CCPR/C/130/D/2780/2016
sufficient to establish the alleged lack of impartiality. In addition, the authors never filed a
motion for the removal of the judge. The Committee notes, in fact, that the authors have
always had the opportunity to appeal the judge’s decisions and have done so successfully at
least once with the Court of Cassation’s decision of 21 September 2000. The Committee finds
that the authors have not exhausted the available remedies, within the meaning of article 5
(2) (b) of the Optional Protocol, relating to the allegations concerning the lack of impartiality
of judge X and have not sufficiently substantiated their claim in this regard. The Committee
therefore considers the claim inadmissible under article 2 of the Optional Protocol.
c.
Reasonable time period
10.8 The Committee further considers that even if the proceedings initiated by the authors
have been considerably prolonged, extending over a period of 26 years, they cannot be
considered to be unreasonably prolonged within the meaning of article 5 (2) (b) of the
Optional Protocol, since the length of the domestic proceedings is mainly the consequence
of the series of appeals filed by the authors contesting the two decisions of the judicial
authorities ordering the seizure and sale of their house at auction because of their failure to
repay the loan obtained for its construction. This delay is therefore not attributable to the
State party.
10.9 In this context, the Committee observes that the State party considers that the authors
have failed to exhaust all available domestic remedies, as they did not invoke, or did so only
indirectly, the alleged violations of article 14 (1) of the Covenant before the domestic courts
and did not seek specific remedies for the allegedly excessive length of the legal proceedings
or the lack of full compensation for lost property. The authors were of the view that any
attempt to seek such remedies was bound to fail, not least because article L141-1 of the Code
of Judicial Organization, which covers only what are referred to as serious miscarriages of
justice, does not, in this case, provide for a useful and effective remedy within the meaning
of article 5 (2) (b) of the Optional Protocol. As the Committee has repeatedly acknowledged,
a State party generally cannot be held accountable for the errors or omissions of authors or
of an independent legal adviser. The Committee also recalls its jurisprudence to the effect
that mere doubts about the effectiveness of domestic remedies do not absolve authors of
communications of the requirement to exhaust them.38 Accordingly, the Committee considers
that it is precluded by article 5 (2) (b) of the Optional Protocol from examining the present
communication.
d.
Violation of article 7 of the Covenant
10.10 Furthermore, the authors believe that the combination of violations that they were
subjected to, including the ultimate loss of their home, amounts to a violation of article 7 of
the Covenant. In response, the State party notes that none of these allegations suggests, in
itself, that there was any treatment that could be described as inhuman or degrading, as there
was no evidence for most of the allegations, and the other alleged violations turned out to be
warranted actions. The Committee is of the view that, in this regard, the violations
complained of by the authors are largely the result of the outcome of the various legal
proceedings in which they were involved. As the authors have not sufficiently substantiated
their claim in this regard, the Committee considers it inadmissible under article 2 of the
Optional Protocol.
e.
Right to enforcement of a court decision
10.11 The authors also claim that articles 2 (3) and 14 (1) and of the Covenant were violated
because they were unable to exercise their right, arising from the right to be heard by a
judicial authority, to the enforcement of a court decision.
10.12 The Committee notes, however, the State party’s argument that the refusal to register
the Court of Cassation’s judgment of 21 September 2000 nullifying the first sale at auction
at the Office of the Mortgage Registrar was caused by the failure of counsel for the authors
to follow the rules, as their registration application was incomplete. In that case, the contested
38
GE.21-01892
D.G. et al. v. the Philippines (CCPR/C/128/D/2568/2015), para. 6.3.
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