3. Kurowski v.

Poland

Facts:

Mr. Eugeniusz Kurowski, a Pole, born in 1949. He claims to be a victim of violations by

Poland of article 14, paragraph 1, and of article 25 (c), in combination with article 2,
paragraph 1, of the International Covenant on Civil and Political Rights. The
International Covenant on Civil and Political Rights entered into force for Poland on 18
June 1977, and the Optional Protocol on 7 February 1992. In 1989, he was appointed
deputy security chief of the Regional Office of Internal Affairs in the town of Andrychów.
On 31 July, he was dismissed pursuant to the State Protection Office Act of 6 April
1990, which had dissolved the Secret Police by transforming it into a new department.

The Council of Ministers established qualification proceedings and criteria for the
reinstatement in the new department of officers who had been dismissed, however n 22
July 1990 he was told he did not meet the requirements. The Central Qualifying
Commission confirmed that opinion on 5 September 1990. On 25 April 1995, he
requested the Minister of Internal Affairs to overturn the decisions of the qualifying
commissions and to reinstate him in the Police. The Minister replied that he had no
authority to alter decisions by the qualifying commissions or to recruit anyone who did
not receive a positive assessment from them

He considers that the decisions of the qualifying commissions had been handed down
by members hostile to the left and who dismissed any candidate holding political views
different from theirs. He considers himself a victim of the State party's violation of his
right to a hearing by an independent and impartial tribunal.

The State party claims that the communication is inadmissible ratione temporis, since
the qualification proceedings for the author ended on 5 September 1990, that is, before
the Optional Protocol entered into force for Poland on 7 February 1992. The author
challenges that argument and replies that the State was party to the Covenant since
June 1977, that the Optional Protocol entered into force in 1992 and that he did not take
legal action against his dismissal until 1995 (after the Optional Protocol had come into
force).

NOTE:(Simplified FACTS you can choose to copy this or the longer version)

Communication submitted by Mr. Eugeniusz Kurowski, a Pole, born in 1949. He claims

to be a victim of violations by Poland of article 14, paragraph 1, and of article 25 (c), in
combination with article 2, paragraph 1, of the International Covenant on Civil and
Political Rights.

The International Covenant on Civil and Political Rights entered into force for Poland on
18 June 1977, and the Optional Protocol on 7 February 1992.

Issue: Whether or not the communication is admissible?

Held:

NO. The author was dismissed from his post in 1990, under the law in force at the time,
and the same year he presented himself as a candidate, without success, before one of
the regional qualifying commissions in order to determine whether he satisfied the new
statutory criteria for employment in the restructured Ministry of Internal Affairs. The fact
that he did not win his case during the proceedings which he initiated in 1995, after the
Optional Protocol came into force, does not in itself constitute a potential violation of the
Covenant. The Committee is unable to conclude that a violation occurred prior to the
entry into force of the Optional Protocol for the State party and continued thereafter.
Consequently, the Committee declares the communication inadmissible
rationetemporis, in accordance with article 1 of the Optional Protocol.

Aduayom vs Togo, Communications Views under article 5, paragraph 4, of the Optional

Protocol 1. The authors of the communications are Adimayo M. Aduayom, Sofianou T.
Diasso and Yawo S. Dobou, three Togolese citizens currently residing in Lomé, Togo.
The authors claim to be the victims of violations by Togo of articles 9 and 19 of the
International Covenant on Civil and Political Rights by Togo. The Optional Protocol
entered into force for Togo on 30 June 1988. After they were arrested and released
when the offense of lèse-majesté was dropped. But their request for reinstatement as
teachers in the said University was not granted. 2.5 With respect to the requirement of
exhaustion of domestic remedies, the authors state that they submitted their respective
cases to the National Commission on Human Rights, an organ they claim was
established for the purpose of investigating claims of human rights violations. The
Commission, however, did not examine their complaints and simply forwarded their files
to the Administrative Chamber of the Court of Appeal. This instance, apparently, has not
seen fit to examine their cases. They also filed an additional complains about the delays
in the procedure before the Court of Appeal; thus, he was sent documents submitted by
the Ministry of Post and Telecommunications some seven months after their receipt by
the Court. The complaint 3.1 The authors claim that both their arrest and their detention
was contrary to article 9, paragraph 1, of the Covenant. This was implicitly conceded by
the State party when it dropped all the charges against them. They further contend that
the State party has violated article 19 in respect to them, because they were persecuted
for having carried, read or disseminated documents that contained no more than an
assessment of Togolese politics, either at the domestic or foreign policy level. State
party's admissibility observations and authors' comments and clarifications 4.1 The
State party objects to the admissibility of the communications on the ground that the
authors have failed to exhaust available domestic remedies. The State party concludes
that domestic remedies have not been exhausted, since the Administrative Chamber
has not handed down a decision. The Committee's admissibility decision 6.2 The
Committee noted the authors' claims under article 9 and observed that their arrest and
detention occurred prior to the entry into force of the Optional Protocol for Togo (30
June 1988). It further noted that the alleged violations had continuing effects after the
entry into force of the Optional Protocol for Togo, in that the authors were denied
reinstatement in their posts until 27 May and 1 July 1991 respectively, and that no
payment of salary arrears or other forms of compensation had been effected. The
Committee considered that these continuing effects could be seen as an affirmation of
the previous violations allegedly committed by the State party. It therefore concluded
that it was not precluded ratione temporis from examining the communications and
considered that they might raise issues under articles 9, paragraph 5; 19; and 25(c), of
the Covenant

Hendriks v Netherlands Communication No. 201/1985

Facts: The marriage was dissolved by the Amsterdam District Court, without settling the
questions of guardianship and visiting rights. Hendriksasked the courtto make a
provisional visiting arrangement andthe Court awarded custody to the mother, without,
making provision for the visiting rights. He requested the Child Care and Protection
Board to intercede but they failed.He applied to the Juvenile Judge of the Amsterdam
District Court but his request dismissed on the ground that the mother continued to
oppose any such contact. When appealed, both the Court of Appeals and Supreme
Court upheld lower court’s decision. He submitted a communication to the Human
Rights Committee invoking violations to article 23when the Courts granted exclusive
custody over the son to the mother without ensuring the father's right of access to the
child.
Held: No violation. Civil proceedings within reasonable time. Fair hearing: 'equality of
arms' (Article 6(1)).

a. The various domestic proceedings had taken respectively six, one and a half,
and seven months [135-136]. 

b. In order to keep the parents and children concerned no longer than necessary in
uncertainty, proceedings relating to a parent's access to his child were not to be
unduly prolonged. The decision required careful examination of the family
situation and the chances of reaching a settlement had to be ascertained. In view
of these considerations, the Commission did not find that the proceedings had
been unreasonably long [137-139].
c. The Commission left open whether the fact that an applicant for access could not
retain a copy of the social report might prejudice his position before the courts,
especially if he was not legally represented [142]. On the facts, however, the
applicant's lawyer had the report and the 'equality of arms' requirement in Article
6(1) had been respected [143-144].

Sánchez López v. Spain

ADMISSIBILITY

Submitted by: Antonio Sánchez López (represented by José Luis Mazón Costa)

Alleged victim: The author

State party: Spain

Date of communication: 22 October 1996

The author of the communication is Mr. Antonio Sánchez López, a primary

schoolteacher living in Molina de Segura, Murcia, Spain. He claims that he is a victim of
a violation by Spain of article 14, paragraphs 2 and 3 (g), of the International Covenant
on Civil and Political Rights. He is represented by counsel, Mr. José Luis Mazón Costa.

On 5 May 1990, the author was driving his car at 80 km/h in an area where the speed
limit was 60 km/h. The car was photographed after being detected by the police radar.
The General Department of Traffic (Ministry of the Interior) asked him, as the owner of
the vehicle by means of which the offence had been committed, to identify the
perpetrator of the offence or driver of the vehicle, in other words, himself. This request
was made on the basis of article 72 (3) of Royal Legislative Decree No. 339/1990 (Road
Safety Act - Ley de Seguridad Vial (LSV)),

The author took his case to the courts (Administrative Litigation Division, Murcia),
claiming that the imposition of the fine constituted a violation of his fundamental rights,
in particular the right to presumption of innocence, the right not to confess guilt and the
right not to testify against oneself, all of which are recognized in article 24 (2) of the
Spanish Constitution. He also requested that an action of unconstitutionality should be
brought before the Spanish Constitutional Tribunal. The competent Division rejected the
appeal, stating that the penalty was law

The complaint

This complaint has not been submitted to any other international settlement procedure.
State party's information and observations, and counsel's comments

In its statement dated 19 January 1998 on the admissibility of the case, the State party
requested that it should be declared inadmissible on the basis of article 5, paragraph 2
(a), of the Optional Protocol since, in its view, the present communication is identical to
a communication submitted by the same counsel to the European Court of Human
Rights. The State party nevertheless informs the Committee that it will reply as to the
merits of the question within the time limit set.

In its submission, dated 20 May 1998, concerning the merits of the case, the State party
reiterates its request that the complaint should be declared inadmissible. The facts are
not contested by the State party but it considers that there has not been a violation of
any of the rights protected in the Covenant, since the potential danger constituted by a
motor vehicle requires that road traffic should be rigorously protected.

Admissibility considerations and examination of the merits

Before considering any claims contained in a communication, the Human Rights

Committee must decide, in accordance with rule 87 of its rules of procedure, whether or
not it is admissible under the Optional Protocol to the Covenant.

With regard to article 5, paragraph 2 (a), of the Optional Protocol, the Committee cannot
accept the State party's contention that "the same matter" has already been submitted
to the European Court of Human Rights because another person brought his particular
case before that body in connection with an apparently identical claim. The words "the
same matter", within the meaning of article 5, paragraph 2 (a), of the Optional Protocol,
must be understood as referring to one and the same claim concerning the same
individual, as submitted by that individual, or by some other person empowered to act
on his behalf, to the other international body. Since the State party has itself
acknowledged that the author of the present communication has not submitted his
specific case to the European Court of Human Rights, the Human Rights Committee
considers that it is not precluded from considering the communication under article 5,
paragraph 2 (a), of the Optional Protocol.2

Karakurt vs Austria

FACTS:

The author possessed Turkish citizenship while holding an open-ended residence

permit in Austria. He was an employee of the “Association for the Support of
Foreigners” in Linz. On May 24, 1994, there was an election for the association’s work
council, which had statutory rights and responsibilities to promote staff interests and to
supervise compliance with work conditions. The author and another employee, Mr.
Vladimir Polak, were both elected. Mr. Polak applied to Linz Regional Court for the
author to be stripped of his elected position on the grounds that he had no standing to
be a candidate for the work council. The court granted the application on the basis that
the relevant labor law limited the entitlement to stand for election to such work councils
to Austrian nationals or members of the European Economic Area. The author appealed
to the Supreme Court which denied the request on the ground that the work-council was
not an 'association' within the meaning of Art. 11 ECHR. On 24 July 1996, the author
applied to the European Court of Human Rights which denied the same.

ISSUE: WON it is admissible despite the fact that it was already heard by the European
Court of Human Rights

HELD: YES.
As to the State party's contention that its reservation to article 5 of the Optional Protocol
excludes the Committee’s competence to consider the communication, the Committee
notes that the concept of the “same matter” within the meaning of article 5(2) (a) of the
Optional Protocol must be understood as referring to one and the same claim of the
violation of a particular right concerning the same individual. In this case, the author is
advancing free-standing claims of discrimination and equality before the law, which
were not, and indeed could not have been, made before the European organs.
Accordingly, the Committee does not consider itself precluded by the State party’s
reservation to the Optional Protocol from considering the communication.

Bearing in mind that, by becoming a party to the Optional Protocol, the State party has
recognised 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 recognised in the Covenant, and to provide an effective and
enforceable remedy in case a violation has been established, the Committee wishes to
receive, within ninety days, information from the State party about the measures taken
to give effect to the Committee's Views.