Human Rights Committee

101^st Session

2785^th Meeting (AM)

Human Rights Committee Concerned about High-level Corruption, Human Trafficking,

Marital Rape, as It Concludes Review of Mongolia’s Report

 

Delegation Tells of Legal Reforms Intended to Boost Confidence in Judiciary

While welcoming Mongolia’s efforts to bring its national legislation into line with its obligations under international treaties, members of the Human Rights Committee expressed considerable concern today that an absence of judicial independence jeopardized broader protections by eroding public faith in the most fundamental mechanisms of justice.

As they wrapped up their consideration of Mongolia’s fifth periodic report on compliance with the International Covenant on Civil and Political Rights, expert members of the Committee pressed that country’s delegation for further details on efforts to dispel the widespread perception that the judiciary was the country’s most corrupt sector.  That perception directly impacted a citizen’s right to a fair trial, several experts argued, noting that victims of various crimes, including rape and domestic violence, might be discouraged from reporting them and pursuing criminal proceedings.

More specifically, defamation proceedings launched against a human rights defender who, in defending his client, had criticized a judge’s rulings, appeared to violate the Covenant, one expert said.  Christine Chanet, expert from France, questioned in particular the relationship between the Mongolian Government and its lawyers, who seemed to act under the aegis of the State.  Citing the unprecedented diplomatic immunities granted to the President of the Supreme Court, as well as social benefits and loans extended to judges for the construction of private housing and paying educational expenses, she cautioned that Mongolia should not “overdo privileges” if it was truly trying to prevent corruption.

Krister Thelin, expert from Sweden, continued to raise concerns about the prosecution of more than 270 cases in the wake of protests on 1 July 2008, suggesting that the path of criminal proceedings was linked, whether by perception or fact, to questions about the judiciary’s corruption and independence.  While the Constitution subscribed to the notion of separation of powers, it appeared “rather questionable” whether that was borne out in practice, he said.

Other experts questioned the extent to which public and law-enforcement officials were educated and trained on rights protected by international treaty bodies, and the legal protections and social policies provided to Mongolia’s Kazakh minority, particularly access to education for children of that ethnicity.

While recognizing several legislative victories in Mongolia’s fight against human trafficking, Yuji Iwasawa, expert from Japan, pressed the Government delegation to explain how those laws were being implemented, particularly with respect to witness- and victim-protection, and to the provision of shelter and other services to victims.  Questioning gaps in the criminal prosecution of human trafficking cases, he also sought information about the alleged involvement of law-enforcement officials in trafficking, and claims that high-level Government and police officials were “clients” of minors forced into prostitution.

A number of experts requested further details on the State’s approach to domestic violence, placing particular emphasis on whether Mongolia’s Criminal Code covered marital rape.  In that regard, Cornelis Flinterman, expert from the Netherlands, expressed concern about the persistence of certain gender stereotypes, given their being linked to violence against women.

Responding for the delegation, Gungaa Bayasgalan, State Secretary in the Ministry of Justice and Home Affairs, said marital rape was quite new to Mongolia and the question of how to address it was a matter of “great dispute” in the legal community and among academics.  Nevertheless, a Government working group was considering the inclusion of provisions on marital rape and sexual harassment in the Criminal Code, he said, emphasizing, however, that he could not assure the Committee that the two acts would officially be considered crimes under that Code.  However, he agreed that some harmful stereotypes were prevalent in society.

He went on to acknowledge that in certain cases, high-level civil servants denied the damaging effects of violence against women for society.  “We need to make a U-turn in our understanding about the nature of this violence and crime,” he stressed.  On the issue of judicial corruption, he noted that despite widespread perceptions, only one case of corruption had been recorded.  Nevertheless, the current President had initiated a legal reform programme aimed at ensuring an independent judiciary and raising public confidence in the fairness and competency of the court system.

The Human Rights Committee will reconvene at 3 p.m. on Wednesday, 22 March, to continue its second reading of its draft general comment 34.

Background

The Human Rights Committee continued its 101^st session today, concluding its review of the fifth periodic report of Mongolia.  For more information see Press Release HR/CT/732 of 21 March.

Committee Experts’ Comments and Questions

CORNELIS FLINTERMAN, expert from the Netherlands, launched today’s meeting with several follow-up questions to responses given by the delegation yesterday, asking whether the Criminal Code covered marital rape.  Concerning domestic violence, he asked what the State had done to change certain gender stereotypes, given the link between them and violence against women.  What measures were in place to encourage women rape victims to step forward and report their ordeals?, he asked.  Were there assurances that such complaints would be prosecuted if found to be true?  Turning to health matters, he noted that while Mongolia had taken important steps to reduce maternal mortality, the rates remained stubbornly high in many areas, especially rural ones.  What was the State doing to reduce them?

FABIÁN OMAR SALVIOLI, expert from Argentina, said that, as far as he could understand from the delegation’s responses, there was no record of hate crimes in Mongolia and therefore no action had been taken against them.  It also appeared that no actions had been taken to address complaints of torture.  If the State made no progress, and the judiciary also rejected the torture complaints, what could a person claiming to be a victim do?  Reminding the delegation that the Committee possessed a great deal of information from various non-governmental organizations and United Nations bodies on the existence of torture in Mongolia, he said that seemed “strange”, given the delegation’s assertion to the contrary.

HELLEN KELLER, expert from Switzerland, reiterated her question from yesterday concerning the State’s intention to criminalize marital rape, asking also what it was doing to ensure that public officials were fully aware of international norms on violence against women.  Recalling the delegation’s response that the new Gender Equality Law would go into effect by 2013 and highlighting the amount of time still remaining between now and then, she asked why it would take so long.  Were similar delays expected in implementing other proposed laws?

Delegation’s Responses

GUNGAA BAYASGALAN, State Secretary, Ministry of Justice and Home Affairs of Mongolia, said the Supreme Court had issued a strong decision in favour of applying international treaties in 2008, but advocacy work was needed, while the courts and administrative staff required further training.

The three members of the National Human Rights Commission were nominated, respectively, by the President, the Legal Standing Committee of parliament and the Supreme Court, he said.  The nominations were then submitted to the plenary session of parliament, he said, adding that the members served for one six-year term each.

Regarding the protestors arrested following the events of 1 July 2008, he said different courts had handled their cases following a Supreme Court decision on jurisdiction, which had set out two different regulations.  Under the first, the court situated in the locality where the crime had occurred would consider the matter, while under the second, the Supreme Court could decide, due to the local court’s workload, to reassign jurisdiction to the district in which the defendant resided.

He went on to state that, under Mongolian laws, compensation was due to victims of a crime, who in that particular case were the police officers involved.  Moreover, compensation for material losses was also required, which, in the case in question, included the destruction of property by fire.

On the question of marital rape, he said it was quite new to Mongolia, adding that how to address it was a matter of “great dispute” in the legal community and among academics.  Nevertheless, a Government working group was making efforts for the inclusion of provisions on marital rape and sexual harassment in the Criminal Code, he said, emphasizing, however, that he could not assure the Committee that the two acts would officially be considered crimes.

Acknowledging that domestic violence was a severe problem, he said non-governmental organizations, among others, were working hard to address it.  The State had enacted a special law to combat domestic violence, but many more issues remained to be addressed, including the “evergreen” issues entailing women’s reporting rape cases to authorities.  Indeed, because it was a “rather private” issue, victims sometimes withdrew their complaints, although they had the full right to have their complaints resolved in court, he said, stressing that adequate training was still needed, as were changes in certain law-enforcement attitudes.

Emphasizing that reducing maternal mortality rates was a high priority for Mongolia as part of its pursuit of the Millennium Development Goals, he said rates remained high in rural areas, and assured the Committee that the State would continue to target them, within limited resources.  Among other remedies, a nationwide network of the national ambulance services must be established to provide prompt medical services to the rural population.  While all provinces now had the ability to provide basic maternal delivery services, high-risk services were not as widespread, he pointed out.  Among other efforts to reduce maternal mortality, Mongolia had launched the Healthy Citizen programme, in partnership with the World Health Organization (WHO), he said.

He said he could not deny that hate crimes had taken place in Mongolia, and while no special provision of the Criminal Code addressed them, other legislation did address such crimes.  The same question had been raised during Mongolia’s discussion with the Committee against Torture, and the Government was now considering how to amend the Criminal Code to address that problem.  Still, it needed technical advice on the best way to do so.

Since Mongolia’s signing of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2002, he said, the issue had become well understood throughout society, and the State was currently working to legalize the definition of torture.  Agreeing that the institution dealing with torture must enjoy independent status, he said the Investigation Unit in the Prosecutor’s Office was currently tasked with handling it, but it was an ongoing question as to whether it was adequately equipped to deal fully with the issue.  Perhaps certain amendments were needed to create different institutions, he said, predicting that when Mongolia introduced its next periodic report in four years, the State would be able to report progress on that front.

Reiterating that the working group was moving ahead on the question of marital rape, he agreed that some harmful stereotypes were prevalent in society, especially among civil servants.  In certain cases there was a serious problem whereby high-level civil servants denied how damaging violence against women was for society.  “We need to make a U-turn in our understanding about the nature of this violence and crime,” he stressed.

Turning to the delay in implementing the Law on Gender Equality, he highlighted various stipulations in the law which specified ratios among representatives at certain decision-making levels, such as “40 to 60”, “not less than 15 per cent” or “not less than 20 per cent”.  For example, at the level of heads of Government agencies, not less than 15 per cent would be represented by a particular gender, he said, recalling that at the time when the law had been enacted, the percentage had been 13 rather than 15 per cent.  Parliamentary elections would be held in 2012, after which the new Government would make new assignments and the new law would become applicable, he said.  However, while it would take time for certain of its provisions to be implemented, other clauses would be implemented immediately, he said.

Experts’ Comments and Questions

YUJI IWASAWA, expert from Japan, welcomed Mongolia’s 2010 law to combat human trafficking and wondered when parliament would approve a national plan of action to combat the trafficking of women and children.  Did it have any mechanism to protect witnesses and victims during all stages of a trial?  There were only two shelters for victims, both run by non-governmental organizations, he noted, asking whether the Government planned to allocate a budget to them.

On a related point, he welcomed the 2002 addition of article 113 (on the sale and purchase of humans) to the Criminal Code, and described the Supreme Court’s 2008 offer of its interpretation of that article as a “significant step forward” in criminalizing human trafficking.  However, trafficking was less often prosecuted, he said, requesting clarity concerning why trafficking was more frequently prosecuted under article 124 of the Criminal Code than under article 113.  Additionally, another 2008 amendment to the Criminal Code released from criminal liability entities that had purchased a human being, he noted, asking whether that interpretation was correct.  If so, what was the rationale for doing so?  There had been an increase in human trafficking, he noted, asking why most cases were dismissed.  He requested a response to allegations that law-enforcement officials were involved in trafficking, and that high-level Government and police officials were “clients” of minors forced into prostitution.

Turning to the dissemination of information on the Covenant, he asked what kind of training was provided to judges to ensure that the instrument was invoked in the courts, and whether any such training was provided to prosecutors, lawyers and law-enforcement officials.

KRISTER THELIN, expert from Sweden, referring to the events of 1 July 2008 asked the extent to which there had been acquittals (non-convictions) in the “270 plus” cases.  It was understood that the prosecution had sought a certain number of convictions, but the issue had a bearing on issue 18 (anti-corruption), which dealt with the broader concept of judicial independence.  The Constitution subscribed to the notion of separation of powers, but it appeared “rather questionable” as to whether that was borne out in practice, he said.

He went on to note that the public perceived the judiciary as the most corrupt sector, he said, emphasizing that, if that was indeed the case, Mongolia must seriously address the matter.  Did the relevant agency deal with corruption within the judiciary?, he asked.  Did the “General Council of Court”, referred to in paragraph 134 of Mongolia’s report, play a role in selecting judges or in any disciplinary action against them?  He also wondered when to expect the results from a 2009 presidential initiative to enhance transparency in the judicial sector.

As for the human rights defender who, in defending his client, had criticized a judge’s rulings, and in turn been charged with defamation and sentenced to four months in prison, he said that was a cause for concern.  A person defending a client had the right to criticise a court, and the defender’s sentencing appeared to violate the Covenant, he stressed.

Noting significant progress in the area of legal aid, he said the law of advocates — an institutional law — did not provide for legal aid as such, meaning that there appeared to be no legal foundation for such aid.  He asked for comment on that point.

Mr. SALVIOLI, expert from Argentina, noted the delegation’s response to issue 20, and asked whether anyone had been convicted for being conscientious objectors before the formulation of the law on alternative services.  Inquiring about the length of both civil and military service, he said he found it odd that civil service fell under military command because the tasks did not seem to be of a military nature.  Moreover, if people could pay to be exempted from military service, then discrimination was being perpetuated against those without the means to pay, he said, asking also whether civilian justice was available in cases of torture or ill-treatment during military service.

Turning to issue 21, he asked whether religious institutions faced difficulties in registering or re-registering.  “We are not questioning the policy,” he said, clarifying that the question was about practical difficulties.

On issue 26, relating to public participation and elections, he asked whether Mongolia had mechanisms for guaranteeing transparency in electoral processes and for monitoring elections.  Noting that the 30 per cent quota for women in parliament had been eliminated, he sought to know the basis upon which that had been done, pointing out that there was only a 4 per cent representation of women in the legislature.  Finally, on issue 27, he wondered when a bill allowing Mongolian citizens living abroad to vote would be approved.

Ms. KELLER, expert from Switzerland, asked why there had a nine-year delay in passing a law on the freedom of information since a working group had been formed in June 2002 to draft it.  What were its main features and when would it be submitted to parliament for consideration and adoption?  She also sought comment on reports that national and local media were subjected to harassment, extensive use of libel cases and frequent tax audits.

Turning to issue 23, she said she was puzzled by the delegation’s response in paragraph 21 and wondered why there were no foreign citizens or stateless persons requesting residence in Mongolia, given the country’s geography.  Also, the delegation had indicated that stateless people born in Mongolia to refugee parents could request citizenship once they were over 18 years old.  How many such requests had been made and how long, on average, did they take to process?, she asked.  The duration of such proceedings was especially interesting because, non-governmental organizations had said that the process took between nine and 13 years, contravening article 22.5 of the law on citizenship, which outlined a limit of not more than six months.

As for issue 28, she recalled that the delegation had described a mid-term education programme for Kazakh children and asked about its results.  Specifically, how many more Kazakh children had gained access to education and textbooks in the Kazakh language since 2006?  Citing a report from a non-governmental organization, she noted that even where there was a significant Kazakh presence, as in the capital, Ulaanbaatar, where 30 per cent of the population was Kazakh, Kazakh citizens were not taught in their own language and were thus unable to access laws that were only available in Mongolian.

RAFAEL RIVAS POSADA, expert from Colombia, said the Committee had requested details about legislative measures taken to protect children from corporeal punishment, among other things, in the education system, as well as in penal institutions and alternative child-care systems.  A Ministry of Education policy for children, though not binding, showed the degree to which the State found it necessary to create a stimulating environment that protected for children’s physical and mental rights.  To what degree were the State’s concerns about preventing violence and ensuring children’s protection seen in other settings, as outlined in the Covenant’s article 24?

As for domestic violence, he asked about the degree to which Mongolia respected the right of married women not to be subjected to sexual violence.  While it was a relatively new offence in almost every country, legislation had indeed been passed because it concerned rights in a very delicate area.

LAZHARI BOUZID, expert from Algeria, focused on the right to a fair trial, asking whether any corruption cases had been filed against judges.  He also asked how many lawyers there were in Mongolia.

NIGEL RODLEY, expert from the United Kingdom, pointed out that paragraph 40 of the delegation’s reply stated that an alternative was available if a person had a moral or ethical objection to military service.  Some 2,588 citizens had served in an alternative military service between 2000 and 2009, he said, adding that he had the impression that they were not conscientious objectors.  Asking whether there were one or two forms of service — military and or civil — he emphasized that, in the absence of a civil option, it was not clear how the needs of conscientious objectors were being met.

CHRISTINE CHANET, expert from France, zeroed in on judicial independence, saying it was not always easy to apply such strong principles in full at the constitutional level.  Associating herself with Mr. Bouzid and Mr. Thelin regarding the conditions for exercising the profession, she said she was puzzled by the answer given in paragraph 127, which stated that judges could not be relieved of their functions or transferred for reasons that did not appear in the law.  She said she was further concerned about social benefits and loans extended to judges to build private housing and pay educational expenses for having demonstrated “effectiveness”.

She noted that the President of the Supreme Court had diplomatic immunities (of person and residence).  “I’ve never seen that,” she emphasized, cautioning that if Mongolia was trying to prevent corruption, it should not “overdo privileges”.  Finally, she noted that, according to paragraph 142 of the report, lawyers acted under the aegis of the State, saying she did not view that as a good relationship.  How did lawyers exercise their profession and how were they were paid?

Delegation’s Response

State Secretary BAYASGALAN, agreeing that human trafficking was a fairly new phenomenon requiring due consideration, said the Government had recently made the issue a priority, concluding a bilateral agreement with Macau.  It would continue bilateral cooperation with other States willing to combat the problem jointly, he said, adding that the Ministry of Justice had drafted a new law on human trafficking that parliament would, hopefully, finish considering by the end of its upcoming session.

Noting that investigations into human trafficking were regulated by the Criminal Procedural Code, he said a separate law aimed at protecting victims and witnesses was being drafted.  Because the process of setting up shelters was both time-consuming and a drain on resources, the Government planned to leverage capacities already built up by non-governmental organizations, and would provide technical and financial support for the establishment of additional shelters.

He stressed that the approach of law-enforcement must be reviewed and revised, including through further training.  Because human trafficking had a broad range of meanings beyond its transnational elements, forced prostitution might rightly be considered a type of trafficking, he said, suggesting that such phenomena should be addressed through a single, unified understanding of trafficking.

The State Secretary said he had no detailed information concerning the lack of criminal investigations into the possible involvement of high ranking police officers in human trafficking cases, but the delegation would address that in writing.

With respect to dissemination of information on the Covenant, he said the State had started issuing in one unified volume the texts of international treaties and covenants to which Mongolia had signed up in 2005.  Additionally, judges, legal advocates and law-enforcement officers would be offered training as a matter of priority, with 30 hours required in some professional curricula.

Turning to the events of 1 July 2008, he said the Government had investigated more than 300 cases, of which 270 had been resolved in court — meaning that 30 cases had been dismissed before trial.  The delegation would provide further details of those cases, he added.

While surveys indicated that Mongolians considered the judiciary to be the State’s most corrupt State institution, only one case of corruption had been recorded, he said, adding that there was obviously a big discrepancy between perception and facts.  The anti-corruption agency also had registered no cases of judicial corruption, he emphasized, pointing out that the current President had initiated a legal reform programme covering anti-corruption measures aimed at ensuring an independent judiciary and raising public confidence in the fairness and competency of the court system.  A legal forum would be conducted later this year in relation to independent studies of the judicial system.

He said a general court council was responsible for ensuring the court system’s economic stability.  It comprised 15 members, of whom three were judges, a number of prosecutors, and high-level officials from the Ministry of Justice and Home Affairs.  Judges were disciplined through a number of institutions, he said, adding that interference in the court system by civil servants, including those from the executive branch, was prohibited.  Nevertheless, there was a perception that high-ranking civil servants had a great deal of influence on the courts, he continued.  While the judiciary’s independence was guaranteed, Mongolia still needed to address gaps in its genuine independence.

On a separate matter, he said the Supreme Court had ruled on defamation and he was unable to comment.  However, it was the preponderant position among officials that such cases should be resolved in an administrative, rather than a criminal, manner, he said, adding that the issue would be approached again through new provisions of the Criminal Code currently being drafted.

Outlining the delegation’s response on legal aid, he said the Government was taking special measures to establish legal aid centres in the provinces, with support from the United Nations Development Programme (UNDP).  That aid was specifically targeted at criminal proceedings, and the Government was also working on a special law that would establish a legal aid network, to include advocates, legal clinics, paralegals and legal aid centres.

He said the law provided alternatives for citizens over 18 who objected to military service.  They included fire-fighting, dam construction during floods, digging and restoring wells, renovating electrical systems, and clearing snow in urban areas.  The maximum duration was two years, he said, noting that eligibility for alternative service had been established by the relevant provincial citizens’ representative assembly.  From 2002 to 2009, more than 10,000 people had applied for alternative military service and 1,922 were currently serving.  Stressing that certain people were not physically able to serve in the army, he said there were “sound reasons” why they were allowed to pay an exemption fee.  He added that there had been no increase in disorder and the number of military suicides, although there were some cases of both.

He went on to say that Mongolia had not observed any special challenges in the registration of religious institutions, explaining that a person wishing to register one must make a request to the relevant provincial citizens’ representative assembly.  According to the latest statistics, there were six basic categories of registered religions, and more than 400 different institutions registered, of which 200 were Buddhist, 150 Christian, 27 Muslim, 3 Baha’i, 6 shamanist and 1 Moonist.  The number of registered religious institutions was increasing, he added.

Stressing the importance of ensuring fairness in elections, he said the problems of 1 July 2008 had stemmed from suspicions that the election of the previous day before had not been fair.  The Government intended to reform the electoral system so as to ensure transparency and fairness, including by establishing particular mechanisms, he said, adding that a draft had been prepared and, following revisions, it would be ready for consideration during the upcoming parliamentary session.

He said he could not provide any type of detailed explanation concerning the elimination of the 30 per cent quota for women representatives, although it was true that parliament had rejected it.  He said the various parties would address the issue in the near future, although it remained to be seen what particular legislation would be proposed.

While affirming that citizens living abroad would be allowed to vote, he nevertheless acknowledged that the Government was still considering the best mechanisms for registering their ballots.  The fact that some Mongolian citizens were living abroad illegally posed a particular technical problem, he added.  Detainees in the pre-trial phase also had full rights to cast their votes, while prisoners convicted under the Criminal Code did not.

It was true that parliament had not yet considered the draft law on freedom of information, he said, expressing hope that such consideration would take place during the upcoming session.  For its part, the Government was drafting other laws on freedom of the press and media.  Relevant non-governmental organizations regularly monitoring the pressures exerted on the media by Government officials, although the process was still evolving, he said, stressing in that regard that the burden of responsibility fell on both parties.

Responding to questions about immigration and asylum, he said that according to statistics from 2010, permission to immigrate had been granted to 294 people and residence permission to 35 stateless persons.  Meanwhile, 17,555 people had been excluded from citizenship and 126 had restored their citizenship.  Under Mongolian law, the amount of time for considering one’s citizenship status should not exceed six months, although some cases had taken longer, he said, adding that excessively long cases would soon be considered.  The children of stateless foreigners could apply for citizenship when they turned 16, with the consent of their parents or guardians, he added.

He went on to stress that his country was working with its Kazakh counterparts to resolve questions relating to Mongolian Kazakhs who had fled their country to obtain Kazakh citizenship in great numbers and now had dual citizenship.  Kazakhs formed the majority of the 17,555 applicants denied Mongolian citizenship, as were most of the 126 people who had restored their citizenship.

Responding to questions about Kazakh-language textbooks and other educational materials, he said that as of 2009, 24 textbooks had been translated.  Studies were offered in the Kazakh language from the first through fifth grades, and bilingual subjects were also taught, he said, noting that the Constitution had recently been translated into Kazakh, and that an official translation of legal texts was under way despite Mongolian being the country’s official language.  Despite those steps, it was clear that the State needed to take further action in order to incorporate the views of the Kazakh minority into national policy.

While the education law prohibited corporal punishment and administrative sanctions were imposed on teachers who engaged in such actions, he said the need to address the issue was not limited to the Ministry of Education.  Indeed there was now a daily campaign to prohibit corporal punishment in schools and at home, and teachers had received the relevant training.  A crisis hotline for children had received 501 calls in 2010, he said, adding that identified victims were provided with legal, psychological and medical services.  Still, in order to eliminate corporal punishment, Mongolia’s child-rights protection law must be amended, he said.  Likewise, although the Criminal Code dealt with domestic violence and rape, additional research was needed to help the Government decide whether to introduce provisions on marital rape.

On the right to a fair trial, he said it touched on the issue of judicial corruption.  The Government must take decisive measures to ensure fairness and transparency, he emphasized, adding that it was working with donor countries to that end.  Due consideration must be given to public perceptions of judicial corruption.

Describing Mongolia’s granting of diplomatic immunity to the judiciary as a “unique” practice, he acknowledged concerns about the practice diminishing the institution’s standing, saying:  “Yes, we need to consider the negative implications of our measures, as well.”  The problem was that Mongolia was striving to enact all measures to create judicial independence.  The question remained as to whether judges themselves were independent, which was a matter of their ethics, as well as the criteria for their selection.

He said a legal forum would be held in April to discuss the independence of the judicial sector and individual judges, as well as the reasons behind the public view of the judiciary as corrupt.  Policy recommendations would be developed in order to facilitate a “U-turn” in current practice.  Ensuring independence required a great deal of financial assistance, which could be among the reasons for criticizing the judiciary.  Mongolia planned to analyse the perception gap created over the last two decades.

Regarding loans and social benefits for judges, he said such measures were taken to ensure their independence and to prevent the temptations of corruption.  However, “excessive” privileges would raise questions, he cautioned, adding that further consideration was needed.  On a final note, he said the State budget covered the costs of a private advocate’s legal services to a poor person, while vulnerable people enjoyed advocacy services free of charge.

Experts’ Comments and Questions

Mr. THELIN, expert from Sweden, took the floor again and expressed appreciation for the frankness with which the delegation recognized the discrepancy between public perception and the fact that nothing appeared to have come of the Government’s anti-corruption measures.  He asked whether there would be specific drafts on reform at the upcoming legal forum, or if it would merely provide a starting point for later measures.  Would non-governmental organizations be allowed to participate?

Mr. IWASAWA, expert from Japan, said a question had been raised about the extensive use of libel cases against journalists, but he had not heard any response.  He also sought comment on reports that journalists had been attacked and the media censored.

Responding to the delegation’s statement that no foreign citizens had requested asylum rights, he said article 3 of the Convention against Torture outlined the principle of non-refoulement, and asked whether Mongolia would abide by it despite not being a party to the Refugee Convention.

Mr. RODLEY, expert from the United Kingdom, clarified that he had indeed read paragraphs 40 to 45 of the delegation’s replies, but he did not understand how to reconcile the statement in paragraph 40 — that there had been no conscientious objections on ethical and other grounds — and the fact that thousands of people had done alternative military service.  How were those people choosing alternative service if not as conscientious objectors?

AHMAD AMIN FATHALLA, expert from Egypt, followed up on the point that persons physically unable to perform military or alternative service must pay to exempt themselves, asking how the payment was determined.  Was it a fixed sum or did it relate to a person’s income?  He also noted that the Government was preparing the ground for Mongolians living abroad to participate in elections, asking about the technical issues associated with those efforts.  As for the judiciary, he asked whether “diplomatic immunity” was defined in the same manner as that reflected in Geneva Convention 61, pointing out that most countries had measures for “judiciary immunity”.

Delegation’s Responses

Mr. BAYASGALAN responded by saying Mongolia had launched its own version of the Davos Economic Forum, which it would use as a format for the upcoming legal forum.  That forum would produce tangible results that would help the Government amend its legislation.

Regarding censorship, he said journalists often exercised their rights to complain and file monetary claims.  On the other hand, he said:  “This is about the responsibility of journalists to spread reliable information.”  There was no Government press channel, but only public channels, he said, noting that radio and television channels formerly under Government control today enjoyed joint-venture status, which involved all stakeholders, including non-governmental organizations. There was a big difference between State and public ownership, he added.

Though not a signatory to the Refugee Convention, Mongolia would follow all commonly accepted and agreed provisions within it, he affirmed, emphasizing that the Constitution stated that internationally recognized principles would be followed.  He also commented that the “great numbers” of people exempted from military service had not done so because they were conscientious objectors.  As for Mongolians living abroad and wishing to vote in upcoming elections, he clarified that the problem centred on Mongolians living in Mongolia who had no legal representation.

On the question of diplomatic immunity, finally, he said the general judge was a high-ranked public official and thus entitled to diplomatic immunity, but that issue could be reviewed as the judiciary law was reviewed.

Closing Remarks

ZONKE ZANELE MAJODINA, Committee Chairperson and expert from South Africa, thanked the delegation for contributing to a fruitful, enriching experience.  Describing its oral replies as “very comprehensive”, she welcomed the ongoing legal process to ratify the Second Optional Protocol, emphasizing that domestic law could not supersede international treaties and instruments, which the delegation had assured would also be upheld in the courts.

“You have tried to provide us with comprehensive answers, but there is still uncertainty,” she said, especially with regard to judicial proceedings.  Further, the Committee had expressed concern about the role, mandate and independence of the National Human Rights Commission.  While steps had been taken to address gender equality and gender-based violence, more must be done to enhance the role of women in public life.  The draft law on freedom of information also had been pending for too many years, he said.

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