CCPR/C/8/D/9/1977

Edgardo Dante Santullo Valcada v. Uruguay, Communication No. 9/1977,

U.N. Doc. CCPR/C/OP/1 at 43 (1984).

Submitted by: Edgardo Dante Santullo Valcada on 20 February 1977

Alleged victim: The author

State party: Uruguay

Date of adoption of views: 26 October 1979 (eighth session)

Detention--Habeas corpus--Ill-treatment--Effective remedy--Burden of proof Articles of

Covenant: 2, 7, 9 (4) and (5)

Article of Optional Protocol: 5 (2) (b)

Views under article 5 (4) of the Optional Protocol

1. The author of this communication dated 20 February 1977 is a Uruguayan national

residing in Mexico. He submitted the communication on his own behalf.

2. The author states that on 8 September 1976 he was arrested in the streets of Montevideo by

four police officers dressed in civilian clothing and taken to the headquarters of the

Investigation and Intelligence Department. There he learned that he was accused of receiving

the clandestine newspaper Carta. The author described what ensued as follows: "On denying

this, I was hooded and forced to remain standing in an unnatural position (feet one metre

apart, body and head very erect, arms stretched out and raised to shoulder level, in my

underwear and barefoot on a pile of grit); this caused me intense muscular pain. If I was

overcome by fatigue and lowered my arms or head or put my legs a little further together, I

was beaten brutally. This treatment was accompanied by punches, kicks, insults and threats of

torturing my wife and two children (aged six and eight)." He further alleges that he was not

given any food and that this situation lasted for three days. The day after his arrest, on 9

September 1976, at 3 a.m., his house was thoroughly searched, allegedly without his

permission and without any warrant. On 16 September 1976 he was transferred to the Central

Prison where he remained imprisoned for a further 50 days in complete solitary confinement

in a cell measuring 1.2 by 2 metres. He was only allowed to leave his cell 15 minutes in the

mornings and 15 minutes in the afternoons. On 23 October 1976, he was brought before a

military judge before whom he maintained what he had said previously. On 5 November

1976 he was again brought before the military court, where he was informed that, in the

absence of any reasonable grounds for charging him with an offence, he could go flee. The

writer adds that at no time, during the 50 days of his detention, was he able to communicate

with a defence counsel and that the recourse of habeas corpus was not applicable in his case

because he was detained under the "prompt security measures". Finally he claims that he has

not received any compensation for his imprisonment and for the resulting economic hardship

suffered by his family.

3. On 25 August 1977, the Human Rights Committee decided to transmit the communication

to the State party, under rule 91 of the provisional rules of procedure, requesting information

and observations relevant to the question of admissibility.

4. By letter dated 27 October 1977, the State party objected to the admissibility of the

communication on the ground that the alleged victim had not exhausted all available

domestic remedies, and made the general observation that every person in the national

territory has flee access to the courts and public and administrative authorities and freedom to

avail himself of all the administrative and legal remedies available to him under Uruguay's

internal law.

5. On 1 February 1978, the Human Rights Committee,

(a) Having ascertained that the case concerning the alleged victim has not been submitted to

any other international body,

(b) Being unable to conclude that, with regard to exhaustion of domestic remedies, on the

basis of the information before it, there were any further remedies which the alleged victim

should or could have pursued,

Therefore decided:

(a) That the communication was admissible;

(b) That the text of this decision be transmitted to the State party, together with the text of the

relevant documents, and to the author;

(c) 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.

6. The time-limit for the State party's submission under article 4 (2) of the Optional Protocol

expired on 3 September 1978. More than four months after expiry of the six-month time-

limit, the State party submitted its explanations, dated 8 January 1979, which consisted of a

"Review of the rights of the accused in cases before a military criminal tribunal, and domestic

remedies available to him for protecting and safeguarding his rights in the national courts of

justice". It contained a reference to the remedy of habeas corpus under article 17 of the

Constitution, but it did not mention the fact that under the Uruguayan legal system the

remedy of habeas corpus is not applicable to persons arrested and detained under the r6gime

of prompt security measures.

7. On 10 April 1979, the Committee decided that the submission of the State party dated 8

January 1979 was not sufficient to comply with the requirements of article 4 (2) of the

Optional Protocol, since it contained no explanations on the merits of the case under

consideration and requested the State party to supplement its submission by providing, not

later than six weeks from the date of the transmittal of this decision to the State party,

observations concerning the substance of the matter under consideration.

8. The Committee's decision of 18 April 1979 was transmitted to the State party on 18 May

1979. The six weeks referred to therein, therefore, expired on 2 July 1979. More than three

months after that date, a response was received from the State party, dated 9 October 1979.

The State party informed that Mr. Santullo Valcada was arrested on 9 September 1976 in

connection with the identification of persons acting as clandestine contacts for the proscribed

Communist Party. During the inspection of his house, a great amount of subversive material

was allegedly found and Mr. Santullo was detained under the "prompt security measures". On

6 November 1976 he was released and a few days later, on 25 November, he obtained

political asylum at the Embassy of Mexico. It is maintained that, throughout the proceedings,

all the provisions of the internal legal order were strictly complied with. The State party also

referred in its submission to the r6gime of "prompt security measures" describing some of its

characteristics. Under such r6gime, any person can be arrested on grounds of a grave and

imminent danger to security and public order; the remedy of habeas corpus is not applicable.

Furthermore the State party referred to the domestic legal provisions prohibiting any physical

maltreatment in Uruguay. Without going into further details, the State party submitted that

the author's allegations concerning violations of the Covenant were unfounded, irresponsible

and unaccompanied by the least shred of evidence and that they accordingly did not deserve

further comment.

9. The Committee has noted that the submissions by the Government of Uruguay of 9

October 1979 were received after the expiry of the time-limit imposed by article 4 (2) of the

Optional Protocol, and even after the time-limit following the Committee's renewed request

of 18 April 1979. The Committee considered the present communication in the light of all

information made available to it by the parties as provided for in article 5 (1) of the Optional

Protocol.

10. The Human Rights Committee therefore decides to base its views on the following facts

which have either been essentially confirmed by the State party or are unrepudiated or

uncontested except for denials of a general character offering no particular information or

explanations: Edgardo Dante Santullo Valcada was arrested on 8 or 9 September 1976. He

was brought before a military judge on 25 October 1976 and again on 5 or 6 November 1976

when he was released. During his detention he did not have access to legal counsel. He had

no possibility to apply for habeas corpus. Nor was there any decision against him which

could be the subject of an appeal.

11. As regards the allegations of ill-treatment, the Committee noted that in his

communication the author named the senior officers responsible for the illtreatment which he

alleged that he received. The State party has adduced no evidence that his allegations of

illtreatment have been duly investigated in accordance with the laws to which it drew

attention in its submission of 9 October 1979. A refutation of these allegations in general

terms is not enough. The State party should investigate the allegations in accordance with its

laws.

12. The Human Rights Committee acting under article 5 (4) of the Optional Protocol to the

International Covenant on Civil and Political Rights is of the view that these facts, having

arisen after 23 March 1976, disclose violations of the International Covenant on Civil and

Political Rights, in particular:

"of article 9 (4) because, habeas corpus being inapplicable in his case, Santullo Valcada was

denied an effective remedy to challenge his arrest and detention."

As regards article 7 of the Covenant the Committee cannot find that there has not been any

violation of this provision. In this respect the Committee notes that the State party has failed

to show that it had ensured to the person concerned the protection required by article 2 of the

Covenant.

13. 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 to

provide effective remedies to the victim, including compensation in accordance with article 9

(5) of the Covenant.

APPENDIX

Individual opinion submitted by a member of the Human Rights Committee under rule 94 (3)

of the Commlttee's provisional rules of procedure

Communication No. 9/1977

Individual opinion appended to the Committee's views at the request of Mr. Walter Surma

Tarnopolsky:

Although I agree with the view of the Committee that it could not find that there has not been

any violation of article 7 of the Covenant, [ also conclude, for the reasons set out in paragraph

11 of the Committee's views, that there has been a violation of article 7 of the Covenant.

The following members of the Committee associated themselves with the individual opinion

submitted by Mr. Tarnopolsky: Mr. Nejib Bouziri, Mr. Abdoulaye Dieye, Mr. Bernhard

Graefrath, Mr, Dejan JanEa, Mr. Waleed Sadi.

' The text of an individual opinion submitted by a Committee member is appended to these

views.