A/HRC/WGAD/2011/63

GE.12-14513 (E) 250712 020812

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-second session, 16–25 November 2011

No. 63/2011 (Plurinational State of Bolivia)

Communication addressed to the Government of the Plurinational

State of Bolivia on 27 April 2011, reiterated on 9 August 2012

Concerning: Mr. Elöd Tóásó

The State has been a party to the International Covenant on Civil and Political Rights

since 12 August 1982.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights. The mandate of the Working Group was

clarified and extended in Commission resolution 1997/50. The Human Rights Council

assumed the mandate in its decision 2006/102. The mandate was extended for a further

three-year period in Council resolution 15/18 of 30 September 2010. Acting in accordance

with its methods of work, the Working Group forwarded the aforementioned

communication to the Government.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of their

sentence or despite an amnesty law applicable to them) (category I);

(b)

When the deprivation of liberty results from a judgement or sentence issued

in relation to the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19,

20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are

concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on

Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

`

United Nations

A/HRC/WGAD/2011/63

General Assembly

Distr.: General

21 June 2012

English

Original: Spanish

A/HRC/WGAD/2011/63

2

GE.12-14513

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review (category

IV);

(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic status; political or other opinion; gender; sexual orientation; disability or

other status, and which aims towards or can result in ignoring the equality of human rights

(category V).

3.

Having examined the detailed response of the Government of the Plurinational State

of Bolivia of 29 August 2011 and the source’s concluding observations, the Working Group

is in a position to adopt its Opinion.

Submissions

Communication from the source

4.

The source maintains that Mr. Elöd Tóásó, an information technology teacher and

web page designer living in Somogyi (Hungary) who has Hungarian and Romanian

nationality and was born on 3 December 1980, was arrested on 16 April 2009 in room 458

of the Las Americas Hotel in the city of Santa Cruz de la Sierra by officers of the special

police unit known as the Unidad Táctica de Resolución de Crisis (UTARC) without an

arrest warrant being shown or the presence of a public prosecutor.

5.

He recounts that officers of the special police unit who used explosives to enter the

hotel by force, broke down the doors of rooms 456, 457 and 458. Three people in the room

were killed by the police officers’ shots: Eduardo Rózsa Flores, a national of Bolivia and

Hungary; Magyarosi Árpád, a Hungarian national; and Michael Dwyer, an Irish national.

Magyarosi Árpád was allegedly shot seven times in the back although he did not fire a

single shot himself. Mr. Tóásó, together with Mario Tadic, who has joint Bolivian and

Croatian nationality, was taken to a police holding centre in the city of Santa Cruz de la

Sierra and held incommunicado for two days. He was later transferred to San Pedro prison

in La Paz and remanded in custody of Ms. Beatriz Yaniquez, a La Paz Criminal Court

judge.

6.

The Supreme Court ordered Mr. Tóásó to be tried in Santa Cruz de la Sierra, the city

in which he was arrested, but the executive authorities arranged for the judicial hearings to

take place in Cochabamba before the Court of Justice. Seven hearings scheduled over the

past two-and-a-half years have had to be called off for lack of interpreters, representatives

of the Public Prosecution Service and even a judge and, as a result, not a single hearing has

taken place to date. A hearing had been scheduled for the end of April 2011 in Cochabamba

before the Ninth Investigating Criminal Judge, Mr. Rolando Sarmiento.

7.

Mr. Tóásó has been detained without trial for more than two years, in violation of

article 134 of the Code of Criminal Procedure, which stipulates that any person detained for

more than 18 months without trial shall have the conditions of their detention changed to a

more favourable regime. In judgement No. 1036-2002 of 29 August and judgement No.

1430-2002-R of 25 November, the Constitutional Court of Bolivia confirmed that a period

of 18 months is more than sufficient for investigations, evidence-gathering and initiation of

oral proceedings.

8.

The source states that, at the end of Mr. Tóásó’s first six months in pretrial

detention, the Public Prosecution Service should have either requested an extension of the

investigation phase or pressed charges, neither of which it did. The judge then had five days

to ask the public prosecutor to close the file, which he also failed to do. He should then

have ordered Mr. Tóásó’s release, but again failed to do so.

A/HRC/WGAD/2011/63

GE.12-14513

3

9.

According to the source, the police operation resulting in Mr. Tóásó’s arrest was

meticulously planned. The hotel’s video surveillance system was disabled several days

before and information on persons entering and leaving the hotel was wiped from its

computers.

10.

Mr. Tóásó claims to have been tortured by former officers of the Directorate-

General of Security, the Ombudsman’s Office and the Public Prosecution Service, both in

Santa Cruz de la Sierra and in La Paz, in an attempt to force him to confess to charges of

terrorism and belonging to an irregular armed group, which he refused to do. The acts of

torture apparently resulted in lost teeth, broken ribs, bruises and knife lacerations. The

allegations of torture were not investigated by the Public Prosecution Service and were

disregarded during the judicial inquiries, despite a formal complaint from the victim.

11.

The source maintains that the Public Prosecution Service not only took part in Mr.

Tóásó’s arrest but also subsequently proceeded to destroy the supposedly incriminating

evidence that it held against him. Explosives found in Santa Cruz de la Sierra were

destroyed. Trial evidence was not securely stored and could therefore have been

contaminated or tampered with. The evidence was never properly classified and there was

no record of the date and time at which it was obtained. There were no witnesses’

signatures and the legally required records were not drawn up. It would appear, therefore,

that the Public Prosecution Service lacks the incriminating evidence needed to bring Mr.

Tóásó to trial. However, he remains in pretrial detention.

12.

The principal witness against Mr. Tóásó is reported to be Ignacio Villa Vargas.

However, this person has apparently stated that his incriminating testimony was extracted

under torture by officers of the Public Prosecution Service.

13.

Mr. Tóásó has found it extremely difficult to arrange meetings with his lawyers and

prepare his defence. Although his lawyers have been granted court permission to visit him

on several occasions, they have been denied access to the prison for lack of authorizations

from the Public Prosecution Service or Directorate-General of Prisons, which are not even

required. Lawyers and international observers who have applied for visas and interview

permits have had their requests turned down. This allegedly constitutes a serious violation

of Mr. Tóásó’s right to a defence.

14.

According to the source, Mr. Elöd Tóásó’s pretrial detention for over two years is

arbitrary. He is subject to a jurisdiction that is not competent, according to the law and the

Supreme Court’s order, in violation of his right to be heard by the court determined by law.

He has not been formally charged and the Public Prosecution Service has destroyed the

incriminating evidence and has adduced no evidence. He has been detained without trial for

far longer than the provisions of international law and the Code of Criminal Procedure of

the Plurinational State of Bolivia allow. His arrest would appear to be politically motivated.

15.

It is also alleged that Mr. Tóásó was questioned in the absence of a defence attorney

or Hungarian interpreter. His claims of torture have not been duly investigated despite his

formal complaint and the physical evidence supporting them.

16.

The source concludes that Mr. Elöd Tóásó’s detention is arbitrary, being contrary to

articles 9 and 10 of the Universal Declaration of Human Rights, and articles 9 and 14 of the

International Covenant on Civil and Political Rights, to which the Plurinational State of

Bolivia is a party. The source therefore requests his immediate release.

Response from the Government

17.

In its response of 29 August 2011 the Government states that the arrest warrant

issued by the public prosecutor on 18 April 2009 complies with the provisions of the Code

of Criminal Procedure (Act No. 1970 of March 2009) as there was sufficient evidence of

A/HRC/WGAD/2011/63

4

GE.12-14513

Mr. Tóásó’s involvement and he was suspected of an offence carrying a sentence of more

than 2 years’ imprisonment. The offence in question was plotting to “overthrow a

democratically elected government” and “the first case of terrorism in the country”. The

Government adds that the seriousness of the offence, terrorism being the scourge of

humanity, justified the public prosecutor’s action.

18.

The Government adds that the public prosecutor’s action followed an earlier inquiry

conducted by the police and the public prosecutor’s office on the basis of solid forensic

evidence indicating that an explosive device had gone off at the home of Cardinal Julio

Terrazas, Archbishop of Santa Cruz de la Sierra. The inquiry ascertained that the attack had

been perpetrated by a group of people who, caught in the act, opened fire on the police

officers. It was subsequently claimed that the suspects, including Mr. Tóásó, had gunshot

residue on their hands. Firearms were also discovered in the rooms where they were found.

19.

The Government recalls that in a statement issued on 29 April 2009 the Working

Group on the use of mercenaries as a means of violating human rights and impeding the

exercise of the right of peoples to self-determination said that it was “deeply concerned by

reports that a group of five persons, including foreigners, were involved in a plot against the

Bolivian Government”1.

20.

The public prosecutor ordered the suspects to be placed in incommunicado detention

to prevent contact between them and other persons involved in the same illegal activities, as

was permitted under Bolivian law in cases of “extreme gravity” such as the case at hand

(Code of Criminal Procedure, arts. 232 and 235). The Government reports that the accused

were permitted to meet with their lawyers while in incommunicado detention.

21.

The offences with which they are charged, which, according to the Government, are

proven, are terrorism, attempt on the life of the President of the Republic and other State

officials, sedition and assumption of the rights of the people established in articles 133, 128,

223 and 124, respectively, of the Criminal Code.

22.

The Government explains that numerous incidents occurred among the 39

defendants in the case, some of them being adversely affected by the climate and altitude of

La Paz, and that it was why the trial venue had eventually been moved, so that the

proceedings could take place in the warmer, lower altitude city of Cochabamba.

23.

The Government assures the Working Group that Mr. Tóásó was provided with an

interpreter and, moreover, that he had the right to pursue all legal remedies provided under

Bolivian law, whether in the Constitution or in legal statutes. However, in his reply to the

Government, the source insists that no interpreter was provided.

24.

The Government is of the view that there have been no undue delays in the

proceedings. The pretrial phase ended on 22 October 2010 and formal charges were filed on

17 December 2010, that is well under the legal deadline, especially when one considers that

there are 39 defendants in the case.

25.

The Government denies that the petitioner was tortured and states that, if injuries

were sustained, they were due to the legitimate force that the police had to use when

making the arrest. It adds that the record of injuries makes no mention of lost teeth, broken

ribs, or other harm, nor are claims that other detainees were also tortured accurate;

according to reports received by the Government, one of them even expressly stated that he

had not been tortured.

1 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=9270&LangID=E (English

only).

A/HRC/WGAD/2011/63

GE.12-14513

5

26.

The Government is adamant that Bolivian law was rigorously respected,

emphasizing that during questioning Mr. Tóásó was accompanied by the Honorary Consul

of Hungary in Bolivia and had access to an interpreter at all times. The Government

stresses that, when asked if he had been pressurized into making a statement, Mr. Tóásó

said: “No, no one has pressurized me; I gave my statement voluntarily.”

27.

Lastly, the Government adds that in its view there are no grounds for claiming that

Mr. Tóásó’s detention was arbitrary, and that the events in which he was involved are also

being investigated by the Chamber of Deputies.

Considerations of the Working Group

28.

An Opinion on this case cannot be issued without consideration of the facts that led

to Mr. Tóásó’s deprivation of liberty. The source’s account of events differs substantially

from the Government’s.

29.

According to the source, members of the special police unit (UTARC) in the city of

Santa Cruz de la Sierra entered room 458 of the Hotel Las Américas by force and broke

down the doors of rooms 456, 457 and 458 using explosives. Three people in the room

were killed by the police officers’ shots: Eduardo Rózsa Flores, a national of Bolivia and

Hungary, Magyarosi Árpád, a Hungarian national, and Michael Dwyer, an Irish national.

Magyarosi Árpád was allegedly shot seven times in the back even though he did not fire a

single bullet himself. Mr. Tóásó was taken to the local police station with Mario Tadic, who

has joint Bolivian and Croatian nationality. Mr. Tóásó was held incommunicado for two

days before being taken to San Pedro prison in the city of La Paz and remanded in the

custody of a judge of La Paz Criminal Court.

30.

The Government, meanwhile, affirms that police inquiries had resulted in the

identification of the members of a terrorist group through the vehicle in which they were

travelling, as the vehicle in question was being sought in connection with an attempt the

previous day on the life of Cardinal Julio Terrazas, Archbishop of Santa Cruz de la Sierra

and that the persons in question were staying at the Hotel Las Américas. The Government

maintains that “the members of the alleged terrorist organization […] were the first to open

fire”, which would imply a situation of flagrante delicto requiring immediate action without

a warrant, pursuant to Bolivian law.

31.

Both the attack on the home of Cardinal Terrazas and the raid on the Hotel Las

Américas had a resounding international impact both having been seen as an attempt —

actual or presumed — to destabilize a democratically elected government and attracting

harsh condemnations (see, for example, the above-mentioned statement of the Working

Group on the use of mercenaries, of 29 April 2009). It should be added that, according to

the Government, a further 39 persons, in addition to Mr. Tóásó and Mr. Tadic, were

arrested and are standing trial and that all of them are — or were — being held in custody

and underwent process.

32.

The Working Group will not issue an opinion on all the facts taken together but

solely on the situation of the person on whose behalf the complaint was brought.

33.

With regard to the source’s allegation that the Bolivian police arrested the suspect

without a warrant (the attempt on the Cardinal’s life having occurred 24 hours prior to the

arrest and death of those involved, as described above), the public prosecutor should have

been in possession of an arrest warrant issued either by the investigating judge or by the

Public Prosecution Service, in accordance with article 227 of the Code of Criminal

Procedure, which stipulates that the police may make arrests only in the following cases: (a)

if the person is caught in flagrante delicto; (b) in compliance with an arrest warrant issued

by a judge or court of competent jurisdiction; (c) in compliance with an order issued by the

Public Prosecution Service, and; (d) if the person has absconded after being lawfully

A/HRC/WGAD/2011/63

6

GE.12-14513

detained. The source adds that the Public Prosecution Service may order a person’s

detention only “when the person’s presence is essential and there is sufficient evidence that

the person perpetrated or participated in a publicly actionable offence that carries a prison

sentence of at least two years and that the person might otherwise attempt to hide, escape,

abscond or impede efforts to establish the truth” (art. 226).

34.

The Government maintains that the Public Prosecution Service issued an arrest

warrant on 15 April 2009, on the ground that it was an emergency situation expressly

provided for under article 226 of the Criminal Code and that in the case in question it was

dealing not with an ordinary offence, but with an extremely serious offence: “the scourge

against humanity that is terrorism”. For this reason, there was no violation of “the guarantee

of due process, as the public prosecutor’s action was in line with the powers and provisions

established by law”.

35.

The Working Group believes that, given the special circumstances surrounding the

illegal attempt on the life of Cardinal Terrazas, the Public Prosecution Service’s use of its

prerogative to take action in situations of extreme urgency cannot be considered a violation

of international legal provisions concerning the right to a fair trial so serious as to render

Mr. Tóásó’s deprivation of liberty arbitrary.

36.

The source also challenges the competence of the court, sitting in the city of

Cochabamba, since the events took place in the city of Santa Cruz de la Sierra, although the

judicial investigation was initiated in the city of La Paz on 30 March 2009, after the

Government received information of possible terrorist offences, attempts on the lives of the

President of Bolivia and other State officials, sedition, and attempts to assume the rights of

the people. The Government believed that in view of the altitude of the city of La Paz

(which is 3,600 metres above sea level) and its low temperatures, the La Paz Court that had

first heard the case should be moved to Cochabamba, purely as a means of safeguarding the

health of the defendants, which hardly constitutes a violation of international law

concerning the right to a fair trial.

37.

The Government contests the source’s claim that Mr. Elöd Tóásó was detained

incommunicado for two days. According to the source, time during which Mr. Tóásó was

alone in his place of detention and unable to communicate either with his family or, due to

language barriers, with the State-appointed defence counsel, should be considered

incommunicado detention.

38.

In the Working Group’s view, the only period of detention that can be considered

incommunicado was the two days following his arrest.

39.

Principle 15 of the Body of Principles for the Protection of All Persons under Any

Form of Detention or Imprisonment2 states that: “Notwithstanding the exceptions contained

in principle 16, paragraph 4, and principle 18, paragraph 3, communication of the detained

or imprisoned person with the outside world, and in particular his family or counsel, shall

not be denied for more than a matter of days.” Incommunicado detention is authorized

when either of the two aforementioned exceptions, namely “exceptional needs of the

investigation” and “exceptional circumstances” apply. The laws of the Plurinational State

of Bolivia also permit incommunicado detention: article 231 of the Code of Criminal

Procedure provides that “incommunicado detention shall not be permitted, except in

manifestly serious cases where there is reason to fear that the accused might otherwise

obstruct efforts to establish the truth. Incommunicado detention shall not under any

circumstances exceed a period of 24 hours and shall not prevent defendants from being

assisted by counsel in performing any act that requires action on their part. The

2 General Assembly resolution 43/173, annex.

A/HRC/WGAD/2011/63

GE.12-14513

7

incommunicado detention shall be ordered by the public prosecutor in charge of the

investigation, must be duly justified with reference to the grounds established in article 235

of this Code, and must be immediately notified to the examining magistrate, who shall

either confirm or rescind the incommunicado detention order. Persons held incommunicado

shall be permitted to use books and writing materials as well as to perform any urgent civil

acts not detrimental to the investigation.”

40.

The long period of deprivation of liberty, without the possibility of bail, is another

instance of arbitrariness, according to the source. At the time of the communication’s

submission (20 April 2011), Mr. Tóásó had been in pretrial detention for more than two

years. At the time of issue of this Opinion his pretrial detention has lasted 31 months. The

most recent judicial proceeding was the hearing held on 4 November 2011, still as part of

the trial preparations, at which evidence was submitted to the judge for acceptance or

rejection. In accordance with article 9, paragraph 3, of the International Covenant on Civil

and Political Rights, “it shall not be the general rule that persons awaiting trial shall be

detained in custody, but release may be subject to guarantees to appear for trial, at any other

stage of the judicial proceedings, and, should occasion arise, for execution of the

judgement”. Bolivian law respects this principle, providing that “pretrial detention shall be

permitted only for offences carrying a prison sentence in excess of three years, and subject

to strict compliance with various requirements (Code of Criminal Procedure, arts. 232 and

233). Article 239 of the Code of Criminal Procedure also provides that pretrial detention

shall cease “when the period of detention exceeds 18 months and no verdict has been

reached or when the period of detention exceeds 24 months and the verdict has not acquired

res judicata status”. Once these deadlines have passed, the courts are required to adopt one

or more of the precautionary measures offered as possible alternatives in article 240.

41.

The source maintains that Mr. Tóásó’s rights under article 14, paragraph 3 (a), (b),

(c) and (f) of the International Covenant on Civil and Political Rights were violated, since

he was not informed in detail in a language which he understands of the nature and cause of

the charge against him, he did not have counsel of his own choosing, he was not tried

without undue delay and he did not have the assistance of an interpreter.

42.

The Government’s explanation with regard to these points is unsatisfactory. At the

time of his arrest, for obvious reasons, Mr Tóásó could not be informed without delay of

the nature and cause of the charges of which he was accused. However, he was not

informed in the days that followed either, despite having had the assistance of the Honorary

Consul of Hungary in Bolivia. In addition, the public defence counsel provided did not

meet the minimum standards necessary to inspire confidence and, moreover, was

apparently a government official without the required knowledge of Hungarian, and the two

people who served as interpreters were not well-versed in Mr. Tóásó’s language.

Furthermore, the process has already lasted for 32 months, which cannot be reconciled with

the notion that there have been no undue delays.

43.

In addition, the judicial remedies attempted by the accused proved neither effective

nor expeditious, as required under article 2, paragraph 3, and article 9, paragraph 4, of the

International Covenant on Civil and Political Rights.

Opinion of the Working Group

44.

In the light of the foregoing, the Working Group renders the following opinion:

(a)

The deprivation of liberty of Mr. Elöd Tóásó violated the human rights

enshrined in articles 3, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and

articles 2.3, 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights,

and, as a result, is arbitrary in accordance with category III of the Working Group’s

methods of work;

A/HRC/WGAD/2011/63

8

GE.12-14513

(b)

In keeping with the Opinion rendered, the Working Group requests the

Government of the Plurinational State of Bolivia to provide reparation for the harm caused

by the grievances described in this Opinion;

(c)

The Working Group also suggests that the competent State authorities take

appropriate action to provide for the adoption of non-custodial measures as an alternative to

the pretrial detention of Mr. Elöd Tóásó, in accordance with the provisions of the Universal

Declaration and the International Covenant, and with those of the Code of Criminal

Procedure, without prejudice to acceleration of the judicial proceedings under way.

[Adopted on 22 November 2011]