| For a summary of San Marino’s review at the second cycle please click here. |
7th UPR session
Date of review: 11 February 2010
Date of report adoption: 15 March 2010
Document number: A/HRC/14/9
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SUMMARY SOGIESC issues during San Marino’s 1st UPR review |
I. SOGIESC issues/recommendations identified by NGOs
Policy measures
6. In 2009, Joint submission 1 (JS1) [Associazione Culturale Don Chisciotte; Associazione LGBT San Marino; Associazione Oasiverde; and Associazione Probimbi] reported that San Marino clearly lacks education and training programmes to promote the integration of gay, lesbian, bisexual, and transgender people.
II. PROMOTION AND PROTECTION OF HUMAN RIGHTS ON THE GROUND
B. Implementation of international human rights obligations
Equality and non-discrimination
8. CoE ECRI [the European Commission Against Racism and Intolerance] was concerned that Article 4 (equality before the law) of the Declaration on the Citizens’ Rights did not explicitly include non-discrimination grounds such as race, colour, language, nationality and national or ethnic origin. It recommended that San Marino consider amending the Declaration to expressly include these grounds. JS1 highlighted that Article 4 of the Declaration did not make any reference to sexual orientation or gender identity.
10. In 2009, JS1 indicated that San Marino adopted Law N° 66 of 28 April 2008, entitled “Directives in regards to racial, ethnic, religious and sexual discrimination”. According to JS1, the law punishes discrimination based on sexual orientation, but does not make any reference to gender identity with regard to transgender or intergender issues.
Right to life, liberty and security of the person
14. In 2009, JS1 recommended that San Marino take legislative measures to impose appropriate criminal penalties for violence, threats of violence, incitement to violence and related harassment, based on sexual orientation or gender identity.
Right to privacy, marriage and family life
21. In 2009, JS1 reported that non-conventional family models such as unmarried partners, cohabitants and same-sex civil partners are not recognised and therefore do not have the same rights when it comes to inheritance or residency. JS1 stressed that San Marino should take all necessary legislative, administrative and other measures to ensure that no family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members, including with regard to family-related social welfare and other public benefits, employment and immigration.
II. Excerpts on SOGIESC issues from the national report
Equality, non-discrimination and individuals enjoying specific rights
f) Sexual orientation
79. Prohibition of discrimination on the grounds of sex is stated by the Declaration as modified by Law No. 95 of 19 September 2000. By reforming Article 4, this Law has explicitly introduced sex as a possible element for discrimination. The Declaration also excludes any discriminatory behaviour towards a person on the basis of his/her sexual orientation, which falls under the definition of “personal status” referred to in Article 4. This expression, which avoids any misunderstanding or misapplication of the principle of equality set forth in Article 4, has been used in order to recognise the illegitimacy of any discrimination based on the status or characteristics of a person.
80. The above is confirmed by the already mentioned Law No. 66 of 28 April 2008. This Law, supplementing the provisions of the Criminal Code in force, has introduced Article 179 bis that punishes, among the other factors of discrimination, anyone encouraging to commit or committing discriminatory acts on the grounds of sex. This offence can be prosecuted ex officio. Under this Law, the perpetration of an offence for purposes related, among other aggravating circumstances, to sexual orientation is an aggravating circumstance.
81. In December 2008, San Marino signed, together with other 65 States belonging to all regional groups, the General Assembly Declaration on Sexual Orientation and Gender Identity.
III. Excerpts on SOGIESC issues by UN agencies
Equality and non-discrimination
11. In 2007, CESCR highlighted the absence of a well-structured legal framework that provides protection against discrimination in all its forms. The HR Committee was concerned that such non-discrimination grounds as sexual orientation, race, colour, language, nationality and national or ethnic origin were subsumed under the notion of ‘personal status’ in article 4 of the Declaration of Citizens’ Rights. It observed that such subsuming of grounds made it difficult to ensure their equal and comprehensive application. The HR Committee recommended the adoption of a comprehensive antidiscrimination legal framework which expressly indicates all those grounds of discrimination that are presently subsumed under the notion of “personal status”.
IV. References to SOGIESC issues during the Working Group review
16. In addition, Law No. 66 of 2008 amended the Criminal Code, which now punishes anyone disseminating through any means ideas based on superiority or on racial or ethnic hatred, or encouraging someone else to commit, or committing discriminatory acts on the grounds of race, ethnicity, nationality, religion or sexual orientation. Under this law, the commission of an offence for purposes related to discrimination based on race, ethnicity, nationality, religion or sexual orientation is an aggravating circumstance.
17. San Marino case law has reaffirmed the interpretation whereby sexual orientation cannot constitute grounds for discrimination. In addition to being party to Protocol No. 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, San Marino amended its Criminal Code in 2004 and, in 2008, specified the types of offences and aggravating circumstances relating to discrimination based on sexual orientation.
18. With regard to family-related social welfare and other public benefits, San Marino attributes a special role to the traditional family, but the country’s welfare State and social legislation provide for a large number of incentives and forms of assistance to support traditional and non-traditional families, regardless of whether heads of families are married or cohabitants.
30. France […] welcomed the country’s decision to criminalize the act of committing or inciting acts of discrimination based on the sexual orientation of the victim, as well as its introduction of aggravating circumstances for the commission of such offences. France asked for further information about measures undertaken to prevent such discrimination.
41. Sweden noted that constitutional and legislative norms guaranteed full equality and freedom from discrimination, including with regard to sexual orientation. Nonetheless, Sweden referred to certain disparities in the enjoyment of social benefits, notably for the members of non-traditional family models. It welcomed the information provided by the delegation in order to address those disparities.
48. The United Kingdom of Great Britain and Northern Ireland welcomed San Marino’s emphasis on human rights. It inquired whether the Government had plans to revise its policies to ensure provision of education and training programmes to promote the integration of sexual minorities.
V. Conclusions and/or recommendations
San Marino noted the following recommendations:
71.20. To ensure that all members of society, including members of sexual minority groups, have access to equal rights and are afforded the same level of protection, through adequate legislation and awareness-raising and training programmes, especially with regard to integration (United Kingdom);
71.21. To introduce educational or training programmes that promote the integration of sexual minorities with a view to preventing discrimination on the basis of sexuality (Netherlands);
71.28. To create and adopt all legislative and administrative measures necessary to ensure that all families, including those based on non-conventional family models, are treated equally under the law, particularly with regard to issues of residency and inheritance (Israel);
71.29. To put in place measures to protect members of non-conventional family models from discrimination in terms of employment, immigration, family related social welfare and other public benefits (Netherlands);
71.30. To take further steps to ensure the equal protection of the rights of persons in non-traditional family models, such as unmarried partners, cohabitants and same-sex civil partners (Sweden);
72.7. To explicitly include sexual orientation and gender identity as protected grounds under the principle of non-discrimination in relevant legislation and programmes, and to apply the Yogyakarta principles with regard to human rights and sexual orientation and gender identity (Czech Republic);
VI. Further information
You will find all documents relating to San Marino’s first review at UPR-Info and OHCHR’s websites.