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1. The author of the
communication dated 28 July 2000 is Ms. Concepción López González, a Spanish
citizen. She claims to be the victim of a violation by Spain of article 14,
paragraph 1, of the Covenant. The Optional Protocol entered into force for
the State party on 25 April 1985. The author is represented by Mr. José Luis
Mazón Costa.
FACTUAL BACKGROUND
2.1 The author was employed as a temporary worker by the Fruta Romu company.
On 2 July 1993, eight days before her contract ended, she had an
occupational accident when she was struck in the right eye by a lemon. The
effects of the injury worsened as time went by. She suffered a detached
retina and had to be operated on several times, and was left with a 45 per
cent decrease in vision in the injured eye. The author did not go to a
doctor for treatment immediately, but a month after the accident, on 2
August 1993, when she went to the Beniaján health centre to complain of
vision problems. On the following day, 3 August 1993, she was operated on,
for a detached retina, at the General University Hospital. The
ophthalmologist who operated on her explained in his report that the
appearance of a tear leading to detachment of the retina weeks after the
accident was consistent with a blow to the eye.
2.2 On 24 June 1994, the author filed a lawsuit against the company, the
National Social Security Institute, the National Health Institute, the
Social Security Regional Treasury and the Frenap mutual society (an
employers' association), requesting that the accident be recognized as an
occupational accident and the defendants ordered to pay compensation.
2.3 On 27 February 1995, the author requested that the judge should summon
two witnesses and the ophthalmologist who had attended her in the General
University Hospital in Murcia. The judge agreed to summon the witnesses but
not the doctor, without giving reasons for his decision.
2.4 In a ruling dated 17 March 1995, Murcia employment tribunal No. 3
rejected the author's claim. The judge found no evidence that the author's
injury had been caused when she was working for the company named in the
suit. The author considers that the testimony she had requested was vital to
the outcome of the case. She maintains that the ruling was principally based
on the opinion of the expert put forward by the defendant (an employers'
association), who did not believe that the author's accident could have
caused the injury. If it had been the cause, since the author was
predisposed to injury because she suffered from a basic pathology (myopia
magna), the detachment of the retina would have occurred sooner. The
ophthalmologist who operated on her, however, concluded in his report that
an ocular contusion with subsequent tearing might well have given rise to a
detached retina a month after the accident.
2.5 The author filed an application for reconsideration of the judgement,
requesting that the evidence be properly assessed, taking into account that
the expert evidence proposed by the defendant had been heard in court, while
the testimony of the expert proposed by the author had been disallowed
without cause. The High Court dismissed the application on 25 September
1996. The author filed an appeal for unification of doctrine before the
Employment Division of the High Court, which dismissed it on 10 June 1997.
2.6 On 21 October 1997, the author filed an application for judicial review
before the Supreme Court, citing a previously undisclosed document which
revealed that the company had failed to register the author in the General
Social Security System for four months; this explained why the company did
not report the accident and why its representatives denied that an
occupational accident had occurred. The application was dismissed on 30 June
1998. The Supreme Court held that the document on which the application was
based could have been obtained and submitted earlier, during the
proceedings. Finally, the author filed an application for amparo before the
Constitutional Court, alleging that her right to effective legal protection
had been violated, in that she had been left without a defence by the
refusal to allow the doctor's testimony to be heard even though the expert
evidence proposed by the defendant had been allowed. On 13 May 1999, the
Constitutional Court dismissed the application, finding the author's
argument that the judgement could have gone in her favour had her request
been granted unconvincing.
2.7 The author submitted two clinical reports, dated July and August 2002
respectively, attesting to a serious visual impairment that prevents her
from engaging in some occupational, social and personal activities.
THE COMPLAINT
3. The author contends that article 14, paragraph 1, of the Covenant has
been violated. She maintains that she was prevented from producing a
decisive piece of evidence, in breach of the principle of equality between
the parties in court proceedings. If the ophthalmologist, who worked in the
public health system, had been summoned, there would have been two different
opinions from two specialists concerning the same facts, and since the
expert she had proposed was a public health service official his
impartiality could not have been doubted and the judgement would have been
different. According to the author, the crux of the matter was whether the
injury had had a delayed effect and the problem was that the court had
allowed the testimony of an expert hired by the defendant but refused to
summon the expert she herself had proposed. She adds that the court, in
order to give the impression that its decision was a fair one, gave
probative value to the statement by the emergency doctor in the health
centre to which she had gone for the first time on 2 August 1993, stating
that her injury was approximately 20 days old, but refused to admit as
evidence the report of the expert proposed by her stating that the injury
had occurred a month previously. Lastly, she states that the issue at stake
is the same as that addressed in the Committee's decision concerning
communication No. 846/1999 (Jansen-Gielen v. The Netherlands), in which the
Committee found a violation of article 14, paragraph 1, of the Covenant, "in
the absence of the guarantee of equality of arms between the parties in the
production of evidence for the purposes of the hearing". [FN1]
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[FN1] Communication No. 846/1999, Jansen-Gielen v. The Netherlands, decision
of 3 April 2001, para. 8.2.
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THE STATE PARTY'S SUBMISSION ON THE ADMISSIBILITY AND MERITS OF THE
COMMUNICATION, AND THE AUTHOR'S COMMENTS THEREON
4.1 With regard to the admissibility of the communication, the State party
maintains that the author has not exhausted domestic remedies. It states
that when the employment tribunal rejected the author's request that the
ophthalmologist who had operated on her should be summoned as an expert
witness, she could have appealed against that decision, as she is entitled
to do under article 184 of the Labour Procedure Act. She did not file an
appeal. Secondly, when the defendant's expert gave testimony during the
proceedings, the author or her counsel could have objected. She did not do
so. Thirdly, when the proceedings ended, the author could have requested
that judgement be deferred pending the appearance of the ophthalmologist as
an expert witness, under article 95 of the Labour Procedure Act. She did not
do so. Fourthly, in her application to the High Court for reconsideration,
the author could have requested that the same ophthalmologist be summoned to
give expert evidence, as authorized under article 191 of the Labour
Procedure Act, but she did not do so.
4.2 With regard to the merits, the State party reports that the author
suffered from congenital myopia magna and wore hard contact lenses. She
worked as a packer in a lemon-packing firm from 11 January 1993 to 10 July
1993 and duly signed the document ending her employment contract. On 2
August 1993, a month after finishing work, she went to a health centre with
a pain in her right eye. The report of the emergency doctor who treated her
states that the author presented a traumatism dating back 20 days. The
author went into hospital the next day and was operated on for a detached
retina; the medical report states that she presented a traumatism dating
back a month. Two-and-a-half months after terminating her employment
contract, the author reported to the Labour Inspectorate that she had been
struck in the right eye by a lemon on 2 July 1993 while working. The Labour
Inspectorate reported that there was no proof of an occupational accident,
that there was no accident declaration and that the section supervisor
stated that the author had never said that she had been struck in the eye. A
year after the alleged blow from the lemon, the author applied to a labour
court to have the alleged blow from the lemon declared an occupational
accident.
4.3 The State party contends that the author failed to prove to the domestic
courts the fact of the injury (being struck by a lemon while working) and
its alleged consequence (detachment of the retina). During the proceedings,
the author was unable to prove that she had been struck in the right eye by
a lemon. The supervisor of the section where she worked denied it, and the
two witnesses produced by the author contradicted each other. One asserted
that he had thrown a lemon at a box from four or five metres away, while the
other said that the lemon was thrown from a distance of one metre to where
the author was. With regard to the evidence of the alleged consequence, the
author's request that the ophthalmologist should be summoned was submitted
after the statutory time limit had passed, two days before the hearing,
while the law requires requests for evidence to be submitted three days in
advance. The author did not appeal against the rejection of her request,
probably because the report of the doctor concerned was in the case file.
During the proceedings, the author neither objected to nor contested the
report of the expert put forward by the defence. The judge considered that
neither the blow from the lemon nor the consequence of a detached retina had
been proved. The assessment of the evidence by the judge was not arbitrary.
He took into account, inter alia, the time that had elapsed before the
author went to the health centre, the different dates indicated as the
probable date of the accident by the emergency doctor and the
ophthalmologist who operated on the author (20 days before 2 August 1993 for
the former and 30 days before 3 August 1993 for the latter) and the fact
that the alleged blow from the lemon is not mentioned in the record of the
first consultation, on 2 August 1993, but appears for the first time in the
record dated 3 August 1993.
4.4 The State party contends that the author filed six different
applications for review with the domestic courts and that all of these
rejected her arguments. The High Court dismissed an application for
reconsideration submitted by the author and concluded that if the fact of
the injury was not itself proved, at least in relation to the work
performed, it was impossible to classify the retinal detachment as an
occupational accident. The Court took into account the fact that the author
had completed her employment contract on 10 July 1993 and had received her
final salary but had never informed the company that she had been struck by
a lemon on 2 July 1993, and that it was some time after the alleged accident
that she had gone to a health centre. Her appeal for unification of doctrine
was rejected by the Supreme Court because the author did not provide proof
of a previous or earlier judgement that differed from the one in her case.
Her application to the Supreme Court for a judicial review was rejected
because she could have submitted the "new" document on which she based her
case at an earlier stage. The author subsequently filed a new application
for reconsideration and it too was rejected. Lastly, her application to the
Constitutional Court for amparo was also rejected. With regard to the fact
that the doctor proposed by the author did not testify as an expert, the
Court did not consider that the need for him to do so had been demonstrated,
nor that the author would have obtained a favourable judgement as a result
of his testimony.
4.5 With regard to the medical reports dating from 2002 submitted by the
author as evidence of the serious visual impairment that prevented her from
leading a normal life, the State party stresses that during the proceedings
the author was unable to prove that she had been struck by a lemon. The
State party produced various documents relating to the proceedings. In the
particulars of her claim, the author only announced that she would use
documentary evidence and witnesses. However, two days before the first
hearing, she requested the summons of witnesses. The judge suspended the
hearing and ordered that a request for information be sent to the Labour
Inspectorate, which reported that there was no record of the occupational
accident and that the author had not reported having received a blow to the
right eye on 2 July 1993. A second hearing was scheduled and the witnesses
proposed by the author summoned; they could not, however, be served with
notice. The author provided new addresses for the witnesses and for the
first time requested that the ophthalmologist who had operated on her be
summoned. The defendant supplied three medical reports. During the course of
the second hearing, the principle of the adversarial procedure was respected
and the judge provided adequate grounds for the judgement.
5.1 In a note dated 11 May 2003, the author states that the State party's
claim that domestic remedies had not been exhausted is being raised for the
first time before the Committee without having been put before any of the
domestic courts. The author considers that the State party is abusing the
legal process by introducing a claim that was not raised before the domestic
courts. She considers that it was unnecessary to appeal against the decision
of the employment tribunal to reject her request to have the ophthalmologist
summoned, since when the Constitutional Court rejected her application for
amparo, it gave a ruling on the merits of the case, stating that the
author's right to use means of proof had not been infringed because, by not
having argued convincingly that the final judicial decision could have been
in her favour had her request been acceded to, she had not demonstrated that
she was left without a defence, as she alleged. One of the formal
requirements for filing an application for amparo before the Constitutional
Court is to have exhausted judicial remedies, and the author had referred to
the violation of her right to use means of proof in the application for
reconsideration before the High Court. The author denies that the other
remedies referred to by the State party are effective or were available to
her.
5.2 With regard to the merits, the author maintains that since her lawsuit
concerned an eye injury and its relation to a traumatic event, the
importance of summoning the ophthalmologist who had operated on her was
obvious. The importance of expert testimony could be seen in the fact that
the judge had indeed listened to the testimony of the expert proposed by the
defendant and assigned decisive weight to it in his judgement. The author
concludes that her right to equality before the courts was infringed because
she was unable to submit evidence on the same terms as the defendant.
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.
6.2 The Committee has considered all the information provided by the author
and the State party, from which it may be inferred that the author was not
left without a defence, since although the ophthalmologist who operated on
her was not summoned to the hearing, the author was not prevented from
submitting the report and having it included in the court record. Moreover,
whereas the defendant was not able to cross-question her ophthalmologist,
the author had the opportunity to cross-question the expert proposed by the
defendant. The Committee observes that the report dated 3 August 1993
referred to by the author is not consistent with the report of 2 August 1993
by the emergency doctor in the health centre to which the author went, which
put the probable date of the accident at approximately 20 days previously,
i.e. after the author's employment had ended. The Committee also observes
that the judge who considered the case explained in his judgement the
reasons why he believed that it had not been proven that the injury
sustained by the author was work-related. The Committee recalls its
jurisprudence to the effect that it is for the courts of States parties to
assess the facts and the evidence, unless the assessment is manifestly
arbitrary or constitutes a denial of justice, [FN2] neither of which
circumstances applies in this case. The Committee finds that the author has
not sufficiently substantiated, for the purpose of admissibility, her
complaint of an alleged violation of article 14, paragraph 1, of the
Covenant, and that her complaint is therefore inadmissible under article 2
of the Optional Protocol.
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[FN2] Communication No. 986/2001, Semey v. Spain, decision of 30 July 2003,
para. 8.6.
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7. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 2 of the Optional
Protocol; and
(b) That this decision shall be communicated to the State party, the author
of the communication and her lawyer.
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Adopted 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. |
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