COMMITTEE AGAINST TORTURE
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Conclusions and recommendations of the Committee against Torture
88. The second
periodic report of Argentina (CAT/C/17/Add.2) was considered by the
Committee at its 122nd to 124th meetings, on 11 and 12 November 1992
(see CAT/C/SR.122, 123 and 124/Add.1).
89. The report
was introduced by the representative of the reporting State, who stated
that, in accordance with article 27 of the Vienna Convention on the
Law of Treaties, Argentina gave precedence to an international convention
to which it was a party when it was in conflict with domestic law.
When Argentina ratified an international instrument, the provisions
immediately became applicable by domestic administrative and judicial
90. The representative
also provided information on various initiatives taken by his Government
with regard to the training of prison staff, changes within the legal
system, new administrative measures and the provision of compensation
to victims of human rights violations.
regard to the training of prison officials, he indicated that the
curriculum designed for them included courses on constitutional law,
ethics and human rights, and public and criminal law, and that their
educational programmes were placing increased emphasis on teaching
tolerance and respect for human rights and dignity.
legislative changes, the representative stated that Act No. 23,950/91
amending Act No. 14,467 on the treatment of prisoners stipulated that
no individual could be detained without a court order. If the police
had sufficient reasons to detain an individual, it could do so for
no more than 10 hours to check his record, as against 48 hours previously.
The Code of Penal Procedure provided, inter alia, that the
maximum period for which an individual could be held incommunicado
had been reduced from 10 days to 72 hours. Detainees had the right
to communicate with their defence counsel before being detained incommunicado.
A medical examination was compulsory at the beginning of detention.
The new Code of Penal Procedure also abolished the validity of "spontaneous
statements" at police stations. The accused could make a statement
only before a judge. The system for prison visits had been amended
by the new Code, which had entered into force on 5 September 1992.
The post of judge for the enforcement of sentences had been created
to deal with problems in prisons, with the assistance of medical,
psychological and social welfare experts who monitored conditions
of detention in prison.
regard to recent administrative measures, the representative made
reference to decision No. 36/91, which contains a general instruction
to the members of the Public Prosecutor's Office recalling that they
must comply faithfully with their legal obligations with respect to
the matters dealt with in the Convention. In addition, decision No.
2/92 had been adopted, under which a computerized register containing
allegations of unlawful coercion had been established.
regard to compensation for victims of human rights violations, the
representative stated that under Act No. 24,043, compensation to victims
of detention ordered by a military court had been granted to 8,200
persons. The total compensation had amounted to $700 million. Moreover,
under Decree No. 70/91, pertaining to the provision of compensation
to persons detained by the police, a total of $12 million was to be
granted in 470 cases and half that amount had already been paid out.
95. The members
of the Committee expressed their gratitude to the Government of Argentina
for its timely report and to the Government's representative for his
introductory statement. Nevertheless, they observed that more information
was necessary on the implementation of the Convention at the provincial
level and, in this connection, they requested clarification as to
the awareness existing throughout the country of the State party's
obligations under the Convention. In addition, they wished to know
of any specific legislation or jurisprudence which had established
the precedence of provisions of international instruments over those
of domestic law, especially in view of information received that the
Supreme Court had handed down certain judgements in which international
conventions had not been given such precedence. Members of the Committee
also made reference to the 1853 National Constitution and asked whether
the State party intended to replace or amend it. In addition, they
requested further information on matters relating to the independence
of the judiciary, particularly with regard to reported shortcomings
in the selection and promotion of judges, and asked whether any legislative
measures were anticipated to reform such procedures. They also wished
to receive further information on the effectiveness of the methods
used by the Office of the Attorney General of the nation to monitor
the Government's powers in matters relating to the lack of jurisdictional
response to complaints about torture-related crimes. Furthermore,
members of the Committee wished to know whether any national human
rights institution existed in Argentina and how it was composed and
what the content was of recent reports of the National Department
of Human Rights of the Ministry of the Interior.
of the Committee were particularly concerned at the apparent persistence
in Argentina of ill-treatment and torture practised by sections of
the police and armed forces and the apparent leniency shown by the
authorities towards officials responsible for acts of torture. Reference
was made, in this connection, to reports received from Amnesty International
and Americas Watch, particularly with regard to the 733 allegations
of ill-treatment and torture for the period 1989-1991 and that such
victims appeared to be young, from poor districts and frequently dark-skinned
or indigenous people. Other reports provided information about confessions
obtained under torture from persons who had attacked La Tablada military
barracks in 1989 and allegations of ill-treatment of detainees by
the police in the capital and in Chaco and Mendoza provinces. In this
connection, attention was drawn to mass media reports of the death
of a 17-year-old person, Sergio Gustavo Duran, at Police Precinct
No. 1 in Moron, Buenos Aires. Members of the Committee observed that
intensified measures were required to deal with those situations and
that those measures should focus on compensation of the tortured;
punishment of the torturers; and education of the public in general
and police and doctors in particular.
the implementation of article 2 of the Convention, members of the
Committee requested further information on the new Code of Penal Procedure,
especially with regard to establishment of mechanisms for its application.
They also noted that under that Code the period of incommunicado detention
had been reduced from 10 to 3 days and they expressed concern both
at the continued practice of incommunicado detention and at the inadequacy
of the advance access to a lawyer as a means of protecting persons
in such circumstances. In addition, members of the Committee recalled
that derogations from certain provisions of the Convention were not
allowed in times of state of emergency or siege, and asked for more
information on the actions taken by Argentina to ensure conformity
with its obligations in this regard.
regard to article 4 of the Convention, members of the Committee requested
further information on the punishment of torturers, especially as
information contained in the report indicated that in one case the
punishment provided for in article 144 (3) of the Penal Code had not
been applied to the person found guilty of the crime of torture. In
addition, attention was drawn to information about the participation
of doctors in cases of torture and the need to punish such practitioners.
Moreover, members of the Committee expressed concern as to whether
the presidential pardon of October 1989, as applied to military officers
who had committed human rights violations under the previous regime,
was in strict compliance with the Convention. In illustration of this
point, mention was made of two cases where investigations had not
been pursued or where clemency had been granted before the holding
of a trial.
article 10 of the Convention, members of the Committee emphasized
the importance of introducing a medical ethics component into medical
curricula as a means of preventing the practice of torture by doctors.
regard to article 11 of the Convention, more information was sought
as to the arrangement existing in Cordoba city by which lawyers could
be present in all police stations and whether this arrangement was
to be extended to other parts of the country.
101. In connection
with article 12 of the Convention, members of the Committee drew the
attention of the Government of Argentina to information received from
Amnesty International and other non-governmental organizations on
the alleged practice of torture during the period 1989 to 1991 and
to their concern that some of the lower levels of the judiciary were
failing to fulfil their obligations with regard to investigating into
acts of torture. In this light, information was requested on the progress
being made in police and judicial investigations into all those allegations.
article 13 of the Convention, members of the Committee sought additional
information as to its implementation in practice, particularly with
regard to a specific case brought before the court in the province
respect to article 14 of the Convention, members of the Committee
requested further information on the provision of compensation to
victims of torture. They also requested clarification as to whether
legal provisions existed for paying compensation to the families of
persons who had disappeared and to persons who had been detained and
held at the disposal of the National Executive. Moreover, they asked
why applications for compensation had to be submitted to the Ministry
of the Interior for approval and whether judicial appeals against
the Ministry's decision had been provided for. It was also stressed
that, in addition to financial compensation, it was important for
victims of torture to receive moral and medical compensation and treatment
for the injury they had suffered.
to the questions raised with regard to the legal framework for the
application of the Convention, the representative of the reporting
State explained that international conventions applied throughout
the federal territory of Argentina and provincial jurisdiction was
transferred to the federal level. International instruments ratified
by Argentina were directly applicable in the courts in the same way
as domestic legislation and took precedence over it. In addition,
he explained that, under new legislation, the system in force in the
city of Cordoba, whereby lawyers could be present in police stations,
would be extended to all parts of the country. He also indicated that
the 1853 Constitution of Argentina fully guaranteed the rights of
individuals and the freedoms of citizens. Its article 18 prohibited
the use of ill-treatment and torture and plans to amend that text
were in the early stages. Concerning the procedure for the appointment
of judges, the representative informed the Committee that judges were
nominated by the executive through the Ministry of Justice and appointed
by agreement of the Senate. To strengthen that procedure, a Council
for the Judiciary had been set up, composed of officials who took
part in the appointment and dismissal of judges. Regarding the matter
of national institutions established for the protection of human rights,
the representative informed the Committee that two governmental bodies
existed to which non-governmental organizations and citizens could
make appeals in the event of alleged violations of human rights. One
was the General Department of Human Rights and the Status of Women
of the Ministry of Foreign Affairs and Worship and the other was the
National Department of Human Rights of the Ministry of the Interior.
Those two bodies could refer complaints to the courts. The report
of the National Department of Human Rights of the Ministry of the
Interior indicated that his Government was eager to conduct more efficient
investigations of cases of unlawful coercion.
reference to allegations of ill-treatment and torture reported by
non-governmental organizations, the representative stated that he
did not have the information necessary to provide a detailed reply.
However, if Amnesty International had specific offences to denounce,
it should apply to the appropriate authorities so that, if enough
evidence could be collected to warrant a serious investigation, the
cases would be followed up in the normal way and brought before the
courts. He also indicated that his Government would reply in writing
to the request for clarifications about the death of Sergio Gustavo
Duran. In addition, he stated that the military personnel and police
officers guilty of acts of torture at La Tablada in 1989 had been
tried under ordinary law because the Defence of Democracy Act did
not provide for penalties for such acts. As yet, not all sentences
had been handed down and the Government of Argentina would communicate
all relevant information to the Committee as soon as possible.
article 2 of the Convention, the representative referred to the new
Code of Penal Procedure and explained that the Argentinian legal system
had recently been thoroughly reorganized and that the relevant organization
act had established a number of new courts. He also indicated that
it had been necessary to proclaim a state of siege in the country
on two occasions as a result of social tensions during the establishment
of a fully democratic regime. The state of siege had not laster more
than 30 days and only freedoms of assembly and movement had been restricted.
The state of siege had been declared only in certain regions of the
country and article 4, paragraph 2, of the International Covenant
on Civil and Political Rights, prohibiting derogation from certain
fundamental rights, had been fully respected.
regard to article 4 of the Convention, the representative indicated
that he would refer to the competent authorities the question raised
on the application of article 144 (3) of the Penal Code in the case
mentioned in the report. He also agreed that doctors involved in cases
of torture should not be allowed to go unpunished. With regard to
the questions raised about the compliance of the presidential pardon
of October 1989 with the provisions of the Convention, the representative
stated that pardon removed the penal consequences without wiping out
an offence or the infamy attached to it.
108. In connection
with article 10 of the Convention, the representative informed the
Committee of the ethical training provided to doctors in Argentina.
He also indicated that the University of Buenos Aires had created
a chair of human rights in the School of Medicine and other faculties
and that Argentina was one of the most advanced countries in that
article 11 of the Convention, the representative explained that prohibition
of access to persons being held in detention applied to members of
the family and other persons, not to defence counsel. The new Code
of Penal Procedure, which had reduced the period during which a person
could be held incommunicado, provided that the first right of a detained
person was to communicate with a lawyer, within 10 hours of his arrest.
110. In connection
with articles 12 and 13 of the Convention and the concerns raised
as to the non-fulfilment of the judiciary's obligations in investigating
into acts of torture, the representative stated that judges had to
enforce the laws as from the day following their publication; a judge
who failed to do so was dismissed. With regard to the case brought
to court in Mendoza, the representative informed that Committee that
all the senior police officers of that Province had been dismissed.
regard to article 14 of the Convention, the representative stated
that the families and relatives of persons who had disappeared before
10 December 1983 received tax-exempt pensions once their claims had
been made to, and approved by, a competent court. To date, 5,000 persons
had received such pensions. In addition, under Decree No. 70/91, a
compensation scheme had been set up for persons who had been detained
and held at the disposal of the National Executive and for civilians
who had been detained on the orders of the military courts before
10 December 1983. Such persons could claim for the benefits of the
Decree provided that they had not received any compensation as a result
of a court judgement. If a claimant's case did not correspond to the
conditions of compensation laid down by the law, the claimant could
appeal to the ordinary courts, which were not bound by pre-established
time limits for the amount of compensation to be awarded. Additionally,
victims who considered the compensation to be inadequate could appeal
directly to the State or court. Under article 3 of Act No. 24,043,
a claimant for compensation benefit could appeal against the partial
or total rejection by the Ministry of the Interior of his application
within 10 days to the Federal Administrative Court, which must then
rule on the matter within 20 days.
Conclusions and recommendations
Committee expressed its thanks to the Government of Argentina for
having submitted its second periodic report within the time period
stipulated in article 19 of the Convention and for the information
and clarifications provided by the representative of the State party.
The Committee also expressed its appreciation for the efforts made
by Argentina to improve the human rights situation in the country,
in particular, in the area of laws which relate to the purposes of
aforementioned efforts notwithstanding, the Committee expressed its
deep concern at the continuing vestiges of the former regime, at the
disturbing use of violent methods and torture in many cases, and at
the clemency and impunity enjoyed by the perpetrators of such acts
contrary to the requirements of the Convention.
Committee expressed the hope that the Government of Argentina would
redouble its efforts to take all legislative, judicial, administrative
and other measures which would be sufficiently effective to halt and
prevent the practice of torture and of all cruel, inhuman or degrading
treatment or punishment and, where necessary, to punish the perpetrators
of such acts.
Committee further expressed the hope that the Government would submit
to it as soon as possible the additional information requested by