HUMAN RIGHTS COMMITTEE EXPERTS CONCERNED AT EXTENSIVE USE OF PRE-TRIAL DETENTION IN URUGUAY
Press Release
HR/CT/510
HUMAN RIGHTS COMMITTEE EXPERTS CONCERNED AT EXTENSIVE USE OF PRE-TRIAL DETENTION IN URUGUAY
19980327 Committee Begins Consideration of Fourth Report On Country's Compliance with Civil/Political Rights CovenantExpert members of the Human Rights Committee this morning expressed concern at statistics indicating that 80 per cent of those held in Uruguayan prisons were there as a matter of pre-trial detention, as the Committee began its consideration of Uruguay's fourth periodic report on its compliance with the International Covenant on Civil and Political Rights.
The experts cited several troubling aspects of Uruguay's penal law, including a provision which required that an accused person be committed to pre-trial confinement. Those statutes raised particular concerns, since a state of emergency still existed and disappearances under the former military regime were not investigated because of Uruguay's amnesty law, they said.
Introducing the country's report, Ambassador Jorge Talice of Uruguay's Foreign Ministry, said that human rights had been consistently broadened since the end of military dictatorship in 1985. Uruguay had made restoration of peace and human rights a priority. A new penal code had been approved and would go into effect in June, and constitutional changes had been undertaken to bring Uruguay in line with the Covenant.
While it was impossible to undo the violations of the past, progress had been made in addressing their effects, including through dialogue with the families of those who had disappeared, he said.
Statements were made by the experts from Ecuador, Chile, United Kingdom, Germany, Japan, United States, Egypt, Australia and Italy.
The Human Rights Committee will meet again at 3 p.m. today to continue its consideration of Uruguay's report.
Committee Work Programme
The Human Rights Committee met this morning to begin its consideration of Uruguay's fourth periodic report on its compliance with the International Covenant on Civil and Political Rights (document CCPR/C/95/Add.9).
Article 40 of the Covenant provides that State parties shall submit reports to the Committee on measures they have taken to implement the Covenant's provisions. The report should provide information to changes made or proposed in laws and practices relevant to the Covenant, and progress made since the Committee last considered the State party's implementation of the Covenant's provisions.
According to the report, the Uruguayan Constitution recognizes that all persons are entitled to equal enjoyment and exercise of the rights it guarantees. It guarantees to all inhabitants of the Republic, whether nationals or aliens, the right to be protected in the enjoyment of life, honour, freedom, security, labour and property.
The system of remedies for violations of fundamental human rights in Uruguay was based on the procedures of habeas corpus and amparo, the report states. The Government had begun a process of in-depth discussion on all the substantive and procedural provisions of Uruguayan domestic law. Uruguayan criminal law was also undergoing a complete transformation, aimed at the effective consolidation of fundamental human rights guarantees.
The report states that the bills on reforming the criminal procedure all favoured the principles of oral argument, public hearings, immediacy, concentration, non-delegation, equality of the parties and reasonable duration. The current mixed system, which was both inquisitorial and adversarial, was being replaced by a classic adversarial model in two stages, involving preliminary investigation and trial. The secret inquiry proceedings, which denied defence lawyers access to pre-trial proceedings ordered or implemented by the court, were being abolished and replaced by an open approach. Another innovation contained in the draft Code of Penal Procedure was the development of the remedy of habeas corpus, which was enshrined in article 17 of the Constitution.
While men and women were absolutely equal under the law, and special legislation had been enacted to punish the discrimination of women, there were several specific areas in which full equality had not been achieved, the report states. The National Statistics Institute had reported that 45.5 per cent of women over the age of 14 years were employed, representing 42.4 per cent of the economically active urban population. Yet, four times as many men as women were employers, and two-and-a-half times as many women as men were unpaid family workers. Women's average hourly wage was 75 per cent that of men. That inequality was greatest for professionals and managers, areas in which women's hourly wage was only a little over half that of men in equivalent positions.
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On the issue of women and violence, the report states that Uruguay has developed a strategy covering both prevention and punishment. The scope of the Ministry of the Interior and its close association with crime-related matters provided opportunities for improved prevention from a victim-centred perspective. The Office of Assistance and Treatment gave advice and attention in individual cases. In addition to preventive activities, acts involving domestic violence had been criminalized and incorporated in the Penal Code as of 12 July 1995.
When Uruguay's third periodic report was submitted, the Committee expressed concern about constitutional provisions relating to the declaration of a state of emergency, the report states. The Committee had noted that the grounds for declaring such a state were too broad and that the range of rights which might be derogated from was not in conformity with the Covenant's provisions. However, no change had been made in those constitutional provisions since then.
The report states that the capacity to employ prompt security measures was an instrument which the Constitution placed in the hands of the Executive as a means of dealing with exceptional situations, in order to protect or restore order when it was threatened or affected to such an extent that normal measures were no longer sufficient. Emergency powers were founded on the principle that "the people's well-being is the supreme law", and the constitutional provisions in question did not conflict with the Covenant. Rather, they referred specifically to emergency situations. During states of emergency, the remedy of habeas corpus remained in effect, thus, providing a primary remedy for individuals.
According to the report, an analysis of emergency measures in Uruguayan law showed that they were a response to states of emergency which posed a threat to the State's institutional, legal and social order; that they were initially taken by the Executive, but they could only be extended or suspended by Parliament; that they might result only in arrest or transfer; and that they might not suspend any human right other than freedom of the person. They were enshrined in domestic and international law, and the only restrictions on the rights of the individual which they permitted were temporary and exceptional, directly established, and related to freedom.
Regarding constitutional provisions guaranteeing the right to personal liberty, the report states that several bills were being debated in Parliament aimed at amending national legislation on pre-trial detention. The overall reform of Uruguayan criminal procedures aimed at ensuring that pre-trial detention reverted to its protective role, instead of serving as advance punishment.
Statistics from the Department of Information and Statistics of the Supreme Court of Justice indicates that around 80 per cent of detainees in the
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country's penal institutions fell in the category of accused persons or defendants, the report states. Domestic legal texts and case law had described that situation as a grave violation. To rectify the shortcomings of the system, the Supreme Court of Justice in 1995 drafted a bill on alternatives to prison sentences. The bill stipulated the conditions under which such alternative measures might be applied.
Preventive detention was prohibited in the case of indictments for misdemeanours or offences punishable by a fine, suspension or disqualification, the report states. It might also be replaced with another type of measure if the accused was ill or there were special circumstances which would cause immediate imprisonment to have a detrimental effect. The following were included in the list of alternative measures: rendering services to the community; the payment of collateral; and the seizure of a vehicle for up to six months if it might have been used for the offence in question.
The Committee's observations on Uruguay's third periodic report had cited a lack of adequate police training, the current report states. On 12 July 1995, the Citizens' Security Act was adopted, which had several articles on improving the training of law enforcement officers and of wardens in detention centres. Another act empowered the Ministry of the Interior, and specifically the National Police College, to enter into agreements with the Universidad del Trabajo de Uruguay and the Universidad de la Republica to improve police training. In the penal sphere, an honorary commission was established to advise the Executive on all matters relating to the improvement of the prison system. One of its specific tasks was to propose methods for the progressive classification of inmates.
The Uruguayan system of laws, comprising the Constitution, as well as criminal, substantive and procedural law, recognized and safeguarded all the legal guarantees indispensable to ensure due process of law, the report states. Nevertheless, the Government recognized that there were shortcomings in the compliance of Uruguay's criminal procedure with international norms. Accordingly, since 1995 the four political parties represented in Parliament had committed themselves to initiate far-reaching procedural reforms.
When Uruguay's previous report was considered, the Committee expressed concern about the wording of a number of provisions of internal law governing freedom of expression, the current report states. In response to the doubts expressed by the Committee about the manner in which penalties were applied for breaches of the Press Act, a number of legal decisions were made. The Second Court of Criminal Appeals decided to conduct an exhaustive review of the scope of the right of reply and the limits to which it was subject with respect to freedom of expression and thought.
The report states trade unions had been free in Uruguay since the restoration of democracy in 1985, and there were no restrictions of any kind
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on joining trade unions or federations. The right to strike was not regulated by law. The restrictions laid down by the State were based on considerations of general interest, which might be affected by the withdrawal of services. For example, in the case of hospitals and health services, strikes were not allowed if they affected emergency or serious cases, causing irremediable consequences. Under normal circumstances, the trade union movement was self- governing and authorized the provision of minimum services by trade union members who performed essential community services.
The right to life was constitutionally and legally guaranteed, the report states. There had been no case of enforced disappearance and no extrajudicial or summary executions of individuals or groups during the period covered by the report. While there was no separate offence designated as "torture" in Uruguayan criminal law, any conduct involving torture was prohibited and severely penalized by the country's legal and administrative authorities.
The right to equality was guaranteed by the provisions of article 8 of the Constitution, which stipulates that all persons were equal before the law, the report states. Violence or the threat of violence against anyone on account of their race, religion, colour or origin was criminal conduct, punishable under the country's criminal law.
List of Issues on Uruguay's Report
The Committee's list of issues to be raised on Uruguay's report includes measures taken to combat and prevent all areas of discrimination against women, the results of measures to combat and prevent the occurrence of domestic violence against women, and measures taken to protect minorities -- including Afro- Uruguayans and members of the Guarani-Mbya indigenous group.
The delegation of Uruguay will also be asked to provide information on reported cases of torture or ill-treatment by law enforcement officials, the occurrence of child labour and child abuse and measures taken to combat them, whether the legal provision for the minimum marriageable age had been amended to conform with the Covenant, and measures taken to amend or repeal articles of the Press Act which constituted an impediment to the enjoyment of right of freedom of expression.
Information will also be requested on the following: legal reasons a court might invoke to keep a person in pre-trial detention; special premises that had been made available for the detention of juvenile offenders; instances where the provisions of the Covenant were directly referred to or invoked before the courts; arrangements made for the supervision of prisoners; measures taken to improve prison living conditions; and steps taken to disseminate information to the public at large on the rights recognized in the Covenant.
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The Committee will also be asking for information on the manner in which cases involving disappeared persons had been carried out, as well as action taken to set up an impartial and independent authority to monitor the application of human rights standards and to receive complaints of abuses. The delegation will also be asked to describe measures taken to implement the Committee's views in cases under the Covenant's Optional Protocol.
Introduction of Uruguay's Report
JORGE TALICE, of the Foreign Ministry of Uruguay, introducing his country's report, said that restoration of democratic principles in Uruguay and the recognition of people's human rights had been an important turning point. Those rights were now protected in conformity with the Covenant.
Many positive events had occurred since submission of Uruguay's previous report, he said. It had signed a number of instruments protecting the rights of women and of families who had disappeared during the country's time of trouble, as well as on economic and social rights. A constitutional reform in January 1997 had changed the country's electoral system, making it more transparent.
Uruguay now had a multi-party, rather than a bi-party, system, and national municipal elections were held separately from other elections, he said. Citizens now selected their party's candidate by ballot, thus, breaking the multi-candidate system in effect since the beginning of the century. As a result of the constitutional reforms, claims could now be brought against the State for human rights offences, and the Constitution now also addressed Uruguay's obligations in the environmental sphere.
The constitutional reform had made it possible to include treaties in Uruguay's legal hierarchy, he said. Obligations under international treaties could not be affected by laws at the national level; that gave human rights in Uruguay an internationally recognized status. The country had approved a new penal code and had established habeas corpus as a right that could not be affected by a state of emergency.
The new penal code would leave room for adaptability, he said. Hearings would be public and defenders of the accused would have grater scope. Judges would be limited to the orle of impartial third parties, rather than of investigators as at present, thus, improving the situation of the accused. Other aspects of the code would ensure the rights of imprisoned persons relative to habeas corpus, and timely proceedings would reduce the number of trials. A significant change would come about next June, when there would be a reform to bring trials into alignment with the norms of the Covenant.
He said that new legislative texts had been adopted which incorporated domestic violence and the protection of minors into the penal code. There
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were draft laws on asylum and immigration, and norms promoting the equal rights of women in the public and private spheres had been adopted.
What the resolution of democracy which began in March 1985, family members could not make claims for persons who disappeared during the time of trouble, he said. The country, however, was prevented from retrospectively looking into human rights violations. The release from 12 years of military rule had led to a broad recovery of human rights, and of the principle that "he who causes damage should repair it". Many claims had been filed since 1985, and the country now enjoyed freedom of expression and association, without restriction.
Uruguay had made restoration of peace and human rights a priority, he said. The 13 years of democracy had demonstrated the rightness of that choice. The measures adopted did not provide for impunity, but confirmed the Government's commitment to human rights. It was impossible to undo the violations of the past, but progress had been made and it was hoped that a way would be found to make up for past losses.
The Government had never impeded the process of satisfying the demands of those who had been lost, and would not do so, he said. There were ongoing dialogue with the families of the disappeared. Balance was being created in the society, in preparation for the holding of elections by October of the next year.
Turning to questions raised in the prepared list of issues, he said that administrative tribunals dealt with violations of human rights and with the cases of disappeared persons. Testimony was taken from accused military officials, family members of victims and relevant non-governmental organizations. Following the introduction of democracy, a series of measures had been taken to overcome the problems of the past. They included reparation and other monetary awards. Amnesty had been granted to some military officials, while another law had restored the rights of persons who lost their positions for ideological reasons.
He said that practical measures had been adopted by the Government to combat domestic violence. They included regulations to ensure public awareness of the problem and to protect women from such attacks. The measures also covered violence against children and old people. Uruguay had ratified an Inter-American convention on the eradication of violence against women, adopted by governments of the region in 1994. The crime of rape was also included in the criminal code, and a national institute for women and the family had been established. Its programmes on domestic violence included training for those involved in cases relating to violence against women, such as police officers, doctors, lawyers and officials of municipalities. Telephone hotlines had been established for victims of domestic violence in some municipalities. Assistance, including counselling and the provision of playgrounds for the children of victims, had
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also been offered by the authorities. Uruguay was participating actively in international forums on issues affecting women.
With regard to questions relating to the prohibition of torture and other cruel acts, he said the Ministry of the Interior had established a unit to deal with such cases. The unit processed allegations for possible prosecution. A bill was before the Parliament to incorporate provisions on torture in the penal code. Uruguay had ratified the international Convention on the prevention of torture, and a new code of criminal procedures provided for the dignified treatment of suspects -- their rights were respected. Reported cases of torture had been dealt with and prison sentences imposed. Pre-trial detention was imposed at the discretion of judges depending on the nature of the case. The rights of the accused were respected in preliminary investigations.
GUSTAVO ALVAREZ, of the Foreign Ministry, responding to issues relating to equality of the sexes in Uruguay, said the Government had recently submitted a new periodic report to the Committee on the Elimination of Discrimination against Women, containing a detailed study of the situation of women in Uruguay and outlined measures taken to combat discrimination against them. A national body monitored the situation of women, and provided a number of programmes of assistance to improve their condition, including through libraries and information centres on women. The Ministry of Agriculture and Livestock had established a support programme for women food producers. Programmes had also been established in the areas of education and employment, and a decree had been issued on gender equality in the private and public sectors. An inter-ministerial committee set up under the decree was studying measures to improve further the situation of women in Uruguay. A tripartite body, including the government, labour and employers organizations, had been established to monitor labour legislation.
He said that a new amendment to the draft code on children and adolescents was being elaborated to replace the code in effect since 1934. It would affect the treatment of juvenile offenders in a number of situations, such as their detention in high security establishments, their training, and their continuing family relationships, and would bring Uruguay into line with international norms.
For the first time ever, children in Uruguay would be subject to rights and duties and have inherent safeguards, he said. They had the right to protection by both the family and the State. Children under the age of 12 years had immunity. For those between the ages of 12 and 16 years, judges decided on the method of treatment for offenders.
The new code would also effect other rights of children, he said. It set the minimum age for private and public employment at 15 years, and it established relevant protective measures. The State's duty in caring for
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children was also set out in cases of abandonment, sexual abuse, sexual or economic exploitation, and cruel treatment. The draft did not provide any norm regarding a legal minimum age for marriage, but that issue was being addressed as well.
Under the new code, the regimes would be identical for both legitimate and illegitimate children, he said. In addition, a national programme concerning homeless children, whose numbers had been estimated at around a thousand, was also being implemented, as well as a programme for families at risk.
Comments by Experts
JULIO PRADO VALLEJO, expert from Ecuador, said the Committee had expressed its objection to the Uruguayan amnesty rule. Disappearances were represented crimes against humanity, and Uruguay was not doing enough to punish those crimes. The perpetrators must be punished and the graves identified.
Similarly, Uruguay had not identified the practice of torture in its draft codes, he said. As a result, the practice continued. There was also a problem involving lack of communication in the prisons. Detainees were in a bad situation, but nothing was done in cases of official misconduct. According to one report, 40 out of 59 prison officials were still at work in the prisons where they committed their crimes. What was being done about that?
What happened to the presumption of innocence when a judge could order pre-trial detention, a condition that extended to some 80 per cent of those in prison? he asked. Also, a decree of the military dictatorship was still in effect. As a result, a person could be detained and disappear without a trace. Uruguay had a good democracy; would it consider lifting that military decree?
CECILIA MEDINA QUIROGA, expert from Chile, asked whether investigations of wrongdoing which had yielded no results had involved the military. Under the Covenant, it was a State responsibility to inform people about the rights accorded to them under the Covenant. What effect had the Covenant had on families of the disappeared in Uruguay? Why was the Government not doing something about the situation of women? For example, there were no women in Parliament. In the new code of children's rights, minor girls would be allowed to recognize their out-of-wedlock children. Why not minor boys?
The relationship under law between lawyer and accused was of concern, as was the code on pre-trial proceedings. she said. Also of concern was the report's indication that anyone accused was automatically imprisoned, since there was a provision requiring a judge to sentence an accused person to pre- trial detention. Since the same judge conducted the hearing and sentenced the guilty, the impartiality of the judge was also a matter of concern. Why were the rights of the accused suspended? Further information was requested on the application of habeas corpus with respect to states of emergency.
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Lord COLVILLE, expert from the United Kingdom, said that some people held in pre-trial detention were innocent and would later be found to be so during trial. What was the size of the pre-trial detention problem? The report gave the figure of 80 per cent of the prison population. What were the actual numbers behind that percentage? In how many cases had people been in prison for 120 days, when the judge was obliged to explain why no trial had occurred? How many people had been released after three years, in accordance with the rule that made such release automatic after three years without a trial? The answers to those questions would gave an idea of the scale of the problem.
What transitional steps were expected before the changes in the penal code which had been described would take effect? Would the transition period be characterized by more or less liberty for those imprisoned?
ECKART KLEIN, expert from Germany, said he was a little alarmed by the rules on pre-trial detention in Uruguay. What was the minimum prison sentence under the penal code? The report mentioned divorce at the wife's request -- was there no divorce at the husband's request? The general interest was listed as a possible cause for limiting the right to freedom of movement -- what did that mean? Also, why were Uruguay's ethnic groups not designated as minorities?
NISUKE ANDO, expert from Japan, commended the Government of Uruguay for the timely submission of its report. According to information he had received, there were 165 cases of disappeared persons still outstanding. He understood that non-governmental organizations were prevented by the authorities from carrying out investigations of the disappeared, and asked for clarification of those matters. The Government was to be commended for its recent amendment of the criminal code. Further information was requested on the independence of the judiciary, including how judges were recruited and the terms of their tenure. He also asked for information on the reasons employed for the restriction of some political rights.
THOMAS BUERGENTHAL, expert from the United States, said that prior to the military dictatorship of 1973 to 1985, Uruguay had been a showcase for democracy and social reform in Latin America. It was not in the country's tradition for the authorities not to investigate cases of disappeared persons. Regardless of the governmental good intentions, human rights abuses festered when they were not investigated. Such lapses also strengthened impunity. It was a national obligation to investigate such abused. He requested information on abuses in police detention and called for independent investigations of such cases. He also asked for information on the law against domestic violence, and for the reasons why torture was not considered a crime.
OMRAN EL-SHAFEI, expert from Egypt, asked what alternative existed to pre-trial detention. How successful were they in easing the burden on
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prisons. Full equality between men and women had not been achieved -- what measures had been taken to improve the situation?
ELIZABETH EVATT, expert from Australia, asked what actions had been taken by the authorities to deal with discrimination against women and whether victims were given compensation. The absence of laws to deal with cases of rape in marriage was a matter of concern, given the early age at which girls married. Why was such a practice allowed to continue if rape, in general, was recognized as a crime?
With regard to provisional detention, she expressed surprise that in certain cases a judge lacked discretionary powers and that no consideration was given to the circumstances of the offence. It seemed to be a general rule that suspects were detained, contrary to the Covenant. Clarification was requested on the extent to which Uruguayan authorities had prevented investigations into human rights abuses by the military. The Government must be responsible for the freedom of all members of society. Coming from a country which was still grappling with the consequences of 200 years of discrimination against its indigenous populations, she understood that the ghosts of the past were not easily erased.
FAUSTO POCAR, expert from Italy, said he had followed with sympathy the evolution of the human rights situation in Uruguay since the end of the military dictatorship, expressing pleasure at the improvements which had been made. The Committee had, in the past, stated that cases of disappeared persons should be dealt with by the authorities. He understood that compensation might be provided even though the perpetrators of violence might not be punished or have their cases investigated. Family members of disappeared persons had the right to know how their relations met their fate. Disappeared persons were entitled to recognition of their personality. Failure to investigate such cases amounted to a violation of the Covenant.
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