Universal Periodic Review
On the road to
implementation
The Follow-up Programme:
On the road to
implementation
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The second and subsequent cycles of the review should focus on, inter alia, the implementation of the accepted recommendations and the development of the human rights situation in the State under review.
A/HRC/RES/16/21
1. Challenges and opportunities to improve human rights
The Universal Periodic Review (UPR) is a three-stage process including a review by UN member States, the implementation of the recommendations received during the review, and an assessment of the implementation at the next review four and a half years later.
Its second stage, called “Follow-up”, is the key step as it is the one leading to the concrete realisation of the UPR goal: the improvement of the human rights situation on the ground. The success of this phase also determines the efficiency and credibility of the mechanism and demonstrates States’ engagement in promoting and
Introduction
under Review (SuR) at the next review, it is necessary to obtain information about implementation before the second cycle.
Recommendations are the most visible outcome of Working Group sessions.
However, the only purpose of making recommendations in Geneva is to get them implemented. It therefore requires monitoring State’s activities, and reporting back to domestic civil society or recommending States.
In order to strengthen the UPR process, UPR Info started the “Follow-up Programme” in 2011 by contacting and compiling data from every stakeholder from countries that were going to be reviewed for a second time from January 2013 to May 2014 (UPR sessions 15 to 19), amounting to 66 States.
The results of this research, conducted over the course of one year, are hereby presented. The methodology employed is elaborated at the end of the document.
1.1. Quick overview
Besides the number of international human rights treaties that have been ratified, the UPR has proven to be an effective awareness-raising and advocacy mechanism.
Above all, the UPR is an opportunity for civil society to discuss human rights issues with its State. For example, in Tonga, approximately 50 organisations took part in broad consultations organised by the government in preparation for its Review. In Costa Rica, recommendations on implementing a national plan of action created a discussion momentum between civil society and the State. In the United Arab Emirates, the government set up a new human rights department at the Ministry of Foreign Affairs thanks to the UPR. The number of new laws adopted in the aftermath of the UPR is strongly indicative of its potential.
Indeed, this study shows encouraging outcomes. Most strikingly, our research has found that at mid-term, approximately 40 percent of recommendations are either partially or fully implemented. In other words, 2 and half years after the Universal Periodic Review, States have started implementing 40 percent of their recommendations. Taking into account the huge number of recommendations
received during the thirteenth UPR session (approximately 150 recommendations per State) and the extent to which recommendations are being implemented at mid-term, the UPR is an effective tool to improve human rights situations on the ground.
In addition, according to our study of the States reviewed at the thirteenth UPR session, the States under review answered to 85 percent of recommendations received. While 100 percent should be the actual aim, it demonstrates that the UPR undoubtedly has emerged from its chrysalis.
This study will present the Follow-up Programme’s quantitative outcomes in Chapter Two, qualitative outcomes in Chapter Three, and perspectives and assessments on the thirteenth UPR session in Chapter Four. The methodology is explained in Chapter Five.
Geneva, October 2012
Contents
1. Challenges and opportunities to improve human rights ... 4
1.1. Quick overview ... 5
2. Two years later... ... 9
2.1. Basic facts ... 9
2.2. Implementation status ... 10
2.3. Implementation status by regional group ... 11
2.4. Implementation status by acceptance ... 12
2.4.1. Implementation of rejected recommendation ... 13
2.5. Implementation status for action ... 14
2.6. Implementation by issues ... 16
3. Case studies and best practices... 21
3.1. Malaysia... 23
3.1.1. MDGs and housing rights ... 24
3.1.2. National plan of action, civil society collaboration ... 24
3.1.3. Trafficking and migrants ... 25
3.1.4. Women’s rights ... 26
3.2. Chile ... 27
3.2.1. Indigenous rights ... 28
3.2.2. Trafficking and refugees ... 29
3.2.3. Women’s rights ... 29
3.2.4. Rights of the child ... 30
3.3. Romania ... 30
3.3.1. Minorities rights ... 32
3.3.2. Rights of the child ... 33
3.3.3. Corruption ... 33
3.3.4. Detention ... 36
3.4. Portugal ... 36
3.4.1. Racial discrimination ... 38
3.4.2. Minorities ... 40
3.4.3. Following up UPR recommendations ... 42
3.4.4. Women’s rights – domestic violence ... 42
3.5. Mauritius ... 44
3.5.1. Human rights education and training... 45
3.5.2. Detention ... 46
3.5.3. Poverty ... 47
3.5.4. Women’s rights ... 48
3.5.5. Rights of the child ... 52
4. Beginning a brand new cycle ... 54
4.1. From a State under Review perspective ... 54
4.1.1. Reporting the implementation: rejected and unanswered recommendations ... 55
4.1.2. Reporting the implementation: updates provided on recommendations of the first cycle 56 4.2. From a recommending State perspective ... 58
4.3. Challenges for the second cycle ... 60
5. Methodology ... 63
5.1. Contacting every stakeholder ... 63
5.2. Implementation Recommendation Index (IRI) ... 63
5.3. Rejected recommendations ... 64
5.4. Data ... 65
5.5. Action categories of UPR Info ... 66
5.6. Liste of acronyms ... 67
2. Two years later...
The information provided within this report is unique. No such comprehensive research has ever been conducted on how UPR recommendations are implemented on the ground. Obtaining this information has required contacting every UPR actor from every country on every recommendation.
Basing our study on 253 contributions from civil society, 6 contributions from National Human Rights Institutions and 7 States’ mid-term reports, UPR Info is able to provide updated information on 3’294 recommendations out of 6’542 made to 66 countries reviewed. As a result of the comments stakeholders have provided us, 66 Mid-term Implementation Assessments1 (MIA) have been published in total, one per country which will be reviewed for the second time from January 2013 to April 2014.
Undoubtedly, quantitative assessments are limited in nature. Data presented within this study should be read with awareness that the UPR is a dynamic process and therefore the status of implementation is constantly changing: it is not a current state of implementation of every UPR recommendation, but rather an overall assessment on the implementation of UPR recommendations for one third of the world at mid-term. The aim is to shed light on the progress and practices achieved in alignment with advancing human rights through the UPR mechanism.
2.1. Basic facts
UPR Info developed an index categorising the implementation level achieved by the State for the recommendations received at the UPR. Every recommendation is assigned a level of implementation: not implemented, partially implemented or fully implemented based on the index criteria.
1 MIAs can be consulted at Follow-up Programme’s website: http://followup.upr-info.org/
“Not implemented” indicates that no action has been undertaken so far. “Partially implemented” means that the State has taken some action to improve the human rights situation. Finally, “fully implemented” reflects full compliance with a recommendation. This status is hard to achieve, and often denotes the ratification of international instruments since progress of such kind can be objectively and definitively measured.
2.2. Implementation status
Out of the 3’294 recommendations commented upon by stakeholders, 391 recommendations have been fully implemented (12.16 percent of the total), 859 have been partially implemented (28 percent) and 1884 have not been implemented at all. On 160 recommendations, the updates we have been provided with have not been useful in assessing the implementation status of the recommendation.
We need to be mindful that the implementation status highly depends on who commented upon the recommendation assessed. On some MIAs, domestic civil society did not participate in the Follow-up Programme, while the State provided ample data on the implementation. As a result, recommendations are usually assessed as either “fully” or “partially” implemented, since States rarely claim to be inactive.
In this chapter, only commented recommendations commented upon with the status of “fully”, “partially or “not” implemented are considered.
2.3. Implementation status by regional group
When it comes to splitting the implementation status by regional group, it is possible to find out which regions were active in implementation by mid-term.
At one extreme, Asia is the region where the least number of recommendations have been implemented. At mid-term, 81 percent were not implemented at all and 19 percent were either partially or fully implemented.
At the opposite end of the spectrum, in the Eastern European Group (EEG) is a region where only 35 percent of recommendations have not been processed at all, while 65 percent were implemented.
Generally speaking, at mid-term, only the Latin American and Caribbean Group (GRULAC) and EEG have begun implementing over half of recommendations (58 and 65 percent, respectively). WEOG was nearly to half (47 percent).
2.4. Implementation status by acceptance
Before the adoption of the Working Group report in the plenary session, States are encouraged to announce whether they accept or reject the recommendations they received. OHCHR tags State’s responses as either “noted” or “accepted”.
Unfortunately, while such a categorisation scheme has the great advantage of avoiding the fact that recommendations are rejected by States, it does not reflect the State’s real intention as expressed during the UPR.
Using categories internally employed at UPR Info2, we notice that accepted recommendations have more of a chance of being implemented (action was taken for 50 percent of them), and both rejected and recommendations with no response are barely taken into account by States. While this result is obvious (strong recommendations have less of a chance to be implemented), it confirms that data collected under the Follow-up Programme is correct.
2.4.1. Implementation of rejected recommendation
The previous figure demonstrates that even rejected recommendations are implemented, since action is taken for 15% of them (both fully and partially implemented).
In detail, fourteen countries took action on a number of rejected recommendations:
Albania (2 recommendations), Cameroon (1), Canada (6), Chad (3), China (12), Ethiopia (3), Germany (3), Malaysia (9), Mexico (3), Romania (3), Serbia (1), Turkmenistan (1), Uzbekistan (1) and Viet Nam (4). This “unexpected” result was notably observed for “Death penalty” issues for China, “Indigenous people” for Canada, “Asylum-seekers - refugees” for Chad, “Human rights violations by State agents” for Mexico, “Migrants” in Romania, “NHRI” for Ethiopia, “corporal punishment” in Albania. Examples are numerous, totaling more than 50 recommendations rejected but implemented anyway. If we take into account that this number is solely based on one third of countries worldwide (the scope of the Follow- up Programme), we could extrapolate that more than 150 UPR recommendations are or will be implemented even though they have been rejected by States.
There are two main ways to explain such implementation in spite of prior rejection:
1. States are scared of having such discussions at the international level, where the feeling of beeing inspected is acute; once back home, the international pressure is diluted, the framework is softened. Thus, States rejecting recommendations at the UPR keep their hands free and avoid to be bounded to obligations they are unsure whether they can be implemented. This is a precautionary principle;
2. Civil society seizes the opportunities raised by the UPR to engage a broad in- country discussion and to start a nation-wide advocacy using the media; in other terms, the UPR is a chance to trigger new debates.
It must be therefore noted that without the civil society action (both at international and national level), rejected recommendations would be hardly implemented.
2.5. Implementation status for action
The Action Category is a unique feature of UPR Info’s Database of UPR Recommendations. Developed by Professor Edward R. McMahon of the University of Vermont with the support of UPR Info, it creates a new approach to recommendations by looking into the type of action requested. It ranks recommendations on a scale from 1 (minimal action) to 5 (specific action)3.
This ranking scheme enables us to cluster recommendations by “strength”. During the entire first cycle, 35 percent of recommendations were of category 5, which denotes that approximately one third of the recommendations made at the UPR have the precision required to allow easy further monitoring. A recommendation asking to
Justice” would be of category 5; it is easy to evaluate, and if fulfilled, has the potential to remarkably improve the human rights situation. The latter kind of recommendation has to be promoted within the UPR system.
At mid-term, in between the two Reviews, as expected recommendations of category 5 are implemented the least, while recommendations of category 4 are more likely to be implemented. The “not implemented” status steadily decreases until category 1.
Recommendations of category 4 are 13 percent more likely to be implemented:
The least strong category (1) is the most likely to be implemented, as only 44 percent of them are not implemented:
The difference of implementation statuses depending upon the action category of the recommendation is outstanding. This leads us to conclude that the level of action entailed by a recommendation has a tremendous impact on whether or not it is implemented. Thus, when assessing the implementation of recommendations, action categories must be taken into consideration.
2.6. Implementation by issues
UPR Info’s database of UPR recommendations and voluntary pledges4 is a tool that enables stakeholders to quickly identify the issues pertaining to recommendations.
Through an exclusive list of 54 issues, every recommendation is tagged with one or several issues.
The most raised issues during the whole first cycle were the following ten:
As is evident from the chart above, “International instruments”, “rights of the child”
and “women’s rights” are by far the top three issues raised at the UPR.
Unsurprisingly, the very same triptych is found when assessing the implementation of recommendations at mid-term: 95 recommendations5 relating to “international instruments” have been either fully or partially implemented (plus 176 recommendations not implemented), 142 concerning “rights of the child” (88), and 208 regarding “women’s rights” (214). More recommendations lead to more implementation opportunities.
In more details and by regional group, in Africa the distribution remains very similar (“women’s rights”, “rights of the child”, but not “international instruments”), except that recommendations relating to “technical assistance” emerge:
5 As recommendations can pertain to many issues (“ratifying CEDAW” is both international
instruments and women’s rights), percentage cannot be used in following figures.
Asia (the regional group which implemented the least number of recommendations), has several recommendations concerning “torture and other CID treatment” which were implemented at all, but shows interesting improvements on “special procedures”:
34 8 3 3 4 2 6
1
7 4
10 15
4 1
23 28
23 29
69
45
25 45
52
32 76
0 10 20 30 40 50 60 70 80
Number of recommendations
Asia: implementation status for the 10 first issues
Asia - fully impl.
Asia - partially impl.
Asia - not impl.
The Eastern European Group has an encouraging implementation record on
“minorities” issues:
5 1
15
8 8
1 4
8 6
1 7
2 2
6 5
14
3 2
20
1 7
24
1 6
8 5
3 4 5
2 5
2 9
14
0 5 10 15 20 25 30
Number of recommendations
EEG: implementation status for the 10 first issues
EEG - fully impl.
EEG - partially impl.
EEG - not impl.
In GRULAC, “justice”, “NHRI” and “indigenous peoples” are the main topics evolving beside the three recurrent issues:
1 3
9 11 11
1 1
10
3 7
4 14
11 29
2 12
6 25
9 6
9
6 7
10
3 10
2 26
22
0 5 10 15 20 25 30 35
Number of recommendations
GRULAC: implementation status for the 10 first issues
GRULAC - fully impl.
GRULAC - partially impl.
GRULAC - not impl.
Finally, in Western Europe and Other Groups, “racial discrimination”, “migrants”,
“minorties” and “treaty bodies” are on track:
22
6 5
3 14
10 4
8 13
9 11
17
2 12
1 13
3 9
28 46
23
6 12
8 16
12 26
17 24
0 5 10 15 20 25 30 35 40 45 50
Number of recommendations
WEOG: implementation status for the 10 first issues
WEOG - fully impl.
WEOG - partially impl.
WEOG - not impl.
However, such data does not take into account specific issues for countries within each regional group. In order to provide best practices, it is worth having a closer look at the State’s situation.
3. Case studies and best practices
In a more qualitative approach, we selected 5 States (one per regional group, namely Chile, Malaysia, Mauritius, Portugal and Romania) in order to extract how they addressed the recommendations on the ground, and to closely explore which improvements have been achieved. We picked some of the best records, aiming at showing the best examples and sharing best practices. All data is extracted from the Mid-term Implementation Assessments which are available on UPR Info’s Follow-up Programme website6.
Generally, we can learn from the five countries selected that several measures are taken with a view towards addressing women’s rights. Portugal has ameliorated the administration and its “victim protection system” through enhancing and easing administrative support, monitoring domestic violence cases and facilitating access to women’s shelters. The recognition of victim status is core in Portugal’s view, and a recently created Commission can financially support the victims. Mauritius looks to build further shelters, to provide administrative support and to grant financial allowance to victims similarly to Portugal. In addition, Mauritius engaged domestic religious bodies in order to implement raising-awareness programmes. The Ministry of Labour also severely fines the perpetuators of sexual harassment, and removed discriminatory provisions “prescribing wages on a gender basis”. Malaysia aims at ensuring that 30 % of women participation in corporate boards is reached by 2016;
the country increased full-paid maternity leave for female government servants to 3 months, and appointed two female Sharia judges. Finally, Chile created women’s shelters and introduced a law punishing femicide.
Both Romania and Portugal are running housing programmes for the Roma communities. Romania states that a number of school seats are specifically reserved for young Roma and looks to enlist Roma in entrance exams for Police schools. With the support of the European Social Fund, the National Agency for
6 Internet address is the following: http://followup.upr-info.org
Roma dedicated € 25 million to improve Roma participation in the labour market through a holistic approach covering training and diversification of job opportunities.
Portugal launched a pilot project where Roma mediators are trained and placed in local services and facilities in order to improve the access of the communities to such services.
On the trafficking scourge, Malaysia aims to avoid mistakes leading to the misidentification of trafficked persons as migrants. With the support of UNHCR, the State started biometric registration of refugees and asylum seekers. Chile established a “Commission for the recognition of the refugee status” and codified the illicit trafficking of human beings, enabling the country to be more effective in both prevention and criminal prosecution. In Mauritius, the country began intensifying the training of police officers and further conducts crackdown operations. It is worth noting that Chile and Mauritius took measures to address the problem both upstream and downstream.
With regard to rights of the child, Chile forbade under certain circumstances night work for children under 18 years old, and enacted a law on child pornography and sexual harassment of children. Chile also developed social awareness-raising projects and through specialised intervention programmes impacted 7730 children and adolescents. Romania, aiming at reducing the phenomena of school dropout and absenteeism, has developed programmes supporting education of disadvantaged groups and has begun to offer financial support and school transport. It rehabilitated educational facilities and started to build new educational units. Mauritius led several measures to address child issues. Police officers teach children about child abuse and rights of the child in schools. Communities are sensitised on child abuse with a view to empower those communities, and in high risk areas, a surveillance mechanism has been set up. Child under the age of 16 cannot be employed. Officers
3.1. Malaysia
Malaysia’s mid-term assessment demonstrated a strong commitment of the State to implement recommendations. One quarter has not been implemented, one quarter has been fully implemented, and half has been partially implemented. Stakeholders have commented upon 118 recommendations out of 147.
28 per cent of recommendations received and commented upon in the MIA were of action category 5:
According to Malaysian national stakeholders, mainly the Human Rights Commission of Malaysia (HRCM), several achievements have been noticed.
3.1.1. MDGs and housing rights
Malaysia has already achieved or is on track to reach many of the Millennium Development Goals (MDGs) and targets by 20157. The Tenth Malaysia Plan (2011- 2015) commits to allocating 30 per cent of the country’s development expenditure to the social sector so as to achieve greater participation by groups that are most in need, especially the bottom 40 per cent households, and provide equitable access to basic infrastructure and services8.
The Malaysian government launched the “My First Home Scheme” in March 2011 providing an opportunity to those under the age of 35 earning not more that RM 3,000 a month to own their first house. In the 2011 National Budget, the Government announced that RM568 million will be allocated to build 300 housing units under the Urban Housing Assistance Project, 79,000 units under the People’s Housing Programme and 8,000 units under the Rental House Assistance Project. An additional allocation of RM50 million has also been set aside to assist estate workers to own a house under the Low Cost Housing Fund Scheme9.
3.1.2. National plan of action, civil society collaboration
The government of Malaysia agreed to develop a National Human Rights Action for Malaysia in 2010. It appointed the Legal Division of the Prime Minister’s Department as the focal agency to develop the plan. It conducted a Post-UPR Briefing Session
suggestions pertaining to the UPR follow-up. In addition, in April 2011 the government participated in a Briefing Session on the UPR Follow-up jointly facilitated by the [Human Rights Commission of Malaysia] and the [OHCHR] [...]. A similar briefing session had also been conducted for members of CSOs on the same day.10
Based on its discussion with various stakeholders on the UPR follow-up issues, the [Human Rights Commission of Malaysia] [observed] that there is a need for the Government to enhance its engagement with the CSOs through more regular dialogue or briefing sessions in order to promote greater understanding among the civil society of the progress of UPR implementation as well as the possible role of various stakeholders could play in supporting the implementation of the UPR at both national and levels11. Such meetings are very much needed, as they enable to exchange views and suggestions pertaining to the UPR follow-up among States and stakeholders.
3.1.3. Trafficking and migrants
The [Human Rights Commission of Malaysia] has been involved in drafting the National Strategic Plan on Anti-Trafficking in Persons (2010-2015) [...], in its capacity as one of the members of the Council for Anti-Trafficking in Persons and Anti- Smuggling of Migrants12.
Various measures were undertaken by the Government to avoid misidentification of trafficked persons as irregular migrants. They include: providing training courses for prosecutors and enforcement agencies as well as the development of a Standard Operating Procedures.13 Government has commenced biometric registration of refugees and asylum seekers registered with the UNHCR14.
10 Ibid.
11 Ibid.
12 Ibid.
13 Ibid.
14 Malaysian Bar Council, op. cit.
3.1.4. Women’s rights
The government of Malaysia took numerous measures in order to promote gender equality, notably15:
• Enforcement of Work Regulations (Part-time Workers) 2010 under the Employment Act 1955 to provide flexible working arrangements;
• Providing training to develop women entrepreneurs;
• Continued effort to mainstream the interests and concerns of women, children and PWDs at all levels through policy formulation and programme planning and legislation;
• Appointment of two female Sharia judges in May 2010;
• Establishment of a Special Committee chaired by the Minister of Women, Family and Community Development to implement gender sensitization programmes in the public sector towards enhancing women’s representation in key decision-making positions within the parliament, state legislative assemblies, judiciary and ministries;
• Introduction of guidelines to address sexual harassment issues in the workplace and the possibility for the guideline to be made compulsory for employers’ adoption and implementation;
• Increased maternity leave facility for female government servants with the flexibility to self-determined full-paid maternity leave, not exceeding 90 days from the previous 60 days;
• In the recently launched New Corporate Governance Blueprint 2011, companies are recommended to put in place a policy that would ensure that women candidates are sought as board members, thus reflecting the Government’s commitment in bridging the enormous gender gap in the
3.2. Chile
The Chilean mid-term assessment demonstrated a very high record of implemented recommendations: one fifth has not been implemented, one third has been fully implemented, and approximately one half has been partially implemented.
Stakeholders have commented upon 116 recommendations out of 122. 80 percent of NGOs that took part in the UPR participated in the Follow-up Programme. Civil society in Chile is very active, and very committed to exploring UPR opportunities.
28 percent of recommendations received and commented upon in the MIA were of action category 5, matching the average of States in these case studies:
3.2.1. Indigenous rights
In spite of several civil societies’ critics regarding the governmental policy on indigenous rights, the Government of Chile said that Chile has developed an indigenous policy entitled “Historical Reunion”, which focuses on dialogue with the nine indigenous peoples inhabiting our country, from five different standpoints:
participation and consultation, culture and identity, indigenous institutional framework, land and comprehensive development. On September 1, 2010, Chile submitted the first report on the implementation of the Convention to the competent ILO agencies and in September 2011, the replies to direct questions made by the Committee. Within the framework of “Dialogue for a Historical Reunion” 65 round tables have been carried out at a national, regional, provincial and municipal level since 2010. In the last few years, 25 consultation processes have taken place on several matters directly affecting indigenous peoples, including the claim for a consultation mechanism that is presently at a “pre-consultation” stage to define its implementation (consulta de la consulta). Additionally, on June 7, 2010, the Council of Ministers for Indigenous Affairs, responsible for assisting the President in the design and coordination of public policies addressed to indigenous peoples, was created. Finally, it must be noted that on January 15, 2012, indigenous peoples democratically elected their representatives to the position of indigenous councillors of the Indigenous Development National Corporation. The Government reactivated mechanisms to deliver lands to indigenous peoples in a transparent, objective way, accompanied by a production support and technical assistance agreement. As at December 31, 2011, purchase of lands under article 20b) of the Indigenous Land amounted to CLP 27,047 million (100% of funds allocated), or the equivalent to the purchase of 54 lots and 10,335 hectares to the benefit of 44 communities or 1,181 families. The subsidy mechanism has also been strongly fostered. In this regard,
related to the rights of indigenous peoples have been undertaken since 2007.
However the effectiveness of many of them is still unclear. Political representation of indigenous people remains weak. Though they make up nearly 7% of the population, indigenous peoples are not represented in Congress.17
3.2.2. Trafficking and refugees
One law regarding refugees and another one concerning trafficking were enacted: on April 12 2010, Law No. 20,430, which “sets provisions on the protection of refugees”
and establishes the “Commission for the Recognition of the Refugee Status”, and on April 1 2012, Law No. 20,507, which “codifies the illicit traffic in migrants and in human beings and sets regulations for its prevention and a more effective criminal prosecution”18.
3.2.3. Women’s rights
On women and equality rights, Chile has taken positive steps to deal with domestic violence. The State has initiated several national campaigns and support programmes targeting the issue, and passed a law establishing the crime of femicide [law No. 20-480, December 2010].19 The entry into force of [this] Law [...] was a major progress on the matter. It amends the Criminal Code and the Domestic violence Law by punishing femicide, increasing penalties applicable to said offense, amending regulations on parricide and codifying sexual offenses. Additionally, programs like “Chile Acoge”, women’s centers and centers to attend to victims of violent crimes were created20. In addition, the law No. 20,501 on “Education quality and equity”, enacted early in 2011, guarantees education professionals’ rights to work in an environment characterized by tolerance and mutual respect21.
17 Unrepresented Nations and Peoples Organization, Mid-term Implementation Assessment on Chile
18 Government of Chile, op. cit.
19 Unrepresented Nations and Peoples Organization, op. cit.
20 Government of Chile, op. cit.
21 Ibid.
3.2.4. Rights of the child
In order to improve child labour issues, the State said that the agenda on that matter is aimed at preventing these violations and attending victims under the aegis of the
“action plan for the prevention and eradication of child labor”. Rights Protection Offices are available, as well as 16 specialized projects to attend sexually-exploited victims and specialized intervention programs, which in 2011 amounted to 93. They attended 7,730 boys, girls and adolescents, including victims of the worst forms of child labor. As regards the promotion of rights, the “Community Prevention Projects”
stand out. At present, 63 such projects exist. In relation to social awareness, campaigns like the World Day against Child Labor (June 12) and the National Day against Commercial Sexual Exploitation of Children (May 18) have been developed.
In October 2011, the Labor Code was amended by Law No. 20,539, which forbids children under 18 years old to perform any night work at industrial and commercial facilities. It also sets a period in which a child under 18 years cannot work at nights.
Several laws were enacted: On April 8, 2011, Law No. 20,507 became effective, which “codifies the traffic in children and adults and sets regulations for its prevention and a more efficient criminal prosecution of such crime”. On August 11 of that same year, Law No. 20,526 entered into force “which punishes sexual harassment of children, child pornography and possession of child pornographic material”: In 2010, a “National Observatory of Commercial Sexual Exploitation” was initiated, which contributed to the preparation of the “Second Framework for Action on the Commercial Sexual Exploitation of Children”, which is expected to be concluded within the 2012-2014 term22.
3.3. Romania
However, such results have been achieved in particular circumstances. All recommendations (55) have been commented upon by stakeholders, but it is worth noting that most of the recommendations were commented upon by the State only.
Furthermore, only 20 per cent of recommendations were of action category 5, a very low percentage of precise and action-oriented recommendations. A final factor to note is that Romania was reviewed during the 2nd session, when the UPR was still in its early stage.
3.3.1. Minorities rights
Romania detailed how it intended to implement new measures to improve the Roma communities’ situation. In terms of education, school mediators, which function as a valuable link between the community and the school, have been constantly trained over the last years. The practice of reserved seats for Roma in various academic programmes, on an annual basis, has been reinforced. 492 seats were reserved and occupied by young Roma in the academic year 2009-2010 and 555 seats are reserved for Roma in the school year 2010-2011. The Romanian Police, Border Police and the Romanian Gendarmerie continued their efforts in order to enlist national minorities, in particular Roma, to entrance exams organized by police and gendarmerie schools. The Government maintained the institution of the Roma Health Mediators, who facilitate the communication between members of the Roma community and the health personnel and also their access to health care services.
With regard to access to housing, the authorities have proven to strive for making the best use of the available resources and provide persons in need with adequate social housing, irrespective of their ethnicity. The Government initiated in 2008 a pilot program "Social housing for the Roma communities", financed from the state budget and intends to implement social housing projects in the 8 development regions of Romania, in locations determined in cooperation with the local authorities and the National Agency for Roma. In 2010, a number of 301 apartments are expected to be constructed. The National Agency for Employment has succeeded to improving the access of the Roma to the labour market, by taking measures such as: organising special Job Fairs and advertising such actions, as well as the rights of the Roma, by means of press conferences, radio and TV appearances; organising employment caravans in the Roma communities, with a view to identifying employment opportunities, as well as providing information on the rights and obligations of the
approach, covering not only the employment objective per se, but also the provision of adequate training and diversification of opportunities for their integration in the labour market.23
3.3.2. Rights of the child
On the child’s rights, the government of Romania explained that children's access to medical and recovery services is guaranteed, without any discrimination, by the State and the related costs are borne by the National Fund for Health Social Insurances and the state budget. All children up to 18 years old benefit from free insurance, in the absence of any contribution to the National Fund for Health Social Insurances.
For reducing phenomena such as school dropout and absenteeism, the Ministry of Education, Research and Youth has developed educational programmes for supporting school participation throughout the entire undergraduate system, such as:
supporting the education of disadvantaged groups [...] offering financial support and school transport [...] the rehabilitation of the educational facilities and the building of new educational units (kindergartens, school campus), the programme for relaunching school education24.
3.3.3. Corruption
In 2008 the Government adopted "the National anti-corruption strategy for the period 2008-2010 concerning vulnerable sectors and the public local administration". A Monitoring Committee was tasked with monitoring the application of the Strategy on an annual basis. Also, an expert-level Working Group was set up in order to supervise the implementation of specific measures provided in this Strategy. It comprises representatives of all central authorities with competencies in the area, as well as representatives of 11 local public authorities. Furthermore, the Working Group prepared mid-term evaluation reports on the implementation of each sector falling under the scope of the Strategy. The reports describe not only the progress
23 Government of Romania, Mid-term Implementation Assessment on Romania
24 Ibid.
achieved in implementing these measures, but also the impact generated by these implementation efforts. [...] [The Monitoring] Committee formulated a number of recommendations, such as:
• drafting a new strategic document establishing new objectives for preventing and combating corruption within the public administration;
• extending the monitoring of the implementation of the new strategic document to a larger number of administrative territorial units;
• elaborating certain SMART objectives, as well as identifying both quantitative and qualitative indicators etc.
[...] In order to advance the implementation of some important reforms, including with reference to the Procedural Codes, the Government approved, [...] a draft law for accelerating the judicial procedures [...]. It aims at reducing the workload of the High Court of Cassation and Justice (HCCJ), as well as reducing the workload of judges from labour and social security court sections; reducing the duration of trials and increasing the efficiency of judicial proceedings in criminal matters; eliminating the unjustified delays in a trial by formulating the obligation for the court to set short procedural terms; reforming the procedure for solving the appeals in the interest of the law, both in civil and criminal matters (e.g. extending the categories of subjects who have legal standing to submit such an appeal, reducing the duration of the procedure by introducing deadlines for solving the appeal in the interest of the law, for its motivation and publication etc.); improving the procedure for the enforcement of judgments in civil matters; reducing the workload of tribunals in order to ensure the celerity of complex criminal cases.
With regards to strengthening the transparency and accountability of the Superior Council of the Magistracy (SCM), progress had been made, namely:
elaboration of a collection of jurisprudence on disciplinary matters for 2007- 2009. The activities towards accomplishing the measures are monitored and assessed.
• [...] the SCM ensured the publication of the reasoned decisions of SCM on its own website as well as the publication of the collection of jurisprudence on disciplinary matters for the period 2006-2009. Furthermore, the complete agendas of the meetings are now routinely published.
• In response to concerns regarding the objectivity and transparency of the evaluation process undertaken by the SCM in order to select judges for promotion to the HCCJ, the SCM Plenum approved, in April 2010, the Guidelines on the selection of the candidates for the judge position at the HCCJ.
The draft Law for modifying Law no.47/1992 on the organisation and functioning of the Constitutional Court was adopted by the Senate in August 2010. The new law will speed up judicial proceedings, by eliminating the de jure suspension of the case when the constitutionality of a legal text is challenged during a trial, thus avoiding unreasonable delays and abuses of law in judging cases. In order to preserve compliance with the Constitution, a special ground for revision is introduced both in the Civil and Criminal Procedure Codes, applicable to the situations in which the Constitutional Court declared unconstitutional the challenged legal text after the settlement of the case Also, Romania has developed its track record in the fight against corruption. The National Anti-Corruption Directorate continues to show a good track record in the investigation of high-level corruption reflected in further indictments and an increased number of final court judgements. Two awareness- raising campaigns were designed and implemented, addressing mainly the impact of corruption on citizens: "Corruption convicts you" and "Family has a future, corruption does not!". Another campaign "I finance the slavery!" is currently being implemented25.
25 Ibid.
3.3.4. Detention
The Romanian authorities have taken further measures to improve living conditions in places of detention. Several programmes for thermal plants rehabilitation have been implemented, which led to the installation of modern gas plants and light fuel plants. The efficiency of lucrative activities involving detainees has also been enhanced, standards of internal control have been strengthened and investments have been made into the quality of the detention facilities. As for food standards, the value norm has replaced the caloric norms; consequently, there are no more differences between the food provided to inmates and to staff members. In terms of health, the inmates benefit from free health care and medicines. Each penitentiary has at least a general practitioner, a dentist and nurses providing permanent health care. The prisoners suffering from acute or chronic disorders benefit from special care and surveillance in the prison infirmaries, specialized ambulatories, public hospitals or hospitals in their own health network, and in case of medical or surgical emergencies, they are transferred to the nearest hospital in the community. In order to observe the legal rights of the detainees, works have also continued in order to rehabilitate/modernize police detention facilities and to provide them with the necessary facilities (e.g. a bed per person; modern means of transportation;
mailboxes and phones, libraries; TVs). More than 70% of the court clerk’s offices and visiting rooms have been rehabilitated26.
3.4. Portugal
Portugal’s mid-term assessment, in a similar vein as the former States, demonstrated assessed a high record of implemented recommendations: one fifth was not implemented, 38 percent was fully implemented, and 43 percent was partially
The State, the National Human Rights Institution and an international NGO participated. However, domestic civil society in Portugal was not involved in the UPR process. Civil society neither submitted a report to OHCHR nor participated in the Follow-up Programme.
24 percent of recommendations received and commented upon in the MIA were of action category 5, below the average among States presented in these case studies:
3.4.1. Racial discrimination
Fighting racism and intolerance is a priority for Portugal and many activities in these areas have taken place over the reporting period, including the continuation of efforts by [Alto Comissariado para a Imigração e Diálogo Intercultural] and notably within the II Plan for Immigrant Integration (2010-2013). Actions undertaken include TV and radio programs and the establishment of two annual prizes for media works promoting human rights and tolerance. Several publications on migration and asylum-related issues were launched and distributed, including the Portuguese versions of IOM Glossary on Migration and of “A Diversity toolkit for factual programs in public service television”, produced by the EU Agency for Fundamental Rights and based on which Portuguese public television (RTP) has developed a code of ethics. Specific workshops for media professionals on how to address migration issues were held throughout the country, as well as seminars for journalists on such areas as disabilities, immigration, diversity, asylum/refugees and violence. Furthermore, a list of migrants with prominent work in several areas, such as doctors, artists and lawyers, has been prepared and disseminated to media professionals. In 2011, the Commission for Equality and against Racial Discrimination (CICDR), which examines complaints of racial discrimination and issues recommendations thereon, publicly reaffirmed its 2006 recommendation for the media and law enforcement agencies to, inter alia, refrain from revealing a subject’s nationality, ethnicity, religion or immigrant legal status in official communications.
A training team on intercultural issues has been created to help public schools – and other actors– deal with an increasingly diverse student population by providing
as well as the implementation of a pilot project to help clarify the role of intercultural mediation agents (2011).
Portuguese law specifically establishes the crime of racial, religious or sex discrimination, which covers organized propaganda activities inciting to discrimination on the basis of race, color, ethnic or national origin, religion, sex or sexual orientation, as well as acts of violence, threats or defamation on the same basis and the denial of war crimes, crimes against peace or crimes against Humanity. Furthermore, racist motivation can be taken into account in the determination of the measure of penalty in relation to all crimes, thereby constituting a sort of general aggravating circumstance. All such offences are considered crimes of priority prevention and investigation. Police regularly monitors websites, web chatting rooms and other fora associated with violent extreme right groups. A special tool has been made available in CICDR website to facilitate complaints and speed up action against any blog or site disseminating racism.
In addition to measures outlined above, a series of measures was undertaken in 2010 and 2011 to sensitize against discrimination, including a national photo and video contest, the display of banners in soccer stadiums, a symposium on immigration and intercultural dialogue and the publication of a book on racist discourse in Portugal27.
Portugal has a wide set of provisions that prohibit any form of discrimination based on race. In addition to article 13 of the Portuguese Constitution and the provisions of the ICERD, which Portugal has ratified, different laws strengthen this prohibition.
In the Portuguese Criminal Code, article 240 establishes the crime of racial, religious or sexual discrimination. Racial discrimination is also an aggravating circumstance to some crimes, such as homicide and bodily injury (articles 132 and 145), but there is no general provision considering it an aggravating circumstance.
27 Government of Portugal, Mid-term Implementation Assessment on Portugal
Law 20/96, of 6th July, allows communities of immigrants and other associations that defend the interests at stake to be assistants to the prosecutor in criminal proceedings relating to racist or xenophobic crimes. Law 18/2006, which transposed Council Directive 2000/43/EC, of 29th June, establishes a legal framework to combat ethnic and racial discrimination and creates an administrative complaints procedure. Law 134/99, of 28th August, prohibits discrimination in the exercise of rights based on race, colour, nationality or ethnic origin. The Labour Code and the Employment Contract in Public Functions Regime also include provisions regarding equality and non-discrimination. Finally, the Statutes of different police forces establish among the special duties of agents to act without discrimination based on descent, sex, race, language, territory of origin, religion, political or ideological convictions, education, economic situation or social condition or sexual orientation 28.
3.4.2. Minorities
In line with EU decisions on this matter, the Portuguese authorities have drafted a National Strategy for the Integration of Roma Communities. The document gathered contributions from 8 ministries, local authorities, civil society organisations and representatives of Roma communities. It was submitted to public consultation from 28th December 2011 to 18th January 2012. In addition to the key-themes of Education, Access to Employment, Health and Housing, indicated by the EU, the Government added a cross-cutting priority area on issues of Citizenship, Fight against Discrimination, Gender Equality and Justice and Security. The draft Strategy envisages several measures aiming to ascertain the
training actions on small project management, by 2015); and to promote Roma culture and change public perception in relation to that community (e.g. implement at least 24 training/awareness raising actions aimed at a diversity of sectors of the population – Roma communities, professionals in various areas and decision- makers, amongst others, by 2020)29.
The police [are] training agents to act as mediators in Roma communities, including as a means to encourage their civic participation, promote education and find appropriate response to the needs of Roma women. The Immigration and Borders Service (SEF) develops outreach programs to provide a whole range of services to such vulnerable groups as sick persons, children and the elderly (“SEF in Motion”), as well as to provide information to irregular migrant children attending school (“SEF goes to school”). The Ministry of Internal Affairs has adopted its first Sectorial Plan on Gender Equality, a main focus of which is to raise the awareness of staff (including police officers) to gender and sexual orientation issues. A working group on violence and hate crimes against LGBT people was established in partnership with security forces.
A Pilot Project for Municipal Mediators was launched in October 2009, whereby mediators, preferably of Roma origin and locally resident, are placed in local services or facilities and adequately trained, with the view to improve the access of the Roma communities to such services or facilities and prevent conflict situations. Roma communities obviously benefit from many of the measures in place for the general population, including Social Integration Allowance, housing programs, social protection schemes, including in school context, and access to the National Health Service. A Portuguese Strategy for the Inclusion of Roma Communities is now in preparation, focusing on 4 main areas: education, health, housing and employment30.
29 Portugal’s Ombudsman, Mid-term Implementation Assessment on Portugal
30 Government of Portugal, op. cit.
3.4.3. Following up UPR recommendations
The process of follow-up to Portugal's UPR is carried out in the framework of the National Human Rights Commission, a governmental body working under the Ministry of Foreign Affairs that aims to ensure better coordination between ministries, both regarding the preparation of Portugal’s position in international organizations on human rights and the fulfilment of its obligations on this matter. It is composed of representatives of 12 governmental departments, but other public bodies may also participate in its work. Particularly, the Portuguese Ombudsman, in his capacity as National Human Rights Institution, has been invited to participate in plenary and working group meetings. The Commission may also invite representatives of NGOs and other elements of civil society to participate in its activity. To date, there have been 2 plenary meetings and a few working group meetings open to civil society representatives. Portugal's UPR midterm review report was discussed in one of those plenary meetings open to civil society31.
3.4.4. Women’s rights – domestic violence
The consolidation of the victim protection system is sought through such measures as: enhanced coordination between civil and criminal courts in divorce or child custody cases and in cases of domestic violence, with the view to prevent revictimization; standardization of procedures for reporting and collecting information, including the creation of a database; improvement of screening and diagnostic mechanisms, namely for pregnant women; dissemination of pilot projects in the areas of health, remote assistance to victims and mutual support groups; provision of shelters to victims within existing social responses; and facilitation of victims’ access to housing (such cases are already considered a priority in some re-housing
vulnerable victims such as elderly persons, migrants, children, persons with disabilities and LGBT, and the promotion of victims’ access to professional training and the labor market through the appointment of focal points in employment centers.
There are also measures to prevent the recurrence of domestic violence by working with perpetrators (the National Plan requires that prisons implement specific individualized programs to this effect), providing adequate training to all relevant professionals, and researching on and monitoring the problem of domestic violence.
The II Plan for Immigrant Integration seeks to guarantee that migrants victims of, inter alia, domestic violence receive legal support, and that autonomous residence permits can be granted to members of reunified families who are victims of domestic violence. It also aims at preventing all forms of gender violence, including domestic violence and FGM, namely by providing information to men and women, producing information materials in several languages, creating discussion fora and using the media.
A number of measures have been introduced to regulate aspects covered by the Act on the prevention of domestic violence, and on the protection of and assistance to its victims, adopted in September 2009 and an important milestone since it introduces such important measures as: the recognition of the status of victim (to all alleged victims no sooner than domestic violence is reported, provided that there is no strong evidence that such claim is unfounded); the urgent nature of domestic violence proceedings; the use of technical means to remotely control perpetrators and assist victims; the possibility to arrest the perpetrator even if not caught in the act; the right of victims to redress; and the provision of legal, medical, social and labor support.
Legal counseling to victims of domestic violence shall be provided by a lawyer appointed by the Bar Association, upon request from social security services.
The Code of Criminal Procedure now expressly requires that Public Prosecution informs victims of, inter alia, domestic violence of available public and private support services and of compensation options at their disposal. A Commission for the Protection of Crime Victims has been created in October 2010 with the mandate to ensure advance payment of compensation by the State to victims of violent crimes and domestic violence. The victim shall be informed of the main judicial decisions
affecting the aggressor’s status. The use of video surveillance methods (both as an injunction and a penalty) shall take into account the compatibility of such methods with the victim’s circumstances, and victim support services shall be informed of relevant details concerning the implementation of such methods. Police forces are also making efforts to closely monitor the problem of domestic violence and a national project (Project IAVE) is being implemented with the view to protect and support, inter alia, women, children, the elderly and persons with disabilities32.
3.5. Mauritius
Mauritius’ mid-term assessment demonstrated the highest record of implemented recommendations: 23 percent is not implemented, 35 percent is partially implemented, and approximately 40 percent is fully implemented.
All recommendations (93) have been commented upon by stakeholders. It is worth noting that most of the recommendations were commented upon by the State only, like in the Romanian case.
