CCPR/C/130/D/2780/2016
of the Mortgage Registrar. Moreover, such a procedure would have required bringing an
action before the Draguignan court that was the source of their troubles. After 25 years of
legal proceedings, the authors cannot be blamed for having refused to avail themselves of a
possible remedy that would have resulted in compensation for only some of the claims they
have made in respect of their rights under the Covenant.
M.F.’s comments on the merits
7.
On 9 March 2017, M.F. submitted comments rebutting the State party’s arguments on
lack of substantiation, stating again that sufficient evidence corroborating the allegations of
violations of articles 2 (3), 7, 14 (1) and 17 of the Covenant has been provided.
Additional observations by the State party on admissibility and the merits
8.
On 19 April and 24 August 2017, the State party reiterated its argument that the
foreclosure proceedings were conducted in a reasonable manner in the particular
circumstances, which showed the necessity and proportionality of the forced sale of the
authors’ property. As for the impossibility of selling the property because of the refusal of
the Office of the Mortgage Registrar to enter the Court of Cassation’s judgment of 21
September 2000 in its records, it should be noted that this refusal was the fault of the authors
alone. The State party also points out that the right to property is not guaranteed by the
Covenant and that even if M.F. adds that article 6 (1) of the European Convention on Human
Rights has been invoked, she does not show that she has complained before the domestic
courts of a lack of impartiality, a denial of justice of the sort outlined in her submissions or
the excessive length of the proceedings. The State party therefore reiterates its arguments on
the inadmissibility and lack of substantiation of the communication.
Additional comments by M.F.
9.
On 16 April 2018, M.F. noted with satisfaction that the State party had finally
acknowledged that the authors’ house was indeed their home – she added that they could not
sell their home to pay off the debt because it had been repossessed and/or they were not the
legal owners – and that between 1996 and 2003 the authors did make regular payments to the
institution holding the mortgage.
Issues and proceedings before the Committee
Consideration of admissibility
10.1 Before considering any claim contained in a communication, the Human Rights
Committee must decide, in accordance with rule 97 of its rules of procedure, whether the
communication is admissible under the Optional Protocol to the Covenant.
10.2 As required under article 5 (2) (a), of the Optional Protocol, the Committee has
ascertained that the same matter is not being examined under another procedure of
international investigation or settlement.33 The Committee notes that the authors lodged an
application with the European Court of Human Rights on 3 October 2014. Their application
was found inadmissible, for no specific reason, by a single judge. The Committee recalls its
jurisprudence, according to which reservations of the kind made by France do not apply to
applications rejected by the European Court of Human Rights on procedural grounds alone.
As the State party has not contested the admissibility of the communication on the grounds
that it is being examined under another procedure, the Committee is of the view that it is not
precluded by article 5 (2) (b) of the Optional Protocol from considering the present
communication.
10.3 The Committee recalls its jurisprudence to the effect that authors must avail
themselves of all domestic remedies in order to fulfil the requirement of article 5 (2) (b) of
the Optional Protocol, insofar as such remedies appear to be effective in the given case and
33
GE.21-01892
France has entered a reservation to the Optional Protocol.
11