legitimate objective, namely the re/establishment of
internal law enforcement services free of the influence of
the former regime, as the State party claims, or whether it
was unlawful or arbitrary and or discriminatory, as the
author claims. It is clear from the mere enunciation of the
issue that there is a significant issue here, arising under
article 25 (c) and that it was a question the author should
have been able to raise through the exercise of a remedy
allowing him to challenge the Order.
APPENDIX
Individual opinion submitted by Ms. Elizabeth Evatt,
Ms. Cecilia Medina Quiroga and Ms. Christine Chanet
pursuant to rule 94, paragraph 3, of the Committee’s rules
of procedure, concerning the Views of the Committee on
communication No. 552/1993,
Wieslaw Kall v. Poland
In this case, the author has argued a violation of
article 25 (c) of the Covenant because he was
unreasonably dismissed from the Civic Militia. The
Committee has found that the State did not violate the
Covenant. We cannot agree with this finding on the basis
of the following facts and reasons:
3.
This leads to the examination of whether article 2.3
of the Covenant was complied with by Poland with regard
to the author. Under article 2 (3) of the Covenant States
parties undertake to ensure that any person whose rights
are violated shall have an effective remedy for that
violation. The Committee has taken the view so far that
this article cannot be found to have been violated by a
State unless a corresponding violation of another right
under the Covenant has been determined. We do not think
this is the proper way to read article 2 (3).
1.
A Polish law of 6 April 1990 dissolved the
Security Police and de lege dismissed all its members. It is
a fact that the dissolution of the Security Police was made
because of ethical and political reasons, as stated by the
State itself (para. 10.3). This law did not affect the author,
since he was not a member of the Security Police.
2.
The State argues that the author was dismissed
from his post ex lege, since there was no doubt that the
author’s post was a component part of the Security Police
(paras. 10.1 and 10.2). However, the law was not enough
to dismiss the author from his post, as a further Ministerial
Order was needed. It is hardly conceivable, thus, that there
was no doubt that the author belonged to the Security
Police, what leads us to conclude that the author was not
dismissed from his post ex lege.
It has to be taken into account that article 2 is not
directed to the Committee, but to the States; it spells out
the obligations the States undertake to ensure that rights
are enjoyed by the people under their jurisdiction. Read
that way it does not seem to make sense that the Covenant
should tell the States parties that only when the
Committee has found that a violation has occurred they
should have provided for a remedy. This interpretation of
article 2 (3) would render it useless. What article 2 intends
is to set forth that whenever a human right recognized by
the Covenant is affected by the action of a State agent
there must be a procedure established by the State
allowing the person whose right has been affected to claim
before a competent body that there has been a violation.
This interpretation is in accordance with the whole
rationale underlying the Covenant, namely that it is for the
States parties thereto to implement the Covenant and to
provide suitable ways to remedy possible violations
committed by States organs. It is a basic principle of
international law that international supervision only comes
into play when the State has failed in its duty to comply
with its international obligations.
This being the case, we must start from the
premise that the author was dismissed by the Ministerial
Order of 2 July 1990, and consequently it has to be
examined whether the classification of the author’s
position as part of the Security Police was both a
necessary and proportionate means for securing a
Consequently, since the author had no possibility
to have his claim heard that he had been dismissed
arbitrarily and on the basis of political considerations, a
claim which on the face of it raised an issue on the merits,
we are of the opinion that in this case his rights under
article 2, paragraph 3, were violated.
By further Ordinance No. 69 of 21 May 1990 all
members of the dissolved Security Police were subjected
to a process of verification which, if approved, would
enable them to apply for new jobs in units of the Ministry
of Internal Affairs.
A subsequent Order of 2 July 1990 of the Minister
of Internal Affairs gave a list of positions which would be
considered to belong to the Security Police, among which
the author’s position was found. There was no domestic
remedy to appeal that order (para. 8.3).
81
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents