Human Rights Committee

Ninety-eighth Session

2691^st Meeting (AM)

Human Rights Committee Praises Steps Taken by Argentina to Break with Legacy

of Dictatorship, Protect Rights, Concluding Consideration of Fifth Report

Experts Also Note Ways Repression from Those Years Continues to Reverberate,

Pose Questions on Laws on Violence against Women, Abortion, Indigenous Rights

Argentina had made steady strides in breaking with its legacy of military dictatorship, but the repression of those dark years continued to reverberate in ways that could forestall reform efforts, experts on the Human Rights Committee said today as they wrapped up consideration of that county’s fourth periodic report on compliance with the International Covenant on Civil and Political Rights.

Throughout the morning meeting, Committee experts pressed Argentina’s delegation, which was headed by Secretary of Human Rights Luis Duhalde, to provide more information on the country’s efforts to enact legislation that extended the rights of its people and fulfilled its obligations under the Covenant and other international human rights instruments.

Iulia Antoanella Motoc, expert from Romania, raised concerns that, despite assurances by the delegation that the right to information was guaranteed by the Argentine Constitution and was upheld by practice, laws restricting freedom of expression that had existed during the military dictatorship were still maintained.  That was particularly true, she noted, of laws touching on broadcast media.

One prime risk in Argentina’s fight to address past crimes against humanity was the ability of those suspected of gross human rights violations to be involved in elements of the present security forces, said Zonke Zanele Majodina, expert from South Africa.  The ongoing ability of those potential criminals to hold power not only jeopardized social stability and public trust, but posed a direct threat to witness protection programmes.

Threaded throughout the experts’ commentary was a basic worry that the new laws Argentina was currently debating -- or had even recently adopted -- to promote tolerance and protect human rights were not yet being fully implemented.  In that regard, they cited the Government’s work to guarantee the rights of indigenous peoples and persons with disabilities.

Expressing concern that current measures to change abortion laws were stuck in congress, Krister Thelin, expert from Sweden, said it was crucial for new and more liberal legislation that “went beyond the current narrow interpretation” to be put in place, so that women could be protected.  He also asked the delegation to state clearly when recent laws on violence against women would be extended throughout the country.

A few experts suggested there was a breakdown between national legislation and provincial actions and attitudes in areas such as religious freedom, while others highlighted how certain structural weaknesses, such as the failure to ensure the independence of the new national anti-torture mechanism, could undermine human rights protections.

Responding to some of those concerns, Luis Hipólito Alen, Under-Secretary of Human Rights, said that, in situations where the national Constitution was not being translated at the municipal level, the federal Government could intervene on an emergency basis to ensure that the human rights of local citizens were being protected in accordance with international law, including the Covenant on Civil and Political Rights.

Taking up the Committee’s concerns about abortion, Claudio Morgado, President of the National Institute against Discrimination, Xenophobia and Racism, said a recent opinion poll of doctors had revealed that, in general, the medical community was in favour of legal abortion.  In cases where doctors did not grant abortions, the results suggested that reluctance often did not stem from a moral or ethical disagreement with the practice, but was largely the result of confusion surrounding national laws on abortion.  In light of that fact, he stressed that abortion was clearly not punishable in cases where there was a threat to the life of the mother or where the pregnancy resulted from rape.

In summarizing his country’s report, Rodolfo Mattarollo, International Consultant, stressed that human rights were a fundamental pillar of State policy in Argentina that would be strengthened for years to come.  He named as the four main players in that effort, the human rights movement, which maintained its work against all odds before, during and after the dictatorship; the body of judicial thought progressively developed since the 1970s; investigative journalism; and the State itself.

Yet, he agreed with the Committee that the coordination between the federal and provincial jurisdictions was a serious issue and expressed hope that the Committee could, in its general guidelines, trace a course for a solution. 

Daniel Fernandez, President of Argentina’s National Institute of Indigenous Affairs, also spoke today.

The Human Rights Committee will reconvene at 3 p.m. today, 11 March, to begin its consideration of the third periodic report of Uzbekistan.

Background

The Human Rights Committee, the 18-member expert body which monitors global implementation of the International Covenant on Civil and Political Rights, met today to continue its consideration of the fourth periodic report of Argentina on that country’s compliance with the treaty (document CCPR/C/ARG/4).  (See also Press Release HR/CT/716 issued 10 March.)

Delegation’s Responses

Continuing to respond to questions posed by the expert panel yesterday, LUIS HIPÓLITO ALEN, Under-Secretary of Human Rights, said his delegation had in no way intended to minimize the gravity of the situation regarding Argentina’s prisons.  He noted that, particularly in the province of Buenos Aires, there were a series of measures aimed at improving the situation.

Turing to the conduct of security forces during public demonstrations [article 19 of the Covenant], he said that, since 2003, when Néstor Kirchner had come to power, and continuing with the current President, the security forces were instructed on their conduct in the area of public demonstrations.  Protocols and good practices were established, including the prohibition of the use of firearms in monitoring such events.  Overall, particular attention was paid to not restricting freedom of expression.

On the question on non-discrimination, the right to a fair hearing and the independence of the judiciary [articles 2 and 14], he said that, under the provisions of decree 222/03, there was now a system to publicize the candidatures of judges.  Also, reasonable terms had been set for extending preventive detainment.  Those limited the time possible for an extension.  Indeed, detention could not last longer than 2 years without resolution of the case.  The State also provided defenders in cases where defendants could not afford to pay for their defence.  He pointed out that there was a bill that established new rules on mental health currently being discussed in the senate.  It recognized the right of people residing in mental hospitals to be heard.  There were also awareness-raising measures directed to the judicial level regarding mental-health issues which sought to promote better understanding of those issues.

CLAUDIO MORGADO, President of the National Institute against Discrimination, Xenophobia and Racism, further stressed a number of ways Argentina’s legal and civil code paid due attention to the rights of persons with disabilities.  Moreover, bills currently being considered in the national congress recognized earlier decisions in support of the right of persons with disabilities to be heard.  He went on to note that there was a mental-health programme that affirmed the Government’s desire to align the legal code with the Covenant.  Among other things, that programme sought to strengthen ties with organizations working for the rights of people with disabilities.  One of its objectives was assessing the possibility of releasing disabled people.

Taking up questions related to the freedom of religion, Mr. ALEN said that all people in Argentina had the right to follow their own faiths.  The Catholic Church did receive tax benefits, but all religious institutions were exempt from income tax and VAT.  Apart from the Catholic Church, there was a law dating from the military dictatorship, but the current Administration did not support it, and the Secretary of Religion had drafted a law that was based on the recognition of the right to diversity, which provided for a regime of freedom of worship.

Next, Mr. ALEN returned to matters related to violence perpetrated by public security forces.  He said Argentina guaranteed the right of assembly and social protest, in line with international guidelines.  Police responsible for overseeing public demonstrations had been specifically trained for that job and were not allowed to carry lethal weapons.  The same rule held for large sporting events, where police and security forces had been mandated to use reasonable force for containment purposes only.  The National Intelligence Agency was proscribed from covertly collecting, storing or transmitting information on people belonging to organizations engaged in public protests.

He went on to say that the Government did provide witness protection, especially for persons involved in ongoing cases.  On other matters, he said that the law on protecting women from violence was being promulgated and the law against domestic violence was being extended throughout the country.  Turning next to measures to prevent torture, he said there were three draft laws before the Chamber of Deputies.  Since 2008, no single Government body could make a decision on such laws -- all Government branches must reach consensus.

On the issue of human trafficking, Mr. MORGADO said the Government was still discussing with the National Institute to Combat Discrimination, Xenophobia and Racism laws on such trafficking, particularly regarding a provision in the current criminal code stating that, when a victim was over 18, it must be established that no consent was given in order for the act to be classified as exploitation.

Mr. ALEN said that, in situations where the national Constitution was not being translated at the municipal level, the Federal Government could intervene on an emergency basis to ensure that the human rights of local citizens were being protected in accordance with international law, including the Covenant on Civil and Political Rights.

Experts’ Questions and Comments

The first Committee member to take the floor today, CHRISTINE CHANET, expert from France, asked if legal aid and other legal services provided for those who could not afford them, especially in the provinces, was governed by the National Ministry of Justice.  It seemed to her that such matters should be dealt with at the local level.  On other matters, she said that, after examining Argentina’s previous statements during an earlier compliance, she was “very curious” about its statements regarding legislation on crimes of omission [article 15], and she asked if the delegation could provide more information on that issue today.

KRISTER THELIN, expert from Sweden, again asked the delegation to clearly state when the Committee could expect that full application of laws on violence against women would be promulgated throughout the country.  He also reiterated his call from yesterday regarding the need for the Committee to have disaggregated figures on violence, especially domestic violence, against women, in order to properly assess the situation.  On abortion, he was very concerned that current measures which might change abortion laws were stuck in Congress.  It was crucial that new and more liberal legislation that “went beyond the current narrow interpretation” was in place, so that women could be protected.

Next, ZONKE ZANELE MAJODINA, expert from South Africa, said she was pleased to hear that draft bills on nationwide anti-torture mechanisms were being discussed, including with input from civic actors.  At the same time, she wished to reiterate her concern about the need to maintain the independence of such mechanisms.  She also wondered if there would be cooperation between federal and provincial authorities to monitor such mechanisms once they were created.

Delegation’s Responses

Taking up the question about public defenders, Mr. ALEN said that, with respect to the organization of the judiciary, that was one of the areas where the provinces had not delegated power to the federal Government.  The public lawyers’ colleges and the national university, which had their own powers, had free programmes of assistance for those defendants who did not have resources to hire their own counsel.  It was true that, in some provinces, those bodies did not differentiate between prosecutors and defenders.  But that did not mean the defenders received orders from the prosecutors.  Further, the public colleges had ethics bodies that regulated the functions of the defenders and were responsible for looking at instances of unethical behaviour.  In such cases, the courts could not impose disciplinary measures.

Turning to the “double instance” issue, he said that was a decision by the Supreme Court, which made an interpretation on the American Convention [on Human Rights].  Depending on the form of organization, there were different arrangements in the provinces.  In some, there were chambers of cassation, while in others, a court of appeals had the power of review.

RODOLFO MATTAROLLO, International Consultant, said the issue was not a matter of curiosity, but embodied the evolution of Argentina’s legal system, noting that the first constitutional Government of 1983 had, to its credit, ratified a legal structure.  But, it had been somewhat suspicious of international customary law. The current Administration had gotten past that suspicion and there was no statute of limitation on crimes against humanity. It was this “cancellation” that Mr. Duhalde had referred to.

Turning to the question on the independence for the anti-torture mechanism, he stressed the importance of such independence.  In fact, he said, the current bills being considered by congress placed the national mechanism in the jurisdiction of the congress -- that was, under the authority of the legislature, not the executive.  He agreed that the coordination between the federal and provincial jurisdictions was a serious issue, for which a solution had not been found.  He hoped the Committee could, in its general guidelines, trace a course for one. 

Mr. ALEN said it was hoped the law on violence against women would come into force this year.  There were, he noted, statistics gathered by the national women’s council, and the delegation would be happy to make them available in the future, although it did not currently have those figures at hand.

Responding to the questions related to abortion, he underlined the Supreme Court’s ruling, handed down on Monday, on therapeutic abortion, which allowed for such abortions.

Mr. MORGADO followed up on the abortion question, saying that an opinion study of doctors had recently been carried out.  It revealed the high importance they gave to the question of non-punishable abortion.  Roughly three quarters had said that hospitals should carry out abortions and not be punished by law, and 88 per cent agreed that women should not be imprisoned for having abortions.  Those results showed that, in general, the medical community was in favour of legal abortion.  Moreover, in cases where doctors did not grant abortions, that reluctance often did not stem from a moral or ethical disagreement with the practice, but was largely the result of confusion surrounding national laws on abortion.

He went on to say that, in terms of clarifying doubts on the abortion matter, there were two clear cases where abortion was not punishable: when there was a threat to the life of the mother or if the pregnancy was the result of rape or assault against an “idiot or demented” woman.

Presenting the delegation’s responses to the second half of the Committee’s written questions, Mr. ALEN said that a new audio-visual communications service, which guaranteed the right of expression, had been set up.  It was administered at the federal level by a decentralized body made up of diverse representatives.  The law establishing those services was the product of an intense debate and was the product of contributions by civil society.  Its provisions also prevented the monopolization of services by one agent or a limitation in the number of licenses that could be granted.  In the same way, no single voice could stifle other voices.

Along with the law calling for the audio-visual services, the national congress had passed another new law that took as its basis a case dealt with by the Inter-American Court regarding a deceased journalist.  Slander and libel had also been decriminalized in matters of public affairs.  That last norm was, he pointed out, a pioneering law in the region.

Answering questions related to ending discrimination against minorities [articles 18 and 26], Mr. MORGADO said that, among other activities, the National Institute against Discrimination, Xenophobia and Racism was launching an awareness-raising campaign to help end discrimination in sports, especially anti-Semitism.  On the rights of minors [article 24], he said the National Secretariat of Children, Adolescents and Family had elaborated policies to deal specifically with young violent offenders, in line with international human rights norms.  The Government was urging provinces to adopt such legislation.

He said the Government had also been working with the provinces to ensure protection for children in detention centres.  Great strides had been made to ensure that no children were being held in police stations, as well as to ensure that standard detention centres provided medical treatment, including HIV testing.  Work was being carried out within the Southern Common Market (MERCOSUR) to ensure the protection of all boys and girls, and ensure that they would be able to enjoy all their rights.  Special attention had been devoted to combating sexual exploitation of children.

Turning next to the important issue of children born to disappeared parents during the military dictatorship, he said that, in 1992, the National Commission for the Right to Identity had been created.  That agency operated under the auspices of the Human Rights Secretariat and worked with key non-governmental organizations that helped those children, including, most famously, the Grandmothers of Plaza de Mayo.

He also highlighted the establishment of a special unit within the National Commission to focus specifically on investigating cases involving those children.  A repository had been set up to follow up on recovery of genetic information and carry out relevant testing.  Thus far, some 101 children had been able to recover their heritage and discover their parentage.

In addition, he said the Government was providing pecuniary compensation, and some 1,000 applications for such compensation had been processed for children that had been detained with parents, born in prison, or who had no idea who their parents were.  Current laws also allowed associations representing human rights groups to participate in cases.  Measures were under way to officially classify such children as “victims” of crimes committed during the military dictatorship.

He went on to say the State was undertaking measures to ensure that persons who had a hand in serious human rights violations did not continue to be employed by the armed forces or security services.  Indeed, rigorous background checks were carried out and, if such associations were uncovered, the perpetrators were not only denied jobs in the security services, they were tried for crimes against humanity.

On matters regarding the rights of minorities [article 27] DANIEL FERNANDEZ, President of the National Institute of Indigenous Affairs, disputed the Committee’s assertion that only 11 of Argentina’s 23 provinces had acknowledged the rights of indigenous peoples.  He said the relevant articles of the Argentine Constitution did acknowledge protection of the rights of indigenous people and their lands.  Such articles were valid throughout the country, and while provinces could guarantee superior rights, they could not downgrade protections set out under the national Constitution.

Moreover, he said provincial authorities were mandated to adopt land ownership laws regarding indigenous people, especially since the entire country owed all such peoples a huge debt.  There were not 11, but 20 provinces carrying such legislation, including the three with largest number of indigenous inhabitants.  There was also noticeable progress being made in restoring indigenous heritage, including regularization of their ownership of some 4 million hectares of land throughout the country.  Efforts to restore ancestral lands were under way, but at a slower rate, especially as land once considered “marginal” was becoming more and more valuable.  It was a complex issue, but the Government was working with indigenous representatives to ensure such restoration.

He went on to say that progress was being made with the drafting of the federal education law that recognized the multilingual and multicultural nature of education.  That law also aimed to preserve endangered languages, and the Indigenous Affairs Institute had some 300 bilingual teachers working in schools and indigenous communities.  He also said that serious efforts were being made to ensure that indigenous people were not expelled from their historical lands.  That issue was complicated because, most often, third parties were involved in purchasing such lands.

Experts Questions and Comments

RAFAEL RIVAS POSADA, expert from Colombia, said he would refer to three related points.  On question 15 [articles 18 and 26], he said the support given to the Catholic Church raised some doubts about the freedom of religion.  While the Committee had received assurances that the freedom of religion was widely respected, its main concerns were related to the support afforded other churches or religions.

Similarly, the Committee had not heard about excessive acts on the part of public forces to repress public demonstrations.  But its interest in that area was rooted not in specific examples, but in how practices related to international standards.  He, thus, stressed the need to ensure that the minimum standards were respected in legislation.

Referring to the disappearance of children born in prisons and who were separated from their mothers, he asked for more information about the punishment of the culprits beyond the two cases the Committee had already heard about.  How was guilt established?  He requested answers to that question in writing.

IULIA ANTOANELLA MOTOC, expert from Romania, thanked the delegation for the answers it had already provided.  But she had other questions on articles 14 [principle of non-discrimination, right to a fair hearing and the independence of the judiciary] and 16 [right to recognition everywhere as a person before the law].  What was the Government doing to improve the access to justice of people suffering from mental illnesses?  She had understood that the right to information existed in practice.  She had also understood that that right -- namely in terms of broadcast media -- was also guaranteed by the Constitution.  However, legislation that had existed during the military dictatorship was still maintained and the Committee was concerned that that had not been changed.

She also wondered how the State guaranteed the rights of indigenous peoples -- which were now enshrined internationally -- throughout its territory.  Finally, what measures was Argentina taking to disseminate the work of the Committee, particularly at the judicial level?  She had the impression that Argentina was doing more than others, but would like to know more.

Ms. MAJODINA, expert from South Africa, said that, on issue 17 [witness protection programmes], the Committee had received information indicating that one of the prime risks in fighting crimes against humanity was the fact that people involved in gross human rights violations were associated with the present security forces.  That suggested the current security forces had the ability to jeopardize social stability, as well as to directly threaten witnesses in any investigation and prosecution of such crimes.  Were there specific mechanisms that prevented people involved in such violations from accessing any level of State office or power?  Were there any protocols that existed for judges in those cases?  She asked the delegation to elaborate on what methods existed in protecting witnesses in such cases.

Noting that Argentina had still not approved a juvenile criminal regime that complied with international standards, she pointed out that the current bills being considered by the Government set imputability from age 14.  She asked for more information on the prevailing conditions in which children were held.  “The deprivation of liberty for young people should be used only as a measure of last resort and for the shortest possible period of time,” she said.

She said that, even though act no. 26160, which addressed the property rights related to indigenous lands, had been passed, it was, for all intents and purposes, non-existent due to its non-implementation.  The Committee was told that the State did not have adequate means of demarcating indigenous lands.  Could the delegation provide more information?

Following up to question 19 [discrimination and racial hatred], Mr. THELIN, expert from Sweden, said he was grateful for the delegation’s response, but sought further information, which could be provided in writing.  It was unclear to what extent those matters had been addressed in the criminal courts.  Had there been indictments or prosecutions, and had any compensation been paid to the victims?  He also requested similar information on indictments and prosecutions on crimes related to anti-Semitism.

JOSÉ LUIS PEREZ SANCHEZ-CERRO, expert from Peru, said the issue of the situation in prisons was among the most alarming in Argentina.  He expressed partial satisfaction with the delegation’s response to question 23 [on the right to take part in the conduct of public affairs], but said the Committee had received information that, despite the existence of laws preventing human rights violators from holding certain positions, those had not been enacted.  He wondered what measures had been adopted by the State to prevent such individuals from taking office.  He further stressed the need to make those cases public.  Turning to the freedom of trade unions, he said the Committee had received information indicating that those freedoms were being infringed on and, in light of that, suggested that Argentina was not upholding its obligations.

ABDELFATTAH AMOR, expert from Tunisia, welcomed the thorough and frank discussion.  He was heartened that the delegation had admitted where problems were evident and had not tried to avoid certain difficult issues.  On matters related to religious expression, he said that, while he had personally witnessed Argentina’s tolerance and openness, he was nevertheless concerned that discrimination was clearly apparent when it came to ensuring subsidies and protections for non-Catholic religious practices, including subsidies for non-Catholic schools.

Further, while the national Government had set out legislation that was broadly tolerant of other religions, clearly such attitudes were not being translated down to the municipal level.  He reminded the delegation that it was the tederal Government, not municipal authorities, that would be held responsible for protecting religious freedom in Argentina.  He was particularly concerned by complaints of harassment of self-proclaimed atheists and incitement of religious hatred against non-Catholics.

On freedom of expression, LAZHARI BOUZID, expert from Algeria, asked the delegation to clarify the Government’s position on the criteria for redistribution of public advertising.  The information provided seemed to show that, currently, media outlets that provided favourable coverage of the State were rewarded and those that were more critical of the Government were punished.

Delegation’s Responses

On questions regarding kidnappings, Mr. ALEN said federal police and other security forces in all provinces were called in to help with investigations.  The offices charged with leading investigations into those specific crimes were open to scrutiny from civil society organizations.  He reiterated that constitutional provisions regarding the rights of indigenous people were applied throughout the country.  While it was true that there were processes under way in some of the provinces that might differ slightly, those processes did not trump the tenets of the Constitution.

Finally, he said that constitutional backing of the Catholic faith did not mean that Argentina hampered the practice of other religions.  Any persons wishing to create religious associations, as well as those eschewing the practice of any faith at all, could do so without any limitation.  Such associations must, however, adhere to international human rights norms.  On children born in captivity, he told the Committee that the delegation could provide supplementary information that detailed a complete breakdown of the status of the relevant cases before the courts.

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