The Human Rights Committee ther.efore decides: ' (a) That the communication is inadmis~ible; (b) That this decision shall be communicated to the State party and to the author.
March 1987 (date Qf initial letter) The Human Rights Committee, established under article 28 Qf the International Covenant Qn Civil and POlitical Rightb, Meeting Qn 11 July 1988, AdQpts the following: Decision on admissibilitz
The authors Qf the communication (initial letter Qf 9 March 1987 and further letters Qf 10 SeptembAr 1987 and ~ April 1988) are A. and S. N., Porwegian citizens residing in Alesund, writing on their own behalf and on behalf of their daughter S. born in 1981. They claim to be victims of a viQlbtiQn by Norway of article 18, paragraphs 1, ~ and 4, and article 26 of the International CQvenant Qn Civil and PQlitical Rights. They are represented by cQunsel.
The authQrs state that t e ,'l'Qrwegian Day Nurseries Act Qf 1975 as amended in 1983 cQntains a clause prQvi~ n~ that '·the day nur;:.', ry shall help tQ give the children an upbringing in harmo:':i' with basic Christian values'·. The authQrs are -246- alternativ~ but to send their children to these nur.eries. The author. quote from the 1984 Requlation. issued by virtue of the Day Nur.erie. Act and from the "GuideUne. for implementing the object clau.e of the Day Nur.erie. Act", which read in parta "the Christian te.tivals are widely celebrated in our culture. Therofore, it is natural that day nurseries should e.plain the meaning of the.e f••tivals to the children ••• Chri.tian faith and teachings .hould play only a minor role in everyday life at the day nur.ery." The Humaniet and Ethical Union, an organisation of non-believers, has rai.ed strong objections again.t the. Day Nur.erie. Act and it. implementing regulation•• Z. In the pre.ent case, S.'s parent. object that when .he lir.t attended the day nur.ery, grace was .ung at all meals. On taking the matter up with the day nur.ery staff, they were told that their daughter did not have to .ing with the other children, but the parents argue that it would have been difficult for a lix-year-old child not to do the same thing. as all the other children. Z. The parent. claim that the Day Nurseries Act, in conjunction with it. Regulation. and Guideline., and the ensuing practice are inconmistent with article 18, paragraph 4, of the Covenant, Which require. States parties to respect the liberty of parent. to give their children a religiou. and moral upbringing in accordance with their own conviction.. Moreover, they refer to article 26 ol the Covenant, which provides that legislation shall prohibit all torm. of discrimination and shall .ecure for everyone equal and eftective protection against discrimination on ground. of, among other things, religion.
With re.pect to the requirement of the exhaustion of dome.tic remedies under article 5, paragraph 2 (b), of the Optional Protocol, the authors rely on their understanding that this requirement "shall not be enforced in ca.es where employing such remedi.s would take an unreasonably long lime". They state that they have not lubmitted their complaint to any Norwegian court and claim that there are no effeative remedies available, lince S. would only attend day nursery until AUQust 1981. Moreover. they doubt whether "the United Nations Covenant would be applied to thia national issue by a Norwegian court of law. Therelore it would be a waate of time and money. and alao an extra strain on complainanls, if the iasue were firat to be tried before Norwegian courts".
The Human Rights Committee has ascertained that the same matter i8 not being Ixamined under another procedure of international investigation or settlement.
By a decision of 8 April 1981, the Human Rights Committee transmitted the communication under rule 91 of the provisional rules of procedure to the State party, requelting information and observations relevaht to the question of the admissibility ol the communicatio&l. On 23 October 1987. the Committee's Woding Group adopted a second decision under rule 91, requesting the State party to provide more specific information concerning the remedies available to the author6 . •• 1 In its initial submission under rule 91. dated 14 JUlj 1987. the State party objects to the admissibility of the communication on the grounds that the aut.hors
The State partr points out that the requirement of article 5, paragraph 2 (b), i. ba.ed on both pra~ticality and the principle of State 8overeignty. The authors of the communication, however, have not submitted their ca5e to ~ny Norwegian court. It la l,lpen to them to challenge the application of the Day Nurseries Act and Regulations in the District and City Court in the first instance, the High Court (Appeals Division) in the second in~tance and f~nally the S~preme Court in the third instance. SUbject to per~\8sic~ being granted by the Supreme Court's Appeall Selection ~ommittee, the case could be appealed directly from the District and City Court to the Supreme Court. Such permission may be granted if th~ issue is conlidered to be of general importance or if particular reasons suggest ~hat a quick ~ecision is de.irable. 4.~ As to the author.' specific complaint, the State party notes that such a case would take approximately four months from the writ of summons lo the main hearing by the Alesund District and City Court. To bring a suit through all c&urt instanc•• would normally take three to four years, although this period would b6 shorten.d considerably if the ~uprem. Court should grant a direrot appeal. Accordingly, the State party submits that the exhaustion of domestic remndies in Norway would not he ,\nreas~nably prolonged and that the authors Lould at the very least have brought the matt.r before the court of first instance. Horeover, the State party ob_.rv.s that the authors' objection that th~lr daughter would be out of the day nurs~ry by the time of the final judgement and that therefore it would be futilt' to go to the courts .qually arplies to an eventual decisIon by the Human Rights Committee and its possible incorporation into Norwegian law and practice. Thus, the State party concludes that there is no urg.ncy thGt could justify by-passiug domestic remedies and appealing directly to the Human Rights Committee.
In its further s~bmission under rule 91, dated 24 Yebruary 19~1, the State party explains that "everyone having a 'legal interest' may brin-::; his/her case before the ordinary courts in order to test the legality 01 any act, i.e. also the Day Nurseries Act. This opportunity was also open to the complainants when they decid~d in the spring of 1987 to submit the matter dir~ctly to the Human Rights Conrnitt.....
The State party further reiterates that the Norwegian courts have givqn considerable weight to inter~ationftl tr.ati.s and conventions in the interpretation of domestic rules, ev.n if ~hes8 instruments have not been formally incorporated into domestic law. It points to several Supreme Ccur~ decirions concerning th~ relationship between international human rights instruments and domestic law and concerning pOlisible conflicts between the international Covenant on Civil and Political Rights and ~ome.tic statutes. Although the Supreme Co .rt has, in these cases, ru18d that there was no conflict betwee~ domestic law and the relevant in':ernational instrument, it has expressed cl 'arly that international rules lue to be taken into consideration in lhe lnterpretation of domestic law. In this context, th& Stat- party reiterates that "the possibility of setting aside a national statute altogether on the grounds of conflict with the Covenant cannot be disregarded" and emphasizes that, in every Cftse in which Intei'national human r ight6 instruments have become rel~vant, the Supreme Court h~s ta~en a decision on the iesue of conflict beb.een a domestic statute al&d the in~.tJf national instI-ument and not refused to lDst it. In ft recent case, for example,
In the light of the above observations, the State party argues that the authors would have stood a good chance of testing the compatibility of the Day Nurseries Act with the Covenant before the Norwegian courts. Thus I they could have invoked the Covenant and asked the courts to interpret the Act in the light of it and to declare the Christian object clause invalid as incompatible with it. Moreover, they could have argued that the Act was in conflict with article 2 (1) of the Norwegian Constitution, under which lIall inhabitants of the Kingdom shall have the right to free exercise of their religionll • In the interpretation of this provision, international human rights instruments would be important elements to be considered by the judge.
On 10 September 1987 and 5 April 1988, the authors forwarded their comments in reply to the State party's observations on the admissibility of the communication.
The authors contest the State party's argument that the communication is inadmissible on the grounds of non-exhaustion of domestic remedies. They state that I while the Norwegian Government contends that they should have submitted their case to the domestic courts l their main argument is that the domestic courts would be an inappropriate forum to decide the issue at stake. They stress that they have not argued that the practice followed by Norwegian day nurseries is in conflict with the Day NurseriGs Act and its by-laws, but with international human rights instruments.
The authors maintain that it would be possible to have their case dealt with by the Human Rights Committee without testing it first in the Norwegian courts. They claim that the Supreme Court decisions referred to by the State party in its submission of 24 February 1988 are irrelevant.
The authors conclude that no practical measures have been implemented by the Norwegian authorities to ensure that children from non-Christian families are not exposed to Christian influences since, despite strong efforts on their part, they did not succeed in preventing such influences in their daughter's case.
Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.
The Committee observes, in this respectl that the authors have not pursued the domEstic remedies which the State party has submitted were available to them. It notes the Lathors' doubts whether the International Covenant on Civil and Political Rights would be tate~ into account by Norwegian courts, and their belief that the matter could not be satisfactorily settled by a NorwegIan court. The State party, however I has submitted that the Covenant would be a source of law of considerable -249-
The Human Rights Committee therefore decides: (a) That the communication is inadmissible; (b) That this decisioh shall be communichted to the authors of the communication and to the State party.
March 1937 (date of initial letter) Tbe Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights, Meetipg on 26 July 1988, Adopts the following: Decision On admissibility
Tbe author of the communication (initial letter dated 2 March 1987 and a subsequent letter dated 1 May 1987) is O. W., a Jamaican citizen, awaiting execution at St. Catherine District Prison in Jamaica. He claims to be innocent of the crimes imputed to him and alleges irregularities in the various judicial proceedings leading to his death sentence.
O. W. states that in June 1974 he was questioned by the police in connection with a robbery, in the course of which two suspects had allegedly killed a female employee of an unnamed institution. Although the author explained to the police officers that he did not know the men in question or. anything about the incident under investigation, he was taken to the scene of the crime, where two witnesses allegedly stated that he was not one of the men they had seen. NevertheleSB O. W.