|
|
Communications
No. 1/1988, 2/1988 and 3/1988*
Submitted by: O.R., M.M. and M.S. [names deleted]
Alleged victims: Authors' deceased relatives
State party concerned:Argentina
Date of communications: 22 November 1988
The Committee
against Torture established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 23 November 1989
Adopts the following:
A. Decision to Deal Jointly with Three Communications**
The Committee against Torture,
Considering that communications Nos. 1/1988, 2/1988 and 3/1988 refer to
closely related events said to have taken place in Argentina in 1976, and to
the enactment of certain legislation in December 1986 and June 1987,
Considering further that the three communications can appropriately be dealt
with together,
1. Decides, pursuant to rule 105, paragraph 3, of its rules of procedure, to
deal jointly with these communications;
2. Further decides that this decision shall be communicated to the State
party and the authors of the communications.
B. Decision on Admissibility**
1. The authors of the communications are O.R., M.M. and M.S., Argentinian
citizens residing in Argentina writing on behalf of their deceased relatives
M.R., J.M. and C.S., who were Argentinian citizens and were allegedly
tortured to death by Argentine military authorities in June, July and
November 1976, respectively. The authors are represented by counsel.
2.1 The authors claim that the enactment of Act No. 23,521 of 8 June 1987
(known as the "Due Obedience Act" or "Lye de Obedience Debida") and its
application to the legal proceedings in the cases of their relatives
constitute violations by Argentina of artic1e 2, 10, l3, 16, 19 and 20 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. Similarly, it is also claimed that the proclamation
of Act No. 23,492 of 24 December 1986 (known as the "Finality Act" or 'Ley
de Punto Final') entails violations of the Convention.
2.2 The Convention against Torture was signed by the Government of Argentina
on 4 February 1985, ratified on 24 September 1986 and entered into force on
26 June 1987. Article 2 of the Convention provides in part:
"1. Each State Party shall take effective legislative, administrative,
judicial or other measures to prevent acts of torture in any territory under
its jurisdiction.
(...)
3. An order from a superior officer or a public authority may not be invoked
as a justification of torture."
2.3 It is claimed that Act No. 23,521 is incompatible with Argentina's
obligations under the Convention. The Act presumes, without admitting proof
to the contrary, that those persons who held lower military ranks at the
time the crimes were committed were acting under superior orders; the Act
therefore exempts them from punishment. The immunity also covers superior
military officers who did not act as commander-in-chief, chief of one, or
chief of security police or penitentiary forces, provided that they did not
themselves decide or that they did not participate in the elaboration of
criminal orders.
2.4 With regard to the time frame of application of the Convention, the
authors acknowledge that their relatives were tortured to death during the
prior Argentine Government, before the entry into force of the Convention.
They challenge, however, the compatibility of the Due Obedience Act with the
Convention. Although Act. No. 23,521 was enacted before the entry into force
of the Convention against Torture, the authors refer to article 18 of the
Vienna Convention on the Law of Treaties (in force 27 January 1980), which
provides that
"A State is obliged to refrain from acts which would defeat the object or
purpose of a treaty when (a) it has signed the treaty or has exchanged
instruments constituting the treaty subject to ratification ..."
Both signature and ratification of the Convention against Torture by
Argentina took place prior to the enactment of Act No. 23,521.
2.5 At issue is also the compatibility with the Convention against Torture
of Act No. 23,492, of 24 December 1986, known as Law of 'Punto Final", which
established a deadline of 60 days for commencing new criminal investigations
with regard to the events of the so-called "dirty war' (guerra sucia). This
deadline expired on 22 February 1987.
3. By decisions under rule 106 of its rule of procedure, the Committee
against Torture transmitted the three communications to the State party
requesting information concerning the question of the admissibility of the
communications.
4.1 On 14 July 1989, the State party objected to the admissibility of the
communications on the grounds that all the events in question, including the
enactment of the laws challenged by the authors took place prior to the
entry into farce of the Convention against Torture.
4.2 In particular, the State party refers to article 28 of the Vienna
Convention on the Law of Treaties which stipulates:
"Unless a different intention appears from the treaty or is otherwise
established, its provisions do not bind a party in relation to any act or
fact which took place or any situation which ceased to exist before the date
of the entry into force of the treaty with respect to that party."
4.3 In this connection, the State party observes that this provision merely
codifies the existing customary law with regard to the non-retroactivity of
treaties. It refers to decisions of the Permanent Court of International
Justice (series A/B, No. 4, 24) and of the International Court of Justice
(reports, 1952, 40) holding that a treaty only applies retroactively if such
an intention is expressed in the treaty or may be clearly inferred from its
provisions.
4.4 In respect of this provision, the International Law Commission has
observed:
"... in numerous cases under the European Convention for the Protection of
Human Rights and Fundamental Freedoms, the European Commission of Human
Rights has held that it is incompetent to entertain complaints regarding
alleged violations of human rights said to have occurred prom to the entry
into force of the Convention with respect to the State in question." [FNa]
---------------------------------------------------------------------------------------------------------------------
[FNa] Official Records of the General Assembly. Twenty-first Session.
Supplement No. 9 (A/6309/Rev.1), p. 44.
---------------------------------------------------------------------------------------------------------------------
4.5 The State party places Acts Nos. 23,492 end 23,521 in this context,
since their scope of application extends from 24 March 1976 to 26 September
1983 and the Convention against Torture came into farce on 26 June 1987.
5.1. The state party further contends that the authors have failed to
exhaust domestic remedies, and indicates that all victims of crimes have a
right to compensation for the physical and moral injury suffered and that
Act No. 23,492 recognises this right in article 6, which specifically
provides that "the extinction of penal action pursuant to article 1 does not
effect civil proceedings".
5.2 Moreover, article 30 of the Criminal Code stipulates that the obligation
to indemnify takes precedence over all other obligations incurred by the
person responsible subsequent to the crime, including payment of the fine,
while article 31 stipulates that the obligation to pay compensation is
oint1y shared by all those responsible for the crime. Thus, both the victims
and their relatives as well as any third parties who might have suffered
injury, even indirectly are entitled to full compensation. Article 1112 of
the Argentine Civil Code stipulates that public officials guilty of culpable
omission in the course of their duties are liable to pay compensation. As
far as the liability of the State is concerned, articles 43 and 1113 clearly
stipulate that the State is responsible for its agents.
6.1 Counsel for the authors in, an undated submission received on 12
September 1989, contests the State party's observations and reiterates that
"what is being challenged is the application of the Due Obedience Act to the
accused, as well as the very existence of that law, which breaches the
Convention against Torture".
6.2 With regard to the requirement of exhaustion of domestic remedies
counsel contends that there are no effective remedies, in particular with
regard to compensation. Although the government in principle accepts its
liability to pay compensation, in practice it allegedly prevents injured
parties from obtaining compensation from the military courts, thus requiring
them to pursue other channels, through the civil courts. Counsel further
explains that "the distinction between civil and criminal actions has not
been accepted in our codes of procedure, which for the purposes of
compensation for the consequences of a crime provide that proceedings must
be continued in the same kind of court. Failure to do so has been regarded
by our foremost procedural experts as a violation of the right to a defence.
When the return to democracy began, the direct victims and/or their
representatives plunged into criminal proceedings in order to ensure the
investigation of the facts, the punishment of those responsible, the search
for missing persons (which is still continuing) and the discovery of the
truth about what actually happened. In addition there was a need for a
statement by the criminal courts confirming the existence of the reported
events and the form they took. Those who began proceedings to seek
compensation came up against the requirement that the civil courts should be
used, and the rejection of all the civil cases".
7.1. Before considering any claims contained in a communication, the
Committee against Torture shall, in accordance with rule 107 of its rules of
procedure, decide whether or not it is admissible under article 22 of the
Convention.
7.2 With regard to the prohibition of torture, the Committee recalls the
principles of the judgment of Nuremberg, and refers to article 5 of the
Universal Declaration of Human Rights and article 7 of the International
Covenant on Civil and Political Rights, all of which constitute norms of
international law recognized by most States Members of the United Nations,
including Argentina. Thus, even before the entry into force of the
Convention against Torture, there existed a general rule of international
law which should oblige all States to take effective measures to prevent
torture and to punish acts of torture. In this context, it would seem that
Argentine Act No. 23,521 on "due obedience" pardons the acts of torture that
occurred during the "dirty war". Nevertheless, the Committee is bound to
observe that its competence with respect to communications is defined by
article 22 of the Convention against Torture, whereby that competence is
limited to violations of this Convention and does not extend to the norms of
general international law.
7.3 With regard to the temporal application of the Convention, the Committee
recalls that the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment entered into force on 26 June 1987. In
this connection, the Committee observes that the Convention only has effect
from that date and cannot be applied retroactively. Therefore the
promulgation of the "Punto Final" Act on 24 December 1986 and the enactment,
on 8 June 1987, of the "Due Obedience" Act could not, ratione temporis, have
violated a Convention that had not yet entered into force.
7.4 The only issue remaining before the Committee is whether there have been
any violations of the Convention subsequent to its entry into force. A
question arises concerning the immediate application of the provisions of
the Convention, for example, with regard to the right of victims of torture
to a remedy. Article 13 provides in part: "Each State party shell ensure
that any individual who alleges he has been subjected to torture in any
territory under its jurisdiction has the right to complain to, and to have
his case promptly and impartially examined by, its competent authorities".
Although the authors have not invoked article 14 of the Convention, the
Committee ex officio shall examine whether issues arise under this article
which stipulates in part: "Each State party shall ensure in its legal system
that the victim of en act of torture obtains redress and has an enforceable
right to fair and adequate compensation, including the means for as full
rehabilitation as possible. In the event of death of the victim as a result
of an act of torture, his dependants shall be entitled to compensation".
7.5 The Committee observes that "torture" for purposes of the Convention can
only mean torture that occurs subsequent to the entry into force of the
Convention. Thus, the scope of articles 13 and 14 of the Convention does not
cover torture that took place in 1976, 10 years before the entry .into force
of the Convention, and the right to redress provided for in the Convention
necessarily arises only with respect to events subsequent to 26 June 1987.
8. The Committee therefore decides:
(a) That the communications are inadmissible ratione temporis,
(b) That this decision shall be communicated to the State party and to the
authors through their counsel.
9. The Committee observes, however, that even if the Convention against
Torture does not apply to the facts of these communications, the State of
Argentina is morally bound to provide a remedy to victims of torture and to
their dependants, notwithstanding the fact that the acts of torture occurred
before the entry into force of the Convention, under the responsibility of a
de facto government, which is not the present Government of Argentina. The
Committee notes with concern that it was the democratically elected
post-military authority that enacted the Punto Final and the Due Obedience
Acts, the latter after the State had ratified the Convention against Torture
and only 18 days before the Convention entered into force. The Committee
deems this to be incompatible with the spirit and purpose of the Convention.
The Committee notes that, as a result, many persons who committed acts of
torture remain unpunished, including the 39 senior officers pardoned by
decree of the President of Argentina on 6 October 1989, who were to have
been tried by the civil courts. This policy is in stark contrast to the
attitude of the State towards the victims of the "dirty war" of 1976-1983.
The Committee urges the State party not to leave the victims of torture and
their dependants wholly without a remedy. If civil action for compensation
is no longer possible because the period of limitations for lodging such an
action has run out, the Committee would welcome, in the spirit of article 14
of the Convention, the adoption of appropriate measures to enable adequate
compensation.
10. The Committee would also welcome receiving from the State party detailed
information concerning (a) the number of successful claims for compensation
for victims of acts of torture during the "dirty war", or for their
dependants, and (b) such pension schemes that may exist apart from
compensation, for the victims of torture or their dependants, including the
criteria for eligibility for such pension.
* Pursuant to rule 104 of the Committee's rules of procedure, Mr. Gil
Lavedra did not take part in the consideration of the communications or in
the decisions adopted by the Committee, at any stage. He was not present
during the Committee's deliberations or decision-making.
** Made public by decision of the Committee.
|
|
