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1. The author of the
communication is Mr. Marijan Radosevic, a Croatian national currently
residing in Switzerland. He claims to be a victim of a violation by Germany
[FN1] of his rights under article 26, read alone, as well as in conjunction
with article 8, paragraph 3 (c) (i), of the Covenant. He is represented by
counsel (Mr. Frank Selbmann).
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[FN1] The Covenant and the Optional Protocol to the Covenant entered into
force for Germany on 23 March 1976 and 25 November 1993 respectively. Upon
ratification of the Optional Protocol, the State Party entered the following
reservation: "The Federal Republic of Germany formulates a reservation
concerning article 5 paragraph 2 (a) to the effect that the competence of
the Committee shall not apply to communications
a) which have already been considered under another procedure of
international investigation or settlement, or
b) by means of which a violation of rights is reprimanded having its origin
in events occurring prior to the entry into force of the Optional Protocol
for the Federal Republic of Germany
c) by means of which a violation of article 26 of the [said Covenant] is
reprimanded, if and insofar as the reprimanded violation refers to rights
other than those guaranteed under the aforementioned Covenant."
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FACTUAL BACKGROUND
2.1 The author served a prison term in Heimsheim prison in Germany from 10
March 1998 to 28 February 2003, when he was deported. The remainder of his
prison term was suspended, provided that he would not return to Germany.
2.2 During imprisonment, the author performed work, as required under
Section 41 of the German Enforcement of Sentences Act. He was remunerated
from April 1998 until August 1999 and again in April 2000, as well as from
June until August 2001. The wages were calculated pursuant to Section 200 of
the Enforcement of Sentences Act, on the basis of five percent of the base
amount [FN2] from April until August 1999 and in April 2000, and on the
basis of nine percent of the base amount from June until August 2001. They
ranged from about 180 to about 400 Deutsche Mark (DM) per month.
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[FN2] Section 18 of Book IV of the German Social Security Code defines the
base amount as follows: "Without prejudice to the specific provisions
applicable to the different insurance systems, base amount within the
meaning of the provisions on social security means the average amount of
benefits payable under the statutory pensions insurance during the preceding
calendar year, rounded up to the next highest amount which can be divided by
420."
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2.3 On 28 April 2000, the author suffered an employment-related accident,
which made him permanently unfit for work.
2.4 By judgment of 1 July 1998, the Federal Constitutional Court ruled that
the constitutional principle of re-socialization of prisoners requires
adequate remuneration for their work; the Court set aside the calculation
methods for the wages of prisoners laid down in Section 200 of the
Enforcement of Sentences Act (five percent of the base amount, despite the
legislator's original intention progressively to raise the level of
remuneration to 40 percent of the base amount). It considered the average
wages paid to prisoners under that legislation, which amounted to 1.70 DM
per hour or 10 DM per day, or 200 DM per month, in 1997, to be incompatible
with the German Basic Law, in the absence of any other work-related benefits
apart from the employer's contribution to the prisoner's unemployment
insurance. The Court argued that "in the light of the amount paid for
mandatory work performed by a prisoner, he cannot be convinced that honest
work is an appropriate means for earning a living" after his release.
However, it allowed the legislator a transitional period, to run until 31
December 2000, to introduce an adequate raise in the remuneration of work as
well as revised provisions for social insurance coverage of such work.
2.5 On 12 February 2004, the author submitted a request to the warden of
Heimsheim prison, requesting remuneration of no less than 40 percent of the
base amount for the work performed prior to his employment-related accident
on 28 April 2000. On 19 February 2004, the warden of Heimsheim prison
considered that, the author was estopped from challenging the calculation of
his wages, since he had not taken any legal action against the relevant
decisions within the one-year deadline that resulted from Section 112,
paragraph 4, of the Enforcement of Sentences Act.
2.6 On 4 March 2004, the author reiterated his request for payment of
adequate wages, arguing that Section 112, paragraph 4, of the Enforcement of
Sentences Act did not apply to his case and that, in any event, the decisive
date for the computation of the deadline was the date of his release on 28
February 2003, that is, less than a year before he lodged his first request
for re-assessment of the wages (12 February 2004). By reference to the
judgment of the Federal Constitutional Court and to article 26 of the
Covenant, he claimed that these wages were grossly and unjustifiably
disproportionate to the average wages paid to employees outside the prison
system. On 9 March 2004, the warden of Heimsheim prison reiterated the
position stated in his previous letter.
THE COMPLAINT
3.1 The author claims that the denial of an adequate remuneration for the
work performed during his incarceration amounts to a violation of article 26
of the Covenant. He argues that his work was in many respects similar to
that performed by the regular workforce. While conceding that prisoners are
not entitled to absolutely equal remuneration, he submits that any
differentiation must be justified by reasonable and objective criteria and
must be proportionate in the individual circumstances. His remuneration was
inadequate in the light of his vulnerable status as a prisoner and the
overall objective of re-integration into society. By reference to Rule 76
(1) [FN3] of the UN Standard Minimum Rules for the Treatment of Prisoners
and Article 14 (1) [FN4] of ILO Convention No. 29 (Forced or Compulsory
Labour Convention, 1930), the author concludes that his wages were
disproportionately low, in violation of article 26 of the Covenant.
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[FN3] "There shall be a system of equitable remuneration of the work of
prisoners."
[FN4] "With the exception of the forced or compulsory labour provided for in
Article 10 of this Convention, forced or compulsory labour of all kinds
shall be remunerated in cash at rates not less than those prevailing for
similar kinds of work either in the district in which the labour is employed
or in the district from which the labour is recruited, whichever may be the
higher."
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3.2 The author claims that the transitional period of two years and six
months for the legislative adjustment of Section 200 of the Enforcement of
Sentences Act, during which he was continued to be remunerated on a
discriminatory basis, was also disproportionate and contrary to article 26.
Even assuming that this period was justified under German constitutional
law, such justification could not change the underlying violation of article
26, which required corrective measures to be taken without undue delay, once
discrimination was established. The delay was not justified by any
compelling reasons; the mere financial burden on a State did not suffice as
a justification.
3.3 The author submits that the same matter is not being examined under
another procedure of international investigation or settlement. On
exhaustion of domestic remedies, he argues that it would have been futile to
appeal the decision of the Heimsheim prison warden, given that the Federal
Constitutional Court had itself authorized the continued application of
Section 200 of the Enforcement of Sentences Act until 31 December 2000 and
that, in a subsequent judgment, [FN5] it had considered that the new
legislation satisfies, even though barely so, the requirement of a
significant raise of the remuneration of prison work stipulated in its
earlier judgment.
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[FN5] German Constitutional Court, judgment of 24 March 2002, 2 BvR 2175/01.
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STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 On 3 August 2004, the State party challenged the admissibility of the
communication, invoking the German reservation concerning article 26 of the
Covenant, as well as an abuse of the right of application within the meaning
of article 3 of the Optional Protocol.
4.2 The State party submits that the Committee's competence to examine the
alleged violation of article 26 is precluded by the German reservation,
since the author did not claim a violation of a substantive Covenant right:
The right to property is not protected under the Covenant; the prison work
performed by him falls outside the prohibition of forced or compulsory
labour in article 8, paragraph 3, of the Covenant, which specifically
excludes any work or service normally required of a person who is under
detention in consequence of a lawful order of a court. [FN6] The travaux
préparatoires of article 8 reveal that a proposal to include a right of
prisoners to equitable remuneration for their work was rejected by the
Commission on Human Rights. [FN7]
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[FN6] See article 8, paragraph 3 (c) (i), of the Covenant.
[FN7] UN Doc. E/CN.4/365.
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4.3 The State party argues that there is no indication that the reservation
itself is inadmissible. While the Committee expressed its regret "that
Germany maintains its reservations, […] which partially limit the competence
of the Committee with respect to article 26 of the Covenant" and recommended
considering their withdrawal, [FN8] it did not conclude that they are
inadmissible.
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[FN8] Human Rights Committee, 80th session, Concluding observations on the
fifth periodic report of Germany, 4 May 2004, at para. 10.
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4.4 For the State party, the author's late submission of his complaint about
the allegedly discriminatory remuneration of the prison work that he
performed between April and August 1999 and in April 2000 to the Heimsheim
prison warden and, subsequently, to the Committee constitutes an abuse of
the right of application. Although no specific time-limit exists for the
submission of a communication under the Optional Protocol, the Committee has
held that the late submission of a complaint can amount to such abuse, in
the absence of any justification. [FN9] The author's explanation, provided
in his letter of 4 March 2004 to the prison warden, that he was unaware of
the legal situation, being a foreign national, and that legal advice was
unavailable to him, did not justify the delay, since it was hardly
conceivable that the Federal Constitutional Court's judgments of 1 July 1998
and of 24 March 2002 were not discussed among prisoners, whose interests
were directly affected by these decisions, and since the author would have
been free to seek legal advice during his incarceration.
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[FN9] The State party refers to Communication No. 787/1997, Gobin v.
Mauritius, Decision on admissibility adopted on 16 July 2001, at para. 6.3.
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AUTHOR'S COMMENTS
5.1 On 22 September 2004, the author commented on the State party's
admissibility submission, arguing that his claim bears a sufficient link to
article 8, paragraph 3 (c) (i), of the Covenant and that, in any event, the
State party's reservation concerning article 26 is incompatible with the
object and purpose of the Covenant. He denies an abuse of the right of
petition on his part.
5.2 For the author, the subject matter of his case is regulated in article
8, paragraph 3 (c) (i), which allows States parties to oblige convicted
prisoners to perform work "normally required" of such individuals. In his
initial submission, he invoked article 26 in isolation from article 8,
paragraph 3 (c) (i), because it provided more precise guidelines on what may
be required of a prisoner than the latter provision, which remains silent on
the specific conditions of prison work. However, in the light of the State
party's admissibility observations, he now alleges breaches of both article
26 as a free-standing right, and read in conjunction with article 8,
paragraph 3 (c) (i), of the Covenant. Read together with article 8,
paragraph 3 (c) (i), which protects not only against "arbitrary decisions by
prison authorities", but also against laws which prescribe arbitrary
conditions of prison work, article 26 was applicable irrespective of the
German reservation, requiring adequate remuneration for work performed by
prisoners.
5.3 The author challenges the German reservation as being incompatible with
the character of article 26 as an autonomous right to equality free from any
limitations inherent in accessory non-discrimination clauses, such as
article 14 of the European Convention on Human Rights. The effect of the
reservation was to transform article 26 into an accessory right without
independent existence, thereby duplicating the limited intra-Covenant
non-discrimination clause of article 2 of the Covenant. This restrictive
scope was neither intended by the drafters of article 26, nor supported by
any of the traditional means of treaty interpretation. It was moreover
inconsistent with the Committee's constant jurisprudence on article 26
[FN10] and defied recent trends to extend the level of protection afforded
under international equal protection clauses. Thus, article 1 of Protocol
No. 12 to the European Convention on Human Rights, once entered into force,
would replace article 14 of the Convention with an independent right
identical to article 26 of the Covenant; similar autonomous
non-discrimination clauses can be found in article 24 of the American
Convention on Human Rights and article 3 of the African Charter on Human and
Peoples' Rights. The author contends that what the Committee regretted in
its concluding observations on Germany's fifth periodic report "amounts to a
reservation that unduly infringes upon the very essence of the right
established in article 26 of the Covenant and should be found inapplicable."
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[FN10] The author refers to Communication No. 172/1984, Broeks v. The
Netherlands, Views adopted on 9 April 1987, at para. 12.1, Communication No.
182/1984, Zwaan-de Vries v. The Netherlands, Views adopted on 9 April 1987,
at para. 12.1, and General Comment 18 [37], 9 November 1989, at para. 12.
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5.4 As regards the late submission of his communication, the author
reiterates that, as a Croatian national without legal training, he could not
be expected to follow the jurisprudence of the German Constitutional Court,
which was extremely complex on the subject matter and therefore unlikely to
become the topic of debate in a prison setting. On accessibility of legal
advice, he submits that prison-internal legal services are rare in German
prisons and that his deportation directly after his release on parole
prevented him from contacting a lawyer. Once he had been able to secure
legal representation, he and his counsel acted promptly and with due
diligence. He denies that the Committee's decision in Gobin v. Mauritius is
a precedent to be followed, given that five Committee members dissented and
considered that the Committee was precluded from introducing a preclusive
time limit in the Optional Protocol, [FN11] and that another member
considered that a delay of five years should not be taken as a reason for
shifting the burden of proof that such delay was (not) abusive from the
State party to the author. [FN12]
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[FN11] Communication No. 787/1997, Gobin v. Mauritius, Decision on
admissibility adopted on 16 July 2001, individual opinion by Committee
members Christine Chanet, Louis Henkin, Martin Scheinin, Ivan Shearer and
Max Yalden (dissenting).
[FN12] Ibid., individual opinion by Committee member Eckart Klein
(dissenting).
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ADDITIONAL OBSERVATIONS BY THE STATE PARTY
6.1 In its additional observations dated 6 December 2004, the State party
criticized that the author seeks to circumvent the German reservation
concerning article 26 by invoking article 8, paragraph 3 (c) (i), although
this provision does not guarantee a right to equitable remuneration for work
performed by prisoners. The conditions of such work could not be regulated
in detail in a general convention relating to civil and political rights,
even though this might seem necessary in the case of permissible compulsory
labour. Since the right to equitable remuneration for work performed by
prisoners could only be derived from article 26, the subject matter of the
author's complaint fell outside the Committee's competence.
6.2 The State party recalls that Protocol No. 12 to the European Convention
on Human Rights has not yet entered into force. Germany has only signed but
not ratified the Protocol; its reservation concerning article 26 of the
Covenant was consistent with its existing obligations under article 14 of
the European Convention, an accessory non-discrimination clause.
6.3 The State party reiterates its arguments in respect of the author's
alleged abuse of his right of petition. By reference to Gobin v. Mauritius,
it argues that the Committee's decision itself was authoritative, and not
the dissenting opinions invoked by the author.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
7.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
7.2 The Committee notes the author's argument that his remuneration
calculated on the basis of five percent of the base amount between April
1998 and August 1999 and in April 2000, and on the basis of nine percent of
the base amount between June and August 2001, was grossly and unjustifiably
disproportionate to wages paid for similar work performed by the regular
workforce, thereby violating his right to equality under article 26 of the
Covenant. It also notes that the State has invoked its reservation to
article 5, paragraph 2 (a), of the Optional Protocol, to the extent that it
precludes the Committee from examining communications "by means of which a
violation of article 26 […] is reprimanded, if and insofar as the
reprimanded violation refers to rights other than those guaranteed under the
aforementioned Covenant." The Committee considers that the author has not
sufficiently substantiated, for purposes of admissibility, his claim that he
was a victim of discrimination based on his status as a prisoner because he
received only a small part of what he would have been paid on the labour
market. In particular, he has not provided any information on the type of
work that he performed during his incarceration and whether it was of a kind
that is available in the labour market, nor about the remuneration paid for
comparable work in the labour market. Mere reference to a certain percentage
of the base amount, i.e. the average amount of benefits payable under the
German statutory pensions insurance scheme, does not suffice to substantiate
the alleged discriminatory discrepancy between the remuneration for his work
and work performed by the regular workforce. It follows that this part of
the communication is inadmissible under article 2 of the Optional Protocol.
The Committee therefore need not address the issue of the State party's
reservation concerning article 26.
7.3 The Committee further notes the author's claims that article 26, read in
conjunction with article 8, paragraph 3 (c) (i), contains a right to
adequate remuneration for work performed by prisoners, and that he was
discriminated against in the enjoyment of that right because of the
continued application of Section 200 of the Enforcement of Sentences Act for
a transitional period of two years and six months after the Constitutional
Court had declared that provision incompatible with the constitutional
principle of re-socialization of prisoners. It considers that article 8,
paragraph 3 (c) (i), read in conjunction with article 10, paragraph 3, of
the Covenant requires that work performed by prisoners primarily aims at
their social rehabilitation, as indicated by the word "normally" in article
8, paragraph 3 (c) (i), but does not specify whether such measures would
include adequate remuneration for work performed by prisoners. While
reiterating that, rather than being only retributory, penitentiary systems
should seek the reformation and social rehabilitation of prisoners, [FN13]
the Committee notes that States may themselves choose the modalities for
ensuring that treatment of prisoners, including any work or service normally
required of them, is essentially directed at these aims. It notes that the
German Constitutional Court justified the transitional period, during which
prisoners were continued to be remunerated on the basis of five percent of
the base amount, with the fact that the necessary amendment of Section 200
of the Enforcement of Sentences Act required a re-assessment by the
legislator of the underlying re-socialization concept. It further recalls
that it is generally for the national courts, and not for the Committee, to
review the interpretation or application of domestic legislation in a
particular case, unless it is apparent that the courts' decisions are
manifestly arbitrary or amount to a denial of justice. [FN14] The Committee
considers that the author has not substantiated any such defects in relation
to the Constitutional Court's decision to allow the legislator a
transitional period until 31 December 2000 to amend Section 200.
Accordingly, this part of the communication is inadmissible under article 2
of the Optional Protocol.
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[FN13] General Comment 21 [44], 10 April 1992, at para. 10.
[FN14] Communication No. 1188/2003, Riedl-Riedenstein et al v. Germany,
decision on admissibility adopted on 2 November 2004, at para. 7.3;
Communication No. 1138/2002, Arenz et al. v. Germany, decision on
admissibility adopted on 24 March 2004, at para. 8.6.
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8. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 2 of the Optional
Protocol;
(b) That this decision shall be communicated to the State party and to the
authors.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly. |
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