Communication No. 202/1986
"1. It is untrue that the ruling of 10
April 1985, of which I was notified on 5 August 1985, was accepted. 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.
2. The Supreme Court has never notified my attorneys of the decision which it had handed down on the appeal of 6 August 1985".
5.2 The author also encloses a copy of a further application, 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
6.1 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.
6.2 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 procedure of international investigation or settlement.
6.3 With regard to article 5, paragraph 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
1985. However, in the light of the author's submission of 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 issue could be reviewed in the
light of any further explanations or statements received from the State
party under article 4, paragraph 2, of the Optional Protocol.
7. On 9 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, and 16 in conjunction with articles 2, 3 and
26 of the Covenant.
8. The time-limit for the State party's submission under article 4,
paragraph 2, of the Optional Protocol expired on 6 February 1988. No
submission has been received from the State party, despite a reminder
sent to the State party on 17 May 1988.
9.1 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
contested by the State Party.
9.2 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 complained. It is not sufficient to forward the text of
the relevant laws and decisions, without specifically addressing 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 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.
10.1 With respect to the requirement set forth in article 14, paragraph
1, Of the Covenant that "all persons shall be equal before the courts
and tribunals", the committee notes that the court of first instance
decided in favour of the author, but the Superior Court reversed that
decision on the' sole ground that according to article 168 of the
Peruvian Civil Code only the husband is entitled to represent
matrimonial property, i. e. that the wife was not equal to her husband
for purposes of suing in Court.
10.2 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 the enjoyment
of all civil and political rights set forth in the present Covenant"
and that article 26 provides that all persons are equal before the law
and are entitled to the equal protection of the law. The Committee
finds that the facts before it reveal that the application of article
168 of the Peruvian Civil Code to the author resulted in denying her
equality before the courts and constituted discrimination on the ground of sex.
11. The Human Rights Committee, acting under article 5, paragraph 4, of
the Optional Protocol to the International Covenant on Civil and
Political Rights, is of the view that the events of this case, in so
far as they continued or occurred after 3 January 1981 (the date of
entry into force of the Optional Protocol for Peru), disclose
violations of articles 3, 14, paragraph 1, and 26 of the Covenant.
12. 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 remedy the violations
suffered by the victim. In this connection the Committee welcomes the
State party's Commitment, expressed in articles 39 and 40 of Law No.
23506, to co-operate with the Human Rights Committee, and to implement