CCPR/C/12/D/34/1978

Jorge Landinelli Silva et al. v. Uruguay, Communication No. 34/1978, U.N.

Doc. CCPR/C/OP/1 at 65 (1984).

Submitted by: Jorge Landinelli Silva et al. on 30 May 1978

Alleged victims: The authors

State party: Uruguay

Date of adoption of views: 8 April 1981 (twelfth session)

Derogation from Covenant--State of emergency-Deprivation of political rights Articles of

Covenant: 4 and 25

Views under article 5 (4) of the Optional Protocol

1. The authors of this communication (initial letter dated 30 May 1978 and a further letter

dated 26 February 1981) are Jorge Landinelli Silva, 34 years old, professor of history; Luis E.

Echave Zas, 46 years old, farm labourer; Omar Patron Zeballos, 52 years old, assistant

accountant; Niurka Sala Fern~indez, 49 years old, professor of physics; and Rafael Guarga

Ferro, 39 years old, engineer, all Uruguayan citizens residing in Mexico. They submitted the

communication on their own behalf.

2. The facts of the present communication are undisputed. The authors of the communication

were all candidates for elective office on the lists of certain political groups for the 1966 and

197 1 elections, which groups were later declared illegal through a decree issued by the new

Government of the country in November 1973. In this capacity, Institutional Act No. 4 of 1

September 1976 (art. I (a))' has deprived the authors of the communication of the right to

engage in any activity of a political nature, including the right to vote, for term of 15 years.

3.1 The authors contend that such a deprivation of their rights goes beyond the restrictions

envisaged in article 25 of the Covenant, since suspension of political rights under the

Uruguayan juridical system, as in others, is only permissible as a sanction for certain

categories of penal crimes. They further contend that the duration of the suspension of rights,

as well as the number of categories of persons affected by this suspension, are without

precedent in political history. In conclusion, the authors claim that the fundamental idea upon

which the "Institutional Act No. 4" is based, is incompatible with the principles set forth in

article 25 of the Covenant.

3.2 The authors of the communication state that they have not submitted the same case to any

other procedure of international investigation or settlement.

4. Under rule 91 of the provisional rules of procedure of the Committee, the communication

was transmitted to the State party on 28 September 1978 with the request that the State party

submit, not later than 9 November 1978, information or observations which it might deem

relevant to the question of the admissibility of the communication, in particular as regards the

fulfilment of the conditions set out in article 5 (2) (a) and 5 (2) (b) of the Optional Protocol.

No reply was received from the State party in this connection.

6. On 10 July 1980, the State party submitted its observations under article 4 (2) of the

Optional Protocol. Essentially, it invoked article 4 of the Covenant in the following terms:

The Government of Uruguay wishes to inform the Committee that it has availed itself of the

right of derogation provided for in article 4 (3) of the International Covenant on Civil and

Political Rights. The Secretary-General of the United Nations was informed of this decision

and, through him, notes were sent to the States parties containing the notification of the

Uruguayan State. Nevertheless, the Government of Uruguay wishes to state that it reiterates

the information given on that occasion, namely that the requirements of article 4 (2) of the

Covenant are being strictly complied with--requirements whose purpose is precisely to ensure

the real, effective and lasting defence of human rights, the enjoyment and promotion of which

constitute the basis of our existence as an independent, sovereign nation. Article 25, on which

the authors of the communication argue their case, is not mentioned in the text of article 4

(2). Accordingly, the Government of Uruguay, as it has a right to do, has temporarily

derogated from some provisions relating to political parties. Nevertheless, as is stated in the

third preambular paragraph of Act No. 4, dated I September 1976, it is the firm intention of

the authorities to restore political life.

7. The Committee has considered the present communication in the light of all information

made available to it by the parties, as provided for in article 5 (1) of the Optional Protocol.

8.1 Although the Government of Uruguay, in its submission of 10 July 1980, has invoked

article 4 of the Covenant in order to justify the ban imposed on the authors of the

communication, the Human Rights Committee feels unable to accept that the requirements

set forth in article 4 (1) of the Covenant have been met.

8.2 According to article 4 (1) of the Covenant, the States parties may take measures

derogating from their obligations under that instrument in a situation of public emergency

which threatens the life of the nation and the existence of which has been formally

proclaimed. Even in such circumstances, derogations are only permissible to the extent

strictly required by the exigencies of the situation. in its note of 28 June 1979 to the

Secretary-General of the United Nations (reproduced in document CCPR/C/2/Add.3, p. 4),

which was designed to comply with the formal requirements laid down in article 4 (3) of the

Covenant, the Government of Uruguay has made reference to an emergency situation in the

country which was legally acknowledged in a number of "Institutional Acts". However, no

factual details were given at that time. The note confined itself to stating that the existence of

the emergency situation was "a matter of universal knowledge"; no attempt was made to

indicate the nature and the scope of the derogations actually resorted to with regard to the

rights guaranteed by the Covenant, or to show that such derogations were strictly necessary.

Instead, the Government of Uruguay declared that more information would be provided in

connection with the submission of the country's report under article 40 of the Covenant. To

date neither has this report been received, nor the information by which it was to be

supplemented.

8.3 Although the sovereign right of a State party to declare a state of emergency is not

questioned, yet, in the specific context of the present communication, the Human Rights

Committee is of the opinion that a State, by merely invoking the existence of exceptional

circurestances, cannot evade the obligations which it has undertaken by ratifying the

Covenant. Although the substantive right to take derogatory measures may not depend on a

formal notification being made pursuant to article 4 (3) of the Covenant, the State party

concerned is duty-bound to give a sufficiently detailed account of the relevant facts when it

invokes article 4 (1) of the Covenant in proceedings under the Optional Protocol. It is the

function of the Human Rights Committee, acting under the Optional Protocol, to see to it that

States parties live up to their commitments under the Coyenant. In order to discharge this

function and to assess whether a situation of the kind described in article 4 (1) of the

Covenant exists in the country concerned, it needs full and comprehensive information. if the

respondeat Government does not furnish the required justification itself, as it is required to do

under article 4 (2) of the Optional Protocol and article 4 (3) of the Covenant, the Human

Rights Committee cannot conclude that valid reasons exist to legitimize a departure from the

normal legal rdgime prescribed by the Covenant.

8.4 In addition, even on the assumption that there exists a situation of emergency in Uruguay,

the Human Rights Committee does not see what ground could be adduced to support the

contention that, in order to restore peace and order, it was necessary to deprive all citizens,

who as members of certain political groups had been candidates in the elections of 1966 and

1971, of any political right for a period as long as 15 years. This measure applies to everyone,

without distinction as to whether he sought to promote his political opinions by peaceful

means or by resorting to, or advocating the use of, violent means. The Government of

Uruguay has failed to show that the interdiction of any kind of political dissent is required in

order to deal with the alleged emergency situation and pave the way back to political

freedom.

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

view that, by prohibiting the authors of the communication from engaging in any kind of

political activity for a period as long as 15 years, the State party has unreasonably restricted

their rights under article 25 of the Covenant.

10. Accordingly, the Human Rights Committee is of the view that the State party concerned

is under an obligation to take steps with a view to enabling Jorge Landinelli Silva, Luis E.

Echave Zas, Omar Patr6n Zeballos, Niuska Sala Fernl ndez and Rafael Guarga Ferro to

participate again in the political life of the nation.

' The text reads as follows:

"[..] The Executive Power, in exercise of the powers conferred on it by the institutionalization

of the revolutionary process,

"DECREES:

"Art. 1. The following shall be prohibited, for a term of 15 years, from engaging in any of the

activities of a political nature authorized by the Constitution of the Republic, including the

vote:

"(a) All Candidates for elective office on the lists for the 1966 and '1971 elections of the

Marxist and pro-Marxist Political Parties or Groups declared illegal by the resolutions of tile

Executive Power No. 1788/67 of 12 December 1967 and No. 1026/73 of 26 November 1973;

[..T' 5. The Committee found, on the basis of the information before it, that it was not

precluded by article 5 (2) (a) of the Optional Protocol from considering the communication-

The Committee was also unable to conclude that there were effective domestic remedies

available to the alleged victims in the circumstances of their case, which they had failed to

exhaust. Since, furthermore, no other procedural impediment had emerged, the Human Rights

Committee declared the communication admissible on 24 April 1979.