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1.1 The author of the
communication is Loubna El Ghar, a Libyan citizen born on 2 September 1981
in Casablanca and residing in Morocco. She claims to be a victim of
violations by the Socialist People's Libyan Arab Jamahiriya. She does not
refer to any particular provisions of the Covenant, but her allegations
would seem to give rise to questions under article 12 thereof. She is not
represented by counsel.
1.2 The Covenant and its Optional Protocol entered into force for the
Socialist People's Libyan Arab Jamahiriya on 23 March 1976 and 16 August
1989 respectively.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author, of Libyan nationality, has lived all her life in Morocco
with her divorced mother and holds a residence permit for that country. As a
student of French law at the Hassan II University faculty of law in
Casablanca, she wished to continue her studies in France and to specialize
in international law. To that end, she has been applying to the Libyan
Consulate in Morocco for a passport since 1998.
2.2 The author claims that all her applications have been denied, without
any lawful or legitimate grounds. She notes that although she is an adult,
she attached to her application form an authorization from her father, who
is resident in the Libyan Arab Jamahiriya, that was certified by the Libyan
Ministry of Foreign Affairs in order to obtain any official document
required. She adds that in September 2002 the Libyan consul stated, without
giving any details, that on the basis of the pertinent regulations he could
not issue her a passport, but could only provide her with a temporary travel
document allowing her to travel to the Libyan Arab Jamahiriya.
2.3 The author also contacted the French diplomatic mission in Morocco to
ascertain whether it would be possible to obtain a laissez-passer for
France, a request which the French authorities were unable to comply with.
2.4 Since she had no passport, the author was unable to enrol in the
University of Montpellier I in France.
THE COMPLAINT
3. The author claims that the refusal by the Libyan Consulate in Casablanca
to issue her with a passport prevents her from travelling and studying and
constitutes a violation of the Covenant.
STATE PARTY'S OBSERVATIONS
4.1 In its observations of 15 October 2003, the State party provides the
following information. Having been informed of the author's communication,
the Passport and Nationality Department contacted the Brotherhood Bureau in
Rabat, which indicated that as at 1 September 1999 it had not received any
official application for a passport from the author.
4.2 On 6 September 2002, the Passport and Nationality Department asked the
Consulate-General to inform it whether the author had submitted an
application for a passport, given that it had no record of any information
concerning Ms. El Ghar.
4.3 On 13 October 2002, the Passport and Nationality Department sent a
telegram to the Consulate-General in Casablanca requesting that the author's
application should be forwarded, in the event it had been received, together
with all the documents required for the issuing of a passport.
4.4 The State party alleges that it is clear from the foregoing that the
Libyan authorities concerned are giving the matter due attention and that
the delay is caused by the fact that the author did not go to the
Brotherhood Bureau in Morocco at the proper time. The State party points out
that there is nothing in the legislation in force to prevent Libyan
nationals from obtaining travel documents when they meet the necessary
requirements and submit the documents requested.
4.5 Lastly, the State party explains that instructions were sent on 1 July
2003 to the Brotherhood Bureau in Rabat to issue a passport to Ms. Loubna El
Ghar. Moreover, the author was contacted at home by telephone and told that
she could go to the Libyan Consulate in Casablanca to collect her passport.
COMMENTS OF THE AUTHOR ON THE STATE PARTY'S OBSERVATIONS
5.1 In her comments of 24 November 2003 concerning the official date of the
submission of her passport application, the author points out that she had
initiated procedures as early as 1998, when her mother went to Libya to seek
her father's permission to obtain a passport (see para. 2.2). She adds that
the actual date of her official application for a passport was 25 February
1999.
5.2 With regard to the Passport and Nationality Department and the date of 6
September 2002 mentioned by the State party (see para. 4.2), the author
recalls that on 18 September 2002, during one of her visits to the Libyan
Consulate-General to find out the status of her application, the Libyan
officials had indicated that they were unable to give her a passport but
would give her a laissez-passer for Libya. The laissez-passer, which was
issued that very day and has been submitted by the author, clearly states
that "in view of the fact that she is a native of Morocco and has not
obtained a passport, this travel document is issued to enable her to return
to national territory".
5.3 The author confirms that she received a telephone call on 1 August 2003
from the Libyan Ambassador to the United Nations Office at Geneva informing
her that she could go to the Libyan Consulate-General in Casablanca to
collect her passport, a communique to that effect having been sent by the
Passport Department. On the same day the author went to the Consulate with
all the documents likely to be needed for the collection of her passport.
However, the Libyan officials denied having received the above-mentioned
communique. Upon her return home, the author called the Libyan Ambassador to
the United Nations in Geneva to tell her what had happened, and two days
later returned to the Consulate. The author explains that the consul himself
told her that there was no need for her to go there each time, and that she
would be contacted as soon as the communique in question was received. Since
then the author has been unable to obtain a passport and thus go abroad to
continue her studies.
5.4 The author adds that it is impossible for her to request legal aid with
a view to bringing court proceedings against the Libyan authorities from
Morocco, and that she cannot lodge an appeal alleging an abuse of authority.
CONSIDERATION OF 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 As it is obliged to do so pursuant to article 5, paragraph 2 (a), of the
Optional Protocol, the Committee ascertained that the same matter is not
being examined under another procedure of international investigation or
settlement.
6.3 Having taken note of the author's arguments concerning the exhaustion of
domestic remedies, namely the obstacles standing in the way of any request
for legal aid and of an appeal against the decision of the Libyan
authorities from Morocco, and given the absence of any relevant objection to
the admissibility of the communication by the State party, the Committee
considers that the provisions of article 5, paragraph 2 (b), of the Optional
Protocol do not preclude it from considering the communication.
6.4 The Committee considers that the author's claim may give rise to issues
under article 12, paragraph 2, of the Covenant and therefore proceeds to
consider them on the merits, in accordance with article 5, paragraph 2, of
the Optional Protocol.
CONSIDERATION OF THE MERITS
7.1 The Human Rights Committee has considered this communication in the
light of all the written information made available to it by the parties, in
accordance with article 5, paragraph 1, of the Optional Protocol.
7.2 The Committee notes that to date the author has been unable to obtain a
passport from the Libyan consular authorities even though, according to the
authorities' own statements, her official application dates back at least to
1 September 1999. Moreover, it is clear that initially, on 18 September
2002, the Libyan consul had indicated to the author that it was not possible
to issue her a passport but that she could be given a laissez-passer for
Libya, by virtue of a regulation that was explained neither orally nor on
the laissez-passer itself. The passport application submitted to the Libyan
Consulate was thus rejected without any explanation of the grounds for the
decision, the only comment being that since the author "is a native of
Morocco and has not obtained a passport, this travel document
[laissez-passer] is issued to enable her to return to national territory".
The Committee considers that this laissez-passer cannot be considered a
satisfactory substitute for a valid Libyan passport that would enable the
author to travel abroad.
7.3 The Committee notes that subsequently, on 1 July 2003, the Passport
Department sent a communique to the Libyan consular authorities in Morocco
with a view to granting the author a passport; this information was
certified by the State party, which produced a copy of the document. The
State party alleges that the author was contacted personally by telephone at
home and told to collect her passport from the Libyan Consulate. However, it
appears that thus far, despite the author's two visits to the Libyan
Consulate, no passport has been issued to her, through no fault of her own.
The Committee recalls that a passport provides a national with the means "to
leave any country, including his own", as stipulated in article 12,
paragraph 2, of the Covenant, and that owing to the very nature of the right
in question, in the case of a national residing abroad, article 12,
paragraph 2, of the Covenant imposes obligations both on the individual's
State of residence and on the State of nationality, and that article 12,
paragraph 1, of the Covenant cannot be interpreted as limiting Libya's
obligations under article 12, paragraph 2, to nationals living in its
territory. The right recognized by article 12, paragraph 2, may, by virtue
of paragraph 3 of that article, be subject to restrictions "which are
provided by law [and] are necessary to protect national security, public
order (ordre public), public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in the present
Covenant". Thus there are circumstances in which a State may, if the law so
provides, refuse to issue a passport to one of its nationals. In the present
case, however, the State party has not put forward any such argument in the
information it has submitted to the Committee but has actually assured the
Committee that it issued instructions to ensure that the author's passport
application was successful, a statement that was not in fact followed up.
8. 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 before it disclose a violation of
article 12, paragraph 2, of the Covenant insofar as the author was denied a
passport without any valid justification and subjected to an unreasonable
delay, and as a result was prevented from travelling abroad to continue her
studies.
9. In accordance with article 2, paragraph 3, of the Covenant, the State
party is under an obligation to ensure that the author has an effective
remedy, including compensation. The Committee urges the State party to issue
the author with a passport without further delay. The State party is also
under an obligation to take effective measures to ensure that similar
violations do not recur in future.
10. The Committee recalls that by becoming a State party to the Optional
Protocol, the Socialist People's Libyan Arab Jamahiriya has recognized the
competence of the Committee to determine whether there has been a violation
of the Covenant and that, pursuant to article 2 of the Covenant, the State
party has undertaken to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the Covenant and to
ensure an effective and enforceable remedy when a violation has been
disclosed. The Committee therefore wishes to receive from the State party,
within 90 days following the submission of these Views, information about
the measures taken to give effect to them. The State party is also requested
to publish the Committee's Views.
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[Done in English, French and Spanish, the French 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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