The author ot the communication (initial letter dated 3 May 19HO and turther submissions dated 14 July and 22 December 1980) is a Uruguayan national at present living in canada. She submitted the communication on behall ot her Sister, Mirta Cubas Simones, a 31-year-old Uruguayan national, alleging that she is imprlsoned in Uruguay without any justitiable reason.
The author states that Mirta CUbas Simones was arrested w1thout a warrant 1n her home on 21 January 1976, that she was held incommun1cado untll April 1~16 and that during this period her detention was' denied by the authorit1es although her mother and a sister were present at the time ot her arrest. The author turther states that in July 1916 her sister was brought to trial and charged With the ottence of "aiding a conspiracy to violate the law" (Asistencla a la aSOCiacion para dellnquir) and that a three-year prison sentence was requested by the pUbliC prosecutor. upon appeal to the supreme Military Tribunal in August 1978, She was charged in addition 'with the oftence of "sutNersl0n", and the pUbliC prosecutor aSked for the sentence to be increased to SlX years. In November 1919 a p~ea was
The author declares that the same matter has not, to her knowledge, been submitted to another procedure of international investigation or settlement, and claims that her sister is a victim of violations of articles 7, 9, 10, 14, 15, 17 and 19 of the International Covenant on Civil and Political Rights.
By its decision of 11 July 1980, the Working Group of the Human Rights Committee transmitted the communication under rule 91 of the provisional rules of procedure to the State party concerned, requesting information and observations relevant to the admissibility of the communication.
By a note dated 17 OCtober 1980, the State party objected to the admissibility of the communication on the ground that it did not fulfil the requirements of article 5, paragraph 2 (b), of the Optional Protocol to the International Covenant on Civil and Political Rights. In this connexion, the State party asserts that "although the appeals procedure which culminated in the jUdgement of the second instance pronounced on 2 OCtober 1979 has been completed, there still remain available the extraordinary remedies of ann6lment and review, as provided for in article 507 of the Code of Military Penal Procedure and Law 3,439 of 5 April 1909, which have not been invoked". The State party adds: "similarly, Law 14,997 of 25 March 1980 establishes procedures for requesting early and conditional release in cases under military jurisdiction ••• the party concerned has not so far petitioned the Supreme Court of Military Justice to apply that law to her case, ••• consequently, all domestic remedies have not been exhausted".
On 22 December 1980, the author forwarded her comments in reply to the State party's submission of 17 October 1980. She claims therein that the remedies provided for by the law and the various actions to be taken before the Supreme Court of Military Justice available under the law, re~erred to by the State pa~ty, even if they exist" have n\)t been brought to her sister's attention by her military defence counsel, which indicates that the officially appQinted defence counsel has failed in his duty. She points out that her sister does not have freedom of action, that she does not know the law governing ber case and that she is tried "under the military legal system to which the defence counsel belongs. The author further challenges the validity of the "remedies" referred to by the State party on the ground that the climate of terror, the ha~sh and inhuman treatment to which her sister is subjected in prison and the lack of support from her defence counsel make it impossible for her to take action in"her own defence. The author therefore concludes that the proceedings in her sister's case cannot be assessed according to what is applicable in a normal case (lino puede jugarse con la formalidad de un caso nomal") • -175-
In the circumstances, the Committee was unable to conclude, on the basis of the information submitted by the State ?arty, that the communication.was inadmissible under article 5 (2) (b). ~
In its submission dated 17 OCtober 1980 the State party did not contest the author's assertion that the same matter had not been submitted to any other international body.
Consequently, the Committee found that it was not precluded by article 5 (2) (a) of the Optional Protocol from considering the communication.
On 31 March 1981, the Human Rights Committee therefore decided: (a) That the communication was admissible, (b) That, in accordance with article 4 (2) of the Optional Protocol, the State party should be requested to submit to the Committee, within six months of the date of the transmittal to it of this decision, written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by it, (c) That the State party should be informed that the w~itten explanations or statements· submitted by it under article 4 (2) of the Optional Protocol must relate primarily to the substance of the matter under consideration. The Committee stressed that in order to perform its responsibilities, it required specific responses to the allegations which had been made by t~e author of the communication, and the State party's explanations of the actions taken by it. The State party was requested in this connexion, to enclose copies of any court orders or decisions of relevance to the matter under consideration.
By a note dated 15 OCtober 1981 i the State party submitted the following explanations under article 4 (2) of the Optional Protocol: lilt (the Government of Uruguay) rejects the libellous assertions in the communication, regarding 'the climate of terror' and 'the harsh and inhuman treatment' to which Miss Mirta Cubas was said to be subjected, it is also incorrect to state that the case of the above-mentioned detainee 'cannot be assessed accordil~ to what is applicable in a normal case' ('no puede juga~ con la forma1idad de un caso normal'). The proceedings were conducted with all the guarantees required in the relevant legislation. The reason why the application to the Supreme Court of Military Justice for a reduction of her sentence was rejected was simply the nature of the offences committed and the fact that they were duly proved. -176-
The Human Rights Committee notes the State party's observatl0n that an applicatlon tor conditional release tor Mlrta Cubas Simones has been submltted to the Supreme COurt of Military Justice. This is not, of course, a remedy withln the meaning of article 5 (2) (b) ot the optional ~rotocol cOQcerning exhaustl0n ot domestic remedies in regard. to the violations of the Covenant complained ot. Nevertheless, her release would constitute an important step towardS alleviating her situation. lU. The Cor ittee has considered the present communlcatlon ln the light ot all intormation made available to it by the parties, as prOVlded ln article 5 (1) ot the Optional Protocol.
The Committee decides to base its views on the tollowlng tacts which have elther been contlrmed by the State party or are uncontested, except tor denials ot a general character offering no particular lnformatl0n or explanatlon:
Mirta Cubas Simones was arrested on 27 January l~~b, without any warrant tor her arrest, in her family's home, in the presence of her mother and her slster. For the SUbsequent three months she was held lncommunicado at an unknown place. During this time the Uruguayan authorities denied her detention. In JUly 1976, tive months atter her arrest, Mirta Cubas Simones was brought to trial and charged with the offence of "aiding a conspiracy to violate the law" (asistencla a la asociaciOn para delinquir) and a three-year prison sentence was requested by the public prosecutor. upon appeal to the supreme Milltary Tribuqal ln August 197H, she was Charged ln addition with the ottence ot "subverslon", and the pUbllC prosecutor asked for the sentence to be incDeased to six years. JUdgement was pronounced on l october 197~. In November 1~~9 a plea was made on her behalf that the sentence be reduced. This plea was rejected by the ~upreme Milltary Tribunal. Mirta CUbas ~imones was tried ln camera, the trial was conducted wlthout her presence and the jUdgement was not rendered ln pUbllC. She was asslgned a court- appointed milltary detence counsel whom she was unable to conSUlt. The commlttee turther notes that the State party did not comply With the Committee'3 request to enclose copies of any court order or decisions of relevance to the matter under consideration. FOr all these reasons the Committee lS unable to accept that Mirta CUbas ~imones had a fair trial. In addition, since 1976 Mlrta CUbas Simones has been SUbjected to continuously harsh prison condltlons.
Accordingly, the Human Rights Committee, acting under article 5 (4) ot the optional Protocol, is of the view that the tacts as found by it, ln so tar as they occurred atter 23 March 1976 (the date on WhlCh the covenant entered into torce in respect of Uruguay), disclose the fOllOWing violatl0ns of the COvenant, in particular: of article 10 (1), because Mirta CUbas Simones was held lncommunlcado tor three months and during this period the authorltles wrongtullY denled that She was detainedJ of article 14 (1), because She did not have a fair and pUbllC hearing, of article 14 (3) (d), because she was not tried in her presence.
The Committee, accordingly, is of the opinion that the State party is under an obligation to provide the victim with effective remedies, including compensation, for the violations she has suffered and to take steps to ensure that similar violations do not occur in the future.