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1.1 The author of the
communication, initially dated 17 July 2000, is Mr. Dusan Soltés, a
Slovakian citizen, born in 1943. He claims to be a victim of violations by
both the Czech Republic and the Slovak Republic of articles 2, 14, and 26 of
the International Covenant on Civil and Political Rights. He is not
represented by counsel. The Optional Protocol entered into force for the
Czech and Slovak Federal Republic (CSFR) on 12 March 1991. The CSFR ceased
to exist on 31 December 1992, dissolving into the Czech Republic and the
Slovak Republic, which notified their succession to the Covenant and
Optional Protocol on 22 February 1993 and 28 May 1993, respectively. [FN1]
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[FN1] The Optional Protocol entered into force for the Czech and Slovak
Federal Republic (CSFR) on 12 March 1991. The CSFR ceased to exist on 31
December 1992, dissolving into the Czech Republic and the Slovak Republic,
which notified their succession to the Covenant and Optional Protocol on 22
February 1993 and 28 May 1993, respectively.
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1.2 On 13 April 2004, the Committee's Special Rapporteur on New
Communications decided to separate the consideration of the admissibility
and merits of the communication.
1.3 Pursuant to Rule 94 of Rules of Procedure, the Committee has joined
consideration of cases 1034/2001 and 1035/2001.
FACTUAL BACKGROUND
2.1 Between 1985 and 1989, the author worked as a United Nations (UN) Expert
at the P5 level for the UN Department of Technical Cooperation for
Development (UNDTCD) in Burma. Over that period, he claims to have been
forced to pay a total of US$42,000 from his UN earnings to Polytechna
Prague, a specialized recruitment agency for international organizations of
the Czechoslovak government which allegedly covertly extracted taxes from
its citizens' non-taxable UN income, in contravention of the domestic laws
and the UN Convention on the Privileges and Immunities of the United Nations
("the UN Convention"), a Convention to which Czechoslovakia was a party
since 1955. In order to obtain an exit-visa and be permitted to take up his
UN employment, the author allegedly had to sign a secret "pre-contract" with
Polytechna on 30 April 1985; he was forbidden from disclosing its contents
to third parties, least of all to his UN employers. The Czechoslovak Embassy
in Burma monitored the payments he made.
2.2 As a result of political changes in Czechoslovakia since November 1989,
in a letter addressed to the author on 2 January 1990, Polytechna allegedly
admitted its wrongdoing and offered to negotiate amicable settlements with
all former UN personnel affected. However, it did not respond to the
author's repeated requests seeking such a settlement.
2.3 On 26 May 1992, the author filed a civil claim for damages in the Prague
District Court (Obvodny sud) against Polytechna. In a hearing held on 12 May
1993, the Court claimed difficulty understanding the author's Slovak
language (though it was one of the two official languages until 31 December
1993) but did not provide the author with an interpreter. It allegedly
questioned whether the author was covered by the UN Convention on Privileges
and Immunities of the United Nations. The District Court ruled against him,
supposedly basing its judgement exclusively on Polytechna's arguments. It
concluded that the author's payments to Polytechna were "voluntary
contributions" for its mediation services in recruiting him to the UN,
although the author had received a direct job offer from the UN.
2.4 On 14 September 1993, the author appealed to the Prague Municipal Court
(Mestsky sud). Without a hearing or a request for supplementary evidence,
the Municipal Court upheld the decision of the District Court on 10 December
1993, stating that no further appeal was available.
2.5 The author nonetheless appealed to the Supreme Court (Najvyssi sud) on 1
March 1994. On 7 March 1996, the Supreme Court rejected his request and
confirmed the Municipal Court's decision that its ruling was "final".
According to the author, as with the Municipal Court, he was not called to
the Supreme Court hearing, nor was he invited to present further evidence.
2.6 The author did not bring his claim before the Constitutional Court of
the Czech Republic allegedly because neither he, nor his Slovakian lawyer,
were informed about the existence of the Constitutional Court (which had
just been constituted in Brno, Czech Republic), but was not yet fully
operational.
2.7 The author submitted his claim to the European Commission of Human
Rights (ECHR) on 17 October 1996 (Case No. 34194/96). The ECHR at first
questioned the admissibility on the ground that the author had not appealed
to the Constitutional Court but then accepted the author's argument that he,
as a foreigner, had not been informed of its existence. However, on 8
December 1997, the Commission declared the case inadmissible because its
6-month deadline for an appeal had lapsed.
THE COMPLAINT
3.1 The author alleges that the Czech Republic violated article 2, paragraph
3(a) and (b), of the Covenant by failing to provide him with an effective
remedy for the violation of his rights as an international civil servant
under the UN Convention and failing to advise him of the existence of
further judicial remedies. He contends that the courts not only concealed
the possibility of appeal to the newly established Constitutional Court of
the Czech Republic to him, but also misled him by ruling that the decision
of the Municipal Court could not be appealed.
3.2 He alleges that he is victim of a violation by the Czech Republic of his
rights under article 14 of the Covenant, because the Czech judicial
authorities did not grant him a fair and public hearing before an impartial
and independent tribunal. With the exception of the court of first instance,
he was allegedly "excluded" from all other proceedings. According to the
author, the Czech courts' bias toward a former state institution (Polytechna)
deprived him of an effective judicial remedy under the Covenant, as well as
under domestic legislation and the UN Convention. The proceedings and the
judgment of the District Court were allegedly based on Polytechna's
submissions alone. He adds that the Czech courts allegedly delayed his case
by stating that correspondence had been lost, by withholding information
about available remedies, and by failing to provide an interpreter. Finally,
by ruling that the obligatory deductions from the author's UN salary were
"voluntary" contributions in exchange for Polytechna's assistance in
securing the author's UN contract, the District Court is said to have
violated the principle of impartiality.
3.3 The author further claims that the facts set out above also amount to a
violation of article 26 of the Covenant, because the Czech courts allegedly
discriminated against him as a national of the "secessionist" Slovak
Republic, which reflected a broader trend to deny payments to Slovak
citizens.
3.4 With regard to his claim against the Slovak Republic, since the laws
governing the separation of Czechoslovakia required that cases against
former federal Czech or Slovak Federal Republic (CSFR) institutions be
examined by the courts in the district in which they were based, he pursued
his case against the former federal institution Polytechna in the Czech
Republic. He adds that after the dissolution of the CSFR, all former federal
property with pending liabilities was divided at a ratio of 3 to 1 between
the Czech and the Slovak Republics. Accordingly, his claim against the
Slovak Republic should be considered as part of its shared liability with
the Czech Republic and determined at the same ratio as between the two
states.
SUBMISSION OF THE SLOVAK REPUBLIC ON THE ADMISSIBILITY OF COMMUNICATION NO.
1034/2001
4. By note of 18 November 2002, the Slovak Republic declined to comment
either on the admissibility or merits of the complaint. First, it considered
that only Czech courts were competent to receive the author's claim, because
the Polytechna was based in Prague. Second, any civil proceeding initiated
before the entry into force of the Agreement on Mutual Legal Assistance
between the CSFR successor states (27 August 1993) was to be decided by the
court of law to which it had originally been brought. Finally, the State
party asserts that it cannot be held responsible for the alleged violation
of the UN Convention which had supposedly taken place on the territory of,
and had been caused by, the actions of a third state. The Slovak Republic
thus sought the case against it to be dismissed ratione personae.
SUBMISSIONS OF THE CZECH REPUBLIC ON THE ADMISSIBILITY OF COMMUNICATION NO.
1035/2001
5.1 By Note verbale of 8 April 2004, the State party disputed the facts, and
the admissibility and merits of the case. On the facts, it contends that the
author had voluntarily entered into a contract with the "Czechoslovak UN
Technical Assistance Recruitment Agency" (Polytechna) on 30 April 1985,
pursuant to which he had agreed to pay contributions from his UN income.
According to the State party, the Constitutional Court enjoyed "the power to
quash a final decision of an authority of public power if it is at variance
with the constitutional order and/or the promulgated international treaties
on human rights and fundamental freedoms, binding on the Czech Republic,
including the Covenant" on Civil and Political Rights. With the collapse of
the former regime in 1989, he requested Polytechna to reimburse him for
those deductions, as they allegedly contravened the UN Convention on the
Privileges and Immunities of the United Nations. The Prague District Court
concluded, on 12 May 1993, that the author had signed an "innominate
contract" with Polytechna for its mediation services with a foreign employer
and had voluntarily agreed to pay contributions which could not be
considered to have been the equivalent of income-tax; the text of the UN
Convention, published in the official Collection of Laws (No. 52/1956), was
not concealed from the author in the CSFR; thus, the Polytechna contract was
not inconsistent with the UN Convention in this respect. On appeal, the
author and counsel had, according to the State party, excused themselves
from the 10 December 1993 hearing in the Municipal Court, which upheld the
District Court's judgement in the plaintiff's absence. The Municipal Court
concluded that the court of first instance had prematurely examined the
merits of the case, because it had not established that the author had an
"urgent legal interest" in determining the non-existence of a legal
relationship under the Code of Civil Procedure. According to the Municipal
Court, since an "urgent legal interest" necessarily involved the provision
of legal protection before a plaintiff's rights were violated, the author
could not have possibly had any legal interest in such a case but was "only
interested in removing the consequences of the violation of his right." The
author then appealed to the High Court in Prague for an extraordinary
remedy, arguing that his contributions to Polytechna should have been
considered a violation of the UN Convention. As the High Court failed to
examine the appeal by 31 December 1995, jurisdiction automatically passed to
the Supreme Court under Act No. 238/1995 which had established two High
Courts in the Czech Republic. On 7 March 1996, the Supreme Court declared
the appeal inadmissible because, under Czech legislation, appeals on points
of law against an appellate court's final judgement were admissible only if
substantial procedural error had been committed and only if the appellate
court had expressly allowed for such a review because of the fundamental
legal importance of the case. Neither proviso applied to the author's
proceedings, in which the Municipal Court had proscribed further appeal.
5.2 In view of the above, the State party considers that the case should be
declared inadmissible for non-exhaustion of domestic remedies. The author
should have appealed to the Constitutional Court of the Czech Republic,
which was established by the Czech Constitution of 16 December 1992. Under
the procedural provisions governing the submission of individual complaints,
effective as of 1 July 1993, an individual could file a complaint within 60
days of having exhausted all other venues of legal protection. Since such
complaints were "neither a regular nor an extraordinary remedy" and the
relevant rules were clearly set out in the Constitution and the Act on the
Constitutional Court, lower courts were not required to provide such
information. Therefore, the author was not deprived of his right to appeal
by not having been informed about the option of submitting a constitutional
complaint. Finally, the Constitutional Court of the CSFR was still in
existence in 1992 and analogous courts were established in both successor
states. Accordingly, the author, who was represented by counsel at the time,
failed to exhaust domestic remedies, as required by article 5(2)(b) of the
Optional Protocol.
5.3 The State party further asks that the author's claim under article 2 of
the Covenant be declared inadmissible ratione materiae. It notes that the
author argued that the Czech Republic had breached article 2(3)(a) of the
Covenant by denying him judicial protection against a violation of his
rights under the UN Convention and article 2(3)(b) by not informing him
about the existence of the Constitutional Court; however, the domestic
proceedings concerned an alleged breach of the UN Convention by his
Polytechna contract. It argues that the Covenant is a "self-standing
international treaty" which does not extend to the observance of other
international instruments; thus, article 2 applies exclusively to the rights
and freedoms guaranteed in the Covenant, not the ones arising from the UN
Convention. Accordingly, the author's assertion that the rejection of his
argument about a violation of the UN Convention also breached his Covenant
rights is invalid.
5.4 Finally, the State party submits that the author's claims under articles
14 and 26 are unsubstantiated, as he failed to demonstrate how an alleged
anti-Slovak attitude in the Czech Republic specifically affected his case,
how the courts had been biased, and how he had been discriminated against as
a foreigner or as a UN staff-member. The State party argues that the
author's Slovak language was not a handicap in dealing with the Czech courts
and dismisses his Slovak citizenship as irrelevant since no discrimination
against Slovaks had been shown. The State party argues that the author never
pleaded bias to challenge the impartiality of any individual judge and that
he had allowed undue time to elapse after the end of the Czech and the ECHR
proceedings before approaching the UN Human Rights Committee. Given the long
lapse of time and the absence of evidence as to procedural fault, the State
party objects to what it describes as an arbitrary challenge of the domestic
courts' decision.
AUTHOR'S COMMENTS ON THE SUBMISSIONS OF THE CZECH REPUBLIC
6.1 Despite that the observations submitted by the Slovak Republic (as
reflected in paragraph 4 above) were transmitted to the author, he did not
present any comment.
6.2 In relation to the observations of the Czech Republic, the author has
submitted his comments on 7 June 2004. He argues that the State party has
factually misrepresented his case: there was nothing "voluntary" about his
payments to Polytechna or his obligation not to disclose the secret
contract; after all, Polytechna itself had admitted in 1990 that its
actions, which were improper and unlawful, were based on directives of the
former regime.
6.3 On his alleged failure to exhaust domestic remedies, the author submits
that national courts "need not adjudicate his case at all because a
violation of international law is involved", and the immunities protected by
the UN Convention are best left to the competence of an international
tribunal. He adds that Czech courts have been selective about the civil
claims in which they ordered compensation for offences of the former regime
and that past injustices against UN personnel whose rights and immunities
had been violated equally warrant a legal remedy.
6.4 The author again claims that the Prague District Court was both
unwilling and unqualified to consider a case concerning a violation of the
UN Convention. He asserts that the publication of the text of the UN
Convention in an official CSFR law gazette referred to by the State party
was no more than that a document published but never physically distributed,
not even to the courts. According to him, the District Court judge, who had
never heard of the UN Convention or seen a UN Laissez-Passer, questioned his
credentials, complained that the pass and the document setting out the
immunities were not in the Czech language, and hence declined to accept a
copy of the Convention. The national courts ruled that his Polytechna
contract had been "voluntary" only because they allegedly did not understand
the provisions of the UN Convention.
6.5 The author asserts that he could not possibly have excused himself from
the Municipal Court hearing of 10 December 1993 since he had never received
a notice while residing abroad; if this was done by his counsel, it was
without his knowledge or approval. The court proceedings allegedly violated
his rights under the Covenant because all higher courts based their
judgments on the District Court's findings, without understanding the State
party's obligations derived from the UN Convention and without allowing him
to be present at hearings.
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 complaint is admissible under the Optional
Protocol to the Covenant.
7.2 The Committee has noted that the author submitted his case to the former
European Commission on Human Rights (case 34194/96) which, on 8 December
1997, declared it inadmissible as having been submitted outside the six
month deadline. In accordance with its jurisprudence, the Committee
considers that the former European Commission did not "examine" the author's
case within the meaning of article 5, paragraph 2(a), and that it is
therefore not precluded from considering the case under this provision. See,
e.g., Nikolov v. Bulgaria (No. 824/1998), inadmissibility decision adopted
on 24 March 2000, para. 8.2; and Luis Bertelli Gálvez v. Spain, (No.
1389/2005), inadmissibility decison adopted on 25 July 2005, para 4.3. [FN2]
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[FN2] See, e.g., Nikolov v. Bulgaria (No. 824/1998), inadmissibility
decision adopted on 24 March 2000, para. 8.2; and Luis Bertelli Gálvez v.
Spain, (No. 1389/2005), inadmissibility decison adopted on 25 July 2005,
para 4.3.
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7.3 As to the claim of a violation of article 26 because of alleged bias and
discriminatory attitude of the Czech Courts, the Committee considers that
the author has failed to substantiate this claim sufficiently, for purposes
of admissibility. Accordingly, this claim is inadmissible under article 2 of
the Optional Protocol.
7.4 On the issue of exhaustion of domestic remedies in relation to the
article 14 claim, the Committee has noted the arguments advanced by the
State party and the explanation given by the author that he had brought his
claim before all instances of the Czech legal system, except to the
Constitutional Court of whose existence he allegedly was unaware, and
exhausted all domestic remedies available to him in the Czech Republic. The
Committee notes that the Constitutional Court existed at the time the
Supreme Court ruled against the author, and was in fact accepting
constitutional complaints. The Committee recalls its jurisprudence See
Jarmila Mazurkiewiczova v. the Czech Republic (No. 724/1996),
Inadmissibility Decision of 26 July 1999; Gerhard Malik v. the Czech
Republic (No. 669/1995), Inadmissibility Decision 21 October 1998. [FN3]
that the fact of being unaware, as a foreigner or otherwise, of the
existence of a constitutional court does not exempt an individual from the
duty to exhaust available domestic remedies, save in cases where the
specific circumstances would have made it impossible to obtain the necessary
information or assistance. Given that the author had legal representation
throughout the Czech legal proceedings and that the Constitutional Court had
jurisdiction over the fair trial issues raised, the Committee considers that
neither exception applies to the author's case. Accordingly, the Committee
considers that the author has not shown why he could not have reasonably
been expected to challenge the Supreme Court's decision in the
Constitutional Court. The Committee thus concludes that as far as the
communication might give rise to a claim under the Covenant, domestic
remedies have not been exhausted for the purposes of 5, paragraph 2(b) of
the Optional Protocol. Ibrahim Mahmoud v. Slovakia (935/2000),
inadmissibility decision of 23 July 2001. [FN4]
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[FN3] See Jarmila Mazurkiewiczova v. the Czech Republic (No. 724/1996),
Inadmissibility Decision of 26 July 1999; Gerhard Malik v. the Czech
Republic (No. 669/1995), Inadmissibility Decision 21 October 1998.
[FN4] Ibrahim Mahmoud v. Slovakia( Case No. 935/2000 ), inadmissibility
decision of 23 July 2001.
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7.5 The Committee notes that the author's claim against the Slovak Republic
is based on the reasoning that, since all former federal property with
pending liabilities was divided at a ratio of 3 to 1 between the Czech
Republic and the Slovak Republic, the latter should be held responsible in
relation to the author's claims before the Committee at the same ratio. As
the Committee has considered the communication inadmissible in relation to
the Czech Republic because of non-exhaustion of domestic remedies, the
author has no separately subsisting claim in relation to the Slovak Republic
and this part of the communication is inadmissible under article 2 of the
Optional Protocol.
8. The Committee therefore decides:
(a) that the communications are inadmissible under article 2 and article 5,
paragraph 2 b), of the Optional Protocol;
(b) that this decision shall be communicated to the author and to the
authorities of the Czech Republic and the Republic of Slovakia.
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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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