Communication No. 344/1988 : Argentina. 05/04/90.
CCPR/C/38/D/344/1988. (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

Communications Nos. 343, 344 and 345/1988

Submitted by: R. A. V. N. et al. [names deleted]
Alleged victims: Relatives of the authors

State party concerned: Argentina

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

Date of communication: 22 November 1988

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:

A. Decision to deal jointly with three communications

The Human Rights Committee,
Considering that communications Nos. 343, 344 and 345/1988 refer to closely related events said to have taken place in Argentina in 1976 and to the enactment of certain legislation in June 1987,

Considering further that the three communications can appropriately be dealt with together,

1. Decides, pursuant to rule 88, paragraph 2, of its rules of procedure, to deal jointly with these communications;

2. Further decides that this decision shall be communicated to the State party and the authors of the communications.

B. Decision on admissibility

1. The authors of the communications are Argentine citizens residing in Argentina, writing on behalf of their deceased and/or disappeared relatives, Argentine citizens formerly resident in the Province of Cordoba who died or disappeared in 1976, before the entry into force of the Covenant on Civil and Political Rights and the Optional Protocol for Argentina on 8 November 1986.
2.1 The authors claim that the enactment of Law No. 23,521 of 8 June 1987 (known as the Due Obedience Law (Ley de Obediencia Debida))and its application to the legal proceedings in the cases of their relatives constitute violations by Argentina of articles 2, 3, 4, 6, 9, 14 and 24 of the International Covenant on Civil and Political Rights. They are represented by counsel.

2.2 It is claimed that law No. 23,521 is incompatible with Argentina's obligations under the Covenant. The law presumes, without admitting proof to the contrary, that those persons who held lower military ranks at the time the crimes were committed were acting under superior orders; the law therefore exempts them from punishment. This immunity also covers senior military officers who did not act as commander-in-chief, chief-of-zone or chief-of-security police or penitentiary forces, provided that they did not themselves take decisions or that they did not participate in the elaboration of criminal orders.

2.3 With regard to the application of the Covenant to the facts of the cases, the authors acknowledge that their relatives were either killed or disappeared in 1976, under the prior Argentine Government, before the entry into force of the Covenant and of the Optional Protocol for Argentina. They challenge, however, the compatibility of the Due Obedience Law with article 2 of the Covenant, which provides, inter alia, that States parties should adopt the necessary legislative measures to give effect to the rights recognized in the Covenant. They claim that by adopting legislation which effectively guarantees the impunity of military officials responsible for disappearances, torture and murder, the Argentine Government has violated its obligations under the Covenant.

2.4 As to the requirement of exhaustion of domestic remedies, the authors point out that, with respect to the disappearance or death of the alleged victims, the matter was brought before the competent Argentine courts. However, by virtue of law No. 23,521, the pending criminal cases were shelved in June 1987 and May 1988, and the accused were accordingly set free. The authors conclude that domestic remedies have been exhausted.

2.5 It is stated that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

2.6 Specifically, the authors request the Committee to find that Argentina violated its obligations under the Covenant, and to urge the Government of Argentina to abrogate law No. 23,521 so as to allow the criminal prosecution and punishment of the persons responsible for the disappearance and/or death of their relatives.

3. By decisions of 4 April 1989, the Working Group of the Human Rights Committee, without transmitting the communications to the State party, requested the authors, under rule 91 of the rules of procedure: (a)to clarify whether and, if so, to what extent the claims contained in their communication go beyond their desire to see those held to be responsible for the disappearance or death of their relatives criminally prosecuted; (b)to specify, bearing in mind that the Covenant and the Optional Protocol entered into force for Argentina on 8 November 1986, which violations they claim took place after that date; and (c)to indicate whether they have instituted legal proceedings before the competent courts with a view to obtaining compensation and, if so, with what result.

4.1 In their reply to the Working Group's questions, the authors state that besides punishing the guilty, the Government of Argentina should reopen the inquiry into the disappearance of one of the alleged victims, although following the investigations of the Comisión National sobre Desaparicion de Personas (CONADEP) (National Commission on the Disappearance of Persons), it was presumed, in view of the lapse of time since the disappearances, that the persons in question were dead. The authors stress, moreover, that laws of impunity should be repudiated, lest they be understood as encouraging the commission of similar crimes. In this connection they invoke the principles of the Nuremberg Trials, in particular the rejection of the defence of superior orders.

4.2 As to which violations of the Covenant are said to have taken place after its entry into force for Argentina on 8 November 1986, the authors claim that the enactment of the Due Obedience Law in June 1987 constitutes a violation of the State party's obligation to ensure the thorough investigation of crimes and the punishment of the guilty.

4.3 With regard to legal proceedings aimed at obtaining compensation, the authors indicate that they preferred to demand an investigation of the events, in particular of the whereabouts of disappeared persons, and the identification of the guilty parties. Although it appears that none of the authors ever initiated legal proceedings for compensation, they refer to other persons who have unsuccessfully sought compensation in civil proceedings,

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 the communications 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.

5.3 It remains for the Committee to determine whether violations of the Covenant have occurred subsequent to its entry into force. The authors have invoked article 2 of the Covenant and claim a violation of their 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 (H. G. B. and S. P. v. Trinidad and Tobago, communication No. 268/1987, para. 6.2, declared inadmissible on 3 November 1989). To the extent that the authors invoke article 2 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 of disappearance and death, 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 authors claim that the enactment of law No. 23,521 frustrated their 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 criminally prosecute another person (H. C. 24. 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.

5 . 5 As to the question of compensation, the Committee notes that the authors, in reply to the Working Group's questions, explained that this was not the remedy that they sought.

6. The Human Rights Committee therefore decides :

(a) The communications are inadmissible ;

(b) This decision shall be communicated to the authors through their counsel, and, for information, to the State party.