Gueye v. France
From DADEL
Case Summary
Gueye v. France
Human Rights Committee
Communication No. 196/1985 :
France. 06/04/89.CCPR/C/35/D/196/1985
The authors of the communication are Ibrahima Gueye and 742 other retired Senegalese members of the French Army, residing in Senegal. The authors claim to be victims of a violation by France of Article 26 of the International Covenant on Civil and Political Rights ("Covenant”).
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Facts
The authors are retired soldiers of Senegalese nationality who served in the French Army prior to the independence of Senegal in 1960. Pursuant to the Code of Military Pensions of 1951, retired members of the French Army, whether French or Senegalese, were treated equally. Pension rights of Senegalese soldiers were the same as those of French soldiers until a new law, enacted in December 1974, provided for different treatment of the Senegalese. Law No. 79/1102 of 21 December 1979 extended to the nationals of Senegal the regime referred to as "crystallization" of military pensions that had already applied since 1 January 1961 to the nationals of other states of the French Union. Law No. 81.1179 of 31 December 1981, applied with retroactive effect to 1 January 1975, has rendered recourse to French tribunals futile.
Admissibility
Based on its prior case law, the Committee determined that the scope of Article 26 of the Covenant permitted the examination of allegations of discrimination with respect to pension rights. The Committee took the view that it had no competence to examine the question of whether the authors were victims of discrimination at any time prior to 17 May 1984, the date on which the Optional Protocol entered into force with respect to France. However, it remained to be determined whether there had been violations of the Covenant subsequent to the said date, as a consequence of acts or omissions related to the continued application of laws and decisions concerning the rights of the applicants. The Committee therefore decided that the communication was admissible.
Merits
The Committee found that there was no evidence to support the allegation that the State party has engaged in racially discriminatory practices vis-à-vis the authors. It noted that nationality as such does not figure among the prohibited grounds of discrimination listed in Article 26, and that the Covenant does not protect the right to a pension, as such. It noted that Article 26 prohibits discrimination, inter alia on the ground of "other status" and found that in the instant case, there is difference in treatment on the basis of nationality acquired upon independence. In assessing whether this difference in treatment followed a reasonable and objective criteria, it noted that not the nationality of the authors but the services rendered by them in the past determined the granting of pensions to them. The authors of the communication had served in the French Armed Forces under the same conditions as French citizens and for 14 years after Senegal's independence their pension entitlements were similar to that of their French counterparts, even though they were of Senegalese nationality. The Committee ruled that subsequent change in nationality could not by itself be considered as a sufficient justification for different treatment. Nor can differences in the economic, financial and social conditions as between France and Senegal be invoked as a legitimate justification. In this regard, the Committee compared the situation of the authors with pensioners of French nationality who lived in Senegal under similar social and economic conditions. Finally, the difficulties in carrying out checks of identity and family situation of retired soldiers in a foreign country so as to prevent abuses in the administration of pension schemes cannot justify a difference in treatment.
Decision
The Committee concluded that the difference in treatment of the authors was not based on reasonable and objective criteria and thus constituted discrimination prohibited by the Covenant. The Committee was of the view that the State party was under an obligation, in accordance with the provisions of Article 2 of the Covenant, to take effective measures to remedy the violations suffered by the victims.