CCPR/C/39/D/195/1985

Adopted on 12 July 1990, at the thirty-ninth session)

Submitted by: William Eduardo Delgado Pées

Alleged victim: The author

State parity concerned: Colombia

Date of communication: 4 October 1985 (initial submiasion)

Date of decision on admisgibility: 4 April 1988

tee. established under article 28 of the International

Covenant on Civil and Political Ro yhce,

Meating on 12 July 1990,

its consideration of communication No. 195/1985, submitted to

the Committee by William Eduardo Delgado Pées under the Optional Protocol to the

International Covenant on Civil and Political Rights,

Having taken into account all written information made available to it by the

author of the communication and by the State party,

Adopta the following:

Views under article 5. paragraph 4. of the Optional Protocol

1, ‘The author of the communication is William Eduardo Delgado Pdées, a Colombian

national who resided in Bogoté, Colombia, at the time of submission. In May 1986

he left the country and sought political asylum in France, where he was granted

refugee status.

Background

2.1 In March 1983, the author was appointed by the Ministry of Education as a

teacher of religion and ethics at a secondary school in Leticia, Colombia. He was

elected vice-president of the teachers' union. As an advocate of "liberation

theology”, his social views differed from those of the then Apostolic Prefect of

Leticia.

2.2 In October 1983, the Apostolic Prefect sent a letter to the Education

Commission withdrawing the suprort that the Church had given to Mr. Delgado. On

10 December 1983, the Apostolic Prefect wrote t) the Police Inspector accusing

Mr. Delgado of having stolen money from a student.

2.3 On 25 Auguet 1984, the Circuit Court dismisced all charges against the author,

having established that the accusation of theft was unfounded.

2.4 On 5 February 1984, Mr. Delgado was informed that he would no longer teach

religion. Instead, a course in manual labour and handicrafts (manualidades y

artesanina). for which he had no training or experience, was assigned to him. In

order not to lose employment. altogether, he endsavoured to teach these subjects.

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2.8 On 29 May 1984, the author requested from the Ministry of Education two weeks’

leave for the period from 26 June to 10 July 1984 to attend an advanced course at

Bogoté to further his teaching qualifications. He aad other teachers were admitted

to the course on 5 July 1984, hut Mr. Delgado was subsequently denied leave. He

coneidered thie to be unjustified discrimination and decided to attend the course,

also taking into account that, as a result o* a national strike (paro nacional),

the teachers were, by decree of the Ministry of Fducation, on enforced vacation

(vacaciones forsogas).

2.6 By administrative decisions of the Ministry of Education, dated i2 July, and

11 and 25 September 1984, he was suspended from his post for 50 days, and a

six-monthe’ salary freese was imposed on him on grounds wf having abandoned his

post without permission from the Principal. On 27 MNovembor 1984, the author

requested the annulment of these administrative decisions (recurso de reposiaidn),

arguing that he had not abandoned his post, but that the law allowed teachers to

take such special courses and that he had been duly admitted to the course with the

approval of the Ministry of ducation. The action was dismissed. He then

submitted an appeal, and on 3 December 1985, by decision of the Ministry of

Education, the prior decisions of suspension and salary freese were annulled.

2.7 Convinced that he was a victim of discrimination by the ecclesiastical and

educational authorities of Leticia, the author took the following steps:

(a) On 17 May 1985, he submitted a complaint to the Office of the Regional

Attorney on grounds of allegea irregularities committed by the Fondo Educativo

Regional (Regional Education Fund) in his case;

(b) On 18 May 1985, he submitted a complaint to the penal court of Leticia,

accusing the Apostolic Prefect of slander and abuse (injuria y calumnia);

(c) On 26 May, 4 June and 3 October 1985, he wrote to the Office of the

Attorney General of the Republic, expressing concern about the denial of justice at

the regional level, attributable to the alleged influence of the Apostolic Prefect)

(ad) On 13 May 1986, he again wrote to the Attorney General describing the

pressures he had been and was being subjected to in order to force him to resign.

He indicated, inter alias, that on 23 November 1983 the Apostolic Prefect had

written to the Secretary of Education asking the latter in specific and clear terme:

“to bring pressure on me to resign from my post, and this in fact happened,

for, on 2 December 1983, I was summoned to the office of the Secretary of

Education and oraily informed that the Monsignor was putting pressure on him

and that I therefore had to resign from my post as a teevher, failing which

criminal proceediags would be instituted against me. I promptly intormed the

president of the teachers' union and the teachers' representative on the

Promotion Board cf such an outrage and they immediately went to the office of

the Secretary of Education, who repeated that it had nothing to do with him,

but that he had been acting at the Monsignor's insistence. I of course

refused to rasigu, but the threat was carried out and criminal proceedings

were instituted against me.”

2.8 While at his residence in Bogoté, the author received anonymous phone calls

threatening him with death if he returned to Leticia and did not withdraw his

complaint against the Apostolic Prefect and the education authorities. He also

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received death threats at the teachers' residence at Leticia, which he reported to

the military authorities at Leticia, the teachers’ union, the Ministry of Education

and the President of Coiombia.

2.9 On 2 May 1986, a work colleague, Ms. Rubiela Valencia, was shot to death

outside the teachers’ residence in Leticia by unknown killers. On 7 May 1986, the

author was himself attacked in the city of Bogoté, and, fearing for his own life,

left the country and obtained political asylum in France in June 1986.

2.10 By letter dated 10 June 1986, he tendered to the Ministry of Education at

Leticia his resignation from his post, justifying his decision on account of the

pressures and threats he had received. His resignation was rejected "in those

terms". He resubmitted his resignation on 27 June 1986, without adducing any

raagons, and this time it was accepted, effective 14 July 1986.

The complaint

3.1 The author claims to be a victim of violations by Colombia of articles 14, 18,

19, 25 and 26 in conjunction with article 2 of the International Covenant on Civil

and Political Rights.

3.2 He maintains that he was subjected to persecution - ideologically, politically

and in his work ~- by the Colombian authorities, because of his "progressive ideas

in theological and social matters", that his honour and reputation were attacked by

the authorities who falsely accused him of theft, whereas the reason behind the

charge was to intimidate him because of his religious and social opinions.

Moreover, his professional qualifications were unjustly put into question, although

he had studied and taken a degree at the University of Santo Tomds and had taught

several years at a high school in Be zota.

3.3 Furthermore, he claims to have been denied the freedom to teach, having been

suspended from his teaching post in breach of the decree concerning appointments

and of the teachere' statute (decrees No. 2277 of 1979 and No. 2372 of 1981). When

he applied for a transfer, his request was ignored by the administration.

3.4 More importantly, he charges that manifold threats were used to force him to

resign: first, being threatened with prosecution; then, when he refused to resign,

preliminary proceedings on the theft charges were initiated without prior notice,

thereby violating the right of defence; he was not heard by the exemining

magistrate during the preliminary investigation and was not assisted by a

court-appointed lawyer; furthermore, the authorities sent copies of the unfounded

allegations, even before they were investigated, to all offices in the Ministry of

Education and to all the schools; as a result, he was subjected to public scorn and

essentially convicted before the charges had been investigated. Furthermore,

copies of the allegations were included in his personal file. This caused him harm

in economic, moral and social terms. Nevertheless, he was acquitted of all charges.

3.5 Additionally, he was suspended from practising his profession for 60 days, for

alleged dereliction of duty, and from tae National Teachers' Register for siz

months); every possible kind of offence was invoked so that the outcome of the

administrative inquiries would not only be contrary to the truth, but would also

cause prejudice by leading to criminal proceedings and in this manner implicate his

colleagues in the teachers’ union who supported him. The case was again dismissed

on all points. He then addressed complaints, without success, to the authorities

concerning alleged offences, perpetrated by others, of falsifying public documents,

forging his signature, making a false accusation to the authorities and breaching

administrative confidentiality.

3.6 He claims that he “fourd it absolutely essential to leave the country, as

these are no guarantees for the protection of the most basic human rights, such as

equality, justice and life, which the Colombian Government has a constitutional and

moral obligation to protect". Allegedly, the threats on his life and on the lives

of other teachers have not been duly investigated by the State party.

The State party's observations

4.1 The State party argues, although only after the communication had been

declared admissible, that domestic remedies have not been exhausted, since various

actions are still pending.

4.2 It further denies that Mr. Delgado'’s rights under the Covenant have been

violated. In particular, it indicates that Mr. Delgado was cleared of all charges

against him and contends that his complaints against various Colombian authorities

were duly investigated:

"William Eduardo Delgado Pdéez has not been subjected to restrictions on his

freedom of thought, conscience, religion, speech or expression, as is

demonstrated by the steps he was able to take under the criminal law and in

the administrative sphere throughout this investigation."

4.3 In the disciplinary action initiated by Mr. Delgado against various officials,

the court. of first instance of Leticia acquitted three persons and sanctioned two

others with a suspension of 15 days without remuneration. Appeals are pending.

4.4 The criminal action against the Apostolic Prefect on grounds of slander and

abuse was referred to the Apostolic Nuncius pursuant to the Concordat between the

Republic of Colombia and the Vatican. The investigation was terminated upon the

death of the Apostolic Prefect in 1990.

4.5 With respect to Mr. Delgado's qualifications as a teacher, the State party

forwards a copy of a statement from the Ministry of Education setting forth the

general requirements for teachers, without, however, specifically addressing the

application of these requirements in the author's case.

4.6 As to the legal basis for the appointment of teachers of religion in Colombia,

the State party states that:

"Applicants for the post of teacher of religion in Colombia must present a

certificate of suitability in the area of religious and moral education, along

the lines laid down in article 12 of Act 20 of 1974, which readst In

pursuance of the right of Catholic families to arrange for their children to

receive religious education in keeping with their faith, educational plans at

the primary and secondary level shall include religious education and training

in official establishments in accordance with the teaching of the chucch. In

order to put thie right into practice, it falls to the competent chu-ch

authority to supply curricula, approve religious education texts and verify

how such education is provided. The civil authorities shall take into

consideration certificates of suitability for teaching religion issued by the

competent church authority."

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The State party submitea the text of the agreement of 31 July 1986 between the

Ministry of Education and the Colombian Episcopal Conference, without, however,

showing the relevance of this Concordat to the case of Mr. Delgado, whose

resignation had already been accepted on 9 July 1986.

4.7 The State party does not address the author's allegations concerning death

threats against himself and other teachers, the alleged assault on his person on

7 May 1986, nor the general situation of persecution against named journalists and

intellectuals, emounting to a violation of the right of security of the verson.

The igauea and proceedings before the Committee

8.1 When considering the communication at its thirty-second session, the Committee

concluded, on the basis of the information before it, that the conditions for

declaring the communivation admissible had been met. In particular, the Committee

aoted that while the State party had claimed that there was no violation of the

Cvvenant, it hal not arqued that the communication was inadmissible.

5.2 On 4 April 1988, the Committee declared the communication generally

admissible, without specifying articles of the Covenant. The Committee, however,

requested the State party to addrese the issues raised in one of the author's

aubmisesions, which focused on the right of security of the person.

5.3 The Committee has considered the present cormunication in the light of all the

information provided by the parties. It has taken note of the State party's

contention that domestic remedies have not been exhausted and that actions are

etill pending. The Committee finds, however, that, in the particular circumstances

of the author's case, the application of domestic remedies has been unreasonably

prolonged and, fer purposes of article 5, paragraph 2 (b) of the Optional Protocol.

they need therefore not be further pursued.

5.4 Although the author has not specifically invoked article 9 of the Covenant,

the Committee notes that his submission of 14 September 1987, which was transmitted

to the State party prior to the adoption of the Committee's decision on

admissibility, raised important questions under this article. The Committee

recalls that upon declaring the communication admissible, it requested the State

party to address these issues. The State party has not done so.

5.5 The first sentence of article 9 does not stand as a separate paragraph. Its

location as a part of paragraph one could lead to the view that the right to

security arises only in the context of arrest and detention. The travaux

préparstoires indicate that the discussions of the first sentence did indeed focus

on matters dealt with in the other provisions of article 9. The Universal

Declaration of Human Rights, in article 3, refers to the right to life, the right

to liberty and the right to security of the p»rson. These elements have been dealt

with in separate clauses in the Covenant. Although in the Covenant the only

reference to the right of security of per~on is to be found in article 9, thore is

no evidence that it was intended to narrow the concept of the right to security

only to situations of formal deprivation of liberty. At the same time, States

parties have undertaken to guarantee the cights enshrined in the Covenant. It

cannot be the case that, as a matter of liw, States can ignore known threats to the

life of persons under their jurisdiction, just because that he or she ‘s not

arrested or otherwise detained. “tates parties are under an obligation tc take

reasonable and appropriate measures to protect them. An interpretation of

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article 9 which would allow a State party to ignore threats to the personal

security of non-detained persons within its jurisdiction would render totally

ineffective the guarantees of the Covenant.

5.6 There remains the question of the application of this finding to the facte of

the caee under consideration. There appears to have been an objective need for

Mr. Delgado to be provided by the State with protective measures to guarantee his

security, given the threate made against him, including the attack on his person,

and the aurder of a close colleague. It is arguable that, in seeking to secure

this protection, Mr. Delgado failed to address the competent authorities, making

his complaints to the militery suthorities in Leticia, the teachers’ union, the

Ministry of Education and the President of Colombia, rather than to the general

prosecutor or the judiciary. It is unclear to the Committee whether these matters

were reported to the police. It does not know either with certainty whether any

measures were taken by the Govermment. However, the Committee cannot but note that

the author claims that there was no response to his request to have these threats

investigated and to receive protection, and that the State party has not informed

the Committee otherwise. Indeed, the State party has failed to comply with the

request by the Committee to provide it with information on any of the issues

relevant to article 9 of the Covenant. Whereas the Committee is reluctant to make

a@ finding of a violation in the abscace of compelling evidence as to the facts, it

ie for the State party to inform t>e Committee if alleged facts are incorrect, or

2£ they would aot, in any event, indicate a violation of the Covenant. The

Committee has. in its past jurisprudence, made clear that circumstances may cause

it to assume facts in the author‘s favour if the State party faila to reply or to

address them. The pertinent factors in this case are that Mr. Delgado had been

engaged in a protracted confrontation with the authorities over his teaching and

his employment. Crimins] charges, later determined unfounded, had been brought

against him and he had been suspended, with salary frozen, in the circumstances

indicated in paragraphs 2.2 to 2.6 above. Further, he was known to have instituted

& variety of complaints against the ecclesiastical and scholastical authorities in

Leticia (see para. 2.7 above}. Coupled with these factors were threats to his

life. I£ the State party neither denies the threats nor co-operates with the

Committee to explain whether the relevant authorities were aware of them, and, if

50, what was done about them, the Committee must necessarily treat as correct

allegstions that the threats were known and that nothing waz done. Accordingly,

while fully understanding the situation in Colombia, the Committee finds that the

State party has not taken, or has been unable to take, appropriate measures to

ensure Mr. Delgado‘’s right to security of his person under article 9, paragraph 1.

5.7 With respect to article 18, the Committee is of the view that the author's

right to profess or to manifest his religion has not been violated. The Committee

finds, moreover, that Colombia may, without violating this provision of the

Covenant, allow the Church authorities to decide who may teach religion and in what

manner it should be taught.

5.8 Article 19 protects, inter alia, the right of freedom of expression and of

opinion. This will usually cover the freedom of teachers to teach their subjects

in accordance with their own views, without interference. However, in the |

particular circumstances of the case, the special relationship between Church and

State in Colombia, exemplified by the applicable Concordat, the Committee finds

that the requirement, by the Church, that religion be taught in a certain way does

not violate article 19.

5.9 Although the requirement, by the Church authorities, that Mr. Delgado teach

the Catholic religion in its traditional form does not violate article 19, the

author claims that he continued to be harassed while teaching the non-religious

subjects to which he nad been assigned. The Committee must for the reasons

elaborated in paragraph 5.6 above, accept the facts as presented by the author.

This constant harassment and the threats against his person (in respect of which

the State party failed to provide protection) made the author's continuation in

public service teaching impossible. Accordingly, the Committee finds a violation

of article 25, paragraph {c), of the Tovenant.

§.10 Article 26 requires that all persons are entitled, without discrimination, to

be equal before the law and to raceive equal protection by the law. The Committee

finde that neither the terms of Colombian law nor the application of the law by the

courte or other anthorities discriminated against Mr. Delgado, and finds that there

was no violation of article 26.

6. The Human Rights Committe, acting under article 5, paragraph 4, of the

Cptional Protocol to the Internstional Covenant on Civil and Political Rights, is

of the view that the facts of the communication disclose violations of articles 9,

paregraph 1, and 25, paragraph (c)- of the Covenant.

7.1 In accordance with the provisions of article 2 of the Covenant, the State

party is under an obligation to take effective measures to remedy the violations

suffered by the author, including the granting of appropriate compensation, and to

ensure that similar violations do not occur in the future.

7.2 The Committse would wish to receive information on any relevant measures taken

by the State party in respect of tha Committee's views.

{Don) in English, French, Spanish and Russian, the English text being the original

version.)

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