equal access to public service, the Committee notes
that article 25 (c) guarantees not only access to
public service, but also a right of retention in the
public service on general terms of equality. In
principle, therefore, the claim falls within the scope
of the provision. The principle of access to public
service on general terms of equality implies that the
State party must not discriminate against anyone, on
any of the grounds set out in article 2, paragraph 1,
of the Covenant. The author claims that the only
reason not to reappoint him was his legal
determination of two controversial judgements, and
that other judges who participated in the same
judgements were appointed to the Supreme Court of
RS or the Constitutional Court of Bosnia and
Herzegovina. The Committee notes, however, that
the rating system used to determine the eligibility
and suitability of judges was complex and based on
objective criteria (see para. 5.2), and that while the
author was given high evaluation marks by the panel,
he was ranked below the threshold set for judges of
Serb ethnicity. On the basis of the material before it,
the Committee considers that the author has failed to
substantiate
sufficiently,
for
purposes
of
admissibility, that his non-inclusion in the
appointment list of judges was exclusively based on
the two controversial judgements he had delivered,
and not on other objective criteria underlying the
ranking system. Accordingly, this claim is
inadmissible under article 2 of the Optional Protocol.
office, who had not been elected by the Association
of Judges and Prosecutors of RS, was not covered by
the flexibility clause in article 76 and therefore in
breach of article 5 of the RS Law on HJPC.
Similarly, the author did not substantiate, for
purposes of admissibility, that the evaluation of his
suitability by the HJPC based on, inter alia, two
judgements, which gave rise to complaints calling
into question his integrity and impartiality, interfered
with his judicial independence or violated his honour
and reputation. Consequently, this part of the
communication is inadmissible under article 2 of the
Optional Protocol.
7.8 The author has invoked article 2 of the
Covenant read together with articles 17 and 25 (c).
This raises the question as to whether the fact that he
had no possibility to appeal the decision of the HJPC
to another instance amounted to a violation of his
right to an effective remedy as provided for by
article 2, paragraphs 3 (a) and (b), of the Covenant.
The Committee recalls that article 2 can only be
invoked in conjunction with a substantive right
protected by the Covenant,7 and only if a violation of
that right has been sufficiently well founded to be
arguable under the Covenant. 8 As the author has
failed to substantiate, for purposes of admissibility,
his claims under articles 17 and 25 (c), his claim of a
violation of article 2 of the Covenant accordingly is
also inadmissible under article 2 of the Optional
Protocol.
7.7 As regards the allegation that the HJPC was
improperly constituted, interfered with his
independence as a judge and violated his honour and
reputation, the Committee notes that the author does
not explicitly invoke a specific provision of the
Covenant in relation to this claim. It considers that
he failed to substantiate, for purposes of
admissibility, that the appointment of a deputy
public prosecutor from the basic public prosecutor’s
8.
The Human Rights Committee therefore
decides:
(a)
That
the
communication
is
inadmissible under articles 2 and 3 of the Optional
Protocol;
(b) That
this
decision
shall
be
communicated to the State party and to the author.
7
Communication No. 275/1988, S.E. v. Argentina,
decision on admissibility adopted on 26 March 1990, para.
5.3.
8
Communication No. 972/2001, Kazantzis v. Cyprus,
decision on admissibility adopted on 7 August 2003, para.
6.6.
14
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents