Report of the
Human Rights Committee
Volume II
General Assembly
Official Records Forty-ninth Session
Supplement No. 40 (A/49/40)
Human Rights Committee
Volume II
General Assembly
Official Records Forty-ninth Session
Supplement No. 40 (A/49/40)
United Nations New York, 1994
Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a symbol indicates a reference to a United Nations document.
The present document contains annexes IX and X of the report of the Human Rights Committee. Chapters I to VIII and annexes I to VIII, XI and XII are contained in volume I.
[Original: English]
[21 September 1994]
Chapter
I. ORGANIZATIONAL AND OTHER MATTERS
A. States parties to the Covenant
B. Sessions and agenda
C. Membership and attendance
D. Solemn declaration
E. Working groups
F. Other matters
G. Staff resources
H. Publicity for the work of the Committee
I. Adoption of the report
II. ACTION BY THE GENERAL ASSEMBLY AT ITS FORTY-EIGHTH SESSION AND BY THE COMMISSION ON HUMAN RIGHTS AT ITS FIFTIETH SESSION
III. METHODS OF WORK OF THE COMMITTEE UNDER ARTICLE 40 OF THE COVENANT: OVERVIEW OF PRESENT WORKING METHODS
A. List of issues to be taken up in connection with the consideration of periodic reports of States parties
B. Comments of the Committee at the end of the consideration of reports of States parties
C. The Committee's procedures in dealing with emergency situations
D. Implementation of the Covenant in new States that constituted parts of former States parties to the Covenant
E. General comments
F. Overdue reports
G. Format of the annual report of the Committee under article 45 of the Covenant
IV. SUBMISSION OF REPORTS BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT
A. Reports submitted by States parties under article 40 of the Covenant during the period under review
Chapter
B. Special decisions by the Human Rights Committee concerning reports of particular States
V. STATES THAT HAVE NOT COMPLIED WITH THEIR OBLIGATIONS UNDER ARTICLE 40
VI. CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT
A. Iceland
B. Norway
C. Japan
D. Malta
E. Romania
F. Costa Rica
G. Mexico
H. Cameroon
I. El Salvador
J. Libyan Arab Jamahiriya
K. Jordan
L. Togo
M. Italy
N. Azerbaijan
O. Cyprus
P. Slovenia
Q. Burundi
VII. GENERAL COMMENTS OF THE COMMITTEE
VIII. CONSIDERATION OF COMMUNICATIONS UNDER THE OPTIONAL PROTOCOL
A. Progress of work
B. Growth of the Committee's case-load under the Optional Protocol
C. New approaches to examining communications under the Optional Protocol
Chapter
D. Individual opinions
E. Issues considered by the Committee
F. Remedies called for under the Committee's views
G. Follow-up activities
I. STATES PARTIES TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS AND TO THE OPTIONAL PROTOCOLS AND STATES WHICH HAVE MADE THE DECLARATION UNDER ARTICLE 41 OF THE COVENANT AS AT 29 JULY 1994
A. States parties to the International Covenant on Civil and Political Rights
B. States parties to the First Optional Protocol
C. States which have made the declaration under article 41 of the Covenant
D. Status of the Second Optional Protocol aiming at the abolition of the death penalty
II. MEMBERSHIP AND OFFICERS OF THE HUMAN RIGHTS COMMITTEE, 1993-1994
A. Membership
B. Officers
III. SUBMISSION OF REPORTS AND ADDITIONAL INFORMATION BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT DURING THE PERIOD UNDER REVIEW
IV. STATUS OF REPORTS CONSIDERED DURING THE PERIOD UNDER REVIEW AND OF REPORTS STILL PENDING BEFORE THE COMMITTEE
V. GENERAL COMMENTS UNDER ARTICLE 40, PARAGRAPH 4, OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
General comment No. 23 (50) (art. 27)
VI. AMENDED RULES OF PROCEDURE
VII. LETTER FROM THE CHAIRMAN OF THE COMMITTEE CONCERNING AN OVERDUE REPORT
VIII. LISTS OF STATES PARTIES' DELEGATIONS THAT PARTICIPATED IN THE CONSIDERATION OF THEIR RESPECTIVE REPORTS BY THE HUMAN RIGHTS COMMITTEE AT ITS FORTY-NINTH, FIFTIETH AND FIFTY-FIRST SESSIONS
Page
IX. VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5, PARAGRAPH 4,
OF THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS ............................................... 1
A. Communication No. 321/1988, Maurice Thomas v. Jamaica
(views adopted on 19 October 1993, forty-ninth session) ........ 1
B. Communication No. 322/1988, Hugo Rodríguez v. Uruguay
(views adopted on 19 July 1994, fifty-first session) ........... 5
C. Communication No. 328/1988, Roberto Zelaya Blanco v.
Nicaragua (views adopted on 20 July 1994, fifty-first session) . 12
D. Communication No. 330/1988, Albert Berry v. Jamaica
(views adopted on 7 April 1994, fiftieth session) .............. 20
E. Communication No. 332/1988, Devon Allen v. Jamaica
(views adopted on 31 March 1994, fiftieth session) ............. 31
F. Communication No. 333/1988, Lenford Hamilton v. Jamaica
(views adopted on 23 March 1994, fiftieth session) ............. 37
G. Communication No. 352/1989, Dennis Douglas, Errol Gentles and
Lorenzo Kerr v. Jamaica (views adopted on 19 October 1993,
forty-ninth session) ........................................... 42
H. Communication No. 353/1988, Lloyd Grant v. Jamaica
(views adopted on 31 March 1994, fiftieth session) ............. 50
I. Communication No. 355/1989, George Winston Reid v. Jamaica
(views adopted on 8 July 1994, fifty-first session) ............ 59
J. Communication No. 366/1989, Isidore Kanana v. Zaire
(views adopted on 2 November 1993, forty-ninth session) ........ 65
K. Communication No. 375/1989, Glenmore Compass v. Jamaica
(views adopted on 19 October 1993, forty-ninth session) ........ 68
L. Communication No. 377/1989, Anthony Currie v. Jamaica
(views adopted on 29 March 1994, fiftieth session) ............. 73
M. Communication No. 407/1990, Dwayne Hylton v. Jamaica
(views adopted on 8 July 1994, fifty-first session) ............ 79
N. Communication No. 412/1990, Auli Kivenmaa v. Finland
(views adopted on 31 March 1994, fiftieth session) ............. 85
Appendix ....................................................... 92
O. Communication No. 414/1990, Primo J. Mika Miha v. Equatorial
Guinea (views adopted on 8 July 1994, fifty-first session) ..... 96
Page
P. Communication No. 417/1990, Manuel Balaguer Santacana v. Spain
(views adopted on 15 July 1994, fifty-first session) ........... 101
Appendix ....................................................... 113
Q. Communication No. 418/1990, C. H. J. Cavalcanti Araujo-Jongen
v. the Netherlands (views adopted on 22 October 1993, forty-
ninth session) ................................................. 114
R. Communication No. 425/1990, A. M. M. Doesburd Lannooij Neefs
v. the Netherlands (views adopted on 15 July 1994, fifty-first
session) ....................................................... 120
S. Communication No. 428/1990, François Bozize v. the Central
African Republic (views adopted on 7 April 1994, fiftieth
session) ....................................................... 124
T. Communication No. 440/1990, Youssef El-Megreisi v. the Libyan
Arab Jamahiriya (views adopted on 23 March 1994, fiftieth
session) ....................................................... 128
U. Communication No. 441/1990, Robert Casanovas v. France
(views adopted on 19 July 1994, fifty-first session) ........... 131
V. Communication No. 445/1991, Lyden Champagnie, Delroy Palmer
and Oswald Chisholm v. Jamaica (views adopted on 18 July 1994,
fifty-first session) ........................................... 136
W. Communication No. 449/1991, Barbarín Mojica v. the Dominican
Republic (views adopted on 15 July 1994, fifty-first session) .. 142
X. Communication No. 451/1991, Barry Stephen Harward v. Norway
(views adopted on 15 July 1994, fifty-first session) ........... 146
Y. Communication No. 455/1991, Allan Singer v. Canada
(views adopted on 26 July 1994, fifty-first session) ........... 155
Z. Communication No. 456/1991, Ismet Celepli v. Sweden
(views adopted on 18 July 1994, fifty-first session) ........... 165
AA. Communication No. 458/1991, Albert Womah Mukong v. Cameroon
(views adopted on 21 July 1994, fifty-first session) ........... 171
BB. Communication No. 468/1991, Angel N. Oló Bahamonde v.
Equatorial Guinea (views adopted on 20 October 1993,
forty-ninth session) ........................................... 183
CC. Communication No. 469/1991, Charles Chitat Ng v. Canada
(views adopted on 5 November 1993, forty-ninth session) ........ 189
Appendix ....................................................... 208
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DD. Communication No. 484/1991, H. J. Pepels v. the Netherlands
(views adopted on 15 July 1994, fifty-first session) ........... 221
EE. Communication No. 488/1992, Nicholas Toonen v. Australia
(views adopted on 31 March 1994, fiftieth session) ............. 226
Appendix ....................................................... 236
FF. Communication No. 492/1992, Lauri Peltonen v. Finland
(views adopted on 21 July 1994, fifty-first session) ........... 238
Appendix ....................................................... 244
X. DECISIONS OF THE HUMAN RIGHTS COMMITTEE DECLARING COMMUNICATIONS
INADMISSIBLE UNDER THE OPTIONAL PROTOCOL TO THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS ............................. 246
A. Communication No. 384/1989, R. M. v. Trinidad and Tobago
(decision adopted on 29 October 1993, forty-ninth session) ..... 246
B. Communication No. 421/1990, Thierry Trébutien v. France
(decision adopted on 18 July 1994, fifty-first session) ........ 250
C. Communication No. 431/1990, O. Sara et al v. Finland
(decision adopted on 23 March 1994, fiftieth session) .......... 257
D. Communication No. 433/1990, A. P. A. v. Spain
(decision adopted on 25 March 1994, fiftieth session) .......... 269
Appendix ....................................................... 273
E. Communication No. 436/1990, Manuel Solís Palma v. Panama
(decision adopted on 18 July 1994, fifty-first session) ........ 274
F. Communication No. 452/1991, Jean Glaziou v. France
(decision adopted on 18 July 1994, fifty-first session) ........ 277
G. Communication No. 471/1991, Theophilus Barry v. Trinidad and
Tobago (decision adopted on 18 July 1994, fifty-first session) . 283
H. Communication No. 475/1991, S. B. v. New Zealand
(decision adopted on 31 March 1994, fiftieth session) .......... 287
I. Communication No. 476/1991, R. M. v. Trinidad and Tobago
(decision adopted on 31 March 1994, fiftieth session) .......... 291
J. Communication No. 477/1991, J. A. M. B.-R. v. the Netherlands
(decision adopted on 7 April 1994, fiftieth session) ........... 294
Appendix ....................................................... 299
Page
K. Communication No. 487/1992, Walter Rodríguez Veiga v. Uruguay
(decision adopted on 18 July 1994, fifty-first session) ........ 302
L. Communication No. 489/1992, Peter Bradshaw v. Barbados
(decision adopted on 19 July 1994, fifty-first session) ........ 305
M. Communication No. 497/1992, Odia Amisi v. Zaire
(decision adopted on 19 July 1994, fifty-first session) ........ 310
N. Communication No. 498/1992, Zdenek Drbal v. the Czech Republic
(decision adopted on 22 July 1994, fifty-first session) ........ 312
Appendix ....................................................... 316
O. Communication No. 502/1992, S. M. v. Barbados
(decision adopted on 31 March 1994, fiftieth session) .......... 318
P. Communication No. 504/1992, Denzil Roberts v. Barbados
(decision adopted on 19 July 1994, fifty-first session) ........ 322
Q. Communication No. 509/1992, A. R. U. v. the Netherlands
(decision adopted on 19 October 1993, forty-ninth session) ..... 327
R. Communication No. 510/1992, P. J. N. v. the Netherlands
(decision adopted on 19 October 1993, forty-ninth session) ..... 330
S. Communication No. 517/1992, Curtis Lambert v. Jamaica
(decision adopted on 21 July 1994, fifty-first session) ........ 333
T. Communication No. 520/1992, E. and A. K. v. Hungary
(decision adopted on 7 April 1994, fiftieth session) ........... 336
Appendix ....................................................... 341
U. Communication No. 522/1992, J. S. v. the Netherlands
(decision adopted on 3 November 1993, forty-ninth session) ..... 342
V. Communication No. 524/1992, E. C. W. v. the Netherlands
(decision adopted on 3 November 1993, forty-ninth session) ..... 346
W. Communication No. 534/1993, H. T. B. v. Canada
(decision adopted on 19 October 1993, forty-ninth session) ..... 348
X. Communication No. 544/1993, K. J. L. v. Finland
(decision adopted on 3 November 1993, forty-ninth session) ..... 351
Y. Communication No. 548/1993, R. E. d. B. v. the Netherlands
(decision adopted on 3 November 1993, forty-ninth session) ..... 354
Z. Communication No. 559/1993, J. M. v. Canada (decision adopted
on 8 April 1994, fiftieth session) ............................. 357
Page
AA. Communication No. 565/1993, A. B. v. Italy (decision adopted
on 8 April 1994, fiftieth session) ............................. 360
BB. Communication No. 567/1993, Ponsamy Poongavanam v. Mauritius
(decision adopted on 26 July 1994, fifty-first session) ........ 362
CC. Communication No. 568/1993, K. V. and C. V. v. Germany
(decision adopted on 8 April 1994, fiftieth session) ........... 365
DD. Communication No. 570/1993, M. A. B., W. A. T. and J.-A. Y. T.
v. Canada (decision adopted on 8 April 1994, fiftieth session) . 368
XI. RECOMMENDATION SUBMITTED BY THE COMMITTEE TO THE SUBCOMMISSION
ON PREVENTION OF DISCRIMINATION AND PROTECTION OF MINORITIES
CONCERNING A DRAFT THIRD OPTIONAL PROTOCOL TO THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS
XII. LIST OF DOCUMENTS ISSUED DURING THE REPORTING PERIOD
Views of the Human Rights Committee under article 5, paragraph 4,
of the Optional Protocol to the International Covenant on Civil
A. Communication No. 321/1988, Maurice Thomas v. Jamaica
(views adopted on 19 October 1993, forty-ninth session)
Submitted by: Maurice Thomas
Alleged victim: The author
State party: Jamaica
Date of communication: 10 July 1988
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 19 October 1993,
Having concluded its consideration of communication No. 321/1988, submitted to the Human Rights Committee by Mr. Maurice Thomas under the Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author of the communication and the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
The facts as submitted by the author
1. The author of the communication is Maurice Thomas, a Jamaican citizen currently awaiting execution at St. Catherine District Prison. He claims to be the victim of a violation of articles 7 and 10 of the International Covenant on Civil and Political Rights by Jamaica. a/
2. The author states that on the evening of 9 July 1988, a contingent of soldiers conducted a search in a block of St. Catherine Prison. At the end of their search, some of the soldiers were directed to the death row section where the author and 16 other inmates were detained. The soldiers were accompanied by several prison warders, whom the author mentions by name. Both the soldiers and the warders are said to have maltreated the inmates, including the author. In particular, the author claims that he was severely beaten with rifle butts and that he sustained injuries in his chest, his back, his left hip and his lower abdomen. Moreover, one of the soldiers wounded him in the neck with a bayonet and tore his clothes. The author adds that following the beatings he was thrown back into his cell and left without any kind of medical attention.
The complaint and exhaustion of domestic remedies
3.1 The author claims that he is the victim of a violation of articles 7 and 10 of the Covenant.
3.2 With regard to the requirement of exhaustion of domestic remedies, the author states that he wrote to the Jamaican Minister of Justice and the Parliamentary Ombudsman. On 6 September 1988, he received a letter from the office of the former, informing him that his complaint was being investigated and that he would be contacted again at a later stage. Since then he has had no further information about the result of the investigation. The Parliamentary Ombudsman also replied to the author, that his complaint would receive "the most prompt attention possible". Notwithstanding further enquiries from the author, the Parliamentary Ombudsman has not contacted him again. The author submits that no Government official has ever visited him in prison in order to investigate the alleged incident.
3.3 The author further contends that, since he lacks the financial means to retain counsel for purposes of filing a constitutional motion to the Supreme (Constitutional) Court of Jamaica, a motion under Sections 17 and 25 of the Jamaican Constitution is not an effective remedy available to him within the meaning of article 5, paragraph 2 (b), of the Optional Protocol.
The State party's observations
4. The State party contends that the communication is inadmissible for non-exhaustion of domestic remedies, since the author has failed to pursue constitutional remedies available to him. The State party submits that section 17 of the Jamaican Constitution guarantees protection from cruel, inhuman and degrading treatment, and that pursuant to section 25, anyone who alleges that a right protected by the Constitution has been, is being or is likely to be contravened in relation to him may apply to the Supreme (Constitutional) Court for redress.
The Committee's decision on admissibility
5.1 At its forty-second session, the Committee considered the admissibility of the communication. It noted that the author had submitted his case to the Inter-American Commission on Human Rights, but that the examination thereof was discontinued on 27 March 1990. The Committee found, therefore, that it was not precluded from considering the author's communication under article 5, paragraph 2 (a), of the Optional Protocol.
5.2 The Committee noted the State party's contention that the communication was inadmissible because of the author's failure to pursue the constitutional remedies available to him. It also noted the author's contention that the remedy indicated by the State party was not a remedy available to him because of his lack of financial means and the unavailability of legal aid for purposes of filing a constitutional motion to the Supreme (Constitutional) Court of Jamaica. The Committee further considered that the author had demonstrated that he had made reasonable efforts through administrative demarches to seek redress in respect of ill-treatment allegedly suffered while in detention. The Committee therefore found that the requirements of article 5, paragraph 2 (b), of the Optional Protocol had been met.
5.3 On 4 July 1991, the Committee therefore declared the communication admissible in so far as it might raise issues under articles 7 and 10 of the Covenant.
Review of admissibility
6. In its submission dated 16 February 1993, the State party maintains that the communication is inadmissible for non-exhaustion of domestic remedies. It submits that there exists no absolute obligation under the Covenant for a State party to provide legal aid. In this connection, the State party argues that the author's indigence cannot be attributed to the State party and cannot serve as a justification for not exhausting domestic remedies.
7. The Committee has taken note of the arguments submitted to it by the State party and reiterates that domestic remedies within the meaning of the Optional Protocol must be both available and effective. The Committee considers, that, in the absence of legal aid, a constitutional motion does not, in the circumstances of the instant case, constitute an available remedy within the meaning of article 5, paragraph 2 (b), of the Optional Protocol. There is therefore no reason to revise the Committee's earlier decision on admissibility of 4 July 1991.
Examination of the merits
8. The State party informs the Committee, by submission of 16 February 1993, that it has ordered investigations into the author's allegations and that it will forward the results to the Committee as soon as they are available. The Committee notes that the State party was informed about the author's allegations on 17 November 1988 and that it has not concluded its investigations some 60 months after the event complained of.
9.1 The Committee has considered the communication in the light of all information made available to it by the parties, as required under article 5, paragraph 1, of the Optional Protocol. The Committee notes that the State party has confined itself to issues of admissibility. Article 4, paragraph 2, of the Optional Protocol enjoins the State party to investigate in good faith all the allegations made against it, and to make available to the Committee all information at its disposal. In the circumstances due weight must be given to the author's allegations, to the extent that they have been substantiated.
9.2 It remains uncontested that, on 9 July 1988, the author was assaulted by soldiers and warders, who beat him with rifle butts, as a result of which he sustained injuries in his chest, his back, his left hip and his lower abdomen, for which he did not receive medical treatment. The Committee considers that these claims have been substantiated and that the facts before the Committee amount to degrading treatment within the meaning of article 7 of the International Covenant on Civil and Political Rights and also entail a violation of article 10, paragraph 1, of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of articles 7 and 10, paragraph 1, of the International Covenant on Civil and Political Rights.
11. The Committee is of the view that Mr. Maurice Thomas, a victim of a violation of articles 7 and 10 of the International Covenant on Civil and Political Rights, is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy, including appropriate compensation. The State party is under an obligation to investigate the allegations made by the author with a view to instituting, as appropriate, criminal or other procedures against those found responsible and to take such other measures as may be necessary to prevent similar violations from occurring in the future.
12. The Committee would wish to receive information, within 90 days, on any relevant measures taken by the State party in respect of the Committee's views.
[Done in English, French and Spanish, the English text being the original version.]
a/ The author's claims under articles 7 and 10 refer to the same factual background as in communication No. 320/1988 (Victor Francis v. Jamaica), views adopted on 24 March 1993 (see Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/40), annex XII.K).
B. Communication No. 322/1988, Hugo Rodríguez v. Uruguay
(views adopted on 19 July 1994, fifty-first session)
Submitted by: Hugo Rodríguez
Victim: The author
State party: Uruguay
Date of communication: 23 July 1988 (initial submission)
Date of decision on admissibility: 20 March 1992
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 19 July 1994,
Having concluded its consideration of communication No. 322/1988 submitted to the Human Rights Committee by Mr. Hugo Rodríguez under the Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the author of the communication and the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The author of the communication is Hugo Rodríguez, a Uruguayan citizen residing in Montevideo. Although he invokes violations by Uruguay of articles 7, 9, 10, 14, 15, 18 and 19 of the International Covenant on Civil and Political Rights, he requests the Human Rights Committee to focus on his allegations concerning article 7 of the Covenant and on the State party's alleged failure properly to investigate his case, to punish the guilty and to award him appropriate compensation. The author is the husband of Lucía Arzuaga Gilboa, whose communication No. 147/1983 was also considered by the Committee. a/
The facts as submitted by the author
2.1 In June 1983, the Uruguayan police arrested the author and his wife, together with several other individuals. The author was taken by plainclothes policemen to the headquarters of the secret police (Dirección Nacional de Información e Inteligencia), where he allegedly was kept handcuffed for several hours, tied to a chair and with his head hooded. He was allegedly forced to stand naked, still handcuffed, and buckets of cold water were poured over him. The next day, he allegedly was forced to lie naked on a metal bedframe; his arms and legs were tied to the frame and electric charges were applied (picana eléctrica) to his eyelids, nose and genitals. Another method of ill-treatment consisted in coiling wire around fingers and genitals and applying electric current to the wire (magneto); at the same time, buckets of dirty water were poured over him. Subsequently, he allegedly was suspended by his arms, and electric shocks were applied to his fingers. This treatment continued for a week, after which the author was relocated to another cell; there he remained incomunicado for another week. On 24 June, he was brought before a military judge and indicted on unspecified charges. He remained detained at the "Libertad Prison" until 27 December 1984.
2.2 The author states that during his detention and even thereafter, until the transition from military to civilian rule, no judicial investigation of his case could be initiated. After the re-introduction of constitutional guarantees in March 1985, a formal complaint was filed with the competent authorities. On 27 September 1985, a class action was brought before the Court of First Instance (Juzgado Letrado de Primera Instancia en lo Penal de 4 Turno) denouncing the torture, including that suffered by the author, perpetrated on the premises of the secret police. The judicial investigation was not, however, initiated because of a dispute over the court's jurisdiction, as the military insisted that only military courts could legitimately carry out the investigations. At the end of 1986, the Supreme Court of Uruguay held that the civilian courts were competent, but in the meantime, the Parliament had enacted, on 22 December 1986, Law No. 15,848, the Limitations Act or Law of Expiry (Ley de Caducidad) which effectively provided for the immediate end of judicial investigation into such matters and made impossible the pursuit of this category of crimes committed during the years of military rule.
The complaint
3. The author denounces the acts of torture to which he was subjected as a violation of article 7 of the Covenant and contends that he and others have been denied appropriate redress in the form of investigation of the abuses allegedly committed by the military authorities, punishment of those held responsible and compensation to the victims. In this context, he notes that the State party has systematically instructed judges to apply Law No. 15,848 uniformly and close pending investigations; the President of the Republic himself allegedly advised that this procedure should be applied without exception. The author further contends that the State party cannot, by simple legislative act, violate its international commitments and thus deny justice to all the victims of human rights abuses committed under the previous military regime.
The State party's information and observations and the author's comments thereon
4.1 The State party argues that the communication be declared inadmissible on the ground of non-exhaustion of domestic remedies. It rejects the author's contention that his complaints and the judicial proceedings were frustrated by the enactment of Law No. 15,848. First, the enactment of the law did not necessarily result in the immediate suspension of the investigation of allegations of torture and other wrongdoings, and article 3 of the law provides for a procedure of consultation between the Executive and the Judiciary. Secondly, article 4 does not prohibit investigations into situations similar to those invoked by the author, since the provision "authorizes an investigation by the Executive Power to clarify cases in which the disappearance of persons in presumed military or police operations has been denounced". Thirdly, the author could have invoked the unconstitutionality of Law No. 15,848; if his application had been accepted, any judicial investigation into the facts alleged to have occurred would have been reopened.
4.2 The State party further explains that there are other remedies, judicial and non-judicial, which were not exhausted in the case: first, "the only thing which Law No. 15,848 does not permit ... is criminal prosecution of the offenders; it does not leave the victims of the alleged offences without a remedy". Thus, victims of torture may file claims for compensation through appropriate judicial or administrative channels; compensation from the State of Uruguay may, for instance, be claimed in the competent administrative court. The State party notes that many such claims for compensation have been granted, and similar actions are pending before the courts.
4.3 Subsidiarily, it is submitted that Law No. 15,848 is consistent with the State party's international legal obligations. The State party explains that the law "did establish an amnesty of a special kind and subject to certain conditions for military and police personnel alleged to have been engaged in violations of human rights during the period of the previous ... regime .... The object of these legal normative measures was, and still is, to consolidate the institution of democracy and to ensure the social peace necessary for the establishment of a solid foundation of respect of human rights." It is further contended that the legality of acts of clemency decreed by a sovereign State, such as an amnesty or an exemption, may be derived from article 6, paragraph 4, of the Covenant and article 4 of the American Convention on Human Rights. In short, an amnesty or abstention from criminal prosecution should be considered not only as a valid form of legal action but also the most appropriate means of ensuring that situations endangering the respect for human rights do not occur in the future. The State party invokes a judgement of the Inter-American Court of Human Rights in support of its contention. b/
5.1 Commenting on the State party's submission, the author maintains that Law No. 15,848 does not authorize investigations of instances of torture by the Executive: its article 4 only applies to the alleged disappearance of individuals.
5.2 With respect to a constitutional challenge of the law, the author points out that other complainants have already challenged Law No. 15,848 and that the Supreme Court has ruled that it is constitutional.
Consideration of and decision on admissibility
6.1 At its forty-fourth session, the Committee considered the admissibility of the communication. The Committee ascertained, as it is required to do under article 5, paragraph 2 (a), of the Optional Protocol, that the matter was not being examined by the Inter-American Commission on Human Rights.
6.2 The Committee further took note of the State party's contention that the author had failed to exhaust available domestic remedies and that civil and administrative, as well as constitutional, remedies remained open to him. It observed that article 5, paragraph 2 (b), of the Optional Protocol required exhaustion of local remedies only to the extent that these are both available and effective; authors are not required to resort to extraordinary remedies or remedies the availability of which is not reasonably evident.
6.3 In the Committee's opinion, a constitutional challenge of Law No. 15,848 fell into the latter category, especially given that the Supreme Court of Uruguay has deemed the law to be constitutional. Similarly, to the extent that the State party indicated the availability of administrative remedies possibly leading to the author's compensation, the author plausibly submitted that the strict application of Law No. 15,848 frustrates any attempt to obtain compensation, as the enforcement of the law bars an official investigation of his allegations. Moreover, the author stated that on 27 September 1985 he and others started an action with the Juzgado Letrado de Primera Instancia en lo Penal, in order to have the alleged abuses investigated. The State party did not explain why no investigations were carried out. In the light of the gravity of the allegations, it was the State party's responsibility to carry out investigations, even if as a result of Law No. 15,848 no penal sanctions could be imposed on persons responsible for torture and ill-treatment of prisoners. The absence of such investigation and of a final report constituted a considerable impediment to the pursuit of civil remedies, e.g. for compensation. In these circumstances, the Committee found that the State party itself had frustrated the exhaustion of domestic remedies and that the author's complaint to the Juzgado Letrado de Primera Instancia should be deemed a reasonable effort to comply with the requirements of article 5, paragraph 2 (b).
6.4 To the extent that the author claimed that the enforcement of Law No. 15,848 frustrated his right to see certain former government officials criminally prosecuted, the Committee recalled its prior jurisprudence that the Covenant does not provide a right for an individual to require that the State party criminally prosecute another person. c/ Accordingly, this part of the communication was found to be inadmissible ratione materiae as incompatible with the provisions of the Covenant.
7. On 20 March 1992, the Human Rights Committee decided that the communication was admissible in so far as it appeared to raise issues under article 7 of the Covenant.
The State party's observations
8.1 On 3 November 1992 the State party submitted its observations on the Committee's admissibility decision, focusing on the legality of Law No. 15,848 in the light of international law. It considered the Committee's decision to be unfounded, since the State's power to declare amnesty or to bar criminal proceedings are "matters pertaining exclusively to its domestic legal system, which by definition have constitutional precedence".
8.2 The State party emphasizes that Law No. 15,848 on the lapsing of State prosecutions was endorsed in 1989 by referendum, "an exemplary expression of direct democracy on the part of the Uruguayan people". Moreover, by a decision of 2 May 1988, the Supreme Court declared the law to be constitutional. It maintains that the law constituted a sovereign act of clemency that is fully in accord and harmony with the international instruments on human rights.
8.3 It is argued that notions of democracy and reconciliation ought to be taken into account when considering laws on amnesty and on the lapsing of prosecutions. In this context, the State party indicated that other relevant laws were adopted, including Law No. 15,737, adopted on 15 March 1985, which decreed an amnesty for all ordinary political and related military offences committed since 1 January 1962, and which recognized the right of all Uruguayans wishing to return to the country to do so and the right of all public officials dismissed by the military Government to be reinstated in their respective positions. This law expressly excluded from amnesty offences involving inhuman or degrading treatment or the disappearance of persons under the responsibility of police officers or members of the armed forces. By Law No. 15,783 of 28 November 1985, persons who had been arbitrarily dismissed for political, ideological or trade-union reasons were entitled to reinstatement.
8.4 With regard to the right to judicial safeguards and the obligation to investigate, the State party asserts that Law No. 15,848 in no way restricts the system of judicial remedies established in article 2, paragraph 3, of the Covenant. Pursuant to this law, only the State's right to bring criminal charges lapsed. The law did not eliminate the legal effects of offences in areas outside the sphere of criminal law. Moreover, the State argues, its position is consistent with the judgement of the Inter-American Court of Human Rights in the case of Velasquez Rodríguez that the international protection of human rights should not be confused with criminal justice (para. 174).
8.5 In this connection, the State party contends that "to investigate past events ... is tantamount to reviving the confrontation between persons and groups. This certainly will not contribute to reconciliation, pacification and the strengthening of democratic institutions." Moreover, "the duty to investigate does not appear in the Covenant or any express provision, and there are consequently no rules governing the way this function is to be exercised. Nor is there any indication in the Convention text concerning its precedence or superiority over other duties - such as the duty to punish - nor, of course, concerning any sort of independent legal life detached from the legal and political context within which human rights as a whole come into play ... The State can, subject to the law and in certain circumstances, refrain from making available to the person concerned the means of establishing the truth formally and officially in a criminal court, which is governed by public, not private interest. This, of course, does not prevent or limit the free exercise by such a person of his individual rights, such as the right to information, which in many cases in themselves lead to the discovery of the truth, even if it is not the public authorities themselves that concern themselves with the matter."
8.6 With regard to the author's contention that Law No. 15,848 "frustrates any attempt to obtain compensation, as the enforcement of the law bars an official investigation of his allegations" the State party asserts that there have been many cases in which claims similar to that of the author have succeeded in civil actions and that payment has been obtained.
9. The State party's submission was transmitted to the author for comments on 5 January 1993. In spite of a reminder dated 9 June 1993, no comments were received from the author.
The Committee's views on the merits
10. The Committee has taken due note of the State party's contention that the Committee's decision on admissibility was not well founded.
11. Even though the State party has not specifically invoked article 93, paragraph 4, of the Committee's rules of procedure, the Committee has ex officio reviewed its decision of 20 March 1992 in the light of the State party's arguments. The Committee reiterates its finding that the criteria of admissibility of the communication were satisfied and holds that there is no reason to set aside the decision.
12.1 With regard to the merits of the communication, the Committee notes that the State party has not disputed the author's allegations that he was subjected to torture by the authorities of the then military regime in Uruguay. Bearing in mind that the author's allegations are substantiated, the Committee finds that the facts as submitted sustain a finding that the military regime in Uruguay violated article 7 of the Covenant. In this context, the Committee notes that, although the Optional Protocol lays down a procedure for the examination of individual communications, the State party has not addressed the issues raised by the author as a victim of torture nor submitted any information concerning an investigation into the author's allegations of torture. Instead, the State party has limited itself to justifying, in general terms, the decision of the Government of Uruguay to adopt an amnesty law.
12.2 As to the appropriate remedy that the author may claim pursuant to article 2, paragraph 3, of the Covenant, the Committee finds that the adoption of Law No. 15,848 and subsequent practice in Uruguay have rendered the realization of the author's right to an adequate remedy extremely difficult.
12.3 The Committee cannot agree with the State party that it has no obligation to investigate violations of Covenant rights by a prior regime, especially when these include crimes as serious as torture. Article 2, paragraph 3 (a) of the Covenant clearly stipulates that each State party undertakes "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity". In this context, the Committee refers to its general comment No. 20 (44) on article 7, d/ which provides that allegations of torture must be fully investigated by the State:
"Article 7 should be read in conjunction with article 2, paragraph 3 .... The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective ....
"The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible."
The State party has suggested that the author may still conduct private investigations into his torture. The Committee finds that the responsibility for investigations falls under the State party's obligation to grant an effective remedy. Having examined the specific circumstances of this case, the Committee finds that the author has not had an effective remedy.
12.4 The Committee moreover reaffirms its position that amnesties for gross violations of human rights and legislation such as Law No. 15,848, Ley de Caducidad de la Pretensión Punitiva del Estado, are incompatible with the obligations of the State party under the Covenant. The Committee notes with deep concern that the adoption of this law effectively excludes in a number of cases the possibility of investigation into past human rights abuses and thereby prevents the State party from discharging its responsibility to provide effective remedies to the victims of those abuses. Moreover, the Committee is concerned that, in adopting this law, the State party has contributed to an atmosphere of impunity which may undermine the democratic order and give rise to further grave human rights violations. e/
13. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol, is of the view that the facts before it disclose a violation of article 7, in connection with article 2, paragraph 3, of the Covenant.
14. The Committee is of the view that Mr. Hugo Rodríguez is entitled, under article 2, paragraph 3 (a), of the Covenant, to an effective remedy. It urges the State party to take effective measures (a) to carry out an official investigation into the author's allegations of torture, in order to identify the persons responsible for torture and ill-treatment and to enable the author to seek civil redress; (b) to grant appropriate compensation to Mr. Rodríguez; and (c) to ensure that similar violations do not occur in the future.
15. The Committee would wish to receive information, within 90 days, on any relevant measures adopted by the State party in respect of the Committee's views.
[Adopted in English, French and Spanish, the English text being the original version.]
a/ See Official Records of the General Assembly, Forty-first Session, Supplement No. 40 (A/41/40), annex VIII.B, views adopted during the twenty-sixth session, on 1 November 1985, in which the Committee held that the facts disclosed violations of articles 7 and 10, paragraph 1, of the Covenant.
b/ Judgement of the Inter-American Court of Human Rights in the case of Velasquez Rodríguez, given on 29 July 1988. Compare, however, the Advisory Opinion OC-13/93 of 16 July 1993, affirming the competence of the Inter-American Commission on Human Rights to find any norm of the internal law of a State party to be in violation of the latter's obligations under the American Convention on Human Rights. See also resolution No. 22/88 in case No. 9850 concerning Argentina, given on 4 October 1990, and report No. 29/92 of 2 October 1992 concerning the Uruguayan cases 10.029, 10.036, 10.145, 10.305, 10.372, 10.373, 10.374 and 10.375, in which the Commission concluded that "Law 15,848 of December 22, 1986 is incompatible with article XVIII (right to a fair trial) of the American Declaration of the Rights and Duties of Man, and articles 1, 8 and 25 of the American Convention on Human Rights". The Commission further recommended to the Government of Uruguay that it give the applicant victims or their rightful claimants just compensation, and that "it adopt the measures necessary to clarify the facts and identify those responsible for the human rights violations that occurred during the de facto period". (Annual Report of the Inter-American Commission on Human Rights, 1992-1993, p. 165).
c/ See Official Records of the General Assembly, Forty-fourth Session, Supplement No. 40 (A/44/40), annex XI.B, communication No. 213/1986 (H. C. M. A. v. the Netherlands), declared inadmissible on 30 March 1989, para. 11.6; and ibid., Forty-fifth Session, Supplement No. 40 (A/45/40), annex X.J, communication No. 275/1988 (S. E. v. Argentina), declared inadmissible on 26 March 1990, para. 5.5.
d/ Adopted at the Committee's forty-fourth session, in 1992; see Official Records of the General Assembly, Forty-seventh Session, Supplement No. 40 (A/47/40), annex VI.A.
e/ See the comments of the Committee on Uruguay's third periodic report under article 40 of the Covenant, adopted on 8 April 1993, Official Records of the General Assembly, Forty-eighth Session, Supplement No. 40 (A/48/48), chap. III.
C. Communication No. 328/1988, Roberto Zelaya Blanco v. Nicaragua
(views adopted on 20 July 1994, fifty-first session)
Submitted by: Myriam Zelaya Dunaway and Juan Zelaya,
later joined by their brother, the alleged victim
Victim: Roberto Zelaya Blanco
State party: Nicaragua
Date of communication: 20 July 1988 (initial submission)
The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,
Meeting on 20 July 1994,
Having concluded its consideration of communication No. 328/1988, submitted to the Human Rights Committee by Ms. Myriam Zelaya Dunaway and Juan Zelaya under the Optional Protocol to the International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the authors of the communication and the State party,
Adopts its views under article 5, paragraph 4, of the Optional Protocol.
1. The authors of the initial communication are Myriam Zelaya Dunaway and Juan Zelaya, citizens of the United States of America of Nicaraguan origin, currently residing in the United States. They submit the communication on behalf and upon the request of their brother, Roberto Zelaya Blanco, a Nicaraguan citizen born in 1935, at the time of submission of the communication detained at the prison of Tipitapa, Nicaragua. The authors allege that their brother has been a victim of violations by Nicaragua of articles 7, 9, 10, 14 and 17 of the International Covenant on Civil and Political Rights. In March 1989, Roberto Zelaya was released from detention on the basis of a governmental pardon, and on 19 June 1992 he confirmed the contents of the communication and joined his sister and brother as co-author. He now resides in the United States together with his wife and son.
The facts as submitted by the authors
2.1 Roberto Zelaya Blanco, an engineer and university professor, was arrested without a warrant on 20 July 1979, the day after the assumption of power by the Sandinista Government. He was tried by a Peoples' Tribunal (Tribunal Especial Primero), on account of his outspoken criticism of the Marxist orientation of the Sandinistas. On 23 February 1980, he was sentenced to 30 years' imprisonment. The Tribunal Especial Primero de Apelación confirmed the sentence on 14 March 1980 without an appeal hearing.
2.2 With respect to the issue of exhaustion of domestic remedies, the authors state that because of the political situation in Nicaragua, they were for a long time unable to identify Nicaraguan lawyers willing to take up their brother's case. Only at the beginning of 1989 did Roberto Zelaya inform his family that a lawyer, J. E. P. B., had indicated his readiness to represent him.
2.3 It is submitted that several organizations, including the Inter-American Commission on Human Rights, Amnesty International, the International Commission of Jurists and the International Committee of the Red Cross (Nicaraguan Section), were apprised of Mr. Zelaya's fate and visited him in prison. The authors add that they addressed many written complaints about their brother's fate to various Nicaraguan authorities, including President Daniel Ortega and the prison management, but that they did not receive any reply.
2.4 Upon his release in March 1989, Mr. Zelaya was allegedly threatened by a prison guard, "Comandante Pedro", with the words "Be very careful. If you dare write or speak against the Sandinistas, you will regret it."
The complaint
3.1 The authors submit that there was no wrongdoing or criminal activity on the part of their brother, and that the accusations formulated against him by the Sandinistas (apología del delito; instigación para delinquir) were purely political. It is claimed that Roberto Zelaya was detained arbitrarily from July 1979 to March 1989, that he was denied a fair hearing before an independent and impartial tribunal, that he was tortured and was subjected to pseudo-medical and pharmacological experiments, to inhuman treatment and death threats while in prison, and that the correspondence between Roberto Zelaya and his family was systematically interfered with by the prison authorities.
3.2 The authors submit that their brother's health, already precarious, deteriorated as a result of his detention. They submit that asthma attacks were treated experimentally with cortisone and other drugs. Finally, other inmates and a prison warder A. V. C. are said to have made death threats against Mr. Zelaya on numerous occasions.
The State party's information and the authors' comments thereon
4.1 The State party indicates that Roberto Zelaya Blanco was released from detention pursuant to a presidential pardon of 17 March 1989 (Decreto de Indulto No. 044).
4.2 The authors submit that their brother is currently receiving specialized medical treatment for the ailments developed or aggravated during 10 years of detention, inter alia, asthma and chronic hepatitis. They add that the treatment requires frequent and prolonged hospitalization.
The Committee's decision on admissibility
5.1 The Committee ascertained, as it is required to do under article 5, paragraph 2 (a), of the Optional Protocol, that the case was not under examination by another instance of international investigation or settlement. The general investigation, by regional and intergovernmental human rights organizations, of situations affecting a number of individuals, including the author of a communication under the Optional Protocol, does not constitute the "same matter" within the meaning of article 5, paragraph 2 (a).
5.2 The Committee interpreted the State party's general submission that Mr. Zelaya Blanco had been released from detention as implying that he had been offered an appropriate remedy. However, the Committee reiterated its position that it is implicit in rule 91 of the rules of procedure and article 4, paragraph 2, of the Optional Protocol, that a State party to the Covenant should make available to the Committee all the information at its disposal; this includes, at the stage of the determination of the admissibility of a communication, the provision of sufficiently detailed information about remedies pursued by, as well as remedies still available, to victims of alleged violations of their rights. The State party did not forward such information. On the basis of the information before it, the Committee concluded that there are no further effective remedies available to Roberto Zelaya in the circumstances of his case.
5.3 The Committee observed that the authorities of any State party to the Covenant are under an obligation to investigate alleged human rights violations and to make available appropriate judicial remedies and compensation to victims of such violations, even if they are attributable to a previous administration.
5.4 The Committee considered that the authors' allegations had been sufficiently substantiated, for purposes of admissibility, and that they raised issues under articles 7, 9, 10, 14 and 17 of the Covenant.
5.5 On 20 March 1992, the Human Rights Committee decided that the communication was admissible inasmuch as it appeared to raise issues under articles 7, 9, 10, 14 and 17 of the Covenant.
The State party's observations and the authors' comments thereon
6.1 On 27 July 1992, the State party submitted that the new Government had embarked on a process of national reconciliation, without revanchism. At the same time, Nicaragua's independent judiciary now exercises an eminent role in protecting human rights. Since Mr. Zelaya enjoys all civil and political rights in Nicaragua, he is at liberty to demand compensation or any other remedy he may consider appropriate.
6.2 On 5 October 1992, Roberto Zelaya Blanco responded that he could not expect to receive any compensation from ad hoc tribunals in Nicaragua, heirs of the Tribunales Especiales de Justicia, which had convicted him and others without due process. In particular, he disputes the State party's submission that the Nicar