CCPR/C/105/D/1822,1823,1824,1825,1826/2008

GE.12-45262 (E) 170912 180912

Human Rights Committee

Communications Nos. 1822–1826/2008

Views adopted by the Committee at its 105th session, 9–27 July 2012

Submitted by:

J.B.R., L.M.O.C., A.M.A.R., G.E.O.S. and

B.E.L. (1822); S.M.R.M. (1823); A.D.O.,

E.S.C., F.O.Q. and G.G.R. (1824); E.M.C.B.,

M.C.P.J. and R.S.S.N. (1825); G.M.V. and

N.C.P. (1826); (represented by counsel,

Mr. Alberto León Gómez Zuluaga)

Alleged victims:

The authors

State party:

Colombia

Date of communications:

11 June 2008 (initial submissions)

Document references:

Special Rapporteur’s rule 97 decision,

transmitted to the State party on 2 December

2008 (not issued in document form)

Date of adoption of Views:

23 July 2012

Subject matter:

Refusal to authorize the establishment of a

trade union

Procedural issue:

Exhaustion of domestic remedies

Substantive issue:

Freedom of association

Articles of the Covenant:

Article 2, paragraphs 2 and 3; article 14,

paragraph 1; article 22, paragraph 1; article

26

Article of the Optional Protocol:

Article 5, paragraph 2 (b)

[Annex]

United Nations

CCPR/C/105/D/1822,1823,1824,1825&1826/2008

International Covenant on

Civil and Political Rights

Distr.: General

24 August 2012

English

Original: Spanish

CCPR/C/105/D/1822,1823,1824,1825&1826/2008

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GE.12-45262

Annex

Decision of the Human Rights Committee under article 5,

paragraph 4, of the Optional Protocol to the International

Covenant on Civil and Political Rights (105th session)

concerning

Communication Nos. 1822–1826/2008*

Submitted by:

J.B.R., L.M.O.C., A.M.A.R., G.E.O.S. and

B.E.L. (1822); S.M.R.M. (1823); A.D.O.,

E.S.C., F.O.Q. and G.G.R. (1824); E.M.C.B.,

M.C.P.J. and R.S.S.N. (1825); G.M.V. and

N.C.P. (1826); (represented by counsel, Mr.

Alberto León Gómez Zuluaga)

Alleged victims:

The authors

State party:

Colombia

Date of communications:

11 June 2008 (initial submissions)

The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 23 July 2012,

Adopts the following:

Decision on admissibility

1.1

The authors of the communications are J.B.R., L.M.O.C., A.M.A.R., G.E.O.S. and

B.E.L. (1822); S.M.R.M. (1823); A.D.O., E.S.C., F.O.Q. and G.G.R. (1824); E.M.C.B.,

M.C.P.J. and R.S.S.N. (1825); G.M.V. and N.C.P. (1826), all of whom are Colombian

nationals of full age. They claim to be victims of a violation by the State party of the rights

established in article 2, paragraphs 2 and 3; article 14, paragraph 1; article 22, paragraph 1;

and article 26 of the Covenant. The Covenant and the Optional Protocol entered into force

for the State party on 23 March 1976.

1.2

On 23 July 2012, pursuant to rule 94, paragraph 2, of the Committee’s rules of

procedure, the Committee decided to join the five communications for decision in view of

their substantial factual and legal similarity.

* The following members of the Committee participated in the examination of the present

communication: Mr. Yadh Ben Achour, Mr. Lazhari Bouzid, Ms. Christine Chanet, Mr. Ahmad Amin

Fathalla, Mr. Cornelis Flinterman, Mr. Yuji Iwasawa, Mr. Walter Kälin, Ms. Zonke Zanele Majodina,

Ms. Iulia Antoanella Motoc, Mr. Gerald L. Neuman, Mr. Michael O’Flaherty, Sir Nigel Rodley, Mr.

Fabian Omar Salvioli, Mr. Marat Sarsembayev, Mr. Krister Thelin and Ms. Margo Waterval.

Pursuant to rule 90 of the Committee’s rules of procedure, Committee member Mr. Rafael Rivas

Posada did not participate in the adoption of the present decision.

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The facts as submitted by the authors

2.1

The authors were all employees of the National Training Service (SENA), which is

part of the Ministry of Social Protection, and were working in different centres and regional

offices around the country. As career public servants, their tenure was guaranteed except in

the event of unsatisfactory performance, misconduct or other legally established grounds.

2.2

Decrees Nos. 248, 249 and 250, issued on 28 January 2004, made changes to the

structure of SENA that entailed the abolition of the authors’ posts and the adoption of a

new staffing structure. The decrees established that the posts available within the new

structure would be assigned by the Director General of SENA on the basis of internal

organizational considerations, service requirements and the organization’s plans and

programmes.

2.3

On 28 February 2004, 70 public servants, including a number of the authors,

resolved to establish the Union of Employees and Workers of SENA (SINDETRASENA).

Several other authors joined the union in the days that followed. On 1 and 4 March 2004,

the Cundinamarca Regional Directorate of Collective Labour Issues of the Ministry of

Social Protection and the Human Resources Division of the Directorate General of SENA

were informed of the union’s establishment and approval was sought for the union’s

registration in the trade union register. Between 3 March and 23 April 2004, the union

provided the Ministry of Social Protection with a list of its members. According to the

authors, under Colombian law the union’s founders and members benefited from trade

union privileges (fuero sindical) until the union was registered, for a maximum period of

six months. For this reason, they could not be dismissed, demoted or transferred without

prior court approval.

2.4

On 19 March 2004, the Inspectorate of the Labour, Employment and Social Security

Unit of the Cundinamarca Regional Labour Directorate of the Ministry of Social Protection

(“the Inspectorate”) issued a statement of objections to the registration application

submitted by the union, accompanied by a list of clarifications and corrections that needed

to be made to its internal rules. These included a request to amend one of the internal rules

to provide that the national assembly of delegates should meet at least once every six

months, as established by law. Also included was a reminder that the registration

application must be accompanied by a copy of the internal rules authenticated by the

secretary of the executive board. The trade union was given two months to make the

corresponding corrections.

2.5

On 26 April 2004, the Director General of SENA informed the authors that their

posts had been abolished and that they had not been allocated positions within the new

staffing structure. Also on 26 April 2004, the Ministry of Social Protection rejected the

application for the union’s registration in the trade union register, stating, in its decision,

that the union’s registration had been requested after the date of the decrees announcing the

reorganization of SENA and its new staffing structure and that, by introducing

administrative restrictions and future obligations for the organization, it would cause

unjustified harm to the organization. The decision also stated that the right to freedom of

association was not absolute and that it should not be safeguarded in this case, especially

since its purpose was being distorted with the sole aim of securing job stability and

impeding the reorganization.

2.6

On 17 May 2004, the union filed a request for review of, and in the alternative an

appeal against, the decision to refuse registration issued on 26 April 2004. On 29 June

2004, the Ministry of Social Protection upheld the contested decision.

2.7

In an injunction (tutela) issued on 8 July 2004, Bogotá Circuit Criminal Court No.

13 ordered the annulment of the decision to refuse the union’s registration.

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2.8

On 22 July 2004, in accordance with the injunction ruling, the Inspectorate issued a

further statement regarding the registration application and again denied the union’s

registration.

2.9

On 12 August 2004, a request for review and, in the alternative, an appeal against

the decision to refuse registration issued on 22 July 2004 were filed with the Ministry of

Social Protection. On 16 September 2004, the Ministry granted the appeal request and

referred the case to the Coordinating Council of the Ministry’s Labour, Employment and

Social Security Unit (“the Coordinating Council”).

2.10

On 25 November 2004, the Coordinating Council upheld the decision to refuse

registration, indicating that the relevant authority had rejected the application for union

registration on 26 April 2004 because the union’s internal rules contained provisions

contrary to those of the Substantive Labour Code.

Communication No. 1822/2008

2.11

The authors — J.B.R., L.M.O.C., A.M.A.R., G.E.O.S. and B.E.L. — worked as

secretaries at the regional office of SENA in the city of Cali in Valle del Cauca department.

2.12

On 3 May 2004, they submitted to the Directorate General of SENA a request for

review of the administrative act abolishing the posts they occupied within the organization.

They claimed that their dismissal was arbitrary, was not based on any technical studies,

failed to respect their right to equal treatment and their status as career public servants, and

arbitrarily favoured other persons in similar situations who were assigned to other posts.

Furthermore, since, as founders or members of the union, they benefited from trade union

privileges, their dismissal without prior court approval was in direct violation of their right

to freedom of association and their right to exercise the corresponding activities. On 22

June 2004, the Directorate General of SENA ruled that, in accordance with its Decree No.

250, requests for review through government channels were not permissible since the

contested act was established by peremptory decree of the President of the Republic in

exercise of his powers.

2.13

On 22 and 23 June 2004, the authors filed administrative complaints with the

Directorate General of SENA, citing a violation of trade union privileges and seeking

reinstatement to their posts and the payment of back wages. On 14 July 2004, the

Directorate General of SENA informed Ms. O.S. that since the trade union was established

on 28 February 2004, after the decrees announcing the reorganization of SENA had been

issued, “it can be concluded that the goal sought in establishing a new trade union was not

to exercise the constitutional right to freedom of association, but to secure job stability in

the reorganization process, in clear abuse of this right. This was the Ministry of Social

Protection’s understanding and for this reason … it decided: Not to enter the trade union

organization named … ‘SINDETRASENA’ in the trade union register.”

2.14

In the meantime, the authors petitioned the labour courts for reinstatement on the

grounds of trade union privileges; their petition was found to be admissible on 23 August

2004. On 21 June 2005, Bogotá Circuit Labour Court No. 5 dismissed the request on the

grounds that the Ministry of Social Protection had refused to register the union on 22 July

2004, that the refusal had subsequently been upheld by all the administrative authorities,

and that it was not proven that the employer had been notified of the union’s establishment

and provided with a comprehensive list of founders and members. The authors appealed

against the ruling. On 15 September 2005, Bogotá High Court upheld the lower court’s

ruling. While acknowledging that the employer was notified of the union’s establishment

and had received a list of founders and members, the High Court ruled that, since the

union’s registration had been refused on the grounds that the prerequisites established for

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GE.12-45262

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such purpose were not met, the union could not function or exercise any of its rights and the

authors were not therefore protected by trade union privileges.

Communication No. 1823/2008

2.15

Ms. S.M.R.M. worked as an assistant in the Guajira regional office of SENA until

29 April 2004.

2.16

On 5 May 2004, she filed with the Directorate General of SENA a request for

review of the administrative act that abolished the post she occupied on the grounds that her

dismissal was arbitrary, was not based on any technical studies, failed to respect her right to

equal treatment and her status as a career public servant, and arbitrarily favoured other

persons in similar situations who were assigned to other posts. Furthermore, since, as a

member of the union, she was protected by trade union privileges, her dismissal without

prior court approval was in direct violation of her right to freedom of association and her

right to exercise the corresponding activities. On 21 July 2004, she lodged an administrative

complaint with SENA.

2.17

On 20 August 2004, the author, together with three other SENA employees, applied

for reinstatement on the grounds of trade union privileges. On 25 September 2006, Bogotá

Circuit Labour Court No. 10 dismissed the author’s application, stating that the action was

time-barred since the law established a maximum period of two months for filing claims

invoking trade union privileges. The author appealed against the ruling. On 30 April 2007,

Bogotá High Court ruled that the action was not time-barred but dismissed the application

nonetheless. The High Court found that since the complainants were well informed about

the SENA reorganization and other trade unions were active at the time the new union was

formed, the establishment of SINDETRASENA had to be viewed as an attempt to secure

job stability and protect its members from any redundancies that might result from the

reorganization, and that this constituted an abuse of the right to freedom of association.

Communication No. 1824/2008

2.18

The authors — A.D.O., E.S.C., F.O.Q. and G.G.R. — worked as secretaries in the

SENA regional office in the city of Cali in Valle del Cauca department.

2.19

On 3 May 2004, they filed with the Directorate General of SENA a request for

review of the administrative act abolishing the posts that they occupied on the grounds that

their dismissal was arbitrary, was not based on any technical studies, failed to respect their

right to equal treatment and their status as career public servants, and arbitrarily favoured

other persons in similar situations who were assigned to other posts. Furthermore, since, as

founders or members of SINDETRASENA they were protected by trade union privileges,

their dismissal without prior court approval was in direct violation of their right to freedom

of association and their right to exercise the corresponding activities. On 22 and 28 June

2004, the Directorate General of SENA ruled that, in accordance with its Decree No. 250,

requests for review through government channels were not permissible since the contested

act was established by peremptory decree of the President of the Republic in exercise of his

powers.

2.20

On 22, 23 and 25 June 2004, the authors filed administrative complaints with the

Directorate General of SENA citing a violation of trade union privileges and seeking

reinstatement to their posts and the payment of back wages. On 14 July 2004, the

Directorate General of SENA informed Ms. D.O. that since the trade union was established

on 28 February 2004, after the decrees concerning the reorganization of SENA had been

issued, “it can be concluded that the goal sought in establishing a new trade union was not

to exercise the constitutional right to freedom of association, but to secure job stability in

the institutional reorganization, in clear abuse of this right. This was the Ministry of Social

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Protection’s understanding and for this reason … [the Directorate General of SENA]

resolved: Not to enter the trade union organization named … ‘SINDETRASENA’ in the

trade union register.”

2.21

On 20 August 2004, the authors’ request for reinstatement on the grounds of trade

union privileges was accepted. On 19 January 2005, Bogotá Circuit Labour Court No. 3

granted protection (amparo) on the grounds of trade union privileges and ordered the

authors’ reinstatement to their posts and the payment of back wages, since they had been

dismissed without prior court approval, as required in application of legal provisions

concerning workers protected by trade union privileges. SENA appealed against the ruling.

On 31 May 2005, Bogotá High Court overturned the lower court’s ruling and dismissed the

authors’ application. The High Court found that since the trade union was formed after the

promulgation of the decree announcing the abolition of posts in the reorganization of SENA

and therefore after the authors became aware of this fact, the sole goal pursued in

establishing the new union was to secure job stability for its members and prevent the

employer from implementing the decision taken previously, and that this constituted an

abuse of the right to freedom of association.

Communication No. 1825/2008

2.22

The authors — E.M.C.B., M.C.P.J. and R.S.S.N. — worked as a clerk, assistant and

secretary, respectively, in the Nariño regional office of SENA.

2.23

On 24 June 2004, they filed administrative complaints with the Directorate General

of SENA citing a violation of trade union privileges and seeking reinstatement to their posts

and the payment of back wages.

2.24

On 24 August 2004, the authors filed a request for reinstatement on the grounds of

trade union privileges since they had been dismissed without prior court approval. On 12

July 2005, Pasto-Nariño Circuit Labour Court No. 1 dismissed the request on the grounds

that the Ministry of Social Protection had refused the union’s registration on 22 July 2004,

that the refusal had subsequently been upheld by all the administrative authorities and that,

since the union did not therefore exist, it could not be invoked as a source of trade union

privileges. The authors filed an appeal against the ruling with Pasto High Court. On 24

August 2005, the High Court ruled that the action was time-barred.

Communication No. 1826/2008

2.25

Mr. G.M.V. and Ms. N.C.P. worked as a clerk and assistant, respectively, in the

SENA regional office in Cali in Valle del Cauca department.

2.26

On 3 May 2004, they filed with the Directorate General of SENA a request for

review of the administrative act abolishing the posts they occupied on the grounds that their

dismissal was arbitrary, was not based on any technical studies, failed to respect their right

to equal treatment and their status as career public servants, and arbitrarily favoured other

persons in similar situations who were assigned to other posts. Furthermore, since, as

members of SINDETRASENA, they were protected by trade union privileges, their

dismissal without prior court approval was in direct violation of their right to freedom of

association and their right to exercise the corresponding activities. On 28 June 2004, the

Directorate General of SENA ruled that, in accordance with its Decree No. 250, requests

for review through government channels were not permissible since the contested act was

established by peremptory decree of the President of the Republic in exercise of his powers.

On 25 June 2004, they filed administrative complaints with the Directorate General of

SENA, citing a violation of trade union privileges and seeking reinstatement to their posts

and the payment of back wages. However, both claims were dismissed.

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2.27

The authors then submitted a request for reinstatement on the grounds of trade union

privileges. On 7 October 2005, Bogotá Circuit Labour Court No. 8 dismissed the request on

the grounds that the Ministry of Social Protection had refused the union’s registration on 22

July 2004, that the refusal had subsequently been upheld by all the administrative

authorities and that, since the union did not therefore exist, trade union privileges could not

be granted to its founders and members. Moreover, the purpose of privileges was to

safeguard the existence of trade unions and the right to freedom of association and not

under any circumstances to preserve workers’ job stability. On 11 October 2005, the

authors appealed against the ruling. On 31 January 2006, Bogotá High Court upheld the

lower court’s ruling.

2.28

The authors maintain that their communications comply with the admissibility

criteria established under the Optional Protocol.

The complaint

3.1

The authors claim that the facts described constitute a violation of article 2,

paragraphs 2 and 3; article 14, paragraph 1; article 22, paragraph 1; and article 26 of the

Covenant.

3.2

With regard to the right to freedom of association recognized in article 22, paragraph

1, of the Covenant, the authors maintain that the refusal by the Ministry of Social Protection

to enter the union in the trade union register was arbitrary and in violation of their right to

form and/or join the organization or organizations of their choice. The margin of discretion

accorded to the State party cannot be extended so far as to prevent the authors from

choosing which trade union or unions to join or from establishing or becoming members of

a new union. Furthermore, it assumes compliance with legally established safeguards such

as the trade union privileges of founders and members of new trade unions – precisely the

safeguard that was violated when SENA decided to dismiss the authors without prior court

approval. The authors further maintain that the purpose of the trade union is to safeguard

members’ interests and that preserving members’ jobs is a legitimate interest. They assert

that, according to the Constitutional Court, trade union privileges are established by the

simple fact of the organization’s foundation and must be respected by the employer while

the registration process is under way, beginning from the date of notification of

establishment and submission of the list of founders and members. Lastly, they contend that

the legally established restrictions authorized in article 22, paragraph 2, of the Covenant are

not applicable in this case, especially since paragraph 3 of the same article, invoking the

relevant International Labour Organization (ILO) Convention, establishes heightened

protection for freedom of association.

3.3

The authors maintain that the State party violated the right to equality before the

courts and the right to a fair and public hearing by an independent and impartial tribunal, as

established in article 14, paragraph 1, read in conjunction with article 2, paragraphs 1, 2 and

3. The court decisions that denied privileges in the context of the requests for reinstatement

on the grounds of trade union privileges run counter to the law and previous Constitutional

Court decisions, amount to a denial of justice and implicitly constitute a manifest violation

of due process, judicial safeguards and equality before the law. The Ministry of Social

Protection’s erroneous interpretation of the injunction (tutela) issued on 8 July 2004,

resulting in its refusal to register the union, was applied in violation of the right to due

process, since it was based on a non-existent inconsistency between certain provisions of

the union’s internal rules, the Constitution and the law. It failed to take account of the fact

that an injunction could have the effect of preventing the union from complying with

requirements, extemporaneously reinstated a decision overturned by the court that issued

the injunction, and allowed the employer to oppose the union’s registration and act as judge

and party in the proceedings even though, since SENA was affiliated to the Ministry of

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Social Protection, the Ministry should not have been permitted to take decisions concerning

the registration of a union composed of SENA employees.

3.4

In relation to the allegations of a violation of article 26 of the Covenant, the authors

contend that the refusal by the Ministry of Social Protection to register the trade union

cannot be justified under any of the specific grounds for refusal of registration established

in Act No. 584. It therefore constituted a violation of the authors’ right to join the union of

their choice and, by extension, of the State party’s obligations under article 26 of the

Covenant, since the authors were not granted the protection that the Constitution and the

law afford workers for the establishment of trade unions. They add that the Constitutional

Court has ruled in similar cases that actions of this kind on the part of an administrative

authority constitute a violation of the right to equality and non-discrimination.

3.5

The authors maintain that freedom of association is a human right that should be

interpreted in light of the principles underlying the guarantee of fundamental rights and a

restrictive interpretation of any limitation or prohibition. The ILO Governing Body’s

Committee on Freedom of Association and Committee of Experts on the Application of

Conventions and Recommendations indicate that responsibility for the resolution of legal

disputes concerning a restriction of the right to freedom of association lies with an

independent authority – meaning, in the authors’ opinion, the judiciary.

State party’s observations on admissibility

4.1

The State party submitted its observations on the admissibility of the

communications in notes verbales dated 3 February 2009.

4.2

The termination of the authors’ employment was a consequence of the

reorganization of SENA which, as SENA is a State institution operating at the national

level, was authorized by Act No. 790 of 2002. The posts occupied by the authors were

abolished in the reorganization, in accordance with legal procedures and respecting the

acquired rights established by law. The State party maintains that the constitutionality of

Act No. 790 was verified by the Constitutional Court, which declared the Act enforceable

in a ruling dated 1 October 2003. The Act, together with Act No. 489 of 1998, authorizes

the abolition or merger of non-essential posts, in accordance with official labour

regulations.

4.3

Decree No. 248 amending the nomenclature and classification of public service jobs

within SENA, Decree No. 249 amending the organizational structure of SENA, and Decree

No. 250 on workforce rationalization at SENA, were issued on 28 January 2004 following

technical studies and after completion of the relevant legal processes. Subsequently, as

required by law, the Director General of SENA issued decisions Nos. 647, 658 and 677 of

22, 23 and 26 April 2004, respectively, allocating posts to SENA staff. In deciding which

SENA public servants should be given posts in the new organizational structure and which

should be made redundant because their posts had been abolished, the Directorate General

took into account objective, legally established criteria, such as the requirement to give

priority to staff close to retirement, pregnant women and mothers and fathers who are heads

of household. Any positions subsequently still available were assigned to career public

servants who did not meet any of the aforementioned criteria.

4.4

The State party maintains that on 28 February 2004, after the publication of Decrees

Nos. 248, 249 and 250 on the reorganization of SENA, a group of public servants who

believed their posts to be among those due to be abolished formed the new trade union

SINDETRASENA with the sole aim of securing the job stability afforded by trade union

privileges, and that this constitutes an abuse of the right to form a trade union. It is incorrect

to maintain that unionized workers were dismissed, since on the date on which the decrees

concerning the reorganization and the abolition of jobs were issued, neither SENA nor any

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GE.12-45262

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other public body was aware that this trade union was going to be established. If the intent

of the public servants concerned had been simply to join a trade union in order to exercise

trade union rights, they could have joined one of three unions already active in SENA that

were duly registered with the Ministry of Social Protection – the Union of Public

Employees of SENA (SINDESENA), the Union of Public Sector Workers

(SINTRASENA), and the Union of Employees and Workers of SENA (SETRASENA).

4.5

In addition, the trade union formed by these workers did not meet the legal

prerequisites for registration in the trade union register of its constituent instrument, internal

rules and executive board, as was established by the Ministry of Social Protection in its

decision to deny trade union registration dated 22 July 2004. In similar cases the

Constitutional Court has found that forming trade unions for purposes other than to

guarantee the right to freedom of association, including for the purpose of obtaining trade

union privileges and preventing termination of employment, is unconstitutional.1

4.6

The communication is inadmissible due to a failure to exhaust domestic remedies, as

provided for in article 2, paragraph 2 (b), of the Optional Protocol. In the action for

reinstatement on the grounds of trade union privileges in which the authors claimed to have

been unilaterally dismissed without prior court approval, in rulings issued on 31 May 2005

(1824/2008), 15 September 2005 (1822/2008), 31 January 2006 (1826/2008) and 30 April

2007 (1823/2008), Bogotá Judicial District High Court ordered their reinstatement either to

their previous post or to a similar one and the payment of all back wages due since their

dismissal. However, in a ruling on appeal issued on 24 August 2005 (1825/2008), Pasto

High Court dismissed the applications in accordance with the law and without violating any

of the authors’ rights. Subsequently, J.B.R. and B.E.L. (1822/2008) and A.D.O., E.S.C.,

F.O.Q. and G.G.R. (1824/2008) applied to the Administrative Court for restitution of their

rights and annulment of the decision that removed them from their posts, seeking their

reinstatement within the workforce. These applications were under consideration at the time

the State party submitted its observations. E.M.C.B. and R.S.S.N. (1825/2008) filed similar

applications, which were dismissed by the Administrative Court on 18 May and 13

November 2007 respectively. Subsequently, in September 2008, the latter application was

upheld on appeal.

4.7

If the authors considered the decisions issued by the high courts of Bogotá and Pasto

judicial districts to be in violation of their right of access to justice, due process and

equality before the law and their right to freedom of association, they could have applied

for an injunction (tutela) or for protection of their constitutional rights (amparo).2

Injunction proceedings are an appropriate and effective remedy for seeking protection of

the aforementioned rights.3

4.8

The communication is inadmissible even if the authors are considered to have

exhausted all domestic remedies since it is an attempt to use an international body as a level

of jurisdiction (“court of fourth instance”) in addition to those available under the domestic

legal system. The State party recalls that the Committee cannot substitute its views for

decisions issued by the domestic courts after evaluating the facts and the evidence of a

1 The State party refers to Constitutional Court ruling T-077 of 5 February 2003.

2 Constitution, article 86: “Any person may apply for an injunction (tutela) to claim before the courts,

at any time and in any place, through a preferential and summary proceeding instituted by themselves

or another party acting on their behalf, immediate protection for their fundamental constitutional

rights whenever any of those rights are violated or threatened by the action or omission of any public

authority …”.

3 The State party refers to Constitutional Court rulings T-31 of 2001, T-029 of 2004, and T-1108 of

2005, which involved applications for amparo in relation to the right to freedom of association and

the right to trade union protections.

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given case unless it is proven that the conduct of the courts was manifestly arbitrary or

amounted to a denial of justice.

5.

The Committee asked the authors to submit their comments regarding the State

party’s observations on the admissibility of the communication on 9 February 2009, 11

February 2010, 20 December 2010 and 4 August 2011 but has received no information in

this connection.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any claim contained in a communication, the Human Rights

Committee must decide, in accordance with rule 93 of its rules of procedure, whether the

communication is admissible under the Optional Protocol to the Covenant.

6.2

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.

6.3

With regard to the requirement to exhaust domestic remedies, the Committee notes

the State party’s contention that the communications do not meet the requirements of article

5, paragraph 2 (b), of the Optional Protocol and should therefore be declared inadmissible.

The Committee notes the information provided by the State party in relation to the

applications for annulment and restitution of rights that some of the authors filed with the

Administrative Court to challenge the decision that removed them from their posts and

which were under consideration when the State party submitted its observations on 9

February 2009. The Committee also notes the State party’s contention that the

communications should be declared inadmissible on the grounds of failure to exhaust

domestic remedies since, after the High Courts of Bogotá and Pasto judicial districts issued

rulings dismissing the applications for reinstatement on the grounds of trade union

privileges, the authors could have initiated either injunction (tutela) or amparo proceedings.

According to the State party, injunction proceedings are an appropriate and effective

remedy for seeking protection for the rights of access to justice, due process and equality

before the law and the right to freedom of association. The Committee notes that the

authors did not contest the State party’s observations regarding the suitability and efficacy

of injunction proceedings in their case.

6.4

The Committee recalls that for the purposes of article 5, paragraph 2 (b), of the

Optional Protocol, in addition to ordinary judicial and administrative appeals, the authors

should also avail themselves of all other judicial remedies, in order to meet the requirement

of exhaustion of all available domestic remedies, insofar as such remedies appear to be

effective in the given case and are de facto available to them.4 Therefore, in the absence of

an explanation from the authors to demonstrate that, in their case, this remedy was not

available or was not effective, the Committee concludes that the authors have not exhausted

all domestic remedies.

4 See communication No. 433/1990, A.P. v. Spain, decision on admissibility adopted on 25 March

1994, para. 6.2; communication No. 1003/2001, P.L. v. Germany, decision on admissibility adopted

on 22 October 2003, para. 6.5; communication No. 1188/2003, Riedl-Riedenstein v. Germany,

decision on admissibility adopted on 2 November 2004, para. 7.2; communication No. 1747/2008,

Marielle Boisvert v. Germany, decision on admissibility adopted on 19 March 2010, para. 7.3.

CCPR/C/105/D/1822,1823,1824,1825&1826/2008

GE.12-45262

11

7.

The Committee therefore decides:

(a)

That the communications are inadmissible under article 5, paragraph 2 (b), of

the Optional Protocol;

(b)

That this decision shall be transmitted to the State party and to the authors.

[Adopted in English, French and Spanish, the Spanish text being the original version.

Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s

annual report.]