1.1 The author is Ms. Adela
Calle Savigny, a French and Peruvian national resident in France. She claims
to be a victim of violations by France of articles 17; 23, paragraph 4; 24,
paragraph 1; and 26 of the International Covenant on Civil and Political
Rights. She is not represented by counsel.
1.2 On 1 September 2004 the Committee, through the person of its Special
Rapporteur on new communications, decided to consider the admissibility of
the communication separately from the substance.
THE FACTS AS PRESENTED BY THE AUTHOR
2.1 The author married Mr. Jean-Marc Savigny on 10 October 1998 in Feigères
(Haute-Savoie, France). On 26 September 2000, Mr. Savigny filed for a fault
divorce before the family affairs judge at the High Court in
Thonon-les-Bains. By a non-conciliation order dated 15 December 2000, the
judge allowed the author free use of the marital home pending the issuance
of the divorce decree and ordered Mr. Savigny to pay alimony.
2.2 On 5 December 2003, the author and her son (the issue of another union)
were illegally evicted from the marital home by Mr. Savigny. The author
appealed to the authorities, who afforded her no protection or redress.
2.3 Without a court order to that effect, Mr. Savigny stopped paying alimony
in October 2003. The author applied to the judicial authorities, to no
2.4 From the start of the divorce proceedings, the author claims to have
suffered constant discrimination at the hands of the authorities, who failed
to support her.
3.1 The author contends that her forced eviction, together with her son,
from the marital home by her former spouse in the absence of a court
decision, and the lack of action by the authorities, are contrary to
articles 17 and 24, paragraph 1, of the Covenant.
3.2 The author believes that her former spouse's suspension of alimony
payments and the failure of the judicial authorities to intervene are in
violation of article 23, paragraph 4, of the Covenant.
3.3 The author considers that the discrimination she suffered at the hands
of the authorities, owing to her Peruvian origins in particular, amounts to
a violation of article 26 of the Covenant.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 In observations dated 4 August 2004, the State party challenges the
admissibility of the communication.
4.2 Given the sometimes approximate information supplied by the author, the
State party offers an account of the proceedings associated with Ms. Calle
Savigny's divorce and their consequences.
4.3 As regards civil proceedings before the family affairs judge, the State
party indicates that on 26 September 2000, Mr. Savigny lodged a petition for
fault divorce with the family affairs judge at the High Court in
4.4 On 15 December 2000, the judge issued a non-conciliation order which
permitted the spouses to live apart, granting free use of the marital home
to the author pending the issuance of the divorce decree and ordering Mr.
Savigny to pay alimony of 6,000 francs per month.
4.5 On 19 March 2001, continuing with the procedure after the
non-conciliation order, Mr. Savigny sued his wife for divorce.
4.6 On 22 November 2001 the examining magistrate ruled in first instance, in
adversarial proceedings, against an application by Mr. Savigny to reduce the
size of his alimony payments. The judge also found, on the other hand, that
the author had shown no indication of having looked for work since the
issuance of the non-conciliation order and that "given the brevity of their
life together and the absence of any common offspring, the possibility that
Adela Calle Savigny might long remain in her current situation, occupying
property belonging to her husband and living solely off the alimony her
husband [was] paying to her, [was] not to be thought of". The judge
therefore ruled that, four months after the ruling, the author should no
longer have free use of the marital home.
4.7 After several exchanges of proposals, the family affairs judge issued a
preliminary ruling reopening the discussions in adversarial proceedings on
24 March 2003.
4.8 On 6 November 2003, the family affairs judge handed down a non-stayable
ruling in first instance in which he found that that author had neither
submitted a definitive claim nor supplied the evidence asked for in the
preliminary ruling of 24 March 2003. He observed that the author appeared to
be "profiting from the protraction of the procedure which, it may be pointed
out, has already lasted much longer than is normal". He also indicated that
the marital home was no longer assigned to the author, whom he ordered to
leave the premises within the month following the ruling. Lastly, the judge
suspended the alimony payments due from Mr. Savigny. The State party notes
that the author did not attend that hearing although she had been kept
regularly informed of Mr. Savigny's proposals.
4.9 By decision dated 12 February 2004, the family affairs judge, after
discussions in chambers, publicly delivered a judgement in first instance
after adversarial proceedings declaring the couple divorced with fault on
both sides. He confirmed the ruling of 6 November 2003 to the effect that
the author and any related occupant must remove herself and her belongings
from the marital home, the personal property of Mr. Savigny. He also found
that there were no grounds for a compensatory award given the brevity of the
couple's life together and the absence of any request of that kind.
4.10 The author had the support of counsel during the proceedings before the
family affairs judge. She did not appeal any of the judge's decisions.
4.11 As regards criminal proceedings, the State party refers first to the
author's complaint dated 12 December 2003. In response, it indicates, to a
complaint lodged by the author (relating to issues including the conditions
under which she had had to leave the housing she had been occupying with her
minor son, under constraint from her husband and in the absence of a court
decision) with the government prosecutor of Thonon-les-Bains on 12 December
2003, the gendarmerie conducted an investigation on instructions dated 19
December 2003 from the prosecutor's office.
4.12 The prosecutor's office shelved the proceedings with no further action
taken on 1 March 2004, given the particular circumstances of the case,
especially the conduct of the author and the family affairs judge's
decisions relating to the assignment of the housing in question and comments
about the brevity of the couple's life together. When interviewed by the
gendarmes, the mayor of the commune indicated that the town hall had lent
the author somewhere to store her belongings and had also offered to help
her find housing, but this the author had refused.
4.13 In reference to the complaint about non-payment of alimony, the State
party contends that contrary to what the author claims, her complaint of 11
September 2003 about non-payment of alimony was investigated by the
gendarmerie. Mr. Savigny acknowledged that he had not paid any alimony since
April 2003 since the author was wilfully dragging out the divorce process.
He was summoned before the correctional court to answer the charge of
failure to pay alimony during the period when payment was due. The hearing
was set for 24 September 2004.
4.14 The State party then sets out its grounds for considering the
4.15 Referring to the Committee's jurisprudence, the State party considers
that the part of the complaint relating to a violation of article 26 of the
Covenant is not adequately supported and thus inadmissible. It argues that
the author's complaint is based on mere statements that the administrative,
social and judicial authorities discriminated against her, with no specific
evidence to support them. The author provides no indication as to how
article 26 might have been violated. [FN1]
[FN1] 1. Assuming, for the purposes of argument, that the author could prove
she and her son had been subjected to harassment and moral pressure, there
is still nothing to show that such treatment stemmed from discrimination
4.16 On the alleged violation of article 17 of the Covenant, the State party
points out that the housing in which the author stayed with her son was the
personal property of Mr. Savigny of which she no longer had free use four
months after the ruling of 22 November 2001 - a ruling of which she could
not claim to be unaware since it had been issued in adversarial proceedings.
Moreover, during the investigation by the gendarmerie, Mr. Savigny stated
that his wife did not always stay there, and that for some months the
neighbours had been looking after her son during her absences. Mr. Savigny
himself had moved out during 2000 and did not return until 5 December 2003 -
a period rather longer than he and his wife had lived together. At any rate,
since the marital home was, by the time of the complaint (December 2003), no
longer assigned to the author, that part of the communication was unfounded
and thus fell ratione materiae outside the field of application of the
4.17 The State party explains that the communication is, furthermore,
inadmissible owing to a failure to exhaust internal remedies.
4.18 In the case of the alleged violations of articles 17 and 24, paragraph
1, of the Covenant in connection with the eviction of the author from the
marital home and its consequences, the State party draws attention to the
fact that, assuming the Committee determines that article 17 applies, the
author's complaint of 12 December 2003 was, contrary to what she asserts,
not only investigated but also diligently handled. The government
prosecutor's office referred the matter to the gendarmerie only days after
receiving it. The gendarmes acted with equal dispatch, launching an
investigation in January 2004. It was true that the case had been shelved
with no further action taken; but there were available to the author
codified, accessible, effective internal remedies against the decision to
shelve the case, either by reporting Mr. Savigny directly to the
correctional court or by complaining to the investigating magistrate about
the matters raised in her complaint and applying for criminal
indemnification. On the civil side, the State party observes that the author
did not appeal against any of the decisions relating to alimony or
assignment of the marital home which lie behind the alleged violations of
articles 17 and 24, paragraph 1, either during the interim arrangements or
when the divorce decree was issued; yet the related proceedings were
adversarial and the author was assisted by counsel. Similarly, the author
had never sought protection for her minor son from the family affairs judge
or other court. In sum, the author has not exhausted the remedies available
in the case of article 17 of the Covenant (if applicable), and has not given
the national authorities the opportunity to rectify the alleged violation of
article 24, paragraph 1. The complaints relating to the marital home and
protection for her son are, therefore, inadmissible. In the case of her son,
for whom the complaints stemming from articles 17 and 24, paragraph 1, are
not substantially different, the author does not indicate how the child
might actually have been in any danger since both he and she were later put
up by friends.
4.19 In connection with the alleged violation of article 23, paragraph 4, of
the Covenant, the State party points out that under French law, cases of
divorce, separation and their consequences, both for spouses and for
children of the union, are handled by family affairs judges. It was in this
way that the author was originally awarded alimony, although, the State
party also points out, she never requested financial support for her son
(who is unrelated to Mr. Savigny) from any court. The State party draws
attention to the fact that the author's complaint about non-payment of
alimony, lodged on 11 September 2003, led to a gendarmerie investigation.
Mr. Savigny was summoned before the correctional court for non-payment, and
the hearing was set for 24 September 2004. Proceedings are thus in progress.
It follows that internal remedies have not been exhausted. Further to these
proceedings, on 8 July 2005 the State party forwarded the decision handed
down on 1 December 2004 by the High Court in Thonon-les-Bains on the issue
of non-payment of alimony. The court found Mr. Savigny guilty of not
voluntarily making alimony payments for two months. Inasmuch as reparation
had been made for the injury caused and the offence had thus ceased to cause
any inconvenience, the court, pursuant to article 132-59 of the Penal Code,
decided to impose no punishment on Mr. Savigny.
4.20 As regards the alleged violation of article 26 of the Covenant, the
author has lodged no complaint about incidents of discrimination on the
grounds of her nationality or other considerations. Articles 225-1 ff. of
the French Penal Code as they applied at the time of the events at issue
make any discrimination on grounds of origin, sex, family situation, or
membership or otherwise of a specified ethnic group, nation, race or
religion a punishable offence. The author has thus not given the French
authorities the opportunity to rectify any violation of article 26.
COMMENTS BY THE AUTHOR ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
5. In comments submitted on 22 January and 23 September 2005, the author
impugns the lawyer assigned to her under the legal aid system who, she
states, did not keep her informed of the state of proceedings or the
opportunities for appeal. She considers that the entire process was slanted
in a manner designed to keep her at arm's length and allow her no
opportunity to intervene. She accuses Mr. Savigny and his family of plotting
to prevent her from defending herself before the French authorities. She
states that she has not appealed against the decision of 1 December 2004 by
the High Court of Thonon-les-Bains, but demands recognition and application
of her rights.
THE COMMITTEE'S DELIBERATIONS ON 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 the communication is admissible under the Optional
Protocol to the Covenant.
6.2 The Committee has, as required by article 5, paragraph 2, of the
Optional Protocol, ascertained that the same matter is not being examined
under another procedure of international investigation or settlement.
6.3 Concerning the matters raised by the author, the Committee observes that
the author has not availed herself of the internal remedies available under
criminal law, appealing against the decision to shelve her complaint of 12
December 2003 without further action and the decision handed down on 1
December 2004 by the High Court in Thonon-les-Bains or, civil law, appealing
against the rulings by the family affairs judge on 6 November 2003 and 12
February 2004 concerning the assignment of the marital home and the award of
alimony, these having been delivered in adversarial proceedings where the
author was assisted by counsel. The case file and the parties' submissions
also show that the author did not apply to the courts for protection for her
son or make use of the internal remedies available to her for responding to
her allegations of discrimination. As regards the author's argument that the
lawyer assigned to her under the legal aid system did not keep her informed,
even of the opportunities for appeal, it is clear from the case file that
the author at no point during the proceedings challenged the aid her counsel
was giving her or asked for a replacement. The Committee thus finds her
complaints inadmissible under article 5, paragraph 2 (b), of the Optional
7. The Committee therefore decides:
(a) That the communication is inadmissible under article 5, paragraph 2 (b),
of the Optional Protocol;
(b) That this decision shall be communicated to the State party and the
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.
Pursuant to rule 90 of the Committee's rules of procedure, Ms. Christine
Chanet did not participate in the consideration of this communication.