1. The author
of the communication is José Maria Gómez Navarro, a Spanish citizen
living in Cartagena, Spain. He claims to be a victim of violations
by Spain of articles 14, paragraph 1; 25, paragraph (c), and 26 of
the International Covenant on Civil and Political Rights. The Optional
Protocol entered into force for Spain on 25 April 1985. The author
is represented by counsel, Mr Jose Luis Mazón Costa.
Facts
as submitted by the author:
2.1 The author,
who has been a civil servant for twenty three years in the Administrative
Service (Cuerpo Administrativo), holds a law degree and has
held posts of certain responsibility. He complains that he has not
been promoted; on 13 September 1991 he requested a promotion, which
was denied him, by decision of the Ministry of Public Affairs (Ministerio
para las Administraciones Públicas), on 5 November 1991, on the
ground that he had failed one of three competitive exams.
2.2 The author
complains that in the promotion policy for Spanish civil servants,
neither merits nor professional ability are taken into account. He
contends that those are two criteria which should be observed by the
authorities when promoting civil servants, and claims that this is
a requirement imposed by the 1978 Spanish Constitution (article 23.2).
2.3 The author
claims that he suffered discriminatory treatment in 1976, when the
Government enacted a Decree (Decreto-Ley 14/1976) which created
the Treasury Service Section (Cuerpo de Gestión de la Administración
del Estado). By this, all administrative service civil servants
who were then serving in the Treasury (Ministerio de Hacienda)
were automatically integrated into the newly created Treasury Service
Section. As a result, the author and those colleagues who at that
time were not working in the Treasury, were not integrated into the
new department. The author claims that the 1976 Decree had disastrous
consequences for his career.
2.4 In 1984,
the Public Service Amendment Act N° 30/1984 (Ley 30/1984 de Reforma
de la Función Pública) was enacted. This Act was the legal basis
for the promotion of a wide range of civil servants. The implementary
regulations introduced by the Amendment Act established different
criteria which governed the promotion of various categories of civil
servants.
2.5 The author
alleges that he was unjustly discriminated against, as other civil
servants were promoted without sitting competitive examinations,
while he had to sit three different examinations. He also claims that
while some civil servants were promoted without having to prove that
they had a college degree, others, like himself, were required to
provide proof of college education.
2.6 After
the denial of his promotion in 1991 the author filed an administrative
complaint (recurso contencioso administrativo) with the High
Court (Audiencia Nacional) in Madrid. On 5 December 1994, the
High Court (Audiencia Nacional) upheld the decision of the
Ministry of Public Affairs; the Court was of the opinion that the
Ministry of Public Affairs decision was in total conformity with law.
On 13 March 1995, the author's further appeal (recurso de amparo)
to the Constitutional Court was declared inadmissible.
The
complaint:
3.1 Counsel
contends that the facts as described above constitute a violation
of articles 25 (c) and 26 of the Covenant.
3.2 The author
notes that he passed the first two parts of the competitive examination
but failed the third, which in his opinion was unnecessary. He claims
that he was discriminated against because in the following year, the
third phase of this examination was abolished. To him, this situation
constitutes a violation of his right to have access, on general terms
of equality, to public service in his country, as provided for in
article 25 (c) of the ICCPR.
3.3 Counsel
further claims a violation of article 14, paragraph 1, in respect
of the denial of his client's appeal (recurso de amparo) by
the Constitutional Court. In this respect, he alleges that the judges
on the Constitutional Court do not themselves decide the question
of inadmissibility, but that decisions are routinely prepared by a
team of lawyers (cuerpo de letrados) who work for the Constitutional
Court, and that the judges simply sign the decisions. Counsel claims
that the lack of clear language in the Constitutional Court's decision,
also implies a violation of article 14, paragraph 1. Finally, Counsel
claims that the author was denied a fair hearing by the Constitutional
Court when it dismissed his request for amparo, as only the Public
Prosecutor's Office (Ministerio Fiscal) is given the possibility
to appeal (recurso de suplica).
Issues
and proceedings before the Committee:
4.1 Before
considering any claims 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.
4.2 The Committee
considers that the author's allegations of discrimination and denial
of his right to access, on general terms of equality, to public service
in his country have not been substantiated for the purposes of admissibility:
the allegations before the Committee do not disclose the link between
these and how the author's rights under articles 25 (c) and 26 of
the Covenant might have been violated. In this respect, therefore,
the Committee concludes that the author has failed to advance a claim
within the meaning of article 2 of the Optional Protocol.
4.3 With
regard to the author's claim of a violation of article 14, paragraph
1, of the Covenant in respect of the dismissal of his appeal by the
Constitutional Court, the Committee has carefully examined the material
submitted by the author. It considers that the author's counsel does
not substantiate, for purposes of admissibility, how the fact that
the Office of the Public Prosecutor (Ministerio Fiscal), in
defence of the general interest of the public, may appeal against
the rejection of a recurso de amparo or how the way in which
the Constitutional Court organises its agenda and conducts its hearings
would constitute a violation of the author's right to a fair hearing
within the meaning of article 14, paragraph 1, of the Covenant.
5. The Human
Rights Committee therefore decides:
(a) that the communication
is inadmissible under article 2 of the Optional Protocol;
(b) that this decision
shall be communicated to the author, his counsel and, for information,
to the State party.
________________
*The following
members of the Committee participated in the examination of the communication:
Mr. Nisuke Ando, Mr. Prafullachandra N. Bhagwati, Mr. Thomas Buergenthal,
Ms. Christine Chanet, Lord Colville, Ms. Elizabeth Evatt, Ms. Pilar
Gaitan de Pombo, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia
Medina Quiroga, Mr. Fausto Pocar, Mr. Martin Scheinin and Mr. Maxwell
Yalden.
[Adopted
in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian
as part of the annual report to the General Assembly.]
