'rhe author of the cOlllllllmioation (initial J.etter dated 11 December 1985 and three subsequent lettof.s) iu Ruben Stalla Costa, a Uruguayan lawyer, residing in Montevideo, who claims to be a victim of violations of articles 2, 25 (c) and 26 of the International Cov(mant on Civil and Political Rights. ',I i ,i
'l'he 811thor states that he has aubmitted job applications to various governmental agencies in order to have aocess to llnd obta\1i a job in the public service in his country. ne huu allogedly been told that only former public 9mployees who were dismissed as a result of the a~plication of Institutional Act No. 7 of June 1977 are currently admitted to the public service. He refers in this connection to article 25 of Luw 15.737 of 22 March 1985, which provides that ~ll public employees who were dismissed as a result of the applioation of Institutional Act No. 7 have the right to be reinstated in their reopective poata.
~he autho~ claimo that artiole 25 of Law 15.737 gives more tights to former public employees than to other individuals, such aD the author himself, and that it is therefore disoriminatory and in violation of articles 2, 25 {~) and 26 of the international Covenant on Civil and Political Rights. I~:: : I
The author claims to have exhausted all internal remedies. He submitted an action for ampa~ on grounds of violation of his constitutional rights, in particular his right not to be discriminated against, before the Supremp. Court of Justice in June 1985. The Supreme Court dismissed the case.
In its lubmission un~~r rule 91, dated 24 July 1986, the State party roquouted that the ommnunioation be declared tnadmissib1e, explaining, in~er~, that Aot No. 15.737 of 22 Maron 1985, which thE) author olaill'led was discriminatory, had been passed with the unar,imouo Bl'pport of all Uruguayan pol itical patties .lie an instrument of national r,aconstruotion I -This Act ••• s~eks to reRtore the rights of those oitlzens who were wronc.;Zully treated by the de facto Gov81:nment. In addition to proclaiming a broad-ranging and generous amnosty, it provides under article 25, that all public officials dismissed on ideological, political or trade-union groundo Ot: for purely arbitrary reasons shall have the right to be reinotated in their jobo, to resume their career in tho public service and to receivo a ponaion. -The right of any oitiz&n to have aooess, on an equal footing, to public employment cannot be deemed to be impaired by virtue of thiH Act, the purposo of which la to provide redress. -Lastly, so far as exhaustion of remedies is concerned, there is 811 irrefutable presumption that a right has been violated or claimed beforehand. This is not the case here, as the oomplainant does not have any 3uch riqht but only the legitimate expectation, common to all Uruguayan oitizono, of boinq recruited to the pUblic sorvico."
In his comments on the Sta~e party's submission, the author argues, ~nter alia, that -the enactment of Act No. 15.737 did not have the aupport or all the politioal parties ••• It is also asserted that artiole 25 Gooks to provide redress and does not inft· ing", the right to aocess on an equal footinq to p09ts in the public service. I join in this spirit of reconciliation, like all pooplo in mv country, but redress will have to take the form of money.-
In further obaervations, dated 10 February 1987, the State party alucidatea Uruguayan legislation and practice regarding acce09 to public snrvicol -Mr. Stalla regards himsolf as havinq a subjective right to demand that a given course of aotion be followed, namoly, his admisaion to the pUblic service. Tho Government of Uruguny reiterates that Mr. Stalla, like any other citizen of the Republio, may legitimately aopire to enter the public service, but by no means has a SUbjective right to do s~. "For a Bubjentive right to eKist, it must be founded on an objective legal norm. Accordingly, any subjective right presumes tho existence of a possession [bienl or legal asset [valor juridiool attached to the sUbjoct by a bonJ of ownership established in objective law, BO that the person in quootion may demand that right or asset as his own. In the case in qUOStiOIl, Mr. 9talla has no suoh slIbjective right since the filling of public poats la the prerogative of the exeoutiv~ organs of the state, ot state enterpriso" or of munioipal authorities. Any inhabitant of the Repub~ic meetinq the requiremento laid down in the leg~l Nlrms (age requirement, physical and moral suitability, technical qualifioations for the post in que9tion) may be "Thls provision of the Constitution embodies the principle of the ~quality of all persons befoie the law. The Government of Uruguay wishes to state in this respect that to uphold Mr. Stalla's petition would unquestionably violate this principle by according hiM ~~eference over other university 9caduatea who, like Mr. Stalla, have a legitimate a9piration to secure such po~ts, without any distinction being made between them, other than on the basis of talent and virtue."
With regard to article 5~ of the Uruguayan Constit~tion, which provides that "the law Bhdl~l regulat~ the impartial and equitable distribution of labour", the State party comments. "This provision is one of the 'framewock rules', under which legal meaquros will be e..nacted developing the eStablished right t,t work (art. 53) and combining the existence of this right with good administration. "It will not have escaped the Committee that it is obviously impossible for the Government of uruguay, or of any other State with a similar system, to absorb all university graauates into the public service."
The SLate pArty further em~lasizes the necessity of "provision for redress made in the le..... _...ation enacted by the firsL elected Parliament after more than 12 years of mi:itary authoritarianism, legislation which has made it possible to restore the rights of thc..;.", public and private officials who were removed from their posto as a result of ideological pers~cution".
Before considering any claim contained in a comm~nication, the Human Righ~8 ~~mmittee must, in accordance with rule 87 of its provisional rules of proc~du~e, decide whet.her the communication is admissible under the Optional Prot~ol to the International Covenant on Civil and Political Rights.
'rhe numan Rights Committee theretore ascertained, as required under article 5, paragraph 2 (a), of the Optional Protocol, that the same matter was not being examined under a~other procedure of international investigation or settlement. Regarding the requirement of prior exhaustion of domestic remedies, the Committee concluded, based on the information before it, that there were no further domestic remedies which the author could resort to in the particular circumstances of his case. 'l'he Commit':ee noted in that connEction the author's statement that his action for ampa~o had been dismissed by the Supreme Court (see para. 2.3 a ,ve), as well as the State pal'ty's observation to the effect that ther~ COUld be no .emedy in th~ case as there had been no breach of a right under domestic law (see para. 4 ahove) •
With regard to the State party's submission that the communication should have been declared inadmissible on the ground that the author had no subjective dc,.ht in law to be ..lppointec) to a pUblic post, but only the legitimate aspiration to be so employed (see para. 4 and the State party's further elaboration in para. 6.1
The Conullit tee noted that the facts of the case, as set out uy the author and the Sht:e party, ware already sufficiently olear to permit. an examination on the merits. However, the Cornmitt.ee deemed it appropriat.e at t.hat junct.ul·e to limit itself t.o the procedural requirement of deoiding on the admissibility of .he communication. It noted that, if the State party should wish to add to its earlier submissions within six months of the " ansmittal to it of the decision on admissibility, the author of the communication would be given an opportunity to conunent th.'reon. If no further explanations or: statements were reoeived from the State party under artlcle 4, paragraph 2, of the Optional Protocol, the Committee would then proceed to ud<,~t ita final views in the light of th~ wr itten inforillllti,oll already submitted by the parties.
On 8 April 1987 the Human Rights Committee therefore decided t~at the communication was admissible and requested the State party, if it did not intend to make a further submission ~n the case under artic ...e 4, paragraph 2, of the Optiorlal Protocol, so to inform the Committee, to permit an early decision on the merits.
By note dated 26 May 1987, the State party informed the Committee that, in the light of ita prior Rubmisoion, it would 'Iot make a further submission in the case.
The Human Rights Conullittee has considered the merits of the present communication in the light of all information rnad~ available to it by the partie~, as provided in article 5, paragraph 1, of the Optional Protocol. The facts of the case are not in dispute.
The main question before the Committee is whether the author of the communication is a victim of a violation of article 25 (c) of the Covenant because, as he alleges, he has not been permitted to have access to public service on gellbral terms of equality. Tukinq into account the social and poUtical situation in UrlJguay during the years of military rule, in particular the dismissal of many t"lhl1c servants pursuant tu Institutional Act No. 7, the Committee understands the enactme~t of Act No. 15.737 of 22 March 1985 by the new democratic Government of Uruguay aa a measure of redress. Indeed, the Committee observes that Uruguayan pUblic officials dismissed on ideological, political or trade-union grounds were victims of violations of article 25 of the Covenant and as such are entitlod to ha\d an effective remedy u~ldor article 2, paragraph 3 (a), of the Covenant. The Act shoula be lookeii upon as such a remedy. The implementation of the Act, therefore. ,"fllIOt be regarded as incompl:itible with the referellce to "gerael'al terms of equality" III article 25 (c) of the Covenant. Neither can the implementation of the Act lJe le~luded as an invidious distinction under article 2, paragraph 1, 01' as prohibited discrimination within the terms of article 26 of the Covenant.