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CCPR/C/48/D/309/1988

Orihuela Valenzuela et al. v. Peru

UNO-Menschenrechtsausschuss (CCPR) · 1993-07-14 · en UN

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.]