HUMAN RIGHTS COMMITTEE CONCLUDES CONSIDERATION OF REPORT BY URUGUAY

27 March 1998

Press Release
HR/CT/511

HUMAN RIGHTS COMMITTEE CONCLUDES CONSIDERATION OF REPORT BY URUGUAY

19980327 Welcomes Progress on Pretrial Detention, Expresses Concern About Statute of Limitations on Violations under Previous Regime

The Human Rights Committee this afternoon welcomed progress made by Uruguay in furthering its compliance with the International Covenant on Civil and Political Rights but expressed serious concern about its "Ley de Caducicad", or Law of Expiry, which imposed a statute of limitations on human rights violations committed during the dictatorship which ruled the country until 1985.

The Committee Chairman and expert from France, Christine Chanet, said the law in question sacrificed elements of justice for peace, which meant that the right to know had been bypassed. Expressing the view of the Committee, she said that not every matter could be resolved through financial reparation; neither justice nor peace should be allowed to suffer.

Addressing that issue, Jorge Talice of Uruguay's Foreign Ministry said the law had emerged from a difficult period, when the desire for peace had required the suspension of justice to some extent. The law had subsequently been challenged and ruled as constitutional by the Supreme Court, and the Uruguayan people had supported it in a referendum.

Welcoming Uruguay's progress in human rights, the Committee cited the significant progress made in the area of detention, noting that pretrial detention was now the exception and not the rule. However, the need to address inequalities with respect to women was stressed, as well as the need for a more comprehensive approach to the situation of Uruguay's indigenous, minority population.

Statements were made by the experts from Finland, Canada, India, Chile, Australia, Italy, Japan and Lebanon.

The Committee will meet again at 10 a.m. on Monday, 30 March, to consider its draft comments on article 12 of the Covenant, which concerns the right to freedom of movement.

Committee Work Programme

The Human Rights Committee met this afternoon to continue 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). The country's delegation was expected to continue its response to a prepared list of issues it received from the Committee. (For background on the report and the list of issues, see Press Release HR/CT/510 of 27 March.)

Response to List of Issues

JORGE TALICE, of the Foreign Ministry of Uruguay, said some of the Committee's questions could not be answered because the delegation lacked sufficient information; for those, a written response would be submitted to the Committee.

He said he would convey the Committee's concerns about the State's responsibility for the actions by the military during the "de facto period" to his Government. That was a problem which had been under discussion for almost three years. The Government's position had not changed throughout that period, and the basic components of the official position had been stated before the competent international forums, including the Committee. Uruguay was committed to finding solutions for the problem of the disappeared persons. The President had stated that the Government would not place obstacles in the way, and that such a solution would be found in the foreseeable future. The issue was a matter of public debate. National elections would be held next year, and all the candidates would have to address that issue. The Uruguayan people would ultimately determine how a genuine ethical solution would be found to the issue of human rights and disappeared persons.

While the crime of torture was still not addressed in the penal code, there was an awareness that legislation should be put in place for that crime, he said. Several legal bills had been drafted to that end. Although there was no express legislative sanction regarding torture, the penal code did address the question of grave injuries, which included torture. There was no evidence that torture was practised in Uruguay, as confirmed by the reports of non-governmental organizations in the country.

New civil security offences had been created and penalties for existing offences had been increased because of the significant increase of violent crimes, he said. The Government could not ignore that development, which was a source of increasing alarm in many countries. The new crimes and penalties were a response aimed at ensuring civil security.

It was hoped that there would be a solution to the problem of pre-trial or preventive detention once the new code of criminal procedure went into effect, he said . The 80 per cent figure quoted by the experts did accurately

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reflect the situation in Uruguay. There should not be delays in carrying out penal criminal procedures. Uruguay did not have investigatory detention, which did exist during the de facto period. Currently, an individual could only be detained if a report of an offence was made directly to the central authority. There were human rights courses for police and military personnel. In addition, Uruguay had entered into an agreement with the United Nations Centre for Human Rights to develop courses in the field of human rights which were designed for police, prison security, penal and military personnel.

He said the amnesty law was limited to the investigation of military misconduct during the war period, and it was not punitive. The 1985 law had given amnesty for both military and common crimes. As to the whereabouts of missing persons from the troubled times, the Government's position now reflected an evolution which had opened a path to settling that sensitive issue. With the re-establishment of basic freedoms, the country was going forward. Next year's elections would put the issue before the people for their solution.

On the issue of discrimination against women, particularly in decision- making and administrative government posts, he said Uruguay was going forward as much as most countries. It was a new subject area. Uruguay had no law preventing women from access to public activity at the medium level or decision-making level. There had been women in important posts, such as ambassadors and ministers, and Uruguay's Minister of Labour was a woman.

GUSTAVO ALVAREZ, of the Foreign Ministry, said the most recent report of the United Nations Development Programme (UNDP) on his country showed the quota for Uruguay in the area of women's advancement to be one of the highest in the region and among developing countries.

Mr. TALICE said that, as in most places, rape was a criminal offence in Uruguay and was a prosecutable crime. The penalty was void if there was a subsequent marriage with the offending party.

He went on to say that all judicial actions were public and the presence of the accused through his defender was guaranteed at all proceedings. The accused was entitled, in principle, to be present at all proceedings, except in cases where the presence of the accused would interfere with presentation of the facts.

He said the use of preventive detention was not punitive, but was simply intended to ensure that the accused remained accessible to the court. On the impartiality of judges, he said that under the new code the judge would still have important investigative functions, which would not interfere with impartiality, as safeguards would be provided.

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He said that citizenship was suspended when an individual was accused of a serious crime -- which did not include the majority of crimes. Punishments were relative to the crimes committed. There was no medical experimentation in the country's penal system. Freedom of movement was a constitutional right and could only be restricted for reasons of general interest. All constitutional doctrine was based on the concept of the general interest of the public. There was adequate protection given to freedom of movement in Uruguay.

Mr. ALVAREZ, said the figure of 150 cases of forced and involuntary disappearances was not entirely accurate. Of that number, only 27 were cases of disappearance in Uruguay. The other cases were disappearances outside the country. The Committee on Forced and Involuntary Disappearances had also submitted different figures.

The Decree on Discrimination against Women would allow any person who suffered an incident of discrimination to lodge a complaint with the relevant agency or body, he said. Punishment for such discrimination was meted out by the relevant judicial body, and there also were administrative measures that could be taken. The Bill on Juveniles and Adolescents had provisions regarding forced child labour. The Family Court might intervene on basis of a decree by the parents or guardians that adolescents had been forced to work.

Mr. TALICE said Supreme Court justices were designated by the country's General Assembly, and the courts of appeal were designated by the Supreme Court. Judges, attorneys and magistrates were directly designated by the Supreme Court.

He said the international human rights instruments were applicable in Uruguay. There was no express constitutional norm to such effect, but international treaties were directly applied in domestic law. The treaties had a hierarchical value equivalent to or higher than domestic law.

Measures to ensure recourse in the event of human rights violations included an Ombudsman to whom complaints could be brought. A public defender was empowered to investigate acts or omissions which constituted improper activity. The procedure was to submit a complaint to either the public defender or the Ombudsman's Office. A bill to make public officials liable for negligence of duty was also being considered.

Living conditions in prisons across the country were being improved, he said. Nevertheless, problems remained with respect to prisoners' rights, especially with respect to population issues.

He said the new Government had made important investments in the premises of the prisons throughout the country, undertaking extensive constructive and reconditioning work in several prisons. The women's prison in Montevideo had been doubled in area and lodging capacity. The new San José

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prison was being built with a capacity of 2,000 persons. Overall, work had been done to create more than 800 additional places in the prisons, and the Government had dedicated more than $3 million for the projects. Several human rights organizations had inspected the prison facilities, and had evaluated them favourably.

The exercise of the right of freedom of expression involved special responsibilities, and that right could be subjected to certain restrictions to ensure the rights and reputations of all concerned, he said. The Government believed that the effect of the Press Act rendered responsible those who commit offences against others. Its provisions did not restrict any rights under the Covenant. The right of freedom of expression was not restricted or censored. Rather, the Act protected the honour of the human person, as well as national security and public order.

Mr. ALVAREZ said the Government had tried to establish contacts with civil society and international control bodies, including the Committee on Racial Discrimination, to address the situation in Uruguay. The Government had fully complied with the conditions of the Covenant in that area, and all of its preventive work had been successful. It had also decided, for the first time in the country's history, to gather information on the ethnic minorities through surveys. Unfortunately, that took considerable time and the information was now being processed; the results would be included in the country's next report to the Committee. The information would help identify solutions to racial discrimination problems.

Mr. TALICE said that, two days ago, the Government provided written information to the Committee on measures enacted to implement its recommendations on two Optional Protocol cases. That document indicated the way in which the Government was trying to implement the Committee's recommendations. In those two cases, which were still pending, the parties concerned had not used the recourse available to them under legislation to claim compensation. The Government was concerned that the two parties might not act before the statute of limitations expired, which would prevent them from pursing the matter in the courts.

He said that many steps had been taken to publicize the Covenant, and described consultations which had been carried out with various bodies in preparing the country's fourth periodic report. Activities for disseminating information on human rights included seminars by university professionals and by experts.

Comment by Experts

MARTIN SCHEINEN, expert from Finland, drew attention to an individual claim filed by a Uruguayan, in which the Committee had ruled that investigation was warranted. Uruguay had not investigated that case, he said. Faced with

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such recommendations from the Committee, would the Government re-open its consideration of cases it had claimed could not be re-opened? He also asked for additional information on such indigenous minority groups as the Guarani- Mbya people and others.

MAXWELL YALDEN, expert from Canada, said it was good news that there was a human rights office in Uruguay, as well as recourse for human rights violations. It was essential to have a public defender who could do something about human rights violations. Also necessary was the bill on making public officials liable for negligence of duty. It was also good that data was being collected on indigenous peoples. Sources suggested that such people comprised 10 per cent of Uruguay's population and that they were seriously underrepresented in the professions. That indicated discrimination, even if id did not imply intentionality to discriminate. What would Uruguay do about the situation?

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, said Uruguay's human rights record was extremely satisfactory, and the Government should be congratulated. Did the Government maintain a register giving the particulars on individuals who were arrested and detained? Were the relatives of detained persons informed of their status? Was legal aid provided to poor and indigent persons in criminal and civil cases, both brought by them and against them? What steps were taken for the protection of minorities? He urged the Government to establish an actual human rights body, as such a body was necessary to monitor the implementation of human rights and to investigate violations. Was there a freedom of information act in Uruguay? Could a journalist be compelled to reveal a source of information?

CECILIA MEDINA QUIROGA, expert from Chile, asked if the provisions of the Covenant would prevail order contrary to subsequent provisions of domestic law. She expressed the hope that the application of prison sentences for juveniles would be reviewed and that alternatives to jail sentences would be explored further.

ELIZABETH EVATT, expert from Australia, said it was important to understand whether the Covenant would prevail over subsequent laws that were inconsistent with it. Provisions of the Press Act seemed to contradict the Covenant; yet it also seemed to exceed it. Did that law exceed the Covenant regarding the right to freedom of expression?

FAUSTO POCAR, expert from Italy, said he had two questions concerning the Optional Protocol cases. What would be the ordinary statute of limitations on bringing an action for compensation against the State? When bringing a civil action against the State, could the person rely on the views of the Committee asking the court to implement its views, or should that individual bring an ordinary claim invoking the State's liability, without basing it on the views of the Committee?

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NISUKE ANDO, expert from Japan, said there were no provisions concerning minorities in the legislation of many South American countries because they had wanted to emphasize the integration of minorities into the majority. The policy in Uruguay, therefore, should not be one of integrating minorities, but of acknowledging the uniqueness of those groups.

ABDALLAH ZAKHIA, expert from Lebanon, asked whether the amnesty law would apply to cases of genocide. Did an international organization have the right to intervene in such a grave human rights violation?

Mr. TALICE said the statute of limitations relating to human rights violations was not a simple law enacted by Parliament. Rather, it was the result of a difficult period, when the desire for freedom and peace had required the suspension of justice to some extent. The law had been challenged as being unconstitutional and the Supreme Court, which was completely independent, had ruled in favour of the law. In addition, the Uruguayan people, in a referendum, had expressed their support for it. It thus represented a legitimate embodiment of the people's will. The possibility of re-examining the law was not being ruled out, but for the time being there was a strong case for its legitimacy on juridical and constitutional grounds.

On the question of actions relating to disappeared persons, he said that much would depend on what the people decided in the upcoming elections.

Mr. ALVAREZ said the Government faced difficulties in presenting periodic reports on minorities and racial discrimination to the Committee. By considering the second and third periodic reports, the Committee could note the Government's increased awareness in that area.

Some time had passed between the compilation of the report and the delegation's oral presentation, and there had been many changes, he said. For the first time, Uruguay had assumed responsibility for compiling data on ethnic groups and the economic and social situation of the population. That information would be first presented to the Committee on Racial Discrimination this summer. Minority groups comprised only 5 to 7 per cent of the population. Uruguay's position had evolved in response to the recommendations of the relevant human rights bodies, including the Committee.

Mr. TALICE said that both habeas corpus and amparo were provided for in Uruguay's Constitution. A bill was before Parliament to establish the office of a public defender, and the Government would ensure that it was adopted. There had been widespread consensus on the need to institutionalize a public defender entity in Uruguay. There were human rights committees in both houses of Parliament which prepared legislature and also had a monitoring function. The Human Rights Committee of Chamber Deputies investigated human rights violations which occurred during the period of dictatorship.

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He went on to say that treaties were directly applicable by judges and were equal or superior to domestic law. There were no official registers providing data on persons detained in Uruguay, but safeguards and guarantees were set forth in the law. The poor were supplied with a legal defence.

On the right to information, he said there was a principle of transparency in public activity. A bill on corruption in the civil service included express provisions on access to information. That bill was being approved by the Chamber of Deputies for legal status. Communication crimes were sanctioned to ensure the exercise of the freedom of expression. There was no form of prior censorship, and only those who knowingly gave false information were punished, thus ensuring that legitimate freedom of expression would not be impaired.

The statute of limitations was four years, he said. The individuals who had been mentioned had the freedom of taking action within that time-frame. In human rights area, every individual had the legal authority and ability to make such a claim. However, it was not the State's role to search out individuals for that purpose; it was the individual who had to initiate such procedures.

As for the law stating that divorce could be granted solely at the request of the wife and not the husband, he said that was a law from the beginning of the century which had reflected the will in the country. Nevertheless, more recent laws allowed husbands to file for divorce. With regard to disappearances, he said that 27 cases were still pending from the period of the dictatorship. The reports concerning those cases had been transmitted to the Parliament.

Concluding Comments

CHRISTINE CHANET, Committee Chairman and expert from France, said that Uruguay's report reflected progress in the human rights area, including such positive developments as the reforms in the children's code and the new penal procedure law. Yet, several subjects of concern remained. The Expiry Law of the Punitive Powers of the State (Ley de Caducidad) sacrificed elements of justice for peace, which meant that right to know had been bypassed. Not every matter could be resolved through financial reparation. Neither justice nor peace should suffer in the long run. There were also various types of inequality with respect to women. Even though the number of women in higher offices had increased, particular privilege still fell to men.

Significant progress had been made in the area of detention, and pre- trial detention was now the exception and not the rule. The new penal code took account of the crime in determining the sentence. It was also important to underscore a possible misunderstanding with respect to obligations under the Optional Protocol. The State could not require individuals to start from scratch, but must act first and provide the relevant information to the

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individual. If other modes of compensation could be found, the State must take the initiative in finding them.

With respect to minorities, she said that issue relating to them should not be addressed exclusively in terms of discrimination and non-discrimination. Minorities should by recognized by the State in other ways as well.

Mr. TALICE said his delegation was pleased that the Committee had appreciated the Government's efforts to advance in the enjoyment and protection of human rights. Uruguay had been making progress in the applying the Ley de Caducidad. It had put the value of peace above the value of justice. It had stressed responsibility over convictions. There were other very important motives behind that decision, which were well known to members of the Committee. Although there was still some concerns regarding certain provisions of the penal procedures code, they would, in the end, work in accordance with Covenant provisions. He expressed the hope that in five years, Uruguay's report could give evidence of further accomplishments.

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