CCPR/C/38/D/343/1988

shirty-eighth seraion)

Bubmitted by: R. A. V. N. at al. [names deletsd)

Alleged victims: Relatives of the authors

State party concerned: Argentina

Date of entry into force of the

Cea ete mat -Pxotocad 8 Novambor 1986

Date of communication: 22 November 1988

bts Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 26 March 1990,

Adopts the following:

A. Decision to dea. jointiy with three communications

The Human Rights Commi'-tee,

Considering that communications Nos. 343, 344 and 345/1988 refer to closely

related events said to have taken piace in Argentina in 1976 and to the enactment

of certain legislation in June 1987,

Considering further that the three communications can eppropriately be dealt

with together,

1, Decides, pursuant to rule 88, paragraph 2, of its rules of procedure, to

deal jointly with these communications;,

2. Further decides that this decision shall be communicated tc the State

party and the authors of the communicatic.s,.

B. Decision on admissibility

1. The authors of the communications are Argentine citisens residing in

Argentina, writing on behalf of their deceased and/or disappeared relatives,

Argentine citizens formerly resident in the Province of Cérdoba who died or

disappeared in 1976, before the entry into force of the Covenant on Civil and

Political Rights and the Optional Protocol for Argentina on 8 November 1986.

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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2.1 The authors claim that the enactment of Law No. 23,521 of 8 June 1987 (known

ee the Due Obedience Law (Ley dv Obediencia Debida)) and its application to the

legal proceedings in the cases of their relatives constitute violations by

Argentina of articles 2, 3, 4, (), 9, 14 and 24 of the International Covenant on

Civil and Political Rights. Thay are ceprosented by counsel.

2.2 It ig claimed that. law No. 23,521 is incompatible with Argentina's obligations

under the Covenant. The law presumes, without admitting proof to the contrary,

that those persons who held lower military ranks at the time the crimes were

committed were acting under superior orders) the law therefore exempts them from

punishment. This immunity also covers senior military officers who did not act as

commander~in-“hief, chief-of-sone or chief-of-security police or penitentiary

forces, provided that they did nct themselves take decisions or that they did not

participate in the elaboration of criminal orders.

2.3 With regard to the application of the Covonant to the facts of the cases, the

authors acknowledge that their relatives were either cilled or disappeared in 1976,

unde, the prior Argentine Goverument, before the entry iato force of the Covenant.

and of the Optional Protocol for Argentina. They challenge, however, the

compatibility of the Due Obedience Law with article 2 of the Covenant, which

provides, inter alia, that States parties should adopt the necessary legislative

measures to give effect to the rights recognised in the Covenant. They claim that

by adopting legislation which effectively guarantees the impunity of military

officials responsible for disappearences, torture and murder, the Argentine

Government has violated its obligatioas under the Covenant.

4:4 As to the requirement of exhaustion of domestic remedies, the authors point

out that, with respect to the disappearance or death of the alleged victims, the

matter was brought before the competent Argentine courts. However, by virtue of

law No. 23,521, the pending criminal cases were shelved in June 1987 and May 1988,

end the accused were accordingly set free. The authors conclude that domestic

remedies have been exhausted.

2.5 It is stated that the same matter has not been and is not. being examined «nder

another procedure of international investigation or settlement. a/

2.6 Specifically, the authors request the Committee to find that Argentina

violated its obligations uniter the Covenant, and to urge the Government of

Arg \ntina to abrogate law No. 23,521 so as to allow the criminal prosecution and

punishiisat of the persone responsible for the disappearance and/or death of their

relatives.

3. By decisions of 4 April 1989, the Working Group of che Human Rights Committee,

without transmitting the communications to the State party, requested the authors,

under rule 91 of the rules of procedure: (a) to clarify whether and, if so, to

what extent the claims contained in their communication go beyond their desire to

see those held to be responsible for the disappearance or death of their relatives

criminally prosecuted; (b) to specify, bearing in mind that the Covenant and the

Optional Protocol entered into force for Argentina on 8 November 1986, which

violations they claim took place after that dats; and (c) to indicate whether they

have instituted legal proceedings befora the competent courts with a view to

obtaining compensation and, if so, with what result.

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4.1 In their reply to the Working Group's questions, the authors state that

besides punishing the guilty, the Government of Argentina should rsopen the inquiry

into the disappearance of one of the alleged victims, although following the

investigations of the Comisidn Nacional sobre Desaparicién de Personaa (CONADEP)

(National Commission on the Disappearance of Persons), it wag presumed, in view of

the lapse of time since the disappearances, that the persona in question were

dead. The authors strens, moreover, that laws of impunity should be repudiated,

lest they be understood as encouraging the commission of similar crimes. In this

connection they invoke the principles of the Nuremberg Triale, in particular the

rejection of the defence of superior orders.

4.2 Aa to which violations of the Covenant are said to have taken place after its

entry into force for Argentina on 8 November 1986, the authors claim that the

enactment of the Due Obedience Law in June 1987 constitutes a violation of the

State party's obligation .o ensure the thorough investigation of crimes and the

punishment of the guilty.

4.3 With regard to legal proceedinge aimed at. obtaining compensation, the authors

indicate that they preferred to demand an investigation of the events, in

particular of the whereabouts of disappeared parsons, and the identification of the

guilty parties. Although it appears that nonu of the authors ever initiated legal

proceedings for compensation, they refe« to other persons who have unsuccessfully

sought compensation in civil proceedings.

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

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

whether or not the communication is admissible under the Optional Protocol to the

Covenant.

§.2 With regard to the application ratione temporia of the International Covenant

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

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

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

ia precluded cratione temporig from examining alleged violations that occurred prior

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

5.3 It remains for the Committee to determine whether violations of the Covenant

have occurred subsequent to its entry into force. The authors have invoked

article 2 of the Covenant and clri* a violation of their right to a remedy. In

this context the Committee recal.. 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. PP. y.

Trinidad and Tobag2. communication No. 2686/1987, para. 6.2, declared inadmissible

on 3 November 1989). To the extent that the authore invoke article 2 in

conjunct3on with other articles 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 freedons

are violated shall have an effective remedy ..." (emphasise 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 of disappearance and death, which could

have constituted violations 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

inadmissibla ratione temporis.

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5.4 The Committee finds it necessary to remind the State party that it ie under an

obligation, in respent of violatious occurring or continuing after the entry into

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

remedies where applicable, for victimes or their dependants.

§.5 To the extent that the authors claim that the enactment of law No. 23,621

frustrate¢ their right to see certain government officials prosecuted, the

Committee refers to ite prior jurisprudence that the Covenant does not provide a

right for an individual to require that the State criminally prosecute another

person (H.C, M. A wv. The Netherlands, conmunication No. 213/1986, para. 11.6,

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

communication is inadmissible ratione matexriag as incompatible with the provisions

of the Covenant.

6.6 Ae to the question of compensation, the Committee notes that the authors, in

reply to the Working Group's questions, explained that. this war not che remedy that

they sought.

6. The Human Righte Conmittee therefore decides:

(a) The communications are inadmissible)

(b) Thies decision shall be communicated to the authors through their counsel,

and, for information, to the State party.

Notes

B/ The Secratariat has ascertained that one case was submitted to the

Inter-American Commigaion on Human Rights, which registered if. under No. 10288.

However, it is not currently being examined by the Commisajon.

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APPENDIX

Individual opinion: nubmitted by Mr, derti] Wennercren purauant

to rule 92. par: sraph 32. of the Committea's rules 2f procadure,

concerning the Comnittea's decision to daaiare communications

Nos, 343.344 end 3465/1988, R.A. V. NN, ot al, v. Argentine,

inadmissible

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

opinion, the arguments in paragraph 5.4 of the decigion 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 victims 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 ezist 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 terma concernirg the limitation ratione temparis and the underlying

jatention ace clear: This clause was inserted in order to deprive the acceptance

cf the compulsory jurisdiction of any retroactive effects. In this case the Court

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

of ite jurisdiction (which the Court refers to as the “crucial date"), first

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

international acts, were actually accomplished 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 wie 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 eituation which was inconsistent with

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

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

Court explains, one to be decided in reipect of each specific case, just as the

queation 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 has repeatedly indicated in prior decisions that 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

ig an alleged violation which, although occurring before that date, continues 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, concerning a State party's obligation to adopt such

measures as may be 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

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

allegations "Eduardo Bleier's name was on a list of prisoners read out once a week

at an army unit in Montevideo where hie family delivared clothing for him and

received hia dirty ciothing until the summer of 1976" (ji.@. after the “arucial

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

what has nappened to Eduardo Bleiez aiase Oct “ber 1975 (i.e. before the crucial

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

to be responsible for his death, disappearance or ill-treutment, 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 tne

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

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

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

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

gince 28 June 1976, and secure her release, (i:) 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 ocour 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, (payochological torture because she did not Fnow about the

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

sufferings. The Committes 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 ne does not raise any

igsue 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 disappearance 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-fulfilment 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 mexely 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 ao meaningful investigation. Only when it ie unimaginable

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

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

an obligation does not arise. It should be added that a declaration under domestic

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 jeopardizing 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

pertinent information comes to light.

Bertil WENNERGREN

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