CCPR/C/48/D/467/1991

Communication No. 467/1991, V. E. M. v. Spain (decision

of 16 July 1993, adopted at the forty-eighth session)

Submitted by:

V. E. M. (name deleted)

Alleged victim:

The author

State party:

Spain

Date of communication:

27 May 1991 (initial submission)

The Human Rights Committee, established under article 28 of the

International Covenant on Civil and Political Rights,

Meeting on 16 July 1993,

Adopts the following:

Decision on admissibility

1.

The author of the communication is V. E. M., a Spanish citizen born in

1935, currently residing in Barcelona. He claims to be a victim of

violations by Spain of articles 3, 7, 14, paragraphs 1, 2, 3 (a) to (e), 5,

17 and 26 of the International Covenant on Civil and Political Rights. He is

represented by counsel. The Optional Protocol entered into force for Spain

on 25 April 1985.

Facts as submitted

2.1 In 1975, the author, a former military officer, was excluded from

service in the Spanish Army by decision of a special tribunal (Tribunal de

Honor), which found him guilty of having tolerated the alleged dishonourable

lifestyle of his wife. According to the author, the charges against him were

fabricated and unsubstantiated, and the tribunal was constituted for reasons

totally different from those that led to his discharge from the army. He

submits that the principal witness before the Tribunal committed perjury, and

that letters attributed to the author which accused high-ranking military

officers of corruption - letters of which he claims to have no knowledge -

were used as evidence against him. Under article 40, litera (a), of the

(old) Code of Military Procedure (1945), the Tribunal's decision could not be

appealed.

2.2 In 1985, the author learned that the above provision of the Code of

Military Procedure had been declared unconstitutional. He therefore filed an

application for revision of the decision of 1975 with the Ministry of

Defence. This was followed by an administrative complaint filed with an

administrative tribunal (audiencia nacional), requesting a declaratory

judgement to the effect that the decision of 1975 had been null and void. He

claimed, in particular, that the proceedings before the Tribunal de Honor had

failed to observe the minimum guarantees of the defence.

2.3 On 28 June 1988, the Military Chamber of the Supreme Court (Sala de lo

Militar) dismissed the case on the ground that the conditions of article 127

of the law governing administrative procedures for the revision of final

(judicial) decisions had not been met. The judgement further held that the

author's appeal was inadmissible because it fell under the relevant statutes

of limitations, since the deadline for filing the appeal had begun to run

from the date of entry into force of the Constitution (1978); two judges of

the Supreme Court appended dissenting opinions to the judgement of

28 June 1988.

2.4 The author further appealed to the Constitutional Tribunal (recurso de

amparo). This was declared inadmissible by decision (auto) of the

Constitutional Court on 23 February 1989.

2.5 On 22 April 1989, the author filed a complaint under article 6 of the

European Convention on Human Rights (guarantee of a fair trial) with the

European Commission of Human Rights. On 15 June 1989, the Commission

registered it as case No. 15.124/89. On 11 October 1989, the case was

declared inadmissible because the Commission held that the guarantee of

article 6 of the Convention did not cover disputes about public service,

neither the question of access to it nor the dismissal from it.

Complaint

3.

The author contends that the facts described above constitute violations

of the following provisions of the Covenant:

(a) Article 3, since the State party never guaranteed the equal

enjoyment of his or of his wife's rights under the Covenant;

(b) Article 7, since the fact of being accused without so much as the

possibility of defending himself against the charges is said to amount to an

attack on his honour and to constitute degrading treatment;

(c) Article 14, paragraph 1, since he was never afforded equality

before the courts, either before the Tribunal de Honor or the Military

Chamber of the Supreme Court, as neither of them heard him publicly and

allegedly were partial to the arguments of the military prosecutors;

(d) Article 14, paragraph 2, since he was deemed guilty in the absence

of tangible proof;

(e) Article 14, paragraph 3 (a) to (e), since the minimum rights of the

defence, such as adequate time for the preparation of his defence and the

right to choose his own counsel or to call witnesses, were not respected;

(f) Article 14, paragraph 5, because he was unable to appeal the

decision of the Tribunal de Honor;

(g) Article 17, because he suffered unlawful attacks on his honour and

his reputation as a result of the very procedure before the Tribunal de Honor

and the latter's decision;

(h) Article 26 because, as the result of unjust and partial judicial

decisions, he has been subjected to discrimination.

State party's information and observations and author's comments

4.1 In its submission under rule 91 of the rules of procedure, the State

party contends that the communication is inadmissible under article 5,

paragraph 2 (a), of the Optional Protocol, as the same matter was already

examined and declared inadmissible by the European Commission of Human

Rights. It recalls that upon ratifying the Protocol, Spain entered a

reservation in respect of article 5, paragraph 2 (a), to the effect "... that

the Committee shall not consider any communication from an individual unless

it has ascertained that the same matter has not been submitted or is not

being examined under another procedure of international investigation or

settlement" ("... que el Comitй de Derechos Humanos no considerarб ninguna

comunicaciуn de un individuo a menos que se haya cerciorado de que el mismo

asunto no ha sido sometido o no lo estй siendo a otro procedimiento de examen

o arreglo internacionales").

4.2 In his comments, the author concedes that his complaint to the European

Commission of Human Rights was based on the same facts as his communication

to the Human Rights Committee, but contends that the European Commission

never "examined" the matter, since it simply dismissed the complaint as not

within the scope of protection of the European Convention on Human Rights.

Issues and proceedings before the Committee

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

Rights 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 The Committee has taken note of the parties' arguments relating to the

applicability of article 5, paragraph 2 (a), of the Optional Protocol. It

notes that the Spanish reservation on article 5, paragraph 2 (a), precludes

the examination of the same matter if it had been submitted to the European

Commission. Notwithstanding that the author's case before the European

Commission was summarily dismissed as inadmissible under the Convention, it

had none the less been "submitted" thereto. Accordingly, in the light of the

Spanish reservation to article 5, paragraph 2 (a), of the Optional Protocol,

the Committee is precluded from considering the communication.

6.

The Human Rights Committee therefore decides:

(a) That the communication is inadmissible;

(b) That this decision shall be communicated to the State party and the

author of the communication.

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

version.]