Communication No. 630/1995*
Submitted by: Mr. Abdoulaye Mazou
Alleged
victim: The author
State
party: Cameroon
Date
of communication: 31 October 1994 (initial submission)
The
Human Rights Committee, established under article 28 of
the International Covenant
on Civil and Political Rights,
Human Rights
Committee by Mr. Abdoulaye Mazou under the Optional Protocol to the
International Covenant on Civil and Political Rights,
Having
taken into account all written information made available to it
by the author of the communication and the State party,
Views
under article 5, paragraph 4, of the Optional Protocol
1. The author
of the communication, dated 31 October 1994, is Abdoulaye Mazou, a
Cameroonian citizen and professional magistrate, currently living
in Yaoundé, Cameroon. He claims to be the victim of a violation by
Cameroon of article 2, paragraph 3, article 14, aragraph 1, and article
25, subparagraph (c) of the International Covenant on Civil and Political
Rights. The Covenant and the Optional Protocol entered into force
for Cameroon on 27 September 1984.
The
facts as submitted by the author
2.1 Following
an attempted coup d'état in Cameroon in April 1984, the author,
who at that time was a second class magistrate, was arrested on 16
April 1984. He was suspected of having sheltered his brother, who
was wanted by the police for having taken part in the coup d'état.
The author was found guilty and sentenced by the military court in
Yaoundé to five years' imprisonment. According to the author, the
charges against him were false, and no evidence was submitted and
no witnesses were heard during the court proceedings. The trial was
held in camera. Note by the secretariat: The author has not
attached any documentation relating to the criminal trial. The communication
focuses primarily on the fact that he was not reinstated in his post.
2.2 While
the author was detained, the President of Cameroon signed a decree
on 2 June 1987 (No. 87/747) removing the author from his post as Secretary-General
in the Ministry of Education and Chairman of the Governing Council
of the National Sports Office. The Decree gave no reasons for the
action and, according to the author, was issued in violation of article
133 of the Civil Service Statute.
2.3 On 23
April 1990 the author was released from prison but placed under house
arrest in Yagoua, his birthplace, in the far north of the country.
Not until the end of April 1991, following the adoption of the Amnesty
Act of 23 April 1991 (No. 91/002), were the restrictions lifted. On
the date of transmission of the communication, however, the presidential
Decree of 2 June 1987 remained in force and the author had not been
allowed to resume his duties.
2.4 On 12
June 1991 the author requested the President to reinstate him in the
civil service. On 18 July 1991 he filed an appeal with the Ministry
of Justice requesting the annulment of the presidential Decree of
2 June 1987. Receiving no response, on 9 September 1991 he applied
for a judicial remedy to the administrative division of the Supreme
Court, asking it to find that the Decree was illegal and ought therefore
to be annulled. The author points out that although the Supreme Court
has regularly ruled that such decrees should be annulled, as of 31
October 1994 the case had still not been settled.
2.5 On 4
May 1992, Decrees No. 92/091 and No. 92/092, setting out the terms
of reinstatement and compensation of those covered by the Amnesty
Act, were issued.
2.6 On 13
May 1992 the author applied to the Ministry of Justice for reinstatement
in his post. Pursuant to Decree No. 92/091, his application was transmitted
to the committee responsible for monitoring reinstatement in the civil
service. On 12 May 1993 that committee issued an opinion in support
of the author's reinstatement in the civil service. According to the
author, however, the Ministry did not take action on this opinion.
2.7 On 22
September 1992 the author initiated proceedings before the administrative
division of the Supreme Court to attack Decree No. 92/091 and Decree
No. 92/092. In his view, the Decrees sought to block the full implementation
of the Amnesty Act of 23 April 1991 which, he claims, provided for
automatic reinstatement. This application was also pending at the
time of submission of his communication.
2.8 In his
initial communication the author stated that he had been out of work
since being released from prison. He claimed that he was being persecuted
for his opinions and on account of his ethnic origin. He added that
other persons who had benefited from the Amnesty Act had been reinstated
in their former posts.
2.9 At that
time, the author stated that, in view of the silence of the judicial
and political authorities, there were no further domestic remedies
available to him.
2.10 Since
the submission of his communication, however, the situation has improved
significantly for the author; he was reinstated in his post on 16
April 1998 in accordance with a Supreme Court order of 30 January
1997 annulling Decree No. 87/747, the Decree removing him from his
post.
The
complaint
3. According
to the author, the facts set out above constitute a violation of article
2, paragraph 3, article 14, paragraph 1, and article 25, subparagraph
(c) of the Covenant. The author is asking the Committee to urge the
State party to reinstate him in the civil service with retroactive
effect and to award him damages in compensation for the injury done
to him.
The
State party's observations
4. In a note
dated 13 May 1997 the State party informed the Committee that the
administrative division of the Supreme Court, by an order dated 30
January 1997, had annulled Decree No. 87/747 (removing the author
from his post).
The
Committee's decision regarding admissibility
5.1 At its
sixty-third session the Committee considered the admissibility of
the communication.
5.2 At that
time the Committee noted that the State party was not contesting the
admissibility of the communication but had informed the Committee
that the Supreme Court had annulled the Decree dismissing the author
from his post. At the same time, the State party had not indicated
whether the author had been reinstated in his post and if so, under
what conditions, or if not, on what grounds. The Committee therefore
decided that the communication should be considered on the merits.
5.3 Accordingly,
on 6 July 1998 the Committee decided that the communication was admissible.
The
State party's observations on the merits of the communication
6.1 By a
letter dated 10 August 2000 the State party transmitted its observations
regarding the merits of the communication.
6.2 The State
party reports that pursuant to the Supreme Court decision of 30 January
1997 the author of the communication was reinstated as a second class
magistrate in the Ministry of Justice as of 16 October 1998 and that
his salary was calculated retroactive to 1 April 1987, the date on
which he had been wrongfully suspended and subsequently dismissed.
The
author's observations on the merits of the communication
7.1 In a
letter dated 8 November 2000 the author transmitted his comments on
the State party's observations.
7.2 The author
first confirms that he was in fact reinstated in the Ministry of Justice
and that the administration had indeed paid him his salary dating
back to 1 April 1987.
7.3 However,
the author considers that the administration did not fully grasp the
significance of the Supreme Court decision of 30 January 1997. Given
that the effects of that decision were retroactive, the author believes
that he is entitled to have his career restored, i.e. to be reinstated
at the grade he would have held had he not been dismissed. Despite
his requests to the Ministry of Justice to that end, however, the
author has yet to be informed of a decision.
7.4 The author
is also requesting damages in compensation for the injury suffered
by him following his dismissal.
The
Committee's deliberations on the merits
8.1 The Human
Rights Committee considered the communication in the light of the
information provided by the parties, in accordance with article 5,
paragraph 1, of the Optional Protocol.
8.2 The Committee
learned that, pursuant to the Supreme Court decision of 30 January
1997, the author had been reinstated in his post and that his salary
had been paid retroactively from the date of his dismissal. However,
there seems to be no question that the State party neither honoured
the request for damages in compensation for the injury suffered nor
sought to restore the author's career, which would have resulted in
his being reinstated at the grade to which he would have been entitled
had he not been dismissed.
8.3 The Committee
notes, however, that the author chose to bring his complaint to the
Ministry of Justice by means of a letter, and submitted no evidence
showing that a judicial authority had effectively been asked to give
a ruling on the question of damages. This part of the communication
is inconsistent with the principle of exhaustion of domestic remedies
as set out in article 5, paragraph 2 (b) of the Optional Protocol
and must therefore be deemed inadmissible.
8.4 With
regard to the author's allegations that the State party violated both
article 2 and article 25 of the Covenant, the Committee considers
that the Supreme Court proceedings that gave rise to the decision
of 30 January 1997 satisfying the request that the author had made
in his communication were unduly delayed, taking place more than 10
years after the author's removal from his post, and were not followed
by restoration of his career on reinstatement, to which he was legally
entitled in view of the annulment decision of 30 January 1997. Such
proceedings cannot, therefore, be considered to be a satisfactory
remedy in the meaning of articles 2 and 25 of the Covenant.
9. Consequently,
the State party has an obligation to reinstate the author of the communication
in his career, with all the attendant consequences under Cameroonian
law, and must ensure that similar violations do not recur in the future.
10. Bearing
in mind that, by becoming a State party to the Optional Protocol,
the State party has recognized the competence of the Committee to
determine whether there has been a violation of the Covenant or not
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 to provide
an effective and enforceable remedy in case a violation has been established,
the Committee wishes to receive from the State party, within 90 days,
information about the measures taken to give effect to its Views.
The State party is also invited to publish the Committee's Views.
_________________
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Prafullachandra
Natwarlal Bhagwati, Ms. Christine Chanet, Mr. Maurice Glèlè Ahanhanzo,
Mr. Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer
Lallah, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin,
Mr. Ivan Shearer, Mr. Hipólito Solari Yrigoyen, Mr. Ahmed Tawfik Khalil,
Mr. Patrick Vella and Mr. Maxwell Yalden.
[Adopted
in English, French and Spanish, the French text being the original
version. Subsequently to be translated also in Arabic, Chinese and
Russian as part of the Committee's annual report to the General Assembly.]
