The State party, in its observations, informed
the Committee about the Ombudsman’s status and
functions, but did not address the content of the
Ombudsman’s decision nor its role in the process. It
may well be that the State party deemed the
Ombudsman to be a supervisory body who did not
participate in the process. However, even if it were
true that the Ombudsman’s decisions are supervisory
decisions and that they are not legally binding as such,
they have considerable de facto effects on an
administrative process. Had the Ombudsman found
that the limitations on the author’s exercise of his
freedom of religion imposed by the administrative
authorities were excessive, he would have informed
the administrative authorities and requested them to
reconsider their position accordingly. In principle they
would have had to comply, as they complied with the
decision of 1 November 1989. By endorsing the
authorities’ standpoint, the Ombudsman de facto
prevented them from reconsidering and modifying
their standpoint. And the Ombudsman is not
independent to such an extent that the State party
would not be responsible for his actions.
State party’s contention that judicial review of
administrative regulations and decisions,
pursuant to section 63 of the Danish
Constitutional Act, would be an effective remedy
available to the author. The Committee notes that
the author has refused to avail himself of these
remedies, because of considerations of principle
and in view of the costs involved. The
Committee finds, however, that financial
considerations and doubts about the effectiveness
of domestic remedies do not absolve the author
from exhausting them. Accordingly, the author
has failed to meet the requirements of article 5,
paragraph 2(b), in this respect.
6. The Human Rights Committee therefore
decides:
(a)
That the communication is inadmissible
under articles 2 and 5, paragraph 2(b), of the
Optional Protocol;
The
Optional
Protocol
allows
“communications from individuals claiming to be
victims of violations of any of the rights set forth in
the Covenant”. The author claims that he is a victim of
a violation committed by the Ombudsman. Given the
effects the Ombudsman’s decision must be assumed to
have had, I come to the conclusion that said claims
may raise issues under the Covenant, first under article
18 but equally under article 19, as the conditions
prescribed also limited the author’s freedom of
expression. There are no remedies available against a
decision of the Parliamentary Ombudsman. The
communication therefore is, in my opinion, admissible
as far as it regards claims directed against the
Ombudsman; otherwise I am in full agreement with
the Committee’s decision. I do however want to add
that, had the communication been declared admissible,
further attention should have been given to the issue of
standing of the author, in respect of his son. I consider
that from some points of view the author might be said
to have interests that conflict with those of the son,
and which might disqualify him from representing his
son.
(b)
That
this
decision
shall
be
communicated to the State party and to the
author.
APPENDIX
Individual opinion submitted by Mr. Bertil
Wennergren, pursuant to rule 92, paragraph 3, of the
Committee’s rules of procedure, concerning the
Committee’s decision on communication No.
397/1990,
P.S. v. Denmark
The author’s communication concerns the
modalities of contacts with his son T., now eight years
old, as well as the position of the Danish authorities on
this matter since 1986.
The Parliamentary Ombudsman became
involved in this matter following a complaint by the
author. In his decision of 1 November 1989, the
Ombudsman accepted in principle the standpoint of
the administrative authorities, namely that limitations
on the author’s exercise of his religious freedom
during his contacts with his son were necessary.
Against this background he merely requested the
authorities to define the conditions more precisely,
particularly with regard to the terms “teach” and “or
similar activities”. The author claims that the
Ombudsman’s decision, in conjunction with the
administrative decisions in his case, violated his rights
under article 18 of the Covenant.
XI, sect. D, communication No. 262/1987 (R. T. v.
France), decision of 30 March 1989, para. 7.4.
26
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