CCPR/C/130/D/3639/2019
requirement of article 5 (2) (b) of the Optional Protocol, insofar as such remedies appear to
be effective in the given case and are de facto available to the author. 10
7.4
The Committee notes the author’s arguments concerning the State party’s failure to
identify the effective remedies that she could have pursued and the feasibility of doing so
within the short time available, since her last gynaecological examination in July took place
only days before the date on which she was allegedly scheduled to have her labour induced,
against her will. The Committee also notes the State party’s argument that the author could
have requested highly protective measures under article 135 of Act No. 29/1998 on
administrative jurisdiction, by initiating a simple de facto action before any Spanish public
authority. It also notes that a decision on such measures must be taken within two days and
that they allow action to be taken immediately without the authority receiving the request
having to be notified beforehand. The Committee notes the author’s argument that taking
legal action would have required her to pay out a considerable amount of money in a short
period of time in order to meet the costs of her legal representation and defence, and that,
failing that, she would have had to apply for free legal aid, which could have taken up to 10
days to be arranged. The Committee recalls its jurisprudence according to which financial
considerations do not, in general, absolve the author from exhausting domestic remedies.11
The Committee also notes that the author submitted her complaint to the Committee on 2
August 2019, four days after her birth plan had been rejected by the hospital, and that she
was represented by two lawyers, one of whom practises in Spain. All the above indicates that
the author could have pursued domestic remedies in order to prevent the alleged involuntary
induction of her labour. The Committee is of the view that the author has not exhausted
available domestic remedies and that her claims are inadmissible under article 5 (2) (b) of the
Optional Protocol.
8.
The Committee therefore decides:
(a)
That the communication is inadmissible under articles 2 and 5 (2) (b) of the
Optional Protocol;
(b)
That the present decision shall be transmitted to the State party and to the
author.
10
11
6
P.L. v. Germany (CCPR/C/79/D/1003/2001), para. 6.5; and A.P.A. v. Spain, communication No.
433/1990, para. 6.2.
P.S. v. Denmark, communication No. 397/1990, para. 5.4; Faurisson v. France
(CCPR/C/58/D/550/1993), para. 6.1; Kly v. Canada (CCPR/C/95/D/1576/2007), para. 6.4.
GE.21-07305