Decision on merits; Substantive issues: cruel, inhuman or degrading treatment or punishment discrimination on other grounds discrimination on the ground of political or other opinion effective remedy equality before the law privacy unlawful attacks on honour or reputation; Articles: 10 (1) 17 (1) 26; Procedural issues: exhaustion of domestic remedies victim status; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
Communication No. 309/1988, Carlos Orihuela Valenzuela v.
Peru (views adopted on 14 July 1993, forty-eighth session)
Submitted by:
Carlos Orihuela
Valenzuela
Alleged victims:
The author and his
family
State party:
Peru
Date of communication:
29 June 1988
Date of decision on admissibility: 22 March 1991
The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,
Meeting on 14 July 1993,
Having concluded its consideration of communication No. 309/1988,
submitted to the Human Rights Committee by Mr. Carlos Orihuela Valenzuela
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 noting with serious concern that no
information on the merits of the case has been received from the State
party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1.
The author of the communication dated 29 June 1988 is
Carlos Orihuela Valenzuela, a Peruvian citizen residing at Lima, Peru. He
claims to be a victim of a violation by the Government of Peru of his human
rights but does not invoke any articles of the International Covenant on
Civil and Political Rights.
Facts as submitted
2.1 The author, a member of the Peruvian bar (Colegio de Abogados) and a
civil servant for 26 years, was named counsel for the Chamber of Deputies in
1982 and served in the Peruvian Human Rights Commission for five years.
Following the change of government in Peru in 1985, he was dismissed from his
post at the Chamber of Deputies without any administrative proceedings. The
author states that he has six school-age children and that he is not
receiving the civil servant's pension to which he claimed to be entitled.
2.2 With regard to the requirement of exhaustion of domestic remedies, the
author states that he has unsuccessfully tried all administrative and
judicial remedies. He alleges that the proceedings have been frustrated for
political reasons and have been unduly prolonged. On 7 November 1985 he
petitioned for the reconsideration of his dismissal (recurso de
reconsideraciуn) but he alleges that, on the express order of a senior
deputy, his petition was not processed. On 10 April 1986, he renewed his
request by way of a complaint (queja), which was similarly not processed by
the authorities. On 8 May 1986, he lodged an action (denuncia) before the
President of the Chamber of Deputies, again without any response. On 11 June
1986, he addressed a request to the Chamber of Deputies based on Law 24514
and Legislative Decree No. 276, again without any response. On 23 June 1986,
he presented an appeal (recurso de apelaciуn) to the President of the Chamber
of Deputies, which was similarly ignored.
2.3 On 2 July 1986, he had recourse to the Civil Service Tribunal (Tribunal
del Servicio Civil en Apelaciуn), but three months later the Chamber of
Deputies addressed a memorandum to the Tribunal ordering it to respect its
resolution dismissing the author, invoking article 177 of the Peruvian
Constitution. This last administrative instance allegedly complied with the
order of the Chamber of Deputies and terminated its investigation of the
case.
2.4 On 5 September 1986, the author filed an action for reinstatement in the
civil service with a court of first instance in Lima, which, on 23 July 1987,
decided against him. On appeal, the matter was taken up by the Superior
Court of Lima (Segunda Sala Civil de la Corte Superior de Lima), which, on
21 March 1988, requested the Civil Service Tribunal to forward the author's
dossier. The Civil Service Tribunal did not comply with the request of the
Superior Court and, by order of 29 December 1988, the Superior Court
dismissed the appeal.
2.5 An action against the Chamber of Deputies concerning the author's rights
to severance pay (pensнon de cesantнa) has been pending before the Supreme
Court (Segunda Sala de la Corte Suprema) since 1 February 1989. In October
1989 the competent organ of the Chamber of Deputies resolved to grant him
severance pay corresponding to his 26 years of civil service. The President
of the Chamber, however, never signed the resolution and to this date no
pension has been paid.
2.6 He further alleges that members of his family have been subjected to
ill-treatment and humiliation, in particular that in 1989 his 22-year-old son
Carlos was arbitrarily detained by the police and subjected to beatings, that
he was given a shower in his clothes at the Lince police station, as a
consequence of which he became ill and had to be hospitalized in the
bronchio-pulmonary section of a clinic and that his other son Lorenzo was
subjected to arbitrary arrest and detention on two occasions; moreover, that
as part of the general harassment against the Orihuela family, his son Carlos
has been barred from participating in the entrance examinations to the
university. He has denounced these abuses to the competent prosecuting
authorities (Fiscalнa Penal de Turno), without redress.
Complaint and relief sought
3.
The author alleges that he and his family have been subjected to
defamation and discrimination because of their political opposition to the
Government of the then President Alan Garcнa of the American Popular
Revolutionary Alliance party, and that all attempts to obtain redress have
been met by a politically motivated denial of justice. In particular, he
claims that his sons have been subjected to arbitrary arrest and ill-
treatment, and that he was unjustly dismissed from the civil service and
denied a fair hearing in the courts, that he is being debarred from
reinstatement in any post in the civil service, that he received no severance
pay upon dismissal after 26 years of service, and that his honour and
reputation have been unjustly attacked. He seeks, inter alia, reinstatement
in his post and compensation for the unjust dismissal.
Admissibility considerations
4.1 On 21 November 1988, the State party was requested to furnish
information on the question of admissibility of the communication, including
details of effective domestic remedies. The State party was also requested
to furnish the Committee with copies of all relevant administrative and
judicial orders and decisions in the case, in so far as they had not already
been submitted by the author, and to inform the Committee of the status of
the action pending before the Superior Court of Lima (Segunda Sala de la
Corte Superior de Lima). No submission from the State party on the question
of admissibility was received, in spite of a reminder sent on 14 August 1989.
4.2 During its forty-first session, the Committee considered the
admissibility of the communication. It ascertained, as it is required to do
under article 5, paragraph 2 (a), of the Optional Protocol, that the same
matter was not being examined under another procedure of international
investigation or settlement. With regard to article 5, paragraph 2 (b), of
the Optional Protocol, the Committee was unable to conclude, on the basis of
the information before it, that there were effective remedies available to
the author which he could or should have pursued. Moreover, the application
of existing remedies had been unreasonably prolonged within the meaning of
article 5, paragraph 2 (b), of the Optional Protocol.
4.3 With regard to the author's allegations relating to an arbitrary denial
of redress for the dismissal from his post as counsel for the Chamber of
Deputies, as well as his claim to have been subjected to unfair judicial
proceedings and judicial bias, the Committee found that these allegations had
not been substantiated, for purposes of admissibility.
4.4 The Committee found that the author's other allegations, in particular
those related to the arbitrary denial of severance pay as well as those
related to the harassment of his family, notably his two sons, had been
substantiated, for purposes of admissibility, and should be considered on the
merits.
5.
On 22 March 1991, the Human Rights Committee declared the communication
admissible inasmuch as it might raise issues under articles 10, 17 and 26 of
the Covenant. The Committee again requested the State party to forward
copies of any relevant orders or decisions in the author's case, and to
clarify the relationship between the Chamber of Deputies and the Civil
Service Tribunal and other courts.
Examination of the merits
6.1 In spite of reminders sent to the State party on 9 January and
26 August 1992, only a submission concerning domestic remedies was received,
but no submission on the merits of the case. The Committee notes with
concern the lack of any cooperation on the part of the State party in respect
of the substance of the author's allegations. It is implicit in article 4,
paragraph 2, of the Optional Protocol that a State party to the Covenant must
investigate in good faith all the allegations of violations of the Covenant
made against it and its authorities, and furnish the Committee with detailed
information about the measures, if any, taken to remedy the situation. In
the circumstances, due weight must be given to the author's allegations, to
the extent that they have been substantiated.
6.2 As to the alleged violation of article 10, paragraph 1, of the Covenant,
in respect of the author's children, the Committee notes that the material
before it indicates that the author's two adult sons have been subjected to
ill-treatment during detention, including beatings. The author's adult sons,
however, are not co-authors of the present communication and therefore the
Committee makes no finding in regard to a violation of their rights.
6.3 The Committee notes that these allegations of ill-treatment against
members of the author's family have not been contested by the State party.
However, the author's allegations do not provide sufficient substantiation so
as to justify a finding of a violation of article 17 of the Covenant.
6.4 The Committee has noted the author's claim that he has not been treated
equally before the Peruvian courts in connection with his pension claims.
The State party has not refuted his allegation that the courts' inaction, the
delays in the proceedings and the continued failure to implement the
resolution of October 1989 concerning his severance pay are politically
motivated. The Committee concludes, on the basis of the material before it,
that the denial of severance pay to a long-standing civil servant who is
dismissed by the Government constitutes, in the circumstances of this case, a
violation of article 26 and that Mr. Orihuela Valenzuela did not benefit
"without any discrimination [from] equal protection of the law". Therefore,
the Committee finds that there has been a violation of article 26 of the
Covenant.
7.
The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts before it reveal a violation of article
26 of the Covenant.
8.
The Committee is of the view that Mr. Carlos Orihuela Valenzuela is
entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective
remedy, including a fair and non-discriminatory examination of his claims,
appropriate compensation and such severance pay as he would be entitled to
under Peruvian law. The State party is under an obligation to take measures
to ensure that similar violations do not occur in the future.
9.
The Committee would wish to receive information, within 90 days, on any
relevant measures taken by the State party in respect of the Committee's
views.
[Done in English, French and Spanish, the English text being the original
version.]