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The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Political Rights,
Meeting on 22 July 2008,
Adopts the following:
DECISION ON ADMISSIBILITY
1.1 The authors of the communication, dated 6 December 2006, are Alfonso
Sanjuan Martínez, Myriam Piñeyro Martínez and Patricia Piñeyro Martínez (as
heirs of Plácido Piñeyro) and Yolanda Filpi Funiciello (as heir of Héctor
Marcenaro Blundis), [FN1] Uruguayan nationals who claim to be the victims of
a violation by Uruguay of article 2, paragraph 3, read together with article
7 of the Covenant. The Optional Protocol entered into force for the State
party on 23 March 1976. The authors are not represented by counsel.
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[FN1] Ms. Myriam Piñeyro Martínez and Ms. Patricia Piñeyro Martínez provided
a copy of a notarized document certifying that they are the heirs of Plácido
Piñeyro Bandera, who died intestate on 2 May 1996, being his daughters. Ms.
Yolanda Filpi Funiciello, sister-in-law of Mr. Héctor Marcenaro Blundis,
presented a notarized document certifying that she is the successor creditor
in respect of the debt owed to Mr. Héctor Marcenaro Blundis and his wife,
both deceased, by the National Port Administration and the Ministry of
Defence.
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1.2 On 11 December 2007, the Special Rapporteur on New Communications and
Interim Measures decided that the admissibility of the communication should
be considered separately from the merits.
THE FACTS AS SUBMITTED BY THE AUTHORS
2.1 Messrs. Alfonso Sanjuan Martínez, Plácido Piñeyro and Héctor Marcenaro
Blundis, employees of the National Port Administration, were detained on 4
April 1975 by members of the Armed Forces, who did not present any warrant.
They were taken to Infantry Battalion No. 2, where they were interrogated
and subjected to torture, including beatings, electric shocks, simulated
drowning and food deprivation, as well as being forced to take
hallucinogenic drugs. A month later they were brought before the military
courts; not having found any evidence that a military offence had been
committed, the military justice system then referred the case to the
ordinary courts.
2.2 They were released on 31 July of the same year, having been found not
guilty of all the charges against them (arms smuggling and theft in the
port). Nonetheless, the Government of the day ordered that they be
disqualified from holding public office, which prevented them from returning
to their jobs after their release.
2.3 Once normal democracy had been restored in the country in 1985, the men
returned to their jobs. On 26 May 1989, together with others in the same
situation, they filed a complaint against the State of Uruguay (Ministry of
National Defence and National Port Administration), claiming compensation
for the harm they had suffered as a result of their detention and
disqualification. On 22 October 1998, nine years after the complaint was
filed, a decision was handed down by the court of first instance sentencing
the State to pay compensation to the plaintiffs. In its decision, the court
found that the fact that they had been deprived of their jobs, the injuries
they allegedly sustained as a result of torture, and the fact that they had
been isolated, ostracized and suspected of theft constituted compensable
moral injury. It therefore set the amount of compensation at 10,000 pesos
per day for each of the 117 days they had been held in prison and the
after-effects each had suffered, taking into account the fact that they had
been deprived of decent employment after their release. As a result, each
plaintiff was to be paid 1,170,000 pesos, and this sum was to be adjusted
from the date of the complaint to the date of payment, and interests paid at
the legal rate.
2.4 According to the authors, the adjustment referred to in the judgement is
provided for in Legislative Decree No. 14,500 of 8 March 1976, which lays
down the rules for the settlement of obligations consisting in the payment
of a sum of money. The aim of the Decree is to ensure that the initial value
of the claim is not affected by devaluation that might occur while the
judicial proceedings are under way. Hence the Decree refers to the value of
the currency in relation to changes in the cost of living in the country.
[FN2]
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[FN2] According to article 2 of the Legislative Decree, "variations in the
value of the currency shall be determined in the light of changes in the
general consumer price index fixed every month by the Ministry of the
Economy and Finance. To that end, a comparison shall be made between the
index for the month in which the obligation was incurred or fell due, as
appropriate, and that fixed for the month preceding the date on which the
obligation was extinguished". Under article 686 of Act No. 16,170, the date
of extinction of an obligation should be understood to mean the date on
which the settlement is deposited.
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2.5 The Government of Uruguay lodged an appeal against the decision with the
Fourth Rota Civil Court of Appeal, which upheld the decision of the court of
first instance on 3 November 1999, but annulled the part of the decision
referring to the amounts of compensation for moral injury. This resulted in
a substantial reduction in the amount of compensation, which was fixed at
210,600 Uruguayan pesos for each person, based on the values on the date of
the judgement, without prejudice to the interest accruing since the date of
the complaint. This reduction in value was based on the court's special
interpretation of Legislative Decree No. 14,500, which set different dates
for the purposes of adjustment of the amount of compensation fixed. The date
of the appellate decision (3 November 1999) was thus taken as the basis for
adjustment, and the date on which the complaint was filed (26 May 1989) as
the basis for the payment of accrued interests. This is not the
interpretation given in the Decree, which provides that the adjustment of
compensation and payment of interests shall begin from the date on which the
complaint was filed.
2.6 The authors filed an application for review with the Supreme Court of
Justice, alleging that the Legislative Decree, among others, had been
infringed and/or misapplied. In a judgement handed down on 29 July 2002, the
Court found that the method used by the Court of Appeal to adjust the amount
of compensation was lawful, but increased the compensation to 800,000 pesos.
That amount was to be adjusted as from the date of the appellate decision,
until the date on which it was paid. The judgement added that, contrary to
the appellants' view, the method of calculating the amount of compensation
based on the amount estimated on the date of the appellate decision was
lawful, because the Court had already tacitly taken devaluation into account
when it had set the amount. [FN3]
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[FN3] The Court ruled that "although generally speaking, under the system
established by Legislative Decree No. 14,500, the amount of compensation
should be set at the date on which the obligation to pay was incurred, and
the statutory adjustment should be applied from that date (as maintained by
the plaintiff), when the court fixes the amount of such compensation on the
date of the judgement, as in this case, it obviously takes into account
devaluations that have occurred up to the time at which the amount is set,
thus tacitly applying the adjustment provided for in Legislative Decree No.
14,500. This method enables the judge to determine the amount deemed fair in
the circumstances, by bringing the time of the decision closer to the date
that serves as the basis for determining the monetary value of the
compensation due, and does not, in the view of the Court, involve the breach
of the law invoked".
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2.7 The authors contest the fact that the Court upheld the interpretation of
the Court of Appeal, which set 3 November 1999 as the basis for adjustment
of the new amount that had been fixed and 26 May 1989, the date on which the
complaint was filed, as the basis for payment of the interests that had
accrued while the proceedings were under way. This misinterpretation of the
Legislative Decree had resulted in a difference of 10 years and 5 months in
the adjustment, and hence a devaluation of 95 per cent compared to the
amount that would have resulted from a correct application of the Decree.
THE COMPLAINT
3. The authors maintain that the arbitrary interpretation of Legislative
Decree No. 14,500 by the Supreme Court constituted a violation of article 2,
paragraph 3, read together with article 7 of the Covenant. As a result,
despite the time that has elapsed, the State party has not met its
obligation under the law to compensate the harm caused.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY
4.1 In its observations of 4 December 2007, the State party questions the
admissibility of the communication on the grounds that the issue had been
thoroughly examined by the competent authorities and that the claimants had
received the compensation awarded by the court as full reparation for the
harm suffered, including the adjustments due under Legislative Decree No.
14,500. The Ministry of Defence had taken all the necessary steps to ensure
that the claimants in the domestic proceedings and their successors would
receive the amounts awarded as compensation in the judgement, which were as
follows (in Uruguayan pesos): [FN4]
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[FN4] The State party points out that, on the date of its reply to the
Committee, one United States dollar was worth 22.52 Uruguayan pesos.
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Mr. Alfonso Sanjuan received 1,379,492 pesos
Ms. Yolanda Filpi received 1,379,667 pesos
Ms. Myriam Piñeyro received 587,559.50 pesos
Ms. Patricia Piñeyro received 527,863.50 pesos
4.2 These amounts were disbursed in staggered payments. Mr. Sanjuan received
payments on 15 different dates between February 2001 and May 2006. Ms. Filpi
received 10 payments between March 2002 and May 2006. Ms. Myriam Piñeyro
received 13 payments between December 2002 and May 2006. Ms. Patricia
Piñeyro received 11 payments between December 2002 and May 2006.
4.3 As regards the application of Legislative Decree No. 14,500, which the
complainants called into question, the State party adds that the Uruguayan
legal system does not contain any provision requiring judges to grant
specified amounts as compensation for harm suffered in the case of moral
injury. Accordingly, each judge, and even the Supreme Court, as is clear
from the judgements cited, applied different criteria when assessing the
harm suffered and used different methods of calculation, all equally valid
and duly reasoned. In its ruling, the Supreme Court expressly acknowledges
the claimants' suffering; moreover, when it set the amount of compensation,
it did not fail to take account of devaluation up to the time the
compensation was awarded, and thus tacitly applied the adjustment provided
for in the Legislative Decree.
4.4 Moreover, once the judgement had become enforceable and up to the time
at which the compensation was actually paid, the amount awarded was adjusted
according to the consumer price index, as provided by the Legislative
Decree, in addition to the accrued interest at the legal rate. In addition,
when the Court set the amount it deemed adequate at the time the judgement
was handed down, it applied the principle of full reparation for the harm
suffered, which enabled it to assess the compensation appropriate in this
case, with the obvious intention of including devaluation in the amount of
compensation awarded.
4.5 The legal system empowers judges to determine, to the best of their
knowledge and belief, how the application of the principle of full
reparation for harm suffered translates into purely monetary terms. This was
taken into account throughout the judgement in question and in the amounts
paid to the claimants. The amount of compensation awarded is in the same
range as that set by the courts in similar cases, taking into consideration
economic and social conditions in Uruguay.
AUTHORS' COMMENTS
5. On 14 January 2008, the authors stated that what they were claiming was
not specific amounts of compensation, but strict compliance with the
legislation in force, which prescribed the time from which the amount of
compensation was to be adjusted. Moreover, if the Supreme Court had
increased the amount of compensation, that was the result of 14 years of
legal proceedings. They repeat that misapplication of the Legislative Decree
had deprived them of 10 years' compensation.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
6.2 As it is obliged to do pursuant to article 5, paragraph 2 (a), of the
Optional Protocol, the Committee ascertained that the same matter is not
being examined under another procedure of international investigation or
settlement.
6.3 The issue before the Committee is whether the State party violated the
authors' rights under the Covenant when the Supreme Court of Justice set the
amount of compensation to be paid to them in respect of acts of arbitrary
detention, torture and disqualification for which the domestic courts had
sentenced the State of Uruguay. The Committee observes that the Supreme
Court of Justice, when it set the amount of compensation, deemed that the
Court of Appeal had rightly interpreted Legislative Decree No. 14,500 when
it fixed the compensation based on the amount estimated on the date of the
appellate decision, and not the date of the complaint, as submitted by the
authors. The Supreme Court considered that this approach already tacitly
took account of any devaluation since the date of the complaint.
6.4 The Committee recalls that it has repeatedly held that it is not a final
instance competent to re-evaluate findings of fact or the application of
domestic legislation, unless it can be ascertained that the proceedings
before the domestic courts were arbitrary or amounted to a denial of
justice. [FN5] The Committee considers that the authors have failed to
substantiate, for purposes of admissibility, that the conduct of the Supreme
Court amounted to arbitrariness or a denial of justice. Accordingly, the
communication is inadmissible under article 2 of the Optional Protocol.
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[FN5] See Communications No. 541/1993, Errol Simms v. Jamaica, decision of 3
April 1995, paragraph 6.2; 1138/2002, Arenz et al. v. Germany, decision of
24 March 2004, paragraph 8.6; 917/2000, Arutyunyan v. Uzbekistan, Views of
29 March 2004, paragraph 5.7; 1528/2006, Fernández Murcia v. Spain, decision
of 1 April 2008.
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7. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 2 of the Optional
Protocol;
(b) That this decision be transmitted to the State party and to the authors.
[Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
Made public by decision of the Human Rights Committee. |
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