Ths authors of the cornmunlcation (inItial letter datdd 2 April 1984 and subsequent letters dated 14 and 10 June 1985, 17 January 1980, 18 March Dnd 19 July 1987) are RQse Mary Garcla, a Bolivian citizen living in the United 8ta~I' of America, and Juana Penar'rieta, Maria PlIra de Toro, Nelva B. de Toro, Etty CacereG, Maria Luisa de Rui., Aurora ae Lofuente and SQfia de Rodrigu~., Bolivian citi.ens reBiding in Bolivia, on behalf of their relative. Nalter Lafuente Penarrieta, Oscar RUl. Cacere., Julio C'.ar Toro Dorado aud Miguel Rodriguez Candie, all Bolivian citi.ens, 3nd on behalf Qf three other perRonB, ~imon Tapia Chacon, a Holivian citl&en (not related to the authors), Rene Patrlcio Ll.~na Lira and Pablo Manuel ~.peda Camillierl, both Chilean citl.enB (not related to the authors). The authors stated that. the alleged victims were being held at. the San Jorge 8arracks in Bolivia and that t.hey were nQt in a po.ition to ~reBent their own cllse to the Human Rights COmDlittee. The ~uthor. claimed to have authority to represent all seven alleged victim••
Miguel Rodrigue. Candia, Oscar Ruiz Ceceres, Simon Tapia Chacon and Julio C~sar Toro Dorado were released on 24 April 1986, WaIter Lafuente Pefiarrllta, Pablo Manuel Ze~eda and Ren' Patricio Lizftrna Wdre released on 24 Octob.r 1986.
Concerning the right to legal counsel, guaranteed under article 16 (4) of the Bolivian Constitution, it is ~lleged that the detainees had no access to a defer..ce lawyer until 44 days after their detention.
On 16 December 1983, the first public hearing took place. Defence counsel argued that his clients could not be subject to military jurisdiction, since the Hational Constitution itself clearly established that military jurisdiction could be applied only in times of war or when a criminal act had taken place in e territory under military juri.diction, and that the case should therefor~ b~ transferred to the regular courts.
On 8 February 1984, defence coun~.l again requested a change of jurisdiction. He also pleaded that most of the provisions of the Military Penal Code were in fact unconstitutional. On 13 February 1984, the appeal for annulment was presented before the Supreme Tribunal of Military Justice without success. According to the authors, all legal remedies to obtain a change of jurisdiction were turnej down by the military authorities.
The authors state that the relntives of the detainees tried in vain to secure their transfer to San Pedro Prison on the grounds that detention in military barracks was nol lawful. They maintained that, owing to the political instability in Bolivia and the arbitrary acts committed by a number of officers, there were no quarantees of security tor the seven detainees. 1.a The indictment against the seven defendants was presented by the Military Prosecutor on 18 July 1984, ninft months after their detention. The defendbnts submitted their plea on 10 August 1984. On 3 Octoher 1984, they began a hunger-strike, which continued until 2 November 1984. On 12 October 1984, the Standing Court of Military Justice (Ir..ibWlJl.lferman6ntfL.dfLtllll.t..lclr..MU1..tar) convicted the accused of robbery and iil~gal possession of. weapons and ammunition belonging to the Bolivian army and of ~he use of false documents.
The suthors &tated that Presidential Decree (O§kro..tQ.Suprumo) No. 20,565, of 25 October 1984, order..d unrestricted amnesty (DIIlDfUit...iA .DIJlJil.lice.1rrestricto) for the seven Luribay detainees, but the armed forces refused to comply with the decree. On 30 October 1984, the Standing COU[·t of Mili'ary Justice referred the case for tl&...-OUlc.i2 review to the Supreme Court of MU l' ary Justice (II i12unal SllR[I.I!UL4L...J:.ll8t.J..C.!..ILIUli.tM), which, on 1 November 1984, retul"necl the case to thft Standing Court for appropriate actIon, without itself Is8uing u release order. It is further report~d that, on 15 November 1984, the Luribay detainees applied Cor bDhG.D.Ii~Q[~\lJi to the District Court of La Paz (C~U.!..e....llktrJ..tcl)'
c i v i 116n cout't.. , which found, on 16 November 1984, that the Presidential Decree of amnesty W&fi
After ascertaining that the case. of the alleged victims had not been registered for examination ny the Inter-N~drican Commi.sion on Human Rights, the Workil~ Group of the Human RightG Committee, by its decision of 3 July 1985. transmitted the communication, under rule 91 of the Committee's provisional rules of procedure to the btate party concerned. requesting information and observations relevant to the question of tho admissibility of the communication. The Working Group also requested the Stale partyl (a) to provide the COllllllittee with copies of any orders or decisions relevant to the case, and (b) to inform the Committee of the state of health of the alleged victims.
The Working Group found that the authors were justified in acting on behalf of WaIter Lafuente Penarrieta. Miguel Rodrlguez Candia. Oscar Rula Caceres and J~110 Cesar Toro Dorade. With regar~ to the other alleged victims. the Working Group requested the authors to 1?rovide written evidence of their authority to act on their bahalf.
In its response. dated 22 October 1985. to the Working Group's decision. the State party sald that, on 12 October 19841 "The Standing Court of Military Justice of Bolivia, by virtue of its jurisdiction, handed down a verdict and sentence at first instance against the detainees, who had been charged with robbery and illegal possession of weapons belonging to the Bolivian army, use of false documents and other offences. On 25 October 1984, the Constitutional President of the preceding Government, by Supreme Decr~e No. 20,565, granted a broad and unrestricted amnesty to the seven detainees, ordering them to be release~ and the record of the case to be filed. "On being informed of this Decree, the Standing Court of Military Justice transmitted the 'record of the case to the Supreme Court of Military Justice in order that, through its Appeals and Review Section, by means of interpretation and review as referred to in article 38 (3) of the Military Judicial Organization Act, it may trke a decision concerning priority in the application of article 228 of the Constitution, with reference to article 96 (13) of the Constitution, in re.pect of Supreme Decree No. 20,565 of 2~ October 1984, 80 that as a result of this review the appropriate legal course may be determined'."
The State party furnished the Committee with copies of Presidential Decree No. 20,565 of 25 October 1984 and of the decision of the Standing Cour~ of Military ,Justice, dated 30 October 1984, to refer the case for u.--.O.ffJ..c.i2 review to the Supreme Court of Military Justice.
The State party further indicated that the detainees were in good health.
Lastly, the State party requested that the communJ ation be declared inadmlGsible for non-exhaustion of domestir remedies, ~~nce the case was still pending before the Supreme Court of MilitalY Justice. "The decision of the Supreme Court of Military Justice, which is unappealable, amends the sentence throug-h its Cassation and Single-Instance Section, reducing- the sentence of imprisonment to three years for the detainees Rene Patricio Lizama Lira, Pablo Manuel Zepeda Camillieri and WaIter Lafuente Penarrieta, and to two years and six months for Simon Tapia Chacon, Julio Cesar Toro Dorado, Oscar Ruiz Caceres and Miguel Rodriquez Candia. The latter will have served their sentence on 24 April 1986 and the former on 24 October 1986, since the penalty runs from the first day of detention."
The State party furnished the Committee with the text of the judgement of the Supreme Court of Military Justice of 14 October 1985 and reiterated its request that the Committee declare the communication inadmissible, this time "on the grounds that the proceedinqii have been concluded" ("1"8 Que este proceso concluyo").
In their comments, dated 17 January 1986, the authors noted that the State party in its two submissions made no mention whatever of the decision of the Supreme Court of Military Justice, dated 1 November 1984, which, according to the authors, provided for the implementation of the anmesty decree by the lower court. They further pointed out that the amnesty decree had not been abrogated and that the alleg-ed victims were still in detention, 15 months after the issuance of the decree.
With respect to the state of health of the alleged victims, the authors noted that the State party had not submitted any medical certificates nor any information about their psychological state. Furthermore, they claimed that the alleg-ed victims had been deprived of medical attention for the last 18 months.
Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its provisional rules of procedure, decide whether or not it i6 admissible under the Optional Protocol to the Covenant.
Article 5, parag-raph 2 (a), of the Optional Protocol precludes the Committee from considering- a communication if the s~e matter is being examined ~nder another procedure of international investigation or settlement. The Committee again ascertained that the case was not under examination elsewhere.
Article 5, parag-raph 2 (b), of the Optional Protocol precludes the Committee from considering a communication unless domestic remedies have been exhaustod. In that connection the Committee noted that in its submission of 31 October 1985 the State party had informed the Committee of the conclusion of proceeding-s against the Luribay detainees. The Committee thus concluded that domestic remedies had been exhausted and that it was not precluded by article 5, paragraph 2 (b), of the Optional Protocol from considering- the case. -202-
With respect to the standing of the authors, the Committee noted that they had not submitted evidence of their authority to act on behalf of Simon Tapia Chacon, Rena Patricio Lizama Lira and Pab10 Manuel Zepeda Camillieri.
On 2 April 1986, the Human Rights Committee therefore decided~ (a) That the communication was admissible in so far as it related to WaIter Lafuente Peiiarrieta, Migue1 Rodr.igN~z Candia, Oscar Ruiz Caceres and vulio Casar Toro Dorado; (b) That, in accordance witn article 4, paragrr.ph 2, of the Optional Protocol, the State party should be requested to submit to ~he Committee, within six month~ of the date of the t~ansmittal to it of the current decision, written explanations or statements clarifying the matter and the remedy, if any, that might have been taken by it; (c) That the State party should be requested (i) to provide the Committee with copies of such court orders or decisions relevant to the case that hitherto had not been furnished, including the jUdgement of the Standing Court of Military Justice dated 12 October 1984, and (ii) to inform the Committee of the current state of health of the alleged victims by furnishing relevant medical certificates concerning them.
In a further submission, dated 30 May 1986, the authors claim that the Bolivian Government has violated articles 3, 6, paragraph 4, 7, 9, 10, 14, 17, paragraph 1, 23 and 26 of the Coven.ant.
With regard to article 3, the authors contend: "In no case has there been equality of rights, on the contrary, rights have been restricted even to the e~tent of preventing the use of mechanisms recognized by Bolivian laws themselves (Political Constitution of the State)."
With regard to article 6, paragraph 4, the authors repeat that: "on 25 October 1984, the Constitutional President of Bolivia, Mr. Hernan Siles Suazo, issued a Supreme Decree (Ho. 20,565) declaring an amnesty for the seven Luribay detainees. This Decree was issued und~r the authority provided for in article 96, paragraph 13, of the Bolivian Constitution and with the approval of the entire cabinet of President Siles. "In this case, because of unknown interests involving the administrators of military justice, the latter have not complied with a decre~ !laving the above-mentioned characteristics despite the fact that the relevant military legislation itself states in article 38, paragraph 4, that legal proceedings brought against any person shall cease when an amnesty is decreed." -203- "All the paragraphs of this article have been violated in that our relatives were arbitra~ily arrestedl at th~ ~ime of their arre.t, they were in a civi.Han vU ,lag8 anl.1 were in no way endangering the countrY'15 int..u'nal se~urity, lilt. alone externa~ ".fec,t.rity, since Bl)livla was not bnd is not at war. "lrticl. 9 of th~ Bblivlan Constitution sti~ulates that, for a person to be arrested, an order JIUSt be issued by a competent authoritYI in this case th~ mill,~ry forces dl1 n~t have thH authority to deprive o~~' relatives of th.h' frG' dOfi , The S~l\e article 9 ststes that no one may be held incol'" .•lDic_de, even iu o1>vloully serious case., tor more that 24 hour., in vlolatio~ of this constltutivnal provision, our relatives were held complet~ly incommunir.~uc without m~dical attention or proper food for 44 days, and no c~urt w~3 \nfo~moti of thtiir .itu~tion. "'UL'thnr;lIoc.., de.pite our demand. and pet-ition", including those tll human rights ~~stitut!ons, our relativer. were not tol4 of the reaoon. f~~ their detentIon. "Thu right of recour.e to the cour.... to redress the illegality of our relatlv4S' arbitrary detertion wa. not made effective, despite an applic~tion to ~1S'/8 the jurisdiction of the Inilltar}l courts quasbed ~nd the case tr~n~ferred to the or~inary co"rt....
W!t~ r~qard to article 10, the authors maintain thata '''rhe pcovi.lons of this art.J.cle have not been complied with .ince our relat{v.s hd~e been treated as dangerous criminals without even havlng been charged. turthtrmore, they have been rerried about from one pla~~ ~o anothrr with an escort of 100 or so .,oldiers, who were J:lointing their weapons 110t only at them, but also at us and thei~ defenders."
Witb eegard to article 14, the authors contend thatl "Once the Military trial 1-egan - desl ',t.e everyth~ng stated about it. lack of competenc. and jurisdiction - the COUI~ wa. in no way impartial and even disregarded its C~ regulations, tor the ~ole puroose of securing maximum .entence. ~~ainat our relatives for non-dxistent offences. "Choice ,r dflfence coun"el \'as also re.tricted sincs che Code of Milltary Justice (Judicial Orgpniar-tion ~ct, art. 75) atipu,latea that per.on. charge~ with an offence shall have a. defence counsel cou~t-appointed military attorh.ya in case. where the defence counsel fl~ely chos~~ by the persons charged does not meet the requiroment. of the Standing C0 ct of Milltary Ju&tlc....
With regard to article 23, the authors claim: "At no time has the State protected the detainees' families. On the contrary, we have been insulted and ill-treated, and in many cases t~rown out of offices where we went to request information on the fate of our relatives. Thus, the provisions contained in articles 6 to 21 of the Constitution have also been violated."
With regard to article 26, the authors add: "At no time have the detainees been given equal treatment; this is simply because of their different political ideas, and despite the fact that article 6 of the Constitution guarantees all citizens equality before the law and provides for protection of their rights and guarantees in accordance with the Constitution."
In its submission under article 4, paragraph 2, of the Optional Protocol, dated 24 October 1986, the State party argues that the full judicial proceedings, which the State party encloses, establish that "the military laws and the Political Constitution of the State were applied correctly". Thus, the State party contends that there has been no violation of the Covenant by Bolivia and continues: "The fact is that the defendants were found guilty of various offences which led to sentences in first instance by the Standing Court of Military Justice of six, four and two years' imprisonment on the seven detainees. "Subsequently, the Appeals Division and Sole Instance of the Supreme Court of Military Justice of the Nation reduced the penalties to three years' imprisonment in thE. case of WaIter Lafuente Peiiarrieta, Rene Patricio Lizama Lira and Pablo Manuel Zepeda, and to two years and six months' imprisonment for the remaining detainees. "According to the report of Colonel Rene Pinilla Godoy Dema, Judge Reporter of the Standing Court of Military Justice, Mr. Miguel Rodriguez Candia, Mr. Oscar Ruiz Caceres, Mr. Simon Tapia Chacon and Mr. Julio Cesar Toro Dorado were unconditionally released and are now with their families and in good health, as the Centre for Human Rights may ascertain through the United Nations Resident Representative in Bolivia. "With regard to the last three detainees, Mr. WaIter Lafuente Peiiarrieta, Mr. Pablo Manuel Zepeda and Mr. Rene Patricio Lizama Lira, the last two of Chilean nationality, they were released on this very day. according to an official communication, in conformity with the judgement of the Appeals Division and Sole Instance of the Supreme Court of Military Justice. which forms part of the Bolivian jUdicial system and acts independently in accordance with the separation of powers provided for in article 2 ~f the Political Constitution of the State." -205-
In their comments. dated 18 March 1987. the authors contend that the State party has not refuted "in any way the statements by the relatives of the eX-detainees in our note of 30 May 1986. which deals with the problem of substance and not of form. that our children's detention was accompanied by torture. solitary confinement. harassment. partiality. denial of justice and a whole series of violations of the human rights set forth in the International Covenant on Civil and Political Rights".
By a letter dated 19 July 1987. one of the seven Luribay detainees. WaIter Lafuente Penarrieta, who was released on 24 October 1986. confirmed the description of the facts set out in paragraphs 1.1 to 1.9, 5.1 and 5.2. and 10.1 to
Mr. Lafuente also confirmed that it was his wish that the Committee continue consideration of his case.
The Human Rights Committee has considered the present communication in the light of all information made available to it by the parties. as provided in article 5, paragraph 1. of the Optional Protocol. Before adopting its views. the Committee took into consideration the State party's objection to the admissibility of the communication. but the Committee can see no justification for reviewing its decision on admissibility on the basis of the State party's contention that. because the victims have been released, the case should be considered closed.
The Committee therefore decides to base its views on the following facts, which are either uncontested or are implicitly or explicitly contested by the State party only by denials of a general character offering no particular information or explanations.
Walter Lafuente Penarrieta, Miguel Rodriguez Candia, Oscar RU1Z Caceres and Julio Casar Toro Dorado were arrested on 24 October 1983 near Luribay by members of the Bolivian armed forces on suspicion of being "guerril1eros". During the first 15 days of detention they were subjected to torture and ill-treatment and kept incommunicado for 44 days. They were held under inhuman prison conditions, in solitary confinement in very small, humi~ cells, and were denied proper medical attention. They had no access to legal counsel until 44 days after their detention. On 16 December 1983 the first public hearing took place before a military court. The indictment was framed by the Military Prosecutor on 18 July 1984, charging the accused with robbery and illegal possession of weapons belonging to the Bolivian army and with the use of false documents. On 12 October 1984, they were convicted of those crimes by the Standing Court of Military Justice. On 25 October 1984, the Constitutional President of the Republic, Hernan Siles Suazo, granted a broad ~d unrestricted amnesty to the Luribay detainees, ordering that they be released and that the record of the case be filed. They were, however, not released. On 30 October 1984 the Standing Court of Military Justice referred the case to the Supreme Court of Military Justice, which did not order the release of the detainees. but handed down a final judgement on 14 October 1985, sentencing the detainees to three and two and a half years of imprisonment. The detainees were released on 24 April and 24 October 1986. -206-
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee disclose violations of the Covenant with respect to: Article 7, because WaIter Lafuente Penarrieta, Miguel Rodriguez Candia, Oscar Ruiz Caceres and Julio Cesar Toro Dorado were subjected to torture and inhuman treatment; Articles 9, paragraph 3, and 10, paragraph 1, because they were not brought promptly before a judge, but were kept incommunicado for 44 days following their arrest; and Article 14, paragraph 3 (b), because during the initial 44 days of detention they had no access to legal counsel.
The Committee lacks sufficient evidence to make findings with regard to the other claims made by the authors.
The Committee, accordingly, is of the view that the State party is under an obligation, in accordance with the provisions of article 2 of the Covenant, to take effective measures to remedy the violations suffered by the victims, to grant them compensation, to investigate said viol~tions, to take action thereon as appropriate and to take steps to ensure that similar violations do not occur in the future.
October 1984 (date of initial letter) Date of decision on admissibility: 2 April 1986 The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights, Meeting on 5 November 1987, -207-