COMMITTEE EXAMINES REPORTS OF ANDORRA ON OPTIONAL PROTOCOLS TO CONVENTION ON RIGHTS OF CHILD

Committee on the
Rights of the Child

16 January 2006

(Chamber A)

The Committee on the Rights of the Child today reviewed the initial reports of Andorra on how that country is implementing the provisions of the two Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography.

In opening remarks to the Committee, Montserrat Gil, Minister of Health, Social Welfare and the Family of Andorra, said since the two reports had been handed in to the Committee in 2004, Andorra had changed its Government, and adopted a new Criminal Code, with family matters raised to a Ministerial level, giving them increased importance. The Department of Social Welfare and the Family had programmes to protect the family, and was divided into three areas, covering social welfare for young children, with many programmes aiming to protect children at risk. The new Criminal Code, which entered into force in 2005, had changed on various issues on children, including the age of criminal responsibility, and a more specific description of offences relating to the Optional Protocols.

Committee Expert Hatem Kotrane, who served as Rapporteur for the reports of Andorra, said the Committee had very little to say to the delegation with regards to the Optional Protocol on the involvement of children in armed conflict. There were no legislative measures concerning the direct involvement of children, given that the Principality had no armed forces, and the only armed forces allowed to bear weapons were the police and customs forces. On the Optional Protocol on the sale of children, child prostitution and child pornography, he said that in the State report, it was indicated that acts covered in the Optional Protocol had been included in the current Criminal Code, and that these were fully included in Andorran legislation. Was Andorra considering examining its legislation point by point to ensure that the Protocol was indeed fully incorporated and applicable in all areas, as this did appear to be necessary. In terms of prosecuting persons who had close links with Andorra, the State should consider broadening its jurisdiction in this regard.

On the Optional Protocol on the involvement of children in armed conflict, other Committee Experts raised questions related to, among other things, whether Andorran nationals could be recruited into the Spanish or French military forces. On the Optional Protocol on the sale of children, child prostitution and child pornography, Experts asked if children knew how to protect themselves with regards to the provisions and prohibitions of the Protocol; what the State did with regards to prevention measures and programmes for victims; how did children lodge complaints and were there any campaigns being held in this respect; what amount of the budget went on the application of the Optional Protocol; what mechanisms existed in its regard; and why there was no mechanism for the criminal responsibility of corporate bodies when there was for the agents of corporate bodies with regards to the sale of children.

The Committee will release its formal, written concluding observations and recommendations on the initial reports of Andorra to the Optional Protocols towards the end of its three-week session, which will conclude on 27 January.

The delegation of Andorra consisted of representatives of the Ministry of Health, Social Welfare and the Family, the Permanent Mission of Andorra to the United Nations Office at Geneva, the Ministry of Foreign Affairs, and the Department of the Interior.

As one of the 192 States parties to the Convention, Andorra is obliged to present periodic reports to the Committee on its efforts to comply with the provisions of the treaty. The delegation was on hand throughout the day to present the report and to answer questions raised by Committee Experts.

When the Committee reconvenes on Tuesday, 17 January at 10 a.m., it will hold an informal meeting with States Parties to the Convention.

Reports of Andorra

The initial report of Andorra on the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (CRC/C/OPAC/AND/1), says the Optional Protocol echoes Andorra’s concerns and encourages States Parties to take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities; those States Parties that do permit recruitment into their armed forces under the age of 18 should maintain certain minimum safeguards. There are no legislative measures that provide for the direct involvement of children in hostilities, given that the Principality of Andorra has no armed forces. No text provides for voluntary or compulsory recruitment, given the non-existence of armed forces in Andorra. No armed groups operate in Andorran territory, nor does any such group use Andorran territory as a base or refuge, and this eventuality is proscribed or punished under national law.

The initial report of Andorra on the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography (CRC/C/OPSA/AND/1) says the authorities currently have no record of any case involving the sale of children, child prostitution or child pornography in Andorra. However, the Ministry of Health and Welfare, through the Secretariat of State for the Family and the Secretariat for Welfare, currently administers various programmes and services for children at risk and their families, and is ready to deal with the case of any child victim of such crimes. The General Council’s Commission for Justice and the Interior is in the process of reforming the Criminal Code. The Ministry of Health and Welfare has requested the Commission to take account of the crimes referred to in the Optional Protocol (especially those mentioned in article 3 thereof) to ensure that they are specifically incorporated into the new Criminal Code. The Ministry of Health and Welfare, through the Secretariat of State for the Family, ensures that the rights of the child are properly put into effect and disseminated on an ongoing basis, thus complying with the recommendations of the Committee on the Rights of the Child. Recent statutes take account of the principle of the best interests of the child, which is specified in the llei qualificada on marriage, the llei qualificada on adoption and other forms of protection of minors at risk, and the Public Prosecutor’s Office Act, which prescribes the intervention of the Public Prosecutor’s Office in all civil proceedings involving minors with a view to ensuring that their best interests are served.

Presentation of Reports

MONTSERRAT GIL, Minister of Health, Social Welfare and the Family of Andorra, said the Convention on the Rights of the Child had been ratified and entered into force in 1996. The Optional Protocols had been signed in 2000 during the Millennium Summit in New York, and had been in force since 2002. Since the two reports had been handed in to the Committee in 2004, Andorra had changed its Government, and adopted a new Criminal Code, with family matters raised to a Ministerial level, giving them increased importance. The Department of Social Welfare and the Family included programs to protect the family, and was divided into three areas, covering social welfare for young children, with many programs aiming to protect children at risk. The new Criminal Code, which entered into force in 2005, had changed on various issues on children, including the age of criminal responsibility, and a more specific description of offences relating to the Optional Protocols.

Discussion on the Optional Protocol on the Involvement of Children in Armed Conflict

HATEM KOTRANE, the Committee Expert serving as Rapporteur for the report of Andorra, said the Committee had very little to say to the delegation with regards to the Optional Protocol on the involvement of children in armed conflict. There were no legislative measures concerning the direct involvement of children, given that the Principality had no armed forces, and the only armed forces allowed to bear weapons were the police and customs forces. The information in the report was most welcome, in particular that the Government had signed international agreements contributing to the combat against this phenomenon. The budgetary assistance to non-governmental organizations working in the field of children involved in armed conflicts was also noted with approval. The contributions made to the United Nations Programme on Children Involved in Armed Conflict were appreciated. However, there were some questions on this issue: Andorra was not fully concerned in the Protocol, but there was concern with information in the report and the absence of legal and administrative measures for the prohibition and sanctioning of the enlisting of children in armed conflict, as States parties should prevent and sanction cases of this practice when there were links with their countries. Mr. Kotrane inquired whether there was any intent in Andorra to remedy this.

Other Experts raised a series of questions pertaining to whether Andorran nationals could be recruited into the Spanish or French military forces; whether there had ever been a victim of armed conflict on national soil, either Andorran or foreign, who was in need of rehabilitation, and whether Andorra was ready to offer this rehabilitation; what lesson had been drawn in Andorra from the projects to help boys and girls who had been involved in armed conflicts; and whether the Andorran judiciary had jurisdiction over Andorran nationals who were abroad.

Responding, Ms. Gil said there was a lack of administrative and legal orders regarding the prohibition of such practices, and the Government would be told of the Committee’s recommendation so that it could amend its legal system. On other questions, the delegation said that France and Spain could not recruit Andorran citizens into their armed forces. To date, there had been no cases of an Andorran victim to an armed conflict, but should such a person require repatriation, Andorra would not be prepared for this. The instruments for the protection of minors would be applied in this case. The only experience of Andorra in this field dated back to the Second World War, when there were refugees, but there had been no case since. In cases where there had been some form of recruitment out of Andorra, there was a limited form of jurisdiction under international instruments, both European and international.

Discussion on the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography

HATEM KOTRANE, the Committee Expert serving as Rapporteur for the report of Andorra, said the Committee noted with appreciation the adoption by the State party of measures aimed at reinforcing the rights of the child as covered by the Optional Protocol. Could the courts apply the Protocol, Mr. Kotrane asked, requesting examples of where the Convention was implemented by the courts. In the State report, it was indicated that acts covered in the Optional Protocol had been included in the current Criminal Code, and that these were fully included in Andorran legislation. Was Andorra considering examining its legislation point by point to ensure that the Protocol was indeed fully incorporated and applicable in all areas, as this did appear to be necessary, he said. In terms of prosecuting persons who had close links with Andorra, the State should consider broadening its jurisdiction in this regard.

Other Experts raised questions on, among other things, if children knew how to protect themselves with regards to the provisions and prohibitions of the Optional Protocol; what the State did with regards to prevention measures and programmes for victims; how did children lodge complaints and were there any campaigns being held in this respect; what amount of the budget went for the application of the Optional Protocol; what mechanisms existed in its regard; why there was no mechanism for the criminal responsibility of corporate bodies when there was for the agents of corporate bodies with regards to the sale of children; and whether the State was sure there were no victims in Andorra.

Responding, the delegation said with regards to questions on acts which were not in the current Criminal Code on the sale of children, all acts were covered in full. On the criminal responsibility of corporate bodies, the Criminal Code established the responsibility of physical persons, but corporate bodies could be held responsible for acts committed by physical persons within the sphere of the corporate body. The Criminal Code established that the company could have its activities suspended either provisionally or temporarily, or it could be put under an administrator. This decision would be published. On jurisdiction over offences of sale, prostitution or sexual offences committed against minors, article 8 of the Criminal Code drew a distinction, and there were various suppositions.

Various materials were distributed on the rights of the child, and each child of school age was provided with a book thereon. Teaching sessions were also held on the rights. Information was contained in this year’s book on how to work on the rights of the child, and information to parents was also included. An agreement had been reached with the Social Welfare services of neighbouring countries to share information and train jointly, the delegation said, so as to have more experience. The Police Department had a unit for minors, and also intervened in cases of domestic violence. The Technical Commission for Care of the Minor ensured that the rights of the minor were protected, and the conventions implemented.

On whether pornographic material was covered in the Code, this was the case, although the possession of such material for personal purposes was allowed, and possession of such material for the purposes for disseminating or selling it was punished, the delegation said. Few problems of such a kind had been encountered, but it would be up to the courts to determine if the intent was to sell or disseminate, the delegation said. For the time being, with the dissemination of information to professionals and the awareness campaign that had been and was being carried out, those working with minors could give user-friendly information to the minor as to whether a situation involved risk or not. As to the percentage of the budget awarded to programmes related to children it was 0.26 per cent.

There were no cases that had been brought before the courts in connection with the Protocol, and with regards to “hidden” cases, once the child welfare professionals agreed that there was a risk, maybe there would be more reports of cases, and it was the Government’s aim to bring these to light. Action would be taken in a number of fields related to the prosecution of criminal offences, in particular the protection of victims and the need to make use of simple language with regards to children, the need to avoid unnecessary delays and repetitions in the proceedings involving minors, and the separation of the aggressor from the witnesses or victims, including physical separation via screens.

In further questions, the Rapporteur said the Criminal Code did not exactly cover the definitions in the Optional Protocol. The most serious offences were covered in the Criminal Code, but some points of the Protocol, including on forced labour, were not apparently included. The definition of pornography was also problematic, as the Criminal Code indicated that only sale or dissemination could be punished, whereas the Protocol stipulated that the possession of child pornography should be punished. What was the actual situation regarding victims, he asked, and had any professionals reported any violations of the Convention? Another Expert asked a further question on child forced labour, in connection with slavery.

Responding, the delegation said that the Criminal Code did cover labour exploitation, including specifically the trafficking of persons for labour exploitation. When this latter occurred, there was an aggravating circumstance if the victims were under the age of 18 or incapable. Labour exploitation was therefore covered.

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