Il Paradigma del diritto e le modalità dell'intervento pedagogico di Renzo Remotti

5.1 Conclusioni della 68.ma Sessione del Comitato dei Diritti Umani. (HR/CT/565 31 Marzo 2000)

The Human Rights Committee this morning concluded its sixty-eighth session -– held at United Nations Headquarters from 13 to 31 March –- following consideration of reports submitted by the Republic of the Congo, United Kingdom (Jersey, Guernsey and Isle of Man), Mongolia and Guyana under article 40 of the International Covenant on Civil and Political Rights.

According to its concluding observations, the Committee was gravely concerned with the summary and extrajudicial executions, disappearances and arbitrary arrests and detentions carried out in the Republic of the Congo by the armed forces, militias and other paramilitary groups. The political desire for an amnesty for the crimes committed during the periods of civil war might lead to a form of impunity incompatible with the Covenant. Therefore, the Committee recommended that appropriate investigations be conducted into those crimes, that perpetrators be brought to justice and that adequate compensation be provided to the victims or their families.

Jersey, Guernsey and the Isle of Man were strongly urged by the Committee to ensure that all Covenant rights were given effect in domestic law. Also, human rights education should be extended to members of the police forces, the legal profession and other persons involved in the administration of justice, with a view to making it a part of their regular training, as well as incorporated at every level of general education. All three jurisdictions should also introduce legislation and other measures to prohibit discrimination based on sex, race and sexual orientation.

Unclear about the status of the Covenant in Mongolia’s domestic law, the Committee recommended that it be made clear by law that the Covenant rights shall have superior status and shall prevail over domestic law in case of any conflict. The country’s next report needed greater detailed statistics concerning the position of women, as well as on the rights of prisoners. In addition, the Government was urged to reconsider the necessity of maintaining the death penalty.

Deeply concerned about allegations of extrajudicial killings by police and widespread police brutality in Guyana, the Committee stressed that such allegations must be promptly investigated by an impartial body and that measures be taken to ensure the prosecution of offenders and the provision of remedies to victims. Also, the Government was urged to take positive measures to ensure equality of opportunity for women in all fields and to ensure that the principles of equality and non-discrimination in all areas were fully implemented in the Constitution.

5.2 Human Rights Committee - 2 - Press Release HR/CT/565 1838th Meeting (AM) 31 March 2000

During its three-week session, the Committee adopted without a vote its general comment on article 3 of the Covenant, which states that State parties undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the Covenant. In adopting General Comment 28 -- equality of rights between women and men -- the Committee replaced General Comment 4 (thirteenth session, 1981), in light of the experience it had gathered in its activities over the last 20 years.

Over a three-week period, the 18-member Committee reviewed reports from the Republic of the Congo, United Kingdom (Jersey, Guernsey and Isle of Man), Mongolia and Guyana on efforts to implement the Covenant. Under the terms of the treaty, they must submit periodic reports to the Committee. Government delegations were present to introduce documents and answer questions.

The Committee completed its first reading of the draft general comment on article 4 of the Covenant, which pertains to the scope of limitations on human rights during a state of emergency or martial law. It also considered ways in which it could contribute to the World Conference against Racism to be held in August 2001 in South Africa. In its private session, the Committee considered communications sent to it by individuals or groups complaining of human rights violations.

The Committee will meet for its sixty-ninth session in July in Geneva, Switzerland, where it will consider the initial reports of Kyrgyzstan and Kuwait, the second periodic report of Ireland, and the third and fourth reports of Australia. Its working group will meet from 3 to 7 July, and its plenary will be held from 10 to 28 July.

Committee’s Concluding Observations

Republic of Congo

In its concluding observations on the Congo, the Committee was gravely concerned at the information provided on summary and extrajudicial executions, disappearances and arbitrary arrests and detentions carried out in the past seven years, not only by the armed forces, but also by the militias and other paramilitary groups. The Committee recommended that the Government conduct all appropriate inquiries and investigations into those crimes and take the necessary measures for bringing the perpetrators to justice and effectively protecting the right to life and to security of person.

The political desire for an amnesty for the crimes committed during the periods of civil war might lead to a form of impunity incompatible with the Covenant, the Committee observed. Amnesty laws were generally incompatible with the duty of States to investigate such acts, to guarantee freedom from such acts within their jurisdiction and to ensure that they did not occur in the future. It was recommended that the Government ensure that those most serious human rights violations were investigated and that adequate compensation was provided to the victims or their families.

The Congo should also take the appropriate steps to ensure the independence of the judiciary, recommended the Committee. Particular attention should be given to the training of judges and to the system governing their recruitment and discipline, in order to free them from political, financial and other pressures, ensure their security of tenure and enable them to render justice promptly and impartially. Noting the precarious conditions of the prisoners held outside the central prison of Brazzaville, the Committee recommended that the Government guarantee minimum conditions for all prisoners and, among other things, provide them with necessary medical care.

The Committee was deeply concerned at the tendency of political groups and associations to resort to violent means of expression and to set up paramilitary structures that encourage ethnic hatred and incite discrimination and hostility. It called on the Government to take effective steps to combat hatred, violence and discrimination and to impose on all actors and political forces rules of conduct and of behavior that were compatible with human rights, democracy and the rule of law. It also called on the Republic of the Congo to organize general elections as soon as possible to enable its citizens to exercise their rights under the Covenant and, thus, to participate in the process of reconstruction of the country.

United Kingdom (Jersey, Guernsey and Isle of Man)

With regard to the United Kingdom Crown dependencies of Jersey, Guernsey and the Isle of Man, the Committee strongly urged the Government to ensure that all Covenant rights were given effect in domestic law. It recommended that human rights education be extended to members of the police forces, the legal profession and other persons involved in the administration of justice, with a view to making it a part of their regular training. Human rights education should also be incorporated at every level of general education. It was also recommended that the authorities in Guernsey and the Isle of Man give due consideration to establishing independent bodies to review administrative decisions.

The Committee noted that corporal punishment was not permitted in schools on the Isle of Man as a matter of policy, and recommended legislation to outlaw corporal punishment. In addition, it noted that steps were being taken in the United Kingdom to ensure that its anti-terrorism laws complied with the Covenant, and urged the dependencies to take corresponding measures.

It was recommended by the Committee that measures be taken to remove and prohibit any discrimination on grounds of sexual orientation. Noting with concern that the archaic and discriminatory provisions of the Criminal Code which made blasphemy a misdemeanor were still in force on the Isle of Man, the Committee recommended that those be repealed. It was also recommended that all three jurisdictions introduce legislation and other effective measures to prohibit discrimination between women and men.

In addition, the Committee recommended that the authorities complete the current process of enacting legislation outlawing all racial discrimination. The authorities should also promulgate legislation which prohibits any discrimination and guarantees to all person equal and effective protection against discrimination on any ground, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Mongolia

In its concluding observations on Mongolia, the Committee noted that the status of the Covenant in domestic law was not clear, and that no example was adduced of reliance on any article of the Covenant in any court proceedings to date. The Committee recommended that it be made clear by law that the Covenant rights shall have superior status and shall prevail over domestic law in case of any conflict.

Also, the Committee recommended that the country’s next report provide more detailed statistics concerning the position of women in areas such as participation in public life and private employment. It should also include details on the "National Program on Improving the Status of Mongolian Women" and on other actions taken to combat violations of human rights by administrative, medical, educational and legal measures. Prosecution for violations, where they constituted offenses, should be sought and civil remedies properly enforced. The next report should also include detailed information on any threats to the independence and impartiality of the judiciary, including those that might result from low remuneration.

The Committee recommended that steps be taken to improve prison conditions to ensure that imprisonment did not damage prisoners’ health and to introduce alternative forms of punishment other than imprisonment. The next report should indicate by what means prisoners might make complaints about their treatment and the effectiveness of the only existing remedy, namely, by way of recourse to the courts. The Government was urged to reconsider the necessity of maintaining the death penalty.

Concerned about the problems confronting the population of remote regions, the Committee recommended that the Government continue to ensure that persons throughout the rural areas have access to education, and to medical treatment and other public facilities that were available to those who lived in urban areas. It should also ensure respect for the rights of all minority groups in Mongolia in accordance with the Covenant.

Guyana

In its concluding observations on Guyana, the Committee expressed concern that not all the Covenant rights had been included in the current Constitution of the country and, therefore, could not be enforced directly. No information was provided on how the rights enumerated in the Constitution were given effect and how their violation was remedied. While noting that a constitutional reform process was near completion, the Committee regretted that specific information was not provided as to how enjoyment of Covenant rights would be ensured in the new Constitution. The Government was encouraged to consider the abolition of the death penalty and to take measures to ensure strict compliance with procedural safeguards in all criminal cases.

The Committee was deeply concerned about allegations of extrajudicial killings by the police and widespread police brutality in Guyana. It stressed that such allegations be promptly investigated by an impartial body and measures be taken to ensure the prosecution of offenders and the provision of remedies to victims. Concerned that corporal punishment was still resorted to, the Committee urged Guyana to take legal and other measures to eliminate that practice. The State party was further urged to take positive measures to ensure equality of opportunity for women in all fields and to ensure that the principles of equality and non-discrimination in all areas were fully implemented in the Constitution.

Concerned that the Domestic Violence Act of 1996 appeared to have been applied in very few cases, the Committee stated that police and other law enforcement personnel should be trained to understand the importance of ensuring that women who were victims of violence were accorded equal protection, and that preventive and punitive measures were enforced. Guyana was advised to review its laws on arrest and detention and take effective legal and other measures to reduce the period of pre-trial detention and to ensure full compliance with the related Covenant articles. It should also take immediate steps to ensure that children were not held in detention with adults and that young children were not held at all.

Expressing deep concern over dire prison conditions, the Committee reminded Guyana of its obligations under article 10 to ensure that all persons deprived of their liberty should be treated with humanity and with respect for the inherent dignity of the human person. Also, Guyana should remove restrictions on freedom of expression and encourage recruitment of members of all ethnic communities to the police force.

The Committee regretted the delay in amending the Amerindian Act and was concerned that members of indigenous Amerindian minority did not enjoy fully the right to equality before the law. It called on the Government to ensure that there were effective measures of protection to enable members of indigenous Amerindian communities to participate in decisions that affected them and to enforce their rights under the Covenant.

General Comment on Article 3

General Comment No 28 on article 3 of the Covenant replaced General Comment 4, which was adopted by the Committee at its thirteenth session in 1981. The current revision seeks to take account of the important impact of article 3 on the enjoyment by women of the human rights protected under the Covenant.

According to article 3, all human beings should enjoy the rights provided for in the Covenant on an equal basis and in their totality. The full effect of that provision is impaired whenever a person is denied the full and equal enjoyment of any right. Consequently, States should ensure that both men and women equally enjoy the rights provided for in the instrument.

The Comment emphasizes the obligation of ensuring to all individuals the rights recognized in the Covenant, and requires that States parties take all the necessary steps to enable every person to enjoy those rights. The State party must not only adopt measures of protection, but also positive measures in all areas so as to achieve the effective and equal empowerment of women.

The State party, continues the Comment, must also provide information regarding the actual role of women in society so that the Committee may ascertain: what measures, in addition to legislative provisions, have been or should be taken to give effect to these obligations; what progress has been made; what difficulties are encountered; and what steps are being taken to overcome them.

States parties should also ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s rights to equality before the law and to equal enjoyment of all Covenant rights. States parties should, therefore, furnish appropriate information on those attitudes which jeopardize or may jeopardize compliance with article 3, and indicate what measures they have taken or intend to take to overcome such factors.

To enable the Committee to obtain a complete picture of the situation in each State party with regard to the implementation of Covenant rights, the general comment also identifies some of the factors affecting the equal enjoyment by women of those rights and spells out the type of information required regarding those rights. Some of those factors include: state of emergency; internal or armed conflicts; State, group or individual actions which can destroy any of the rights provided for in article 3.

General Comment on Article 4

The Committee began its review of a draft general comment on article 4 of the Covenant which will replace its General Comment 5 adopted at its thirteenth session (1981). Article 4 is of paramount importance for the protection of human rights under the instrument. On the one hand, it allows for a State party unilaterally to derogate from a part of its obligations under the Covenant. On the other hand, article 4 subjects both this very measure of derogation, as well as its material consequences, to a specific regime of safeguards.

According to article 4, in times of public emergency threatening the life of a nation, States parties to the Covenant may take measures derogating from their obligations under the instrument to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. Under the provisions of article 4, however, there cannot be any derogation from articles 6 (right to life), 7 (prohibition of torture and inhuman cruel treatment), 8 (slavery, servitude and forced labor), 11 (prohibition of detention for non-performance of a contractual obligation), 15 (prohibition of retroactive criminal laws), 16 (recognition of legal personality) and 18 (freedom of religion and belief).

In its General Comment 5, the Committee expressed its opinion on some issues related to article 4, in particular, the requirement of international notification of any derogation from the Covenant provisions and of the nature and extent of derogation in relation to each right. On that occasion, the Committee referred to the fact no derogation is allowed from certain rights, even in times of public emergency threatening the life of the nation. Article 4 and the institution of derogation give rise to several other important issues of interpretation. The present draft general comment is limited to one of them: the question of what rights may be derogated from when a state of emergency has been lawfully proclaimed.

Background on Covenant

The International Covenant on Civil and Political Rights, its corresponding Optional Protocol, and the International Covenant on Economic, Social and Cultural Rights were adopted by the General Assembly on 16 December 1966 and opened for signature. They came into force on 23 March 1976.

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

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

The following 144 States have ratified or acceded to the Covenant: Afghanistan, Albania, Angola, Algeria, Argentina, Armenia, Australia, Austria, Azerbaijan, Barbados, Belarus, Belgium, Belize, Benin, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic People's Republic of Korea, Democratic Republic of the Congo, Denmark, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Finland, France, Gabon, Gambia, Georgia, Germany, Greece, Grenada, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, India, Iran, Iraq, Ireland, Israel, Italy, Jamaica, Japan and Jordan.

Also Kenya, Kuwait, Kyrgyzstan, Latvia, Lebanon, Lesotho, Libya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Mali, Malta, Mauritius, Mexico, Monaco, Mongolia, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Saint Vincent and the Grenadines, San Marino, Senegal, Seychelles, Sierra Leone, Slovakia, Slovenia, Somalia, South Africa, Spain, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Syria, Tajikistan, Thailand, The former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia, Turkmenistan, Uganda, Ukraine, United Kingdom, United Republic of Tanzania, United States, Uruguay, Uzbekistan, Venezuela, Viet Nam, Yemen, Yugoslavia, Zambia and Zimbabwe.

Liberia and Sao Tome and Principe are also signatories of the Covenant.

First Optional Protocol to Covenant

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

The following 95 States are parties to the Optional Protocol: Algeria, Angola, Argentina, Armenia, Australia, Austria, Barbados, Belarus, Belgium, Bolivia, Benin, Bosnia and Herzegovina, Bulgaria, Burkina Faso, Cameroon, Canada, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Estonia, Finland, France, Gambia, Georgia, Germany, Greece and Guinea.

Also Guyana, Hungary, Iceland, Ireland, Italy, Kyrgyzstan, Latvia, Libya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malta, Mauritius, Mongolia, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Saint Vincent and the Grenadines, San Marino, Senegal, Seychelles, Sierra Leone, Slovakia, Slovenia, Somalia, Spain, Sri Lanka, Suriname, Sweden, Tajikistan, The Former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Turkmenistan, Uganda, Ukraine, Uruguay, Uzbekistan, Venezuela and Zambia.

Second Optional Protocol to Covenant

The Second Optional Protocol to the Covenant, which aims at the abolition of the death penalty, was adopted by the General Assembly on 15 December 1989 and entered into force on 11 July 1991.

The following 42 States have ratified or acceded to the Second Optional Protocol: Australia, Austria, Azerbaijan, Belgium, Bulgaria, Colombia, Costa Rica, Croatia, Cyprus, Denmark, Ecuador, Finland, Georgia, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Norway, Panama, Portugal, Romania, Seychelles, Slovenia, Spain, Sweden, Switzerland, The Former Yugoslav Republic of Macedonia, Turkmenistan, United Kingdom, Uruguay and Venezuela.

Honduras and Nicaragua are also signatories of the Second Optional Protocol.

The Committee

The Human Rights Committee was established to monitor the implementation of the Covenant and its related Protocols on the territory of the States parties. Its 18 members -– independent experts elected by States parties -– are persons of high moral character and recognized competence in the field of human rights and serve for a period of four years. The Committee meets three times a year for three-week sessions, which are normally held in March at Headquarters in New York, and in July and November at the United Nations Office in Geneva, Switzerland.

Membership of Committee

The Committee's 18 expert members are: Abdelfattah Amor, of Tunisia; Nisuke Ando, of Japan; Prafullachandra Natwarlal Bhagwati, of India; Louis Henkin, of the United States; Christine Chanet, of France; Lord Colville, of the United Kingdom; Elizabeth Evatt, of Australia; Pilar Gaitan de Pombo, of Colombia; Eckart Klein, of Germany; David Kretzmer, of Israel; Rajsoomer Lallah, of Mauritius; Cecilia Medina Quiroga, of Chile; Fausto Pocar, of Italy; Martin Scheinin, of Finland; Hipolito Solari Yrigoyen, of Argentina; Roman Wieruszewski, of Poland; Maxwell Yalden, of Canada; and Abdallah Zahkia, of Lebanon.