CCPR/C/37/D/222/1987

B. Communication No, 2222/1967. M, K, wv. France

(Decision of & November 1989, adopted at tha

thirty-seventh session)

Submitted by: M. K. [name deleted]

Alleged victim: The author

State party concernad: France

Rate of communication: 20 February 1987 (date of initial letter)

The Human Righta Committees, 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 20 February 1987;

further submissions dated 10 March, 29 June 1987, 28 December 1968 and 22 May 1989)

is M. K., a French citisen born in 1952, residing in Rennes, France and employed as

a teacher. He claime to be a victim of violations of articles 2, 16, 19, 26 and 27

of the International Covenant on Civil and Political Rights by France.

2.1 The author states thet he is a Breton and that his mother tongue ie Breton.

He complains that French courts have consistently refused him the right to express

himeelf in Breton, and that his right to defence in Breton and the right to freedom

of expression in Breton are not respected. His daughter allegedly does not enjoy

the right to education in Breton, and television broadcasts in Breton amount only

to one hour and a half per day, except in the summer when there are no Breton

broadcasts at all.

2.2 In more detail, the author states that the Administrative Tribunal of Rennes

refused to consider a complaint which he had submitted in Breton on 6 March 1967.

This complaint was directed against the steadfast refusal of the French tax

euthorities to write his address in Breton. Thus, the author sought to force the

tax authorities to use hig Breton address. On 6 March 1967 the Tribunal decided

that the document had to be submitted in French if it was to be considered by the

Court.

" Pursuant to rule 85 of the Committee's rules of procedure,

Ms. Christine Chanet did not participate in the examination of this communication

or in the adoption of this decision.

an The texts of two individual opinions submitted by Mrs. Rosalyn Higgins

and Mr. Bertil Wennergren are appended.

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2.3 With respect to the exhaustion of domestic remedies, the author alleges that

none are available, since French law does not recognise the right to the use of

Breton before French tribunals, nor the right to be educated in the Breton language.

3. By decision of 9 April 1987, the Human Rights Committee, without transmitting

the communication to the State party, requested the author, under rule 91 of the

rules of procedure, to clarify whether he understood and spoke French and to

indicate whether, in addition to himself, he also purported to act on behalf of his

daughter.

4.1 In his reply to the Committee's questions, dated 29 June 1987, the author

states that, although he understands and speaks French, he nevertheless does not

regard himself as sufficiently proficient in French or sufficiently acquainted with

French legal terminology to be able to draft his petition to the Administrative

Tribunal of Rennes or his communication to the Human Rights Committee without

outside assistance.

4.2 The author alleges that his complaint to the Administrative Tribunal of Rennes

should have been accepted, because article 27 recognises his right to use his own

language before the courts. Furthermore, the author claims, the Tribunal refused

his petition on the basis of a ruling that denied his legal personality (article 16

of the Covenant) and which therefore discriminated between French citisens on the

ground of their Breton national origin and language in violation of article 26 of

the Covenant.

4.3 With regard to the alleged violation of article 14, the author contends that

the right to the assistance of interpreters, stipulated in article 14,

paragraph 3 (f) of the Covenant, has always been denied to Breton-speaking French

citizens. He finally asserts that the French judicial administration simply

expects every French citizen to speak French.

5. By decision of 20 October 1988, the Working Group of the Human Rights

Committee transmitted the communication under rule 91 of the rules of procedure to

the State party, requeeting information and observations relevant to the question

of the admissibility of the communication, in particular on the effective remedies

available to the author in the specific circumstances of the case.

6.1 In its submission under rule 91, dated 15 January 1989, the State party

contests the admissibility of the communication on several grounds. With regard to

the exhaustion of domestic remedies, it argues that the author failed to exhaust

them, as required under article 5, paragraph 2 (b), of the Optional Protocol.

According to the State party, the author should have complied with the rules of

submission of the Administrative Tribunal; moreover, he retained the right to

appeal to the Conseil d'‘Etat should the Administrative Tribunal dismiss his claim.

6.2 With regard to the alleged violations of article 2, paragraphs 1 and 2, the

State party submits that such violations cannot but be the result of an

infringement of the author's rights under other articles of the Covenant. ‘The

State party adds that the author has not been able to establish such infringements.

6.3 With regard to the author's allegations that he has been denied the right to

recognition as a person before the law (article 16), the State party submits that

the author has provided no evidence in substantiation of this claim, and that the

reference to article 16 constitutes an abusive interpretation of the notion of

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“person before the law". On the contrary, the State party continues, euch right

was fully recognised to the author inasmuch as it was open to him to initiate the

procedure indicated to him by the Administrative Tribunal in its letter of

6 March 1987.

6.4 With regard to the author's allegations under article 19, paragraph 2, the

State party submits that the claim is inadmissible because he has not substantiated

his assertion to have been denied the right to freedom of expression. Furthermore,

the State party contends, such right cannot be deemed to encompass the freedom of

French citisens to use whatever language or dialect they choose before French

administrative tribunals.

6.5 As to the author's claim that he suffered discrimination on grounds of his

language, the State party submits that the refusal of the Administrative Tribunal

of Rennes to register the author's complaint was in conformity with an established

practice sanctioned by the jurisprudence of the Conseil d'Etat and destined to

facilitate the administration of justice by relieving courts from the obligation to

use translation services and allowing them to issue their decisions on the basis of

the text of the original submission. Consequently, the State party concludes, the

author cannot be deemed to have been discriminated against on account of the

application to him of a general and uniform rule.

6.6 As to the author's allegations under article 27, the State party considers

that the declaration made by it upon accession to the Covenant on 4 November 1980

excludes the Committee's competence to exanine communications concerning purported

violations of that article. The State party therefore concludes that the

communication should be declared inadmissible as incompatible with the provisions

of the Covenant.

7.1 Commenting on the State party's submission, the author, in a letter dated

22 May 1989, contends that the established jurisprudence of the Conseil d‘Etat on

the matter shows that the remedies indicated by the State party would have no

prospect of success.

7.2 The author further explains that he has been a victim of discrimination on the

ground of his mother tongue in the sense that some French citisens are allowed to

use their own language in courts while others are not. In addition, the author

claims, technical problems, such as the need for the courts to use translation

services, should not constitute an obstacle to the full enjoyment of human rights.

He refers in this context to the example of Belgium and Switserland, where

different practices prevail.

7.3 As far as article 27 is concerned, the author first noted that, upon accession

to the Covenant on 4 November 1980, France made a "declaration" but not a

“reservation”, that since France made "reservations" with regard to other articles

of the Covenant, its "declaration" with regard to article 27 should be treated

differently; secondly, that a distinct Breton ethnic and linguistic minority is

internationally recognized by sociologists and other scholarly publicists; and

thirdly, that numerous French Parliamentarians (centre, communist, socialist) have

proposed bills concerning the Breton language. Finally, the author submits that,

notwithstanding the French declaration in respect of article 27, no reservation or

declaration equivalent to a reservation has ever been made by the State party

concerning articles 2, 16, 19 and 26 of the Covenant.

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8.1 Before considering any claims contained in a communication, the Human Rights

Committee shall, in accordance with rule 87 of the 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 domestivu remedies. This is a general rule, which applies un.sss the

remedies are unreasonably prolonged, or the author of a communivativun has

convincingly demonstrated that domestic remedies are not effective, i.e. do not

have any prospect of success.

8.3 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 seised 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 pruceedings. 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. The objection raised by the author, that he is not sufficiently acquainted

with French legal terminology to prepare submissions to courts cannot be

entertained by the Committee; the same difficulty is faced by citisens in all

countries, even when using their mother tongue, and is the principal reason for

seeking professional legal assistance.

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 declared that "in the light of article 2 of the Constitution of

the French Republic, ... article 27 is not applicable so far as the Republic is

concerned." g/ This declaration has not been objected to by other States parties,

nor has it been withdrawn.

6.6 The Committee is therefore called upon to decide whether this declaration

precludes it from examining a communication slleging a violation of article 27.

Article 2, paragraph 1 (a), of the Vienna Convention on the Law of Treaties

stipulates as follows:

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“*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 provigions of the treaty in their

application to that State.”

The Convention does not make a distinction between reservations and declarations.

The Covenant itself does not provide any guidance in determining 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 ites

mature. 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 clears it seeka to exclude the application of

article 27 to France and emphasises this exclusion semantically with the words “is

not applicable". The statement'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 Human Rights 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.

Notes

a/ The reasons for the declaration are explained by the State party in its

second 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/Add.2).

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APPENDIX I

As stated in paragraph 8.2 of the Committee's decision, 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. However, in accordance with recognised rules of international law an4

established jurisprudence of the Committee, domestic remedies need not be exhausted

if they objectively have no prospect of success. In my view a remedy cannot be

deemed to be effective if under substantive national legislation the claim would

inevitably be dismissed by the courts. Pursuant to article 2 of the Constitution

of the Freach Republic, France shall ensure equality of all citisens before the

law, without distinction of origin, race and religion. Of relevance in this

context is that among the prohibited grounds for distinction, this; -ovision does

not include “Janguage", as does articie 26 of the Covenant. ifn 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 Committee that the Tribunal Administratif de

Rennes, by decision of 21 November 1984, had ruled as follows: “Bearing in mind

that in the absence 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 registored as

@ 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 19858, because it had not

been written in the French language and therefore was found to be inadr.issible. A

commentary on this case (Recueil Dalloz Sirey (1986), p. 71) indicates that the

Conseil d'Etat thereby established a general procedural rule, according to which

complaints to administrative courts must be submitted in French. Taking that

precedent into account in the light of the contents of article 2 of the French

Constitution, it follows that the remedies referred to by the State party cannot be

deemed to be effective. In my opinion, the communication should have been declared

admissible in so far as 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

iseue; 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

definitive 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 tu 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 ag 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 ies

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 the key.

An examination of the notification of 4 January 1982 shows that the Government

of the Republiu 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

paragraphs it declares how terms of the Covenant are in its 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) (dad) of the Vienna Convention, that it does not matter how a

reservation is phrased or named, cannot serve to turn these interpretative

declarat.iona 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

"deciaration" was not entirely deliberate, with its legal consequence well

understood by the Govarnmant of the Republic.

The relevant paragraph provides:

"In the light of article 2 uf the Constitution of the French Republic, the

French Government 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 citizens before the law, without distinction of

origin, race or religion. It shall respect all beliefs."

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As is noted in the decisiuns 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 ls 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 persons within its

jurisdiction. Any many States parties whose constitutions, like that of the French

Republic, prohibit discriminution, 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 t’> Committee, does not accord with its own

interpretation of the meaning and scope article 27; and does not operate as a

reservation.

The point of principle seems to me an important one. However, local remedies

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 as

to admissibility.

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