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.3 Accordingly,
this part of the communication was found to be
inadmissible ratione materiae as incompatible with
the provisions of the Covenant.
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
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.
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.
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".
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.
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.
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).
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
3
See Official Records of the General Assembly, Fortyfourth 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.
6.4 To the extent that the author claimed that the
enforcement of Law No. 15,848 frustrated his right
28
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