article 55 of the French Constitution of 4 June 1958,
the Covenant provisions are incorporated into the
French legal order and are given priority over simple
laws. Before the Court of Cassation, the authors
could have raised the same issues they argue before
the Human Rights Committee.
would have been susceptible of appeal. However, the
judgment of 6 October 1961 was never challenged,
and therefore has become final.
5.3 Furthermore, at the time of the occupation of
the grounds in 1992-1993, it was fully open to the
authors, according to the State party, to intervene in
the proceedings between RIVNAC and the
Association "IA ORA O NU'UROA". This
procedure, known as "tierce opposition", enables
every individual to oppose a judgment which
affects/infringes his or her rights, even if he/she is
not a party to the proceedings. The procedure of
"tierce opposition" is governed by articles 218 et
seq. of the Code of Civil Procedure of French
Polynesia. The State party notes that the authors
could have intervened ("... auraient pu former tierce
opposition") both against the decision of the
Tribunal of First Instance of Papeete and the
judgment of the Court of Appeal of Papeete, by
challenging the title of RIVNAC to the contested
grounds and by refuting the competence of these
courts.
5.7 In the State party's opinion, the authors do not
qualify as "victims" within the meaning of article 1
of the Protocol. Thus, in respect of their claim under
article 14, they have failed to adduce the slightest
element of proof of title to the grounds, or of a right
to occupancy of the grounds. As a result, their
expulsion from the grounds cannot be said to have
violated any of their rights. According to the State
party, similar considerations apply to the claims
under articles 17 and 23 (1). Thus, the authors failed
to show that the human remains excavated on the
disputed grounds in January 1993 or before were in
any way the remains of members of their family or
of their ancestors. Rather, forensic tests undertaken
by the Polynesian Centre for Human Sciences have
revealed that the skeletons are very old and pre-date
the arrival of Europeans in Polynesia.
5.4 The State party emphasizes that the
competence of a tribunal can always be challenged
by a complainant. Article 65 of the Code of Civil
Procedure of French Polynesia stipulates that a
complainant challenging the jurisdiction of the court
must indicate the jurisdiction he considers to be
competent (“s'il est prétendu que la juridiction saisie
est incompétente..., la partie qui soulève cette
exception doit faire connaître en même temps et à
peine d'irrecevabilité devant quelle juridiction elle
demande que l'affaire soit portée”).
5.8 Finally, the State party contends that the
communication is inadmissible ratione materiae and
ratione temporis. It considers that the authors'
complaint relates in reality to a dispute over
property. The right to property not being protected
by the Covenant, the case is considered inadmissible
under article 3 of the Optional Protocol.
Furthermore, the State party observes that the sale of
the grounds occupied by the authors was
procedurally correct, as decided by the Tribunal of
First Instance of Papeete on 6 October 1961. The
case thus is based on facts which precede the entry
into force both of the Covenant and of the Optional
Protocol for France, and therefore considered to be
inadmissible ratione temporis.
5.5 According to the State party, the authors
could equally, in the context of "tierce opposition",
have argued that the expulsion from the grounds
claimed by RIVNAC constituted a violation of their
right to privacy and their right to a family life. The
State party recalls that the provisions of the
Covenant are directly applicable before French
tribunals; articles 17 and 23 could well have been
invoked in the present case. In respect of the claims
under articles 17 and 23, paragraph 1, therefore, the
State party also argues that domestic remedies have
not been exhausted.
5.9 Subsidiarily, the State party offers the
following comments on the merits of the authors'
allegations: on the claim under article 14, the State
party recalls that King Pomare V who, on
29 June 1880, had issued a proclamation concerning
the maintenance of indigenous tribunals for land
disputes, himself co-signed declarations on
29 December 1887 relating to the abolition of these
tribunals. The declarations of 29 December 1887
were in turn ratified by article 1 of the Law of
10 March 1891. Since then, the State party argues,
the ordinary tribunals are competent to adjudicate
land disputes. Contrary to the authors' allegations,
land disputes are given specialized attention by the
Tribunal of First Instance of Papeete, where two
judges specialized in the adjudication of land
disputes each preside over two court sessions
reserved for such disputes each month. Furthermore,
it is argued that the right of access to a tribunal does
not imply a right to unlimited choice of the
5.6 Finally, the State party argues that judicial
decisions made in the context of "tierce opposition"
proceedings can be appealed in the same way as
judgments of the same court ("... les jugements
rendus sur tierce opposition sont susceptibles des
mêmes recours que les décisions de la juridiction
dont ils émanent"). If the authors had challenged the
judgment of the Court of Appeal of Papeete of
29 April 1993 on the basis of "tierce opposition",
any decision adopted in respect of their challenge
could have been appealed to the Court of Cassation.
In this context, the State party notes that pursuant to
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