University of Minnesota

Conclusions and recommendations of the Committee against Torture, Argentina, U.N. Doc. A/48/44, paras. 88-115 (1993).



Convention Abbreviation: CAT


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 bodies.

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.

91. With 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.

92. Concerning 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.

93. With 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.

94. With 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.

96. Members 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.

97. Concerning 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.

98. With 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.

99. Concerning 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.

100. With 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.

102. Concerning 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 of Mendoza.

103. With 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.

104. Replying 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.

105. With 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.

106. Concerning 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.

107. With 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 regard.

109. Regarding 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.

111. With 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

112. The 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 the Convention.

113. The 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.

114. The 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.

115. The Committee further expressed the hope that the Government would submit to it as soon as possible the additional information requested by its members.

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