CCPR/C/44/D/363/1989

J. Communication Ho. 363/1989. B.L.M. v. France (decision

of 6 April 1992, adopted afc the forty-fourth session)

Submitted byt

R.L.M. (name deleted)

Alleged victim;

The author

State party:

France

Date of communication; 11 May 1989 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 6 April 1992,

Adopts the following:

Decision on admissibility

1.

The author of the communication is R.L.M., a French citizen born in 1946

and a teacher by profession, currently residing at Nantes, France. He claims

to be a victim of violations by France of articles 2, 19, 26 and 27 of the

International Covenant on Civil and Political Sights.

Facts as submitted by the author

2*1 Since 1968, the author has been teaching in various schools in the

district of the Academy of Nantes < kcademie de Kantes)i since 1977 he has been

teaching Breton, history and geography in private schools, which provide

education in accordance with a contract with the Ministry of Education. Since

1980, the teaching of Breton has been part of his official timetable.

2,2 In the author's opinion, the Rectorate of the Academy of Nantes (Eectorat

de l'Academie de Nantes) has systematically discouraged and obstructed the

teaching of Breton. This obstruction is characterized, inter alia, byj

(a) The systematic denial to candidates to the Baccalaureat examinations

of the possibility to sit exams in the centres usually provided for that

purpose;

(b) The refusal to inform the students or their parents about the

possibilities, laid down in specific regulations, of studying the Breton

language in secondary schools in Nantes and in the Departement de Loire-

Atlantigue;

(c) The refusal to create a tenured post for the teaching of Breton, on

the ground that the limited demand for teaching of Breton does not justify the

establishment of such a post;

<d) The refusal to initiate an official and objective inquiry into the

matter.

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2.3 The author explains that teachers wishing to obtain in Breton the

Certificate of Aptitude for Secondary Education (Certificat d'Aptitude

Professionnelle d'Enseignement Secondaire (CAPES)) must also choose a second

subject. He adds that, the text of the applicable regulations of 1983,

governing the aims of the teaching of regional cultures and languages, are not

applicable to those teachers who have obtained the CAPES for Breton; they do

not have to volunteer to teach Breton, once there is some demand for it, but

have certain acquired rights to teach their subject.

2.4 The author contends that he cannot submit his grievances to the French

courts or administrative tribunals. He surmises that there is no effective

remedy in his case because, as a civil servant, his teaching obligations are

subordinate to the "exigencies of the service", which may require the teaching

of subjects that do not correspond to the specialization of the complainant.

It is therefore said to be futile to challenge the decisions of the

authorities. Finally, he submits that the administrative authorities

regularly deny him the opportunity of a meeting, presumably so as to avoid

having to address the problem.

Complaint

3.1 The author contends that the Eectorate of the Academy of Nantes (and the

Academy of Rennes) has systematically discriminated against him, both by

obstructing his career development and by lowering his salary, allegedly

without any explanation. He further claims that a course of Breton that he

had been assigned to teach at the Lyeee de Vannes has been systematically

hindered by the Board of that high school, and that the educational

authorities, including the Ministry of Education, have endorsed the

discriminatory attitude of their subordinates against the author and against

the teaching of Breton in general.

3.2 More generally, the author contends that the requirement of being able to

teach two subjects for the award of the Certificate of Aptitude for the

teaching of Breton has, in reality, the effect of seriously curtailing the

possibilities of teaching Breton. Thus, a course given during the school year

1988/89 at the College Montaigne in Vannes could not be organized for the

following school year, despite demand from students. This, it is submitted,

is contrary to article 55 of the French Constitution and has been recognized

in a judgement given by the Administrative Tribunal of Rennes on

27 January 1987.

3.3 Finally, the author submits that the result of a recent survey conducted

by the Parents* Association for the Teaching of Breton (Association des

Parents d'Eleves pour l'Enseignement du Breton) confirms the discriminatory

attitude of the Eectorate of the Academy of Nantes, since it challenges the

Rector's opinion that the limited demand for the teaching of Breton does not

justify the creation of established posts.

State party's information and observations

4.1 The State party submits that the communication is inadmissible on the

ground of non-exhaustion of domestic remedies. Subsidiarily, it contends that

many of the author's complaints concern alleged discrimination vis-a-vis the

Breton language in general, and that, accordingly, the author cannot be deemed

a victim within the meaning of article 1 of the Optional Protocol.

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4.2 In respect of the allegedly discriminatory measures directly concerning

the author, the State party argues that R.L.M. has failed to exhaust available

remedies. His two letters addressed to the Sector of the Academy of Rennes in

February 1988 and to the Hector of the Academy of Nantes in April 1988 do not

display any of the characteristics of an administrative remedy. In fact, the

author merely sought, through these letters, an audience with a view to

securing the establishment of a post for the teaching of Breton, and did not

complain about his personal situation.

4.3 The State party contends that the following remedies would be open to the

author, adding that none of them has been utilized*

(a) Recourse to the representatives of his profession in the

"administrative (parity) commission" (Commission administrative parita.ire^,

which may be seized of all types of questions concerning personnel disputes

(article 25 (4)) of Decree 82-451 of 28 May 1982 concerning the Commission

administrative paritaire);

(b) Filing of an ex gratia appeal to a higher administrative authority,

including the Minister of Education. The advantage of such an appeal, while

optional, is that it may be based not only on the legally relevant facts of

the case but also on considerations of equity and expediency;

(c) Finally, if the author considered that any of the contested

decisions violated his rights, he could have sought a contentious remedy for

abuse of power, requesting the administrative judge to annul the decision.

Such an application could have been filed within two months of the date on

which he was notified of any adverse decision affecting him.

4.4 The State party emphasizes that the inactivity or negligence of the

author in respect of pursuit of domestic remedies cannot be attributed to

State organs: "the right to submit a communication to the Human Rights

Committee cannot be used as a substitute for the normal exercise of domestic

remedies in cases where such remedies have not been pursued purely through the

fault of the interested party."

4.5 Additionally, the State party submits that the author has failed to

advance a claim in the sense of the Optional Protocol. As to the alleged

violation of article 19, paragraph 2, the State party contends that the author

has failed to show how his freedom of expression might have been interfered

with and that, on the contrary, each of his submissions and his correspondence

with the education authorities, parliamentarians and government officials show

that he had ample opportunity to make his position known. It further affirms

that "freedom of expression" within the meaning of article 19 cannot be

construed as including a right to exercise a specific teaching activity,

4.6 With respect to the alleged violation of article 26, the State party

affirms that nothing in the file substantiates the author's claim that the

Rectorate of the Academy of Nantes systematically discriminates vis-a-vis the

teaching of Breton and that it discriminated against the author by denying him

regular career development. It notes that Law 51-46 of 11 January 1951

recognized Breton as a regional language and contained measures designed to

encourage its teaching. This law was amended by circular No. 82-261 of

21 June 1982 concerning the teaching of regional languages and cultures in

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public education institutions, and by circular Ho. 83-547 of 30 December 1983

specifying objectives. The teaching of Breton, however, is not obligatory but

a function of the optional choices of students ana teachers. The Rectors of

the various academies may adapt teaching requirements in the light of local

characteristics and with a view to the financial resources available to them.

4.7 With respect to the author's allegation that his CAPES forces him to

teach subjects other than Breton, the State party explains that all teachers

who obtain CAPES may be called upon to teach in any of the academies created

by the Minister of Education, throughout France. The specificity of teaching

requirements of Breton therefore has led the authorities to require candidates

to CAPES to acquire the certificate for two subjects. Teachers of Breton are

required to teach a second subject in addition to the hours of Breton taught,

so as to fulfil the necessary service requirements laid down in their

statute. The State party concludes that the author cannot pretend that he is

discriminated on grounds of language if the Lycee de Vannes asked him to teach

geography and history, in addition to Breton; if Breton classes are not

organized, this is by no means owing to discriminatory considerations but to

the fact that this option is chosen by too limited a number of students, and,

in the author's case, norms that are of general application simply have been

applied to his situation,

4.8 With respect to the alleged violation of article 27, the St&te party

refers to the "declaration" made by the Government of France upon accession to

the Covenant, which stipulates: "in the light of article 2 of the

Constitution of the French Republic, ... article 27 [of the Covenant] is not

applicable as far as the Republic is concerned",

4.9 Finally, the State party contends that a violation of article 2 of the

Covenant cannot be committed directly and in isolation, and that any violation

of this provision can only be a corollary to the violation of another

provision of the Covenant. Since the author has not shown that his rights

under the Covenant have been breached, he cannot invoke article 2.

Issues and proceedings before the Committee

5.1 Before considering any claims contained in a communication, the Human

Bights Committee must, in accordance with rule 87 of its rules of procedure,

decide whether or not it is admissible under the Optional Protocol to the

Covenant.

5.2 Concerning the author's claim under article 19, paragraph 2, the

Committee observes that 8.L.M. has failed to substantiate how his freedom of

expression was violated by the French authorities' policy yis-a-yis, the

teaching of Breton. In this respect, therefore, he has failed to advance a

claim within the meaning of article 2 of the Optional Protocol.

5.3 As to the claim of a violation of article 27, the Committee reiterates

that France's "declaration" made in respect of this provision is tantamount to

a reservation and therefore precludes the Committee from considering

complaints against France alleging violations of article 27 of the

Covenant, a/

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5.4 With regard to the alleged violation of article 26, the Committee

observes that although the author has claimed that effective remedies are

lacking, it is clear from his submissions that he has »ot pursued any judicial

or administrative remedies in this respect. His submissions to the competent

authorities and his correspondence with the Rectorate of the Academy of Nantes

and Rennes cannot be deemed as exhaustion of available administrative and

judicial remedies. The Committee reiterates that article 5, paragraph 2 (b),

of the Optional Protocol, by referring to "all available domestic remedies",

clearly refers in the first place to judicial remedies, b/ The author has not

shown that he could not have resorted to the administrative and judicial

procedures which the State party has plausibly submitted were available to

him, or that their pursuit could be deemed to be, a priori, futile. In fact,

it appears from the author's submissions that he does not envisage availing

himself of these remedies. The Committee finds that his doubts about the

availability and effectiveness of domestic remedies do not absolve him from

exhausting them, and concludes that the requirements of article 5,

paragraph 2 (b), have not been met.

5.5 The author has also invoked article 2 of the Covenant. The Committee

recalls that article 2 is a general undertaking by States parties and cannot

be invoked, in isolation, by individuals under the Optional Frotocol. c/ As

the author's claims relating to articles 19 and 26 are inadmissible under

articles 2 and 5, paragraph 2 (b), of the Optional Protocol, it follows that

R.L.M, cannot invoke a violation of article 2 of the Covenant.

6.

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 the

author of the communication.

[Done in English, French, Russian and Spanish, the English text being the

original version.]

Notes

Official Records of the General Assembly. Forty-fifth Session.

Supplement Ho. 40 (A/45/40), vol. II, annex X, sect. A, communication Ho.

220/1987 fT.K. v. France), decision of 8 November 1990, para. 8.6 and

appendices I and II.

b/

See ibid., Forty-fourth Session, Supplement Ho. 40 (A/44/40),

annex XI, sect. D, communication No. 262/1987 (R.T. v. France), decision of

30 March 1989, para. 7.4.

£/

See ibid.. Forty-fifth Session, Supplement No. 40 (A/45/40),

vol. II, annex X, sect. I, communication Ho. 268/1987 (M.G.B. and S.P. v.

Trinidad and Tobago), decision of 3 November 1989, para. 6.2.

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