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La dispensa fa riferimento alle lezioni di Diritto dell'Unione Europea e fondamenti di Diritto Internazionale tenute dalla Prof. ssa Laura Pineschi nell'anno accademico 2008.
Il documento riporta il testo in inglese della Convenzione delle Nazioni Unite sulle sparizioni forzate. Il testo si compone... Vedi di più

Esame di Diritto dell'Unione Europea e Fondamenti di Diritto Internazionale docente Prof. L. Pineschi

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ESTRATTO DOCUMENTO

4. Each State Party shall take the necessary measures to prevent and

sanction acts that hinder the conduct of an investigation. It shall ensure in

particular that persons suspected of having committed an offence of enforced

disappearance are not in a position to influence the progress of an

investigation by means of pressure or acts of intimidation or reprisal aimed at

the complainant, witnesses, relatives of the disappeared person or their

defence counsel, or at persons participating in the investigation.

Article 13

1. For the purposes of extradition between States Parties, the offence of

enforced disappearance shall not be regarded as a political offence or as an

offence connected with a political offence or as an offence inspired by political

motives. Accordingly, a request for extradition based on such an offence may

not be refused on these grounds alone.

2. The offence of enforced disappearance shall be deemed to be

included as an extraditable offence in any extradition treaty existing between

States Parties before the entry into force of this Convention.

3. States Parties undertake to include the offence of enforced

disappearance as an extraditable offence in any extradition treaty subsequently

to be concluded between them.

4. If a State Party which makes extradition conditional on the existence

of a treaty receives a request for extradition from another State Party with

which it has no extradition treaty, it may consider this Convention as the

necessary legal basis for extradition in respect of the offence of enforced

disappearance.

5. States Parties which do not make extradition conditional on the

existence of a treaty shall recognize the offence of enforced disappearance as

an extraditable offence between themselves.

6. Extradition shall, in all cases, be subject to the conditions provided

for by the law of the requested State Party or by applicable extradition treaties,

including, in particular, conditions relating to the minimum penalty requirement

for extradition and the grounds upon which the requested State Party may

refuse extradition or make it subject to certain conditions.

7. Nothing in this Convention shall be interpreted as imposing an

obligation to extradite if the requested State Party has substantial grounds for

believing that the request has been made for the purpose of prosecuting or

punishing a person on account of that person’s sex, race, religion, nationality,

ethnic origin, political opinions or membership of a particular social group, or

that compliance with the request would cause harm to that person for any one

of these reasons.

Article 14

1. States Parties shall afford one another the greatest measure of

mutual legal assistance in connection with criminal proceedings brought in

respect of an offence of enforced disappearance, including the supply of all

evidence at their disposal that is necessary for the proceedings.

2. Such mutual legal assistance shall be subject to the conditions

provided for by the domestic law of the requested State Party or by applicable

treaties on mutual legal assistance, including, in particular, the conditions in 5

relation to the grounds upon which the requested State Party may refuse to

grant mutual legal assistance or may make it subject to conditions.

Article 15

States Parties shall cooperate with each other and shall afford one

another the greatest measure of mutual assistance with a view to assisting

victims of enforced disappearance, and in searching for, locating and releasing

disappeared persons and, in the event of death, in exhuming and identifying

them and returning their remains.

Article 16

1. No State Party shall expel, return (“refouler”), surrender or extradite a

person to another State where there are substantial grounds for believing that

he or she would be in danger of being subjected to enforced disappearance.

2. For the purpose of determining whether there are such grounds, the

competent authorities shall take into account all relevant considerations,

including, where applicable, the existence in the State concerned of a

consistent pattern of gross, flagrant or mass violations of human rights or of

serious violations of international humanitarian law.

Article 17

1. No one shall be held in secret detention.

2. Without prejudice to other international obligations of the State Party

with regard to the deprivation of liberty, each State Party shall, in its legislation:

(a) Establish the conditions under which orders of deprivation of liberty

may be given;

(b) Indicate those authorities authorized to order the deprivation of

liberty;

(c) Guarantee that any person deprived of liberty shall be held solely in

officially recognized and supervised places of deprivation of liberty;

(d) Guarantee that any person deprived of liberty shall be authorized to

communicate with and be visited by his or her family, counsel or any other

person of his or her choice, subject only to the conditions established by law,

or, if he or she is a foreigner, to communicate with his or her consular

authorities, in accordance with applicable international law;

(e) Guarantee access by the competent and legally authorized

authorities and institutions to the places where persons are deprived of liberty,

if necessary with prior authorization from a judicial authority;

(f) Guarantee that any person deprived of liberty or, in the case of a

suspected enforced disappearance, since the person deprived of liberty is not

able to exercise this right, any persons with a legitimate interest, such as

relatives of the person deprived of liberty, their representatives or their counsel,

shall, in all circumstances, be entitled to take proceedings before a court, in

order that the court may decide without delay on the lawfulness of the

deprivation of liberty and order the person’s release if such deprivation of

liberty is not lawful.

3. Each State Party shall assure the compilation and maintenance of

one or more up-to-date official registers and/or records of persons deprived of 6

liberty, which shall be made promptly available, upon request, to any judicial or

other competent authority or institution authorized for that purpose by the law

of the State Party concerned or any relevant international legal instrument to

which the State concerned is a party. The information contained therein shall

include, as a minimum:

(a) The identity of the person deprived of liberty;

(b) The date, time and place where the person was deprived of liberty

and the identity of the authority that deprived the person of liberty;

(c) The authority that ordered the deprivation of liberty and the grounds

for the deprivation of liberty;

(d) The authority responsible for supervising the deprivation of liberty;

(e) The place of deprivation of liberty, the date and time of admission to

the place of deprivation of liberty and the authority responsible for the place of

deprivation of liberty;

(f) Elements relating to the state of health of the person deprived of

liberty;

(g) In the event of death during the deprivation of liberty, the

circumstances and cause of death and the destination of the remains;

(h) The date and time of release or transfer to another place of

detention, the destination and the authority responsible for the transfer.

Article 18

1. Subject to articles 19 and 20, each State Party shall guarantee to any

person with a legitimate interest in this information, such as relatives of the

person deprived of liberty, their representatives or their counsel, access to at

least the following information:

(a) The authority that ordered the deprivation of liberty;

(b) The date, time and place where the person was deprived of liberty

and admitted to the place of deprivation of liberty;

(c) The authority responsible for supervising the deprivation of liberty;

(d) The whereabouts of the person deprived of liberty, including, in the

event of a transfer to another place of deprivation of liberty, the destination and

the authority responsible for the transfer;

(e) The date, time and place of release;

(f) Elements relating to the state of health of the person deprived of

liberty;

(g) In the event of death during the deprivation of liberty, the

circumstances and cause of death and the destination of the remains.

2. Appropriate measures shall be taken, where necessary, to protect the

persons referred to in paragraph 1 of this article, as well as persons

participating in the investigation, from any ill-treatment, intimidation or sanction

as a result of the search for information concerning a person deprived of liberty. 7

Article 19

1. Personal information, including medical and genetic data, which is

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. This is without prejudice to the use

of such information in criminal proceedings relating to an offence of enforced

disappearance or the exercise of the right to obtain reparation.

2. The collection, processing, use and storage of personal information,

including medical and genetic data, shall not infringe or have the effect of

infringing the human rights, fundamental freedoms or human dignity of an

individual.

Article 20

1. Only where a person is under the protection of the law and the

deprivation of liberty is subject to judicial control may the right to information

referred to in article 18 be restricted, on an exceptional basis, where strictly

necessary and where provided for by law, and if the transmission of the

information would adversely affect the privacy or safety of the person, hinder a

criminal investigation, or for other equivalent reasons in accordance with the

law, and in conformity with applicable international law and with the objectives

of this Convention. In no case shall there be restrictions on the right to

information referred to in article 18 that could constitute conduct defined in

article 2 or be in violation of article 17, paragraph 1.

2. Without prejudice to consideration of the lawfulness of the

deprivation of a person’s liberty, States Parties shall guarantee to the persons

referred to in article 18, paragraph 1, the right to a prompt and effective judicial

remedy as a means of obtaining without delay the information referred to in

article 18, paragraph 1. This right to a remedy may not be suspended or

restricted in any circumstances.

Article 21

Each State Party shall take the necessary measures to ensure that

persons deprived of liberty are released in a manner permitting reliable

verification that they have actually been released. Each State Party shall also

take the necessary measures to assure the physical integrity of such persons

and their ability to exercise fully their rights at the time of release, without

prejudice to any obligations to which such persons may be subject under

national law.

Article 22

Without prejudice to article 6, each State Party shall take the necessary

measures to prevent and impose sanctions for the following conduct:

(a) Delaying or obstructing the remedies referred to in article 17,

paragraph 2 (f), and article 20, paragraph 2;

(b) Failure to record the deprivation of liberty of any person, or the

recording of any information which the official responsible for the official

register knew or should have known to be inaccurate; 8

(c) Refusal to provide information on the deprivation of liberty of a

person, or the provision of inaccurate information, even though the legal

requirements for providing such information have been met.

Article 23

1. Each State Party shall ensure that the training of law enforcement

personnel, civil or military, medical personnel, public officials and other persons

who may be involved in the custody or treatment of any person deprived of

liberty includes the necessary education and information regarding the relevant

provisions of this Convention, in order to:

(a) Prevent the involvement of such officials in enforced disappearances;

(b) Emphasize the importance of prevention and investigations in

relation to enforced disappearances;

(c) Ensure that the urgent need to resolve cases of enforced

disappearance is recognized.

2. Each State Party shall ensure that orders or instructions prescribing,

authorizing or encouraging enforced disappearance are prohibited. Each State

Party shall guarantee that a person who refuses to obey such an order will not

be punished.

3. Each State Party shall take the necessary measures to ensure that

the persons referred to in paragraph 1 of this article who have reason to

believe that an enforced disappearance has occurred or is planned report the

matter to their superiors and, where necessary, to the appropriate authorities or

bodies vested with powers of review or remedy.

Article 24

1. For the purposes of this Convention, “victim” means the disappeared

person and any individual who has suffered harm as the direct result of an

enforced disappearance.

2. Each victim has the right to know the truth regarding the

circumstances of the enforced disappearance, the progress and results of the

investigation and the fate of the disappeared person. Each State Party shall

take appropriate measures in this regard.

3. Each State Party shall take all appropriate measures to search for,

locate and release disappeared persons and, in the event of death, to locate,

respect and return their remains.

4. Each State Party shall ensure in its legal system that the victims of

enforced disappearance have the right to obtain reparation and prompt, fair

and adequate compensation.

5. The right to obtain reparation referred to in paragraph 4 of this article

covers material and moral damages and, where appropriate, other forms of

reparation such as:

(a) Restitution;

(b) Rehabilitation;

(c) Satisfaction, including restoration of dignity and reputation;

(d) Guarantees of non-repetition. 9

6. Without prejudice to the obligation to continue the investigation until

the fate of the disappeared person has been clarified, each State Party shall

take the appropriate steps with regard to the legal situation of disappeared

persons whose fate has not been clarified and that of their relatives, in fields

such as social welfare, financial matters, family law and property rights.

7. Each State Party shall guarantee the right to form and participate

freely in organizations and associations concerned with attempting to establish

the circumstances of enforced disappearances and the fate of disappeared

persons, and to assist victims of enforced disappearance.

Article 25

1. Each State Party shall take the necessary measures to prevent and

punish under its criminal law:

(a) The wrongful removal of children who are subjected to enforced

disappearance, children whose father, mother or legal guardian is subjected to

enforced disappearance or children born during the captivity of a mother

subjected to enforced disappearance;

(b) The falsification, concealment or destruction of documents attesting

to the true identity of the children referred to in subparagraph (a) above.

2. Each State Party shall take the necessary measures to search for

and identify the children referred to in paragraph 1 (a) of this article and to

return them to their families of origin, in accordance with legal procedures and

applicable international agreements.

3. States Parties shall assist one another in searching for, identifying

and locating the children referred to in paragraph 1 (a) of this article.

4. Given the need to protect the best interests of the children referred to

in paragraph 1 (a) of this article and their right to preserve, or to have re-

established, their identity, including their nationality, name and family relations

as recognized by law, States Parties which recognize a system of adoption or

other form of placement of children shall have legal procedures in place to

review the adoption or placement procedure, and, where appropriate, to annul

any adoption or placement of children that originated in an enforced

disappearance.

5. In all cases, and in particular in all matters relating to this article, the

best interests of the child shall be a primary consideration, and a child who is

capable of forming his or her own views shall have the right to express those

views freely, the views of the child being given due weight in accordance with

the age and maturity of the child.

Part II

Article 26

1. A Committee on Enforced Disappearances (hereinafter referred to as

“the Committee”) shall be established to carry out the functions provided for

under this Convention. The Committee shall consist of ten experts of high

moral character and recognized competence in the field of human rights, who

shall serve in their personal capacity and be independent and impartial. The

members of the Committee shall be elected by the States Parties according to

equitable geographical distribution. Due account shall be taken of the 10

usefulness of the participation in the work of the Committee of persons having

relevant legal experience and of balanced gender representation.

2. The members of the Committee shall be elected by secret ballot from

a list of persons nominated by States Parties from among their nationals, at

biennial meetings of the States Parties convened by the Secretary-General of

the United Nations for this purpose. At those meetings, for which two thirds of

the States Parties shall constitute a quorum, the persons elected to the

Committee shall be those who obtain the largest number of votes and an

absolute majority of the votes of the representatives of States Parties present

and voting.

3. The initial election shall be held no later than six months after the

date of entry into force of this Convention. Four months before the date of each

election, the Secretary-General of the United Nations shall address a letter to

the States Parties inviting them to submit nominations within three months. The

Secretary-General shall prepare a list in alphabetical order of all persons thus

nominated, indicating the State Party which nominated each candidate, and

shall submit this list to all States Parties.

4. The members of the Committee shall be elected for a term of four

years. They shall be eligible for re-election once. However, the term of five of

the members elected at the first election shall expire at the end of two years;

immediately after the first election, the names of these five members shall be

chosen by lot by the chairman of the meeting referred to in paragraph 2 of this

article.

5. If a member of the Committee dies or resigns or for any other reason

can no longer perform his or her Committee duties, the State Party which

nominated him or her shall, in accordance with the criteria set out in

paragraph 1 of this article, appoint another candidate from among its nationals

to serve out his or her term, subject to the approval of the majority of the States

Parties. Such approval shall be considered to have been obtained unless half

or more of the States Parties respond negatively within six weeks of having

been informed by the Secretary-General of the United Nations of the proposed

appointment.

6. The Committee shall establish its own rules of procedure.

7. The Secretary-General of the United Nations shall provide the

Committee with the necessary means, staff and facilities for the effective

performance of its functions. The Secretary-General of the United Nations shall

convene the initial meeting of the Committee.

8. The members of the Committee shall be entitled to the facilities,

privileges and immunities of experts on mission for the United Nations, as laid

down in the relevant sections of the Convention on the Privileges and

Immunities of the United Nations.

9. Each State Party shall cooperate with the Committee and assist its

members in the fulfilment of their mandate, to the extent of the Committee’s

functions that the State Party has accepted.

Article 27

A Conference of the States Parties will take place at the earliest four years

and at the latest six years following the entry into force of this Convention to

evaluate the functioning of the Committee and to decide, in accordance with 11


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto dell'Unione Europea e fondamenti di Diritto Internazionale tenute dalla Prof. ssa Laura Pineschi nell'anno accademico 2008.
Il documento riporta il testo in inglese della Convenzione delle Nazioni Unite sulle sparizioni forzate. Il testo si compone di un preambolo e 45 articoli.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza (a ciclo unico)
SSD:
Università: Parma - Unipr
A.A.: 2008-2009

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto dell'Unione Europea e Fondamenti di Diritto Internazionale e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Parma - Unipr o del prof Pineschi Laura.

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