The author of the communication (initial letter d~ted 13 January 1986 and a subsequent letter dated 11 February 1987) is Graciela Ato del Avel18nal, a Peruvian citizen born in 1934, employed as professor or music and married to Guillermo Burn.o, currently r.siding in Peru. She is represented by counsel. It is claimed that the Government of Peru has violated articles 2, paragraphs 1 and 3,
23, paragraphs 4 and 2e, of the Covenant, because the author has been allegedly discriminated against only bec~use she is a woman.
The author is the owner of two apartment buildings in Lima, which she acquired in 1974. It appears that a number of tenants took advantago of the change in ownership t.o cease paying rent for their apartments. After unsuccessful attempts to collect the overdue rent, the author sued the tenants on 13 September 1978. The court of first instance found in her favour and ordered the tenants to pay her the lent due since 1974. The Superior Court reversed the jUdgement on 21 November 1980 on the procedural ground that the author was nJt entitled to sue, because, accordfng to article 168 of the Peruvia~ Civil Code, when a woman is married only the husband is entitled to represent matrimonial property before the Courts ("El marido es el representante de la sociedad conyugal"). On 10 December 1980 the author appealed to the Peruvian Supreme Court, submitting, lnter ~10, that the Peruvian Constitution now in force abolished discrimination against women and that article 2 (2) of the Peruvian Magna Carte provides that lithe law grants rights to women which are not less than those granted to men". However, on 15 February 1984 the Supreme Court up}l~ld the decision of the Superior Court. Thereupon, the author
Having thus e.hausted domestic remedie. i~ Peru, and pursuant to article 39 of the Peruvian Law No. 23506, which specifically provides that a Feruvian citi••n who considf;rs that his or her constitutional rights have been violated may app_al to the Hwman Rights Committee of the United Nations, the author seeks United Nation' assistance in vindicating h~r right to equality before th. Peluvian courts.
By its decision of. March 19t16, the Working Group of the Human Rights Committee transmitted the communi~ation under rule 91 of the provisional rules of procedure to the State party c~ncerned, requesting information and observations relevant to the question of the ~dmissibility of ~he communication in so far $S it may raise issues under ftrticles 14, paragraph 1, 16 and 26 in conjunction w'~h article;- 2 and 3 of the Covanant. The Working Group also requested the State party to prOVide the Comm!ttee with (a) the text of the decision of the Supreme Court of 10 April 1985, (b) any other relevant court orders or decisions not already provided by the author, an~ (c, the text of the relevant provisions of the domestic law, including those of the Peruvian Civil Code and Constitution.
By its submissIon dated 20 November 198~ the State party noted that "in the action brought by Mrs. Graciela Ato del Avellanal and one other, the decision of the Supreme Court dated 10 April 1985 was deemed accepted, since no appeal was made against it under article 42 of Act No. 23385 11 •
The annexed decision of the Supreme Court, dated 10 April 1985, IIdeclares valid the rUling set out on 12 sheets, dated 24 July 1984, declaring inadmissible the application for Dmparo submitted on 2 sheets by Mrs. Graciela Ato del Avellanal de Burneo and on, other against the First Civi~ Section of the Supreme Courtl [and] orders that the present decision, whether accepted or enforceable, be published in theR1ArJJL~~, El Peruano within the time-limit laid down in article 41 of Llw No. 23156 11 •
Commenting on the Stat. party's submisblon under fule 91, the author, in a submission dated 11 February 1987 contends thata "1. It 18 untrue that the ruling of 10 April 1985, of which I was notified on 5 August 1985, WBS Bccepted. As shown by the attached copy of the original application, my attorneys appealed against the decision in the petition of 6 August 1985, which was stamped as received by the Second Civil Section of the Supreme Court on 7 August 1985. The Supreme Court has never notified my attorneys of the decision which it had handed down on the appeal of 6 August 1985".
The author also encloses a copy of a further applic~tion, stamped as received by the Second Civil Section of the Supreme Court on 3 October 1985 and reiterating the request that the appeal lodged should be upheld- She adds that "once again, the Supreme Court failed to notify my attorneys of the decision which it had handed down on this further petition".
With regard to article 5, paragraph 2 (a) of tha Optional Protocol, the Committee observed that the matter co~pl&in.d of by the author wes not bein~ ex~ined and had not been examined under another procedure of international investigation or settlement.
With regard to articl. 5, paragra~h 2 (b), of the Optional Protocol, the Committee noted the State party's contention that the author has failed to appeal the decision of the Peruvian Supreme Court of 10 April 1ge5. However, in the light of the author's submission ~f 11 February 1987 the Committee found that the communication satisfied the requirements of article 5, paragraph 2 (b) of the Optional Protocol. The Committee further observed that this issu~ could be reviewftd in the light of any further explanations or statements received from the State party under article 4, paragraph 2, of the Optional p\otocol.
On 9 July 1987 the Human Rights Committae therefore decided that the communication was admissible, in 80 far as it raised issues under articles 14, paragraph 1, and 16 in conjunction with articles 2, ~ and 26 of the Covenant.
The time-limit for the State partl 's submitlion under article 4, paragraph 2, of the Optional Protocol expired on 6 February 1988. No submission has been received from the State party, dospite a reminder sent to the State party on 11 May 1988.
The Human Rights Committee, having considered the present communicat~on in the light of all the information made available to it, as provided in article 5, paragraph 1, of the Optional Protocol, notes that the facts of the case, as Hubmitted by the author, have not been contested by the State party.
In formulating its views, the Committee takes into account the failure of the State party to furnish certain information and clarifications, in particular with regard to the allegations of discrimination of which the author has complai~ed. It is not sufficient to forward the text of the relevant laws and decisions, without sp~cifically addressin9 the issues raised in the communication. It is implicit in article 4, paragraph 2, of the Optional Protocol that the State party has the duty to investigate in good faith all allegations of violation of the Covenant made 8gainGt it and ita authorltle~, and to furnish to the Committee all relevant information. In the circumstances, due weight must be given to the author's allegations.
With respect to the requirement set forth in article 14, paragraph 1, of the Covenant that "all persons shall be equal before the CCiurts and tribunals", the Committ.ee notes that the court of first instance decided in favour of the authul, hut the Superior Court reversed that decision on the sole ground that according tu article 168 of the Peruvian Civil Code only the husband is entitled to represent matrimonial property, Le. that the wife was not equal to her hlt;,band for purposes of suing in Court.
With regard to discrimination on the ground of sex the Committee notes further that under article 3 of the Covenant State parties undertake "to ensure the equal right of men and women to ~he enjoyment of all civil and political rights flet forth
The Human Rightl Committee, actin9 und~r article 5, palaqraph 4, ot the Optional Protocol to the International Covenant on Civil and Political Ri9hts, is of the view that the events of thil case, in 10 far al they continued or occurr~d after 3 January 1981 (tbe date o~ entry in~o force of the Opt.ional Protocol for Peru), dilclole violations of articles 3, 14, paragraph 1 Lnd 26 of the Covenant.
The Committee, accordingly, is of the view that the State party is under an obligation, in accordance with the provision. of article 2 of the Covenant, to take effective measur•• to lemedy the violations luffered by the victim. In this connection the Committee welcomes the State party's commitment, expresled in articles 39 and 40 of Law No. 2350b, to co-operate with the Human Rights Committee, and to implement its recommendations.