Decision on merits; Substantive issues: accused persons / convicted persons arbitrary detention - arrest cruel, inhuman or degrading treatment or punishment fair trial fair trial - undue delay liberty of person ne bis in idem pre-trial detention promptly brought before a judge; Articles: 9 (1) 9 (3) 9 (4) 10 (1) 14 (3) (c) 14 (7); Procedural issues: exhaustion of domestic remedies ratione temporis same matter - another procedure of international investigation or settlement victim status; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
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ANNEX VIII
Views of the Human Rights Committee under article 5 (4)
of the Optional Protocol to the International Covenant
on Civil and Political Rights
concerning
Communication No. 66/1980
SUbmit~ed by:
Initially submitted by Olga Machado de Campora on behalf of her
husband, David Alberto Campora Schweizer, who later joined as
submitting party
Alleged victim:
David Alberto campora Schweizer
State party concerned:
Uruguay
\
Date of communication:
15 March 1980 (date of initial letter)
Date of decision on admissibility:
28 July 1981
The Human Rights Committee, established under article 28 of the International
Covenant on Civil and Political Rights,
Meeting on 12 OCtober 1982,
Having concluded its consideration of communication No. 66/1980, initially
submitted by Olga Machado de Campora under the Optional Protocol to the
International Covenant on Civil and Political Rights,
Having taken into account all written information made available to it by the
initial author of the communication, the alleged victim and by the State party
concerned,
adopts the following:
VIEWS UNDER ARTICLE 5 (4) OF THE OPrIONAL PROTOCOL
1.
The initial author of this communication, Olga Machado de Campora (initial
letter dated 15 March 1980) is a Uruguayan national, residing in the Federal
Republic of Germany.
She submittec the communication on behalf of her husband,
David Alberto Campora Schweizer, alleging that he was arbitrarily imprisoned in
Uruguay and that he is a victim of a violation by Uruguay of his rights under the
International Covenant on Civil and Political Rights.
2.1
The author described the relevant facts as follows:
2.2
David Alberto campora Schweizer, a Uruguayan national (45 years old at the
time of the submission of the communication), was arrested in March 1971 on
grounds of "association to break the law" (article 150 of the Penal Code).
In
September 1971 he
esca~ed from prison together with other political detainees,
but in April 1972 he was re-arrested and detained incommunicado for several weeks.
On 15 June 1972, he was transferred to the Batallon de Infanteria No. 1 by the
military authorities and allegedly subjected to severe torture.
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3.1
In a further letter dated 11 June 1980, replying to the secretariat's request
for clarification as to whether the same matter had been submitted to the
Inter-American Commission on Human Rights, the author stated that, at her request,
IACHR had discontinued consideration of her husbandos case.
2.4
In August 1977, the trial (procesamiento) was continued before a military
court after law No. 14.493 of December 1975 had retroactively placed all political
crimes (chapter VI of the Military Penal Code) under military jurisdiction,
inclUding proceedings against civilians.
In addition to being charged with the
offences which had been investigated between 1971 and 1974, at this new stage of
the proceedings her husband was also prosecuted on the charge of Huse of a false
document" (article 237 of the Penal Code) which had not been included in the
proceedings before the ordinary judge.
His new place of detention was Libertad
prison.
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3.4
The author also enclosed with her letter of 11 June 1980, two testimonies, one
from Dr. Alejandro Artucio dated 22 March 1978 and one from Julio Cesar Modernell
dated 13 September 1977.
3.2
She also informed the Committee that the indictment against her husband was
issued on 15 March 1980, and that his lawyer, Dr. Juan P. Labat, presented his
defence at the beginning of April 1980.
3.5
Dr. Artucio states that he had- been the lawyer of persons who had been
imprisoned together with the alleged victim and that for this reason he knew his
case very wello
The writer gives in particular a detailed legal background on
David Campora's
~ituation.
He mentions that the judicial decision of 23 May 1974
providing for the provisional release of David campora was based on the
consideration that the deprivation of liberty already suffered by him was
sufficient and that the punishment liable to be imposed on him would not exceed
that period of three years..
He also quotes the reasons given for the executive
decision to keep David Campora in detention under HPrompt Security Measures":
"Taking into account the background of the case, the fact that Campora is very
3.3
She enclosed in this connection a copy of a memorandum dated 24 March 1980
containing the indictment of her husband of 12 March 1980.
The charges brought
against him were:
"association in order to commit criminal offences" (asociacion
para delinquir', "attack on the Constitution at the stage of conspiracy followed by
preparatory
a~_d" (atentado a la Constitucion en el grado de conspiracion seguida
de actos preparatorios), "falsification of public documents" and "escape from
prison" (autoevasion).
The legal bases of these charges were the following
articles of the Ordinary Penal Code:
150, 54, 56, 132 paragraphs 6, 137, 237 and
184.
The sentence asked for was eight years of imprisonment, taking into account
his previous detention, and that David Alberto campora Schweizer be declared a
"habitual criminal" with a
consequence of three to four years' precautionary
detention (medidas de seguridad eliminativas, article 92 (4) of the Penal Code).
2.3
The
May 1974
November 1974.
He was, however, kept imprisoned without charges at the disposal of
the Executive authorities under the "prompt security measures" until August 1977.
She stressed that, during this time, there were no legal remedies available to her
husband.
She adds that from March 1975 to August 1977 he was subjected to
mistreatment at the barracks of Trinidad.
dangerous and his recidivism, the Executive orders his detention
ft
Commenting
on the continuation of the criminal proceedings against David Campora by military
tribunals, he explains that, in December 1975, new legislation (Law No. 14.493)
came into force in· Uruguay, which retroactively established the jurisdiction of the
military courts in all cases of so-called political offences (lesa nacion).
This
law was also applicable in the case of the alleged victim.
Dr. Artucio further
mentions that he himself was detained in Uruguay in connection with his activities
as a defence lawyer and that he met David Campora in a Montevideo prison (building
of the Batallon de Infanteria No. :, Florida) in 1972, \ihere he claims to have
witnessed the mistreatment and torture to which the alleged victim was subjected
(giving details).
3.6
Julio Cesar Modernell states in his testimony that he was imprisoned together
with the alleged victim for two years in the buildings of the Artilleria de
Trinidad until his release in October 1976.
He describes the general conditions of
their imprisonment (extremely poor hygiene) and mentions, inter alia, that the
treatment to which the prisoners were subjected worsened with the arrival of new
military officials in February 1976.
It was the systematic policy to provoke the
prisoners, followed by new interrogations and mistreatment (plantones).
The writer
states in this context that David Campora was one night attacked and badly beaten
by an official named Alferez Queirolo, who was briefly arrested upon the complaint
by relatives of the prisoners, but then was allowed to continue with his
mistreatment of prisoners.
According to a carefully developed plan, a period of
extremely harsh treatment would be followed by one of relative ease during which
the prisoner was told that his release was imminent, thus creating false hope for
him and his family.
This treatment was aimed to "break" the prisoner
psychologically.
4.
By its decision of 21 July 1980, the Working Group of the Human Rights
Committee, having decided that the author of the communication was justified in
acting on behalf of the alleged victim, transmitted the communication under rule 91
of the provisional rules of procedure to the State party concerned, requesting
information and observations relevant to the question of admissibility of the
conununication.
s.
In a further letter dated 8 October 1980, the author stated that the military
tribunal of first instance had sentenced her husband to nine years of imprisonment
and one or two years of precautionary detention (medidas de seguridad eliminativas).
She informed the Committee that her husband's lawyer had already appealed against
the judgement rendered against her husband, to the Supreme Military Tribunal.
6.
By a note dated 14 November 1980, the State party objected to the
admissibility of the communication on the ground that domestic remedies had not
been exhausted.
In support of that objection, the State party confirmed that on
10 September 1980 the court of first instance had pronounced a sentence of nine
years' rigorous imprisonment plus two years' precautionary detention (medidas
eliminativas) in the case.
The State party further added that under the provisions
of article 489 of the Code of Military Penal Procedure, appeaL is automaic for
every final judgement imposing a prison sentence of more than three years and, when
the judgement in the second instance has been pronounced, there is still the
possibility of applying for the remedies
of annulment and review which are also
provided for in the Code of Military Penal Procedure.
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7.
The author in a further letter of 7 December 1980 stated that she had learned
from her husband's lawyer that his trial before the Supreme Military Tribunal had
taken place on 13 November 1980, that the court had ordered his immediate release,
considering that he had served his sentence, without ordering any precautionary
detention (medida de seguridad).
8.
In an additional letter dated 12 January 1981, the author informed the
Committee that her husband had arrived in Cologne, Federal Republic of Germany,
on 14 December 1980.
She stated that, on 12 December, at 5 p.m., her husband was
taken out of Libertad prison and brought to the police headquarters in Montevideo,
where the Ambassador of the Federal Republic of Germany in Uruguay, Mr. Marre,
issued him a fremdenpass (travel document) of the Federal Republic of Germany with
which he travelled on 13 December 1980 to the Federal Republic of Germany.
The
author added that, upon arrival in that country, her husband was brought to a
Sanatorium for two weeks because of his precarious state of health.
9.
In an interim decision of 31 March 1981, the Rwman Rights Committee asked
David Alberto Campora Schweizer whether he wished the Committee to pursue the
matter.
In the affirmative, the alleged victim was requested to acquaint himself
with the contents of the submissions previously made on his behalf and the
submissions made by the State party, with a view to:.
(a) correcting any
inaccuracies which he might find in the submissions made on his behalfJ
(b) commenting as he deemed relevant on the submissions of the State partYJ
(c) adding any further information which he might wish to place before the Human
Rights Committee for consideration in his case.
10.
In a reply dated 28 May 1981, David Campora informed the Committee that he
wished to corroborate explicitly and entirely all the facts reported by his wife,
the author of the communication, and to confirm the existence of the violations of
rights recognized in the International Covenant on Civil and Political Rights,
referred to by her.
He further stated that the Committee should continue to
consider his case until it reaches a decision on the substance of the matter.
11.
In a further letter dated 1 July 1981, David campora gives a description of
the treatment to which prisoners were sUbjected in Military Detention Establishment
NOG 1 (Libertad prison) where he was held from Al\gust 1977 until his release in
December 1980.
He described the daily life of the prisoners, including their
constant harassment and persecution by the guardsJ the regime of arbitrary
prohibitions and unnecessary tormentsJ the combination of solitude and isolation on
the one hand and the fact of being constantly watched, listened to and followed by
microphones and through peepholes on the other hanclf the lack of contact with their
families, aggravated by worries about the difficulties experienced and pressures
exerted on their families, the cruel conditions in the punishment wing in which a
prisoner might be confined for up to 90 d~ys at a timeJ the breakdown of physical
and mental health through malnutrition, lack of sunshine and exercise, as well as
nervous problems created by tension and ill-treatment.
In sum, he asserts that the
Libertad prison is wan institution designed, established and operated with the
exclusive
objec~ive of totally destroying the individual personality of everyone of
the prisoners confined in it".
12.
On 20 July 1981, the
COm1l"~.ttee decided:
(a)
That the communication was admissible in so far as it related to events
said to have occurred on or after 23 March 1976 (the date of the entry into force
of the Covenant and the Optional Protocol for Uruguay)>>
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(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,
(c)
That the state party be informed that the wLitten explanations or
statements submitted by it under article 4 (2) of the Optional Protocol must relate
primarily to the substance of the matter under consideration.
The Committee
stressed that, in order to perform its responsibilities, it required specific
responses to the allegations which had been made by the author of the communication
and the State party's explanations to the actions taken by it.
The State party was
requested, in this connection, to enclose copies of any court orders or decisions
of relevance to the matter under consideration.
13.
On 18 February 1982, the time-limit for observations requested from the State
party under article 4 (2) of the Optional Protocol expired.
However, no submission
has yet been
receiv~d from the State party, in addition to that received by the
Committee prior to the decision on the admissibility of the communication.
The
Committee notes with concern the State party's failure to respond and its failure
to furnish the Committee with relevant court orders and decisions.
14.
The Human Rights Committee has considered 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.
15.
The Committee decides to base its views on the following facts which are not
in dispute or which are unrepudiated or uncontested by the State party except for
denials of a general character offering no particular information or explanation.
Events prior to the entry into force of tiJe Covenant:
16.1 David Alberto Campora Schweizer was arrested in Uruguay in March 1971 on
grounds of "association to break the law".
In September 1971 he escaped from
prison, but was re-arrested in April 1972.
16.2
In May 1974, a judge ordered David Campora's provisional release, his request
to leave the country was approved in November 1974.
At the same time, however, an
order of detention under the rules of "Prompt Security Measures" was issued against
him so that he was kept imprisoned without any charges.
There were no remedies
available to him to challenge his prolonged detention.
While he was kept at
Trinidad barracks (since November 1974) he suffered mistreatment.
Events subsequent to the coming into force of the Covenant:
17.1
The detention under the regime of "prompt security measures" lasted until
August 1977, when at that time the trial (procesamiento) was continued before
a military tribunal in accordance with Law No. 14.493 of December 1975,
David Alberto Campora Schweizer was transferred from Trinidad barracks to
Libertad prison.
17.2
David Campora was charged anew before the competent military tribunal for
the same acts which had already been investigated by an ordinary jUdge between
1971 and 1974, including, however, this time the charge of "use of false document"
(article 237 of the Penal Code) which had not been the object of the prior
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proceedings.
In March 1980, the formal indictment against David Campora contained
the following charges:
"association in order to commit criminal offences"
(asociacion para delinquir), "attack on the Constitution at the stage of conspiracy
followed by preparatory acts" (atentado a la Constitucion en el grado de
conspiraci6n seguida de actos preparatorios), "falsification of public documents"
and "escape from prison" (autoevasion).
17.3
On 10 September 1980, a military court of first instance pronounced a
sentence of nine years' rigorous imprisonment plus two years
precautionary
detention (medidas eliminativas).
On 13 November 1980, the Supreme Military
Tribunal ordered David Alberto Campora SChweizer's release, considering that he had
served his sentence without ordering any precautionary detention (medida de
seguridad).
17.4
On 12 December 1980, he was taken out of Libertad prison and brought to the
police headquarters in Montevideo.
On 13 December 1980 he travelled to the Federal
Republic of Germany where he joined his family.
17.5
On the basis of the information submitted by the initial author and later
confirmed by David Alberto Campora Schweizer himself, it cannot be established
whether the mistreatment complained of continued or occurred on or after
23 March 1976, the date on which the Covenant entered into force for Uruguay.
As
far as the period after the coming into force of the Covenant is concerned, both
authors refer only in general terms to mistreatment without mentioning any specific
incident.
In his testimony of 13 September 1977, Julio Cesar Modernell, who was
imprisoned together with David Campora for two years until October 1976, describes
an attack by a prison official which took place in February 1976 or later.
It
cannot be seen whether this incident took place before, on or after 23 March 1976.
In the circumstances, the Committee cannot base a finding on the allegations of
mistreatment.
The Committee is, however, in a position to conclude that the
conditions of imprisonment to which David Campora was subjected at Libertad prison
were inhuman (see, in particular, para. 11 above).
18.1
On the basis of the facts of the present case, the Human Rights Committee
does not feel that it is in a position to pronounce itself on the general
compatibility of,the regime of "prompt security measures" under Uruguayan law with
the Covenant.
According to article 9 (1) of the Covenant, no one shall be
subjected to arbitrary arrest or detention.
Although administrative detention may
not be objectionable in circumstances where the person concerned constitutes a
clear and serious threat to society which cannot be contained in any other manner,
the Committee emphasizes that the guarantees
enshrin~d in the following paragraphs
of article 9 fully apply in such instances.
In this respect, it appears that the
modalities under which "prompt
securit~ measures" are ordered, maintained and
enforced do not comply with the requirements of article 9.
18.2 Concerning the allegation that article 14 (7) of the Covenant has been
violated by the State party, the Committee observes that, based on the authors'
submission, the.criminal proceedings initiated against David Campora in 1971 were
not formally concluded at first instance until the military tribunal pronounced its
jUdgement on 10 September 1980.
Article 14 (7), however, is only violated if a
person is tried again for an offence for which he has already been finally
convicted or acquitted.
This does not appear to have been so in the present case.
Nevertheless, the fact that the Uruguayan authorities took almost a decade until
the judgement of first instance was handed down indicates a serious malfunctioning
of the judicial system contrary to article 14 (3)
(c) of the Covenant.
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19.
The Buman Rights Committee, acting under article 5 (4) of the Optional
Protocol to the International Covenant on Civil and Folitical Rights, is of the
view that the facts as found by the Committee, in so far as they continued or
occurred after 23 March 1976 (the date on which the Covenant and the Optional
Protocol entered into force for Uruguay); dislose the following violations of the
International Covenant on Civil and Folitical Rights:
of article 9 (3) and (4) because during the time spent in detention under the
regime of ·prompt security measures·, David Alberto Campora Schweizer was not
brought before a judge and could not take proceedings to challenge his arrest
and detention,
of article 10 (1) because he was detained under inhuman prison conditionsJ
of article 14 (3)
(c) because he was not tried without undue delay.
20.
The Committee, accordingly, is of the opinion that the State party is under an
obligation to provide the victim with effective remedies, including compensation,
for the violations he has suffered.
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