Communication No. 195/1985
Having concluded its consideration of
communication No. 19511985, submitted to the Committee by William
Eduardo Delgado Páez under the Optional Protocol to the International
Covenant on Civil and political Rights,
Having taken into account all written information made available to it
by the author of the communication and by the State party,
Adopts the following:
2.10 By letter dated 10 June 1986, he
tendered to the Ministry of Education at Leticia his resignation from
his post, justifying his decision on account of the pressures and
threats he had received. His resignation was rejected "in those terms".
He resubmitted his resignation on 27 June 1986, without adducing any
reasons, and this time it was accepted, effective 14 July 1986.
3 .l The author claims to be a victim of violations by Colombia of
articles 14, 18, 19, 25 and 26 in conjunction with article 2 of the
International Covenant on Civil end Political Rights.
3.2 He maintains that he was subjected to persecution -ideologically,
politically and in his work -by the Colombian authorities, because of
his "progressive ideas in theological and social matters", that his
honour and reputation were attacked by the authorities who falsely
accused him of theft, whereas the reason behind the charge was to
intimidate him because of his religious and social opinions. Moreover,
his professional qualifications were unjustly put into question,
although he had studied and taken a degree at the University of Santo
Tombs and had taught several years at a high school in Bogota.
3.3 Furthermore, he claims to have been denied the freedom to teach,
having been suspended from his teaching post in breach of the decree
concerning appointments and of the teachers' statute (decrees No. 2277
of 1979 and No. 2372 of 1981). When he applied for a transfer, his
request was ignored by the administration.
3.4 More importantly, he charges that manifold threats were used to
force him to resign: first, being threatened with prosecution; then,
when he refused to resign, preliminary proceedings on the theft charges
were initiated without prior notice, thereby violating the right of
defence; he was not heard by the examining magistrate during the preliminary
investigation and was not assisted by a court-appointed lawyer;
furthermore, the authorities sent copies of the unfounded allegations,
even before they were investigated, to all offices in the Ministry of
Education and to all 1 the schools; as a result, he was subjected to
public scorn and essentially convicted before the charges had been
investigated . Furthermore, copies of the allegations were included in
his personal file. This caused him harm in economic, moral and social
terms. Nevertheless, he was acquitted of all charges.
3.5 Additionally, he was suspended from practicing his profession for
60 days, for alleged dereliction of duty, and from the National
Teachers' Register for six months ; every possible kind of off ence was
invoked so that the outcome of the administrative inquiries would not
only be contrary to the truth, but would also cause prejudice by
leading to criminal proceedings and in this manner implicate his
colleagues in the teachers' union who supported him. The case was again
dismissed or jail points.
He then addressed complaints, without success, to the authorities
concerning alleged offences, perpetrated by others, of falsifying
public documents, forging his signature, making a false accusation to
the authorities and breaching administrative confidentiality.
3.6 He claims that he "found it absolutely essential to leave the
country, as there are no guarantees for the protection of the most
basic human rights, such as equality, justice and life, which the
Colombian Government has a constitutional and moral obligation to
protect". Allegedly, the threats on his life and or, the lives of other teachers have not been duly investigated by the State patty.
The State party's observations
4.1 The State party argues,
although only after the communication had been declared admissible,
that domestic remedies have not been exhausted, since various actions
are still pending.
4.2 It further denies that Mr.
Delgado's rights under the Covenant have been violated. In particular,
it indicates that Mr. Degado, was cleared of all charges against him
and contends that his complaints against various Colombian authorities
were duly investigated: "William, Eduardo Delgado Páez has not been
subjected to restrictions on his freedom of thought, conscience,
religion, speech or expression,
as is demonstrated by the steps he was able to take under the criminal
law and in the administrative sphere throughout this investigation."
4.3 In the disciplinary action initiated by Mr. Delgado against various
officials, the court of first instance of Leticia acquitted three
persons and sanctioned two others with a suspension of 15 days without
remuneration. Appeals are pending.
4.4 The criminal action against the Apostolic Prefect on grounds of
slander and abuse was referred to the Apostolic Nuncius pursuant to the
Concordat between the Republic of Colombia and the Vatican. The
investigation was terminated upon the death of the Apostolic Prefect in
4.5 With respect to Mr. Delgado's
qualifications as a teacher, the State party forwards a copy of a
statement from the Ministry of Education setting forth the general
requirements for teachers, without, however, specifically addressing
the application of these requirements in the author's case.
4.6 As to the legal basis for the appointment of teachers of religion
in Colombia, the State party states that: "Applicants for the post of
teacher of religion in Colombia must present a certificate of
suitability in the area of religious and moral education, along the
lines laid down in. article 12 of Act 20 of 1974, which reads: In
pursuance of the right of Catholic families to arrange for their
children to receive religious education in keeping with their faith,
educational plans at the primary and secondary level shall include
religious education and training in official establishments in
accordance with the teaching of the church. In order to put this right
practice, it falls to the competent church authority to supply
curricula, approve religious education texts and verify how such
education is provided. The civil authorities shall take into
consideration certificates of suitability for teaching religion issued
by the competent church authority."
The State party submits the text of the agreement of 31 July 1986
between the Ministry of Education and the Colombian Episcopal
Conference, without , however, showing the relevance of this Concordat
to the case of Mr. Delgado, whose resignation had already been accepted
on 9 July 1986.
4.7 The State party does net address the author's allegations
concerning death threats against himself and other teachers, the
alleged assault on his person on 7 May 1986, nor the general situation
of persecuti on against t named journalists and intellectuals, amounting to a Violation of the right of security of the person.
The issues and proceeding, before the Committee
5.1 When considering the communication at its thirty--second session,
the Commit tee concluded, on the basis of the information before it,
that the conditions for declaring the communication admissible had been
met. In particular, the Committee noted that while the State party had
claimed that there was no violat ion of the Covenant, it had not argued
that the communication was inadmissible.
5.2 On 4 April 1988, the Committee declared the communication generally
admissible, without specifying articles of the Covenant. The Committee,
however, requested the State party to address the issues raised in one
of the author's submissions, which focused on the right of security of the person.
5.3 The Committee has considered the present communication in the light
of all the information provided by the parties. It has taken note of
the State party's contention that domestic remedies have not been
exhausted and that actions are still pending. The Committee finds ,
however, that, in the particular circumstances of the author's case,
the application of domestic remedies has been unreasonably prolonged
and, for purposes of article 5, paragraph 2 (b)of the Optional
Protocol, they need therefore not be further pursued.
5.4 Although the author has not specifically invoked article 9 of the
Covenant, the Committee notes that his submission of 14 September 3987,
which was transmitted to the State party prior to the adoption of the
Committee's decision on admissibility, raised important questions under
this article. The Committee recalls that upon declaring the
communication admissible, it requested the State party to address these
issues. The State party has not done so.
first sentence of article 9 does not stand as a separate paragraph. Its
location as a part of paragraph one could lead to the view that the
right to security arises only in the context of arrest and detention.
The travaux préparatoires indicate that the discussions of the first
sentence did indeed focus on matters dealt with in the other provisions
of article 9. The Universal Declaration of Human Rights, in article 3,
refers to the right to life, the right to liberty and the right to
security of the person. These . elements have been dealt with in
separate clauses in the Covenant. Al though in the Covenant the only
reference to the right of security of person is to be found in article
9, there is no evidence that it was intended to narrow the concept of
the right to security only to situations of formal deprivation of
liberty. At the same time, States parties have undertaken to guarantee
the rights enshrined in the Covenant. It cannot be the case that, as a
matter of law, States can ignore known threats to the life of persons
under their jurisdiction, just because that he or she is not arrested
or otherwise detained. States parties are under an obligation to take
reasonable and appropriate measures to protect them.. An interpretation
of article 9 which would allow a State party to ignore threats to the
personal security of non-detained persons within its jurisdiction would
render totally ineffective the guarantees of the Covenant.
5.6 There remains the question of the application
of this finding to the facts of the case under consideration. There
appears to have been an objective need for Mr. Delgado to be provided
by the State with protective measures to guarantee his security, given
the threats made against him, including the attack on his
person, and the murder of a close colleague. It is arguable that, in
seeking to secure this protection, Mr. Delgado failed to address the
competent authorities, making his complaints to the military
authorities in Leticia, the teachers' union, the Ministry of Education
and the President of Colombia, rather than, to the general prosecutor
or the judiciary. It is unclear to the Committee
whether these matters were reported to the police. It does not know
either with certainty whether any measures were taken by the
Government. However, the Committee cannot but note that the author
claims that there was no response to his request to have these threats
investigated and to receive protection, and that the State party has
not informed the Committee otherwise. Indeed, the State party has
failed to comply with the request by the Committee to provide it with
information on any of the issues relevant to article 9 of the Covenant.
Whereas the Committee is reluctant to make a finding of a violation in
the absence of compelling evidence as to the facts, it is for the State
party to inform the Committee if alleged facts are incorrect, or if
they would not, in any event, indicate a violation of the Covenant. The
Committee has, in its past jurisprudence, made
clear that circumstances may cause it to assume facts in the author's
favour if the State party fails to reply or to address them. The
pertinent factors in this case are that Mr. Delgado had been engaged in
a protracted confrontation with the authorities over his teaching and
his employment. Criminal charges, later determined unfounded, had been
brought against him and he had been
suspended, with salary frozen, in the circumstances indicated in
paragraphs 2.2 to 2.6 above. Further, he was known to have instituted a
variety of complaints against the ecclesiastical and school astical
authorities in Leticia (see paragraph 2.7 above). Coupled with these
factors were threats to his life. If the State party neither denies the
threats nor cooperates with the Committee to explain whether the
relevant authorities were aware of them, and, if so, what was done
about them, the Committee must necessarily treat as correct allegations
that the threats were known and that nothing was done. Accordingly,
while fully understanding the situation in Colombia, the Committee
finds that the State party has not taken, or has been unable to take,
appropriate measures to ensure Mr. Delgado's right to security of his
person under article 9, paragraph 1.
respect to article 18, the Committee is of the view that the author's
right to profess or to manifest his religion has not been violated. The
Committee finds, moreover, that Colombia may, without violating this
provision of the Covenant, allow the Church authorities to decide who
may teach religion and in what manner it should be taught.
5.8 Article 19 protects, inter alia, the right of freedom of expression
and of opinion. This will usually cover the freedom of teachers to
teach their subjects in accordance with their own views, without
interference. However, in the particular circumstances of the case, the
special relationship between Church and State in Colombia, exemplified
by the applicable Concordat, the Committee finds that the requirement,
by the Church, that religion be taught in a certain way does not
violate article 19.
5.9 Although the requirement, by the Church authorities, that Mr.
Delgado teach the Catholic religion in its traditional form does not
violate article 19, the author claims that he continued to be harassed
while teaching the non-religious subjects to which he had been
assigned. The Committee must for the reasons elaborated in paragraph
5.6 above, accept the facts as presented by the author. This constant
harassment and the threats against his person (in respect of which the
State party failed to provide protection) made the author's
continuation in public service teaching impossible. Accordingly, the
Committee finds a violation of article 25, paragraph (c), of the
5.10 Article 26 requires that all persons are entitled, without
discrimination, to be equal before the law and to receive equal
protection by the law. The Committee finds that neither the terms of
Colombian law nor the application of the law by the courts or other
authorities discriminated against Mr. Delgado, and finds that there was
no violation of article 26.
6. 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 facts of the communication
disclose violations of articles 9, paragraph 1, and 25, paragraph(c),
of the Covenant.
7.1 In accordance with the provisions of article 2 of the Covenant, the
State party is under an obligation to take effective measures to remedy
the violations suffered by the author. including the granting of
appropriate compensation , and to ensure that similar violations do not
occur in the future.
7.2 The Committee would wish to receive information on any relevant
measures taken by the State party in respect of the Committee's views.