Hugo 1994

[Theo Pontbriand]

Thesubjects in these portraits, taken in villages in both Rwanda and South Africa, are children up to the age of sixteen, born after the events of 1994. For Hugo, this generation appeared to be unburdened by the past. The portraits present a multitude of contrasts and conflicts and are, typically to Hugo, unresolved images. Many of the children in the portraits are photographed wearing Sunday best or decorative dresses which provide contrast against the rich and gritty earth. Against a landscape that has been witness to such horror, the children seem to offer hope and look towards the promise of the future. Saturated in memories of a devastated community, the African landscape acts as a backdrop for the portraits and seems to exude resilience. The portraits are powerful symbols of the ability to heal and regenerate.

On 19 July 1994, the Human Rights Committee adopted its Views underarticle 5, paragraph 4, of the Optional Protocol, in respect of communicationNo. 322/1988. The text of the Views is annexed to the present document.

Having concluded its consideration of communication No. 322/1988submitted to the Human Rights Committee by Mr. Hugo Rodrguez under theOptional Protocol to the International Covenant on Civil and PoliticalRights,

1. The author of the communication is Hugo Rodrguez, a Uruguayan citizenresiding in Montevideo. Although he invokes violations by Uruguay of articles7, 9, 10, 14, 15, 18 and 19 of the International Covenant on Civil andPolitical Rights, he requests the Human Rights Committee to focus on hisallegations concerning article 7 of the Covenant and on the State party'salleged failure properly to investigate his case, to punish the guiltyand to award him appropriate compensation. The author is the husband ofLuca Arzuaga Gilboa, whose communication No. 147/1983 was also consideredby the Committee. [ Views adopted during the twenty-sixth session, on 1November 1985, in which the Committee held that the facts disclosed violationsof articles 7 and 10, paragraph 1, of the Covenant.]

2.1 In June 1983, the Uruguayan police arrested the author and his wife,together with several other individuals. The author was taken by plainclothespolicemen to the headquarters of the secret police (Direccin Nacionalde Informacin e Inteligencia), where he allegedly was kept handcuffedfor several hours, tied to a chair and with his head hooded. He was allegedlyforced to stand naked, still handcuffed, and buckets of cold water werepoured over him. The next day, he allegedly was forced to lie naked ona metal bedframe; his arms and legs were tied to the frame and electriccharges were applied (picana elctrica) to his eyelids,nose and genitals. Another method of ill-treatment consisted in coilingwire around fingers and genitals and applying electric current to the wire(magneto); at the same time, buckets of dirty water were pouredover him. Subsequently, he allegedly was suspended by his arms, and electricshocks were applied to his fingers. This treatment continued for a week,after which the author was relocated to another cell; there he remainedincomunicado for another week. On 24 June, he was brought beforea military judge and indicted on unspecified charges. He remained detainedat 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 investigationof his case could be initiated. After the re-introduction of constitutionalguarantees in March 1985, a formal complaint was filed with the competentauthorities. On 27 September 1985, a class action was brought before theCourt of First Instance (Juzgado Letrado de Primera Instancia en loPenal de 4 Turno) denouncing the torture, including that suffered bythe author, perpetrated on the premises of the secret police. The judicialinvestigation was not, however, initiated because of a dispute over thecourt's jurisdiction, as the military insisted that only military courtscould legitimately carry out the investigations. At the end of 1986, theSupreme Court of Uruguay held that the civilian courts were competent,but in the meantime, the Parliament had enacted, on 22 December 1986, LawNo. 15,848, the Limitations Act or Law of Expiry (Ley de Caducidad)which effectively provided for the immediate end of judicial investigationinto such matters and made impossible the pursuit of this category of crimescommitted during the years of military rule.

3. The author denounces the acts of torture to which he was subjectedas a violation of article 7 of the Covenant and contends that he and othershave been denied appropriate redress in the form of investigation of theabuses allegedly committed by the military authorities, punishment of thoseheld responsible and compensation to the victims. In this context, he notesthat the State party has systematically instructed judges to apply LawNo. 15,848 uniformly and close pending investigations; the President ofthe Republic himself allegedly advised that this procedure should be appliedwithout exceptions. The author further contends that the State party cannot,by simple legislative act, violate its international commitments and thusdeny justice to all the victims of human rights abuses committed underthe previous military rgime.

4.1 The State party argues that the communication should be declaredinadmissible on the ground of non-exhaustion of domestic remedies. It rejectsthe author's contention that his complaints and the judicial proceedingswere frustrated by the enactment of Law No. 15,848. First, the enactmentof the law did not necessarily result in the immediate suspension of theinvestigation of allegations of torture and other wrongdoings, and article3 of the Law provides for a procedure of consultation between the Executiveand the Judiciary. Secondly, article 4 does not prohibit investigationsinto situations similar to those invoked by the author, since the provision"authorizes an investigation by the Executive Power to clarify casesin which the disappearance of persons in presumed military or police operationshas been denounced". Thirdly, the author could have invoked the unconstitutionalityof Law No. 15,848; if his application had been accepted, any judicial investigationinto 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 criminalprosecution of the offenders; it does not leave the victims of the allegedoffences without a remedy". Thus, victims of torture may file claimsfor compensation through appropriate judicial or administrative channels;compensation from the State of Uruguay may, for instance, be claimed inthe competent administrative court. The State party notes that many suchclaims for compensation have been granted, and similar actions are pendingbefore the courts.

4.3 Subsidiarily, it is submitted that Law No. 15,848 is consistentwith the State party's international legal obligations. The State partyexplains that the law "did establish an amnesty of a special kindand subject to certain conditions for military and police personnel allegedto have been engaged in violations of human rights during the period ofthe previous ... rgime .... The object of these legal normative measureswas, and still is, to consolidate the institution of democracy and to ensurethe social peace necessary for the establishment of a solid foundationof respect of human rights". It is further contended that the legalityof acts of clemency decreed by a sovereign State, such as an amnesty oran exemption, may bederived from article 6, paragraph 4, of the Covenantand article 4 of the American Convention on Human Rights. In short, anamnesty or abstention from criminal prosecution should be considered notonly as a valid form of legal action but also the most appropriate meansof ensuring that situations endangering the respect for human rights donot occur in the future. The State party invokes a judgment of the Inter-AmericanCourt of Human Rights in support of its contention. [ Judgment of the Inter-AmericanCourt of Human Rights in the case of Velasquez Rodr guez , given on 29July 1988. Compare, however, the Advisory Opinion OC-13/93 of 16 July 1993,affirming the Commission's competence to find any norm of the internallaw of a State party to be in violation of the latter's obligations underthe American Convention. See also Resolution No. 22/88 in case No. 9850concerning Argentina, given on 4 October 1990, and Report No. 29/92 of2 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 "thatLaw 15,848 of December 22, 1986 is incompatible with Article XVIII (rightto a fair trial) of the American Declaration of the Rights and Duties ofMan, and Articles 1, 8 and 25 of the American Convention on Human Rights."The IACHR further recommended to the Government of Uruguay that it givethe applicant victims or their rightful claimants just compensation, andthat "it adopt the measures necessary to clarify the facts and identifythose responsible for the human rights violations that occurred duringthe de facto period." Annual Report of the Inter- American Commissionon Human Rights, 1992-1993, p. 165.]

5.1 Commenting on the State party's submission, the author maintainsthat Law No. 15,848 does not authorize investigations of instances of tortureby the Executive: its article 4 only applies to the alleged disappearanceof individuals.

5.2 With respect to a constitutional challenge of the law, the authorpoints out that other complainants have already challenged Law No. 15,848and that the Supreme Court has ruled that it is constitutional.

6.1 At its 44th session, the Committee considered the admissibilityof the communication. The Committee ascertained, as it is required to dounder article 5, paragraph 2(a), of the Optional Protocol, that the matterwas not being examined by the Inter-American Commission on Human Rights.

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