9.
Pursuant to article 2, paragraph 3 (a), of the
Covenant, the authors are entitled to an appropriate
remedy, which should include compensation
determined on the basis of a sum equivalent to the
salary which they would have received during the
period of non-reinstatement starting from 30 June
1988. The State party is under an obligation to
ensure that similar violations do not occur in the
future.
had occupied prior to their arrest, because of such
activities. The State party implicitly supports this
conclusion by qualifying the authors' activities as
"political offences", which came within the scope of
application of the Amnesty Law of 11 April 1991;
there is no indication that the authors' activities
represented a threat to the rights and the reputation
of others, or to national security or public order
(article 19, paragraph 3). In the circumstances, the
Committee concludes that there has been a violation
of article 19 of the Covenant.
10. Bearing in mind that, by becoming a State
party to the Optional Protocol, the State party has
recognized the competence of the Committee to
determine whether there has been a violation of the
Covenant or not and that, pursuant to article 2 of the
Covenant, the State party has undertaken to ensure to
all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant to
provide an effective and enforceable remedy in case
a violation has been established, the Committee
wishes to receive from the State party, within 90
days, information about the measures taken to give
effect to its Views.
7.5 The Committee recalls that the authors were
all suspended from their posts for a period of well
over five years for activities considered contrary to
the interests of the Government; in this context, it
notes that Mr. Dobou was a civil servant, whereas
Messrs Aduayom and Diasso, were employees of the
University of Benin, which is in practice statecontrolled. As far as the case of Mr. Dobou is
concerned, the Committee observes that access to
public service on general terms of equality
encompasses a duty, for the State, to ensure that
there is no discrimination on the ground of political
opinion or expression. This applies a fortiori to those
who hold positions in the public service. The rights
enshrined in article 25 should also be read to
encompass the freedom to engage in political
activity individually or through political parties,
freedom to debate public affairs, to criticize the
Government and to publish material with political
content.
APPENDIX
Individual opinion submitted by Mr. Fausto Pocar
pursuant to rule 94, paragraph 3, of the Committee’s rules
of procedure, concerning the Vews of the Committee on
communications Nos. 422 - 424/1990, Adimayo M.
Aduayom, Sofianou T. Diasso and Yawo S. Dobou
v. Togo
While I concur with the Committee's findings on
the issues raised by the authors' claims under articles 19
and 25 (c), I cannot subscribe to the Committee's
conclusions on issues raised under article 9, paragraph 5,
of the Covenant. On this issue, the Committee argues that
since it is precluded ratione temporis from establishing the
lawfulness of the authors' arrest and detention under
article 9, paragraph 1, of the Covenant, it is also precluded
ratione temporis from examining their claim to
compensation under article 9, paragraph 5. I cannot share
these conclusions, for the following reasons.
7.6 The Committee notes that the authors were
suspended from their posts for alleged "desertion" of
the same, after having been arrested for activities
deemed to be contrary to the interests of the State
party's Government. Mr. Dobou was a civil servant,
whereas Messrs. Aduayom and Diasso were
employees of the University of Benin, which is in
practice state-controlled. In the circumstances of the
authors' respective cases, an issue under article
25 (c) arises in so far as the authors' inability to
recover their posts between 30 June 1988 and
27 May and 1 July 1991, respectively, is concerned.
In this context, the Committee notes that the nonpayment of salary arrears to the authors is a
consequence of their non-reinstatement in the posts
they had previously occupied. The Committee
concludes that there has been a violation of article
25 (c) in the authors' case for the period from
30 June 1988 to 27 May and to 1 July 1991,
respectively.
Firstly, it is my personal view that the claim under
article 9, paragraph 1, could have been considered by the
Committee even if the alleged facts occurred prior to the
entry into force of the Optional Protocol for Togo. As I
had the opportunity to indicate with regard to other
communications, and in more general terms when the
Committee discussed its General Comment on
reservations (see CCPR/C/SR.1369, page 6, paragraph
31), the Optional Protocol provides for a procedure which
enables the Committee to monitor the implementation of
the obligations assumed by States parties to the Covenant,
but it has no substantive impact on the obligations as such,
which must be observed as from the entry into force of the
Covenant. In other words, it enables the Committee to
consider violations of such obligations not only within the
reporting procedure established under article 40 of the
Covenant, but also in the context of the consideration of
individual communications. From the merely procedural
8.
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 as found by the
Committee reveal violations by Togo of articles 19
and 25 (c) of the Covenant.
31
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