The Human Rights Committee considers the report of San Marino

20 October 2015

The Human Rights Committee today finished the consideration of the third periodic report of San Marino in its implementation of the provisions of the International Covenant on Civil and Political Rights.

The report was presented by Marcello Beccari, Permanent Representative of San Marino to the United Nations Office at Geneva. He outlined several laws that had been introduced in San Marino, namely on the prevention of gender-based violence and violence against women, and the law that established the Authority for Equal Opportunities. The Authority was tasked to provide services and shelter for victims of violence, and to provide victims with information on relevant legal aid instruments. Another recently adopted law ensured the assistance, social inclusion and the rights of people with disabilities. The law on education and provision of administrative support regulated accompaniment, assistance and protection for persons with disabilities in daily life. The institution of legal aid was revised and the new legislation eliminated any possibility of discretionary examining a request for free legal aid. Finally, the Government had also adopted the Health Plan for 2015-2017.

In the interactive dialogue that followed, Committee Experts welcomed the positive feedback on the adoption on a number of laws which aligned national legislation with international and regional human rights standards. However, they regretted the lack of input by civil society in the periodic report. They asked questions about the adoption of a general anti-discrimination framework; specific case law on the implementation of international human rights standards, female participation in politics, the rights of women and fight against gender based violence; naturalization of children with only one San Marino national parent, and a possible introduction of gender identity as grounds for discrimination. They particularly stressed the need to revise abortion legislation, namely the provision that allowed for abortion only when the health of the mother was endangered. They also inquired about free legal aid, free and informed consent for persons with disabilities, especially for those with mental disorders, and the granting of asylum and refugee status, which was not envisaged in San Marino’s legal system.

In his concluding remarks, Mr. Beccari thanked the Committee Experts for open and fruitful dialogue. San Marino always carefully considered the Committee’s recommendations and the Government was aware of the implications that the limited resources posed on the process of implementation.

In her concluding remarks, Anja Seibert-Fohr, Vice-Chairperson of the Committee, acknowledged the State Party’s commitment to engage in the process, despite its small size. San Marino could give a more active reading to some international human rights instruments in order to build up its legislative system. There was room for improvement in the practical application of laws, namely in the compatibility of the Criminal Code with the Covenant, provisions for the freedom of expression and opinion, especially with respect to defamation.

The delegation of San Marino included representatives from the Ministry of Justice and Institutional Affairs, the Ministry of Foreign Affairs, the Authority on Equality of Opportunities, the Health Authority, the Appellate Court, the Gendarmerie and the Permanent Mission of San Marino to the United Nations Office at Geneva.

The Human Rights Committee will next meet in public at 3 p.m. today to consider the fifth periodic report of Austria (CCPR/C/AUT/5).

Report

The third periodic report of San Marino (CCPR/C/SMR/3) is available here.

Presentation of the Report

MARCELLO BECCARI, Permanent Representative of San Marino to the United Nations Office at Geneva, noted that San Marino was one of the smallest and oldest States in the world, covering the territory of 61 square kilometers. Like in all countries, the legal system and the practice might have some gaps. Implementation of the recommendations was not always easy due to limited resources. Since the adoption of the report of 10 February 2007, San Marino had adopted a number of legal texts on the protection of civil and political rights and the prevention of violations. Of particular importance were the amendment to the adoption of the law of 20 June 2008 n.97 on the prevention of gender violence and violence against women. It represented a turning point in the awareness raising of the San Marino population about that important topic. That initiative had involved various social sectors, from education to health, as well as the media. That legal instrument provided for a programmatic norm that aimed to sensitize and prevent, and modify the Criminal Code in order to provide protection measures for victims. The envisaged measures would ensure that the administrative structure of the State would guarantee proper implementation of the law. The provisions had been implemented and had led to some good effects.

The law no. 97/2008 had instituted the Authority for the Equal Opportunities, which was the body that would ensure the implementation of the following measures: the establishment and coordination of services for victims; introduction of relevant penal procedures; monitoring of the use and diffusion of images and communication that were damaging to the dignity and identity of persons; information and communication of the legal instruments for prevention and for informing victims of their rights and services that were available to them; and the activation of the center for support to victims of violence.

Among other adopted laws was also the law of 10 March 2015 on the assistance, social inclusion and the rights of people with disabilities aimed to promote the protection and respect of human dignity of persons with disabilities in field of social life. That standard framework ensured the inclusion of people with disabilities in schools of all levels of the State. Another was the law of 5 June 2015 on education and provision of administrative support, which regulated accompaniment, assistance and protection for persons with disabilities in daily life. In addition, the institution of legal aid had been revised and the new legislation eliminated any possibility of discretionary examining a request for free legal aid and established specific requirements for admission, which were evaluated by exclusively technical organs.

At its meeting on 27 March 2015, the Grand General Council approved the Health Plan 2015-2017 developed around seven macro objectives: health as a universal and common good - the person and collectivity at the center of the system; prevention of inequalities by tackling determinants of health; reducing factors of disease risk and mortality of population; improving the integration of social and sanitary services, and between different levels of the health sector; promoting the organizational and economic sustainability; and developing human resources. The Health Plan was elaborated in cooperation with the main stakeholders from the social services department, health professionals and local administration. The Plan was in line with the strategies of the World Health Organization and the Health 2020 Agenda. In particular it was oriented towards meeting the needs of adolescents and youth, women, the elderly, persons with disabilities and migrants.

Questions by Experts

An Expert regretted that not much input had been received from civil society. San Marino had acceded to the Optional Protocol on Economic and Social Rights, but it had not yet acceded to some other human rights instruments. The Expert reminded that in the previous recommendations, the Human Rights Committee had recommended that San Marino adopt a general anti-discrimination framework. On a positive note, the Expert welcomed the positive feedback on the adoption on a number of laws which aligned national legislation with international and regional human rights standards.

The Expert noted that there was a lack of specific data on how legislation had been implemented in practice. To what extent was legislation implemented in practice, especially legislation on the dissemination of information? Were there examples of recent case law in that respect?

Another Expert inquired about the measures taken to raise awareness of civil society participation. She also observed that there seemed to have been lack of a national institution compliant with the standards of the Paris Principles. The response given by San Marino during the Universal Periodic Review was that the existing complaints mechanism was adequate. Did the Delegation still think that the mechanism was sufficient? The same Expert sought information on increasing female participation in politics and information on female representation in the executive and legislative branches.

How could individuals invoke international human rights standards in courts and how could they discard non-compliant standards? Could individuals invoke the primacy of the International Covenant on Political and Civil Rights in court? What measures would be taken by the State to implement the recommendations by the Human Rights Committee?

As for the issue of inequality of naturalization of children with only one naturalized parent, an Expert commended the adoption of the previous Committee recommendations. The law on the prevention of discriminatory acts was welcomed, but there remained a question on whether San Marino would consider including the gender identity as a new ground for discrimination.

Another Expert raised the issue of abortion, noting that abortion was punished by six months in prison, unless it was made for reasons of honour. Women had to go abroad if they wanted abortion to be performed. Did the State envisage the abolishment of the prohibition of abortion?

An Expert inquired about the nature of work of the Authority for Equal Opportunities, especially with respect to the rights of women. He asked for statistics on its structure and budget for training.

As for the issue of violence against women, an Expert observed that the Committee had not received any information on femicide. There were some protocols planned to mitigate violence against women. How were they implemented? What kind of shelter would be provided to victims of gender violence and what kind of impact would those programmes have on the fight against violence against women?

The creation of a system of legal aid was commendable. Who paid the allowance for lawyers? How did those who did not have the resources manage to secure legal aid? What type of training was provided to pro bono lawyers?

As for free and informed consent of persons with disabilities, San Marino had stated that it would adopt procedures on that issue. However, those procedures were not clearly outlined in the submitted report. The Committee should receive relevant information, an Expert noted. For persons with mental disorders, informed consent was required for diagnostic, test and rehabilitation treatment. Was there any definition or criteria for serious mental disorders, and was that definition in accordance with the Covenant?

San Marino’s legal system did not provide for the granting of asylum or refugee status because of the lack of border control between San Marino and Italy. Such argumentation was not convincing, an Expert observed. At the same time, different argument was used in granting State permits. Clarification was necessary.

An Expert commended the application of the Covenant in San Marino and asked in what ways the courts used the Covenant.

Replies by the Delegation

The Delegation explained that San Marino was very involved in the implementation of international human rights instruments, and it that continued doing so in spite of limited financial and human resources. It asked that the Committee take those limitations into account. The media in San Marino were extremely attentive to what the international bodies said about San Marino. In addition, all recommendations by the Human Rights Committee were translated and made publicly accessible. As for the national mechanism in conformity with the Paris Principles, the Government had not adopted the establishment of such a body. Other mechanisms allowed for the protection of the rights of people in San Marino.

As for the status of refugees, the delegation explained that San Marino had not signed the Geneva Convention. Appropriate decisions were taken on a case-by-case basis. Victims of trafficking and violence were also given protection. The Government referred to proximity with Italy because it could not control its own borders and because it depended on the Schengen States to control the flow of people.

The law against violence against women was inspired by the Council of Europe recommendations and it included provisions for gender based violence and violence on the basis of different sexual orientation. The Authority for Equal Opportunities collaborated with voluntary associations, the Gendarmerie, the lawyers’ association and schools. It was competent in the receiving women victims of violence and it focused preserving the maximum privacy for victims which was why it created a shelter. Periodic meetings established modes of intervention in cases of emergencies. Each situation required the best possible care. The centre of assistance was a new kind of service that aimed to give more privacy to women. The Authority monitored the situation and aimed to train actors in the field so that they were equipped to give the best response to different situations. All the work concerning training was regulated by law and was coordinated with the University of San Marino. Great importance was given to the cultural aspect of training. The training was meant for all citizens.

As for the relationship with civil society, the delegation said that the Authority for Equal Opportunities promoted awareness raising. Soon it would start implementing projects involving men in order to prevent gender-based violence. Regarding the participation of women in political life, the Authority was preparing relevant studies. There were 10 women in the Parliament, and they played an even greater role in civil society.

Regarding the legal framework to combat of discrimination, Article 4 set out principles of equality in front of law regardless of ethnic, religious or other factors. Sources of San Marino’s national law were international treaties on human rights. Norms of lower level were interpreted in light of international standards.

Turning to abortion, the delegation explained that, in light of the signature of the Convention of Biomedicine, the emergency intervention could take place for the benefit of the health of the person. When mother’s health was in danger, voluntary termination of pregnancy could be permitted. Under the Criminal Code, the person who helped another escape a dangerous situation would not be punished. The topic of abortion was hotly debated in San Marino. Discussions in the Parliament were ongoing and the Parliament would verify the relevant sections of the Criminal Code to that end.

It was explained that the Government had set up a body to decide when a person would have access to free legal aid. In 2008, the Criminal Code had been reviewed and following that revision the basic rights of detainees were now properly guaranteed. There was a greater transparency in criminal procedures, bringing it into line with the international standards. Deadlines for the conclusion of investigations had also been adopted.

As for the implementation of international human rights instruments in the national law,
the sources of law in San Marino could draw on the European Convention on Human Rights and international instruments. Those provisions did not just have an interpretation value, but also individual value. First, legislation needed to be interpreted as closely as possible to the international standards. Second, the legislation of San Marino drew on common law, but those principles were characterized by a modern aspect and judges in San Marino were not straightjacketed by rigid procedures. International laws played definitely a decisive role in national jurisprudence, the delegation said.

It was possible that the Parliament would adopt an amendment including gender identity as a possible basis for discrimination.

Informed consent was specified in the Charter of the Disables Persons and confirmed in 2005. Informed consent was to be taken into account in cases of mental disorders. The criteria for informed consent were available to the public and part of the good clinical practices. Degrees of serious mental health illnesses had been established in accordance with the protocols and guidelines of the World Health Organization.

Follow-up Questions by Experts

An Expert noted San Marino’s rather unsatisfactory status quo regarding abortion. The excuse of necessity provided only for exceptional carrying out of abortion. Were there any other kinds of exception for the provision of abortion? The status quo continued to create restrictions that did not appear to be proportionate to the rights of women. There was a problem of stigmatization as women needed to go elsewhere to perform abortion. That could motivate them to seek alternative sources of abortion, which could, in turn, be dangerous for their health.

An Expert asked about the measures undertaken to combat gender stereotypes in the earliest levels of education. What was planned to ensure that foreign women had access to employment and that they were not subjected to exploitation?

Another Expert objected to the usage of the term “repression” in the report’s outline of the tasks of the Authority for Equal Opportunities. The report said that it was tasked to “repress” gender-based discrimination.

As for the right to privacy, an Expert asked whether there were any counter-terrorism measures, such as telephone surveillance. The State party tried to reassure the Committee that investigative measures had not affected the right to privacy. In which specific investigations were the guarantees for the protection of the right to privacy applied? Was San Marino considering establishing legislation framework for the interception of electronic data?

An Expert noted that there were perhaps some other provisions in the Criminal Code with respect to freedom of expression and opinion that needed to be analyzed, such as offence of the Heads of State or persons in public office. Did San Marino consider complete decriminalization of defamation?

San Marino claimed that no groups of persons claimed that they had constituted minorities. What were the provisions for declaring the status of minority?

An Expert asked whether the age of 16 for military recruitment would be revised. How would the exceptional circumstances for general mobilization fit the provisions of the Covenant?

As for the participation in public life, an Expert noted that he did not understand on what grounds persons with mental disabilities were excluded from participating in public life.

An Expert welcomed the adoption of a new law prohibiting corporal punishment. However, that prohibition seemed to have had a caveat. Was only the corporal punishment that endangered the body or the mind of person prohibited? What was the meaning of the body or the mind, and who interpreted the legal provision?

Concern was voiced that San Marino did not have a broad legislative system to protect boys, girls and adolescents. Were there any plans to set up procedural court system for the minors? How would the rights of juveniles be covered in the criminal system? How were judges treating juvenile offenders and victims?

An Expert observed that 25 years was a long time to obtain citizenship. What was done to check that applicants lived exclusively in San Marino, and what did that mean? Was dual nationality allowed?

Replies by the Delegation

The delegation explained that the San Marino Criminal Code prohibited abortion, but noted that the system ensured the freedom of women to choose whether or not to abort pregnancy. In San Marino, the Catholic religion was extremely strong and abortion was considered as ending life. The authorities were promoting steps to change the public opinion on that issue in order to prevent women from going elsewhere to perform abortion. However, it was important to ensure that laws were made by consensus rather than by imposition.

As for the question on the competences of the Authority for Equal Opportunities in the prevention of violence against women, the delegation said that there were specific programmes for the provision of services to victims of violence.

There were a series of initiatives to combat gender stereotypes in schools already. The State in fact prevented the broadcasting of certain stereotypical images and programmes. A series of conferences were held to prevent gender-based violence and establish a common language regarding the issue, since knowledge and people’s understanding of violence varied greatly.

The delegation explained that the issue of terrorism was practically unknown to San Marino. A decade earlier, in response to a demand from various international organizations, a discussion had been held on potential danger of financing of terrorism through the banking sector in San Marino. Therefore, the Government had decided to adopt legislation on combating international terrorism. One of the instruments adopted involved wire-tapping. Any such instrument had to comply with the constitutional standards. Any counter-terrorism measure also had to be subject to those standards. The right to confidentiality of communications and the right to privacy was also applied to electronic communications. Those rights could be limited only under exceptional circumstances, and wire-tapping was used only when serious threat was detected and with a court warrant.

As for the public participation for women, the delegation said that electoral provisions purported that when two candidates received the same number of votes, the female candidate would win. Legislature thus promoted female involvement in political life.

Responding to the question on the decriminalization of defamation, it was necessary to take into account that the provision of defamation protected the right to privacy and honour. The right to privacy and honour enjoyed the same level of protection as the right to freedom of opinion and expression. Defamation was assessed on the case-by-case basis, and San Marino’s jurisprudence provided guarantees for the future application of similar cases. In light of the legal culture of San Marino, it was questionable whether it was timely to decriminalize defamation. The delegation noted that it was not clear what would be achieved by the decriminalization of defamation.

As for juvenile justice and special provisions for minors, San Marino did not have those provisions because the specific court for minors did not exist. Due to the lack of resources, San Marino could not devote a separate court for juvenile justice. Nevertheless, minors received protection catered to their specific needs. The age of criminal liability had been raised from 12 to 14. When a minor was brought to court, a judge could reduce the sentence, depending on the severity of the offence. When a minor was over 14, following a bio-psychic assessment, a judge would determine a sentence. Law stipulated that the court could decide to hold hearings in a protected manner so that the minor could appear at the hearing behind a barrier. Law also stipulated that minors would be guaranteed the right to confidentiality.

Regarding the law on the minimum age of 16 for military conscription, the delegation explained that was applied only under exceptional circumstances. Recently, a working party had been created to examine the law on the military. The group had been tasked to align the present law to various requests made by various international bodies.

The delegation reminded that the recent law of 2012 had shortened the period for obtaining citizenship by foreign residents from 30 to 25 years. The Government granted special provisions for those who were born on the territory of San Marino in order to obtain citizenship. Exceptions were also introduced so that some foreign citizen residents could make a request for citizenship even before 25 years had passed.

With regard to corporal punishment, in 2014 San Marino had adopted a law that aligned the recommendations of the Universal Periodic Review with the national law. It stipulated that minors could not be subjected to corporal punishment or any other actions that could damage minors physically or psychologically. The principle of punishment was therefore introduced in law. Criminal protection was envisaged for more serious cases. The aim was to introduce a prohibition in civil law and criminal responsibility in criminal law.

Regarding participation in public life, the exclusion from voting of persons with mental disorders was aimed to prevent potential manipulation in election. The amendment to the Electoral Law gave the possibility of vote to incapacitated people.

Follow-up Questions by Experts

An Expert revisited the lack of a comprehensive anti-discrimination legislation in San Marino. Was San Marino considering adopting such a framework in the future?

Another Expert inquired about a draft law on naturalization seeking to reduce the lengthy periods of time to obtain citizenship. Could the delegation send the text of the draft law to the Committee?

It was noted that the introduction of a special court for minors was not a purpose in itself. What was necessary was to establish a comprehensive legal framework to protect boys and girls. What was done to ensure a paradigm shift to ensure broader protection of minors? The Expert reiterated concern about the bio-psychic assessment of minors and noted that it was bad practice.

As for the application of the Covenant in national legislation, an Expert asked about more recent examples. The Expert reminded that several appeals had been brought before the European Court of Human Rights regarding San Marino, but that there was no communication received on them. Was something being done to promote awareness of the Covenant among legal professionals in San Marino?

Turning to abortion, an Expert acknowledged that national consensus on relevant legislation was important. However, consensus was not a static condition, but an evolving category. A certain amount of will on the part of the Government was necessary to introduce laws and create a new social consensus. He referred to anti-death penalty provisions across Europe that went against the public opinion. Education went hand in hand with raising of public awareness about certain issues.

The Expert sought clarification on whether the Government considered that the only measures that would be intrusive in terms of private life would be wire-tapping.

Regarding decriminalization of defamation, the Expert noted that full decriminalization was not what the Committee had demanded. However, the Committee did find that prison sentences for defamation were excessive. Reducing sentences to fines would be desirable. In addition, the concept of honour was very subjective. Value attached to honour and reputation did not outweigh the value of the freedom of expression and opinion.

Another Expert noted that he was not always in agreement with the Committee on the issue of defamation. Defamation could be used as a tool to repress certain investigative efforts. The Committee could re-think its position on defamation. The same went for abortion. The right to life was an absolute right that could not be re-evaluated.

Anr Expert inquired about the new law that regulated the work of journalists and imposed fines on media.

Replies by the Delegation

With respect to the general anti-discrimination framework, the delegation explained that anti-discrimination was already enshrined in San Marino through provisions for political and civil rights. Although there was no specific provision, legal interpreters were expected to attach importance to anti-discriminatory elements of the existing legislation. The Government would look to apply such provisions in the broadest term possible. Limited resources prevented the Government to create new authorities devoted to anti-discrimination.

The draw law on naturalization was under review and could undergo amendments. Political discussions based on the first reading were already under way. The text was published online, just like all other draft laws.

Responding to the comments on a comprehensive legal framework for the protection of minors, detailed provisions existed, albeit not in a single document. In the Penal Code many provisions were in place to ensure that minors enjoyed protection, such as modification of sentences, treatment in psychiatric hospitals, care centers for minors who needed to be hospitalized, duration of security measures, trafficking and enslavement of minors and many other issues. At the moment, the status of minors was fully protected both from the penal and civic point of view. The criminal liability of minors was determined on a case-by-case basis. Judges determined the maturity of juvenile offenders. For that purpose there needed to be a bio-psychic assessment.

As for the application of case law for the provisions of the Covenant, it was important to understand that given the size of San Marino, there was not much scope for the application.

Turning to the comments on the consensus on abortion, the delegation clarified that it did not have in mind electoral consensus, but rather adhering to certain cultural values and ethics. In cases when the authorities had to introduce laws that went against the dominant ethics of citizens, they had to be careful. That was the case with abortion in a predominantly Catholic population. Were life and health values that could be invoked? Abortion was considered as termination of life. A balance needed to be made when deciding on the introduction of certain laws.

It was remarked that honour was not a subjective kind of value. Honour was established through the social representation of individuals and as such it constituted an objective value. It would be difficult to restore honour without an adequate legal measure. People had to be protected from the abuse of freedom of expression and opinion. Journalists sometimes used sensational headlines to sell newspapers. Accordingly, there should be provisions against gossip.

Regarding the Experts’ comments on the right to privacy and wire-tapping, the delegation explained that the wire-tapping measures were not available to police forces or bodies that monitored banking and financial activities, nor the magistrates. They could not freely use such measures. Such requests had to be authorized by an independent judicial body or judge, and that body of judge would then be in charge of the wire-tapping and would monitor the whole process. The body or the judge had to be independent of the ongoing investigation. One of the practical problems could occur when an Italian telephone operator was part of the investigation.

As for the application of the Covenant in San Marino’s case law, the delegation informed that there had been one in 2010.

Responding to the question on the visit of the European Court of Human Rights, the delegation explained that the Government of San Marino would consider its judgments and recommendations.

Concluding remarks

MARCELLO BECCARI, Permanent Representative of San Marino to the United Nations Office at Geneva, thanked the Committee Experts for the open and fruitful dialogue. San Marino always carefully considered the Committee’s recommendations and the Government was aware of the implications that the limited resources posed on the process of implementation.

ANJA SEIBERT-FOHR, Committee Expert and Country Rapporteur for San Marino, thanked the delegation for the thorough answers it had provided. She acknowledged the State Party’s commitment to engage in the process, despite its small size. She appreciated a number of steps taken to comply with the international human rights standards. However, San Marino could give a more active reading to some international human rights instruments in order to build up its legislative system. There was room for improvement in the practical application of laws, namely in the compatibility of the Criminal Code with the Covenant, provisions for the freedom of expression and opinion, especially with respect to defamation. The State Party could also give a more adequate response on the issue of femicide. Ms. Seibert-Fohr welcomed the delegation’s willingness to amend laws, notably to consider the introduction of gender identity as a basis for discrimination, and welcomed readiness to consider the judgments of the European Court of Human Rights.

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