CCPR/C/51/D/441/1990

Casanovas v. France, Communication No. 441/1990,

U.N. Doc. CCPR/C/51/D/441/1990 (1994).

Distr. RESTRICTED

CCPR/C/51/D/441/1990

26 July 1994

Original: ENGLISH

HUMAN RIGHTS COMMITTEE

Fifty-first session

VIEWS

Communication No. 441/1990

Submitted by: Robert Casanovas

Victim: The author

State party: France

Date of communication: 27 December 1990 (initial submission)

Documentation references:

Prior decisions:

- Special Rapporteur's rule 91 decision, transmitted to the State party on

1 August 1991 (not issued in document form)

- CCPR/C/48/D/441/1990 (Decision on admissibility, dated 7 July 1993)

Date of adoption of Views: 19 July 1994

On 19 July 1994, the Human Rights Committee adopted its Views under article 5,

paragraph 4, of the Optional Protocol, in respect of communication No. 441/1990.

The text of the Views is appended to the present document.

ANNEX

Views of the Human Rights Committee under article 5, paragraph 4, of the

Optional Protocol to the International Covenant on Civil and Political Rights

- Fifty-first session -

concerning

Communication No. 441/1990

Submitted by: Robert Casanovas

Victim: The author

State party: France

Date of communication: 27 December 1990 (initial submission)

Date of decision on admissibility: 7 July 1993

The Human Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 19 July 1994,

Having concluded its consideration of communication No. 441/1990 submitted to the

Human Rights Committee by Mr. Robert Casanovas 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 the State party,

Adopts its Views under article 5, paragraph 4, of the Optional Protocol.

1. The author of the communication is Robert Casanovas, a French citizen residing in

Nancy. He claims to be the victim of a violation by France of articles 2, paragraphs

3(a) and (b), and 14, paragraph 1, of the International Covenant on Civil and Political

Rights.

The facts as submitted by the author:

2.1 The author is a former employee of the sapeurs-pompiers (fire brigade) of Nancy.

On 1 September 1987, he was appointed head of the Centre de Secours Principal of

Nancy. On 20 July 1988, he was dismissed for alleged incompetence, by decision of

the regional and departmental authorities. The author appealed to the Administrative

Tribunal (Tribunal Administratif) of Nancy, which quashed the decision on 20

December 1988. Mr. Casanovas was reinstated in his post by decision of 25 January

1989.

2.2 The city administration, however, initiated new proceedings against the author

which resulted, on 23 March 1989, in a second decision terminating his employment.

The author challenged this decision before the Administrative Tribunal of Nancy on

30 March 1989. On 19 October 1989, the President of the Tribunal ordered the

closure of the preliminary enquiry. By letter of 20 November 1989, Mr. Casanovas

requested the President of the Tribunal to put his case on the court agenda at as early a

date as possible; this request was repeated on 28 December 1989. By letter dated 11

January 1990, the President informed him that the matter was not considered urgent

and that, since no special circumstances prevailed, it would be registered in

chronological order, which implied that the case would not be heard either in 1990 or

in 1991.

2.3 On 23 January and again on 2 February 1990, the author notified the Court that he

considered such a delay to constitute a breach of article 6 of the European Convention

on Human Rights and Fundamental Freedoms and, accordingly, requested the

inscription of his case on the court calendar, pursuant to articles 506 and 507 of the

French Code of Civil Procedure. Again, he received no reply and therefore asked the

Tribunal, on 13 February 1990, to acknowledge receipt of his earlier submissions. On

15 March 1990, the Court informed him that he was not discriminated against, but

that the delays encountered were due to a backlog in the handling of earlier cases

dating back to 1986; in the circumstances, it was impossible to examine the case at an

earlier date.

2.4 On 21 March 1990, the author once again requested the President of the

Administrative Tribunal to hear the case. The request was reiterated on 5 June 1990,

but refused by the President of the Court on 11 June 1990.

2.5 On 20 July 1990, Mr. Casanovas appealed to the European Commission of Human

Rights, invoking article 6 of the European Convention on Human Rights and

Fundamental Freedoms. By decision of 3 October 1990, the Commission declared his

communication inadmissible, considering that the Convention does not cover

procedures governing the dismissal of civil servants from employment.

2.6 As to the requirement of exhaustion of domestic remedies, the author submits that

he cannot appeal to any other French judicial instance, unless and until the

Administrative Tribunal of Nancy has adjudicated his case. He therefore submits that

he should be deemed to have complied with the requirements of article 5, paragraph

2(b), of the Optional Protocol.

The complaint:

3.1 The author submits that the State party has failed to provide him with an "effective

remedy", since the delay to have his case adjudicated would be of at least three years.

The author claims that this delay is manifestly unreasonable and cannot be justified by

the work backlog of the Administrative Tribunal. The author argues that it is

incomprehensible that the Administrative Tribunal was able to adjudicate his first case

(concerning the 1988 dismissal) within five months, whereas it apparently will take

several years to adjudicate his second petition.

3.2 The author further claims that States parties to the Covenant have the duty to

provide their tribunals with the necessary means to render justice effectively and

expeditiously. According to the author, this is not the case if at least three years pass

before a case can be heard at first instance. The author claims that in case of appeal to

the Administrative Court of Appeal (Cour Administrative d'Appel), and subsequently

to the Council of State (Conseil d'Etat), a delay of about ten years could be expected.

3.3 The author further submits that a case which concerns the dismissal of a civil

servant is by nature an urgent matter; in this context, he submits that he has not

received any salary since 23 March 1989. He claims that a decision reached after three

years, even if favourable, would be ineffective. The author moreover argues that,

since the chairman of the Administrative Tribunal has discretionary power to put

cases on the roll, he could have granted the author's request, taking into account the

particular nature of the case.

The State party's information and observations with regard to the admissibility

of the communication:

4.1 The State party argues that the communication is inadmissible, on account of the

reservation made by the French Government upon the deposit of the instrument of

ratification of the Optional Protocol to the International Covenant on Civil and

Political Rights, with respect to article 5, paragraph 2(a), that the Human Rights

Committee "shall not have the competence to consider a communication from an

individual if the same matter is being examined or has already been examined under

another procedure of international investigation or settlement".

4.2 The State party submits that this reservation is applicable to the present case,

because the author of the communication has already submitted a complaint to the

European Commission of Human Rights, which declared it inadmissible. The State

party argues that the fact that the European Commission has not decided on the merits

does not preclude the application of the reservation, as the case concerns the same

individual, the same facts andthe same claim. In this context, the State party refers to

the Committee's decision with regard to communication No. 168/1984 [ V.O. v.

Norway, declared inadmissible on 17 July 1985, paragraph 4.4.], where the

Committee held that the phrase "the same matter" "refers, with regard to identical

parties, to the complaints advanced and facts adduced in support of them".

4.3 The State party further submits that the communication is inadmissible as

incompatible ratione materiae with the Covenant. The State party argues that article

14, paragraph 1, of the Covenant is not applicable, since the procedure before the

Administrative Tribunal does not involve "rights and obligations in a suit at law". In

this context, the State party refers to the decision of the European Commission, which

held that the European Convention on Human Rights does not cover procedures

governing the dismissal from employment of civil servants, and points out that the

text on which the European Commission based its decision, is identical to the text of

article 14, paragraph 1, of the Covenant. Moreover, unlike article 6, paragraph 1, of

the European Convention, article 14, paragraph 1, of the Covenant does not contain

any provision on the right to a judicial decision within a reasonable time.

4.4 The State party further argues that article 2, paragraph 3, of the Covenant, which

guarantees an effective remedy to any person whose rights or freedoms as recognized

in the Covenant are violated, has not been breached, since the procedure before the

Administrative Tribunal can be considered an effective remedy. According to the

State party, this is shown by the decision of the Administrative Tribunal, which

quashed the author's dismissal in December 1988.

The Committee's admissibility decision:

5.1 At its 48th session, the Committee considered the admissibility of the

communication. It noted the State party's contention that the communication was

inadmissible because of the reservation made by the State party to article 5, paragraph

2, of the Optional Protocol. The Committee observed that the European Commission

had declared the author's application inadmissible as incompatible ratione

materiae with the European Convention. The Committee considered that, since the

rights of the European Convention differed in substance and in regard of their

implementation procedures from the rights set forth in the Covenant, a matter that had

been declared inadmissible ratione materiae had not, in the meaning of the

reservation, been 'considered' in such a way that the Committee was precluded from

examining it.

5.2 The Committee recalled that the concept of 'suit at law' under article 14, paragraph

1, was based on the nature of the right in question rather than on the status of one of

the parties. The Committee considered that a procedure concerning a dismissal from

employment constituted the determination of rights and obligations in a suit at law,

within the meaning of article 14, paragraph 1, of the Covenant. Accordingly, on 7 July

1993, the Committee declared the communication admissible.

Information received after the decision on admissibility:

6.1 By letter, dated 17 June 1994, the author informs the Committee that the

Administrative Tribunal of Nancy, on 20 December 1991, ruled in his favour and that

he was reinstated in his post. He adds, however, that the city administration, on 17

December 1992, has again unilaterally terminated his employment and that this

decision now is again before the administrative tribunals. He further submits that the

continuing conflict with the administration and the long delays before the Tribunal

have resulted in feelings of anguish and depression, as a result of which his health has

seriously deteriorated.

6.2 No information or observations have been forwarded by the State party, despite a

reminder sent on 3 May 1994. The Committee notes with regret the absence of

cooperation from the State party, and recalls that it is implicit in article 4, paragraph 2,

of the Optional Protocol, that a State party make available to the Committee all the

information at its disposal. In the circumstances, due weight must be given to the

author's allegations, to the extent that they have been substantiated.

Issues and proceedings before the Committee:

7.1 The Human Rights Committee has considered the present communication in the

light of all the information made available to it by the parties, as provided in article 5,

paragraph 1, of the Optional Protocol.

7.2 The Committee notes that the issue before it is whether the duration of the

proceedings before the Administrative Tribunal of Nancy concerning the author's

second dismissal of 23 March 1989 violated the author's right to a fair hearing within

the meaning of article 14, paragraph 1, of the Covenant.

7.3 The Committee recalls that the right to a fair hearing under article 14, paragraph 1,

entails a number of requirements, including the condition that the procedure before

the courts must be conducted expeditiously [ See the Committee's Views concerning

communication No. 207/1986 (Yves Morael v. France, Views adopted on 28 July

1989), paragraph 9.3.] . The Committee notes that in the instant case, the author, on

30 March 1989, initiated proceedings against his dismissal before the Administrative

Tribunal of Nancy, and that the Tribunal, after having concluded the preliminary

enquiry on 19 October 1989, rendered its judgment in the case on 20 December 1991.

7.4 The Committee notes that the author obtained a favourable decision from the

Administrative Tribunal of Nancy and that he was reinstated in his post. Bearing in

mind the fact that the Tribunal did consider whether the author's case should have

priority over other cases, the Committee finds that the period of time that has elapsed

from the submission of the complaint of irregular dismissal to the decision of

reinstatement, does not constitute a violation of article 14, paragraph 1, of the

Covenant.

8. 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 do not reveal a violation of any of the provisions of the Covenant.

[Adopted in English, French and Spanish, the English text being the original version.

Subsequently to be issued also in Arabic, Chinese and Russian as part of the

Committee's annual report to the General Assembly.]

footnotes

*/ Made public by decision of the Human Rights Committee.