REPORT Nº 29/92
October 4, 1991, during its 80th session, the Inter-American Commission
on Human Rights (hereinafter "the Commission"), approved, by a
vote of six to one, Report Nº 35/91, pursuant to Article 50 of the
American Convention on Human Rights (hereinafter "the
That report was thereupon sent to the Government of Uruguay on
October 8, 1991. The Government of Uruguay communicated its views and
the Commission studied and took account of them in the present Report Nº
29/92, provided for in Article 51.1 of the Convention, which was adopted
Between June 16, 1987 and April 7, 1989, the Inter-American
Commission on Human Rights, (hereinafter "the Commission")
received a total of eight petitions, filed against the Uruguayan State:
Hugo Leonardo de los Santos Mendoza
Case Nº 10.036:
Enrique Rodríguez Larreta Pieri
Noris Alejandra Menotti Cobas
Luis Alberto Estradet
Josefina Mirta Detta Paolino
William Torres Ramírez
Guillermo Francisco Stoll
Osiris Elías Musso Casalas
Clarel de los Santos Flores
Case Nº 10.372:
Juan Manuel Brieba
Case Nº 10.373:
Félix Sebastián Ortíz
Case Nº 10.374:
Amelia Sanjurjo Casal, and
Case Nº 10.375:
Antonio Omar Paitta, respectively
The petitions denounced the legal effects of Law Nº 15,848
(hereinafter "the Law") and its application by the judiciary,
which they allege violated rights upheld in the American Convention
(hereinafter "the Convention"): the right to judicial
protection (Art. 25) and the right to a fair trial (Art. 8), among
The first article of that law states that:
"It is hereby recognized that as a consequence of the logic
of the events stemming from the agreement between the political parties
and the Armed Forces in August 1984 and in order to complete the
transition to full constitutional order, any State action to seek
punishment of crimes committed prior to March 1, 1985, by military and
police personnel for political motives, in the performance of their
functions or on orders from commanding officers who served during the de
facto period, has hereby expired."
Article 3 states the following:
"For the purposes set forth in the preceding articles, the
judge hearing the case shall require the Executive Branch to inform the
court, within a period of no more than thirty days from receipt of the
communication, whether it considers that the facts under investigation
fall under the provisions of the first article of this law.
If the Executive Branch so states, then the judge shall dismiss
If, on the other hand, the Executive Branch does not reply or
reports that the matter under investigation does not fall under the
provisions of this law, the judge shall order that the proceedings
From the time this law is enacted up until the time the judge
receives the communication from the Executive Branch, all pretrial
proceedings in the cases described in the first paragraph of this
article shall be suspended."
While Article 4 states that:
"The foregoing notwithstanding, the judge hearing the case
shall remit to the Executive Branch all testimony offered in the
complaint as of the date of enactment of this law, regarding measures
involving individuals alleged to have been detained in military or
police operations and who have since disappeared, as well as minors
alleged to have been abducted under similar circumstances.
The Executive Branch shall immediately order investigations to
ascertain the facts.
Within 120 days of the date of the communication received from
the court, the Executive Branch shall advise the plaintiffs of the
findings of these investigations and provide them with the information
Since the Executive Branch entrusted the investigation to
military judges, doubts were raised as to the seriousness and
impartiality of the investigative proceeding, and as to whether the duty
to provide the essential judicial guarantees has been observed (Articles
8 and 27 of the Convention).
The law was declared constitutional by the Uruguayan Supreme
Court and was approved by a national referendum called for that purpose
pursuant to the provisions of Article 79 of the Uruguayan Constitution.
SUMMARY OF THE PETITIONS AND THE GOVERNMENT'S REPLY
Seven of the eight petitions are individual cases, while the
other is a joint action presented on behalf of ten victims.
The first three have one element in common, which is that they
were the subject of decisions previously adopted by this Commission in
application of the American Declaration of the Rights and Duties of Man
(henceforth "the American Declaration").
Those decisions, inter alia, cited the Government of
Uruguay for very grave violations of the right to life, liberty and
personal security (Article I of the American Declaration) and
recommended to the Government that it undertake an
"investigation" of the facts and have those responsible
"brought to trial."
All the petitions, however, cite the effects of the law as a
fundamental violation of the Convention.
The petitioners contend that inasmuch as the law denies them
their right to turn to the courts as a last resort, a thorough and
impartial investigation of the human rights violations that occurred
during the past de facto government is being obstructed.
Consequently, the petitioners allege that the law violates
Articles 25 and 8 of the Convention in relation to Article 1.1 thereof,
in that its judicial effect has been to deny them their right to
judicial protection from the courts and to dismiss proceedings against
those responsible for past human rights violations.
The basic position of the Government of Uruguay (hereinafter
"the Government") has been that this legislative measure,
which constitutes an exercise of its sovereign right to grant clemency,
violates neither the Convention nor any other rule of international law.
The Government alleged that the petitions were inadmissible
because the domestic remedies had not been exhausted.
It argued that the petitioners could have filed suit for civil
damages and that some of the petitioners took their cases as far as the
As for the merits of the case, it argued that the law was the
result of a democratic decision and was found to be constitutional.
It further alleged that the Convention provides for the
suspension of the rights recognized therein and that this law was an
integral part of a national reconciliation process.
THE PROCESSING IN THE COMMISSION
The Commission duly conveyed to the parties the observations
formulated by the Government and petitioners.
Basically, both parties restated their original positions.
At its 76th, 77th and 78th regular sessions, the Commission held
hearings during which it received the petitioners and government
Because the question that each petition raises is basically the
same in all the petitions, the Commission has decided to join the cases
and regard them as a single case.
In the Commission's judgment, the formal admissibility
requirements set forth in Article 46.1 of the Convention and in Article
32 of the Commission's Regulations have been satisfied inasmuch as the
domestic legislation does not provide suitable and effective means under
which it would be at least legally possible to declare the effects of
the law null and void; those effects make it impossible to obtain an
impartial and exhaustive judicial investigation into the very serious
human rights violations that have occurred in the past.
The Uruguayan Supreme Court of Justice dismissed the cases that
argued the unconstitutionality of the law.
As for the allegation that the domestic remedies have not been
exhausted, the Commission would note that once the law was declared
constitutional, its effect was to prevent continuation of the
proceedings underway in the courts of the land.
While Article 46.1.a of the Convention requires that the remedies
under domestic law be pursued and exhausted first, Article 46.2.a
stipulates that said requirement shall not apply when "the domestic
legislation of the State concerned does not afford due process of law
for the protection of rights that have allegedly been violated."
Therefore, the petitions cannot be considered inadmissible on the
ground of a failure to exhaust the remedies under domestic law.
The petitions were presented to this organ in due form, since the
"fact" denounced is that it has become impossible to bring the
military and police offices accused of past human rights violations to
The petitions do not constitute a duplication of proceedings,
inasmuch as the same question, i.e., the compatibility of the law with
the Convention, is not pending settlement in any other international
As for "friendly settlement," the Commission cites the
observations made by the Court in the Velásquez Rodríguez case to the
effect that "the Commission should attempt such friendly settlement
only when the circumstances of the controversy make that option suitable
or necessary, at the Commission's sole discretion."
In the instant case, the subject concerns a complete legislative
program which the State actively defends.
Hence, the Commission is of the view that the friendly settlement
procedure is neither necessary nor suitable.
On October 4, 1991, during its 80th session, the Commission, by a
vote of 6 to 1, gave preliminary approval to Report Nº 35/91, based on
Article 50 of the Convention. The report was then sent to the Government
of Uruguay, on a confidential basis, in accordance with the second part
of that same article, to guard against its publication.
The dissenting opinion of Dr. Gilda M.D. de Russomano, then a
the Commission, was attached to this report.
On December 4, 1991, the Government sent its observations on
Report Nº 35/91.
OBSERVATIONS OF THE GOVERNMENT ON THE REPORT ADOPTED IN
ACCORDANCE WITH ARTICLE 50
Essentially, the Government contends that the Commission has
failed to consider the "democratic juridical-political
context" inasmuch as it has not taken into account the domestic
legitimacy of the law and has failed to consider important aspects of
the present political situation, as well as the higher ethical ends of
the Caducity Law.
What follows is a summary of the principal arguments in the
The Government avers that the amnesty question should be viewed
in the political context of the reconciliation, as part of a legislative
program for national pacification that covered all actors involved in
past human rights violations, i.e., "political crimes and related
common and military crimes;" that the Caducity Law was adopted for
"the sake of legal symmetry and for very justified and serious
reasons of the utmost political importance," with "unqualified
adherence to its constitutional system and its international
Uruguay emphasizes the fact that this law, approved by the
necessary parliamentary majority, was also "the subject of a
plebiscite" by the electorate; that it cannot accept the
Commission's finding that while the domestic legitimacy of the law is
not within the Commission's purview, the legal effects denounced by the
petitioners are; "the express will of the Uruguayan people to close
a painful chapter in their history in order to put an end, as is their
sovereign right, to division among Uruguayans, is not subject to
The Government pointed out that as with any treaty, the
Convention must be interpreted in accordance with the principles
embodied in the Vienna Convention on the Law of Treaties, in good faith
and in the light of its object and purposes.
Accordingly, it pointed out that Articles 8.1 and 25.1 of the
Convention should be interpreted in the light of Articles 30 and 32 of
the Convention, whereby the enjoyment and exercise of the rights
recognized in the Convention can be restricted when such restrictions
are the product of laws enacted for reasons of general interest or when
those rights are limited by the rights of others, by the security of all
and by the just demands of the general welfare in a democratic society.
The Government pointed out that the Caducity Law was enacted in
exercise of an authority recognized in international law (Articles 6.4
and 14.6 of the International Covenant of Civil and Political Rights and
Article 4.6 of the Convention).
The Government contends that Article 8.1 of the Convention refers
to the rights of the accused in a criminal proceeding and not to someone
filing a criminal action.
The Government contends further, that the right to bring a
criminal action, independently of the case brought by the public
prosecutor, does not exist in Uruguayan procedural law; it further
asserts that this right is not protected by international human rights
It stated that private parties are not the owners of a criminal
action and that only in exceptional cases is a private interest allowed
Criminal proceedings are public and only the State has the
authority to waive the exercise of that right.
The only thing that the law declared expired was the power of the
public prosecutor to bring charges in a court of criminal law.
As for Article 25.1 of the Convention, the Government argued that
its purpose was to "redress the injured right and, if not, secure
reparation for the damage suffered;" that since, in the cases being
denounced, it is impossible to redress rights injured during the de
facto regime, all that remains is the right to damages, which the
Caducity Law has in no way impaired.
The Government alleges that it did not violate its obligation to
investigate and punish violations of human rights in accordance with the
interpretation of Article 1.1 of the Convention as rendered by the
Inter-American Court of Human Rights.
It asserted that the Caducity Law "waived exercise of the
State's punitive power and regulated the duty to investigate in the
spirit of and in keeping with the objectives of that legislative act of
Therefore "the law had not in any way affected the
individual human right in question, since criminal law is confined to
the denunciation of the crime."
Consequently the duty to investigate and the question of an
amnesty law must be analyzed as a whole.
In this case, the expiry of the State's punitive intention is for
the sake of the common good, since "investigating facts that
occurred in the past could rekindle the animosity between persons and
groups," and obstruct the reconciliation, pacification and
strengthening of democratic institutions.
Knowledge of the truth is a legitimate aspiration on anyone's
part and the legal system should make available to the interested party
the procedural means to that end; but, for those same reasons, the State
may opt "not to make available to the interested party the means
necessary for a formal and official inquiry into the facts in a court of
The Government further contended that the Commission had failed
to note that the Caducity Law does not prevent the injured party from
seeking damages in a civil court; hence, the recommendation made to the
Government that the victims be awarded just compensation for past human
rights violations was out of order.
THE OPINION AND CONCLUSIONS OF THE COMMISSION
In accordance with Article 51.1 of the Convention, the Commission
is to set forth its opinions and conclusions concerning the question
submitted for its consideration.
The Commission considers that the petitions raise a point of law,
no facts need be confirmed and none of the facts alleged is
disputed; instead the petitions are asking the Commission to determine
whether the law is compatible with the Convention.
The question in these cases is not the domestic legitimacy of the
legislation and other measures adopted by the Government to achieve the
effect herein denounced.
Under long-standing principles of international law and under
specific provisions contained in the Convention, the Commission is
obliged to determine whether certain of its effects constitute a
violation of the obligation undertaken by the Government under the
Convention (Article 27 of the Vienna Convention on the Law of Treaties).
As for the domestic legitimacy and the "approval of the
Caducity Law by a popular referendum," it should be noted that it
is not up to the Commission to rule on the domestic legality or
constitutionality of national laws.
However, application of the Convention and examination of the
legal effects of a legislative measure, either judicial or of any other
nature, insofar as it has effects incompatible with the rights and
guarantees embodied in the Convention or the American Declaration, are
within the Commission's competence.
That competence follows from the Convention itself, when it gives
the Commission (and the Inter-American Court of Human Rights as well)
competence "with respect to matters relating to the fulfillment of
the commitments made by the States Parties to this Convention"
In other words, the Commission "takes action on petitions
and other communications pursuant to its authority under the provisions
of Articles 44 and 51 of this Convention" (Article 41.f).
Further, Article 2 stipulates that the States Parties are obliged
to adopt "such legislative or other measures as may be necessary to
give effect to those rights or freedoms" (Article 2).
A fortiori, a country cannot by internal legislation evade
its international obligations.
Therefore, the Commission and the Court are authorized to examine
--in light of the Convention-- even domestic laws which allegedly
abrogate or violate rights and freedoms embodied therein.
As to the interpretation of the Convention
Article 29 of the Convention stipulates the following:
No provision of this Convention shall be interpreted as:
permitting any State Party, group, or person to suppress the
enjoyment or exercise of the rights and freedoms recognized in this
Convention or to restrict them to a greater extent than is provided for
restricting the enjoyment or exercise of any right or freedom
recognized by virtue of the laws of any State Party or by virtue of
another Convention to which one of the said States is a party;
precluding other rights or guarantees that are inherent in the
human personality or derived from representative democracy as a form of
excluding or limiting the effect that the American Declaration of
the Rights and Duties of Man and other international acts of the same
nature may have.
The Commission notes that any interpretation of the Convention
must be rendered in accordance with this provision.
As to the right to a fair trial
The law in question has the intended effect of dismissing all
criminal proceedings involving past human rights violations.
With that, the law eliminates any judicial possibility of a
serious and impartial investigation designed to establish the crimes
denounced and to identify their authors, accomplices, and accessories
after the fact.
The Commission must also consider the fact that in Uruguay, no
national investigatory commission was ever set up nor was there any
official report on the very grave human rights violations committed
during the previous de facto government.
It is fitting, in this regard, to cite the Commission's general
position on the subject, as set forth in its Annual Report of 1985-1986:
...one of the few matters that the Commission feels obliged to
give its opinion in this regard is the need to investigate the human
rights violations committed prior to the establishment of the democratic
Every society has the inalienable right to know the truth about
past events, as well as the motive and circumstances in which aberrant
crimes came to be committed, in order to prevent a repetition of such
acts in the future.
Moreover, the family members of the victims are entitled to
information as to what happened to their relatives.
Such access to the truth presupposes freedom of speech, which of
course should be exercised responsibly; the establishment of investigating
committees whose membership and authority must be determined in
accordance with the internal legislation of each country, or the
provision of the necessary resources so that the judiciary itself
may undertake whatever investigations may be necessary.
The Commission must also weigh the nature and gravity of the
events with which the law concerns itself;
alleged disappearances of persons and the abduction of minors,
among others, have been widely condemned as a particularly grave
violation of human rights.
The social imperative of their clarification and investigation
cannot be equated with that of a mere common crime [See:
AG/RES. 443 (IX-0/79); 666 (XIII-0/83); 742 (XIV-0/84) 950
(XVIII-0/88); 1022 (XIX-0/89) and 1044 (XX-0/90) and IACHR Annual
Reports 1978; 1980/81; 1982/83; 1985/86; 1986/87 and Special Reports
such as those on Argentina (1980), Chile (1985) and Guatemala (1985),
all approved by the General Assembly].
The law under examination had various effects and adversely
affected any number of parties or legal interests.
Specifically the victims, next-of-kin or parties injured by human
rights violations have been denied their right to legal redress, to an
impartial and exhaustive judicial investigation that clarifies the
facts, ascertains those responsible and imposes the corresponding
What are denounced as being incompatible with the Convention are
the legal consequences of the law with respect to the right to a fair
One of the law's effects was to deny the victim or his rightful
claimant the opportunity to participate in the criminal proceedings,
which is the appropriate means to investigate the commission of the
crimes denounced, determine criminal liability and impose punishment on
the those responsible, their accomplices and accessories after the fact.
The Commission is not taking issue with the public and official
nature of criminal proceedings.
However, in Uruguay the victim or injured party does have a right
to participate in the criminal proceeding beyond the indictment.
The Uruguayan Code of Criminal Procedure authorizes the injured
party to request, during the summary proceedings, all measures that may
be useful in ascertaining the crime and determining those responsible
Consequently, in systems that allow it, the victim of the crime
has access to the courts because of a citizen's fundamental right, which
becomes particularly important as a dynamic of the criminal process.
To answer the question of whether the rights of the victim or his
next-of-kin, guaranteed under domestic law, are protected by
international human rights law, one must determine:
whether the rights embodied in the constitution and the laws of
that State at the time the violations occurred became subject to
international protection through subsequent ratification of the
Convention, and b) whether those rights can be abrogated absolutely
through subsequent enactment of a special law, without violating the
Convention or the American Declaration.
Article 1.1 of the Convention makes it the duty of the States
Parties "to respect the rights and freedoms recognized herein and
to ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms..."
Article 8.1 of the Convention states the following:
Every person has the right to a hearing with due guarantees and
within a reasonable time, by a competent, independent, and impartial
tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the
determination of his rights and obligations of a civil, labor, fiscal or
any other nature.
The intended effect of the law, and the effect that was in fact
achieved, was to prevent the petitioners from exercising the rights
upheld in Article 8.1.
By enacting and applying the law the Uruguayan Government failed
to abide by the obligation to guarantee observance of the rights
recognized in Article 8.1, and thereby infringed those rights and
violated the Convention.
With respect to the right to judicial protection
Article 25.1 of the Convention stipulates the following:
Everyone has the right to simple and prompt recourse, or any
other effective recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized
by the constitution or laws of the State concerned or by this
Convention, even though such violation may have been committed by
persons acting in the course of their official duties.
Article 25.2 stipulates the following:
The States Parties undertake:
To ensure that any person claiming such remedy shall have his
right determined by the competent authority provided for by the legal
system of the State;
To develop the possibilities of judicial remedy; and
To ensure that the competent authorities shall enforce such
remedies when granted.
When it enacted the law, Uruguay ceased to guarantee the rights
stipulated in Article 25.1 and violated the Convention.
With respect to the obligation to investigate
When interpreting the scope of Article 1.1, the Inter-American
Court of Human Rights stated that "the second obligation of the
States Parties is to `ensure' the free and full exercise of the rights
recognized by the Convention to every person subject to its
As a consequence of this obligation, the States must prevent,
investigate and punish any violation of the rights recognized by the
The Court elaborates upon that concept in several paragraphs that
What is decisive is whether a violation of the rights recognized
by the Convention has occurred with the support or the acquiescence
of the government, or whether the State has allowed the act to take
place without taking measures to prevent it or to punish those
....The State has a legal duty to take reasonable steps to
prevent human rights violations, and to use the means at its disposal to
carry out a serious investigation of violations committed within
its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim adequate
....If the State apparatus acts in such a way that the violation
goes unpunished and the victim's full enjoyment of such rights is
not restored as soon as possible, the State has failed to comply with
its duty to ensure the free and full exercise of those rights to the
persons within its jurisdiction.
As for the obligation to investigate, the Court notes that:
"An investigation must have an objective and be assumed by the
State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon
their offer of proof, without an effective search for the truth by
added by the Commission.)
When it enacted this law, Uruguay ceased to comply fully with the
obligation stipulated in Article 1.1 and violated the petitioners'
rights upheld in the Convention.
As for the interpretation of Article 1.1, Article 8.1 and Article
25.1, and the possible restrictions on those rights as set forth in
Articles 30 and 32, the Commission respects but nevertheless disagrees
with the Uruguayan Government's interpretation of those provisions.
As for compensatory damages, the Commission points out that while
it is true that the text of the law did not affect the possibility of
filing a suit for such damages, the ability to establish the crime in a
civil court has been considerably curtailed since vital testimony from
the moral and material authors, military and police personnel of the
State, cannot be adduced or used.
The Commission also noted that four years after the fact, the
State invoked the caducity exception, even though at the time the crimes
were committed a dictatorial government was in power whose judiciary
lacked any independence, especially in matters of this nature.
In the past year, the Commission has noted, with satisfaction, a
number of important damages agreements that the Uruguayan State and
certain victims of past human rights violations have reached, including
three petitioners in these cases.
Nevertheless, the Commission must make clear that the purpose of
these petitions is to object to the denial of justice (Articles 8 and 25
in relation to Article 1 of the Convention) with enactment and
application of the 1986 Law, and not to the violations of the rights to
life (Article 4), humane treatment (Article 5) and liberty (Article 7),
among others, which triggered the right to a fair trial and the right to
judicial protection, but that occurred before the Convention entered
into force for Uruguay on April 19, 1985, and therefore were not a
subject of these complaints.
The Commission has carefully weighed the political and ethical
dimensions of the measure adopted by the Uruguayan Government and
reached a conclusion different from that of the Government as to
whether, with the law, the Government's highest mission according to the
obligations of the American Convention, which is to defend and promote
human rights, is being served.
Given the foregoing considerations, the
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
Concludes that Law 15,848 of December 22, 1986, is incompatible
with Article XVIII (Right to a Fair Trial) of the American Declaration
of the Rights and Duties of Man, and Articles 1, 8 and 25 of the
American Convention on Human Rights.
Recommends to the Government of Uruguay that it give the
applicant victims or their rightful claimants just compensation for the
violations to which the preceding paragraph refers.
Recommends to the Government of Uruguay that it adopt the
measures necessary to clarify the facts and identify those responsible
for the human rights violations that occurred during the de facto
4. Orders publication of this report.