144. The Committee considered the second periodic report of Argentina
(CCPR/C/75/Add.1) at its 1389th to 1391st meetings, held on 21 and 22
March 1995 (see CCPR/C/SR.1389 to 1391), and adopted, at its 1411th
meeting (fifty-third session), held on 5 April 1995 the following final
145. The Committee welcomes the second periodic report
submitted by the State party and views with satisfaction the frank and
constructive manner in which the dialogue with the Committee has been
conducted. It welcomes in particular the comprehensive answers provided
by the high-level delegation representing the State party. None the
less, the Committee expresses its regret that the report does not adequately
deal with the factors and difficulties encountered with regard to the
actual implementation of the Covenant. The Committee notes that this
shortcoming was compensated in part by the oral update of the report,
as well as the oral replies provided to the list of issues and other
questions raised by the Committee during the consideration of the State
2. Factors and difficulties affecting the implementation of the Covenant
146. The Committee notes that the compromises made by
the State party with respect to its authoritarian past, especially the
Law of Due Obedience and Law of Punto Final and the presidential
pardon of top military personnel, are inconsistent with the requirements
of the Covenant.
3. Positive aspects
147. The Committee notes with satisfaction Argentina's
continuous progress in its efforts to democratize and to match its level
of human rights protection with international standards. Although much
work remains to be done in this area, legislative developments since
1983 indicate that Argentina is committed to the protection of human
rights at the highest levels. In this connection, the Committee welcomes
the constitutional reforms of August 1994, which elevate several international
human rights instruments, including the Covenant and the First Optional
Protocol, above national laws and grants them constitutional status
(arts. 31 and 75 (22) of the Constitution). The Committee further welcomes
the creation of the post of "Defender of the People", which
was established in December 1993 under Act 24,284. This post is responsible
for the protection of the rights of the Argentine people against possible
infringement by the national authorities.
148. The Committee welcomes the programmes established
for the advancement of women's equality and particularly welcomes the
recognition on the part of the State party of violence against women
as a matter of concern.
149. The Committee welcomes the enactment of Act 24,043
granting compensation to those who were detained by order of the Executive.
It also welcomes Act 24,411 which grants some benefits to relatives
of disappeared persons.
150. The Committee welcomes the revisions made to the
Code of Criminal Procedure, those which are under way to the Code of
Civil Procedure, the reform of the prison system and the establishment
of the Office of the Government Procurator for the Prison System. It
also welcomes the efforts by the State party to rehabilitate convicted
prisoners and construct more facilities to alleviate prison crowding.
151. The Committee notes with satisfaction the elimination
in the constitutional reforms of 1994 of the qualification that the
President of the Republic must be Catholic.
152. The Committee also notes with satisfaction that the
Ministries of the Interior and of Foreign Affairs are conducting human
rights training programmes for law enforcement officials, personnel
engaged in the administration of justice, and the general public.
4. Principal subjects of concern
153. The Committee reiterates its concern that Act 23,521
(Law of Due Obedience) and Act 23,492 (Law of Punto Final) deny
effective remedy to victims of human rights violations, in violation
of article 2, paragraphs 2 and 3, and article 9, paragraph 5, of the
Covenant. The Committee is concerned that amnesties and pardons have
impeded investigations into allegations of crimes committed by the armed
forces and agents of national security services and have been applied
even in cases where there exists significant evidence of such gross
human rights violations as unlawful disappearances and detention of
persons, including children. The Committee expresses concern that pardons
and general amnesties may promote an atmosphere of impunity for perpetrators
of human rights violations belonging to the security forces. Respect
for human rights may be weakened by impunity for perpetrators of human
154. In the latter connection, the Committee regrets that
evidence presented to the Senate against members of the armed forces,
proving that they have engaged in extrajudicial executions, forced disappearances,
torture, or other violations of human rights, may in some cases prevent
the promotion of those accused but does not in itself cause their dismissal.
155. The Committee is concerned about threats to members
of the judiciary, which through intimidation seek to compromise the
independence of the judiciary as set forth in article 14 of the Covenant.
The Committee is further concerned about attacks against journalists
and unionists, and the lack of protection afforded to them, which restricts
the enjoyment of the rights of expression and association provided for
in articles 19 and 22 of the Covenant.
156. While the Committee welcomes Act 24,043 and Act 24,411,
it regrets that they do not provide for compensation for victims of
torture. The Committee expresses concern about cases of excessive use
of force, torture and arbitrary or unlawful detentions committed by
members of the police and the armed forces which have been brought to
its attention. It is concerned that there is no clear mechanism for
investigating complaints of police violence that ensures there will
be no reprisals against complainants, that where provincial administrations
are lax in dealing with allegations of police violence the federal authorities
do not ensure compliance with the Covenant, and that the perpetrators
of acts of police violence generally are not punished and the victims
are not compensated. It expresses concern about the delay in resolving
the situation of children of disappeared persons and is especially disturbed
at the failure of the report to provide any information at all on the
real situation as it relates to article 7 of the Covenant.
157. The Committee is concerned that the Penal Code appears
to be deficient in certain key areas that apparently conflict with the
principle of presumption of innocence (art. 14, para. 2, of the Covenant).
It is concerned about the system of pre-trial detention, which it considers
to be one of the remaining vestiges of authoritarian rule. The Committee
also expresses concern that persons may be detained for a period longer
than the maximum penalty allowed by law and regrets, in this connection,
that article 317 of the Constitution does not order their release. The
Committee further notes that bail is established according to the economic
consequences of the crime committed and not by reference to the probability
that the defendant will not appear in court or otherwise impede due
process of law. Nor is it compatible with the presumption of innocence
that the length of pre-trial detention is not a product of the complexity
of the case but is set by reference to the possible length of sentence.
The Committee is also concerned that accused persons are held in detention
in the same facilities as convicted persons, and that the grounds for
judicial authorization of telephone tapping may be too broadly drawn.
5. Suggestions and recommendations
158. The Committee recommends that the State party, in
accordance with article 2, paragraph 2, of the Covenant, develop mechanisms
for compensating all remaining victims of past violations of human rights
by amending Act 24,043 or enacting appropriate legislation for the victims
of such crimes. The Committee especially recommends that appropriate
care be taken in the use of pardons and general amnesties so as not
to foster an atmosphere of impunity (see the Committee's general comment
No. 7 (16)). The Committee recommends that members of the armed forces
or security forces against whom sufficient evidence of involvement in
gross human rights violations exists be removed from their posts.
159. The Committee urges the State party to continue to
investigate the whereabouts of disappeared persons, to complete urgently
investigations into the allegations of illegal adoption of children
of disappeared persons, and to take appropriate action. It also urges
the State party fully to investigate recent allegations of murders committed
by the military during the period of military rule and to take action
on the findings.
160. The Committee notes that the Office of the Under-Secretary-General
of Human and Social Rights falls under the jurisdiction of the Ministry
of the Interior, which also regulates the police forces. The Committee
recommends that measures to guarantee the independence of the Under-Secretary-General
be taken, particularly with respect to investigations of human rights
161. The Committee urges that all necessary steps be taken
to prevent cases of excessive use of force, torture, arbitrary detention
or extrajudicial execution by members of the armed forces or the police.
These steps should include preventive, disciplinary and punitive measures,
as well as appropriate training. All violations should be investigated
and the victims compensated.
162. The Committee recommends that special protection
be provided to journalists and members of trade unions under threat
or intimidation so as effectively to protect the rights provided for
in articles 19 and 22 of the Covenant.
163. With respect to the Code of Criminal Procedure, the
Committee recommends that the system of pre-trial detention be carefully
reviewed. Legal safeguards should be established to ensure that, in
instances where pre-trial detention exceeds the maximum applicable penalty
for a crime, the defendant will be released without qualification. The
Committee urges the State party to define clearly the purpose of pre-trial
detention and to set the length of detention accordingly, applying the
principle of presumption of innocence. It recommends the same consideration
in the setting of bail.
164. The Committee recommends that the State party include
information in its next report on the procedures established to ensure
compliance with the views and recommendations adopted by the Committee
under the First Optional Protocol, also bearing in mind its obligations
under article 2 of the Covenant.
165. The Committee recommends that Argentina include,
in its next periodic report, information on the measures adopted to
follow up on the present comments and give effect to its suggestions
and recommendations. It further recommends that its comments be widely
disseminated and incorporated into the curriculum of the human rights
training programmes organized for law enforcement officials and administrators