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1. The author is Mr. Guido
Jacobs, a Belgian citizen, born on 21 October 1948 at Maaseik (Belgium). He
claims to be a victim of violations by Belgium of articles 2, 3, 14,
paragraph 1, 19, paragraph 1, 25 and 26 of the International Covenant on
Civil and Political Rights. He is not represented by counsel. (The Covenant
entered into force for Belgium on 21 July 1983 and the Optional Protocol to
the Covenant on 17 August 1994.)
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 On 2 February 1999 the Moniteur belge published the Act of 22 December
1998 amending certain provisions of part two of the Judicial Code concerning
the High Council of Justice, the nomination and appointment of magistrates
and the introduction of an evaluation system.
2.2 As amended, article 259 bis-1, paragraph 1, of the Judicial Code
provides that the High Council of Justice [FN1] shall comprise 44 members of
Belgian nationality, divided into one 22-member Dutch-speaking college and
one 22-member French-speaking college. Each college comprises 11 justices
and 11 non-justices.
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[FN1] The conflicts described in article 141;
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2.3 Article 259 bis-1, paragraph 3, stipulates:
"The group of non-justices in each college shall have no fewer than four
members of each sex and shall be composed of no fewer than:
1. Four lawyers with at least 10 years' professional experience at the bar;
2. Three teachers from universities or colleges in the Flemish or French
communities with at least 10 years' professional experience relevant to the
High Council's work;
3. Four members holding at least a diploma from a college in the Flemish or
French community and with at least 10 years' professional experience in
legal, economic, administrative, social or scientific affairs relevant to
the High Council's work [...]."
2.4 Article 259 bis-2, paragraph 2, also stipulates:
"Non-justices shall be appointed by the Senate by a two-thirds majority of
those voting. Without prejudice to the right to submit individual
applications, candidates may be put forward by each of the bar associations
and each of the universities and colleges in the French community and the
Flemish community. In each college, at least five members shall be appointed
from among the candidates proposed."
2.5 Lastly, in accordance with paragraph 4 of the same article, "a list of
alternate members of the High Council shall be drawn up for the duration of
the term [...]. For non-justices this list shall be drawn up by the Senate
[...] and shall comprise the candidates who are not appointed."
2.6 Article 259 bis-2, paragraph 5, stipulates that nominations should be
sent to the Chairman of the Senate, by registered letter posted within a
strict deadline of three months following the call for candidates.
2.7 On 25 June 1999, the Senate published in the Moniteur belge a call for
candidates for a non-justice seat on the High Council of Justice.
2.8 On 16 September 1999, Mr. G. Jacobs, first legal assistant in the
Council of State, submitted his application within the legal three-month
period.
2.9 On 14 October 1999, the Senate published a second call.
2.10 On 29 December 1999, the Senate elected the members of the High Council
of Justice. The author was not elected but was included in the list of
alternates for non-justices as provided in article 295 bis-2, paragraph 4.
THE COMPLAINT
3.1 The author alleges violations of the rule of law, namely the Act of 22
December 1998, and of the Senate's application of that rule.
3.2 With regard to the rule of law, the author considers that article 259
bis-1, paragraph 3, violates articles 2, 3, 25 and 26 of the Covenant on the
following grounds.
3.3 The author claims that the introduction of a gender requirement, namely
that four non-justice seats in each college be reserved for women and four
for men, makes it impossible to carry out the required comparison of the
qualifications of candidates for the High Council of Justice. In his view,
such a condition means that candidates with better qualifications may be
rejected in favour of others whose only merit is that they meet the gender
requirement. The author claims that, in his case, the gender requirement
works against male candidates but it could in the future be disadvantageous
to women, and that this is discriminatory.
3.4 The author also maintains that it is strictly forbidden to apply a
gender requirement to appointments by third parties (employers) under the
Act of 7 May 1999 on the equal treatment of men and women with regard to
working conditions, access to employment and promotion opportunities, access
to an independent profession and supplementary social security schemes. The
author maintains that the High Council of Justice comes under this Act, and
that the application of the gender requirement in this regard is thus
discriminatory.
3.5 In the author's view, on the basis of an analysis by the legal
department of the Council of State, [FN2] application of the gender
requirement to the entire group of non-justices could equally lead to
discrimination among the candidates in the three categories within that
group.
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[FN2] The violation through a law, a decree or a rule as described in
article 134, of articles 10 (principle of equality), 11 (principle of non
discrimination) or 24;
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3.6 As to the application of the rule of law, the author considers that the
Flemish non-justices were appointed without regard for established
procedure, with no interviews or any attempt at profiling the candidates,
and without comparing their qualifications, in violation of articles 2, 19
and 25 of the Covenant.
3.7 The author claims that the key criterion for these appointments was
membership of a political party, that is, nepotism: non-justice seats were
allocated to the sister of a senator, a senator's assistant and a minister's
personal assistant. The candidates' required records of 10 or more years of
professional experience relevant to the High Council's work were neither
considered nor compared. He adds that one senator resigned in protest
against political nepotism and informed the press of his views, and that a
candidate sent a letter to the senators demonstrating that his
qualifications were superior to those of the successful candidates.
3.8 The author contends that the application of the gender requirement also
led to a violation of the principle of equality inasmuch as the appointment
of men only, in the category of university professors, created inequality
among the various categories of the non-justice group.
3.9 The author claims that the effect of a second call for candidates for
one of the non-justice seats was to accept candidatures after the closing
date for applications following the first call, which is illegal and
discriminatory.
3.10 The author also argues that the appointment of non-justice alternates
in alphabetical order is against the law, demonstrates that qualifications
are not compared and results in discrimination between the appointed
candidates and the alternates.
3.11 Lastly, the author states that there is no appeal procedure for
contesting the above-mentioned violations for the following reasons.
3.12 He considers that article 14 of the coordinated laws on the Council of
State does not allow any appeal to the Council of State concerning
appointments. He also concludes that it is not possible to request the Court
of Arbitration [FN3] for a preliminary ruling on article 259 bis-1 of the
Act of 22 December 1998.
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[FN3] The violation through a law, a decree or a rule as described in
article 134, of articles of the Constitution determined by law. Cases may be
brought before the Court by any authority designated by law, any person with
a legitimate interest or, for a preliminary ruling, by any court.
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3.13 In the author's view, the jurisdiction of the Council of State when
trying cases of abuse of power derives from article 14, paragraph 1, of the
above-mentioned laws, which stipulates that the administrative section hands
down decisions on applications for annulment filed on grounds of breach of
forms of action, either appropriate or prescribed on pain of avoidance,
overstepping or wrongful use of authority, against acts or regulations of
the various administrative authorities or administrative rulings in
disputes.
3.14 The author states that decisions by the legislature fall outside the
competence of the Council of State and that, until 1999, the same applied in
principle to all acts, even administrative acts, of a body of any of the
legislative assemblies. In this connection, he cites Council of State ruling
No. 69/321 of 31 October 1997, which dismissed, on the grounds that the
Council was not competent to rule on the legality of the act in question, an
application for annulment brought by Mr. Meester de Betzen-Broeck against a
decision by the Council of the Brussels-Capital Region not to include him in
the recruitment reserve for a job as an accountant because he had failed the
Regional Council's language test. He also refers to Court of Arbitration
ruling No. 31/96 of 15 May 1996, issued in response to the Council of
State's request for a preliminary ruling in the same proceedings (Council of
the Brussels-Capital Region) on article 14, paragraph 1, of the coordinated
laws on the Council of State. The plaintiff in that ruling claimed that
article 14 violated the principle of equality in that it did not allow the
Council of State to hear appeals against purely administrative decisions by
legislative assemblies concerning civil servants. The Court of Arbitration
ruled that the absence of a right of appeal against administrative decisions
by a legislative assembly or its bodies, whereas such an action could be
brought against the administrative decisions of an administrative authority,
violated the constitutional principles of equality and non-discrimination.
The Court further considered that the discrimination did not stem from
article 14 but was rather the result of a gap in the legislation, namely the
failure to institute a right of appeal against administrative decisions by
legislative assemblies and their bodies.
3.15 Lastly, and as a subsidiary claim, the author cites this failure to
institute a remedy against the Senate's appointment of non-justice members
of the High Court of Justice as a violation of articles 2 and 14 of the
Covenant, inasmuch as such a remedy can be sought against administrative
decisions by an administrative authority.
3.16 The author adds that he has not been able to appeal against the
provision in question, namely, article 295 bis-1, paragraph 3, directly to
the Court of Arbitration, since the required legitimate interest was lacking
during the six-month period allowed for appeal. In his view, the interest
condition was met only when his application was submitted and validated, in
other words, outside the six-month limit. The author also emphasizes that he
could not have known that the provision in question would necessarily give
rise to an illegal appointment.
3.17 The author considers that he has met the condition of having exhausted
domestic legal remedies and states that the matter has not been submitted to
another procedure of international investigation or settlement.
THE STATE PARTY'S OBSERVATIONS ON THE ADMISSIBILITY OF THE COMMUNICATION
4.1 In its observations of 12 March 2001 and 23 August 2002, the State party
disputes the admissibility of the communication.
4.2 As regards the rule of law, the State party maintains that the Special
Act on the Court of Arbitration of 6 January 1989 did permit the author to
appeal against the relevant part of the Act of 22 December 1998.
4.3 The State party says that the Court of Arbitration rules, inter alia, on
applications for annulment of an act or part thereof on grounds of a
violation of articles 6 and 6 bis of the Constitution. These articles - now
articles 10 and 11 - of the Constitution enshrine the principles of equality
and non-discrimination and are general in their scope. Article 11 prohibits
all discrimination, whatever its origin. The State party stresses that the
principle of non-discrimination contained in the Constitution applies to all
the rights and freedoms granted to Belgians, including those flowing from
international treaties to which Belgium has acceded. [FN4]
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[FN4] Court of Arbitration, 23 May 1990, R.W. 1990-1991, 75.
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4.4 The State party specifies that article 2, 2� of the Court of Arbitration
Act provides that appeals may be lodged by any physical person or legal
entity with a proven interest. In the State party's view, the Court of
Arbitration gives "interest" a wide interpretation, that is, from the moment
when an individual may be affected, directly and adversely, by the rule
disputed. Article 3, paragraph 1, of the Act also stipulates that
applications to overturn an act must be lodged within six months of its
publication.
4.5 The State party recalls that article 295 bis-1, paragraph 3, of the
Judicial Code was published in the Moniteur belge on 2 February 1999, which
means that the time limit for an appeal to the Court of Arbitration expired
on 2 August 1999. The call for non-justice candidates for the High Council
of Justice was published on 25 June 1999. Following this call, which
repeated the provision in question, the author submitted his application to
the Senate. In the State party's view, it should be noted that when the call
for candidates was published, Mr. G. Jacobs was within the legal time limit
for requesting the Court of Arbitration to overturn the provision in
question. The State party considers that the author met the necessary
conditions and had the necessary interest for lodging such an appeal.
4.6 As regards the application of the rule of law, the State party points
out that the author had the possibility of lodging an appeal with the courts
and tribunals of the Belgian judiciary.
4.7 The State party contends that a court is expected to hear subjective
disputes, the status of which is governed by articles 144 and 145 of the
Constitution. Article 144 attributes exclusive jurisdiction to the court in
disputes concerning civil rights while article 145 confers on the court
provisional powers, which the law may override, in disputes concerning
political rights. In the State party's view, legislative bodies therefore
remain subject to supervision by the courts and tribunals insofar as their
decisions concern civil or political rights.
4.8 The State party considers that the author does not show that he would be
unable to challenge the legality of the Senate's decision in the courts and
tribunals of the judiciary in the context of a dispute relating to civil or
political rights. In the State party's view, the provision in dispute does
not therefore have the effect of depriving the author of all legal remedies
since Mr. G. Jacobs can assert his rights as regards the Senate's
appointment of members of the High Council of Justice in the ordinary
courts.
4.9 As regards the subsidiary claim of violation of the principles of
equality and non-discrimination due to the failure to institute a remedy
against the Senate's decision to appoint non-justice members to the High
Council of Justice whereas such action could be introduced against the
administrative decisions by an administrative authority, the State party
maintains that the author cannot legitimately invoke Court of Arbitration
ruling No. 31/96 of 15 May 1996, insofar as it was pursuant to this ruling
that the coordinated laws on the Council of State were amended. Article 14,
paragraph 1, provides: "The section hands down decisions on applications for
annulment filed on grounds of breach of forms of action, either appropriate
or prescribed on pain of avoidance, overstepping or wrongful use of
authority, against acts or regulations of the various administrative
authorities, or against administrative decisions by legislative assemblies
or their organs, including the mediators instituted within such assemblies,
the Court of Accounts and the Court of Arbitration, and the organs of the
judiciary and the High Council of Justice, concerning public contracts and
the members of their personnel."
4.10 The State party explains that in the case in question the appointment
of members of the High Council of Justice cannot be considered a purely
administrative act by the Senate but is to a large extent an act forming
part of the exercise of its legislative powers. It stresses that the
establishment of the High Council of Justice is of great importance in
society and cannot be compared with the recruitment of personnel by the
legislature. Reference should be made here to the constitutional principle
of the separation of powers. In the State party's view, this implies that an
authority subordinate to one branch of government cannot substitute its
judgement for that of an authority stemming from another branch exercising
its discretion, such as the legislature's discretionary power in the
appointment of members of the High Council of Justice. Referring to Court of
Arbitration ruling No. 20/2000 of 23 February 2000 and ruling No. 63/2002 of
28 March 2002, the State party explains that, based on the principle of the
separation of powers, it may be maintained that the appointment of members
of the High Council of Justice is not subject to appeal since the
legislature, which includes the Senate, is independent. The State party
therefore considers that the lack of an appeal to the Council of State to
challenge the appointment of the members of the High Council of Justice is
in no way a violation of the principles of equality and non-discrimination
since such appointment may be compared to a legislative decision.
THE AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS CONCERNING
ADMISSIBILITY
5.1 In his comments of 14 July 2001 and 13 October 2002 the author maintains
and develops his arguments.
5.2 As to the rule of law, the author disputes the State party's argument on
the possibility of application to the Court of Arbitration for annulment. He
asserts that an appeal could not be lodged until the applications for
appointment had been accepted or at least submitted, since before this any
appeal would have constituted an actio popularis. Mr. Jacobs' application
was submitted on 16 September 1999 and accepted on 21 September 1999, that
is, after the six-month legal time limit for appeal set out in the Act of 2
February 1999. The author concludes that he therefore did not meet the
condition of direct, personal and definite interest for filing an appeal
within the required period.
5.3 Concerning the application of the rule of law, the author begins by
considering that the lack of an appeal to the Council of State in his case
is confirmed by the State party's observations and therefore constitutes a
violation of articles 2 and 14 of the Covenant. Contrary to the State party,
the author considers, as does the Court of Arbitration in its ruling No.
31/96, that the separation of powers cannot be interpreted as implying that
the Council of State has no jurisdiction when a legislative body is party to
the dispute to be decided, and that appointments by the Senate cannot be
regarded as legislative decisions. With reference to the rulings of the
Court of Arbitration cited by the State party (No. 20/2000 and No. 63/2002),
the author points out that at the time this was a matter of internal
organization among members of Parliament or justices, while he contends that
in the case in question it is a matter of appointments to a sui generis
entity at the intersection of the separate branches of government and not
part of the legislature as such; this means that the lack of any appeal
against the appointment of its members violates the principle of equality.
5.4 The author adds that the State party's argument comparing "the
importance in society" of members of the High Council and personnel in the
legislature is of no relevance whatsoever. He considers that the reference
to discrimination concerns not these two groups but rather decisions
emanating from a legislative assembly (in this case the appointment of
members of the High Council of Justice) and from an administrative authority
(the appointment of justices), and that it is also unclear how "importance
in society" might justify the lack of any appeal, particularly as such a
check on lawfulness in no sense means that the court which rules on the
appeal may substitute its judgement for that of another authority exercising
discretionary power.
5.5 As regards the State party's argument as to the appeal the author might
lodge with the courts and tribunals of the judiciary, first, concerning the
question of access to Belgian courts, the author considers that the State
party cannot simply confine itself to a general reference to the
Constitution without precise indications as to the specific legal basis
required to bring an action and as to the competent court. The State party
also, he says, omits any reference to relevant applicable case law. As to
the case law of the European Court of Human Rights, [FN5] the author
maintains that when citing local remedies the defendant State must prove
that its legal system offers opportunities for efficient and appropriate
remedies, something the State party does not do adequately in the current
case.
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[FN5] Bozano v. France ruling of 18 December 1986, series A, nr. 111, p. 18.
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5.6 The author claims that the lack of an appropriate appeal mechanism means
that the courts cannot put an end to the violation. In the case in question,
the courts cannot annul the disputed decision. Furthermore, for cases in
which Parliament has some degree of discretion, the court cannot order
compensation in kind (lack of a positive injunction). Believing that the
State party probably refers to the possibility of bringing the matter before
the court of first instance pursuant to article 1382 of the Civil Code, and
asserts that this would not be an effective action. Supposing that a claim
for damages could be considered an appropriate appeal mechanism, it is, in
the author's view, an impossible action to bring in practice. Citing various
legal analyses concerning Belgium, the author concludes that the legislature
and the judiciary cannot be held legally responsible.
THE STATE PARTY'S OBSERVATIONS ON THE MERITS OF THE COMMUNICATION
6.1 In its observations of 12 March 2001 and 23 August 2002, the State party
asserts that the communication is without grounds.
6.2 As regards the rule of law, the State party explains that the objective
being pursued is to ensure an adequate number of elected candidates of each
sex. It adds that the presence of women on the High Council of Justice
corresponds to the wish of Parliament to encourage equal access by men and
women to public office in accordance with article 11 bis of the
Constitution.
6.3 Recalling the debate on this issue during the travaux préparatoires for
the Act of 22 December 1998, the State party stresses that legislators felt
there should be no fewer than four men and four women among the 11 justices
and the 11 non-justices, in order to avoid any underrepresentation of either
sex in either group. In the State party's view, the report on this proposal
further underlines that, since the High Council of Justice also serves as an
advisory body, each college must be composed of members of both sexes.
Parliament thus wished to apply the principles set out in the Act of 20 July
1990 to encourage balanced representation of men and women on advisory
bodies. The State party considers that it follows from this that the
provision in question, namely, article 295 bis-1, paragraph 3, has a
legitimate objective.
6.4 The State party further maintains that the provision for 4 out of the 11
candidates - or just over one third - to be of a different sex does not
result in a disproportionate restriction on candidates' right of access to
the civil service. This rule is intended to ensure balanced representation
of the two sexes and, in the State party's view, is both the only means of
attaining the legitimate goal and also the least restrictive.
6.5 The State party accordingly considers that these provisions to ensure
effective equality do not depart from the principles which prohibit
discrimination on grounds of sex.
6.6 As regards the allegation of discrimination among persons appointed by
the legislative authorities and by third parties, the State party refers to
the Act of 20 July 1990 to encourage balanced representation of men and
women on bodies with advisory capacity. It says that this Act imposes some
degree of gender balance and is applicable whenever a body - for example,
the High Council of Justice - has advisory capacity. The State party
therefore considers that there is no discrimination since the gender balance
rule applies to all consultative bodies.
6.7 As to the author's reference to employers in support of the allegation
of discrimination against him, the State party asserts that the
aforementioned Act of 7 May 1999 is not applicable in this case, and refers
to article 3, paragraph 1, of the Act which describes workers in the
following terms: "Persons who perform work under a contract of employment
and persons who perform work under the authority of a third party other than
under a contract of employment, including apprentices." In the State party's
view, the author's reasoning falls short in legal terms since he compares
situations which are not comparable: the members of the High Council of
Justice cannot be described as "workers" within the meaning of the
aforementioned Act, since they do not perform work.
6.8 As to the allegation of discrimination by subgroup, the State party,
referring to the travaux préparatoires for the Act of 22 December 1998,
[FN6] points out that the legislature did indeed take account of the
observations of the Council of State to which the author refers. It stresses
that the Government has submitted an amendment to an amendment to modify
paragraph 3 of article 295 bis-1 by adding that the group of non-justices
should include at least four members of each sex in each college.
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[FN6] The Council of State found that the initial text of the Act provided
that each college of the High Council, which should be composed of 11
justices and 11 non-justices, should have no fewer than eight members of
each sex. In appointing the 11 non-justices, the Senate was therefore
required to ensure some degree of balance between men and women, the
consequence of which might have been a gender imbalance among non-justices.
The Council of State noted in this regard: "No reasonable justification
seems possible for an imbalance (...)." The bill was adapted in response to
these observations by the Council of State. During the travaux préparatoires,
the following statement was made: "As regards the balance between men and
women within the High Council, the Prime Minister stressed that in the first
analysis it was important to respect the votes cast. In accordance with the
present solution, it devolved on the Senate to ensure gender balance in the
appointment of non-justices, and on that basis to ensure that the required
quorum (no fewer than eight members of each sex) was attained. This
obligation of correction on the part of the Senate could be done away with
[...]. [As regards the candidates for justice positions] the Prime Minister
proposed that [...] each voter should cast three votes, at least one of
which would be for a candidate for the seat and at least one for a candidate
of the public prosecutor's office; he would prohibit voting for three
candidates of the same sex.
A similar solution would ensure a sufficient number of elected candidates of
each sex (between one and two thirds [for candidates for justice
positions])" (Parl. Doc. 1997-98, 1677/8).
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6.9 In the State party's view, then, the Act has redressed the balance
between the aim of the measure, namely to promote equality between men and
women where it might not currently exist, and one of the principal aims of
the law, namely to establish a High Council of Justice made up of
individuals objectively selected for their competence. The State party
explains, on the one hand, that the group of non-justices, the counterpart
to the group of justices, is a distinct group whose members must all have 10
years' experience; and on the other, that within the groups of justices and
non-justices, the rules relating to the sex of candidates are reasonable and
justified by the legitimate ends sought by those rules.
6.10 With regard to the application of the rule of law and the complaint
that the non-justices were appointed on the basis of their membership of a
political party, the State party explains that the High Council of Justice
was created, and the mandate system introduced, by the amendment of article
151 of the Constitution. That article sets forth the basic principles
regarding the independence of the judiciary, the composition and terms of
reference of the High Council of Justice, the procedures for appointing and
designating magistrates, and the mandate and evaluation systems.
6.11 The State party argues that, although the High Council of Justice is
regulated by article 151 of the Constitution, its composition (justices and
non-justices) and its terms of reference (it has no judicial powers)
preclude its being considered as a body representing the judiciary. The
Council is in effect a sui generis body and does not form part of any of the
three branches of government. According to the State party, it is an
intermediary body linking the judiciary (whose independence it is bound to
respect), the executive and the legislature.
6.12 The State party explains that the presence of non-justices helps the
justices to avoid too narrow an approach to their work on the Council, and
makes an essential contribution in terms of the perspective and experience
of those exposed to the strictures of the law. The State party maintains,
however, that this does not entail appointing individuals who are incapable
of assisting the High Council in the performance of its tasks.
6.13 The State party further claims that, for the appointment of
non-justices, there was every reason to establish a system that aimed, on
the one hand, to prevent intervention by political bodies and thus further
"politicization" and, on the other, to compensate for the inevitably
somewhat undemocratic nature of the choice of candidates put forward by each
of the occupational groups concerned.
6.14 According to the State party, it was for this reason that Parliament
opted in the Constitution for a mixed system in which all non-justices are
appointed by the Senate on a two-thirds majority of votes cast, but 5 of the
11 vacant places in each college must be filled with candidates put forward
by the bar associations, colleges and universities. The system allows each
of these institutions to put forward one or more candidates who meet the
legal requirements (not necessarily belonging to the same occupational
groups as the submitting group) and are considered suitable for office.
6.15 In the State party's opinion, the purpose and the effect of creating
the High Council of Justice was to depoliticize judicial appointments.
Candidates must be elected by the Senate, by a two-thirds majority of those
voting, i.e., a relative majority, which ensures depoliticization of the
system.
6.16 The State party also describes in detail the procedure applied in
appointing the non-justices in the case under consideration.
6.17 In all, there were 106 non-justice candidates, 57 French speakers and
49 Dutch speakers; their curricula vitae and files were available for
consultation by senators at the Senate registry. Given the large number of
candidates, it was decided, for practical reasons, not to conduct
interviews. Allowing 15 to 30 minutes per person, interviewing 106
candidates would have taken a minimum of 26½ to 53 hours. The constraints of
the parliamentary timetable made it impossible to devote that amount of time
to interviews. It would have meant either setting aside several successive
days or staggering the interviews over a period of weeks. In any case, it
would not have been possible to conduct interviews in similar conditions for
all candidates, since the same senators would probably not have been able to
attend every one. Thus, according to the State party, a document-based
procedure provided the best means of observing the principle of
non-discrimination. The State party also emphasizes that the Senate has no
constitutional, legal or regulatory obligation to conduct interviews.
6.18 The State party recalls that the appointment of non-justices must take
into account five different criteria (each college must comprise at least
four lawyers, three teachers from a college or university in the French or
Flemish Community, four members who hold at least one qualification from a
college in the French or Flemish Community, four members of each sex and
five members put forward by universities, colleges and/or bar associations);
it explains that, because of the number of criteria and the overlap between
them, the Senate bodies decided to draw up a list of recommended candidates.
Any other procedure, it seems, would have been unworkable, or even have
discriminated against certain candidates. Taking a vote on each individual,
for example, would have meant organizing at least 22 separate ballots. If in
one such ballot no candidate obtained a two-thirds majority, as might well
be expected, a second round of voting would have to be organized, thereby
increasing the total number of ballots. At the same time, it would have been
necessary to ensure, from ballot to ballot, that all the membership
requirements for each college had been met: if, after eight members of, say,
the French-speaking college had been appointed, the Senate had found it had
appointed only one lawyer candidate, only the remaining lawyer candidates
would still have been eligible. At some point, then, it might have become
possible only to vote for certain candidates. The same problem would have
arisen had the voting been based on categories. The State party points out
that the use of the recommended list method in nomination and appointment
procedures is established practice in the Senate and the Chamber of
Representatives.
6.19 In order to draw up the list of recommended candidates, the officers of
the Senate met on 17 December 1999, French speakers and Dutch speakers
separately. It was decided to allow one member of each political group to
attend the meeting. This made it possible for all groups, including the only
one not represented among the Senate officers, to take an active part in the
consideration of the candidates. The officers received all candidates'
curricula vitae in advance of the meeting, and the candidates' files were
available for consultation at the Senate registry once applications had
closed. The representatives of the political groups examined the curricula
vitae of all candidates during the meetings held to draw up the list, and
all the candidates' files and curricula vitae were therefore available
throughout each meeting. The procedure adopted to draw up the recommended
list for the Dutch-speaking college, for example, was described in detail at
the Senate plenary of 23 December 1999. As explained at the time, the first
Vice-President of the Senate went through all the applications one by one
and, when each participant had given an opinion, 16 candidates were
selected. The list of 16 candidates was then considered in relation to the
five above-mentioned criteria and 13 candidates were retained (for 11
seats). Finally, after a lengthy discussion, the names of 11 candidates were
chosen for the list.
6.20 In actually appointing the non-justices at the plenary of 23 December
1999, senators had the option, in a secret ballot, of either approving the
recommended list or, if the list did not meet with their agreement,
selecting candidates themselves. They were therefore given a two-part ballot
paper, with (a) the recommended list of 11 French-speaking candidates and 11
Dutch-speaking candidates and with a single box to be marked; and (b) a list
of all the candidates' names, divided into three categories,
"qualification-holders", "lawyers" and "teachers", with a box beside each
name. The ballot paper also included the legal provisions stipulating the
criteria for membership of the Council. Those members who supported the
recommended list were required to mark the box above that list. Those who
did not wish to approve the recommended list were required to cast 22 votes
for their preferences, with a maximum of 11 for French-speaking candidates
and 11 for Dutch-speaking candidates.
6.21 The result of the secret ballot was as follows:
Votes cast: 59
Blank or spoiled ballots: 2
Valid votes: 57
Two-thirds majority: 38
The recommended list obtained 54 votes.
6.22 Thus, according to the State party, it can be seen that a thorough
examination of the candidates' curricula vitae and a comparison of their
qualifications took place before either the recommended list was drawn up or
the Senate plenary made the appointments. Furthermore, the State party
considers that the author's complaints about politicization and nepotism are
based on statements in the press and are unsupported by any evidence.
6.23 With regard to the complaint of discrimination between the subgroups,
the State party refers to its arguments on the rule of law, presented above.
6.24 As to the complaint of discrimination between candidates in connection
with the Senate's second call for applications, the State party explains
that the second call was issued because the first call had produced
insufficient applications: for the Dutch-speaking college there had been two
applications from female candidates, yet, under article 295 bis-1, paragraph
3, of the Judicial Code, the group of non-justices in the High Council must
comprise at least four members of each sex, per college, and that
requirement must be met at the time the Council is constituted. The State
party explains that the law, the case law of the Council of State, and
parliamentary practice all permitted the Senate to issue a second call for
applications, and that the second call was addressed to all who wished to
apply, including those who had already responded to the first call (thus
allowing the author to resubmit his application). Furthermore, according to
the State party, applications sent in response to the first call remained
valid, as was explicitly stated in the second call. The State party
concludes that there was no discrimination and emphasizes that, without a
second call for applications from non-justices, it would not have been
possible to form a High Council of Justice in accordance with the
Constitution.
6.25 In response to the complaint of discrimination on the grounds that the
non-justice alternates had been ranked in alphabetical order, unlike the
justices, the State party points out that the law on the one hand explicitly
stipulates that the justices shall be ranked by number of votes obtained,
and on the other leaves the Senate free to rank the non-justices as it
pleases. [FN7] However, according to the State party, an alphabetical
listing of the candidates does not imply an alphabetical order of
succession. The State party explains that the order of succession in fact
depends on which seat falls vacant, i.e. which subgroup the outgoing
non-justice belongs to. When a seat falls vacant, the Senate must appoint a
new member, and in order to do so it must first determine the profile of the
successor, i.e. determine what conditions the new member must fulfil if the
composition of the Council is to continue to comply with the law. In the
first place, then, it must establish which candidates are eligible, and that
will depend on the qualifications of both the retiring or deceased member
and the remaining members. All candidates whose appointment would be
consistent with the equitable arrangements required by law will be eligible
for appointment. It is therefore quite incorrect to claim that the
successors would have been appointed in alphabetical order, in violation of
the principle of equality.
-------------------------------------------------------------------------------------------------------------------------------
[FN7] Article 295 bis-2, paragraph 4, of the Judicial Code.
-------------------------------------------------------------------------------------------------------------------------------
COMMENTS BY THE AUTHOR ON THE STATE PARTY'S OBSERVATIONS CONCERNING THE
MERITS OF THE COMMUNICATION
7.1 In his comments of 14 July 2001, 15 February 2002 and 13 October 2002,
the author stands by his complaints against the State party.
7.2 Referring to the Kalanke judgement (European Court judgement C-450/93,
of 17 October 1995), which found that there is discrimination where persons
with equal qualifications are automatically given priority on grounds of sex
in sectors where they are underrepresented, the author repeats that, in this
case, the principle of appointment on a quota basis, i.e. without comparing
applicants' qualifications, is a violation of the principle of equality. The
author adds that, while female applicants might be given priority where
applicants of different sexes had equal qualifications (although that in
itself might be questionable), that would nevertheless be possible only
provided the rules guaranteed that, in every individual case where a
male/female applicant had equivalent qualifications to a female/male
applicant, an objective evaluation of the applications would be made,
examining all the requirements to be met by the individual applicant, and
that, where one or more of the qualifications tipped the balance in favour
of the female or male applicant, any priority given to men or women would be
waived. In the author's view, fixed quotas - and, even more, floating quotas
- prevent this from happening. The author also contends that the State
party's argument that, in this case, the only way to ensure balanced
representation of the two sexes is to introduce quotas, is baseless and
unacceptable. The author maintains that there are other steps Parliament
could take, namely the elimination of social barriers, to facilitate access
to such positions by particular groups. He adds that there is no inequality
between men and women in the case under consideration, since too few
applications were submitted by the group of women (applications from only
two Dutch-speaking women following the first call), which, in the author's
view, means that the purpose of the exercise is illegitimate. The author
also points out that the State party's reference to article 11 bis of the
Constitution is irrelevant insofar as that article was added on 21 February
2002, and thus did not exist at the time the disputed rule was established.
7.3 As to the complaint of discrimination between individuals appointed by
the legislature and those nominated by third parties, the author contests
the State party's invocation of the Act of 20 July 1990, on the promotion of
balance between men and women in advisory bodies, insofar as, in his view,
the High Council of Justice is more than simply an advisory body. The author
claims it is the Act of 7 May 1999 on equal treatment of men and women -
which prohibits gender requirements - that is applicable in this case. He
considers that it is applicable to the Senate's call for applications on the
one hand, since it covers public-sector employers in particular, and to the
members of the High Council of Justice on the other hand, since, in his
view, and contrary to the State party's contention, they do perform work. He
does nevertheless acknowledge that that work is not performed "under the
authority of another person", as the law in question requires.
7.4 Concerning the complaint of discrimination against a subgroup, the
author recalls that, following the advice of the Council of State,
Parliament had indeed made a distinction between the group of justices and
the group of non-justices. He maintains, however, that in setting quotas for
the non-justices, Parliament repeated the very error the Council of State
had warned against. As a result, the author believes, there is an imbalance
that cannot be rationally justified between, on the one hand, the degree of
institutionalized discrimination among candidates for high public office
and, on the other, the promotion of equality between men and women (which is
supposedly lacking) and one of the principal aims of the Act, which is to
create a High Court of Justice composed of individuals selected for their
abilities.
7.5 In respect of the application of the rule of law, the author claims that
non-justice members were appointed on political grounds and that there was
no comparison of the candidates' qualifications, again because of the
establishment of quotas favouring women.
7.6 The author repeats that the second call for candidates was illegal (the
three-month time limit for submission of applications being a strict
deadline) and asserts that it allowed candidates to be appointed by virtue
of their sex, thanks to the quota, and through nepotism. In the author's
view, the High Council of Justice could have been constituted without a
second call, insofar as article 151 of the Constitution, which establishes
the Council, does not provide for quotas based on sex. As to the list of
successors required by law, the author considers that such a list should
govern the order of succession.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE RELATING TO ADMISSIBILITY
8.1 In accordance with rule 87 of its rules of procedure, before considering
any claims contained in a communication, the Human Rights Committee must
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
8.2 The Committee has ascertained, as required under article 5, paragraph 2
(a) of the Optional Protocol, that the same matter is not being examined
under another procedure of international investigation or settlement.
8.3 With regard to the contested provision, namely, article 295 bis-1,
paragraph 3, of the Act of 22 December 1998, the Committee takes note of the
State party's argument that the author could have appealed to the Court of
Arbitration. After having also considered the author's arguments, the
Committee is of the opinion that Mr. Jacobs is correct in maintaining that
he was not in a position to lodge such an appeal since he was unable to meet
the requirement of direct personal interest within the prescribed time limit
of six months from publication of the Act, and he cannot be held responsible
for the lack of a remedy (see paragraph 5.2).
8.4 The Committee further notes that the author was unable to submit an
appeal to the Council of State, as indeed the State party confirms in
arguing that the lack of a right of appeal was due to the principle of the
separation of powers (see paragraph 4.10).
8.5 With regard to the application of the Act of 22 December 1998 and in
particular article 295 bis-1, the Committee takes note of the author's claim
that the remedies before certain other Belgian courts and tribunals
mentioned by the State party did not constitute effective remedies in the
present case. The Committee recalls that it is implicit in rule 91 of its
rules of procedure and in article 4, paragraph 2, of the Optional Protocol,
that a State party to the Covenant should submit to the Committee all
information at its disposal, which, at the stage where the Committee must
take a decision on the admissibility of a communication, means detailed
information on the remedies available, in the particular circumstances of
their case, to individuals claiming to be victims of violations of their
rights. The Committee notes that the State party has referred only in
general terms to the remedies available under Belgian law, and has failed to
provide any information whatsoever on the remedy applicable in the present
case, or to demonstrate that it would have been effective and available. In
the light of these facts, the Committee considers that the author has met
the conditions set forth in article 5, paragraph 2 (b) of the Optional
Protocol.
8.6 With regard to the author's complaint of violations of article 19,
paragraph 1, of the Covenant, the Committee considers that the facts
presented are not sufficiently substantiated for the purposes of
admissibility under article 2 of the Optional Protocol, in respect of this
part of the communication.
8.7 With regard to the complaint of a violation of article 14, paragraph 1,
of the Covenant, the Committee considers that the case under consideration
is not concerned with the determination of rights and obligations in a suit
at law; it is inconsistent ratione materiae with the article invoked and
thus inadmissible under article 3 of the Optional Protocol.
8.8 Lastly, the Committee finds that the communication is admissible
inasmuch as it appears to raise issues under articles 2, 3, 25 (c) and 26 of
the Covenant, and should be considered as to the merits, in accordance with
article 5, paragraph 2, of the Optional Protocol.
CONSIDERATION ON THE MERITS
9.1 The Human Rights Committee has examined the present communication in the
light of all the written information communicated by the parties, as
required under article 5, paragraph 1, of the Optional Protocol.
9.2 With regard to the complaints of violations of articles 2, 3, 25 (c) and
26 of the Covenant, arising from article 295 bis-1, paragraph 3, of the Act
of 22 December 1998, the Committee takes note of the author's arguments
challenging the gender requirement for access to a non-justice seat on the
High Council of Justice on the grounds that it is discriminatory. The
Committee also notes the State party's argument justifying such a
requirement by reference to the law, the objective of the measure, and its
effect in terms of the appointment of candidates and the constitution of the
High Council of Justice.
9.3 The Committee recalls that, under article 25(c) of the Covenant, every
citizen shall have the right and opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions,
to have access, on general terms of equality, to public service in his or
her country. In order to ensure access on general terms of equality, the
criteria and processes for appointment must be objective and reasonable.
State parties may take measures in order to ensure that the law guarantees
to women the rights contained in article 25 on equal terms with men. [FN8]
The Committee must therefore determine whether, in the case before it, the
introduction of a gender requirement constitutes a violation of article 25
of the Covenant by virtue of its discriminatory nature, or of other
provisions of the Covenant concerning discrimination, notably articles 2 and
3 of the Covenant, as invoked by the author, or whether such a requirement
is objectively and reasonably justifiable. The question in this case is
whether there is any valid justification for the distinction made between
candidates on the grounds that they belong to a particular sex.
-------------------------------------------------------------------------------------------------------------------------------
[FN8] General comment N�28, on article 3 of the Covenant (sixty-eighth
session, 2000), para. 29.
-------------------------------------------------------------------------------------------------------------------------------
9.4 In the first place, the Committee notes that the gender requirement was
introduced by Parliament under the terms of the Act of 20 July 1990 on the
promotion of a balance between men and women on advisory bodies. [FN9] The
aim in this case is to increase the representation of and participation by
women in the various advisory bodies in view of the very low numbers of
women found there. [FN10] On this point, the Committee finds the author's
assertion that the insufficient number of female applicants in response to
the first call proves there is no inequality between men and women to be
unpersuasive in the present case; such a situation may, on the contrary,
reveal a need to encourage women to apply for public service on bodies such
as the High Council of Justice, and the need for taking measures in this
regard In the present case, it appears to the Committee that a body such as
the High Council of Justice could legitimately be perceived as requiring the
incorporation of perspectives beyond one of juridical expertise only.
Indeed, given the responsibilities of the judiciary, the promotion of an
awareness of gender-relevant issues relating to the application of law,
could well be understood as requiring that perspective to be included in a
body involved in judicial appointments. Accordingly, the Committee cannot
conclude that the requirement is not objective and reasonably justifiable.
-------------------------------------------------------------------------------------------------------------------------------
[FN9] "Since the High Council also serves as an advisory body, each college
shall comprise eight members of each sex." Bill of 15 July 1998, Discussion,
p. 44, Belgian Chamber of Representatives. See also paragraph 6.3 of the
present communication.
[FN10] "A study of the actual situation reveals that, in the majority of the
advisory bodies, the membership includes a very small number of women."
Preamble to the Bill, p. 1, 27 March 1990, Chamber of Representatives,
parliamentary documents; "A survey of the national consultative bodies shows
that the proportion of women is no more than 10 per cent." Introduction to
the Bill by the Secretary of State for Social Emancipation, p. 1, 3 July
1990, Belgian Senate.
-------------------------------------------------------------------------------------------------------------------------------
9.5 Secondly, the Committee notes that the gender clause requires there to
be at least four applicants of each sex among the 11 non-justices appointed,
which is to say just over one third of the candidates selected. In the
Committee's view, such a requirement does not in this case amount to a
disproportionate restriction of candidates' right of access, on general
terms of equality, to public office. Furthermore, and contrary to the
author's contention, the gender requirement does not make qualifications
irrelevant, since it is specified that all non-justice applicants must have
at least 10 years' experience. With regard to the author's argument that the
gender requirement could give rise to discrimination between the three
categories within the group of non-justices as a result, for example, of
only men being appointed in one category, the Committee considers that in
that event there would be three possibilities: either the female applicants
were better qualified than the male, in which case they could justifiably be
appointed; or the female and male applicants were equally well qualified, in
which case the priority given to women would not be discriminatory in view
of the aims of the law on the promotion of equality between men and women,
as yet still lacking; or the female candidates were less well qualified than
the male, in which case the Senate would be obliged to issue a second call
for candidates in order to reconcile the two aims of the law, namely,
qualifications and gender balance, neither of which may preclude the other.
On that basis, there would appear to be no legal impediment to reopening
applications. Lastly, the Committee finds that a reasonable proportionality
is maintained between the purpose of the gender requirement, namely to
promote equality between men and women in consultative bodies; the means
applied and its modalities, as described above; and one of the principal
aims of the law, which is to establish a High Council made up of qualified
individuals. Consequently, the Committee finds that paragraph 3 of article
295 bis-1 of the Act of 22 December 1998 meets the requirements of objective
and reasonable justification.
9.6 In the light of the foregoing, the Committee finds that article 295
bis-1, paragraph 3, does not violate the author's rights under the
provisions of articles 2, 3, 25 (c) and 26 of the Covenant.
9.7 As regards the complaints of violations of articles 2, 3, 25 (c) and 26
of the Covenant arising from the application of the Act of 22 December 1998,
and in particular article 295 bis-1, paragraph 3, the Committee takes note
of the author's arguments claiming, in the first place, that the appointment
of the Dutch-speaking non-justices, the group to which Mr. Jacobs belonged,
was conducted without regard to an established procedure, without
interviews, profiling or comparison of qualifications, being based rather on
nepotism and political affiliation. The Committee has also examined the
State party's arguments, which explain in detail the procedure for
appointing the non-justices. The Committee notes that the Senate established
and put into effect a special appointments procedure, viz.: first, a list of
recommended candidates was drawn up after consideration and comparison of
all applications on the basis of the relevant files and curricula vitae;
secondly, each senator was given the choice of voting, in a secret ballot,
either for the recommended list, or for a list of all the candidates. The
Committee finds that this appointments procedure was objective and
reasonable for the reasons made clear in the State party's explanations:
before the recommended list was drawn up and the Senate made the
appointments, each candidate's curriculum vitae and files were examined and
their qualifications compared; the choice of a procedure based on files and
curricula vitae rather than on interviews was prompted by the number of
applications and the constraints of the parliamentary timetable, and there
was no legal provision specifying a particular method of evaluation, such as
interviews (para. 6.17); the choice of the recommended list method had to do
with the large number of criteria and the overlap between them, and was a
practice already established in the Senate and Chamber of Representatives;
lastly, it was possible for the senators to make the appointments using two
methods of voting, which guaranteed them freedom of choice. Furthermore, the
Committee finds that the author's complaints that the appointment of
candidates was made on the basis of nepotism and political considerations
have not been sufficiently substantiated.
9.8 With regard to the complaint of discrimination between categories within
the group of non-justices arising from the introduction of the gender
requirement, the Committee finds that the author has not sufficiently
substantiated this part of the communication and, in particular, has
produced no evidence to show that any female candidates were appointed
despite being less well qualified than male candidates.
9.9 With regard to the complaint of discrimination between applicants in
connection with the Senate's second call for applications, and to the claim
that the second call was illegal, the Committee notes that this call was
issued because of the insufficient numbers of applications from women, i.e.,
two applications from women for the Dutch-speaking college - which the
author concedes - whereas under article 295 bis-1, paragraph 3, each group
of non-justices on the High Council of Justice must comprise at least four
members of each sex. The Committee finds, therefore, that the second call
was justified to allow the Council to be constituted and, furthermore, that
there was no impediment to such action either in law or in parliamentary
practice, particularly as the applications submitted in response to the
first call remained valid.
9.10 As to the complaint of discrimination arising from the listing of
non-justice alternates in alphabetical order, the Committee notes that
article 295 bis-2, paragraph 4, of the Judicial Code gives the Senate the
right to draw up the list of alternates but for them, unlike the justices,
does not prescribe any particular method of ranking. Consequently it finds
that, as shown by the State party's detailed argument, (a) the alphabetical
order chosen by the Senate does not imply an order of succession; and (b)
any succession in the event of a vacancy will require the appointments
procedure to be conducted afresh. The author's complaints do not disclose a
violation.
9.11 The Committee therefore finds that the application of the Act of 22
December 1998, and in particular of article 295 bis-1, paragraph 3, does not
violate the provisions of articles 2, 3, 25 (c) and 26 of the Covenant.
10. 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 do not disclose a violation
of any article of the Covenant.
________________________________
[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.]
The text of a concurring individual opinion signed by Committee member, Mrs.
Ruth Wedgwood is appended to the present document.
APPENDIX
INDIVIDUAL OPINION OF COMMITTEE MEMBER, MRS. RUTH WEDGWOOD (CONCURRING)
The Committee has concluded that the norms of non-discriminatory access to
public service and political office embodied in Article 25 of the Covenant
do not preclude Belgium from requiring the inclusion of at least four
members of each gender on its High Council of Justice. The Council is a body
of some significant powers, recommending candidates for appointment as
judges and prosecutors, as well as issuing opinions and investigating
complaints concerning the operation of the judicial branch. However, it is
pertinent to note that the membership of the Council of Justice is highly
structured by many other criteria as well, under the Belgium Judicial Code.
The Council is comprised of two separate "colleges" for French-speaking and
Dutch-speaking members. Within each college of 22 members, half are directly
elected by sitting judges and prosecutors. The other "non-justice" members
are chosen by the Belgium Senate, and the slate must include a minimum
number of experienced lawyers, college or university teachers, and other
professionals, with "no fewer than four members of each sex" included among
the eleven members of these "non-justice" groups. This electoral rule may
benefit men as well as women, although it was rather clearly intended to
assure the participation of women on this "advisory" body. It is important
to note that the constitution or laws of some States Parties to the Covenant
may disdain or forbid any use of set-asides or minimum numbers for
participation in governmental bodies, and nothing in the instant decision
interferes with that national choice. The Committee only decides that
Belgium is free to choose a different method in seeking to assure the fair
participation of women as well as men in the processes of government.
[Signed] Ruth Wedgwood |
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