HUMAN RIGHTS COMMITTEE


S. E. v. Argentina


Communication No. 275/1988


26 March 1990


CCPR/C/WG/36/DR/275/1988*



ADMISSIBILITY



Submitted by: S.E. (Name deleted)


Alleged victims: The author and her disappeared children


State party concerned: Argentina


Date of communication: 10 February 1988 (date of initial letter)



The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,


Meeting on 26 March 1990,


Adopts the following:



Decision on admissibility



1. The author of the communication (initial submission dated 10 February 1988) is an Argentine citizen residing in Argentina. She writes on her own behalf and on the behalf of her three disappeared children, born in 1951, 1953 and 1956, respectively, alleging violations by the Government of Argentina of articles 6, paragraph 1; 7; 9, paragraphs 1-5; 10 paragraph 1; 12, paragraph 1; 16; 17, paragraph 1; 19 paragraph 1; 22, paragraph 1; 23, paragraph 1, and 26 in conjunction with article 2, paragraphs 1-3, of the Covenant. She is represented by counsel.


2.1 The author states that her eldest son L.M.E. was abducted in Argentina on 10 August 1976 by persons belonging to or associated with the police, security forces or armed forces, apparently on account of his political opinions. C.E. (Son) and L.E. (Daughter) were detained on 4 November 1976 in Uruguay and were allegedly seen in November-December 1976 at a detention camp in Argentina known as "The Bank" and at a police station, Brigada Guenes, in Buenes Aires. Their whereabouts have been unknown ever since in spite of all the steps undertaken by the author to discover what happened to them.


2.2 On 28 April 1983, before the new Argentine civilian Government took office, the military Junta published a "Final Document on the War against Subversion and Terrorism" and subsequently approved it by passing an Institutional Act. Both documents allegedly admit that the actions which resulted in the disappearance of thousands of persons were carried out by the military and police forces of the State, acting in accordance with plans drawn up by the commands of the armed forces and by the military Junta itself.


2.3 On 24 December 1986, the Argentine legislature of the new civilian Government proclaimed Law No. 23492, the so-called "Finality Act" ("Ley de Punto Final"), which established a deadline of sixty days for commencing new criminal investigations with regard to the events of the so-called "dirty war". On 8 June 1987 Law No. 23521, the "Due Obedience Act" ("Ley de Obediencia Debida"), was promulgated, introducing an irrebuttable presumption that members of the security, police and prison services cannot be punished for such crimes if committed in due obedience to orders. The Act further extends protection to senior officers who did not have a decision-making role with regard to the violations. The Argentine courts have upheld the constitutionality of this Act.


2.4 With regard to the requirement of exhaustion of domestic remedies, the author claims that, due to the "Finality Act" and the "Due Obedience Act", it has been impossible to bring to justice any State officials responsible for the violations of the Covenant alleged in her communication. The author therefore maintains that the promulgation of these two Acts was inconsistent with Argentina's obligations under the Covenant.


3. By decision of 15 March 1988, the Working Group of the Human Rights Committee transmitted the communication to the State party, requesting it, under rule 91 of the provisional rules of procedure, to provide information and observations relevant to the question of admissibility.


4.1 In its submission under rule 91, dated 17 October 1988, the State party objects to the admissibility of the communication on a number of grounds. Firstly, it contends that since the alleged violations of articles, 6, 7, 9, 10, 14, 16, 17, 19, 22, 23 and 26 occurred during the period of the military government and prior to 8 November 1986, the date of the entry into force of the Covenant and of the Optional Protocol for Argentina, the communication should be declared inadmissible ratione temporis.


4.2 With respect to the non-retroactive application of the Covenant and of the Optional Protocol, the State party submits that the general rule for all juridical norms is non-retroactivity. In the specific area of treaty law, a firmly-established international practice leads to the same conclusion. Both the Permanent Court of International Justice (Series A/B, No. 4, 24) and the International Court of Justice (ICJ Reports 1952, 40) have maintained that a treaty has to be considered as having a retroactive effect only when this intention is explicitly stated in the treaty or may be clearly inferred from its provisions. The validity of the principle of non-retroactivity of treaties was enshrined in the 1969 Vienna Convention on the Law of Treaties (in force 27 January 1980), article 28 of which codifies this rule of customary international law:

 

"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 entry into force of the treaty with respect to that party"


In its commentary on the relevant draft article of the Vienna Convention, the International Law Commission stated:

 

"Thus 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 prior to the entry into force of the Convention with respect to the State in question" 1.


4.3 The State party further recalls that the case of the author's children was submitted to the Working Group on Enforced or Involuntary Disappearances on 13 August 1980.


5.1 With regard to domestic proceedings in respect of the events under review, the Government of Argentina states that on 19 June 1984, one Mrs. L.W. appeared before CONADEP (Comision Nacional sobre Desaparicion de Personas; National Commission on the Disappearance of Persons) and filed complaints concerning the disappearances of L.M.E., which she indicated had occurred on 10 August 1976 in the Federal Capital (Conadep file 5448); L.E., which occurred, according to the complainant, on 4 November 1976 in the Eastern Republic of Uruguay (Conadep file 5449); and C.E. (Conadep file 5450), which occurred together with that of L.E.


5.2 The State party points out: "In fulfilment of the provisions of Decree No. 3090/84 of the National Executive Power, the Under-Secretary for Human Rights submitted, among other cases, the case contained in CONADEP file 5448 (L.M.E.) To Federal Criminal and Correctional Court No. 4, Department 10, of the Federal capital, on 5 June 1986. The cases contained in files 5449 and 5450 were not submitted because according to the complainant's statements, the two disappearances concerned occurred outside national jurisdiction."


5.3 The State party adds: "The case of L.M.E. was incorporated into case 450/84 initiated against the head of Army Corps I, General C.S.M. This case was suspended for a considerable period owing to the fact that C.S.M. was at that time a fugitive. Once he had been located in a city in the United States and detained under arrest orders issued by this Government, proceedings were initiated for his extradition under the Treaty concluded with the United States on 21 January 1972. He was finally extradited to be tried for a series of offences, which, by virtue of the decision of the United States courts of justice are fewer in number than this country requested and do not include the case (concerning the author's son L.M.E.).


5.4 The State party further explains that "for the purpose of the trials held in connection with the events that occurred during the repression of subversion by the de facto Government, the prosecutors found themselves obliged to be selective in bringing charges. It should be borne in mind that the CONADEP report alone refers to 8,900 disappearances. Therefore, because of the high number of cases to be investigated - which in itself exceeds the capacity of the court - the prosecutors selected only those cases which they felt to be illustrative or representative, since it was not possible to consider in detail all the complaints received. This is not the first time that criteria of selectivity have been used, since the European Commission of Human Rights, when it considered a complaint lodged by Ireland against the United Kingdom, arrived at a decision on the basis of a sample of only 16 cases, a number which in Argentina's case has been amply exceeded."


5.5 With respect to the judicial proceedings against General C.S.M., who is allegedly responsible for the disappearance of Mr. L.M.E., the State party points out that the contested Act No. 23,492 ("Punto Final") is not applicable to him since the case was already been judicially processed when the Punto Final was enacted and that Act No. 23,521 ("Obediencia Debida") is also not applicable in this case because General C.S.M. had exercised effective command and decision-making power. Therefore the compatibility of the laws in question with the Covenant cannot be tested in this case.


5.6 The State party considers that communication No. 275/1988 should be declared inadmissible in accordance with articles 3, 5, paragraph 2(a), and 9, paragraph 2, of the Optional Protocol: "Beyond the substantial reasons which make the application inadmissible both procedurally and materially, the Government of Argentina considers that it should be rejected as clearly inadmissible since it is based on the non-fulfilment of treaty provisions which were not in force in Argentina at the time when the events occurred. Therefore, since the Committee is competent to receive and consider communications from individuals subject to the jurisdiction of a State party to the Optional Protocol and who claim to be victims of a violation by that State party of any of the rights set forth in the Covenant, through the ratification and from the entry into force of both instruments for the State Committee of even the formal admissibility of this application would be contrary to international law (article 28 of the Vienna Convention on the Law of Treaties), the Covenant and the Optional Protocol."


6.1 In his comments on the State party's submission, dated 5 June 1989, author's counsel limits the communication to events subsequent to the entry into force of the Optional Protocol for Argentina, in particular to the enactment of the Punto Final and the Due Obedience laws and the refusal of the Government of Argentina to institute judicial proceedings against those persons known and identified as being directly responsible for the apprehension and subsequent disappearance of the author's children. The author contends that the said acts, omissions and/or refusals by the Government of Argentina, in the absence of any express reservation at the time of ratification, are contrary to articles 18, 26 and 27 of the Vienna Convention on the Law of Treaties.


6.2 Article 18 provides:


"A State is obliged to refrain from acts which would defeat the object and purpose f a treaty when:

 

(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or

(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed."


6.3 Article 26 provides:

 

"Every treaty in force is binding upon the parties to it and must be performed by them in good faith."


6.4 Article 27 provides:

 

"A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."


6.5 The author notes that the case of her eldest son was incorporated into the case initiated against General C.S.M. and that the proceedings leading to his extradition from the United States of America were commenced by the Government of Argentina. However, she denies that any effective steps have been taken or are contemplated to be taken by the Government of Argentina against those persons known and identified as being directly responsible for the apprehension and subsequent disappearance of her children (i.e. General C.S.M. and his subordinates). If such effective steps have been taken, then the author puts the Government of Argentina to proof thereof and to make available all documentation in support.


6.6 With regard to the State party's explanation that the cases of the author's two younger children were closed because their disappearance occurred outside the national jurisdiction, namely in Uruguay, the author submits that such a statement must be treated with caution, and is demonstrative of a failure by the Government of Argentina to comply with its international obligations.


6.7 For these among other reasons, the author claims to have suffered grave and substantial injustice, in particular, to have been denied the opportunity of questioning or obtaining the benefit from the institution of questioning on her behalf, by State prosecuting attorneys or investigating magistrates, those persons who have knowledge, constructive or otherwise of the whereabouts of her children.


7.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.


7.2 With respect to article 5, paragraph 2 (a), of the Optional Protocol, the Committee has ascertained that the author has not submitted the same matter to the Inter-American Commission on Human Rights. However, the case of her eldest son L.M.E. was brought to the attention of the Commission of Human Rights' Working Group on Enforced or Involuntary Disappearances, which transmitted it to the Government of Argentina on 14 December 1981. A Government reply, dated 18 September 1987, informs the Working Group that a request for investigation of this case was filed with Federal Curt No. 4 of Buenos Aires. The cases of the author's two other children were transmitted to the Government of Argentina on 14 December 1983, but to date there has been no Government reply. The Committee notes that irrespective of whether consideration by the Working Group on Enforced or Involuntary Disappearances constitutes a "procedure of international investigation or settlement" within the meaning of article 5, paragraph 2(a), of the Optional Protocol, or not, the cases before the Working Group on Enforced or Involuntary Disappearances do not constitute the same matter as the communication which the author has brought to the Human Rights Committee. The latter concerns not only the disappearance of her children, which occurred prior to the entry into force of the Covenant and of the Optional Protocol for Argentina, but primarily the question of whether the author's rights under the Covenant have been violated, in particular whether article 2 of the Covenant requires the State party to grant the author specific relief. Therefore, the Committee is not precluded, on this ground, from examining the author's communication.


7.3 With respect to the requirement under article 5, paragraph 2 (b), of the Optional Protocol that the author exhaust domestic remedies, the question arises as to the nature of the "effective remedy" demanded by the author. To the extent that she demands that the persons responsible for the disappearances of her children be criminally prosecuted, the Committee refers to its prior case law in which it decided that "the Covenant does not provide for the right to see another person criminally prosecuted" 2. The Committee is of the opinion that a State party that recognizes and condemns the violations of human rights committed by a prior military regime may choose to but is not obliged to trace every suspect and to investigate every case of possible violation. In this connection the Committee has noted the State party's explanation that for the purpose of the trials of former military officials, the prosecutors had found themselves obliged to be selective in bringing charges, bearing in mind the great number of cases of disappearances reported, and considering that investigating all cases would have exceeded the capacity of the court system. Notwithstanding these practical considerations, the Committee expresses the hope that the State party will endeavour to continue to investigate cases of disappeared persons, to sanction those found responsible for the disappearances, and facilitate the processing of all claims for compensation submitted by victims of human rights violations or their survivors. In this context the Committee notes that effective remedies under the Covenant include civil remedies such as compensation. Such remedies are not ruled out in article 6 of Law No. 23492 ("Punto Final"law), which specifically provides that "The extinction of penal action pursuant to article 1 does not affect civil proceedings." Since the author has not indicated that she has instituted any civil proceedings to obtain compensation, the Committee concludes that all domestic remedies under Argentine law have not been exhausted.


8. Since the exhaustion of domestic remedies is a prerequisite of admissibility under articles 2 and 5, paragraph 2 (b), of the Optional Protocol, the Human Rights Committee decides:

 

(a) That the communication is inadmissible; and

 

(b) That this decision shall be communicated to the State party, to the author and to her counsel.


__________


* All persons handling this document are requested to respect and observe its confidential nature.


1/ A/6309/Rev.1, GAOR: 21, Suppl. 9, 46, note 98.


2/ H.C.M.A. v. The Netherlands, No. 213/1986, declared inadmissible by the thirty-fifth session on 30 March 1989.



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