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GE.14-19956 (E) 230115 270115

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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventieth session, 25–29 August 2014

No. 28/2014 (Plurinational State of Bolivia)

Communication addressed to the Government on 4 June 2014

Concerning: Mario Francisco Tadic Astorga

The Government failed to respond to the communication of the Working Group.

The State is a party to the International Covenant on Civil and Political Rights.

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. The mandate was

extended for a further three years in resolution 24/7 of 26 September 2013. In accordance

with its methods of work (A/HRC/16/47, annex), the Working Group forwarded the above-

mentioned 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 his or

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

(b)

When the deprivation of liberty results from 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

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General Assembly

Distr.: General

6 November 2014

English

Original: Spanish

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(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative detention 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 condition; political or other opinion; gender; sexual orientation; or

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

human rights (category V).

Submissions

Communication from the source

3.

Mario Francisco Tadic Astorga, born on 2 August 1954, holds Bolivian and Croatian

citizenship and is a former officer of the Croatian army, having retired due to disability. His

regular domicile is in Osijek (Croatia). He was arrested between 2 a.m. and 4 a.m. on 16

April 2009 in a room of the Las Américas Hotel in the city of Santa Cruz de la Sierra, by

police officers of a special tactical unit known as Unidad Táctica de Resolución de Crisis

(UTARC), who failed to identify themselves, were not accompanied by a public prosecutor

and did not show an arrest warrant.

4.

It is reported that members of UTARC broke into the hotel by force, using

explosives against the doors of rooms on the fourth floor. Three people in those rooms were

killed by gunshots fired by the police officers: Eduardo Rózsa Flores, a Bolivian-Hungarian

citizen, Magyarosi Árpád, a Hungarian citizen, and Michael Dwyer, an Irish citizen. Mr.

Árpád apparently received seven bullets in the back without himself having fired a shot.

Two hours prior to the operation the hotel security cameras had been disconnected.

According to government authorities and the police, the gunfight lasted 30 minutes, but

hotel employees, neighbours and survivors declared that it lasted no more than 3 minutes

and that there was no exchange of fire.

5.

According to the source, when Mr. Tadic Astorga leapt out of bed and put his hands

in the air a masked officer dressed in black and armed with an assault rifle shouted: “On the

floor, you dog”. Mr. Tadic Astorga was hit in the face with a rifle butt and kicked in the

head. Subsequently the officer smashed Mr. Tadic Astorga’s head against the wall of the

room, fracturing his skull. A second group of officers wearing camouflage uniform then

came into the room and took the place of the officers dressed in black.

6.

Mr. Tadic Astorga was interrogated in various police vehicles, then in annexes of the

airport of Santa Cruz. The beatings continued during the interrogations and he suffered a

number of fractured ribs. He was then transported by plane to the city of La Paz, where he

was taken to the Attorney General’s Office. During the plane journey all he had to wear

was a pair of trousers and he was covered by a sheet. He was interrogated by a public

prosecutor on 17 April 2009. Despite the fact that his nose, mouth, teeth and ribs were

smashed, he was not given medical attention until after the first interrogation had been

completed. His fingerprints were taken and he was photographed. Then, after he was taken

to the Copacabana Police Clinic, accompanied by officials of the Ministry of the Interior

and of the Public Prosecution Service and police officers, his interrogation continued in the

Attorney General’s Office. At 2.15 a.m. on 18 April 2009, he was brought before the

Seventh Criminal Court, where the presiding judge, Betty Yañiquez, ordered him to be held

in pretrial detention (recently introduced) under article 239 of the Code of Criminal

Procedure. This violated article 84 of the Code, according to which an accused must be

brought before a judge within 24 hours.

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7.

Mr. Tadic Astorga was interned in the “Grulla” section of San Pedro Prison, where

he was held incommunicado for several weeks, in violation of article 231 of the Code of

Criminal Procedure, which limits incommunicado detention to a maximum of 24 hours.

According to the source, the “Grulla” was a punishment unit reserved for highly dangerous

inmates. Six weeks later he had to be taken to the Hospital del Tórax suffering from heart

failure and blood pressure problems, and he remained there for 16 days. On his return to

prison he was held in the rehabilitation centre, which is used to house drug addicts and

alcoholics. On three occasions between April 2011 and August 2012, he was taken to the

town of Cochabamba.

8.

In May 2013, Mr. Tadic Astorga told the First Criminal Court of La Paz that he had

been pressured by the authorities to incriminate himself and that he had been subjected to

torture for that purpose. Those complaints, made before a court, have so far not been

investigated.

9.

According to the source, Mr. Tadic Astorga is one of only two survivors of the

police operation carried out in the Las Américas Hotel in the early morning of 16 April

2009.

10.

The Supreme Court of Justice ordered that the trial of Mr. Tadic Astorga take place

in the town of Santa Cruz de la Sierra, where he lived and where he was arrested. However,

the executive authorities decided that the proceedings should be held before the court of

justice of Cochabamba. Seven hearings due to take place in that court were thwarted due to

the absence of interpreters, representatives of the Public Prosecution Service and the judge.

11.

The source reports that Mr. Tadic Astorga was held in pretrial detention under

article 239 of the Code of Criminal Procedure, which sets a limit for such detention of 18

months. At the end of that period, Mr. Tadic Astorga should have been released. He

continued to be held in prison, however, by the improper retroactive application of the

amendment to the Code of Criminal Procedure contained in Act No. 007 of 2010, which

raised the limit of pretrial detention to 36 months in the absence of a sentence. After 36

months had passed without a sentence, he was still not released, in breach of Bolivian

national law.

12.

The investigations began in the city of La Paz, but the case was transferred in 2011

for the final hearings to the jurisdiction of Cochabamba. The trial began in the city of La

Paz but was transferred to the town of Tarija in October 2012. Currently, it is being held in

Santa Cruz de la Sierra.

13.

The public prosecutor in the case, Marcelo Soza, has claimed that he suffered

pressure from Government to implicate opposition political leaders in the proceedings. On

11 March 2014, Mr. Soza applied for political asylum in Brazil. Judge Ricardo Maldonado

has also complained that he had been subjected to government pressure.

14.

Mr. Tadic Astorga has been held for more than five years without having been

sentenced. A number of the injuries he sustained as a result of torture have not been

properly healed. The provisions of the Code of Criminal Procedure, whereby detainees held

for more than 36 months without being sentenced are entitled to have the conditions of their

detention changed for a more favourable regime, have been ignored.

15.

The source points out that the Plurinational Constitutional Court, in its rulings No.

1036-2002 of 29 August and No. 1430-2002-R of 25 November, confirmed that 18 months

provide more than enough time to conclude the investigation stage, gather evidence and

begin oral proceedings.

16.

According to the source, the police operation which resulted in the arrest of Mr.

Tadic Astorga was meticulously planned: the hotel’s video surveillance system was

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disabled several hours beforehand and all information on persons entering and leaving the

hotel was wiped from computers.

17.

Mr. Tadic Astorga complains that he was 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 being part of an irregular armed group, something which he

refused to do. The acts of torture apparently resulted in lost dentition, broken ribs, bruises

and lacerations. The complaints of torture were allegedly not investigated by the Public

Prosecution Service, nor did the judge order the allegations to be investigated, despite

formal complaints from the victim.

18.

The source maintains that the Public Prosecution Service not only did not take part

in the arrest of Mr. Tadic Astorga, but also subsequently proceeded to destroy the supposed

evidence. Explosives found in the town of Santa Cruz de la Sierra were destroyed. Trial

evidence was not securely stored and might therefore have been adulterated or tampered

with. That evidence was never properly classified and there was no record of the date or

time at which it was obtained. There are no witnesses’ signatures and the legally required

records were not drawn up.

19.

Mr. Tadic Astorga has found it very 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 because they lack

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 permits to interview Mr. Tadic Astorga have had their requests turned down. This

is alleged to constitute a serious violation of his right to a defence.

20.

According to the source, the pretrial detention in which Mr. Tadic Astorga has been

held for more than 5 years is arbitrary. He has been detained without trial for a period far

exceeding that allowed under the provisions of international law or of the Code of Criminal

Procedure of the Plurinational State of Bolivia. His detention is politically motivated.

21.

It is also alleged that Mr. Tadic Astorga was interrogated in the absence of his

defence lawyer. His allegations of torture have not been duly investigated despite his

formal complaints and the physical traces of his injuries.

22.

The proceedings against Mr. Tadic Astorga reveal, according to the source, a total

disregard for the norms of international human rights law and of Bolivian national law,

especially as concerns his right to a fair trial and the presumption of innocence.

23.

The source asserts that the daily press, government pamphlets, television

programmes and statements made at press conferences all portray Mr. Tadic Astorga as a

highly dangerous person, and even as a mercenary and a terrorist, in violation of the

presumption of innocence and of his right to enjoy a fair trial. Mr. Tadic Astorga is deemed

by the State authorities, the public prosecutors, the press and other media to be guilty even

before having been sentenced.

24.

The source maintains that a prosecution witness, Julio César Alonso Clerique,

produced a fake, touched up photograph during the trial, in which Mr. Tadic Astorga was

made to appear in the company of other accused. The public prosecutor allegedly referred

to reports from the International Criminal Police Organization (Interpol) concerning Mr.

Tadic Astorga’s past but, despite being formally requested to do so, has never produced any

evidence that such reports exist.

25.

As regards the evidence against Mr. Tadic Astorga, the source affirms that the

physical evidence was not correctly inventoried, that it is full of errors, that the dates on

which it was gathered were not recorded and that the chain of custody cannot be

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determined. Worse still, neither the prosecution evidence nor the records of the hearings

were made available to the defence. Furthermore, the prosecutor did not give the order

allowing the defence to present exculpatory evidence. All this has placed Mr. Tadic Astorga

in a position of defencelessness.

26.

Relatives, journalists and international observers were prevented from attending the

final hearing held in Cochabamba. The public prosecutor, Marcelo Soza, did not bring

charges within 18 months as required by article 134 of the Code of Criminal Procedure and

the judge did not order him to do so.

27.

Mr. Tadic Astorga was arrested without an arrest warrant from a competent

authority and without being found in flagrante delicto. The fact that he was transferred to

La Paz and from there to Cochabamba and Tarija deprived him of his right to appear before

a competent court and to be heard by a natural judge. The terms of Act No. 007/2010 were

applied to him retroactively in order to extend his detention beyond the legal limits. At

various hearings, the court decided to postpone any complaints concerning defective legal

proceedings, without offering any reason or legal grounds; such complaints included the

fact that the accused were not brought to the hearings and that the public prosecutor was

absent.

28.

In Decision No. RD/00111/LPZ/2009 of 12 December 2009, the Bolivian

Ombudsman concluded that fundamental legal criteria had been ignored in this case. He

mentioned the absence of arrest and search warrants, the allowance of extra time and the

use of torture. The Ombudsman concluded that the legal proceedings were entirely null and

void.

29.

All habeas corpus actions in favour of Mr. Tadic Astorga and applications to end his

detention were delayed for more than a year, despite the fact that Bolivian law requires that

they be considered within mandatory time limits. In the end, they were all rejected.

30.

According to the source, this also represents discrimination against Mr. Tadic

Astorga, who has been systematically denied rights which are granted to Bolivian citizens,

in particular his rights to freedom, security, presumption of innocence and a fair and

impartial trial before a competent court.

31.

The source concludes that the detention of Mr. Tadic Astorga is arbitrary and

consequently requests that he be released immediately.

Response from the Government

32.

The Working Group communicated the aforementioned allegations to the

Government on 4 June and deplores the fact that the Government has failed to respond.

33.

In accordance with paragraph 15 of its methods of work, the Working Group asked

the Government to respond within 60 days of the date the communication was transmitted.

Under paragraph 16 of the methods of work, the Government could request an additional

delay of not more than one month.

34.

On 1 August 2014, the Working Group received a request from the Government for

an extension of the deadline in order to respond to the allegations it had received. The

request made reference to the fact that the Attorney General’s Office was preparing the

information required.

35.

The Working Group considered the request during its seventieth session and

concluded that it did not satisfy the requirement to explain how it was motivated, in

accordance with paragraph 16 of the Working Group’s methods of work.

36.

In the first place, the Working Group considered that the Government had had

sufficient time to prepare its response, particularly in the light of the national and

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international publicity which the case has attracted. Secondly, the Working Group recalled

that it had already held in its opinion No. 63/2011 (Plurinational State of Bolivia) that it

believed the detention of Mr. Elöd Toásó — who survived the police operation of 16 April

2009 along with Mr. Tadic Astorga — to be arbitrary and had requested his release.

37.

Furthermore, and as a matter of principle, an extension of the deadline for

responding to allegations can only be granted when the Working Group is certain that there

is no risk that the torture and ill-treatment will continue and has received assurances to that

effect. This is not entirely clear in the case in question because no information has been

received concerning investigations into the allegation of torture and ill-treatment and no

official inquiries into those allegations have taken place.

Deliberations

38.

In accordance with its methods of work, the Working Group considers that it is in a

position to render an opinion on this case in the light of all the information it has received.

39.

In the present case, the Government has not chosen to refute the prima facie reliable

allegations submitted by the source. In its jurisprudence the Working Group has established

the way it deals with allegations provided by a source:1 if the source has established a prima

facie case for the existence of arbitrary detention, the burden of proof falls upon the

Government, which must, if it so decides, refute the allegations and the arbitrary nature of

the detention. In the absence of any refutation from the Government, the Working Group

bases its opinion on the prima facie valid allegations put forward by the source.

40.

The Working Group notes with profound concern that Mr. Tadic Astorga has been

held in pretrial detention for more than 5 years and 4 months, despite the fact that the

charges of terrorism were made public on 17 December 2010, in other words 1 year and 8

months after his arrest.

41.

The Working Group recognizes that Mr. Tadic Astorga was held in pretrial detention

for an initial period of 18 months, in keeping with the provisions of article 239 of the Code

of Criminal Procedure, which establishes 18 months as the maximum term for such

detention. Since he was not sent for trial, he should have been released on 16 October 2010,

but he remained in detention owing to the improper retroactive application of the

amendment to the Code of Criminal Procedure contained in Act No. 007 of 2010, which

increased the limit of pretrial detention to 36 months in the absence of a sentence. It is a

general principle in law that lawfully no law should be applied retroactively unless it

benefits the accused. In this regard, the Working Group recalls the provisions of article 15

of the International Covenant on Civil and Political Rights.

42.

In any event, by 16 April 2012, the new deadline of 36 months, the maximum term

of pretrial detention, Mr. Tadic Astorga should have been released. However, this did not

happen and he remained in prison in violation of Bolivian national law.

43.

It is a well-established norm of international law that pretrial detention should be the

exception and not the rule, and that it should be ordered for as short a time as possible.2

Article 9 (3) of the Covenant lays down two interrelated obligations: anyone arrested or

detained shall be brought promptly before a judge and shall be entitled to trial within a

reasonable period of time or to release. The person concerned was not brought before a

judge within 24 hours, as required under article 84 of the Code of Criminal Procedure, nor

was he tried within a reasonable period of time.

1 See, for example, paragraph 68 of the Report of the Working Group (A/HRC/19/57).

2 See, for example, Human Rights Committee communication No. 1787/2008

(CCPR/C/107/D/1787/2008), paragraphs 7.3 and 7.4.

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44.

The provisions contained in article 9 (3) of the Covenant can be summarized as

follows:

Any detention must be exceptional and of short duration and a release may be

accompanied by measures intended only to ensure representation of the defendant in

judicial proceedings.3

45.

In the light of the foregoing, the Working Group considers that, since 16 April 2012,

the detention of Mr. Tadic Astorga has absolutely no legal basis, neither in Bolivian law nor

in the relevant norms of international human rights law, and therefore falls within category

I of the categories applied by the Working Group when considering cases submitted for its

attention.

46.

Considering the gravity and detail of the allegations made by the source, the

Working Group considers that the entire judicial process has been so severely flawed as to

represent a denial of justice. It is alarming to note that essential items of proof have been

damaged and evidence destroyed and that Mr. Tadic Astorga’s defence counsels and

international observers have encountered serious difficulties in accessing prosecution

material, records of hearings, evidence, judicial proceedings and the detainee himself. As a

result of the lack of search and arrest warrants, the denial of a natural judge and a

competent court, and the limitations placed on the right to defence, this individual has been

left defenceless. As the source points out, Mr. Tadic Astorga has been severely deprived of

his right to presumption of innocence and to a fair trial with full procedural safeguards.

47.

In the present case, the Working Group considers that the non-observance of

international norms concerning the right to a fair trial, as set forth in article 10 of the

Universal Declaration of Human Rights and in article 14 of the International Covenant on

Civil and Political Rights, is of such gravity as to render the detention arbitrary. Therefore,

the detention of Mr. Tadic Astorga is also arbitrary under category III of the methods of

work of the Working Group.

Disposition

48.

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

(a)

The deprivation of liberty of Mr. Mario Francisco Tadic Astorga from 16

April 2012 to the date this opinion was adopted is arbitrary because it lacks legal

foundation and, consequently, falls into category I of the categories applicable to the cases

submitted to the Working Group;

(b)

The entire deprivation of liberty of Mr. Mario Francisco Tadic Astorga, from

the time of his arrest on 16 April 2009 to the date this opinion was adopted, is arbitrary

because it constitutes a violation of the provisions of articles 9 and 10 of the Universal

Declaration of Human Rights and of articles 9 and 14 of the International Covenant on

Civil and Political Rights, to which the Plurinational State of Bolivia is a party, and falls

within category III of the categories applied by the Working Group when considering cases

submitted for its attention.

49.

Consequent upon the opinion rendered, the Working Group requests the

Government of the Plurinational State of Bolivia to adopt whatever measures are necessary

to remedy Mr. Tadic Astorga’s situation without delay. Taking account of all the

circumstances of the case, the Working Group considers that adequate remedy would

consist in ordering the immediate release of the person concerned and granting him

adequate reparation for the harm suffered during his detention.

3 See paragraph 56 of the Report of the Working Group (A/HRC/19/57).

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50.

Considering the allegations of torture and ill-treatment suffered by Mr. Tadic

Astorga, and the alleged lack of investigation by the competent authorities, the Working

Group, in keeping with article 33 (a) of its methods of work, deems it appropriate to bring

them to the attention of the Special Rapporteur on the question of torture for such action as

he may consider necessary.

[Adopted on 28 August 2014]