CCPR/C/9/D/8/1977

Ann Maria Garcia Lanza de Netto v. Uruguay, Communication No. 8/1977,

U.N. Doc. CCPR/C/OP/1 at 45 (1984).

Submitted by: Ann Maria Garcia Lanza de Netto on 20 February 1977, Beatriz Weismann on

28 September 1979 and Alcides Lanza Perdomo on 15 February 1980

Alleged victims: Beatriz Weismann and Alcides Lanza Perdomo

State party: Uruguay

Date of adoption of views: 3 April 1980 (ninth session)

Standing of author to act on behalf of alleged victims-Submission to IACHR--Same matter--

Exhaustion of domestic remedies--Review of decision on admissibility--Joinder of

subsequent communication--Arbitrary arrest--Detention incommunicado --Habeas corpus--

Access to counsel-- Torture--Delay in proceedings--Fair trial--Continued detention after

serving sentence--Freedom of expression--Right of State party to derogate from Covenant--

Burden of proof

Articles of Covenant: 4, 7, 9 (lj, (3j and (4j, I0 (1), 14 (lj, (2) and (3) and 19 (2) and r3)

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

Views under article 5 (4J of the Optional Protocol

1. The initial author of this communication, Ann Maria Garcia Lanza de Netto (initial letter

dated 20 February 1977) is a Uruguayan national, residing in Mexico. She submitted the

communication on behalf of her aunt, Beatriz Weismann de Lanza, a 35-year-old Uruguayan

citizen, and her uncle, Alcides Lanza Perdomo, a 60-year-old Uruguayan citizen and a former

trade union leader, alleging that both had been atbitrarily arrested and detained in Uruguay.

2. Ann Maria Garcia Lanza de Netto claimed that her uncle had been arrested early in

February 1976 in the streets of Montevideo by the occupants of an army vehicle and that until

the end of September 1976 his family was unable to locate him. She alleged that Aleides

Lanza Perdomo was detained at various places, including the naval air base at Laguna del

Sauce in the Department of Maldenado and that during this period of initial detention he had

to be admitted to the Central Hospital of the Armed Forces four times, on one occasion

almost completely suffocated. She further alleged that there were two months about which

her uncle remembers absolutely nothing and that he supposes he was unconscious all that

time. She claimed that as a consequence of the mistreatment received, her uncle's hearing was

seriously impaired and that he had difficulties moving about because of injuries which were

caused to one hip, probably a fracture.

It is submitted that Alcides Lanza Perdomo was later held in the army barracks of the School

of Weapons and Services, 14 kilometres along Camino Maldonado, where he was allegeally

housed in a railway wagon together with 16 other prisoners, and that he was forced to work in

the fields.

In respect of her aunt, Beatriz Weismann de Lanza, the initial author submitted that she had

been arrested shortly after her husband by army personnel entering her home early one

morning and taking her away together with her two small sons, who were handed over some

hours later to their grandmother. The author claimed that her aunt's family and friends were

unaware of her place of detention until late in 1976. She claimed that her aunt had been in

good health until her disappearance in February 1976 but that due to torture inflicted upon

her, she had no feeling from the waist downwards and could not move without the help of

two female prisoners. She stated that Beatriz Weismann de Lanza had nevertheless been

obliged to work.

Finally, Ann Maria Garcia Lanza de Netto submitted that proceedings had been initiated with

regard to her uncle before a military court, but that it was not clear whether her aunt had

appeared before a court.

These submissions have later been supplemented by the alleged victims, as set out in

paragraphs 9, 10 and 11 below.

3. On 26 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. By that same decision the

Committee requested Ann Maria Garcia Lanza de Netto to furnish detailed information on

the grounds and circumstances justifying her acting on behalf of the alleged victims.

4. By letter dated 21 October 1977 the initial author explained that the alleged victims were

unable to act on their own behalf and that she was acting on their behalf as their close

relative, believing, on the basis of her personal acquaintance with them, that the alleged

victims would agree to lodging a complaint.

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

communication on two grounds:

(a) That the same matter was already being examined by the Inter-American Commission on

Human Rights;

(b) That the alleged victims had not exhausted all available domestic remedies.

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

(a) Having ascertained that the case concerning Beatriz Weismann de Lanza, which had been

before the Inter-American Commission on Human Rights, had been withdrawn and was no

longer under active consideration by that body,

(b) Having further ascertained that the cases concerning Alcides Lanza Perdomo were

submitted to the Inter-American Commission on Human Rights in November 1974 and

February 1976 respectively,

(c) Concluding that these two cases cannot relate to events alleged to have taken place on or

after 23 March 1976 (the date on which the Covenant and the Optional Protocol entered into

force for Uruguay),

(d) Further concluding that, with regard to exhaustion of domestic remedies, on the basis of

the information before it, there were no further remedies which the alleged victims should or

could have pursued,

Therefore decided:

(a) That the author of the communication was justified by reason of close family connection

in acting on behalf of the alleged victims;

(b) That the communication was admissible;

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

relevant documents and to the author;

(d) That, in accordance with article 4 (2) of the Opo tional 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.

With regard to the exhaustion of domestic remedies the Committee said that its decision

"may be reviewed in the light of any further explanations which the State party may submit

giving details of any domestic remedies which it claims to have been available to the alleged

victims in the circumstances of their cases, together with evidence that there would be a

reasonable prospect that such remedies would be effective".

7. By its decision of 18 April 1979, the Committee:

(a) Informed the State party of the Committee's concern that the State party had failed to

fulfil its obligation to submit written explanations or statements under article 4 (2) of the

Optional Protocol;

(b) Requested the State party, although the sixmonths' time-limit, established by article 4 (2)

of the Optional Protocol, had expired on 3 September 1978, that a submission from the State

party pursuant to that article should be made without further delay and should, in any event,

reach the Human Rights Committee not later than six weeks from the date of the transmittal

of the decision.

8. The time-limit set by the Committee in its decision of 18 April expired on 2 July 1979, at

which time no further submission had yet been received. However, in a note dated 8 October

1979 the Government submitted, in the first place, that the Committee should review its

decision regarding the admissibility of the communication, because domestic remedies had

not been exhausted. It attached a summary of available remedies, noting that the authors had

not indicated that they had actually applied for any remedies; furthermore, the Government

stated that the effectiveness of the remedies was not for the Government to prove and that it

could not be argued hypothetically that they were ineffective. Notwithstanding these

contentions, however, the Government gave the following information:

Mr. Alcides Lanza was arrested for investigation on 2 February 1976 and detained under the

prompt security measures. Subsequently, on 21 September 1976, he was charged by the

military examining judge of fifth sitting with the offence of 'subversive association' referred

to in article 60 (VI} of the Military Penal Code.

On 26 October 1977 he was sentenced to three years' severe imprisonment less the period

spent in custody pending trial. On completion of his sentence, he was granted unconditiona[

release on 2 February 1979 and left Uruguay for Sweden on I July 1979.

It should be noted that the appropriate legal assistance was available to Mr. kanza at all times,

his defence counsel being Dr. Juan Barbe.

Mrs. Weismann de Lanza was arrested for investigation on 17 February 1976 and detained

under the prompt security measures. Subsequently, on 28 September 1976, she was charged

by the military examining judge of first sitting with the offence of 'assistance to association'

referred to in article 60 (VI) of the Military Penal Code.

She was sentenced on 4 April 1978. Her of fence was deemed to have been purged by the

period spent in custody pending trial, and she was released. She left Uruguay for Sweden on

11 February 1979.

It stated that it was clearly demonstrated by the plain statement of facts given above that the

accusations of violations of the Covenant were "fallacious". "Although such accusations,

being groundless, irresponsible and unaccompanied by the least shred of evidence, are not

worthy of any further comment" some were referred to by way of example:

It is obvious that both of these persons were afforded all guarantees of due process, for they

were brought before a competent judge in public proceedings, had the appropriate legal

assistance from their defence counsel and were presumed innocent until proved guilty {article

14, paragraph 1, paragraphs 3 (b) and 3 (e) and paragraph 2).

The charges of alleged ill-treatment and torture suffered by the detainees are mere figments

of the author's imagination; she is apparently unaware of Uruguay's long tradition in the

matter, which has, throughout its history, earned it the recognition of the international

community. Only someone who is completely ignorant of the facts or is acting in obvious bad

faith can conceivably accuse Uruguay of violating articles 7 and 10 (1) of the Covenant and

article 5 of the Universal Declaration of Human Rights. Detainees are not subjected to any

kind of torture or physical coercion in any detention establishment.

The Government of Uruguay trusts that the foregoing explanations will provide a sufficient

basis for the Committee, on this occasion, to reject once and for all the communication under

consideration, which is merely another instance of the campaign of defamation conducted

against our country with the intention of discrediting its image abroad; none the less, it

remains at the disposal of the Committee for any further clarification it may require.

9. Meanwhile, one of the alleged victims, Beatriz Weismann de Lanza, after arriving in

Sweden, had submitted a communication (received on 28 February 1979 and first registered

as No. 48/1979) on behalf of the other alleged victim, her husband Alcides Lanza Perdomo,

containing further and detailed particulars about his case. In a further letter (of 30 April 1979)

including a detailed statement of her own case, she requested to be regarded as co-sponsor

and co-author of the present communication, and that her own communication (No. 48/1979)

be regarded as part thereof and added thereto as further information.

She stated, inter alia, that her husband had been kept in different military quarters and

prisons, held incommunicado for nine months and subjected to torture, such as electric

shocks, hanging by his hands, immersion of his head in dirty water, near to asphyxia,

submarino seco. She stated that her husband suffered from several serious health problems

(hypertension, permanent trembling in his right arm and sometimes in his whole body and

loss of memory due to brain damage) due to the treatment he was subjected to. He was tried

on 21 September 1976 and sentenced to three years' imprisonment by a military court, and

she claimed that he continued to be kept in detention in spite of having served his sentence.

With regard to herself she described in detail her experience from the date of her arrest of 17

February 1976 until her release and departure from Uruguay in 1979. She said that after her

arrest she was first detained in the barracks of unit No. 13 of the Armed Forces, called "El

infierno" by prisoners. Almost constantly kept blindfolded and with her hands tied, she

allegedly was subjected to various forms of torture, such as caballete, subrnarino seco, picana

and plant6n, which she describes in detail. On 29 July 1976, she was transferred to the

barracks of the 6th Cavalry Unit where she was kept in a dirty cell in miserable hygienic

conditions and without adequate clothes to protect her against the cold, still blindfolded most

of the time. She stated that in those barracks the preliminary investigation took place on 26

August 1976. When she complained to the military judge about the torture which she had

been subjected to, he advised her not to pursue her denunciation which could not be proven

because otherwise she would probably end up again in "El infierno". On 25 September 1976

she was transferred to the barracks of Infantry Unit No. 1 on Camino Maldonado where she

was at first confined to an individual cell measuring 2 by 1.5 m. During the day, prisoners

were forced to remain seated without being allowed to speak to each other. She received the

first visit by a member of her family on 30 October 1976. Shortly afterwards, on 3 November

1976, she was transferred to the prison of Punta de Rieles where she was kept together with

eleven other female prisoners in a cell designed for four prisoners only. Even female

prisoners were forced to perform hard work in the fields suitable only for men. She stated that

she was charged on 15 October 1976 with "assisting a subversive association", that in April

1977 the prosecutor asked for a sentence of 32 months, that one year later, in April 1978, a

judge pronounced a sentence of 24 months, taking into account the time of her detention, and

ordered her release, but that nevertheless her detention continued under the "prompt security

measures" until she was released early in 1979.

10. The Committee decided to regard the information referred to in paragraph 9 above as

relating to the present communication as requested by the author and therefore to discontinue

its consideration of communication No. 48/1979 as a separate communication. This

information was transmitted to the Government on 18 September 1979, as noted in the

Government's submission dated 8 October 1979 (see para. 8 above).

By a further letter dated 28 September 1979, Beatriz Weismann informed the Committee that

her husband had been expelled from Uruguay and that he obtained political asylum in

Sweden on 2 July 1979.

11. In response to further inquiries from the Committee, Beatriz Weismann and Alcides

Lanza, in a letter dated 15 February 1980, submitted the following additional information and

observations:

(a) They stated that they had no legal assistance prior to their trial, at which time they were

afforded the possibility to choose either a private lawyer or an officially appointed lawyer for

their defence. Beatriz Weismann stated that she opted for a private lawyer, but that she never

saw him, was never able to communicate with him and that she was never informed of her

rights, possible remedies or recourses. Alcides Lanza stated that he opted for an officially

appointed lawyer and that Dr. Antonio Seluja, whom he saw on that occasion, but was never

able to speak with, was assigned as his defence lawyer. Alcides Lanza further stated that his

alefence counsel was later succeeded by Dr. Pereda and Dr. Juan Barb6, neither of whom he

could ever communicate with. As they had no contact with lawyers, they were unable to

appeal because they did not know what their rights were and had no one to assist them in

exercising them.

(b) Beatriz Weismann was kept in detention until 11 February 1979, although her release had

been ordered on 14 April 1978, at which time she was requested to place her signature on the

release order. Alcides kanza, having served his sentence on 2 February 1979, was

nevertheless kept detained at various places of detention (the names of the places of detention

are specified), until he was released on I July 1979.

(c) They confirmed, as true, the information previously submitted with regard to their

treatment while in detention, including the various forms of physical and mental torture to

which they were allegedly subjected. They stated that due to the treatment which he had

received, Alcides Lanza's state of health was still poor and, as evidence of this, they

submitted a medical report dated 19 February 1980, from a doctor in Stockholm, together

with copies of hospital and laboratory records relating thereto. They also enclosed several

photographs showing scars on Alcides Lanza's legs, allegeally caused by cigarette burns as a

means of torture. The doctor's report shows that Alcides Lanza continues to suffer from

auditire disturbances, a tremor of his right hand and inability to use it properly and symptoms

of mental depression.

12. The Committee has noted that the submissions of the Government of 8 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. Nevertheless the Committee has 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.

13. With regard to the exhaustion of domestic remedies, the Committee notes that the

submissions and explanations of the Government still do not show in any way that in the

particular circumstances of the two individuals concerned at the time of the events

complained of, there were remedies available which they should have pursued. The

Committee has been informed by the Government in another case (No. 9/1977) that the

remedy of habeas corpus is not applicable to persons arrested under prompt security

measures. Moreover, Beatriz Weismann and Alcides Lanza have explained that they had no

effective contact with lawyers to advise them of their rights or to assist them in exercising

them.

14. The Committee therefore decides to base its views on the following considerations:

(i) Alcides Lanza Perdomo was arrested for investigation on 2 February 1976 and detained

under the "prompt security measures" as stated by the Government. He was kept

incommunicado for many months. It is not in dispute that he was kept in detention for nearly

eight months without charges, and later for another 13 months, on the charge of "subversive

association" apparently on no other basis than his political views and connections. Then, after

nearly 21 months in detention, he was sentenced for that of fence by a military judge to three

years severe imprisonment, less the period already spent in detention. Throughout his period

of detention and during his trial he had no effective access to legal assistance. Although he

had served his sentence on 2 February 1979, he was not released until 1 July 1979: His

present state of physical and mental ill-health for which no other explanation has been offered

by the Uruguayan Government, confirms the allegations of ill-treatment which he suffered

while under detention.

(ii) Beatriz Weismann de Lanza was arrested for investigation on 17 February 1976 and

detained under the prompt security measures, as stated by the Government. She was kept

incommunicado for many months. it is not in dispute that she was kept in detention for more

than seven months without charges, and later, according to the information provided by the

Government, she was kept in detention for over 18 months (28 September 1976 to April

1978) on the charge of "assisting a subversive association", apparently on similar grounds to

those in the case of her husband. She was tried and sentenced in April 1978 by a military

judge, at which time her offence was deemed to be purged by the period spent in custody

pending trial. She was, however, kept in detention until 11 February 1979. Throughout her

period of detention and during her trial she had no effective access to legal assistance. With

regard to her allegations that during her detention she was subjected to illtreatment and to

physical and mental torture, she states that she complained to the military judge, but there is

no evidence that her complaints have been investigated.

15. The Human Rights Committee has considered whether acts and treatment, which are

primafacie not in conformity with the Covenant, could for any reasons be justified under the

Covenant in the circumstances. The Government has referred to provisions of Uruguayan

law, in particular the "prompt security measures". However, the Covenant (art. 4) does not

allow national measures derogating from any of its provisions except in strictly defined

circumstances, and the Government has not made any submissions of fact or law to justify

such derogation. Moreover, some of the facts referred to above raise issues under provisions

from which the Covenant does not allow any derogation under any circumstances.

As regards the observations of the Government quoted above (para. 8) it appears from the

above findings of the Committee (para. 14) that various guarantees of due process have not

been effectively observed, and that a number of quite specific allegations of illtreatment and

torture have only been deemed by the Government "not worthy of any further comment". In

its decision of 26 October 1979 concerning case No. 9/1977, the Committee has emphasized

that denials of a general character do not suffice. Specific responses and pertinent evidence

(including copies of the relevant decisions of the courts and findings of any investigations

which have taken place into the validity of the complaints made) in reply to the contentions

of the author of a communication are required. The Government did not furnish the

Committee with such information. Consequently, the Committee cannot but draw appropriate

conclusions on the basis of the information before it.

16. 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 the facts set out

above (para. 14), 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, for

the reasons set out above (para. 15) violations of the International Coychant on Civil and

Political Rights, with respect to both Alcides Lanza Perdomo and Beatriz Weismann de

Lanza, in particular of:

Article 7 and article 10 (1), because of the treatment which they received during their

detention;

Article 9 (I), because they were not released, in the case of Alcides Lanza Perdomo, for five

months and, in the case of Beatriz Weismann de Lanza, for 10 months, after their sentences

of imprisonment had been fully served.

Article 9 (3), because upon their arrest they were not brought promptly before a judicial

officer and because they were not brought to trial within a reasonable time;

Article 9 (4), because they were unable effectively to challenge their arrest and detention;

Article 14 (1), (2) and (3), because they had no effective access to legal assistance, they were

not brought to trial within a reasonable time, and further because they were tried in

circumstances in which irrespective of the legislative provisions they could not effectively

enjoy the safeguards of fair trial;

Article 19 of the Covenant provides that everyone shall have the right to hold opinions

without interference and that the freedom of expression set forth in paragraph 2 of that article

shall be subject only to such restrictions as are necessary (a) for respect of the rights and

reputations of others and (b) for the protection of national security or of public order (ordre

public), or of public health or morals. The Government of Uruguay has submitted no

evidence regarding the nature of the political activities in which Beatriz Weismann and

Alcides Lanza were alleged to have been engaged and which led to their arrest, detention and

trial. Information that they were charged with subversive association is not in itself sufficient.

The Committee is therefore unable to conclude on the information before it that the arrest,

detention and trial of Beatriz Weismann and Alcides Lanza were justified on any of the

grounds mentioned in article 19 (3) of the Covenant.

17. Accordingly, while the Committee notes with satisfaction that Beatriz Weismann and

Alcides Lanza have now been released, it is nevertheless of the view that the State party is

under an obligation to provide them with effective remedies, including compensation, for the

violations which they have suffered and to take steps to ensure that similar violations do not

occur in the future.