Inadmissibility decision; Substantive issues: discrimination on other grounds effective remedy minorities; Articles: 27; Procedural issues: exhaustion of domestic remedies victim status reservations; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
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thirty-seventh session)
Submitted by: T. K. (name deleted]
Alleged victim: The author
State party concerned: France
Date of somnunication: 12 January 1987 (date of initial letter)
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 8 November 1989,
Adopts the following:
Decision on admigsibility*, #*
1. The author of the communication (initial letter dated 12 January 1987 and a
further letter dated 30 June 1987) is T. K., a French citizen of Breton ethnic
origin, writing on his own behalf and in his capacity as president of the Unvaniezh
Ar Galennerien Breshoneg (UAGB, Union des Enseignants de Breton). He was born
in 1937 in Brittany and is employed as a professor of philosophy and of the Breton
language. He alleges violations by France of articles 2, 16, 19, 26 and 27 of the
Covenant.
2.1 The author states that the Tribunal Administratif de Rennes has refused to
consider a case which he submitted on behalf of the UAGB in the Breton language on
7 November 1984. In this case, the author sought the recognition of the license
for the association that he is heading. In reply to an inquiry written in French
and Breton, the Tribunal answered that the case had not been registered because it
was not written in French. A subsequent letter of complaint to the French Minister
of Justice has allegedly remained unanswered. In support of his case, the author
encloses copies of two decisions, one from the Tribunal Administratif£ de Rennes
“ Pursuant to rule 65 of the Committee's rules of procedure,
Ms. Christine Chanet did not participate in the examination of the communication or
in the adoption of this decision,
we The texts of two individual opinions submitted by Mrs. Rosalyn Higgins
and Mr. Bertil Wennergren are appended.
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dated 21 November 1984, the other from the Conseil d'Etat dated 22 November 1985,
both stating that a complaint drafted in the Breton language should not be
registered. Such decisions, according to the author, constitute discrimination on
the ground of language, in contravention of article 2, paragraph 1, of the
Covenant. The author further claims that the State party has violated article 2,
paragraph 2, with regard to legislative or other measures necessary to give effect
to the rights recognised in the Covenant, article 2, paragraph 3, with regard to
effective remedies, article 16 with regard to the right to recognition everywhere
as @ person before the law, article 19, paragraph 2, with regard to freedom of
expression, article 26 with regard to equality before the law without:
discrimination on any ground, and article 27 with regard to the right to use one's
own language.
2.2 Concerning the question of the exhaustion cf domestic remedies, the author
states that the complaint before the Tribunal Administratif£ de Rennes was not even
registered and that the Minister of Justice has not responded to hie written
complaint. The author further states that he has not submitted the same matter to
another procedure of international investigation or settlement.
3. Without tranemitting the communication to the State party, the Human Rights
Committee requested the author, by decision of 9 April 1987 under rule 91 rf‘the
rules of procedure, to clarify (a) whether he claimed, as an individual, to be
personally affected by the alleged violations of the Covenant by the State party,
or whether he claimed, in his capacity as President of an organisation, that the
organization was the victim of the alleged violations; and (b) whether he
understood, read and wrote French. By letter dated 30 June 1987, the author
replied that he had initially intended to submit the communication on bohal£ of the
organisation, although he maintained that he was also directly affected Ly the
events described in his initial communication. He further stated that he
understands, reads and writes French.
4. By further decision of 20 October 1988, the Working Grerup of tho Human Rights
Committee transmitted the communication to the State party, requesting it, under
rule 91 of the rules of procedure, to provide inrormation and cbservations relevant
to the question of admissibility. The author was requested, under rule 91, (a) to
specify in which way he claimed to have been denied the right to recognition as a
person before the law, (b) to which extent and in which context he claimed that his
freedom of expression had been curtailed and (c) to substantiate his allegation
that French citizens of French mother tongue and those of Breton mother tongue are
not equal before the law.
5. In his reply, dated 13 January 1989, to the Working Group's questions, the
author claims that French citizens of French mother tongue and those of Breton
mother tongue are not equal before the law because the former can exprese
themselves in their mother tongue before the tribunals while the latter cannot.
While there exists a "Secrétariat A la francophonie", a similar inetitution has not
been created in defence of regional languages other than Frerch. Because the
Government refuses to recognize the Breton language, those who use it daily are
forced to abandon itr use or to forgo their right to freely express themselves.
The author adds that the violation of his freedom of expression is manifest in that
the Administrative Tribunal refused to register a complriint submitted in Breton on
the ground that its content was unintelligible, thereby rufusing to recognise the
validity of a complaint submitted in a local language and denying the citisens the
use of their own language in court. Finally, the author affirms that he is barred,
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as a french citizen of Breton mother tongue, from access to courts, ag the judicial
authorities do not authorise him to submit complaints in his mother tongue,
6.1 In its submiasion under rule 91, dated 15 January 1989, the State party argues
that the communication ia inadmissible on the ground of non-exhaustion of domestic
remedies and that some of the author's claims are incompatible with the provisions
of the Covenant. The State party recalls that the author did not contest, within
the delays prescribed by law, the decision of the Administrative Tribunal not to
register his complaint. His written complaint to the Minister of Justice that he
had euffered a denial of justice cannot, in the State party's opinion, be
considered to be a judicial remedy. Nor has he appealed to any other judicial
instance. His communication thus fails to meet tha requirements of article 5,
paragraph 2 (b), of the Optional Protosol.
6.2 As to the alleged violation of article 2 of the Covenant, the State party
argues that this article can never be violated directly and in isolation. A
violation of article 2 can only be admitted to the extent that other rights
recognived by the Covenant have been violated (paragraph 1) or if necessary steps
to give effect to Covenant rights have not been taken (paragraph 2). A violation
of article 2 can only be the corollary of another violation of a Covenant right.
The State party contends that the author did not base his argumentation on any
precise factc, and that he cannot demonstrate that he has been a victim of
discrimination in his relations with the judicial authorities. It was up to him to
use the remedies which were available to him.
6.3 With respect to the alleged violation of article 16, the State party notes
that the author hae not put forth any specific complaint and dismisses his
interpretation of this provision as abusive. Thus, the standing of the author in
the administrative procedure has never been at issue; what was refused was the
possibility to submit his case in Braton, as
"in the absence of legislative provision to the contrary, the language of
procedure in French courts is the French language" (judgment of the Rennes
Administrative Tribunal, 21 November 1984, Quillévéré case).
6.4 Concerning the alleged violation of article 19, paragraph 2, the State party
submite that the author has not substantiated how his freedom of expression has
been violated. On the contrary, his letter to the Minister of Justice demonstrates
that he had ample opportunity to present his position. Furthermore, “freedom of
expression" within the meaning of article 19 cannot be construed to encompass the
right of French citizens to use Breton before French administrative tribunals.
6.5 Ae to article 26, the State party rejects the author's contention that the
refusal by the Administrative Tribunal cf Rennes of a complaint submitted in Breton
constitutes discrimination on grounds of language. On the contrary, the
authorities based themselves on generally applicable rules, which are intended to
facilitate the administration of juntice by enabling the tribunals <o rule on the
original submission (without having to resort to translation).
6.6 Finally, the State party recalls that upon ratification of “he Covenant, the
French Covernment entered a reservatiun with respect to article 27: "In the light
of articls 2 of the Constitution of the French Repw’.lic, the French Government
declares that article 27 is not appliceble so far as the Republic is concerned."
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7.1 In his comments, dated 23 May 1989, the author rejects the State party's
contention that the communication is inadmissible because of non-exhaustion of
domestic remedies. Thus, he submits that his letter to the Minister of Justice was
meant to be an appeal against the decision of the Administrative Tribunal not to
register his complaint. Moreover, the State party has failed to indicate to the
Committee exactly what kind of remedies would be open to him. To the arthor, this
failure is easily explained, as the State party itself must be well aware that
remedies are non-existent, once the court of first instance has :1efusec to register
@ complaint submitted in Breton. Every subsequent complaint submitted in Breton is
bound to suffer the same fate, regardless of which judicial instance is the
addressee.
7.2 The author reaffirms that violations of his rights under articles 16, 19, 26
and 27 entail ipso facto a violation of article 2, paragraphs 1 and 2. He adds
that several legislative proposals have deliberately been ignored by successive
French Governments, although they would have brought France at least partially into
compliance with article 2. With respect to article 16, the author qualifies the
State party's interpretation as restrictive if not discriminatory. He expresses
surprise at its argument that his standing bofore the court was never at issue
despite the fact that his complaint was not even registered, and contends that the
refusal of his complaint necessarily meant a denial of standing. Furthermore, he
argues that the Covenant does not link the issue of legal personality to the use,
in court, of any specific language, and that in the absence of specific legal rules
confirming the use of French as the official language in judicial proceedings, the
use of Breton must be considered to be permissible.
7.3 With respect to article 19, paragraph 2, the author contends that freedom of
expression cannot be limited to freedom to express oneself in French, and that
freedom of expression for citisens of Breton mother tongue can only mean the
freedom to express themselves in Breton. Furthermore, the refusal of the
Administrative Tribunal to register his complaint is said to have been intended to
restrict his freedom of expression, although the limitations laid down in
paragraph 3 of article 19 are said to be inapplicable.
7.4 The author dismisses the State party's arguments concerning an alleged
violation of article 26 and claims that. a proper administration of justice would
not rule out the use of Breton in court. He recalls that several States, including
Switserland and Belgium, allow the use of several languages before their courts and
do not force their citizens to abandon the use of their mother tongue. The refusal
to register his complaint, according to the author, constitutes discrimination on
the ground of language, since French citizens of Breton mother tongue do not
benefit from the same procedural guarantees before the tribunal as French citisens
of French mother tongue.
7.8 Finally, the author indicates that France did not enter a "reservation" with
respect to article 27 but contented itself with making a mere “declaration”. The
author points out that draft legislation supported by many parliamentarians
acknowledges the various languages spoken in France as testimony to the singular
character of a region or a community. To the author, there can be no doubt that
the Breton community constitutes a linguistic minority within the meaning of
article 27, entitled to enjoy the right to use its own language, including in the
courts.
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8.1 Before considering any claims contained in a communication, the Human Rights
Committee must, pursuant to rule 87 of its rules of procedure, decide whether or
not it is admissible under the Optional Protocol to the Covenant.
8.2 Article 5, paragraph 2 (b), of the Optional Protocol precludes the Committee
from considering any communication by an individual who has failed to exhaust all
available domestic remedies. This is a general rule, which applies unless the
remedies are unreasonably prolonged, or the author of a communication has
convincingly demonstrated that domestic remedies are not effective, i.e. do not
have any prospect of success.
6.3 On the basis of the information before the Committee, there are no
circumstances which would absolve the author from attempting to pursue all domestic
remedies. He has not been criminally prosecuted but seeks to initiate proceedings
before an administrative court to establish that he has been denied rights
protected by the Covenant. The purpose of article 5, paragraph 2 (b), of the
Optional Protocol is, inter alia, to direct possible victims of violations of the
provisions of the Covenant to seek, in the first place, satisfaction from the
competent State party authorities and, at the same time, to enable States parties
to examine, on the basis of individual complaints, the implementation, within their
territory and by their organs, of the provisions of the Covenant and, if necessary.
remedy the violations occurring, before the Committee is seized of the matter.
8.4 It remains to be determined whether recourse to the French courts must be
considered an unavailable or ineffective remedy, given that the author must use
French to establish his claim that it is a violation of his rights under the
Covenant to have to use French, rather than Breton, in legal proceedings. The
Committee observes that the matter of the exclusive use of French to institute
proceedings in courts is the issue to be examined at first instance by the French
judicial organs and that, under the applicable laws, this can be done only by using
French. In view of the fact that the author has demonstrated his proficiency in
French, the Committee finds that it would not be unreasonable for him to submit his
claim in French to the French courts. Further, no irreparable harm would be done
to the author's substantive case by using the French language to pursue his remedy.
8.5 The author has also invoked article 27 of the Covenant claiming that he has
been a victim of a breach of its provisions. Upon accession to the Covenant, the
French Government declar-:d that “in the light of article 2 of the Constitution of
the French Republic, ... article 27 [of the Covenant] is not applicable so far as
the Republic is concerned". a/ This declaration has not been objected to by other
States parties, nor has it been withdrawn.
8.6 The Committee is therefore called upon to decide whether this declaration
precludes it from examining a communication alleging a violation of article 27.
Article 2, paragraph 1 (d), of the Vienna Convention on the Law of Treaties
stipulates as follows:
"'Reservation' means a unilateral statement, however phrased or named, made by
a State, when ... acceding to a treaty, whereby it purports to exclude or to
modify the legal effect of certain provisions of the treaty in their
application to that State."
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The Convention does not make a distinction between reservations and declarations.
The Covenant itself does not provide any guidance in determiaing whether a
unilateral statement made by a State party upon accession to it should have
preclusionary effect regardless of whether it is termed a reservation or
declaration. The Committee observes in this respect that it is not the formal
designation but the effect the statement purports to have that determines its
nature. If the statement displays a clear intent on the part of the State party to
exclude or modify the legal effect of a specific provision of a treaty, it must be
regarded as a binding reservation, even if the statement is phrased as a
declaration. In the present case, the statement entered by the French Government
upon accession to the Covenant is clear: it seeks to exclude the application of
article 27 to France and emphasises this exclusion semantically with the words "is
not applicable”. The statsment's intent is unequivocal and thus must be given
preclusionary effect in spite of the terminology used. Furthermore, the State
party's submission of 15 January 1989 also speaks of a French “reservation” in
respect of article 27. Accordingly, the Committee considers that it is not
competent to consider complaints directed against France concerning alleged
violations of article 27 of the Covenant.
9. The Committee therefore decides:
(a) That the communication is inadmissible under articles 2 and 5,
paragraph 2 (b), of the Optional Protocol;
(b) That this decision shall be communicated to the State party and to the
author of the communication.
Totes
g/ The reasons for the declaration are explained by the State party in its
secon! periodic report to the Human Rights Committee under article 40 of the
Covenant (document CCPR/C/46/Add.2) as follows: "Since the basic principles of
public law prohibit distinctions between citizens on grounds of origin, race or
religion, France is a country in which there are no minorities and, as stated in
the declaration made by France, article 27 is not applicable as far as the Republic
is concerned." The same explanation also appears in the initial report of France
{document CCPR/C/22/Adad.2).
APPENDIX I
Ae stated in paragraph 8.2 of the Committee's decision, article 5,
parao.aph 2 (b), of the Optional Protocol precludes the Committee from considering
any communication by an individual who has failed to exhaust all available domestic
remedies. However, in accordance with recoynised rules of international law and
eetablished jurisprudence of the. Committee, domestic remedies need not be exhausted
if they objectively have no prespect of success. In my view a remedy cannot be
deemed to be effective if under substantive national legislatio.. the claim would
inevitably be dismissed by the courts. Pursuant to urticle 2 of the Constitution
of the French Republic, France shall ensure equality of all citizens before the
law, without distinction of origin, race and religion. Of relevance in this
context is that among the prohibited grounds for distinction, this provision does
not include “language”, as does article 26 of the Covenant. In an earlier case
concerning the right to use the Breton language (C. L. D. v. France, 228/1987), it
was brought to the attention of the Committer that the Tribunal Administratif de
Rennes, by decision of 21 November 1984, had ruled as follows: “Bearing in mind
that in the apsceuce of legal provisions determining otherwise, the procedural
language before French tribunals is the French language, the document which was
submitted not in the French language and signed by M. Q. was wrongly registered as
a complaint by the tribunal's registrar." As the document had neither then nor
later been translated, the Tribunal found that it could not be considered. Q's
appeal to the Conseil d'Etat was rejected on 22 November 1985, because it had not
been written in the French language and therefore was found to be inadmissible. A
commentary on this case (Recueil Dalic; Sirey (1986), p. 71) indicates that the
Conseil d’Etat thereby established a general procedural rule, according to which
complaints to administrative courts must Se submitted in French. Taking that
precedent into account in the light of the contents of article 2 of the French
Conetitution, it follows that the remedies referred to by the State party cannot be
deemed to be effective. In my opinion, the communication siiould have been declared
admissible in so far us it may raise issues under article 26 of the Covenant.
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APPENDIX II
I agree with the decision of the Committee in so far as it refers to a
remaining requirement that local remedies be exhausted in respect of the claim
under article 26. The Conseil d'Etat has not actually ruled on the substantive
issue; rather it has decided that it will not do so unless the issue is brought
before it through an application itself in the French language. The authors, being
perfectly able to use French, could seek through a French language application a
dGefinil.ive ruling on the use of the Breton language in administrative tribunal
proceedings. While this might be unpalatable to the authors, no legal harm would
be done to their cause by adopting this course of action.
However, I am not able to agree with the findings of the Committee that it is
precluded by the French declaration of 4 November 1980 from examining the author's
Claim as it relates to article 27 of the Covenant. The fact that the Covenant does
not itself make the distinction between reservations and declarations does not mean
that no distinction between these concepts exists, so far as the Covenant is
concerned. Nor, in my view, is the matter disposed of by invocation of
article 2 (1) (a) of the Vienna Convention on the Law of Treaties, which emphasises
that intent, rather than nomenclature, is tho key.
An examination of the notification of 4 January 1982 shows that the Government
of the Republic of France was engaged in two tasks: listing certain reservations
and entering certain interpretative declarations. Thus in relation to
article 4 (1), 9, 14 and 19 it uses the phrase “enters a reservation". In other
paragraphe it declares how terms of the Covenant are in ite view to be understood
in relation to the French Constitution, French legislation, or obligations under
the European Convention on Human Rights. To note, by reference to
article 2 (1) (d) of the Vienna Convention, that it does not matter how a
reservation is phrased or named, cannot serve to turn these interpretative
Geclarations into reservations. Their content is clearly that of declarations.
Further, the French notification shows that deliberately different language was
selected to serve different legal purposes. There is no reason to suppose that the
contrasting use, in different paragraphs, of the phrase “reservation” and
"declaration" was not entirely deliberate, with its legal consequence well
understood by the Government of the Republic.
The relevant paragraph provides:
"In the light of article 2 of the Constitution of the French Republic, the
French Govornment declares that article 27 is not applicable so far as the
Republic is concerned."
Article 2 of the French Constitution provides in relevant part:
“France is a Republic, indivisible, secular, democratic and social. It shall
ensure the equality of all citisens before the law, without distinction of
origin, race or religion. It shall respect all beliefs."
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As ia noted in the decisions of the Committee, the Reports of France to the
Committee under article 40 of the Covenant have explained that the prohibition in
the Constitution of distinction on grounds of origin, race or religion means that
there are no minorities in France; and therefore article 27 does not apply. As I
believe the French notification concerning article 27 is a declaration and not a
reservation, it is in my view ultimately for the Committee to see if the
interpretation of the French Government accords with its own. The Committee has,
in relation to several States parties, rejected the notion that the existence of
minorities is in some way predicated on an admission of discrimination. Rather, it
has insisted that the existence of minorities within the sense of article 27 is a
factual matter; and that such minorities may indeed exist in States parties
committed, in law and in fact, to the full equality of all persone within its
jurisdiction. Any many States parties whose constitutione, like that of the French
Republic, prohibit discrimination, readily accept that they have minorities on whom
they report under article 27.
I therefore conclude that the declaration of the French Government, while
commanding the respectful attention of the Committee, does not accord with its own
interpretation of the meaning and scope of article 27; and does not operate as a
reservation.
The point of principle seems to me an important one. However, local remediva
would require to be exhausted as much in respect of article 27 as of article 26.
My views on the French declaration would not lead me to any different conclusion ae
to admissibility.
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