nature of the Optional Protocol it follows that, unless a
reservation is entered by a State party upon accession to
the Protocol, the Committee's competence also extends to
events that occurred before the entry into force of the
Optional Protocol for that State, provided such events
occurred or continued to have effects after the entry into
force of the Covenant.
article 9, paragraph 1; indeed, the unlawfulness of an
arrest or detention may derive not only from a violation
of the provisions of the Covenant, but also from a
violation of a provision of domestic law. In this latter
case, the right to compensation may exist independently
of whether the arrest or detention can be regarded as the
basis for a claim under article 9, paragraph 1, provided
that it is unlawful under domestic law. In other words,
for the purpose of the application of article 9, paragraph
5, the Committee is not precluded from considering the
unlawfulness of an arrest or detention, even if it might be
precluded from examining it under other provisions of
the Covenant. This also applies when the impossibility to
invoke other provisions is due to the fact that arrest or
detention occurred prior to the entry into force of the
Covenant or, following the majority view, prior to the
entry into force of the Optional Protocol. Since in the
present case the unlawfulness of the authors' arrest and
detention under domestic law is undisputed, I conclude
that their right to compensation under article 9,
paragraph 5, of the Covenant has been violated, and that
the Committee should have made a finding to this effect.
But even assuming, as the majority view does,
that the Committee was precluded ratione temporis from
considering the authors' claim under article 9, paragraph
1, of the Covenant, it would still be incorrect to conclude
that it is equally precluded, ratione temporis, from
examining their claim under article 9, paragraph 5.
Although the right to compensation, to which any person
unlawfully arrested or detained is entitled, may also be
construed as a specification of the remedy within the
meaning of article 2, paragraph 3, i.e. the remedy for the
violation of the right set forth in article 9, paragraph 1,
the Covenant does not establish a causal link between the
two provisions contained in article 9. Rather, the
wording of article 9, paragraph 5, suggests that its
applicability does not depend on a finding of violation of
Communication No. 454/1991
Submitted by: Enrique García Pons
Alleged victim: The author
State party: Spain
Declared admissible: 30 June 1994 (fifty-first session)
Date of adoption of Views: 30 October 1995 (fifty-fifth session)
Badalona. On 20 December 1986, he was appointed
substitute for the District Judge of Badalona, a
function which he performed until 16 October 1987;
following his nomination, he requested his
employer, the Ministry of Labour and Social
Security (INEM), to formalize his change of status
and to certify that he was, in terms of administrative
status, assigned to "special services". The Ministry
did not grant his request.
Subject matter: Alleged discrimination in access to
public service and discrimination
Procedural issues: Non-exhaustion of domestic
remedies - Partial reversal of admissibility
decision
Substantive issues: Discrimination - Denial of fair
hearing - Discrimination in access to public
service
Articles of the Covenant: 14 (1), 25, and 26
2.2 Later in 1987, the author was again appointed
substitute District Judge of Badalona; he did not,
however, assume his functions, since the post of
District Judge had been taken up by a new judge.
The author therefore requested unemployment
benefits (prestaciones de desempleo). Again, he
requested the formal recognition of his
administrative status, but his employer did not
process his request. The same situation prevailed in
1988; the author therefore filed a complaint with the
competent administrative tribunal against the
Instituto Nacional de Empleo, requesting
unemployment benefits. On 27 May 1988, the
Juzgado de lo Social No. 9 (Barcelona) rejected his
request because the author was free to resume his
former post, and therefore did not satisfy the
requirements under the unemployment benefits
scheme. It was argued that what the author intended
Articles of the Optional Protocol and Rules of
procedure: 1, 2, 3, and 5, paragraph 2 (b), and
rule 93 (4)
Finding: No violation
1.
The author of the communication is Enrique
García Pons, a Spanish citizen born in 1951,
currently residing in Badalona, Spain. He claims to
be a victim of violations by Spain of articles 14,
paragraph 1, 25 (c), and 26 of the International
Covenant on Civil and Political Rights.
The facts as submitted by the author
2.1 The author is a civil servant, assigned to the
sub-office of the National Employment Agency
(Instituto Nacional de Empleo) in the municipality of
32
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