HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF SAN MARINO



Human Rights Committee
11 July 2008





The Human Rights Committee has considered the second periodic report of San Marino on how that State party is fulfilling its obligations under the International Covenant on Civil and Political Rights.

The delegation of San Marino, in its presentation, noted that San Marino’s legal system recognized international laws in accordance with international human rights and fundamental freedoms and guaranteed the fundamental rights and freedoms set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms. San Marino was strongly committed to the inclusion of the articles of the Covenant in its legislation. In San Marino the Covenant took precedence over domestic law and had had considerable impact on the legal system. Moreover, the Constitutional Order of San Marino attached particular importance to the Universal Declaration of Human Rights, in that all legislation at a lower hierarchal level was adjusted to be in line with it. One of the priorities of the Government was to evaluate the possibility of establishing an Ombudsman, who would guarantee the respect for human rights of any person living in San Marino. That institution had not been established yet. However, in San Marino that function had been traditionally conferred upon the Captains-Regent (the two elected officials who serve as Head of State in San Marino).

Rafael Rivas Posada, Chairperson of the Human Rights Committee, in preliminary concluding observations, said that, rather than simply details of legislation and Constitutional provisions, there was a greater need for information on facts on the ground, which were integral to addressing the full scope of human rights in the country. A concern for the Committee was the fact that the decision to develop an Ombudsman’s office promised by San Marino years ago had yet to be implemented. The Committee would also continue to recommend facilitation of the process of naturalization. The explanation given by the delegation qualified how one calculated the number of years. However, the Committee felt that the 30-year requirement was excessive, going way beyond similar provisions for other States, and as such should be reviewed.

Questions were raised by Committee Experts during the course of the discussion on a number of issues, including legislation on wire-tapping and protection of individual’s privacy; domestic violence against women; the rights of disabled persons; legal representation for the indigent; anti-terrorism legislation; equality between men and women’s salaries and professional representation in the workforce; and legislation on biotechnology.

In addition to Dario Galassi, Permanent Representative of San Marino to the United Nations Office at Geneva, San Marino’s delegation included other representatives from the Permanent Mission in Geneva; the Court of Civil Appeals; the Ministry of Foreign and Political Affairs; the Health Authority; the Executive Secretariat of the Congress of State; the Public Prosecutor’s Office; and the Gendarmerie.

The Committee reviewed the report of San Marino over two meetings and will issue its concluding observations and recommendations at the end of the session on 25 July.

San Marino is one of the 161 States parties to the International Covenant on Civil and Political Rights and is obligated to submit periodic reports on implementation of the provisions of the Covenant. It is also one of the 111 States parties of the Optional Protocol to the Covenant, which provides for confidential consideration of communications from individuals who claim to be victims of violations of any rights proclaimed by the Covenant and it is one of the 66 States parties’ and 35 signatories of the Second Optional Protocol, which is aimed at the abolition of the death penalty.

At the end of the afternoon meeting, the Committee turned to consideration of a proposal to establish minimum time limits for individual communications to be submitted to the Committee, as provided under the first Optional Protocol to the Covenant, by which States parties recognize the competence of the Committee to receive and consider communications from individuals who claim to be victims of a violation of the rights set forth in the Covenant. The new draft rule would provide that “In the absence of exceptional circumstances justifying the delay, the Committee will consider that a period of 4 years following the exhaustion of domestic remedies by the author of the communication or, where applicable, a period of 2 years from the termination of another procedure of international investigation or settlement, will constitute undue delay.” Committee members remained divided on the issue as to whether is was necessary to establish such a rule, noting that it was possible to simply allow Committee jurisprudence to develop on a case-by-case basis.

The Committee will reconvene in public at 10 a.m. on Monday, 14 July when it is scheduled to continue its consideration of its working methods, including revision of reporting guidelines.

Report of San Marino

The second periodic report of San Marino (CCPR/C/SMR/2) notes San Marino’s interest to involve its citizens in contributing directly to the country’s political, social and economic development through the election of the members of the Great and General Council and through other institutions of direct democracy such as referendums, popular legislative initiatives and right of petition, as described in the Institutional Framework. San Marino notes its commitment to recognizing, guaranteeing and enforcing the rights and fundamental freedoms set forth by the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the strides to ensure legal equality between men and women, prohibiting any discrimination based on sex. This principle has been implemented in greater detail by numerous laws regulating different sectors of daily life, ranging from the political to the electoral, working and educational contexts.

Moreover, the right to life is protected by a wide range of public law legislation, most importantly in the Declaration on the Rights of Citizens and Fundamental Principles of San Marino and the Criminal Code. In addition to the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment, San Marino ratified the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery and the International Labour Organization Convention concerning the Elimination of the Worst Forms of Child Labour. It was also noted that San Marino is not affected by the problem of racial discrimination as there are virtually no ethnic minorities living on the territory.

Presentation of Report

DARIO GALASSI, Permanent Representative of San Marino to the United Nations Office at Geneva, after briefly introducing the members of the large delegation from San Marino, passed the floor to his colleagues to present the Government of San Marino’s replies to the Committee’s written questions submitted in advance.

Replies of San Marino

Constitutional and Legal Framework in Which the Covenant and the Optional Protocol Are Implemented; Right To An Effective Remedy

The delegation said that San Marino’s legal system recognized international laws in accordance with international human rights and fundamental freedoms and guaranteed the fundamental rights and freedoms set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms. San Marino was strongly committed to the inclusion of the articles of the Covenant in its legislation. In San Marino the Covenant took precedence over domestic law and had had considerable impact on the legal system. Moreover, the Constitutional Order of San Marino attached particular importance to the Universal Declaration of Human Rights, in that all legislation at a lower hierarchal level was adjusted to be in line with it.

The delegation said that one of the priorities of the Government was to evaluate the possibility of establishing an Ombudsman, who would guarantee the respect for human rights of any person living in San Marino. That institution had not been established yet. However, in San Marino that function had been traditionally conferred upon the Captains-Regent (the two elected officials who serve as Head of State in San Marino).

Counter-Terrorism Measures and Respect of Covenant Guarantees

The efforts made by San Marino to face terrorism were mainly targeted at countering terrorist financing, the delegation noted. Besides a clear legislation regulating the presence of foreigners in San Marino, those controls prevented San Marino from being exploited as either a hideout for terrorists or a place from which terrorists or terrorist organizations could plan their attacks.

In compliance with the recommendations of resolution 1373 (2001) of the Security Council, San Marino had adopted Law No. 28 of 26 February 2004, “Provisions to Counter Terrorism, Money-Laundering and Insider Trading”, which punished anyone taking part in terrorist actions or promoting, establishing, organizing, directing or financing associations that aimed at perpetrating violent acts for the purpose of terrorism, as well as anyone providing participants in terrorist associations with assistance or aid in any form. That Law had introduced new provisions in the Criminal Code through which the provisions enshrined in United Nations International Convention for the Suppression of the Financing of Terrorism of 1999, in force in San Marino since April 2002, were converted into the domestic legislation. Those provisions did not restrict the fundamental rights of individual’s concerned.

Prohibition of Discrimination, Gender Equality, Violence Against Women and Domestic Violence, Equality Before The Law

The delegation said that prohibition of discrimination on the grounds of gender was covered in the Declaration on the Rights of Citizens and Fundamental Principles of San Marino through Law No. 95 of 19 September 2000, amending article 4 of the Declaration. That Law had explicitly introduced gender as a possible element for discrimination. The Declaration also prohibited any discriminatory behaviour towards a person on the basis of their sexual orientation, which fell under the definition of “personal status” referred to in article 4.

Also worth mentioning was Law No. 66 of 28 April 2008, “Provisions against Racial, Ethnic, Religious and Sexual Discrimination”. Supplementing the provisions enshrined in the current Criminal Code, that Law included a provision which punished anyone spreading in any way ideas based on superiority or racial or ethnic hatred, or encouraging someone to commit or committing oneself discriminatory acts on the grounds of race, ethnicity, nationality, religion or sexual orientation. Those offences were criminalized and prosecuted by the competent judicial authorities. Furthermore, committing an offence for the purposes of discrimination on the grounds of race, ethnicity, nationality, religion or sexual orientation was considered by the same law to be aggravating circumstances.

The delegation further noted that discriminatory and arbitrary behaviours on the grounds of gender or sexual orientation would be prohibited by virtue of the international conventions on human rights signed by San Marino, in particular the European Convention for the Protection of Human Rights, ratified by San Marino on 9 March 1989, and the Universal Declaration of Human Rights, the contents of which were accepted by San Marino through a formal declaration on 19 February 1992. Recently, under the Law on Prevention and Repression of Violence against Women and Gender Violence, approved by the Great and General Council on 18 June 2008, domestic violence constituted an offence in San Marino.

A large number of women held middle and middle-high ranking positions both in the public and the private sector in San Marino, the delegation added. Regarding women’s participation in the institutional bodies of San Marino, it was worth noting that one of the two Captains-Regent in office was a woman. Indeed, in the public sector some of the highest positions in San Marino were held by women, and three of the Directors at the Department of Foreign Affairs were women (the Director General, the Director for Political Affairs and the Director for Economic and Social Affairs). There was also a considerable presence of women in the field of information: the newly appointed Director-General, as well as two of the five editors-in-chief of “San Marino RTV”, the State broadcasting corporation, were women.

On citizenship issues, the delegation noted that law No. 84 of 17 June 2004 amending the Law on Citizenship had introduced a significant change in San Marino legislation regarding the attribution of citizenship by origin, transmitted by the mother to her child at birth. While Law on Citizenship had established that San Marino citizenship might be transmitted by mothers only when their children, turning 18 years of age, applied for it, the amended law sets forth that all women who were San Marino citizens transmitted their own citizenship to their children at birth. Under the same law, the children who had only one parent of San Marino citizenship were required, within 12 months after reaching the age of 18, to subscribe to a deed where they stated that they want to keep San Marino citizenship, otherwise they would lose it.

Turning to the issue of disabled persons, the delegation said that, in the light of the recent ratification by San Marino of the United Nation Convention on the Rights of Persons with Disabilities and its Optional Protocol on 29 January 2008, all legislation concerning the issues and the areas covered by the Convention were currently being reviewed to ensure that San Marino legislation was in line with the standards set out in that instrument. In terms of current legislation in place, with the adoption of the Framework Law for the Protection of the Rights and the Social Integration of Persons with Disabilities in 1990, San Marino had activated legislative, economic, scientific and social means or instruments to guarantee and protect the human dignity and the rights of freedom and autonomy of disabled people. San Marino had committed itself to preventing and eliminating the conditions which hampered the development of disabled persons, and promoted their maximum autonomy and participation in the collective life of the country, as well as the exercise of their fundamental rights.

Right to Liberty and Security of the Person and Right to A Fair Trial

The delegation said that, as a general principle, the defence in trials and, therefore, the power to perform acts in civil trials, was entrusted to a lawyer legally registered in the Association established by Regency Decree No. 11 of 1 February 1995 and freely chosen by the party on trial. However, where the accused was indigent, the right to defence was recognized and guaranteed through free legal assistance referred to in Law of 20 December 1884.

The delegation noted that there had been no changes in legislation regarding the organization of judicial power since 2003. The 2003 Judicial Order Reform completed the legislative procedure aimed at guaranteeing to the judicial power in San Marino full autonomy and independence from other State powers, thus enacting the fundamental principle of power separation.

Dissemination of the Covenant

The San Marino Authorities were committed to promoting and raising awareness about the doctrine of human rights at university and in training. The Department of Training of the University of San Marino had organized courses on human rights education for San Marino teachers of all school grades for both initial trainings, as well as annual refresher courses. In the framework of such courses the major international instruments on human rights were analysed with specific reference to the European Convention and the awareness-raising campaigns launched by the Council of Europe.

Right to Confidentiality and Freedom of Opinion and Expression

With respect to wire-tapping, two laws had been drafted, at the suggestion of several relevant bodies on the need to fight the exploitation of minors and terrorism. The bills took into account the effectiveness of the application of that tool and the aim to protect citizens’ privacy, in particular with reference to article 7 of the Covenant and the European Court of Human Rights decision in the case of the United States, which had been convicted of wire taping without the guarantee of privacy for its citizens.

Oral Questions by Committee Experts

Experts expressed interest in having more concrete examples of the practical situations on the ground. Among other questions, the delegation was asked to provide actual examples of when the Covenant was invoked in the State Party and what the outcomes were; how the legal profession was made aware of the treaty and its application in public; to what extent the Government publicized the Covenant’s impact for the citizens; and what was the timeframe for establishing the office of Ombudsman.

With regard to legislation surrounding racial and sexual discrimination, an Expert asked if there had been cases where those specified grounds had been invoked? It was noted that 16 per cent of the people living on the territory were not nationals, yet the written responses of the State party indicated that there were no ethnic minorities. More information was needed. Were there any Roman in the State party; to what extent were their freedoms either restricted or promoted?

As for legislation regarding combating terrorism, the legislation of San Marino had primarily aimed at combating financial implications of terrorist networks. An Expert asked if San Marino was considered a tax haven. It was noted that San Marino was not member of a number of international conventions on combating terrorism, such as, the Hijacking Convention of 1970, and the Aircraft Sabotage Convention of 1971, and the Government was encouraged to join those treaties.

In light of the absence of criminal activity in San Marino, Experts wondered if there was an absence of poverty in San Marino and if education was provided free of charge? One issue that was not clear was with regard to the free legal assistance scheme and specifically in reference to the conditions attached to such a provision. Clarification was needed.

Noting that since June 2008 domestic violence constituted an offence, more information was requested on what domestic violence meant and how perpetrators were prosecuted. Further an Expert asked, other than legislation, what steps had San Marino taken to support women who have been victims of acts of violence, such as measures to make women aware of their rights, police training and the establishment of shelters?

More clarification was requested on the matter of the obligation for a foreign citizen to provide the caution judicatum solvi in casum succumbentiae, as a condition to start a civil action with the San Marino court system, and the scope of the right and guarantee on the respect of privacy was requested by Experts.

An Expert was concerned that, under the Criminal Code, there was a significant limit on what one person could say about another. That was somewhat problematic for the right to freedom of expression and discourse. Criminalized speech offences included such areas as “injuring one’s honour”, in article 183 of the Criminal Code. Was that provision generally applied? San Marino might want to consider re-examining such articles.

Also of concern were the large number of people living in San Marino who were not citizens. Domestic law stipulated that a person had to reside in the country for 30 years before he or she could be naturalize. That seemed overlong and could perpetuate a kind of guestworker situation, where someone had lived most of their lives in a country but was not able to be a citizen.

With regard to the European Convention on human rights and the Covenant, an Expert asked how San Marino dealt with biotechnology and the right to life?

The Committee on Torture had noted in its concluding observations on San Marino that there were no appeal procedures granted to detainees. Also, only certain offences were subject to appeal, according to the Criminal Code, and information was requested on which offences were included for appeal purposes. Also, it was stipulated that close relatives were exonerated in regard to acts of terrorism in the San Marino Criminal Code and it was asked why such a stipulation existed.

Response by the Delegation of San Marino to Oral Questions by Experts

With regard to specific application of Covenant and rulings that had been handed down in that regard, the delegation said that there might be one judgement that had convoked the Covenant. But it was noted that there were relatively no human rights complaints made in the country because they maintained a high level of civility. The Government of San Marino operated in keeping with the European Convention on the protection of human rights. There was no real divergence between the Covenant and the European Convention.

Familiarity with the Covenant was ensured through the legal institutions, which aimed to develop and promote awareness for lawyers, including the community in a broader sense, the delegation said. The judges, through their constitutional instruction, had an ongoing need to keep their information updated and modern. The magistrates were very familiar with all the issues and developments in the field of human rights. Non-governmental organizations were present in San Marino; however, they might not be focused on the protection and promotion of human rights.

With regard to the question on the new article of the Criminal Code on the freedom of expression, that law provided for the dissemination of any statement promoting discriminatory acts or ideas based on racial hatred to be punished. There was no punishment for merely holding ideas based on hatred, but rather the promotion of those thoughts through the expression of those thoughts for purposes of discriminating against specific people. It depended upon the sensitivity of jurisprudence and how the magistrates would address each case on a case-by-case basis. Therefore there was no violation of freedom of expression in San Marino law.

On domestic violence issues, the delegation said that police officers and judicial staff were trained on issues of domestic violence. However, there had been no records of such abuse being reported.

The delegation said the Government had just begun to submit reports on human rights, and required more time to set up structures to prepare and submit reports on time. The concluding observations of the Committee would be reviewed by the Government and posted on the website of the Ministry of the Interior and translated into Italian so that the citizens will be able to read and understand the conclusions.

With respect to minorities, San Marino did not have any recorded minorities, which did not mean that there were no non-nationals living in San Marino. Normally these people retained status within San Marino by virtue of a residence permit, with the intention of working, studying or for reasons of family unification have become residents. They did not have the right to vote, which was the only difference between residents and nationals in San Marino.

As to whether San Marino was a tax haven, the delegation said in fact it was not

On the time line for setting up an Ombudsman, the delegation noted that it was only in 2006 that the Government had for the first time included the objective of setting up the role of ombudsman. The Paris Principles were viewed as fundamentally important and the Government intended to use them as a guiding principle in the implementation of such a body.

With regard to the conditions and administrative processes in the prison system, specifically on access to legal and medical services, the delegation noted that there were no limits imposed on the number of hours during which detainees could access legal counsel and medical staff. As for asylum-seekers, the country had a long history of hospitality, and after the Second World War San Marino had invited over 100,000 refugees into the country.

Concerning biotechnologies and bioethics, the Government had accepted a number of treaties and conventions in the area. A Bioethics Committee had been set up in San Marino, which specifically aimed at addressing this topic and providing the Government with up-to-date studies and research that had helped direct policies and regulations in domestic law in safeguarding the fundamental safety and rights of their citizens.

With regard to pre-trial detention, upon the decision to arrest a person the case was referred to a lawyer. If the person in question did not have a lawyer already, one would be provided to the individual for the period of questioning.

Concerning the question of acquisition of citizenship, the legislation of San Marino made a distinction between original citizenship and naturalized citizens. The former was acquired at birth and if the person had either a mother or father who had been a citizen of San Marino. The latter was based on a 30-year minimum residency of the individual in the country, which also took into account the length of time their ancestors spent in the country.

Further Oral Comments and Questions by Experts

Experts said that San Marino was setting a bad standard in keeping the requirement of 30 years residency to qualify to become a naturalized citizen. Further, it was noted that a large number of San Marino residents were women from Eastern European countries, why was that the case, and was there an issue with human trafficking in San Marino?

Experts noted with concern the comment by the delegation that the European Convention on human rights and the Covenant being almost the same documents. There were in fact a number of distinguishing factors between the European Convention for the Promotion and Protection of Human Rights and the Covenant, which were in fact different treaties. For example, the electoral rights provisions were more developed in the Covenant than that of the European Convention. Also it was not clear if the lawyers of San Marino were informed about the Optional Protocol to the Covenant.

Replies to Oral Questions

The delegation said that, with regard to the large numbers of women who were residents coming from Eastern European countries, that it was not an issue of human trafficking, but rather those women, who came from countries like Ukraine and Russia, had seasonal staying permits and did not work or live in San Marino on a permanent basis. Those women came to San Marino to work on a part-time basis to help for example the elderly and would be resident in the homes of residents in which they worked.

Preliminary Concluding Observations

RAFEAL RIVAS POSADA, Chairperson of the Human Rights Committee, said that the discussion had highlighted the strengthening of the relationship between San Marino and the Committee.

However, it had been noted by the Committee that, rather than simply details of legislation and Constitutional provisions, there was a greater need for information on facts on the ground, which integral in addressing the full scope of human rights in the country, Mr. Posada said. While the laws took into account many social trends, the Committee found it necessary and important to analyse the practical information of the effects on the ground in the context of jurisprudence.

Mr. Posada said that the Committee was concerned that the decision to develop an Ombudsman’s office promised by San Marino years ago had yet to be implemented. The Committee would also continue to recommend facilitation of the process of naturalization. The explanation given by the delegation qualified how one calculated the number of years. However, the Committee felt that the 30-year requirement was excessive, going way beyond similar provisions for other States, and as such should be reviewed.

In conclusion, Mr. Posada expressed the Committee’s satisfaction at all the efforts made by the delegation of San Marino and looked forward to further discussion in the future.


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