decided that “the confiscations themselves are not
here at issue, but rather the denial of a remedy to the
authors, whereas other claimants have recovered
their properties or received compensation
therefor”, 49 and that “legislation must not
discriminate among the victims of the prior
confiscations, since all victims are entitled to redress
without arbitrary distinctions”.50 There was therefore
a violation of articles 2, paragraph 1, and 26 of the
Covenant, separately or in combination, and of
articles 26 and 17 in combination.
adoption of the Covenant (December 1966) and its
entry into force (March 1976). Furthermore, the
State party became a party to the Covenant only
when it ratified it on 12 December 1989. Moreover,
according to the rules of procedure, referral to the
Committee is only permissible once domestic
remedies have been exhausted. This appears not to
have been the case for the author who, as a French
national, should first address the competent
authorities in his own country.
Additional comments by the parties
3.14 The claimed violation of article 5 of the
Covenant stems from the destruction of the author’s
rights and freedoms in 1962. According to counsel,
the scope of article 5, paragraph 2, also enables him
to raise the question of implementation of article 17
of the Universal Declaration of Human Rights.
Taking into account the above-mentioned claimed
violations, article 5 was also violated.
5.1 In a letter dated 10 January 2006, counsel
refers to his previous explanations for the delay in
submission of the communication. Owing to the
institution of compensatory measures in France, the
author believed that the State party was not legally
liable for the confiscation. The principle according
to which certain factual situations suspend limitation
for an action for compensation is recognized in
international law. As for the State party’s argument
regarding the “specific period in Algerian history”,
counsel fails to understand how this reference to
history demonstrates the inadmissibility of the
communication and asks the State party to explain
its remark so that he can respond. The State party
does not challenge his repeated affirmation of the
continuing effect of the claimed violations52 after the
entry into force of the Covenant owing to the fact
that the State party, contrary to the Evian agreements
and domestic law, has not established the Court of
Guarantees.
3.15 As for the mental pain and anguish suffered
by the author, counsel maintains that the author’s
relocation entailed very serious moral damage based
on continuing mental suffering and emotional
anguish, together constituting a “confiscation”
trauma. This calls for an official recognition by the
State party of its responsibility in violating the
author’s fundamental rights. Counsel expressly
requests the Committee to note that the State party,
which is in breach of its obligations under the
Covenant and under its domestic legislation, is
obliged to remedy this series of violations. In the
author’s opinion, satisfaction in this case would
constitute an appropriate way of compensating the
moral damage. There would be a degree of
satisfaction in achieving recognition of the fact that
there are good grounds for the communication. He
does not, however, lose sight of the need for
reparation in the form of just and equitable financial
compensation 51 for his confiscated property in
Algeria.
5.2 Regarding exhaustion of domestic remedies,
the author reiterates that adequate and effective
domestic remedies have never been available to him
in Algeria. He recalls the position of the Algerian
authorities—which is well known and has been
vehemently asserted since the dispossession—which
is either to eliminate the legal remedies or not to see
them through so that the violations come to an end.
The author is not obliged to pursue remedies, given
that no French person from Algeria has obtained
satisfaction for dispossession.53 In its reply, the State
party provides no solution or conclusion to the
technical and legal questions raised by the author. As
for the State party’s argument that the author should
seek redress in his own country (France) regarding a
dispute over Algerian Government measures,
counsel questions why the author should be obliged
to involve France. Counsel refers to his exchange of
correspondence with various French authorities in
2005, indicating that the highest French public
State party’s observations
4.
In its observations of 17 October 2005, the
State party argues that the communication should be
declared inadmissible. The facts cited relate to a
specific period in Algerian history and pre-date the
international law”. Counsel also refers to article 2 of the
Charter of Economic Rights and Duties of States adopted
on 12 December 1974 (General Assembly resolution 3281
(XXIX)).
49
Communication No. 516/1992, Simunek v. Czech
Republic, Views adopted on 19 July 1995, para. 11.4.
50
Para. 11.6. See also communication No. 586/1994,
Adam v. Czech Republic, Views adopted on 23 July 1996;
and communication No. 857/1999, Blazek v. Czech
Republic, Views adopted on 12 July 2001, para. 5.8.
51
See communication No. 747/1997, Des Fours v. Czech
Republic, Views adopted on 30 October 2001, para. 9.2.
52
Referring to communication No. 196/1985, Gueye v.
France, Views adopted on 3 April 1989; communication
No. 586/1994, Adam v. Czech Republic, Views adopted on
23 July 1996 (para. 6.3); and communication No. 6/1977,
Sequeira v. Uruguay, Views adopted on 29 July 1980.
53
Communication No. 4/1977, William Torres Ramírez v.
Uruguay, Views adopted on 23 July 1980, para. 9.
41
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