CCPR/C/38/D/275/1988

J. fommunication No. 2765/1988, §, BE. v. Argentina a/

(Decision of 26 March 1990, adopted at the

whirty-eighth session)

Submit.ted by: 8. E. [name deleted]

Alleged victima: The author and her disappeared children

State party concerned: Argentina

Covenant and Optional Protocol

for Argentina: 8 November 1986

Date of communication: 10 February 1988 (date of initial letter)

The Human Rights Committee, established under article 28 of the Iaternational

Covenant on Civil and Political Rights,

Meeting on 26 March 1990,

Adopts the following:

Decision on admissibility

1. The author of the communication is an Argentine citisen residing in

Argentina. She writes on her own behalf and on behalf of her three disappeared

children, born in 1951, 1953 and 1956, respectively, alleging violations of the

Covenant by the Government of Argentina. She is represented by counsel.

Tha background

2.1 The author states that her eldest son, L. hi. E., was abducted in Argentina on

10 Augu-t 1976 by persons belonging to or associated with the police, security

forces or armed forces, epparently on account of his political opinions. Another

son, C. E., and her daughter, L. E., were detained on 4 November 1976 in Uruguay

and were allegedly seen in November/December 1976 at a detention camp in Argentina

known as "The Bank" and at a police station, Brigada Guenes, in Buenos Aires.

Theix whereabouts have been unknown ever since, in spite of all the steps

undertaken by the author to discover what happened to them.

2.2 On 24 December 1986 the Argentine legislature proclaimed Law No. 23,492, the

so-called "Finalit’ Act" (Ley de Punto Final). which established a deadline of

60 days for commencing new criminal investigations with regard to the events of the

so-called “dirty war" (guerra aucia). This deadline expired on 22 February 1987.

On 8 June 1987, Law No. 23,521, the Due Obedience Act (Ley de Obsdiencia Debida),

was promulgated, introducing an irrebuttable presumption that members of the

security, police and prison services cannot be punished for such crimes if

committed in due obedience to orders. The Act further extends protection to senior

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officera who did not have a decision-making role with regard to the violations.

The Argentine Supreme Court has upheld the constitutionality of this Act.

2.3 On the basis of an application filed on 19 June 1984, the National Commission

on the Disappearance of Persona (CONADEP) opened investigation files on the

@isappearances of L. M. BE. (CONADEP file No. 5448), L. BE. (No. 5449) and C. 5.

(No. 5450). The whereabouts of the disappeared persons, however, could not be

established.

2.4 Article 6 of the Finality Act specifically provides that "The extinction of

penal action pursuant to article 1 does not affect civil proceedings".

2.5 The author has not instituted civil proceedings to obtain compensation.

2.6 By operation of article 4037 of the Argentinian Civil Code, the period of

limitations for instituting civil proceedings is two years. This period rune from

the date of the alleged violation.

The_complaint

3.1 ‘The author claims that the enactment of the Finality Act and the Due Obediunce

Act constitute violations by Argentina of its obligations under article 2 of the

Covenant, in particular “to adopt such legislative or other measures as may be

necessary to give effect to the rights recognised in the present Covenant" (art. 2,

para. 2), “to ensure that any person whose rights or freedoms as herein recognised

are violated shall have an effective romedy ..." (art. 2, para. 3 (a)) and "to

ensure that any person claiming such a remedy sha: 1 have his right thereto

determined by competent judicial, administrative or legislative authorities ... and

to develop the possibilities of judicial remedy" (art. 2, para. 3 (b)).

3.2 In particular, the author claims that the disappearance of her children was

never fully investigated. She requests that the inquiries r -eopened.

Tha_fitate yarty’s observations

4.1 The State party pointe out that the disappearances took place in 1976 during

the period of military government, 10 years prior to the entry into force of the

Covenant and of the Optional Protocol for Argentina.

4.2 With reszect to the temporal application of the Covenant and of the Optional

Protocol, the State party submits that the general rule for all juridical norms is

non-retrosctivity. In the specific area of treaty law, a firmly-established

international practice leads to the same conclusion. Both the Permanent Court of

Internationnl Justice (Series A/B, No. 4, 24) and the International Court of

Justice (I,CsuJ. Paports 1952. 40) have maintained that a treaty has to be

considered as having a retroactive effect only when this intention is explicitly

etated in the treaty or may be clearly inferred from its provisions. The validity

of the principle of non-retroactivity of treaties was enshrined in the 1969 Vienna

Convention on the Law of Treaties (in force on 27 January 1980), article 28 of

which codifies this rule of customary international laws

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“Unlese a different intention appears from the treaty or is otherwise

established, its provisions do not bind a party in relation to any act or fact

which took place or any situation which ceased to exist before the date of the

entry into force of the treaty with respect to that party".

The communication should therefore be declared inadmissible ratione temporig.

4.3 As to the inquiries into the disappearance of the author's three children, the

State party refers to the CONADEF investigations, which, unfortunately did not

yield positive results. In this conaection, the State party cites the CONADEP

final report, which concerns over 8,900 disappearances.

4.4 The case of the author's children was also submitted to the United Nations

Working Group on Enforced or Involuntary Disappearances on 13 Augquet 1990. The

State party's investigations in this respect failed to establish the whereabouts of

the author's children, or: when and where they were deprived of their lives.

4.5 With regard to the possibility of instituting civil proceedings for

compensation, the State party points cut that although the author could have

presented a claim, she did not do sco. The period of limitations for lodging civil

actions for compensation haa now clapsed.

Issues. and proceedings bafora the Committee

5.1 Before considering any claims contained in a communication, the Human Rights

Comittee must, in accordance with rule 87 of its rules of procedure, decide

whether or not it is admissible under the Optional Protocol to the Covenant.

5.2 With regard to the applicetion ratione temporis of the International Covenant

on Civil and Political Rights and of the Optional Protocol for Argentina, the

Committee recalls that both instrumeats entered into force on 8 November 1986. It

observes that the Covenant cannot be applied retroactively and that the Committee

is precluded ratione temporis from examining alleged violations that occurred prior

to the entry into force of the Covenant for the State party concerned.

5.3 It remains for the Committee to determine whether there have been any

violations of the Covenant subsequent to its entry into force. The author has

invoked article 2 of the Covenant and claimed a violation of the right to a

remedy. In this context tho Committee recalls its prior jurisprudence that

article 2 of the Covenant constitutes a general undertaking by States and cannot be

invoked, in isolation, by individuals under the Optional Protocol (M. G. B. and

S&S. P. v. Trinidad and Tobago, communication No. 268/1987, para. 6.2, declared

inadmissible on 3 November 1989). Bearing in mind that article 2 can only be

invoked by individuals in conjunction with other artic.ss of the Covenant, the

Committee observes that article 2, paragraph 3 (a), of the Covenant stipulates that

each State party undertakes "to ensure that any person whose rights or freedoms ag

herein recognized are violated shall have an effective remedy ..." (emphasis

added). Thus, under article 2 the right to a remedy arises only after a violation

of a Covenant right has been established. However, the events which could have

constituted violatione of several articles of the Covenant and in respect of which

remedies could have been invoked, occurred prior to the entry into force of the

Covenant and of the Optional Protocol for Argentina. Therefore, the matter cannot

be considered by the Committee, as this aspect of the communication is inadmissible

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§.4 The Committee finds it necessary to remind the State party that it is under an

obligation, in respect of violations occurring or continuing after the entry into

force of the Covenant, thoroughly to investigate alleged violations and to provide

remedies where applicable, for victims or their dependants.

§.5 To the extent that the author claims that the enactment of Law No. 23,521

frustrated a right to see certain government officials prosecuted, the Committee

refers to its prior jurisprudence that the Covenant does not provide a right for an

individual to require that the State party criminally prosecute another person

(Ha_Cs Ms As v. The Netherlands, communication No. 213/1986, para. 11.6, declared

inadmissible on 30 March 1989). Accordingly, this part of the communication is

inadmiseible ratione materiag as incompatible with the provisions of the Covenant.

6. The Human Rights Committee therefore decides:

(a) The communication is inadmissible;

(b) This decision shall be communicated to the State party and to the author

through her counsel,

Notes

a/ The text of an individual opinion submitted by Mr. Bertil Wennergren

pursuant to rule 92, paragraph 3, of the Committee's rules of procedure is appended

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APPENDIX

I concur in the views expressed in the Committee's decision. However, in my

opinion, the arguments in paragraph 5.4 of the decision need to be clarified and

expanded. In this paragraph, the Committee reminds the State party that it is

under an obligation, in respect of violations occurring or continuing after the

entry into force of the Covenant, thoroughly to investigate alleged violations and

to provide remedies, where applicable, for victimes or their dependants.

According to article 28 of the 1969 Vienna Convention on the Law of Treaties

(cited under paragraph 4.2 in the Committee's decision) a treaty's provisions do

not bind a party in relation to any act or fact which took place or any situation

which ceased to exist before the date of entry into force of the treaty in respect

of that party; the Permanent Court of International Justice (PCIJ Series A/B,

No. 74 (1938), p. 10-48 ~ Phosphates in Morocco case) has held in this context that

both the terms concerning the limitation ratione temporia and the underlying

intention are clear: This clause was inserted in order to deprive the acceptance

of the compulsory jurisdiction of any retroactive effacts. In this case the Court

had to decide whether or not issues arose from factors subsequent to the acceptance

of its jvrisdiction (which the Court refers to as the "crucial date"), f£irat

because certain acts, which, if considered separately, were in themselves unlawful

international acts, were actually accompliched after the “crucial date"; secondly,

because these acts, if taken in conjunction with earlier acts to which they were

closely linked, constituted as a whole a single, continuing and progressive illegal

act which was not fully accomplished until after the “crucial date"; and lastly,

because certain acts which were carried out prior to the "crucial date"

nevertheless gave rise to a permanent situation which was inconsistent with

international law and which existed after the said date. The question of whether a

given eituation or fact occurs prior to or subsequent to a particular date is, the

Court explains, one to be decided in respect of each specific case, juct as the

question of the situations or facts with regard to which the issues arose must be

decided in regard of each specific case. I note that the "crucial date" in this

case is 8 November 1986.

The Committee hes repeatedly indicated in prior decisions thet it "can

consider only an alleged violation of human rights occurring on or after (the date

of entry into force of the Covenant and the Protocol for the State party) unless it

is an alleged violation which, although occurring before that date, c-ntinues or

has effects which themselves constitute a violation after that date".

Disappearance cases that cannot be attributed to natural causes (accidents,

voluntary escapes, suicides, etc.) but that give rise to reasonable assumptions and

suspicions of illegal acts, such as killing, deprivation of liberty and inhuman

treatment, may lead to claims not only under the respective material articles in

the Covenant (articles 6, 7, 9 and 10) but in connection therewith also under

article 2 of the Covenant, concerniuvys a State party's obligation to adopt such

measures as ray he necessary to give effect to the rights recognised in the

Covenant and to ensure that any person whose rights or freedoms are violated shall

have an effective remedy. In an early decision involving a disappearance (30/1978

Bleier v. Uruguay) the Committee, after noting that sccording to unrefuted

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Allegations “Eduardo Bleier's name was on a list of prisoners read out once a week

at an army unit in Montevideo where his family delivered clothing for him and

received his dirty clothing until the summer of 1976" (i.e. after the "crucial

date"), urged the Uruguayan Government "to take effective steps ... to establish

what has happened to Eduardo Bleier since October 1975 (i.e. before the crucial

date but with continuation after that date), to bring to justice any person found

to be responsible for his death, disappearance or ill-treatment, and to pay

compensation to him or his family for any injury which he has suffered". In

another case (107/1981 Quinteros v. Uruguay) the Committee was of the view that the

information before it revealed breaches of articles 7. 9 and 10, paragraph 1, of

the Covenant and concluded that the responsibility for the disappearance of Elena

Quinteros fell on the authorities of Uruguay and that the State party should take

immediate and effective steps (i) to establish what has happened to Elena Quinteros

since 28 June 1976, and secure her release, (ii) to bring to justice any persons

found to be responsible for her disappearance and ill-treatment, (iii) to pay

compensation for the wrongs suffered, and (iv) to ensure that similar violations do

not occur in the future. In the latter case, the author of the communication was

the mother of the disappeared victim who had alleged that she, too, was a victim of

a violation of article 7, (psychological torture because she did not know about the

whereabouts of her daughter) and who had given ample description of her

sufferings. The Committee expressed its understanding with the anguish and stress

caused to the mother both by the disappearance of her daughter and by the

continuing uncertainty concerning her fate and whereabouts. She had the right to

know what had happened to her daughter. The Committee therefore found that in

these respects she was also a victim of a violation of the Covenant.

I draw the following conclusions. A disappearance per se does not raise any

issue under the Covenant. For it to do so, a link to some of the material articles

of the Covenant is required. And it is solely with such a link that article 2 of

the Covenant may become applicable and an issue may arise under that article too.

Should it become clear that the cause of the disappecrance is attributable to a

killing for which the State party must be held responsible, but that the killing

took place before the "crucial date", then this killing cannot be deemed to

constitute a violation of article 6 of the Covenant, notwithstanding that it was a

crime against the right to life under domestic penal law. Consequently, a claim

regarding the non-fulfillment of a State party's obligations under article 2 of the

Covenant also cannot arise. But, on the other hand, if a killing before the

“crucial date" is merely one hypothesis among several others, the case law of the

Committee clearly indicates that under article 2 of the Covenant the State party is

under a duty to carry out a meaningful investigation. Only when it is unimaginable

that any act, fact or situation which would constitute a violation of the Covenant

may have cuntinued to exist or have occurred subsequent to the "crucial date”, such

an obligation aoes not arise. It should be added that a declaration under domectic

civil law in respect of a disappeared person's death does not set aside a State

party's obligation under the Covenant. Domestic civil law provisions cannot be

given precedence over international legal obligations. Whatever the length and

thoroughness be deemed necessary for an investigation to satisfy the requirements

under the Covenant is to be considered case by case, but an investigation must

under all circumstances be conducted fairly, objectively and impartially. Any

negligence, suppression of evidence or other irregularity jeopardising the outcome

must be regarded as a violation of the obligations under article 2 of the Covenant,

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in conjunction with a relevant material article. And once an investigation has

been closed due to lack of adequate results, it must be reopened if new and

pextinent information comes to light.

Bertil WENNERGREN

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