in accordance with rule 93 of its rules of procedure,
decide whether or not it is admissible under the
Optional Protocol to the Covenant on Civil and
Political Rights.
The only remaining issue, which might arise under
article 17, is whether there are continuing effects by
virtue of the State party’s failure to compensate the
author for the confiscation of his property. The
Committee recalls that the mere fact that the author
has still not received compensation since the entry
into force of the Optional Protocol does not
constitute an affirmation of a prior violation.59 The
claims are therefore inadmissible ratione temporis,
under article 1 of the Optional Protocol.
8.2 The Committee notes the author’s complaint
relating to the status of his family’s property in 1962
and observes that, irrespective of the fact that those
events occurred prior to the entry into force of the
Optional Protocol for the State party, the right to
property is not protected under the Covenant. Any
allegation concerning a violation of the author’s
right to property per se is thus inadmissible ratione
materiae under article 3 of the Optional Protocol.55
9.
The Human Rights Committee therefore
decides:
(a)
That
the
communication
is
inadmissible under article 1 of the Optional Protocol
and article 93, paragraph 3, of the rules of procedure;
8.3 The author claims that the violations of his
rights under articles 1, 12, 17 and 27; articles 2,
paragraph 1, and 26, separately or in combination;
articles 26 and 17 in combination; and article 5
continued after the entry into force of the Optional
Protocol for the State party on 12 December 1989.
The State party argues that all the author’s claims are
inadmissible ratione temporis. The Committee
considers that it is precluded from examining
violations of the provisions of the Covenant that
occurred prior to the entry into force of the Protocol
for the State party, unless those violations continued
after the entry into force of the Protocol. 56 A
continuing violation is to be interpreted as the
affirmation, by act or by clear implication, of
previous violations by the State party. The measures
taken by the State party prior to the entry into force
of the Optional Protocol for the State party must
continue to produce effects which, in themselves,
would constitute a violation of any of the rights
established in the articles invoked subsequent to the
Protocol’s entry into force.57 In the present case the
Committee notes that the State party has adopted
certain laws since the entry into force of the
Covenant and the Protocol regarding the restitution
of certain property to persons of Algerian
nationality. However, the author has not shown that
these laws apply to him, since they concern only
persons “whose land has been nationalized or who
have given their land as a gift under Ordinance
No. 71-73 of 8 November 1971” (see para. 2.2). 58
(b)
That
this
decision
shall
be
communicated to the State party and to the author,
for their information.
APPENDIX
Individual (concurring) opinion of Committee members
Ms. Elisabeth Palm, Sir Nigel Rodley and Mr. Nisuke
Ando
Although we are in agreement with the majority’s
findings in paragraphs 8.2 and 8.3 we are of the opinion
that the communication should have been declared
inadmissible for abuse of the right of petition and that
paragraphs 8.2 and 8.3 should have been replaced by a
new paragraph 8.2 drafted as follows:
8.2 The Committee notes the delay of 15 years in this
case between the ratification of the Optional Protocol
by the State party in 1989 and the submission of the
communication in 2004. It observes that there are no
explicit time limits for submission of communications
under the Optional Protocol. However, in certain
circumstances, the Committee is entitled to expect a
reasonable explanation justifying such a delay. In the
present case, the Committee notes counsel’s various
arguments which, in his view, explain why the author
was forced to wait until 2004 to submit the
communication to the Committee (see para. 3.7).
With regard to the argument that the State party only
ratified the Covenant and the Optional Protocol in
1989, this does not explain why the author did not
begin proceedings in the State party at that stage. The
Committee notes counsel’s arguments relating to the
proceedings lodged by other persons in France and
before the European Court of Human Rights, which
were concluded by inadmissibility decisions in 2001
before the European Court. However, nothing
indicates that the author himself lodged any such
proceedings in France or before the European Court.
The Committee also notes that the author received
55
See communication No. 566/1993, I.S. v. Hungary,
Views adopted on 23 July 1996, para. 6.1, and
communication No. 516/1992, Simunek v. Czech
Republic, Views adopted on 19 July 1995, para. 4.3.
56
In accordance with its consistent jurisprudence; see
communication No. 516/1992, Simunek v. Czech
Republic, Views adopted on 19 July 1995, para. 4.5, and
communication No. 310/1988, M.T. v. Spain, decision on
admissibility adopted on 11 April 1991, para. 5.2.
57
See communication No. 566/1993, I.S. v. Hungary,
Views adopted on 23 July 1996, para. 6.1.
58
See article 3, Ordinance No. 95-26 of 30 Rabi’ al-thani
1416, corresponding to 25 September 1995, amending and
supplementing Act No. 90-25 of 18 November 1990
concerning land planning, with reference to Ordinance
No. 62-20 of 24 August 1962.
59
See communication No. 520/1992, E. and A.K. v.
Hungary, decision on admissibility adopted on 7 April
1994, para. 6.6.
43
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents