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The Committee on
the Elimination of Racial Discrimination , established under article 8 of
the International Convention on the Elimination of All Forms of Racial
Discrimination,
Meeting on 18 March 1991,
Having concluded its consideration of communication No. 2/1989, submitted to
the Committee by G.A.C. Enkelaar on behalf of D.T. Diop under article 14 of
the International Convention on the Elimination of All Forms of Racial
Discrimination,
Having taken into consideration all written information made available to it
on behalf of Mr. Diop and by the State party,
Bearing in mind rule 95 of its rules of procedure requiring it to formulate
its opinion on the communication before it,
Adopts the following:
Opinion
1. The author of the communication (initial submission dated 15 March 1989
and subsequent correspondence) is Demba Talibe DIOP, a Senegalese citizen
born in 1950, currently residing in Monaco. He claims to be the victim of a
violation by France of article 5 of the International Convention on the
Elimination of All Forms of Racial Discrimination. He is represented by
counsel, who has provided a copy of his power of attorney.
The Facts as Submitted
2.1 The author, who is married to a French citizen and has one child, has
been domiciled in Monaco since December 1985. From July 1982 to December
1985, he practised law in Dakar. On 30 January 1986, the author formally
applied for membership in the Bar of Nice, submitting all the documentary
evidence required. On 5 May 1986, the Bar Council of Nice rejected his
application; on 8 May 1986, the competent authorities in Nice delivered his
resident's permit (visa d'�tablissement). On 30 May 1986, Mr. Diop appealed
the decision of the Bar Council to the Court of Appeal of Aix-en-Province.
By judgement of 27 October 1986, the Court of Appeal dismissed the appeal; a
subsequent appeal to the Court of Cassation was dismissed on 4 October 1988.
2.2 The decision of the Bar Council of Nice was based on the fact that Mr.
Diop did not hold the Certificate of Aptitude for the Exercise of the Legal
Profession (CAPA), as required by article 11 of Act No. 71.1130 of 31
December 1971; the Court of Appeal upheld the decision on the same grounds.
The Court of Cassation, however, found that the Court of Appeal had
erroneously interpreted the text on waiver of the CAPA requirement, and that
it had " substituted purely juridical considerations for those that were
justifiably criticized in the first of the grounds of appeal". The Court of
Cassation found that the author met all the statutory requirements for the
exercise of the lawyers' profession except one: the French nationality. The
author points out that the Bar Council of Nice had not referred to his
Senegalese nationality as an obstacle to his exercising the legal profession
in France.
2.3 Article 11, paragraph 1, of Act No. 71.1130 of 31 December 1971
stipulates that "no one may enter the legal profession if he is not French,
except as provided for in international Conventions". The author argues that
his case falls within the scope of application of the Franco-Senegalese
Convention on Establishment (Convention d'� tablissement francos�n�galaise)
of 29 March 1974, article 1 of which prohibits discrimination between French
and Senegalese citizens in the enjoyment of civil liberties to which they
are entitled on the same terms (including the right to work, set forth in
the preamble of the French Constitution of 4 October 1958). In the light of
this provision, according to the author, the Court of Cassation should not
have considered Senegalese citizenship as an impediment to the exercise of
the legal profession in France. He further indicates that the legal
profession does not fall within the occupational categories to which the
restrictions of article 5 of the Convention apply, and no other Convention
provision expressly prohibits the free exercise of the legal profession.
2.4 Article 9 of the Franco-Senegalese Convention on Movement of Persons
(Convention franco-s�n�galaise relative � la circulation des personnes) of
29 March 1974 stipulates that "French nationals wishing to establish
themselves in Senegal and Senagalese nationals wishing to establish
themselves in France for the purpose of engaging in self-employed activities
, or without engaging in any gainful occupation, must ... produce the
required evidence of the means of subsistence available to them" (emphasis
added). The author states that the legal profession is considered in France
to be the epitome of self-employed activity; this is confirmed by article 7,
paragraph 1, of Act No.71.1130.
2.5 Article 23 of the Franco-Senegalese Tax Convention (Convention fiscale
franco�s�n�galaise) of 29 March 1974 provides that " [T]he income that a
person domiciled in a Contracting State draws from a liberal profession or
similar independent activity shall be subject to tax in that State alone,
unless that person is regularly possessed of a fixed base for the exercise
of his profession in the other Contracting State ... For the purposes of the
present article, scientific, artistic, literary, educational and pedagogical
activities, inter alia , as well as the activities of doctors, advocates ,
architects and engineers, are considered liberal professions" (emphasis
added).
2.6 The author further notes that, on 12 February 1990, he requested that
his name be added to the list of legal counsel (conseils juridiques), as
French nationality is no prerequisite for the practice as legal counsel. By
letter dated 24 April 1990, he was informed that his inscription was
imminent. On 26 June 1990, however, he was told that his request could not
be complied with, as he had not demonstrated that he had fulfilled the
requirement of a three-year apprenticeship (stage); the author affirms that
his application had been complete and included, in particular, proof of such
an apprenticeship.
The Complaint
3.1 The author considers that he was denied the right to work on the ground
of national origin, and alleges that the French judicial authorities
violated the principle of equality, enshrined in article 5 of the
International Convention on the Elimination of All Forms of Racial
Discrimination. Allegedly, his right to equal treatment before the tribunals
was violated in two respects: First, whereas he was denied to practice law
in Nice, six lawyers of Senegalese nationality are members of the Paris Bar.
According to the author, his application would have been granted had he
submitted it in Paris; he considers it unacceptable that the State party
should allow such differences within the national territory. Secondly, it is
submitted that the principle of equality and reciprocity at the
international level is also affected by virtue of the fact that on the basis
of the above-mentioned bilateral instruments, all French lawyers have the
right to exercise their profession in Senegal and vice versa.
3.2 Distinctions, exclusions, restrictions or preferences established in the
application of the International Convention on the Elimination of All Forms
of Racial Discrimination must be spelled out in legislative provisions
which, the author claims, do not exist in his case. Such distinctions would
contravene article 34 of the French Constitution. Furthermore, even if there
were pertinent domestic legislation, the bilateral Franco-Senegalese
Conventions of 29 March 1974 prevail over domestic legislation and authorize
French and Senegalese citizens to exercise a liberal profession, including
the legal one, on the territory of the State of which they do not have the
citizenship.
3.3 The author claims that existing Senegalese legislation (Law on the
Exercise of the Legal Profession of 1984) does not prohibit legal practice
by French citizens in Senegal. In this context, he notes that on 8 January
1985, Ms. Genevi�ve Lenoble, a French citizen and member of the Paris Bar,
was admitted to the Bar of Senegal; so was, on 7 January 1987, another
French citizen, Ms. Dominique Picard. On the other hand, the Governing Body
of the Bar Council of Nice required, for Mr. Diop's inscription on the roll,
the Certificate of Aptitude for the Exercise of the Legal Profession (CAPA),
although article 44 of the decree of 9 June 1972, concerning the application
of article 11, paragraph 3, of the Law of 31 December 1971 stipulates that
this Certificate is not necessary for individuals who already are qualified
to practice law in a country with which France concluded an agreement of
judicial cooperation.
3.4 It is submitted that the State party violated the author's right to a
family life because, in the light of the impossibility to practise law in
Nice, the author was forced to temporarily leave his home and take up
residence and practise law in Dakar, so as to be able to provide for his
family.
3.5 The author claims that the decision of the Bar Council of Nice of 5 May
1986, confirmed by the Court of Appeal on 27 October 1986, is irreconcilable
with the judgement of the Court of Cassation of 4 October 1988. The Court of
Cassation did not annul the decision of the Bar Council as contrary to the
law in criticizing its motivation; it simply substituted its own motives in
dismissing the appeal. In the author's opinion, the irreconcilability of the
judicial decisions in the case is equivalent, in law, to a refusal to
adjudicate his request for admission to the bar altogether, thus denying him
an effective remedy before domestic courts. In this way, it is submitted, he
was denied the exercise of a fundamental public freedom, that is, his right
to work in France.
The State Party's Observations
4.1 The State party contends that the author has failed to raise, before the
domestic courts, the issue of discriminatory treatment of which he claims to
have been the victim; accordingly, his communication should be declared
inadmissible because of non-exhaustion of domestic remedies, under article
14, paragraph 7 (a), of the Convention.
4.2 The State party further observes that the communication is inadmissible
as incompatible with the provisions of the Convention in accordance with
article 1, paragraph 2, which stipulates that the "Convention shall not
apply to distinctions, exclusions, restrictions or preferences made by a
State party to this Convention between citizens and non-citizens". In Mr.
Diop's case, the rejection of his application by the Bar Council of Nice was
exclusively based on his nationality, not because he was Senegalese but
because he was not French within the meaning of article 1, paragraph 2. The
State party adds that the ratio legis of article 11, paragraph 1, of Act No.
71.1130 of 31 December 1971 is to protect French lawyers from foreign
competition. In so doing, France exercises her sovereign prerogatives
expressly recognized by article 1, paragraph 2, of the Convention.
4.3 With respect to the contention that the author meets all the
requirements for the exercise of the legal profession in France, the State
party claims that, for the Court of Cassation, the fact that the author was
not of French nationality was in itself sufficient to dismiss the appeal,
thus making it superfluous to consider whether other conditions for the
exercise of the legal profession in France had or had not been met. The
State party endorses the interpretation of article 1 of the
Franco-Senegalese Convention on Establishment by the Court of Cassation,
according to which this provision merely concerns the enjoyment of civil
liberties and cannot be construed as encompassing a right to exercise the
legal profession. For the State party, the author's argument that the right
to work is a civil liberty and that, since the legal profession is gainful
occupation it is a civil liberty, is a mere "sophism" and must be rejected.
4.4 The State party further explains the organization and the functions of
the system of Bar Councils attached to each regional court (Tribunal de
Grande Instance). These Bar Councils are administered by a Governing Board (Conseil
de l'Ordre), enjoy legal personality and operate independently of one
another. It is the duty of the Governing Board of each Bar Council to decide
on applications for admission to the Bar; decisions on such matters by the
Board may only be appealed by the applicant and the Public Prosecutor (Procureur
G�n�ral) of the competent Court of Appeal, within two months of the
notification of the decision. The State party adds that each Governing Body
decides independently on applications for admission to the Bar and may, in
the process, err in its interpretation of applicable legal provisions.
4.5 Inasmuch as the admission of six Senegalese lawyers to the Bar of Paris
is concerned, the State party submits that the Governing Body of the Bar of
Paris erroneously interpreted applicable regulations by admitting these
Senegalese citizens. The State party affirms that this situation does not
create any rights for the author, nor a legal basis on which the inscription
of every Senegalese lawyer on the Bar Roll could be justified, as any such
act would violate the applicable rules and regulations. Furthermore, these
lawyers were admitted prior to the Court of Cassation's judgement in the
author's case; if this jurisprudence were to be invoked before the ordinary
tribunals, it is likely, according to the State party, that these lawyers
would have to be stripped of membership.
4.6 With respect to the treatment of French lawyers by the Senegalese
judicial authorities, the State party explains that article 16 of a
Senegalese Law on the Exercise of the Legal Profession of 1984 stipulates
that no one may be admitted to the Bar in Senegal if he is not Senegalese or
the citizen of a State that grants reciprocity. In application of this
provision, the Bar Council of Dakar rejected, on 14 March 1988, the
application of a French lawyer admitted to the Bar of Senegal on a
probationary basis in 1984. The decision of the Bar Council of Dakar was
based on the fact that the applicant was not Senegalese and that no
international Convention or other applicable provision provided for
reciprocity in the matter. The Court of Appeal of Dakar confirmed this
decision by judgement of 15 April 1989. During the appeal proceedings, it
was submitted on behalf of the Bar Council that the Franco-Senegalese
Convention on Establishment of 1974 did not provide for reciprocity with
respect to liberal professions. In his pleadings, the Public Prosecutor, who
had himself participated in the elaboration of the 1974 Convention,
contended that the omission of liberal professions had been deliberate; the
State party notes that one of the Convention 's aims purportedly was to
forestall the admission of French lawyers to the Bar of Senegal. The State
party concludes that Mr. Diop's situation in France is similar to that of
French lawyers wishing to practice in Senegal and that, accordingly, the
principle of equality of treatment and of reciprocity invoked by him may be
applied to his disadvantage.
Issues and Proceedings Before the Committee
5.1 Before considering any claims contained in a communication, the
Committee on the Elimination of Racial Discrimination must, in accordance
with rule 91 of its rules of procedure, determine whether or not it is
admissible under the International Convention on the Elimination of All
Forms of Racial Discrimination.
5.2 The Committee took note of the State party's observation that the
communication was inadmissible on the ground of non-exhaustion of domestic
remedies, since the author had not invoked discriminatory treatment based on
national origin before the domestic courts. The committee noted, however,
that on the basis of the information before it, the issue of the author's
national origin was first addressed by the court of last instance, the Court
of Cassation, in its decision of 4 October 1988. Furthermore, the State
party had not indicated the availability of any other remedies to the
author. In the circumstances, the Committee concluded that the requirements
of article 14, paragraph 7 (a), of the Convention and of rule 91 (e) of the
Committee' ;s rules of procedure, had been met.
5.3 In respect of the State party's observation "that the communication
should be declared inadmissible as not falling within the scope of the
Convention in the light of article 1, paragraph 2", the Committee observed
that the question of the application of this article was one of substance
which should be examined at a later stage, in conformity with rule 95 of the
rules of procedure. The Committee further observed that rule 91 (c) of the
rules of procedure enjoined it to ascertain whether any communication is
compatible with the provisions of the Convention, and that "compatibility"
within the meaning of rule 91 (c) must be understood in procedural, not
substantive, terms. In the Committee's opinion, the communication did not
suffer from procedural incompatibility.
5.4 On 22 August 1990, therefore, the Committee on the Elimination of Racial
Discrimination declared the communication admissible.
6.1 The Committee on the Elimination of Racial Discrimination has examined
the present communication in the light of all the information made available
by the parties, as provided for in rule 95, paragraph 1, of its rules of
procedure.
6.2 The Committee has noted the author's claims (a) that he was
discriminated against on one of the grounds defined in article 1, paragraph
1, of the Convention on the Elimination of All Forms of Racial
Discrimination, (b) that the rejection of his application for admission to
the Bar of Nice constituted a violation of his right to work (article 5 (e)
of the Convention) and his right to a family life, and (c) that the
rejection of his application violated the Franco-Senegalese Convention on
Movement of Persons. After careful examination of the material placed before
it, the Committee bases its decision on the following considerations.
6.3 In respect of the alleged violations of the Franco-Senegalese Convention
on Freedom of Movement of 29 March 1974, the Committee observes that it is
not within its mandate to interpret or monitor the application of bilateral
conventions concluded between States parties to the Convention, unless it
can be ascertained that the application of these conventions result in
manifestly discriminatory or arbitrary treatment of individuals under the
jurisdiction of States parties to the International Convention on the
Elimination of All Forms of Racial Discrimination, which have made the
declaration under article 14. The Committee has no evidence that the
application or non-application of the Franco-Senegalese Conventions of March
1974 has resulted in manifest discrimination.
6.4 As to the alleged violation of article 5 (e) of the Convention and of
the right to a family life, the Committee notes that the rights protected by
article 5 (e) are of programmatic character, subject to progressive
implementation. It is not within the Committee's mandate to see to it that
these rights are established; rather, it is the Committee's task to monitor
the implementation of these rights, once they have been granted on equal
terms. Insofar as the author's complaint is based on article 5 (e) of the
Convention, the Committee considers it to be ill-founded.
6.5 Finally, inasmuch as the allegation of racial discrimination within the
meaning of article 1, paragraph 1, of the Convention is concerned, the
Committee notes that article 11, paragraph 1, of the French Act No. 71.1130
of 31 December 1971 stipulates that no one may accede to the legal
profession if he is not French, except as provided for in international
conventions.
6.6 This provision operates as a preference or distinction between citizens
and non-citizens within the meaning of article 1, paragraph 2, of the
Convention: the refusal to admit Mr. Diop to the Bar was based on the fact
that he was not of French nationality, not on any of the grounds enumerated
in article 1, paragraph 1. The author's allegation relates to a situation in
which the right to practice law exists only for French nationals, not to a
situation in which this right has been granted in principle and may be
generally invoked; accordingly, the Committee concludes that article 1,
paragraph 1, has not been violated.
7. The Committee on the Elimination of Racial Discrimination, acting under
article 14, paragraph 7 (a), of the International Convention on the
Elimination of All Forms of Racial Discrimination, is of the opinion that
the facts as submitted do not disclose a violation of any of the provisions
of the Convention.
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