The
facts as submitted by the author
2.1
On 17 February 1992, Ibrahim Mahmoud arrived in the Slovak Republic
for the purpose of studying at the Pharmaceutical Faculty of
Comenius University in Bratislava. He was granted a scholarship
by the Ministry of Education and a residence permit for the
duration of his stay.
2.2
On 10 March 1998, the author gave up his studies because of
ill health. The author refers to two different sets of proceedings,
the conduct of which he claims violated his rights under the
Covenant. The first relates to the decision to annul his residence
permit and requesting him to leave the Slovak Republic and the
second relates to the refusal to grant him refugee status.
Residence
Permit
2.3
On 16 March 1998, the Border and Alien Police Department of
the Bratislav Regional Headquarters, issued a decision, annulling
the author's residence permit. The author was not served with
this decision. It was delivered by means of a public decree
only and as he was unaware of the decision, the author was not
able to challenge it by filing an appeal.
2.4
On 29 April 1998, the Border and Alien Police Department of
the Regional Police Corps Headquarters, issued another decision,
prohibiting the author from re-entering the Slovak Republic
before 29 April 2001 and ordering him to leave the Slovak Republic
by 15 May 1998. The author's appeal of this decision to the
Ministry of the Interior, Police Corps Presidium, Border and
Alien Police Department was dismissed.
2.5
The author filed a motion with the Supreme Court requesting
it to examine the lawfulness of the decision of the Ministry
of the Interior. The Supreme Court considered the case in closed
session and informed the author and his lawyer that its judgement
would be delivered on 28 January 1999. The author and his lawyer
were unable to attend delivery of the judgement as when they
arrived the court was being evacuated because of a bomb scare.
The author disputes the statement in the text of the Supreme
Court judgement that the judgement itself was delivered publicly.
The author was served with the written judgement of the Supreme
Court on 17 March 1999.
2.6
The author lodged a petition with the Constitutional Court of
the Slovak Republic requesting the Court to decide on the constitutionality
of the Supreme Court's failure to publicly deliver the judgement.
It appears that this was the only ground invoked by the author
in his appeal to the Constitutional Court.
2.7
On 27 October 1999, the Constitutional Court determined that
the procedure used by the Supreme Court did not violate the
rights of the author as the judgement was delivered publicly.
This decision was served on the author's lawyer on 5 November
1999.
Asylum
Procedure
2.8
On 16 May 1998, (the day after the author was supposed to have
left the Slovak Republic) he applied for refugee status to the
Migration Office of the Interior Ministry of the Slovak Republic.
His application was dismissed by a decision dated 8 February
1999, as the author failed to prove that there was a well-founded
fear of persecution because of his race, religion, nationality,
membership in a particular social group, or political opinion
if he were to be returned to his country of origin. In addition,
it doubted the credibility of the reasons for which the author
was seeking refugee status.
2.9
The author appealed this decision to the Minister of the Interior
who examined the case on the basis of written documentation
only. The appeal was dismissed by a decision dated 25 May 1999.
2.10
The author then filed a complaint
with the Supreme Court to review the legality
of the
decision. The
author was present
for the "hearing" of the case on 8 September 1999 but was not
accompanied by counsel. The judge asked the author if he wished
"to express his opinion on the complaint". The author requested
an interpreter but was refused on the basis that "facts were
not to be proven" in this instance and therefore the request
for an interpreter was unnecessary.
The Supreme Court dismissed the
complaint and
the delivery of the decision
was made in Slovak.
The author was served with this
decision on 8 October 1999. The
author claims to
have exhausted all domestic
remedies in
respect of the asylum procedure.
2.11
On March 2000, proceedings were initiated to deport the author
from the Republic of Slovakia. No further information has been
provided as to the status of these proceedings.
The
complaint
3.1
In relation to the decision by the Border and Alien Police Department
to annul the author's residence permit, the author states that
when the authorities became aware that his whereabouts were
unknown he should have been appointed a guardian, under section
16, paragraph 2 of the Administrative Procedure Act No. 71/1967
Coll. If he had been appointed a guardian, the author argues
that he would have been in a position to challenge this decision.
3.2
The author claims that the State party violated his right to
a public delivery of the Supreme Court judgement and the right
to be present during such a delivery under articles 2,14, paragraph
1, and 26 of the Covenant. As formulated by the author, his
complaint only relates to the delivery of the Supreme Court
judgement and not to the decision prohibiting him from re-entering
the Slovak Republic and ordering him to leave.
3.3
The author claims that he did
not receive a fair "hearing" in
the Supreme Court as he was refused an interpreter. This decision
violated his right to have this "trial" conducted in a language
he understands, his right to
equal legal protection without
discrimination and the
principle of equality
of arms according
to articles 2, article 14, paragraph
1 and article 26 of the Covenant.
In addition,
he complains that
the appeal to the Minister
of the Interior is based on documentation
only and does not provide the
complainant with an opportunity
to make oral representations.
Finally, he states that the State
party
incorrectly evaluated the facts
and evidence of his case.
Observations
by the State party on admissibility
4.1
On the facts of the case the State party states that Ibrahim
Mahmoud was expelled from Cormenius University and as the purpose
for his residence permit ceased to exist he was requested to
leave the Slovak Republic by 15 May 1998. In addition, the State
party adds that he was carrying out an unauthorised activity
within the terms of his permit by operating a travel agency
from 4 December 1997.
4.2
With respect to the author's
complaint that the Supreme Court did not deliver
its judgement
publicly, the
State party contends
that both the Supreme Court and
Constitutional Court based their findings on
written evidence
submitted
by the Ministry of Justice
which confirmed that, although
the building was evacuated because of a bomb
scare, it did
remain in session
for part of the morning.
In addition, the State party
states that the delivery of the judgement in
this case was
recorded in the
court files. In the
State party's view, it is not
the court's role to ensure that the parties to
court proceedings
are
present when judgements
are announced and their absence
in court at the time of delivery does not constitute
a
reason for not
delivering it. The fact
that the author could not enter the building because of the
bomb scare cannot be considered
a violation of his rights.
4.3
On the issue of the asylum proceedings, according to the State
party, the Minister of the Interior dismissed the appeal on
the grounds inter alia that, the author had acted "at
variance with valid laws" of the Slovak Republic on a number
of occasions and, he failed to
justify his fear of persecution
if returned to
his country of origin.
In addition, the Minister
formed the belief that the author
intended to secure his residence
in the Slovak Republic
to continue
his business activities.
4.4
With respect to the author's
allegation that he did not receive an interpreter
during
the Supreme Court
proceedings, the State
party argues that on this date
the Supreme Court only announced its judgement
and that no
oral evidence
was heard. Consequently,
the court took the view that
an interpreter was unnecessary. Court rulings
are always delivered
in the official
language
without translation into the
mother tongue of a party to the proceedings.
In addition, the
State party
argues, that the author
himself did not avail himself
of an interpreter during the first instance of
the proceedings
because, as
he is alleged to have
stated in the interview, he has
a good command of Slovak. The State party also
highlights
the fact
that Ibrahim Mahmoud has
resided in the Slovak Republic since 1992 and did not apply
for asylum until 1998.
4.5
In any event, the State party
contends that the author has not exhausted domestic
remedies
in either set
of proceedings and
requests the Committee to declare
the case inadmissible. Firstly, under s243(e)
and (f)
of the Code of Civil
Procedure the author
had the option of making an extraordinary
appeal to the "Prosecutor
General", if he believed that a valid ruling of a court violated
the law. Under this procedure,
the State party explains that
if the Prosecutor General
finds that the law
has been violated
he (the Prosecutor General) may
lodge an extraordinary appeal
with the Supreme Court.
In the author's case,
a different panel
of the Supreme Court, to the
one that examined his case in
the third instance, would have
examined such
an extraordinary appeal.
If the Supreme Court finds that
the law
has been violated, it may dismiss
the ruling of the judgement
in question and return
the case to the court that made
the incorrect ruling for a further
hearing. The State
party adds that
the submission of a complaint
to the Prosecutor General under
this extraordinary appeals procedure
is not a bar to initiating
proceedings at the Constitutional
Court.
4.6
Secondly, and with respect to the author's claim for refugee
status, the State party argues that the author could have initiated
proceedings in the Constitutional Court in accordance with article
130(3) of the Constitution. The State party explains that such
proceedings may be initiated against Court decisions as well
as administrative decisions like the decision to refuse the
author refugee status. The right to asylum (article 53 of the
Constitution) and to proceed before the court in one's mother
tongue is protected under the Constitution.
4.7
According to the State party, if the Constitutional Court decides
for the author it states in its judgement which constitutional
right/s have been violated and through which action, proceedings,
or decision of a state authority this violation occurred.
Counsel's
comments on admissibility
5.1
The author contests the State party's contention that the Supreme
Court merely delivered a judgement on the asylum proceedings
and reiterates his view that this was a hearing in which both
participants took part. He confirms that he had not requested
interpretation facilities at the first instance hearing as he
states that his knowledge of Slovak was sufficient to express
himself on personal but not legal issues.
5.2
With respect to the author's
failure to make an extraordinary appeal to the
Prosecutor
General, the author states
that as
the initiation of such proceedings
depends exclusively on the Prosecutor and not
on the
author alone, this
remedy is neither
available nor accessible to the
author. Counsel refers to the opinion of Daniel
Svaby
who gave a lecture
in Bratislava on
the exhaustion of domestic remedies
under article 26 of the European Convention on
Human
Rights. In
his lecture, he refers
to a case of the European Court
of Human Rights, H v. Belgium (No. 8950/80, judgement
16.5 1984, DR
No. 37, P.5), in which
it was decided that domestic
remedies had
been exhausted despite the fact that
an application could have been
made to the Attorney
General as the initiation of such proceedings depended exclusively
on the Prosecutor and not on
the complainant.
5.3
On the issue of non-exhaustion
of domestic remedies by the author's failure
to initiate
proceedings in
the Constitutional Court,
the author argues that such a
remedy would have been ineffective. He states
that the Constitutional
Court
cannot investigate valid
decisions of judicial bodies,
even if they violate human rights, as this would
mean the
infringement
of the independence of judicial
bodies guaranteed by the Constitution.
The author refers to the remarks of
a Slovakian judge of the
Constitutional Court,
made during an expert seminar
in Bratislava in 1995. Nor can the Constitutional
Court prevent
the continuation
of an unlawful
decision by a court or State
administrative body. A decision of the Constitutional
Court
in favour
of the complainant can
only be used as a "new legal fact" in a case and may eventually
lead to new proceedings but it
does not represent an effective
remedy against the
violation of human
rights. In addition, even
if all the legal requirements
have been met, the Constitutional
Court is not obliged
to consider a
case.
Issues
and proceedings before the Committee
6.1
Before considering any claims in the communication, the Human
Rights Committee must, according to article 87 of the rules
of procedure, decide whether or not it is admissible under the
Optional Protocol to the Covenant.
6.2
On the issue of the decision by the Border and Aliens Police
to annul his residence permit and the author's complaint that
he was never informed of this decision, the Committee is of
the view that this decision was superseded by the decision of
29 April 1998, ordering the author to leave the Slovak Republic,
and therefore finds that it is unnecessary to consider it further.
6.3
With respect to the author's
complaint regarding delivery of the Supreme Court's
judgement
on the
refusal to grant him a
residence permit, the Committee
notes that the author is not contesting the procedure
of
the actual hearing
of his appeal,
in which he was represented by
counsel. He argues, instead, that because the
court building
was cleared
due to the bomb
scare, the delivery of the judgement
was not public, and that his rights were violated
as he was prevented
from being present
when the formal judgement was
delivered.
In this connection, however, the Committee
notes that the
author concedes that at
the time the judgement was delivered,
the hearing of his appeal had already been completed
and that
the judgement was subsequently
served on him personally. In these circumstances, the author
has failed for the purposes of
admissibility to show that his
rights under articles
14 and 26 of the Covenant
were violated.
Consequently, this part of the
communication is inadmissible
under article 2 of the Optional Protocol.
6.4
In relation to the proceedings on the author's asylum application,
the Committee notes the State party's contention that the author
has not exhausted domestic remedies as he did not initiate proceedings
in the Constitutional Court, and that the rights allegedly
violated by the State party may
be invoked in such proceedings.
While the author has
argued that the
Constitutional Court cannot
interfere in judicial decisions,
he has conceded that that court
could make a decision
creating "a new legal fact" which could
lead to new proceedings. Furthermore,
the author's argument stands
in contradiction
to the information
he provided that
his petition, against the decision
of the Supreme Court regarding
public delivery
of its judgement,
was dealt with on its merits
by the Constitutional Court.
Accordingly, the Committee is
of the opinion that the
author has not refuted
the State party's
argument that he could have challenged
the Court's decision before the
Constitutional Court on the grounds
that he was denied
an interpreter. It is therefore
of the
opinion that domestic
remedies have not been exhausted in this regard and this claim
is inadmissible under articles 2, and 5, paragraph 2(b) of the
Optional Protocol.
7 The
Committee therefore decides:
a)
that this communication is inadmissible under articles 2, and
5, paragraph 2(b) of the Optional Protocol;
b)
that this decision shall be transmitted to the State party and
to the author.
______________
* The following members of the Committee participated in the
examination of the present communication: Mr. Abdelfattah Amor,
Mr. Nisuke Ando, 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 English 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.
