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In dialogue with Mongolia, Committee on Enforced Disappearances asks about the state’s definition of enforced disappearance and judicial proceedings

23 April 2021

Applicability of the Convention in Courts, Sentences and Statutes of Limitations among Issues Broached

The Committee on Enforced Disappearances this afternoon concluded its consideration of the initial report of Mongolia on measures taken to implement the International Convention for the Protection of all Persons from Enforced Disappearance.

Committee Experts said it seemed that the definition of the crime of enforced disappearance in article 13.4 of the Criminal Code did not fully comply with that of the Convention.  The sentences for crimes of enforced disappearance against minors and pregnant women were too vague and too short, as was the five-year statute of limitations.  Turning to the applicability of the Convention in national courts and by administrative authorities, they asked if there had been any cases of direct application of the provisions of the Convention by courts since June 2020. 

Experts sought to confirm that plaintiffs and defendants could bring a case solely relying on provisions of human rights treaties and that the courts could also make a decision solely by referring to them.

Munkh-Orgil Tsend, Member of the State Great Hural of Mongolia and head of delegation, said the principle of impartiality was at the core of the rule of law in Mongolia.  Three months ago, parliament had adopted a reform bill that had rescinded the National Security Council’s ability to meddle with the selection or dismissal of judicial officials.  This body’s ability to interfere with the hiring and removal of prosecutorial authorities would likewise be stripped in coming months. 

The delegation said it would recommend legal amendments to bring the definition of the crime of enforced disappearance in line with the Convention.  Turning to the statute of limitations, the delegation said that given the way in which judicial and law enforcement practices considered the time when the crime was completed, that is when the commission of the crime ended, article 1.10 of the Criminal Code was in compliance with article 8(B) of the Convention. 

Delegates said the courts could apply the Convention directly, including when handing down sentences concerning military personnel.  The sentencing for a crime could not exceed or be lower than the punishment provided for it in the Criminal Code.  This did not preclude the direct application of international human rights treaties.  There was a precedent of direct application of the definition of torture of the Convention against Torture, as well as another one where the provisions of the Convention on the Rights of the Child were directly used.

In his concluding remarks, Mr. Munkh-Orgil thanked the Committee Experts for their time and effort.  This had been an opportunity to take stock of Mongolia’s implementation of the Convention.  The review had been conducted in an open and frank manner.

Moncef Baati, Committee Vice-Chairperson, thanking the delegation, noted that Mongolia intended to submit additional information in writing.  He thanked the State party for adapting to the constraints of the online format.

The delegation of Mongolia was comprised of representatives of the Supreme Court, the Office of the General Prosecutor, the Ministry of Justice and Home Affairs, the Ministry of Foreign Affairs, the National Police Authority, the Court Decision Enforcement Agency, and the Permanent Mission of Mongolia to the United Nations Office at Geneva.

The Committee will issue the concluding observations and recommendations on the report of Mongolia at the end of its twentieth session, which concludes on 7 May.  Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage.  The webcast of the Committee’s public meetings can be accessed at http://webtv.un.org/.

The Committee will next meet in public on Friday, 7 May at 5 p.m. to close its twentieth session.

Report

The Committee has before it the initial report of Mongolia (CED/C/MNG/1).

Presentation of the Report

MUNKH-ORGIL TSEND, Member of the State Great Hural of Mongolia and head of delegation, said that the members of the delegation represented a wide range of governmental agencies in charge of criminal justice and international law; they were present to answer questions and engage in a fruitful dialogue.  The Government of Mongolia in its broadest sense (including its legislative, executive and judicial branches) took a serious and keen interest in the fullest possible implementation of Mongolia’s obligations under international law.  To take stock of the matters and to review the implementation of its multilateral international obligations, the Legal Standing Committee of parliament had recently created an ad hoc working group chaired by Mr. Munkh-Orgil and comprised members of parliament and over 20 leading experts from various ministries to conduct an article-by-article review of the implementation of multilateral conventions as well as recommendations of expert monitoring bodies.  Following the signature of the Convention in 2006, it had been ratified by parliament in 2014.

Mr. Munkh-Orgil said the National Human Rights Commission and other stakeholders were not consulted in the preparation of the country report.  They had, however, been invited to comment on the draft replies to the List of Issues, and their comments were reflected in the final document.  Upon completion of the current dialogue, the delegation would submit its report and recommendations both to the executive and legislative bodies, and one of the first recommendations would be for the executive government to amend its existing procedures to prepare country reports to emphasise the mandatory nature of consultations with all stakeholders.

Mongolia had introduced a number of changes in its national laws to give full effect to the Convention: the Criminal Code of Mongolia had been amended in 2015 to include a new article on the crime of enforced disappearance (article 13.4).  In the process of preparing the report, the delegation had taken note of the discrepancies between the wording of article 13.4 of the Criminal Code and article 2 of the Convention dealing with the constituent elements of the crime of enforced disappearance.  In particular, the application of paragraph 2 of article 13.4 was limited to “officials authorised to conduct investigative activities, prosecutors, and judges”, and did not explicitly cover all government officials and their accomplices, or “agents of the State” in the language of the Convention.  This may be enough of a serious discrepancy for the delegation to recommend to the Government a rewording of this article.  The delegation also intended to recommend re-drafting article 13.4 of the Criminal Code to bring it in full harmony with article 2 of the Convention.

The widespread or systematic practice of enforced disappearance was not codified in Mongolia’s Criminal Code as a crime against humanity even though it was included in the definition of the crime of genocide in chapter 29 of the Criminal Code of Mongolia.

The Committee Experts had also taken an interest in the period of the statute of limitations as worded in article 1.10 of the Criminal Code and its compatibility with article 8(b) of the Convention.  The calculation of the period of statute of limitations for the crime of enforced disappearance did not begin on the day of the commencement of the crime, but rather on the day it ceased, because the crime shall be completed or ”done” in the language of the Criminal Code on that day.  Read in conjunction with paragraph 3 of article 1.10 of the Criminal Code dealing with the period of statute of limitations of crimes of a continuous nature, it complied in the delegation’s view with the requirement of article 8(b) of the Convention.

Expressing hope to cover other issues like the national registrar, extradition treaties and training of government officials in the course of this dialogue, Mr. Munkh-Orgil said he looked forward to an open and frank exchange of views.

Questions by the Committee Experts

KOJI TERAYA, Committee Co-Rapporteur for Mongolia, said Mongolia was undoubtedly one of the most important Asian countries in promoting and protecting human rights.  As an Asian member of the Committee, it gave him great pleasure to act as a Country Rapporteur.

Addressing articles 31 and 32 of the Convention and the recognition of the Committee’s competence to receive and consider individual and inter-State communications, he said he would be grateful if the delegation could explain the ongoing discussion in Mongolia on the Committee’s competence in that context.

Requesting information on the Human Rights NGO Forum, he inquired about the State party’s collaboration with the national human rights commission.

Turning to the applicability of the Convention in national courts and by administrative authorities, the Co-Rapporteur asked if there had been any cases of direct application of the Convention provisions by courts since June 2020.

Had the National Human Rights Commission received any complaints?  Mr. Teraya sought to confirm that plaintiffs and defendants could bring a case solely relying on provisions of human rights treaties and that the courts could also make a decision solely by referring to them.  Was that correct?
Also, the delegation had suggested that the International Convention for the Protection of all Persons from Enforced Disappearance was directly applicable before Mongolian courts even if there had been no cases so far.  If this were the case, could an alleged victim bring a case to a Mongolian court, claiming that he or she was a victim in the sense of the Convention, without referring to article 13.4 of the Criminal Code?  This was practically important, in case there was a protection gap between the Convention and Mongolian law.

MILICA KOLAKOVIC-BOJOVIC, Committee Co-Rapporteur for Mongolia, said it seemed that the definition of the crime enforced disappearance in article 13.4 of the Criminal Code did not fully comply with that of the Convention.

The Committee was interested to learn whether the Criminal Code held agents of the State responsible under article 13.9 of the Convention which concerned unlawful detention rather that enforced disappearance.

Seeking further clarification on the way in which State or non-State actors were charged, the Co-Rapporteur requested information on the Criminal Code provisions applicable to State agents like military or intelligence services.  Were they held responsible under article 13.4, or under article 13.9 on “unlawful arrest or detention”?  She asked how these parallel tracks of responsibility affected official statistics on enforced disappearance and inquired about the way in which superiors were held responsible in line with article 6 of the Convention?

Enquiring about mitigating circumstances, she asked the delegation to confirm that “bringing the disappeared person forward alive” was one of them. 

KOJI TERAYA, Committee Co-Rapporteur for Mongolia, said the Mongolian system did not cover the whole scope of the crime of enforced disappearances as a crime against humanity.  Could the delegation comment on this matter?

The sentences for crimes of enforced disappearance against minors and pregnant women were too vague and too short, as was the five-year statute of limitations.

He asked whether military authorities could be granted the right to investigate and/or prosecute persons accused of enforced disappearance, notably in times of war or emergencies.

Replies by the Delegation

The delegation said the Government was considering the possibility of making the declaration pursuant to articles 31 and 32 of the Convention.  The Minister of Justice would submit this matter to the Cabinet for a decision in the summer.  The delegation would make a positive recommendation to the Government and parliament in that regard.

Regarding the input of the National Human Rights Commission, the delegation had sought comments from it after drafting the report.  The National Human Rights Commission had in that context recommended that the Government make the declaration pursuant to articles 31 and 32 of the Convention.

All aggravating and mitigating conditions could be applied directly from international human rights treaties; the Convention was therefore applicable directly in the country.  The courts could apply the Convention directly, including when handing down sentences concerning military personnel.

Addressing the differences between articles 13.4 and 13.9 of the Criminal Code and their application to military officials and intelligence officers, delegates recalled that they intended to recommend re-drafting article 13.4 of the Criminal Code to bring it in full harmony with article 2 of the Convention.  The legal system in Mongolia allowed for article 13.4 to be used to prosecute military officials and intelligence officers, as well as their accomplices. 

The crime of unlawful detention outlined in article 13.9 concerned, inter alia, the interference with the travel or movement of a person, and their concealment thereof, delegates explained.  In the context of the prosecution of these crimes, various damages, including those that were physiological in nature, were considered.  Victims were not only those who were directly affected by the crime.  The criminalisation of this crime also covered inaction, that is the failure to repress the commission of this crime.  Articles 13.4 and 13.9 of the Criminal Code also outlined different timeframes.

MUNKH-ORGIL TSEND, Member of the State Great Hural of Mongolia and head of delegation, alluding to interpretation issues, said additional information on these matters would be provided in writing to better reflect the nuances of the legal texts concerned.

The delegation would recommend legal amendments to bring the definition of the crime of enforced disappearances in line with the Convention and codify the crime of enforced disappearance as a crime against humanity. 

Turning to the statute of limitations, he said given the way in which judicial and law enforcement practices considered the time when the crime was completed, that is when the commission of the crime ended, article 1.10 of the Criminal Code was in compliance with article 8(B) of the Convention. 

Under Mongolian law, delegates said that the scope of participation was wide when it came to enforced disappearance.  Given the continuing nature of this crime, the Criminal Code had provisions considering participation only for a limited period or indirect participation in the commission of this crime.  On sentencing, delegates recalled that international legal conventions could be used to establish mitigating and aggravating circumstances.

Follow-up Questions by the Committee Experts

MILICA KOLAKOVIC-BOJOVIC, Committee Co-Rapporteur for Mongolia, expressed appreciation for the kind offer to provide additional answers in writing to make up for interpretation issues.

She requested more detailed information about consultation with stakeholders, including non-governmental organizations, and mitigating and aggravating circumstances.

KOJI TERAYA, Committee Co-Rapporteur for Mongolia, turning to the applicability of international human rights treaties, asked if a victim could bring forth a claim without resorting to article 13.4 of the Criminal Code, for instance.  Additional information on legal practices would be welcome.  He asked whether the delegation’s interpretation of statutes of limitations was widely shared in the country.

Follow-up Replies by the Delegation

MUNKH-ORGIL TSEND, Member of the State Great Hural of Mongolia and head of delegation, reiterating his apologies for the interpretation issues, said the executive branch of the Government had adopted procedures on the collection of input and the provision of replies, providing for substantial consultation with non-governmental organizations.  The National Human Rights Commission should have been consulted.  It was not clear why the standard procedures had not been followed for the report and documents under discussion.  This issue would be broached with the executive branch of the Government, he assured.

The sentencing for a crime could not exceed or be lower than the punishment provided for it in the Criminal Code.  This did not preclude the direct application of international human rights treaties.  There was a precedent of direct application of the definition of torture of the Convention against Torture, as well as another one where the provisions of the Convention on the Rights of the Child were directly used.

Questions by the Committee Experts
                              
KOJI TERAYA, Committee Co-Rapporteur for Mongolia, addressing the issue of procedural safeguards during the preliminary investigation phase, requested information on the conditions required for the initiation of investigation proceedings.  The five-day deadline for the launch of investigations constituted a very long period which did not seem to comply with the Convention.  Could the delegation provide information on the police’s budget and its ability to conduct ex-officio investigations?

Citing concerns expressed by bodies, including on corruption in the judiciary, the Co-Rapporteur sought the views of the delegation on the impartiality of investigations conducted in Mongolia.  Who could request the exclusion of officials from investigations into enforced disappearance in cases where they were suspected of having been involved in the commission of the offence?  The Co-Rapporteur also requested information on the possibility to file complaints before courts related to judicial proceedings.

On legal assistance, according to the replies provided by the State party, it seemed that legal assistance was not enforceable if it did not meet the requirements of the Criminal Procedure law.  Yet, a basic principle of international law, enshrined in the Vienna Convention on Law of Treaty, forbade the invocation of internal law as justification for a failure to perform a treaty.
MILICA KOLAKOVIC-BOJOVIC, Committee Co-Rapporteur for Mongolia, asked if there were any plans to integrate the non-refoulement principle beyond the constitutional provisions regarding the domestic application of the treaty.

Were diplomatic assurances acceptable to extradite a person when there was a risk that that person be subjected to enforced disappearance?

Could the delegation provide information on the possibility of lodging complaints before courts in cases where detainees or any person with a legitimate interest considered that rights guaranteed by article 17 by the Convention were not granted. 

The Committee would appreciate further information on the integrated database for information exchange between courts and law enforcement authorities and how it complied with the obligation under the Convention to establish and maintain up-to-date official registers and/or records of persons deprived of liberty.

The Co-Rapporteur sought clarification on the management of the database stored with the National Institute for the Judiciary, and the Law on Privacy of 1995.  The Convention stipulated that information, including medical and genetic data, which was collected and/or transmitted within the framework of the search for a disappeared person, shall not be used or made available for purposes other than the search for the disappeared person, she recalled.

Responses by the Delegation

MUNKH-ORGIL TSEND, Member of the State Great Hural of Mongolia and head of delegation, said the initiation of investigation proceedings did not require the involvement of another State, contrary to what had mistakenly been indicated in documents submitted to the Committee.  The five days set a maximum period of time; the investigation had to be launched within five days, in other words.  The police, judicial and prosecutorial authorities were provided with sufficient financial resources, he assured, even though they would like more. 

The principle of impartiality was at the core of the rule of law.  Three months ago, parliament had adopted a reform bill that had rescinded the National Security Council’s ability to meddle with the selection or dismissal of judicial officials.  This body’s ability to interfere with the hiring and removal of prosecutorial authorities would likewise be stripped in coming months.  Furthermore, the victims of a crime, as well as their relatives and their legal representatives, could request the disqualification of a judge or magistrate, with justification.

On the exclusion of officials from investigations, he explained that the Office of the General Prosecutor would assign the investigation of alleged torture to different branches.  For instance, a case concerning intelligence officers had been assigned to the central police.  The accused officers would therefore not be investigating cases that concerned them.

The recourse to diplomatic assurances was acceptable in principle, but there had been no case where it had been used.

There had never been complaints regarding the existence of secret places of detention, but the delegation would address the concerns expressed by the Committee regarding the lack of an explicit prohibition of secret detention in Mongolia’s national legislation by making recommendations that this issue be addressed.  All six members of the National Human Rights Commission had access to detention centres, as did the police and prosecutorial authorities.

The database mentioned by the Co-Rapporteur was managed by prosecutorial authorities, in conjunction with the police and law enforcement services.

On non-refoulement, Mr. Munkh-Orgil said the conditions that would preclude the transfer of an individual to another country included the possibility that that person be subject to capital punishment or torture.  A clear reference to enforced disappearance was missing.  The Committee's comments in that regard had been noted.

Regarding the Law on Privacy of 1995, he said that while that law set out limitations, the conditions outlined in article 18(1) of the Convention were not subject to them.  The detained person, their relatives and legal advisers had the right to receive the information mentioned in article 18 of the Convention such as the authority having decided the deprivation of liberty, and the date and place of the deprivation of liberty.

Follow-up Questions by the Committee Experts

KOJI TERAYA, Committee Co-Rapporteur for Mongolia, expressed concerns about the five-day limit for investigations to be launched.

MILICA KOLAKOVIC-BOJOVIC, Committee Co-Rapporteur for Mongolia, requested further information about the appointment of judges and access to information about persons deprived of liberty as requested by persons with a legitimate interest.

Follow-up Replies by the Delegation

MUNKH-ORGIL TSEND, Member of the State Great Hural of Mongolia and head of delegation, assured that no prosecutor waited five days to launch investigations when faced with serious cases.  The five-day element was merely an upper limit. 

Regarding the appointment of judges, he said that the new law established that an independent body of the judicial branch, the National Council of Courts, made vacancy announcements, received applications, vetted candidates, and then submitted names selected to the President, who appointed the judges. 

Anybody could file a complaint before courts, in line with article 17(2)(f) of the Convention.

The national integrated database fully complied with the Convention.  Documents attesting to it would be translated and sent to the Committee.

Questions by the Committee Experts
                          
KOJI TERAYA, Committee Co-Rapporteur for Mongolia, requested information on the establishment of a genetic database.  The Co-Rapporteur stressed the importance for countries to have such a database for the purpose of identifying the remains of victims in the event of death or searching for the missing person.  He recalled that the use of such data for any purpose other than the identification and search of missing persons was prohibited. 

The provision of training on the Convention was an obligation.  While there were training courses mentioned in the State party’s reports, additional information on the content and the participants would be welcome.  The documents submitted to the Committee were also silent on the training of military and medical personnel.

MILICA KOLAKOVIC-BOJOVIC, Committee Co-Rapporteur for Mongolia, sought clarification on the resolution to establish a victim.  Was some formal decision by prosecutors or investigators required for a victim to be recognised as such?

Turning to compensation, she inquired about the applicable procedures and their average length.  Were there alternatives to monetary compensation measures?  She asked the delegation to explain the link between the declaration of absence and the State party’s obligation to continue the investigation until the fate of the disappeared person had been clarified.

The Co-Rapporteur also asked about the criminalisation of the wrongful removal of children whose father, mother or legal guardian was subjected to enforced disappearance or children born during the captivity of a mother subjected to enforced disappearance.

Replies by the Delegation

MUNKH-ORGIL TSEND, Member of the State Great Hural of Mongolia and head of delegation, confirmed that there was a genetic database.  There was a new law on the protection of privacy that was currently being drafted and it would include a chapter on genetic data.

A module on enforced disappearance had been included in the curriculum of training on human rights protection which had been offered to 11,000 participants (government officials, judges, prosecutors and law enforcement officials). 

On reparation and compensation, Mr. Munkh-Orgil said victims of enforced disappearance had a right to submit a separate claim before civil courts in addition to criminal suits.

Delegates said the courts determined who shall pay for the damages incurred by the victims, in line with the Criminal Procedure Code.  Material damages were considered in that context, as well as moral harm, including effects on the reputation, and lost economic opportunity.  Both administrative and criminal justice channels were available in that context.

The statute of limitations set the deadline to request compensation in civil courts to 10 years after the commission of the crime.

Additional information on the wrongful removal of children would be provided in writing.

MUNKH-ORGIL TSEN, Member of the State Great Hural of Mongolia and head of delegation, said the database was not sufficiently protected from a privacy and human rights perspective.  Additional training programmes should be put in place, including for military and medical personnel.  The curriculum for the training of military personnel should be updated to cover enforced disappearances.

The procedure through which victims could launch separate civil proceedings related to compensation was straightforward and did not create a financial burden for victims, he assured.

Concluding Remarks

MONCEF BAATI, Committee Vice-Chairperson, thanking the delegation, noted that Mongolia intended to submit additional information in writing.  He thanked Mongolia for adapting to the constraints of the online format.

MUNKH-ORGIL TSEND, Member of the State Great Hural of Mongolia and head of delegation, thanked the Committee Experts for their time and effort.  This had been an opportunity to take stock of Mongolia’s implementation of the Convention.  The review had been conducted in an open and frank manner.

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