Decision on merits; Substantive issues: accused persons / convicted persons cruel, inhuman or degrading treatment or punishment defence, adequate time and facilities fair trial fair trial - undue delay human dignity; Articles: 10 (1) 14 (3) (b) 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 VII
Views of the Human Rights Committee under article 5 (4)
of the Optional Protocol to the International Oovenant
on Civil and Politic.l Rights - twentieth session
concerning
Suhmitted by,
Communication No. 83/1981
Victor Ernesto Martinez Machado on behalf of his brother,
Raûl Noel Martinez Machado
Alleged victim,
Raûl Noel Martinez Machado
State party coneerned,
Uruguay
Date of communication,
24 February 1981
Date of decision on admissibility,
15 October 1982
The Human Rights Committee established under article 28 of the International
Oovenant on Civil and Political Rights,
-
meeting on 4 November 1983,
having coneluded its consideration of communication No. R.20/83 submitted
to the
Committ~e by Victor Ernesto Martinez Machado under the Optional
Protocol to the International Covenant on Civil and Political Rights,
having taken into account aIl written information made available to it by
the author of the communication and by the State party concerned,
adopts the followinga
VIEWS UNDER ARTICLE 5 (4) OF THE OPTIONAL PROTOCOL
1.1
The author of the communication (initial letter dated 24 February 1981 and
further suhmissions dated 18 and 28 June 1981, 27 September 1981 and
12 August 1982) is a Uruguayan national, residing at present in Franee.
He
8uhmitted the communication on behalf of his brothér, Raûl Noel Martinez Machado,
who is imprisoned in Uruguay.
1.2
The author states that his brother, a
te~h@r of history, born on 7 July 1949,
vas arrested in Uruguay on 16 October 1971 by members of the armed forces.
In
1974, his brother had come under the jurisdiction of the military courts.
In
1979 - eight years after his arrest - he was sentenced to nine and a ha1f years'
i~risonment.
His defenee lawyer, Dr. Rodriguez Gigena abandoned the case after
fruitless attempts to remedy the irregularities of the procedure.
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1.3
On 26 November 1980 Raul Mart!nez was transferred from Libertad prison where
he has been held since January 1973 and was kept at an unknown place of detention
for five menths.
During this period his family had no contact with him and felt
great concern for his state of health.
The remedy of habeas corpus was not
available to them because Raul Mart!nez was subjected to military jurisdiction.
1.4
The author states that on 26 November 1980 his brother "disappeared".
On
26 5eptember 1980 the detainee Mario Teti Izquierdo was taken out of Libertad
prison te an unknown destination.
On 25 November 1980, the public was informed by
the authorities of a suspected subversive conspiracy which included the invasion of
Uruguay and which was allegedly planned and directed by detainees in Libertad
prison.
The Allegation implied, according to the author, the involvement of
relatives, including children, of the detainees as a link for communicating with
the outside world.
The author points out that anybody who knows the prison will
realize that this was impossible.
He stresses that the disappearance of his
brother has to be seen in this contexte
He adds that during the first weeks of
December 1980 Orlando Pereira Malanolti and other detainees also disappeared from
Libertad.
The author further states that in the last days of November and in the
first days of December 1980, several relatives of political detainees were
arrested.
On 20 December 1980, an official communiqué announced that
Raul Noel Mart!nez Machado, Orlando Pereira and others were the leaders of the
alleged invasion plan.
The author also observes that the disappearance of his
brother and other detainees was no doubt linked to the fact that aIl of them were
saon to complete their prison sentences.
1.5
The author further Alleges that his brother's disappearance violated the
internaI laws of Uruguay, because detainees who were serving their
sentenc~c '~ere
theoretically at the disposaI of a judge anG could not be transferred or held
incommunicado without an order of the judge and then only subject to the
limitations imposed by the law of the country.
1.6
Th~ author submits that on 16 May 1981 his brother was seen again when- as a
result of growing international protest, a French lawyer who had travelled to
Uruguay specifically to take up his brother's case was granted a "visit" with him
at the No. 4 Infantry Batallion barracks in the Departmento of Colonia.
This visit
took place in an atmosphere of tension and pressure and lasted for only five
minutes, during which the two were allowed to speak only of the detainee's health
and family.
1.7
Subsequently, Raul Mart!nez was taken back to Libertad prison where, on
18 June 1981 he received a family visite
The author submits that during this visit
his brother informed his relatives that he had been re-tried (reprocesado) and that
at the court of first instance he had been sentenced (penado) to a year's detention
in a military prison, plus three months precautionary detention (medidas de
seguridad) and six years ·conditional liberty·.
The author adds that his family
did not know the ·charges· which had been brought against his brother.
He also
states that his brother's physical condition had noticeably deteriorated aftar six
menths of torture and ·disappear«nce·, but that he was apparently mentally weIl.
1.8
As to the question of admissibility, the author states that he has not
submitted the same matter to another procedure of international investigation or
settlement and that domestic remedies were not available in his brother's case.
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1.9
The author claims that his brother is a victiro of violations of articles 6, 7,
10 (1) and 14 of the International Covenant on Civil and Political Rights.
2.
By its decision of 17 March 1981, 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
admissibility of the communication and asking for:
(a) copies of any court orders
or decisions relevant to this case and
(b) information as to the whereabouts of
Raul Noel Martinez Machado.
3.
In its notes dated 14 August and 6 OCtober 1981 and 2 June 1982, the State
party objected to the admissibility of the communication on the ground that since
domestic remedies had not been exhausted, it did not fulfil the requirernents of
article 5, paragraph 2 (b) of the Optional Protocol.
The State party informed the
Committee that any person
~n Uruguayan territory has free access to the public and
administrative courts and authorities and is free to invoke aIl the remedies
guaranteed by the domestic legal system.
The State party also stated that in
mid-December 1980, the population was informed of the discovery of plans for the
reactivation of the Tupamaros National Liberation Movement, recrganized under the
name of nseispuntista", from within Military Detention Establishment No. 1.
At
that time, the identity of several of the conspirators was made known and
information was given on each one's legal status.
Raul Martinez Machado, allegedly
a subversive and one of the ringleaders of the movement operating from within the
Establishment, was brought to trial (procesado) on Il May 1981 for the offence of
nconspiracy to subvert".
The State party added that the accused, under military
justic~, had access to the following internaI remedies
~ppeal against the
decision to refuse to allow a
tr~al (procesamiento), appeal, complaint for refusaI
of leave to appeal, appeal for annulment, and the special remedies of appeal to
vacate a judgement and appeal for review.
4.1
In
hi~ comments dated 27 September 1981 and 12 August 1982, the author
reiterates that, in his brother's case, no domestic remedies were available which
qould have been invoked.
He recalls that his brot!:er had been detained
incommunicado for several months (after 26 Novernber 1980) and thus he was deprivea
not only of free access to the administrative authorities and courts, but of any
opportvni~y to give anyone a sign of life or of his
whereabou~s, that he had been
at the mercy of his captors who did not admit,that they were holding him.
Thus,
the author claims his brother had been cut off from any contact with the outside
world and deprived of aIl rights, including the right to
s~curity of life.
In such
circumstances any recourse to internaI remedies had been made virtually impossible.
4.2
In connection with the alleged participation of his brother in an alleged plan
to reactivate the MLN-Tupamaros, the author stresses again that, after the
plebiscite held on 30 November 1980 and due to the fact that the majority of the
Uruguayan population voted against the draft Constitution proposed by the
authorities, a policy of repression was directed
agai~st political prisonere and
their relatives.
This led to new arrests and trials.
He considers that in such
context of repression and of non-respect for the law, his brother's re-trial
(renrocesamiento) can only be seen as illegal.
The author also affirms that his
brother was denied a proper defence since his ex officio defence counsel,
Colonel Ramirez, was a member of the armed forces who had to obey his superiors
rather than defend his brother's interests.
He adds that, although the Government
stated that his brother was re-tried on Il May 1981, his family had been assured by
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lis defence counsel that he was not re-tried but would be released in OCtober
1982.
The author expresses the hope that this would prove true.
4.3
In summary, the author maintains that bis brother's re-trial (reprocesamiento)
took place after six months of "disappearance" during which he had been subjected
to torture; that he was "brought to trial" (procesado) on 11 May 1981 although he
had completed his prison sentence on 16 April 1981, that he had no possibility of a
fair defence, and that he was a victim of the arbitrariness of military judges.
4.4
In substantiation of his allegations r the author submits various enclosures
(approximately 200 pages), in particular two publications, entitled "Les camps de
concentration" and "La politique de rejugement", from the comité des Familles des
Prisoniers Politiques Uruguayens
(FPPU, Paris, 26 November 1981).
It is stated
therein, inter alia, that in 1979 Raul Martinez was sentenced to nine years and six
months imprisonment on groL·ds of attempt against the constitution, unlawful
association, deprivation of freedom, co-author of theft, that as in the cases of
other detainees he is subject to inhuman prison conditions at Libertad (a detailed
description of such conditions is given), and that in November-December 1979 he had
been taken urgently to the military hospital due to inhuman treatment inflicted
upon him.
s.
with regard to article 5 (2)
(a), the Committee noted that the author's
assertion that the same matter had not been submitted to any other procedure of
international investigation or settlernent had not been contested by the state paT.ty.
6.
with regard to article S, paragraph 2 (b), the Human Rights Committee took
note of the State party's assertion.tnat Raul Noel Mart!nez Machado had not yet
exhausted the domestic remedies available to him.
In this connection the Cownittee
understood that the State party's assertion related merely to the proceedings which
were initiated or took place on 11 May 1981 and not to events prior to that date.
However, in the absence of any specific indications as to which remedies would have
been applicable in the particular circumstances of this case, the Committee was
unable to conclude that Raul Noel Mart!nez Machado had failed to exhaust domestic
remedies.
Accordingly, the Committee found that the communication was not
inadmissible under article 5 (2)
(b).
It observed that this decision, in so far as
it related to events after 11 May 1981, could be reviewed in the light of further
explanations which the State party might submit under article 4 (2) of the Optiona1
Protocol, giving details of any domestic remedies claimed to have been available ·to
the alleged victim,
t~ether with evidence that there would be a reasonable
prospect that such remedies would be effective.
7.
On 15 OCtober 1982, the Human Rights Committee therefore decided,
(1)
That the communication was admissible in 50 far as it releated to events
said to have continued or taken place on or after 23 March 1976, the date on which
the Covenant and the Optional protocol entered into force for Uruguay,
(2)
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,
(3)
That the State party be informed that the written explanations or
statements submitted by it under article 4 (2) of the Optional protocol must relate
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primarily to the substance of the matter under consideration.
The Committee
stressed that in order to perform its responsibilities, it required specifie
responses to the allegations which had been made by the author of the
communication, and the State party's explanations of 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.
9.
In its submission under article 4 (2) of the Optional protocol dated
4 OCtober 1983, the State party rejects - without providing additional facts - the
author's contention
th~t his brother was subjected to ill-treatment, that he
"disappeared", that he has been denied a proper defence and that the effective
application of domestic remedies available under the procedural laws of the country
is not possible.
The State party reiterates that military tribunals enjoy total
independence in the exercise of their judicial function and it asserts that
procedural guarantees are auly observed during aIl stages of the proceedings and
that the defence may apply for such remedies as it considers appropriate.
8.
By a note dated 22 November 1982, relating to the author's submission of
12 August 1982, the State party reiterates that Raul Martinez was one of the
principal leaders of the Seispuntista Movement.
It points out "that the action
taken with respect to the emergence of the subversive organization concerned was
based on investigations carried out in accordance with the requirements of the
law.
Mr. Martinez Machado was not the subject of a 'forced disappearance', as
suggested in the author's communication, but was merely moved from his place of
imprisonment for security reasons, with a view to frustrating the Seispuntismo plan
by thus impeding communication among its members.
While Mr. Martinez Machado's
unconditional release might have been effected recently, the discovery of his
participation in this movement made it necessary to institute new proceedings which
prevented its materialization."
With respect to the conduct of the ex officio
defending counsel, the State party further points out that the persons concerned
are independent lawyers who are not subject to the military hierarchy in the
performance of their technical functions.
"These were in strict conformity with
the principles that should regulate any counsel of a technical and legal nature."
10.
When adopting its decision on admissibility on 15 OCtober 1982, the Committee
observed that this decision, in so far as it related to events after Il May 1981,
could be reviewed in the light of further explanations which the State party might
submit under
articl~ 4 (2) of the Optional Protocol.
The Committee notes that,
despite the receipt of the State party's most recent submission, no details have
been furnished to it of any domestic remedies claimed to have been available to the
allegeà victim, together with evidence that there would be a reasonable prospect
that puch remedies would be effective.
The Committee therefore sees no reason for
reviewing its decision on admissibility.
Il.1
The Corrmittee decides to base its views on the following facts which have
been either essentially confirmed by the State party or are uncontested except for
denials of a general character offering no particular information or explanation.
Il.2
Raul Noel Martinez Machado was arrested on 16 OCtober 1971.
In January 1973
he was transferred to Libertad prison.
In 1974 he came under the jurisdiction of
the military courts.
In 1979 he was sentenced to nine and a half years'
imprisonment.
Re was to have completed the sentence on 16 April 1981.
On
26 November 1980 he was moved from Libertad prison to another detention
establishment for interrogation in connection with his alleged involvement in
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operations aimed at reactivating a subversive organization (the "Tupamaros"
movement) from within Libertad prison.
From November 1980 to May 1981 he was held
incommunicado.
On Il May 1981, Raul Martinez was again brought to trial
(procesado) for the offence of "conspiracy to subvert".
His ex-officio lawyer is
Colonel Ramirez.
12.1
In formulating its views the Human Rights Committee takes into account, in
particular, the following consideration:
12.2
In operative paragraph 3 of its decision of 15 October 1982, the Committee
requested the State party to submit copies of any court orders or decisions of
relevance to the matter under consideration.
The Committee notes with regret that
it has not been furnished with any of the relevant documents or with any
information about the outcome of the criminal proceedings commenced against
Raul Martinez Machado in 1971 and 1981.
Taking into account the delay in the first
trial, it must be concluded in this respect that he has not been tried without
undue delay as required by article 14 (3)
(c) of the Covenant.
13.
The Human Rights Committee, acting under article 5 (4) of the Optional
Protocol to the International Covenant on Civil and Political
Righl~, 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) disclose violations of the International
Covenant on Civil and Political Rights, particularly:
of article 10 (1) because Raul Martinez was held incommunicado for more
than five
months~
of article 14 (3)
(b) because the conditions of his detention from
November 1980 to May 1981 effectively barred him from access to legal
assist~nce,
of article 14 (3)
(c), because he was not tried without undue delay.
14.
The Committee, accordingly, is of the view that the State party is under an
obligation to take immediate steps to ensure strict observance of the provisions of
the Covenant and in particular (i) that Raul Martinez Machado is treated with
humanity as required by article 10 (1) of the Covenant, (ii) that the guarantees
prescribed by article 14 are fully respected and, in so far as this has not been
done in any proceedings already taken, an effective remedy will he applied, and
(iii) that a copy of these views he transmitted to him.
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