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.
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
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.2
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.
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
2
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).
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
27
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