CHAPTER IV

RIGHT TO PHYSICAL LIBERTY

American Declaration of the Rights and Duties of Man – Article I. Every human being has the right to life, liberty and the security of his person.

Article XXV. No person may be deprived of his liberty except in the cases and according to the procedures established by preexisting law.

No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character.

Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.1

1. After proclamation of the “state of internal war�? in Uruguay on April 15, 1972, the Commission began to receive denunciations of arbitrary detentions by authorities of that country. These denunciations, whose number gradually increased, came from various sources, such as relatives of those detained, citizens residing in the country and individuals and organizations abroad.

2. Frequently, an individual's name appears in more than one denunciation, which makes it difficult to determine the total number of denunciations of this kind received to date; however, it can be stated that, according to the denunciations, the number of individuals arbitrarily detained is in excess of one thousand.

3. According to other communications received, the number of so-called “political prisoners�? in Uruguay would appear to vary between 3,000 and 8,000 individuals. The most recent information was provided by the Washington Office on Latin America, a religious association in contact with Uruguayan citizens now living abroad. According to their estimates, the total number of individuals under detention in that country is approximately 6,000. Furthermore, that organization estimates that between 1972 and the beginning of 1977, some 60,000 individuals had spent time in Uruguayan jails for political or ideological reasons. For its part, the Government of Uruguay, in its observations on the report of the Commission of May 24, 1977, acknowledge that as of August 15, 1977, 2,366 individuals were being held under detention for being, according to that Government, “subversive and seditious.�?

4. With regard to the individual communications denouncing arbitrary detentions, the Commission has duly transmitted to the Government of Uruguay the pertinent parts of such denunciations, requesting the corresponding information, in accordance with its Regulations.

5. The Government has confirmed that in a majority of the cases denounced to the Commission, the individuals in question were or had been under detention, but it systematically denied that they were arbitrarily deprived of their freedom, invoking the powers of the “state of internal war�? or of the “Prompt Security Measures.�?

6. In many cases, the replies report that the individuals named have been released, but they do not say whether or not any charge has been brought against them. Generally speaking, the replies contain no information as to whether the individual under detention is being held incommunicado or is subject to some other unjustified restriction, as the denunciations contend.

7. The Commission has received denunciations that state that prolonged detention incommunicado is a common practice. By way of example, presented below are the following paragraphs from one of these denunciations.

This took place during the week prior to May 1, as part of the Government's effort to bar any form of public manifestation or demonstration, as was a traditional practice every year at that time. Hundreds of actions taken throughout the country, searches conducted in homes, union quarters, and so forth, led to the arrest of approximately 1,500 individuals, among them a number of labor leaders. According to the official explanation given through “military informational communiqués,�? the actions have been taken in order to prevent a series of disruptive measures that “antinational�? political and union groups intended to carry out on the occasion of labor day. During this “razzia�? [police raid] more than 100 students were also arrested, ranging in age from 14 to 17 years old, who despite the fact that they were minors (in Uruguay criminal responsibility of the individual begins at 18) were held incommunicado for a number of days and—as was denounced—allegedly were mistreated before being released, after being held in prison incommunicado, for an average of 15 to 30 days.

8. With reference to minors, Article 34 of the Uruguayan Criminal Code provides that no one can be charged with a crime until 18 years of age. Furthermore, the Children's code, in force since 1934, establishes that acts committed by minors fall within the jurisdiction of legally trained and specialized Juvenile Court Judges (Jueces Letrados de Menores), who have exclusive authority to order their corrective internment. However, since 1975 the Commission has received denunciations of the detention of 43 minors ranging in age from 14 to 17 years, under circumstances and in places which, according to the claimants, are not in keeping with the norms cited above. In response to the Commission's request for information in connection with these denunciations, the Government reported the following:

a) Under Case 1923, it confirmed the detention of 6 minors on March 20, 1975, in Montevideo, on a public street, “for taking part in disturbances... in an action organized by the Communist youth.�? The Government adds that the minors in question were brought before the Military Examining Judge, who declined jurisdiction in favor of the Juvenile Court Judge; the latter, in turn, ordered that the detainees be returned to their respective parents. And so they were released on April 7, 1975, that is, 18 days later.

b) With regard to Case 1935, it confirmed the arrest of five other minors on various dates throughout 1974, “for participating in Communist propaganda activities,�? referring them to the Juvenile Court Judge, who ordered that they be interned in an agency of the Children's Council or that they be turned over to their parents. Only one of them “was incarcerated for ten days under the system of Prompt Security Measures.�? Three of the minors in question had already been arrested on previous occasions for the same reasons. The Government categorically denied the use of any form of duress against the detainees, and the detention of two other minors named by the claimants.

c) In Case 2109, alleging the detention of more than 20 minors and the use of physical duress against some of them, the Commission requested the information provided for in the Regulations in a note dated January 18, 1977; however, to date, December 31, 1977, no response has been received.

9. In those cases wherein the Commission was able to conclude that the complaint was in order, it recommended that the detainees be released or subjected to due process of law (including a fair trial), should there be legal grounds for such action. Under Case Nº 1842, the Commission recommended to the Government of Uruguay that it submit the detainee, Dr. Francisco W. Pucci, to due process of law should there be legal grounds for such action. The Government replied that the situation of Mr. Pucci is under the jurisdiction of the Supreme Military Tribunal, under Case Nº 165/74, (Lo. 1 Fo. 341).

10. It is true that democratic constitutions such as Uruguay's 1967 Constitution authorize temporary suspension of certain rights, such as the guarantee against arbitrary arrest, for a specified period, during time of war or other serious emergencies, to the extent that such action is strictly necessary in light of the circumstances, for the sake of the nation's survival or maintenance of the public order. It is also true that the conventions and covenants on international protection of human rights provide for the same power, under similar circumstances.2 But no domestic or international legal norm justifies, merely by invoking this special power, the holding of detainees in prison for long and unspecified periods, without any charges being brought against them for violation of the Law of National Security or another criminal law, and without their being brought to trial so that they might exercise the right to a fair trial and to due process of law.

11. In cases involving other countries where the exercise of similar special powers has been invoked in emergency situations, the Commission has repeatedly pointed out that deprivation of freedom for prolonged periods of time, without justification, is in violation of human rights, because it implies the imposition of a real punishment with denial of the rights to a fair trial and to due process, to which all individuals are entitled.

Notes__________________

1 American Convention on Human Rights – Article 7.

1. Every person has the right to personal liberty and security.

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.

2 Article 4 of the United Nations International Covenant on Civil and Political Rights, ratified by Uruguay.