Mr. Stanislav Šmídek v. The Czech Republic

The author of the communication is Stanislav Šmídek, a Czech citizen, born in April 1937 in Šlapanice, Czech Republic. He claims to be a victim of a violation by the Czech Republic³ of articles 2, paragraph 3 (b), 17, and 25 (c), read in conjunction with article 26, of the International Covenant on Civil and Political Rights (the Covenant). He is not represented by counsel.

3. The Covenant was ratified by Czechoslovakia in December 1975 and the Optional Protocol in March 1991.The Czech and Slovak Federal Republic ceased to exist on 31 December 1992. On 22 February 1993, the Czech Republic notified its succession to the Covenant and the Optional Protocol. ↩

On 28 December 2005 and 16 January 2006, the author commented on the State party’s submission. He indicates that in 1989, the Attorney General sought to appoint him as chief prosecutor in Sokolov, without subjecting him to a personality test. He was not appointed because he had to undergo an eye operation. In 1993, when he was removed from the post of Director of Sokolov Labour Office, he applied for a position as a judge. Approximately one month after Dr. K. had been appointed as a judge in the Sokolov District Court, the author contacted the presiding judge of that court, who informed him that the civil section of the District Court already had a sufficient number of judges, and who advised him to apply to the Regional Court in Pilsen instead.

The author reiterates that applicants for the positions as a judge or prosecutor, who, like him, formerly completed a judicial or attorney examination and held a legal position, were accepted in the judiciary without any requirement of a personality test. The author reaffirms that, apart from himself, no other applicants from the same category as himself had to take personality tests. He explains that he cannot consult documents relating to personnel issues of judges appointed after 1 January 1993, to examine whether they indeed underwent a personality test. However, it is public knowledge that many judges were exempted from the test.

The author indicates that he did not wish to work at the Regional Court of Pilsen, but that he applied for a position at the District Court, like Dr. Š. and Dr. K. The State party’s argument that he worked in a different profession for 23 years is misleading, as most of that time he worked as a company lawyer, and acquired extensive experience in economic, financial, administrative, civil, labour and housing law. Acquired experience and examinations for any profession in the fields of advocacy, judiciary or prosecution are mutually recognised. As a result, candidates from one branch would not need to undergo another examination and personality test if they seek to move to one of the other branches.

On 19 June 2006, the State party commented on the author’s observations and reiterated its previous submissions.

Before considering any claim contained in a communication, the Human Rights Committee must, in accordance with rule 93 of its Rules of Procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.

The Committee has ascertained that the same matter is not being examined under another procedure of international investigation or settlement for purposes of article 5, paragraph 2 (a), of the Optional Protocol.

With regard to the first claim of a violation of the right to access public service without discrimination, under article 25 (c), read in conjunction with article 26, the Committee has noted the State party’s contention that the author has not exhausted domestic remedies on this claim. However, it also notes that the author claims to have raised this issue in his constitutional complaint of 7 April 1994⁷. The fact that the complaint was not considered by the Constitutional Court on the merits does not in itself preclude the Committee from examining the communication. The State party has not provided information about other remedies the author could have availed himself of. In addition, it has not submitted any translation of the complaint or the judgment of the Constitutional Court, which would have allowed the Committee to consider if the claim had indeed been raised by the author as he claims. Accordingly the Committee considers that the author has exhausted domestic remedies in respect of this claim, and that it is not precluded from considering this part of the communication pursuant to article 5, paragraph 2 (b), of the Optional Protocol.

7. See paragraph 5.1 above ↩

The Committee recalls that article 25(c) of the Covenant confers a right of access, on general terms of equality, to public service, and thus, in principle, the claim falls within the scope of this provision in this respect⁸. With respect to the author’s application for a position as a judge in the Regional Court, the Committee considers, however, that it does not appear that the author’s situation, on the one hand, and the situation of Dr.Š. and Dr. K. on the other hand, were similar, and that they should have received the same treatment. It notes, in particular, that the latter had both previously served as judges at the time of the application, while the author himself had not. The Committee therefore finds that the author has failed to substantiate, for purposes of admissibility, his claim relating to the application to a position as a judge.

8. See Communication No. 972/2001, George Kazantzis v. Cyprus, Decision on admissibility of 7 August 2003, paragraph 6.4 ↩

With respect to the author’s application for a position as a prosecutor, the Committee notes that the author previously passed the necessary tests for serving as a prosecutor, and actually held that position. It therefore considers that his situation was different in comparison with other applicants, who would never have held such a position. However, the author has not demonstrated that any applicants in the same position as himself were exempted from the personality test. The Committee finds that the author has failed to substantiate this claim for purposes of admissibility. It concludes that the author’s claims under article 25 (c), read together with article 26, of the Covenant are inadmissible under article 2 of the Optional Protocol.

On the author’s second and fourth claims that he was denied the right to an effective remedy because the Constitutional Court declared his complaints inadmissible, the Committee recalls its jurisprudence⁹ that article 2 is of an accessory character and can only be invoked in conjunction with claims of a violation of another substantive right protected by the Covenant. The Committee observes that the claim that the author did not receive an effective remedy although he failed to fulfil the conditions of legal representation is not linked to a claim of violation of any other right of the Convention. On the claim of a violation of article 2, paragraph 3, read together with articles 25 and 26, the Committee recalls its jurisprudence¹⁰ that article 2, paragraph 3, requires that in addition to effective protection of Covenant rights, States parties must ensure that individuals have accessible, effective and enforceable remedies to vindicate those rights. The Committee further recalls that this article only provides protection to alleged victims if their claims are sufficiently well-founded to be arguable under the Covenant. Considering that the author of the present communication has failed to substantiate, for purposes of admissibility, his claims under articles 25 and 26, his allegation of a violation of article 2 of the Covenant is also inadmissible under article 2 of the Optional Protocol.

9. See Communication No. 275/1988, S.E. v. Argentina, Decision on admissibility of 26 March 1990, paragraph 5.3 ↩
10. See Communication No. 972/2001, George Kazantzis v. Cyprus, Decision on admissibility of 7 August 2003, paragraph 6.6 ↩

On the author’s third and fifth claims in relation to the findings of the domestic courts on his claims of defamation, the Committee reiterates its jurisprudence that it is not an appellate court and that it is generally for the courts of States parties to the Covenant to evaluate facts and evidence in a particular case, unless it can be ascertained that it is clearly arbitrary or amounts to a denial of justice¹¹. The Committee considers that the author has failed to substantiate, for purposes of admissibility, any such exceptional elements in his own case. This part of the communication is therefore inadmissible under article 2 of the Optional Protocol.

11. See Communication No. 541/1993, Errol Simms v. Jamaica, Decision of 3 April 1995, paragraph 6.2 ↩

The Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol;