HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF MONACO
The Human Rights Committee today concluded its consideration of the second periodic report of Monaco on the measures undertaken by that country to implement the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Robert Fillon, Permanent Representative of Monaco to the United Nations Office at Geneva, referred to the long history of Monaco which had been under the protectorates of neighbouring countries until the French Revolution when it ceased to exist by being annexed by France. It was granted independence in the 19th century and became a haven of work opportunities for the neighbouring regions thanks to speedy recovery after the Second World War. Mr. Fillon also stressed Monaco's long commitment to international organizations. As regards the Covenant, it was ratified on 28 August 1997. Monaco's initial report had been considered on 13 July 2001.
In preliminary concluding remarks, the Chairman of the Committee, Rafael Rivas Posada, conveyed the general feeling of the Committee members that there had been great progress in Monaco with regard to the recommendations of the last review. He highlighted the queries about the interpretative declarations by Monaco to the Covenant. The right to make reservations was fully enshrined in the Covenant, but domestic law could not limit the text or make exceptions. This illustrated the problem of having interpretative declarations.
Over the course of two meetings, the Monegasque delegation answered questions by the Committee relating to a number of issues, including the definition of terrorist acts; abortion; banishment; succession to the throne; detention of juvenile offenders; sexual harassment and domestic violence; a monitoring body for the protection of human rights; detention arrangements with France; the representation of women in public life; right to association; right to assembly; children born out of wedlock; rights of persons in custody; and racial hatred.
The Monegasque delegation was made up of members of the Monegasque Permanent Mission to the United Nations Office at Geneva and representatives of the Department of Social Affairs and Health; the Department of External Relations; the Department of the Interior; and the Direction of Judicial Services.
When the Committee resumes its work at 3 p. m. this afternoon, it will start its review of the fifth periodic report of Japan (CCPR/C/JPN/5).
Report of Monaco
According to the second periodic report of Monaco (CCPR/C/MCO/2), Monaco signed and ratified the International Covenant on Civil and Political Rights in 1997. The initial report was considered by the Human Rights Committee on 13 July 2001. The Principality has a population of 32,020, which is made up of 122 nationalities, including 7,845 Monegasques, 10,229 French nationals and 6,410 Italian nationals according to the most recent official census of 2005.
Regarding women, the report notes that because Monaco is a small country and because of certain other of its specific characteristics, it did not have a minister or institution with specific responsibility for promoting the situation of women, and it did not apply a specific policy on women. Nonetheless, the Principality had, for many years, been aware that the contribution of women was essential to its social stability and continuing economic development. Access to employment for women had, therefore, been encouraged. The report said that women played an essential part in Monaco's economic life, but they accounted for only 25 per cent of the professions and merely 8.6 percent of company managers. Monaco's law enforcement services (fire fighters and carabiniers) formed part of the military and did not as yet include women, mainly because of physical fitness requirements.
Concerning the Criminal Code, the report states that there is an article providing that there should be grounds for mitigating sentences in the case of murder or assault and battery, if those acts had been provoked by serious assault or violence against individuals. There are also mitigating circumstances, if such acts are committed in order to repulse any individual seeking to enter a dwelling that appeared to be inhabited. Moreover, the Criminal Code provides for exemptions from prosecution where the crime is committed in response to a legal directive or the command of a legitimate authority, or in the case of legitimate defence. Case-law envisages a further exception linked to a state of emergency. Finally, the Criminal Code provides that there is no indictable offence, if the perpetrator is suffering from a mental disorder or is compelled by force which he was unable to withstand. The right to life is a term encompassing all of the rights accorded to living beings generally, and human beings in particular. Infringements of that right might be, inter alia, the death penalty, voluntary abortion, euthanasia, eugenics and suicide.
Presentation of Report
ROBERT FILLON, Permanent Representative of Monaco to the United Nations Office at Geneva, introducing the report of Monaco, made reference to the long history of Monaco starting with Celtic tribes and Ligures that were present in Monaco in prehistoric times. The expansion of the Republic of Genoa beginning in the 11th century would then determine the history of Monaco. As great navigators, the Genoese took possession of the rock of Monaco. In the 16th century Monaco was then placed under a Spanish protectorate. When protection diminished and after secret negotiations with France, the protectorate was abandoned and Monaco came under a French protectorate. Up until the French revolution, the Princes of Monaco were allies of the kings of France. During the Revolution the Principality ceased to exist and only gained complete sovereignty again in 1861, having survived various troubles in the decades between. In this period, the Casino and other tourist attractions were founded. Monaco recovered remarkably fast after the Second World War and developed a strong economic dynamic.
Mr. Fillon said that Monaco's commitment to international organizations was not new: in 1919, Monaco took part in the preparatory conferences of the League of Nations which was rather opposed towards micro-states. That was why the Principality had started focussing its activities on specialized organizations such as the World Health Organization or UNESCO. In 1993 Monaco was admitted to the United Nations and Prince Albert was designated as head of the delegation to the United Nations. Up until today Monaco remained a "third country" regarding the European Union. It was however integrated in the union and had introduced the Euro. As regards the Covenant, it was ratified on 28 August 1997. Monaco's initial report had been considered on 13 July 2001.
Response to Questions Presented to the Delegation in Advance
Regarding the number of interpretative declarations to the International Covenant on Civil and Political Rights, the delegation said that Monaco was currently not considering reducing them. They were still important for the situation in Monaco today, since the Covenant had entered into force only in November 1997. The provisions of the Covenant had already been invoked before courts, they were legal norms and Monegasque judges applied them. Monaco did not plan to create an independent national institution for the protection of human rights. The protection of human rights was assured by the judicial appeal procedure based on the violations of one or more provisions of the Covenant. The Optional Protocol was currently being reviewed by the administrative services of the Monegasque Parliament in order to determine its compatibility with Monegasque law.
The human rights and fundamental freedoms unit did not have the competences to monitor the implementation of the Committee's recommendations. It was established to monitor the application of the European Convention of Human Rights and Fundamental Freedoms. The unit was only capable of receiving individual communications regarding that Convention.
The fight against terrorism was anchored in the Penal Code and took into account all aspects of terrorism, including its funding. Between 1977 and 1991, Monaco had acceded to 13 conventions related to terrorism. The law defined terrorism as intentionally committed crimes vis-à-vis an individual or a collective, against Monaco, any other state or an international organization, in order to threaten the destruction of political, economic or social structures or in order to harm public order. The Monegasque law particularly suppressed arms trafficking, torture, or supplying shelter or financial aid to someone who belonged to a terrorist organization. The criminal procedure was governed by common law, so that individuals in terrorism cases benefited from the same provisions as for those held for common law crimes, such as for example an examination by a physician, and a demand for a lawyer of their choice or an interpreter, if needed. Police custody lasted one day and could be prolonged with judicial authorisation. It should be noted that Monaco froze financial assets in connection with allegations relating to terrorism. Part of the funds could be made be available to cover basic legal costs.
Regarding women, the delegation stated that women accounted for 25 per cent of the professions but only 8.6 percent of company managers. In January 2008 there was a slight increase of women in the private sector. Regarding women in elected positions, it was said that women occupied a number of head of service positions. Among the measures ensuring women equal access to public positions, there was a possibility of working part-time.
The delegation said that there were no legal provisions that addressed sexual harassment. This was currently being considered. Turning to domestic violence, this was not particularly criminalized. There were some provisions under the criminal code for homicide that were under certain circumstances applicable to domestic violence. The National Council had adopted a bill on the matter that was currently being discussed in the government. However, the cases were rare. Of 83 proceedings between 1 October 2007 and 31 August 2008, only four had to do with domestic violence. While there was no legislative framework, there was a great deal of logistical support for the victims. A national campaign had been set up to raise awareness.
Regarding the choice of residence, there was now a choice based on the mutual consent of the partners. Legislation in 2003 changed the fact that only the husband decided on the residence and installed complete equality in this regard. Also, there were no more any restrictions for a woman that had been naturalized to pass on her nationality to her children.
Medical termination of pregnancy was suppressed under the criminal code. However, when the life of the mother was in danger, there were no sanctions in the case of an abortion. A bill was currently being drafted with the objective to create a family support centre to provide support to a pregnant woman and her family. The second purpose of this bill was to decriminalize medical termination of a pregnancy, if the pregnancy was for example a risk for the mother or the foetus. Removing the parental authority as sanction for abortion, as stated in the old law, was no longer applied.
Regarding the circumstances under which police custody could be extended, the delegation noted that the basic principle was to keep a person in custody for 24 hours. This period could then be extended to 24 and then again to 48 hours. Such an extension was particularly applied to enable investigations concerning the safety of the State or money laundering.
As for detention centers for juveniles, the delegation stated that there was a very low number of juvenile offenders. During the last 16 years there had been 16 juvenile offenders under the age of 16 detained in the maison d'arret in Monaco. This meant about one arrest per year. At the moment, there were no intentions to set up such centers, but alternative measures had been set up.
Concerning banishment, the delegation explained that the government was envisioning removing this provision since it was no longer used.
Questions Raised by Committee Experts
An Expert noted that in general, answers in the report were often very brief and in-depth information was needed on various issues. The Committee would especially like to know more about what happened in Monaco in practise. However, many Experts were very impressed by the progress made by Monaco on various issues.
Regarding interpretative declarations to the Covenant, an Expert said that it seemed that there were reasons or traditions why they could not be removed. The Expert wanted to hear more on the subject. Also, more information was needed regarding the role of the Covenant with respect to the legal system of Monaco.
Several Experts commented on the fact that Monaco had no intention of setting up an independent body to protect human rights. They clarified that with the establishment of an independent body, one was seeking to establish an overseeing body that would provide protection of human rights without any compromises in Monaco. The explanation by Monaco that the body would not be set up because there was a possibility for appeal in the courts was not logical. It was self-explanatory that the courts had the possibility of appeals. An independent body would have an oversight function. Another Expert added that a national commission for human rights was not only required in countries that had suffered from grave human rights violations. The scope of such bodies was very wide as they ensured a monitoring function for various treaties among other possible functions. Such a monitoring function was missing in Monaco. The recommended unit had to monitor the government and therefore had to be independent. Another Expert suggested that since there was already a unit in place that monitored the implementation of recommendation from European bodies, they could also set up a unit responsible for United Nations treaty bodies.
The wide ranging Monegasque definition of terrorism was widely criticized by the Experts. Some Experts said that just about anybody could be a terrorist under this definition. What would happen if somebody hanged around at night and made a public nuisance of himself? Would this person be considered a terrorist? It seemed like any individual behaviour that seemed to disturb public order fell under the terrorism definition. Another Expert asked if it would be considered a terrorist act if a ship cleaned its tanks in Monaco's port. Also, had Monaco experienced money laundering in relation to terrorism? How many cases had come before the court under this label? Case law on this and other issues was wished for, as well as information on penalties and sanctions concerning terrorism. One Expert stated that he was rather negatively impressed by the number of conventions relating to terrorism that Monaco had acceded to. Monaco was repeatedly urged to re-examine the definition and the subsequent consequences by the Committee.
Regarding the courts and the prisons, Experts asked various questions: since there were no prisons, where did the Monegasques send their people to prison? Were they sent to France? Was the law of Monaco applicable to these prisoners or the law of France? Were there any arrangements? The function of the juge de liberté was also not clear as one Expert pointed out and asked for further explanation of this person's functions. Another Expert said that there seemed to be no appeals mechanism in place. How was a criminal appeal organized?
Several Experts asked for more details about the issue of abortion. How did the number of deaths of women and the ban on abortion correlate: what was the dialectic? An Expert criticized that Monaco seemed to have a criminal notion of abortion that was not appropriate in this context. The fact that Catholicism was the State religion was acknowledged, however, could Monaco not simply put into the law that abortion was not repressed? An Expert further inquired on the number of persons persecuted for abortion in Monaco.
Regarding torture, an Expert wanted to know how the provisions of the European Committee for the Prevention of Torture related to police custody. In addition, she asked how minors were treated in incarceration.
Concerning women, an Expert asked whether it was because Monaco was a business country, a financial center, that there were so few women in management positions. Also, would there ever be the opportunity that women would become head of government or prince, or rather "princess" in that case? The Expert added that he could not even find one woman in the government. He was rather sceptical about awareness-raising campaigns and wanted to know what they were aimed at. The topic of succession to the throne was taken up by another Expert, who added that if an aristocratic position had any political power, it was extremely difficult to limit it to men. The issue had been raised earlier on in the Committee with the Prince of Liechtenstein who then said that the choice of a woman for this post could have a cascade-effect that could trickle down to other organs. The Expert suggested that there could be such a thing as a rectified Salic Law of Succession for Monaco.
One Expert drew the attention to banishment which was still included in Monegasque law. This issue had already been raised in 2001 in the Committee and the Monegasque delegation had then provided the same answer as today, saying that banishment was no longer applicable and would soon be removed. The Expert asked why it was so difficult to abolish this law.
Answers by the Delegation to the Oral Questions
Relating to the rights of women, the delegation specified that Salic law was not applicable in Monaco. Salic law excluded women from succession to the throne which was not the case in Monaco. Women could succeed to the throne, this had happened in history twice already. However, men were preferred.
Regarding the information requested on the awareness raising campaign for women, the delegation explained that this campaign wanted to inform women about their rights and the measures to protect them against violence. The goal was also to eradicate any kind of violence, physical or verbal.
Turning to banishment, the delegation said that the sentence of banishment was deemed obsolete and was no longer applicable. The Prince could not abolish it alone because the Parliament had to be involved when law was being modified. The delegation stressed that banishment had not yet been removed because of procedural matters. Suggestions for the review of the Criminal Code were submitted in groups and this was an ongoing process.
Concerning reservations to the Covenant, the delegation explained that there was only one real reservation to the Covenant. The others were rather interpretative declarations which explained the way that the Covenant would be implemented in Monaco.
Furthermore, relating to the Human Rights Unit, this institution took care of the monitoring of European rights and fundamental freedoms. Regarding the suggestion of the creation of a similar institution for United Nations treaties, the delegation said that this depended on the needs of the principality. Due to the tiny size of the principality, the existing human rights unit was very easily accessible and there was no need of creating an additional one. He added that regarding the appeal to courts the delegation believed that there were already sufficient guarantees to the right to appeal as Monegasque courts were not overburdened.
On terrorism, the delegation rejected the affirmation of the Experts that the definition was too broad. It was clear that if someone was for example making a public nuisance of himself or demonstrating, he would certainly not be considered as a terrorist. Cleaning vessels at sea, which was sanctioned, would not be deemed as a terrorist act, unless the dumping of toxic waste was committed with the intent to terrorize the population. So far, there have been no terrorist cases that had been brought to the attention of the courts.
With regard to Monaco's relation with neighbouring States regarding detention, there was a bilateral agreement with France on this issue. Detainees were transferred to France if they were aliens. If they were Monegasques they stayed in a local prison in Monaco. Juveniles were only detained for a very short period and then released or subject to other measures. The juge de liberté was responsible for granting or refusing bail.
Turning to the medical termination of pregnancy, the delegation affirmed that Monaco's State religion was Catholicism. Abortion was a complex issue because it was a profoundly human matter. Pragmatically, it was considered that if a doctor considered that the mother or the foetus were at risk, an abortion could take place without having legal consequences. The matter of abortion was currently being considered by representatives from government, women's groups and religious groups. The delegation added that abortions in the case of a possible serious malformation of the foetus and pregnancies that were the result of incest or rape had no legal consequences because they should not be added to the traumas inflicted on these women. A bill on this matter was almost finished and would be sent to Parliament at the latest in the first half of the next year.
Follow-up Questions by the Experts
An Expert insisted on clarification on the question if prisoners were sent to France or not, since there had been contradicting information on this. If they were sent to France, what law was applicable to those prisoners? If it was French law, Monaco would probably not have any control. What were the agreements made? Another Expert said that concerning the incarceration of minors, they were particularly vulnerable. Was there an option for them to be detained in France?
Another Expert reiterated her earlier question in asking if a right to appeal existed. She noted that there were criminal convictions in Monaco.
Regarding abortion, an Expert asked if there had been prosecutions. Since abortion was possible in nearby countries she wanted to know how Monaco could enforce its restrictions?
Finally, it was stated that although Salic law as such did not apply for the succession to the throne, there was still a preference for males. This had the cascade-effect "male better, female ok".
Response by the Delegation
The delegation explained that detainees in the local prison were there for limited prison sentences that could be served in Monaco. Monegasque imprisoned for long sentences were sent to the French system where they served their sentence under Monegasque jurisdiction.
It was confirmed that the Criminal Court was not subject to appeal. However, there was a court that was a review court and could hand down a ruling. With regard to abortion, the delegation stressed that it was the doctor who diagnosed and evaluated the need for an abortion. Given this diagnosis and the confirmation by a second doctor, there was no criminal procedure if the two doctors both agreed on the necessity. Given the tiny size of the territory, women could go to France or Italy to have an abortion. Nevertheless, Monaco had to undertake reflection with regard to this very sensitive topic.
Regarding persons held in police custody, the delegation specified that a new law had been adopted saying that a person held in custody could meet with a lawyer from the very beginning. Persons in police custody could choose their own lawyer, if that was not possible a court appointed lawyer on the basis of rotation was assigned. The meeting could take place within full confidentiality during one hour. The right to meet with a lawyer was not the only amendment: the person in custody could now also be examined by a medical practitioner and make a telephone call to the person he lived with or the employer, if this was applicable.
Concerning the right to peaceful assembly, the Government envisaged extending the Article of the Constitution to all persons under Monegasque jurisdiction. A working group had come to the conclusion that a public meeting might be held freely and without earlier notice. However, if that was a demonstration, a statement had to be sent three days in advance to the administration. The delegation held that it was not necessary to change the Constitution as a law could set forth the right for freedom of assembly.
With respect to a law on the right to association, it was enough to declare the association formally. Within 15 days the association would receive a receipt of the notification that the association would be set up. However, the association should not be sectarian in nature. There was a draft text that said that it was possible to oppose the setting up of such an association.
Regarding the differentiation between children born out of wedlock and children born in wedlock, the delegation said that the differentiation had disappeared with a new law in 2003.
Concerning the penalty for racial discrimination and racist and xenophobic insults, the delegation said that a draft law was currently being prepared. This draft law took into account freedom of expression in public. Monaco was moving towards a notion of aggravation if there were crimes against persons or property linked to racial hatred. It was added that there had been attempts to combat signs of xenophobia during sporting events. Monaco was working on a bill that sanctioned such actions. The wearing or showing of a symbol recalling racist or xenophobic ideologies would be sanctioned. In addition, it was not possible for a person who had been convicted in Europe for similar behaviour to take part in a sporting event in Monaco.
With respect to training of judges with regard to the Covenant, the delegation explained that judges were either Monegasque or French and were educated in the French school of judges. The authorities in Monaco organized periodical conferences in the justice palace for training on human rights issues. With regard to police officers, there was basic training to police officers for two years and afterwards theoretical courses in criminal law, criminal procedures and police ethics. There was a small manual on police ethics for the use of police officers that was soon going to be updated. Wardens in the Monaco prison were also made aware of guaranteeing the prisoners' rights.
The delegation said that there were many non governmental organizations in Monaco, most of which dealt with the environment. It was stressed that it was very important to hold up good relations with such organizations. The delegation also acknowledged that there was a close relationship between the environment and human rights.
Questions by the Experts
Regarding the participation of a lawyer in police investigations, an Expert asked if a person in custody had the right to demand a lawyer to be present during police interrogations. In some countries police officers could not continue asking questions after the person in custody had asked for a lawyer. Was the defendant advised that he did not have to answer questions while a lawyer was not yet present? Also, if police custody was prolonged, could the lawyer visit again? Usually, the Committee deemed 96 hours of pre-trial detention as too long. Were there any cases of detention for more than 48 hours?
Several Experts asked for clarification on the term "sectarian" organization which could be banned. They assumed that the term would neither include religious or political organizations. Did it mean anti-democratic or fascist organizations? In practice, in what category did sectarian elements fall? An Expert added that defining a sect was extremely difficult.
Regarding the differentiation between children born in wedlock and children born out of wedlock, an Expert asked if the law still spoke of legitimate children versus children born out of wedlock. If so, this would be an offense to the dignity of the child. In that case, would it not be better to make the difference between a child born in wedlock or out of wedlock?
Turning to insults of racist nature, an Expert asked how widespread the problem was in Monaco. Which national or ethnic groups were concerned? In that context, the Expert asked if asylum-seekers came directly to Monaco or did they spill-over from neighbouring countries? He also raised the issue of the control of the maritime borders of Monaco. Due to the geographical situation of Monaco, there were obvious problems of patrolling the maritime border. Who was in charge of that? The Expert wanted to know if there could be a joint formation on the use of force of the maritime police and the land police.
Response by the Delegation
Regarding freedom of association and the issuance of a receipt by the administration, the delegation explained that if there was a delay in response or silence, the law provided that the association was accepted. Silence meant consent. There was a written reply by the Minister of State, if there was an objection. Reasons for such an objection could be that the statutes were not in keeping with the law. Another reason was, if the purpose of the association ran counter to public order, which included racist, fascist or xenophobic associations, or the unlawfulness of associations of a sectarian nature. The definition of sectarian had taken up many discussions in the Principality. After these consultations, the result of which would go before Parliament soon, the definition was activities that were designed to create, maintain or exploit psychological or physical subjection of persons who participated in their activities. This definition had been made to ensure fundamental rights of the individual and a denial of an association for that reason was possible. Such a negative decision could be appealed. If real activities of an existing association were of a sectarian nature, the Monegasque would pronounce the dissolution of the association.
Concerning children born out of wedlock and illegitimate children, the delegation confirmed that that was the term used in the Civil Code. However, there was no longer any difference between those children and children born in wedlock. The only difference remaining was with regard to a child born because of incest. This had to be considered further.
As to racism, especially during sports events, there have not been many reports. But since there were 130 communities of people with various backgrounds, racism in all its forms had to be addressed. The delegation mentioned that there had been anti-Semitic manifestations. So far it was not known if the authors were residing in Monaco or not.
Regarding the patrolling of Monaco's maritime border, the delegation said that there was only one Monegasque vessel for coastal surveillance. Therefore, the coastal patrol was carried out together with French authorities. There were other ships used for maritime environmental purposes.
Concerning persons in police custody, the delegation explained that the hearing was stopped so that the lawyer could talk to the person. If the custody was prolonged, the same guarantees were given to the person as for the first 24 hours.
Preliminary Concluding Remarks
RAFAEL RIVAS POSADA, Chairman of the Committee, in preliminary concluding remarks, conveyed the general feeling of the Committee members that there had been great progress in Monaco with regard to the recommendations of the last review. He highlighted the queries of the interpretative declarations by Monaco to the Covenant. The right to make reservations was fully enshrined in the Covenant, but domestic law could not limit the text or make exception. This illustrated the problem of having interpretative declarations.
The Chairman said that there had also been misgivings regarding the legal regime for the defense of prisoners that came into effect when prisoners were sent to France where prison security was under French law. It should be clear what law protected those people. It was also not clear, why rules that seemed to be obsolete in Monegasque legislation were not simply removed from domestic legislation. He added that the term "sect" was not clear in Monaco's report as it was not with many other States.
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