opencaselaw.ch

CCPR/C/17/D/84/1981

Dermit Barbato v. Uruguay

UNO-Menschenrechtsausschuss (CCPR) · 1982-10-21 · en UN

Decision on merits; Substantive issues: accused persons / convicted persons arbitrary detention - arrest effective remedy fair trial fair trial - undue delay liberty of person pre-trial detention promptly brought before a judge right to life; Articles: 2 (3) (a) 6 (1) 9 (3) 9 (4) 14 (3) (c); Procedural issues: exhaustion of domestic remedies 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]

Volltext (verifizierbarer Originaltext)

ANNEX IX

Viewe of the Human Rights Committee under article 5 (4)

of the Qptional Protocol to the International Covenant

on Civil and Political Rights

concerning

Communication No. 84/1981

Su~itted bYI

Hugo Gilmet Der.it, on behalf of his cousins, Guillereo Ignacio

Dermit Barbato and Hugo Haroldo Dermit Barbato

Alleged victimsl

Guillermo Ignacio Dermit Barbato and Hugo Haroldo Dermit Barbato

State party concerned:

Uruguay

Date of communication:

27 February 1981 (date of initial letter)

Dete of decision on admissibility:

28 October 1981

The Buman Rights Committee, established under article 28 of the International

Covenant on Civil and Political Rights:

Meeting on 21 October 1982,

Baving concluded its consideration of cuommunication No. 84/1981 submitted to

the Co.mittee by Hugo Gilmet Dermit 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

author of the communication and by the State party concerned,

adopts the followingl

VIEWS UNDER ARTICLE 5

(4)

OF THE OPrIONAL PRa.rocO!.

1.1

The author of the communication (initial letter dated 27 Pebruary 1981 and

further letters dated 30 September 1981 and 28 July 1982) i8 a Uruguyan citizen at

~resent living in Sweden.

He submitted the communication on behalf of his cousins,

Rugo Raroldo Dermit Barbato and Guillermo Ignacio Dermit Barbato, alleging that

Rugo Dermit died in detention in Uruguay between 24 and 28 December 1980 and that

Guillermo Dermit is at present imprisoned in Uruguay.

1.2

The author states that his cousin, Guillermo nermit, a 30-year old Uruguayan

medical doctor disappeared on 2 December 1980.

His abandoned car was found in a

street, with wide open doors.

All attempts to find out his whereabouts were in

vain for 17 days. in partiCUlar, no confirmation could be obtained from the

authorities as to whether he was detained.

On 19 December 1980, an official

cc.munique was published in Montevideo announcing Guillermo Dermit's detention.

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He was described as belonging to a group of relati"'es of prisoners who had carried

out -agitation and propaganda activities".

The alleged victim's place of detention

was not disclosed in the communique and he continued to be detained incommunicado.

For some time his closest relatives did not know where he was being detained.

The

author claims that the real motive for Guillermo Dermit's arrest was the fact that

he was the brother of a political prisoner, Hugo Dermit, and that no illegal

activities could be imputed to him.

1.3

The author claims that Guillermo Dermit is a victim of violations of a number

of provisions of the International Covenant on Civil and Folitical Rights,

including article 9 (1), because he was arbitrarily arrestedJ

article 9 (2),

because he was not promptly informed of the reasons for his arrestJ article 9 (3),

because he was not brought promptly before a judge, within the period of 10 days

laid down in Uruguayan lawJ article 9 (4), because he was kept incommunicado and

was thus unable to take his case before any judicial authority and because his

family could not make use of the recourse of habeas corpusJ article 10, because the

treatment of detainees in Uruguay did not conform to this provision of the

Covenant, more detailed information not being available because of

Guillermo Dermit's being incommunicadoJ article 14, because he was not brought

before a court, and that if and when this happened, it would be before a military

tribunal lacking in procedural guarantees and impartiality.

1.4

As to Hugo Dermit, a 32-year old Uruguayan student of medicine at the time of

his death, the author states that he

~~as arrested in 1972, that he came under the

jurisidiction of the military courts and that, after lengthy proceedings,

h~ was

sentenced to eight years' imprisonment.

He had served his sentence in July 1980

but was not released.

Instead, he was informed that he would be released only if

he left the country, a condition which, according to the author, was not mentioned

in the judgemeLt, nor was it based on any rule of law.

After he had obtained an

entry visa from

th~ Swedish Government, the authorities informed him that he was

due to be released on 11 December 1980.

In September 1980, Hugo Dermit was

transferred from the Establecimiento 14ilitar de Reclusion No. 1 (Libertad prison,

Department of San Jose) to the barracks of the Fourth Mechanized Cavalry Regiment

situated in Montevideo (Camino Mendoza and Avenida de las Instrucciones).

On

13 November 1980, he signed the option to leave the country for Sweden.

At the end

of that month, he was transferred to the Montevideo Bolice Headquarters.

On

9 December 1980, the police authorities made it known that he would not be granted

permission to leave the country.

His whereabouts were unknown to his relatives

until 28 December 1980.

The author alleges that, during the period in question,

HU9~ Dermit was once more transferred to the quarters of the Fourth Mechanized

Cavalry Regiment,

wh(~~ he was seen by other prisoners and was reported to have

been in good spirits, in spite of the interruption of the preparations for his

release and departure from Uruguay.

He was last seen alive on 24 December 1980.

On 28 December 1980, his mother was called to the Military Hospital without any

explanation.

There she was shown the dead body of her son for identification

purposes.

The death certificate stated as cause of death "acute haemorrhage

resulting from a cut of the carotid artery" and his mother

~as told that he had

committed suicide with a razor blade.

The writer claims that this explanation is

false and that Hugo Dermit died as a consequence of the mistreatment and torture to

which he had allegedly been subjected.

1.5

The author claims tt . Hugo Dermit was a victim of violations of articles 6,

7, 9, 10, 12, 14 and 17 of the International Covenant on Civil and Political Rightso

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1.6

with regard to the question of admissibility, the author stated that he had

not submitted either case to another procedure of international investigation or

settlement.

He alleged there were no further domestic remedies which could be

invoked.

In the case of Hugo Dermit, the remedies through proceedings before the

Military Tribunals had been exhausted.

The eight years' sentence imposed on him

resulted from a decision of the Supreme Military Tribunal.

His continued detention

after completion of his sentence was based on "prompt security measures".

The

author claims that the only remedy available in that situation was the option to

leave the country.

He alleges that no procedural possibilities existed to oblige

the authorities to respect this constitutional option.

The author further claims

that although the alleged violations of human rights in the case of Hugo Dermit

commenced before 23 March 1976, they continued to occur after that date.

2.

By its decision of 18 March 1981, the Working Group of the Human Rights

Committee 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 communication.

It alao requested

the State party to provide the Committee with (a) copies of any court orders or

dcisions relevant to the case, and (b) copies of the death certificate and medical

report and of the report of whatever inquiry had been held in connection with the

death of Hugo Dermit.

3.

In a note dated 24 August 1981, the State party disputed the admissibility of

the communication on the grounds that:

(a) concerning Hugo Dermit, the same matter

had been submitted to the Inter-American Commission on Human Rights as case

No. 7710, and (b) with regard to Guillermo Dermit, the remedies available under

domestic law had not yet been exhausted, and the State party had repeatedly

informed the Committee of all the remedies available

~o everyone in Uruguayan

territory.

The Government did not furnish the Committee with copies of any court

orders or decisions relevant to the case of Guillermo Dermit nor did it mention any

proceedings pending against the alleged victim, any specific remedies available to

him, or refer to any other facts concerning his case.

4.

In his letter of 30 September 1981, the author informed the Committee that the

case of Hugo Dermit had been submitted to the Inter-American Commission on Human

Rights by a third party.

He attached a copy of a letter dated 25 September 1981,

sent by the person responsible for submitting case No. 7710 to the Inter-American

Commission requesting its withdrawal.

With regard to the case of Guillermo Dermit,

the author asserted once again the lack of any domestic remedies that could have

been exhausted.

He informed the Committee that Guillermo has been SUbjected to

military jUdicial proceedings.

He again claimed that Guillermo is a victim of

violations of article 14 of the Covenant and alleged that the military judges are

neither independent nor impartial.

5.1

with regard to article 5, paragraph 2 (a), the Human Rights Committee

noted that case No. 7710, concerning Hugo Dermit, had been withdrawn from the

Inter-American Commission on Human Rights (IACHR).

This had been confirmed by

the secretariat of IACHR.

The Committee also notes that, with regard to

Guillermo Dermit, the State party has not disputed the

auth~r's contention that

the case has not been submitted to any other procedure of international

investigation or settlement.

5.2

with regard to article 5, paragraph 2 (b), the Human Rights Committee took

note of the State Party's assertion that Guillermo Detmit had not yet exhausted the

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domestic remedies available to him.

However, the State party did not give details

of the remedies which may be invoked in the particular circumstances of this caseJ

nor did it specify which of the alleged violations could have been effectively

remedied within the established military judicial process.

On the basis of the

information before it, the Committee was unable to conclude that there were

remedies available to Guillermo Dermit which he should have pursued.

5.3

On 28 October 1981, the Human Rights Committee therefore decided:

(a)

That the communication was admissibleJ

Cb)

That, in accordance with article 4 (2) of the Optional Protocol, the

State party should 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 to enclose copies of any court orders or

decisions of relevance to the matter under consideration, and, in the case of

Hugo Dermit, to

encl~se copies of the death certificate and medical report and of

the reports on whatever enquiries were held into the circumstances surrounding his

death.

6.1

In its submission under article 4 (2) of the Optional Protocol, dated

1 June 1982, the State party fowarded a transcript of the autopsy report concerning

Hugo Dermit which reads as follows:

"Death certified on 28 December 1980.

Cause:

suicide.

Result of the

autopsy:

on 28 December 1980, an autopsy was carried out on the body of

Hugo Dermit Barbato, white, male, 32 years old, general health good, thin.

Blood on the face, neck, front of the thorax and upper limbs, mainly on the

left side.

On the left-hand side of the neck, a clean cut 40 mm long with

sanguineous infiltration at the edges.

The wound runs obliquely from the

thyroid cartilage outwards and downwards to the middle of the external

cleidomastoid muscle.

Immediately above it, another clean cut 10 mm long with

sanguineous infiltration at the edges.

On the right forearm, 4 cm from the

wrist joint, a 30 mm oblique cut running from the outer edge to the middle of

the forearm (and being, at this point, 6 cm from the wrist).

On the left

forearm, a similar, but shorter (20 mm) wound.

The remainder of the external

examination showed no special peCUliarities.

"Internal examination:

neck - dissection of the areas corresponding to

the wound in the left side of the neck showed that the internal jugUlar vein

was completely severed, with a wound 1 mm in diameter in the left common

carotid artery.

Recent sanguineous infiltration in adjacent areas.

The upper

wound showed that the middle thyroid artery had been severed.

Thorax and

abdomen - pleura and lungs:

lungs normal, with collapsed alveoli.

Abdomen:

normal.

General paleness of the viscera.

Upper limbs:

the wounds in both

i~rearms show that the middle veins had been partly severed.

Summary:

from

the preceding study, it is evident that the cause of death was anaemia as a

result of acute haemorrhage caused by the severing of the left carotid

vessels.

By the pathological anatomy service, Haydee Klempert First

Lieutenant, Medical Corps."

6.2

with respect to Guillerrno Dermit, the State party asserts that he was brought

to trial because "it was proved that he had been involved in the offences of

conspiracy to subvert and action to upset the Constitution in the degree of

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7.2

With respect to Hugo Dermit, the author states in particUlar:

7.1

In a further letter dated 28 July 1982, the author refers to the State party's

submission under article 4 (2) and claims that it does not answer the specific

complaints of violations raised in his communication.

"The Government of Uruguay states that the victim's death was certified

on 28 December 1980.

It provides

n~ explanation of the circumstances in which

the death was certified (place, hour, who found the body, whether or not the

sharp object or objects with which the victim supposedly committed suicide

were found in the same place).

The Government of Uruguay has not provided the

Committee with any information concerning any investigation into the

circumstance~ of the death.

In view of this and the fact that the victim was

seen alive as late as 24 December, in circumstances which in no way indicated

that he had even the slightest intention of committing suicide, particu1ary

since he should have been happy and optimistic about his situation and the

prospect of his forthcoming release, the official explanation is implausible

and unacceptable.

The complete absence of any investigation into the

responsibility of the officials who held him in their custody, of any

"In its sUbmission, the Government of Uruguay gives no explanations

concerning the complaints I made in my communication of 27 February 1981 to

the effect that my cousin was arbitrarily deprived of his right to life, was

treated not with humanity and respect for his dignity, but, rather, sUbjected

to torture and cruel, inhuman and degrading treatment, was, without any doubt,

unlawfully deprived of his liberty after he had served his sentence and was

denied the constitutional right to choose to leave the national territory, was

sUbjected to criminal proceedings riddled with procedural errors constituting

violations of article 14 of the Covenant, to arbitrary interference with his

family and to unlawful attacks on his honour and reputation.

"With regard to the merits of the case, the Government of Uruguay merely

states that it is 'transmitting the report on the autopsy carried out on the

body of the victim on 28 December 1980 ••••

The results of the autopsy in no

way indicate beyond any doubt that the cause of my cousin's death was

'suicide', as the Government of Uruguay claims.

The autopsy was carried out

by military medical personnel before the victim's relatives were informed of

his death and they had no opportunity to have the autopsy carried out by

doctors of their own choice.

The victim's body, which was handed over to his

relatives in the afternoon of 28 December 1980, showed signs of having

undergone a tracheotomy, as well as signs that it has been kept refrigerated,

since it was initially bloated and then deflated, with a substantial loss of

water during the period preceding burial.

conspiracy, followed by criminal preparations on 23 March 1981.

The aforementioned

person was one of the subversive members of the so-called 'seispuntista' movement,

which tried to reactivate the subversive 'Tuparnaros' movement from within the

prison, with the help of elements outside it."

The Government reiterated its

rejection of the admissibility of this case on the grounds of non-exhaustion of

internal remedies available under criminal military law.

These remedies are:

-appeal against the decision to refuse to allow a trial, application to set aside

the ordinary appeal for review, remedy of appeal, complaint

f~r refusal of leave to

appeal, appeal for annulment and the special remedies of appeal to vacate a

jUdgement and appeal for review."

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-129-

reference to possible penalties resulting therefrom and of any inquiry into

the circumstances and the way in which the death occurred show that, instead

of seeking clarification and justice, the authorities are trying to cover up

the violent acts committed in their name.

I must repeat that, even if the

victim did actually commit suicide, the most serious responsiblity would heve

been incurred:

the only possible reason why he might have decided to commit

suicide is that he was

fo~ced to do so by threats or violence, with the result

that he found any thought of the future unbearable, when, in fact, he had

every reason to be optimistic about it.

And the fact that he might actually

have committed suicide while under arrest would have called for an

investigation and the punishment of those who were responsible, except that it

is the authorities themselves who are responsible."

"The Government attaches no copies of the court orders and decisions

relating to the case under consideration.

Since the Government has failed to

provide any evidence to the contrary, I wish to repeat my assertion that the

real motive for the arrest of Guillermo Ignacio Dermit Barbato is that he is

the brother of a political prisoner, Hugo Haraldo Dermit Barbato, and that

there are no grounds for the proceedings against him.

"The Government of Uruguay has given no explanation concerning the

complaints made in the first communication of 27 February 1981 to the effect

that the violations which occurred included the following:

the victim's

arrest was arbitrary; he was not allowed to take legal action or proceedingsJ

he was not promptly informed of the charges against him; he was not brought

promptly before a jUdge within the maximum time-limit of 10 days:

he was held

incommunicado with no possibility of appealing to any judicial authority on

his own initiative; he was not treated with due respect for the inherent

dignity of the human person; and he was denied the constitutional rights to

choose to leave the national territory.

with regard to the merits of the

case, the Government of Uruguay merely reports that the victim 'was brought to

trial because it was proved that he had been involved in the offences of

conspiracy to subvert, and action to upset, the Constitution in the degree of

conspiracy, followed by criminal preparations on 23 March 1981'.

It is also

claimed that the victim was 'one of the subversive members of the so-called

'Seispuntista' movement, which tried to reactivate the subversive 'Tupamaros'

movement from within the prison, with the help of elements outside it'.

III 'Appeal against a decision to refuse to allow ia tr ial ' •

Like all other

remedies in question, this one is totally inapplicable to the victim's case.

Article 178 of the Code of Organization of the Military Courts

(COTM) provides

"The fact that the military courts have been involved makes it necessary

to state again that this procedure is still in violation of article 14 of the

Covenant because these courts do not provide the guarantees stipulated in that

article, since they lack independence and impartiality, and also because of

the shortcomings in the procedure which they apply."

7.3

With

~espect to Guillermo Dermit, the author states in particular:

7.4

With respect to the admissibility of the communication relative to

Guillermo Dermit, the author disputes the State party's assertion that the

defendant did not exhaust the internal remedies purportedly available under

criminal military law and examines said remedies as follows:

"The 'appeal for annulment' is not applicable in my cousin's case because

it also assumes that a decision has been made (article 503)J it must be lodged

together with the appeal - somethig that is, as has been seen, quite

impossible.

that an appeal may be lodged against a decision to refuse to allow a trial.

It will, however, be quite clear to the Committee that this has nothing to do

with my cousin's case, in which there was no refusal to allow a trial.

As

shown in the report itself, he was actually brought to trial.

There is,

moreover, no point in referring to this possible remedy.

It is the public

prosecutor's department that can, as stated in article 178, lodge 3uch an

appeal, whose object is to bring a person to trial when a military court has

refused to do so and has released the person.

"In any event, it is not this remedy, but, rather, the remedy of appeal

against the indictment, to which the Government might justifiably have

referred.

The Government report does not mention the latter remedy, which is

entirely theoretical and has proven to be totally ineffective because it has

never, since it was provided for by law, been used in any caseJ and

b~cause

the proceedings never take less than one year and often quite a bit more and,

during that time, it is, in practice, impossible to obtain a decision on any

application for pre-trial release.

·'Application to set aside and ordinary appeal for review'.

These are

remedies against specific court decisions, as clearly stated in COTM,

article 475.

The Government does not say which decisions were not appealed in

the victim's case and, in fact, there were no such decisions:

the only

decision in his case was the one ordering him to be brought to trial, in

accordance with the special regime provided for in article 178.

·The 'remedy of appeal' is inappropriate in this case because it applies

only to final decisions (COTM, article 481).

There has been no decision even

in first instance, in the victim's case, as shown in the report.

"'Special remedies of appeal to·vacate a judgement and appeal for

review'.

• •• These are remedies.against decisions by a court of second

instance (article 507) and, in the victim's case, there still has been no

decision by the court of first instance.

According to article 460, these

remedies still do not prevent the decision that is being contested from

becoming a final decision:

'Decisions are final and enforceable:

1.

When

the law allows no other

in~tance or ordinary appeal in the case'.

·'Complaint for refusal of leave to appeal'.

• •• This remedy is, as

its name indicates, one that is available in the particular situation when

a decision has been appealed and the court which made it considers that it

cannot be appealed.

Its object is to obtain a decision from a higher court

concerning the admissibility of the appeal (COTM, article 492).

Since there

has been no decision in my cousin's case, he could hardly have appealed

against it.

Consequently, there could have been no 'complaint' for refusal

of leave to appeal when no appeal could be lodged.

"It may be said that, although these remedies are totally inapplicable at

this time and at this stage in the proceedings, they might be applicable later

on and that they may therefore be regarded as 'remedies that have not been

exhausted' •

WThis view does not apply to the first of the above-mentioned remedies

since there has never been a decision 'to refuse to allow a trial'.

The other

remedies on the list, which are not applicable now, may, however, be used in

future.

WIt is, therefore, essential to look at the entire procecure and to see

whether, for the Committee's purposes, it will be necessary to wait until the

proceedings have been completed.

Since the remedies in question are available

only in respect of the final decision or the decision of second instance, it

would be essential to await the outcome of the proceedings if they had to be

exhausted before the Committee could act.

In fact, there was a four-month

delay before the victim's case was brought before a 'judicial authority'.

He

has been detained for 20 months and it will be a long time before a decision

is made by the court of first instance.

There are prisoners in Uruguay who

have neen waiting for as long as eight years for their decisions of second

instance.

WAccordinglr, to claim that the proceedings must be comleted in order to

apply for - and exhaust - the remedies that are theoretically available would

mean postponing action by the Committee for an unacceptable amount of time,

particularly since failure to make a decision within a reasonable time is one

of the violations that has been reported and one of the most obvious causes of

what has happened.

In other words, the possibility of instituting

unacceptably lengthy proceedings, which is in itself a violation of the

Covenant, would make the Government think that it was not SUbject to the

Committee's jurisdiction.

This can hardly be the intention of the Covenant."

8.1

The Human Rights Committee has the obligation under article 5 (1) of the

Optional Protocol to consider this communication in the light of all written

information made available to it by the author and the State party.

It therefore

bases its views on the following facts, which have not been contradicted by the

State party.

8.2

Hugo Haraldo Dermit Barbato was arrested in 1972 and subsequently sentenced to

eight years' imprisonment.

He completed serving his sentence in July 1980 and

thereafter was kept in detention pursuant to the "prompt security measures".

He

was informed that he would be released only if he left the country, a condition

which was not mentioned in the judgement against him.

After he had obtained an

entry visa from the Swedish Government, the Uruguayan authorities informed him that

he was to be released on 11 December 1980.

Yet, on 9 December 1980, he was told

that he would not be granted permission to leave the country.

His whereabouts were

unknown to his relatives until 28 December 1980, when his mother was called to the

Military Hospital to identify his body.

His mother was told that he had committed

suicide.

8.3

Gui1lermo 19nacio Dermit rlarbato, Hugo's younger brother, disappeared on

2 December 1980.

His detention was officially acknowledged on 19 tecember 1980,

but he continued to be held incommunicado.

He was not brought before a judicial

authority until 23 March 1981

~~en he was brought before a military tribunal.

After some 20 months, there

doe~ not appear to have been any decision taken and the

State party gives no evidence of any such decision.

9.1

In formulating its views, the Human Rights Committee also takes into account

the following considerations, which reflect a failure by the State party to furnish

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the information and clarifications necessary for the Committee to formulate final

views on a number of important issues.

9.2

In operative paragraph 2 of its decision of 28 October 1981, the Committe'e

requested the State party to enclose copies of the death certificate and medical

report and of the reports on whatever inquiries were held into the circumstances

surrounding the death of Hugo Dermit.

Only a transcript of the autopsy report has

been submitted.

The State party has not submitted any report on the circumssances

in which Hugo Dermit died or any information as to what inquiries have been made or

the outcome of such inquiries.

Consequently, the Committee cannot help but give

approriate weight to the information submitted by the author, indicating that a few

days before Hugo's death he had been seen by other prisoners and was reported to

have been in good spirits, in spite of the interruption of

thE~ preparations for his

release and departure from Uruguay.

While the Committee cannot arrive at a

definite conclusion as to whether Hugo Dermit committed suicide, was driven to

suicide or was killed by others while in custody; yet, the inescapable conclusion

is that in all the circumstances the Uruguayan authorities either by act or by

omission were responsible for not taking adequate measures to protect his life, as

required by artcile 6 (1) of the Covenant.

9.3

In the same operative paragraph, the Committee requested the State party to

furnish copies of any relevant court orders or decisions.

The Committee is

seriously concerned by the fact that, in this case and in a number of other cases,

the State party has failed to furnish the texts of court decisions.

9.4

As to the question of exhaustion of domestic remedies in the case of

Guillermo Dermit, the Committee also takes into account the following

considerations:

the remedies listed by the State party as unexhausted, cannot

be considered available to the alleged victim in the circumstances of his case.

They are either inapplicable de

ju~ or de facto and do not constitute an effective

remedy, within the meaning of article 2 (3) of the Covenant, for the matters

complained of.

There are therefore no grounds to alter the conclusion reached

in the Committee's decision of 28 October 1981, that the communication in not

inadmissible under article 5 (2)

(b) of the Optional Protocol.

9.5

No attempt has been made by the State pclrty to show that the delay in trying

Guillermo Dermit could be justified by the dJLfficulties of the case.

9.6

With regard to the burden of proof, the Committee has already established in

.its views in other cases (e.g., R.7/30) that said burden cannot rest alone on the

author of the communication, especially conal.dering that the author and the State

party do not always have equal access to the evidence and that frequently the State

party alone has access to relevant information.

It is implicit in article 4 (2) of

the Optional Protocol that the State party has t6e duty to investigate in good

faith all allegations of violation of the Covenant made against it and its

authorities.

10.

The Human Rights Committee, acting under article 5 (4) of the Optional

Protocol to the International Covenant on Civil and Bolitica1 Rights is of the

view that the communication discloses violations of the Covenant, in particular:

(a)

With respect to Hugo Haro1do Dermit Barbato:

of article 6, because the Uruguayan authorities failed to take

appropriate measures to protect his life while he was in custody»

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(b)

With respect to Guillermo Ignacio Dermit Barbato:

of

arti~le 9 (3), because he was not promptly brought before a judge,

of article 9 (4), because he was held incommunicado and effectively

barred from challenging his arrest and detentionJ

of article 14 (3) (c), because he has not been tried without undue delay.

11.

The Committee, accordingly, is of the view that the State party is under an

obligtion to take effective steps (a) to establish the facts of Hugo Detmit's

death, to bring to justice any persons found to be responsible for his death and to

pay appropriate compensation to his family,

(b) with respect to Guillermo Dermit,

to ensure strict observance of all the procedural guarantees prescribed by

article 14 of the Covenant as well as of the rights of detained persons set forth

in artciles 7, 9 and 10 of the Covenant,

(c) to transmit a copy of these views to

Guillermo Dermit, and (d) to take steps to ensure that similar violations do not

occur in the future.

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