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1. The author of the
communication is William Eduardo Delgado P�ez, a Colombian national who
resided in Bogota, Colombia, at the time of submission. In Hay 1986 he left
the country and sought political asylum in France, where he was granted
refugee status.
BACKGROUND
2.1 In March 1983, the author was appointed by the Ministry of Education as
a teacher of religion and ethics at a secondary school in Leticia, Colombia.
He was elected vice-president of the teachers' union. As an advocate of
"liberation theology", his social views differed from those of the then
Apostolic Prefect of Leticia.
2.2 In October 1983, the Apostolic Prefect sent a letter to the Education
Commission withdrawing the support that the Church had given to Mr. Delgado.
On 10 December 1983, the Apostolic Prefect wrote to the Police Inspector
accusing Kr. Delgado of having stolen money from a student.
2.3 On 25 August 1984, the Circuit Court dismissed all charges against the
author, having established that the accusation of theft was unfounded.
2.4 On 5 February 1984, Mr. Delgado was informed that he would no longer
teach religion. Instead, a course in manual labour and handicrafts (manualidades
y artesanias), for which he had no training or experience, was assigned to
him. In order not to lose employment altogether, he endeavoured to teach
these subjects.
2.5 On 29 Hay 1984, the author requested from the Ministry of Education two
weeks' leave for the period from 26 June to 10 July 1984 to attend an
advanced course at Bogota to further his teaching qualifications. He and
other teachers were admitted to the course on 5 July 1984, but Mr. Delgado
was subsequently denied leave. He considered this to be unjustified
discrimination and decided to attend the course, also taking into account
that, as a result of a national strike (pare national), the teachers were,
by decree of the Minis try of Education, on enforced vacation (vacaciones
forzosas).
2.6 By administrative decisions of the Ministry of Education, dated 12 July,
and 11 and 25 September 1984, he was suspended from, his post for 60 days,
and a six-months 'salary freeze was imposed on him on grounds of having
abandoned his post without permission from the Principal. On 27 November
1984, the author requested the annulment of these administrative decisions (recurso
de - reposition), arguing that he had not abandoned his post, but that the
law allowed teachers to take such special courses and that he had been duly
admitted to the course with the approval of the Ministry of Education. The
action was dismissed. He then submitted an appeal, and on 3 December 1985,
by decision of the Ministry of Education, the prior decisions of suspension
and
salary freeze were annulled.
2.7 Convinced that he was a victim of discrimination by the ecclesiastical
and educational authorities of Leticie, the author took the following steps:
(a) On 17 May 1985, he submitted a complaint to the Office of the Regional
Attorney on grounds of alleged irregularities committed by the Fondo
Educativo Regiona1 (Regiona1 Education Fund) in his case;
(b) On 18 May 1985, he submitted a complaint to the penal court of Leticia,
accusing the Apostolic Prefect of slander and abuse (injuria y calumnia);
(c) On 28 May, 4 June and 3 October 1985, he wrote to the Off ice of the
Attorney General of the Republic, expressing concern about the denial of
justice at the regional level, attributable to the alleged influence of the
Apostolic Prefect;
(d) On 13 May 1986, he again wrote to the Attorney General describing the
pressures he had been and was being subjected to in order to force him to
resign. He indicated, inter w, that on 23 November 1983 the Apostolic
Prefect had written to the Secretary of Education asking the latter in
specific and clear terms: "to bring pressure on me to resign from. my post,
and this in fact happened, for, on 2 December 1983, I was summoned to the
office of the Secretary of Education and orally informed that the Monsignor
was putting pressure on him and that. I therefore had to resign f ram my
post as a teacher, failing which criminal proceedings would be instituted
against me. I promptly informed the president of the teachers' union and the
teachers 'representative on the Promotion Board of such an outrage and they
immediately went to the office of the Secretary of Education, who repeated
that it had nothing to do with him, but that he had been acting at the
Monsignor's insistence. I of course refused to resign, but the threat was
carried out and criminal proceedings were instituted against me. "
2.8 While at his residence in Bogota, the author received anonymous phone
calls threatening him with death if he returned to Leticia and did not
withdraw his complaint against the Apostolic Prefect and the education
authorities. He also received death threats at the teachers' residence at
Leticia, which he reported to the military authorities at Leticia, the
teachers' union, the Ministry of Education and the President of Colombia.
2.9 On 2 May 1986, a work colleague, Ms. Rubiela Valencia, was shot to death
outside the teachers' residence in Leticia by unknown killers On 7 May 1986,
the author was himself attacked in the city of Bogota, and, fearing for his
own life, left the country and obtained political asylum in France in June
1986.
2.10 By letter dated 10 June 1986, he tendered to the Ministry of Education
at Leticia his resignation from his post, justifying his decision on account
of the pressures and threats he had received. His resignation was rejected
"in those terms". He resubmitted his resignation on 27 June 1986, without
adducing any reasons, and this time it was accepted, effective 14 July 1986.
THE COMPLAINT
3.l The author claims to be a victim of violations by Colombia of articles
14, 18, 19, 25 and 26 in conjunction with article 2 of the International
Covenant on Civil end Political Rights.
3.2 He maintains that he was subjected to persecution -ideologically,
politically and in his work -by the Colombian authorities, because of his
"progressive ideas in theological and social matters", that his honour and
reputation were attacked by the authorities who falsely accused him of
theft, whereas the reason behind the charge was to intimidate him because of
his religious and social opinions. Moreover, his professional qualifications
were unjustly put into question, although he had studied and taken a degree
at the University of Santo Tombs and had taught several years at a high
school in Bogota.
3.3 Furthermore, he claims to have been denied the freedom to teach, having
been suspended from his teaching post in breach of the decree concerning
appointments and of the teachers' statute (decrees No. 2277 of 1979 and No.
2372 of 1981). When he applied for a transfer, his request was ignored by
the administration.
3.4 More importantly, he charges that manifold threats were used to force
him to resign: first, being threatened with prosecution; then, when he
refused to resign, preliminary proceedings on the theft charges were
initiated without prior notice, thereby violating the right of defence; he
was not heard by the examining magistrate during the preliminary
investigation and was not assisted by a court-appointed lawyer; furthermore,
the authorities sent copies of the unfounded allegations, even before they
were investigated, to all offices in the Ministry of Education and to all 1
the schools; as a result, he was subjected to public scorn and essentially
convicted before the charges had been investigated . Furthermore, copies of
the allegations were included in his personal file. This caused him harm in
economic, moral and social terms. Nevertheless, he was acquitted of all
charges.
3.5 Additionally, he was suspended from practicing his profession for 60
days, for alleged dereliction of duty, and from the National Teachers'
Register for six months ; every possible kind of off ence was invoked so
that the outcome of the administrative inquiries would not only be contrary
to the truth, but would also cause prejudice by leading to criminal
proceedings and in this manner implicate his colleagues in the teachers'
union who supported him. The case was again dismissed or jail points. He
then addressed complaints, without success, to the authorities concerning
alleged offences, perpetrated by others, of falsifying public documents,
forging his signature, making a false accusation to the authorities and
breaching administrative confidentiality.
3.6 He claims that he "found it absolutely essential to leave the country,
as there are no guarantees for the protection of the most basic human
rights, such as equality, justice and life, which the Colombian Government
has a constitutional and moral obligation to protect". Allegedly, the
threats on his life and or, the lives of other teachers have not been duly
investigated by the State patty.
THE STATE PARTY'S OBSERVATIONS
4.1 The State party argues, although only after the communication had been
declared admissible, that domestic remedies have not been exhausted, since
various actions are still pending.
4.2 It further denies that Mr. Delgado's rights under the Covenant have been
violated. In particular, it indicates that Mr. Degado, was cleared of all
charges against him and contends that his complaints against various
Colombian authorities were duly investigated: "William, Eduardo Delgado P�ez
has not been subjected to restrictions on his freedom of thought,
conscience, religion, speech or expression, as is demonstrated by the steps
he was able to take under the criminal law and in the administrative sphere
throughout this investigation."
4.3 In the disciplinary action initiated by Mr. Delgado against various
officials, the court of first instance of Leticia acquitted three persons
and sanctioned two others with a suspension of 15 days without remuneration.
Appeals are pending.
4.4 The criminal action against the Apostolic Prefect on grounds of slander
and abuse was referred to the Apostolic Nuncius pursuant to the Concordat
between the Republic of Colombia and the Vatican. The investigation was
terminated upon the death of the Apostolic Prefect in 1990.
4.5 With respect to Mr. Delgado's qualifications as a teacher, the State
party forwards a copy of a statement from the Ministry of Education setting
forth the general requirements for teachers, without, however, specifically
addressing the application of these requirements in the author's case.
4.6 As to the legal basis for the appointment of teachers of religion in
Colombia, the State party states that: "Applicants for the post of teacher
of religion in Colombia must present a certificate of suitability in the
area of religious and moral education, along the lines laid down in. article
12 of Act 20 of 1974, which reads: In pursuance of the right of Catholic
families to arrange for their children to receive religious education in
keeping with their faith, educational plans at the primary and secondary
level shall include religious education and training in official
establishments in accordance with the teaching of the church. In order to
put this right into practice, it falls to the competent church authority to
supply curricula, approve religious education texts and verify how such
education is provided. The civil authorities shall take into consideration
certificates of suitability for teaching religion issued by the competent
church authority."
The State party submits the text of the agreement of 31 July 1986 between
the Ministry of Education and the Colombian Episcopal Conference, without ,
however, showing the relevance of this Concordat to the case of Mr. Delgado,
whose resignation had already been accepted on 9 July 1986.
4.7 The State party does net address the author's allegations concerning
death threats against himself and other teachers, the alleged assault on his
person on 7 May 1986, nor the general situation of persecuti on against t
named journalists and intellectuals, amounting to a Violation of the right
of security of the person.
THE ISSUES AND PROCEEDING, BEFORE THE COMMITTEE
5.1 When considering the communication at its thirty--second session, the
Commit tee concluded, on the basis of the information before it, that the
conditions for declaring the communication admissible had been met. In
particular, the Committee noted that while the State party had claimed that
there was no violation of the Covenant, it had not argued that the
communication was inadmissible.
5.2 On 4 April 1988, the Committee declared the communication generally
admissible, without specifying articles of the Covenant. The Committee,
however, requested the State party to address the issues raised in one of
the author's submissions, which focused on the right of security of the
person.
5.3 The Committee has considered the present communication in the light of
all the information provided by the parties. It has taken note of the State
party's contention that domestic remedies have not been exhausted and that
actions are still pending. The Committee finds , however, that, in the
particular circumstances of the author's case, the application of domestic
remedies has been unreasonably prolonged and, for purposes of article 5,
paragraph 2 (b)of the Optional Protocol, they need therefore not be further
pursued.
5.4 Although the author has not specifically invoked article 9 of the
Covenant, the Committee notes that his submission of 14 September 3987,
which was transmitted to the State party prior to the adoption of the
Committee's decision on admissibility, raised important questions under this
article. The Committee recalls that upon declaring the communication
admissible, it requested the State party to address these issues. The State
party has not done so.
5.5 The first sentence of article 9 does not stand as a separate paragraph.
Its location as a part of paragraph one could lead to the view that the
right to security arises only in the context of arrest and detention. The
travaux preparatoires indicate that the discussions of the first sentence
did indeed focus on matters dealt with in the other provisions of article 9.
The Universal Declaration of Human Rights, in article 3, refers to the right
to life, the right to liberty and the right to security of the person. These
elements have been dealt with in separate clauses in the Covenant. Al though
in the Covenant the only reference to the right of security of person is to
be found in article 9, there is no evidence that it was intended to narrow
the concept of the right to security only to situations of formal
deprivation of liberty. At the same time, States parties have undertaken to
guarantee the rights enshrined in the Covenant. It cannot be the case that,
as a matter of law, States can ignore known threats to the life of persons
under their jurisdiction, just because that he or she is not arrested or
otherwise detained. States parties are under an obligation to take
reasonable and appropriate measures to protect them.. An interpretation of
article 9 which would allow a State party to ignore threats to the personal
security of non-detained persons within its jurisdiction would render
totally ineffective the guarantees of the Covenant.
5.6 There remains the question of the application of this finding to the
facts of the case under consideration. There appears to have been an
objective need for Mr. Delgado to be provided by the State with protective
measures to guarantee his security, given the threats made against him,
including the attack on his person, and the murder of a close colleague. It
is arguable that, in seeking to secure this protection, Mr. Delgado failed
to address the competent authorities, making his complaints to the military
authorities in Leticia, the teachers' union, the Ministry of Education and
the President of Colombia, rather than, to the general prosecutor or the
judiciary. It is unclear to the Committee whether these matters were
reported to the police. It does not know either with certainty whether any
measures were taken by the Government. However, the Committee cannot but
note that the author claims that there was no response to his request to
have these threats investigated and to receive protection, and that the
State party has not informed the Committee otherwise. Indeed, the State
party has failed to comply with the request by the Committee to provide it
with information on any of the issues relevant to article 9 of the Covenant.
Whereas the Committee is reluctant to make a finding of a violation in the
absence of compelling evidence as to the facts, it is for the State party to
inform the Committee if alleged facts are incorrect, or if they would not,
in any event, indicate a violation of the Covenant. The Committee has, in
its past jurisprudence, made clear that circumstances may cause it to assume
facts in the author's favour if the State party fails to reply or to address
them. The pertinent factors in this case are that Mr. Delgado had been
engaged in a protracted confrontation with the authorities over his teaching
and his employment. Criminal charges, later determined unfounded, had been
brought against him and he had been suspended, with salary frozen, in the
circumstances indicated in paragraphs 2.2 to 2.6 above. Further, he was
known to have instituted a variety of complaints against the ecclesiastical
and school astical authorities in Leticia (see paragraph 2.7 above). Coupled
with these factors were threats to his life. If the State party neither
denies the threats nor cooperates with the Committee to explain whether the
relevant authorities were aware of them, and, if so, what was done about
them, the Committee must necessarily treat as correct allegations that the
threats were known and that nothing was done. Accordingly, while fully
understanding the situation in Colombia, the Committee finds that the State
party has not taken, or has been unable to take, appropriate measures to
ensure Mr. Delgado's right to security of his person under article 9,
paragraph 1.
5.7 With respect to article 18, the Committee is of the view that the
author's right to profess or to manifest his religion has not been violated.
The Committee finds, moreover, that Colombia may, without violating this
provision of the Covenant, allow the Church authorities to decide who may
teach religion and in what manner it should be taught.
5.8 Article 19 protects, inter alia, the right of freedom of expression and
of opinion. This will usually cover the freedom of teachers to teach their
subjects in accordance with their own views, without interference. However,
in the particular circumstances of the case, the special relationship
between Church and State in Colombia, exemplified by the applicable
Concordat, the Committee finds that the requirement, by the Church, that
religion be taught in a certain way does not violate article 19.
5.9 Although the requirement, by the Church authorities, that Mr. Delgado
teach the Catholic religion in its traditional form does not violate article
19, the author claims that he continued to be harassed while teaching the
non-religious subjects to which he had been assigned. The Committee must for
the reasons elaborated in paragraph 5.6 above, accept the facts as presented
by the author. This constant harassment and the threats against his person
(in respect of which the State party failed to provide protection) made the
author's continuation in public service teaching impossible. Accordingly,
the Committee finds a violation of article 25, paragraph (c), of the
Covenant.
5.10 Article 26 requires that all persons are entitled, without
discrimination, to be equal before the law and to receive equal protection
by the law. The Committee finds that neither the terms of Colombian law nor
the application of the law by the courts or other authorities discriminated
against Mr. Delgado, and finds that there was no violation of article 26.
6. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the facts of the communication disclose
violations of articles 9, paragraph 1, and 25, paragraph(c), of the
Covenant.
7.1 In accordance with the provisions of article 2 of the Covenant, the
State party is under an obligation to take effective measures to remedy the
violations suffered by the author including the granting of appropriate
compensation , and to ensure that similar violations do not occur in the
future.
7.2 The Committee would wish to receive information on any relevant measures
taken by the State party in respect of the Committee's views. |
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