Communication No. 275/1988 : Argentina. 04/04/90.
CCPR/C/38/D/275/1988. (Jurisprudence)

Convention Abbreviation: CCPR
Human Rights Committee
Thirty-eighth session

DECISION OF THE HUMAN RIGHTS COMMITTEE UNDER THE OPTIONAL PROTOCOL
TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
THIRTY-EIGHTH SESSION

concerning

Communication No. 275/1988

Submitted by: S. E. (name deleted)

Alleged victims: The author and her disappeared children

State party concerned: Argentina

Date of entry into force of Covenant and Optional Protocol for Argentina: 8 November 1986

Date of communication: 10 February 1988 (date of initial letter)

The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights,

Meeting on 26 March 1990,

Adopts the following:

Decision on admissibility

1. The author of the communication is an Argentine citizen residing in Argentina. She writes on her own behalf and c)n behalf of her
three disappeared children, born in 1951, 1953 and 1956, respectively, alleging violations of the Covenant by the Government of
Argentina. She is represented by counsel.
The background

2.1 The author states that her eldest son, L. M. E., was abducted in Argentina on 10 August 1976 by persons belonging to or associated with the police, security forces or armed forces, apparently on account of his political opinions. Another son, C.E. and her daughter, L. E., were detained on 4 November 1976 in Uruguay and were allegedly seen in November/December 1976 at a detention camp in Argentina known as "The Bank" and at a police station, Brigada Guenes, in Buenos Aires. Their whereabouts have been unknown ever since, in spite of all the steps undertaken by the author to discover what happened to them.

2.2 On 24 December 1986 the Argentine legislature proclaimed Law No. 23,492, the so-called "Finality Act" (Ley de Punto Final), which established a deadline of 60 days for commencing new criminal investigations with regard to the events of the so-called "dirty war" (guerra sucia). This deadline expired 011 22 February 1987. On 8 June 1987, Law No. 23,521, the Due Obedience Act (Ley de Obediencia Debida), was promulgated, introducing an irrebuttable presumption that members of the security, police and prison services cannot be punished for such crimes if committed in due obedience to orders. The Act further extends protection to senior officers who did not have a decision-making role with regard to the violations. The Argentine Supreme Court has upheld the constitutionality of this Act.

2.3 On the basis of an application filed on 19 June 1984, the National Commission on the Disappearance of Persons (CONADEP) opened investigation files on the disappearances of L. H. E. (CONADEP file No. 5448), L. E. (No. 5449)and C. E. (No. 5450). The whereabouts of the disappeared persons, however, could not be established.

2.4 Article 6 of the Finality Act specifically provides that "The extinction of penal action pursuant to article 1 does not affect civil proceedings".

2.5 The author has not instituted civil proceedings to obtain compensation.

2.6 By operation of article 4037 of the Argentinian Civil Code, the period of limitations for instituting civil proceedings is two years. This period runs from the date of the alleged violation.

The complaint

3.1 The author claims that the enactment of the Finality Act and the Due Obedience Act constitute violations by Argentina of its obligations under article 2 of the Covenant, in particular "to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant" (art. 2, para. 2), "to e~m~re that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy . .. " (art. 2, para. 3(a)) and "to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities . . . and to develop the possibilities of judicial remedy" (art. 2, para. 3(b)).

3.2 In part icular the author claims that the disappearance of her children was never fully investigated. She requests that the inquiries be reopened.

The State party's observations

4.1 The State party points out that the disappearances took place in 1976 during the period of military government, 10 years prior to the entry into force of the Covenant and of the Optional Protocol for Argentina.

4.2 With respect to the temporal application of the Covenant and of the Optional Protocol, the State party submits that the general rule for all juridical norms is non-retroactivity. In the specific area of treaty law, a firmly-established international practice leads to the same conclusion. Both the Permanent Court of International Justice (Series A/B, No. 4, 24)and the International Court of Justice (I. C. J. Reports 1952, 40)have maintained that a treaty has to be considered as having a retroactive effect only when this intention is explicitly stated in the treaty or may be clearly inferred from its provisions. The validity of the principle of non-retroactivity of treaties was enshrined in the 1969 Vienna Convention on the Law of Treaties (. in force on 27 January 1980). article 28 of which codifies this rule of customary international law: "Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party". The communication should therefore be declared inadmissible ratione temporis.

4.3 As to the inquiries into the disappearance of the author's three children, the State party refers to the CONADEP investigations, which, unfortunately did not yield positive results. In this connection, the State party cites the CONADEP final report, which concerns over 8,900 disappearances.

4.4 The case of the author's children was also submitted to the United Nations Working Group on Enforced or Involuntary Disappearances on 13 August 1980. The State party's investigations in this respect failed to establish the whereabouts of the author's chi ldren, or when and where they were deprived of their lives.

4. 5 With regard to the possibility of instituting civil proceedings for compensation, the State party points out that although the author could have presented a claim, she did not do so. The period of limitations for lodging civil actions for compensation has now elapsed.

Issues and Proceedings before the Committee

5.1 Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not it is admissible under the Optional Protocol to the Covenant.

5.2 With regard to the application ratione temporis of the International Covenant on Civil and Political Rights and of the Optional Protocol for Argentina, the Committee recalls that both instruments entered into force on 8 November 1986. It observes that the Covenant cannot be applied retroactively and that the Committee is precluded ratione temporis from examining alleged violations that occurred prior to the entry into force of the Covenant for the State party concerned.

5.3 It remains for the Committee to determine whether there have been any violations of the Covenant subsequent to its entry into force. The author has invoked article 2 of the Covenant and claimed a violation of the right to a remedy. In this context the Committee recalls its prior jurisprudence that article 2 of the Covenant constitutes a general undertaking by States and cannot be invoked, in isolation, by individuals under the Optional Protocol (M. G. B. and S. P. v. Trinidad and Tobago, communication No. 268/1987, para. 6.2, declared inadmissible on 3 November 1989). Bearing in mind that article 2 can only be invoked by individuals in conjunction with other articles of the Covenant, the Committee observes that article 2, paragraph 3 (a), of the Covenant stipulates that each State party undertakes "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy ..." (emphasis added). Thus under article 2 the right to a remedy arises only after a violation of a Covenant right has been established. However, the events which could have constituted violations of several articles of the Covenant and in respect of which remedies could have been invoked, occurred prior to the entry into force of the Covenant and of the Optional Protocol for Argentina. Therefore, the matter cannot be considered by the Committee, as this aspect of the communication is inadmissible ratione temporis.

5.4 The Committee finds it necessary to remind the State party that it is under an obligation, in respect of violations occurring or continuing after the entry into force of the Covenant, thoroughly to investigate alleged violations and to provide remedies where applicable, for victims or their dependants.

5.5 To the extent that the author claims that the enactment of Law No. 23,521 frustrated a right to see certain government officials prosecuted, the Committee refers to its prior jurisprudence that the Covenant does not provide a right for an individual to require that the State party criminally prosecute another person (H. C. M. A. v. The Netherlands, communication No. 213/1986, para. 11.6, declared inadmissible on 30 March 1989). Accordingly, this part of the communication is inadmissible ratione materiae as incompatible with the provisions of the Covenant.

6. The Human Rights Committee therefore decides:

(a) The communication is inadmissible;

(b) This decision shall be communicated to the State party and to the author through her counsel.