IV. CONCLUDING OBSERVATIONS, CONTINUED


CERD

 

•          Costa Rica, CERD, A/57/18 (2002) 21 at para. 80.

 

80. While commending the efficiency and credibility of the Costa Rican judicial system, the Committee expresses concern at information concerning the lack of equal access to the courts, particularly by minority and ethnic groups. The Committee encourages the State party to continue to make efforts to ensure de facto equal access to the courts to all persons, including members of minority and ethnic groups.


 

•          Lithuania, CERD, A/57/18 (2002) 35 at para. 175.

 

175. The Committee expresses concern in relation to information regarding the discriminatory treatment of Afghan asylum-seekers, and the disregard of basic procedural guarantees. Having taken into account the assurances given by the delegation concerning legislative provisions in this regard, the Committee nevertheless recommends that the State party ensure equal treatment for all asylum seekers, including Afghan nationals, in refugee determination proceedings...


 

•          Republic of Moldova, CERD, A/57/18 (2002) 41 at para. 223.

 

223. The Committee notes reports according to which, after the tragic events of 11 September 2001 in the United States, a parliamentary inquiry was conducted into the alleged existence of terrorists among students of Arab origin at the International Independent University of Moldova. The State party should ensure that actions taken should follow due process of law and that they avoid any suspicion of racial profiling.


 

•          Switzerland, CERD, A/57/18 (2002) 46 at para. 251.

 

251. The Committee is concerned at expressions of xenophobic and racist attitudes in naturalization procedures, particularly those subject to popular vote. It is also concerned that according to legislation still in force decisions taken in accordance with such procedures are not subject to legal review. The Committee is of the view that the right to appeal against decisions, in particular arbitrary or discriminatory ones, in matters relating to naturalization has to be made an integral part of the policy on naturalization, currently in the process of being amended...

 

 

•          Côte d’Ivoire, CERD, A/58/18 (2003) 19 at para. 36.

 

36. The Committee recommends that the State party continue its efforts to adopt legislation or regulations which define the respective spheres of competence of the National Human Rights Commission and the Ombudsman’s Office, spell out the procedure for bringing cases before them and determine whether their decisions are binding. More specifically, the Committee invites the State party to strengthen the guarantees of independence of these bodies so that their activities will be effective and credible, particularly for the purposes of mediation. To this end, the State party should take the appropriate measures to inform the public of the remedies available to the victims of acts of discrimination or xenophobia.


 

•          Czech Republic, CERD, A/58/18 (2003) 65 at para. 387.

 

387. The Committee is encouraged by the preparation of the new Act on Legal Aid, which will facilitate access to justice of victims of discrimination. However, it is concerned at continued reports that judges in criminal proceedings are reluctant to issue findings that crimes are racially motivated. The Committee also regrets the lack of information on specific cases of victims of discrimination having obtained adequate reparation.

 

The Committee encourages the State party to establish promptly a legal aid system for alleged victims of racism...


 

•          Bahamas, CERD, A/59/18 (2004) 10 at para. 34.

 

34. The Committee notes with concern that people entering the country without proper papers are automatically detained without such detention being subjected to judicial review. It takes note of the delegation’s statement that such detention does not generally last longer than a few days but is disturbed at reports emphasizing that such detention sometimes extends to a year and more, depending on migrants’ nationalities.

 

The Committee emphasizes that detention should be a last resort and invites the State party to adopt alternatives to detention for undocumented migrants and asylum-seekers. It recommends the institution of a right of appeal against orders to detain people entering the country without proper papers; such individuals should be duly informed of their rights and maximum duration of detention should be strictly defined.





 

•          Sweden, CERD, A/59/18 (2004) 41 at para. 225.

 

225. The Committee takes note of the Special Control of Foreigners Act, which allows the Government to expel a foreigner if this is deemed necessary to the security of Sweden or if there are reasons to suspect that he or she will commit or participate in crimes involving violence, threats or coercion for political purposes, without the possibility of appealing against such decisions.

 

While acknowledging the State party’s national security concerns, the Committee reminds the State party of the need to balance those concerns with its human rights obligations. In this regard, it draws the State party’s attention to the Committee’s statement on terrorism and human rights of 8 March 2002 in which it underlines the obligation of States to “ensure that measures taken in the struggle against terrorism do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin”. The Committee invites the State party to reconsider the Act to the extent that it provides for the possibility of expulsion without a right of appeal...


 

•          Portugal, CERD, A/59/18 (2004) 66 at para. 372.

 

372. The Committee is concerned about the non-suspensive effect of appeal in the admissibility phase of the asylum procedure, which may result in creating an irreversible situation, even if the decision of the administrative authorities were to be overturned on appeal.

 

The Committee urges the State party to guarantee respect for the legal safeguards for asylum-seekers and to ensure that its asylum law and procedures conform to its international obligations in this field.


 

•          Australia, CERD, A/60/18 (2005) 13 at para. 35.

 

35. The Committee notes with concern that it has proved difficult for complainants, under the Racial Discrimination Act, to establish racial discrimination in the absence of direct evidence, and that no cases of racial discrimination, as distinct from racial hatred, have been successfully litigated in the Federal courts since 2001 (arts. 4 and 6).

 

The Committee, having taken note of the explanations provided by the delegation, invites the State party to envisage regulating the burden of proof in civil proceedings involving racial discrimination so that once an alleged victim has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for differential treatment.


 

•          France, CERD, A/60/18 (2005) 26 at paras. 109 and 116.

 

109. The Committee remains concerned at the fact that only French may be used in applications for asylum.

 

In order to allow asylum-seekers to exercise their rights fully, the Committee invites the State party to lay down that asylum-seekers may be assisted by translators/interpreters whenever necessary, and/or to agree that applications for asylum may be written in the most common foreign languages.

...

116. The Committee is concerned that for some local population groups in its overseas communities, the fact that they do not have a full command of French constitutes an obstacle to their enjoyment of their rights, particularly the right to access to justice.

 

In order to enable all those under the jurisdiction of the State party in its overseas communities to exercise their rights fully, the Committee recommends to the State party that it should take all appropriate steps to ensure that local population groups in overseas communities who do not have a command of French benefit from the services of translators/interpreters, especially in their contacts with the system of justice.


 

•          Ireland, CERD, A/60/18 (2005) 30 at para. 148.

 

148. The Committee remains concerned that a fairly short time limit has been introduced in respect of the judicial review of administrative decisions on immigration issues (art. 6).

 

The Committee hopes that all issues pertaining to the appeal procedure will be adequately resolved within the framework of the proposed Immigration and Residence Bill.


 

•          Iceland, CERD, A/60/18 (2005) 51 at paras. 269 and 270.

 

269. The Committee is concerned at reported cases where access to public places such as bars, discotheques, etc. has been denied on racist grounds, and notes the absence of court judgements under article 180 of the General Penal Code prohibiting such discriminatory acts (art. 5 (f)).

 

The Committee recalls the right of all individuals to access public places without discrimination and recommends that the State party regulate the burden of proof in civil proceedings involving denial of access to public places based on race, colour, descent, and national or ethnic origin so that once an individual has established a prima facie case that he or she has been a victim of such denial, it shall be for the respondent to provide evidence of an objective and reasonable justification for the differential treatment.

 

270. The Committee notes with concern that applicants whose asylum applications have been rejected or who are being expelled by the Directorate of Immigration can only appeal that decision to the Minister of Justice as the supervisory authority, whose decision is subject only to a limited court review on procedure rather than substance (art. 6).

 

The Committee recommends that the State party consider introducing a full review by an independent judicial body of decisions of the Directorate of Immigration and/or the Minister of Justice concerning the rejection of asylum applications or expulsion of asylum-seekers.


 

•          United Republic of Tanzania, CERD, A/60/18 (2005) 67 at para. 354.

 

354. While noting that a reform of the legal sector has been undertaken and that the issue of access to justice is being considered, the Committee remains concerned about the difficulties of access to justice, especially for the poor and members of minority groups (arts. 5 and 6).

 

The Committee recommends that the State party take the necessary measures to establish mechanisms to improve the capacity and efficiency of the judicial system, so as to ensure access to justice to all without discrimination, and to establish mechanisms to provide legal aid to all members of vulnerable groups.


 

•          Zambia, CERD, A/60/18 (2005) 75 at para. 406.

 

406. The Committee notes that complaints of racial discrimination have failed before institutions such as the Zambian Human Rights Commission and the Industrial Relations Court, because of the impossibility of proving racial discrimination (art. 6).

 

The Committee recommends that complaints of racial discrimination be fully dealt with, including when they are coupled with complaints of violation of other rights, such as labour rights. It also recommends that full attention be paid to the possible existence of indirect discrimination, which is prohibited under the Convention. Further, it encourages the State party to envisage regulating the burden of proof in civil proceedings involving racial discrimination so that once a person has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for the differential treatment.



ICCPR

 

•          Ukraine, ICCPR, A/57/40 vol. I (2002) 32 at para. 74(8).

 

(8) The Committee is concerned that in the case of a clash between the Covenant rights and domestic laws the latter might prevail. Neither through examination of the report of the State party nor during the discussion with the delegation could the Committee obtain a clear understanding of how potential conflicts between Covenant rights and domestic laws are resolved.

 

The State party must ensure the effective implementation of all Covenant rights, in accordance with article 2 of the Covenant and including through independent and impartial courts of law operating in compliance with article 14.


 

•          United Kingdom of Great Britain and Northern Ireland, ICCPR, A/57/40 vol. I (2002) 36 at paras. 75(17), 75(18) and 75(20).

 

(17) Although the Committee appreciates the recent prohibition on drawing negative inferences from a suspect's silence while his or her lawyer is absent, the Committee remains troubled by the principle that juries may draw negative inferences from the silence of accused persons.

 

The State party should reconsider, with a view to repealing it, this aspect of criminal procedure, in order to ensure compliance with the rights guaranteed under article 14 of the Covenant.

 

(18) The Committee remains concerned that, despite improvements in the security situation in Northern Ireland, some elements of criminal procedure continue to differ between Northern Ireland and the remainder of the State party's jurisdiction. In particular, the Committee is troubled that, under the so-called "Diplock court" system in Northern Ireland, persons charged with certain "scheduled offences" are subject to a different regime of criminal procedure, including the absence of a jury. That modified procedure applies unless the Attorney-General certifies, without having to justify or explain, that the offence is not to be treated as a scheduled offence. The Committee recalls its interpretation of the Covenant as requiring that objective and reasonable grounds be provided by the appropriate prosecution authorities to justify the application of different criminal procedure in particular cases.

 

The State party should carefully monitor, on an ongoing basis, whether the exigencies of the specific situation in Northern Ireland continue to justify any such distinctions. In particular, it should ensure that, in each case where a person is subjected to the "Diplock" jurisdiction, objective and reasonable grounds are provided and that this requirement is incorporated in the relevant legislation (including the Northern Ireland (Emergency Provisions) Act 1996).

...

(20) The Committee is concerned that provisions of the Criminal Procedure and Investigations Act 1996 enable prosecutors to seek a non-reviewable decision by a court to the effect that sensitive evidentiary material, which would otherwise be disclosed to a defendant, is withheld on public interest/immunity grounds. The Committee considers that the State party has failed to demonstrate the necessity of these arrangements.

 

The State party should review these provisions in the light of the Committee's remarks and previous concluding observations in respect of article 14, in order to ensure that the guarantees of article 14 are fully respected.


 

•          United Kingdom of Great Britain and Northern Ireland (Overseas Territories), ICCPR, A/57/40 vol. I (2002) 36 at para. 75(28).

 

(28) The Committee is concerned that the categories of persons for whose deportation Cayman law provides, in particular "undesirable" or "destitute" persons, are defined in terms that are vague and unclear, and that deportation of such persons may violate articles 17 and 23 of the Covenant. Moreover, the Committee considers that, since deportation occurs pursuant to an order issued by the Governor after having considered a magistrate's report, there is insufficient review of the appropriateness of such a measure in terms of article 13.

 

The State party should review its law on deportation to provide clear criteria, and effective and impartial review of any deportation decision, in order to ensure compliance with articles 17, 23 and 26.


 

•          Switzerland, ICCPR, A/57/40 vol. I (2002) 44 at para. 76(12).

 

(12) The Committee is concerned that many of the guarantees in articles 9 and 14 are not contained in the criminal procedure codes of some cantons and that a unified criminal procedure code has not yet been adopted. Consequently, rights under articles 9 and 14 are not always respected. The Committee is particularly concerned at persistent reports that detainees have been denied the right to contact a lawyer upon arrest or to inform a close relative of their detention.

 

The State party should take measures to ensure effective implementation of all rights under articles 9 and 14 of the Covenant in all parts of its territory.


 

•          Georgia, ICCPR, A/57/40 vol. I (2002) 53 at para. 78(9).

 

(9) The Committee is concerned at the length of the period (up to 72 hours) that persons can be kept in police detention before they are informed of the charges against them. It is also concerned at the fact that, until the trial takes place, the accused cannot make a complaint before a judge regarding abuse or ill-treatment during the period of detention.

 

The State party should ensure that detainees are informed promptly of the charges against them, in accordance with article 9 of the Covenant. Detainees should be given the opportunity to make a complaint before a judge regarding any ill-treatment during the investigation phase, as required by articles 7 and 14 of the Covenant.



 

•          Viet Nam, ICCPR, A/57/40 vol. I (2002) 67 at para. 82(9).

 

(9) The Committee is concerned that the judicial system remains weak owing to the scarcity of qualified, professionally trained lawyers, lack of resources for the judiciary and its susceptibility to political pressure. The Committee is also concerned that the Supreme People's Court is not independent of government influence. It is further concerned that the judiciary seeks the opinion of the National Assembly's Standing Committee in regard to the interpretation of laws and that the Standing Committee is responsible for setting criteria and instructions which are binding for the judiciary.

 

In order to implement article 14 of the Covenant, the State party should take effective measures to strengthen the judiciary and to guarantee its independence, and ensure that all allegations of undue pressure on the judiciary are dealt with promptly.


 

•          Egypt, ICCPR, A/58/40 vol. I (2002) 31 at paras. 77(16) and 77(17).

 

(16) While understanding the security requirements associated with efforts to combat terrorism, the Committee voices concern at their effects on the human rights situation in Egypt, particularly in relation to articles 6, 7, 9 and 14 of the Covenant.

...

(b) The Committee notes with alarm that military courts and State security courts have jurisdiction to try civilians accused of terrorism although there are no guarantees of those courts' independence and their decisions are not subject to appeal before a higher court (article 14 of the Covenant).

...

The State party must ensure that steps taken in the campaign against terrorism are fully in accordance with the Covenant. It should ensure that legitimate action against terrorism does not become a source of violations of the Covenant.

 

(17) The Committee is concerned about infringements of the right to freedom of religion or belief.

...

(b) The Committee is also concerned at the pressures applied to the judiciary by extremists claiming to represent Islam, who have even succeeded, in some cases, in imposing on courts their own interpretation of the religion (articles 14, 18 and 19 of the Covenant).

 

The State party must...reinforce its legislation, in particular Act No. 3 of 1996, to make it consistent with articles 14, 18 and 19 of the Covenant.



 

•          Togo, ICCPR, A/58/40 vol. I (2002) 36 at para. 78(14).

 

(14) The Committee notes with concern that, on the one hand, the provisions of the Code of Criminal Procedure relating to police custody contain no reference to notifying detainees of their rights, the presence of a lawyer or the right of the detainee to inform a member of his family of his arrest. On the other hand, a medical examination of the detainee is possible only at his request or at the request of a member of his family, and with the consent of the procurator’s office. Moreover, the time limit of 48 hours for police custody is allegedly rarely observed in practice, and some persons have reportedly been detained for years without being charged.

 

...The State party should reform the provisions of its Code of Criminal Procedure that deal with police custody with a view to ensuring the effective prevention of violations of the physical and psychological integrity of persons held in police custody, and protecting their right to a defence, pursuant to articles 7, 9 and 14 of the Covenant. It should also ensure that justice is administered in a timely fashion, in accordance with article 14.





 

•          Estonia, ICCPR, A/58/40 vol. I (2003) 41 at para. 79(13).

 

(13) While welcoming the precise information provided by the delegation on the procedure related to the determination of refugee status, the Committee remains concerned that the application of the principle of “safe country of origin” may deny the individual assessment of a refugee claim when the applicant is considered to come from a “safe” country.

 

The State party is reminded that, in order to afford effective protection under articles 6 and 7 of the Covenant, applications for refugee status should always be assessed on an individual basis and that a decision declaring an application inadmissible should not have restrictive procedural effects such as the denial of suspensive effect of appeal (articles 6, 7 and 13 of the Covenant).


 

•          Slovakia, ICCPR, A/58/40 vol. I (2003) 52 at para. 82(14).

 

(14) The Committee reiterates its concern, expressed in its previous concluding observations, at the fact that civilians may be tried by military courts, albeit in fewer situations than earlier (art. 14).

 

The State party should continue to revise its laws to the effect of excluding civilians from the jurisdiction of military courts.


 

•          Portugal, ICCPR, A/58/40 vol. I (2003) 56 at para. 83(18).

 

(18) The Committee is concerned that lawyers and medical doctors may be required to give evidence, despite their duty of confidentiality, in cases which are described in very broad terms by the Code of Criminal Procedure (art. 17).

 

The State party should amend its legislation so that it specifies the precise circumstances in which limitations on the professional privilege of lawyers and medical doctors are imposed.


 

•          El Salvador, ICCPR, A/58/40 vol. I (2003) 61 at para. 84(10).

 

(10) While it appreciates the investigations mounted into lawyers, judges and prosecutors with fictitious qualifications so as to ensure that, as required by article 2, paragraph 3, of the Covenant, those involved in the administration of justice are professionally competent, the Committee notes that, despite the large number of cases investigated, there have been only two dismissals.

 

The State party should pursue the investigations in order to ensure that the judicial system is staffed by people of the appropriate professional level.


 

•          Israel, ICCPR, A/58/40 vol. I (2003) 64 at para. 85(14).

 

(14) The Committee is concerned about the vagueness of definitions in Israeli counter-terrorism legislation and regulations which, although their application is subject to judicial review, appear to run counter to the principle of legality in several aspects owing to the ambiguous wording of the provisions and the use of several evidentiary presumptions to the detriment of the defendant. This has adverse consequences for the rights protected under article 15 of the Covenant, which is non-derogable under article 4, paragraph 2, of the Covenant.

 

The State party should ensure that measures designed to counter acts of terrorism, whether adopted in connection with Security Council resolution 1373 (2001) or in the context of the ongoing armed conflict, are in full conformity with the Covenant.


 

•          Russian Federation, ICCPR, A/59/40 vol. I (2003) 20 at paras. 64(8) and 64(21).

 

(8) The Committee is concerned that the State party has not implemented the Committee's Views under the Optional Protocol in the cases of Gridin v. Russian Federation and Lantsov v. Russian Federation. While noting the delegation's explanation that the decision not to follow the Views of the Committee regarding the release of Mr Gridin was based on a careful study by the Supreme Court and Procurator's Office, the Committee expresses its concern that a failure to give effect to its Views would call into question the State party's commitment to the Optional Protocol.

 

The Committee urges the State party to review its position in relation to Views adopted by the Committee under the Optional Protocol and to implement the Views, in order to comply with article 2, paragraph 3, of the Covenant which guarantees a right to an effective remedy when there has been a violation of the Covenant.

...

(21) The Committee is concerned that journalists, researchers and environmental activists have been tried and convicted on treason charges, essentially for having disseminated information of legitimate public interest, and that in some cases where the charges were not proven, the courts have referred the matter back to prosecutors instead of dismissing the charges.

 

The State party should ensure that no one is subjected to criminal charges or conviction for carrying out legitimate journalistic or investigative scientific work, within the terms covered by article 19 of the Covenant.


 

•          Latvia, ICCPR, A/59/40 vol. I (2003) 25 at para. 65(9).

 

(9) While welcoming the entry into force of the new asylum law, the Committee remains concerned at the short time limits, in particular for the submission of an appeal under the accelerated asylum procedure, which raises concerns regarding the availability of an effective remedy in cases of refoulement (arts. 6, 7 and 2, para. 3).

 

The State party should ensure that the time limits under the accelerated asylum procedure are extended, in particular for the submission of an appeal.


 

•          Colombia, ICCPR, A/59/40 vol. I (2004) 35 at paras. 67(10) and 67(16).

 

(10) The Committee expresses its concern with regard to draft legislative act No. 10 of 2002, which seeks to amend certain provisions of the Constitution dealing with the administration of justice. This draft legislation proposes modifications to amparo proceedings, rendering them inadmissible for reviews of certain judicial decisions...

 

The State party should take into consideration the fact that some of the provisions of this draft legislation would be in clear contradiction with provisions of the Covenant, in particular articles 2, 4 and 14. If it were to be adopted, such fundamental remedies as amparo proceedings could be jeopardized.

...

(16) The Committee is concerned that military tribunals are continuing to investigate crimes committed by military personnel involving torture, enforced disappearances and summary and arbitrary executions, despite their previous ineffectiveness in solving such crimes and the decision of the Constitutional Court assigning jurisdiction over such crimes to the ordinary courts (articles 6, 7 and 9, together with article 2).

 

The State party should ensure that the ordinary courts investigate and adjudicate such crimes and that all elements of the armed forces cooperate in the proceedings in question. Individuals under investigation for such crimes should be suspended from active duty during the investigation and trial.





 

•          Suriname, ICCPR, A/59/40 vol. I (2004) 43 at para. 69(16).

 

(16) The Committee regrets that the State party has not provided information, as requested, about the role of military courts, their jurisdiction and composition, and how the State party ensures their independence and impartiality.

 

The State party should ensure that military courts, if operating, function in accordance with the rights set out in the Covenant, in particular in accordance with the rights laid down in article 14...


 

•          Uganda, ICCPR, A/59/40 vol. I (2004) 47 at paras. 70(8), 70(13) and 70(21).

 

(8) The Committee notes the adoption of the Anti-Terrorism Act of June 2002, pursuant to Security Council resolution 1373 (2001). It is concerned that section 10 of the Act criminalizes a “terrorist organization” without any reference to a particular criminal offence committed by or through such an organization. It is also concerned that section 11 of the Act does not establish objective criteria for determining membership in a “terrorist organization” (arts. 2 and 15).

 

The State party should review the Anti-Terrorist Act with a view to ensuring that the provisions set out in sections 10 and 11 are in full conformity with the Covenant.

...

(13) The Committee is concerned about the broad array of crimes for which the death penalty may be imposed. It finds incompatible with the Covenant that the death penalty is mandatory for the crimes of murder, aggravated robbery, treason and terrorism resulting in the death of a person, and the imposition of death sentences by field courts-martial without the possibility of appeal or to seek pardon or commutation of the sentence...

 

The State party is urged to limit the number of offences for which the death penalty is provided and to ensure that it is not imposed except for the most serious crimes. The State party should also abolish mandatory death sentences and ensure the possibility of full appeal in all cases, as well as the right to seek pardon or commutation of the sentence.

...

(21) The Committee is concerned about shortcomings in the administration of justice, such as delays in the proceedings and in pre-trial detention, the lack of legal assistance provided to non-capital offenders and the conditions in which a confession may be secured. Despite the measures taken by the State party to address these situations, the Committee regrets that their continued existence contributes to a widespread sense of impunity as well as impairing the full enjoyment of guarantees (art. 14).

 

The State party should take steps to remedy shortcomings in the administration of justice in order to ensure full respect for the judicial guarantees enshrined in the Covenant. It should revise its legislation and practices, in particular with regard to the above-mentioned concerns.


 

•          Lithuania, ICCPR, A/59/40 vol. I (2004) 52 at para. 71(7).

 

(7) The Committee is concerned about the formulation of the draft law on the legal status of foreigners, which, according to the State party’s third report to the Counter-Terrorism Committee of the Security Council, may allow for the removal of foreigners who are regarded as a threat to State security, despite the fact that they may be exposed to a violation of their rights under article 7 in the country of return. The Committee is also concerned that in cases of alleged threat to the State, the implementation of the decision to remove a foreigner may not be suspended prior to consideration of an appeal, which may have the effect of denying that individual a remedy under article 2.

 

The State party is requested to ensure that counter-terrorism measures, whether taken in connection with Security Council resolution 1373 (2001) or otherwise, are in full conformity with the Covenant. In particular, it should ensure absolute protection for all individuals, without exception, against refoulement to countries where they risk violation of their rights under article 7.


 

•          Namibia, ICCPR, A/59/40 vol. I (2004) 64 at para. 74(18).

 

(18) The Committee expresses its concern about the absence of any mechanism or procedure for the removal of judges for misconduct.

 

The State party should establish an effective and independent mechanism and provide for a proper procedure for the impeachment and removal of judges found guilty of misconduct.


 

•          Serbia and Montenegro, ICCPR, A/59/40 vol. I (2004) 68 at paras. 75(12) and 75(20).

 

(12) While welcoming the measures taken to establish a system for trying war crimes before domestic courts, including the creation of a special war crimes trial chamber of the Belgrade District Court, and the establishment of the Office of a Special War Crimes Prosecutor, concern remains as to the absence of provisions in domestic legislation implementing the principle of command responsibility, the absence of an adequate system for witness protection, and the absence of investigators assigned solely to the prosecutor’s office (arts. 2, 6, 7).

 

The State party should take all necessary measures to ensure that those responsible for war crimes and crimes against humanity are brought to justice, to ensure that justice is carried out in a fair manner and to establish an adequate system for witness protection.

...

(20) The Committee is concerned at the possibility of civilians being tried by military courts for crimes such as disclosure of State secrets (art. 14).

 

The State party should give effect to its aspiration to secure that civilians are not tried by military courts.


 

•          Finland, ICCPR, A/60/40 vol. I (2004) 22 at para. 81(12).

 

(12) The Committee notes the lack of clarity as to the implications and consequences of the amendment to the Aliens Act of July 2000 providing for accelerated procedures in the case of asylum-seekers with manifestly ill-founded claims and applications by aliens from a “safe” country, as regards both the suspensive effect of an appeal and the legal protection available to asylum-seekers.

 

The State party should ensure that legislation and practice in this area are compatible with articles 2, 6, 7 and 13 of the Covenant and, in particular, that appeals have a suspensive effect.


 

•          Albania, ICCPR, A/60/40 vol. I (2004) 25 at para. 82(18).

 

(18) The Committee has taken note of the efforts undertaken by Albania to strengthen the independence and efficiency of its judiciary. It remains concerned, however, about alleged cases of executive pressure on the judiciary and persistent problems of corruption, lack of access to counsel and legal aid, and undue delay of trials (art. 14).

 

The State party should guarantee the independence of the judiciary, take measures to eradicate all forms of interference with its independence, ensure prompt, thorough, independent and impartial investigations into all allegations of interference and prosecute and punish perpetrators. It should establish mechanisms to improve the capacity and efficiency of the judiciary, to allow access to justice to all without discrimination and ensure that unconvicted detainees are brought to trial as speedily as possible.





 

•          Benin, ICCPR, A/60/40 vol. I (2004) 30 at paras. 83(12), 83(18) and 83(19).

 

(12) The Committee is concerned that certain provisions of the draft Criminal Code and Code of Criminal Procedure aimed at combating terrorism might infringe some of the rights set out in the Covenant (articles 2, 7, 9 and 14 of the Covenant).

 

The State party should seek to ensure that these provisions do not infringe the rights set out in the Covenant, particularly the right to security and freedom of the person, the right to a fair trial and the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment.

...

(18) The Committee notes the efforts made by the State party to bring the system of justice closer to the people but remains concerned at reports of serious dysfunctions in the administration of justice, owing chiefly to the lack of human and material resources, the overcrowding of dockets, the slow pace of proceedings, corruption and the interference of the executive in the judiciary. In this connection, the Committee notes with concern the protests by judges against the outright handing over to the Nigerian authorities of persons and vehicles under court administration and other acts related to the so-called Hamani case (articles 2, 13 and 14 of the Covenant).

 

The State party should give greater priority to efforts to address these problems. It should ensure the prompt and effective implementation of the Act of 27 August 2002 on the organization of the judiciary increasing the number of courts and tribunals, strengthen the independence of the justice system by effectively prohibiting any interference by the executive in the judiciary, and ensure that appeals are dealt with in a reasonable amount of time. It should also provide effective reparation for violations established by the Constitutional Court. The State party should also ensure that the expulsion of individuals is based solely on a decision taken in conformity with the law and that such individuals are given an opportunity to contest their expulsion.

 

(19) The Committee notes that the conciliation tribunals are useful, but fears that the different mandates of the tribunals and of the ordinary courts have been defined vaguely and are not clear to the public, and that the system of judicial confirmation in the courts does not afford all the guarantees provided for in article 14 of the Covenant.

 

The State party should endeavour to clarify the respective mandates of the different tribunals and courts and to ensure that the system of judicial confirmation in the courts meets the requirements of article 14 of the Covenant.




 

•          Morocco, ICCPR, A/60/40 vol. I (2004) 35 at para. 84(13).

 

(13) The Committee is concerned that article 26 of the new law on the residence of aliens permits the immediate expulsion of an alien deemed to be a threat to State security, even if the alien may be subjected to torture or ill-treatment or sentenced to death in the receiving country.

 

The State party should set up a system that would allow any alien who claims that expulsion would put them at risk of being subjected to torture, ill-treatment or the death penalty to lodge an appeal that would have the effect of suspending the expulsion (Covenant, arts. 6, 7 and 10).


 

•          Poland, ICCPR, A/60/40 vol. I (2004) 40 at para. 85(4).

 

(4) In its concluding observations on the State party’s fourth report, the Committee expressed concern about excessive delays in criminal and civil trials in Poland. It therefore welcomes the recent passage of legislation making provision for complaints against the violation of the right of a party in judicial proceedings to have his or her case examined without undue delay.


 

•          Kenya, ICCPR, A/60/40 vol. I (2005) 44 at paras. 86(7) and 86(20).

 

(7) The Committee welcomes the Criminal Law (Amendment) Act 2003, which prohibits courts from accepting confessions unless they are made in court.

...

(20) The Committee remains concerned about reports of serious dysfunctions in the administration of justice, owing primarily to the lack of human and material resources as well as the slow pace of proceedings. While the Committee appreciates recent Government measures such as the adoption of the Anti-Corruption and Economic Crimes Bill and its implementation, and the establishment of the Kenya Anti-Corruption Commission, which led to the resignation or the suspension of many High Court and Court of Appeal judges, it notes that allegations of judicial corruption persist, a situation that seriously undermines the independence and impartiality of the judiciary (articles 2 and 14 of the Covenant).

 

The State party should give priority to its efforts to combat corruption in the judiciary and to address the need to provide increased resources to the administration of justice.




 

•          Uzbekistan, ICCPR, A/60/40 vol. I (2005) 56 at para. 89(18).

 

(18) The Committee is concerned about the lack of information on acts that may be qualified in the legal order as “terrorist acts” (Covenant, arts. 2, 6, 7, 9 and 14).

 

The State party should define what constitutes “terrorist acts” and ensure that its legislation in this matter complies with all the guarantees provided in the Covenant, in particular articles 2, 6, 7, 9 and 14.


 

•          Greece, ICCPR, A/60/40 vol. I (2005) 60 at para. 90(11).

 

(11) The Committee is concerned about reports that undocumented aliens are detained in overcrowded facilities with poor living and sanitary conditions, are not informed of their rights, and lack any effective means of communication with their families and their lawyers (art. 10).

 

The State party should ensure that undocumented aliens are held in facilities with adequate living and sanitary conditions, are informed of their rights, including the right to appeal and to lodge complaints, and are afforded effective means of communication with their families and counsel.


 

•          Tajikistan, ICCPR, A/60/40 vol. I (2005) 70 at paras. 92(12), 92(13), 92(15), 92(16), 92(18) and 92(19).

 

(12) The Committee is concerned that a procurator, rather than a judge, remains responsible for authorizing arrests. This creates an imbalance in the equality of arms between the accused and the prosecution, as the procurator may have an interest in the detention of those who are to be prosecuted. Further, detainees are not brought before the procurator following their arrest. An appeal to a court to review the lawfulness and grounds of arrest is possible, but it does not guarantee the participation of the detainee (art. 9).

 

The State party should revise its criminal procedure legislation and introduce a system that ensures that all detainees are as a matter of course brought promptly before a judge who will decide without delay on the lawfulness of the detention.

 

(13) The Committee is concerned that a person may be placed under administrative arrest for up to 15 days, and that such detention is not subject to judicial supervision (art. 9).

 

The State party should ensure that administrative detention is subject to the same right to challenge the lawfulness of the detention as ought to pertain to other forms of detention, in light of the Committee’s recommendations in paragraph 12 above.

...

(15) The Committee has noted that the Constitutional Court and subsequently the Supreme Court have issued rulings prohibiting the use of evidence obtained in violation of the law. However, the Committee remains concerned about the absence of any prohibitive provision in the State party’s criminal procedure law to this effect (art. 14, paras. 1 and 3 (g)).

 

The State party should proceed to the necessary amendments of its Criminal Procedure Code and prohibit the use of evidence obtained in violation of the law, including under duress. All allegations of illegal use of evidence in court must be duly examined, investigations must be conducted, and courts must take into consideration the outcome of such investigations.

 

(16) The Committee is concerned that an inequality of arms between the prosecutor and the suspect/accused or defence counsel exists in practice, both during a criminal investigation and in court, for example in relation to obtaining and challenging evidence (art. 14, para. 1). This inequality also appears to be reflected in the very low number of acquittals handed down in the State party’s courts, as apparent from the report (for example, the acquittal rate in 2002 was approximately 0.004 per cent).

 

The State party should amend its legislation and change its practice in order to guarantee full compliance with the basic principles of a fair trial, particularly the principle of equality of arms.

...

(18) The Committee notes that military courts have jurisdiction to examine criminal cases concerning both military and civil persons (art. 14, para. 1).

 

The State party should make the necessary amendments to its Criminal Procedure Code in order to prohibit this practice, strictly limiting the jurisdiction of military courts to military persons only.

 

(19) The Committee is concerned about reports of several in absentia convictions, notwithstanding the prohibition by law of trials in absentia (art. 14, para. 3).

 

The State party should take all necessary measures to ensure that any trials in absentia are subject to rules that guarantee the right to defence.


 

•          Slovenia, ICCPR, A/60/40 vol. I (2005) 74 at para. 93(12).

 

(12) The Committee has taken note of the efforts undertaken by the State party to reduce backlogs in court cases by adopting strategies such as the “Hercules project”, but it remains concerned that the backlog is increasing for certain categories of cases (art. 14).

 

The State party should take steps to further reduce the backlog, while guaranteeing access to justice to all, and ensure that those persons remanded in custody for trial are brought to trial as speedily as possible.


 

•          Syrian Arab Republic, ICCPR, A/60/40 vol. I (2005) 78 at para. 94(10).

 

(10) The Committee notes the statement by the delegation regarding the establishment of a committee to revise legislation governing the Supreme State Security Court. The Committee reiterates its previous concern that the procedures of this court are incompatible with article 14 of the Covenant (art. 14).

 

The State party should take urgent measures to ensure that all rights and guarantees provided under article 14 of the Covenant are respected in the composition, functions and procedures of the Supreme State Security Court and in particular that accused persons are granted the right to appeal against decisions of the Court.


 

•          Thailand, ICCPR, A/60/40 vol. I (2005) 83 at para. 95(17).

 

(17) While acknowledging the delegation’s assurances that the Provincial Admission Board is in the process of being established, the Committee notes with concern the lack of a systematic adjudication procedure for asylum-seekers...

 

The State party should establish a mechanism to prohibit the extradition, expulsion, deportation or forcible return of aliens to a country where they would be at risk of torture or ill-treatment, including the right to judicial review with suspensive effect. The State party should observe its obligation to respect a fundamental principle of international law, the principle of non-refoulement.



ICESCR

 

•          Croatia, ICESCR, E/2002/22 (2001) 125 at paras. 898 and 911.

 

898. The Committee is alarmed at the large backlog of cases before the courts, estimated at 1 million cases in a country with a population of about 4.8 million people, which impedes access to justice. The Committee is also concerned that many court decisions that are favourable to minorities, particularly ethnic Serbs, are not implemented by the responsible enforcement agencies. The obstacles faced by many ethnic Serbs with regard to occupancy rights and the difficulty they encounter when seeking redress through the courts is illustrated, in particular, by Application No. 45943/99, Rudan v. Croatia, recently decided by the European Court of Human Rights. The facts of that case demonstrate the legal and administrative obstacles facing a Serb family appealing the unilateral termination of occupancy rights. Although the Court declared this case inadmissible ratione temporis, the Committee notes that the events detailed in that case have occurred since 1992, when the Covenant was in force in Croatia, and that the situation persists today.

            ...

911. In view of the very large number of persons affected in the areas of occupancy rights, acquisition of citizenship and other matters resulting from the war and the aftermath of independence, the Committee is of the opinion that the burden on the court system could be significantly reduced by adopting non-discriminatory laws and by streamlining legal and administrative procedures accordingly.


 

•          Democratic People’s Republic of Korea, ICESCR, E/2004/22 (2003) 71 at paras. 518 and 537.

 

518. The Committee on Economic, Social and Cultural Rights is concerned, as is the Human Rights Committee in its own concluding observations,29/ about the constitutional and other legislative provisions, particularly article 162 of the Constitution, that seriously compromise the impartiality and independence of the judiciary and have an adverse impact on the protection of all human rights guaranteed under the Covenant.

...

537. The Committee recommends that the constitutional and legislative provisions that may compromise or diminish the independence and impartiality of the judiciary be immediately reviewed in order to guarantee its crucial role in the protection of rights covered by the Covenant.

_________________

Notes

...

29/ See Official Records of the General Assembly, Fifty-sixth session, Supplement No. 40 (A/56/40), para. 86.

_________________







CEDAW

 

•          Zambia, CEDAW, A/57/38 part II (2002) 107 at paras. 250 and 251.

 

250. The Committee expresses concern that marriage and family relations are governed by dual legal systems of statutory and customary law, and that many of these laws are not in harmony with the Convention. It also notes that customary law is mostly unwritten, often administered by male justices without a legal background, and that discrimination against women is not addressed in their decisions.

 

251. The Committee recommends that statutory law be reformed and customary law is revised and codified to conform with article 16 of the Convention. It also recommends the introduction of programmes on legal education, gender sensitization and human rights for judges.


 

•          Canada, CEDAW, A/58/38 part I (2003) 53 at paras. 355, 356, 359 and 360.

 

355. While appreciating the fact that funds are available under the Court Challenges Programme for test cases under the equality guarantee in the Canadian Charter of Rights and Freedoms, the Committee is concerned that the Programme applies only to federal laws and programmes. The Committee is also concerned that federal legal aid funds in civil and family law and for legal matters related to poverty issues, in contrast to legal aid for criminal cases, are channelled to the provinces and territories at their discretion. That, in practice, turns out to have a disproportionately restrictive impact on women seeking legal redress as compared with men.

 

356. The Committee urges the State party to find ways for making funds available for equality test cases under all jurisdictions and for ensuring that sufficient legal aid is available to women under all jurisdictions when seeking redress in issues of civil and family law and in those relating to poverty issues.

...

359. The Committee is concerned about a number of recent changes in British Columbia which have a disproportionately negative impact on women, in particular aboriginal women. Among these changes are: a cut in funds for legal aid and welfare assistance, including changes in eligibility rules; a cut in welfare assistance; the incorporation of the Ministry of Women’s Equality under the Ministry of Community, Aboriginal and Women’s Services; the abolition of the independent Human Rights Commission; the closing of a number of courthouses; and the proposed changes regarding the prosecution of domestic violence as well as a cut in support programmes for victims of domestic violence.

 

360. The Committee, through the State party, urges the government of British Columbia to analyse its recent legal and other measures as to their negative impact on women and to amend the measures, where necessary.



CAT

 

•          Russian Federation, CAT, A/57/44 (2002) 42 at para. 89.

 

89. The Committee notes the following positive developments:

...

(b) The introduction of a new Criminal Code and a new Code of Criminal Procedure, as well as the State party's assurances that all of the latter Code will enter into force on 1 July 2002. The Committee welcomes the introduction in the Code of Criminal Procedure, inter alia, jury trials, stricter limits on detention and interrogation, provisions for exclusion of evidence obtained in the absence of a defence lawyer, and the conferral authority of a judge rather than a procurator to order an arrest;

...


 

•          Saudi Arabia, CAT, A/57/44 (2002) 48 at para. 99.

 

99. The Committee welcomes the following:

...

(b) Legal developments designed to enhance the rule of law and the proper administration of justice that have occurred since preparation of the report, such as aspects of the newly promulgated Code of Civil Procedure, Code of Criminal Procedure and Code of Practice for Lawyers. The Committee welcomes, in particular, that the Code of Criminal Procedure guarantees every accused person the right to avail himself or herself of the services of a lawyer at all stages of an investigation and trial;

...


 

•          Cyprus, CAT, A/58/44 (2002) 21 at para. 33.

 

33. The Committee welcomes the recent legislative, administrative and institutional developments that took place in the State party since the consideration of its previous periodic report, namely:

...

(b) The adoption of the Protection of Witnesses Law by the Parliament with a view to securing anonymity of witnesses;

...


 

•          Egypt, CAT, A/58/44 (2002) 22 at paras. 41 and 42.

 

41. The Committee is concerned about the following:

...

(g) The fact that victims of torture and ill-treatment have no direct access to the courts to lodge complaints against law enforcement officials;

 

(h) The excessive length of many of the proceedings initiated in cases of torture and ill-treatment, and the fact that many court decisions to release detainees are not enforced in practice;

...

42. The Committee recommends that the State party:

...

(g) Ensure that legislation gives full effect to the rights recognized in the Convention and institute effective remedies for the violation of such rights; ensure in particular that proceedings take place within a reasonable time after the submission of complaints, and that any court decision to release a detainee is actually enforced;

...

(l) Establish the State’s jurisdiction over all persons alleged to be responsible for torture who are present in the country and are not extradited to other States in order to be brought to justice, in accordance with the provisions of articles 5 to 8 of the Convention;

...

(n) Establish precise rules and standards to enable the victims of torture and ill-treatment to obtain full redress, while avoiding any insufficiently justified disparities in the compensation which is granted;

...


 

•          Venezuela, CAT, A/58/44 (2002) 32 at para. 76.

 

76. The Committee welcomes with satisfaction the entry into force on 30 December 1999 of the new Constitution of the Bolivarian Republic of Venezuela, which demonstrates progress in human rights. In particular, the Committee considers as positive the following aspects of the Constitution:

...

(c) It requires the State to investigate and impose penalties for human rights offences, declares that action to punish them is not subject to a statute of limitations and excludes any measure implying impunity, such as an amnesty or a general pardon;

 

(d) It requires offences concerning human rights violations and crimes against humanity to be heard in ordinary courts;

...

(h) It makes compulsory the extradition of persons charged with human rights offences and makes provision for a brief, public, oral procedure for trying them.


 

•          Cambodia, CAT, A/58/44 (2003) 40 at paras. 98 and 99.

 

98. The Committee is concerned about the following:

...

(g) The ineffective functioning of the criminal justice system, in particular the lack of independence of the judiciary as well as its inefficiency;

 

(h) The importance given to confessions in criminal proceedings and the reliance of the police and the judiciary on confessions to secure convictions;

...

99. The Committee recommends that the State party:

...

(b) Take effective measures to establish and ensure a fully independent and professional judiciary in conformity with international standards, notably the Basic Principles on the Independence of the Judiciary, if necessary by calling for international cooperation;

...

(f) Take measures to ensure that evidence obtained under torture is not invoked in court;

...

(h) Undertake all necessary measures to guarantee to any person deprived of his or her liberty the right of defence and, consequently, the right to be assisted by a lawyer, if necessary at the State’s expense;

...


 

•          Iceland, CAT, A/58/44 (2003) 43 at para. 105.

 

105. The Committee notes with satisfaction that remand prisoners who are kept in solitary confinement have the right to have the decision to so confine them reviewed by a court and that they must be informed of the existence of this right.


 

•          Turkey, CAT, A/58/44 (2003) 46 at paras. 121 and 123.


            121. The Committee expresses concern about:

            ...

(d) Allegations that despite the number of complaints, the prosecution and punishment of members of security forces for torture and ill-treatment are rare, proceedings are exceedingly long, sentences are not commensurate with the gravity of the crime, and officers accused of torture are rarely suspended from duty during the investigation;

...

123. The Committee recommends that the State party:

...

(b) Take the necessary measures to guarantee that prompt, impartial and full investigations into the numerous allegations of torture and ill-treatment are carried out, and to ensure in this connection that an efficient and transparent complaint system exists;

 

(c) Repeal the statute of limitation for crimes involving torture, expedite the trials and appeals of public officials indicted for torture or ill-treatment, and ensure that members of the security forces under investigation or on trial for torture or ill-treatment are suspended from duty during the investigation and dismissed if they are convicted;

...

(g) Review the current legislation and practice in order to ensure that the expulsion of irregular aliens is carried out with full respect for the legal guarantees required by international human rights standards, including the Convention;

...

 

 

•          Belgium, CAT, A/58/44 (2003) 49 at paras. 129 and 131.

 

129. The Committee is concerned about:

...

(g) The reform on 23 April 2003 of the rules governing the exercise of universal jurisdiction by Belgian courts in cases involving serious violations of international humanitarian law, authorizing the Minister of Justice in some circumstances to remove a Belgian judge from a case;

...

(o) The fact that rules on the exclusion of evidence obtained as a result of torture have emerged only from the decisions of the courts, and that judges seem to retain discretionary power in that regard.

...

131. The Committee recommends that the State party:

...

(f) Ensure respect for the principle of the independence of Belgian courts from the executive branch, in particular where the exercise of universal jurisdiction in relation to serious violations of international humanitarian law is concerned;

...

(n) Clearly state in national legislation that evidence obtained under torture is automatically inadmissible and must therefore not be submitted for consideration by the court itself.


 

•          Republic of Moldova, CAT, A/58/44 (2003) 53 at paras. 138 and 139.

 

138. The Committee expresses concern about:

...

(h) Allegations of a dysfunctional criminal justice system, apparently caused in part by a lack of independence of the procuracy and the judiciary;

 

(i) Allegations concerning the heavy emphasis put on confessions as a primary source of evidence in criminal proceedings;

...

139. The Committee recommends that the State party:

...

(f) Take effective measures to ensure a fully independent procuracy and an independent judiciary in conformity with the United Nations Basic Principles on the Independence of the Judiciary, if necessary by calling for international cooperation;

 

(g) Take measures to ensure that evidence obtained under torture is not invoked in court;

...


 

•          Cameroon, CAT, A/59/44 (2003) 23 at paras. 43, 46 and 47.

 

43. The Committee is...concerned about:

 

(a) The jurisdiction given to military courts to try civilians for offences against the laws on military weapons and weapons assimilated thereto;

...

46. The Committee recommends that the State should greatly increase its efforts to end the impunity of perpetrators of acts of torture, in particular by:

 

(a) Removing all restrictions, notably by the Ministry of Defence, on the prosecution of gendarmes and by giving the ordinary courts jurisdiction to try offences committed by gendarmes in the line of policy duty;

...

(d) Ensuring the protection of victims and witnesses against any intimidation or ill-treatment, and by informing the public of their rights, notably with regard to complaints against State employees;

 

(e) Adopting, as soon as possible, and ensuring the practical enforcement of a law making evidence obtained under torture inadmissible in all proceedings.

 

47. The Committee further recommends that the Cameroonian authorities should:

...

(b) Restrict the jurisdiction of the military courts to military offences only;

...


 

•          Colombia, CAT, A/59/44 (2003) 33 at paras. 68 and 69.

 

68. The Committee...expresses its concern at:

...

(c) The judicial reform bill, should it be approved, would reportedly provide for constitutional limitation of amparo proceedings and reduce the powers of the Constitutional Court, particularly with respect to the review of declarations of states of emergency. Similarly, the Committee expresses its concern at the "alternative penalties" bill, which, if approved, would, even if they had committed torture or other serious breaches of international humanitarian law, grant conditional suspension of their sentences to members of armed groups who voluntarily laid down their arms;

 

(d) The allegations and information indicating:

 

(i) That some prosecutors in the Human Rights Unit of the Public Prosecutor's Office have been forced to resign and that members of the Unit have been threatened in connection with their investigation of cases of human rights violations;

 

(ii) Inadequate protection against rape and other forms of sexual violence, which are allegedly frequently used as forms of torture or ill-treatment. The Committee further expresses its concern at the fact that the new Military Penal Code does not expressly exclude sexual offences from the jurisdiction of the military courts;

 

(iii) The fact that the military courts are allegedly still, despite the promulgation of the new Military Penal Code and the Constitutional Court's decision of 1997 that crimes against humanity did not fall within the jurisdiction of the military courts, investigating offences that are totally excluded from their competence, such as torture, genocide and forced disappearance in which members of the police or armed forces are suspected of having been involved;

 

(iv) The widespread, serious attacks on human rights defenders, who are playing an essential role in reporting torture and ill-treatment; in addition, the repeated attacks on members of the judiciary, threatening their independence and physical integrity;

...

69. The Committee recommends that the State party take all necessary measures to prevent the acts of torture and ill-treatment that are being committed in its territory, and in particular that it:

...

(b) Reconsider also, in the light of its obligation to prevent torture and ill-treatment under the Convention:

...

(ii) The adoption of measures that appear to give military forces powers of criminal investigation under which suspects can be detained for long periods without judicial control;

 

(iii) The judicial reform bill, so as to provide full protection for amparo proceedings and respect and promote the role of the Constitutional Court in defending the rule of law;

...

(d) Ensure that the staff of the Human Rights Unit of the Public Prosecutor's Office are able to carry out their duties independently, impartially and in safety and provide the Unit with the resources needed to do its work effectively;

 

(e) Investigate, prosecute and punish those responsible for rape and other forms of sexual violence, including rape and sexual violence that occur in the framework of operations against illegal armed groups;

...

(g) Respect the provisions of the Military Penal Code that exclude cases of torture from the jurisdiction of the military courts and ensure that those provisions are respected in practice;

 

(h) Take effective measures to protect human rights defenders against harassment, threats and other attacks and report on any judicial decisions and any other measures taken in that regard. The Committee also recommends the adoption of effective measures for the protection of the physical integrity and independence of members of the judiciary;

...


 

•          Croatia, CAT, A/59/44 (2004) 38 at paras. 77 and 78.

 

77. The Committee is concerned about the following:

 

(a) In connection with torture and ill-treatment which reportedly occurred during the 1991-1995 armed conflict in the former Yugoslavia:

 

(i) The reported failure of the State party to carry out prompt, impartial and full investigations, to prosecute the perpetrators and to provide fair and adequate compensation to the victims;

 

(ii) Allegations that double standards were applied at all stages of the proceedings against Serb defendants and in favour of Croat defendants in war crime trials;

 

(iii) The reported harassment, intimidation and threats faced by witnesses and victims testifying in proceedings and the lack of adequate protection from the State party;

...

78. The Committee recommends that the State party:

 

(a) Take effective measures to ensure impartial, full and prompt investigations into all allegations of torture and other cruel, inhuman or degrading treatment, the prosecution and punishment of the perpetrators as appropriate and irrespective of their ethnic origin, and the provision of fair and adequate compensation for the victims;

 

(b) Ensure full cooperation with the International Criminal Tribunal for the Former Yugoslavia (ICTY), inter alia by ensuring that all indicted persons in their territory are arrested and transferred to the custody of the Tribunal;

 

(c) Enforce all relevant legislation providing for the protection of witnesses and other participants in proceedings and ensure that sufficient funding is allocated for effective and comprehensive witness protection programmes;

...


 

•          Czech Republic, CAT, A/59/44 (2004) 42 at para. 85.

 

85. The Committee welcomes the ongoing efforts by the State party to revise its legislation in order to safeguard human rights in general and, more specifically, those related to the implementation of the Convention against Torture. The Committee welcomes in particular:

 

(a) The amendments to the Residence of Aliens Act No. 222/2003 Coll., effective 1 January 2004 establishing an independent judicial second instance body to review asylum cases;

...


 

•          New Zealand, CAT, A/59/44 (2004) 61 at paras. 134 and 135.

 

134. The Committee expresses concern about:

...

(c) The process of issuing a security-risk certificate under the Immigration Act, which could lead to a breach of article 3 of the Convention as the authorities may remove or deport a person deemed to constitute a threat to national security, without having to give detailed reasons or to disclose classified information to the person concerned; possibilities of effective appeal are limited; and the fact that the Minister of Immigration has to decide within three working days whether to remove or deport the person concerned;

...

135. The Committee recommends that the State party:

...

(c) Immediately take steps to review the legislation relating to the security-risk certificate in order to ensure that appeals can effectively be made against decisions to detain, remove or deport a person, extend the time given to the Minister of Immigration to adopt a decision and ensure full respect of article 3 of the Convention;

...

 

 

•          United Kingdom of Great Britain and Northern Ireland (Crown Dependencies and Overseas Territories), CAT, A/60/44 (2004) 16 at paras. 39 and 40.

 

39. The Committee expresses its concern at:

 

(a) Remaining inconsistencies between the requirements of the Convention and the provisions of the State party’s domestic law which, even after the passage of the Human Rights Act, have left continuing gaps; notably:

 

(i) Article 15 of the Convention prohibits the use of evidence gained by torture wherever and by whomever obtained; notwithstanding the State party’s assurance set out in paragraph 38, subparagraph (g), supra, the State party’s law has been interpreted to exclude the use of evidence extracted by torture only where the State party’s officials were complicit; and

 

(ii) Article 2 of the Convention provides that no exceptional circumstances whatsoever may be invoked as a justification for torture; the text of section 134 (4) of the Criminal Justice Act however provides for a defence of “lawful authority, justification or excuse” to a charge of official intentional infliction of severe pain or suffering, a defence which is not restricted by the Human Rights Act for conduct outside the State party, where the Human Rights Act does not apply; moreover, the text of section 134 (5) of the Criminal Justice Act provides for a defence for conduct that is permitted under foreign law, even if unlawful under the State party’s law;

...

40. The Committee recommends that:

 

(a) The State party take appropriate measures in the light of the Committee’s views to ensure, if necessary explicitly, that the defences that might be available to a charge brought under section 134 (1) of the Criminal Justice Act be consistent with the requirements of the Convention;

...

(d) The State party should appropriately reflect in formal fashion, such as legislative incorporation or by undertaking to Parliament, the Government’s intention as expressed by the delegation not to rely on or present in any proceeding evidence where there is knowledge or belief that it has been obtained by torture; the State party should also provide for a means whereby an individual can challenge the legality of any evidence in any proceeding plausibly suspected of having been obtained by torture;

...


 

•          Canada, CAT, A/60/44 (2005) 25 at paras. 57 and 58.

 

57. The Committee expresses its concern at:

...

(c) The blanket exclusion by the Immigration and Refugee Protection Act 2002 (sect. 97) of the status of refugee or person in need of protection for persons falling within the security exceptions set out in the Convention relating to the Status of Refugees and its Protocol; as a result, such persons’ substantive claims are not considered by the Refugee Protection Division or reviewed by the Refugee Appeal Division;

...

(e) The State party’s apparent willingness, in the light of the low number of prosecutions for terrorism and torture offences, to resort in the first instance to immigration processes to remove or expel individuals from its territory, thus implicating issues of article 3 of the Convention more readily, rather than subject him or her to the criminal process;

...

58. The Committee recommends that:

...

(b) The State party remove the exclusions in the Immigration and Refugee Protection Act 2002 described in paragraph 57, subparagraphs (c) ... above, thereby extending to currently excluded persons entitlement to the status of protected person, and protection against refoulement on account of a risk of torture;

 

(c) The State party should provide for judicial review of the merits, rather than merely of the reasonableness, of decisions to expel an individual where there are substantial grounds for believing that the person faces a risk of torture;

...


 

•          Switzerland, CAT, A/60/44 (2005) 28 at paras. 64 and 65.

 

64. The Committee expresses concern regarding the following:

...

(h) Changes have been introduced by the revised law on asylum which restrict or aggravate asylum-seekers’ access to legal counsel...

...

65. The Committee recommends that the State party:

...

(h) Ensure that asylum-seekers are granted full respect of their right to a fair hearing, to an effective remedy and to social and economic rights during all procedures established by the revised law on asylum;

...


 

•          Finland, CAT, A/60/44 (2005) 32 at paras. 72 and 73.

 

72. The Committee expresses concern that:

...

(b) The “accelerated procedure” under the Aliens Act allows an extremely limited time for applicants for asylum to have their cases considered thoroughly and to exhaust all lines of appeal if their application is rejected;

...

73. The Committee recommends that the State party:

...

(b) Review the application of the “accelerated procedure” for consideration of asylum requests to ensure that applicants have sufficient time to use all available appeal procedures before irreversible action is taken by the authorities;

...


 

•          Bahrain, CAT, A/60/44 (2005) 44 at paras. 107-109.

 

107. The Committee notes the following positive developments:

 

(a) The extensive political, legal and social reforms on which the State party has embarked, including:

 

(i) The adoption of the National Action Charter in 2001 which outlines reforms aimed at enhancing non-discrimination, due process of law and the prohibition of torture and arbitrary arrest and stating, inter alia, that any evidence obtained through torture is inadmissible;

...

(vi) Decree No. 4 of 2001 abolishing the State Security Court which had jurisdiction over offences against the internal and external security of the State and emergency legislation, which are now heard by the ordinary criminal courts;

...

108. The Committee expresses its concern at:

...

(o) The over broad discretionary powers of the sharia court judges in the application of personal status law and criminal law and, in particular, reported failures to take into account clear evidence of violence confirmed in medical certificates following violence against women;

...

109. The Committee recommends that the State party:

...

(h) Fully ensure the independence of the judiciary and include female judicial officials in its judicial system;

 

(i) Consider adopting a Family Code, including measures to prevent and punish violence against women, especially domestic violence, including fair standards of proof;

...



CRC

 

•          Bahrain, CRC, CRC/C/114 (2002) 122 at paras. 456 and 457.

 

456. The Committee is concerned that in the case of Muslims the Shariah Court system - which applies Shariah personal law (marriage, divorce, custody and guardianship, inheritance, maintenance) and criminal law - lacks many basic and minimum international safeguards and procedures, including those contained in the Convention, without which the right to a fair trial or adequate access to the courts can be guaranteed in practice. In particular, the Committee is concerned that:

 

(a) Shariah remains uncodified and is applied in its classical sense without reference to State legislation; and

 

(b) Because it is uncodified the system may be subject to arbitrariness, inconsistencies, and lack of uniformity between judgements between different cadis, or judges, between Shi'a and Sunni departments and disparities with decisions of the secular courts.

 

457. The Committee recommends that the State party:

 

(a) Conduct a comprehensive review of its domestic laws, administrative regulations and procedural rules, including Shariah, to ensure that they conform to international human rights standards, including the Convention;

 

(b) Ensure that laws are sufficiently clear and precise, are published, and are accessible to the public.


 

•          Belgium, CRC, CRC/C/118 (2002) 29 at paras. 99 and 100.

 

99. The Committee welcomes the information provided by the State party on draft laws concerning the rights of the child, including with respect to adoption, guardianship for unaccompanied minors, access to courts and guarantees of due process.

 

100. The Committee recommends that the State party:

 

(a) Rigorously review these laws and ensure that they and other laws concerning children, as well as administrative regulations, are rights-based and conform to international human rights standards, including the Convention;

 

(b) Ensure that adequate provision is made for their effective implementation, including budgetary allocation;

 

(c) Ensure their speedy promulgation.


 

•          Tunisia, CRC, CRC/C/118 (2002) 68 at para. 262.

 

262. In light of the previous recommendations ([CRC/C/15/Add.39], para. 10), the Committee notes with satisfaction the withdrawal, on 1 March 2002, of the reservation with regard to article 40, paragraph 2 (b)(v), and the declaration in which the State party declared that "its undertaking to implement the provisions of this Convention shall be limited by the means at its disposal."


 

•          Bangladesh, CRC, CRC/C/133 (2003) 93 at paras. 509 and 510.

 

509. The Committee acknowledges the efforts made by the State party to improve the juvenile justice system. However, the Committee remains concerned at the limited progress achieved in establishing a functioning juvenile justice system throughout the country. In particular, the Committee is concerned at:

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(f) The failure to ensure full respect for the right to a fair trial, including legal assistance for alleged child offenders and the very long periods of pre-trial detention;

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510. ...[T]he Committee recommends that the State party:

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(c) Ensure the full implementation of the right to a fair trial, including the right to legal or other appropriate assistance;

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•          Liberia, CRC, CRC/C/140 (2004) 67 at paras. 368 and 370.

 

368. The Committee is concerned that the juvenile justice system does not conform to international norms and standards...

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370. ...[T]he Committee recommends that the State party:

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(c) Take all necessary measures to establish juvenile courts and appoint trained juvenile judges in all regions of the State party and ensure that all children accused of a crime are accorded their right to due process;

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•          Kyrgyzstan, CRC, CRC/C/143 (2004) 50 at paras. 298 and 299.

 

298. While welcoming the adoption of the Law on Refugees in 2002 and the more favourable policies towards refugees, the Committee remains concerned that certain practices do not allow persons below 18 to have their own documentation, and at reports that in some cases asylum-seekers are not being allowed to register their claims for refugee status because of their ethnic background. The fact that asylum-seekers cannot legally remain in the country during the time given by the law for them to appeal a decision against granting refugee status is of concern to the Committee.

 

299. The Committee recommends that the State party review its regulations and practices concerning refugees in order to eliminate all discriminatory elements between adults and minors as well as between refugees of different ethnic backgrounds and ensure that asylum-seekers whose application for asylum has been rejected in the first instance are granted the right to remain in the country for the period allowed by the law for filing an appeal.


 

•          Nepal, CRC, CRC/C/150 (2005) 66 at paras. 378 and 380.

 

378. ...The Committee is...alarmed that children are often brought to trial “without any proper investigation” and that a large proportion of juvenile cases are dealt by District Administration Offices which are quasi-judicial...

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380. The Committee recommends...the State party, in particular to:

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(e) Review, and where necessary amend, all (judicial, legal and protection) procedures, including those of District Administrative Offices, so as to ensure that all persons under 18 years who are alleged as, or been accused of, breaking the law are fully guaranteed the right to a fair trial provided for by article 40 (2) of the Convention;

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