8 November 1989

 

Communication No. 222/1987; U.N. Doc. CCPR/C/37/D/222/1987

 
     

human rights committee

  Thirty-Seventh Session  
  23 October 10 November 1989  
     
     

m. K.

 

v.

France

     
 

Also indexed as H.K. v. France

 
     
 

DECISION

 
     
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BEFORE: CHAIRMAN: Mr. Rajsoomer Lallah (Mauritius)
VICE-CHAIRMEN: Mr. Joseph A. L. Cooray (Sri Lanka), Mr. Vojin Dimitrijevic (Yugoslavia), Mr. Alejandro Serrano Caldera (Nicaragua)
RAPPORTEUR: Mr. Fausto Pocar (Italy)
MEMBERS: Mr. Francisco Jose Aguilar Urbina (Costa Rica), Mr. Nisuke Ando (Japan), Miss Christine Chanet (France), Mr. Omran El Shafei (Egypt), Mr. Janos Fodor Hungary, Mrs. Rosalyn Higgins (United Kingdom), Mr. Andreas V. Mavrommatis (Cyprus), Mr. Joseph A. Mommersteeg (Netherlands), Mr. Rein A. Myullerson (Union of Soviet Socialist Republics), Mr. Birame Ndiaye (Senegal), Mr. Julio Prado Vallejo (Ecuador), Mr. S. Amos Wako (Kenya), Mr. Bertill Wennergren (Sweden).

The thirty-seventh session of the Committee was attended by all members of the Committee except Messrs. Aguilar Urbina and Serrano Caldera; Mr. Mavrommatis attended only part of the session.

   
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Citation: M. K. v. France, Comm. 222/1987, U.N. Doc. A/45/40, Vol. II, at 127 (HRC 1989)
Publication: Report of the Human Rights Committee, U.N. GAOR, 45th Sess., Supp. No. 40, U.N. Doc. A/45/40, Annex X, sect. B, at 127 (Oct. 4, 1990)
 
     
 
 
     
 

DECISION ON ADMISSIBILITY

1.         The author of the communication (initial letter dated 20 February 1987; further submissions dated 10 March, 29 June 1987, 28 December 1988 and 22 May 1989) is M. K., a French citizen born in 1952, residing in Rennes, France and employed as a teacher. He claims to be a victim of violations of articles 2, 16, 19, 26 and 27 of the International Covenant on Civil and Political Rights by France.

2.1       The author states that he is a Breton and that his mother tongue is Breton. He complains that French courts have consistently refused him the right to express himself in Breton, and that his right to defence in Breton and the right to freedom of expression in Breton are not respected. His daughter allegedly does not enjoy the right to education in Breton, and television broadcasts in Breton amount only to one hour and a half per day, except in the summer when there are no Breton broadcasts at all.

2.2       In more detail, the author states that the Administrative Tribunal of Rennes refused to consider a complaint which he had submitted in Breton on 6 March 1987. This complaint was directed against the steadfast refusal of the French tax authorities to write his address in Breton. Thus, the author sought to force the tax authorities to use his Breton address. On 6 March 1987 the Tribunal decided that the document had to be submitted in French if it was to be considered by the Court.

2.3       With respect to the exhaustion of domestic remedies, the author alleges that none are available, since French law does not recognize the right to the use of Breton before French tribunals, nor the right to be educated in the Breton language.

3.         By decision of 9 April 1987, the Human Rights Committee, without transmitting the communication to the State party, requested the author, under rule 91 of the rules of procedure, to clarify whether he understood and spoke French and to indicate whether, in addition to himself, he also purported to act on behalf of his daughter.

4.1       In his reply to the Committee's questions, dated 29 June 1987, the author states that, although he understands and speaks French, he nevertheless does not regard himself as sufficiently proficient in French or sufficiently acquainted with French legal terminology to be able to draft his petition to the Administrative Tribunal of Rennes or his communication to the Human Rights Committee without outside assistance.

4.2       The author alleges that his complaint to the Administrative Tribunal of Rennes should have been accepted, because article 27 recognizes his right to use his own language before the courts. Furthermore, the author claims, the Tribunal refused his petition on the basis of a ruling that denied his legal personality (article 16 of the Covenant)and which therefore discriminated between French citizens on tile ground of their Breton national origin and language in violation of article 26 of the Covenant.

4.3       With regard to the alleged violation of article 14, the author contends that the right to the assistance of interpreters, stipulated in article 14, paragraph 3 (f)of the Covenant, has always been denied to Breton-speaking French citizens. He finally asserts that the French judicial administration simply expects every French citizen to speak French.

5.         By decision of 20 October 1988, the Working Group of the Human Rights Committee transmitted the communication under rule 91 of the rules of procedure to the State party, requesting information and observations relevant to the question of the admissibility of the communication, in particular on the effective remedies available to the author in the specific circumstances of the case.

6.1       In its submission under rule 91, dated 15 January 1989, the State party contests the admissibility of the communication on several grounds. With regard to the exhaustion of domestic remedies, it argues that the author failed to exhaust them, as required under article 5, paragraph 2(b), of the Optional Protocol. According to the State party, the author should have complied with the rules of submission of the Administrative Tribunal; moreover, he retained the right to appeal to the Conseil d'Etat should the Administrative Tribunal dismiss his claim.

6.2       With regard to the alleged violations of article 2, paragraphs 1 and 2, the State party submits that such violations cannot but be the result of an infringement of the author's rights under other articles of the Covenant. The State party adds that the author has not been able to establish such infringements.

6.3       With regard to the author's allegations that he has been denied the right to recognition as a person before the law (article 161, the State party submits that the author has provided no evidence in substantiation of this claim, and that the reference to article 16 constitutes an abusive interpretation of the notion of "person before the law". On the contrary, the State party continues, such right was fully recognized to the author inasmuch as it was open to him to initiate the procedure indicated to him by the Administrative Tribunal in its letter of 6 March 1987.

6.4 With regard to the author's allegations under article 19, paragraph 2, the State party submits that the claim is inadmissible because he has not substantiated his assertion to have been denied the right to freedom of expression. Furthermore, the State party contends, such right cannot be deemed to encompass the freedom of French citizens to use whatever language or dialect they choose before French administrative tribunals.

6.5       As to the author's claim that he suffered discrimination on grounds of his language, the State party submits that the refusal of the Administrative Tribunal of Rennes to register the author's complaint was in conformity with an established practice sanctioned by the jurisprudence of the Conseil d'Etat and destined to facilitate the administration of justice by relieving courts from the obligation to use translation services and allowing them to issue their decisions on the basis of the text of the original submission. Consequently, the State party concludes, the author cannot be deemed to have been discriminated against on account of the application to him of a general and uniform rule.

6.6       As to the author's allegations under article 27, the State party considers that the declaration made by it upon accession to the Covenant on 4 November 1980 excludes the Committee's competence to examine communications concerning purported violations of that article. The State party therefore concludes that tile communication should be declared inadmissible as incompatible with the provisions of the Covenant.

7.1       Commenting on the State party's submission, the author, in a letter ; dated 22 May 1989, contends that the established jurisprudence of the Conseil d'Etat on the matter shows that the remedies indicated by the State party : I would have no prospect of success.

7.2       The author further explains that he has been a victim of discrimination on the ground of his mother tongue in the sense that some French citizens are allowed to use their own language in courts while others are not. In addition, the author claims, technical problems, such as the need for the courts to use translation services, should not constitute an obstacle to the full enjoyment of human rights. He refers in this context to the example of Belgium and Switzerland, where different practices prevail.

7.3 As far as article 27 is concerned, the author first noted that, upon accession to the Covenant on 4 November 1980, France made a "declaration" but not a "reservation", that since France made "reservations" with regard to other articles of the Covenant, its "declaration" with regard to article 27 " should be treated differently; secondly, that a distinct Breton ethnic and linguistic minority is internationally recognized by sociologists and other scholarly publicists; and thirdly, that numerous French Parlamentarians (center, communist, socialist) have proposed bills concerning the Breton language. Finally, the author submits that, notwithstanding the French declaration in respect of article 27, no reservation or declaration equivalent to a reservation has ever been made by the State party concerning articles 2, 16, 19 and 26 of the Covenant.

8.1       Before considering any claims contained in a communication, the Human Rights Committee shall, in accordance with rule 87 of the rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

8.2       Article 5, paragraph 2 (b), of the Optional Protocol precludes the Committee from considering any communication by an individual who has failed to exhaust all available domestic remedies. This is a general rule, which applies unless the remedies are unreasonably prolonged, or the author of a communication has convincingly demonstrated that domestic remedies are not effective, i. e. do not have any prospect of success.

8.3       On the basis of the information before the Committee, there are no circumstances which would absolve the author from attempting to pursue all domestic remedies. He has not been criminally prosecuted but seeks to initiate proceedings before an administrative court to establish that he has been denied rights protected by the Covenant. The purpose of article 5, paragraph 2(b), of the Optional Protocol is, alia, inter to direct possible victims of violations of the provisions of the Covenant to seek. in the first place, satisfaction from the-competent State party authorities and, at the same time, to enable States parties to examine, on the basis of individual complaints, the implementation, within their territory and by their organs, of the provisions of the Covenant and, if necessary, remedy the violations occurring, before the Committee is seized of the matter.

8.4       It remains to be determined whether recourse to the French .courts must be considered an unavailable or ineffective remedy, given that the author must use French to establish his claim that it is a violation of his rights under the Covenant to have to use French, rather than Breton, in legal proceedings. The Committee observes that the matter of the exclusive use of French to institute proceedings in courts is the issue to be examined at first instance by the French judicial organs and that, under the applicable laws, this can be done only by using French. In view of the fact that the author has demonstrated his proficiency in French, the Committee finds that it would not be unreasonable for him to submit his claim in French to the French courts. Further, no irreparable harm would be done to the author's substantive case by using the French language to pursue his remedy. The objection raised by the author, that he is not sufficiently acquainted with French legal terminology to prepare submissions to courts cannot be entertained by the Committee; the same difficulty is faced by citizens in all countries, even when using their mother tongue, and is the principal reason for seeking professional legal assistance.

8.5       The author has also invoked article 27 of the Covenant claiming that he has been a victim of a breach of its provisions. Upon accession to the Covenant, the French Government declared that "in the light of article 2 of the Constitution of the French Republic, ...... article 27 is not applicable so far as the Republic is concerned." This declaration has not been objected to by other States parties, nor has it been withdrawn.

8.6       The Committee is therefore called upon to decide whether this declaration precludes it from examining a communication alleging a violation of article 27. Article 2, paragraph l (d), of the Vienna Convention on the Law of Treaties stipulates as follows: "Reservation means a unilateral statement, however phrased ., or named, made by a State, when . . . acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State." The Convention does not make a distinction between reservations and declarations. The Covenant itself does not provide any guidance in determining whether a unilateral statement made by a State party upon accession to it should have preclusionary effect regardless of whether it is termed a reservation or declaration. The Committee observes in this respect that it is not the formal designation but the effect the statement purports to have that determines its nature. If the statement displays a clear intent on the part of the State party to exclude or modify the legal effect of a specific provision of a treaty, it must be regarded as a binding reservation, even if the statement is phrased as a declaration. In the present case, the statement entered by the French Government upon accession to the Covenant is clear: it seeks to exclude the application of article 27 to France and emphasizes this exclusion semantically with the words "is not applicable". The statement's intent is unequivocal and thus must be given preclusionary effect in spite of the terminology used. Furthermore, the State party's submission of 15 January 1989 also speaks of a French "reservation" in respect of article 27. Accordingly, the Committee considers that it is not competent to consider complaints directed against France concerning alleged violations of article 27 of the Covenant.

9.         The Human Rights Committee therefore decides:

(a)        That the communication is inadmissible under articles 2 and 5, paragraph 2(b), of the Optional Protocol;

(b)       That this decision shall be communicated to the State party. and to the author of the communication.

 

APPENDIX I

 

Individual opinion: submitted by Mr. Bertil Wennergren pursuant to rule 92, paragraph 3, of the Committee's rules of procedure concerning the Committee's decision to declare communication No. 222/1987 inadmissible

 

As stated in paragraph 8.2 of the Committee's decision, article 5, paragraph 2(b), of the Optional Protocol precludes the Committee from considering any communication by an individual who has failed to exhaust all available domestic remedies. However, in accordance with recognized rules of international law and established jurisprudence of the Committee, domestic remedies need nor be exhausted if they objectively have no prospect of success. In my view a remedy cannot be deemed to be effective if under substantive national legislation the claim would inevitably be dismissed by the courts. Pursuant to article 2 of the Constitution of the French Republic, France shall ensure equality of all its citizens before the law, without distinction of origin, race and religion. Of relevance in this context is that among the prohibited grounds for distinction, this provision does not include "language", as does article 26 of the Covenant. In an earlier case concerning the right to use the Breton language (C.L.D. v. France, 228/1987), it was brought to the attention of the Committee that the Tribunal Administratif de Rennes, by decision of 21 November 1984, had ruled as follows: "Bearing in mind that in the absence of legal provisions determining otherwise, the procedural language before French tribunals is the French language, the document which was submitted not in the French language and signed by M.Q. was wrongly registered as a complaint by the tribunal's registrar." As the document had neither then or later been translated, the Tribunal found it could not be considered. Q's appeal to the Conseil d'Etat was rejected on 22 November 1985, because it had not been written in the French language and therefore was found to be inadmissible. A commentary on this case (Recueil Dalloz Sirey (1986), p. 71) indicates that the Conseil d'Etat thereby established a general procedural rule, according to which complaints to administrative courts must be submitted in French. Taking that precedent into account in the light of the contents of article 2 of the French Constitution, it follows that the remedies referred to by the State party cannot be deemed to be effective. In my opinion, the communication should have been declared admissible in so far as it may raise issues under article 26 of the Covenant.

 


APPENDIX II

 

Individual opinion: submitted by Mrs. Rosalyn Higgins pursuant to rule 92, paragraph 3, of the Committee's rules of procedure concerning the Committee's decision to declare communication No. 222/1987 inadmissible

 

I agree with the decision of the Committee insofar as it refers to a remaining requirement that local remedies be exhausted in respect of the claim under article 26. The Conseil d'Etat has not actually ruled on the substantive issue, rather it has decided that it will not do so unless the issue is brought before it through an application itself in the French language. The authors being perfectly able to use French, could seek through a French language application a definitive ruling on the use of the Breton language in administrative tribunal proceedings. While this might be unpalatable to the authors, no legal harm would be done to their case by adopting this course of action. However, I am not able to agree with the findings of the Committee that it is precluded by the French declaration of 4 November 1980 from examining the author's claim as it relates to article 27 of the Covenant. The fact that the Covenant does not itself make the distinction between reservations and declarations does not mean that no distinction between these concepts exists, so far as the Covenant is concerned. Nor, in my view, is the matter disposed of by invocation of article 2(1)(a) of the Vienna Convention on the Law of Treaties, which emphasizes that intent, rather than nomenclature, is the key.

 

An examination of the notification of 4 January 1982 shows that the Government of the Republic of France was engaged in two tasks: listing certain reservations and entering certain interpretative declarations. Thus in relation to article 4(1), 9, 14 and 19 it uses the phrase "enters a reservation". In other paragraphs it declares how terms of the Covenant are in its view to be understood in relation to the French Constitution, French legislation, or obligations under the European Convention on Human Rights. To note, by reference to article 2(1)(d) of the Vienna Convention, that it does not matter how a reservation is phrased or named, cannot serve to turn these interpretative declarations into reservations. Their content is clearly that of declarations. Further, the French notification shows that deliberately different language was selected to serve different legal purposes. There is no reason to suppose that the contrasting use, in different paragraphs, of the phrase "reservation" and "declaration" was not entirely deliberate, with its legal consequence well understood by the Government of the Republic.

 

The relevant paragraph provides: "In the light of article 2 of the Constitution of the French Republic, the French Government declares that article 27 is not applicable so far as the Republic is concerned."

 

Article 2 of the French Constitution provides in the relevant part: "France is a Republic, indivisible, secular, democratic and social. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs."

 

As is noted in the decisions of the Committee, the Reports of France to the Committee under article 40 of the Covenant have explained that the prohibition in the Constitution of distinction on grounds of origin, race or religion means that there are no minorities in France; and therefore article 27 does not apply. As I believe the French notification concerning article 27 is a declaration and not a reservation, it is in my view ultimately for the Committee to see if the interpretation of the French Government accords with its own. The Committee has, in relation to several States parties, rejected the notion that the existence of minorities is in some way predicated to admission or discrimination. Rather, it has insisted that the existence of minorities in the sense of article 27 is a factual matter; and that such minorities may indeed exist in States parties committed, in law and in fact, to the full equality of all persons within its jurisdiction. Any many States parties whose constitutions, like that of the French Republic, prohibit discrimination, readily accept that they have minorities on whom they report under article 27. I therefore conclude that the declaration of the French Government, while commanding the respectful attention of the Committee, does not accord with its own meaning interpretation of the meaning and scope of article 27; and does not operate as a reservation.

 

The point of principle seems to me an important one. However, local remedies would require to be exhausted as much in respect of article 27 as of article 26. My views on the French declaration would not lead me to any different conclusion as to admissibility.

 
     

 

 

 

   

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