Human Rights Committee considers the report of Mongolia

Human Rights Committee  

7 July 2017

The Human Rights Committee today concluded the review of the sixth periodic report of Mongolia on its implementation of the provisions of the International Covenant on Civil and Political Rights.

Presenting the report, Battumur Enkhbayar, Deputy Minister for Justice and Home Affairs of Mongolia, said that the Government had completed amending a package of criminal laws.  It had enacted the Criminal Code, the Criminal Procedure Code, the Regulatory Offence Code, and the Regulatory Offence Procedure Code, which had entered into force on 1 July 2017.  A more flexible imprisonment policy had been adopted through reducing the maximum duration of imprisonment, introducing alternative types of charges and abolishing the death penalty.  The new laws departed from the use of detention during the criminal investigation process, established legal ground for detection and preventing domestic violence, and provided for extensive research to be conducted in order to ensure that initiated laws complied with international treaties to which Mongolia was a party.

In the ensuing discussion, Experts commended Mongolia’s active engagement with the Committee, and the visible progress in domestic laws and practices that impacted human rights.  They particularly welcomed the abolition of the death penalty and the ratification of the Optional Protocol to the Convention Against Torture.  At the same time, they highlighted the lack of invocation of the Covenant by domestic courts, the use of live ammunition by police officers during the state of emergency in July 2008, widespread violence against lesbian, gay, bisexual, transgender and intersex persons and restriction of their right to peaceful assembly, absence of legal recognition of same-sex couples, lack of a clear definition of torture, absence of a comprehensive juvenile criminal justice system and specialized juvenile courts, lack of implementation of the national plan to combat trafficking in persons, freedom of media and access to information, the limiting provisions of the new Election Law, and the absence of a meaningful consultation with indigenous peoples concerning mining projects in their lands.

In concluding remarks, Mr. Enkhbayar said that the Experts had asked very specific questions to which the Government would try to provide specific answers.  He noted that the Committee’s recommendations would be a subject of careful consideration by the Government of Mongolia.

In his concluding remarks, Yuji Iwasawa, Chairman of the Committee, welcomed the positive developments made by the State party, in particular in the legal framework, and highlighted  the remaining concerns including the lack of cases invoking the Covenant; low representation of women in public and private sectors; violence against lesbian, gay, bisexual, transgender and intersex persons; torture; and human rights violations committed by the police officers during the state of emergency in July 2008.

The delegation of Mongolia consisted of representatives from the Ministry of Justice and Home Affairs, the National Police Agency, and the Permanent Mission of Mongolia to the United Nations Office at Geneva.

The Committee will next meet in public on Friday, 7 July, at 3 p.m. to consider the implementation of the provisions of the Covenant in Swaziland in the absence of a report.

Report

The sixth periodic report of Mongolia can be read here: CCPR/C/MNG/6.

Presentation of the Report

BATTUMUR ENKHBAYAR, Deputy Minister for Justice and Home Affairs of Mongolia, said that Mongolia attached high priority to the implementation of the recommendations provided by the Committee.  The Government had completed amending a package of criminal laws, an essential element of its effort to reform the criminal justice system.  It had enacted the Criminal Code, the Criminal Procedure Code, the Regulatory Offence Code, and the Regulatory Offence Procedure Code, which had entered into force on 1 July 2017.  The Government had pursued a policy to comply with the obligations under the international conventions on human rights to which Mongolia was a party.  Within the framework of the criminal policy reform, more flexible imprisonment policy had been adopted through reducing the maximum duration of imprisonment, introducing alternative types of charges and abolishing the death penalty.  In order to depart from the use of detention during the criminal investigation process, the Government had introduced alternative forms of preventive measures, including bail, restricting the suspect from performing certain types of business and official activities, and the payment of collateral under the command of a military unit.  A new regulative framework had been established to apply detention measures on sufficient evidence grounds and only after the prosecutor initiated an investigation.  Detention period had been reduced from 72 to 48 hours.  In addition, the practice of returning the case to the registry and investigation in order to forcefully prove guilt in spite of the absence of a court decision had been removed. 

The Regulatory Offence Law and the Regulatory Offence Procedure Law established an integrated procedural regulation and specified the mandates and responsibilities of public institutions and officers, and so created a solid environment for ensuring the principle of equality in front of the law and in court.  The new Domestic Violence Law established the legal ground for detection and preventing domestic violence, provision of health and security support services to victims and their family members.  Domestic violence was defined as a serious crime.  A number of capacity building and training activities for law enforcement institutions and other relevant authorities had been carried out jointly with non-governmental organizations.  The Law on Legislation provided for extensive research to be conducted in order to ensure that initiated laws complied with international treaties to which Mongolia was a party.  Such an approach was important in establishing a legal environment that strengthened the application of international treaties.  The Government of Mongolia pursued a policy of addressing the discrimination based on gender and sexual orientation through specific measures stipulated in the new Criminal Code, the State Policy on Population Development, and the National Program on Gender Equality.    

Questions by Committee Experts

Experts welcomed the abolition of the death penalty in Mongolia, and the ratification of the Second Optional Protocol to the Covenant on Civil and Political Rights, as well as the ratification of the Optional Protocol to the Convention Against Torture.  Experts also commended Mongolia’s active engagement with the Committee, and the visible progress in domestic laws and practices that impacted human rights.

Turning to the application of the Covenant, Experts reminded that the Committee had previously expressed concern about the lack of the implementation of the provisions of the Covenant in domestic courts.  There were some cases where apparently longer sentences had been imposed due to the invocation of the United Nations human rights conventions.   What training courses with respect to Covenant provisions had been provided to judges and prosecutors?   Were courses to raise the knowledge of international human rights law also provided to lawyers and judges?   Were there actions to raise awareness among the public about the existence of the Optional Protocol to the Covenant on Civil and Political Rights?

As for the mandate of the national human rights commission, Experts expressed concern about the lack of transparency and participatory character of the appointment of the members of the commission, and about insufficient financial and human rights resources.  What was the content of the relevant draft bill?  How would the Government ensure that the selection process was transparent? 

With respect to non-discrimination and equality between men and women, race, colour and language had not been listed by the State party as grounds for discrimination.  Experts asked for clarification as to why “medical condition” was listed as one of the prohibited grounds.  What was the percentage of female judges, ministers and members of the Parliament?  What had been the impact of the Law on the Promotion of Gender Equality? 

Had the Emergency Act been amended to ensure that it complied with the provisions of the Covenant?  What were the outcomes of the proceedings against police officers suspected of using live ammunition during the state of emergency in July 2008, and how many victims and their families had received compensation? 

Were there restraining orders in the context of domestic violence and violence against women?  How many shelters had been established nation-wide?  Information regarding investigation, prosecution and sanctioning of the perpetrators of domestic violence and reparation to victims was missing.  Was spousal rape criminalized?  It had been reported that the knowledge of police forces about domestic violence had not been sufficient.  What was the policy with respect to violence against and abuse of children, including on corporal punishment in all settings?

Experts welcomed the candid reply of the State party about the existence of extensive violence against lesbian, gay, bisexual, transgender and intersex persons and the lack of reporting.  They urged the State party to urgently address that problem.  What specific measures had been taken to ensure the effective protection against violence based on gender identity and sexual orientation, including access to justice by lesbian, gay, bisexual, transgender and intersex persons?  What kind of relevant training to law enforcement officers had been provided on violence based on gender identity and sexual orientation?  What kind of capacity-building and awareness-raising had been undertaken among the police and the judiciary for the effective protection of the rights of this group?  There was a need to add gender identity and sexual orientation to the list of prohibitive grounds for discrimination.  Lesbian, gay, bisexual, transgender and intersex persons also encountered legal and practical problems due to the non-recognition of same-sex couples.

Concerns had been expressed that despite the prohibition of torture, ill-treatment and other forms of cruel and inhumane treatment by the Constitution and the Criminal Code, there was no clear definition of torture in line with international standards.  Penalties for torture had also raised concern.  Had they been revised in line with international standards?  The State party’s report mentioned a general right to compensation for “natural persons taken to court.”  Had there been any cases of compensation for torture, including psychological support and rehabilitation?  Between 2014 and 2016, 45 complaints of torture had been reported, out of which five had led to the initiation of criminal proceedings but had been recommended for dismissal.  How did the State party explain the reasons for dismissal?  There were also allegations that torture had still been used by the police to extract confessions with impunity.   How many police officials had received training against torture?

Solitary confinement was applied to the prisoners who had their death sentences commuted.  What was the length and the basis of that solitary confinement? 

On the issue of discrimination against persons with HIV/AIDS: it had been reported that foreign health service providers often refused their services to HIV-positive persons, and that pregnant HIV-positive women were required to deliver at the National Centre for Communicable Diseases.  What campaigns had been conducted to reduce the social stigma against persons living with HIV/AIDS?  

Why had the quota for the participation of women in political life been reduced from 30 to 20 per cent?  There were many concerns about the lack of physical access to buildings and services for persons with disabilities, including access to education and employment.

As for freedom of movement, Experts asked for an explanation of the ban on border crossing for certain persons.  

Replies by the Delegation

BATTUMUR ENKHBAYAR, Deputy Minister for Justice and Home Affairs of Mongolia, explained that new criminal laws were fully in line with international standards and very extensive research was to be conducted in order to ensure the compatibility of domestic laws with international conventions.  Judges and prosecutors were trained on the provisions of the Covenant.  

It was not true that the budget for the national human rights commission had declined, but, it was true that the Government had recently decided to downsize all public budgets.  A working group has been established to deal with the issues related to the national human rights commission.

The definition of torture and ill-treatment was in line with international standards, following the reform of the old Criminal Code.  According to the new Criminal Code, every public servant was subject to prosecution in case of torture and could not invoke immunity.  Compensation was provided in case of improper conduct of public servants.  A new provision of the Criminal Law stipulated that the Prosecutor’s Office would manage investigations of torture and ill-treatment by police officers.

Discrimination based on sexual orientation and gender identity was specifically prohibited by the Criminal Code.  Regarding the report of non-governmental organizations of the twelve cases of violence against lesbian, gay, bisexual, transgender and intersex persons which had not been registered and investigated, the delegation said that the authorities had followed up on six cases and dealt with them in line with the established laws.  The Government did not restrict same-sex partnerships.  

The Election Law stipulated the 20 per cent quota for women in publicly elected posts.  Out of the current 76 parliamentarians, 13 were women, whereas out of 15 ministers, two were women.  Some 66.5 per cent of all judges were women, and the share of women in all public offices stood at 41.8 per cent. 

The new Domestic Violence Law ensured that all segments of public service would be sanctioned in cases of domestic violence.  Very extensive training and re-training courses for police officers had been conducted at the local level in order to provide support to victims of domestic violence.  The Government was working to increase the number of shelters, in cooperation with the Asian Development Bank.  The newly amended Criminal Code had a special provision on rape.   

The maximum term of imprisonment was 25 years, which replaced the previous 30 years.  Three convicts had been released from solitary confinement, in line with international standards.  There were 28 detention centres, out of which eight were new. 

The ban on freedom of movement had been introduced for persons who refused to pay damages, but it had been abolished.   

There were 14 babies delivered by HIV positive mothers and paediatricians received training on how to deal with such babies. 

In 2009, compensation had been granted to family members of the persons injured and deceased during the state of emergency in July 2008.

Follow-up Questions by Experts

Experts highlighted the lack of the application of Covenant provisions by domestic courts, and the lack of implementation of the views of the Committee with respect to the Optional Protocol.  Apparently, there was very little public awareness about the Optional Protocol.        

As for the state of emergency, there was a specific provision on prohibition in the Constitution.  Did the legal reform of 2017 also include amendments to the Emergency Act?

What was the State policy on corporal punishment and how did the State Party explain “medical condition” as grounds for discrimination? 

Speaking of the rights of lesbian, gay, bisexual, transgender and intersex persons, was there specific training addressing hate speech and hate crime?  Experts recommended that gender identity and sexual orientation be included in prohibited grounds of discrimination, and asked whether same-sex couples were legally recognized.   

Was the Committee’s general comment on torture broadly reflected in the national law?  The maximum prison sentence in the case of torture was set for five years.  Were sentences revised? 

Was the solitary confinement of the three prisoners whose death sentence had been commuted a temporary or indefinite measure?

Replies by the Delegation

BATTUMUR ENKHBAYAR, Deputy Minister for Justice and Home Affairs of Mongolia, clarified that corporal punishment was forbidden by law.  Eight people had been arrested on charges of violating child’s rights, whereas there were 46 cases of child victims of domestic violence. 

The police officers involved in the events of July 2008 state of emergency and their superiors had been sanctioned.  Amendments had been introduced to the Law on State Emergency, stipulating that the State would ensure that there would be no restriction of rights and fundamental freedoms, and that people would be free from any cruel treatment.     

Every person in Mongolia regardless of their social status, economic condition, religious belief, disability and sexual orientation was free from discrimination and enjoyed equality before law.  Accordingly, there were no restrictions imposed on relationship formed by lesbian, gay, bisexual, transgender and intersex persons.   According to the Constitution, marriage was a voluntary relationship between a man and a woman, and there was no specific legal provision recognizing same-sex couples.    

There was no record of the invocation of the Covenant by domestic courts, but there was a strong emphasis on ensuring that domestic laws were in line with international treaties.  The Bar Association was working to develop relevant training courses for judges and prosecutors within the framework of technical assistance with the Office of the High Commissioner for Human Rights.  As for the general public’s awareness of the Optional Protocol to the Covenant, the Human Rights Commission was diffusing that knowledge. 

Second Round of Questions by Committee Experts

Experts welcomed the introduction of non-custodial alternatives to pre-trial detention and many changes to detention laws.  What was the average length of pre-trial detention in Mongolia, and was that time deducted from the sentence?  How many people were in pre-trial detention longer than 12 months?  How many detainees were represented by a lawyer?  What steps had the State party taken to provide legal aid to persons who were insolvent?  What was the daily budget for meals per prisoner?  Were the Mandela Rules (United Nations Standard Minimum Rules for the Treatment of Prisoners) reflected in State policies? 

As for the right to a fair trial and the independence of the judiciary, there were still high levels of corruption.  Salaries of judges appeared to be quite low.  What measures had been taken to combat judicial corruption and to guarantee the independence and transparency of judicial institutions?  Had access to justice been hindered because of large geographic distances?  What measures had been taken to provide sufficient financial and human resources in order to secure access to justice in rural areas?

The authorities had still denied permission to lesbian, gay, bisexual, transgender and intersex persons to peaceful assembly, as well as to form associations.

Experts recognized that in recent years the State Party had taken some measures to combat trafficking in persons and welcomed the adoption of an action plan for 2015-2020.  Nonetheless, the plan had remained unimplemented so far, due to the lack of financial and human resources.  What measures had been taken to set out clear identification procedures for victims of trafficking, and to provide specialized trainings and awareness raising for the border police? 

Children were still being exposed to sexual trafficking and forced labour in horse racing, mining and construction.  Did the State party plan to adopt relevant measures to fight the worst forms of child labour and exploitation?  What steps had been taken to train relevant Government officials and employers on forced labour?  There were reports of Chinese and North Korean construction workers being subjected to various forms of labour exploitations.  Was compulsory labour imposed on alcohol and drug users still enforced by courts? 

As for the right to conscientious objection to military service, was it guaranteed in law and in practice to all individuals required by law to perform the military service?  

There remained concerns over the absence of a comprehensive juvenile criminal justice system and specialized juvenile courts, including the lack of separation of juvenile from adult offenders in detention facilities.  Were there any specific and concrete plans to establish juvenile courts and juvenile detention facilities in line with international standards?  What was the legislative framework governing the separation of juvenile from adult offenders?  Had the training centre for juvenile offenders been completed?

Experts raised the issue of alleged forced evictions and homelessness of residents in certain districts in Ulaanbaatar due to stalled development plans.  Was there any compensation give to those residents?

A new election law had been adopted in 2015 and the majoritarian system had been set up in 2016.  There were allegations of a number of disproportionate restrictions on the right of individuals to stand for elections.  Those included disqualification of candidates for overdue debts or taxes, not having completed compulsory military service or having a criminal record regardless of the crime committed, and the requirement that civil servants planning to stand for election had to resign from their posts several months before the nomination process started.  How did courts and administrative authorities interpret legal grounds for the disqualification from elections?  All campaign platforms had to be approved by the State to be in line with existing policies.  Only 35 per cent of polling stations were physically accessible for voters with disabilities. 

Experts stressed the importance of legal recognition of same-sex couples for accessing various social services.

What was the status of the draft law on freedom of media?  Did it contain provisions to broaden journalists’ access to information?  How was the disclosure of journalists’ sources governed?  Were there any plans to limit the content control?  What was the scope of State secrets, which seemed very broad?   It was reported that journalists’ self-censorship was widespread due to fear of criminal liability for defamation and libel, and very high fines imposed on media.  How were provisions on defamation and libel in accordance with the Covenant?

Speaking of ethnic minority rights, Experts noted that Tsaatan children did not have adequate access to education in their native tongue, and inquired about measures taken to improve the situation.  Experts also observed the negative impact of mining activities on the rights of Tsaatan reindeer herders to pasture, hay land and water resources, as well as the absence of meaningful consultation with them to obtain their free, prior and informed consent for such projects.

Replies by the Delegation

BATTUMUR ENKHBAYAR, Deputy Minister for Justice and Home Affairs of Mongolia, explained that the national programme on trafficking in persons had recently been revised and approved, thus streamlining anti-trafficking legislation.  An independent unit of 14 officers had been set up within police to investigate cases of trafficking.  The Ministry of Justice and Home Affairs had also set up a sub-committee on the protection against trafficking, which consisted of civil society representatives and relevant officials.  As for financial and human resources, indeed there was a serious shortage of funds.  Yet, a great deal of public, private and international financing was devoted to anti-trafficking activities, including relevant training. 

As for the right to conscientious objection to military service, the Military Service Law stipulated that persons could be subject to alternative military service on the basis of religious activity.  The alternative military service lasted 24 months, whereas the regular military services lasted 12 months.  The difference in the duration was due to the fact that alternative military service was used in natural disasters, industrial accidents and other emergencies.

The delegation clarified that due to a translation mistake, one of the grounds for discrimination was listed as “medical condition” instead of “health condition.”  With respect to the legal recognition of same-sex couples, the Constitution of Mongolia defined marriage as a union of a man and a woman.

Addressing the question on the lack of specialized juvenile courts, the delegation clarified that the President of Mongolia could establish specialized courts, and that the new Criminal Code clearly stipulated that juvenile sanctions would be twice shorter than for adults.  According to the same law, children would not be subject to serving sentence in prison, but in special educational facilities.   According to the latest statistical data, only 1.1 per cent of all criminal offenders were children and they were fully separated from adults.

The issue of forced evictions in Ulaanbaatar was a very complex problem.  The Citizens’ Council of Ulaanbaatar had issued a regulation stipulating that if construction companies had reached an agreement with 75 per cent of the total population of a certain city district, they could go ahead with their construction projects.  The remaining 25 per cent of the population were those who had complained.  Broad public discussion and consultation was required by the Administrative Law regarding resettlement and urbanization issues.   

With respect to the introduction of the majoritarian election system and the 2015 Election Law, the delegation explained that the change was due to the fact that the previous election system was at odds with the Constitution.  The limitations on standing for election were introduced in order to prevent public servants from abusing office and misusing public resources.  As for the State revision of election platforms, it was in place in order to prevent election candidates from making unreasonable campaign promises.   

Freedom of expression and media were ensured in the country, and there were no restrictions imposed on the work of media.  There was no criminal liability for journalists who withheld their source of information.  The new law provided a specific list of State secrets, comprising about 30 types of information.  The new Criminal Code abolished defamation as a criminal offence.  Nevertheless, two related offences remained: one was spreading of false accusations, and the other was defamation spread against candidates during the election campaign.  There were no sanctions envisaged for those offences.

With respect to detention facilities, the delegation explained that conditions had been improved in terms of the provision of food, heating and drinking water.  As for overcrowding, all 28 detention centres met the international standards of space provision.  Prisoners with tuberculosis received adequate treatment, and a new tuberculosis clinic would open in 2017.  Legal assistance centres existed in every municipality. 

As for the independence of the judiciary, each judge was supposed to report any attempt to influence them.  Salaries of judges were a priority for the Government and they were set to be three times higher than the salaries of ordinary public servants.   Despite the country’s fiscal hardship, the reduction of judges’ salaries had not been undertaken. 

The Ministry of Education had ensured that Tsaatan children received education in their mother tongue.  Child labour was criminalized, whereas compulsory labour was not imposed on alcohol and drug users.         

The peaceful protest of lesbian, gay, bisexual, transgender and intersex persons had been denied in 2015 due to the fact that they had entered into a restricted zone.  But, generally, there were no restrictions on their right to peaceful demonstrations. 

The State had established special protection for the region where the majority of the Tsaatan people lived and no mining activities were permitted there.

Follow-up Questions by Experts

Experts reiterated that there was the absence of a comprehensive juvenile justice system in Mongolia.  What was the plan to institute such a system? 

Was it true that the election campaign platforms still had to be pre-approved by the State and had to comply with the development and economic policies established by the executive?  Polls were often not physically accessible by voters with disabilities.

What was the status of the draft law on freedom of media and what were its provisions?  What were the grounds for requiring the disclosure of journalists’ sources?  Experts reiterated the issue of defamation in the Election Law and pointed out a worrisome trend in civil defamation cases.  How many websites were blocked and why?

As for the mining licences in protected areas that nomadic peoples used for pasturing, had there been proper consultation with local indigenous peoples to obtain their prior consent? 

Had the operational independence of the national preventive mechanism under the Optional Protocol to the Convention Against Torture been strengthened?

What was the Labour Inspectorate’s capacity in addressing the issue of Chinese and North Korean construction workers who had been subjected to forced labour? 

What data was available on pre-trial detention, especially the average length of detention, and was the period spent in pre-trial detention deducted from the sentence?  How were the complaints been handled?  What rights were detained systematically informed of at arrest? 

Replies by the Delegation

BATTUMUR ENKHBAYAR, Deputy Minister for Justice and Home Affairs of Mongolia, explained that the establishment of a special juvenile justice system would be initiated by the President and approved by the Parliament.  The Government would give special consideration to that issue.  In case of an arrest of a child, all relevant officers would assess the case and ensure that the child’s needs were met. 

The State Audit Agency revised election platform documents to ensure that they were in line with Mongolia’s Sustainable Development Goals, to prevent any promises that went beyond the country’s economic capacity, and to provide true and realistic information to the electorate.  Persons with disabilities enjoyed full electoral rights.  When they could not physically visit the poll, electorate officials would visit those persons so that they could vote. 

The draft law on freedom of media had been submitted to the Parliament and overturned.  The draft law’s main aim was to ensure professional conduct of journalists and misuse of their profession.  A recent amendment replaced the prison sentence for defamation with a fine.  Civil defamation cases incurred monetary charges, but they were not too high in light of the great financial losses that the spread of false accusations could incur. 

There was only one case of a blocked website by the telecommunications authorities.  The court decided to re-open that website, following a complaint of the blogger in question.          

Mongolia was a nomadic country and the Constitution upheld the traditional culture of nomadic peoples.  It was a State priority to increase the number of livestock, to provide education to herders, and to offer social schemes to them.  The Government imposed a ban on mining exploration licences in 2011. 

The Government did not have any records of forced labour imposed on foreign citizens.  Nevertheless, foreign embassies did raise the question of salaries for foreign workers. 

Arrest without judge’s warrant was carried out in emergency cases when a clear evidence of criminal activity was present.  The pre-trial detention had been reduced from 73 hours to 48 hours, and the Parliament was discussing to further reduce it to 24 hours.  The new Criminal Procedure Code stipulated that legal assistance would be provided within six hours of arrest, and that the arrested persons had to be adequately informed of their constitutional rights.

Concluding remarks

BATTUMUR ENKHBAYAR, Deputy Minister for Justice and Home Affairs of Mongolia, said that the Experts had asked very specific questions to which the Government would try to provide specific answers.  The Committee’s recommendations would be a subject of careful consideration by the Government.

YUJI IWASAWA, Chairman of the Committee, appreciated the efforts of the delegation to reply to Experts’ questions and to provide as much information as possible.  He welcomed the positive developments made by the State party, in particular in the legal framework.  But, concerns remained with respect to the lack of cases invoking the Covenant, lack of knowledge of the Covenant among the general public, low representation of women in public and private sectors, violence against lesbian, gay, bisexual, transgender and intersex persons, cases of torture, human rights violations committed by police officers during the state of emergency in July 2008, freedom of media, and electoral legal framework.

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For use of the information media; not an official record

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