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Decision on
Admissibility
1. The petitioners are Mr. Nikolas Regerat, Mr. Mizel Alibert, Ms. Annie
Bacho, Ms. Kattin Bergara, Mr. Jakes Bortayrou, Ms. Maritxu Castillon, Mr.
Jean-Michel Ceccon, Mr. Txomin Chembero, Ms. Maialen Errecart, Ms. Irene
Ithursarry and Mr. Emmanuel Torree, French citizens residing in France. As
members of the Euskal Herriko Alfabetatze Euskalduntze Koordinakundea (AEK)
Association, they claim to be victims of a violation by France of article 1
of the Convention. They are represented by counsel.
The Facts as Presented by the Petitioners
2.1 The AEK Association (hereinafter referred to as "the Association") is an
organization which teaches the Basque language to adults. In order to
publicize its existence and activity, the Association regularly engages in
publicity campaigns through the post, addressing its mailings in the Basque
language.
2.2 To this end, the Association concluded with the Post Office a standard
contract for mass mailings. This agreement, called "Postimpact mécanisable",
is reserved for commercial mailings. The preferential rate is based on the
possibility of automatic mail processing by a sorter equipped with a laser
scanner. The scanner requires that mailings conform to specific regulations
concerning message content and the format of the mailed item.
2.3 After first having benefited from a preferential rate of 1.87 French
francs for each item, the Association was informed by the Post Office in May
1998 that in future the rate would be higher - 2.18 francs for each item -
because the names of the villages that appeared on the envelopes were
written in the Basque language. The Post Office pointed out that, unlike
mail addressed in French, mail addressed in a regional language could not be
processed automatically and entailed an additional cost over and above the
preferential rate.
2.4 On 18 February 1999, the President of the Association, Mr. Nikolas
Regerat, lodged a complaint against the Post Office in the Bayonne
Correctional Court, considering that the Post Office's failure to maintain
the agreed preferential rate constituted discrimination.
2.5 In its judgement of 3 June 1999, the Bayonne Correctional Court
acquitted the Post Office of the offence of discrimination and dismissed the
demand, made by the Association as a party to the proceedings, that the Post
Office be ordered to pay damages. The court pointed out that it had not been
established that the Post Office had changed its rate for the Association's
mass mailings for one of the reasons set out in article 225-1 of the Penal
Code, which deals with the offence of discrimination. [FN1] The court
considered that the Post Office had changed the rate for purely technical
reasons.
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[FN1] Article 225-1 of the Penal Code: "discrimination is defined as any
distinction made against corporate bodies on the grounds of [...] actual or
supposed membership or non-membership of a given ethnic group [or] nation
[...] of members or certain members of such corporate bodies".
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2.6 On 9 and 10 June 1999, the Association and the public prosecutor lodged
an appeal against the judgement. On 21 June 2000, the Pau Court of Appeal
acquitted the Post Office of the offence of discrimination and dismissed the
Association's claims. [FN2]
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[FN2] The court noted that discriminatory intent could not be inferred from
the mere fact that the Post Office had not taken the technical measures to
enable the optical scanning of addresses in the Basque language. Moreover,
it pointed out that the Post Office had offered the Association another
preferential rate, admittedly less advantageous than the first but
nevertheless lower than the normal rate.
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2.7 On 22 June 2000, the Association appealed to the Court of Cassation. On
16 January 2001, the Court of Cassation dismissed the appeal and notified
the Association of its decision in a letter dated 27 February 2001 from the
public prosecutor of the Pau Court of Appeal.
2.8 On 6 July 2000, the Association made a request for legal aid. In its
decision of 14 December 2000, the legal aid office denied the request,
considering that "no serious argument for quashing can be brought against
the contested decision". On 22 January 2001, the Association lodged an
appeal against this denial with the first president of the Court of
Cassation. [FN3] In his decision of 8 February 2001, the first president of
the Court of Cassation dismissed the appeal on the grounds that the
examination of the evidence submitted in the proceedings had not given rise
to any serious argument for quashing the contested decision.
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[FN3] In support of its appeal, the Association invoked the absence of
grounds for the decision to refuse the request; the violation of the right
to legal aid insofar as it had been established that the Association lacked
the means to meet the costs of a lawyer in the Court of Cassation; and the
fact that the contested decision made it impossible for the Association to
bring its case before international bodies owing to the non-exhaustion of
domestic remedies.
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The Complaint
3.1 The petitioners challenge the Post Office's position. They point out
that the Association has to use the Basque language, particularly in its
relations with its targeted public, in order to disseminate its objectives
and activities for promoting the Basque language. According to the
petitioners, since the Post Office is responsible for providing a public
service, its imposition of higher rates for correspondence addressed in the
Basque language discriminates against the speakers of that language and
persons belonging to the Basque ethnic group.
3.2 In addition, the petitioners reject the technical argument put forward
by the Post Office, which was upheld by the French courts. They consider
that it is technologically simple to add the 158 names of the Basque
villages to the computers that control the automatic sorting of mail, and
that the Post Office's updating of its computer facilities for that purpose
would entail only minimal difficulty and not unreasonable cost.
3.3 The petitioners therefore consider that the Post Office's discriminatory
behaviour constitutes a violation of article 1 of the Convention.
3.4 Finally, the petitioners consider that all available domestic remedies
have been exhausted.
The State Party's Observations on Admissibility
4.1 In its observations dated 29 May 2002, the State party challenges the
admissibility of the communication.
4.2 It maintains that the petitioners have not exhausted domestic remedies.
In the case in point, the Association had, in the Bayonne regional court and
the Pau Court of Appeal, put forward the argument of alleged discriminatory
practice in contravention of the provisions of French penal law. According
to the State party, the Association had not adduced any argument to support
its appeal to the Court of Cassation. The lack of an argument to support the
appeal had led the criminal division of the Court of Cassation to dismiss
the appeal in its ruling of 16 January 2001.
4.3 In this regard, the State party points out that legal aid to the
Association had in fact been granted on a provisional basis on 11 July 2000,
and that the Jean-Pierre Ghestin SCP [FN4] had been designated for that
purpose. Subsequently, pursuant to the decision of the legal aid office of
the Court of Cassation issued on 14 December 2000 and communicated on 21
December 2000, the request had been definitively denied on the grounds of
the provisions of article 7 of the Act of 10 July 1991, considering that "no
serious argument for quashing can be brought against the contested
decision".
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[FN4] Société Civile Professionnelle [Professional Partnership].
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4.4 The State party explains that the system of legal aid in France has been
designed to reconcile the right of the most disadvantaged to a defence with
the interest of the effective administration of justice, which should not be
hindered by dilatory or manifestly unfounded claims. A legal aid system
cannot operate without a mechanism that allows it to select cases that are
likely to receive legal aid.
4.5 This system was introduced by Act No. 91-647 of 10 July 1991 and its
Implementing Decree No. 91-1266 of 19 December 1991, which were in force
when the Association appealed to the Court of Cassation. Article 2 of the
Act provides that "physical persons who do not have sufficient resources to
assert their rights in court may benefit from legal aid. [...] Such aid may,
in exceptional cases, be granted to non-profit corporate bodies based in
France and lacking sufficient resources".
4.6 The State party points out that although, when an appeal is brought
before the criminal division of the Court of Cassation, the request for
legal aid does not affect the time limits for the filing of the brief,
article 20 of the above-mentioned Act nonetheless acknowledges that "in
urgent cases [...] legal aid may be granted on a provisional basis [...]".
The petitioners were in fact granted aid on a provisional basis. In this
regard, the State party emphasizes that the advocate in council appointed on
a provisional basis to provide legal aid did not deem it appropriate to put
forward any argument in support of the appeal, as the Court of Cassation
pointed out in its ruling.
4.7 Moreover, nothing prevented the Association, as the party bringing its
case before the Court of Cassation, from filing a brief itself, adducing all
the legal arguments it deemed relevant in support of its appeal. Pursuant to
article 584 of the Code of Criminal Procedure, "The party appealing to the
Court of Cassation, either at the time of its declaration, or within the
following 10 days, may file, with the registry of the court that handed down
the contested decision, a signed brief containing its arguments for quashing
the decision." According to the State party, the Association cannot plead
ignorance in order to justify its failure to file a personal brief since,
during the appeal process, it was assisted by a counsel who could not have
been unaware of the legal regulations governing the forms or conditions of
appeals and who should have informed his clients of the procedural
formalities that had to be observed.
4.8 Consequently, the petitioners who today are claiming before the
Committee discrimination under article 1 of the Convention, owing to the
rates applied by the French Post Office, did not enable the Court of
Cassation to respond to their allegations. The communication therefore does
not meet the requirements of article 14, paragraph 7 (a), of the Convention.
Comments by the Petitioners on the State Party's Observations on
Admissibility
5.1 In their comments dated 31 January 2003, the petitioners challenge the
State party's conclusions concerning the non-exhaustion of domestic
remedies.
5.2 They contend that they were unable to support their appeal in the Court
of Cassation because their request for legal aid had been denied. The
participation of a lawyer in the Court of Cassation - a lawyer specializing
exclusively in such courts - was essential and was the best way of ensuring
an effective defence.
5.3 They also maintain that they did not have an effective domestic remedy
since, on two occasions, the legal aid office of the Court of Cassation and
the first president of the Court of Cassation considered that no serious
argument for quashing the decision could be adduced.
Issues and Proceedings Before the Committee
6.1 Before considering any claim contained in a communication, the Committee
on the Elimination of Racial Discrimination must, in accordance with rule 91
of its rules of procedure, decide whether or not it is admissible under the
Convention.
6.2 The Committee notes the State party's claim that the complaint by the
petitioners is inadmissible owing to the non-exhaustion of domestic
remedies, insofar as no argument - particularly that of discrimination - was
put forward to support their appeal before the Court of Cassation. The
petitioners replied that their appeal could not be upheld because their
request for legal aid had been denied and that, moreover, the decisions to
deny legal aid, which were based on the absence of a serious argument for
quashing, deprived them of an effective domestic remedy.
6.3 The Committee notes, in the first place, that the petitioners did not
file a personal brief in support of their appeal in cassation, a right
provided under article 584 of the Code of Penal Procedure and which they did
not use in spite of the assistance of a counsel - during the appeal process
- who should have informed them of the procedural rules for their appeals.
In the second place, the Committee notes that, from 11 July 2000, the
petitioners had the services of an advocate in council appointed on a
provisional basis to provide legal aid and that the latter did not deem it
appropriate to put forward, in the Court of Cassation, any argument in
support of the appeal, a fact that the petitioners do not dispute. The
Committee considers that, on the above-mentioned grounds, the subsequent
definitive denial of the request for legal aid did not in any way bind the
Court of Cassation with respect to its decision regarding the petitioners'
appeal; that the petitioners' reservations as to the effectiveness of their
appeal did not exempt them, therefore, from exercising their remedy by
adducing their complaint of discrimination; and that consequently, the
decision not to exercise that remedy was the responsibility of the
petitioners assisted by counsel and cannot be attributed to the State party.
6.4 In the light of the foregoing, the Committee considers that the
petitioners have not met the requirements of article 14, paragraph 7 (a), of
the Convention.
7. The Committee on the Elimination of Racial Discrimination therefore
decides:
(a) That the communication is inadmissible;
(b) That this decision shall be transmitted to the State party and to the
petitioners.
[Done in English, French and Spanish, the French text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
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