CCPR/C/12/D/33/1978

Leopoldo Buffo Carballal v. Uruguay, Communication No. 33/1978, U.N. Doc.

CCPR/C/OP/1 at 63 (1984).

Submitted by: Leopoldo Buffo Carballal on 30 May 1978

Alleged victim: The author

State party: Uruguay

Date of adoption of views: 27 March 1981 (twelfth session)

Detention incommunicado--Access to counsel--Habeas corpus--Torture--Delays in

proceedings-Detention despite release order--Extension of time for State party's observations-

-Derogation from Covenant--Burden of proof

Articles of Covenant: 7, 9 (1), (2) and (4), 10 (1), 14 (3) and 19

Article of Optional Protocol: 4 (2}

Views under article 5 (4) of the Optional Protocol

1. The author of this communication, dated 30 May 1978, is Leopoldo Buffo Carballal, a 36-

year-old Uruguayan national, residing in Mexico. He submitted the communication on his

own behalf.

2.1 The author states the following:

2.2 Upon arriving in Argentina on 4 January 1976 (by legally crossing the border between

Uruguay and Argentina), he was arrested without a warrant of arrest and handed over to

members of the Uruguayan Navy, who took him back to the city of Paysand6, Uruguay. He

was not informed of why he had been deprived of his liberty. A few days later he was

transferred to Montevideo.

2.3 During the first period of detention, until 12 February 1976, he was repeatedly subjected

to torture (blows, hanging from his hands and forced to stand motionless--"plantdn"--for long

periods). On 12 February 1976, after having been forced to sign a statement to the effect that

he had suffered no abuses, he was transferred to the military barracks of the Fifth Artillery.

From there, he was taken to a large truck garage. The author describes the events as follows:

They moved us all to a large truck garage with a concrete roof and two big doors that were

open summer and winter. We slept on the floor, which was covered with oil and grease. We

had neither mattress nor blankets. For the first time since I was detained, I was allowed to

take a bath, although I had to put on the same clothes, soiled by my own vomit, blood and

excrement. When I took off the blindfold I became dizzy. Later on, my family was allowed to

send me a mattress. In this dungeon I remained incommunicado, sitting on the rolled-up

mattress during the day, blindfolded and with my hands bound. We were allowed to sleep at

night. The only food was a cup of soup in the morning and another at night. They would not

allow our relatives to bring us food or medicine. I suffered from chronic diarrhoea and

frequent colds.

2.4 On 5 May 1976 he appeared before a military court, and on 28 July 1976 he was brought

before the court again to be notified that his release had been ordered.

2.5 In spite of the order for his release, he was still detained at the Fifth Artillery barracks

under the r6gime of "prompt security measures" until 26 January 1977. He was, however,

forbidden to leave Montevideo and ordered to report to the authorities every 15 days. He

gained asylum in the Embassy of Mexico in Montevideo on 4 March 1977 with his wife and

children. At the time his home was plundered and his belongings were taken away.

2.6 The author claims that during his detention he was effectively barred from any recourse,

not only because he had no access to the outside world while he was held incommunicado

(until 28 July 1976) but also, from then on, because of the interpretation given by the

Uruguayan authorities to the relevant provision of the Constitution in respect of detention

under "prompt security measures". He states that he was never charged with any offence

under the law and alleges that the sole reason for the injustices inflicted upon him was his

political opinions, the nature of which, however, he fails to specify.

2.7 He states that he did not receive any compensation after his release.

2.8 He submits that he was a victim of violations of articles 7, 9 (1, 2, 3, 4, 5), I0 (1 and 3),

12, 17 and 19 (1) of the International Covenant on Civil and Political Rights.

3. On 28 July 1978, the Human Rights Committee decided to transmit the communication to

the State party, under rule 91 of the provisional rules of procedure, requesting information

and observations relerant to the question of admissibility.

4. By letter dated 29 December 1978, the State party argued that the alleged violation took

place on 4 January 1976, prior to the entry into force of the Covenant for Uruguay, and made

the general observation that every person in the national territory has free access to the courts

and to public administrative authorities and may exercise freely all the administrative and

judicial remedies provided for under the legal system of the country.

5. On 24 April 1979, the Human Rights Committee,

(a) Having concluded that, although the date of arrest was prior to the entry into force of the

Covenant for Uruguay, the alleged violations continued after that date,

(b) Being unable to conclude that, with regard to exhaustion of domestic remedies, on the

basis of the information before it, there were any further remedies which the alleged victim

should or could have pursued,

Therefore decided:

(a) That the communication was admissible;

(b) That, in accordance with article 4 (2) of the Optional Protocol, the State party be

requested to submit to the Committee, within six months of the date of the transmittal to it of

this decision, written explanations or statements clarifying the matter and the remedy, if any,

that may have been taken by it.

6. The time-limit for the State party's submission under article 4 (2) of the Optional Protocol

expired on 25 November 1979. By notes dated 23 November 1979 and 13 February 1980, the

State party requested the Committee to accord a reasonable extension of time. The only

submission received to date from the State party consists of a brief note, dated 7 July 1980, in

which the State party reaffirms that the legal system in force affords every guarantee of due

process and adds the following explanations:

The author's assertions about the conditions of his detention under the prompt security

measures are completely unfounded, for in no Uruguayan place of detention may any

situation be found which could be regarded as violating the integrity of persons. Leopoldo

Burro Carballal was arrested on 4 January 1976 for his presumed connections with

subversive activities and was interned under the prompt security measures; he was granted

unconditional release on 28 June 1976. On 29 June 1976 the Fifth Military Court of

Investigation closed the preliminary investigation proceedings for lack of evidence.

Afterwards, Buffo Carballal took refuge in the Mexican Embassy before leaving for Mexico.

The foregoing shows that justice in Uruguay is not arbitrary and that in the absence of any

elements constituting proof of criminal acts, no one is deprived of his liberty. For all these

reasons, the author's assertions, which are merely accusations devoid of all foundation, are

hereby rejected.

7. The Human Rights Committee notes that it has been informed by the Government of

Uruguay in another case (No. 9/1977) that the remedy of habeas corpus is not applicable to

persons detained under the "prompt security measures".

8. The Human Rights Committee has received no further correspondence from the author

subsequent to his original communication of 30 May 1978. Letters addressed to him by the

Secretariat have been returned by the Mexican postal authorities as unclaimed.

9. The Human Rights Committee, considering the present communication in the light of all

information made available to it by the parties as provided in article 5 (1) of the Optional

Protocol, hereby decides to base its views on the following facts which have been essentially

confirmed by the State party, are unrefuted or are uncontested, except for denials of a general

character offering no particular information or explanation. Leopoldo Buffo Carballal was

arrested on 4 January 1976 and held incommunicado for more than five months, much of the

time tied and blindfolded, in several places of detention. Recourse to habeas corpus was not

available to him. He was brought before a military judge on 5 May 1976 and again on 28

June or 28 July 1976, when an order was issued for his release. He was, however, kept in

detention until 26 January 1977.

10. As to the allegations of torture, the Committee notes that they relate explicitly to events

said to have occurred prior to 23 March 1976 (the date on which the Covenant and the

Optional Protocol entered into force for Uruguay). As regards the harsh conditions of Mr.

Buffo Carballal's detention, which continued after that date, the State party has adduced no

evidence that the allegations were duly investigated. A refutation in general terms to the

effect that "in no Uruguayan place of detention may any situation be found which could be

regarded as violating the integrity of persons" is not sufficient. The allegations should have

been investigated by the State party, in accordance with its laws and its obligations under the

Covenant and the Optional Protocol.

11. The Human Rights Committee has considered whether acts and treatment which

primafacie are not in conformity with the Covenant could, for any reasons be justified under

the Covenant in the circumstances. The Government has referred to provisions of Uruguayan

law, including the "prompt security measures". The Covenant (art. 4) allows national

measures derogating from some of its provisions only in strictly defined circumstances, and

the Government has not made any submission of fact or law to justify derogation. Moreover,

some of the facts referred to above raise issues under provisions from which the Covenant

does not allow any derogation under any circumstances.

12. The Human Rights Committee has duly taken note of the State party's submission that

Leopoldo Burro Carballal was arrested and detained for his presumed connection with

subversive activities. Such general reference to "subversive activities" does not, however,

suffice to show that the measures of penal prosecution taken against Leopoldo Buffo

Carballal were compatible with the provisions of the Covenant. The Covenant provides in

article 19 that everyone shall have the right to hold opinions without interference and that the

freedom of expression set forth in paragraph 2 of that article shall be subject only to such

restrictions as are necessary (a) for respect of the rights and reputations of others or (b)for the

protection of national security or of public order (ordre public), or of public health. or morals.

To date, the State party has never explained the scope and meaning of "subversive activities",

which constitute a criminal offence under he relevant legislation. Such an explanation is

particularly necessary in the present case, since the author of the communication contends

that he has been prosecuted solely for his opinions.

13. The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the

International Covenant on Civil and Political Rights, is of the view that these facts, in so far

as they have occurred on or after 23 March 1976 (the date on which the Covenant entered

into force in respect of Uruguay) or continued or had effects which themselves constitute a

violation after that date, disclose violations of the Covenant, in particular of:

Articles 7 and 10 (1), because of the conditions under which Mr. Buffo Carballal was held

during his detention;

Article 9 (1), because he was not released until approximately six or seven months after an

order for his release was issued by the. military court;

Article 9 (2), because he was not informed of the charges brought against him;

Article 9 (3), because he was not brottght before a judge until four months after he was

detained and 44 days after the Covenant entered into force for Uruguay;

Article 9 (4), because recourse to habeas corpus was not available to him;

Article 14 (3), because the conditions of his detention effectively barred him from access to

legal assistance.

14. The Committee, accordingly, is of the view that the State party is under an obligation to

provide effective remedies, if applied for, including compensation for the violations which

Mr. Buffo Carballal has suffered, and to take steps to ensure that sitnilar violations do not

occur in the future.