Human Rights Committee

Communication No. 1612/2007

Decision under the Optional Protocol to the International Covenant on Civil and Political Rights, adopted by the Committee at its 109th session (14 October–1 November 2013)

Submitted by:F.B.L. (not represented by counsel)

Alleged victim:The author

State party:Costa Rica

Date of communication:17 October 2006 (initial submission)

Date of adoption of decision:28 October 2013

Subject matter: Enforcement of a judgement (exequatur) issued by a foreign court

Procedural issues: Insufficient substantiation of claims

Substantive issues: Right to a fair trial, right to an effective remedy

Articles of the Covenant: 2 (paras. 1-3), 3, 5, 14 (para. 1) and 16

Articles of the Optional Protocol:2

Decision on admissibility*

1.1The author of the communication is F.B.L., a Colombian national born on 5 September 1956, who claims to be victim of a violation by Costa Rica of articles 2 (paras. 1–3), 3, 4, 5, 14 (para. 1) and 16 of the Covenant. The author is not represented by counsel.

1.2On 18 June 2007, the Committee, acting through the Special Rapporteur on new communications and interim measures, determined that observations from the State party were not needed to ascertain the admissibility of this communication.

The facts as presented by the author

2.1The author owned a fishing company called Incamar Ltda, which was registered at the port of Buenaventura, Colombia. A suit was brought against the author for failing to meet a financial obligation. As a result, in December 1989 a boat identified as Puri belonging to the company was seized, and in January 1990 it was placed in the custody of a court official pending the outcome of the proceedings. In 1995 and 1996, respectively, the Second Civil Circuit Court of Cali and the Popayán High Court ruled in favour of the author and ordered the return of the boat and payment for damage to the boat, as well as compensation for loss of profits. Subsequently, the author tried unsuccessfully to enforce the Court of Cali’s judgement in Colombia, through several applications filed before the Popayán High Court, the Administrative Court of Valle del Cauca, the Administrative Division of the Council of State, and the Constitutional Court.

2.2At the end of 2005, the author and his family moved to Costa Rica. On 4 November 2005, the author filed an application before the Supreme Court of Costa Rica against Colombia for enforcement of the judgement (exequatur) of the Popayán High Court of 1996. The author requested the State party’s Supreme Court to order the return of the boat identified as Puri within the terms of the ruling of the Second Civil Circuit Court of Cali, and the payment of damages in the amount of US$ 138,348,104.52.

2.3On 8 March 2006, the Supreme Court rejected the author’s application. It held that Costa Rica had no jurisdiction to deal with the matter, given that the judgment in question had been handed down by a Colombian court, which had absolute and sovereign authority to enforce it; that under the principle of jurisdictional immunity, the State party’s courts could not examine disputes in which one party was a sovereign State; and that, consequently, his application did not fall within the grounds established by article 46 of the Code of Civil Procedure.

2.4 On 3 April and 24 July 2006, the author applied to the Supreme Court of Costa Rica for reconsideration. On 23 August 2006, the Supreme Court upheld its decision of 8 March 2006.

The complaint

3.1The author claims to be the victim of a violation by Costa Rica of articles 2 (paras. 1–3), 3, 4, 5, 14 (para. 1) and 16 of the Covenant.

3.2 The author argues that by rejecting his application for enforcement of the judgement of the Popayán High Court against Colombia, the Supreme Court breached article 2, paragraphs 1, 2 and 3, of the Covenant, as domestic remedies in the State party were ineffective with respect to enforcement of the Colombian judicial decision that granted him a restitution and compensation right.

3.3.He also claims a violation of article 3 of the Covenant, since his right to equality before the law was not respected.

3.4The author argues that given that the State party demonstrated through its judicial proceedings that it was not willing to comply with obligations of international treaties to which it is a party, it has also violated article 5 of the Covenant.

3.5As to article 14, paragraph 1, the author submits that the decision of the Supreme Court rejecting his requests constitutes unequal treatment before the courts and amounts to denial of justice.

3.6The author claims a violation of article 16 of the Covenant on the grounds that the State party’s judicial authorities did not recognize him as a person before the law.

Issues and proceedings before the Committee

4.1Before considering any claim contained in a communication, the Human Rights Committee must determine whether it is admissible under the Optional Protocol to the International Covenant on Civil and Political Rights.

4.2The Committee notes that the author’s claims are related to events that took place in Colombia which the Committee fully examined in its Views on communication No. 1611/2007. It also notes that the author does not provide any substantiation of his claims under the articles of the Covenant invoked by him. Further, the Committee observes that the author’s application for enforcement of the judgement (exequatur) of the Popayán High Court was considered and rejected twice by the State party’s Supreme Court, and that the author’s allegations against these decisions relate primarily to the application of Costa Rican domestic legislation. In this respect, the Committee recalls its jurisprudence, according to which it is incumbent on the courts of States parties to evaluate the facts and evidence in a specific case, or the application of domestic legislation, unless it can be shown that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice. On the basis of the materials submitted by the author, including the Supreme Court’s rulings, the Committee is not in a position to conclude that the Supreme Court acted arbitrarily or that its decisions entailed a manifest error or denial of justice. The Committee considers, therefore, that the author has failed to sufficiently substantiate his claims of violation of articles 2 (paras. 1–3), 3, 4, 5, 14 (para. 1) and 16 of the Covenant and that the communication is therefore inadmissible under article 2 of the Optional Protocol.

5.The Human Rights Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

(b)That this decision shall be transmitted to the State party and to the author.

[Adopted in English, French and Spanish, the English text being the original version. Subsequently to be issued also in Arabic, Chinese and Russian as part of the Committee’s annual report to the General Assembly.]