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22 March 2000
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22 March 2000
Afternoon
The Human Rights Committee this afternoon expressed its dissatisfaction with responses provided by Mongolia to the questions it posed. The 18-member expert Committee had asked about that country’s compliance with the International Covenant on Civil and Political Rights.
Introducing his country’s fourth periodic report, Dash Ganbold, Mongolia’s Minister for Justice, said that the country had, during the period under review, entered a new phase. For the first time in its history, a democratic coalition had formed the Government. Its priorities included strengthening and promoting economic and legal reform. Mongolia’s legislation was in full consonance with the Covenant and the Government was creating the social, economic and legal guarantees to ensure fundamental rights and freedoms, as well as preventing violations of those rights.
Even though this was Mongolia’s fourth report, it was really the first after a transformation process, an expert noted. That explained the Committee’s interest in it and the high expectations. However, another expert said the report provided little information on the situation of human rights in Mongolia, and requests for data had not been answered. The report said nothing on the issue of violence against women, she remarked. She asked about prevailing laws, their enforcement and their effect. There was also no information on the underlying causes of violence, she added, and asked if that was because traditional attitudes vis-à-vis men and women still prevailed.
Questions on unsafe abortions and high female mortality had still not been answered, according to the experts, and increasing numbers of women were in poverty or heads of families where low levels of income hindered them from carrying out their responsibilities adequately. The level of participation of women in public life remained low.
Attention was drawn to the fact that the delegation could not cite a single case in which a person invoked a right under the Covenant, and experts asked if that could be because the Covenant and the Optional Protocol, which Mongolia had ratified, were not known by individuals or the legal community. The abolition of the death penalty and the rights of aliens and displaced persons were among the other concerns raised by the Committee.
The Committee will meet again at 10 a.m. tomorrow to hear the delegation’s replies to questions posed this afternoon.
Committee Work Programme
The Human Rights Committee met this afternoon to begin its consideration of the fourth periodic report of Mongolia on its compliance with the International Covenant on Civil and Political Rights (document CCPR/C/103/Add.7). Under article 40 of the Covenant, all States parties agree to submit periodic reports on the implementation of the agreement.
According to the report, having undergone radical political and socio- economic transformation since 1990, Mongolia has chosen to pursue the path of democracy and a market economy. The new Constitution, adopted in January 1992, introduced democratic parliamentary governance to the country and established legal safeguards for civil liberties, equal rights and other rights, such as the right to education. A democratic multi-party system has emerged.
Mongolia, according to the report, is pursuing a State policy aimed at supporting people’s national liberation movements and the right to self- determination. The Constitution determines that all people lawfully residing within the country are equal before the law. In addition, ensuring the equal rights of men and women to the enjoyment of all human rights and freedoms constitutes a key element of State policy. The Government has been pursuing a specific policy of promoting women to decision-making positions, which has had some positive results. Since the beginning of the 1990s, a process of radical reform of the legislature, the executive branch and the judiciary has been under way.
With regard to articles 4 and 5, the Mongolian Constitution makes it the President’s prerogative to declare a state of emergency or martial law, when extraordinary circumstances arise at a time when the State Great Hural (Parliament) is in recess. Further, in the case of a state of emergency or martial law, human rights and freedoms as defined by the Constitution and other laws are subject to limitation only by a law. To establish a legal basis for implementing this constitutional provision, the Law on a State of Emergency was adopted by the State Great Hural in November 1995. Article 18 of that Law provides that the Law shall not affect the rights to life and freedom of thought, conscience and religion, nor the right to be free from torture, inhuman and cruel treatment, as enshrined in the Constitution.
Concerning the right to life, the report states that the number of crimes liable to the death penalty has decreased from nine to five -- terrorist acts committed for political purposes; terrorist acts against representatives of a foreign State for political purposes; sabotage; premeditated murder committed with aggravating circumstances; and rape with aggravating circumstances. According to the Criminal Code, persons who have not reached the age of 18 before they commit a crime, all women and men who are over 60 cannot be condemned to death.
Regarding article 8, prohibiting slavery and forced labour, the report states that slavery, the slave trade and institutions and practices similar to slavery do not exist in Mongolia. Article 16 of the Constitution states that - No one shall be unlawfully forced to work- .
In the context of article 10, on the right of detainees to be treated with humanity and dignity, the Law on Prisons and Serving Imprisonment was enacted in 1993. Elaboration of that law was needed to perfect the legal basis for the treatment of prisoners according to the latest amendments to the Criminal Code and ongoing reform of the judicial system.
The Constitution proclaims the right to freedom of movement and residence within the country, to travel and reside abroad and to return home, continues the report. Any decision on the expulsion of a foreign national shall be rendered by the Council for Foreign Citizens’ Matters, headed by the Minister of Justice, and executed by the police. Article 14 of the Constitution enshrines the principle of equality before the law and the courts of all persons lawfully residing within Mongolia.
Since previously there was no special law connected with personal secrecy, the adoption of the Law on Personal Secrecy by the State Great Hural in 1995 was of crucial importance for safeguarding the human rights and freedoms proclaimed by the Constitution. The significance of determining types of personal secrecy, and grounds and procedure for making things public, in law is twofold. On the one hand, it establishes that information pertaining to human health, property, correspondence and family is secret. On the other hand, it creates a legal basis for revealing such information in cases when this is unavoidable for reasons of national security, national defence, public health and legal interests. That law also establishes the right of citizens to sue anyone who divulges their personal secrets.
The Law on the Relationship between the State and the Church enacted in 1993 secured freedom of religion and belief, declared in the Constitution, and provided a regulatory framework for the relationship. While the dominant position of the Buddhism in Mongolia is acknowledged out of respect for the people’s unity, historical traditions and culture, this will not impede citizens from practicing other religions.
As provided for in the Constitution, Mongolian citizens enjoy freedom of expression, publication and peaceful assembly. The procedure for organizing demonstrations and assemblies was established by a law, promulgated in 1994, which also contains provisions for ensuring public order and security during such events. Also, citizens have the right to freedom of association in political parties and other voluntary organizations on the basis of social and personal interests and opinions. Further, citizens have the right to freedom of association in trade unions.
The population of Mongolia is 2.2 million, of whom 47 per cent are children under 18, the report states. Since Mongolia ratified the Convention on the Rights of the Child in 1990, children’s interests have been given significant weight in State policy. To fulfil its national obligations under that Convention, a number of provisions relating to children have been duly incorporated into new laws and regulations. A National Programme of Activities on Developing a Child, to be carried out until the year 2000, is now under way. Within the Programme’s framework, 12 projects focusing on health, education and social issues relating to children are currently being executed in collaboration with the United Nations Children's Fund (UNICEF).
The report goes on to say that pursuant to the Labour Code, the minimum age for admitting children to work is 16. However, a child may start working at the age of 15 with the consent of his parents, provided such work will not impair his health, normal physical development and morale. Moreover, the same article provides that children who have attained the age of 14 may work with the permission of their parents, and under their supervision, with a view to getting practice and professional orientation.
Introduction of Country Report
DASH GANBOLD, Minister for Justice of Mongolia, introduced his country’s fourth periodic report. During the period under review, Mongolia had entered a new phase. For the first time in the country’s history, a democratic coalition formed the Government and the former Communist party became the minority group in the Parliament. In addition to strengthening and promoting economic reform, improving the legal foundation was among the Government’s priorities.
The report contained information on the articles of the Covenant that had been implemented since 1992, he said. The Government had taken into account the Committee’s recommendations on its last report. In 1995, it enacted legislation regarding emergency situations, which banned all discrimination during periods of emergency.
The Government was today, for the first time, making public statistical data concerning the death penalty, he said. In 1999, 24 death sentences were handed out. However, only 11 were carried out and the rest were either rescinded or pardoned by presidential decree.
Turning to the registration of political parties, he said that Mongolian law prohibited the establishment of parties that promoted fascism or political strife. The State Great Hural had enacted several laws to strengthen human rights. Among them were laws on implementing decisions regarding detention and arrest of suspected persons, work and family. It also ratified various conventions during the reporting period, such as the Bern Convention on Copyright and the Convention on Cooperation for the Protection of Children.
To ensure the equality of men and women, it adopted laws on family and work. Among other things, the law concerning family had clarified provisions concerning the adoption of Mongolian children by foreign nationals. It also reiterated the equal rights of both parties in a marriage. An important innovation in the law on work was the reduction of working hours from 46 to 40 per week, which made it possible for workers to tend to their education and family welfare.
Mongolian law prohibited any legislation that attempted to limit the freedom of the press, he stated. The State was also prohibited from possessing mass media. According to statistics, there were over 940 registered newspapers and 195 magazines. There were currently 22 registered political parties, none of which propagated fascism. The Parliament had also enacted a law on non-state organizations, which guaranteed the right of people to establish associations.
The Government was grateful to those countries and international organizations which supported the democratic transition in Mongolia, he said. In 1998, the Mongolian Prime Minister had signed a memorandum with the United Nations High Commissioner for Human Rights on mutual cooperation for ensuring human rights.
Replying to a question on the direct application of the Covenant in domestic law, he said that Mongolia’s legislation was in full consonance with the instrument. There were no situations where litigants had invoked the Covenant to organs of the court, although there were several such appeals from citizens to Mongolia’s Constitutional Court.
Responding to a question on available remedies for people who had established the violation of their human rights, he said that according to his country’s Constitution, the Government was responsible for creating the social, economic and legal guarantees that would ensure that there were fundamental rights and freedoms. They were also responsible for preventing violations of those rights. Restoring violated human rights was the main job of the courts. The Constitutional Court of Mongolia supervised implementation of the Constitution and made judgments on its provisions and violations. The Mongolian Parliament had fully rehabilitated those citizens who were illegally condemned and sentenced during the Communist era. Those people and their families now had the right to a pension from the State budget.
When the issue of the establishment of a national human rights council was raised, he said the State Great Hural had asked the Human Rights Committee to help in establishing such an administration. The Minister for Justice had also advocated a draft law on an Ombudsman. Starting in the 1990s, Mongolia had witnessed social and political changes. During the transitional period the Government had to work in extremely difficult situations. Nevertheless, its main concern was protection of basic human rights.
Commenting on measures taken to ensure that women enjoyed equality in participation in the workforce, education and public life, he said that in May 1990 a new law on work was enacted, which banned any discrimination on the basis of gender, political affiliation or nationality. Now, if someone was asked about such matters, they did not have to answer.
Unfortunately the number of crimes within the family was rising, he said. The Government was therefore paying attention to measures to prevent crimes that might impinge on women’s human rights. In addition, in the major cities there were now centres against violence that enjoyed public support. The Constitution of Mongolia provided for the right of women to participate in political, social and public life. Violence against women, or the threat of it, was punishable under criminal law. The Courts also restored the rights of citizens if they were violated.
He said the new law on emergency situations, martial law and the law on the state of war provided only for certain measures to be taken in specific situations. Those measures did not apply to citizens’ rights, because they only dealt with states of emergency.
Responding to a question on the death penalty, he said that punishment was applied for certain crimes specified in the criminal code. The death penalty could be used in cases of murder, political murder, sabotage, murder of foreign representatives and rape of underage children. Mongolia, however, had acceded to major international covenants on human rights and for that reason some members of Parliament were now advocating complete abolition of the death penalty. Currently, the country was in no position to do away with it. The penalty was not used against women, men over 60 or children who were underage. Also, under the law, the President could commute a death sentence to one of life imprisonment.
Regarding pre-trial detention, he said that every detainee had the right to be fed one hot meal and two other meals every day. They were required to receive no less than 2,200 calories per day. Children, pregnant women and detainees in hospitals had the right to more meals. There were independent organizations that monitored the situation regarding pre-trial detentions. In addition, according to article 7 of the new law, all detention-related expenses must be funded by the central or local budget. Presently, there were 6,450 detainees or prisoners. In 1995, 17 people died while under detention.
According to the law, aliens could be expelled by the Department of Police for several reasons, such as the expiry of their visa, he said. Since 1995, 63 foreign citizens had been expelled from Mongolia. Such decisions could be appealed through the courts.
Every person, he stated, had the right to file complaints with the court concerning protection of their rights and compensation. According to the Constitution, only the courts had the right to exercise judicial powers. The composition of the general board dealing with foreigners included the Minister of Justice, as well as the chiefs of the departments of education, statistics, taxation, intelligence, prosecution and police.
Comments and Questions from Experts
An expert, who had visited Mongolia in 1992 to assist in formulating the country’s bill of rights and other provisions of the Constitution, expressed his disappointment with the answers provided to written questions. They were unsatisfactory and did not deal with many areas.
Concerning Covenant rights, he drew attention to the fact that article 10 of the Mongolian Constitution made the Covenant part of domestic law. Had Covenant rights been referred to in court judgments or relied upon by citizens challenging State legislation or decisions by State bodies? If there should be a conflict between Covenant rights and the Constitution, which would prevail? There was not a complete overlapping between the two sets of rights.
With regard to article 3 of the Covenant (equality between men and women), it seemed that there was a difference in the retirement age for men and women, 60 and 55 respectively, he continued. Also, instances of domestic and sexual violence against women had been reported by non-governmental organizations, as well as the lack of adequate assistance for the victims. Underage girls were abused and there was no law against domestic violence. In addition, cases of marital rape were on the increase.
Further, on average, there were 850 maternal deaths every year due to unsafe abortions, he added. There were also 262 abortions for every 1,000 live births due to a lack of family planning and abortion services. In addition, the labour law provided a list of occupations that women were prohibited from taking up, including mechanical engineering, cattle slaughtering and working as drivers. Pregnant women or women rearing children below the age of eight were prohibited from engaging in overtime or taking business trips.
He said that in the private sector, that a women not get pregnant was a main condition of employment. If they did get pregnant, they were either fired or their salary was reduced. Only 10 per cent of members of Parliament were women, and there were no women ministers or cabinet members.
Turning to article 19 of the Constitution, which provided for the declaration of an emergency, he said that the non-derogable rights set out in that article did not include those established in the Covenant. He also asked whether the death penalty had existed prior to the transition to democracy, and whether any thought had been given to removing it.
Another expert stated that answers given by the delegation were absolutely unsatisfactory. He noted that there was no contribution from non-governmental organizations to the report. In line with its commitment to its international obligation, Mongolia had ratified the Optional Protocol to the Covenant. However, until now, not a single complaint communication had been received. It was part of the Government’s obligation to disseminate information on the procedure, which was available to its citizens under the Protocol. He asked if the Government had any plans to make information available.
Since there was no information provided on the de facto situation regarding sex discrimination, an effective evaluation of legislative measures enacted thus far could not be undertaken, he remarked. In addition, more information was required regarding the independence of the judiciary and the issue of corruption.
Another expert said that he had hoped to hear more from the delegation than what was heard today. The delegation had a good story to tell concerning progress made since 1990 and the disappointment expressed by experts was perhaps a result of the brevity of the responses they had been given. He asked how remedies were enforced. The Committee was told that there were bodies that implemented court decisions, but not what they were, how they worked or how effective they were.
With regard to detention, he was glad to hear that the Prosecutor General had access to detainees at any time. However, the Committee needed recent statistics on the length of pre-trial detention. There was some evidence that such detentions were lengthy and accompanied by a lack of food, and of other infringements of Covenant rights. Pre-trial detention was the stage at which there was the most danger of torture, degrading or inhumane treatment and other abuses.
He noted that changes had taken place in the civil and criminal codes. However, there was only one short paragraph on that subject in the report. He was sure there was more to tell. For example, under the Constitution, there were occasions where the Supreme Court was the court of first instance. In such cases, he asked how it was possible to appeal its decisions. If there was no appeal, this was an infringement of Covenant article 15, paragraph 5.
He was concerned that the salaries of the judiciary might be very low -- a situation which was almost certain to lead to bribery and corruption -– and asked if their salaries were being reviewed. A decent salary was one of the most important provisions to ensure an effective and independent judiciary.
An expert said replies to the list of issues raised by the Committee were much too brief. That made judgement on any progress very difficult. The purpose of reviewing a State party report was to discern the human rights situation in a country. If problems existed, then collaboration between the State party and the Committee could produce solutions.
Turning to the state of emergency issue, the same expert said there was a gap between Mongolia’s constitutional provisions and the Covenant provisions in the area of non-derogable rights.
It was noted that the death penalty was not applied to persons under the age of 18, women, and men over 60. The expert asked if that distinction was an attempt to justify the penalty, and, if that was the case, what then were the grounds for the distinctions.
The expert also wanted to know what procedure determined an illegal action and how damages and compensation should be settled. He asked whether free legal aid was available at the point of arrest or at the stage of court proceedings.
It was also noted that the delegation had mentioned the feeding of prisoners and the calorific value of the food, he said. While that was welcome, it was not the whole picture. The conditions of detention needed to be further elaborated.
The same expert drew attention to the fact that passports were issued by the police. He asked whether that police department was under the supervision of the Ministry of Justice or the Ministry of the Interior, and why that activity was under the jurisdiction of the police and not the foreign ministry, as it was elsewhere.
Another expert said Mongolia’s responses to issues were incomplete. In the new Constitution of Mongolia, the rights of the Covenant were partly incorporated. Part of the Covenant, however, was reflected in the Constitution and another part was in legislation. The instrument was therefore incorporated at two different levels. What would happen if there was a conflict between domestic law and the Covenant, she asked
She also wanted to know the amount of time a person could be held by the police, and how article 9, that stated that anyone deprived of liberty should go before a court immediately, had been implemented. Turning to the right to a counsel, she requested clarification on when such counsel was made available. She asked if it was when the detainee was in the hands of police or at trial.
Another expert said that in the report there was great emphasis on laws but very little on practice. A reference was made to the establishment of an Ombudsman’s office. More information was needed on the jurisdiction and powers of that office. It needed to be emphasized as well that an Ombudsman did not enforce rights. He or she just made recommendations. Therefore, there was a need for clarification on enforcement and implementation.
That same expert noted that the report contained very little by way of statistical information that would enable the Committee to make any judgements on the situation of women in Mongolia. He asked whether any agency existed, or was foreseen, that had responsibility for women’s rights. He also asked if there was a general law on discrimination. Turning to prison conditions, which were known not to be good, he again stressed the need for more information.
Yet another expert said that the report provided little information on the situation of human rights in Mongolia. Requests for data had not been met. The report said nothing on the issue of violence against women. She asked about existing laws, their enforcement and their effect. There was also no information on the underlying causes of violence, and she wanted to know if that was because traditional attitudes vis-à-vis men and women still prevailed.
The same expert wanted to know whether there been a single prosecution of traffickers and procurers in order to protect women from that kind of abuse. Questions on unsafe abortions and high female mortality had still not been answered. There were also increasing numbers of women in poverty and as heads of families where low levels of income hindered them from carrying out their responsibilities adequately. The level of participation of women in public life also remained low.
An expert stressed that women’s right to equality had to be the first right to be respected if there was to be compliance with the Covenant. The position of women in Mongolia was well below their potential, and that was totally contrary to the Covenant.
Another expert asked if the right to maternity and childcare leave applied only to women. He asked if that, and the fact that men and women received different levels of pension, would lead to discrimination in the long run in the labour markets. He wanted to know whether there was a plan to introduce an equal age for pensions and equal rights for parental leave.
Noting that a large segment of the population was not subject to the death penalty, the same expert questioned whether there was any justification for retaining the sentence, since it could be applied to only a quarter of the population. The questions to be asked were what social good was retained and could the sentence not be abolished altogether.
Addressing the issue of prisoners, the expert noted that the death rate in prisons due to illness accounted for 2.5 per cent of the prison population annually, or 1 out of every 40 prisoners. Presumably that was not only related to ageing, but also to malnutrition and conditions of detention. A more radical move towards smaller numbers in the prison population could result in better conditions. The expert also asked if steps towards alternative forms of punishment could be taken.
An expert said even though this was Mongolia’s fourth report, it was really the first after a transformation process. That explained the Committee’s interest in it and the high expectations. He also drew attention to the fact that the delegation could not cite a single case in which a person invoked the right of the Covenant, and asked if that could have something to do with the fact that the Covenant and its possibilities were not known by individuals or the legal community.
Echoing concerns about the paucity of information in the report and oral responses, one expert wondered about the current state of the national plan to improve women’s status, which was never put into action due to budget constraints. With regard to rape, he wanted to know whether it was true that the use of physical force had to be proved. He also asked about the situation concerning marital rape, and whether the Government had a policy on trafficking in women.
He requested a breakdown of the numbers of prisoners, both pre-trial and convicted. He sought information on the actual grounds for arrest, and the grounds for holding a person in custody once arrested and charged.
Not only was the report brief, especially in referring to specific articles of the Covenant, noted another expert, but the oral responses were short and sometimes too fast. Regarding implementation of the Covenant and its relationship with the courts, it seemed that the Optional Protocol had not given rise to any initiatives. He asked if the Covenant and Protocol had been officially published, and whether information on them was provided to judges, police and security forces.
He also wanted more information on the system of appointment, the role and the level of accessibility to people of the Ombudsman.
Turning to the death penalty, he said it was unfortunate that 11 people had been executed last year. He asked how Mongolia would finally be able to abolish the death penalty. He also requested further information on acts of torture and on the expelling of foreigners.
Another expert wondered what the laws on the regulation of religion were and how they conformed with the provisions of the Covenant.
It was also stated that Mongolia did not have any laws against domestic violence, which he found difficult to believe, and he asked what that meant. He asked if it meant husbands and wives could batter each other without the police being called to intervene.
In addition, he asked what the rights of aliens under the Constitution were.
* *** *
Afternoon
The Human Rights Committee this afternoon expressed its dissatisfaction with responses provided by Mongolia to the questions it posed. The 18-member expert Committee had asked about that country’s compliance with the International Covenant on Civil and Political Rights.
Introducing his country’s fourth periodic report, Dash Ganbold, Mongolia’s Minister for Justice, said that the country had, during the period under review, entered a new phase. For the first time in its history, a democratic coalition had formed the Government. Its priorities included strengthening and promoting economic and legal reform. Mongolia’s legislation was in full consonance with the Covenant and the Government was creating the social, economic and legal guarantees to ensure fundamental rights and freedoms, as well as preventing violations of those rights.
Even though this was Mongolia’s fourth report, it was really the first after a transformation process, an expert noted. That explained the Committee’s interest in it and the high expectations. However, another expert said the report provided little information on the situation of human rights in Mongolia, and requests for data had not been answered. The report said nothing on the issue of violence against women, she remarked. She asked about prevailing laws, their enforcement and their effect. There was also no information on the underlying causes of violence, she added, and asked if that was because traditional attitudes vis-à-vis men and women still prevailed.
Questions on unsafe abortions and high female mortality had still not been answered, according to the experts, and increasing numbers of women were in poverty or heads of families where low levels of income hindered them from carrying out their responsibilities adequately. The level of participation of women in public life remained low.
Attention was drawn to the fact that the delegation could not cite a single case in which a person invoked a right under the Covenant, and experts asked if that could be because the Covenant and the Optional Protocol, which Mongolia had ratified, were not known by individuals or the legal community. The abolition of the death penalty and the rights of aliens and displaced persons were among the other concerns raised by the Committee.
The Committee will meet again at 10 a.m. tomorrow to hear the delegation’s replies to questions posed this afternoon.
Committee Work Programme
The Human Rights Committee met this afternoon to begin its consideration of the fourth periodic report of Mongolia on its compliance with the International Covenant on Civil and Political Rights (document CCPR/C/103/Add.7). Under article 40 of the Covenant, all States parties agree to submit periodic reports on the implementation of the agreement.
According to the report, having undergone radical political and socio- economic transformation since 1990, Mongolia has chosen to pursue the path of democracy and a market economy. The new Constitution, adopted in January 1992, introduced democratic parliamentary governance to the country and established legal safeguards for civil liberties, equal rights and other rights, such as the right to education. A democratic multi-party system has emerged.
Mongolia, according to the report, is pursuing a State policy aimed at supporting people’s national liberation movements and the right to self- determination. The Constitution determines that all people lawfully residing within the country are equal before the law. In addition, ensuring the equal rights of men and women to the enjoyment of all human rights and freedoms constitutes a key element of State policy. The Government has been pursuing a specific policy of promoting women to decision-making positions, which has had some positive results. Since the beginning of the 1990s, a process of radical reform of the legislature, the executive branch and the judiciary has been under way.
With regard to articles 4 and 5, the Mongolian Constitution makes it the President’s prerogative to declare a state of emergency or martial law, when extraordinary circumstances arise at a time when the State Great Hural (Parliament) is in recess. Further, in the case of a state of emergency or martial law, human rights and freedoms as defined by the Constitution and other laws are subject to limitation only by a law. To establish a legal basis for implementing this constitutional provision, the Law on a State of Emergency was adopted by the State Great Hural in November 1995. Article 18 of that Law provides that the Law shall not affect the rights to life and freedom of thought, conscience and religion, nor the right to be free from torture, inhuman and cruel treatment, as enshrined in the Constitution.
Concerning the right to life, the report states that the number of crimes liable to the death penalty has decreased from nine to five -- terrorist acts committed for political purposes; terrorist acts against representatives of a foreign State for political purposes; sabotage; premeditated murder committed with aggravating circumstances; and rape with aggravating circumstances. According to the Criminal Code, persons who have not reached the age of 18 before they commit a crime, all women and men who are over 60 cannot be condemned to death.
Regarding article 8, prohibiting slavery and forced labour, the report states that slavery, the slave trade and institutions and practices similar to slavery do not exist in Mongolia. Article 16 of the Constitution states that - No one shall be unlawfully forced to work- .
In the context of article 10, on the right of detainees to be treated with humanity and dignity, the Law on Prisons and Serving Imprisonment was enacted in 1993. Elaboration of that law was needed to perfect the legal basis for the treatment of prisoners according to the latest amendments to the Criminal Code and ongoing reform of the judicial system.
The Constitution proclaims the right to freedom of movement and residence within the country, to travel and reside abroad and to return home, continues the report. Any decision on the expulsion of a foreign national shall be rendered by the Council for Foreign Citizens’ Matters, headed by the Minister of Justice, and executed by the police. Article 14 of the Constitution enshrines the principle of equality before the law and the courts of all persons lawfully residing within Mongolia.
Since previously there was no special law connected with personal secrecy, the adoption of the Law on Personal Secrecy by the State Great Hural in 1995 was of crucial importance for safeguarding the human rights and freedoms proclaimed by the Constitution. The significance of determining types of personal secrecy, and grounds and procedure for making things public, in law is twofold. On the one hand, it establishes that information pertaining to human health, property, correspondence and family is secret. On the other hand, it creates a legal basis for revealing such information in cases when this is unavoidable for reasons of national security, national defence, public health and legal interests. That law also establishes the right of citizens to sue anyone who divulges their personal secrets.
The Law on the Relationship between the State and the Church enacted in 1993 secured freedom of religion and belief, declared in the Constitution, and provided a regulatory framework for the relationship. While the dominant position of the Buddhism in Mongolia is acknowledged out of respect for the people’s unity, historical traditions and culture, this will not impede citizens from practicing other religions.
As provided for in the Constitution, Mongolian citizens enjoy freedom of expression, publication and peaceful assembly. The procedure for organizing demonstrations and assemblies was established by a law, promulgated in 1994, which also contains provisions for ensuring public order and security during such events. Also, citizens have the right to freedom of association in political parties and other voluntary organizations on the basis of social and personal interests and opinions. Further, citizens have the right to freedom of association in trade unions.
The population of Mongolia is 2.2 million, of whom 47 per cent are children under 18, the report states. Since Mongolia ratified the Convention on the Rights of the Child in 1990, children’s interests have been given significant weight in State policy. To fulfil its national obligations under that Convention, a number of provisions relating to children have been duly incorporated into new laws and regulations. A National Programme of Activities on Developing a Child, to be carried out until the year 2000, is now under way. Within the Programme’s framework, 12 projects focusing on health, education and social issues relating to children are currently being executed in collaboration with the United Nations Children's Fund (UNICEF).
The report goes on to say that pursuant to the Labour Code, the minimum age for admitting children to work is 16. However, a child may start working at the age of 15 with the consent of his parents, provided such work will not impair his health, normal physical development and morale. Moreover, the same article provides that children who have attained the age of 14 may work with the permission of their parents, and under their supervision, with a view to getting practice and professional orientation.
Introduction of Country Report
DASH GANBOLD, Minister for Justice of Mongolia, introduced his country’s fourth periodic report. During the period under review, Mongolia had entered a new phase. For the first time in the country’s history, a democratic coalition formed the Government and the former Communist party became the minority group in the Parliament. In addition to strengthening and promoting economic reform, improving the legal foundation was among the Government’s priorities.
The report contained information on the articles of the Covenant that had been implemented since 1992, he said. The Government had taken into account the Committee’s recommendations on its last report. In 1995, it enacted legislation regarding emergency situations, which banned all discrimination during periods of emergency.
The Government was today, for the first time, making public statistical data concerning the death penalty, he said. In 1999, 24 death sentences were handed out. However, only 11 were carried out and the rest were either rescinded or pardoned by presidential decree.
Turning to the registration of political parties, he said that Mongolian law prohibited the establishment of parties that promoted fascism or political strife. The State Great Hural had enacted several laws to strengthen human rights. Among them were laws on implementing decisions regarding detention and arrest of suspected persons, work and family. It also ratified various conventions during the reporting period, such as the Bern Convention on Copyright and the Convention on Cooperation for the Protection of Children.
To ensure the equality of men and women, it adopted laws on family and work. Among other things, the law concerning family had clarified provisions concerning the adoption of Mongolian children by foreign nationals. It also reiterated the equal rights of both parties in a marriage. An important innovation in the law on work was the reduction of working hours from 46 to 40 per week, which made it possible for workers to tend to their education and family welfare.
Mongolian law prohibited any legislation that attempted to limit the freedom of the press, he stated. The State was also prohibited from possessing mass media. According to statistics, there were over 940 registered newspapers and 195 magazines. There were currently 22 registered political parties, none of which propagated fascism. The Parliament had also enacted a law on non-state organizations, which guaranteed the right of people to establish associations.
The Government was grateful to those countries and international organizations which supported the democratic transition in Mongolia, he said. In 1998, the Mongolian Prime Minister had signed a memorandum with the United Nations High Commissioner for Human Rights on mutual cooperation for ensuring human rights.
Replying to a question on the direct application of the Covenant in domestic law, he said that Mongolia’s legislation was in full consonance with the instrument. There were no situations where litigants had invoked the Covenant to organs of the court, although there were several such appeals from citizens to Mongolia’s Constitutional Court.
Responding to a question on available remedies for people who had established the violation of their human rights, he said that according to his country’s Constitution, the Government was responsible for creating the social, economic and legal guarantees that would ensure that there were fundamental rights and freedoms. They were also responsible for preventing violations of those rights. Restoring violated human rights was the main job of the courts. The Constitutional Court of Mongolia supervised implementation of the Constitution and made judgments on its provisions and violations. The Mongolian Parliament had fully rehabilitated those citizens who were illegally condemned and sentenced during the Communist era. Those people and their families now had the right to a pension from the State budget.
When the issue of the establishment of a national human rights council was raised, he said the State Great Hural had asked the Human Rights Committee to help in establishing such an administration. The Minister for Justice had also advocated a draft law on an Ombudsman. Starting in the 1990s, Mongolia had witnessed social and political changes. During the transitional period the Government had to work in extremely difficult situations. Nevertheless, its main concern was protection of basic human rights.
Commenting on measures taken to ensure that women enjoyed equality in participation in the workforce, education and public life, he said that in May 1990 a new law on work was enacted, which banned any discrimination on the basis of gender, political affiliation or nationality. Now, if someone was asked about such matters, they did not have to answer.
Unfortunately the number of crimes within the family was rising, he said. The Government was therefore paying attention to measures to prevent crimes that might impinge on women’s human rights. In addition, in the major cities there were now centres against violence that enjoyed public support. The Constitution of Mongolia provided for the right of women to participate in political, social and public life. Violence against women, or the threat of it, was punishable under criminal law. The Courts also restored the rights of citizens if they were violated.
He said the new law on emergency situations, martial law and the law on the state of war provided only for certain measures to be taken in specific situations. Those measures did not apply to citizens’ rights, because they only dealt with states of emergency.
Responding to a question on the death penalty, he said that punishment was applied for certain crimes specified in the criminal code. The death penalty could be used in cases of murder, political murder, sabotage, murder of foreign representatives and rape of underage children. Mongolia, however, had acceded to major international covenants on human rights and for that reason some members of Parliament were now advocating complete abolition of the death penalty. Currently, the country was in no position to do away with it. The penalty was not used against women, men over 60 or children who were underage. Also, under the law, the President could commute a death sentence to one of life imprisonment.
Regarding pre-trial detention, he said that every detainee had the right to be fed one hot meal and two other meals every day. They were required to receive no less than 2,200 calories per day. Children, pregnant women and detainees in hospitals had the right to more meals. There were independent organizations that monitored the situation regarding pre-trial detentions. In addition, according to article 7 of the new law, all detention-related expenses must be funded by the central or local budget. Presently, there were 6,450 detainees or prisoners. In 1995, 17 people died while under detention.
According to the law, aliens could be expelled by the Department of Police for several reasons, such as the expiry of their visa, he said. Since 1995, 63 foreign citizens had been expelled from Mongolia. Such decisions could be appealed through the courts.
Every person, he stated, had the right to file complaints with the court concerning protection of their rights and compensation. According to the Constitution, only the courts had the right to exercise judicial powers. The composition of the general board dealing with foreigners included the Minister of Justice, as well as the chiefs of the departments of education, statistics, taxation, intelligence, prosecution and police.
Comments and Questions from Experts
An expert, who had visited Mongolia in 1992 to assist in formulating the country’s bill of rights and other provisions of the Constitution, expressed his disappointment with the answers provided to written questions. They were unsatisfactory and did not deal with many areas.
Concerning Covenant rights, he drew attention to the fact that article 10 of the Mongolian Constitution made the Covenant part of domestic law. Had Covenant rights been referred to in court judgments or relied upon by citizens challenging State legislation or decisions by State bodies? If there should be a conflict between Covenant rights and the Constitution, which would prevail? There was not a complete overlapping between the two sets of rights.
With regard to article 3 of the Covenant (equality between men and women), it seemed that there was a difference in the retirement age for men and women, 60 and 55 respectively, he continued. Also, instances of domestic and sexual violence against women had been reported by non-governmental organizations, as well as the lack of adequate assistance for the victims. Underage girls were abused and there was no law against domestic violence. In addition, cases of marital rape were on the increase.
Further, on average, there were 850 maternal deaths every year due to unsafe abortions, he added. There were also 262 abortions for every 1,000 live births due to a lack of family planning and abortion services. In addition, the labour law provided a list of occupations that women were prohibited from taking up, including mechanical engineering, cattle slaughtering and working as drivers. Pregnant women or women rearing children below the age of eight were prohibited from engaging in overtime or taking business trips.
He said that in the private sector, that a women not get pregnant was a main condition of employment. If they did get pregnant, they were either fired or their salary was reduced. Only 10 per cent of members of Parliament were women, and there were no women ministers or cabinet members.
Turning to article 19 of the Constitution, which provided for the declaration of an emergency, he said that the non-derogable rights set out in that article did not include those established in the Covenant. He also asked whether the death penalty had existed prior to the transition to democracy, and whether any thought had been given to removing it.
Another expert stated that answers given by the delegation were absolutely unsatisfactory. He noted that there was no contribution from non-governmental organizations to the report. In line with its commitment to its international obligation, Mongolia had ratified the Optional Protocol to the Covenant. However, until now, not a single complaint communication had been received. It was part of the Government’s obligation to disseminate information on the procedure, which was available to its citizens under the Protocol. He asked if the Government had any plans to make information available.
Since there was no information provided on the de facto situation regarding sex discrimination, an effective evaluation of legislative measures enacted thus far could not be undertaken, he remarked. In addition, more information was required regarding the independence of the judiciary and the issue of corruption.
Another expert said that he had hoped to hear more from the delegation than what was heard today. The delegation had a good story to tell concerning progress made since 1990 and the disappointment expressed by experts was perhaps a result of the brevity of the responses they had been given. He asked how remedies were enforced. The Committee was told that there were bodies that implemented court decisions, but not what they were, how they worked or how effective they were.
With regard to detention, he was glad to hear that the Prosecutor General had access to detainees at any time. However, the Committee needed recent statistics on the length of pre-trial detention. There was some evidence that such detentions were lengthy and accompanied by a lack of food, and of other infringements of Covenant rights. Pre-trial detention was the stage at which there was the most danger of torture, degrading or inhumane treatment and other abuses.
He noted that changes had taken place in the civil and criminal codes. However, there was only one short paragraph on that subject in the report. He was sure there was more to tell. For example, under the Constitution, there were occasions where the Supreme Court was the court of first instance. In such cases, he asked how it was possible to appeal its decisions. If there was no appeal, this was an infringement of Covenant article 15, paragraph 5.
He was concerned that the salaries of the judiciary might be very low -- a situation which was almost certain to lead to bribery and corruption -– and asked if their salaries were being reviewed. A decent salary was one of the most important provisions to ensure an effective and independent judiciary.
An expert said replies to the list of issues raised by the Committee were much too brief. That made judgement on any progress very difficult. The purpose of reviewing a State party report was to discern the human rights situation in a country. If problems existed, then collaboration between the State party and the Committee could produce solutions.
Turning to the state of emergency issue, the same expert said there was a gap between Mongolia’s constitutional provisions and the Covenant provisions in the area of non-derogable rights.
It was noted that the death penalty was not applied to persons under the age of 18, women, and men over 60. The expert asked if that distinction was an attempt to justify the penalty, and, if that was the case, what then were the grounds for the distinctions.
The expert also wanted to know what procedure determined an illegal action and how damages and compensation should be settled. He asked whether free legal aid was available at the point of arrest or at the stage of court proceedings.
It was also noted that the delegation had mentioned the feeding of prisoners and the calorific value of the food, he said. While that was welcome, it was not the whole picture. The conditions of detention needed to be further elaborated.
The same expert drew attention to the fact that passports were issued by the police. He asked whether that police department was under the supervision of the Ministry of Justice or the Ministry of the Interior, and why that activity was under the jurisdiction of the police and not the foreign ministry, as it was elsewhere.
Another expert said Mongolia’s responses to issues were incomplete. In the new Constitution of Mongolia, the rights of the Covenant were partly incorporated. Part of the Covenant, however, was reflected in the Constitution and another part was in legislation. The instrument was therefore incorporated at two different levels. What would happen if there was a conflict between domestic law and the Covenant, she asked
She also wanted to know the amount of time a person could be held by the police, and how article 9, that stated that anyone deprived of liberty should go before a court immediately, had been implemented. Turning to the right to a counsel, she requested clarification on when such counsel was made available. She asked if it was when the detainee was in the hands of police or at trial.
Another expert said that in the report there was great emphasis on laws but very little on practice. A reference was made to the establishment of an Ombudsman’s office. More information was needed on the jurisdiction and powers of that office. It needed to be emphasized as well that an Ombudsman did not enforce rights. He or she just made recommendations. Therefore, there was a need for clarification on enforcement and implementation.
That same expert noted that the report contained very little by way of statistical information that would enable the Committee to make any judgements on the situation of women in Mongolia. He asked whether any agency existed, or was foreseen, that had responsibility for women’s rights. He also asked if there was a general law on discrimination. Turning to prison conditions, which were known not to be good, he again stressed the need for more information.
Yet another expert said that the report provided little information on the situation of human rights in Mongolia. Requests for data had not been met. The report said nothing on the issue of violence against women. She asked about existing laws, their enforcement and their effect. There was also no information on the underlying causes of violence, and she wanted to know if that was because traditional attitudes vis-à-vis men and women still prevailed.
The same expert wanted to know whether there been a single prosecution of traffickers and procurers in order to protect women from that kind of abuse. Questions on unsafe abortions and high female mortality had still not been answered. There were also increasing numbers of women in poverty and as heads of families where low levels of income hindered them from carrying out their responsibilities adequately. The level of participation of women in public life also remained low.
An expert stressed that women’s right to equality had to be the first right to be respected if there was to be compliance with the Covenant. The position of women in Mongolia was well below their potential, and that was totally contrary to the Covenant.
Another expert asked if the right to maternity and childcare leave applied only to women. He asked if that, and the fact that men and women received different levels of pension, would lead to discrimination in the long run in the labour markets. He wanted to know whether there was a plan to introduce an equal age for pensions and equal rights for parental leave.
Noting that a large segment of the population was not subject to the death penalty, the same expert questioned whether there was any justification for retaining the sentence, since it could be applied to only a quarter of the population. The questions to be asked were what social good was retained and could the sentence not be abolished altogether.
Addressing the issue of prisoners, the expert noted that the death rate in prisons due to illness accounted for 2.5 per cent of the prison population annually, or 1 out of every 40 prisoners. Presumably that was not only related to ageing, but also to malnutrition and conditions of detention. A more radical move towards smaller numbers in the prison population could result in better conditions. The expert also asked if steps towards alternative forms of punishment could be taken.
An expert said even though this was Mongolia’s fourth report, it was really the first after a transformation process. That explained the Committee’s interest in it and the high expectations. He also drew attention to the fact that the delegation could not cite a single case in which a person invoked the right of the Covenant, and asked if that could have something to do with the fact that the Covenant and its possibilities were not known by individuals or the legal community.
Echoing concerns about the paucity of information in the report and oral responses, one expert wondered about the current state of the national plan to improve women’s status, which was never put into action due to budget constraints. With regard to rape, he wanted to know whether it was true that the use of physical force had to be proved. He also asked about the situation concerning marital rape, and whether the Government had a policy on trafficking in women.
He requested a breakdown of the numbers of prisoners, both pre-trial and convicted. He sought information on the actual grounds for arrest, and the grounds for holding a person in custody once arrested and charged.
Not only was the report brief, especially in referring to specific articles of the Covenant, noted another expert, but the oral responses were short and sometimes too fast. Regarding implementation of the Covenant and its relationship with the courts, it seemed that the Optional Protocol had not given rise to any initiatives. He asked if the Covenant and Protocol had been officially published, and whether information on them was provided to judges, police and security forces.
He also wanted more information on the system of appointment, the role and the level of accessibility to people of the Ombudsman.
Turning to the death penalty, he said it was unfortunate that 11 people had been executed last year. He asked how Mongolia would finally be able to abolish the death penalty. He also requested further information on acts of torture and on the expelling of foreigners.
Another expert wondered what the laws on the regulation of religion were and how they conformed with the provisions of the Covenant.
It was also stated that Mongolia did not have any laws against domestic violence, which he found difficult to believe, and he asked what that meant. He asked if it meant husbands and wives could batter each other without the police being called to intervene.
In addition, he asked what the rights of aliens under the Constitution were.
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