1976 and was detained incommunicado from the date
of arrest until August 1976 when he was brought before
a judge and formally charged with the offence of
"subversive association" and "conspiracy to overthrow
the Constitution followed by preparatory acts". It was
not until then that he was afforded the right to have the
assistance of counsel. He was not allowed to be present
at his trial or to defend himself in person. There was no
pubhc hearing, and judgement was not delivered in
pubhc. On 29 September 1977 he was sentenced by a
military court of first instance to 14 years' imprison
ment. On 17 May 1979 a final judgement was passed by
a court of second instance, upholding the previous
judgement. He has been deprived of аИ his political
rights, including the right to vote, for 15 years.
military tribunals are not competent to judge civilian detainees. Since
the entry into force of the State Security Act (No. 14,068 of 6 July
1972, approved by Parliament) it has been established that offences
against the State come within the jurisdiction of mihtary courts. This
Act gives effect to a constitutional norm, article 330, which provides:
'Anyone who takes action to upset the present Constitution, following
its adoption and publication, or provides means for such action to be
taken, shall be regarded, sentenced and punished as an offender
against the State'. Consequently, the sole jurisdiction for these of
fences is the mihtary, since, from the entry into force of the 1884
Military Penal Code, the duty to safeguard the nation comes
specifically within the sphere of military competence.
On 29 September 1977 Mr. Tourón was sentenced by a court of first
instance to 14 years' imprisonment for "subversive association" (arti
cle 60 (v) of the Military Penal Code) and "conspiracy to overthrow
the Constitution followed by the preparatory acts" (articles 60 (1),
paragraph 6, and 60 (XII)) in a combination of principal and secon
dary offences (Mihtary Penal Code, article 7 and Ordinary Penal
Code, article 56). On 10 October 1977 Colonel Otto Gilomen, counsel
for the accused, appealed to the Supreme Court of Military Justice
against the judgement rendered by the court of first instance. On 17
May 1979 final judgement was passed by a court of second instance,
upholding the previous judgement, and it became enforceable o n 29
June 1979. As may be observed, not only did the accused have the
benefit of due legal assistance in the proceedings but he availed
himself of the remedy of appeal to which Uruguayan legislation en
titled him. It may be added that under Uruguayan law the remedy of
appeal functions automatically in the case of final judgements impos
ing prison sentences of over three years, such sentences not being con
sidered enforceable until they have been comprehensively reviewed on
appeal by the Supreme Court of Mihtary Justice; in other words, in
such cases it is mandatory for counsel to appeal against such
sentences. To continue with the erroneous or false assertions, it is
stated in the communication that Mr. Touron's case has not been sub
mitted to any other international body, when in reality it was brought
before and considered by the Inter-American Commission on Human
Rights as case N o . 2011. With regard to the reference to physical coer
cion, the Government of Uruguay categorically rejects this accusa
tion.
9. As to the allegations of ill-treatment, they are in
such general terms that the Committee makes no finding
in regard to them.
10. The Human Rights Committee has considered
whether acts and treatment, which are prima facie not in
conformity with the Covenant, could for any reasons be
justified under the Covenant, in the circumstances. The
Government has referred to provisions of Uruguayan
law, including the "prompt security measures". The
Covenant (art. 4) ahows national measures derogating
from some of its provisions only in strictly defined cir
cumstances, and the Government has not made any sub
missions of fact or law to justify such derogation.
11. The Human Rights Committee is aware that
under the legislation of many countries criminal of
fenders may be deprived of certain political rights.
However, article 25 of the Covenant permits only
reasonable restrictions. The Committee notes that
Mr. Tourón has been sentenced to 14 years' imprison
ment for "subversive association" and "conspiracy to
overthrow the Constitution followed by preparatory
acts". The State party has not responded to the Com
mittee's request that it should be furnished with copies
of any court orders or decisions relevant to the matter.
The Committee is gravely concerned by this omission.
Although similar requests have been made in a number
of other cases, the Committee has never yet been fur
nished with the texts of any court decisions. This tends
to suggest that judgements, even of extreme gravity, as
in the present case, are not handed down in writing. In
such circumstances, the Committee feels unable, on the
basis of the information before it, to accept either that
the proceedings against Luis Tourón amounted to a fair
trial or that the severity of the sentence imposed or the
deprivation of political rights for 15 years were
justified.
6. The Human Rights Committee notes that the
State party has informed the Committee in another case
(No. 9/1977) that the remedy of habeas corpus is not
applicable to persons detained under the "prompt
security measures".
7. As to the State party's observation in its note
dated 10 July 1980 that the case of Luis Tourón was
brought before and considered by the Inter-American
Commission on Human Rights as case No. 2011, the
Committee recalls that it has already ascertained in con
nection with its consideration of other communications
(e.g. No. 1/1976) that lACHR case No. 2011 (dated 27
January 1976, hsting the names and dates of arrest of a
large number of persons, offering no further details),
predates the entering into force of the Covenant, and
the Optional Protocol for Uruguay, and therefore does
not concern the same matter which the Committee is
competent to consider. Further, the Committee recalls
that no objection was raised by the State party as to the
admissibility of the present communication under rule
91 of the Committee's provisional rules of procedure.
12. In addition, the Human Rights Committee act
ing under article 5 (4) of the Optional Protocol to the In
ternational Covenant on Civil and Political Rights is of
the view that the facts as found by the Committee, in so
far as they continued or occurred after 23 March 1976
(the date on which the Covenant and the Optional Pro
tocol entered into force for Uruguay), disclose viola
tions of the International Covenant on Civil and
Political Rights, in particular of:
8. The Human Rights Committee, considering the
present communication in the light of ah information
made available to it by the parties, as provided in article
5 (1) of the Optional Protocol, hereby decides to base its
views on the following facts which have either been
essentially confirmed by the State party, or are
unrefuted: Luis Tourón was arrested on 21 January
62
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