Communication No. 865/1999
Submitted by: Mr. Alejandro
Marín Gómez (represented by counsel, Mr. José Luis Mazón Costa)
Alleged victim: The author
State party: Spain
Date of communication: 20 July 1998 (initial submission)
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 2001,
Having concluded its
consideration of communication No. 865/1999 submitted to the Human Rights
Committee by Mr. Alejandro Marín Gómez 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,
Adopts the following:
Views under article 5, paragraph 4, of the Optional Protocol
1. The author of the communication dated 20 July 1998 is Mr. Alejandro Marín
Gómez, a Spanish citizen who claims to be the victim of violations by Spain
of articles 14, paragraph 1, 25 (c) and 26 of the International Covenant
on Civil and Political Rights. He is represented by counsel.
The facts as submitted
by the author
2.1 The author joined the
Guardia Civil on 1 March 1981, when he was 19, (1) and remained
on active duty until 15 November 1990, when he went on "active reserve"
status owing to the loss of psychological and physical fitness. (2)
On 15 November 1994, when he had been in the active reserve for four
years, the District Military Medical Court handed down a ruling unanimously
recognizing him as fit for active duty. (3)
2.2 In a decision dated 28
April 1995, the Ministry of Defence rejected the application the author
made to return to active duty in February 1995. The decision was based
on the fact that "the transitional provision in question, which allows
a return to active duty, does not apply to the person in question because
the reason for his change to active reserve status was not that referred
to in article 4, paragraph 1 (a), of Act No. 20/1981, (4) but,
rather, psychological and physical unfitness, as referred to in article
4, paragraph 1 (d)".
2.3 The author applied for
judicial review against the decision by the Ministry of Defence dated
28 April 1995; the application was ruled on by the Fifth Administrative
Law Division of the National High Court on 28 February 1997, which upheld
the decision by the Ministry of Defence. That Division based its decision
on the fact that, unlike the acceptance of the return to active duty of
persons who were on reserve status for reasons of age, the rejection of
the return to active duty by persons who were on active reserve status
owing to the loss of psychological and physical fitness, which was later
recovered, does not involve a violation of the right to equal access to
public service. The National High Court concluded that the two situations
are different and that there is thus no discrimination.
2.4 The author filed a remedy
of amparo, which was rejected by the Constitutional Court on 3
November 1997 on the grounds that the ruling in question is not contrary
to the principle of equality, since it deals with different problems on
the basis of different criteria.
3.1 The author considers that
the rights provided for in articles 25 (c) and 26 of the Covenant were
violated when he was prevented from returning to active duty in the Guardia
Civil after being declared fit by a Medical Court following the illness
which had led to his change to reserve status, since reincorporation is
allowed for civil guards who were on active reserve status for reasons
of age. In this regard, the author maintains that the second transitional
provision of Act No. 28/1994 (5) creates discrimination. It is
also contrary to the right to access to public service in the Guardia
Civil, which must be performed in conditions of equality.
3.2 The author considers it
contrary to articles 14, paragraph 1, and 26 of the Covenant that, in
the amparo proceedings in the Constitutional Court, he was denied
the possibility of appearing without being represented by counsel, (6)
since article 81.1 of the Court's Organizational Act enables persons who
hold law degrees to appear in amparo proceedings without counsel,
whereas persons who do not hold law degrees must be assisted by counsel.
Observations by the
State party on admissibility
4. In its observations of
19 June 1999, the State party contests the admissibility of the communication
on the grounds that the author was always assisted by a lawyer and a counsel
and never complained of being a victim of any violation. Consequently,
the author cannot claim that he is a victim of a violation, since he never
made such an allegation before the Constitutional Court.
Comments by the author
5.1 In his comments of 1 September
1999, the author replies to the observations by the State party on admissibility
and makes it clear that, on 3 April 1997, he requested the Constitutional
Court to exempt him from using counsel, in accordance with article 2,
paragraph 3, of the Covenant and article 14 of the Spanish Constitution.
5.2 The Constitutional Court
rejected that request on 21 April 1997, warning the author that, if he
did not appear with counsel within 10 days, the application would be declared
inadmissible and dismissed.
Observations by the
State party on the merits
6.1 In its observations of
5 October 1999, the State party, referring to the alleged violation of
article 25 (c), maintains that, since the author joined the Guardia Civil
as an official and receives the salary of a Guardia Civil officer, it
is obvious that he has not been denied access to public service. It considers
that the author is mixing up "access to public service", a right
guaranteed by article 25 (c) of the Covenant, and changes of administrative
situation within the public service, which are not covered by the Covenant.
What the case brought by the author thus involves is not access to public
service, but, rather, a change from one administrative situation to another
within the public service.
6.2 With regard to the allegations
under article 26 of the Covenant, the State party contests the fact that,
according to the author, changing from active duty status is allowed when
the change to reserve status took place for reasons of age, not for reasons
of illness. According to the State party, the author has mixed up the
legal regulations and it explains that active reserve status, as provided
for by Act No. 20/1981, disappeared with Act No. 28/1994 of 18 October,
whose seventh transitional provision states that "Guardia Civil personnel
who are on active reserve status shall be moved to reserve status".
It is also not possible to change from reserve status to active duty status.
6.3 Act No. 20/1994 entered
into force on 20 January 1995. According to the State party, the author
was declared fit for active duty on 15 November 1994 and he was informed
of the agreement of the Medical Court on 15 December 1994. Until 20 January
1995, the author was still on active reserve status and could have requested
his return to active duty, but he did not do so until 23 February 1995,
when he was still on reserve status and the preceding paragraph was applicable
6.4 A temporary exception
was made to this prohibition on changing from reserve to active duty and,
according to the State party, the author fails to mention it. In accordance
with Act No. 20/1981, the Guardia Civil could change to active reserve
status for reasons, inter alia, of age or illness. In accordance
with Act No. 28/1994, active reserve status became reserve status and
the Guardia Civil could change to reserve status, inter alia, for
reasons of age or for reasons of illness. However, the author fails to
say that, in addition to replacing active reserve status by reserve status,
Act No. 28/1994 delays the change to reserve status until age 56. (8)
This delay in the age for changing to reserve status affects only those
who changed or considered changing to the former active reserve status
for reasons of age.
6.5 The State party concludes
that the law does not discriminate between civil guards on reserve status
for reasons of illness or age, but merely replaces active reserve status
by reserve status and raises the age for changing to reserve status. Moreover,
this delay, from 50 to 56 years, affects all those who changed or were
considering the possibility of changing to reserve status when they reached
age 50. For this purpose, the law allows them one month either to request
a change to reserve status, even though they have not reached age 56,
or to return to active duty from reserve status, which they went on when
they reached age 50 and which the law delays until age 56.
Comments by the author
on the merits
7.1 In his comments dated
28 January 2000, the author replies to the State party's allegations as
to the merits and reaffirms, with regard to article 25 (c) of the Covenant,
that, although he was on active reserve status, he was prevented from
carrying out the functions of a civil guard. He also emphasizes that the
case brought by the Ministry of Defence is clearly discriminatory, since,
if he had been on active reserve status for reasons of age, he would be
able to return to active duty, but he cannot do so because he went on
active reserve status as a result of an illness and even though he was
less than 50.
7.2 With regard to article
26, the author states that the decision by the Ministry of Defence refers
to the second transitional provision of Act No. 28/1994 and that that
provision is not applicable to him because he changed to active reserve
status not for reasons of age, but because of psychological and physical
unfitness, as already indicated in paragraph 2.2. The author therefore
considers that the transitional provision in question is discriminatory,
since there is no difference in treatment based on objective and reasonable
Issues and proceedings
before the Committee
8.1 Before considering any
claim contained in a communication, the Human Rights Committee must, in
accordance with rule 87 of its rules of procedure, decide whether or not
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 The Committee takes note
of the State party's observations on admissibility, in which it claims
that the author never objected in the national courts to the need for
counsel. The Committee nevertheless considers that the fact that the author
requested the Constitutional Court to exempt him from using counsel proves
that he did exhaust this remedy.
8.4 With regard to the allegations
of the violation of articles 14, paragraph 1, and 26 of the Covenant on
the grounds that the author was denied the possibility of appearing before
the Constitutional Court without being represented by counsel, the Committee
considers that the information provided by the author does not describe
a situation which comes within the scope of those articles. The author
claims that it is discriminatory not to require persons holding law degrees
to appear before the Constitutional Court through counsel when persons
who do not hold law degrees must meet this requirement. The Committee
refers to its jurisprudence (9) and recalls that, as the Constitutional
Court itself argued, the requirement of counsel reflects the need for
a person with knowledge of the law to be responsible for handling an application
to that Court. As to the author's allegations that such a requirement
is not based on objective and reasonable criteria, the Committee considers
that the allegations have not been properly substantiated for the purposes
of admissibility. Consequently, this aspect of the communication is inadmissible
under article 2 of the Optional Protocol.
8.5 The Committee declares
the rest of the communication admissible and will consider it as to the
Consideration as to
9.1 The Human Rights Committee
has considered the present communication in the light of the information
provided by the parties, in accordance with article 5, paragraph 1, of
the Optional Protocol.
9.2 With regard to the author's
allegations that he is a victim of a violation of article 26 of the Covenant,
the Committee notes that he was declared fit for active duty on 15 November
1994 and that he was notified of the Medical Court's agreement on 15 December.
However, the author did not request a transfer to active duty at that
time. The Committee notes that new Act No. 20/1994 entered into force
on 20 January 1995 and that it eliminated the "active reserve status"
category, leaving only the "reserve status" category, which,
according to article 103 of Act No. 17/1989, does not allow military personnel
on reserve status to change to active duty. The Committee notes that the
author was affected by Act No. 20/1994 only to the extent that, as of
20 January 1995, he could not request a transfer to active duty. The Committee
also notes that, since the author did not take the opportunity to request
a transfer to active duty prior to 20 January 1995, the situation is of
his own making, not that of the State party. The Committee takes note
of the author's allegation that Act No. 20/1994 is discriminatory because
it allows a return to active duty only for persons who went on reserve
status for reasons of age. However, the Committee considers that this
Act is not discriminatory, since it merely extends the retirement age
to 56 years and allows persons who went on active reserve status at age
50 to apply to return to active duty, as provided for by law, and then
base themselves on the new age to change to reserve status. Consequently,
the Committee takes the view that the facts as submitted by the author
do not disclose a violation of article 26 of the Covenant.
9.3 For the same reasons as
those cited in the preceding paragraph, the Committee considers that there
has been no violation of the right to equality of access to public service,
as provided for in article 25 (c) 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 by Spain of any of the provisions
of the Covenant.
* The following members of the Committee participated in the examination
of the present communication: Mr. Nisuke Ando, Mr. Prafullachandra Natwarlal
Bhagwati, Ms. Christine Chanet, Mr. Maurice Glèlè Ahanhanzo, Mr. Louis
Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Ms. Cecilia Medina Quiroga,
Mr. Rafael Rivas Posada, Mr. Martin Scheinin, Mr. Ivan Shearer, Mr. Hipólito
Solari Yrigoyen, Mr. Ahmed Tawfik Khalil and Mr. Maxwell Yalden.
** The text of an individual
opinion signed by one Committee member, Ms. Christine Chanet, is appended
to this document.
[Adopted in English, French
and Spanish, the Spanish 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.]
Individual opinion by
Ms. Christine Chanet (dissenting)
I disagree with the Committee's decision taken on the grounds given in paragraph
The privilege allowed to law
graduates under the Spanish civil procedure, which does not require them
to be represented by counsel in court proceedings, in my view raises prima
facie a question regarding articles 2, 14 and 26 of the Covenant.
It is possible that the State
party may put forward convincing arguments to justify the reasonableness
of the criteria applied, both in principle and in practice.
Only an examination of the
case on the merits, however, might have yielded the answers required for
any serious consideration of the case.