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1.1 The authors are
Portuguese citizens who lost their property in Angola at the time of
decolonization by Portugal and have received no compensation for the loss.
The authors claim to be victims of a violation by Portugal of article 26 of
the International Covenant on Civil and Political Rights. They are
represented by counsel.
1.2 Portugal has been a party to the International Covenant on Civil and
Political Rights since 15 September 1978 and a party to the Optional
Protocol since 3 August 1983.
FACTS AS PRESENTED BY THE AUTHORS
2.1 The authors, a group of Portuguese citizens forming the "Association of
the Dispossessed of Angola", lost all their property during the
decolonization of Angola, which was a Portuguese colony until it acquired
independence on 11 November 1975. They have received no compensation.
2.2 On 26 October 1977, Portugal promulgated Act No. 80/77, recognizing the
right of Portuguese citizens and foreign nationals whose property on
Portuguese metropolitan territory had been expropriated or nationalized
during the troubles of 1975 and 1976 to receive compensation.
2.3 Article 40 of the Act excludes from its sphere of application property
that was situated in the former Portuguese colonies, referring such cases to
the legislation of the State in which the expropriated property is situated.
[FN1]
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[FN1] The Act limits its applicability to expropriations and
nationalizations effected respectively under Decree-Law No. 407-A/75 of 30
July 1975 and agrarian reform legislation adopted from 25 April 1974 onwards
(art. 1, para. 2). It expressly excludes certain acts of nationalization
undertaken during that period in Portugal (art. 1, para. 4), together with
those carried out in Portugal's former colonies (art. 40, para. 1).
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2.4 The authors contend that, as a part of the decolonization process that
began in 1974, the Alvor Agreement was signed on 15 January 1975 between
Portugal, the National Front for the Liberation of Angola (FNLA), the
Popular Movement for the Liberation of Angola (MPLA) and the National Union
for the Total Independence of Angola (UNITA). Under the agreement, the State
party recognized the Angolan people's right to independence and set out
arrangements for the exercise of power during the transitional period, i.e.
up to 11 November 1975, the date set for the declaration of independence.
The powers of the Angolan Governments known as the transitional Governments,
which were made up of representatives of the signatories of the Agreement,
included that of ensuring the security of property and individuals. However,
the authors claim that most of the property belonging to Portuguese citizens
in Angola had to be abandoned owing to poor security, and was seized in
particular by the population and armed groups of insurgents. Because of
these violations, Portugal abrogated the Alvor Agreement by Decree-Law No.
458-A/75 of 22 August 1975. The authors state that the transitional
Governments of Angola authorized the confiscation of certain property by a
decree-law of 7 October 1975. Most of the property was subsequently
confiscated and nationalized by the State of Angola.
2.5 Although Portugal compensated its nationals for losses suffered in
Portuguese territory in 1975 and 1976, Portuguese citizens who were
dispossessed in Angola have not been compensated.
THE COMPLAINT
3.1 The authors consider that Act No. 80/77 [FN2] is discriminatory within
the meaning of article 26 of the Covenant, since Portuguese nationals were
treated differently with respect to the granting of compensation depending
on whether their property was located in Portugal or in the former
Portuguese colonies, including Angola.
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[FN2] Act No. 80/77 of 26 October 1977, whose original title is "Indemnizações
aos ex-titulares de direitos sobre bens nacionalizados ou expropriados",
recognized the right to compensation of Portuguese citizens and foreign
nationals whose property on Portuguese territory had been expropriated or
nationalized during the troubles of 1975 and 1976.
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3.2 The authors consider that Portugal bears responsibility under civil law
for the acts that took place in Angola prior to independence. They hold
that, during that period, Angola was in law a Portuguese territory, over
which the State party had full jurisdiction, including jurisdiction for the
application of its legislation (in particular articles 6 and 8 of the 1933
Constitution, which lay down the duty of the State to guarantee respect for
rights and liberties and ensure their realization, and the right to the
non-confiscation of property). The authors also consider that Portugal is
jointly responsible for the material harm suffered by its citizens in Angola
after independence, by virtue of the duty of diplomatic protection. In that
regard, they point out that the present Portuguese Constitution provides
(art. 14) that "Portuguese citizens who are located or reside abroad shall
enjoy the protection of the State in the exercise of their rights …".
According to the authors, Portugal's responsibility is also demonstrated by
the fact that an allocation is included in the State budget each year to
cover compensation arising from the decolonization process. Lastly, the
authors hold that the State party's responsibility arises both from the
actions described above which it permitted prior to Angola's independence,
and from a continuous failure to discharge its duty to provide diplomatic
protection since then. The authors' right to compensation is therefore not
time-barred, but continuous. It is an acquired right.
3.3 The authors seek reparation for the spoliation of their property in the
form of compensation, either directly on the part of Portugal or indirectly
on the part of Angola through diplomatic channels.
3.4 The authors consider that they have exhausted domestic remedies, as no
recourse to the courts is available to them. As Portuguese legislation does
not allow individuals to challenge Act No. 80/77 directly before the
Constitutional Court, they report that they lodged their claim with the
Ombudsman (Provedor de Justiça), who decided on 5 July 1993 not to follow up
their complaints. The authors add, in their initial communication, that no
judicial appeal may be made against the Ombudsman's decision.
OBSERVATIONS BY THE STATE PARTY
4.1 In its observations dated 18 June 2001, the State party challenges the
admissibility of the communication.
4.2 Firstly, the State party considers, on the basis of the Committee's
jurisprudence, [FN3] that the complaint is inadmissible ratione temporis,
since the authors complain of events that occurred between 1975 and 1976 and
of Act No. 80/77, which entered into force on 26 October 1977, whereas
Portugal ratified the Optional Protocol on 3 May 1983. [FN4]
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[FN3] Communication No. 490/1991 (A.S. and L.S. v. Australia) and
communication No. 579/1994 (K. Werenbeck v. Australia).
[FN4] Portugal ratified the Optional Protocol on 3 August 1983.
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4.3 Secondly, the State party considers, on the basis of the Committee's
jurisprudence, [FN5] that domestic remedies have not been exhausted. In the
present case, and on the basis of the jurisprudence of the Supreme
Administrative Court of Portugal, it is necessary to consider the issue of
the civil liability of the State arising from a legislative or political
act. [FN6] According to the State party, Portuguese law recognizes this form
of State liability, but the authors should in this case have instituted
proceedings before the ordinary courts. [FN7] The jurisprudence of the
Supreme Court acknowledges this liability for legislative acts, according to
the State party. [FN8] Consequently, according to the State party, it was
open to the authors to institute civil proceedings against the State, to
seek compensation from the State in the courts of justice and to challenge
the constitutionality of the law in those courts. The Public Prosecutor
would then immediately have placed the matter before the Constitutional
Court, where it would have been considered, as desired by the complainants.
They would have been able to pursue their remedy in the ordinary courts, in
respect of the matter of compensation. In the present case, the authors had
not exhausted such remedies.
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[FN5] Communication No. 427/1990 (H.H. v. Austria).
[FN6] In a ruling dated 17 December 1998, in case No. 43881, the Supreme
Administrative Court states that this liability "has passed, with the
promulgation of the present Constitution, from the simple sphere of acts of
public management, under Decree-Law No. 48051, to that of universal
liability under article 22 of the Constitution for all acts or omissions
which were committed in the exercise or by virtue of this exercise, and
which gave rise to violations of rights, liberties and guarantees, or harm
to another person". According to Gomes Canotilho and Vital Moreira
(Commentary on the Constitution, third edition), this principle of State
liability for harm caused to citizens is one of the inherent principles of
the democratic rule of law, as an element of the general right of
individuals to compensation for harm caused by others. Hence the liability
of the State for harm caused to others goes beyond the simple administrative
function and, subject to specific conditions, extends to acts committed in
the exercise of the legislative function, the judicial function and even the
political or governmental function.
[FN7] Ruling quoted: "Cases which are not assigned to other courts fall
within the competence of the courts of justice."
[FN8] Ruling of 22 April 1999 in case No. 98B750, ruling of 18 April 1991 in
case No. 0811351, and ruling of 10 November 1991 in case No. 082051.
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4.4 Thirdly, the State party holds that the communication is inadmissible as
the matter was submitted to the Human Rights Committee on 16 April 1998,
five years after the Ombudsman handed down his decision on 5 July 1993.
4.5 In a note verbale dated 21 September 2001, the State party presents its
observations on the merits, which it considers relate to the issue of
whether there was discrimination between citizens depending on whether their
property was located in Portuguese territory or in territory under
Portuguese administration.
4.6 The State party considers that the issue of discrimination is connected
with the status of Angola and Portugal in international law.
4.7 According to the State party, without wishing to deny a priori any
responsibility which might devolve upon Portugal vis-à-vis its nationals
which it has a duty to protect as the country of nationality, the question
arises of whether Angola's legal status is the same as that of Portugal,
where Portuguese citizens are concerned, and whether Portugal is
consequently in a position to grant the same treatment to nationals within
Portugal and those who are located in Angola, which was still a Portuguese
responsibility at the time of the events. There would be discrimination only
if the situation was the same.
4.8 The State party, referring to the jurisprudence of the European Court of
Human Rights, explains that, under the concept of discrimination, situations
that are the same are treated in the same way, and situations that are
different are treated differently.
4.9 The State party holds that the distinction established in Act No. 80/77
is linked not to a particular purpose - that of granting compensation - but
to a de facto situation, namely the material, actual and possible exercise
of jurisdiction by the Portuguese State in Angola at the time of the events.
According to the State party, the concept of jurisdiction is clearly
established in international law:
"The expression 'under their jurisdiction' seems to restrict the number of
beneficiaries of the Convention, but it merely establishes the necessary
link between the victim of a violation of the Convention and the State party
to which this violation may be ascribed. In other words, in order for the
Convention to be applicable, it must be possible for the State to recognize
the rights guaranteed under the Convention; however, the existence of a
stable juridical link such as nationality, residence or domicile is not
required, as it is enough for the State to be able to exercise a degree of
authority over the person concerned."
4.10 According to the State party, the following questions arise: why, then,
should action taken with regard to those dispossessed in Angola be
restricted to Portuguese citizens who possessed property there, and not
extended to non-Portuguese? And was the Portuguese State in a position to
exercise a degree of authority over the property of the persons concerned?
4.11 The State party explains that the genesis of a new State in
international terms depends on factors related to actual events rather than
to the law. It concludes that, in the present case, there was no
discrimination, because the situation was not the same in Portugal and in
Angola. According to the State party, Angola, even before decolonization,
was a territory that was distinct from Portugal and, under international
law, legally ready for separation. It was a potential State. Portugal, on
the other hand, is a unitary State only in respect of the Iberian rectangle
and the autonomous regions - which do not have colonial status
internationally. Hence the State party considers that Portugal is required
to protect property only in that territory.
4.12 Similarly, according to the State party, it cannot be asserted that the
status of metropolitan territory or colony is conferred by the State. For 50
years it has been conferred by the international community, and this
undermines the Portuguese State's jurisdiction over Angola as from the
moment when decolonization is in the transitional phase. Besides, according
to the State party, from the moment when the status of territories was
determined by the international community, such territories were no longer a
Portuguese responsibility, and it was for that reason that Portugal moved to
decolonize them during the 1970s.
4.13 The State party holds that, even if one must be able to assert that
private circumstances must be maintained in the event that a new State is
created, the colonizing State cannot guarantee such circumstances when they
pass under the de facto jurisdiction of the new State, even if the moment is
a moment of transition, and even if the State is still in the process of
formation. The protection of such circumstances should fall to the new
State, without prejudice, of course, to the provisions, inter alia, of
United Nations General Assembly resolution 1314 (XIII) of 12 December 1958
and resolution 1803 (XVII) of 12 December 1962 on "Permanent sovereignty
over natural resources". This is confirmed, according to the State party, by
the United Nations Declaration of 24 October 1970 on Principles of
International Law concerning Friendly Relations and Cooperation among States
in accordance with the Charter of the United Nations and by United Nations
General Assembly resolution 1514 (XV) of 14 December 1960 on the granting of
independence to colonial countries and peoples.
4.14 The State party concludes that there is no discrimination between
Portuguese citizens whose property was located in Portugal and Portuguese
citizens whose property was located in Angola at the time of the entry into
force of Act No. 80/77, and hence that there was no violation of article 26
of the Covenant by the State party. It adds that, notwithstanding the
above-mentioned legal aspects, which demonstrate that the authors' complaint
is not justified, Portugal did not abandon the Portuguese citizens who were
located in Angola and, as far as it was able, sought to protect them and
their property and to secure their reintegration in Portugal. [FN9]
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[FN9] By Decree-Law No. 308-A/75 of 24 July 1975, the State party sought to
maintain the nationality of Portuguese nationals returning from the former
colonies. It set up the Institute for Support to Returning Nationals under
Decree-Law No. 169/75 of 31 March 1975. Moreover, under the Alvor Agreement,
Portugal undertook to transfer property or securities belonging to Angola
which were outside Angola, while the liberation movements undertook to
respect the property and legitimate interests of Portuguese nationals
domiciled in Angola. By virtue of a unilateral declaration issued by
Portugal under Decree-Law No. 458-A/75 of 22 August 1975, this agreement was
suspended owing to the frequent violations committed by the liberation
movements.
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4.15 Hence it has been established that the State party did not infringe
article 26 of the Covenant, nor did it abandon Portuguese citizens located
in Angola at the time of decolonization.
4.16 In its observations of 29 December 2004 on the authors' comments of 6
December 2004, the State party again argues that the communication is
inadmissible. It emphasizes that to date only the proceedings in the Cascais
civil courts have given rise to a Supreme Court ruling. In the State party's
view, the question is whether an issue of constitutionality was brought
before the Constitutional Court and if so, whether it was relevant. As to
the merits, the State party repeats its contention that it is not possible
to seek compensation for acts perpetrated outside the State party's
jurisdiction.
COMMENTS BY THE AUTHORS
5.1 In a letter dated 28 November 2001, the authors challenge the State
party's observations and maintain that domestic remedies have been
exhausted. They cite the appeals lodged in Lisbon administrative court on 25
September 1997, [FN10] in Lisbon civil court on 20 November 1998 and 20
April 2000, in Viseu and Cascais civil court on 2 May 2000 and in Tomar
civil court on 3 May 2000. They state that, as of the date of submission of
their letter to the Committee, no rulings have been handed down.
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[FN10] This appeal did not refer to Act No. 80/77 and its discriminatory
nature, which are the subject of the present complaint.
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5.2 In a letter dated 6 December 2004, the authors state that to date, only
the proceedings in the Cascais civil court have given rise to a judgement,
namely the ruling by the courts that the authors' right to compensation has
lapsed (judgement of the Cascais civil court dated 18 June 2002, upheld by
the Appeal Court on 5 May 2003 and by the Supreme Court on 14 May 2004).
THE COMMITTEE'S DELIBERATIONS CONCERNING ADMISSIBILITY
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 The Committee ascertained, as it is required to do under article 5,
paragraph 2 (a), of the Optional Protocol, that the case was not under
examination by another instance of international investigation or
settlement.
6.3 The Committee has taken note of the State party's arguments concerning
the inadmissibility of the complaint ratione temporis and the comments by
the authors on this subject.
6.4 In keeping with its jurisprudence, [FN11] the Committee considers that
it cannot consider alleged violations which occurred before the entry into
force of the Covenant for the State party, unless the violations complained
of continue after the entry into force of the Optional Protocol. The
Committee finds that the discrimination arising from Act No. 80/77 of 26
October 1977 occurred before ratification by the State party of the Covenant
on 15 September 1978 and of the Optional Protocol on 3 August 1983. The
Committee does not consider that the ongoing effects of such discrimination
pursuant to the Act constitute violations of the Covenant as such. The
communication is therefore inadmissible ratione temporis. [FN12] In such
circumstances, it is not necessary for the Committee to pronounce on whether
domestic remedies have been exhausted.
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[FN11] Communication No. 24/1977 (S. Lovelace v. Canada), communication No.
196/1985 (I. Gueye v. France), communication No. 516/1992 (J. Simunek et al.
v. Czech Republic), communication No. 520/1992 (E. and A.K. v. Hungary) and
communication No. 566/1993 (Ivan Somers v. Hungary).
[FN12] Communication No. 983/2001, John K. Love et al. v. Australia, para.
7.3.
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7. The Committee therefore decides:
(a) That the communication is inadmissible under article 1 of the Optional
Protocol;
(b) That this decision shall be communicated to the State party and the
authors.
_____________________
Adopted 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.
An individual opinion signed by Committee member Ms. Ruth Wedgwood is
appended to the present document.
APPENDIX
INDIVIDUAL OPINION OF COMMITTEE MEMBER MS. RUTH WEDGWOOD
The authors complain that their properties in Angola were seized, without
compensation, during the transition to independence in 1974 to 1975, and
that Portugal has not paid compensation for these actions of the Angolan
authorities. This is said to violate a right to equal treatment under
Article 26 of the Covenant on Civil and Political Rights, because Portugal
chose to pay compensation for any expropriations within its European
territory during the same period. The claim of unlawful discrimination is
maintained even though Portugal's influence and control within Angola in
this time period was waning, if not eclipsed.
The Committee has found that this complaint, claiming unlawful
discrimination, is inadmissible ratione temporis. The Committee notes that
Portugal's law on compensation was promulgated in October 1977, nearly six
years before Portugal joined the Covenant's Optional Protocol in August
1983.
However, where a violation has "continuing effect," the Committee has at
times examined events that predate a state party's accession to the Optional
Protocol. It is thus apropos to note the authors' petition would fail on an
independent ground, namely, the failure to exhaust local domestic remedies.
Litigation before the courts of Portugal is still ongoing, and the authors
have not shown that these remedies would be futile.
The authors' petition commingles several theories. One addresses the scope
of "diplomatic protection" – does a government have a duty, as well as a
right, to champion its citizens' claims against foreign states, and can a
government use its discretion in deciding how, and whether, to propound such
foreign claims? The second is the assertion that a state party has a duty to
provide compensation where such foreign claims are not successful. The third
is the claim that Portugal remained legally responsible for property
seizures carried out before the formal date of Angola's independence, on
November 11, 1975, even though Lisbon may have lost effective control of
events in the colony and attempted to protect Portuguese properties through
the Alvor Agreement. Each of these questions may interest international
lawyers. But their merits, and asserted relationship to Article 26 of the
Covenant, cannot be addressed in a petition that does not meet the first
prerequisite of an admissible communication under the Optional Protocol,
namely, the clear exhaustion of local remedies.
[Signed] Ruth Wedgwood
Done in English, French and Spanish, the English text being the original
version. subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
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