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BEFORE: |
CHAIRMAN: Mr. Andreas Mavrommatis (Cyprus)
VICE-CHAIRMEN: Mr. Bernhard Graefrath (German Democratic Republic)
Mr. Julio Prado Vallejo (Ecuador), Mr. Christian Tomuschat (Federal
Republic of Germany)
RAPPORTEUR: Mr. Rajsoomer Lallah (Mauritius)
MEMBERS: Mr. Andres Aguilar (Venezuela), Mr. Mohammed Al Douri (Iraq),
Mr. Nejib Bouziri (Tunisia),Mr. Abdoulaye Dieye (Senegal), Mr. Felix
Ermacora (Austria), Sir Vincent Evans (United Kingdom), Mr. Vladimir
Hanga (Romania), Mr. Leonte Herdocia Ortega (Nicaragua), Mr. Dejan
Janca (Yugoslavia), Mr. Anatoly Petrovich Movchan (Soviet Union), Mr.
Torkel Opsahl (Norvay), Mr. Waleed Sadi (Jordan), Mr. Walter
Tarnopolsky (Canada).
All the members except Mr. Movchan attended the twelfth session.
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PermaLink: |
http://www.worldcourts.com/hrc/eng/decisions/1981.04.08_Silva_v_Uruguay.htm |
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Citation: |
Landinelli Silva v. Uruguay, Comm.
34/1978, U.N. Doc. A/36/40, at 130 (HRC 1981) |
Publications: |
Report of the Human Rights
Committee, U.N. GAOR, 36th Sess., Supp. No. 40, U.N. Doc. A/36/40,
Annex XII, at 130 (Sep. 29, 1981); Office of the U.N. High Comm'r
for Human Rights, Human Rights Committee: Selected Decisions under
the Optional Protocol, Vol. I, at 65, U.N. Doc. CCPR/C/OP/1, U.N.
Sales No. E.84.XIV.2 (1985) |
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VIEWS UNDER ARTICLE 5 (4) OF
THE OPTIONAL PROTOCOL
1. The authors of this communication (initial letter dated 30 May 1978 and a
further letter dated 26 February 1981) are Jorge Landinelli Silva, 34 years
old, professor of history; Luis E. Echave Zas, 46 years old, farm labourer;
Omar Patron Zeballos, 52 years old, assistant accountant; Niurka Sala
Fernandez, 49 years old, professor of physics; and Rafael Guarga Ferro, 39
years old, engineer, all Uruguayan citizens residing in Mexico. They
submitted the communication on their own behalf.
2. The facts of the present communication are undisputed. The authors of the
communication were all candidates for elective office on the lists of
certain political groups for the 1966 and 197 1 elections, which groups were
later declared illegal through a decree issued by the new Government of the
country in November 1973. In this capacity, Institutional Act No. 4 of 1
September 1976 (art. I (a)) [FN1] has deprived the authors of the
communication of the right to engage in any activity of a political nature,
including the right to vote, for term of 15 years.
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[FN1] The text reads as follows:
"[..] The Executive Power, in exercise of the powers conferred on it by the
institutionalization of the revolutionary process,
"DECREES:
"Art. 1. The following shall be prohibited, for a term of 15 years, from
engaging in any of the activities of a political nature authorized by the
Constitution of the Republic, including the vote:
"(a) All Candidates for elective office on the lists for the 1966 and '1971
elections of the Marxist and pro-Marxist Political Parties or Groups
declared illegal by the resolutions of tile Executive Power No. 1788/67 of
12 December 1967 and No. 1026/73 of 26 November 1973; [..T' 5. The Committee
found, on the basis of the information before it, that it was not precluded
by article 5 (2) (a) of the Optional Protocol from considering the
communication- The Committee was also unable to conclude that there were
effective domestic remedies available to the alleged victims in the
circumstances of their case, which they had failed to exhaust. Since,
furthermore, no other procedural impediment had emerged, the Human Rights
Committee declared the communication admissible on 24 April 1979.
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3.1 The authors contend that such a deprivation of their rights goes beyond
the restrictions envisaged in article 25 of the Covenant, since suspension
of political rights under the Uruguayan juridical system, as in others, is
only permissible as a sanction for certain categories of penal crimes. They
further contend that the duration of the suspension of rights, as well as
the number of categories of persons affected by this suspension, are without
precedent in political history. In conclusion, the authors claim that the
fundamental idea upon which the "Institutional Act No. 4" is based, is
incompatible with the principles set forth in article 25 of the Covenant.
3.2 The authors of the communication state that they have not submitted the
same case to any other procedure of international investigation or
settlement.
4. Under rule 91 of the provisional rules of procedure of the Committee, the
communication was transmitted to the State party on 28 September 1978 with
the request that the State party submit, not later than 9 November 1978,
information or observations which it might deem relevant to the question of
the admissibility of the communication, in particular as regards the
fulfilment of the conditions set out in article 5 (2) (a) and 5 (2) (b) of
the Optional Protocol. No reply was received from the State party in this
connection.
6. On 10 July 1980, the State party submitted its observations under article
4 (2) of the Optional Protocol. Essentially, it invoked article 4 of the
Covenant in the following terms:
The Government of Uruguay wishes to inform the Committee that it has availed
itself of the right of derogation provided for in article 4 (3) of the
International Covenant on Civil and Political Rights. The Secretary-General
of the United Nations was informed of this decision and, through him, notes
were sent to the States parties containing the notification of the Uruguayan
State. Nevertheless, the Government of Uruguay wishes to state that it
reiterates the information given on that occasion, namely that the
requirements of article 4 (2) of the Covenant are being strictly complied
with--requirements whose purpose is precisely to ensure the real, effective
and lasting defence of human rights, the enjoyment and promotion of which
constitute the basis of our existence as an independent, sovereign nation.
Article 25, on which the authors of the communication argue their case, is
not mentioned in the text of article 4 (2). Accordingly, the Government of
Uruguay, as it has a right to do, has temporarily derogated from some
provisions relating to political parties. Nevertheless, as is stated in the
third preambular paragraph of Act No. 4, dated I September 1976, it is the
firm intention of the authorities to restore political life.
7. 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.
8.1 Although the Government of Uruguay, in its submission of 10 July 1980,
has invoked article 4 of the Covenant in order to justify the ban imposed on
the authors of the communication, the Human Rights Committee feels unable to
accept that the requirements set forth in article 4 (1) of the Covenant have
been met.
8.2 According to article 4 (1) of the Covenant, the States parties may take
measures derogating from their obligations under that instrument in a
situation of public emergency which threatens the life of the nation and the
existence of which has been formally proclaimed. Even in such circumstances,
derogations are only permissible to the extent strictly required by the
exigencies of the situation. in its note of 28 June 1979 to the
Secretary-General of the United Nations (reproduced in document CCPR/C/2/Add.3,
p. 4), which was designed to comply with the formal requirements laid down
in article 4 (3) of the Covenant, the Government of Uruguay has made
reference to an emergency situation in the country which was legally
acknowledged in a number of "Institutional Acts". However, no factual
details were given at that time. The note confined itself to stating that
the existence of the emergency situation was "a matter of universal
knowledge"; no attempt was made to indicate the nature and the scope of the
derogations actually resorted to with regard to the rights guaranteed by the
Covenant, or to show that such derogations were strictly necessary. Instead,
the Government of Uruguay declared that more information would be provided
in connection with the submission of the country's report under article 40
of the Covenant. To date neither has this report been received, nor the
information by which it was to be supplemented.
8.3 Although the sovereign right of a State party to declare a state of
emergency is not questioned, yet, in the specific context of the present
communication, the Human Rights Committee is of the opinion that a State, by
merely invoking the existence of exceptional circurestances, cannot evade
the obligations which it has undertaken by ratifying the Covenant. Although
the substantive right to take derogatory measures may not depend on a formal
notification being made pursuant to article 4 (3) of the Covenant, the State
party concerned is duty-bound to give a sufficiently detailed account of the
relevant facts when it invokes article 4 (1) of the Covenant in proceedings
under the Optional Protocol. It is the function of the Human Rights
Committee, acting under the Optional Protocol, to see to it that States
parties live up to their commitments under the Coyenant. In order to
discharge this function and to assess whether a situation of the kind
described in article 4 (1) of the Covenant exists in the country concerned,
it needs full and comprehensive information. if the respondeat Government
does not furnish the required justification itself, as it is required to do
under article 4 (2) of the Optional Protocol and article 4 (3) of the
Covenant, the Human Rights Committee cannot conclude that valid reasons
exist to legitimize a departure from the normal legal rdgime prescribed by
the Covenant.
8.4 In addition, even on the assumption that there exists a situation of
emergency in Uruguay, the Human Rights Committee does not see what ground
could be adduced to support the contention that, in order to restore peace
and order, it was necessary to deprive all citizens, who as members of
certain political groups had been candidates in the elections of 1966 and
1971, of any political right for a period as long as 15 years. This measure
applies to everyone, without distinction as to whether he sought to promote
his political opinions by peaceful means or by resorting to, or advocating
the use of, violent means. The Government of Uruguay has failed to show that
the interdiction of any kind of political dissent is required in order to
deal with the alleged emergency situation and pave the way back to political
freedom.
9. The Human Rights Committee, acting under article 5 (4) of the Optional
Protocol, is of the view that, by prohibiting the authors of the
communication from engaging in any kind of political activity for a period
as long as 15 years, the State party has unreasonably restricted their
rights under article 25 of the Covenant.
10. Accordingly, the Human Rights Committee is of the view that the State
party concerned is under an obligation to take steps with a view to enabling
Jorge Landinelli Silva, Luis E. Echave Zas, Omar Patron Zeballos, Niuska
Sala Fernandez and Rafael Guarga Ferro to participate again in the political
life of the nation. |
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