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San Marino- Twentieth session - 2014
29 October 2014 - 2.30 p.m. - 6.00 p.m.
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Accepted and rejected recommendations
I. Introduction
1. San Marino attaches great importance to the promotion and protection of human rights and, within international fora, it supports initiatives in all areas aimed, in particular, at the elimination of the death penalty all over the world, the defence of freedom of religion and belief, the protection of the rights of children and women, with special attention to the prevention of domestic violence and the protection of victims, the promotion of democracy and the rule of law.
III. Regulatory and institutional framework
Recommendations 70.1, 70.2, 71.5, 71.6 and voluntary commitment 71.8
18. On 21 July 2011, San Marino ratified the two Optional Protocols to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography and on the Involvement of Children in Armed Conflict. The two Protocols entered into force for San Marino on 26 October 2011
19. On 1 July 2010, San Marino ratified the United Nations Convention against Transnational Organized Crime and its Additional Protocols to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and against the Smuggling of Migrants by Land , Sea and Air. The Convention and the two Additional Protocols entered into force for San Marino on 19 August 2010.
22. In recent years, San Marino has ratified several international instruments in the field of human rights, including the Council of Europe Convention for the Protection of Children against Sexual Exploitation and Sexual Abuse, the Council of Europe Convention on Action against Trafficking in Human Beings, the Protocol no. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Charter of Local Self-Government.
2. Children
Recommendation 71.22
44. Art. 12, paragraph 3 of the Declaration on the Citizens’ Rights, guarantees that “children born outside wedlock shall enjoy spiritual, legal and social protection and be treated on an equal footing as legitimate children.” To welcome the recommendation 71.22, the Congress of State has established, with Decision no. 21 of 24 June 2014, a working group in charge of preparing an ad-hoc draft law to adapt the terminology of San Marino legislation to the recommendations in question and to review the provisions in force concerning filiation by eliminating the concepts of “legitimate” and “natural” children. It should be emphasized that it is only a matter of language, since in San Marino legislation there are no differences in treatment between these categories of children. The Group has already started to work.
Recommendations 71.23, 71.24, 71.25, 71.26 and 71.27
45. By accepting the aforesaid recommendations, the Government of San Marino approved, with Decision no. 17 of 17 June 2014, the Draft Law “Provisions on maltreatment within the family and on children”. Such Draft Law prohibits corporal punishment of a family member or a cohabiting person and provides for more severe penalties for corporal punishment of a child aged less than 14.
46. The same Draft Law raises the age of criminal liability of children from 12 to 14 years, confirming that, with a view to assessing a minor’s mental capacity, the judge shall always order a biopsychic expert’s report.
47. In addition, the Draft Law, in accordance with a recommendation made to San Marino by the Committee on the Rights of the Child in October 2003, establishes the right of the adoptee to know his/her origins, instructing the Registrar of the Vital Statistics Office to provide the adoptee having already reached the age of majority with certificates, extracts or copies concerning facts and information relating to the adoption relationship.
48. First-reading examination of the Draft Law is on the agenda of the session of the Great and General Council convened from 14 to 22 July 2014.
D. Freedom of movement, residence and asylum
65. The Law has also introduced a cohabitation permit issued to a foreign citizen cohabiting with a San Marino citizen or a resident foreign citizen; a parental permit issued to parent, who is not self-sufficient, of a person residing or holding a stay permit; a permit for minors, issued to a minor whose parents hold a residence permit for reasons of work or sports or a cohabitation permit.
66. Apart from public order reasons and in case of specific criminal convictions, residence is revoked when the reason at the basis of its granting no longer exists, including the termination of the civil effects of marriage, unless five years have elapsed since marriage or a child was born from marriage.
E. Right to citizenship
70. Law no. 35/2012 has reduced the general requirement of actual stay in the territory to apply for citizenship from 30 to 25 years and to 18 years for those who have been living in the territory since birth. It has kept the 15-year period for the spouses of San Marino citizens, also covering situations of widowhood, and has provided an abbreviated naturalization process for stateless persons.
71. Under said Law, the children who have only a parent naturalised are treated equal to those having both parents naturalised. Indeed, the different condition of parents envisaged by the Law of 2000 had such an adverse impact on minors that it created a discriminatory situation. The Law also provides for the case of a minor whose parent died before applying for naturalisation for him/herself and his/her minor children, as he/she met the relevant requirements.
F. Right to a family
73. San Marino continues to protect the institution of the family, understood as a union between a man and a woman which includes children born or adopted during the marriage.
74. Recent Law no. 43 of 31 March 2014 applies the same treatment granted to birth parents to adoptive and foster parents and extends the right of a parent to be absent from the workplace, in the case of child’s illness certified by a physician, for the entire duration of the disease for children up to 6 years and for 5 working days per year for children aged between 6 and 14. 4 permits are paid per month in case of assistance to a family member with severe permanent or temporary disabilities, or suffering a serious age-related disease, whether permanent or temporary, that requires assistance.
75. The family is protected even after its dissolution following a separation. Law no. 57 of 29 May 2013 “Family mediation” established in San Marino system the function of the family mediator, who provides strong support to parental couples experiencing separation. The Law gives the couple undergoing separation the possibility of meeting with a neutral and qualified professional, chosen by mutual agreement, who facilitates communication and discussion between the parents on all aspects concerning the relationships with their children (education, health, maintenance, leisure, acquaintances, organization of the presence of each of them with their children) and other issues of disagreement (such as, for instance, economic issues) so that the parents themselves develop a separation program which is satisfactory for them and for their children based on which they can exercise their joint parental responsibility. Delegated Decree No. 120 of 2 September 2013 “Rules concerning family mediation” creates the register of family mediators and outlines the code of conduct by which they must abide.
76. In addition, on 25 October 2013 the Ministry of Health and Social Security presented, in first reading, the Law “National Observatory on the Family”, which is pending examination by the competent Permanent Parliamentary Commission. The Law establishes the National Observatory on the Family, providing scientific and technical support for the development of family policies. The Observatory carries our activities related to study, research, documentation, promotion and advice on family policies.
J. Right to social security
88. During 2014, in the context of the general review of the staffing levels of all the personnel of San Marino Public Administration, the Authority has defined the staffing levels of the health care and social-health personnel of the Social Security Institute, providing for specific training requirements for those who deal with children, the elderly, ill persons and disabled persons. Staffing levels have been approved by Delegated Decree no. 102 of 1 July 2014.
89. The Annual Training Plans (ATP) of the Social Security Institute envisage qualified training opportunities for the staff dealing with ill persons, people with disabilities, the elderly and children.
K. Right to work
94. Given the increase in the unemployment rate, the Ministry of Labour intervened with Decree Law no. 130 of 9 August 2011 “Urgent measures for the streamlining and efficiency of the labour market”. The measure concerns and impacts on some fundamental aspects of the sector by identifying mechanisms and benefits to support the employment of those who have been involved in collective redundancy procedures or have been fired after expiry of the employment contract. It also favours the recruitment of employees on a permanent contract through benefits and incentives to businesses, and supports the weakest groups of the population (young people, single-parent families with dependent children, over fifty out of work). Moreover, it introduces correction and protections rules for the appropriate use of the system of social safety nets and establishes tighter rules to combat undeclared work. Furthermore, an additional temporary intervention, expiring on 30 June 2015, is being designed in response to the continuing employment crisis.
M. Right to education
103. Schools pay particular attention to the issue of human rights, which is a subject matter studied in all grade levels and schools of the Republic of San Marino, as established by school curricula and in accordance with Law no. 57 of 15 March 2006. Therefore, human rights education is a central part of teaching. The educational offer plans include, both in school curricula and through specific projects, activities focused on human rights in order to promote behaviours based on the respect for individual dignity, in accordance with Law of 12 February 1998 “Purposes of schooling and right to education”. Article 1 of said Law reads as follows: “The right to education and the right to training of any individual are implemented in school without any discrimination, ensuring that individual freedom and dignity are respected, through the transmission of knowledge, the progressive discovery of reality, the development of a critical method, research and exchange of views, study experience and forms of civil and democratic coexistence”. Given the interdisciplinary nature of human rights, such issue is not included in the curriculum of a single subject, but there are always a number of disciplines and teachers concerned and involved in such matter. Human rights are often included in complex educational units implemented in the form of educational projects.
104. In-service training of teachers, which is mandatory by law in San Marino, provides for specific programmes related to human rights issues. In particular, after the approval of Law no. 97 of 20 June 2008 on the “Prevention and elimination of violence against women and gender violence”, specific refresher courses were activated for all teachers of any level with regard to the human rights of women, children and vulnerable groups.
105. Moreover, research-permanent action groups have been established in each school and they will considerably contribute to the dissemination of good practices and the enhancement of human rights education. In some periods of the year, especially in the pre- Christmas period, San Marino basic schools (nursery, elementary and middle schools) implement educational projects on human rights. Specific operational guidelines for the monitoring of these educational projects are laid down by the Education Coordinating Board, composed of all school directors and the Director of the Department of Education.
106. In general, San Marino does not produce its own textbooks but it uses the textbooks of the neighbouring Italian Republic.
107. During the preparation of the national report, the Ministry of Foreign Affairs sent to all San Marino non-governmental organizations, through the Board of the Cultural Associations and Cooperatives and in some cases directly, the previous report, the list of recommendations accepted and rejected during the first Universal Periodic Review and information material, asking them to make comments and observations.
108. Only a San Marino association responded, urging the Government to consider adopting a number of measures in favour of disabled people and children. Among the measures suggested worth mentioning are: [...]
- to provide for paid parental leaves, in addition to those envisaged by Article 1 of Law no. 43 of 31 March 2014, up to a maximum of two years, which may also be used on an ongoing basis, to assist family members with disabilities in proven severe situations or in the presence of serious diseases, including temporary diseases;
- to introduce within the school system the position of teacher specialized in learning support, with specific training to ensure the full inclusion of the student with disabilities and to ensure education and teaching continuity;
- to involve parents in the elaboration of the individualised education programmes for students and to annually review the programme to assess actual improvements and to propose checks and corrections;
- to activate a specialized section of the Court focusing on children and family, with specific training of judges, while enhancing the use and professional skills of the competent social services. To adopt specific procedural rules with regard to juvenile criminal cases and to tighten the rules on the application of penalties to those committing child abuse.
I. Background and framework
B. Constitutional and legislative framework
6. The HR Committee requested that San Marino indicate whether it had adopted the Comprehensive Regulations of the Military Corps, which would raise the minimum age of military service to 18, and the measures taken to modify article 3 of act No. 15 of 26 January 1990 on the exceptional circumstances in which all citizens aged between 16 and 60 may be conscripted.
III. Implementation of international human rights obligations
B. Right to life, liberty and security of the person
9. The HR Committee requested information on any programmes established, and awareness-raising measures adopted, to promote the implementation of act No. 97 of 20 June 2008 on the Prevention and Repression of Violence against Women and Gender Violence, to tackle violence against women. It also requested that San Marino indicate the measures taken to prevent gender-based and domestic violence, including to protect girls and women with disabilities, and to help girls and women gain access to assistance.
10. The HR Committee, further to information from other sources, requested information on measures taken, or planned to be taken, to clearly prohibit corporal punishment anywhere in its legislation.
C. Administration of justice and the rule of law
13. Further to information from other sources, the HR Committee requested that San Marino indicate the measures taken to introduce a juvenile criminal justice system.
G. Right to education
25. UNESCO noted that according to article 6 of the law of 8 July 1974, “The arts, science and education may be freely practised. The right to freedom of study, free of charge, is guaranteed to citizens by law.” According to article 11, “Through studies, work and sports or leisure activities, the Republic encourages young people in their personal development and in preparing to exercise their fundamental rights freely and responsibly.” Article 4 recognizes that “Everyone is equal before the law, with no distinction based on gender or personal, economic, social, political or religious status.”
I. Persons with disabilities
30. UNESCO noted that Law No. 141/1990 stipulated that students with handicaps had the right to individual schooling by a tutor and were given support from new technologies.
A. Background and framework
3. Institutional and human rights infrastructure and policy measures
11. CoE-ECRI reiterated its view that San Marino should consider possible ways of making human rights a compulsory subject in school at both primary and secondary level and recommended San Marino introduce mandatory initial and on-going training for teachers at all levels in human rights and issues of racism and intolerance.
B. Implementation of international human rights obligations
2. Right to life, liberty and security of the person
19. The Global Initiative to End All Corporal Punishment of Children (GIEACPC) noted with concern that, despite the government’s commitment in accepting the recommendations of the first cycle of the Universal Periodic Review in 2010 to prohibit corporal punishment in all settings, and accepting recommendations from the Committee on the Rights of the Child, there had been no change in the legality of corporal punishment of children. Corporal punishment was unlawful in schools and the penal system but it remained lawful in the home, alterative care settings and day care. GIEACPC was not aware of any move towards amending the Criminal Code to prohibit corporal punishment.
20. According to GIEACPC, article 234 of the Criminal Code confirmed the concept of “powers of correction or discipline” (“poteri di correzione o disciplina”) and made its abuse an offence, punishing “anyone who abuses such power in a way that harms the body or mind of a person under his/her authority, or in such a way as to cause a disease”. GIEACPC indicated that this protected children from corporal punishment of some severity, but not from all forms of corporal punishment. As for alternative care settings and day care, there was no explicit prohibition of corporal punishment.
21. GIEACPC recommended that legislation be enacted to explicitly prohibit all corporal punishment in the home and all settings and that the “power of correction or discipline” be explicitly repealed from the Criminal Code.
8. Right to education
37. CoE-ECRI noted that State schools provided Roman Catholic religious instruction and that pupils may choose to be exempted from it. However, there were no alternative courses for children exempted from religious instruction. CoE-ECRI stated that, in order not to discriminate against pupils exempted from Catholic religious instruction, they should be given the possibility of improving their overall mark, through the attendance of alternative classes of their choice. CoE-ECRI recommended that San Marino ensure that alternative courses to Catholic instruction are provided in response to all requests made in accordance with the applicable rules so as to ensure that no pupil suffers indirect discrimination, particularly with regard to award of credits.
9. Migrants, refugees and asylum seekers
40. CoE-ECRI also indicated that, according to Article 4 of the new law (Law No. 35 of 30 March 2012), the decision to naturalise was automatically extended to minor descendants living with the parents at the time of the request, even if only one parent was naturalised. Therefore, contrary to the previous law, minors with only one parent naturalised were treated in the same manner as those having both parents naturalised, in accordance with the Council of Europe Convention on Nationality.
Accepted and rejected recommendations
The following recommendations were accepted by San Marino
78. The recommendations formulated during the interactive dialogue and listed below have been examined by San Marino and enjoy the support of San Marino:
78.5 Accede to the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (Monaco);
78.6 Ratify the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (Montenegro);
78.7 Ratify the third Optional Protocol to the Convention on the Rights of the Child , which establishes a complaints mechanism (Portugal);
78.8 Sign and ratify the third Optional Protocol to the Convention on the Rights of the Child on a communications procedure, without reservations (Ireland);
78.9 Consider becoming a party to other related human rights instruments, such as the Optional Protocol to the Convention on the Rights of the Child on a communications procedure (Thailand);
78.20 Submit, as soon as possible, country reports to the Committee on the Elimination of Racial Discrimination, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination Against Women, the Committee against Torture and the Committee on the Rights of the Child (Netherlands);
78.26 Eliminate the legal concept of “children born outside wedlock”, as well as combat against all forms of discrimination, both legally and in practice (Portugal);
78.34 Promulgate laws which expressly prohibit all forms of corporal punishment of minors at home as well as in kindergartens, schools and other institutions caring for children (Mexico);
78.35 Assign the necessary resources to complete the implementation of the Law on the Prevention of ill-treatment in the heart of the family and of the child, particularly in the field of the sensitizing and educating people on countering violence against children (Spain);
78.37 Continue to defend the institution of the family, based on the union of a man and a woman, and to keep providing assistance to those most vulnerable to human rights violations, particularly women, children and the elderly (Holy See);
78.43 Continue to ensure inclusive education for children and persons with disabilities, as education would allow them to fully participate in society and open the opportunity of employment (Thailand);
79.14 Ensure domestic institutions protect, promote and monitor the rights of women and girls and strengthen equality between men and women by ensuring the full participation of women in policy and decision-making processes (Canada);
The following recommendations were noted by San Marino
80.3 Adhere to the principles of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and positively consider ratifying it (Mexico);
80.4 Ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Uruguay);
80.5 Consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Ghana, Indonesia, Sierra Leone);