The author of the communication (initial letter dated 31 January 1986 and subsequent letters dated 29 Noverr'.er 1986, 10 February 1987, 11 May and 5 October 1988) is Ruben Toribio Munoz Bermoza, a Peruvian citizen and ex-sargeant of the Guardia Civil (police), currently residing in Cuzco, Peru. He claims to be a victim of violations of his human rights, in particular of discrimination and of denial of justice by Peruvian Buth~rities. He invokes Peruvian Law No. 23,506, article 39 of which provides that a Peruvian citizen who considers that his or her constitutional rightR have been violated may appeal to the United Nations Human Rights Committee. Article 40 of the same law provides that the Peruvian Supreme Court will receive the resolutions of the Committee and order their implementation.
The author alleges that he waR "temporarily suspended" (cesacion temporal 0 rtisponibilidad) from the Guardia Civil on 25 September 1978 by virtue of Directoral Resolution No. 2437-78-GC/DP on faIne accusations of having insulted a superior. Nevertheless, when he was brought before a judge on 28 September 1978 on the said charge, he was immediately released for lack of evidenc~. The author cites a nwnber of relevant Peruvian decrees and laws providing, intJlr_.__CiU..a, that a member of the Guardia Civil "cannot be dismissed except upon a conviction" and that such dismissal can only be imposed by the Supreme Council of Military Justice. By administrative decision No. 0165-84-60, dated 30 January 1984, hp. was definitively discharged from service under the provisions of article 27 of Decree-Law No. 18081. The author claims that after having served 1n the Guardia Civil [or uver 20 years he has been arbitrarily deprived oC his livelihood and oC his acquired rights, inclUding accrued retirement rights, thus leaving him in a state ~dministrative and judicial instances1 copies of the ralevbnt decisions are 8nclosea. His request for reinstatement in the Guardia Civil, dated &October 1978 nnd addressed to the Ministry of the Interior, was at fir~t not proces&.d and finally turned cown, nea:l, six years later, on 29 teLruary 1984. His appeal against this administrative decision was dismissed by the Ministry of the Interior on 31 December 1985 on the grounds that he was al~o pursuing a jUdl~ial remedy. This ended the administrative r6view without any decision on the merits, over seven years after his initial petition for reinstatement. The author explains that he had turned to the courts, basing himself on article 28 of the law on ampa[Q which provides that "the exhaustion of previous procedures shall not be required if such exhaustion could render injury irreparable", and in view of the delay and apparent inaction in processing the administrative review. On 18 March 1985 the Court of First Instance in Cuzco held that the author's action of ampa[e was well founded and declared his dismissal nu~l and void, ordering that he be r8lustated. On appeal, however, the Superior Court of Cuzco rejected the author's action of ~~, stating that the period for lodging such action had expired in March 1983. The case was then examined by the Supreme Court of Peru, which held on 29 October 1985, that the author could not start an action of ampare before the previous administrative review had been completed. Thus, the author claims that, AS evidenced by these inconsistent decisions, he has been a victim of denial of justice. As far as the completion of the administr~tive review, he points out that it is not his fault that said review was kept pending for seven years, and that, in any caSE, for as long as the review was pending, the period of limitations for an action of ~ coul" not start running, let alone expire.
By its decision of 26 March 1986, the Human Rights Committee transmitted the communication under rule 91 of the provisional rules of procedur~, to the State party, requesting information and observations relevant to the question of the admissibility of the communication in so far as it may raise issue~ under articles 14 (1), 25 and 26 of the International Covenant on Civil and Political Rights. The Committee also requested the State party to explain the reasons for t.he dismissal of Mr. Munoz and the reasons for the delays in the administrative proceedings concerning his request for reinstatement, and further to indicate when the administrative proceedings were expected to be conc~uded and whether the re~ourse ofamparo would still be available to Mr. Munoz at that time.
In a further submission, dated 29 November 1986, the Buthor informed the COlnmittee that the Tribunal of Constitutional Guarantees of Peru, by judgement of 20 May 1986, had held that his Action of ~r2 was admissible (procedente) and that it had quashed the jUdgement of the Supreme Court of Peru of 29 October 1985. HowevAr, no action has yet been taken to enforce the judgement of the Civil Court of First Instance of Cuzco of 18 March 1985. The author claims that this delay is indiCAtive of abuse of authority and failure to comply with Peruvian law in matters of hwnan rightb (article 36 taken together with article 34 of Law No. 23,506). r,. In its submission under rule 91, dated 20 November 1986, the State party transmitted the complete file forwarded by the Supreme Court of Justice of t\~ Renublic concerning Mr. Munoz Hermoza, stating, inter..D.l..iA, that "under the law in rlll'Ce, t.he internal judicial remedies were exhausted when the Tribunal of Corll~Ututional Guarantees handed down its decision". The State party did not provide the other clarifications requested by the Committee.
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.
With regard to article 5, paragraph 2 (a), of the Optional Protocol, the Committee observed that the matter complained of by the author was not being examined and had not been examined under another procadure of international investigation or settlement. With regard to article 5, paragraph 2 (b), of the Optional Protocol, the Stat. party has confirmed that the author has exhausted domestic remedies.
On 10 July 1987, the Human Rights Committee therefore decided that the communication was admissible, in so far as it raised issues under articles 14, paragraph 1, 25 (c) and 26, in conjunction with article 2, paragraph 3, of the Covenant.
In a submission dated 11 May 1988 the author describes the further development of the case and reiterates that the decision of the Court of First Instance of Cuzco of 18 March 1985, holding that his action of am~arQ was well founded and declaring his dismissal null and void, had not been enforced, in spite of the fact that on 24 September 1987 the CUICO Civil Chamber handed down a similar decision on th~ merits ordering his reinstatement in his post with all benefits. The author complains that the Civil Chamber subsequen~ly ext~nded the statutory time-limit of three days for appeal (provided for in article 33 of Law No. 23,506), and, instead of ordering the enforcement of its decision, granted IX officio 8 special appeal for annulment on 24 November 1987 (i.e. 60 days after the decision, purportedly in contravention 0' article 10 of [Jaw No. 23,506). "Defence of the State" was allegedly ftdduced as grounds for the deci&ion to grant a special appeal, with reference being made to article 22 of Decree-Law No. 17,537. This decree-law, the author contends, was abrogated by Law No. 23,506, article 45 of which repeals "all provisions ~hich prevent or hinder proceedings for habeas corpus and amparo".
The Second Civil Chamber of the Supreme Court ot the Republic again received the case on 22 December 1987. A hearing took place on 15 April 1988, allegedly without prior notification to the author, who claims not to have received the text of any judgement or order. In this connection he cbserves that "the only w~y to avoid restoring my constitutional rights •.• is to be bogged down in further proceedings".
In particular, the author questions the legality of the Government appeal, since all procedural and substantive issues have already been adjudicated, and the Prosecutor General himself, in a written opinion dated 7 March 1988, declared that the decision of the Cuzco Civil Chamber tlf 24 September 1987 was valid and the author's action of amparo well founded. Tbe author further comments: "the only correct solution would have been to reject the appeal and refer the case back to the Civil Chamber of the Cuzco Court for it to comply with the order to [reinstate him) ...... Mor~over, a lower court was venturing to decide in a manner which conflicted with the procpdure indicated by the Tribunal of Constitutional "The case has thus been virtually 'shelved' indefinitely by the Second Civil Chamber of the Supreme Court in Lima, without any access allowed for the appellant, and without counsel appoint~d. I ~as thus obliged to retain a lawyer, but he was not allowed to see the papers in ~~e case and the outcome of the hearing of 15 April 1988 'because it has not yet been signed by the non-presiding members of the Court'. "In these circumstances, an application was submitted requesting a certified copy of the decision of 15 April 1988, but it has not been entertained on the pretext that a lawyer's signature was missing and that the fees had not been paid. This is a breach of article 13 of Act No. 23,506, on omporo, which contains tacit dispensation from these formalities, pursuant to artiCle 295 of the Peruvian Constitution."
The author also indicates that he has spared no effort to try to arrive at a settlement of his case. On 21 February 1988, he wrote to the Pr~sident of Peru describing the various stages of his 10-year struggle to be reinstated in his post, and adducing procedural irregularities and instances of alleged abuse of authority. The author's petition was passed on to the Deputy Minister of the Interior, who, in turn, communicated it to the Director of the Guardia Civil. Subsequently the Guardia Civil's Legal Adviser "rendered a legal opinion advising that I should be reinstated. But the Subaltern Ranks Investigoting Council and the Director of Personnel rejected my petition. There is, however, nothing in writing and the decision was purely verbal".
In view or the foregoing, the author requests the Committee to endorse the judgements of the Court of the First Instance of Cuzco, dat~d 18 March '985, and of the Civil Chamber oC the Court of Cuzco, dated 24 September 1987, and to recommend his reinstatement in the Guardia Civil, his promotion to the rank he would have attained had he not been unjustly dismissed, and the granting of ancillary benefits. He further asks the Committee to take into account article 11 of Law No. 23,506 which provides, ~~, for indemnification.
By letter of 5 October 1988 the author informs the Committee that the Second Civil Chamber of the Supreme Court rule on 15 April 1988 that his action of amparo was inadmissible because the period for lodging the action had lapsed on 16 March 1983, whereas he had lodged the action on 30 October 1984. The author puints out that this issue had already been definitively decided by the Tribunal of Constitutional Guarantees on 20 May 1986, which held that his action of amparo had been timely lodged (see para. 4 above). On 27 May 1988, the author again turned to the Tribunal of Constitutional Guarantees requesting that the Supreme Court's Decision oC 15 April 1988 be quashed. The author's newest action is still pending.
The time-limit for the State party's submission under article 4 (2) of the Optional Protocol expired on 6 February 1988. No submission has been received from the State party, despite a reminder sent on 17 May 1988. The author's further Hubmissioll oC 11 May 1988 was transmitted to the State party on 20 May 1988. The "uthor'a subsequent letter of 5 October t988 was transmitted to the State party on 21 October 1988. No comments Crom the State party have been received.
The Human Rights Committee, having considered the present communication 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 submitted by the author, have not been contesled 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 reasons for Mr. Munoz' dismissal and for the delays in the proceedings, as requested by the Committee in its rule 91 decision, and with regard to the allegations of unequal treatment of which the author has complained. 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 against it and its authorities, 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 of a fair hearing as stipulated in article 14, paragraph 1, of the Covenant, the Committee notes that the concept of a fair hearing necessarily entails that justice be rendered without undue delay. In this connection the Committeee observes that the administrative review in the Munoz case was kept pending for seven years and that it ended with a decision against the author based on the ground that he had started judicial proceedings. A delay of seven years constitutes an unreasonable delay. Furthermore, with respect to the judicia] review, the Committee notes that the Tribunal of Constitutional Guarantees decided in favour of the author in 1986 and that the State party has informed the Committ6e that judicial remedies were exhausted with that decision (para. 5 above). However, the delays in implementation have continued and two and a half years after the judgement of the Tribunal of Constitutional Guarantees, the author has still not been reinstatLu in his post. This delay, which the State party has not explained, constitutes a further aggravation of the violation of the principle of a fair hearing. The Committee further notes that on 24 S£~tember 1987 the Cuzco Civil Chamber, in pursuance of the decision of the Tribunal of Constitutional Guarantees, ordered that the author be reinstated; subsequently, in a written opinion dated 7 March 1988, the Public Prosecutor declared that the decision of the Cuzco Civil Chamber was valid and that the author's action of amparo was well founded. But even after these clear decisions, the Government of Peru has failed to reinstate the author. Instead, yet another special appeal, this time granted ex officio in "Defence of the State" (para. 9.1), has been allowed, which resulted in a contradictory decision by the Supreme Court of Peru on 15 April 1988, declaring that the author's action of amparo had not been lodged timely and was therefore inadmissible. This procedural issue, however, had already been adjudicated by the Tribunal of Constitutional Guarantees in 1986, before which the author's action is again pending. Such seemingly endless sequence of instances and the repeated failure to implement decisions are compatible with the principle of a fair hearing. -204-
The Committee accordingly, is of the view that the State party is under an obligation, in accordance with the provisions of article 2 of the Covenant, to take effective measures to re~edy the violations suffered by Ruben Toribio Munoz Hermoza, including payment of adequate compensation for the loss suffered.
In this connection the Committee welcomes the State party's commitment, expressed in articles 39 and 40 of Law No. 23,506, to co-operate with the Human Rights Committee, and to implement its recommendations.
We ag~~e with the conclusion reached by the Committee but a~so for other reasons.
'n the ab~ence of any response from the State party under article 4, paragraph 2, of the Optional Protocol, the allegations of the author remain uncontested; and they are, in substance, that. (a) He had for ?O years been a member of the Guardia Civil of Peru, a post in the public service of his country, access to which is t':.aranteed under article 25 (c) of the Covenant; (b) He was, at an initial stage, temporarily suspended from his post and was investigated 011 a charge of having insulted a superior officer; tho case against him was not sustained; (c) Nevertheless, some five years later he WAS permanently discharged from the service. There is no indication that he was g~ven a hearing before the administrative dftcision was taken to suspe~d him, nor is theru any indication that disciplinary proceedings were brought against him after the criminal investigation had been closed. What is certain is tl.lit the Ministry of the Interior declined to consider an appeal against the 1978 decision to discharge him. He appears to have all the time been treated as guilty while officially being temporarily suspended. This amounted to a continued violation of his right to be presumed innocent (art. 14, para. 2) and to be treated accordingly until proceediJ~s or, failing that, disciplinary proceedings were co~cluded against him. These proceedings Wf ce apparently not initiated; (d) Having failed to obtain admhlistrative redress, he continued to seek redress from the COl1rts; (e) A conflict. which the St~ta p~~ty has regrettably not sought to elucidate, appears to have emerge1 hatweo·n the decisions of the Tribunal of C~nstitutiona1 Guarantees, which had ruled in his favour, and of the Civil Chamber of the Supreme Court. Following the decisJon of the Tribunal of Constitutional Guarantees, the Superior Court of Cuzco decided the merits of the case in the author's favour, ordering his reinstatement, but the Civil Chamber of the Suprp.me Court reversed this decision on a special appeal, granted "'.J:t......Qfficio and out of time, arrd based on a procedural point, which the Tribu~al of Constitutional G'.1arpntees had already examined and decided iu a diff9rent manner; ,f) Quite apart (lom the baffling conflict between the decisions o[ the Supreme Court and the Tribunal of Constitutiona Guarantees, there remains alGo the significant failure ~f the Supreme Court to grant the author a hearing before reviewing the decision of the Superior Co~rt of tuzco. ~arlier decision which had been favourable to him. Furthermore, as observed in paragraph 2 (c) above, the apparent absence of criminal or disciplinary proceedings establishing his guilt ~an counter to the presumption ot innocence embodied in n~ticle 14, paragraph 2, of the Covenant and was equally at variance with the administrative consequences that normally follow from that presumption.
It is also clear that, with regard to such a simple matter DB that concerning the reinstatement of a pUblic official who had been unjustifiably dismissed, the obligations undertaken by the State party under article 2, paragraph 3 (a) and (c), of the Covenant, were unaccountably violated bocause neither the administrative nor the judicial authorities of the State party ,ound it possible, over a period spanning a decado, to provide the author with an appropriate reme~y and to enforce that remedy. JOBeph A. COORAY Vojin DIMITRIJEVIC Rajsoomer LALLAH
I concur in the views expressed by the majority of the Committee with regard to the violation of article 14 of the Covenant but want to add the following considerations with regard to artiCle 25 (c) of the Covenant.
From the judgement of 20 May 1986 of the Tribunal of Constitutional Guarantees it appears that Mr. Munol, by administrative decision No. 2437-78-GC/DP of 25 September 1978, was suspended from service on disciplinary grounds (for the alleged offence of insulting a superior) and placed at the disposal of the Fourth Judicial Zone of the Police. By administrative decision No. 3020-78-GC/DP of 25 November 1978, the Administration of the Peruvian Guardia Civil refused to cancel the suspension order. By decision No. 01&5-84-GD of 30 January 1984, Mr. Munoz was definitively discharged from service under the provisions of article 27 of Oecree Law No. 18081.
The Court of First Instance of Cuzco, in its decision of 18 March 1985, declared all the aforementioned decisions null and void. In its findings it stated, inter aliD, that the investigation ordered by the Supreme Council of Milit~ry Justice against Mr. Munoz on the charge of having insulted a superior did not establish that he had committed any punishable offence. The Court considered in this connection Supreme Decree No. l056-6a-GP, Which stipUlates that a member of the Guardia Civil "shall be discharged only following a conviction" and noted that Mr. Munoz had no previous record, neither criminal nor jUdicial, and that he had shown irreproachable conduct and had obtained sufficient merits, demonstrating discipline and capacity. By decision of 24 September 1987, the Superior Court of Cuzco confirmed the jUdgement of the Court of First Instance and ordered that Mr. Munoz shou~d be reinstated in his post with all benefits. None of these CourL decisions have become final, but the Supreme Court has not considered them on the merits but reversed them by rejecting Mr. Munol's actions of amparo on procedural grounds. There is, however, no reason to believe that the Supreme Court could hbve arrived at a different conclusion on the merits than that arrived at by the lower courts. On the contrary, it is reasonable to assume that it could not havo decided otherwise, particularly considering that the State party has not contested the merits of the de~isions, and the Prosecutor General, in a written opinion dated 7 March 1988, has stated that the decision of 24 September 1987 is valid.
Thus, in my view, it is evident that the suspension and discharge of Mr. Munoz from the Peruvian Guardia Civil were not founded upon objective and justifiable grounds. Whatevel the ground may have been, whether, for instance, political or merely subjective, it was arbitrary. To suspend and discharge someone arbitrarily from public Rervice and to refuse him reinstatement, just as arbitrarily, constitutes, in my opinion, a violation of his right, under article 25 (c) of the Covenant, to have access on general terms of equality to public service. In this context reference should be made to the Con~ittee's views in case No. 198/1985, ~here it observed "that Uruguayan public officials dismissed on ideological, political or trade union grounds were victims of violations of article 25 of the Covenant". 8ertil WENNERGREN