5.2 The Committee found that the author had
substantiated his allegations, for purposes of
admissibility, and was satisfied that the
communication was not inadmissible under articles
1, 2, and 3 of the Optional Protocol. It further noted
that the State party conceded that domestic remedies
had been exhausted.
was to leave his post at the lower scale in order to
claim unemployment benefits at a higher scale, while
preparing his entrance into a judicial career.
2.3 On 11 May 1989, the Instituto Nacional de
Empleo declared the author to be on "voluntary
leave of absence" since the end of 1986. The author
contested this decision and continued to assume,
whenever called upon to do so, the functions of a
substitute district judge. He argued that since all
substitute judges contribute to unemployment benefit
insurance, he himself should be able to benefit from
its coverage. He appealed on these grounds against
the decision of 27 May 1988 to the Tribunal
Superior de Justicia de Cataluña which, on 30 April
1990, dismissed his appeal.
6.
On 30 June 1994 the Human Rights
Committee
therefore
decided
that
the
communication was admissible inasmuch as it
appeared to raise issues under articles 14, 25 and 26
of the Covenant.
State party's submissions on the merits
7.1 In its submissions of 13 February and 15 June
1995 the State party contests any violations of the
Covenant. As to the facts of the case, the State party
indicates that the author is not unemployed, but a
civil servant, and that although on several occasions
he has been given leave to assume the post of a
substitute judge, he has always been able to return to
his established post; thus, he has never been
unemployed and accordingly cannot qualify for
unemployment benefits. The author's submission
suffers from the contradiction between his desire to
be a judge on a permanent appointment and his
unwillingness to give up the security of his status as
civil servant in his current position.
2.4 On 22 June 1990, the author filed an appeal
(recurso de amparo) with the Constitutional
Tribunal. On 21 September 1990, the Constitutional
Tribunal rejected his complaint. The author repetitioned the
Constitutional
Tribunal
on
10 November 1990, pointing out that he was the
only substitute judge in all of Spain to whom
unemployment benefits had been denied, and that
this situation violated his constitutional rights. On
3 December 1990, the Constitutional Tribunal
confirmed its earlier decision. With this, the author
submits, available domestic remedies have been
exhausted.
7.2 As to the author's allegation that he is the only
unemployed substitute judge who does not receive
unemployment benefits, the State party states that
the author has not cited a single example of a person
in the same circumstances as himself, i.e. a civil
servant on temporary leave from an established post,
who has been treated differently. Only those
unemployed substitute judges receive unemployment
benefits who are, in fact, unemployed. This is not the
author's situation. Nor can he expect the adoption of
special legislation for himself to allow him to retain
his civil service post while not performing its
functions and, instead, preparing for competitive
exams while receiving unemployment benefits on his
expired substitute judge assignment.
The complaint
3.
The author alleges to be a victim of denial of
equality before the courts, as provided for in article
14, of discrimination in access to public service, in
violation of article 25, paragraph c, and of
discrimination because of denial of unemployment
benefits, in violation of article 26 of the Covenant.
State party's submission on admissibility
4.
In a submission dated 17 September 1991, the
State party stated that "the communication of
Mr. García Pons satisfies, in principle, the conditions
of admissibility set forth in articles 3 and 5,
paragraph 2, of the Optional Protocol ... and that it is
not incompatible with the provisions of the
Covenant". While not objecting to the
communication's admissibility, it indicated that it
would, in due course, make submissions on the
merits.
7.3 With regard to an alleged violation of article
14 of the Covenant, the State party affirms that the
author has had equal access to all Spanish courts,
including the Constitutional Court, and that all of his
complaints were examined fairly by the competent
tribunals, as evidenced in the respective judgments
and other submissions. Admittedly, the author
disagrees with the disposition of his case, but he has
not substantiated a claim that procedural guarantees
were not observed by the various instances involved.
Committee's admissibility decision
5.1 Before considering any claim contained in a
communication, the Human Rights Committee must,
in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the
Optional Protocol to the Covenant.
7.4 As to the alleged violation of article 25 of the
Covenant, the State party points out that at no time
in the many proceedings engaged by the author did
33
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