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A. Decisions of the European Court of Human Rights

Abdulaziz, Cabales and Balkandali v. UK
Decision of the European Court of Human Rights (1985)
Full Decision

The case of Abdulaziz, Cabales and Balkandali, the applicants were lawfully and permanently settled in the United Kingdom (UK). In accordance with Immigration Rules then in force their husbands were refused permission to remain with or join them in the UK. The applicants maintained that they had been victims of discrimination on the grounds of sex and race and in the case of Mrs. Balkandali alone also of birth and that this violated Art. 3, 8 and 14 of the ECHR. A breach of Art. 13 was also alleged.

The Court held unanimously that there was no breach of Art. 8 alone, but Art. 8 and 14 taken together had been violated by reason of discrimination on grounds of sex. The right of a foreigner to enter or remain in a country was not as such guaranteed by the ECHR but immigration controls had been exercised consistently with the obligations of the ECHR. The exclusion of a person from a State where members of his family were living might raise an issue under Art. 8. "Family life" includes the relationship that that arises from a lawful and genuine marriage even where the family is not yet fully established. It normally also comprises cohabitation in the case of a married couple. The relationships established in the present case were sufficient to attract the application of Art. 8 States have a wider margin of appreciation in determining the steps necessary to ensure compliance with the obligation to respect family life and the extent of their duty to admit relatives of settled immigrants will vary according to the circumstances of those involved. Article 8 does not oblige States to respect the choice by married couples of their matrimonial residence and to accept the non-national spouse for settlement in that country. There were no obstacles to the applicants' establishing family life in their own or husbands' home countries and they knew that their husbands required permission to remain permanently in the UK. There was therefore no violation of Art. 8.

However, a difference of treatment in the enjoyment of rights and freedoms protected by the ECHR is discriminatory if it has no objective and reasonable justification, or if it does not pursue a legitimate aim, or if there is no reasonable relationship of proportionality between the means employed and the aim sought. The 1980 Immigration Rules had the legitimate aim of protecting the domestic labour market, but the respective impact on the labour market of the immigration of the husbands and wives was insufficient to afford the very weighty reasons which could justify their different treatment under the Rules. The different treatment of husbands and wives was not justified on grounds of advancing public tranquillity, nor was the more generous treatment of other groups relevant. The applicants had been victims of discrimination on grounds of sex. The 1990 Immigration Rules made no distinction on grounds of race and were not discriminatory on that account. There was no violation of Art. 3 since the difference of treatment complained of did not denote any contempt or lack of respect for the personality of the applicants. It was not designed to and did not humiliate or debase them. Art. 13 was violated because recourse to the available channels of compliant could only be effective if the complainant alleged that the discrimination resulted from a misapplication of the 1980 Rules.

Belgian Linguistics Case
Decision of the European Court of Human Rights (1985)

Full Decision

A number of French-speaking parents in Belgium complained that certain provisions of the Belgian linguistic legislation relating to education infringed on their rights under the ECHR and the First Protocol. The legislation provided that the language of education was to be that of the region in areas designated as unilingual, but that the maternal language of the child was to be determinative in bilingual areas, and optional for the primary grades in six communes enjoying a 'special status' (provided that the head of the family was resident of one of those communes). The penalties for failure to comply with the legislation (e.g. by providing a French language school in a Dutch unilingual region) included denial of public support for and official recognition of such schools. The applicants alleged that these legislative measures abrogated the right to education guaranteed in Art. 2 of the Protocol and the right to respect for private and family life secured by Art. 8 of the ECHR, as well as constituting discriminatory treatment contrary to Art. 14.

The European Commission of Human Rights, by a majority, held that the legislation was not incompatible with Art. 2 or 8, considered in isolation or in conjunction with Art. 14, in so far as the linguistic provisions for education in unilingual or 'special status' regions were concerned, but did find violations of the ECHR and the Protocol in respect of the applicants' complaints regarding certain of the penalties imposed for non-compliance with the laws. The Commission referred the case to the Court.

The European Court of Human Rights held that the Government was entitled to withdraw public support and official recognition from French language schools which failed to comply with the legislation in question. The right to education guaranteed a right of access to educational establishment, but imported no linguistic requirements. Moreover, a difference in treatment was not per se discriminatory, provided that an objective and reasonable justification could be found. However, the legislative measure which precluded certain children, solely on the basis of the residence of the parents, from having access to the French language schools existing in the 'special status' communes constituted discriminatory treatment, founded on language, in that it was not applied uniformly to families of both national languages and did not fully respect a reasonable relationship of proportionality between the means employed and the aim sought. To that extent, therefore, the legislation did not comply with the requirement of Art. 14 of the ECHR read in conjunction with the first sentence of Art. 2 of the Protocol.

Art. 14 would not be interpreted so as to forbid every difference in treatment in the exercise of the rights and freedoms protected by the ECHR; rather the principle of equality of treatment was considered to be violated only if the particular distinction had no objective and reasonable justification. The existence of a reasonable justification was to be assessed in relation to the aim and effects of the measure under consideration, the relationship of proportionality between the means employed and the aim sought to be realised, and the legal and factual features which characterised the life of the society in question. The object of Art. 14 and Art. 2 of the Protocol, read in conjunction, was to ensure that the right to education was secured without discrimination. In the absence of any express terms, the two provisions would not be interpreted as guaranteeing to everyone the right to obtain education in the languages of his choice.

Dudgeon v. UK
Decision of the European Court of Human Rights (1981)

Full Decision

In this case, a complaint was made to the Court that the laws in Northern Ireland criminalising buggery and gross indecency between consenting males, whether in public or in private, infringed Art. 8 of the ECHR. The European Court of Human Rights held that the criminal offence forbidding homosexual conduct in Northern Ireland between adult men amounted to an unjustified interference with the right to respect for private life. Where there are restrictions on a most intimate part of an individual's private life, the Court explained, there must be "particularly serious reasons" to amount to a justification.

East African Asians v. United Kingdom
3 E.H.R.R. 76 (1981)

Applicants, 25 of them Asian citizens of the UK and colonies resident in East Africa, six of them non-citizen protected persons, challenge the UK's refusal to admit them to Britain, or to allow them to remain there permanently, as a violation of the European Convention on Human Rights, Article 3, Article 5(1) in conjunction with Article 14, and Article 8 in conjunction with Article 14.

The Commission held that discrimination on the basis of race can itself be degrading treatment under Article 3, that, with regard to the 25 applicants who are citizens of the UK, the Commonwealth Immigrants Act of 1968 under which the applicants were denied entry discriminated against the applicants on grounds of their color or race, and that application of this legislation to the applicants constituted an interference with their human dignity because it relegated them to the status of second-class citizens, and amounted to "degrading treatment" in violation of Article 3. With regard to the six protected person applicants, because the discriminatory Act of 1968 does not apply, and because the UK laws applying to protected persons do not discriminate on the basis of color or race, Article 3 has not been violated.

The Commission held that Article 5 has not been violated because the meaning of security in Article 5(1) pertains only to liberty as elaborated in the remainder of the Article. Furthermore, the court holds that the rights guaranteed by Article 5 are absolute and are not subject to combination with Article 14 in determining a violation. Therefore there has been no violation of Article 5 either independently or in conjunction with Article 14.

The Commission further held that with respect to three applicants whose wives had been admitted to residency in the UK, Article 8 had been violated both independently and in conjunction with Article 14 by UK laws that allow the exclusion of husbands whose wives are lawfully in the UK, but not of wives whose husbands are lawfully in the UK. The Commission found that Article 8 was violated because the law prevented the unification of families of citizens of the UK and colonies in the absence of a compelling state interest, and that Article 14 was violated because the exclusion applied to husbands and not to wives.

Schmidt v. Germany
judgment of 18 July 1994, series A No 291-B

Full Decision

A male citizen of Germany challenged a German law requiring all male adults to serve in the fire brigade or pay a contribution to avoid service. The choice was at the discretion of the municipality in which the citizen resided. Women were not required to serve or pay. In practice, there were enough volunteer firemen that no one was required to serve, and therefore, the financial contribution was the only obligation.
The Court held that under Articles 4(3)(d) and 14 of the European Convention on Human Rights, imposition of the financial obligation was discriminatory on the basis of sex because the state had no compelling interest in this difference of treatment. The question whether the difference in treatment in the service requirement, as opposed to the contribution requirement, was discriminatory was held to be academic and was not resolved by the Court.
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D.S. v. the Netherlands
judgment of 12 October 1992, unreported

This case is a review of a petition for admission of the applicant's claim to the Court.
The applicant claims that Netherlands rules taking into account spousal income in determining eligibility for legal aid have a discriminatory impact on women, because women generally earn less than men and are thus frequently dependant on their husbands' incomes, and thus their decisions about whether to pursue a legal claim are subject to the cooperation of their husbands. The applicant claims that the rules discriminate against her under Article 14 in her right to access to a court under Article 6.

The Commission noted that a rule which is not formally discriminatory may be discriminatory in its practical application. Thus, the Court sustains the notion of disparate impact. Here, however, the Court held that it is not unreasonable to use joint income of spouses and cohabiting partners in determining to whom the state will allocate limited legal aid resources. It also held that while in specific cases, differing views of husband and wife on legal proceedings could have an effect, that was not raised as an issue in this case. Therefore the Commission denied the application for hearing.
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Norris v. Ireland,
judgment of 26 October 1988, series A, No 142
Full Decision

Applicant, a homosexual citizen of Ireland, challenged domestic legislation which prohibited sexual acts between men. Applicant had not been charged with any offence but claimed that the legislation interfered with his private life because he hand his male partner were at risk of prosecution. Applicant charges that the legislation violated Article 8 of the European Convention on Human Rights.

The Court held that maintaining the legislation in force was a violation of the individual right to private life under Article 8. The Court stated that such interference with private life would be inconsistent with Article 8 unless it was in pursuit of a legitimate aim, was necessary in a democratic society, and was proportionate to the aim to be achieved. The court held that here, the law was in pursuit of the legitimate aim of protecting public morals, but was not proportional to that aim because of the detrimental effect it had on the lives of homosexual men.
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Modinos v. Cyprus
judgment of 22 April 1994, series A, 259
Full Decision

A gay citizen of Cyprus brought suit to challenge a Cypriot law forbidding certain homosexual acts. Cyprus claimed that the law was not enforced, but testimony by Cypriot government ministers indicated that the law was still in force and that there was a general consensus on the part of law enforcement against its abolition. The applicant argued that the perpetual threat of prosecution under a law that criminalized private homosexual behavior was a violation of Article 8 of the European Convention of Human Rights which protects individuals from unjustified interference with private life.

The court held that because the law could be enforced by future governments or by private prosecution and because the applicant could be the subject of a police investigation under the law, even if no prosecution was carried out, Article 8 had been violated as the applicant claimed.
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KARNER - Austria (N° 40016/98)

The applicant, a homosexual, lived with his partner from 1989 in a flat rented by the latter. They shared all expenses pertaining to the flat. In 1994, the applicant's partner died, leaving him his estate. In 1995, the applicant's landlord instituted proceedings to obtain the termination of the tenancy. His claim was dismissed both at first instance and appeal. The Supreme Court, however, was favourable to the landlord and terminated the tenancy. The court considered that the legislation which preserved a right to tenancy to unmarried partners in the event of the death of one of the partners should be interpreted as only applying to heterosexual couples.

Burghartz v. Switzerland
Ser. A No. 280-B, 22 Feb. 1994.

Burghartz (B) and his wife were Swiss nationals and had married in Germany. His wife also had German citizenship and they chose, in accordance with German law, her surname as the family name. B also exercised the right to put his own surname in front of the family name. However, after the Swiss registry office recorded his surname as their joint surname, the couple applied to substitute the family surname and B's surname that they had chosen in Germany. This application was refused, as was a second one made after the civil code had been amended to allow a wife to put her surname before marriage in front of the family name (which would continue to be the husband's surname). Another amendment under which couples could be authorised to bear the wife's surname as the family name was held inapplicable to marriages concluded before it entered into force. Following an appeal to the federal court which relied in part on the constitutional guarantee of equality, it was held that they could use the wife's surname as their family name but that there was no intention to introduce absolute equality between spouses as to the choice of surname and the wife's right to add her surname to that of the husband could not avail a husband in a family known by the wife's surname. The court stated that there was nothing to prevent him from using a double-barrelled name (which was a custom recognised in case law but which was not regarded as the legal family name) or even, informally, putting his surname before his wife's. Since then a large number of official documents relating to B had not included any reference to his original surname when referring to him. B complained about being unable to put his surname before his wife's and the Commission found (18-1) a breach of Art 14 taken with Art 8 and (13-6) there was no need to examine the case under Art 8 alone. Switzerland objected that B's wife was not a victim as she had been allowed to keep her maiden name and that there had been no reliance on ECHR Arts 8 and 14 in the appeal, nor any public law appeal.

The Court held: (1) that the preliminary objection should be dismissed as the case had originated in a joint application to change the joint family name and B's surname simultaneously and, having regard to the concept of the family, B's wife could claim at least to be an indirect victim of the impugned decisions; (2) that the objection about non-exhaustion of domestic remedies should also be dismissed as (a) the applicants' reliance on domestic law was understandable in view of the prohibition on suspending laws incompatible with treaties and (b) the subsidiary nature of a public law appeal prevented it from being an adequate remedy to be exhausted; (3) that Prot 7 Art 5, to which Switzerland had appended a reservation, was an addition to the ECHR and could not replace Art 8 or reduce its scope; (4) (6-3) that a person's name concerned his or her private life and Art 8 was, therefore, applicable to B's retention of the surname by which he had become known in academic circles; (5) that the family unit would be reflected by the husband adding his own surname to his wife's as much as by a single joint surname; (6) that no genuine tradition was at issue since married women had enjoyed the right from which B sought to benefit only since 1984 and in any event the ECHR should be interpreted in the light of present-day conditions; (7) that the choice of one of their surnames as the family name in preference to the other could not be said to represent greater deliberateness on the part of the husband than of the wife; (8) that other types of surname were distinguished from the legal family name; (9) (5-4) that the difference of treatment lacked, therefore, any objective and reasonable justification and was a violation of Art 14 taken with Art 8; (10) that there was no need to examine the case under Art 8 alone; and (11) that the applicants should be awarded CHF20,000 towards their costs and expenses.

Comment: The Court has clearly established that a person's choice of name comes within the private life guarantee and would not allow it to be confined to an aspect of the equality between the spouses which is required by Prot 7 Art 5 and to which Switzerland had appended a reservation regarding family names. It is following a similar decision of the UNHRC with respect to the ICCPR (see Coeriel & Aurik v The Netherlands, (1995) 9 Interights Bulletin 20). This view was objected to by Judges Pettiti and Valticos in their dissent on the basis that there was a lack of consensus and that, like nationality, this should be a matter remaining within a State's domain. They warned of `undue consequences and ... numerous applications lacking any proper justification'. This is, however, to ignore the scope for regulation afforded by Art 8(2) and relevance of genuine tradition, both of which the Court acknowledged as entirely legitimate. Nevertheless it did hint at an even wider protection in the sphere of choice of names by stating that this aspect of private life concerned relationships `in professional or business contexts' and by its emphasis on the importance of B retaining the surname by which he was known in academic circles. This suggests that some obligation to protect the names of businesses could also be part of Art 8. Judge Thor Vilhjalmsson regarded Art 8 as inapplicable because there was an insufficiently prejudicial effect on the applicants to warrant international protection; this fails to see the matter from their perspective and also overlooks the significance of the sex discrimination involved which the Court continues to view seriously (see also Karlheinz Schmidt v Germany, supra). Judges Pettiti, Russo and Valticos did not consider that the claim of discriminatory treatment had been made out because the couple were allowed to change their name but this did not address the point that married men were being treated differently than married women.

Marckx v Belgium (1979) 2 EHRR 330, EctHR Full Decision

The applicants, Paula Marckx and her infant daughter Alexandra, complained that certain aspects of the illegitimacy laws in Belgium - including the requirement that maternal affiliation could be established only by a formal act of recognition, and the existence of limitations on the mother's capacity to give or bequeath, and the child's capacity to take or inherit, property - infringed Article 8 of the Convention (right to respect for family life) taken alone and in conjunction with Article 14 (rights to be secured without discrimination) and Article 1 of the First Protocol (right to peaceful enjoyment of possessions) alone and together with Article 14. It was also claimed that Articles 3 (prohibition of degrading treatment) and 12 (right to marry and found a family) had been infringed. By a majority, the Commission formed the view that there had been violations of all the Articles relied on except for Articles 3 and 12, and referred the case to the Court.

The European Court of Human Rights held that the legislation failed to respect the applicants' family life, as protected by Article 8, and constituted discrimination in violation of Article 14 by virtue of the lack of any objective and reasonable justification for the differences of treatment between the legitimate and illegitimate family. Article 8 made no distinctions between legitimate and illegitimate family. Article 8 did not merely compel a State to abstain from interference in family life, but might also impose positive obligations. Domestic laws relating to certain family ties, such as those between an unmarried mother and her child, must allow those concerned to lead a normal life, which implied in particular that there should be legal safeguards for the child's integration into the family. A distinction was discriminatory if it had no objective and reasonable justification, i.e. if it pursued no legitimate aim or there was no reasonable relationship of proportionality between the means employed and the aim sought to be realised. With respect to the family life of an unmarried mother and her child, Article 14 taken in conjunction with Article 8 dictated that a State had to avoid any discrimination grounded on birth. The limitations on the mother's right to dispose of her property amounted to a violation of Article 1 of the First Protocol taken in conjunction with Article 14.

Hoffmann v. Austria
17 E.H.R.R. 293
Full Decision

Hoffman (H) had married S when they were both Roman Catholics and their two children had also been so baptised, although they were not brought up in this faith. H subsequently became a Jehovah's Witness and she left S taking the children with her, while divorce proceedings were pending. S's application for parental rights over the children was unsuccessful in the lower courts but was ultimately granted by the supreme court because H was bringing them up as Jehovah's Witnesses contrary to a rule in the law on the religious education of children prohibiting a parent from unilaterally bringing children up in a faith different from that shared by both parents at the time of the marriage or from that in which they had hitherto been brought up. It also took account of the likely refusal of consent by H should the children need a blood transfusion, the effect of making the children social outcasts by bringing them up as Jehovah's Witnesses and the fact that a change of custody would not cause them psychological harm. H complained about the denial of custody and the Commission found (8-6) a breach of Art 8 in conjunction with Art 14, (12-2) no separate issue arising in regard to Art 9 (whether separately or in conjunction with Art 14) and no breach of Prot 1, Art 2.

The Court held: (1) that the custody decision interfered with H's right to family life even though taken in the context of a dispute between private individuals; (2) (5-4) that, as the supreme court's decision turned on a distinction based essentially on a difference in religion which was disproportionate to its aim of protecting the health and rights of the children, there was a violation of Art 8 in conjunction with Art 14; (3) that it was unnecessary to rule on whether there was a violation of Art 8 taken alone; (4) that no separate issue arose under Art 9, either take alone or in conjunction with Art 14; (5) that there was no reason to pursue of its own motion the complaint under Prot 1, Art 2 which H had not pursued; and (6) (8-1) that H should be paid her costs and expenses before the ECHR organs.

Comment: The Court did not rule out that in certain cases it would be appropriate to give custody to one parent in preference to the other because adhering to the precepts of the latter's religion would have a negative effect on the children which would outweigh any psychological stress caused. However, while the dissenting judges considered that this to be exactly the basis of the domestic decision, the majority considered that the crucial factor had been the change in the mother's religion; she was being treated differently because of this alone and not because of possible harmful consequences of bringing the children up as Jehovah's Witnesses. It was undoubtedly encouraged by the psychological evidence favouring the mother and it also referred of its own motion to Prot 7 Art 5 which provides for the fundamental equality of spouses as regards parental rights and the paramountcy of the children's interests. Unfortunately the case cannot avoid entwining two separate issues: custody and religious upbringing. The Court must be right that the refusal of custody because of a parent's religion must be discriminatory and a judgment has to be made whether it is justified by the harm avoided. The minority were clearly influenced by the health concerns arising from the opposition of Jehovah's Witnesses to blood transfusions but H had indicated that she would allow them where required by law. The majority did not really address the question of how the children's religious education should be determined but was aware of H's intentions. Although there was a lack of clarity about the religion in which they were being brought up before H left with them, the Austrian law seems to require the matter to be determined by parental agreement and in principle this seems consistent with both Art 14 and Prot 7 Art 5. It may, of course, be that the determination of religious education necessarily resolves the issue of custody but as the domestic decision was not expressed in this way the majority conclusion that there was unacceptable discrimination seems inevitable. Matscher and Bonnici did not consider that there was any interference by a public authority but, although the case arose out of a private dispute, the State's support necessarily determined which party prevailed and by what criteria.

Gregory v United Kingdom (1997) 25 EHRR 577, EctHR

The applicant, who is black, was tried for robbery in Manchester Crown Court. Nearly two hours after retiring to consider its verdict, a note was passed form the jury to the judge. It read: 'Jury showing racial overtones. One member to be excused'. The trial judge showed the note to the prosecution and defence. He subsequently warned the jury to try the case according to the evidence and to put aside any prejudice. The jury eventually, by a majority of 10 to 2, returned a verdict of guilty. The applicant was sentenced to six years' imprisonment. Relying upon Articles 6 and 14 of the Convention, he complained that he had not received a fair trial and that he had been discriminated against on the basis of race.

The European Court of Human Rights held, by eight votes to one, that there had been no violation of Article 6(1) and held unanimously, that there had been no violation of Article 14 in conjunction with Article 6 of the Convention. The Court's role is to examine whether there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury, bearing in mind that the standpoint of the accused is not decisive for its determination. In applying the objective test, the Court must have regard to the steps taken by the trial judge on receipt of the note from the jury. Two steps he could have taken were to discharge the jury or to ask them in open court whether they were capable of returning a verdict on the evidence alone. He chose to do neither, and it was significant that defence counsel did not consider that either was warranted in the circumstances. An investigation into the circumstances of the note as apparently requested by defence counsel was not permitted under English law. The judge chose to deal with the situation by means of a firmly worded redirection to the jury, having had the benefit of submissions from both counsel. His statement was clear, detailed and forceful and he checked for understanding. It was significant that there were no further suggestions of racial comment. The judge could therefore reasonably consider that the jury had complied with the terms of his redirection and that any risk of prejudice had been neutralised. No more was required under Article 6 to dispel any objectively held fears or misgivings about the impartiality of the jury.

Inze v Austria (1987) 10 EHRR 394, ECtHR Full Decision
The applicant complained that he was discriminated against on grounds of his illegitimate birth contrary to Article 14; his brother being a legitimate child was given precedence under the Austrian law of intestacy in the attribution of their deceased mother's farm.

The European Court of Human Rights held that there was a violation of Article 14 taken together with Article 1 of Protocol No. 1. The applicant had acquired on his mother's death a hereditary right over a share of her estate. Article 1 of Protocol No. 1 was consequently applicable. The Contracting States enjoyed a margin of discretion under Article 14, the scope of which varied according to the circumstances, subject matter and background. The Convention being a living instrument had to be interpreted, however, in the light of present day conditions. The importance attached by the State Parties to equality between children born in and out of wedlock was reflected in a 1975 Council of Europe Convention on the Legal Status of Children born out of Wedlock, which had been ratified by Austria in 1980. As a result, very weighty reasons had to be advanced before differences of treatment on account of birth out of wedlock could be justified. The aim of the legislation, to prevent the division of hereditary farms on intestacy, was not being disputed. However, general and abstract considerations concerning the deceased person's intentions, the place where illegitimate children are brought up and the surviving spouse's relations with his or her legitimate children, which may not sometimes reflect the real situation, could not justify a rule making the legitimate child the principal heir. The aim could have been achieved by applying criteria other than birth in and out of wedlock and consequently there was a breach of the Convention.

Karlheinz Schmidt v Germany
Judgment of 18 July 1994, Series A vol 291-B
Full Decision

Karlheniz Schmidt (K) was required to pay a fire service levy of 75DM under a municipal law imposing this obligation on all male adults residing in the town. The law was adopted pursuant to a state law requiring municipalities to set up fire brigades to be comprised of volunteers or professionals. Under the state law all male residents between the ages of 18 and 50 could be required to serve as firemen if there were insufficient volunteers and a fire service levy of up to 200DM could be imposed on anyone liable for fire service duty. A challenge to the constitutionality of the law was unsuccessful. K complained about the obligation of only men to serve as firemen or pay a financial contribution and the Commission found (14-1) a breach of Art 14 taken with Art 4(3)(d) and Prot 1 Art 1.

The Court held: (1) that Art 4(3) did not limit the exercise of the right in Art 4(2) but delimited its very content; (2) that compulsory fire service and the financial contribution, given its close link with the former were amongst the `normal civic obligations' envisaged in Art 4(3)(d); (3) that Art 14 complements the other substantive provisions of the ECHR and, read in conjunction with Art 4(3)(d), it was applicable in this case; (4) that, in view of the continuing existence of a sufficient number of volunteers, no male person was in practice obliged to serve in a fire brigade and the financial contribution had in fact (but not in law) lost its compensatory character and had become the only effective duty; (5) (6-3) that, in the imposition of a financial burden such as this, a difference of treatment on the ground of sex could hardly be justified and there was, therefore, a violation of Art 14 taken with Art 4(3)(d); (6) that, in view of this finding, it was unnecessary to examine the complaint of discrimination as regards the peaceful enjoyment of possessions; (7) (8-1) that K should be reimbursed the fire service levy in respect of the years 1982-84 and his costs and expenses before the national courts.

Comment: The decision reiterates the Court's general approach to Art 14 and the need, in particular, for an objective and reasonable justification for any difference in treatment. As in Schuler-Zgraggen v Switzerland (Ser A No 263, (1995) 9 Interights Bulletin 78), it was especially concerned that there be weighty considerations before it would find acceptable any difference of treatment based exclusively on the ground of sex and it did not leave much scope for any margin of appreciation. Judges Spielmann and Gotchev in their dissent accepted this principle but considered that the differential treatment was rational since the obligation to serve was based on those who were fit to serve and the compensatory charge derived directly from this obligation. This reflects an apparent ignorance of women firefighters (which is also evident in Judge Morenilla's concurring opinion) despite the statistics referred to in para 17 of the Court's judgment and is far too formalistic; the Court rightly concentrates on the discriminatory effect. However in doing so it did not actually consider the possible implications of the fact that the compensatory charge had effectively become a tax since the duty to serve was never imposed; while `civic obligations' are excluded from the definition of forced labour, these must surely be deeds of the character of work rather than a tax. If there is no linkage with some form of forced labour (whether or not of civic obligation kind), then no complaint under the ECHR would be possible since Art 14 does not prohibit discriminatory treatment per se and that would have had to have been the conclusion (albeit ironic) if the charge had been an explicit tax. Judge Mifsud Bonnici thought there was no violation because the civic obligations exception in Art 4(3)(d) meant that K was not required to perform forced labour within Art 4(2) and the issue of discriminatory treatment under Art 14 did not arise. He certainly highlights a failure of articulation on the part of the Court but it can hardly be considered that the exception should be interpreted in isolation from other ECHR provisions and that those imposed on proscribed grounds of discrimination were being authorised.

Judgment of the ECtHR, 27 March 1998
Petrovic (P), a student who worked part-time and whose wife had given birth, took parental leave to look after their child. His claim for a parental leave allowance was turned down as the law provided that only mothers could claim such an allowance when a child was born. Under the law mothers were able to claim the allowance provided that they took up to one year's parental leave and were eligible for maternity benefit (an allowance payable to working mothers for eight weeks after the birth). An appeal, alleging that the provision was discriminatory and unconstitutional, was dismissed and P then lodged a complaint with the constitutional court. While his complaint was pending the law was amended so that a father could claim parental leave allowance if he was in employment, had primary responsibility for looking after the child and the child lived under the same roof. In addition the mother had either to be entitled to parental leave and to have waived that right in whole or in part or to be prevented by her work from looking after the child. The amended law did not have retrospective effect and so did not cover P. After considering the complaint in private, the constitutional court declined to accept it for adjudication on the ground that it did not have sufficient prospects of success as, on the basis of its case law, P's constitutional rights had not been infringed. It also added that, even if regard was had to the recent amendment to the law, P's complaint was unfounded as the legislature had a certain amount of time in which to adapt new rules to changes in society.

P complained about the refusal to award him a parental leave allowance and the constitutional court's refusal to consider his appeal. The Commission, considering only the first complaint admissible, found (25-5) a breach of Art 14 taken together with Art 8.

The Court held: (1) that the refusal to grant P a parental leave allowance could not amount to a failure to respect family life since Art 8 did not impose any positive obligation to provide this financial assistance but such an allowance was intended to promote family life and necessarily affected the way in which the latter is organised as, in conjunction with parental leave, it enabled one of the parents to stay at home to look after the children; (2) that, as States were able to demonstrate their respect for family life by granting parental leave allowance, this allowance came within the scope of Art 8, and Art 14 - taken with Art 8 - was thus applicable; (3) that it was not disputed that the payment of allowances to mothers but not fathers amounted to a difference in treatment on grounds of sex; (4) that, notwithstanding any differences that might exist between mother and father in their relationship with the child, both parents were similarly placed as regards taking care of the child in the period after birth; (5) that at the end of the 1980s there was no common standard in the field as the majority of Contracting States did not provide for parental leave allowances to be paid to fathers and the idea of the State giving financial assistance to the mother or the father, at the couple's option, so that the parent concerned could stay at home to look after the children, was relatively recent; (6) that it thus appeared difficult to criticise the Austrian legislature for having introduced in a gradual manner, reflecting the evolution of society in that sphere, legislation which was very progressive in Europe; and (7) (7-2) that, as the refusal to grant P a parental leave allowance had not exceeded the margin of appreciation allowed to Austria and the difference in treatment was thus not discriminatory within the meaning of Art 14, there was no violation of Art 14 taken together with Art 8.

Comment: Although the Court has been prepared to recognise some positive aspects in the obligation to respect family life (see Kroon v The Netherlands, (1996)), the provision of explicit economic assistance as is entailed by parental leave allowance would have gone well beyond what has so far been recognised as required, even if the significance of the economic factor is undoubtedly overstated since all positive obligations have costs. However, while the ruling in this case is a good illustration of how Art 14 can broaden the protection of other rights in the ECHR (cf Gaygusuz v Austria, (1997)), this provision has not been of any avail in the absence of it being shown that the differential treatment concerned does not have an objective and rational basis. In looking for this in the past, the Court has required very weighty considerations to justify differences based exclusively on the ground of gender (see Karlheinz Schmidt v Germany, (1995) and Schuler-Zgraggen v Switzerland, (1995)) but this ruling would seem to have diluted the entire requirement by allowing a respondent State a margin of appreciation and by expecting a sufficient evolution in social attitudes across Europe to be established.

Although the latter consideration has undoubtedly been a factor in determining whether something falls within the scope of one of the ECHR's substantive rights (see B v France, (1993)), it does not in itself seem to point to there being any objective and rational basis for the differential treatment. Judge Pettiti offered a slightly more cogent attempt at a positive justification by invoking the biological and psychological bond between mother and child, especially in the period after birth. But this does not alter the fact that the allowance concerned seems to be designed to provide care for a child and that a refusal of it to the person who is actually providing such care is unlikely to further this fundamental objective. The ruling is in marked contrast to the Court's unwillingness in Van Raalte v The Netherlands, (1997)) to accept differential tax liability for men and women when their situations were essentially the same. Judges Bernhardt and Spielmann dissented on the basis that traditional practices could not be a sufficient justification and that this was not an area where European practice was relevant since the issue was the acceptability of the approach taken by a State where it decided to provide an allowance such as this.

Schuler-Zgraggen v. Switzerland
judgment of 24 June 1993, Series A no. 263.
Schuler (S), who had contributed to the state invalidity insurance from her wages when working, contracted tuberculosis and was granted an invalidity pension when it was determined that she was unfit for work. She gave birth to a son in 1984 and, after being required to undergo a medical examination, her pension was cancelled with effect from May 1986 as her family circumstances had changed and she was 60-70% able to look after her home and child. Before the hearing of an appeal before the appeals board, for which she was not legally represented, she unsuccessfully sought to see her medical file and the handing over of vital documents. The board dismissed her appeal, finding that she had not availed herself of the opportunity to inspect the file at its registry, that, even if she had been fit, she would have been content with looking after her home once the child had been born and that her invalidity was not enough to make her eligible for a pension. A request to have documents in the file to assess the prospects of succeeding in her action was refused. The insurance court subsequently arranged for the file to be made available for inspection and she photocopied certain documents. It later forwarded the case file to the lawyer then representing her. The insurance court, without an oral hearing, upheld her complaint that the board had failed to produce all the documents for inspection but dismissed her appeal against the revocation of the pension, basing its decision on the assumption that, even if her health had not been impaired, she would have been occupied only as a housewife and mother. In its view the question was not whether she was fit to work in her previous employment but whether she had been restricted in her activities as a mother and housewife and it considered that any handicap was not sufficient for a pension. S complained about insufficient access to the file, the absence of a hearing in the insurance court and that court's assumption that she would have given up work even if she had not had health problems. The Commission found no breach of Art 6(1) in respect of either (10-5) the failure to hold a hearing or (13-2) access to the file and (9-6) no breach of Art 14 taken together with Art 6. Switzerland objected that S was not a victim because she had not availed herself of the opportunity to examine the file at the board's registry and that she had not exhausted domestic remedies by applying to the insurance court for a hearing or by making a precise complaint of discrimination to it.

The Court held: (1) that the right to an invalidity pension was an individual, economic right to which Art 6(1) applied; (2) that, as S's complaint related to having the documents in the file (or copies) handed over, it could not be objected that she had not examined them at the registry; (3) that, although the proceedings before the board did not enable S to have a complete, detailed picture of the particulars supplied to it, this had been remedied by the insurance court's request that it make all the documents available; (4) (8-1) that the proceedings, since they were fair overall, did not violate Art 6(1); (5) that estoppel applied to the objection that S had not sought a hearing in the insurance court since it could have been raised before the admissibility decision; (6) that S had unequivocally waived her right to a hearing by not applying for one, the dispute did not raise issues of public importance requiring such a hearing and the systematic holding of hearings could prevent compliance with the `reasonable time' requirement in social security cases; (7) (8-1) that the absence of a hearing did not, therefore, violate Art 6(1); (8) that it could not consider S's complaint about the independence of doctors bound by a long-term contract to a social security institution as this had not been raised before the ECmHR and did not relate to facts found within the admissibility decision; (9) that, as S had raised the substance of her complaint about discrimination in her appeal to the insurance court, it could not be objected that she had not exhausted domestic remedies; (10) that there was no attempt to probe the validity of the assumption that women give up work when they give birth to a child and this was the sole basis for the insurance court's reasoning; (11) (8-1) that this assumption introduced a difference of treatment based on the ground of sex only without any reasonable and objective justification and was a violation of Art 14 taken together with Art 6(1); (12) that the finding of a violation was sufficient just satisfaction for any non-pecuniary damage suffered; (13) (8-1) that the application of Art 50 to S's claim for the loss of the benefit of a full pension should be reserved as the victim of a violation of the ECHR could now apply to reopen proceedings in Switzerland; and (14) that S should be awarded CHF7,500 in respect of costs and expenses before the ECHR institutions.

Comment: This decision makes it clear that approaches to the weighing of evidence by the courts which involve differential treatment can fall within the ECHR's prohibition of discrimination when taken with Art 6, even though a decision-maker or a legislator acting in the same way could not be held to be held to have acted unacceptably. The line between these is clearly fine and Judge Golcuklu dissented seeing the complaint as solely a matter of substance. In holding Art 6 applicable to the dispute the Court was mindful that the outcome affected her means of subsistence and followed its view that even welfare assistance is covered by this provision (see Salesi v Italy, Ser A No257-E, (1995)). It also followed its case law that defects at a lower instance can be cured on appeal (see Edwards v United Kingdom, Ser A No 247-B, (1994)) in its response to the non-disclosure of the file. Judge Walsh, however, pointed out that this was not entirely the case as the board was not in a position to disclose certain documents not in the file. The rejection of the need for an oral hearing in the insurance court was solely on the basis that the circumstances did not warrant one in the absence of S's own request but it was clearly mindful that a requirement to hold one could have a disastrous effect on the processing of social security cases. Judge Walsh did not consider that S had agreed not to have a hearing and that an issue of public importance should not be a condition precedent to the operation of Art 6(1).

Judgment of the ECtHR, 21 February 1997
Full Decision

Van Raalte (V), who was born in 1924, had never been married and had no children. He received assessment for the years 1985-1988 of his contributions under various social security schemes which included child benefits. His objection to contributing to the latter benefits on the basis that unmarried childless women over forty-five were exempted from having to do so was found, with respect to the 1985 assessment, to be unfounded by the tax inspector because the statutory provision involved did not apply to someone who was not female. This exemption had been introduced on the basis that women who had no children and who in all probability never would have them suffered thereby and should not have imposed on them the additional emotional burden of having to contribute to the child benefit scheme. The appeal court, dismissing his appeal, considered not only that the difference in treatment was based on a factual situation rather than sex but also that, if this were wrong, the outcome would be a finding that the impugned provision had no force rather than an extension of the exemption. A further appeal was dismissed by the supreme court which found that it was unnecessary to consider whether there was an objective and reasonable justification for the exemption and whether it applied to unmarried men over forty-five because it had been removed with effect from January 1989. The tax inspector then issued decisions dismissing V's objections to his assessments for the years 1986-1988. It appeared that, out of all 'legitimate' children, the percentage of those born to fathers and mothers over forty-five was 1.43% and 1% respectively. No figures were available for children born out of wedlock.

V complained about having to pay the contributions and the Commission found (23-5) a breach of Art 14 taken with Prot 1 Art 1. The Court held:

(1) that it was not contested that the case came within the ambit of Prot 1 Art 1 since it concerned the State's right to secure the payment of taxes or other contributions and there was no reason to hold otherwise;
(2) that Art 14 was, therefore, applicable to it;
(3) that very weighty reasons would have to be advanced before a difference in treatment based exclusively on the ground of sex could be regarded as compatible with the ECHR;
(4) that the factual differences between unmarried childless men over forty-five and unmarried childless women of the same age did not mean that there was not a difference in treatment between persons in similar situations based on gender but was at the heart of the question whether it could be justified;
(5) that the exemption ran counter to the underlying character of the social security scheme that the obligation to pay contributions did not depend on any potential entitlement to benefits that an individual might have;
(6) that, bearing in mind that (a) there were women over forty-five who might give birth to children and there were men of forty-five or younger who might be unable to procreate, (b) an unmarried childless woman aged forty-five or over might well become eligible for child benefits by, for example, marrying a man with children from a previous marriage and (c) an alleged unfair emotional burden imposed by levying such contributions from unmarried childless women might apply equally to unmarried childless men or couples, a desire to spare the feelings of childless women of a certain age could not provide a justification for this gender-based difference of treatment;
(7) that there was, therefore, a violation of Art 14 taken with Prot 1 Art 1;
(8) (8-1) that, as the finding of a violation did not entitle V to retrospective exemption from contributions under the scheme in question, his claim for pecuniary damage in respect of the contributions already paid had not been substantiated;
(9) that the finding of a violation was sufficient just satisfaction for any non-pecuniary damage; (10) that B should be awarded NLG 23, 271 in respect of his costs and expenses; and (11) that the statutory rate of interest applicable in the Netherlands was 5% per annum.

Comment: The Court is here maintaining its requirement that cogent justification be provided for any discrimination based on gender (see Karlheinz Schmidt v Germany, (1995) and rightly refused to accept that factual differences between genders could of themselves be a sufficient justification. The fact that this was a non-contributory tax scheme only served to highlight the unequal treatment; considering the risk of a claim by a particular gender would have been no more acceptable in an insurance scheme (and there was a greater chance of paternity than maternity in the age band concerned) unless there was proper weighting of the respective positions of men and women. The Court clearly did not consider that the variation in the risk of parenthood was significant even though men over forty-five were thirteen times more likely than women to become parents; there is perhaps a need to consider the point at which a particular risk (or other occurrence) becomes small enough in the case of one gender for it not to be a barrier to the acceptability of differential treatment. However, the dismissal of the suggestion that unmarried women would suffer a greater emotional burden was understandable given the liability of other childless persons to make the contributions. The ruling is, however, a significant indication that there has to be an objective justification for taxation which is levied according to whether or not one falls into a particular category of person. This particular exemption was repealed in 1989 in response to a change in social attitudes towards unmarried childless women. The ruling on pecuniary loss does not entirely make sense; the Court could not order V's exemption and the finding of a violation did not automatically invalidate his liability in the Netherlands. Nevertheless the contribution was levied contrary to the ECHR and, if reparation is supposed to wipe out the consequences ensuing from such a breach of it (see Papamichalopoulos and Ors v Greece, (1996)) damages covering the amount paid seems appropriate; cf the Court's approval of the retrospective payment of a pension wrongly refused, together with its own requirement that interest be paid on the amount concerned, in Schuler-Zgraggen v Switzerland (Art 50), (1996). Judge Foighel's dissent on this point is understandable.

Vermeire (V) was her father's illegitimate child and had been brought up by her grandparents. They had both died intestate and their two estates had been realised and distributed to the legitimate grandchildren. V had then unsuccessfully claimed a share in the two estates. The courts had held that, insofar as Art 8 ECHR imposed a positive obligation to create a legal status in conformity with its principles, they could not give direct effect to the passages in the Marckx judgment (Ser A No 31, 1979) relating to an illegitimate child's inheritance rights on intestacy.

V complained that the denial of the status of an heir of her grandparents was a discriminatory interference with the exercise of her right to respect for her private and family life. The Commission found a violation of Art 8 in conjunction with Art 14 as regards her grandfather's estate but (7-6) not as regards her grandmother's estate.

The Court held: (1) (8-1) that, since the succession to the grandmother's estate had taken place on her death in 1975 and it had devolved on her `legitimate' heirs as of that date (even though it had actually been wound up afterwards), this was a legal situation antedating the delivery of the Marckx judgment and there was no occasion to reopen it; (2) that the finding in the Marckx judgment (that a total lack of inheritance rights, based only on the `illegitimate' nature of the affiliation, was discriminatory) was equally applicable to the succession to the grandfather's estate in 1980; (3) that the rule prohibiting discrimination against V on the grounds of the `illegitimate' nature of her relationship with the deceased was sufficiently precise and complete to be applied by the domestic courts; (4) that the overall revision of the legislation on intestacy pursued by the legislature was not necessary as an essential preliminary to compliance with the ECHR (as interpreted in the Marckx case); (5) that a state's freedom to choose the means of fulfilling its obligation under Art 53 cannot allow it to suspend the application of the ECHR while waiting for such a reform to be completed to the extent of compelling the Court to reject in 1991, with respect to a succession which took effect in 1980, complaints identical to those that it upheld in 1979; (6) that V's exclusion from the estate of her grandfather violated Art 14 in conjunction with Art 8; and (6) that the application of Art 50 was not ready for decision.

Comment: Long-winded efforts, however sincere, to implement ECtHR judgments will not preclude further liability. The ECtHR clearly a less conservative view than some domestic courts as to whether ECHR provisions are self-executing. Judge Martens's partly dissenting judgment cogently argues that the limit on Marckx's retroactive effect was intended to protect the interests of third parties but not those of `legitimate' children.

B. Decisions of the Human Rights Committee:

Broeks v. The Netherlands

Decision of the UN Human Rights Committee (1987)
Full Decision
In The Netherlands, under the Unemployment Benefits Act, married women could not claim continued unemployment benefits unless they were the "breadwinners" (meaning that they earned over a certain proportion of their family's total income) or that they were permanently separated from their husbands. The condition did not apply to married men.
Using the first Optional Protocol, Mrs. S.W.M. Broeks complained to the Human Rights Committee that the Unemployment Benefits Act violated her right under Art. 26 of the ICCPR to equality before the law. The Committee found that the law differentiated on the grounds of sex placing married women at a disadvantage compared with married men and noted that this differentiation was not reasonable.

The Human Rights Committee found that Mrs. Broeks was a victim of a violation, based on sex, of Art. 26 of the ICCPR, both because the statute placed no similar burden on married man, and because it found the differential treatment unreasonable. The Committee explained that Art. 26 of the ICCPR requires that once a state adopts social security legislation, it must provide the benefits equally.

The Committee stated further that the discrimination provisions of the ICCPR "would still apply even if a particular subject matter is referred to or covered in other international instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women or…the ICESCR." Therefore, the case of Broeks v. The Netherlands is an example of Art. 26 of the ICCPR giving protection from discrimination that is not related to a civil or political right. If a law discriminates, Art. 26 applies whether or not the subject matter of the law is covered by provisions of the ICCPR. Art. 26 therefore has the potential to be widely used to oppose discrimination.

Communication No. 478/1991, U.N. Doc. CCPR/C/48/D/478/1991 (1993).
Full Decision
In 1984 A, a married women, had been refused certain unemployment benefits because she did not qualify as a breadwinner, a restriction that did not apply to married men. A challenge to this rule was unsuccessful because ICCPR Art 26 was held not to have direct effect at that time but the the restriction was abolished in 1991 with retroactive effect. A's attempt to obtain the benefits to which she should have entitled in 1984 was unsuccesful because she was not unemployed at the time of this application. A complained about discrimination.

The Committee held: (1) that, even if the law (prior to its amendment with retroactive effect) were inconsistent with the ICCPR, the correction of the alleged inconsistency had remedied the alleged violation and A's communication was inadmissible since she could not claim to be a victim of a violation at the time of submitting it; (2) that the requirement of being unemployed at the time of application as a prerequisite for entitlement to benefits was not discriminatory since it applied to men and women equally and A did not, therefore, have a claim under OP Art 2; and (3) that the determination of whether and when Art 26 had acquired direct effect was a matter of domestic law and did not come within its competence.

Comment: Although formally gender-neutral the effect of the requirement of being unemployed is that only women who should have received the benefits will be adversely affected. The Committee's decision is only explicable in the context of its repeated refusal to regard Art 26 as extending to differences of result in the application of common rules in the allocation of benefits. While the decision on the merits is consistent with the Committee's past practice, it casts doubt on its conclusion that the retroactive amendment of the law meant that A could not claim to be a victim; since the effect of the requirement was that she could probably never obtain the benefits which should have been payable in 1984 (to be consistent with Art 26), it is hard to understand how the 1984 violation has been remedied with respect to her. However, the introduction of an explicit time limit on communications under the OP (comparable to that in ECHR Art 26) might be desirable. The Committee rightly left issues of the ICCPR's direct effect to national institutions but the resulting diversity in approach underlines the danger of assuming that its formal incorporation is the only measure of domestic implementation required.

Avellanal v Peru
Communication No. 202/1986
Full Decision

Article 168 of the Peruvian Civil Code provided that only men were allowed to represent matrimonial property before the Courts. Ms Avellanal, who was married, owned two apartment buildings in Lima. The Supreme Court held that she was not entitled to sue her tenants for overdue rent because she was married and under the Civil Code, only husbands could represent matrimonial property.

Ms Avellanal complained to the Human Rights Committee. In its views, the Committee found that the application of Article 168 of the Civil Code resulted in Ms Avellanal being denied equality before the courts and constituted discrimination on the ground of sex. The Committee expressed the view that Peru was under an obligation to take effective measures to remedy the violations of the ICCPR suffered by Ms Avellanal.

The Mauritian Women Case

Communication No. 35/1978
In Mauritius, until 1977, spouses (husbands and wives) of Mauritian citizens had the right of free access to Mauritius, were immune from deportation and were de facto residents of Mauritius. In 1977 new immigration laws were passed, limiting these rights to the wives of Mauritian citizens only. Foreign husbands lost their residence status and had to apply for a residence permit which could be refused or removed any time by the Minister of the Interior.

A group of 19 Mauritian women used the first Optional Protocol to the ICCPR to complain about the discriminatory law to the Human Rights Committee. They complained that the law discriminated against them on the ground of sex in their ability to enjoy civil and political rights, including the right to be free from arbitrary and unlawful interference with family.

After considering the response of the Mauritian government, the Human Rights Committee adopted the view that the law made an adverse distinction on the grounds of sex on the right to be free from arbitrary and unlawful interference with family and was in breach of the ICCPR.

Godefriedus Maria Brinkhof v. The Netherlands
Communication No. 402/1990, U.N. Doc. CCPR/C/48/D/402/1990 (1993).
Full Decision
Brinkhof (B) was a conscientious objector to both military service and substitute public service. After he did not report for military service on a specified day he was arrested but, having refused to obey orders to accept a military uniform and equipment, he was convicted of a violation of the military penal code, sentenced to 12 months' imprisonment and dismissed from military service. B complained that, while conscientious objectors may be prosecuted under the code, Jehovah's Witnesses may not, that performing military service would involve him in the unlawful use of nuclear weapons, that the military court was not impartial, that there was no provision for appeal against the summons and that the prosecution violated his freedom of conscience because his conscience prevented him from applying for substitute military service. The Committee found only B's first complaint admissible.

The Committee held: (1) that the exemption of only one group of conscientious objectors and the inapplicability of exemption for all others cannot be considered reasonable; but (2) that, as B had not shown that his convictions as a pacifist were incompatible with the system of substitute service or that the privileged treatment accorded to Jehovah's Witnesses adversely affected his rights as a conscientious objector against military service, he was not a victim of a violation of Art 26.

Comment: Although the special treatment of Jehovah's Witnesses was a recognition of the strict rules governing this religious group, the Dutch law precluded the possibility that anyone else might also find substitute as well as military service objectionable on grounds of conscience. The Committee, therefore, could not (unlike the ECmHR) regard this special treatment as acceptable but B failed to demonstrate that his beliefs were incompatible with substitute service. The Committee also reiterated its view that differential treatment between civilians and those subject to military jurisdiction does not as such contravene Art 26

Araujo-Jongen v. The Netherlands

Communication No. 418/1990, U.N. Doc. CCPR/C/49/D/418/1990 (1993).
Full Decision
Cavalcanti Araujo-Jongen (C), a married women who had become unemployed in 1983, had been refused certain benefits in 1986 because she did not qualify as a breadwinner, a restriction that did not apply to married men. A challenge to this rule was unsuccessful because ICCPR Art 26 was held not to have direct effect until December 1984 and thereafter the restriction remained applicable to women who had become unemployed before then. It was ultimately abolished with retroactive effect in June 1991 but C's attempt to obtain the benefits to which she should have been entitled in 1986 was unsuccessful because she was not unemployed at the time of this application. C complained about discrimination and the Committee found the communication admissible insofar as it raised issues under Art 26.

The Committee held: (1) that, even if the rule (prior to its amendment with retroactive effect) was inconsistent with the ICCPR, the alleged deficiency had been corrected; (2) that, as the requirement of being unemployed at the time of application as a prerequisite for entitlement to benefits was reasonable and objective in view of the law's purpose of assisting those who are unemployed, there was no violation of Art 26; and (3) that the determination of whether and when Art 26 had acquired direct effect was a matter of domestic law and did not come within its competence.

Comment: Unlike A P L-v d M v The Netherlands ((1994), this essentially similar communication was regarded as admissible. On this occasion the Committee made a greater attempt to justify the requirement of being unemployed at the time of applying for the benefit (the assumption being that if one has survived without it at the time it was payable then there are more deserving cases to be dealt with now but that is equally true of those who have been continuously unemployed). However its view that the deficiency in respect of C had been corrected remains unconvincing.

Lannooij Neefs v. The Netherlands
Communication No. 425/1990, U.N. Doc. CCPR/C/51/D/425/1990 (1994).
Full Decision

Doesburg Lannooij Neefs (D) shared a housed with his mother and had concluded a sublet contract with her. He was refused social security benefit at the full rate because the law precluded persons sharing a household with close relatives (other than brothers or sisters) from being treated as subtenants living alone. D complained about the differential treatment between close relatives and others when they were sharing a household on a commercial basis. The Committee found the communication admissible insofar as it raised issues under Art 26.

The Committee held: that the different treatment of parents and children and of other relatives respectively was not unreasonable or arbitrary and there was no violation of Art 26.

Comment: The social security law was making certain assumptions about the nature of the relationship between parents and children which were reinforced by obligations imposed by the civil law. Although D asserted that he was living with his mother on a commercial basis, his claim was undermined by the admission that his costs of living was reduced by sharing the household with her.

Drobek v. Slovakia
Communication No 643/1995), decision of 14/7/97.

Full Decision

Drobek (D), an Australian citizen, had sought the return of properties in Slovakia which he would have inherited from his father and uncle but which had been expropriated in 1945 under measures taken against ethnic Germans. Legislation had been adopted in 1991 which provided only for the restitution of property taken by the Communist regime after 1948 and his claim had, therefore, been dismissed. D complained about (a) the legislation's endorsement of racial discrimination before the ICCPR existed, (b) the continuing damage to his family's honour and reputation in the absence of any rehabilitation and return of the property and (c) the lack of an effective remedy. The OP had entered into force for Czechoslovakia in June 1991 and Slovakia notified its succession to it and the ICCPR with effect from January 1993. It made no submission in response to the communication.

The Committee held: (1) that Slovakia had continued to apply the challenged law after its accession to the ICCPR and OP and the communication was not, therefore, inadmissible ratione temporis; (2) (12-2) that legislation adopted after the fall of the Communist regime to compensate its victims did not appear to be prima facie discriminatory within the meaning of Art 26 merely because it did not compensate the victims of injustices allegedly committed by earlier regimes and D had, therefore, failed to substantiate such a claim with regard to Arts 2 and 26; and (3) that D had also failed to substantiate his claim that there was a violation of Art 17 by not rectifying the alleged criminalisation of his family. Comment: The Committee has previously made clear that there can be no obligation per se under the ICCPR to make any restitution of property taken before its acceptance or indeed to provide compensation in lieu thereof. It has, however, accepted that discrimination in the arrangements for any reparation that is forthcoming could constitute a violation of Art 26 (see Adams v Czech Republic, (1996) but this has concerned differential treatment of groups in relation to a taking of property under the same legislation and regime. It is unlikely that a failure to address all past injustices would ever be regarded as incompatible but Medina Quiroga and Klein considered that the issue should have been addressed at the merits stage, not least because it was suggested that the differential treatment related to the German origin of those affected and that there was a continuing problem of such discrimination. The issue of criminalisation in the immediate post-war period might have given rise to a continuing violation but there was no evidence of adverse treatment today other than the failure to return the property.

Full Decision

Indgren, Holm, Hojrd, Lundquist, Radko and Stahl (the applicants), whose children attended approved private schools rather than those provided free of charge by the public sector, had applied unsuccessfully to their municipalities for financial aid for school meals and the purchase of textbooks. They alleged that, as all municipalities met the cost of meals and textbooks in public sector schools and some provided such aid to the parents of children attending private schools, the refusal to give them aid amounted to discrimination contrary to Art 26.

The Committee found: (1) that a state party cannot be deemed to discriminate against parents who freely choose not to avail themselves of benefits which are generally open to all and Sweden had not, therefore, violated Art 26 by failing to provide the same benefits to parents of children attending private schools as it provides to those with children at public schools; and (2) that, where a municipality does grant aid to the parents of children attending private schools, its decision must be based on reasonable and objective criteria and be made for a purpose that is legitimate under the ICCPR but there was no evidence that the refusal of aid in these cases was incompatible with Art 26.

Full Decision
B, a married women who had become unemployed in 1983, had been refused certain benefits with effect from February 1984 (following an application made in April 1985) because she did not qualify as a breadwinner, a restriction that did not apply to married men. A challenge to this decision led to the benefits being paid from December 1984 until she became employed in 1985. This decision was upheld on appeal, the court noting that Art 26 did not have direct effect until December 1984. Thereafter the restriction remained applicable to women who had become unemployed before then until it was ultimately abolished with retroactive effect in June 1991. B's attempt to obtain the benefits to which she should have been entitled in 1984 was unsuccessful because she was not unemployed at the time of this application. B complained about discrimination.

The Committee held: (1) that B had failed to substantiate that the law's provisions were not equally applied to her and that, in particular, men who applied belatedly were granted wider retroactive benefits than women as from the date on which they became eligible; (2) that, as B had not applied for the benefits prior to December 1984, she could not claim to be a victim of a violation of Art 26 even if the law were found to be discriminatory in respect of some of those applying under it and this aspect of the communication was inadmissible under OP Art 1; and (3) that the determination of whether and when Art 26 had acquired direct effect was a matter of domestic law and did not come within its competence.

Comment: Although the period for which J was wrongly deprived of the benefits was the longest of the three cases before the Committee (nearly 11 months as opposed to 9 in Cavalcanti and 5 in A P L-v d M), she failed to establish herself as a victim in the Committee's eyes because no contemporaneous application had been made although she had made an application in 1985. As Wennergren's individual opinion points out the lateness was not seen as material then and he considered her position to be no different to that in the Zwaan-de-Vries case (182/1984, views adopted 9 April 1987) when the Committee held the rule restricting the benefits to married men to be a violation of Art 26. The complaint about her subsequent application foundered because of the Committee's view that there was no evidence of differential benefits for men and women seeking retroactive payment which, of course, misses the point that the previous discriminatory rule which necessitated such payments had only affected women.
No obligation to pay benefits retroactively to mentally handicapped applicant - ICCPR Art 26

Communication No 548/1993, Admissibility Decision, 3 November 1993

Full Decision

B, who is mentally ill, has been confined to a nursing home since 1971 and had no legal representative between his coming of age in 1973 and the appointment of a legal guardian in December 1987. In July 1987 (represented by his parents) he successfully applied for social security benefits to cover the cost of visiting his parental home during the weekends but his subsequent request that these benefits be granted retroactively to 1971 was refused and that decision was confirmed on appeal. He complained that the denial of retroactive payment discriminated against those who, like him, are mentally handicapped.

The Committee held: that, as B had not substantiated that he was denied a retroactive benefit on any of the grounds covered by Art 26 or that the social security law was not equally applied to him, the communication was inadmissible under OP Art 2.

Comment: B was arguing that the Dutch authorities should have granted him the benefits on their own initiative because the absence of a legal representative meant that he was unable to make the application. However, his parents were not precluded from applying on his behalf (and did do so before the guardian was appointed) so his disability did not in fact lead to the denial of the benefit. The decision does not indicate whether the possibility of applying for these benefits was appropriately publicised.

Trevor L. Jarman v. Australia Full Decision
Communication No. 700/1996, U.N. Doc. CCPR/C/58/D/700/1996 (1996)
Jarman (J) was sued by a firm of solicitors in relation to work done for his business which had since been sold. He claimed that, although the invoices concerned were statute barred, the solicitors had been allowed to submit the claim because the magistrate was a friend of the firm involved and that he had not had, therefore, a fair hearing. J, who defended the claim himself, was condemned to pay the debt and given twenty-one days to appeal. However, he filed his appeal three months late and it was held that there were no exceptional circumstances which would justify hearing it out of time. He also alleged that he had been denied legal aid. J complained about the discrimination in the judicial system, the failure to recognise him as a person before the law and the inability to submit his appeal.

The Committee held: (1) that the information before it did not substantiate for the purposes of admissibility how the alleged irregularities in his hearings would constitute a violation of Art 14; (2) that the allegations of discrimination and non-recognition of his rights as a person before the law did not reveal how Arts 16 and 26 might have been violated; and (3) that the communication was inadmissible under the OP Art 2.

Communication No 601/1994, Admissibility Decision, 3 April 1997.
Full Decision
Julian (J), a former fighter pilot, and Drake (D), who had become a naturalised New Zealand citizen in 1964, had been incarcerated by Japan during the Second World War in conditions where torture and maltreatment took place regularly. It was claimed that, as a direct consequence of this, they still suffered residual disabilities and incapacities. They alleged that New Zealand had, by entering into a Peace Treaty with Japan in 1952 and releasing the latter from further reparation obligations, deprived them of a right to a remedy. They also alleged that they had been discriminated against as a result of the failure to provide appropriate financial assistance and compensation for the residual disabilities and incapacities suffered by them. In particular war pensions were only provided for service personnel and their dependants. Furthermore it was submitted that the pensions were not granted to persons who had not lived in New Zealand at the outbreak of the war and that war pensions were available only for narrowly defined specific forms of disability. In addition an ex gratia payment had been made in 1988 to persons detained in Germany but not in Japan. It was also claimed that, because of their experience, they had different needs than ordinary citizens and that this was not taken into account by the public health system. New Zealand became a party to the ICCPR in March 1979 and accepted the OP in August 1989. No peace treaty had been concluded with Germany.

The Committee held: (1) that the authors had not shown any acts by New Zealand in affirmation of the Peace Treaty after the entry into force of the ICCPR that had effects which would constitute violations of it; (2) that the alleged failure by New Zealand to protect their right to obtain compensation from Japan could not be regarded ratione materiae as a violation of a right under the ICCPR; (3) that this part of the communication was, therefore, inadmissible; (4) that, although the ICCPR entered into force for New Zealand in 1979, the OP only did so in 1989 and it was, therefore, precluded ratione temporis from examining the merits of the claim that the ex gratia payment to service personnel incarcerated in German concentration camps was discriminatory; (5) that, as the war pensions law had the specific purpose of providing pension entitlements for the disability and death of those in wartime service overseas and not to provide compensation for incarceration or for human rights violations, the exclusion of civilian detainees from any entitlement was based on objective and reasonable criteria and did not constitute discrimination within Art 26; (6) that this claim was, therefore, inadmissible under OP Art 3; and (7) that, as the authors had failed to provide information as to how their personal situation was affected by the narrow class of disability for which pensions were available under the law, they had failed to substantiate their claim and this part of the communication was inadmissible under OP Art 2.

Comment: Although there is no obligation to provide a pension or other social security benefits under the ICCPR, it is well-established under the Committee's case law that differential treatment in what is provided will entail a violation of Art 26 unless it is based on rational and objective criteria (e g Nahlik v Austria, (1996) 10 Interights Bulletin 127). The applicants, both of whom emigrated to New Zealand after the Second World War, undoubtedly felt that their experience was comparable to that of servicemen but the Committee concentrated on the formal purpose behind the pension provision, i e, it was for servicemen. A more sophisticated approach to the test of discrimination might have accepted the comparability argument of the applicants but the fact that they had no citizenship bond with New Zealand at the time would still be an acceptable basis for treating them differently. The Committee left open the possibility that the disability rules governing war pensions could be challenged as irrational (as it had in Atkinson, Stroud, Cyr and ors v Canada, (1996) 10 Interights Bulletin 32) but the issue was irrelevant to the situation of the applicants who seemed to be using their claims to raise the concerns of many veterans of the Second World War. The claims relating to the peace treaty inevitably fell foul of the temporal restriction on the ICCPR and OP (as they did in the Atkinson case) but there will ultimately have to be some consideration as to whether the right to an effective remedy necessarily precludes the possibility of an action against the State responsible in another State where both are parties to the ICCPR.

Lúdvík Emil Kaaber v. Iceland
Communication No. 674/1995, U.N. Doc. CCPR/C/58/D/674/1995 (1996).
Full Decision

Kaaber (K) was, as a self-employed person, required to contribute ten per cent of his taxable income (computed as if it were a wage) to a pension fund whereas the arrangements for wage-earners were to be established through collective agreements. According to these a wage-earner had to pay four per cent of his or her taxable income into a pension fund and an amount equivalent to six per cent of those wages was also payable by the employer. The employer's payment could be deducted from tax as operating expenses. In 1992 K tried to deduct his pension fund contribution from his taxable income but the tax office ruled that it was not deemed to constitute an operating expense and this was upheld by the revenue board. The public prosecutor subsequently indicated that no measures could be taken in response to a letter from K expressing doubts about the impartiality of the board's members. He claimed that, in the course of the thirteen years that this taxation practice had been operating, the fiscal authorities had accepted a deduction of these contributions in some cases, including in respect of himself for 1991 and 1992. A first instance court was expected to rule shortly on a challenge by another self-employed person to the inability to deduct sixty per cent of the pension fund contribution from his taxable income. K, who had not brought similar proceedings, submitted that he did not expect the decision to be in the plaintiff's favour and that a similar outcome could be expected in any case brought by himself. He complained about the different treatment in the taxes levied on pension fund contributions. The court had since ruled on the case and an appeal was now pending.

The Committee held: that, as K's mere doubts about the effectiveness of domestic remedies did not absolve him of the requirement to exhaust them, the communication was inadmissible under OP Art 5(2)(b).

Comment: On the face of it there seems to have been a differential treatment of employers and self-employed persons as regards their tax liability on pension contributions but the evident failure to exhaust domestic remedies meant that the consideration of whether there was a rational justification for it could not be pursued.

Mrs. Brigitte Lang v. Australia

Communication No. 659/1995,
U.N. Doc. CCPR/C/58/D/659/1995 (1996).
Full Decision
Lang (L), a German citizen, and her husband had removed a construction by their neighbours on an embankment causeway of their adjacent properties which she claimed had been carried out without the correct authorisation. The neighbours' property had a right of way access over L's property. Various proceedings initiated by her in respect of the construction were unsuccessful and L was subsequently held to be in contempt of court for refusing to comply with an order to allow the construction on her property. She had privately retained six different lawyers in the course of the proceedings but had to defend herself for the final appeal as no lawyer would agree to take on the case. L claimed that, as a result of having to defend herself, she had developed stress related health problems and that the courts were biased against women and immigrants. She alleged that she was not allowed into the courtroom while the judge was instructing the lawyers because her appearance and that of her husband 'aggravated' the magistrate and that one of the judges shouted at her when she fainted, accusing her of feigning. In addition L alleged that in the final judgment it had been stated that some of the parties appeared to have a 'death wish' involving substantial funds that ought to be put to a better purpose than going to legal fees. L complained of violations of Arts 1,2(1)-(3), 7, 14, 16, 17 and 26 without further substantiating her claim.

The Committee held: (1) that the allegations of discrimination on the part of the courts had not been substantiated, they remained sweeping allegations and did not reveal how L's rights under the ICCPR might have been violated; and (2) that, as L had failed to advance a claim within the meaning of OP Art 2, the communication was inadmissible.

Comment: In both cases the allegations had the potential to raise issues under Art 26 (as well as Art 14) but the applicants do not appear to have done anything to suggest that they merited closer examination. Furthermore it appears that at least some of the difficulties about which they complained arose out of their own conduct in the domestic proceedings.

Oulajin & Kaiss v. The Netherlands
Communications Nos. 406/1990 and 426/1990, U.N. Doc. CCPR/C/46/D/406/1990 and 426/1990 (1992).
Full Decision

Oulajin (O) and Kaiss (K) were Moroccan citizens living in the Netherlands and had assumed responsibility for the upbringing of children of a dead brother and father. Their applications for child benefit for them had been rejected because the children's continued residence in Morocco meant that they were not able to influence their upbringing. This requirement was only applicable to foster children. Following unsuccessful appeals, O and K had applied to the ECmHR but it had held the applications inadmissible ratione materiae. They complained of an inadmissible distinction between `own children' and `foster children' and interference with their family life. The Committee found the communication admissible insofar as it raised issues under Art 26.

The Committee held: (1) that, although there was no obligation to adopt social security legislation, distinctions in the enjoyment of benefits must be based on reasonable and objective criteria; (2) that the distinction between one's own children and foster children was objective; (3) that the aim of contributing to the maintenance of children with whom the applicant had a close, exclusive parental relationship was not incompatible with Art 26; (4) that it had not been substantiated that the requirement, which applies to nationals and non-nationals, had in practice a greater effect on migrant workers; and (5) that Art 26 does not extend to differences resulting from the equal application of common rules in the allocation of benefits.

Comment: The applicants, who were already receiving benefit for their own children, considered that `Western standards' were not the only ones applicable to the concept of the family. However, the case was concerned with the provision of social security which is not required by the ICCPR and, as the individual opinion of Herndl, Mullerson, N'Diaye and Sadi made clear, there are budgetary constraints imposing a sense of proportion in the categories of dependants for which Art 26 can require provision to be made. The Committee maintained its unwillingness to consider differences in results from a common rule as constituting prohibited discrimination. It did not consider issues of family life under Art 17 to be involved, presumably because the applicants and the children lived in different countries and there was no suggestion of bringing the latter to the Netherlands.

García Pons v. Spain,
Communication No. 454/1991, U.N. Doc. CCPR/C/55/D/454/1991 (1995).
Full Decision

Pons (P), a civil servant assigned to the national employment agency, was on several occasions appointed as a substitute district judge on a short-term basis. On those occasions when he did not assume his functions because a new judge had taken up the post, his application for unemployment benefits was refused because he could resume his former post. P was declared by the agency to be on voluntary leave of absence in May 1989 but he contested that decision and continued to assume, whenever called upon, the functions of a substitute district judge. He complained about the fact that he was the only substitute judge to whom unemployment benefits were denied and the non-observance of procedural guarantees in proceedings to challenge their denial. The Committee found the communication inadmissible insofar as it raised issues under Arts 14, 25 and 26.

The Committee held: (1) that, as P had never invoked the substance of Art 25(c) before the domestic courts and had not claimed that it was impossible to do so, that part of the admissibility decision concerning this provision should be set aside for non-exhaustion of domestic remedies; (2) that unemployment benefit was only paid to those substitute judges who could not immediately return to another post upon termination of their temporary assignments and P, as a civil servant, did not belong to this category; (3) that it was not arbitrary or unreasonable to distinguish between unemployed substitute judges who were not civil servants on leave and those who were and there was not, therefore, a violation of Art 26; and (4) that the evidence submitted did not support a finding that P had been denied a fair hearing contrary to Art 14(1).

Comment: Although the ICCPR does not guarantee the right to social security, the Committee has previously recognised that non-payment may give rise to justifiable claims of discrimination (see A P L-v d M v The Netherlands, (1994) 8 Interights Bulletin 63). P understandably considered it unfair that he had paid unemployment insurance when acting as a judge but, unlike other substitute judges, could not obtain the corresponding benefits when not so employed. However, it is difficult to see how he could be regarded as unemployed, and so eligible for benefit, given his continuing status as a civil servant and it could hardly be material that he did not want to resume his post as he wished to study for the competitive exams for judicial appointments. There may be an issue about the Art 25(c) right of access to the public service lurking in the case but a greater concern ought actually to relate to P's allegation that the lack of permanence and insecurity of substitute judges endangered the independence of the judiciary. This does not, however, bear upon the rights of judges but of those coming before the courts.

S. B. v. New Zealand,
Communication No. 475/1991, U.N. Doc. CCPR/C/50/D/475/1991 (1994).
Full Decision
B (a British citizen) had moved to New Zealand to join his family, having previously lived and worked in the United Kingdom and then Jersey. While residing in Jersey he had received the full, inflation adjusted, United Kingdom pension and 18 per cent of the Jersey retirement pension. Upon moving to New Zealand the United Kingdom authorities told him that he would receive their pension without any further inflation adjustments. He then successfully applied for a New Zealand pension which, pursuant to a treaty with the United Kingdom, was assessed taking into account the United Kingdom pension then being received. Subsequently the United Kingdom pension was withheld because he was receiving a full New Zealand pension and the New Zealand authorities, in accordance with the social security legislation, reduced its pension by the amount being received from Jersey despite his submission that that pension was employment-related and not a social welfare benefit. However, a claim that a sum should be repaid was ultimately waived. B complained of discrimination against foreign immigrants in that New Zealand citizens could receive the social welfare pension plus any private pension.

The Committee held: (1) that, since a deduction occurs in all cases where a beneficiary also receives a similar benefit from abroad, B had failed to substantiate that he was a victim of discrimination and had no claim under OP Art 2; and (2) that the fact that no deduction is made for any overseas pension rights which an individual has privately provided for equally discloses no claim under OP Art 2.

Comment: The United Kingdom's withdrawal of the pension could not give rise to an admissible complaint as it does not accept the OP. There was no ruling on New Zealand's submission that the receipt of a pension from abroad did not confer any status for the purposes of Art 26; as the applicable rule affected both citizens and non-citizens, an issue under Art 26 could only otherwise have arisen if either the effect of the rule was that the latter group were adversely affected as compared with the former (which is not the Committee's usual approach to discrimination) or those contributing to state pension schemes were in a worse position to those taking out private pensions. The Committee seemed to regard both the Jersey and United Kingdom pensions as social welfare benefits despite B's claim that the former was employment related. However, there clearly is a difference between state pensions provided as a safety net and those which are a form of enforced provision through individual contributions assessed according to salary. If the latter had been involved then B should surely have been treated on the same basis as someone voluntarily paying into a private scheme. Although B may have had a valid point that the assessment of deductions did not keep pace with currency fluctuations, his best remedy might have been to have relinquished the New Zealand benefit and thereby keep his United Kingdom and Jersey ones.

Communication No 698/1996,
Admissibility Decision of the UNHRC, 29 July 1997
Full Decision

Sanchez (S) was refused an authorisation to open a pharmacy in the suburb of a town on the ground that it would not be sufficiently far from the town nucleus to be separated by a natural or artificial barrier. The refusal was upheld on appeal to the pharmacists' council but was reversed after an administrative complaint. This ruling was, however, quashed on a further appeal to the supreme court by the council. The supreme court accepted that the separation requirement in a ministerial decree could not supersede the requirement in a royal decree that a new pharmacy need only give service to a population of over 2,000 people but found the former requirement not to have been met in S's case. His subsequent recurso di amparo before the constitutional court was declared inadmissible. S complained about (a) the supreme court's interpretation of the law, (b) the use of lawyers to prepare decisions on admissibility by the constitutional court, (c) the ability of only the public prosecutor's office to appeal against the dismissal of a recurso di amparo and (d) the discrimination resulting from unjust and impartial decisions and the application of mediaeval legislation.

The Committee held: (1) that it had not been substantiated that the law was interpreted and applied arbitrarily or that its application amounted to a denial of justice which would constitute a violation of Art 26; (2) that it had not been substantiated how either the possibility of the public prosecutor's office appealing against the rejection of a recurso di amparo or the way the constitutional court organised its agenda and conducted its hearings would constitute a violation of Art 14; and (3) that the communication was, therefore, inadmissible under OP Art 2. Comment: Although absolute consistency in the application of the law may not be required in order to satisfy Art 26's requirements, clear inequality of treatment or evidence of arbitrary application of a law would be sufficient to sustain a finding of a violation. However, the applicant here did not seem to be anywhere near demonstrating this; indeed his own lawyer conceded that the apparent inconsistency with earlier case law involved different sets of facts.

The Committee understandably regarded the objection to an official appeal against the rejection of a recurso de amparo since this was likely to enhance rather than undermine an applicant's interests even if the motive was the general interest. The objection to draft opinions being prepared for a tribunal by its staff is unlikely to elicit much sympathy at the international level since that is the norm there; the more significant issue which the applicant did not address is whether such preparation meant that the constitutional court never even considered the merits of the case before it. In such circumstances a finding of a violation of Art 14(1) would be appropriate.

Simunek, Hastings, Tuzilova and Prochazka v. The Czech Republic,
Communication No. 516/1992, UN Doc. CCPR/C/54/D/516/1992 (1995).

Full Decision
Mr and Mrs Simunek (S) were respectively Polish and Czech citizens residing in Canada who were put under pressure by the security forces to leave Czechoslovakia in 1987. T was an American citizen by marriage who was resident in Switzerland and who had emigrated from Czechoslovakia in 1968. P was a Czech citizen who had fled from Czechoslovakia in 1968 and was residing in Switzerland. Their property had been confiscated after their departure and in P's case this occurred despite previous official recognition of its transfer to his father who had since died. After their rehabilitation they were unable to recover the property or receive compensation because they did not meet the requirements of a law adopted in 1991 that they be citizens of the Czech and Slovak Republic and permanent residents in its territory. The authors complained about the conditions for restitution and P also complained about the application of the law to him because he had never lost legal title to his property since its confiscation had been held to be null and void. The Committee found the communication admissible insofar as it raised issues under Arts 14(6) and 26.

The Committee held: (1) that the allegations regarding Art 14(6) had not been sufficiently substantiated; (2) that, bearing in mind that the authors' original entitlement to their respective properties was not predicated either upon citizenship or residence, the conditions of citizenship and residence in the 1991 law was unreasonable in the absence of any grounds being advanced to justify them; (3) that, taking into account the State party's responsibility for the departure of the authors, it would be incompatible with the ICCPR to require them permanently to return to the country as a prerequisite for the restitution of their property or for the payment of appropriate compensation; (4) that the denial of restitution or compensation to the authors was, therefore, a violation of Art 26; and (5) that the authors should be provided with an effective remedy (which might be compensation if the properties in question could not be returned) and the relevant legislation should be reviewed.

Comment: The Committee acknowledged that there was no discriminatory intent on the part of the legislature but could find no justification for a clear difference in treatment. In the absence of any attempt by the Czech Republic to justify these conditions, understandable significance was attached to the fact that it was political persecution in the past which made compliance with them difficult for some people; the persecution, a part of which was the very expropriation of the property now being restored, was what had led them to seek residence and citizenship in other countries. The conditions were in effect reinforcing past wrongdoing, albeit one not governed by the ICCPR. The decision does not preclude the possibility of citizenship or residence requirements being adopted for the ownership of land; these may be warranted by the circumstances prevailing in some countries but no attempt was made to suggest that they were needed in this case and, even if they were admissible in principle, they could not be a justification for refusing to provide compensation as an alternative to restitution.

SNIJDERS, WILLEMEN and VAN DER WOUW v THE NETHERLANDS, Communication No 651/1995, Views of the UNHRC, 27 July 1998
Full Decision

Snijders (S), Willemen (W) and Van der Wouw (V), who are single, were receiving long-term medical care in a nursing home. Such care was provided under a compulsory, nation-wide insurance scheme which was funded through contributions which were levied by the tax department and could be imposed on persons benefiting from the scheme. The same maximum income-related contribution of NLG 1,350 could be levied from a single person as from married or cohabiting persons when both partners benefited from the scheme. The levy was imposed after six months of receiving care and irrespective of whether the person?s household had been discontinued. A non-income-related contribution of NLG 180 per month was levied from patients who did not pay an income-related contribution (and these included married or cohabiting persons whose partners were not also hospitalised). The income-related contribution was calculated by deducting specific expenses from the total income and these would include retention of an independent household if it was considered likely that the insured's residence would be temporary. NLG 978, 1,210 and 745 was levied from S, W and V respectively in respect of their stay in the home which they successfully challenged as discriminatory. However, the central board of appeal held that the distinction between married or cohabiting persons and those who were single was justified on the basis that costs saved by the former, when a household was continued, were minimal whereas costs saved by a single person, whose household was discontinued, were substantial. The Netherlands submitted that it was necessary to complement the insurance with a system of personal contributions since otherwise the scheme would not be affordable. It also submitted that each individual's ability to pay, as well as domestic circumstances, were taken into account but that the determining factor was whether the period of residence should be regarded as temporary or permanent and whether the person concerned might be reasonably expected to return to the community. The present scheme reflected a European Community directive concerning the progressive implementation of the equal treatment for men and women in matters of social security. It made an adjustment to the previous system, under which only the husband was required to pay a personal contribution, but the intention was that this adjustment should have no financial consequences for the scheme or for the insured, particularly married couples. The aim was to avoid such couples suddenly having to pay double the contribution previously required while their income remained the same.

S, W and V complained about the differential treatment of single and married persons and the requirement to pay a contribution under the scheme.The Committee found the communication admissible. The Committee held: (1) that the requirement that individuals, when benefiting under the insurance scheme, pay a personal contribution towards the costs of residential care, is as such not in violation of the principle of equality before the law; (2) that, as the explanation given by the Netherlands justified the distinction between those required to pay personal contributions and those not required to do so, this distinction was not a violation of Art 26; (3) that the distinction between the contribution of a single and a married or cohabiting person whose partner continued to live in the common household, being based on a presumption which had its basis in the factual circumstances of persons benefiting from the scheme, was objective and reasonable and did not violate Art 26; (4) that, although account was taken of each individual's ability to pay as well as domestic circumstances in calculating the amount payable, the ceiling on the contribution was the same for single persons and couples alike but none of the authors had been levied for a contribution that would amount to this ceiling and they had, therefore, failed to show that they were victims of a violation of Art 26. Comment: Although the Committee simply stated that no objection could be raised under Art 26 solely because a charge was made for some but not all social benefits, it was probably significant in this case that the need for a contribution only arose where a higher level of benefit was being received (i e residential care). A claim of inequality might thus be sustainable where there was a differential approach to charging for benefits which were essentially comparable in character or value. Moreover, whenever charges are imposed for a particular benefit, any difference in the basis for imposing them must be shown to be objective and reasonable. The Committee understandably regarded this as having been established where an allowance was made for the outgoings that still had to be borne by the spouse of a person in residential care; an assumption could justifiably be made that a single person or a married couple both permanently in residential care would no longer have household expenses. Nevertheless this case is also a good illustration of how attempts to remove one element of inequality might lead to another arising. Thus the directive being implemented was designed to remove less favourable treatment for wives of persons in care but the desire to avoid imposing a sudden financial burden on couples who were both in care led to the ceiling on the income-related charge being made in respect of them being the same as that for a single person, notwithstanding that the combined income of many couples could be significantly greater than that of single persons. Although a maximum charge is unlikely to be challengeable under Art 26 even if it has a more significant impact on the poor than the rich, it seems questionable for two persons to be effectively treated as one where they are married; the greater burden involved in implementing the directive seems to be being thrown on single persons without this even being a transitional arrangement and without consideration of the actual ability of individual married couples to contribute to their care on the same basis as a single person. The view that the authors were not victims because the contributions levied from them had not reached the ceiling seems to miss the point that, even if they had paid less than this, the charging rate for them was still effectively greater than that for couples; the charge levied from all three authors was considerably more than half the maximum contribution yet this was all that a married couple, if taken as individuals, would be liable to pay.

Sprenger v. The Netherlands
Communication No. 395/1990, U.N. Doc. CCPR/C/44/D/395/1990 (1992).

Full Decision
When Sprenger's (S) health insurance had expired with her entitlent to unemployment benefit, she had applied for alternative benefits whereby she would have received public health insurance. This had been refused because she cohabited with a man whose income was higher than the benefits then applicable. At the time the spouse of an insured person could also be insured if she shared the household and the insured person could be considered to be her breadwinner but S's application to be registered as a co-insured person had been refused because the legislation did not provide for co-insurance of partners other than spouses. S complained of the distinction made between married and unmarried couples despite the recognition of equal status for common law and official marriages in other social security legislation. The insurance law had since been amended to recognise the equality of common law and official marriages.

The Committee held: (1) that, although the ICCPR did not require the adoption of social security legislation, it must comply with Art 26; (2) that there had been no general abolition by the state party of the distinction between married persons and cohabitants and that, while equal treatment had been introduced in certain specic situations and on certain conditions, married persons continued to have additional obligations to S and her partner; (3) that this differential treatment was based on reasonable and objective grounds (Danning v The Netherlands, Communication No 180/1984 applied); (4) that a decision to amend a law did not necessarily imply that it was incompatible with the ICCPR; and (5) that the facts did not disclose a violation of the ICCPR.

Comment: While the Committee has adhered to its view that in principle the differential treatment of married and unmarried couples does not constitute impermissible discrimination, it does countenance the possibility of a state party abolishing the distinction between married persons and cohabitants. Differential treatment would, therefore, only seem to be justifiable if there are significant differences in the position of married and unmarried couples and in this case the state party relied primarily on the obligation to pay maintenance to former spouses. This is not very persuasive, particularly as the state party's own review led to extension of co-insurance to cohabitants. Ando, Herndl and Ndiaye, in an individual opinion, took a pragmatic and much more convincing approach; as legislation will always lag behind socio-economic and cultural developments, absolute equality or non-discrimination could not be expected at all times. At least in the case of economic and social rights, the obligation under Art 26 was, therefore, to keep under review distinctions that were initially reasonable and objective and to adapt laws in stages to ensure that developments did not render them unreasonable and discriminatory. They were satisfied that this was what the Netherlands had been doing.

Valenzuela (V) had been employed in the civil service for 26 years but, following a change of government, he was dismissed from his post and did not receive any severance pay. He alleged that this was because of his family's opposition to the new governing party and that for the same reasons attempts to seek administrative and judicial remedies were unsuccessful, his sons were arbitrarliy detained by the police, and one was severely beaten and also barred from participating in the university entrance examinations. He complained about discrimination, defamation, denial of justice, arbitrary arrest and ill-treatment, as well as unjust dismissal. The Committee found the communication admissible insofar as it related to the arbitrary denial of severance pay and the harassment of his family.

The Committee held: (1) that, although there was material before it indicating ill-treatment of V's sons during their detention, no finding would be made in regard to a violation of their rights as they were not co-authors of the communication; (2) that, although the allegations of harassment were not contested, they did not provide sufficient substantiation to justify a finding of a violation of Art 17; (3) that it had not been refuted that the denial of V's severance pay was politically motivated and there was, therefore, a violation of Art 26; and (4) that V was entitled to a fair and non-discriminatory examination of his claims, appropriate compensation and the severance pay which he was owed to him.

Comment: The president's failure to implement a parliamentary resolution granting V the severance pay and the various unsuccessful court proceedings undoubtedly lent his allegations sufficient weight to warrant a finding of a violation. He was not able to provide comparable substantiation of the uncontested allegations about the harassment of V's family for the Committee to find a violation of Art 17 and it is perhaps, therefore, surprising to see its over-formalistic attitude to the authorship of the communication when it had already acknowledged that there was material before it about the ill-treatment of his sons during detention contrary to Art 10(1).

Communication No 658/1995,
Admissibility Decision of the UNHRC, 23 July 1997.
Full Decision
The authors are a married couple who had emigrated to the United States in 1949 and who subsequently lost their Dutch citizenship when they became naturalised American citizens. In 1972 Mr Van Oord (Mr V) entered into an agreement with the body implementing Dutch social security insurances whereby he joined that country's retirement pension scheme by voluntary pensions. He made the retroactive payments needed to be entitled to a Dutch pension as of age 65 but this would only be 62% of the full benefit for a married men since a percentage deduction had to be made in respect of any absence by a husband and/or wife during the period between their fifteenth birthday and 1957 when the scheme began. Mr V became entitled to his pension benefits in January 1985 and these were ultimately fixed at 58% of the pension benefits for a married man with a supplement for his wife which was 66% of the maximum payable. However, the scheme had been altered in April 1985 so that the right to pension benefits for married women was henceforth to be calculated on the basis of their own entitlements rather than the payments made by their husbands. The authors were informed in February 1991 that the supplement paid in respect of Mrs V was to be withdrawn retroactively as of December 1989, when she reached pensionable age, and she would be offered a pension based on 58% of the full benefit as she had not paid premiums between 1985 and 1988. She did not take up the offer to pay those premiums. In April 1991 the pensions of Mr and Mrs V were raised to 86% and 76% of full benefit respectively pursuant to a treaty between the Netherlands and the United States. The scheme had also been altered so that the benefits paid became taxable income but, although a claim for tax was made against the authors and a warrant issued for non-payment, these were later withdrawn as any amount due would be balanced out by the premiums paid by them since these should have been treated as negative income. A challenge by the authors to the assessment of their pension benefit was rejected at first instance and on appeal on the basis that it was an implicit condition of the contract that the scheme could be amended, while noting that they had benefited from the treaty with the United States which had not been an express part of the agreement. The authors had since learnt that the reduction in benefits was not applicable to Australians, Canadians and New Zealanders who were former Dutch citizens because of different treaty obligations between the Netherlands and those countries as compared with those it owed to the United States.

They complained about arbitrary deprivation of their property, discrimination on grounds of nationality, the absence of equal rights for married women, the cutting down on their lives as a result of the decrease in pension, the penalty imposed for emigrating to the United States, the outlawing of independent and impartial tribunals as a result of the exclusion under the constitution of any review of legislation by the judiciary, the lack of assistance in finding a lawyer, the denial of the use of an interpreter, the imposition of a penalty without committing any criminal offence, the failure to recognise Mrs V as a person until she was 65, the damage to their reputation by the warrant issued for the tax initially claimed, the denial of their status as a married couple.

The Committee held: (1) that, as the authors' claims under Arts 6,7,12,15,16,17 and 23 were based on an interpretation of them which was contradicted by their wording and purpose, this part of the communication was inadmissible under OP Art 3 as incompatible with the ICCPR's provisions; (2) that it had not been substantiated how the constitutional provision would have affected the independence and impartiality of the courts and this part of the communication was inadmissible under OP Art 2; (3) that, although former Dutch citizens living in Australia, Canada and New Zealand benefited from privileges additional to those living in the United States, the categories of persons being compared were distinguishable and the privileges at issue responded to separately negotiated bilateral treaties which necessarily reflected agreements based on reciprocity; and (4) that the facts presented by the authors did not, therefore, raise an issue under Art 26 and this part of the communication was also inadmissible under OP Art 2. Comment: Discrimination has been a basis for bringing disputes about social insurance and security before the Committee (see, eg, A P L-v d M v The Netherlands, (1994)) but differential treatment is not in itself sufficient to sustain a complaint. Although expatriates were being treated differently, it was inevitable that bilateral agreements concluded on the basis of reciprocity would be viewed as providing a reasonable and objective justification for such treatment. There may have been problems here in making clear the basis of calculating the benefits payable but this would not support any claim under the ICCPR. Indeed the range of rights invoked in the application reveals a simplistic reading of the text and demonstrates that reliance on a scattergun effect when making claims will not necessarily result in any target being hit. It is not surprising that a previous claim to ECmHR was also rejected. The suggestion that an inability to review the constitutionality of legislation meant that independent and impartial tribunals were outlawed is bizarre.

C. Decisions of the Committee on the Elimination of Racial Discrimination

Yilmaz-Dogan v. The Netherlands
Communication No. 1/1984 Full Decision

Ms Yilmaz-Dogan was a Turkish national residing in the Netherlands. From 1979 she worked in a textile company and in July 1982, her employer requested the Cantonal Court to terminate her employment contract because she was pregnant. He justified his request on the following grounds:

"When a Netherlands girl marries and has a baby, she stops working. Our foreign women workers on the other hand, take the child to neighbours or family and at the slightest set-back disappear on sick-leave under the terms of the Sickness Act. They repeat that endlessly. Since we must all do our utmost to avoid going under, we cannot afford such goings-on."

The Court agreed to terminate Ms Yilmaz-Dogan's contract and she unsuccessfully sought a remedy through legal proceedings in the Netherlands.

Ms Yilmaz-Dogan submitted a communication to the Committee on the Elimination of Racial Discrimination alleging that the Netherlands had violated the Convention on the Elimination of All Forms of Racial Discrimination. The Committee decided that the Netherlands had not protected Ms Yilmaz-Dogan's right to work under the Convention and recommended that the Netherlands:

- ascertain whether Ms Yilmaz-Dogan was now gainfully employed, and if not
- secure alternative employment for her and/or
- provide her with other equitable relief.

Communication No 16/1999, Opinion of the CERD, 8 May 2000
Full Decision

Ahmad (A), a Danish national of Pakistani origin, his brother and several other persons had been waiting in the corridor of a school for a friend who was sitting an examination. Although it was customary for family members and friends to gather outside examination rooms, a teacher (K) asked them to leave and, when A and his brother refused, informed the headmaster (O) who called the police. A claimed that both K and O referred to him and his brother as 'a bunch of monkeys' and that K suggested that a complaint would not be effective as they could not express themselves correctly. These events were seen by a group of parents who were also in the corridor. The police then arrived and, after discussions with A and his friends, they promised to have a discussion with O. Later that day A received a letter from O, informing him that he did not wish him to be present at an official celebration at the school in the course of which A was going to receive his diploma. O subsequently told A's father, after first refusing to see him, that the matter had been settled and asked him to leave the school. A then learnt that O had given instructions to the school's door guards not to let him in.

A's lawyer wrote to O, informing him that the expressions used against A were a violation of the criminal code - which prohibited anyone from publicly, or with the intent of dissemination to a wider circle, making statements or any other communication by which a group of person is threatened, insulted or exposed to indignities on the grounds of race, colour, national extraction or ethnic origin - and requested an explanation and apology. O replied that A and his brother had been noisy outside the examination rooms but did not deny having used the racist expression alleged.

The matter was reported in writing by A to the police who, after interviewing only K and O, discontinued their investigation. They concluded that the expression fell outside the penal code - 'monkeys' being an ordinary slang term for a 'bunch' of people that were behaving badly, irrespective of race, religion, ethnicity etc - and stated that it had to be seen in the context of a tense situation. The prosecutor upheld the decision to discontinue the investigation and refused to investigate the matter further.

A complained about the case not being examined properly and not having received an apology or sufficient satisfaction. He submitted that legal action against O and K would not be effective, taking into account the rejection of his complaints by the police and the prosecutor. He also submitted that the Danish courts had held that an incident of racial discrimination did not in itself imply a violation of honour and reputation under civil law and that racial discrimination carried out politely would thus not constitute a basis for claiming compensation. Denmark submitted that, as the statement was not directed at A's race or national origin, it was not open to prosecution and A had not established a prima facie case that he was the victim of racist statements for the purpose of admissibility.

The Committee held: (1) that, as Denmark had submitted that K had not denied calling A and his group 'monkeys' in a school corridor in the presence of several witnesses and that O did not deny having said something similar, A was insulted in public, at least by O; (2) that the prosecutor did not establish whether A had been insulted on the grounds of his national or ethnic origin but, if the police had not discontinued their investigations, it might have been established whether he had indeed been insulted on racial grounds; (3) that the statements in question did not fall outside the criminal code as persons had been convicted under it for making similar insulting or degrading statements; (4) that, owing to the police's failure to continue their investigations and the prosecutor's final decision, A was denied any opportunity to establish whether his rights under CERD had been violated and he had thus been denied effective protection against racial discrimination and remedies attendant thereupon; (5) that the communication was admissible and the facts as presented constituted a violation of Art 6; and (6) that Denmark should ensure that the police and the public prosecutors properly investigate accusations and complaints related to acts of racial discrimination.

Comment: As with many other possible human rights violations, this appears to be the sort of situation where the feasibility of substantiating a complaint is heavily dependent on the efficacy of the investigation carried out by a public authority (as to the right to life and the prohibition of torture, see Kaya v Turkey, (1998/9) 12 Interights Bulletin 201 and Aksoy v Turkey, (1997) 11 Interights Bulletin 175 respectively). Although it might have been possible for the discrimination to have been established in a civil case brought by A, the underlying (and justified) assumption of the case is that a State ought to be prepared to do its best to bring criminal proceedings where discrimination is an offence (see, to similar effect, Habassi v Denmark, Domestic Remedies, infra). The problem in this case was the failure of the police to do more than interview the supposed 'suspects' when there were other witnesses to the incident. Denmark sought to justify this by submitting that the statements were found not to fall within the offence with which the investigation was concerned but the failure to question the witnesses could well have contributed to an unjustified appraisal of the character of the language used in the impugned statements. The Committee's refusal to accept that the conclusion of the Danish authorities as to the character of the statements is probably justified but it would have been helpful for it to have indicated the basis for its own assessment The structure of the opinion is somewhat strange, with the admissibility conclusion coming virtually at the end of it.

Communication No 8/1996,
Admissibility Decision of the CERD, 10 May 1999
Full Decision
S, an Australian citizen originating from India where he had trained as a doctor, had worked as a medical practitioner under temporary registration in Australian public hospitals for ten years. He had been unsuccessful in gaining a permanent licence to practice medicine in Australia under a process which required all overseas-trained doctors (ie, those not trained in Australia or New Zealand) to pass multiple choice and clinical examinations, administered by the medical council. Between 1992 to 1995 the health minister had imposed a quota on the number of overseas-trained doctors who could pass the multiple-choice examination. S, who had three times met the minimum requirements of the multiple-choice examination but failed it because of the quota, claimed that the quota system prevented him from proceeding to the clinical examination. He filed a formal discrimination complaint with the human rights and equal opportunity commission against the quota and examination system and it found the quota policy unlawful. This ruling was overturned by the federal court which found the quota and examination system to be reasonable. The court also imposed costs on S who did not appeal to the high court because (a) this required there to be a special feature beyond error for leave to be granted (b) he did not have the means to do so without being awarded legal aid and (c) a costs order would be imposed on him if the appeal was unsuccessful.

S complained about the examination system and the quota, as well as the condonation of discriminatory acts by the federal court. He also complained that the order of costs against him constituted discrimination.

The medical council repealed the quota system in 1995 and S was able to proceed to the clinical examination. He took it on three occasions but each time failed at least one component. S claimed that the circumstances in which he failed suggested that he was being penalised for having originally complained to the human rights commission. He also claimed that the medical council had increased the pass criteria for the examination in order to compensate for the absence of the quota's restrictive effects. S lodged a further complaint with the human rights commission on these issues. The medical council agreed in November 1996 to discontinue pursuit of costs against S.

The Committee found the communication admissible with respect to the claim relating to the discriminatory nature of both the examination and quota system but found it inadmissible as to the pass criteria being raised as that matter had been submitted to the human rights commission. It also found the claim regarding costs inadmissible because the medical council would not be pursuing the award further. The Committee accepted Australia's request to review the admissibility decision when the merits of the communication were examined.

The Committee held: (1) that there were no reasons to revoke its earlier decision on admissibility since Australia's observations referred mainly to the substance of the matter; (2) that all overseas-trained doctors were subjected to the same quota system and were required to sit the same examinations, irrespective of their national origins, and there was no basis to find that the system worked to the detriment of persons of a particular race or national origin; (3) that it would not necessarily constitute discrimination on the basis of race or national origin even if the system favoured doctors trained in Australia or New Zealand as medical students in Australia did not share a single national origin; (4) that, in view of the fact that an independent observer appointed by him was present, there was no evidence to support the author's argument that he had been penalised in the clinical examination for having complained to the human rights commission; (5) that the facts as submitted did not disclose a violation of Art 5(e)(i) or of any other provision of ICERD; (6) that the Australia should take all necessary measures and give transparency to the procedure and curriculum established and conducted by the medical council so that the system was in no way discriminatory towards foreign candidates irrespective or their race or national or ethnic origin; and (7) that every effort should be made by Australia to avoid any delay in the consideration of all complaints by the human rights commission.

Comment: Although ICERD does not preclude distinctions between citizens and non-citizens (Art 1(2)), the welcome assumption underlying this ruling is that a distinction which was targeted at, or had an adverse impact on, a particular group of non-citizens could be condemned. Neither were established in this case, although there is perhaps a need to explore further the extent to which resource constraints would be an acceptable reason for only having an accreditation system in respect of New Zealand medical schools (see para 7.6 of the opinion). The opinion is also welcome for making it clear that the imposition of penalties for making complaints about discrimination is also to be regarded as discrimination.

D.T. Diop v. France
Opinion of 18 March 1991
Full Decision

Diop (D), a Senegalese lawyer married to a French citizen, had been refused membership of one of the French bars because he did not fulfil the statutory requirement of French nationality. He complained about discrimination, interference with his right to work and to family life, as well as breach of the Franco-Senegalese Convention on Movement of Persons. The Committee found the application admissible, leaving to the examination of its merits the question of whether it fell within the distinctions between citizens and non-citizens allowed by Art 1(2).

The Committee held: (1) that it could not interpret or monitor bilateral treaties unless they resulted in manifestly discriminatory or arbitrary treatment of individuals and that had not been shown; (2) that the complaints concerning the right to work and to family life were ill-founded as they were of a programmatic character and its task was, therefore, only to monitor their implementation once they were established; (3) that, as the right to practice law existed only for French nationals, there was no discrimination within Art 1(1).

Comment: The case foundered on ICERD's non-applicability to distinctions between citizens and non-citizens but this was not immediately apparent as another bar had admitted some Senegalese citizens. According to the government this was because of an erroneous interpretation of the law. Although other treaty bodies might have regarded Art 1(2) as rendering the application manifestly ill-founded, the Committee was prepared to leave that issue to the merits stage because the only reference to `compatibility' is in ROP r 91(c) and the term's use there was considered to impose procedural, not substantive, requirements. Where a bilateral treaty extends some rights of nationals to non-nationals the scope of Art 1(2) will be similarly limited. The Committee indicated its limited jurisdiction over economic and social rights but seemed to accept that `family life' was included amongst them without any specific reference to it in ICERD. It is presumably not, therefore, treating it as part of the civil right to marriage (which is not programmatic) but there was no evidence that the refusal to admit D to the bar would have meant him having to leave the country and his wife.

L.K. v. The Netherlands
Communication No. 4/1991, U.N. Doc. A/48/18 at 131 (1993).
Full Decision
L K, a Moroccan citizen resident in the Netherlands, complained to the police about racial discrimination by residents of a street who objected to a foreigner being offered municipal housing there. The objectors demonstrated outside a house when he was visiting it, threatened to burn it and drew up a petition asking for him to be housed elsewhere. The police report only related to the petition and was based on interviews with 17 of the 28 residents who had signed it. L K's companion during his visit was not questioned. After the prosecutor informed L K that the matter was not being registered as a criminal case, his counsel requested the appeal court to order the prosecution of the residents but the prosecutor-general only put the case on the agenda after over a year had elapsed and then asked that the complaint be declared unfounded or not heard in the public interest. Only two of the street's residents were summoned to the hearing and the court held that the petition was not of a deliberately insulting nature and was not inciting racial discrimination. The supreme court refused a request to annul this decision. L K complained that there was a failure to examine all the relevant facts of the case, that the prosecutor's decision not to institute criminal proceedings remained unmotivated, that the prosecutor had made misleading statements about the intention of the residents in a press interview, that the proceedings had been unreasonably prolonged through the appeal court's prosecutor-general being inactive for over a year and the appeal court's reliance on incomplete evidence.

The Committee held: (1) that the remarks and threats made to L K constituted incitement to racial discrimination and acts of violence against persons of another colour or ethnic origin contrary to Art 4(a); (2) that the enactment of a law making racial discrimination a criminal act does not in itself fully comply with Art 2(1)(d) and when threats of racial violence are made, especially in public and by a group, a state party should investigate them with due diligence and expedition; (3) that, in view of the inadequate response to the incidents, the police and judicial proceedings did not afford L K effective protection and remedies within Art 6; (4) that the state party should review its policy and procedures concerning the decision to prosecute in cases of alleged racial discrimination in the light of its obligations under Art 4; and (5) that L K should be provided with relief commensurate to the moral damage suffered.

Comment: While every complaint of discrimination need not result in a prosecution, the filing of one will not be an effective remedy if it is not taken seriously and not investigated properly. The attitude of judges, prosecutors and the police is critical in determining whether the criminalisation of conduct is to be meaningful and the gulf here between national officials and the Committee as to what is insulting and what constitutes incitement to racial hatred underlines the scope of the problem to be addressed. The decision does not, however, seek to undermine the `expediency principle' whereby states can determine whether prosecution is in the public interest (previously acknowledged as unaffected by ICERD in Yilmaz-Dogan v The Netherlands, Comm 1/1984) but the definition of the latter clearly needs to take account of the prohibition of discrimination.

Narrainen v. Norway
Communication No. 3/1991, U.N. Doc. A/49/18 at 128 (1994).
Full Decision

Narrainen (N), a Norwegian citizen of Tamil origin who was born in Mauritius, was convicted of a drug trafficking offence. During a break in his trial J, one of the jurors, was heard to express dismay at the amount of social benefits N was receiving and to remark that 'he ought to be sent back to where he came from'. A defence request that she be disqualified was rejected because the question of N's guilt had not been discussed and her views were not uncommon. N claimed that racist considerations played a significant part in his conviction as the evidence (including a statement by someone already convicted of drug-related offences that was retracted at the trial) would not have supported a guilty verdict. He also claimed that all the jurors came from an area where racism was at its peak and that it was also relevant to his allegation of racial discrimination that he spent nine months out of just over a year's pre-trial custody in isolation, his assigned legal counsel was more of a prosecutor than a defence lawyer and a previous drug-related conviction was disproportionately and unreasonably used as character evidence against him. He complained about a breach of ICERD without invoking any specific provisions. The Committee found the communication admissible insofar as it raised issues under Art5(a).

The Committee held: (1) that, while J's remarks may be seen as an indication of racial prejudice and might have been enough to disqualify her, the competent judicial bodies examined them and their potential implications for the course of the trial; (2) that, as it was not its function to interpret domestic rules concerning juror disqualification nor to decide whether J had to be disqualified on that basis, it could not conclude that there was a violation of ICERD ; but (3) that it recommends that every effort be taken to prevent any form of racial bias from entering into judicial proceedings and that due attention be given to the impartiality of juries, in line with the principles in Art 5(a).

Comment: Following the lead of the UNHRC, the Committee is clearly reluctant to second-guess evaluations made by domestic courts. While J's attitude to the amount of social security received by B might be understandable because it was more than her salary, the second remark should perhaps not have been explained away by the assertion that it was not an uncommon view and jurors could still be fair where they have negative attitudes to the accused. Certainly it calls into question the appearance of impartiality in the conduct of the proceedings. N's complaint undoubtedly revealed grounds for concern about the impartiality of juries and the Committee's recommendation is directed to encouraging more systematic action than an examination of the effect of the accidentally disclosed prejudice of one juror. His other complaints might have been more appropriately directed to the ECmHR or the UNHRC but they were ruled outside the scope of ICERD even though N was apparently trying to demonstrate that discrimination permeated the criminal justice system and they had been held admissible.

Z. U. B. S. v. Australia
Communication No. 6/1995, Opinion of the CERD, 25 January 2000
Full Decision

Z, an Australian national of Pakistani origin, had been hired as an engineering officer by a fire brigade. He claimed that, before being hired, he had applied for two higher-level positions commensurate with his qualifications, experience and skills but that he had been interviewed and hired for the lower-level position. Z also claimed that he had been adversely treated on appointment because he lacked 'local knowledge', a requirement that had not been mentioned in the position description or in the list of desirable criteria and which had no relevance to job performance. He further claimed that the selection committee had created this requirement after receiving his personal details, in view of the fact that he had 13 years of experience in Pakistan and Saudi Arabia. In addition Z claimed that his position was identical to that of two other engineering officers - one an Australian born Anglo-origin and the other a Buddhist Malaysian-Chinese - hired at the same time. However, although more qualified than them, his salary was inferior to one of them and, unlike the other, he claimed that he was placed on six months probation. He also claimed that he was given a heavier workload compared to his colleagues, his participation in business trips was limited and his access to workplace information was curtailed. Z further claimed that these differences in treatment were racially motivated. In addition he claimed that he was subjected to harassment and unfair treatment in the performance of his duties, such as being ridiculed for refusing to drink alcohol even after pointing out that his origin and religion did not allow him to do so.

Z claimed that, after he had filed two complaints under the brigade's grievance policy, the management had prepared a report on his 'poor performance'. In July 1993 he lodged an 'urgent' complaint of racial discrimination in employment with the anti-discrimination board and seven days later his employment was terminated, allegedly without written notice. After his dismissal the three positions were upgraded and the two other officers were re-employed in two of the three vacant positions without competition.

Z, referring to the delay, alleged that the board's handling of his case was biased and discriminatory and that the bias was racially motivated, relying on the fact that it had agreed with his employer's suggestion that he should instead appeal to a tribunal dealing with wrongful dismissal. However, as legal aid was not available for that procedure he wrote to the board in August 1993 asking it to give priority to his complaint. He also contacted an NGO, which never contacted him again after informing him in July 1994 that his complaint had been forwarded to its complaints sub-committee. In December 1994 the board informed Z that its investigation had been completed and that the complaint had been found without merit but no reasons for this evaluation were provided. He was also informed of his right to appeal to the equal opportunity tribunal but he could not pay the costs for representation since he remained unemployed after dismissal and the legal aid commission refused to provide him with legal assistance. Z also claimed that the conduct and practices of Australia's organs, including the tribunal, had a discriminatory effect on his professional career and that he has not been able to find suitable employment since his dismissal in 1993.

In October 1995, the equal opportunity tribunal dismissed Z's claims of racial discrimination but found that his dismissal as a result of his complaint amounted to unlawful victimisation, awarding him $A 40,000 and ordering the employer to address a written apology to him.

Z complained about his appointment, his employment terms and conditions, the termination of his employment, the harassment and offensive behaviour on the part of colleagues, the board's handling of his complaint, the tribunal's evaluation of the evidence and the conduct of the ombudsman. Australia submitted that that (a) Z had failed to substantiate the alleged violations, (b) the admission of his claim would amount to a review, on appeal, of all of the facts and the evidence in his case, (c) the admission of the claim regarding the administrative and judicial organs seized of his case would amount to a review of the determination of facts and law by Australian tribunals and (d) Z could have appealed from the tribunal to the supreme court and could have had the refusal of legal aid reviewed.

The Committee, considering that (a) there was sufficient substantiatiation for admissibility, (b) the admission of Z's claim would not amount to a review, on appeal, of all the facts and evidence in his case, (c) only an examination on the merits would enable a determination whether Z had been treated by the administrative and judicial organs seized of his case in any way different from any other individual subject to their jurisdiction and (d) domestic remedies would be unreasonably prolonged within the meaning of Art 14(7)(a), notwithstanding the possibilities still open to Z, since consideration of his grievances by the board and the tribunal took over two years, found the communication admissible. The Committee held:
(1) that Z's claims were examined in accordance with the law and procedures set up by Australia to deal with cases of racial discrimination, in particular by first the board and then the tribunal on appeal;
(2) that the tribunal examined the case in a thorough and equitable manner;
(3) that, as a general rule, it was for domestic courts to review and evaluate the facts and evidence in a particular case and there was no obvious defect in the tribunal's judgment;
(4) that the facts did not disclose a violation of CERD by Australia; and
(5) that, pursuant to Art 14(7) (b), Australia should simplify the procedures for dealing with complaints of racial discrimination, in particular those in which more than one recourse measure is available, and avoid any delay in the consideration of such complaints.

Comment: The Committee here is understandably taking a similar approach to that of other international human rights tribunals (eg, McLeod v Jamaica, (2000)) where the conduct of legal proceedings is said to be the basis of a violation of someone's rights; it is deferring to the domestic court's evaluation of the facts and evidence insofar as there is no explicit defect in the judgment. This approach is inevitable, not simply because of the resource constraints but because the function of the tribunals is not appellate but supervisory and the attempt by Australia to resist admissibility on this issue was thus misplaced. However, both the Committee's conclusion that exhaustion of domestic remedies would be unduly prolonged if other avenues were pursued and its final ruling suggests that it was concerned about the length of time taken to resolve Z's claims. It might have been appropriate for it to find that the period concerned meant Z had been denied an effective remedy; certainly the significance of the issue points to a period of more than two years being excessive (cf Johansen v Norway, (1997)). There might also have been scope for considering whether the absence of legal representation was an unfair handicap in the proceedings before the tribunal. Presumably the absence of reasons in the board's ruling was remedied by the tribunal decision (cf Higgins and others v France, (1998/9)). The Committee did not address Z's complaint that the legislation in general was inadequate but it is not evident that any deficiency in it affected his ability to make particular claims of discrimination.

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