Consideration of the merits
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.
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.
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).
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.
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."
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 7,4 which provides
that allegations of torture must be fully investigated
by the State:
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.
4
Adopted at the Committee's forty-fourth session
(1992); see Official Records of the General Assembly,
Forty-seventh Session, Supplement No. 40 (A/47/40),
annex VI.A.
29
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