isolated detainees and the fact that they were allowed only one hour out of their cell each day for exercise. It was also noted that the use of preventive detention should not become routine nor should it lead to excessive periods of detention or infringe upon the presumption of innocence. Members were satisfied that the death penalty had been abolished in practice but none the less expressed the hope that it would be abolished at the level of the Constitution in the near future.
134. Concern was also expressed over the position of religious sects which had not entered into a covenant with the State and which, therefore, were at a disadvantage relative to sects that had done so and were supported by the State. Additionally, members noted that, under article 27 of the Covenant, ethnic, religious and linguistic minorities had a right to their own cultural life and that the exercise of that right needed to be guaranteed and monitored by the State. It was also noted that, in general, the provisions of the Covenant were not adequately publicized in Luxembourg. In this regard, it was suggested that the Government facilitate a greater awareness among the general public and, in particular, among members of the judiciary and the legal profession.
135. In concluding the consideration of the second periodic report of Luxembourg, the Chairman expressed his appreciation for the delegation's competence and candour in responding to the questions and concerns raised by the Committee, as well as his confidence that those concerns would be taken into account by the Government. He observed that in as much as judges were able to overturn national laws they considered incompatible with treaty law, it would be desirable if members of the judiciary could be made more familiar with the Covenant and the way its provisions were interpreted by the Committee, particularly through its general comments and its decisions under the Optional Protocol.
Comments of the Committee
136. At its 1203rd meeting (forty-sixth session), held on 5 November 1992, the Committee adopted the following comments.
Introduction
137. The Committee commends the State party on its report which contains clear and basic information on laws relating to the implementation of the provisions of the Covenant. The Committee, however, regrets that the report lacks information concerning the actual situation on the ground, including factors and difficulties which may affect the implementation of the Covenant.
138. The Committee also commends Luxembourg for the core document (HRI/CORE/1/Add.10) submitted in accordance with the consolidated guidelines for the initial part of reports submitted under the various international human rights instruments (HRI/1991/1).
139. The Committee expresses its appreciation for the high-level delegation which represented the State party during the consideration of its report. The competence of that delegation and the cooperation it demonstrated in responding to requests for further information facilitated a constructive dialogue between the Committee and the State party.
Positive aspects
140. The Committee welcomes the position accorded to the Covenant within the hierarchy of the State party's national law. The Committee has noted the delegation's statement that the provisions of the Covenant may be directly invoked in the courts and that, where there is a conflict between those provisions and national law, the Covenant is accorded supremacy. The Committee also welcomes the initiative taken to ensure the abolition of the death penalty.
Principal subjects of concern
141. The Committee expresses its concern over the insufficient publicity given to the Covenant among persons in those professions most concerned with its application and among the general public, who thus may not be adequately informed of the protection afforded by the Covenant and of the possibility of submitting individual communications under the Optional Protocol.
142. With respect to the treatment of prisoners, the Committee is concerned over present practices pertaining to solitary confinement which are incompatible with article 10 of the Covenant. Additionally there is no remedy available with regard to the decision of the Prosecutor General to apply solitary confinement. Another area of concern is the application of pre-trial detention which may lead to excessive periods of detention and which may infringe upon the presumption of innocence.
143. Other areas of concern include article 18 of the Constitution which still presupposes the existence of the death penalty; the lack of a remedy to decisions of the Prosecutor General regarding internment of the mentally ill; the deprivation of the right to vote as a further sanction in criminal cases; and continuing provision in the law for hard or forced labour, which has not yet been abolished. The Committee also notes that care must be taken with present practices for financing religious minorities to ensure that they remain in conformity with articles 2, paragraph 1, and 27 of the Covenant.
Suggestions and recommendations
144. The Committee recommends that the State party undertake steps to disseminate information about the Covenant and the Optional Protocol; restrict the use of solitary confinement to short, temporary periods and only where necessary as part of disciplinary measures; provide an effective remedy for those who have been subjected to solitary confinement in a prison or to internment in a facility for the mentally ill; and review legislation on criminal procedure so that it is fully in line with provisions concerning pre-trial detention under article 9 and the presumption of innocence under article 14 of the Covenant.
145. The Committee also suggests that the State party consider abolishing the deprivation of the right to vote as part of legitimate punishment; consider a new approach to guaranteeing the rights of minorities, particularly in regard to the system of conventions between the State and various religious communities; and consider the need for a constitutional remedy to further clarify situations where conflicts may seem to arise between the provisions of the Covenant and the Constitution. The Committee also invites the State party to review the reservations and interpretative declarations it made upon ratification with a view to withdrawing them as far as possible.
United Republic of Tanzania
146. The Committee considered the second periodic report of the United Republic of Tanzania (CCPR/C/42/Add.12) at its 1189th to 1191st meetings, held on 27 and 28 October 1992 (CCPR/C/SR.1189-1191). (For the composition of the delegation, see annex XI.)
147. The report was introduced by the representative of the State party, who stated that the United Republic of Tanzania had "democratically chosen a single party" during its 30 years of independence. However, in view of the winds of democratization sweeping across the world, and in Africa in particular, the United Republic of Tanzania had established a Special Commission in 1991 to determine whether the single-party system should be maintained or a multi-party system adopted. Despite the fact that 80 per cent of the population interviewed had been in favour of continuing the single-party system, the Government decided to opt for a multi-party system. As a result, the Constitution had been amended in April 1992 and political parties had already obtained their provisional registration. A new Political Parties Act had been introduced and the parties had been given three years to prepare for the first multi-party presidential election in 1995.
Constitutional and legal framework, self-determination, state of emergency and right to participate in the conduct of public affairs
148. With regard to those issues, the Committee wished to know whether the provisions of the Covenant, in particular those not reflected in the Bill of Rights, could be directly invoked before the courts under the amended Constitution and, if so, had there been any cases where this has been done; whether domestic legislation had been reviewed for its compatibility with the amended Constitution; whether any laws, decrees or administrative acts had been challenged as unconstitutional on the ground that they infringed a right guaranteed under the amended Constitution; how court practice had been brought into line pursuant to the Criminal Procedure Act as amended, with the standards set out in the Covenant; whether the functions of the Permanent Commission of Enquiry had changed as a result of the amendments to the Constitution and the Criminal Procedure Act; how the United Republic of Tanzania guaranteed the application of articles 1 and 25 of the Covenant within its political system; and how the rights to life and to the inviolability of personal freedom in a state of emergency were ensured. Further information was requested on the activities of the Permanent Commission of Enquiry as to its effectiveness and the extent of public knowledge of its existence and role.
149. Members of the Committee also wished to know what was the relationship between the Constitution of the Chama Cha Mapinduzi Party, the Constitution of the United Republic of Tanzania and the Constitution of Zanzibar and which of them prevailed in case of conflict; when and on what grounds was it possible to derogate from the provisions of sections 14 and 15 of the Constitution in respect of individuals believed to be conducting themselves in a manner that endangered or compromised national security (CCPR/C/42/Add.12, para. 65); how the functions of the ruling party in respect to the protection of human rights would be transferred to the Government under the new multi-party system; how "the public interest" was defined in relation to its mention in section 30 (2) of the Constitution and whether that section would be amended in view of the new multi-party system; whether there were any plans to hold parliamentary elections under the new system; whether prior permission for campaign meetings to be held within the framework of the planned multi-party elections had to be obtained from the District Commissioner; whether there was any political persecution such as the holding of prisoners of conscience, particularly in Zanzibar; and who was responsible for determining whether or not a news item was false thereby prohibiting its publication under the Newspaper Act and, in the event, whether there were any recourse procedures.
150. Further information was requested concerning the enjoyment of the rights set forth in article 25 of the Covenant; on amendments to section 38 (2) of the Constitution; on restrictions on freedom of movement and residence, as referred to in paragraph 20 of the report; on the role of the Special Constitutional Court with respect to implementation or interpretation of the Constitution between the Government of the United Republic of Tanzania and the Revolutionary Government of Zanzibar; on the strength and political characteristics of the newly registered political parties, including their relationship with the ruling party; on the application of article 25 of the Covenant and the apparent incompatibility of the one-party system with that article; on the controls exercised in the party registration process; and on the scope and application of the policy of Ujamaa.
151. Replying to the questions, the representative of the State party declared that nearly all of the provisions of human rights instruments were reflected in the Constitution and had not been affected by the recent amendments. Lawyers and judges invoked those rights in connection with various cases before the courts. However, as the amended Constitution had entered into force only in July 1992, it was too soon to determine whether some of the provisions of the Covenant had been directly invoked before the courts under the amended Constitution. In regard to the process of legislative review, the task had only just begun. With respect to the Permanent Commission of Enquiry, its activities had come to a halt with the amendment of the Constitution. In a multi-party system, the functions of the Commission would have to change or it would have to be abolished altogether. The public had been informed of the role of the Commission through circulars and through the press and radio broadcasts. The procedures for the declaration of a state of emergency had been changed to reflect the new multi-party system. The representative added that no state of emergency had been declared since independence.
152. With regard to equality between men and women, customary law in the United Republic of Tanzania tended to favour men. As a result, women did not have the right to own goods or to inherit them. However, a number of women's organizations had pressured for change and the Commission for the Reform of the Law was expected to modify some of the legislation in question. Until such time, women would continue to be at a disadvantage in the courts. With respect to court assessors, their function was only to advise the court with regard to customary law. The court was not obliged to follow that advice.
153. A number of questions had been raised concerning the new Constitution and its effect on Zanzibar. The change to a multi-party system and all other changes brought about by the new Constitution applied to Zanzibar as well as the mainland. Under the new provisions for the registration of political parties, prospective political parties had to show that their membership was voluntary and open to all citizens of the United Republic of Tanzania without discrimination. In addition, the party could not be based upon religious belief or tribal or regional identification nor could it espouse the dissolution of the Union. It had to have at least 200 members who were eligible to vote in legislative elections. Its membership had to come from at least 10 regions of the United Republic of Tanzania and had to include members from the islands of Zanzibar and Pemba. During the present transitional period to a multi-party system, the statutes of the Chama Cha Mapinduzi Party, which had been heretofore the only party recognized under the Constitution, had been modified. Whereas before the Chama Cha Mapinduzi Party had been financed in part by the State, the party now had to return assets. For example, one of the buildings which was constructed for the party will become instead a building for Parliament. Since funding for the party could only come from voluntary contributions, it had been forced to reduce its activities.
154. The representative pointed out that the new Constitution did not specify whether domestic law or international law prevailed in situations of conflict between the Constitution and one of the international human rights instruments. In actual practice, the international human rights treaties were not self-executing but required implementing legislation. This would mean that, in case of a conflict, the Constitution would prevail. With respect to the interpretative decisions issuing from the Constitutional Court, those decisions were definitive and carried the force of law. The Constitution provided that those decisions did not have to be reviewed by Parliament.
Right to life, treatment of prisoners and other detainees, liberty and security of person and right to a fair trial
155. With respect to those issues, the Committee wished to know the figures for death sentences which had been imposed and carried out over the last 10 years; what were the reasons for differences in policy between the mainland and Zanzibar as suggested in paragraph 72 of the report; with reference to paragraph 67 of the report, how the right of persons sentenced to death to seek pardon or commutation, pursuant to article 6, paragraph 4 of the Covenant, was ensured; what were the rules and regulations governing the use of firearms by the police and security forces; whether there had been any violations of these rules and regulations and, if so, whether such allegations had been investigated, those responsible punished, and measures taken to prevent their recurrence; whether the United Nations Standard Minimum Rules for the Treatment of Prisoners were complied with and how these provisions had been made known to the concerned police, armed forces, and prison personnel as well as, in general, to all persons responsible for holding interrogations; in view of its role in securing the rights under the Covenant, what the position of the legal profession was in law and practice and whether it had been influenced by recent amendments to the Constitution and statutes; and whether there was any free legal aid and advisory scheme and, if so, how it operated or, if not, how compliance with article 14, paragraph (3) (d), of the Covenant was ensured. Further information was requested with reference to paragraph 75 of the report, on measures taken by the Government in the field of health care, particularly with a view to reducing infant mortality.
156. In addition, members of the Committee wished to know for how long after his arrest a detainee could be kept from contacting legal counsel; whether section 148 (4) of the Criminal Procedure Act of 1985 concerning the powers of the court to grant bail had been declared unconstitutional and subsequently abrogated; whether it was foreseen to modify section 44 (1) of the Civil Procedure Act, providing that a debtor could be arrested and detained, which is contrary to the Covenant; what kinds of cases could be brought before a Primary Court; whether the decision to impose imprisonment on a juvenile offender, rather than rehabilitative alternatives to incarceration, was made at the discretion of the sentencing judge; what measures had been taken towards the prevention of torture and other inhuman treatment, and whether instances of its use were rapidly and severely suppressed; whether the subjection of a person to medical or scientific experiments, without his or her free consent, was expressly prohibited under Tanzanian legislation; what type of corporal punishment was imposed on offenders convicted of rape or other violent crime; on what grounds had 14 members of a Burundi opposition group been taken into custody by authorities in Tanzania; whether the President was still able to order the arrest and detention without bail of any person he considered dangerous to the public order or national security; and whether there had been executions carried out in secret and, if so, why they had been carried out in this manner. Members also requested further information concerning the system of residence zones employed with respect to the issuance of residence permits to immigrants; on the amendment passed in 1985 to bring the Preventive Detention Act of 1962 into conformity with the Covenant; on resort to corporal punishment in sentencing and in the schools; and on the factors and difficulties encountered in the application of article 14 of the Covenant.
157. In response, the representative of the reporting State noted that only a very small number of death sentences had been carried out. Only the High Court and the Court of Appeal could hand down a death sentence and such a sentence had to be approved by the President himself. The considerable time lapse between the verdict and the execution allowed ample opportunity for a presidential pardon. In regard to the differences in policy between the mainland and the island, Zanzibar maintained its own Constitution in addition to the Union Constitution that covered both. As far as differences in legislation was concerned, if there was no specific statement that a particular law applied to Zanzibar as well as to the mainland, Zanzibar was assumed to have its own separate legislation. The judiciary was separate, one Attorney-General serving for the mainland and another for Zanzibar.
158. In cases where there had been a misuse of firearms by police and security forces, action was always taken against the security officers involved. The Standard Minimum Rules for the Treatment of Prisoners were being complied with, though problems sometimes occurred. Efforts were consistently made to educate police officers in this regard through national seminars organized by the Minister of Home Affairs and through the provision of fellowships for officers to attend seminars abroad. Medical services were available to prisoners in their places of detention. When necessary, prisoners were transported under security to hospitals for treatment.
159. Section 54 (1) of the Criminal Procedure Act stipulated that, when arresting an individual, a police officer must inform that person of his rights in a language he understood. One of those rights was to contact a friend, a relative or a lawyer. The lawyer could either be chosen by the individual or one assigned by the Government. All persons who were arrested had to be brought before a judge within 24 hours, except in situations where the arrest had taken place on a Friday, in which case arraignment before a judge would take place on the Monday. In rural areas where there were no judges and there may be transport problems, villages had a court composed of police for the preliminary examination of cases before they were sent to district courts. The justice of the peace who presides over such a court is not a professional judge but may, none the less be familiar with minor infractions.
160. In regard to how confessions induced by force might be used, section 29 of the Evidence Act stipulated that no confessions could be used as evidence if the court was of the opinion that they had been induced in circumstances that were likely to cause an untrue admission of guilt to be made. Section 27 (3) of the same Act defined a confession as involuntary if the court believed that it had been induced by a threat or promise on the part of police officers or other authorities.
161. There was a large number of lawyers in the country. The Government was endeavouring to ensure that legal services were available to the entire population, not only the fortunate few who could afford the cost of private legal services. Presently, the Legal Aid Committee of the University of Dar-es-Salaam and the Tanganyika Law Society assisted individuals who had legal problems but could not afford to engage a lawyer. Additionally, the Tanzania Women Lawyers' Association had recently been established for the purpose of assisting women who could not afford private legal services.
162. With regard to the imprisonment of children, the Child and Young Persons Act governed court decisions on offences committed by persons under the age of 16. It provided for the handling of such cases in a Juvenile Court, which was essentially a district court whose proceedings were closed to the public. Among many other provisions, the Act indicated that police officers must immediately contact a young person's parent or guardian to enable them to post bail as soon as possible after he or she was arrested. It stipulated that no child should be sentenced to imprisonment and that young people, if so sentenced, must not be allowed to associate with adult prisoners. It was made clear that young people should not be imprisoned except for the commission of serious offences.
Freedom of expression, assembly and movement
163. Regarding those issues, the Committee wished to know whether a citizen who disagreed with the political programme of the Government was free to express his views publicly; what the "established forums" mentioned in the Constitution and paragraph 15 of the report were; with reference to paragraph 181 of the report, what the term "major qualification" for the formation of political parties meant; and how the right to form trade unions was ensured in practice. Members of the Committee also wished to know how control was exercised by the State over radio and television and whether that would change with the emergence of a multi-party system; whether persons considered as a threat to public order (ordre public) could be expelled from the United Republic of Tanzania or exiled to another part of the country; whether censorship existed with regard to the press; and whether newspapers and other publications in the country experienced problems in securing sufficient supplies of paper. Members requested further information on the restrictions in force concerning the exercise of freedom of expression.
164. In her reply, the representative of the State party stated that JUWATA, which previously had been the only union in the country, had recently been dissolved and replaced by the Organization of Tanzanian Trade Unions (OTTU). There were now a number of unions, including a union for students, and there were many professional organizations as well. It was expected that as the multi-party system developed, there would be many more unions than there were at present.
Equality of the sexes, non-discrimination and rights of persons belonging to minorities
165. With regard to those issues, the Committee wished to know whether any additional measures were being contemplated to guarantee equality of the sexes; in what respects the rights of aliens differed from those of the citizens; and what ethnic, religious or linguistic minorities existed in the United Republic of Tanzania.
166. Replying to the questions, the representative of the State party pointed out that the country's 127 tribes coexisted in peace and constituted a single nation. Although Swahili was the language common to all, each region also had its own language. Freedom of religion was guaranteed to all and, in this regard, there were a number of different faiths practised in the country. With respect to foreigners, they had the same rights as citizens. There were some restrictions, however, which chiefly concerned the right to vote and the right to work. The rights of the nearly 300,000 refugees living in the United Republic of Tanzania were also guaranteed.
167. Referring to the question of the equality of women, the Government had taken many steps to enhance the status of women. In 1978, for example, a system had been introduced to enable more women to attend universities. In Parliament, a specific number of seats were reserved for women. Additionally, there were women who were senior government officials, ambassadors, etc.
Concluding observations by individual members
168. The members of the Committee commended the frankness and sincerity of the Tanzanian delegation which had contributed to ensuring a fruitful dialogue. The report represented enormous progress compared to the rather brief previous report the State party had submitted.
169. Members of the Committee noted that a number of important developments were under way, most notably amendments to the Constitution and the restructuring of the political framework to achieve greater democracy through a multi-party system. Members expressed the hope that the transition to a new political system would take place in a spirit of openness, and that different parties would be allowed to establish themselves with equal access to the media. In that regard, it would also be helpful to dispense with the requirement of prior authorization for political meetings.
170. The State party had acknowledged in its report that there were some gaps and deficiencies in its legal system which indicated that it was not in full compliance with the articles of the Covenant. Various legal - and especially penal - provisions needed to be reviewed, particularly those relating to torture, family law and freedom of movement and residence. It was also noted that section 30 of the Constitution provided for very general restrictions on certain rights, in particular those set forth in articles 6 and 8 of the Covenant. Furthermore, section 25 of the Constitution raised problems in regard to the issue of forced labour, an area where there was clearly a need to ensure conformity with standards of the International Labour Organization.
171. Members of the Committee expressed concern over the constitutional provisions allowing derogations from the right to life, which were not compatible with article 4 of the Covenant. In this regard, changes were clearly necessary. The President's authority to order arrests also seemed excessive and not in conformity with article 9 of the Covenant. It was unfortunate that no figures could be made available on death sentences carried out in the previous 10 years. In this regard, it was pointed out that information on death sentences needed to be monitored carefully by any State and did not require a large statistical database.
172. Concern was expressed over the lack of clarity in the situation in Zanzibar. The Committee had been informed that there were no political prisoners in Zanzibar, yet numerous cases of political detention had been reported.
173. The view was expressed that it was degrading treatment to apply corporal punishment in schools and other institutions. Children should be treated with respect for their integrity and teachers should be able to maintain authority without resorting to such primitive measures. The use of flogging and similar punishments in sentencing was not compatible with the Covenant.
174. Although there had been some progress towards equality between men and women, there still appeared to be a lack of equality, especially with respect to property, inheritance and parental authority, and it was hoped that those forms of discrimination would be prohibited in the future.
175. Another matter that deserved high priority was the dissemination of information on the provisions of the Covenant in schools and universities and among members of the legal profession.
176. The representative of the State party stated that the delegation would transmit the results of the dialogue to its Government, placing particular emphasis on aspects of the legal system which needed to be modified in order to ensure conformity with the Covenant. Under the multi-party system there would be more transparency and political freedom and, it was hoped, a considerable improvement in those human rights areas which showed deficiency.
177. The Chairman of the Committee expressed his appreciation for the expertise of the delegation. The Committee had recognized that the report was an excellent and informative one and was helpful in demonstrating the difficulties encountered by the State party in meeting its obligations under the Covenant. Since the State party was passing through a transition period accompanied by a revision of existing laws and regulations, the Committee had viewed the dialogue with the delegation as an opportunity to assist the authorities in their efforts. The dialogue had been a useful one and he hoped that the delegation would convey to the Government all the comments made by members of the Committee.
Comments of the Committee
178. At its 1203rd meeting (forty-sixth session), held on 5 November 1992, the Committee adopted the following comments.
Introduction
179. The Committee compliments the State party on the high quality of its report. In addition to giving the relevant laws and regulations, the report contains detailed information on actual practice and the factors and difficulties affecting the implementation of the Covenant. The Committee notes with satisfaction that the report includes a candid appraisal of existing legislative deficiencies in the light of the relevant general comments adopted by the Committee. The Committee, however, regrets that the report was submitted after a delay of some five years and expects that, given the reporting experience which the State party has now acquired, similar delays will not occur in the future.
180. The Committee observes that answers provided by the delegation to the numerous questions raised by members of the Committee greatly contributed in the consideration of the report and in establishing a constructive dialogue.
Positive aspects
181. The Committee welcomes the measures undertaken by the State party and the substantive progress recently achieved towards democratization, which should provide a more effective legal framework for the effective application of the Covenant. The Committee also notes with satisfaction that a bill of rights has been incorporated into the Constitution; that political parties are now being registered under a multi-party system and that the first multi-party elections to the National Assembly and to the Presidency have been scheduled; and that a more important role is foreseen for the judiciary in the protection of human rights.
Factors and difficulties impeding the application of the Covenant
182. The Committee notes that some aspects of democratic reform may have been adversely affected by structural adjustment policies tending to decrease the resources available for implementing those reforms. At the same time, the Committee underlines that this does not exempt the State party from the full and effective application of the Covenant.
Principal subjects of concern
183. While welcoming the wide-ranging political and legal reforms in progress, the Committee recognizes that the transition to true democracy is far from complete. A number of gaps still need to be addressed regarding present legislation and the guarantees provided for under the Covenant. The Committee emphasizes that, in undertaking any review of existing national law and in formulating new legislation and administrative rules, a primary consideration should be compatibility with the provisions of the Covenant.
184. The Committee is concerned over the unclear position of the Covenant in national law, particularly in cases where conflicts could arise between the Covenant and the Constitution. In this regard, article 32 of the Constitution regarding emergencies is clearly not in conformity with the international obligations of the State party under article 4 of the Covenant. Under that provision no derogation is permissible from certain fundamental rights, among which is the right to life. The Committee is concerned that the grounds for declaring a state of emergency are too broad and that the extraordinary powers of the President in an emergency are too sweeping. Other concerns of the Committee in regard to specific provisions of the Constitution which are incompatible with the Covenant include article 30 (1) which provides a wide scope for limitations of rights and freedoms and article 25 which provides for the possibility of forced labour.
185. Other areas of concern include the unavailability of statistics concerning the application of the death penalty; the extraordinary powers accorded to the President with regard to preventative detention; the extent of delays with regard to the scheduling of criminal proceedings; the restriction of the right to peaceful assembly by the requirement of pre-permission by local authorities; insufficient publicity given to the Covenant with the result that the general public may not be informed of the protections afforded under it; continuing inequality with regard to the status of women; and the continued use of corporal punishment, the application of which the Committee considers to be degrading and inhuman treatment.
186. Additionally, the Committee is concerned that some aspects of customary law which are still being applied in many of the lower courts may not be in compliance with the provisions of the Covenant.
Suggestions and recommendations
187. The Committee recommends that the State party should provide a clear legal basis for giving full effect to the provisions of the Covenant. The Committee further suggests the enactment of legislation to provide that customary law, which is incompatible with the provisions of the Covenant, is null and void.
188. The Committee recommends the amendment of those provisions of the Constitution and other national law which are not in conformity with the Covenant. In particular, the Committee suggests that a thorough review be undertaken of provisions relating to states of emergency with a view to ensuring their full compatibility with article 4 of the Covenant in all respects. The Committee affirms the vital role played by the responsible exercise of the freedom of expression in the transition to democracy and recommends that the State party ensure that the exercise of this right be fully respected. Steps should also be taken to guarantee freedom of assembly without the requirement for pre-permission or such other restrictions as may jeopardize the freedom in question without necessarily being a threat to public order. Ongoing and active monitoring should be undertaken to ensure that democratic guarantees which have recently been established in law are observed in practice. To this end, the Committee considers that an active and independent judiciary is indispensable and recommends that measures be taken in this regard to further strengthen it.
189. The Committee considers that active measures should be taken to ensure that the provisions of the Covenant are made widely known to the general public and, in particular, to members of the judiciary and the legal and other professions most directly concerned with its application. Both Covenants should be translated into the national language, Swahili, and integrated into educational curricula at all levels. Although welcoming the improvements made with respect to ensuring equal opportunity for women, the Committee notes that the situation still warrants further progress, particularly in relation to property and inheritance rights and questions concerning parental authority.
Islamic Republic of Iran
190. The Committee considered the second periodic report of the Islamic Republic of Iran (CCPR/C/28/Add.15) at its 1193rd to 1196th, 1230th to 1231st and 1251st to 1253rd meetings, held on 29 and 30 October 1992, 7 April and 22 and 23 July 1993 (see CCPR/C/28/Add.15, paras. 180-212, 213-227 and 228-245, respectively) (CCPR/C/SR.1193-1196, 1230-1231 and 1251-1253). (For the composition of the delegation, see annex XI.)
191. The report was introduced by the representative of the State party, who said that the Covenant was considered by the authorities as a valuable instrument whose correct enforcement could help to preserve the inherent value and dignity of human beings. The Islamic Republic of Iran endeavoured to implement the principles of the Covenant and thereby to attain social justice. If any violations were committed by the authorities, efforts were made to put an end to them.
192. Based on the will of the people, the objective of the Government was to establish justice, equity, political and economic freedom, solidarity among nations and avoidance of tyranny. From its inception, the Islamic Republic of Iran had made every effort to set up the necessary institutions to that end and restore them after a cruel war which had devastating effects and caused irreparable damage. A number of parliamentary, presidential and other elections and referendums had been held, the judicial order had been reorganized and steady progress was being achieved in improving the performance of the legal system and the protection of people's rights. A number of human rights seminars had been convened in the country with the Government's participation and, following the cessation of hostilities, the Islamic Republic of Iran had entered into close cooperation with the United Nations on human rights matters. Furthermore, there was a human rights office within the Ministry of Foreign Affairs and a course on human rights was given in the Faculty of Law.
Constitutional and legal framework within which the Covenant is implemented, state of emergency, non-discrimination and equality of the sexes
193. With regard to those issues, the Committee wished to know what the status of the Covenant was within the Iranian legal system; whether individuals could invoke its provisions directly before the courts; how a conflict arising between the provisions of the Covenant and Islamic law was resolved; whether, in view of the statement made by the representative of the Islamic Republic of Iran during the consideration of the initial report, any general review of compatibility of the provisions of the Covenant with Islamic law had been undertaken; whether the Guardian Council, provided for under article 91 of the Constitution, had the opportunity to pronounce itself on the compatibility of legislation with Islam; whether provisions in articles 3 and 20 of the Constitution providing for the equal protection under the law of all citizens of the country, in conformity with Islamic criteria, were compatible with articles 2, paragraph 1, and 26 of the Covenant; and in which respect, other than the exercise of political rights were, the rights of aliens restricted as compared with those of citizens. Members also wished to receive further information on the participation of women in the political and economic life of the country; on the application in practice of legal provisions concerning the dowry system; on the impact of article 2 (1) of the Constitution upon the provisions of article 26 of the Covenant, in respect of all the citizens of the Islamic Republic of Iran; and on the law and practice relating to the employment of minors.
194. In addition, members wished to receive information on the extent to which limitations to the enjoyment of human rights and freedoms imposed during the war were still being retained; on activities relating to the promotion of greater public awareness of the provisions of the Covenant; on the functions and activities of the Administrative Justice Tribunal; on the role of the clergy in the judiciary; on the extent of liability of civil servants for damage caused in the discharge of their duties; and on the jurisdiction of the military courts and on means of appeal from their decisions. It was also asked whether persons born out of wedlock were excluded from the judiciary; what safeguards and remedies were available to an individual during a state of emergency; and whether any notification under article 4, paragraph 3, of the Covenant had ever been made by the Islamic Republic of Iran to the Secretary-General. In that connection it was asked why martial law had not been declared during the war.
195. Many clarifications were requested regarding the implementation of article 3 of the Covenant, with particular reference to the dress code for women and the measures allegedly taken against women not complying with the code; the extremely high level of female illiteracy; discriminatory provisions regarding marriage, divorce and the right to work; and the differing legal provisions and penalties applicable to men and women in the case of adultery, inheritance, transmission of nationality and freedom of movement. Clarifications were also requested as to allegations that Iranian women demonstrating against practices relating to the Islamic dress code for women in June 1991 had been killed by revolutionary guards and as to the distinction between permanent and temporary marriages. It was also asked whether the Act of 14 May 1982 which stipulated that judges were to be chosen from among men was compatible with article 3 of the Covenant and whether women could travel abroad without the consent of their spouses.
196. Members wished to know whether there was any statutory prohibition of discrimination on grounds of political opinion or national origin; whether adherents of religions not enumerated in the report were accorded the same treatment as the listed religions; and what the situation was of linguistic or national minorities. In that connection, clarifications were requested regarding members of the Baha'i community and the many difficulties they were reported to face, including prohibition of the practice of their religion, dismissal from public employment, exclusion from university education, bans on the setting up of businesses, restrictions on freedom of movement and the demolition of some of their places of worship. More generally, clarifications were requested regarding the legal provisions relating to the rights of individuals acting contrary to the precepts of Islam or plotting against the State.
197. In his reply, the representative of the State party said that, in accordance with articles 77 and 125 of the Constitution, the Covenant was an integral part of Iranian law. Many of the general principles set out in the Covenant had, in fact, already been reflected in domestic legislation. It was thus unlikely that a conflict would arise between it and other provisions of domestic law. If one did, the conflict would be resolved in accordance with domestic legislation. In making decisions, judges could invoke articles of the Covenant, but there had never been an instance in which a provision of domestic law had been found to be in conflict with the principles set out in the Covenant. The Legal Department of the Judiciary, which elucidated matters that might be unclear, had given an advisory opinion to the effect that there would be no difficulty involved in invoking the Covenant before the courts.
198. Many nations had misgivings about the mechanical application of international human rights instruments and believed that the traditions, culture and religious context of a country should be taken into account in evaluating the human rights situation there. Study of the Islamic Declaration of Human Rights would bring out what was, in the Islamic countries' view, lacking in the Universal Declaration of Human Rights and the Covenant. Some differences of interpretation were possible and the provisions of the Covenant might not be fully consistent with Islamic law. The fact remained that the Iranian Constitution embodied the basic principle of respect for justice set out in the Covenant. It was wrong to overstate the differences between domestic legislation and the Covenant and to take a rigid stand that would do no one any good. Now that the country was no longer on a war footing, steps had been taken to improve the Iranian people's awareness of the rights set out in the Covenant, for example by organizing courses on human rights for civil servants and lawyers.
199. The duties of the Guardian's Council were to scrutinize all the laws passed by Majlies to ensure that they did not infringe the principles of the Constitution. Although it had not yet handed down any decision dealing specifically with human rights, all its decisions reflected a regard for the freedom and equality of the individual before the law. The functions of the Administrative Justice Tribunal were to investigate complaints, grievances and objections with respect to government officials, organs and statutes. Anyone had the right to apply to it for the annulment of any statute or regulation that was in conflict with the laws or the norms of Islam, or of measures falling outside the competence of the executive power. Judges were appointed having regard to their qualifications and experience to serve within a legal system that was based on the principles of Islam. Since the Revolution, members of the clergy had been able to act as judges if they were qualified and had received professional training.
200. Referring to questions raised relating to non-discrimination and equality of the sexes, the representative of the State party explained that there was no conflict between the Covenant and articles 3 and 20 of the Constitution. Article 21 of the Constitution required the Government to ensure the rights of women in all respects. Some distinctions had, however, to be made between men and women since they differed by nature. Only women could bear children, for instance, and the law had to make some special provisions for them. Under Iranian law, they were given longer holidays than men and the kind of work they performed had to take account of their welfare. The Labour Code specified that women had to receive the same pay as men for work of equal value and established many rules aimed at improving the welfare and status of women. Other measures to ensure protection for women included a law recently passed by Parliament that incorporated social security rights for widows and divorced women.
201. The scope of women's activities in social, political and economic affairs had expanded notably. A number of bodies were actively engaged in efforts to improve the status of women. A Women's Cultural and Social Council had prepared a draft charter of women's rights, family committees met once a week to review legislation and make proposals, and a Presidential Adviser on Women's Issues had been appointed. In the most recent parliamentary elections, 90 women candidates had stood for office and 9 of them had been elected. A total of 443,840 women were employed in the various ministries, government offices and departments and, of that number, 45 per cent were directors of offices or departments. Twenty-five per cent of all attorneys were women and there were many women doctors and graduates of higher educational institutions. The claim that 89 per cent of Iranian women were illiterate and that girls' schools in rural areas had been closed down for lack of women teachers was entirely erroneous. Some 300,000 women and girls had been members of various sports committees.
202. The dowry system existed in all Islamic countries and represented a form of protection and security for women and a way of establishing financial equality between men and women. Throughout the marriage, the man bore all the household expenses and the expenses of the wife and children. In view of all those considerations, the fact that the woman's share of the inheritance was only half that of the man could not be regarded as discriminatory. On the question of divorce, there was now a special civil court in which a divorce petition could be brought either by the husband or by the wife. Islamic theologians had declared women ineligible for investigating cases or rendering judgements; that rule was applied throughout the Islamic world. The need to employ more women in various positions in the judicial branch had, however, been recognized by the President of the Judiciary and by the Faculty of Law. It was anticipated that an announcement would be made early in 1993 inviting women to apply for posts in that branch.
203. Most Muslim women preferred to wear traditional garments outside the home. The choice was a moral and religious one taken to respect Islamic law, and their wish should be respected. On occasion the Government had had to intervene in order to maintain public order in situations where excesses might have occurred, but the clashes had been due to differences in interpretation of cultural and religious criteria. Experts were studying possible changes. The philosophy underlying the institution of the temporary marriage contract was that since a permanent contract required the commitment of resources that were perhaps beyond the means of young people, a temporary contract would enable such individuals to legitimate their situation even before they had acquired the necessary means. In such marriages, the husband had to pay a dowry but was not obliged to meet all the living expenses of the wife.
204. Responding to other questions, the representative explained that, even when an individual had committed an offence under article 14 of the Constitution, such as conspiracy against the Islamic Republic of Iran, his human rights were preserved. The monotheism practised in the Islamic Republic of Iran was in no way in conflict with the principles of human rights. In the Islamic Republic of Iran, society and the social order were governed by Islamic principles. The rules and laws were not immutable and could be amended in the light of changing circumstances. Theologians and qualified experts were given the task of adapting Islamic precepts to the conditions of modern society and could recommend the amendment of legislation. The fact of belonging to a particular religion, race or ethnic group did not bestow any privilege. The Constitution stipulated that there had to be one Jewish, one Zoroastrian and three Christian representatives in Parliament. The Baha'i had not been accorded the same advantages as practitioners of other religions since it would be impractical to extend such advantages indiscriminately. The emergence of the Baha'i faith nearly 150 years ago had been accompanied by serious social conflicts, violence and death. That historical background and the fact that the Baha'i presented their faith as the exclusive gateway to God, accounted for the intensity of the reaction among the country's Muslim population to the proselytising efforts. Nevertheless, the Government and the judiciary always endeavoured to defuse confrontation and preserve the rights of the Baha'i.
205. Under domestic legislation, certain restrictions had been placed on foreigners in such areas as ownership rights and the right to form companies dealing with commerce, industry, agriculture or mining. The employment of minors under the age of 15 was forbidden under the labour legislation. Minors over the age of 15 could be employed provided certain regulations designed to protect the right of such minors were observed.
Right to life, treatment of prisoners and other detainees and liberty and security of person
206. With reference to that issue, the Committee wished to know how often and for what crimes the death penalty had been imposed and carried out since the consideration of the initial report; which offences, if any, other than those mentioned in paragraph 59 of the report, were punishable by the death penalty; whether Iranian law was in conformity with article 6, paragraph 2, of the Covenant which provided that the death penalty should be imposed only for the most serious crimes; whether any revisions of the law, with a view to curtailing the number of offences currently punishable by the death penalty, were being contemplated; how articles 18, 205, 219 and 257 of the Islamic Punishment Law were applied in practice; whether there had been any public executions in the Islamic Republic of Iran and, if so, whether that procedure was compatible with articles 6 and 7 of the Covenant; whether there had been any complaints during the period under review of alleged disappearances and extrajudicial executions and, if so, whether such allegations had been investigated and with what results; and what measures had been taken to prevent the recurrence of such practices. Members also wished to know what were the rules and regulations governing the use of firearms by the police and security forces; whether there had been any violations of such rules and regulations and, if so, what measures had been taken to prevent their recurrence; what concrete measures had been taken by the authorities to ensure the strictest observance of article 7 of the Covenant; whether confessions or testimony obtained under torture could be used in court proceedings; what the arrangements were for the supervision of places of detention and for receiving and investigating complaints; what the maximum time-limits were for remand in custody and pre-trial detention; how quickly after arrest a person's family was informed and how quickly after arrest a person could contact a lawyer; and whether the provisions relating to incommunicado detention were compatible with articles 7 and 10 of the Covenant.
207. In addition, clarification was requested of the rule that an individual would not be liable to the death penalty if convicted of murdering a mentally-ill person; the provisions of article 19 of the Penal Code under which persons convicted of adultery were liable to death by stoning; the consistency with article 6, paragraph 2, of the Covenant of death sentences for apostasy, corruption, opposition to Islam and fraud; cases in which a death sentence could be imposed on the basis of Islamic sources and religious orders; and the many death sentences reported to have been imposed on political grounds in 1988-1989. Members also asked whether appeals could be made against death sentences; under what legislation Baha'is had been sentenced to death; and whether the fatwa authorizing the execution of prisoners who did not perform their religious duties in prison was still in force.
208. Clarifications were also requested regarding the death sentence on the writer Salman Rushdie and the consistency of the sentence with article 6, paragraph 2, and articles 18 and 19 of the Covenant. In particular, it was asked what competent court, within the meaning of article 6 of the Covenant had imposed the sentence; and whether writing an offensive work could be regarded as a most serious crime within the meaning of article 6 of the Covenant.
209. Clarifications were also sought regarding the consistency with articles 7 and 10 of the Covenant of "legal sanctions", such as flogging, stoning or amputation of fingers for theft. It was also asked whether there had been any investigation of the extremely high number of cases of extrajudicial executions, disappearances, torture and ill-treatment that had been brought to the attention of the Islamic Republic of Iran, particularly by the Special Representative of the Commission on Human Rights; how certain dramatically staged executions in which offenders were crucified or thrown from a high place could be reconciled with the Covenant; whether a political detainee who had served his sentence had to sign a declaration of repentance before he could be released; and what action had been taken to implement the November 1991 agreement authorizing the International Committee of the Red Cross to make regular visits to prisons.
210. In response to the Committee's questions, the representative of the State party said that the death sentence could be imposed for the most serious crimes such as homicide, premeditated murder, armed robbery, drug trafficking, armed rebellion and complicity in murder, kidnapping or rape. Depending on the circumstances, offenders might be sentenced to imprisonment, capital punishment being reserved for the most serious crimes in accordance with article 6, paragraph 2, of the Covenant. The Iranian authorities had instituted safeguards to limit as far as possible the imposition of death sentences. A newly established unit in the Office of the Public Prosecutor was looking into the best ways of combating crime. The Government regretted the number of executions, shortly after the Revolution, of supporters of the old regime who had helped to destroy the country's basic institutions, as well as the executions of collaborators with the enemy after the war that had been waged against the Islamic Republic of Iran. Both situations had been exceptional.
211. Under articles 219 and 257 of the Islamic Law on the prevention of crime, the death sentence could be carried out only with the consent of the victim's next of kin. The latter could agree to commutation of the sentence. It had been believed that public executions would have a deterrent effect. In view, however, of their possible undesirable psychological effects on the population, executions were now as a rule carried out inside penal establishments. No complaints alleging disappearances or extrajudicial executions had been lodged in the Islamic Republic of Iran. The cases mentioned in the report of the Special Representative of the Commission on Human Rights had been investigated and the results had been made public, but most were still under investigation. In the early days of the revolution, there were cases in which members of the old regime were attacked or killed. When the facts were clear, the Government had taken steps to prosecute those responsible.
212. Iranian law established the principle that any penalty imposed must be provided for by law and could only be applied in accordance with the decision of a court of law. Officials denying a hearing to a person imprisoned in violation of the law were dismissed or barred from civil service employment. Anyone responsible for acts of torture or death threats must submit himself to the law on compensation or be imprisoned. A law enacted under the old regime specified that members of the armed forces could use their firearms when they had to defend themselves against armed attack; when they were attacked and a firearm was their sole means of defence; to protect the life of a person or persons in danger; against a fugitive prisoner if the latter was armed and dangerous; and to defend property and installations placed under the care of the military authorities. A law had recently been promulgated which provided that any member of the armed forces who violated those regulations committed an offence for which he was accountable.
213. Article 38 of the Constitution prohibited all forms of torture used to extract confessions or obtain information. It was forbidden to force anyone to testify, confess or swear an oath against his will. Offenders were punished in accordance with the law. If a prisoner was treated in an unlawful way he could lodge a complaint, and the prison governor was obliged to transmit his complaint to the competent authorities.
214. In case of arrest, the detainee had to be brought before the State Prosecutor within 24 hours for questioning. In straightforward cases he was charged and brought before a Court. In more difficult cases, the suspect could be remanded in custody for up to four months. The accused always had the right to communicate with his lawyer and his family. Under article 130 of the Code of Penal Procedure, the accused could not communicate with his family or friends if contacts with other persons could lead to destruction of evidence or collusion with witnesses.
215. In reply to additional questions raised in connection with articles 6 and 7 of the Covenant, the representative of the State party explained that a death sentence could be appealed in accordance with the Law pertaining to Revision of Court Judgements and the Manner of their Investigation adopted in 1988. In 1992, 920 cases decided by the Revolutionary Courts had actually been reviewed by the Supreme Court and 190 decisions had been nullified for various reasons, including improper legal procedures during the trial stage. With regard to the punishment of drug trafficking by death, he explained that narcotics trade had developed at an alarmingly high rate through the country's unguarded eastern border, while the Government had been occupied in defending its western border during the nine-year war with Iraq. That situation had currently reached critical proportions which required a very tough approach if it was to be controlled.
216. Under Iranian law, no one could be executed for political reasons alone. Allegations that 2,500 persons had been executed for political reasons during the six-month period between mid-1988 and the beginning of 1989 were not true. Referring to a question raised on the alleged execution of an assistant professor at the University of Tabriz for having criticized the Government's economic and social policy the representative said that he had actually been sentenced to four months in prison and was still teaching at the University of Tabriz.
217. Referring to the death sentence passed on Mr. Salman Rushdie, the representative emphasized that Mr. Rushdie's book was a severe insult to Islam and to the prophet. Although article 19, paragraph 2, of the Covenant guaranteed the right to freedom of expression, its paragraph 3 stated that the exercise of that right carried with it special duties and responsibilities and might be subject to certain limitations. An individual who had disregarded those limitations should be punished. However, the Imam Khomeini, as a religious leader and not as a representative of the Government, had issued a religious decree. Any action taken in response to that fatwa would be based on an individual's religious belief.
218. According to article 23 of the Constitution, no one could be punished or prosecuted for his beliefs. No court had ever prosecuted any individual for his beliefs but even if it had, the Supreme Court would have prevented the sentence from being carried out. If persons belonging to non-Islamic religious denominations had been executed, it was because of crimes they had committed and not because of their beliefs. Two Baha'is said to have been executed had indeed been sentenced to death by a lower court on other charges, including treason, and the sentence had subsequently been set aside on appeal to the Supreme Court because the degree of treason had not warranted capital punishment and because the court had failed to appoint a lawyer even though the accused had refused legal representation.
219. Article 39 of the Constitution ensured that detained persons would be treated with respect and articles 58 and 59 of the Islamic Punishment Law provided for a penalty of up to one year imprisonment for the torture of an accused person. Iranian criminal law provided for certain forms of corporal punishment, including flogging and lapidation. If a court decided that a person who had been found guilty should be flogged, the flogging was not considered to be a form of torture, since that form of punishment existed under Islamic law. The availability of inflicting such forms of corporal punishment was currently being discussed at the highest levels of government, and for certain crimes the sentence of flogging had been abolished and commuted to imprisonment or the payment of a fine.
Right to a fair trial
220. With reference to that issue, the Committee wished to receive further information on provisions governing the tenure, dismissal and disciplining of members of the judiciary; on how the independence of the judiciary was ensured; on the jurisdiction and activities of the National General Inspectorate, the Administrative Justice Tribunal and the Revolutionary Courts; on the legal status of the revolutionary guards and the revolutionary prosecutors and on their relationship with ordinary courts; and on the organization and functioning of the Bar. They also requested clarification of the statement in the report that prosecution, trial, issuance and enforcement of a retribution verdict depended on the request of the next of kin.
221. Moreover, members of the Committee requested further information on proceedings before the Revolutionary Courts and it was asked, in particular, whether their decisions could be appealed against; what the permitted grounds for appeal were; whether defendants before those courts had unlimited access to lawyers, adequate time and facilities for the preparation of their defence and the possibility of calling witnesses on their behalf; and whether trials before such courts were always held in camera. Clarification was requested as to the role of repentance in release of a sentenced person who had served his term; a statement in the report that courts of justice were to be formed in accordance with the criteria of Islam; the jurisdiction of the special clerical courts referred to in the report; the independence of the Bar Association and whether the Government was enabled to dismiss its members; and regarding reports that a woman was not considered a competent witness in connection with a serious criminal charge. It was also inquired whether a law had been adopted, pursuant to article 168 of the Constitution, regarding the definition of political offenses; whether those who had been sentenced as political prisoners were subject to recall; whether authoritative Islamic sources and authentic fatwa could be considered part of national law; and what remedies were available in the case of a discrepancy between fatwa and the applicable law.
222. In his reply, the representative of the State party said that the independence of the judiciary was guaranteed by the Constitution and that judges were elected on the basis of their professional qualifications and high moral character. If a judge was alleged to have committed an error, his actions were reviewed by a special disciplinary office, which took appropriate administrative measures. Furthermore, under article 164 of the Constitution, a judge could not be removed without proof that he had committed violations of the law. There were three law schools in Tehran which were open to both male and female students and there were plans to begin admitting women to the judicial colleges in 1994.
223. The National General Inspectorate monitored the administration of government and the implementation of the laws. He reviewed complaints brought by individuals and submitted reports to the parliamentary commission or to the relevant ministry for investigation. The Administrative Justice Tribunal reviewed complaints brought by individuals against government agencies. The powers and functions of the Revolutionary Courts, which had been established at the beginning of the Islamic Revolution, were stipulated in article 150 of the Constitution. The revolutionary guards were members of the armed forces and played a role in enforcing discipline.
224. The independence of the Bar was guaranteed by law and lawyers were free to accept any clients they wished. In all courts, including military courts, all defendants had the right to a lawyer. Inevitably, there were situations in which violations of that right occurred, but they were dealt with in an appropriate manner and many efforts had been made to improve the situation in recent years. In the case of accusations that were liable to capital punishment or to life imprisonment, it was compulsory to appoint a lawyer. Furthermore, defendants could have lawyers assigned to them free of charge if they were unable to pay.
225. All decisions of all courts were subject to appeal and, even in the case of murder convictions, they were not executed until all appeals had been exhausted or requests for clemency considered. Furthermore, the Constitution provided for a waiting period between the rendering of a final decision and the execution of sentence. During that period, sentences could be appealed to the Supreme Court.
226. Responding to other questions, the representative of the State party explained that there was currently no definition of political offences and no law had been passed to implement or explain article 168 of the Constitution; the question was currently under review. Judges could only issue judgments on the basis of fatwa when the case in question was not covered by codified law. In the event of conflict between a fatwa and the civil law, the civil law always took precedence. Under article 165 of the Constitution, all trials had to be held openly, unless the court determined that an open trial would be detrimental to the morals of public order. He added that, although violations of proper procedures did inevitably occur, many of the reports concerning those cases were not properly documented and relied on unsubstantiated allegations.
Freedom of movement and expulsion of aliens
227. With regard to those issues, the Committee wished to receive information on the cases in which an individual might be banished from his place of residence, prevented from residing in the place of his choice, or compelled to reside in a given locality; the compatibility of those provisions with article 12 of the Covenant; the enjoyment of the right of everyone to leave any country, including their own; and the conditions and procedures relating to the issuance of exit visas for foreigners whose duration of stay exceeded 90 days.
228. In his reply, the representative of the State party stated that, under article 90 of the Islamic Punishment Law, an individual who had committed certain crimes could receive banishment in addition to the punishment determined by the court. In the view of Iranian courts, that provision did not contradict article 12 of the Covenant.
229. Foreigners were granted visas according them the right to stay in the country for 90 days. If such foreigners could not renew their visas, and if they had no other legal status enabling them to remain in the country, they were compelled to leave. No governmental authority without a judicial decree could prevent an individual from leaving the country. Certain restrictions did however apply in the case of individuals who were being prosecuted, convicted criminals and in other limited legal circumstances.
230. In reply to additional questions raised in connection with articles 7 and 10 of the Covenant, the representative of the State party said that prisoners were released after completion of their sentence, unless they had committed a further offence in the meantime. Their repentance during the prison term was one of the factors that would be taken into account when considering the possibility of granting a pardon. He added that a parliamentary commission had recently been set up to investigate allegations of human rights violations. Its duties included making visits to prisons in order to deal with individual complaints and suggesting improvements where appropriate.
231. With reference to article 14 of the Covenant, the representative of the State party explained that any failure to ensure that legal proceedings before Revolutionary courts were held in public and in the presence of counsel constituted grounds for annulling those proceedings and revoking any sentences handed down. He added that, under article 167 of the Constitution, judgements were to be delivered, in the absence of a codified law, on the basis of authoritative Islamic sources and authentic fatwa. The Bar Association did not currently enjoy the right to elect its Board independently, but measures were being taken to give it fully independent status at an early date.
Freedom of religion and expression
232. With regard to that issue, the Committee wished to know whether, under article 18 of the Covenant, the rights of non-believers or followers of non-revealed religions were affected by the principle set out in article 2, paragraph 1, of the Constitution; what was the position of religious minorities that were not recognized by articles 12 and 13 of the Constitution, including the Baha'is; what was the meaning of the term conspiracy or activities against Islam and the Islamic Republic of Iran in the context of article 14 of the Constitution; what was the meaning of the statement in article 24 of the Constitution that the press was free, provided the matter written was not detrimental to the principle of Islam; how many newspapers there were in the country; and whether foreign publications were readily available.
233. The members of the Committee also asked for further details regarding the restrictions imposed on persons professing recognized religions and on the particular situation of those who professed religions that were not recognized, such as the Baha'is, who seemed to be subject to very severe restrictions. They referred in that connection to the report of the Special Representative of the Commission on Human Rights on the situation of human rights in the Islamic Republic of Iran (E/CN.4/1993/41), which drew attention to numerous cases of torture and ill-treatment inflicted on the members of that community as well as the destruction of holy places and cemeteries.
234. Further details were requested regarding the many restrictions placed on the exercise of freedom of speech and opinion, in particular in connection with freedom of the press, on grounds of protecting the interests of the country or the precepts of Islam, and the need for a permit for the possession of typewriters, photocopiers, fax machines or radios. Explanations were again asked for in connection with the sentencing to death of an author, Mr. Salman Rushdie, for his writings, and the compatibility of that sentence with the provisions of article 18 of the Covenant.
235. In his reply, the representative of the State party said that judicial rules and regulations applied to all citizens and that the rights of all individuals were ensured provided that they did not conspire against the system or commit crimes against it. The Constitution recognized three religions apart from Islam, namely the Jewish, Christian and Zoroastrian religions. Members of those religious minorities were free to practise their own rites and follow their own social customs in their personal life. The right of all individuals to pray and profess the religion of their choice was respected. No distinction was made in the Islamic Republic of Iran between recognized religions and others. The consequences of recognition were that, in matters of personal status and inheritance, marriage or divorce, the social rules of the religion professed by the person concerned were applicable. Choice of religion was a matter of individual free will and nobody could be punished on account of his religion. The Baha'is could, in their own communities, practise their rites in complete freedom. In addition, in response to the allegation that Baha'is' cemeteries had been destroyed, he explained that, according to the municipal authorities of Tehran, there had been no question of destroying tombs but rather of creating open spaces.
236. The term "conspiracy or activities against Islam and the Islamic Republic of Iran" had clearly been defined in the relevant rules and regulations as the action of individuals who endangered the security or independence of the country or of the Islamic system. Article 24 of the Constitution provided for freedom of the press within the limits of Islamic principles. If a publication deliberately set out to contravene and insult the beliefs of Islam, it would be banned. On the other hand, where individuals wished to engage in rational academic discussion, they were free to do so even if they adopted an attitude hostile to Islam. Four hundred and fifty-seven licensed publications and most foreign newspapers were available in the Islamic Republic of Iran. The group responsible for examining applications for licences for publications consisted of a justice of the Supreme Court, a representative of the Ministry of Culture, a representative of Parliament, a university professor and a director of an organ of the press chosen by his peers. In general, the Islamic Republic of Iran complied strictly with the provisions of article 19, paragraph 3, and article 20 of the Covenant. The Committee should confine itself to considering the reports of States parties; matters such as the affair of Mr. Salman Rushdie and the Islamic Decree of which he was the object were entirely outside its terms of reference.
Freedom of assembly and association and right to participate in the conduct of public affairs
237. In connection with those issues, the Committee wished to receive further information concerning the number of trade unions and political parties in the Islamic Republic of Iran and how they were organized; and on the implementation in practice of the limitations to freedom of assembly and association provided for in articles 6 and 16 of the Law pertaining to Activities of Parties, Societies, Political and Professional Associations.
238. The members of the Committee also asked for explanations regarding the exact criteria limiting freedom of association; the possibility for Baha'is to join trade unions, establish associations or be employed in the public service; the small number of political groups authorized to take part in national political life; and the restrictions imposed on political activity, particularly in respect of contacts with foreign embassies and statements regarded as defamatory of the State.
239. In his reply, the representative of the State party explained that a very active labour organization existed for the benefit of all workers and covered 1,450 manufacturing units throughout the country. The political and social structure of the country consisted of 16 groups which were authorized to engage in political activities and a further 57 groups which engaged in social and political activities within the limits laid down in the Constitution. The members of the Islamic Consultative Assembly were elected directly by the Iranian people without the mediation of any of those groups. Article 16 of the Act pertaining to the Activities of Parties, Societies, Political and Professional Associations prohibited activities which might violate the independence of the country, attempts to exchange information with foreign powers, violations of the territorial integrity of the country, activities infringing the freedoms and right of others and any attempts to undermine the solidarity of the Iranian people. The restrictions imposed in Iranian law on freedom of association, assembly and peaceful demonstration were altogether analogous to those provided for in article 21 of the Covenant.
Rights of persons belonging to minorities
240. With reference to that issue, the Committee wished to know whether persons belonging to minorities, as defined under article 27 of the Covenant, were represented in the Islamic Consultative Assembly; and what arrangements had been made to secure the rights of persons of Kurdish origin, in particular in Kurdistan.
241. In addition, the members of the Committee asked for information on minorities other than religious minorities, on which the report gave no details, and the steps taken to protect their rights under article 27 of the Covenant; and on the position of the authorities in response to allegations that Iranian Kurdish villages had recently been bombed.
242. In his reply, the representative of the State party stated that the religious minority groups recognized by the Constitution were represented in the Islamic Consultative Assembly by five members who were elected by the minority groups themselves. Representatives of those groups enjoyed the same rights as other members of the Assembly. There were no racial problems in the country and all groups, whether of Kurdish, Farsi, Baluchi or other origin, enjoyed equal rights and could engage in political activities or perform judicial functions on an equal basis. Anyone engaging in activities endangering the independence of the Islamic Republic of Iran, for example by promoting Kurdish ethnicity, would be liable to punishment. The members of minority groups such as Turks or Kurds were entirely free to speak their own language and to publish their own newspapers. The acts of violence against certain Kurdish villages which had been referred to were probably the result of hostilities being waged by neighbouring countries of the Islamic Republic of Iran.
Concluding observations by individual members
243. Members of the Committee thanked the delegation of the Islamic Republic of Iran for its appearance before the Committee to respond to numerous questions over the course of three consecutive sessions, as well as for its report which had largely followed the Committee's guidelines. The report, however, contained little reference to the implementation of the Covenant in practice and provided virtually no information about factors and difficulties impeding the application of the Covenant in the Islamic Republic of Iran. Members noted with interest that a Human Rights Office has been established within the Ministry for Foreign Affairs and welcomed the measures under consideration in the Islamic Republic of Iran to improve the status of women and to replace flogging by other forms of punishment. They also noted the efforts being undertaken to develop an awareness of human rights on the part of senior officials of ministries and administrations and that, at the time of the Gulf war, more than 1.5 million refugees had been sheltered by the Islamic Republic of Iran.
244. At the same time, members expressed concern at the extremely high number of death sentences that had been pronounced and carried out in the Islamic Republic of Iran during the period under review; the number of executions that had taken place in public as a result of trials in which the guarantees of due process of law had not been properly applied; about the death sentence that had been pronounced, without trial, in respect of a foreign writer, Mr. Salman Rushdie, for having produced a literary work; and at the many cases of extrajudicial executions, disappearances, torture and ill-treatment that had been brought to the Committee's attention and which were described, inter alia, in the last report of the Special Representative of the Commission on Human Rights on the situation of human rights in the Islamic Republic of Iran (E/CN.4/1993/41). The application of disciplinary measures of extreme severity, such as flogging, lapidation and amputation, was not considered to be compatible with the provisions of article 7 of the Covenant, and serious questions were raised about requiring repentance from detainees as a condition of their release from custody.
245. Members also deplored the lack of respect for due process of law, particularly before the Revolutionary courts as well as the lack of an independent Bar Association which had an adverse effect on the administration of justice. Concern was also expressed at the lack of transparency and predictability in the application of Iranian domestic law; at the numerous, explicit or implicit, limitations or restrictions associated with the protection of Islamic values; at the persistence and extent of discrimination against women; about legal provisions allowing for the possibility of banishing individuals, preventing them from residing in the place of their choice, or compelling them to reside in a given locality, which were not compatible with article 12 of the Covenant; at the extent of limitations to the freedom of expression, assembly and association; and at the extent of the limitations and restrictions on the freedom of religion. They noted, in the latter regard, that conversions from Islam were prohibited and that followers of the three recognized religions (Christians, Jews and Zoroastrians) were facing serious difficulties in the enjoyment of their rights under article 18 of the Covenant. Moreover, concern was expressed about the extent of discrimination against followers of non-recognized religions, notably the Baha'is, whose rights under the Covenant were subject to extremely severe restrictions, some amounting to open violations of basic rights and liberties.
246. The representative of the State party thanked the members of the Committee for their demonstration of understanding and goodwill and for the various expressions of encouragement that had been voiced. He expressed the hope that, notwithstanding the note of scepticism that had also been sounded, the dialogue would be pursued. The dialogue with the Committee could only be useful if it provided some constructive criticism and an objective analysis of such inconsistencies with the Covenant as might still exist as well as suggestions for possible ways of resolving those problems. His delegation had benefited greatly from guidance offered by the Committee, which he would willingly convey to the competent authorities in his country with a view to improving the current situation. He reiterated the determination of the authorities to promote, inter alia, the entry of women into the magistrature as well as other professions.
247. In concluding the consideration of the second periodic report of the Islamic Republic of Iran, the Chairman thanked the delegation for its cooperation and emphasized that he had been encouraged by the assurance that the views of members of the Committee would be conveyed to the Iranian authorities for careful scrutiny.
Comments of the Committee
248. At its 1260th meeting (forty-eighth session), held on 29 July 1993, the Committee adopted the following comments.
Introduction
249. The Committee expresses appreciation to the State party for its report, which largely followed the Committee's guidelines regarding the form and contents of reports (CCPR/C/20/Rev.1) and which contained detailed information on some laws and regulations relating to the implementation of the provisions of the Covenant. However, the Committee notes that the report contained little reference to the implementation of the Covenant in practice and provided virtually no information about factors and difficulties impeding the application of the Covenant in the Islamic Republic of Iran.
250. The Committee regrets that, despite the delegation's efforts to respond to the numerous queries raised by members, the responses were not complete and the concerns of the Committee have not been adequately answered.
Positive aspects
251. The Committee takes satisfaction in the resumption of its dialogue with the Islamic Republic of Iran after a period of nearly 10 years. However, difficulties in the dialogue made it necessary for the Committee to invite the Islamic Republic of Iran to three consecutive sessions and the Committee appreciates the readiness of the State party to do so. It regards the request for the Committee's assistance in the State party's endeavour to bring its domestic law and practice more into line with the provisions of the Covenant as a particularly important feature of the State party representative's concluding remarks.
252. The Committee notes with interest the establishment of a Human Rights Office within the Ministry for Foreign Affairs, the measures under consideration in the Islamic Republic of Iran to improve the status of women and the promise to reconsider the question of corporal punishments. It also notes that efforts have been undertaken to develop an awareness of human rights on the part of senior officials of ministries and administrations, including the promise that the comments of the Committee would be brought to their attention. The Committee also appreciates the fact that, at the time of the Gulf war, more than 1.5 million refugees were sheltered by the Islamic Republic of Iran.
Factors and difficulties impeding the application of the Covenant
253. In view of the lack of transparency and predictability in the application of Iranian domestic law, the Committee has found it somewhat difficult to determine the extent to which the latter was compatible with the provisions of the Covenant. It also notes that numerous, explicit or implicit, limitations or restrictions associated with the protection of religious values, as interpreted by Iranian authorities, have also seriously impeded the enjoyment of some human rights protected under the Covenant.
254. Furthermore, the Committee observes that the emergency measures adopted by the authorities during the war with a neighbouring country, and the parallel destruction of the country's economy, have undoubtedly had negative effects on the enjoyment of the rights and freedoms provided for under the Covenant.
Principal subjects of concern
255. The Committee deplores the extremely high number of death sentences that were pronounced and carried out in the Islamic Republic of Iran during the period under review, many of which resulting from trials in which the guarantees of due process of law had not been properly applied. In the light of the provision of article 6 of the Covenant, requiring States parties that have not abolished the death penalty to limit it to the most serious crimes, the Committee considers the imposition of that penalty for crimes of an economic nature, for corruption and for adultery, or for crimes that do not result in loss of life, as being contrary to the Covenant. The Committee also deplores that a number of executions have taken place in public.
256. The Committee also condemns the fact that a death sentence has been pronounced, without trial, in respect of a foreign writer, Mr. Salman Rushdie, for having produced a literary work and that general appeals have been made or condoned for its execution, even outside the territory of the Islamic Republic of Iran. The fact that the sentence was the result of a fatwa issued by a religious authority does not exempt the State party from its obligation to ensure to all individuals the rights provided for under the Covenant, in particular articles 6, 9, 14 and 19.
257. In addition, the Committee is concerned about the many cases of extrajudicial executions, disappearances, torture and ill-treatment of persons deprived of their liberty that have been brought to its attention and which are described, inter alia, in the last report of the Special Representative of the Commission on Human Rights on the situation of human rights in the Islamic Republic of Iran (E/CN.4/1993/41).
258. Furthermore, the Committee considers that the application of measures of punishment of extreme severity, such as flogging, lapidation and amputation, is not compatible with the provisions of article 7 of the Covenant. It also has serious questions about requiring repentance from detainees as a condition of their release from custody.
259. The Committee also deplores the lack of respect for due process of law, particularly before the Revolutionary courts, where trials in camera tend to be the rule and where apparently no real possibility is provided to the accused to prepare a defence. The lack of an independent Bar Association also has an adverse effect on the administration of justice, in the view of the Committee.
260. The Committee observes that the persistence and extent of discrimination against women is incompatible with the provisions of article 3 of the Covenant and refers, in particular, to the punishment and harassment of women who do not conform with a strict dress code; the need for women to obtain their husband's permission to leave home; their exclusion from the magistracy; discriminatory treatment in respect of the payment of compensation to the families of murder victims, depending on the victim's gender and in respect of the inheritance rights of women; prohibition against the practice of sports in public; and segregation from men in public transportation.
261. The Committee considers that legal provisions allowing for the possibility of banishing individuals, preventing them from residing in the place of their choice, or compelling them to reside in a given locality, are not compatible with article 12 of the Covenant.
262. Furthermore, the Committee is concerned at the extent of limitations to the freedom of expression, assembly and association, exemplified by articles 6 and 24 of the Constitution and article 16 of the Law Pertaining to Activities of Parties, Societies and Political and Professional Associations, noting in this connection that, contrary to the provisions of articles 18 and 19 of the Covenant, members of certain political parties who did not agree with what the authorities believe to be Islamic thinking or who expressed opinions in opposition to official positions have been discriminated against. Self-censorship also seems to be widespread in the media and severe limitations appear to have been placed upon the exercise of freedom of assembly and of association.
263. Finally, the Committee wishes to express its concern at the extent of the limitations and restrictions on the freedom of religion and belief, noting that conversion from Islam is punishable and that even followers of the three recognized religions are facing serious difficulties in the enjoyment of their rights under article 18 of the Covenant. The Committee is particularly disturbed about the extent of discrimination against followers of non-recognized religions, notably the Baha'is, whose rights under the Covenant are subject to extremely severe restrictions. In the foregoing connection, the Committee received no satisfactory answer regarding the destruction of places of worship or cemeteries and the systematic persecution, harassment and discrimination of the Baha'is, which is in clear contradiction with the provisions of the Covenant.
Suggestions and recommendations
264. The Committee recommends that the comments it has made in connection with the consideration of the second periodic report of the Islamic Republic of Iran should be studied by the authorities with a view to adopting necessary legal and practical measures to ensure the effective implementation of all the provisions of the Covenant. The Committee wishes, in particular, to emphasize the following suggestions and recommendations.
265. The Committee recommends that domestic laws should be revised with a view to curtailing the number of offences currently punishable by the death penalty and to reducing the number of executions. Public executions should be avoided and the accused should, in all cases, be provided with all necessary guarantees, including the right to a fair trial as provided for under article 14 of the Covenant.
266. Effective measures should be adopted to ensure the strictest observance of articles 7 and 10 of the Covenant. All complaints of extrajudicial executions, disappearances, torture and ill-treatment should be duly investigated, the culprits should be punished and measures should be taken to prevent any recurrence of such acts. Severe forms of punishment incompatible with the Covenant should be removed from law and practice and the conditions of detention of persons deprived of their liberty should be improved. The Committee also recommends that training courses should be organized for members of the police, the armed forces and the security forces as well as for other law enforcement officials, so as to better acquaint them with basic human rights principles and norms.
267. The Committee recommends that Iranian legislation and practice be brought into line with the provisions of articles 9 and 14 of the Covenant, which provide that all persons should have the right to a fair trial, including the assistance of counsel, the right to be brought promptly before a judge and the right to be tried in public. Urgent consideration should also be given to the abolition of the Revolutionary courts.
268. The Committee recommends that active measures should be taken to enhance the status of women in the Islamic Republic of Iran in accordance with articles 2, 3 and 23 of the Covenant and to guarantee their equal enjoyment of rights and freedoms.
269. The Committee recommends that its recently adopted general comment No. 22 (48) be studied by the authorities to bring its legislation and practice into line with the requirements of article 18 of the Covenant. In that regard, the Committee wishes to emphasize that recognition of a religion as a State religion should not result in any impairment of the enjoyment of any of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents of other religions or non-believers, since the right to freedom of religion and belief and the prohibition of discrimination cannot be abrogated by the recognition of an official religion or belief. Measures restricting eligibility for government service to members of the predominant religion, or giving economic privileges to such persons, or imposing special restrictions on the practice of other faiths, are incompatible with the prohibition of discrimination based on religion or belief and the guarantee of equal protection under article 26 of the Covenant.
270. The Committee also wishes to invite the Government of the Islamic Republic of Iran to undertake necessary steps to ensure that the rights enunciated in articles 17, 19, 21, 22 and 25 of the Covenant can be exercised without any limitations or restrictions other than those provided for in the Covenant.
Venezuela
271. The Committee considered the second periodic report of Venezuela (CCPR/C/37/Add.14) at its 1197th to 1199th meetings, on 2 and 3 November 1992 (see CCPR/C/SR.1197-1199). (For the composition of the delegation, see annex XI.)
272. The report was introduced by the representative of the State party who emphasized the progress made in the legislative field since the consideration of the initial report of his country. A number of provisions of the Civil Code incompatible with the Covenant, particularly those relating to the equality of husband and wife within marriage, had been amended. The Organic Law on the Protection of Constitutional Rights and Guarantees had been adopted in January 1988. It had introduced important improvements as far as the exercise of the remedy of amparo was concerned. Amendments had also been made to the Organic Labour Law to expand and strengthen the human rights of workers. As a demonstration of the strength of its democratic institutions, Venezuela was planning to hold elections for the posts of governors, mayors and councillors in December 1992. The Government had adopted a policy of informing, training and sensitizing the sectors concerned with the protection of human rights and was determined to punish those found guilty of violations of fundamental rights.
273. Referring to the factors and difficulties which had affected the implementation of the Covenant in Venezuela during the reporting period, the representative explained that, in February 1989, as a result of a series of economic measures taken by the Government, there had been a social explosion in the country which had had serious effects in the human rights field. There had been unprecedented outbursts of public violence or arbitrary behaviour on the part of law enforcement officials. On 4 February 1992, an attempted military coup had endangered the stability of the country's democratic system and made it necessary to suspend guarantees but they were restored on 23 April 1992.
Constitutional and legal framework within which the Covenant is implemented, state of emergency, non-discrimination, equality of the sexes and protection of the family and children
274. With regard to those issues, the Committee wished to receive further information on the status of the Covenant within the Venezuelan legal system; on the possibility for individuals to invoke the provisions of the Covenant directly before the courts; on the impact of the entry into force of the Organic Law on Protection of Constitutional Rights and Guarantees on the implementation of human rights contained in the Covenant; on the conformity with article 4 of the Covenant of the reasons for declaring a state of emergency, referred to in paragraphs 52 to 56 of the report; on remedies available to individuals during the period of emergency; on measures taken to investigate cases of disappearances, extrajudicial executions and other excesses committed during the state of emergency, to punish those found guilty, and to compensate the victims; on measures taken to prevent the recurrence of such acts; on the progress achieved since the adoption of amendments to the Civil Code and the Labour Code and of other reforms with a view to eliminating inequalities between men and women; on the law and practice relating to the employment of minors; and on the light work which minors under the age of 14 might be authorized to perform by the administrative authorities.
275. In addition, members wished to know whether the remedies of amparo and habeas corpus continued to be applicable during a state of emergency and whether representatives of the Public Prosecutor's Department remained available to detainees in such circumstances; what measures had been taken to disseminate information on the rights recognized in the Covenant and on the Optional Protocol; whether human rights were taught to police officers and members of the armed forces; how contradictions between domestic legislation and the Covenant, if any, were resolved; and whether there was any provision providing for prohibition of discrimination based on colour, language, national origin or political opinion, which had been omitted in article 61 of the Constitution.
276. In his reply, the representative of the State party explained that the Covenant took priority over laws adopted under the Constitution and that individuals could invoke its provisions before the courts. A constitutional reform bill which intended to place the Covenant above the Organic and other laws was currently under consideration by the Congress. Although officials of the Public Prosecutor's Department often referred to the rights set forth in international human rights instruments, the courts were not accustomed to citing such instruments because they tended to assume that all human rights were adequately covered in the Constitution. Efforts had been made to disseminate information on the rights recognized in the Covenant through lectures and seminars given to lawyers and judges as well as security and police officers.
277. The declaration of a state of emergency in February 1989 had been in conformity with article 4 of the Covenant. The rights set forth in articles 6, 7, 8, 11, 15, 16 and 18 of the Covenant had not been suspended during that period and people had continued to exercise the right of amparo. The Commander of the National Guard had been urged to be vigilant to prevent excesses and human rights abuses and public officials had been instructed to keep within the limits set by the Constitution. The Public Prosecutor's Department had carried out many inspections at the headquarters of the military police and investigatory services. All complaints about disappearances, arbitrary detention and other human rights violations had been processed and handed over to the competent courts for further investigation. The Attorney-General of the Republic had met with representatives of non-governmental organizations and, subsequently, weekly meetings among the parties had been convened to give effective follow-up to all complaints of human rights violations. Eighteen complaints of disappearances had been registered, but only two had been confirmed through investigation. Although every effort had been made to carry out thorough inquiries, in many cases there was not enough proof to permit responsibility to be attributed to a particular individual, which was a prerequisite for prosecution. However, when well-founded indications of responsibility on the part of public officials had been uncovered, investigations had been requested and some cases had subsequently been brought to court.
278. During the suspension of rights and guarantees following the events of 4 February 1992, the Supreme Court had granted a request for amparo without undertaking a prior investigation of its admissibility. It had thus established a precedent for handling an application for amparo during a state of emergency and the obligation of the courts to decide on the substance of the matter had, subsequently, been made part of the jurisprudence of Venezuela.
279. Responding to other questions, the representative said that the adoption of amendments to the Civil Code and the Labour Code had already led to considerable progress and had improved the situation of married women. The Public Prosecutor's Office enjoyed widespread support in its efforts to promote the rights of women in accordance with the Convention on the Elimination of All Forms of Discrimination against Women. There were five women members of the Government, 5 senators and 19 deputies. However, while there were many women in official positions, much remained to be done to achieve equality. There were no problems of discrimination based on race or religion or national origin in Venezuela.
280. Venezuela had ratified the Minimum Wage Convention, 1973 (No. 138) of the International Labour Organization and other international instruments specifically designed to protect children, including the Convention on the Rights of the Child. The National Institute for Minors was responsible for the protection of children and the Organic Labour Law, which entered into force on 1 May 1991, contained a chapter devoted to child labour whose purpose was to prohibit work by children under the age of 14, except for light work by those over the age of 12.
Right to life, treatment of prisoners and other detainees, liberty and security of person and right to a fair trial
281. With reference to those issues, the Committee wished to know what measures had been taken to prevent and punish the trafficking in organs; whether the Police Organization Bill mentioned in paragraph 125 of the report had been adopted; what the rules and regulations were governing the use of firearms by the police and security forces; whether there had been any violations of these rules and regulations and, if so, what measures had been taken to prevent their recurrence; what the status, functions and activities were of the new security units referred to in paragraph 69 of the report; what concrete measures had been taken by the authorities to ensure that all courts give due attention to cases of ill-treatment at the hands of the police and security forces and to ensure that such cases were investigated; what legal provisions guaranteed that no one was subjected to medical and scientific experimentation; what specific measures were envisaged to address the problems affecting the supervision of places of detention and the procedures for receiving and investigating complaints; whether the provisions of the Vagrancy Act relating to the custody of vagrants and malefactors in re-education centres, farming-settlements or work-camps were compatible with articles 8 and 14 of the Covenant; whether that Act had as yet been repealed; what concrete measures had been taken by the Public Prosecutor's Department to ensure strict adherence by the police and security forces to rules relating to the liberty and security of the person as enshrined in article 9 of the Covenant, and whether such initiatives had led to any progress to date; and whether the Legal Defence Bill referred to in paragraph 251 of the report had been adopted by Congress.
282. In addition, clarification was requested concerning measures taken by the authorities with regard to the numerous allegations of impunity enjoyed by members of the armed forces responsible for torture, maltreatment and disappearance; the steps undertaken to provide victims with effective remedies against such acts; of the position of the Government regarding the discovery of more than 60 bodies in common graves and, in particular, as to whether it intended to conduct an appropriate investigation into the atrocities committed; the alleged transfer of detainees to inaccessible rehabilitation centres, where they were deprived of their right to prepare their defence with their lawyers; and the lack of resources and expertise to determine whether an individual had been subjected to torture that left no external traces. Members also asked whether military courts could handle cases involving civilian victims; how soon after arrest a person could contact a lawyer and inform his family; and whether environmental questions were taken into account in connection with the right to life.
283. In his reply, the representative of the State party explained that under article 46 of the Venezuelan Constitution, any act by the public authorities which infringed or restricted the rights guaranteed by the Constitution was null and void, and the officials who had ordered or carried it out bore criminal, civil or administrative liability. Article 1196 of the Civil Code provided that a judge could grant compensation to the victim in the event of bodily injury, damage to the honour and reputation of the victim or his family or violation of his rights. The Human Rights Division of the Public Prosecutor's Department had, during 1991, deemed it necessary in 2,500 cases to investigate the conduct of certain officials belonging to the police or prison services; 800 of those cases had been found to justify the formulation of charges against government officials. Referring to instances of impunity following the events of February 1989, the representative said that the courts had been urged to order corpses to be exhumed with a view to acquiring evidence in response to the concerns expressed by the relatives of victims. Due to difficulties in assigning individual responsibility, insufficient information on the location of the common graves, and other technical problems, no results had been achieved as yet.
284. The Police Organization Bill mentioned in the report had not yet been adopted. The use of firearms by the police and security forces was governed by the Penal Code and article 24 of the Law on Weapons and Explosives. The arbitrary or abusive use of force or firearms by law enforcement officials was considered to be an offence.
285. According to the Supreme Court, military jurisdiction was to be viewed as the exception and cases should generally be handled in the civilian courts. However, after the events of February 1989, the police investigatory bodies had collected evidence on civilian deaths and had reported thereon to the military courts. The Public Prosecutor's Department had informed them that such conduct was inappropriate and had reminded them that they were auxiliary bodies of the regular system for criminal justice and not of the military courts.
286. The Public Prosecutor's Department was responsible for ensuring against arbitrary or incommunicado detention and that the accused could communicate with a lawyer. Surprise visits to police pre-trial detention centres had been made at night by representatives of the Public Prosecutor's Department in the Caracas metropolitan area. A comparison of the results of that operation with a similar one carried out in 1990 had revealed that the number of arbitrary detentions had declined. In 1991, representatives of the Public Prosecutor's Department had inspected a total of 10,428 pre-trial detention establishments of various kinds. The Public Prosecutor's Department was entitled to visit places of detention in military units but it was rarely possible to organize such visits on a surprise basis and, under a state of emergency, access to military detention centres became even harder. The length of pre-trial detention was much too long and was likely to open the door to abuses and arbitrary action. Steps were being taken to reform the entire judicial system and to introduce a new court consisting of justices of the peace to relieve the judges of courts of first instance of their enormous workload. The Judicature Council had also appointed itinerant judges to try cases in courts where magistrates were overwhelmed with work.
287. Trafficking in organs was covered by the Organ Transplants and Anatomical Material of Human Origin Act. Under that Act, human organs could be removed and used for therapeutic purposes only at institutes and hospital centres authorized to do so. Persons who, for profit, acted as intermediaries in obtaining organs were punishable by four to eight years' imprisonment. Since traffic in organs was obviously connected with the sale of children, Venezuela had insisted on the inclusion, in the Convention on the Rights of the Child, of article 35 which obliged States parties to take all appropriate measures to prevent the abduction of, sale of or traffic in children for any purpose or in any form. Under the Medical Deontological Code, the consent of a person had to be obtained to perform medical experimentation.
288. The Vagrancy Act of 1956 had been promulgated before the adoption of the democratic Constitution in 1961 and violated the rights of individuals, particularly the right to legal counsel. The authorities agreed that the Act should be abolished and a new system for dealing with vagrants put into place. A draft law designed to achieve that end was being discussed in Parliament. A special office within the Public Prosecutor's Department sought to minimize the arbitrary application of the law and to have administrative acts revoked where they covered cases involving irregularities.
289. Responding to other questions, the representative of the State party said the Legal Defence Bill referred to in the report had not yet been adopted by Congress. If an accused did not have the means to pay a lawyer of his choice, he was provided with legal defence services from the moment he was charged. The Asociación nacional de clínica jurídica also provided legal defence services free of charge, mainly in low-income areas. Three public prosecutors were qualified to act in environmental matters and an Organic Law on the Environment had been adopted.
Freedom of movement and expulsion of aliens, right to privacy, freedom of religion, expression, assembly and association and right to participate in the conduct of public affairs
290. In connection with those issues, the Committee wished to receive further information on the penalty of banishment, as provided for by articles 53 to 56 of the Criminal Code and the Act on the Commutation of Sentences by Pardon or Banishment from the National Territory of 15 December 1964, and on the compatibility of those provisions with article 12 of the Covenant; on the content of the Protection of Privacy Bill, referred to in paragraph 309 of the report; and on whether the Demonstrations, Marches and Other Peaceful Protest Activities Act and the Crowd Control Act had been adopted and, if so, whether they have been successful in fighting excesses committed by security forces against peaceful gatherings.
291. Members of the Committee also inquired about the grounds for deprivation of a person's right to vote; whether a conscientious objector could bring an action of amparo in order to protect his freedom of thought and conscience; and about the implementation of article 20 of the Covenant.
292. In his reply, the representative of the State party said that the penalty of banishment was ordered by the courts only when requested by the citizen himself and involved the commutation of a sentence already handed down by the competent judicial authorities. It was considered to be a benefit in that it offered the citizen freedom of movement as long as he remained outside the national territory and was, therefore, fully compatible with the Covenant. The purpose of the Protection of Privacy Bill was to protect the privacy, confidentiality, inviolability and secrecy of communications between individuals. It provided for penalties in connection with the recording or hampering of such communications. The Bill had, however, not yet been endorsed by the Congress as a whole. The Demonstrations, Marches and Other Peaceful Protest Activities Act and the Crowd Control Act were still being considered in Congress. Steps had, however, already been taken to avert excesses by the security forces during peaceful demonstrations, such as the creation of special units among the ranks of the demonstrators themselves to prevent violence.
293. In response to other questions, the representative of the State party said that there was no history of conscientious objection in Venezuela. The Government was, however, studying the possibility of changing the law to provide an alternative to military service. There were numerous categories of persons who were exempt from military service, such as students, persons with dependant parents and Jehovah's Witnesses. Only prisoners incarcerated under the category of presidio (rigorous imprisonment) lost their right to vote.
Rights of persons belonging to minorities
294. With regard to that issue, the Committee wished to know what factors and difficulties affected the implementation of article 27 of the Covenant, particularly with regard to the treatment of indigenous peoples as individuals and groups; whether the Draft Act on the Organization of Indigenous Communities, Peoples and Cultures had been adopted by Congress; whether the delegation to Catholic missions of the task of "subduing and civilizing indigenous persons" was compatible with the rights of Indian communities as envisaged in the Draft Act as well as with article 27 of the Covenant; and whether article 77 of the Constitution had been reformulated to include specific recognition of the land, traditions, religions and languages of Indian communities in Venezuela, pursuant to the advice given by the Bicameral Commission referred to in paragraph 470 of the report.
295. In addition, members of the Committee wished to know how the State ensured that the indigenous populations were able to exercise their political rights and seek representation; whether any indigenous person had ever held one of the high public offices mentioned in paragraph 450 of the report; and, in general, how equitable access of members of indigenous groups to public service was ensured.
296. In his reply, the representative of the State party explained that a special office had been created at the national level to deal with indigenous matters. The Draft Act on the Organization of Indigenous Communities, Peoples and Cultures had not yet been adopted. The word "subduing" (reducir) used in the report referred to a system by which the Indians were exempt from complying with some of the elements of the administrative and judicial system in Venezuela. The purpose of those exceptions was to enable the Indians to live in conformity with the aspects of their culture that did not coincide with the cultural patterns of other inhabitants of Venezuela. In the Missions Act of 1915, the State of Venezuela had delegated to the Catholic Church the task of "civilizing" the Indians and persuading them to live in established settlements. A bill was, however, under consideration in Congress designed to amend article 77 of the Constitution with regard to the incorporation of indigenous populations into the life of the nation. It purported to modify the integrationist philosophy underlying that article by providing for a pluralist and multicultural vision based on respect for their languages and beliefs. A biosphere zone in the Amazons, covering an area of 3.9 million hectares, had been established to ensure the physical and cultural survival of the indigenous people.
Concluding observations by individual members
297. Members of the Committee thanked the representative of the State party for his cooperation in presenting the report and for responding to the various questions. The report contained detailed information on laws and regulations, but fuller information could have been provided on the practices relating to the implementation of the Covenant. They noted with appreciation that the report highlighted factors and difficulties which had impeded the implementation of the Covenant in Venezuela during the period under review. Members welcomed the fact that democracy was thriving in Venezuela and that a great many laws and regulations dealing with human rights had been adopted or submitted to Parliament in recent years.
298. At the same time, it was noted that some of the Committee's concerns had not been fully allayed. Members expressed concern, in particular, at the serious human rights violations such as disappearances, torture, extrajudicial executions and arbitrary arrests that had been committed during the states of emergency in February 1989 and early 1992. They were further disturbed by the failure to take sufficient steps to punish those found guilty of such violations. Additionally, concern was expressed in respect of the excessively long periods of pre-trial detention; the application of article 35 of the Aliens Act; the conditions of detention in prisons; the trial of civilians by military courts; and over the Government's desire to integrate indigenous groups, which might conflict with their right under article 27 of the Covenant to enjoy their own culture.
299. The representative of the State party assured members of the Committee that their comments would be transmitted to his Government, particularly in so far as the need to carry out further investigations into the events of February 1989 was concerned.
300. In concluding the consideration of the second periodic report of Venezuela, the Chairman expressed his sincere appreciation to the delegation for its frank and cordial dialogue with the Committee and for the excellent report, which had followed the Committee's guidelines. He expressed the hope that the competent authorities would take action that would enable further progress to be reported in the third periodic report.
Comments of the Committee
301. At its 1203rd meeting (forty-sixth session), held on 5 November 1992, the Committee adopted the following comments.
Introduction
302. The Committee commends the State party on its report, drawn up in accordance with the Committee's guidelines (CCPR/C/20/Rev.1). The report contains detailed information on the law, although fuller information could have been provided on practice relating to the implementation of the Covenant. Furthermore, it highlights factors and difficulties which impeded the implementation of the Covenant in Venezuela during the period covered by the report. The Committee, does, however, regret that the report was submitted more than seven years behind schedule.
303. The Committee also thanks the State party for the core document (HRI/CORE/1/Add.3), drawn up in accordance with the consolidated guidelines for the initial part of States party reports to be submitted under the various international human rights instruments (HRI/1991/1).
304. The Committee pays tribute to the competence of the delegation from the State party, which endeavoured to reply frankly and fully to the many questions raised by Committee members.
Positive aspects
305. The Committee welcomes the fact that democracy is thriving in Venezuela and notes with satisfaction the adoption by or submission to Parliament in recent years of a great many laws and regulations dealing with human rights. These include important texts dealing with, for example, the protection of indigenous peoples and equality between men and women. The Committee takes note of provisions granting international human rights instruments precedence over Venezuelan domestic law.
Factors and difficulties impeding the implementation of the Covenant
306. The Committee notes that a number of states of emergency, resulting from riots caused by economic reforms, have been declared in the past in Venezuela, the most recent extending from 4 February to 30 April 1992. Emergency measures notified to the Secretary-General have suspended a number of the safeguards called for in the Covenant, and impeded the full implementation of the Covenant during those periods. The Committee also notes that outdated legislation which is still in force despite being severely criticized in Venezuela is one of the factors impeding the full and complete implementation of the Covenant.
Principal subjects of concern
307. The Committee expresses concern at the serious human rights violations, such as enforced and involuntary disappearances, torture and extrajudicial executions, that were committed during the attempted coup d'état in 1989 and early 1992. It is disturbed by the failure to take sufficient steps to punish those guilty of such violations, and concerned that members of the police force and the security services and military personnel are likely to go unpunished as a result. It notes that judicial investigations into such cases have clearly been too slow, especially where members of the armed forces are concerned.
308. The Committee is also concerned that custody can last as long as 16 days and emphasizes that it is precisely during such periods that accused persons are most vulnerable, in particular to acts of torture or ill-treatment. The possibility that civilians may be tried by military courts is likewise a matter of concern to the Committee.
309. The Committee also expresses its concern over the application of article 35 of the Aliens Act, which does not provide for any possibility of appeal, and over conditions of detention in places of imprisonment.
Suggestions and recommendations
310. The Committee recommends the State party to take whatever steps are necessary to combat all human rights violations, in particular those that may have been committed during the various states of emergency. The State party should see to it that all members of the armed forces of the police who have committed violations of the rights guaranteed by the Covenant are tried and punished by civilian courts. The duration of custody should be reviewed, and an accused person should be allowed to undergo a medical examination upon request and to have access to his lawyer from the time of arrest. Steps should also be taken to make the remedy of amparo effective, and to improve conditions in places of detention substantially. The list of rights that cannot be derogated from, even during states of emergency, should be extended to include all the rights covered by article 4, paragraph 2, of the Covenant. Further measures should be taken pursuant to article 27 of the Covenant, in order to guarantee indigenous peoples their own cultural life and the use of their own language. Lastly, a special effort should be made to support the activities of the Human Rights Office. The Committee also recommends that training courses should be organized for members of the police, the armed forces and the security forces as well as for other law enforcement officials, so as to better acquaint them with basic human rights principles and norms.
Republic of Bosnia and Herzegovina
311. Deeply concerned by recent and current events in the territory of the former Yugoslavia affecting human rights protected under the Covenant, having noted that all the peoples within the territory of the former Yugoslavia are entitled to the guarantees of the Covenant, finding that the new States within the boundaries of the former Yugoslavia succeeded to the obligations of the former Yugoslavia under the Covenant, in so far as their respective territories were concerned, and acting under article 40, paragraph 1 (b), of the Covenant, on 7 October 1992 the Committee requested the Government of the Republic of Bosnia and Herzegovina to submit a short report on certain issues in respect of persons and events now coming under its jurisdiction (for the Committee's decision, see para. 36 and annex VII).
312. The report submitted by the Government of the Republic of Bosnia and Herzegovina pursuant to this decision was considered by the Committee at its 1200th meeting, on 3 November 1992 (see CCPR/C/SR.1200). (For the membership of the delegation, see annex XI.)
313. The report was introduced by the representative of the State party, who said that terrible crimes were being committed in the territory of Bosnia and Herzegovina that was controlled by the aggressor (Serbia, the Serbian Democratic Party and its armed formations), for which ethnic cleansing was an integral part of the war objectives. The Serbian Democratic Party's policy was based on the principle that persons of different religions and ethnic origins could not live side by side, and the concept of ethnic cleansing was a corollary of that concept. For example, in the territory controlled by the aggressor, mass executions and arrests were taking place, hundreds of thousands of people were being deported or interned in concentration camps and detention centres, and the right of individuals to work, freedom of movement and property were being denied. So far, 165,000 persons had lost their lives, in some cases almost the entire population of an area. Moreover, 1,200 members of the Jewish community in Sarajevo had been compelled to flee without hope of ever coming back.
314. The Government of the Republic of Bosnia and Herzegovina opposed an ethnic war and had taken a number of steps to determine the circumstances in which a large part of the population of two regions, one with a Serbian majority and the other consisting mainly of Muslims, had fled. In actual fact, 600,000 Muslim citizens had been forced to abandon their homes in various regions of Bosnia and Herzegovina. In some places, virtually the entire population had been forced to leave. Yet the Bosnian State was a State for all those who lived in its territory and it comprised peoples who had fused to the point of forming an indivisible entity. It had done everything in its power to prevent ethnic cleansing in the territory under its control. Ethnic war was therefore something that had been imported into Bosnia and Herzegovina and was caused by the ambitions of neighbouring States seeking to annex part of the territory and population of the country.
315. Bosnia and Herzegovina had neither its own army nor its own weapons; the population had therefore organized spontaneously to defend their country and stand up to aggression. The situation had given rise to some cases of torture and arbitrary executions by way of reprisals for the mass and arbitrary executions and the torture for which the Serbs were responsible. Steps had been taken to put an end to such actions, such as dismissing certain officers and disbanding local self-defence units whose reprehensible behaviour was notorious. The Bosnian authorities undertook to establish high-level commissions of inquiry and were continuing to defend the principle of the communities living alongside each other.
316. The members of the Committee noted that, in submitting the report requested and sending a delegation, the Republic of Bosnia and Herzegovina had shown, so far as its territory was concerned, that it had succeeded to the former Socialist Federal Republic of Yugoslavia's obligations under the Covenant. On the basis of the two reports by the Special Rapporteur of the Commission on Human Rights (E/CN.4/1992/S-1/9 and E/CN.4/1992/S-1/10), the report of the Mission of the Conference on Security and Cooperation in Europe to Bosnia and Herzegovina in August 1992 and other reports on the situation in certain camps, they deplored the unprecedented tragedy that the country was suffering. They expressed their consternation at the extent of the violations of the rules of humanitarian law in general, the Geneva Conventions of 12 August 1949 for the protection of war victims and the Covenant. They noted that the situation in the camps under the control of the authorities of Bosnia and Herzegovina were better than in the other camps and that no policy comparable to a policy of ethnic cleansing was being applied in the territory under the control of the Bosnian authorities.
317. The members of the Committee asked what steps had been taken to protect the rights enunciated in the Covenant, in particular the rights to life, to protection against torture and other ill-treatment, to liberty and to freedom of movement. In the case of persons deprived of their freedom as a result of the conflict, they asked for clarification about the conditions in certain detention centres, particularly those at Konjic and Zenica and any other private detention centres around Sarajevo; the situation in two villages in Bosnia and Herzegovina where the population was said to be unable to leave; the results of inquiries conducted into the question of extrajudicial executions and cases of torture; the steps taken so that the abuses noted in the latter centres would not recur; the measures to identify detainees and to exchange information about them; the registers of detainees and any transfers; and the number of people held by the Bosnian authorities. They also asked whether the International Committee of the Red Cross had been kept fully informed of the number of detainees; whether the places of detention had all been declared as such and could be visited; and whether instructions had been issued so that persons not bearing arms would not be arrested simply in order to exchange them against Muslims held by the opposing forces.
318. In response to the questions raised, the representative of the State party said that, as the Special Rapporteur of the Commission on Human Rights had pointed out, there was no comparison between the human rights violations in the territory legally controlled by the Government and the crimes committed in the part of the territory that was temporarily occupied. In the war conditions forced upon the country, human rights violations were inevitable and cases of disappearances, ill-treatment inflicted on detainees in certain prisons or camps, arbitrary arrest and detention without trial had been noted. In the circumstances, steps had been taken by the Government and, from now on, any arrest other than by order of the police was forbidden and the powers of the military police were reduced. Furthermore, military prisons were now solely for members of the army found guilty of offences and no civilian could be imprisoned in them. Maintenance of public order was exclusively the responsibility of the civilian police and judicial bodies. The Government was endeavouring to seek out and punish persons responsible for illegal acts and, to that end, a Committee of Inquiry had been established to find those responsible for crimes committed, regardless of whether they were Muslims, Croats, Serbs or partisans of any political faction. Another Special Committee had been instructed to examine complaints of acts committed by the military authorities, namely arbitrary arrests and detentions and violations of the right to property, to freedom of movement and to work. The Bosnian authorities in no way acted as Muslim authorities and the victims, in the territory under their control, although generally Muslim, also belonged to other ethnic groups or religions.
319. Nevertheless, steps to restore respect for the law were hindered in the Sarajevo region because it was subjected to constant bombardments and because of the lack of water, electricity, fuel, food, medicines and means of communication. It was therefore difficult to set up an appropriate mechanism for the protection of human rights. It was to be noted that in the regions which had least suffered from enemy infiltration, public order was being maintained and no violence had been found in the detention camps. Citizens of Serbian origin who had felt that they were threatened had benefited from special protection measures. Furthermore, the Government regarded itself as legally responsible for the population living in the occupied part of the territory and was conducting investigations so that victims would once again enjoy their rights and be compensated in so far as possible, although the task was extremely difficult without the support of the international community.
320. The Government of Bosnia and Herzegovina had been patient and shown good will by negotiating a political agreement in Geneva that could lead to a cease-fire. It had undertaken to respect all international humanitarian law instruments, particularly the Geneva Conventions which provided for the release of persons detained in the "camps". In that regard, the participants in the London Conference had recognized that besieged towns and villages could no doubt be regarded as concentration camps. Over 400,000 persons were being detained in what could be regarded as the largest concentration camp ever to exist in the world and the situation was growing worse from month to month, without the international community displaying any intention of coming to the assistance of the inhabitants of Sarajevo. The representatives of the international community, and in particular delegates of the International Committee of the Red Cross, had been invited to visit detention camps and prisons under Bosnian jurisdiction. Shortly after the agreement of 1 October 1992 to open up the camps, the Government had respected its commitments. However, the aggressor had continued its policy of ethnic cleansing by preventing released persons from returning to their homes or villages of origin, by threatening their security, by pressuring them to emigrate to Croatia and by using force to move them there.
Concluding observations by individual members
321. The members of the Committee noted that, while the report did not methodically and systematically answer the questions included in the Committee's decision, the delegation of the Republic of Bosnia and Herzegovina had answered them orally. They noted that the Republic of Bosnia and Herzegovina considered itself as legally responsible for everything which had happened, not only in the part of the territory effectively under its control but also in the other parts. They also noted the steps taken to combat and prevent human rights violations committed by the forces placed under the control of Government in a conflict which had been imposed on it.
322. The members of the Committee said they were revolted by the crimes committed by the forces not under the control of the Government. In that connection, it was pointed out that ethnic cleansing was a form of genocide and was accompanied by massive violations of articles 6, 7, 12 and 26 of the Covenant. They also said that all places of detention should be officially declared as such, that a list of all detainees should be drawn up and published and that ICRC should be able to visit those camps. Camps not complying with those requirements should be dismantled.
323. The representative of the Republic of Bosnia and Herzegovina assured members of the Committee that his country was making every effort to bring the conflict to an end and to honour its obligations and guarantee respect for everyone's human rights. A draft Constitution guaranteeing protection of all the human rights set out in the international human rights instruments had been elaborated.
324. On completion of the consideration of the report submitted by the Republic of Bosnia and Herzegovina pursuant to the Committee's decision of 6 October 1992, the Chairman thanked the delegation for the useful information it had supplied in response to the questions raised. He expressed the hope that the current negotiations would lead to a radical change in the situation and that all those who lived in the Republic of Bosnia and Herzegovina would soon be able to enjoy the rights protected by the Covenant.
Comments of the Committee
325. At its 1205th meeting (forty-sixth session), held on 6 November 1992, the Committee adopted the following comments.
Introduction
326. Deeply concerned by recent and current events in the territory of the former Yugoslavia affecting human rights protected under the international Covenant on Civil and Political Rights; noting that all the peoples within the territory of the former Yugoslavia are entitled to the guarantees of the Covenant; and acting under article 40, paragraph 1 (b) of the Covenant; the Committee on 7 October 1992, requested the Government of the Republic of Bosnia and Herzegovina to submit a short report on the following issues in respect of persons and events now coming under its jurisdiction:
(a) Measures taken to prevent and combat the policy of ethnic cleansing pursued, according to several reports, the territory of certain parts of the former Yugoslavia, in relation to articles 6 and 12 of the Covenant;
(b) Measures taken to prevent arbitrary arrests and killings of persons, as well as disappearances, in relation to articles 6 and 9 of the Covenant;
(c) Measures taken to prevent arbitrary executions, torture and other inhuman treatment in detention camps, in relation to articles 6, 7 and 10 of the Covenant;
(d) Measures taken to combat advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence, in relation to article 20 of the Covenant.
327. Pursuant to that request, the Government of Bosnia and Herzegovina submitted a background paper dated August 1992 on the violations of human rights that had occurred in the territory of the Republic, which was considered by the Committee at its 1200th meeting, held on 3 November 1992. The Republic of Bosnia and Herzegovina was represented by Mr. Muhamed Filipovic, Vice-President of the Academy of Science and Art of the Republic of Bosnia and Herzegovina, Member of the Assembly of the Republic of Bosnia and Herzegovina, Member of the State Delegation of the Republic of Bosnia and Herzegovina at the International Conference on the Former Yugoslavia; Mr. Kasim Trnka, Member of the Constitutional Court of the Republic of Bosnia and Herzegovina, Member of the State Delegation of the Republic of Bosnia and Herzegovina at the International Conference on the Former Yugoslavia and Mr. Mustafa Bijedic, Minister Counsellor, Chargé d'affaires, Mission of the Republic of Bosnia and Herzegovina to the United Nations Office at Geneva. The document submitted was supplemented orally in detail and in depth in the perspective of the particular areas of concern on which the Committee had requested a report.
328. The Committee notes that by complying with its request to submit a report and by sending a delegation before it, the Republic of Bosnia and Herzegovina had confirmed its succession to the obligations undertaken under the International Covenant on Civil and Political Rights by the former Socialist Federal Republic of Yugoslavia in respect of the territory forming part of the Republic of Bosnia and Herzegovina.
Positive aspects
329. The Committee welcomed the delegation's affirmation that the Republic of Bosnia and Herzegovina considers itself legally responsible for whatever has taken place not only in that part of its territory on which it has factual and effective control but also in other parts of its territory. The Committee has also taken note of the measures taken to combat and prevent violations of human rights, in particular, measures to ensure that arrest and detention of persons are carried out only by the legal authorities and not by uncontrolled individuals; the demarcation of legal responsibility between the military and civilian police authorities; the replacement of commanders who have been responsible for violations; and the disbanding of groups and units which have been responsible for violations. The Committee has also taken note of the measures taken to protect the person and property of Serbs.
Factors and difficulties impeding the application of the Covenant
330. Since Bosnia and Herzegovina became a separate State, a significant part of its territory has remained out of its control and has been subjected to military action entailing massive human rights violations resulting in loss of life, torture, disappearances, summary executions, rapes and general ill-treatment of persons. The delegation stated that much of this was the result of the action of outside forces and uncontrolled groups and individuals.
Principal subjects of concern
331. The Committee expressed its concern at the large number of killings, arbitrary arrests, detentions, the operation of prisons by private persons and the general mistreatment of persons.
Recommendations
332. The Committee recommends that the Republic of Bosnia and Herzegovina formalize its succession to the Covenant by submitting the appropriate notification to the Secretary-General of the United Nations. The Committee recommends that the measures already taken by the Republic should be further intensified and systematically monitored so as to ensure that ethnic cleansing does not take place, whether as a matter of revenge or otherwise; that prisoners are not taken for the purpose of eventual exchange of prisoners; that all places of detention are officially proclaimed; that records of all people detained are kept and made public; and that such places of detention are open to visits by the International Committee of the Red Cross and the families of the people detained. All places of detention that do not comply with these conditions should be immediately dismantled. Administrative arrangements should be made to enable persons to retrace members of their family who have disappeared and prompt investigations should take place to bring all those responsible for violations to trial.
Croatia
333. Deeply concerned by recent and current events in the territory of the former Yugoslavia affecting human rights protected under the Covenant, having noted that all the peoples within the territory of the former Yugoslavia were entitled to the guarantees of the Covenant, finding that the new States within the boundaries of the former Yugoslavia succeeded to the obligations of the former Yugoslavia under the Covenant in so far as their respective territories were concerned, and acting under article 40, paragraph 1 (b), of the Covenant, on 9 October 1992, the Committee requested the Government of the Republic of Croatia to submit a short report on certain issues in respect of persons and events now coming under its jurisdiction by 30 October 1992 (see para. 36 and annex VII).
334. The report submitted by the Republic of Croatia pursuant to the aforementioned decision was considered by the Committee at its 1201st and 1202nd meetings, on 4 November 1992 (CCPR/C/SR.1201 and 1202). (For the composition of the delegation, see annex XI.)
335. The report was introduced by the representative of the State party who explained that any consideration of the situation in Croatia had to be based on a distinction between the aggressor and the victim and take duly into account the background against which the development and present status of human rights in Croatia had evolved. The first free elections in the spring of 1991 and Croatia's declaration of independence in June 1991 had led to riots and rebellion by a part of the Serbian minority in Croatia with the incitement and strong support of the regime in Belgrade and of the so-called Yugoslav People's Army. Those events culminated in open military aggression against Croatia aiming at occupation, ethnic cleansing and annexation of its territory. That aggression had left 20,000 people dead and 80,000 wounded.
336. A quarter of the Croatian territory was still under Serbian occupation. Almost half of the Croatian economy had been destroyed and many churches, cemeteries, schools, hospitals and historical monuments severely damaged or completely ruined. Additionally, Croatia had become host to some 300,000 displaced persons and to more than 450,000 refugees from Bosnia and Herzegovina.
337. As one of the successor States to the former Yugoslavia in 1992, Croatia had made a declaration of succession to the Geneva Conventions of 1949 and the Covenant. It also intended to make the declaration provided for in article 41 of the Covenant and to accede to the Optional Protocols in the near future. The Covenants had been taken as a basis for the human rights provisions contained in chapters 2 and 3 of Croatia's new Constitution. The Constitution defined the Republic of Croatia as a national State of the Croatian people and a State of members of minorities who were its citizens; its article 15 provided that members of all national minorities enjoyed equal rights, freedom to express their nationality and use their language and script, and cultural autonomy. Croatia had also been the only Republic of the former Yugoslavia to enact and implement the human rights provisions adopted by The Hague Conference on the Former Yugoslavia. Accordingly, it had adopted, in December 1991, a Constitutional Law on Human Rights and Freedoms and the Rights of Ethnic and National Communities or Minorities which guaranteed all human rights and fundamental freedoms to members of minorities, together with additional rights to be enjoyed by them in accordance with all the relevant United Nations and European human rights instruments. Special autonomous status had been granted to national and ethnic communities in those districts of Croatia where their members represented over 50 per cent of the population. Other legal provisions guaranteeing national minority rights had also been adopted, in particular the Law on Election to the Croatian Parliament which provided that a national minority comprising more than 8 per cent of the population of the Republic had to be proportionally represented in parliamentary, governmental and judicial bodies.
338. There had been no organized policy of ethnic cleansing in the Croatian territory under the control of the Croatian authorities, who had always been decisively and uncompromisingly opposed to such a policy. Although there had been individual cases of arbitrary arrests and killings during the early stages of spontaneous self-defence against the aggressor, the Croatian authorities had applied the rule of law throughout the territory under their control and were prosecuting the perpetrators of such criminal acts. There were no detention camps in the territory controlled by the Croatian authorities and, even during the military aggression, the treatment of prisoners of war belonging to the so-called Yugoslav People's Army or to Serbian paramilitary groups had been regulated by a special decree providing for the application of the Geneva Conventions of 1949. The policy of ethnic cleansing was, however, still being pursued and practised against Croatians and other non-Serbian populations in the territory not controlled by the Croatian authorities. In that territory, there were still detention camps in which killings, the worst methods of torture and other inhuman treatment were practised.
339. The Croatian Government was a strong advocate of national and religious tolerance and favoured the introduction of preventive measures to forestall acts of intolerance. It had established an Office for Inter-Ethnic Relations and there was also a parliamentary Committee for Human Rights, including minority rights. Police stations in each district had been instructed to take the necessary precautions to prevent possible attacks in retaliation for the killings, bombings and other crimes frequently committed by people of Serbian nationality living in the area.
340. Members of the Committee noted with appreciation that, on 12 October 1992, the Republic of Croatia had notified the Secretary-General that it had succeeded, as from 8 October 1991, to various human rights treaties, including the Covenant. They further noted that, since its independence, the territory of Croatia had been subjected to large-scale military action which had resulted in massive violations of human rights, including significant loss of life, torture, disappearances and summary executions, with entire towns destroyed and populations displaced. They emphasized, however, that all human rights instruments, including the Geneva Conventions, laid obligations on parties, without exonerating those who regarded themselves as victims of aggression from their own responsibilities under the relevant instruments. Although human rights violations might well be reported in portions of the country that was not under Croatian control, Croatia was none the less accountable for what happened in areas that it did control.
341. With regard to the situation of ethnic Serbs in Croatia, members requested clarification of references in the report of the Special Rapporteur of the Commission on Human Rights (E/CN.4/1992/S-1/9) to maltreatment of ethnic Serbs, which had caused the flight of many of them from the territory of Croatia, and to cases of detention of civilians on the sole basis of their ethnic origin. Similarly, clarification was sought of other references in a report prepared by the Conference on Security and Cooperation in Europe which indicated that the Serbian population had been the target of human rights violations, including destruction of houses, attacks on shops belonging to Serbs, and dismissal of Serbs from government service. It was asked whether such measures did not in themselves constitute a form of ethnic cleansing. Information was also requested on measures taken to investigate the cases of kidnapping and arbitrary arrests mentioned in the report submitted by Croatia and to punish those found guilty. Members also wished to know what measures had been taken to investigate cases of disappearances, extrajudicial executions or torture, to punish those found guilty, and to prevent the recurrence of such acts, including any acts perpetrated by Croatian forces in Bosnia and Herzegovina; whether steps had been taken to ensure that prisoners were not being taken in order to be exchanged for other prisoners; what measures had been adopted to ensure the proper treatment of persons deprived of their liberty and to prevent conduct by certain individuals that might lead to forced departures or to preventing the return of any section of the population; whether there were detention camps in Bosnia and Herzegovina under the jurisdiction of members of the Croatian army; and what groups were considered as minorities under the recently adopted Constitutional Law on Human Rights and Freedoms and the Rights of Ethnic and National Communities or Minorities.
342. With reference to the implementation of article 20 of the Covenant, clarification was requested of the published lists of Croatian citizens of Serbian origin indicating their ethnic origin which, according to the Special Rapporteur of the Commission on Human Rights, were widely distributed and available for sale to the public (members of the Committee had a copy of the list furnished by the Special Rapporteur). It was also inquired what measures had been foreseen to create the preventive conditions designed to forestall any cases of national, racial, religious or other kinds of hatred; what practical measures had been adopted to promote tolerance among the various peoples residing in the Republic; what steps had been taken against members of the Croatian army who had reportedly been seen wearing Nazi emblems; whether there were any educational programmes, policy campaigns or efforts to disseminate information that would promote ethnic tolerance; and what the Office for Inter-Ethnic Relations might do to promote the eradication of ethnic criteria in the future.
343. In his reply, the representative of the State party stated that in October 1992, his Government had notified the depositaries of many international treaties, including the Covenant, of its decision to consider itself a successor State in respect of the ratification of the former Federal Republic of Yugoslavia. Under article 134 of the Constitution, international agreements concluded and ratified in accordance with the Constitution were part of Croatia's internal order and prevailed over national legislation. With reference to the statement in the report according to which a distinction had to be drawn between the aggressor and the victims, the representative explained that all violations of human rights had constituted aggression and that, during the war in Croatia, part of the Serbian ethnic group had joined the aggressors and committed violations.
344. Referring to questions relating to ethnic groups and minorities, the representative explained that anyone who wished to be considered as belonging to a minority had the right to do so and enjoyed all the rights guaranteed under the Constitution. There was no wish on the part of the Government to change anything in respect of their geographical situation. Provisions relating to minorities had been included in the Constitutional Law of December 1991, but the application of those rules depended on a decision of the present rulers of the Serbian minority in one part of Croatia to recognize that they were citizens of Croatia. Serbs living in other parts of Croatia had recently received new schools, and a Serbian organization called the Serbian Community had been re-established to protect the national rights of Serbs in Croatia. The branches of the Office for Inter-Ethnic Relations which had been created in various districts of the country had established a council where all representatives of different ethnic groups and minorities could meet to present their problems. The branches also proposed measures for monitoring the application of laws and regulations and assisted persons whose cases had not been dealt with properly by judicial or other organs.
345. With reference to the human rights violations occurring in Croatia, the representative explained that a distinction had to be made between the three quarters of the territory controlled by the Croatian Government, for which the Government was responsible, and the portion that was occupied by the Serbs and under the protection of the United Nations Protection Force (UNPROFOR), where it was not possible to control human rights violations. The activities of the Ministry of the Interior and of the police were aimed at preventing violence, especially of an ethnic nature, and protecting public and private buildings, in particular Serbian-owned homes, against possible attacks. The Croatian Government could, unfortunately, do nothing about violations in the part of the territory out of its control, where incidents of ethnic cleansing, expulsions, arbitrary arrests, executions, torture, and racial and religious hatred continued to occur. Furthermore, the Croatian Government could not be held responsible for violations in other independent sovereign States, in particular Bosnia and Herzegovina. There were no concentration camps in Croatia but, due to the war, Croatia did have three prisoner-of-war camps in its territory which were under the control of the Ministry of Defence. Rules for the treatment of the prisoners had been laid down in a decree of the President of the Republic and the provisions of the Geneva Conventions of 1949 were being applied.
346. In the framework of the spontaneous self-defence actions against Serbian and Montenegrin aggression, at a time when Croatia had been weaponless and without a military force, there had been some cases where the inhabitants of Serbian villages had been taken hostage. From 1 January to 31 August 1992, there had been 4,014 cases of destruction of homes in which the victims had been Serbs, 1,067 cases involving Croats and 115 cases involving members of other groups. Attacks on Serbian-owned shops, as reported by the mission of the Conference on Security and Cooperation in Europe, were against the policy of the Croatian Government. One such incident had been sparked off by the murder of a local policeman, who had been ambushed by Serbian terrorists. The Croatian Government was also conducting investigations into an incident in which members of the Croatian Democratic Union had allegedly written threatening letters to Serbian intellectuals, but it appeared that those allegations had not been substantiated. The list of acts of violence against Serbs reflected acts by individuals and not an official policy on the part of the Government. It could, however, not be assumed that a country emerging from Communist rule, having won its independence through an extremely violent armed conflict, would rapidly attain the highest degree of respect for human rights. Violations of human rights did exist in Croatia, but the Government was doing everything possible to see that the law was applied to punish those found responsible.
347. With regard to the implementation of article 14 of the Covenant, the representative explained that, at the beginning of the war against Croatia, the system of criminal justice had operated for several months under extremely difficult conditions. The police forces had been the only ones able to offer resistance to military action and, as a result, had been unable to perform their normal functions until 1 January 1992. Some 21,951 criminal offences connected with the war or armed conflict had been reported between August 1990 and July 1992. Other criminal offences classified as crimes against humanity and international law involved 1,880 persons. A total of 10,635 persons had been brought before ordinary courts, and a total of 6,829 members of the military had been brought before military courts. There had so far been 423 court judgements, 91 per cent resulting in convictions, for criminal offences in connection with the armed conflict.
348. Referring to questions raised under article 20 of the Covenant, the representative of the State party said that the extreme right-wing party and its military wing had been condemned by the Croatian Government, and the party leaders and three members of Parliament had had their immunity removed and were being investigated. The Public Prosecutor's Department had also requested the opening of an investigation into that party's activities, possibly leading to its dissolution. The political campaign for the August 1992 elections had placed strong emphasis on respect for human rights and especially the rights of minorities. The Croatian Parliament, furthermore, had recently adopted a law on the discontinuance of criminal proceedings instituted for offences committed during the armed conflict. This law, which does not apply to perpetrators of criminal acts, is one of the measures which the Croatian Parliament and Government have taken with a view to the reconciliation of the peoples of different nationalities who live in the territory of the Republic. Of the 42 reported crimes of incitement to national or religious intolerance or hatred under article 236 of the Penal Code, during the first nine months of 1992, 42 had led to the opening of a judicial investigation.
Concluding observations by individual members
349. The members of the Committee thanked the representative of the State party for replying clearly and in detail to the questions of the Committee. They noted a number of encouraging factors with regard to the guarantee of human rights, foremost among which was the declaration of succession to the various international human rights instruments. They also noted that the obligations deriving from those instruments were incorporated in the new Constitutional Law on Human Rights and Freedoms and the Rights of Ethnic and National Communities or Minorities adopted in December 1991; that an Office for Inter-Ethnic Relations had been opened; that persons charged with crimes committed during the conflict had been brought to court; that the three prisoner-of-war camps in Croatia were open to the International Committee of the Red Cross; and that the paramilitary groups and the extreme right-wing political parties and their members were being investigated.
350. The members of the Committee indicated, however, their deep concern about the preamble to the Constitution, which stated that the Republic of Croatia was defined as the national State of the Croatian nation embracing members of other nations and minorities who were its citizens. They also indicated their concern about the discrimination and harassment incurred by persons of Serbian origin residing in Croatia, particularly in respect of the lists of individuals classified according to their ethnic origin; the wearing of Fascist emblems in public by certain military personnel; the dismissal of Serbs in the press agencies; the lack of energy shown by the authorities vis-à-vis the risks of an extension in their territory of the ethnic persecution referred to in the report of the Special Rapporteur of the Commission on Human Rights; cases of enforced or involuntary disappearances; the arbitrary detention of many people, often in order to exchange them for Croatian prisoners; the existence in Croatia of unreported places of detention; and the deplorable conditions of detention in internment camps placed under the control of the Croatian army or of local Croatian military groups in Bosnia and Herzegovina, in respect of which the responsibility of the Croatian Government was engaged.
351. The representative of the Republic of Croatia thanked the members of the Committee for their observations, questions and criticisms and stressed that the dialogue which had just taken place would help to strengthen the efforts being made by the competent authorities of his country to guarantee the respect and exercise of the civil and political rights established by the Covenant.
352. In conclusion, the Chairman thanked the Croatian delegation for its extremely helpful answers and comments which had demonstrated its willingness to cooperate with the Committee. He recalled that the responsibility devolving upon States parties to the Covenant encompassed not only the acts committed in the territory of the actual State, but also those acts carried out by its agents beyond national frontiers, as well as incitement to such acts. He also expressed the hope that the declaration of succession to the Covenant would be followed by accession to the two Optional Protocols to the Covenant.
Comments of the Committee
353. At its 1205th meeting (forty-sixth session), held on 6 November 1992, the Committee adopted the following comments.
Introduction
354. Deeply concerned by recent and current events in the territory of the former Yugoslavia affecting human rights protected under the International Covenant on Civil and Political Rights; noting that all the peoples within the territory of the former Yugoslavia are entitled to the guarantees of the Covenant; and acting under article 40, paragraph 1 (b), of the Covenant; the Committee, on 7 October 1992, requested the Government of the Republic of Croatia to submit a short report on the following issues in respect of persons and events now coming under its jurisdiction:
(a) Measures taken to prevent and combat the policy of ethnic cleansing pursued, according to several reports, in the territory of certain parts of the former Yugoslavia, in relation to articles 6 and 12 of the Covenant;
(b) Measures taken to prevent arbitrary arrests and killings of persons as well as disappearances, in relation to articles 6 and 9 of the Covenant;
(c) Measures taken to prevent arbitrary executions, torture and other inhuman treatment in detention camps, in relation to articles 6, 7 and 10 of the Covenant;
(d) Measures taken to combat advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence, in relation to article 20 of the Covenant.
355. Pursuant to that request, Croatia submitted a short special report entitled "Report on measures taken to prevent criminal acts perpetrated in violation of the human rights and freedoms in the Republic of Croatia", which was considered by the Committee at its 1201st and 1202nd meetings, held on 4 November 1992. The Republic of Croatia was represented by Mr. Smiljan Simac, Assistant Minister of Foreign Affairs of the Republic of Croatia, Head of Delegation; Mr. Budislav Vukas, Faculty of Law Zagreb, Member of Delegation; Mr. Davor Krapac, Faculty of Law, Zagreb, Member of Delegation. The report was supplemented by an oral introduction by Mr. Simac, and by responses by various members of the delegation to the questions and observations of members of the Committee.
356. On 12 October 1992, the Republic of Croatia notified the Secretary-General of the United Nations that it had succeeded, as from 8 October 1991 (the date of its proclamation of independence), to various human rights treaties, including the International Covenant on Civil and Political Rights.
Positive aspects
357. Certain factors encouraging to the guaranteeing of human rights were noted. The Republic of Croatia had attained statehood after democratic parliamentary elections in 1990. The new Constitutional Law of Human Rights and Freedoms and the Rights of Ethnic and National Communities or Minorities, adopted in December 1991 and amended in April 1992, incorporated United Nations treaty obligations on human rights. An office for inter-ethnic relations had been opened, which would have branches in various districts of Croatia and a wide-reaching mandate. The Croatian delegation confirmed that, in the view of the Government, the only proper use of ethnic identity was to ensure that ethnic minorities received the guarantees to which they are entitled under article 27 of the Covenant. It was also noted that certain charges had been brought in the courts against persons who were accused of crimes against civilians, crimes against prisoners of war and the crime of genocide. The three prisoner-of-war camps in Croatia were under the control of the Ministry of Defence and open to the International Committee of the Red Cross. The Government had condemned the policies of the ultra right paramilitaries and political parties and was conducting investigations into the activities of certain members of Parliament belonging to the Croatian Right Party.
Factors and difficulties impeding the application of the Covenant
358. Since its independence, the territory of the Republic of Croatia has been subjected to large-scale military action. This had resulted in massive violations of human rights, including significant loss of life, torture, disappearances and summary executions, with entire towns destroyed and populations displaced. Because of the conflict in neighbouring Bosnia and Herzegovina, Croatia had also received very large numbers of refugees.
359. The representatives also informed the Committee that Croatia controlled only about three quarters of its territory, the remainder being under the authority of UNPROFOR. The delegation conceded that there had been periods during the hostilities in its territory when public order had broken down and there had been an inability to control ethnically-based violence against Serbs. It accepted legal responsibility for those events.
Principal subjects of concern
360. The Committee was concerned with the preamble to the Constitution, whereby the Republic of Croatia is defined as "the national state of the Croat nation and a state of members of other nations and minorities". Concern was expressed about long-standing discrimination against, and harassment of, ethnic Serbs residing within Croatia. In particular, the circulation of lists of persons grouped on the basis of their ethnic origin was to be deplored. Purges had been permitted of the public services and the police had become identified with ultra right nationalism. Members of the military were often seen in public, including in Bosnia and Herzegovina, wearing Fascist emblems. Serbs had been removed from their jobs in the press and there had been widespread arrests and disappearances. Persons were being held in deplorable conditions in places of detention in Bosnia and Herzegovina, which were under the control of the Croatian army or local Croatian military factions who received the backing of the Republic of Croatia. The international responsibility of the Republic of Croatia was engaged in relation to these events.
361. The Committee believed that there were in Croatia undesignated places of detention where persons were held, often by private groups. Many persons for whom there was no legitimate cause of detention were unlawfully held. Sometimes they were deprived of their liberty simply in order to be able to effect exchanges for Croatians held as prisoners elsewhere.
Recommendations
362. The Government of Croatia is urged to act vigorously against all manifestations of racial hatred. Public condemnation should be made of the circulation of lists of persons based on ethnicity and further appropriate action should be taken. Strong efforts should be made to identify undeclared places of detention and to ensure that only bona fide prisoners of war are held in properly notified camps operating in accordance with the Geneva Conventions of 1949 and the Covenant. Responsibility must be accepted for the acts of the military in other territories as well as in Croatia. Clear instructions should be issued to all military personnel as to their obligations under the Covenant. The foregoing had to be borne in mind in the context of support afforded, directly or indirectly, to local Croatian militia in Bosnia and Herzegovina. Those responsible for violations of human rights should be brought speedily before the courts. In that regard, the existing distinctions between military and civil jurisdictions should be reviewed so that military personnel might be tried and, if found guilty, punished under normal civil jurisdiction.
Federal Republic of Yugoslavia (Serbia and Montenegro)
363. Deeply concerned about recent events in the territory of the former Yugoslavia affecting human rights protected under the Covenant, having noted that all the peoples within the territory of the former Yugoslavia are entitled to the guarantees of the Covenant, finding that the new States within the boundaries of the former Yugoslavia succeeded to the obligations of the former Yugoslavia under the Covenant, in so far as their respective territories were concerned, and acting under article 40, paragraph 1 (b), of the Covenant, the Committee, on 7 October 1992, requested the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) to submit a brief report on certain issues in respect of persons and events now coming under its jurisdiction (see para. 36 and annex VII for the Committee's decision).
364. The report submitted by the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) pursuant to the aforementioned decision was considered by the Committee at its 1202nd meeting on 4 November 1992 (see CCPR/C/SR.1202 and Add.1). (For the composition of the delegation, see annex XI.)
365. The report was introduced by the representative of the State party, who said that both the Federal Government and a large part of public opinion in Yugoslavia were fully aware of the shortcomings in the observance and promotion of human rights. Those shortcomings were due to the fact that for almost half a century the country had been under an authoritarian regime. Various legislative amendments concerning crimes of opinion, freedom of association, freedom of the press and police powers had been adopted and a new Constitution had been promulgated. As soon as it had taken office on 15 July 1992, the present Government had set itself the task of transforming a "party-ruled State" into a State subject to the rule of law. It had formulated two important bills concerning the general amnesty for offences committed in connection with the conflict and the status of minorities.
366. Difficulties connected with the cumbersome nature of the State law-enforcement system and with the mentality of officials were impeding full observance of human rights. All social structures had been affected by the conflict ravaging the former Yugoslavia, and that had led to a resurgence of crime and general insecurity and constituted a further obstacle to observance of human rights in the Federal Republic of Yugoslavia. The most serious consequence of that conflict was its repercussions on relations between the various ethnic groups and nationalities which, until recently, had coexisted without particular problems. Another consequence of the conflict had been the influx of 500,000 Serbian refugees from Croatia and Bosnia and Herzegovina or Muslim refugees. Some of those refugees had arrived with their weapons, intent on making a new home in the Republic, even if it meant using force in order to do so, at the expense of members of non-Serbian ethnic groups whom they regarded as their enemies. The media had played a very negative role in that connection by poisoning relations between ethnic groups, stirring up national and racial hatred. Since the beginning of the "Croat war" in the summer of 1991, paramilitary groups beyond the control of any official military authority had emerged. The new Government had disbanded those groups but they were continuing to act in secret, crossing into Bosnia and Herzegovina and committing serious violations of humanitarian law in that territory.
367. The policy of ethnic cleansing had never been practised in the territory of the Federal Republic of Yugoslavia. Attempts to do so had been made, notably in Vojvodina, by certain individuals or groups with the aim of forcing non-Serbs to leave their homes; the authorities had, however, reacted after being notified by the victims. Various measures had been taken by the authorities, including greater police supervision, the arrest and prosecution of persons accused of having violated the liberty and rights of persons of another nationality or having encouraged ethnic cleansing, the trial of 145 persons for illegal possession of weapons, and the seizure of large amounts of weapons and ammunition. Those measures had led to a decrease in the number of cases of violence against Croats in Vojvodina, where no case of forcible expatriation had been recorded since September. The Croat families who had fled in the tens of thousands were being encouraged by the authorities to return to their homes. Measures had also been taken to remedy the situation in the Plevlja area, where Muslims had been attacked and threatened, investigations had been started and weapons seized.
368. No arbitrary arrests, so-called political killings or disappearances had occurred in the territory of the Federal Republic of Yugoslavia. A few cases of abuse of authority by State officials might have been committed and, in that connection, 101 complaints had been lodged, 50 per cent of them having been found to be without legal foundation. Criminal proceedings had been brought against 32 persons and 12 sentences had been pronounced.
369. There were no detention camps in the territory of the Federal Republic of Yugoslavia. Prisoners taken in the Croat war had been exchanged through the International Committee of the Red Cross and persons who had not yet been exchanged were being held in ordinary prisons that were regularly visited by the International Committee of the Red Cross. An investigation had been initiated into allegations of ill-treatment at the time when there had been detention camps for prisoners of war, and persons who had committed acts of torture or other serious violations of the Geneva Conventions would be brought to justice.
370. The implementation of the measures prescribed by law against persons who advocated national, racial or religious hatred was a very sensitive issue, and a number of newspaper articles and statements on television should accordingly be condemned. In a context where nationalism was very much in evidence, the public prosecutors were not, in the opinion of the Federal Government, sufficiently resolute in bringing charges. Regulations designed to prevent advocacy of hatred and at the same time protect freedom of expression were currently under study.
371. The members of the Committee, on the basis of various consistent reports originating, in particular, from the Special Rapporteur of the Commission on Human Rights and the reports of the Conference on Security and Cooperation in Europe, strongly deplored the extent of violations of human rights in the territories controlled by the Government. They pointed out that the scale of the military means used in Croatia, Bosnia and Herzegovina, the use of matériel of the federal army of the former Yugoslavia, the deployment of air-forces and the use of tanks and large-calibre guns against the heavily bombed towns of Croatia and Bosnia and Herzegovina did not lend credence to the Government's contention that ethnic cleansing was being carried out outside the territory of the Federal Republic of Yugoslavia and was the responsibility solely of paramilitary units beyond the control of the civil and military authorities. Ethnic cleansing was, according to the same sources, one of the objectives of the war and had in fact already been largely attained, thanks to the use of methods such as summary execution, torture and rape. The acts thus committed incurred the international responsibility of the Federal Republic of Yugoslavia.
372. The members of the Committee nevertheless asked what measures had been taken to terminate ethnic cleansing, and in particular, the long series of summary and arbitrary executions and cases of torture, rape and disappearance; whether a tribunal had been formed to try crimes against humanity; what was the extent of the amnesty envisaged for violations committed in connection with the armed conflict; whether measures had been taken to lessen the seriousness of the human rights situation in Kosovo, which was characterized by arbitrary arrests and detentions, summary executions, ill-treatment of detainees and measures intended to impede the activities of political opponents; what measures had been taken to ensure respect for the existing frontiers; and, in general, for what reason the various nationalities which had previously lived in harmony in the former Yugoslavia had suddenly manifested such hatred towards one another.
373. In his reply, the representative of the Federal Republic of Yugoslavia emphasized that, although dismayed at the events in Bosnia and Herzegovina, the federal authorities were unable directly to influence the situation and conduct investigations of, for example, members of the federal army who had remained in Bosnia after the withdrawal of military forces from that territory. The Federal Government considered that the area of Bosnia where the Serbs were in a majority was an integral part of the Republic of Bosnia and Herzegovina. It avoided all relations with the so-called Serbian Government in Bosnia and was not at the origin of the atrocities committed in Bosnian territory. The conflict itself had mushroomed from a civil war into an international conflict and, consequently the enforcement of the rules of humanitarian law and the apportionment of responsibilities posed extremely complex questions, which must be resolved in the context of the International Conference on the Former Yugoslavia.
374. The Government was firmly resolved, despite the very complex problems of succession in the existing Yugoslavia, to prosecute all persons suspected of war crimes or crimes against humanity. The general amnesty would apply only to offences connected with the conflict, such as desertions, and would not cover war crimes or crimes against humanity. Ethnic cleansing was by no means an official policy aimed at driving the inhabitants out of the areas where they lived, a policy which public opinion would strongly oppose. It was to be hoped that the case of Yugoslavia would be the first opportunity for international justice to pronounce on war crimes and crimes against humanity.
375. As the Special Rapporteur of the Commission on Human Rights had noted, there were no concentration camps or extermination camps in the territory of the Federal Republic of Yugoslavia. As to possible violations of human rights in prison camps, the competent bodies of the Federal Public Prosecutor's Office had in their possession all the information they needed in order to ascertain the facts and punish those responsible. In Kosovo, where coexistence between Albanians and Serbs inevitably led to human rights violations, certain members of the police had already been charged, but what they had done could certainly not come under the heading of mass killings or systematic torture. In Vojvodina, a census had been conducted in order to ascertain the number of young people who had left the region to evade their military obligations and who now qualified under the General Amnesty Act.
376. Referring to the origin of the current situation, he stated that under the previous regime politicians had brazenly embarked on hate campaigns, using the media for that purpose. The passions of the people were now unbridled and it was difficult to make them see reason. Paramilitary groups had organized themselves at the beginning of the civil war in the parts of the territory of the former Yugoslavia where the Serbs were in a majority and had effectively taken over responsibility for the police or the army. For more than 30 years, the Yugoslav army had kept its military arsenal in Bosnia and Herzegovina, and its personnel were mostly Serbs originating from that region or Croatia. It was therefore not surprising that the majority of those soldiers had stayed behind after the federal army had withdrawn.
377. Replying to further questions, he said that, in the new context in which frontiers had been recently established, it was difficult to establish border facilities rapidly. Demarcation lines were not always accurate and it was difficult to monitor the comings and goings of inhabitants in the mountainous region separating Montenegro from Bosnia and Herzegovina. The federal police were unable to intervene directly in areas where fighting was going on and the federal authorities were not competent to act directly to protect human rights. However, the Constitution would probably be amended after the elections of December 1993 so as to give the Federal Government a free hand in the protection of human rights.
Concluding observations by individual members
378. The members of the Committee said they were appalled by the human rights situation in the former Yugoslavia. They were unable to accept the argument of the representative of the Federal Republic of Yugoslavia, who had simply restated that no deliberate policy of ethnic cleansing had been or was being pursued in the territory of the Federal Republic of Yugoslavia and that most of the atrocities had been committed outside the territory by uncontrolled elements. They again emphasized that, in view of the means used, they were unable to endorse the argument that ordinary demobilized soldiers that were badly organized had been able to wage the conflict and pursue systematic ethnic cleansing. States parties were responsible for the observance of human rights when their representatives were involved and when their acts affected human beings even outside their national territory. There were obvious links between the Serbian forces and authorities outside the federal territory and the Federal Republic of Yugoslavia and the Federal Government was directly or indirectly responsible for the violations occurring there. The members of the Committee said they were extremely concerned about the fact that measures had not yet been taken to terminate ethnic cleansing and the serious violations of articles 6, 7, 9, 10 and 20 of the Covenant deriving therefrom outside and within the federal territory, to investigate the events which had occurred and were continuing to occur, or to punish those responsible. They also expressed their deep concern about the special situation in Kosovo, which needed to be addressed rapidly.
379. The representative of the State party stated that the Federal Government was not lacking in political will, but did not have the means to fulfil its international obligation to punish persons found to be responsible for violations of humanitarian law. It did not deny its responsibility.
380. In concluding consideration of the report submitted by the Federal Republic of Yugoslavia, the Chairman of the Committee said that the submission of the report and the presence of a delegation in the Committee were proof that the Federal Government intended to fulfil its obligations under the Covenant. He nevertheless regretted that the dialogue had not been more constructive because of the delegation's refusal to comment on human rights violations outside the federal territory. It was surprising that the Government should state that it was powerless to react to events that were taking place on its borders and refused to shoulder any responsibility for policies pursued in the name of the Serbian nation. At the domestic level, no effective investigation seemed to have been undertaken into the human rights violations that had occurred there. It was to be hoped that the Federal Government would prove its good will through real action and genuinely fulfil its responsibilities in order to put an end to a situation that was deplored throughout the world.
Comments of the Committee
381. At its 1205th meeting (forty-sixth session), held on 6 November 1992, the Committee adopted the following comments.
Introduction
382. Deeply concerned by recent and current events in the territory of the former Yugoslavia affecting human rights protected under the International Covenant on Civil and Political Rights; noting that all the peoples within the territory of the former Yugoslavia are entitled to the guarantees of the Covenant; and acting under article 40, paragraph 1 (b), of the Covenant, the Committee, on 7 October 1992, requested the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) to submit a short report on the following issues in respect of persons and events now coming under its jurisdiction:
(a) Measures taken to prevent and combat the policy of ethnic cleansing pursued, according to several reports, in the territory of certain parts of the former Yugoslavia, in relation to articles 6 and 12 of the Covenant;
(b) Measures taken to prevent arbitrary arrests and killings of persons, as well as disappearances, in relation to articles 6 and 9 of the Covenant;
(c) Measures taken to prevent arbitrary executions, torture and other inhuman treatment in detention camps, in relation to articles 6, 7 and 10 of the Covenant;
(d) Measures taken to combat advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility or violence, in relation to article 20 of the Covenant.
383. Pursuant to that request, the Federal Republic of Yugoslavia submitted a special report dated 30 October 1992, which was considered by the Committee at its 1202nd meeting, held on 4 November 1992. The Federal Republic of Yugoslavia was represented by Mr. Konstantin Obradovic, Deputy Federal Minister for Human Rights and Ethnic Minorities; Ms. Sladjana Prica, Expert, Federal Ministry of Foreign Affairs; Mr. Miroslav Milosevic, Counsellor, Permanent Mission of the Federal Republic of Yugoslavia to the United Nations Office at Geneva; and Mrs. Olga Spasic, Third Secretary, Permanent Mission of the Federal Republic of Yugoslavia to the United Nations Office at Geneva. The report was taken up and developed by the delegation in its oral statement.
384. The Committee welcomed the delegation, explaining that it regarded the submission of the report by the Government and the presence of the delegation as confirmation that the Federal Republic of Yugoslavia had succeeded, in respect of its territory, to the obligations undertaken under the International Covenant on Civil and Political Rights by the former Socialist Federal Republic of Yugoslavia.
Implementation of the Covenant by the State party
385. In its replies, the Federal Government referred exclusively to the situation in the territory of Serbia and Montenegro. It mentioned a number of instances of criminal proceedings taken against persons responsible for violations of individual freedoms (32 cases) and ethnic cleansing (5 cases). The Government affirmed that those were isolated acts and that it was not conducting any policy of ethnic cleansing. It indicated that there was no concentration camp established in its territory. It said it was dismayed by the atrocities committed in certain parts of Croatia and Bosnia and Herzegovina but declared that it could not assume responsibility for acts committed outside its territory and hence beyond its control. In regard to Kosovo, the Government did not dispute its responsibility but attributed the current state of affairs in that region to antagonism,