Christine Chanet (France)
Maurice Glele Ahanhanzo (Benin), Ms. Elisabeth Palm (Sweden), Mr.
Hipolito Solari Yrigoyen (Argentina)
RAPPORTEUR: Mr. Ivan
MEMBERS: Mr. Abdelfattah
Amor (Tunisia), Mr. Mr. Nisuke Ando (Japan), Mr. Prafullachandra
Natwarlal Bhagwati (India), Alfredo Castillero Hoyos (Panama), Mr.
Edwin Johnson Lopez (Ecuador), Mr. Walter Kalin (Switzerland), Mr.
Ahmed Tawfik Khalil (Egypt), Mr. Rajsoomer Lallah (Mauritius), Mr.
Michael O’Flaherty (Ireland), Mr. Rafael Rivas Posada (Colombia),
Sir Nigel Rodley (United Kingdom), Ms. Ruth Wedgwood (United
States), Mr. Roman Wieruszewski (Poland)
Calvet Rafols v. Spain, Comm. 1333/2004, U.N. Doc. A/60/40, Vol. II,
at 459 (HRC 2005)
Calvet v. Spain
Report of the Human Rights Committee, U.N. GAOR, 60th Sess., Supp.
No. 40, U.N. Doc. A/60/40, Annex VI, sect. DD, at 459 (Oct. 3, 2005)
Miquel Nadal Borràs
1.1 The author of the
communication, which is dated 18 December 2002, is Liberto Calvet Ràfols, a
Spanish national resident in Vilanova i la Geltrú, Barcelona. The author
claims to be a victim of a violation by Spain of article 11 of the Covenant.
The Optional Protocol entered into force for the State party on 25 April
1985. The author is represented by counsel, Miquel Nadal Borràs.
1.2 On 17 February 2005, the Special Rapporteur on New Communications and
Interim Measures, acting on behalf of the Committee, agreed to the State
party's request to separate the consideration of the admissibility and
merits of the communication, in accordance with rule 97, paragraph 3, of the
Committee's rules of procedure.
2.1. The author and his wife concluded an agreement dissolving their
marriage, and this was approved by the court in February 1990. Following
submission of an application for divorce by the author's ex-wife, court No.
4 in Vilanova i la Geltrú, in a ruling dated 7 March 1992, awarded the
mother care and custody of the couple's minor daughter and ordered the
author to pay his ex-wife the sum of 25,000 pesetas (150.28 euros) per month
in maintenance. On 27 October 1995, the author's ex-wife submitted to
examining magistrate No. 6 in Vilanova i la Geltrú a claim for recovery of
three monthly payments outstanding from 1993, two from 1994 and all payments
2.2 On 14 March 2001, criminal court No. 12 in Barcelona found the author
guilty of the offence of abandonment of the family under article 227 of the
Spanish Criminal Code and sentenced him to eight weekends' imprisonment and
reimbursement of the sums owed to his ex-wife.
2.3 The author appealed, claiming, inter alia, a violation of the
prohibition on imprisonment for inability to meet contractual obligations,
as provided under article 11 of the Covenant, inasmuch as he had been
sentenced to deprivation of liberty for allegedly failing to pay a debt. In
a judgement dated 5 July 2001, the Barcelona Provincial Court upheld the
earlier ruling, albeit limiting the payment to the amounts outstanding for
the period from August 1994 to 27 October 1995, the date of submission of
2.4 The author submitted an application for amparo to the Constitutional
Court, again claiming a violation of article 11 of the Covenant inasmuch as
he had been sentenced to imprisonment for alleged breach of a contractual
obligation. He also claimed that article 227 of the Spanish Criminal Code
was in itself a violation of article 11 of the Covenant. The Constitutional
Court rejected both claims on the grounds that maintenance payments are not
a contractual but a legal obligation, and that article 227 of the Criminal
Code provides not for imprisonment for debt, but for punishment for an act
defined in law as an offence and consisting in the failure to fulfil the
legal obligation to care and provide for one's family.
3.1 The author alleges a violation of the prohibition, under article 11 of
the Covenant, on imprisonment for inability to meet contractual obligations,
insofar as he was sentenced to deprivation of liberty for a debt which he
had failed to pay solely for lack of financial resources and not by
3.2 The author also claims that article 227 of the Criminal Code itself
violates article 11 of the Covenant insofar as it provides for deprivation
of liberty for non-payment of maintenance.
STATE PARTY'S SUBMISSIONS ON THE ADMISSIBILITY OF THE COMMUNICATION, AND
4.1 The State party argues that the communication is inadmissible because it
manifestly lacks any basis in article 11 of the Covenant, sentence having
been passed on the author on the grounds not of his failure to meet a
contractual obligation but of his failure to fulfil his legal obligation to
keep and feed his family. It further states that the fact that this
obligation was contained in a document conveying an agreement between the
parties does not make the obligation a contractual one, for the obligation
itself derives not from that agreement but from the legal obligation on
parents to support their children at all times, and on spouses to support
each other during the marriage, and even following its dissolution if one
partner is left without means. Consequently, the basis for the author's
conviction was not contractual but legal.
4.2 As to the alleged inconsistency of article 227 of the Criminal Code with
article 11 of the Covenant, the State party notes that the former provides
for imprisonment not for debt but for abandonment of one's dependent family,
i.e., on grounds deriving not from a contractual agreement but from a legal
5.1 In a letter dated 4 April 2005, the author points out that article 227
of the Criminal Code was amended by Organic Law No. 15/2003, which entered
into force on 1 October 2004, replacing the previous penalty of 8 to 20
weekends' detention by the current sentence of three months' to one year's
imprisonment or a 6- to 24-months' fine.
5.2 The author insists that the inability to pay maintenance constitutes a
failure to fulfil a contractual obligation that derives from the contract
signed by the two spouses, i.e., the agreement reached at the time of their
separation or divorce. In his view, then, the obligation is contractual,
albeit one ratified by the court.
5.3 Lastly, the author argues that all contractual obligations are legal
obligations since all juridical relations between persons are regulated by
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 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 on Civil and Political Rights.
6.2 The Committee has ascertained, as it is required to do under article 5,
paragraph 2 (a), of the Optional Protocol, that the same matter is not being
examined under another procedure of international investigation or
6.3 The Committee has also ascertained that the author has exhausted all
available domestic remedies, as required under article 5, paragraph 2 (b),
of the Optional Protocol.
6.4 With regard to the alleged violation of article 11 of the Covenant by
the imposition of a custodial sentence for failure to pay maintenance, the
Committee notes that the case concerns a failure to meet not a contractual
obligation but a legal obligation, as provided in article 227 of the Spanish
Criminal Code. The obligation to pay maintenance is one deriving from
Spanish law and not from the separation or divorce agreement signed by the
author and his ex-wife. Consequently, the Committee finds the communication
incompatible ratione materiae with article 11 of the Covenant and thus
inadmissible under article 3 of the Optional Protocol.
6.5 In light of the foregoing, it is not, in the Committee's opinion,
appropriate for it to consider in abstracto the compatibility of article 227
of the Criminal Code with article 11 of the Covenant. The author's complaint
in this regard amounts to an actio popularis and, as such, the Committee
finds it inadmissible under article 1 of the Optional Protocol.
7. Consequently, the Committee decides:
(a) That the communication is inadmissible under articles 1 and 3 of the
(b) That this decision shall be communicated to the author of the
communication and to the State party.
Done in English, French and Spanish, the Spanish 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.