Eastern Republic of Uruguay submitted its initial report in July
1991 and it was considered by the Committee at its seventh session
in November 1991.
under article 19, paragraph 1, of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, Uruguay
is submitting the periodic report covering the years 1991-1995 for
consideration by the Committee. The annexes referred to in the report
may be consulted in the files of the United Nations Centre for Human
report was prepared by the Human Rights Section of the Directorate
for Special Affairs of the Ministry of Foreign Affairs with the
cooperation of public and private institutions working in the field
of the protection and promotion of human rights at the governmental
or non-governmental level. These include:
institutions: Supreme Court of Justice, Ministry of Education and
Culture, Ministry of the Interior;
institutions: Service Peace and Justice, Institute for Legal and
Social Studies of Uruguay (IELSUR).
application of the Convention in domestic law
4. In its
comments on the initial report concerning article 1, the Committee
expressed doubts about how the direct application of international
instruments was ensured in the domestic sphere.
following considerations may be noted in this regard. The national
Constitution now in force contains no specific provision dealing
with the question of the relative status of national and international
instruments. In the absence of such a provision, the solution has
been sought in the legal literature. Most Uruguayan legal writers
consider that international treaties ratified and in force in Uruguay
have a normative status identical to that of ordinary law. The arguments
in support of this conclusion relate to the way in which international
treaties are approved in the domestic sphere. Treaties signed on
behalf of the State by its agents are submitted for approval to
the Legislature. According to article 85, paragraph 7, of the 1967
Constitution, the Legislature is competent: "To declare war
and to approve or disapprove, by an absolute majority of the full
membership of both chambers, the treaties of peace, alliance or
commerce and conventions or contracts of any nature which the Executive
may make with foreign Powers".
in order to become effective in the domestic sphere, signed treaties
must be approved by the legislative body. The act whereby a treaty
is approved has the same juridical nature as any enacted law. It
is therefore held that acts approving treaties have no other character
than that of an ordinary law. This indicates that the rules contained
in the treaty are of lower rank than the Constitution. Once ratified,
international instruments are applied by the national courts as
obligatory domestic norms.
of a separate offence designated as "torture"
7. As stated
in the initial report, the Uruguayan Bar Association submitted a
"Crime against humanity" bill to the Parliament in 1985.
Articles 7 and 8 of this bill were aimed at adapting national legislation
to the obligations arising from the relevant international instruments.
Between the time of its submission and 1989, when it was shelved,
the bill never came before the full Legislature.
8. In 1991
the bill was reintroduced at the request of a deputy. During this
period, it was improved with the input of professionals and academics,
who substantially enhanced the original draft. Annex 1. Statement
by Rodolfo Schurmann Pacheco and Beatriz Rovira de Pessano of the
Uruguayan Bar Association. Stenographic record of the meeting of
the Human Rights Commission of the Chamber of Representatives on
6 August 1992.
2. Statement by Javier Miranda, official guest. Stenographic record
of the meeting of the Human Rights Commission of the Chamber of
Representatives on 29 April 1993.
3. Statement by Fernando Urioste, coordinator and lecturer in human
rights at the Faculty of Law. Stenographic record of the meeting
of the Human Rights Commission of the Chamber of Representatives
on 17 June 1993. Nevertheless, a further parliamentary session
ended without it being considered in plenary by the Legislature.
Finally, on 5 March 1995, at the request of a deputy, the bill was
introduced once again and is now awaiting consideration by the Legislature.
The text submitted to the chambers and an explanatory introduction
to it are annexed. Annex 4. Bill on crimes against humanity,
Actas de la XLIV Legislatura, No. 2,471,
vol. 696, pp. 74-79.
measures proposed to avoid the occurrence of torture in detention
9. A concern
raised by the Committee during its consideration of the initial
report was the lack of a specific mechanism for judicial supervision
of the custody of detainees in prisons. In this regard, several
bills that would make it possible to remedy this situation are under
of all, an Honorary National Commission for the Amendment of the
Code of Penal Procedure was established by Act No. 15,844 of 1990.
The Commission consisted of three members designated by the Executive,
two by the Universidad de la República and two by the Uruguayan
Bar Association. Eminent criminal jurists served on this body, among
them Ofelia Grezzi, Juan Mario Mariño, Adolfo Gelsi Bidart and Edgar
its final report, the Commission pointed to several of the main
human rights instruments, including the Universal Declaration of
Human Rights, the International Covenant on Civil and Political
Rights and the American Convention on Human Rights, as sources of
law on which it had drawn in its drafting work.
of the central reforms proposed in the draft new Code of Penal Procedure
consists in the establishment of courts of enforcement and supervision.
These judicial bodies will have exclusive competence for the enforcement
of judgements in criminal cases and the supervision of detention
facilities. They will thus be responsible, in respect of the execution
of enforceable sentences, for the consideration of pleas for conditional
release, supervision of the execution of alternative punishment,
hearing of applications for early release, termination of accessory
penalties, declaration of the abatement of an offence in the case
of a suspended sentence or revocation of the right to release from
regards the tasks of supervision, article 301 of the proposed text
"The court of
enforcement and supervision shall in particular have responsibility
the rights of inmates serving a sentence or subject to a security
measure and reporting any abuses or irregularities that may occur
in the observance of the rules governing the prison system;
as sole authority, at the suggestion of the director of the institution,
on disciplinary sanctions lasting more than 10 days;
with advice from the director of the institution and from such centres
of classification, diagnosis and treatment as may exist, on classification
and promotions or demotions in grade;
any petitions or complaints made by inmates acting on their own
behalf or through counsel regarding the prison regime and treatment
where this affects fundamental rights, and reporting to the competent
all leave of absence for work or home visits;
the transfer of an inmate to another penal institution;
hospitalization. In emergency cases, notice must be given immediately
after admission for such hospitalization to be approved;
a prisoner's departure from the country under the conditions provided
for in article 203;
visits to or inspections of penal institutions whenever it deems
necessary and at least once every 30 days;
the respective files at least twice a year until the inmate has
served his sentence."
in April 1990 a political body with parliamentary representation
put before the Chamber of Representatives a bill proposing the creation
of an office of parliamentary commissioner with exclusive competence
in prison matters. Annex 5. Record No. 1097, December 1993,
Human Rights Commission. Bill on the appointment of a parliamentary
commissioner. The commissioner would have terms of reference
similar to those of an ombudsman, with an advisory and executive
role concerning the rights of persons deprived of their liberty
in connection with a judicial proceeding.
functions of the new body include:
reports about violations of the human rights of prisoners;
out agreed or unscheduled general and special inspections;
recommendations to the prison authorities;
to the legislative General Assembly.
review of the lawfulness and propriety of judicial decisions is
expressly excluded in order to safeguard the principle of separation
bill was approved by the Human Rights Commission and was submitted
to the plenary of the Chamber of Representatives on 14 July 1994.
In the general discussion, comments were made on some provisions
that were thought likely to affect the constitutionality of the
proposed text. Annex 6. Comments on the bill. Diario
de Sesiones de la Cámara de Representantes, 14 June 1994,
p. 235. For this reason, it was judged appropriate that a more thorough
study should be undertaken by the Commission on the Constitution,
Codes, General Legislation and Administration of the Chamber. The
Commission declared itself generally in favour of the bill, save
for some specific provisions relating to the institutional setting
of the new entity.
its part, the Inter-party Commission on Public Security, meeting
at the initiative of the then President-elect of the Republic, in
February 1995 approved by a majority the initiative to appoint a
parliamentary commissioner for issues relating to prisons.
the light of these proceedings, the bill was completely revised
and submitted again to the plenary on 13 March 1995. Annex
7. Record No. 18 of the Chamber of Representatives. It is
expected to be put to the vote shortly. Annex 8. Bill submitted,
Acta de Sesiones de la Cámara de Representantes,
No. 2,473, vol. 696, pp. 160-165.
measures designed to prevent torture
the administrative measures adopted to prevent acts of torture,
the information given in the initial report may be supplemented
with reference to the work of the Police Attorney's Office (Fiscalía
Letrada Policial), which is concerned with following up on and
attributing administrative responsibilities for police conduct.
This mechanism represents a step forward in the prevention and punishment
of torture and other cruel, inhuman or degrading treatment or punishment.
Police Attorney's Office was established by Act No. 16,170 of 28
December 1990 with the task of providing legal advice to the Ministry
of the Interior, the administrative authority responsible for the
national police. The Office is empowered to receive complaints and
suggest the administrative or functional corrective measures it
deems appropriate. A statistical table describing action taken by
it from its inception up to May 1995 is annexed. Annex 9.
Statistics on action by the Police Attorney's Office.
to non-governmental sources, approximately 18 police officers under
the responsibility of the Ministry of the Interior were prosecuted
in 1994 for offences against the physical integrity of persons under
arrest, in detention or on trial.
undertaken by non-governmental bodies
23. A working
group was established at the non-governmental level in 1990 to analyse
the national prison system. The following organizations are represented
in the working group: Service Peace and Justice, the Institute for
Legal and Social Studies of Uruguay, the Bar Association, the Medical
Association of Uruguay, the Medical Federation of the Interior,
the Coordinating Committee of Psychologists, the Association of
Social Workers, the Catholic Church, the Methodist Church, the Coordinating
Committee for Reintegration of Social Prisoners and the Centre for
group's methods of work include systematic visits to penal institutions,
with the support of a multidisciplinary team comprising a doctor,
a social worker and a lawyer. The findings of the in situ
visits Annex 10. The voices of silence. Working Group on the
National Prison System. enabled the team to draw up a series
of recommendations which were submitted for the consideration of
the legislative, judicial and executive branches. This work has
had a significant impact on the public authorities. In the legislative
body there is a bill proposing the appointment of a parliamentary
commissioner for the prison system charged with overseeing, receiving
reports about and investigating the general situation of prisons
and prisoners. In the judicial sphere, the Supreme Court has urged
the application of alternative measures to deprivation of liberty
and institutionalization of offenders. Furthermore, at the Executive's
initiative, the Parliament has established a commission under the
Ministry of the Interior to study and analyse the issue of the prison
system. This provides a common forum for diagnosis and problem-solving
in regard to prison matters, with joint governmental and non-governmental
defence of "due obedience" in Uruguayan law
the consideration of the initial report, Mr. Gil Lavedra expressed
concern about the treatment of exemption from criminal liability
in Uruguayan positive law and its impact on the issue of torture.
As explained in the initial report, the Uruguayan Penal Code regards
obedience to a superior as a justification in respect of an offence.
doctrine and jurisprudence consider that obedience provides a ground
for exemption from criminal liability and hence for not holding
the subordinate culpable.
the codifier", argues Milton Cairoli, "obedience to a
superior is a form of compliance with the law, constituting a reason
for exonerating the official". Milton Cairoli, Curso
de Derecho Penal Uruguaya, vol. I, p. 306. For this to
be so, certain objective and subjective requirements must be satisfied.
objective requirements are, first, that the order must emanate from
an authority. The authority to which the rule refers is understood
to be the "public" authority, cases of private or family
ties not being covered by this hypothesis. This conclusion derives
from the inclusion of the term "administrative rank" in
the last part of article 29 of the Uruguayan Penal Code. Cited
in document CAT/C/5/Add. 27, para. 48. Secondly, the order
must be direct and not general, i.e. it must be issued by a superior
to a subordinate orally or in writing. As regards the nature of
the order, four situations may be distinguished: (a) legitimate
order with lawful content; (b) legitimate order with unlawful content;
(c) illegal order of which the subordinate did not realize the illegality;
and (d) manifestly illegal order which nevertheless has to be executed
because acting to the contrary would have grave consequences for
the subordinate. In the first two cases there is no statutory offence
and hence the official carrying out the order is not subject to
criminal punishment of any kind. In the third case, if the error
is inevitable and not culpable, the official is relieved of responsibility.
In the fourth case, there is coercion on the part of the superior
and therefore the "obedience" of the subordinate becomes
a means of justification.
subjective element consists in the possibility that the subordinate
may interpret the order. This element will be evaluated by the judge
on a case-by-case basis, and for that purpose he will take account
of three elements:
subordinate's administrative rank;
level of education;
gravity of the act entailed by the execution of the order.
No. 12,754 of the Administrative Court Annex 11. Judgement
No. 12,754 of the Administrative Court. is cited for the purpose
of illustrating to the Committee how the Uruguayan courts evaluate
the limits of "due obedience". This case relates to the
conduct of a public official who, under the de facto Government,
was entrusted with diplomatic functions in the city of Porto Alegre
and who, in the discharge of those functions, carried out acts contrary
to human rights.
the performance of his duties, the official committed serious irregularities
and was dismissed by the democratic Executive. With respect to the
tasks performed, he argued in his defence that he had been carrying
out orders from a superior.
response to these arguments, the Court stated: "Although the
perpetrator acted under direct orders from the ambassador, his actions
were blatantly excessive, reaching totally abnormal limits ...".
"Furthermore, the perpetrator's claim of due obedience is to
be dismissed entirely, since the concept of obedience cannot include
any kind of violation of rules. As has been maintained by the Italian
court of cassation, a limit to the duty of obedience consists in
the manifest illegality of the order, in which case the subordinate
has 'not the right but the duty to disobey'. In the case before
the court, the order did not call for the performance of the acts
proven, and had he been given such an order the perpetrator would
have had the duty to disobey."
is worth noting, furthermore, that present article 46 of the Penal
Code, as amended by the entry into force of Act No. 16,707 of 12
July 1995, known as the Citizens' Security Act, provides that the
responsibility of the official is mitigated by:
with the law and obedience to a superior. The authority of law
and obedience to a superior, when an error may be presumed in
the interpretation of the former, or any of the requirements
which characterize the latter is lacking."
it should be noted that the bill before Parliament designed to introduce
new offences, such as torture, enforced disappearance and political
murder, contains a special provision intended to eliminate due obedience
as a justification in cases of crimes against humanity. Document
reproduced in annex 4.
regards the levels of application of this provision in the domestic
sphere, there are few legal or administrative precedents. However,
the judgements delivered by the Second and Third Rota Criminal Appeal
illustrative. Annex 12. Judgements No. 12,433, Lizarralde
Izaguirre case, and No. 12,434, Goitía Uruzurraga case. La
Justicia Uruguaya, vol. CVII, 1993.
May 1992, the Uruguayan police detained several foreign citizens
of Spanish nationality resident in Uruguay for their involvement
in the commission of offences consisting in the forgery of documents
bearing a public seal in Uruguayan territory. In the same month,
the Kingdom of Spain requested the arrest for purposes of extradition
of the said persons, who were accused of having committed multiple
offences against human life and the security of the State as members
of the Basque separatist organization (ETA).
extradition request was made under an old extradition treaty between
Uruguay and Spain dating from 1885.
judges considering the matter prima facie rejected the request for
extradition in five cases and granted it in three of them. The judgements
delivered in this connection set forth Uruguayan doctrine and jurisprudence
in regard to international judicial cooperation. See Annex
the judgement delivered by the Third Rota Criminal Appeal Court
on 23 July 1993 confirms that treaties take precedence over domestic
law by stating:
has the duty to abide by the provisions of a treaty and domestic
laws may not be invoked against them ...". "Such provisions
must be fulfilled, even if they do not suit us, unless the treaty
is denounced." See Annex 12.
"The rules of
domestic ordinary positive law cannot prevail over the provisions
of a treaty, which constitutes at once a norm of international
law and a norm of domestic law and which as such, by virtue
of its international force deriving from a convention and as
a special norm, cannot be invalidated by one that is of lower
unilateral status and, moreover, of a general character."
Annex 13. La Justicia Uruguaya,
vol. CVII, 1993, case No. 12,434, pp. 444-453.
the judicial decision allowing the extradition of the three aliens
came into effect, the counsel for the defence lodged an appeal with
the Ministry of the Interior, calling on it not to hand over the
said persons for reasons connected with the protection of their
response to this request and the concern expressed by some international
human rights organizations, the Minister for Foreign Affairs of
that time Sergio Abreu. remained in permanent contact
with the Spanish Minister for Foreign Affairs, from whom he obtained
assurances concerning respect for the human rights of the extradited
persons when they were handed over to the Spanish police authorities.
On direct instructions from the President of the Republic, the Uruguayan
Ministry of Foreign Affairs arranged for a Uruguayan Red Cross doctor
to accompany the detainees on the flight back to Spain. In this
way, the Government of Uruguay fulfilled the requirements of article
3 of the Convention, taking all the measures within its power to
ensure and guarantee that no detained person's fundamental rights
would be infringed. The text of the official Uruguayan press release
on the implementation of the extradition orders is annexed to this
report. Annex 14. Press release of 31 August 1994.
definition of torture
already stated in paragraphs 7 and 8, Uruguayan criminal law does
not contain a separate offence designated as torture. A bill submitted
in this connection has been pending since 1985.
proposed legislation seeks to fill the gaps in domestic law by providing
a definition of torture covering three different forms of conduct:
by which physical or mental suffering is inflicted in order to obtain
information or for the purpose of intimidation;
to cruel, inhuman or degrading punishment or treatment;
application of treatment tending to depersonalize or diminish the
physical or mental capacity of the victim, but without causing pain
to body or mind.
of the bill over the years appears to have centred on the accepted
Uruguayan penal doctrine in this matter which, together with the
theory of minimal criminal law, questions the appropriateness of
introducing new types of offence.
of the reasons frequently put forward is that torture is a historical
phenomenon which has been observed since the time of the Inquisition.
"Spontaneous" torture, by persons who are not specialized
in applying it, can be eradicated if the control mechanisms of a
law-governed democratic system work effectively. "Specialized"
torture, as a systematic practice of human rights violations and
as institutionalized violence during the periods of dictatorship
in Latin America, has disappeared since the restoration of democracy.
this view, the problem lies not in establishing new types of offence
but in tightening controls over action by the officials responsible
for enforcing the law. Other eminent Uruguayan jurists believe that
the country's Penal Code contains in various articles all the constituent
or material elements that characterize the offence of torture under
the Convention. Inasmuch as the penal system provides for, prosecutes
and punishes any act against a person's physical or mental integrity
committed by a public official or by a private individual, whatever
may have been the motive, it seems irrelevant to establish a separate
type of offence. In practice, they contend, no proven case of torture
has gone unpunished for want of such a specific offence.
non-governmental organizations such as the Institute for Legal and
Social Studies of Uruguay (IELSUR) and Service Peace and Justice,
as well as professors specializing in criminal law, Gonzalo
Fernández, professor of criminal law, article entitled "La
represión penal de la tortura en el marco de la Convención de Naciones
Unidas", Revista IELSUR, No. 6, July
1990. have made a public appeal to the Parliament in favour of classifying
torture as a separate offence.
non-governmental organizations consider that Uruguayan law should
criminalize acts which involve violations of human rights. This
would clearly define such acts and give expression to the political
will of the democratic State to prosecute and punish practices that
are harmful to human rights. The introduction of a separate offence,
in their view, should be accompanied by adequate penalties to punish
acts involving torture or ill-treatment more severely.
view is taken, all segments of Uruguayan society agree that the
country's penal system performs its role of protecting the human
person as the single overriding purpose of criminal justice.
the description of the offence in question - torture - the qualifying
adjective of severity ("severe pain or suffering") used
in article 1, paragraph 1, of the Convention has been deliberately
deleted from the bill referred to above. The sponsors of the bill
believe this to be justified in view of the difficulties of appreciation
that are inherent in this qualifier.
to the person who performs the act, the aim is to overcome the difficulties
posed in the national legislation by making an indeterminate subject
("any individual") the perpetrator of the offence and
by increasing criminal liability where public officials or members
of the medical profession are concerned.
with regard to the penalty, a severe custodial sentence of between
two and eight years' rigorous imprisonment is provided for.
punishment for acts involving torture
annexed legal case Annex 15. Judgement No. 12,934 of the First
Rota Appeal Court. shows how a criminal court of second instance
reversed a decision rendered by a departmental criminal judge and
instead ordered a police officer and a commissioner under the responsibility
of the Ministry of the Interior to be brought to trial on charges
of causing injury and of failing to act, respectively, in connection
with an offence against a citizen's physical integrity.
the criteria of healthy criticism, the court found that the police
officers involved had been responsible for causing physical and
moral harm, the offence being defined as wilful serious injury.
case involved a mock execution and a jawbone fracture resulting
from the application of force about the neck, which are obviously
intentional acts inflicted in order to cause suffering and whose
purpose was to obtain information about those responsible for the
beating of a police officer the night before.
speaking, torture occurred, although the absence of a specific offence
designated as "torture" obliged the judge to apply a different
categorization, i.e., wilful serious injury. However, the acts were
still penalized and punished with heavy sentences by the competent
of the penalty
the initial report was considered, Mr. Gil Lavedra CAT/C/SR.95,
para. 9. said that the penalty incurred for abuse of authority
lacked the severity required by article 4, paragraph 2, of the Convention.
We believe that a number of aspects of this issue merit clarification.
offence of abuse of authority, which is covered by article 286 of
the Uruguayan Penal Code, concerns the conduct of public officials
who carry out "arbitrary acts or punishment not authorized
by the regulations" against detainees. This typically involves
ill-treatment, which may be assimilated to other cruel, inhuman
or degrading treatment or punishment in the terminology of article
16 of the Convention. However, if the official's action causes physiological
damage to the detainee's body or mind, the applicable category is
that defined in articles 316 et seq. of the Penal Code, which cover
the different types of offences involving injury and provide for
distinctly harsher penalties.
cases covered by article 286 include unjustified inspections, striking
the cell bars with truncheons, refusal to allow visits, unjustified
if such ill-treatment leads to serious or extremely serious personal
injury, the penalty ranges from 20 months' ordinary imprisonment
to six years' rigorous imprisonment in the first case and from 20
months to 8 years in the second. If the offence is committed by
a "public official responsible for the administration of a
prison, for the custody or transfer of a person under arrest or
convicted", the penalty is increased by one third.
provision of article 320 bis of the Penal Code "If
the offence has been committed by the public officials referred
to in article 286 against the victims described therein, the penalty
shall be increased by one third." was incorporated into
the current Code by Act No. 15,068 of 10 July 1972, known as the
State Security and Internal Order Act. At a historical juncture,
when Uruguay was facing serious problems of political instability,
in particular following the accusations made in the Legislative
Assembly concerning the use of torture in detention centres in 1971
and 1972, Parliament introduced this provision whereby the use of
physical pressure against persons deprived of their liberty constitutes
a special aggravating circumstance in offences involving injury.
to say, there is a reliable history behind the adoption of the criminal
provision to punish more severely those public officials who physically
abuse persons deprived of their liberty for any reason.
such cases the increase in the penalty entails loss of the right
to release from custody and of the possibility of obtaining a conditional
64. A conditional
release may not be granted under Uruguayan domestic law if the offence
stated in the indictment is one that carries a minimum penalty of
Articles 5, 6 and 7
these articles please refer to the initial report, as there has
been no change in the relevant legislation.
conformity with article 10, paragraph 7, of the Penal Code,
"All other offences coming under Uruguayan jurisdiction by
virtue of special domestic provisions or international conventions."
all offences coming under Uruguayan jurisdiction by virtue of special
domestic provisions or international conventions are subject to
this regard, and where paragraph 7 in particular is concerned, our
Penal Code follows the doctrine of "universality" since
it affirms that Uruguayan law applies to acts which by their seriousness
offend and injure higher interests.
Articles 8 and 9
considers that extradition is an effective means of judicial cooperation
in the fight against crime.
obligations entered into under bilateral or multilateral treaties
constitute the law with which the contracting States must comply.
Even in the absence of a treaty and despite the fact that the criminal
law sets definite limits to the procedure of extradition, the Uruguayan
courts have interpreted these provisions with flexibility taking
into account the seriousness of the offence and of the damage caused
by the criminal act. Although there are no legal precedents relevant
to the application of article 8 in Uruguay, the State pursues a
policy of permanent cooperation in the sphere of international judicial
may be illustrated by the doctrinal opinion of the First Rota Criminal
Appeal Court in a case where extradition was granted despite the
absence of a treaty. Annex 16. La Justicia Uruguaya,
vol. CX, case No. 12,724, pp. 22-29.
initial report described the technical cooperation agreement signed
in 1992 between the Centre for Human Rights and the Ministry of
Foreign Affairs of the Eastern Republic of Uruguay. Unfortunately,
the agreement encountered difficulties in implementation and has
been suspended. Nevertheless, it was possible to organize three
significant events aimed at promoting and providing training in
the application of the international human rights instruments.
first of these events was held from 20 to 27 July 1992, and provided
training for prison officers in Uruguay's three main prisons (the
Santiago Vázquez penitentiary, the Libertad prison and the women's
prison). The session was held at the trainees' regular place of
work and was attended by a total of 66 officials:
of senior rank (governors);
seminar covered the following topics:
concept of human rights and international systems of protection,
taught by Marcelo Cantón (a lecturer from the Faculty of Law);
rights in domestic law, the Constitution and statutes. Application
of international standards in domestic law, taught by Ofelia Grezzi
(a public prosecutor);
role of the International Committee of the Red Cross in protecting
the rights of detainees, taught by Prene Delacoste (ICRC subregional
instruments for the protection of the human person: the International
Covenant on Civil and Political Rights and the American Convention
on Human Rights, taught by Hebert Arbuet Vignali (a lecturer from
the Faculty of Law);
instruments for the protection of the human person: the Convention
against Torture, taught by Hugo Lorenzo, a United Nations expert;
Minimum Rules for the Treatment of Prisoners, Code of Conduct for
Law Enforcement Officials and current national prison regulations,
taught by Carlos Uriarte (a lecturer in criminal law at the Faculty
of the seminar confirmed the need for further training in these
areas, with particular reference to Ministry of the Interior staff
working as prison officers.
second course, attended by judges, court clerks and defence lawyers
from Montevideo and Uruguay's interior, was held from 6 to 8 November
seminar addressed the following topics:
international instruments for the protection of human rights (Universal
Declaration and American Declaration, United Nations Covenants,
Pact of San José, Convention against Torture, Convention on the
Rights of the Child), taught by Héctor Gros Espiell, Minister for
of international law in the domestic sphere, taught by Judge Bernadette
system and regional system for the protection of human rights within
the United Nations and the Organization of American States, taught
by Belter Garré from the Faculty of Law;
of the Convention on the Rights of the Child in the sphere of inter-American
law, taught by Eduardo Tellechea of the Faculty of Law;
for individual petitions to various international human rights bodies,
taught by Fernando Urioste of the Faculty of Law;
of decisions taken by the international human rights bodies and
their enforceability in the domestic sphere, taught by José María
Gamio of the Faculty of Law.
seminar concluded with the adoption of a set of recommendations
No. 1: International human rights norms should be applied directly
by the courts in the Uruguayan domestic sphere, with precedence
being given to those which afford greater protection of fundamental
2: In order to avoid problems of interpretation, steps should
be taken to include in the Constitution of the Republic a provision
stipulating that constitutional and legal rules for the protection
of human rights are to be interpreted in conformity with the
Universal Declaration of Human Rights, the American Declaration
on the Rights and Duties of Man and such international human
rights treaties and agreements as have been ratified by Uruguay.
3: A meeting covering similar topics and for a similar audience
should be held to analyse ways of better protecting the rights
and guarantees of detainees, accused persons, convicted prisoners
and persons serving sentences, in the light of national procedural
and criminal norms and practices and of the provisions of the
American Convention on Human Rights adopted at San José, Costa
Rica, as well as of other international human rights instruments.
4: The juridical aspects of international protection for human
rights should be disseminated as widely as possible. This includes
knowledge of the relevant international instruments by which
Uruguay is bound and of the relevant domestic and international
case law. It is also important to publicize the analyses of
legal doctrine that concern, in particular, the impact on domestic
law of the international human rights instruments which are
binding on Uruguay.
No. 5: The competent authorities - the Ministry of Foreign Affairs
and the Legislature - should be called upon to expedite the
procedures for approval of the inter-American conventions on
conflicts of law in respect of the adoption of children, concluded
at La Paz, Bolivia, on 24 May 1984 and already ratified by Colombia
and Mexico, as well as on maintenance obligations and on the
international return of children, concluded at Montevideo on
15 July 1989, bearing in mind that the Council of the Southern
Cone Common Market - MERCOSUR (Act No. 01/92, Decision No. 6/92)
has furthermore recommended that the member States of MERCOSUR
ratify the 1989 Inter-American Convention on the International
Return of Children."
a seminar on "Health and rights", primarily intended for
members of the different branches of the medical profession in Montevideo
and Uruguay's interior was held from 18 to 20 December 1992. The
seminar took place in the lecture hall of the Ministry of Foreign
Affairs and was attended by over 20 participants. Annex 17.
Final report of the course held from 20 to 27 July at the Santiago
Vázquez prison complex.
following topics were covered:
concept of human rights, taught by Serrana Sienra (an expert hired
for the cooperation project);
of medical ethics, taught by Gregorio Martirena and Omar Franca;
protection of the rights of persons deprived of their liberty, taught
by Eduardo Lombardi, the Minister of Justice;
role of forensic medicine in detecting ill-treatment;
rights, health and violence against women, taught by Beatriz Balbela;
rights, health and ill-treatment of children, taught by Judge Irma
health and human rights, taught by Yubarandt Bespali, Paulo Alterwain
and Milton Cairoli;
rights, health and work, taught by Raúl Barañano;
in situations of armed conflict, taught by Roberto Puig.
by the State in the sphere of education
training given to police at the National Police College covers the
subject of human rights, including the prohibition of torture and
the criminal and administrative responsibilities deriving from its
use. In addition, the courses for candidates for promotion at the
Higher Police College include practical modules and lectures on
these topics. Furthermore, the recently adopted Citizens' Security
Act Annex 18. Act No. 16,707 of 12 July 1995. contains
various provisions to prevent abuse of authority by the police,
especially through educational measures.
28 of the Act, which amends the Police Organization Act of 22 May
1971, states as follows:
are responsible for ensuring compliance with the laws, regulations,
orders and decisions whose effective observance they are charged
with monitoring; they are also responsible for cooperating with
the judicial authorities and departmental governments. To achieve
these objectives, the police shall employ, under their responsibility,
reasonably appropriate means and shall also consider the opportuneness
of their use."
"In order to
fulfil the institutional objectives and tasks set out in article
2, members of the police shall use weapons, physical force and
any other means of constraint in a rational, progressive and
proportional manner, after first having exhausted the appropriate
deterrent measures available to them in the circumstances. The
Ministry of the Interior shall instruct police personnel in
accordance with the guidelines contained in the Code of Conduct
for Law Enforcement Officials (United Nations General Assembly
resolution 34/169 of 17 December 1979)."
addition, article 33 of the Act empowers the Ministry of the Interior
to coordinate, through the Ministry of Education and Culture, the
National Public Education Administration and other competent agencies,
the conclusion of agreements between the National Police College
and the Universidad de la República and the Universidad del Trabajo
to improve police training.
article 38 of the same Act charges the executive and judicial branches,
within their respective fields of competence, with implementing
ad hoc programmes to provide comprehensive assistance to the victims
of abuse of authority, as well as to their relatives, having due
regard to the relevant international instruments.
General Assembly (the legislative branch) will be informed annually
by the executive branch about the public security situation and
the measures necessary to improve it.
the Committee examined the initial report, a number of experts,
and in particular Mr. Sorensen, See CAT/C/SR.95, para. 35.
expressed their concern at the absence of measures governing the
behaviour of members of the medical profession with regard to torture.
progress has been made in Uruguay in this respect.
establishment of a Committee on Medical Ethics and Academic Conduct,
within the Faculty of Medicine of the Universidad da la República,
Annex 19. Regulations of the Committee on Medical Ethics and
Academic Conduct. as approved by the Council of the Faculty
of Medicine meeting on 12 June 1985, has been supplemented by the
adoption of Decree No. 258/992 of 9 June 1992 by the executive branch.
No. 258/992 Annex 20. Text of Decree No. 258/992 of 9 June
1992. for the first time in domestic law regulates the ethical
standards applicable to medical conduct.
conformity with article 2 of the Decree, doctors are required:
those human rights connected with their professional practice,
and in particular the right to life from the moment of conception".
decree requires the heads of the various departments of the Ministry
of Public Health to disseminate these standards of conduct among
27 April 1985, the medical profession, as represented in the Uruguayan
Medical Association, democratically adopted by a direct vote its
own Code of Medical Ethics. Annex 21. Code of Medical Ethics
of the Uruguayan Medical Association.
2 of the Code states as follows:
the medical profession must care for the health of individuals
and of the community without discrimination of any kind and
must show respect for life and for human rights. It is their
fundamental duty to prevent disease and to protect and promote
the health of the community. Doctors must be inspired by humanitarian
motives. They shall never act so as to give rise to suffering
without medical cause, or cruel, inhuman or degrading treatment,
or to exterminate human beings, or to cooperate in or conceal
violations of physical or moral integrity. As members of the
health service, doctors must take the necessary steps to ensure
that human beings develop in an environment that is healthy
for the individual and society, to which end they shall receive
approved professional training and be guided by the ethical
principles and standards established in this Code."
47 of Chapter V, entitled "Specific ethical problems",
specifically prohibits torture and cruel, degrading or inhuman treatment.
It stipulates as follows:
"In cases of
torture or cruel, inhuman or degrading treatment:
1. Any medical act
that signifies cooperation of any kind in action that is reprehensible
according to the profession's ethical principles is prohibited.
2. The prohibition
shall include active participation, silence and obedience to
orders, concealment, acquiesence or any other conduct that signifies
advising, suggesting, consenting to or assisting in the commission
of acts that are incompatible with the respect and security
to which human beings are entitled.
3. In particular,
direct or indirect professional involvement in acts intended
to exterminate or injure the dignity or physical or mental integrity
of a person is prohibited.
4. Doctors shall
not be present prior to, during or after any procedure in which
torture or other forms of degrading treatment are used, even
as a threat.
5. Full endorsement
is given to the action taken by the Secretary-General of the
World Medical Association (WMA) on 11 September 1981 and the
resolution of the 34th WMA Assembly session, held at Lisbon
on 29 September 1981, concerning the participation of medical
practitioners in the application of the death penalty."
49 lays down the obligation for doctors to inform their association
and national and international organizations of any torture or cruel,
inhuman or degrading treatment of persons for whose medical care
they are responsible.
article 50 stipulates as follows:
who works for military or police institutions must comply with
the same ethical standards as the rest of his colleagues. This
Code of Ethics takes precedence over any regulations."
order to disseminate international and national standards of medical
ethics, the Executive Committee of the Uruguayan Medical Association
has published a compendium of such standards, Annex 22. Compendium
of international standards, codes and declarations. Uruguayan Medical
Association. which is distributed free of charge to all new
students entering the Faculty of Medicine and to those graduating
from it. The Association thereby helps to strengthen the new generations'
knowledge of and commitment to the non-derogable principles which
govern the practice of medicine.
rules and instructions for the treatment of persons subject to any
form of detention or imprisonment are kept under constant review.
A number of these instructions relating to detainees in special
circumstances, including persons in a state of inebriation, are
provided in annex. Annex 23. Police internal regulations and
circulars. In such cases, and regardless of the reason for
the deprivation of liberty, the police are required to bring the
persons concerned to the out-patient service of the Ministry of
Public Health for proper care. In regard to detainees in general,
the use of undue roughness or humiliating behaviour is prohibited.
Articles 12 and 13
already stated in the initial report to the Committee, in Uruguayan
positive law there are various ways of initiating an investigation
into a case of torture or ill-treatment. It will be necessary here
to distinguish the various stages at which the proceeding may be
period of administrative detention
this case, torture may occur in connection with the arrest or immediately
after, when the detainee is held on administrative (police) premises.
the detention may have been ordered by a judge or result from the
enforcement of a police administrative order. In the first case,
when the detainee appears before the judge he may lodge a complaint
of ill-treatment. If he does so, the judge who receives the complaint
is required to initiate an investigation into the alleged acts and
take all the necessary steps to elucidate them (Code of Penal Procedure,
the second case, when the detention is effected pursuant to a police
administrative decision and the individual is released without being
brought before a judge, after his release the victim may ask the
competent judicial authority to determine the relevant criminal
may at the same time lodge a complaint with the Police Attorney's
Office for the police officers involved in the act to be identified.
The Police Attorney's Office is required to investigate the case
and may suggest what it considers to be appropriate administrative
penalties or refer the person or persons responsible to the criminal
the consideration of the initial report, the Country Rapporteur
referred to Decree No. 690/980 (CAT/C/SR.105, paras. 10-11), which
allows the police to hold a suspect in custody without a court order
to obtain information from him, and he made a number of specific
comments in that respect. The Decree is still formally in force,
but the adoption of the Code of Penal Procedure is awaited for the
purpose of effecting its express repeal.
may also occur during a period of imprisonment, either when the
detainee is in pre-trial detention or when he is serving a sentence.
Uruguay's experience, the system of visits to national penal institutions
by judges, on the basis of article 317 of the Penal Code, has proved
an effective means of ensuring that the physical integrity of persons
held in prisons is respected.
this procedure, the judges enter the cell blocks, normally accompanied
by forensic experts and other judicial auxiliaries, and interview
the prisoners in private. During these visits, the judges receive
information and complaints from prisoners on various aspects of
prison treatment. Their report includes all such information and
is submitted immediately after the visit to the prison's administrative
authorities. A copy is also sent to the Supreme Court.
May 1993 a serious riot took place among the prisoners held in the
"Libertad" prison. Named after the town where Uruguay's
largest prison is located.
17 May, in order to restore discipline, the then Minister of the
Interior Juan Andrés Ramírez. ordered a combined operation
by police units involving the transfer of the most dangerous prisoners
to a special floor so as to isolate them from the rest of the prison
population and thereby prevent the riot from spreading, with the
foreseeable violent results.
a number of unofficial accounts suggested that the police had used
excessive measures to stop the riot and that the prisoners had been
subjected to various forms of physical ill-treatment.
June, criminal judges Zulma Casanova, Narro, Lobelcho and Borges
visited the Libertad prison under the procedure provided for in
article 317 of the Code of Penal Procedure.
accounts contained in their reports are provided in annex.
Annex 24. Reports of the visit to prisons.
working group on the national prison system A non-governmental
organization comprising several human rights institutions, academics
and groups of former prisoners. has actively monitored the
situation in prisons and made a number of suggestions on the basis
of a multidisciplinary approach to improve the current system.
of the proposals were taken up by the Government and significant
reforms have been made both in the prison regulations and in prison
management, as described below.
of forums for political and technical discussions on the situation
in prisons. In July 1995, at the proposal of the Executive, the
Legislative Assembly adopted Act No. 16,707, dated 12 July 1995,
known as the Citizens' Security Act. Article 34 of the Act establishes
an Honorary Commission, comprising nine members, which is responsible
for advising the Executive on all matters relating to the improvement
of the prison system. The Commission comprises a representative
of the Judiciary, who is proposed by, and must be a former member
of, the Supreme Court; a member proposed by the Ministry of Public
Health; a member proposed by the Legislative Assembly to represent
the legislative branch; a representative of the universities, proposed
by the Faculty of Law of the Universidad de la República; a member
proposed by the Uruguayan Bar Association representing the legal
profession; a former criminal judge; a former prosecutor; a specialist
proposed by the Ministry of the Interior and another representative
chosen from a list of three submitted by non-governmental human
rights organizations. The Commission has the following tasks:
contribute to updating penal legislation and bringing it into line
with the relevant international instruments to which Uruguay has
propose means of improving the classification of prisoners, using
the progressive system;
To review maximum security facilities;
draft regulations on work by prisoners and apprenticeship and to
harmonize them with the labour and social security legislation;
consider the appointment of judges of enforcement and supervision
for penal matters;
examine any other proposals considered useful;
of various articles of Act No. 14,470. In order to avoid arbitrary
handling of prisoners' rights, Act No. 16,707 stipulates that temporary
leave must be requested in writing and that the prison authorities
must submit a substantiated report to the officiating judge. If
the police authorities oppose the leave, they must so inform the
judge, who will take a final decision on the application;
See annex 18.
of programmes for victims of abuse of authority. The Act charges
the executive and judicial branches, within their respective fields
of competence, with formulating ad hoc programmes to provide comprehensive
assistance to the victims of abuse of authority, as well as to their
relatives. In this regard, article 38 of the Act requires that due
account be taken of the relevant international instruments;
of a prison service career structure. As part of the national budget
and the classification of posts and grades within the executive
branch, an independent career structure has been introduced, under
the item corresponding to the Minister of the Interior, for the
technical and managerial staff of the National Directorate of Prisons,
Penitentiaries and Rehabilitation Centres. In connection with this
exercise, police wages are being improved and prison warder duties
reflected in the career structure; Annex 25. The text of the
relevant Act is provided.
of buildings. The investment programme for the 1995-2000 five-year
period makes provision for the construction of a new prison on the
outskirts of Uruguay's capital, which will add a further 200 places
to those that exist. Annex 26. El País,
27 June 1995. In addition to this investment, rehabilitation work
has already been carried out at the Libertad detention centre, which
was made unfit for use by the violent events in 1993 and 1994;
to incarceration. In the same connection, the Judiciary has gradually
promoted a series of measures as alternatives to deprivation of
liberty. The bill prepared by the Supreme Court is provided in annex;
of witnesses. As already explained in the previous section, there
are various ways of lodging a complaint in respect of torture or
ill-treatment. As regards proper protection for informants or witnesses,
the Legislature recently passed an act calling for the Executive
to implement a programme of protection for witnesses and persons
supplying information about alleged offences. See annex 18.
Article 36 of Act No. 16,707.
stated in the initial report, the Uruguayan Constitution establishes
the liability of the State to pay compensation for injury caused
by its agents. Articles 24 and 25 of the Constitution stipulate
the departmental governments, the autonomous entities, the decentralized
services and, in general, any agency of the State shall bear
civil liability for injury caused to third parties in the performance
of the public services under their management or direction."
injury has been caused by their officials in the performance
of their duties or in connection therewith, and if the latter
have been guilty of gross negligence or fraud, the public agency
concerned may reclaim from them whatever has been paid in compensation."
rules have constituted the legal basis for claims by a number of
Uruguayan citizens who suffered ill-treatment and torture under
the de facto Government. The annexes contain background information
concerning the exercise of the right to fair compensation in Uruguayan
jurisdictional and administrative practice. Annex 27. Claims,
judgements and settlements by the State in favour of Margarita Michelini,
Raúl Altuna, Raúl González Cardozo, María Elizabeth Pérez Lutz and
Nelson Eduardo Dean Bermúdez.
Uruguayan positive law, the only confession that is juridically
valid is the one made before the officiating judge. The annexes
Annex 28. Judgement No. 11,700 of the Fourth Rota Criminal
include a judgement of the Fourth Rota Appeal Court in 1989 concerning
the case of a person who was arrested by the police in 1982 and
tortured into making an incriminating judicial confession about
his involvement in a homicide; the confession was later retracted.
In this case, the court found that confinement in pre-trial detention
for a period extended to 584 days on the basis of a confession that
was invalid because it had been obtained through violence constituted
grounds for ordering the State to pay compensation for the material
and moral injury suffered by the victim. In the second preambular
paragraph of the judgement, the higher court recognizes "the
irregularities committed by the judge of first instance" who,
after having been informed by the victim of the torture he had suffered,
"failed to order an investigation into these acts".
case already referred to in annex 13 shows how, in Uruguayan judicial
practice, by applying the rules of healthy criticism, the Appeal
Court interpreted the reticence and contradictory statements of
the police officers responsible for torture as evidence of a serious
violation by the police of the plaintiff's physical integrity.
refer to paragraphs 58 and 59 of this report with regard to the
means used to punish ill-treatment under Uruguayan positive law.