Ratione Temporis Rule

J.L. v. Australia, Communication No. 491/1992 (final views of 28 July 1992) (CCPR/C/45/491/1992
[1994]
Facts:
On 27 October 1989, 24 November 1989, 10 January 1990 and 24 March 1990 respectively, Messrs
Ivanoff, Love, Bone and Craig, all experienced pilots, commenced contracts as pilots on domestic aircraft
operated by Australian Airlines, now part of Qantas Airlines Limited. Australian Airlines was wholly State-
owned and was operated by government-appointed management. The airline terminated the authors'
contracts upon their reaching 60 years of age pursuant to a compulsory age-based retirement policy.

On 12 June 1992, the four authors submitted a complaint to the Australian Human Rights and Equal
Opportunities Commission (HREOC) claiming that they had been discriminated against on the basis of
their age.

On 30 March 1994, the federal Industrial Relations Act 1988 was amended to make it unlawful to
terminate a person's employment on the grounds of his or her age. Following that amendment, Mr
Allman, a pilot employed by Australian Airlines, lost his job upon reaching 60 years of age. He took an
action against the company and, on 18 March 1995, the Industrial Relations Court ruled in his favour. Mr
Allman was re-employed as a result. Since that date, Quantas (having taken over Australian Airlines)
ceased to impose a retirement age on its domestic pilots.

On 14 August 1995, the Human Rights Commissioner, who performed HREOC's function of inquiring into
any act or practice that may constitute discrimination, reviewed the findings of previous Commissioners
who had concluded that mandatory retirement was discriminatory and formed the same opinion. On 9
November 1995, the Commissioner convened an inquiry into the authors' dismissals, taking submissions
from Qantas (the respondent) and the authors. On 12 April 1996, the Commissioner decided that the
compulsory retirement of the authors upon reaching the age of 60 constituted discrimination in
employment based on age.

Qantas, now in private hands, refused to accept the findings of the Commissioner and rejected its
recommendation to pay compensation.

Law
National Laws
a) Federal Industrial Relations Act 1988
b) Workplace Relations Act 1996 • Abolition of Compulsory Age Retirement (Statutory Officeholders)
Act
c) Public Service Act 1999

International Law
1) Article 2 of the International Covenant on Civil and Political Rights (States shall respect and to
ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in
the Covenant)
2) Article 3 of the International Covenant on Civil and Political Rights (States Parties to the
Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and
political rights set forth in the Covenant)
3) Article 26 of the International Covenant on Civil and Political Rights (right to nondiscrimination)

Legal Arguments

The Authors

The authors alleged that the State had violated their rights to non-discrimination on the basis of age under
Article 26, through failing to protect them from terminations in the workplace made on this proscribed
ground. They also alleged a violation of Article 26's protection against age discrimination in the refusal of
the Australian Airlines to engage in, and the failure of the State to facilitate, re-employment negotiations
concerning Mr Ivanoff.

Moreover, the authors argue that, where violations have occurred, the State was under an obligation to
comply with the recommendations for redress of its own human rights commission.

The State
In regards to the complaint that the State failed to implement HREOC's recommendations, the State
viewed this complaint in its entirety as falling ratione materiae outside the Covenant, for nothing in Article
26 of the Covenant required any such thing.

On the merits of the allegations, the State provided that the allegation was inadmissible on the following
basis:
i. That the Public Service Act 1999 removed compulsory age retirement for Commonwealth
public servants.
ii. The State noted that new legislation, designed to change old social conditions, cannot be
translated into reality from one day to another. When making changes to legislative
frameworks, it is appropriate that States be given time to make the changes in line with their
democratic and constitutional processes. To this end the State decided to implement one of
the main recommendations of the HREOC's "Age Matters" report (2000), by developing a
Federal Age Discrimination Act which implemented the necessary changes in law.
Finally, the State argued that the claim of a violation of Article 26 due to their dismissals from
Australian Airlines and the State's failure to protect them against this, were inadmissible ratione 3
temporis in relation to Bone, Craig and Ivanoff as these three authors were dismissed prior to the
entry into force of the Optional Protocol.

Decision

Admissibility

Considering the admissibility of the claim, the Committee considered that the claims of three of the
authors (Bone, Craig and Ivanoff) were inadmissible ratione temporis.
The Committee considered in regard to the claim of Mr Love that in light of the need for a close
examination and assessment of the particular facts and law relevant to his issues, it was appropriate to
address these arguments at the merits stage, as they were intimately bound up with the assessment of
the scope of the State obligations under Article 26 of the Covenant to respect and ensure the equal
protection of the law against discriminatory dismissal.

Merits

The Committee held that in view of the facts before it there was no violation of Article 26 of the Covenant.

It noted that in the present case the distinction which aimed at maximising safety to passengers, crew and
persons otherwise affected by flight travel was a legitimate aim under the Covenant. In discerning the
reasonable and objective nature of the distinction made on the basis of age, the Committee took into
account the widespread national and international practice, at the time of the author's dismissals, of
imposing a mandatory retirement age of 60. Under these circumstances, the Committee could not
conclude that the distinction made was not, at the time of Mr Love's dismissal, based on objective and
reasonable considerations. Consequently, the Committee was of the view that it could not establish a
violation of Article 26. Mr Love did not suffer discrimination in violation of Article 26, therefore it was
unnecessary to decide whether the dismissal was directly imputable to the State, or whether the State's
responsibility would be engaged by a failure to prevent third party discrimination.

E. and A. Konye v. Hungary, Communication No. 520/1992 (final views of 7 April 1994) (UN Doc.
CCPR/C/50/D/520/1992 [1994]
The facts as submitted by the authors:

2.1 A.K. has been a staff member of the International Labour Office (ILO) in Geneva since 1976. Until
1984, each change in his contractual status and each extension of his contract was subject to the
issuance of a foreign work permit by the Hungarian authorities. Under Hungarian law applicable at the
time, this permit was a precondition for the issue of an exit visa by the authorities, which would allow the
author to leave Hungary together with his family and work abroad.

2.2 In March 1984, Mr. K. was appointed to an established post in ILO. As a result, the Hungarian
authorities refused to extend his work permit and summoned him to resign from the post and return to
Budapest. The author refused to comply and instead resigned from his post in the Hungarian Ministry of
Housing and Urban Development.

2.3 In the autumn of 1984, the municipal police of Budapest, by decision No. 21.320/1984, declared Mr.
and Mrs. K. to be citizens staying abroad unlawfully, with effect as of 31 December 1983 (the author's
work permit was valid until 30 June 1984). On the basis of this decision, the administration of the
Budapest City Council confiscated the authors' apartment property as well as the family home and took
them into State ownership. The authors were denied compensation. Their subsequent appeals were
rejected by the City Council of Budapest, acting as an administrative court, on the grounds that under the
then applicable rules and regulations, property of individuals found to be unlawfully staying or residing
abroad had to be taken into State ownership. Another consequence of the police decision was that the
Hungarian Embassy in Berne, Switzerland, refused to issue to Mr. K. a certificate confirming his accrued
rights to social security benefits.

2.4 The authors contend that during this period, and in subsequent years, they have had to endure
numerous arbitrary interferences with their private and professional lives. Thus, letters sent from
Switzerland to relatives in Hungary were regularly opened and/or delayed for weeks; Mr. K. was denied
permission to attend the funeral of his father; in June 1985, the Hungarian Ministry of Labour allegedly
intervened with the ILO administration, with a view to securing Mr. K.'s dismissal. From 1984 to 1989, the
authors complained to the authorities in Budapest about the arbitrary nature of the decisions adopted
against them, to no avail. On the contrary, their property was auctioned off in November 1988.

2.5 In January 1990, the authors requested the newly appointed Minister of Justice to reopen their case.
The Minister's reply was negative, allegedly only confirming that all domestic remedies had been
exhausted. Towards the end of 1991, the authors wrote to the Secretariat for Rehabilitation attached to
the Prime Minister's Office and asked that their case be reconsidered. Although the Secretariat's reply
presented an apology on behalf of the new government and promised assistance with respect to the
recovery of the authors' property, and although the authors' passports were returned to them, there was
no subsequent follow-up on the property issue.

2.6 In 1990, the authors sought legal advice. Their representative first submitted the matter to the
Constitutional Court, which declared that it was not competent to decide on the issue of restitution of the
authors' property. The Budapest Central District Court was then asked to review the case, but it
dismissed the petition on 15 January 1992, without summoning any of the parties. In its decision, the
Court confirmed that the authorities had acted lawfully in 1984; it also admitted, albeit in vague terms, that
there was no possibility of appealing the decisions of 1984, and that the courts could only have reviewed
them from a strictly procedural point of view. Mr. K.'s lawyer appealed to the Court of Appeal, which
confirmed the decision of first instance on 10 March 1992 and held that "there was no place for further
appeal"; this would appear to imply that leave to appeal to the Supreme Courtwas denied. Both the
Central District Court and the Court of Appeal further held that the authors had failed to submit their case
within the statutory deadlines.

2.7 The authors indicate that they have not submitted their case to another instance of international
investigation or settlement.

The complaint:
3.1 The authors contend that the Hungarian authorities have violated their rights under article 12 of the
Covenant. Thus, the restrictions in their foreign work permit, which specified the country, the period of
time and the place of work for which it could exclusively be used, are said to have violated their "right to
be free to leave any country". The authors do concede, however, that such restrictions as were imposed
by the former regime have been lifted.
3.2 The authors alleged a violation of article 14, paragraph 1, as they were denied the possibility of
attending a court hearing in their case or, prior to 1991, to be represented by a lawyer. They argue that
the principle of equality of arms was not respected as neither the municipal police, the Budapest City
Council nor the local courts gave them an opportunity to put properly their claims before the competent
authorities. Thus, in 1984, the authors only learned about the police decision through the administrative
decisions confiscating their property. In 1991, the Central District Court decided without summoning the
parties. The authors further contend that the fact that the City Council's actions, whose effect was similar
to that of the decisions of an administrative tribunal, could not be challenged before the regular courts
violated article 14. Finally, it is submitted that the proceedings in the case violated the principle of audiatur
et altera pars, under which parties to a case should be entitled to be heard by the courts.

3.3 Finally, the authors allege a violation of article 17, as they were subjected to unlawful interferences
with their family and their private life, as well as to unlawful attacks on the professional integrity and the
career development prospects of Mr. K. They also consider the confiscation and auctioning of their home
and apartment in Budapest an unlawful interference with their family life.

3.4 The authors do acknowledge that many of the events in their case occurred prior to the date of entry
into force of the Optional Protocol for Hungary. They note, however, that Hungary ratified the Covenant
on 23 March 1976 and that, by March 1984, the Government should have adopted, in accordance with its
obligations under article 2, paragraphs 1 and 2, of the Covenant, all the legislative and other measures
necessary to give full effect to the rights protected under the Covenant. The fact that the alleged violations
of the authors' rights occurred between the entry into force of the Covenant and that of the Optional
Protocol for Hungary should not lead to a simple dismissal of their complaint ratione temporis.

The State party's information and observations and authors' comments:

4. In its submission on the admissibility of the communication, the Government points out that the events
complained of occurred prior to 7 December 1988, the date of entry into force of the Optional Protocol for
the State party. It therefore considers the case inadmissible ratione temporis, referring in this context to
article 28 of the Vienna Convention on the Law of Treaties, concerning the non-retroactivity of
international agreements.

5.1 In their comments, the authors challenge the State party's argument. They contend that the 1984
decision to declare them persons unlawfully staying abroad still has serious and continuing effects for
their present life. Thus, the decision was combined with sanctions which had lasting consequences for
their family life: their children, without passports and de facto stateless, applied for Swiss and Canadian
citizenship, respectively, whereas the authors retained Hungarian citizenship. The fact that the
Government confiscated their property and refused to restitute it to them, which made it impossible for the
authors to return to their home, is said to constitute a continuing violation of the Covenant. Finally, the
intervention of the Hungarian authorities with the ILO administration is said to continue to affect Mr. K.'s
career development prospects, as he continues to be considered a "special case" by ILO.
5.2 The authors further reiterate that they did not get a fair and public hearing before an independent and
impartial tribunal, neither under the former communist regime nor under the present democraticallyelected
government. Until the change of government in 1989, the judicial decisions were handed down "without a
public hearing and by incompetent administrative authorities". The decisions of these authorities were
final, and the authors allegedly did not have the possibility of appealing against them. Under the new
Government, in 1990-1991, the authors' request for reopening of the matter was again rejected in
proceedings which did not include a public hearing. This again is said to constitute an ongoing and
continuing violation of article 14 of the Covenant.
Issues and proceedings before the Committee:

6.1 Before considering any claims contained in a communication, the Human Rights Committee must
decide, in accordance with rule 87 of its rules of procedure, whether or not it is admissible under the
Optional Protocol to the Covenant.

6.2 The Committee has noted the authors' claims relating to the confiscation and auctioning of their
property by the Hungarian authorities in 1984 and in November 1988. Irrespective of the fact that these
events took place prior to the date of entry into force of the Optional Protocol for Hungary, the Committee
recalls that the right to property is not protected by the Covenant. The authors' allegations concerning a
violation of their right to property are thus inadmissible ratione materiae, under article 3 of the Optional
Protocol.

6.3 The authors contend that the violations of their rights under article 14 and article 17, paragraph 1,
have continued after the entry into force of the Optional Protocol for Hungary on 7 December 1988. The
State party has not addressed this point and merely argued that all of the authors' claims are
inadmissible ratione temporis.

6.4 The Committee begins by noting that the State party's obligations under the Covenant apply as of the
date of its entry into force for the State party. There is, however, a different issue as to when the
Committee's competence to consider complaints about alleged violations of the Covenant under the
Optional Protocol is engaged. In its jurisprudence under the Optional Protocol, the Committee has held
that it cannot consider alleged violations of the Covenant which occurred before the entry into force of the
Optional Protocol for the State party, unless the violations complained of continue after the entry into
force of the Optional Protocol. A continuing violation is to be interpreted as an affirmation, after the entry
into force of the Optional Protocol, by act or by clear implication, of the previous violations of the State
party.

6.5 In the present case, it is not possible to speak of such a continuing affirmation, by the Hungarian
authorities, of the acts committed by the State party prior to 7 December 1988. For one, the authors'
passports have been returned to them, and such harassment as they may have been subjected to prior to
7 December 1988 has stopped.

6.6 The only remaining issue, which might arise in relation to article 17, is whether there are continuing
effects by virtue of the State party's failure to compensate the authors for the confiscation of their family
home or apartment. However, the Committee recalls that there is no autonomous right to compensation
under the Covenant (see decision of 26 March 1990 on case No. 275/1988, S.E. v. Argentina); and a
failure to compensate after the entry into force of the Optional Protocol does not thereby constitute an
affirmation of a prior violation by the State party.

7. In the light of the above, the Human Rights Committee considers that the authors' claims are
inadmissible ratione temporis.

8. The Human Rights Committee therefore decides:

(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the State party and to the authors.
:
Kurowski v. Poland, Communication No. 872/1999 (final views of 18 March 2003)
(CCPR/C/77/D/872/1999 [2003]

Communication submitted by Mr. Eugeniusz Kurowski, a Pole, born in 1949. He claims to be a victim of
violations by Poland of article 14, paragraph 1, and of article 25 (c), in combination with article 2,
paragraph 1, of the International Covenant on Civil and Political Rights. He is represented by counsel.

The International Covenant on Civil and Political Rights entered into force for Poland on 18 June 1977,
and the Optional Protocol on 7 February 1992.

FACTS AS SUBMITTED BY THE AUTHOR

From December 1976 until 1989, the author held a post in the Polish law enforcement services (National
Militia). In 1989, he was appointed deputy security chief of the Regional Office of Internal Affairs in the
town of Andrychów. On 31 July, he was dismissed pursuant to the State Protection Office Act of 6 April
1990, which had dissolved the Secret Police by transforming it into a new department.

In its Ordinance No. 69 of 21 May 1990, the Council of Ministers established qualification proceedings
and criteria for the reinstatement in the new department of officers who had been dismissed.
Reinstatement could take place only after a regional qualifying commission issued a positive assessment
or through an appeal to the Central Qualifying Commission in Warsaw. On 22 July 1990, the Bielsko-Biala
Qualifying Commission declared that the author did not meet the requirements for officers or employees
of the Ministry of Internal Affairs. The Central Qualifying Commission confirmed that opinion on 5
September 1990, following an appeal made by the author on 28 July 1990.

On 25 April 1995, [FN1] the author requested the Minister of Internal Affairs to overturn the decisions of
the qualifying commissions and to reinstate him in the Police. On 29 May 1995, the Minister replied that
he had no authority to alter decisions by the qualifying commissions or to recruit anyone who did not
receive a positive assessment from them. On 1 February 1996, the Minister confirmed that reply. The
author lodged an appeal with the Central Administrative Court. However, the Court nonsuited him,
considering that it was not competent to give a ruling on decisions taken by the qualifying commissions.

THE COMPLAINT

The author claims that he is a victim of a violation by the State party of article 25 (c) of the Covenant,
since the Ministry of Internal Affairs dismissed him from the Police [FN2] because he was a member of
the Polish United Workers' Party and held leftist political views. Moreover, the Ministry of Internal Affairs
had unjustly classified him as a member of the Security Service although, at the time of his admission to
the Police, he had been a police officer and had worn the uniform for the duration of his service. The
author considers that this violation should be considered together with a violation of article 2, paragraph 1,
of the Covenant.

The author also claims to be a victim of the State party's violation of his right to access to a court, since
neither the question of his dismissal nor his retroactive reclassification as an agent of the Security Service
could be reviewed by a court.

He considers that the decisions of the qualifying commissions had been handed down by members
hostile to the left and who dismissed any candidate holding political views different from theirs. Since the
decisions that had been handed down in that manner were not subject to appeal before a court or other
body independent of the Ministry of Internal Affairs, the author considers himself a victim of the State
party's violation of his right to a hearing by an independent and impartial tribunal.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE EADMISSIBILITY CONSIDERATIONS

Before considering any communication, the Human Rights Committee must, in accordance with rule 87 of
its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

The Committee notes that the matter is not being examined under another international procedure and
that the domestic remedies have been exhausted. The conditions set out in article 5, paragraph 2, of the
Optional Protocol have therefore been met.

The Committee notes that the State party claims that the communication is inadmissible ratione temporis,
since the qualification proceedings for the author ended on 5 September 1990, that is, before the Optional
Protocol entered into force for Poland on 7 February 1992. The author challenges that argument and
replies that the State was party to the Covenant since June 1977, that the Optional Protocol entered into
force in 1992 and that he did not take legal action against his dismissal until 1995 (after the Optional
Protocol had come into force).

The Committee recalls that the obligations that the State party assumed when it signed the Covenant took
effect on the date on which the Covenant entered into force for the State party. Following its
jurisprudence, the Committee considers that it cannot consider violations that took place before the
Optional Protocol entered into force for the State party, unless such violations persisted after the entry
into force of the Optional Protocol. A persistent violation is understood to mean the continuation of
violations which the State party committed previously, either through actions or implicitly.

In the present case, the author was dismissed from his post in 1990, under the law in force at the time,
and the same year he presented himself as a candidate, without success, before one of the regional
qualifying commissions in order to determine whether he satisfied the new statutory criteria for
employment in the restructured Ministry of Internal Affairs. The fact that he did not win his case during the
proceedings which he initiated in 1995, after the Optional Protocol came into force, does not in itself
constitute a potential violation of the Covenant. The Committee is unable to conclude that a violation
occurred prior to the entry into force of the Optional Protocol for the State party and continued thereafter.
Consequently, the Committee declares the communication inadmissible ratione temporis, in accordance
with article 1 of the Optional Protocol.

Aduayom et al. v.Togo, Communication Nos. 422/1990, 423/1990, and 424/1990 (final views of 12
July 1996) (UN Doc. CCPR/C/51/D/422/1990, 423/1990, 424/1990)

Facts

The author of communication No. 422/1990, Mr. Aduayom, is a teacher at the University of Benin (Togo)
in Lomé. He states that he was arrested on 18 September 1985 by the police in Lomé and transferred to
a Lomé penitentiary on 25 September 1985. He was charged with the offence of lèse-majesté (outrage au
Chef de l'Etat dans l'exercice de sa fonction), and criminal proceedings were instituted against him.
However, on 23 April 1986, the charges against him were dropped, and the author was released.
Thereafter, he unsuccessfully requested his reinstatement in the post of maître assistant at the University,
which he had held prior to his arrest.

The author of communication No. 423/1990, Mr. Diasso, also was a teacher at the University of Benin. He
was arrested on 17 December 1985 by agents of the Togolese Gendarmerie Nationale, allegedly on the
ground that he was in possession of pamphlets criticizing the living conditions of foreign students in Togo
and suggesting that money "wasted" on political propaganda would be better spent on improving the
living conditions in, and the equipment of, Togolese universities. He was taken to a Lomé prison on 29
January 1986. He was also charged with the offence of lèse-majesté, but the Ministry, after conceding
that the charges against him were unfounded, released him on 2 July 1986. Thereafter, he has
unsuccessfully sought reinstatement in his former post of adjunct professor of economics at the
University.

The author of case No. 424/1990, Mr. Dobou, was an inspector in the Ministry of Post and
Telecommunications. He was arrested on 30 September 1985 and transferred to a Lomé prison on 4
October 1985, allegedly because he had been found reading a document outlining in draft form the
statutes of a new political party. He was charged with the offence of lèse-majesté. On 23 April 1986,
however, the charges were dropped and the author was released. Subsequently, he unsuccessfully
requested reinstatement in his former post.

The authors' wages were suspended under administrative procedures after their arrest, on the ground
that they had unjustifiably deserted their posts.

With respect to the requirement of exhaustion of domestic remedies, the authors state that they submitted
their respective cases to the National Commission on Human Rights, an organ they claim was
established for the purpose of investigating claims of human rights violations. The Commission, however,
did not examine their complaints and simply forwarded their files to the Administrative Chamber of the
Court of Appeal. This instance, apparently, has not seen fit to examine their cases. The author of case
No. 424/1990 additionally complains about the delays in the procedure before the Court of Appeal; thus,
he was sent documents submitted by the Ministry of Post and Telecommunications some seven months
after their receipt by the Court.

The complaint

The authors claim that both their arrest and their detention was contrary to article 9, paragraph 1, of the
Covenant. This was implicitly conceded by the State party when it dropped all the charges against them.
They further contend that the State party has violated article 19 in respect to them, because they were
persecuted for having carried, read or disseminated documents that contained no more than an
assessment of Togolese politics, either at the domestic or foreign policy level.

3.2 The authors request reinstatement in the posts they had held prior to their arrest, and request
compensation under article 9, paragraph 5, of the Covenant.

State party's admissibility observations and authors' comments and clarifications

The State party objects to the admissibility of the communications on the ground that the authors have
failed to exhaust available domestic remedies. It observes that the procedure is regularly engaged before
the Court of Appeal. In the cases concerning Messrs Aduayom and Diasso (communications Nos.
422/1990 and 423/1990), the employer (the University of Benin) did not file its own submission, so that
the Administrative Chamber of the Court of Appeal cannot pass sentence. With respect to the case of Mr.
Dobou (No. 424/1990), the author allegedly did not comment on the statement of the Ministry of Post and
Telecommunications. The State party concludes that domestic remedies have not been exhausted, since
the Administrative Chamber has not handed down a decision.

The State party also notes that the Amnesty Law of 11 April 1991 decreed by the President of the
Republic constitutes another remedy for the authors. The law covers all political cases as defined by the
Criminal Code which occurred before 11 April 1991. Article 2 of the Law expressly allows for the
reinstatement in public or private office. The amnesty is granted by the Public Prosecutor ("Procureur de
la République ou juge chargé du Ministère Public") within three days after the request (article 4).
According to article 3, the petition under these provisions does not prevent the victim from pursuing his
claims before the ordinary tribunals.

After a request for further clarifications formulated by the Committee during the forty-ninth session, the
authors, by letters dated 23 December, 15 November and 16 December 1993 respectively, informed the
Committee that they were reinstated in their posts pursuant to the Law of 11 April 1991. Mr. Diasso notes
that he was reinstated with effect from 27 May 1991, the others with effect from 1 July 1991.

The authors note that there has been no progress in the proceedings before the Administrative Chamber
of the Court of Appeal, and that their cases appear to have been shelved, after their reinstatement under
the Amnesty Law. They argue, however, that the law was improperly applied to their cases, since they
had never been tried and convicted for committing an offence, but had been unlawfully arrested, detained
and subsequently released after the charges against them were dropped. They add that they have not
been given arrears on their salaries for the period between arrest and reinstatement, during which they
were denied their income.

As regards the statute of the University of Benin, the authors submit that, although the University is, at
least in theory, administratively and financially autonomous, it is in practice under the control of the State,
as 95 per cent of its budget is State-controlled.

The authors refute the State party's argument that they have failed to exhaust domestic remedies. In this
context, they argue that the proceedings before the Administrative Chamber of the Court of Appeal are
wholly ineffective, since their cases were obviously filed after their reinstatement under the Amnesty Law,
and nothing has happened since. They do not, however, indicate whether they have filed complaints with
a view to recovering their salary arrears.

The Committee's admissibility decision

During its fifty-first session, the Committee considered the admissibility of the communication. It noted
with concern that no reply had been received from the State party in respect of a request for clarification
on the issue of exhaustion of domestic remedies, which had been addressed to it on 26 October 1993.

The Committee noted the authors' claims under article 9 and observed that their arrest and detention
occurred prior to the entry into force of the Optional Protocol for Togo (30 June 1988). It further noted that
the alleged violations had continuing effects after the entry into force of the Optional Protocol for Togo, in
that the authors were denied reinstatement in their posts until 27 May and 1 July 1991 respectively, and
that no payment of salary arrears or other forms of compensation had been effected. The Committee
considered that these continuing effects could be seen as an affirmation of the previous violations
allegedly committed by the State party. It therefore concluded that it was not precluded ratione
temporis from examining the communications and considered that they might raise issues under articles
9, paragraph 5; 19; and 25(c), of the Covenant.

The Committee took note of the State party's argument that domestic remedies had not been exhausted,
as well as of the authors' contention that the procedure before the Administrative Chamber of the Court of
Appeal was ineffective, because no progress in the adjudication of their cases was made after their
reinstatement under the Amnesty Law, and that indeed said cases appeared to have been filed. On the
basis of the information before it, the Committee did not consider that an application to the Administrative
Chamber of the Court of Appeal constituted an available and effective remedy within the meaning of
article 5, paragraph 2(b), of the Optional Protocol.

Examination of the merits

The deadline for the submission of the State party's observations under article 4, paragraph 2, of the
Optional Protocol expired on 10 February 1995. No submission has been received from the State party, in
spite of a reminder addressed to it on 26 October 1995. The Committee regrets the absence of
cooperation on the part of the State party, as far as the merits of the authors' claims are concerned. It is
implicit in article 4, paragraph 2, of the Optional Protocol that a State party must furnish the Committee, in
good faith and within the imparted deadlines, with all the information at its disposal. This the State party
has failed to do; in the circumstances, due weight must be given to the authors' allegations, to the extent
that they have been adequately substantiated.

The authors contend that they have not been compensated for the time they were arbitrarily arrested,
contrary to article 9, paragraph 5. The procedures they initiated before the Administrative Chamber of the
Court of Appeal have not, on the basis of the information available to the Committee, resulted in any
judgment or decision, be it favourable or unfavourable to the authors. In the circumstances, the
Committee sees no reason to go back on its admissibility decision, in which it had held that recourse to
the Administrative Chamber of the Court of Appeal did not constitute an available and effective remedy.
As to whether it is precluded ratione temporis from considering the authors' claim under article 9,
paragraph 1, the Committee wishes to note that its jurisprudence has been not to entertain claims under
the Optional Protocol based on events which occurred after entry into force of the Covenant but before
entry into force of the Optional Protocol for the State party. Some of the members feel that the
jurisprudence of the Committee on this issue may be questionable and may have to be reconsidered in an
appropriate (future) case. In the instant case, however, the Committee does not find any elements which
would allow it to make a finding under the Optional Protocol on the lawfulness of the authors' arrest, since
the arrests of the authors took place in September and December 1985, respectively, and they were
released in April and July 1986, respectively, prior to the entry into force of the Optional Protocol for Togo
on 30 June 1988. Accordingly, the Committee is precluded ratione temporis from examining the claim
under article 9, paragraph 5.
Exhaustion of Local/Domestic Remedies

Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984
(final views of 26 March 1990) (Supp. No. 40 [A/45/40) (1990)

FACTS: Chief Bernard Ominayak of the Lubicon Lake Band brought a communication under Art. 2 of the
Optional Protocol against Canada, a state party to the protocol. He alleged a denial of the “right to self-
determination” of the Band, including the right to “freely dispose of their natural wealth and resources”
(Art. 1 ICCPR).

Individual Band members’ right to hunt, trap and fish in traditional lands is recognized under the Indian
Act and Treaty 8 of 1899. These activities are essential to maintain the subsistence economy
underpinning the Band’s distinctive culture, spirituality and language. Oil and gas development in
traditional lands threatened the environmental and economic base of the Band, including the potential
loss of natural resource revenues in lands subject to a land title dispute.

The complaint was brought to the Human Rights Committee after the Supreme Court of Canada refused
to hear an appeal from a decision of the Alberta Court of Appeal. The Court of Appeal refused an
injunction prohibiting all oil and gas development in the disputed lands, as the Band failed to show
‘irreparable injury’ to its interests in the land claims negotiations. The land claim and other legal
proceedings remained unresolved when the ‘View’ was issued.

ISSUES:

1) Did the individual exhaust ‘all available’ domestic remedies, or was the application of the
remedies ‘unreasonably prolonged,’ according to Art. 5 of the Optional Protocol?

2) Did the individual claimant establish a violation of the ICCPR by the state party of
(a) a people’s right to self-determination under Art. 1?
(b) any of the other enumerated rights?

REASONING:

1) Exhaustion of Remedies

The Band submitted that the interim injunction was the only “effective and available” remedy because by
the time a final judgement recognizing aboriginal rights might achieved, further resource development
would effectively undermine the ability of the Band to enjoy these rights.

Canada submitted that the Band was responsible for delays in the litigation. ‘Domestic remedies’ means
‘all local procedures of redress,’ including concluding the unresolved land claims process.

The Committee noted that the “road of litigation would [not] have represented an effective method of
saving or restoring the traditional or cultural livelihood” of the Band.

2) Violations of the ICCPR

It was submitted that the destroying the economic base imperils the Band’s survival as a ‘people.’

Canada submits the Band is not a ‘people,’ and that this right cannot be invoked by an individual.

The Committee found that it cannot pronounce upon the existence of a ‘people’ under Art. 1. The claim
instead engaged the rights of persons under Art. 27 (minorities), “to engage in economic and social
activities which are a part of a culture of the community to which they belong.” Individuals may invoke
minority rights under Art. 27 but not the collective right to under Art. 1.
HOLDING: The Committee found “historical inequities . . . and recent developments threaten the way of
life and culture of the Lubicon Lake Band” and found Canada in violation of Art. 27.
APPLICATION: The Optional Protocol is silent as to the binding nature Views issued by the Human
Rights Committee. This phrase ”in accordance with its constitutional processes” in Art. 2(2) of the ICCPR
indicates that the implementation of treaty norms is a matter of domestic law.

DISCUSSION: The dualistic nature of Canadian law means that explicit implementing legislation is
necessary to invoke treaty norms in domestic courts. While this restrictive approach to treaty
interpretation may have delayed the implementation of the principles of the Lubicon Lake in Canada, the
Courts have developed a body of case-law to address these claims.

In particular, the ‘duty to consult and accommodate’ provides aboriginals with “positive legal measures of
protection and measures to ensure the effective participation . . . in decisions which affect them” ( General
Comment No. 23: The Rights of minorities (Art. 27) (CCPR/C/21) par. 7).

The government’s duty to consult arises where there is a potential infringement of aboriginal rights and
requires the government reasonably accommodate these interests into decision-making. Only recently
have Canadian courts recognized the uniqueness of aboriginal title and the need for reconciliation with
State sovereignty (Delgamuukw, 1997 CanLII 302 (S.C.C.)).

Canadian courts have been greatly influenced by the decision of the High Court of Australia in Mabo
((1992) 66 A.L.J.R. 408). Brennan (now C.J.) invoked the Convention on the Elimination Racial
Discrimination (CERD) to reverse the 150 year old practice of terra nullis (discovery by a European state
establishes sovereignty) in Queensland. He found that continuing to deny the existence of aboriginal title
would “’destroy the equality’ of all Australian citizens before the law.”

The Supreme Court of Canada in Haida Nation and Taku River (released simultaneously 2004 SCC 73
(CanLII), 2004 SCC (CanLII) 74) in practice elaborated on the rationale from Lubicon Lake and Länsman
cases to develop a framework for the duty to consult. In Haida, the Court ordered the government to
reconsider its decision to grant a tree harvesting license for an old growth forest subject to an unresolved
aboriginal title claim. McLachlin C.J. wrote for the Court:

The jurisprudence of this Court supports the view that the duty to consult and accommodate is
part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty
and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the
usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution
Act, 1982. This process of reconciliation flows from the Crown's duty of honourable dealing
toward Aboriginal peoples, which arises in turn from the Crown's assertion of sovereignty over an
Aboriginal people and de facto control of land and resources that were formerly in the control of
that people. . .

To limit reconciliation to the post-proof sphere risks treating reconciliation as a distant legalistic
goal, devoid of the "meaningful content" mandated by the "solemn commitment" made by the
Crown in recognizing and affirming Aboriginal rights and title . . . It also risks unfortunate
consequences. When the distant goal of proof is finally reached, the Aboriginal peoples may find
their land and resources changed and denuded. This is not reconciliation. Nor is it honourable
(par. 31 and 32).

Similar to the reasoning in Länsman, the decision notes ‘the scope of the duty is proportionate to a
preliminary assessment of the strength of the case supporting the existence of the right or title, and to the
seriousness of the potentially adverse effect upon the right or title claimed’ (par. 39).

The decision indicates that negotiation is the preferable way ‘to reconcile aboriginal and state interests.’
Applications for temporary injunctions halting development ‘may diminish incentives on the part of the
successful party to compromise’ and lead to protracted disputes (par. 14).
The duty to consult now provides individual claimants with an effective domestic remedy before the
Courts and in regulatory proceedings where the enjoyment of aboriginal rights is infringed.

Henry v. Jamaica, Communication No. 230/1987 (final views of 1 November 1991)

(CCPR/C/43/D/230/1987) [1991]

Laws criminalising male homosexual conduct were introduced to Jamaica by the British colonial authority
in the 19th century. Sections 76, 77 and 79 of the Offences Against the Person Act 1864 (the ‘anti-
homosexuality laws’) proscribe all forms of consensual sexual activity between adult males. Anyone
convicted of ‘buggery’ faces a sentence of up to ten years imprisonment and hard labour. Any male
convicted of ‘gross indecency’ with another male faces a sentence of up to two years imprisonment with
or without hard labour.

A 2011 amendment to the Jamaican Constitution, which enacts the Charter of Fundamental Rights and
Freedoms, purports to shield the anti-homosexuality laws from a constitutional challenge in domestic
courts (the ‘savings law clause’).

Combined, these provisions deny gay men both recognition as equal citizens and the protection of the
State. They also indirectly stigmatise and discriminate against lesbian women, bisexual people and trans
people, who face similar human rights abuses from both State and non-State actors. The laws foster and
perpetuate an environment in which all people engaging in same-sex intimacy are marginalised.
This has resulted in serious violence and discrimination, rising to the level of persecution, committed by
both citizens and organs of the state, such as the police, against those perceived as homosexual. Many
LGBT people consider it futile even reporting incidents of violence or discrimination to the authorities
given the hostile environment.

THE PARTIES

Mr Gareth Henry, a Jamaican citizen currently under refugee protection in Canada, is the Petitioner and
victim in this case. He is a prominent advocate for the rights of LGBT people. In Jamaica he was
subjected to serious abuse, discrimination and persecution because of his homosexuality and activism.
From a young age he was forced to move home several times to escape the violence he was subjected
to. He has been beaten, harassed, subjected to verbal abuse, had stones thrown at him and witnessed
attacks on numerous other LGBT people, including close friends, some of which have been fatal. He
experienced an attack while participating in HIV and AIDS awareness activities. On occasion police
officers themselves have been involved in attacks; for example, in February 2007 Mr Henry was beaten
by four police officers in front of an angry mob of around 200 people after he refused to answer a question
about whether he was a ‘batty man’ (a pejorative slang term for a gay man). Because of the constant
abuse, which culminated in a death threat, Mr Henry was forced to leave Jamaica in January 2008. He
was granted asylum by Canada in June 2008. His mother was also forced to flee Jamaica and join him in
April 2008, followed by his sister and her young family in March 2013. They have all been granted asylum
by Canada.

Ms Simone Edwards is an additional victim in the Petition, who after years of discrimination, isolation and
abuse as a lesbian woman was shot twice in anti-gay violence along with two of her brothers, one of
whom is gay. She survived the shooting but had to have surgery to remove parts of her internal organs.
The known perpetrators were never prosecuted and remain in the community. Ms Edwards finally
escaped the homophobic environment in Jamaica, in fear of both her life and that of her young daughter,
and obtained asylum in the Netherlands where they are now both safe from anti-LGBT human rights
abuses. She and Mr Henry argue that Jamaica’s anti-gay laws and lack of State protection have a direct
impact on everyone in the LGBT community, contrary to international law binding on Jamaica.
The case is against the State of Jamaica.
The Petition seeks a declaration from the Inter-American Commission on Human Rights that:
maintaining anti-homosexuality laws violates Jamaica’s legal obligations under the relevant international
instruments;
1) the savings law clause that purports to shield the anti-homosexuality laws from judicial review
violates Jamaica’s legal obligations under the relevant international instruments;
2) maintaining and enforcing the buggery laws, and enacting the Constitutional Amendment have
contributed to a social and political environment which is hostile and contrary to the rights of
homosexuals;
3) the government has failed to take adequate steps to protect the rights and well-being of Jamaican
citizens who are homosexual from mistreatment.
The Petition further seeks an instruction from the Commission to Jamaica to repeal the anti-
homosexuality laws and the savings law clause and to take adequate steps to protect its homosexual
citizens, consistent with its international human rights law obligations.

GOVERNMENT RESPONSE

The Government of Jamaica has objected to the admissibility of the Petition and is defending its anti-gay
laws.

THE PROCESS

On 2 July 2018, the Inter-American Commission on Human Rights issued its decision on the admissibility
of the Petition, determining that it is admissible. In doing so, the Commission noted that ‘if proved, the
alleged facts relating to threats to life, personal integrity, interference with private and family life,
obstacles to the right of residence and movement, unequal treatment, lack of access to justice and
judicial protection, and interference in access to health care, could establish possible violations of (…) the
American Convention [on Human Rights].’

In response to this significant development, Téa Braun, Director of HDT, said:

‘Laws criminalising sexual activity between two consenting adults in their own homes have no place in a
society that values and protects dignity, privacy and equality. They only serve to foment discrimination
and violence towards the wider LGBT community in Jamaica.
For that reason, the Commission’s decision to admit this case for consideration on its merits is hugely
welcome.  It is a significant step forward that we hope will eventually lead to a repeal of these
discriminatory laws.’

The Petition will now be considered on its merits by reference to the substance of the legal arguments,
and the Commission will determine whether and how Jamaica’s maintenance of these laws violates rights
under the American Convention on Human Rights (which Jamaica has ratified) and the American
Declaration on the Rights and Duties of Man. This entire process can take several years.
The Inter-American Commission can make recommendations to the Government of Jamaica to repeal the
offending laws, to ensure proper protection of LGBT citizens from discrimination and violence, and to
investigate the facts and make reparations.

Hendriks v. Netherlands, Communication No. 201/1985 (final views of 27 July 1988) UN Doc. Supp.
No. 40 (A/43/40) [1988] - denial of access by divorced father to child

The applicant, a divorced father, complained about court decisions which had denied him access to his
child because the mother's refusal to co-operate might harm the child. He alleged breach of Article 8. The
applicant also alleged breach of Article 3 and 6. By a majority the Commission found no violation, a
conclusion which was confirmed by the Committee of Ministers.

1. Respect for family life. Access by divorced parent to child (Article 8). Justification for denying access.
Protection of child's health (Article 8 (2)).
 a. The natural link between parent and child was of fundamental importance. When the actual
'family life' in the sense of 'living together' had ended, continued contact between them was
desirable and should in principle have remained possible. Respect for family life implied that this
contact was not to be denied unless there were strong reasons under Article 8 (2) to justify such
interference [95]. The denial of access thus involved an interference with the applicant's right
under Article 8 (1) [96].
b. The Commission considered but rejected the argument that the national legislation was as such
in breach of Article 8. Although the legislation did not as such provide for the legal safeguards
required by Article 8, the courts had clearly treated the applicant's claim for access to his child in
a way which recognized his entitlement to such access but refused it in the interests of the child
[100-107].
c. The interference with the applicant's Article 8 right was 'in accordance with the law' [113-114]. It
sought the legitimate aim of protecting the health of the child [115-118].
d. In examining whether the interference was 'necessary in a democratic society', the Commission
did not intend to substitute its own judgment for that of the competent domestic courts [119].
e. It was an important function of the law in a democratic society to provide safeguards in order to
protect children, particularly those who were specially vulnerable because of their low age, as
much as possible from harm and mental suffering resulting, for instance, from a divorce of their
parents [120]. On the facts the Commission was satisfied that the refusal of access had been
required by the child's interests [121-123].
f. When there was a serious conflict between the interests of a child and one of its parents which
could only be resolved to the disadvantage of one of them, the interests of the child had to prevail
under Article 8(2) [124].

2. Inhuman and degrading treatment (Article 3).

The Commission considered that the impugned court decisions could not be 'regarded as inhuman or
degrading treatment' [127-131].

3. Civil proceedings. Reasonable time. Fair hearing: 'equality of arms' (Article 6(1)).

a. The various domestic proceedings had taken respectively six, one and a half, and seven months
[135-136]. 
b. In order to keep the parents and children concerned no longer than necessary in uncertainty,
proceedings relating to a parent's access to his child were not to be unduly prolonged. The
decision required careful examination of the family situation and the chances of reaching a
settlement had to be ascertained. In view of these considerations, the Commission did not find
that the proceedings had been unreasonably long [137-139].
c. The Commission left open whether the fact that an applicant for access could not retain a copy of
the social report might prejudice his position before the courts, especially if he was not legally
represented [142]. On the facts, however, the applicant's lawyer had the report and the 'equality
of arms' requirement in Article 6(1) had been respected [143-144].
On the Requirement that the Case Must NOT be Investigated by any other International Body

1.) Sanchez Lopez v. Spain, Communication No. 777/1997 (final views of 25 November 1999)
(CCPR/C/67/D/777/1997)

On 5 May 1990, the author was driving his car at 80 km/h in an area where the speed limit was 60 km/h.
The car was photographed after being detected by the police radar. The General Department of Traffic
(Ministry of the Interior) asked him, as the owner of the vehicle by means of which the offence had been
committed, to identify the perpetrator of the offence or driver of the vehicle, in other words, himself. This
request was made on the basis of article 72 (3) of Royal Legislative Decree No. 339/1990 (Road Safety
Act - Ley de Seguridad Vial (LSV)), which states: "The owner of the vehicle, on being duly asked to do so,
has the duty to identify the driver responsible for the offence; if he fails to fulfil this obligation promptly
without justified cause, he shall be liable to a fine for having committed a serious misdemeanour".

Pursuant to this request and exercising the fundamental right not to confess guilt, Mr. Sanchez Lopez
sent the traffic authorities a letter in which he stated that he was not the driver of the vehicle and did not
know who had been driving it since he had lent it to several people during that period. As the perpetrator
of a serious misdemeanour, he was fined 50,000 pesetas (the speeding fine was 25,000 pesetas).

The author took his case to the courts (Administrative Litigation Division, Murcia), claiming that the
imposition of the fine constituted a violation of his fundamental rights, in particular the right to presumption
of innocence, the right not to confess guilt and the right not to testify against oneself, all of which are
recognized in article 24 (2) of the Spanish Constitution. He also requested that an action of
unconstitutionality should be brought before the Spanish Constitutional Tribunal. The competent Division
rejected the appeal, stating that the penalty was lawful.

The decision was the subject of an action for amparo before the Constitutional Tribunal, which, in a
substantiated decision of 2 February 1996, dismissed the appeal, citing the doctrine established in
another decision adopted on 21 December 1995 by that Tribunal in plenary resolving a number of
questions of unconstitutionality raised by judicial bodies concerning article 72 (3) of the LSV.

Counsel maintains that the decision is contradictory in that it recognizes the fundamental right not to
testify against oneself as an integral part of the Spanish Constitution, a right which is also applicable to
punitive procedures resulting from failure to comply with administrative provisions of the State. It is
nevertheless seriously contradictory in stating that the duty imposed on the vehicle owner who is
compelled to reveal or identify the name of the driver when it is himself does not constitute a violation of
the fundamental right not to confess guilt. The decision comprises a separate opinion signed by two
judges stating that without doubt the fundamental right not to testify against oneself is violated by article
72 (3) of the LSV.

The complaint

Counsel maintains that the author has been the victim of a violation of article 14, paragraph 3 (g), of the
Covenant in that he has been obliged to confess guilt to the extent that the request for identification was
addressed to the owner of the vehicle, who was in fact the driver responsible for the offence. In this case
he is being obliged to make a self-accusatory statement, which contravenes the right protected in the
Covenant.

He further maintains that one of the fundamental elements of the presumption of innocence (article 14,
paragraph 2), namely that the burden of proof rests on the prosecution and not the defense, has been
violated since the action required from the author by the authorities is equivalent to proof of his
innocence. It is in fact incumbent on the authorities themselves to identify the driver presumed to be
responsible for the offence.

This complaint has not been submitted to any other international settlement procedure.

Admissibility considerations and examination of the merits

Before considering any claims contained in a communication, the Human Rights Committee must decide,
in accordance with rule 87 of its rules of procedure, whether or not it is admissible under the Optional
Protocol to the Covenant.

With regard to article 5, paragraph 2 (a), of the Optional Protocol, the Committee cannot accept the State
party's contention that "the same matter" has already been submitted to the European Court of Human
Rights because another person brought his particular case before that body in connection with an
apparently identical claim. The words "the same matter", within the meaning of article 5, paragraph 2 (a),
of the Optional Protocol, must be understood as referring to one and the same claim concerning the same
individual, as submitted by that individual, or by some other person empowered to act on his behalf, to the
other international body. Since the State party has itself acknowledged that the author of the present
communication has not submitted his specific case to the European Court of Human Rights, the Human
Rights Committee considers that it is not precluded from considering the communication under article 5,
paragraph 2 (a), of the Optional Protocol.

The Committee observes that, for the purposes of the Optional Protocol, all available domestic remedies
have been exhausted with the rejection of the amparo application by the Constitutional Tribunal. In this
regard, the Committee has taken note of the fact that the State party challenges the admissibility of the
claim of a violation of the presumption of innocence (article 14, paragraph 2) on the ground of failure to
exhaust domestic remedies. The Committee also takes note of the written information before it stating
that the alleged violation of the presumption of innocence was brought to the attention of the
Constitutional Tribunal and that the latter rejected the claim. The Committee considers that, in accordance
with article 5, paragraph 2 (b), of the Optional Protocol, there is nothing in the circumstances of the case
to prevent it from considering the communication.

With regard to the claim that the author's rights to the presumption of innocence and the right not to testify
against himself as protected by article 14, paragraphs 2 and 3 (g) of the Covenant were violated by the
Spanish State, since he had to identify the owner of the vehicle reported for committing a traffic offence,
the Committee considers that the documentation in its possession shows that the author was punished for
non-cooperation with the authorities and not for the traffic offence. The Human Rights Committee
considers that a penalty for failure to cooperate with the authorities in this way falls outside the scope of
application of the above-mentioned paragraphs of the Covenant. Accordingly, the communication is held
to be inadmissible under article 1 of the Optional Protocol.

7. The Human Rights Committee therefore decides:

(a) that the communication is inadmissible under article 1 of the Optional Protocol;

(b) that this decision shall be communicated to the State party and to the author's counsel.
2.) Leirvag v. Norway, Communication No. 1155/2003 (final views of 23 November 2004)
(CCPR/C/82/D/1155/2003)
Background:
Norway had in 1997 introduced a new mandatory Christian education subject in the Norwegian school
system called “Christian Knowledge and Religious and Ethical Education” (CKREE), which required
religious education in the Christian tradition and only provided for exemption from certain limited
segments of the curriculum. Several Norwegian parents and their children filed a complaint with the U.N.
Committee on Human Rights, challenging CKREE as incompatible with freedom of religion under Article
18 of the International Covenant on Civil and Political Rights (ICCPR). 

Issue and resolution:

The issue presented is whether the compulsory instruction of the CKREE subject in Norwegian schools,
with only limited possibilities for exemption, violates the parents’ right to freedom of thought, conscience,
and religion under ICCPR Article 18, and more specifically the right of parents to secure the religious and
moral education of their children in conformity with their own convictions under ICCPR Article 18(4). The
UNHCR concluded that in its present form, Norway’s CKREE curriculum, along with the system of
exemptions that had been developed, breached ICCPR Article 18(4) and was incompatible with other
international instruments including the CRC.

Court reasoning:
Public schools may instruct pupils in subjects such as the general history of religions and ethics, and still
be in compliance with ICCPR Article 18, if that education is provided in a “neutral and objective way.” (as
under UNHRC General Comment 22, Article 18). If public education does include instruction in a
particular religion or belief, in order to remain consistent with Article 18 it must provide for non-
discriminatory exemptions or alternatives that accommodate a parent’s or guardian’s wishes.
Norway’s mandatory Christian education program is not delivered in “neutral and objective way,” and its
system of partial exemptions is insufficient to protect the parents’ liberty to ensure that the religious and
moral education of their children conforms with their own convictions. The CKREE framework, with its
system of exceptions, thus violates ICCPR Article 18(4) and is inconsistent with other international
provisions guaranteeing freedom of religion in education, including the CRC. 

3.) Karakurt v. Austria, Communication No. 965/2000 ( final views of 4 April 2002)
(CCPR/C/74/965/2000 [2002]

The facts as presented by the author

The author possesses (solely) Turkish citizenship, while holding an open-ended residence permit in
Austria. He is an employee of the 'Association for the Support of Foreigners' in Linz, which employs 10
persons in total. On 24 May 1994, there was an election for the Association's work-council ('Betriebsrat')
which has statutory rights and responsibilities to promote staff interests and to supervise compliance with
work conditions. The author, who fulfilled the formal legal requirements of being over 19 years old and
having been employed for over six months, and another employee, Mr Vladimir Polak, were both elected
to the two available spaces on the work-council.

On 1 July 1994, Mr Polak applied to the Linz Regional Court for the author to be stripped of his elected
position on the grounds that he had no standing to be a candidate for the work-council.   On 15 September
1994, the Court granted the application, on the basis that the relevant labour law, that is s.53(1) Industrial
Relations Act (Arbeitsverfassungsgesetz), limited the entitlement to stand for election to such work-
councils to Austrian nationals or members  of the European Economic Area (EEA). Accordingly, the
author, satisfying neither criteria, was excluded from standing for the work-council.

On 15 March 1995 the Linz Court of Appeal dismissed the author's appeal and upheld the lower Court's
reasoning. It also  held that no violation of Art. 11 of the European Convention on Human Rights (ECHR)
was involved, considering that the right to join trade unions had not been interfered with. On 21 April
1995, the author appealed to the Supreme Court, including a request for a constitutional reference
(including in terms of the ECHR) of s.53(1) of the Act by the Constitutional Court.

On 21 December 1995, the Supreme Court discussed the author's appeal and denied  the request for a
constitutional reference. The Court considered that the work-council was not an 'association' within the
meaning of Art. 11 ECHR. The work-council was not an association formed on a voluntary and private
basis, but its organisation and functions were determined by law and was comparable to a chamber of
trade. Nor were the staff as such an independent association, as they were not a group of persons
associated on a voluntary basis. As to arguments of discrimination against foreigners, the Supreme Court,
referring to the State party’s obligations under the International Convention for the Elimination of All
Forms of Racial Discrimination, considered the difference in treatment between Austrian nationals and
foreigners to be justified both under the distinctions that the European economic treaties draw in labour
matters between nationals and non-nationals, and also on account of the particular relationship between
nationals and their home State. Moreover, as a foreigner's stay could be limited and subjected to
administrative decision, the statutory period of membership in a work-council was potentially in conflict.

On 24 July 1996 the author applied to the European Court of Human Rights. On 14 September 1999, the
Third Chamber of the Court, by a majority, found application 32441/96 manifestly ill-founded and
accordingly inadmissible. The Court held that the work-council, as an elected body exercising functions of
staff participation, could not be considered an 'association' within article 11 ECHR, or that the statutory
provisions in question interfered with any such rights under this article.

The complaint

The author contends that s.53(1) of the Act and the State party's Courts’ decisions applying that provision
violate his rights to equality before the law and to be free of discrimination, contained in article 26 of the
Covenant. The author refers to the Committee's findings of violations of gender-specific legislation
in Broeks v Netherlands[2] and Zwaan-de Vries v Netherlands[3] in this connection. The author contends
that the distinction made in the State party's law regarding eligibility to be elected to a work-council as
between Austrian/EEA nationals and other nationals has no rational or objective foundation.

The author contends that where an employee receives the trust, in the form of the vote, of fellow
employees to represent their interests upon the work-council, that choice should not be denied by law
simply on the basis of citizenship. It is argued that there can be no justification for the law's assumption
that an Austrian/EEA national can better represent employee's interests. Nor,  according to the author,
does the law limit the exclusion of non-nationals to, for instance, those who do not have a valid residence
period for the term of office or are not fluent in the German language, and so the exclusion is overbroad. It
is contended that the reservation of the State party to article 26 of the Covenant should not be interpreted
as legitimising any unequal treatment between nationals and non-nationals.

4As to issues of admissibility, the author concedes the State party’s reservation to article 5 of the Optional
Protocol, but argues that the Committee's competence to consider this communication is not excluded as
the European Court only considered the 'association' issue under article 11 ECHR and did not examine
issues of  discrimination and equality before the law. The author points out that article 26 of the Covenant
finds no equivalent in the European Convention, and so the communication should be held admissible.

Issues and proceedings before the Committee

Before considering any claim contained in a communication, the Human Rights Committee must decide,
in accordance with rule 87 of its rules of procedure, whether the claim is admissible under the Optional
Protocol to the Covenant.

As required under article 5, paragraph 2(a), of the Optional Protocol, the Committee has ascertained that
the same matter is not being examined under another procedure of international investigation or
settlement.

As required under article 5, paragraph 2(b), of the Optional Protocol, the Committee has ascertained that
domestic remedies have been exhausted.

As to the State party's contention that its reservation to article 5 of the Optional Protocol excludes the
Committee’s competence to consider the communication, the Committee notes that the concept of the
“same matter�? within the meaning of article 5(2) (a) of the Optional Protocol must be understood as
referring to one and the same claim of the violation of a particular right concerning the same
individual.6  In this case, the author is advancing free-standing claims of discrimination and equality
before the law, which were not, and indeed could not have been, made before the European organs.
Accordingly, the Committee does not consider itself precluded by the State party’s reservation to the
Optional Protocol from considering the communication.

The Committee has taken note of the State party’s reservation to article 26, according to which the State
party understood this provision “to mean that it does not exclude different treatment of Austrian nationals
and aliens, as is also permissible under article 1, paragraph 2, of the International Convention on the
Elimination of All Forms of Racial Discrimination.�?   The Committee considers itself precluded, as a
consequence, from examining the communication insofar as it argues an unjustified distinction in the
State party’s law between Austrian nationals and the author. However, the Committee is not precluded
from examining the claim relating to the further distinction made in the State party’s law between aliens
being EEA nationals and the author as another alien. In this respect the Committee finds the
communication admissible and proceeds without delay to the examination of the merits.  

Examination of the merits

The Committee has considered the communication in the light of all the information made available to it
by the parties, as required by article 5, paragraph 1, of the Optional Protocol.

As to the State party’s argument that the claim is, in truth, one under article 25 of the Covenant, the
Committee observes that the rights protected by that article are to participation in the public political life of
the nation, and do not cover private employment matters such as the election of an employee to a private
company’s work-council. It accordingly finds article 25, and any adverse consequences possibly flowing
for the author from it, not applicable to the facts of the present case.    
In assessing the differentiation in the light of article 26, the Committee recalls its constant jurisprudence
that not all distinctions made by a State party’s law are inconsistent with this provision, if they are justified
on reasonable and objective grounds.[6]

In the present case, the State party has granted the author, a non-Austrian/EEA national, the right to work
in its territory for an open-ended period. The question therefore is whether there are reasonable and
objective grounds justifying exclusion of the author from a close and natural incident of employment in the
State party otherwise available to EEA nationals, namely the right to stand for election to the relevant
work-council, on the basis of his citizenship alone. Although the Committee had found in one case (N°.
658/1995, Van Oord v. The Netherlands) that an international agreement that confers preferential
treatment to nationals of a State party to that agreement might constitute an objective and reasonable
ground for differentiation, no general rule can be drawn therefrom to the effect that such an agreement in
itself constitutes a sufficient ground with regard to the requirements of article 26 of the Covenant. Rather,
it is necessary to judge every case on its own facts. With regard to the case at hand, the Committee has
to take into account the function of a member of a work council, i.e., to promote staff interests and to
supervise compliance with work conditions (see para. 3.1). In view of this, it is not reasonable to base a
distinction between aliens concerning their capacity to stand for election for a work council solely on their
different nationality. Accordingly, the Committee finds that the author has been the subject of
discrimination in violation of article 26.

The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a
violation of article 26 of the Covenant.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to
provide the author with an effective remedy, consisting of modifying the applicable law so that no
improper differentation is made between persons in the author’s situation and EEA nationals.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has recognised the
competence of the Committee to determine whether there has been a violation of the Covenant and that,
pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognised in the Covenant, and to provide an effective
and enforceable remedy in case a violation has been established, the Committee wishes to receive,
within ninety days, information from the State party about the measures taken to give effect to the
Committee's Views. The State party is requested to publish the Committee's Views.