The original author of the communication (letter dated 20 December 1983) is Vicenta Acosta, a Uruguayan national residing in Uruguay. She submitted the communication on behalf of her son, Ornar Berterretche Acosta, a Uruguayan national born on 23 February 1927, who was detained in Uruguay from September 1977 until 1 March 1985. He joined as co-author of the communicatio~ by letter receivsd on 3 ,JUly 1985.
It is stated that Qmar Berterretche is an architect and meteorologist and that p~ior to his detention he was employed as SUb-director of ~eather forecasting in Uruguay's Department ot Meteorology and as professor of dynamics, 8erodynami~s, mathematics and physics at various institutions. He was detained for the first time in January 1976 and allegAdly subjected to torture; he was released on
February 1976 without being charged. He was arrested for the second time on 7 September 1977 at police headquarters in Montevideo, Whel"e he had gone to pick up his passport to go abroad. One day later his family learned of his detention, but
The military judge of first instance imposed on him a term of imprisonment of 24 months, on charges of assisting subversion. The Government prosecutor charged him further with providing military intelligence to the Communist Party and asked for a six-year sentence. The Supreme Military Tribunal sentenced him to 14 years' imprisonment.
By its decision of 22 March 1984, the Working Group of the Human Rights Committee, having decided that Vicenta Acosta was justified in acting on behalf of the alleged victim, transmitted the communication under rule 91 of the provisional rules of procedure to the State party concerned, requesting information and observations relevant to the question of admissibility of the communication. The Working Group also requested the State party to provido the Committee with copies of any court orders 01' decisions relevant to tha case and to inform the Committee of the state of health of Omar Berterretche.
In a submission dated 28 August 1984 the State party informed the Committee that on 5 June 1980 Mr. Ornar W. Berterretche was sentenced in second instance to 14 years' imprisonr,lent for committing the oCfencel:i of "subversive associations", "assault on the material strength of the army, navy and air force by es!?ionage", "espionage" and "attack against the Constitution in U.e degree of conspiracy, followed by preparatory acts" all covered by the Military Penal Code. Concerning his state of health, th~ State party declares the followingl "patient suffering from gastro-enteritis which is treated and controlled. At present, stabilized."
The present Uruguayan Government came to power on 1 March 1985. Pursuant to an amnesty law enacted by that Government on 8 March 1985, all political prisoners were released and all forms of political banishment were lifted.
In an undated letter received on 3 July 1985, Mr. Berterretche joined ilis mother as co-author of the communication, indicating that he had been releclHed from imprisonment in March 1985 and requesting the Committee to continue consideration of the communication. He confirmed that the facts as described by his mother were correct and made the following comments on the State party's Bubmission of 24 August 19841 "It is stated that I am suffering from gastro-enteritis but that this is now stabilized. This is only a half truth since I was only half-treated medically, i.e. in an inadequate manner. The fact is obviously concealed that I am SUffering from nervous hypertension, which is of a serious nature because of its extreme variability and which is also inadequately controlled. Also concealed is the cardiac problem which has developed since 1 was tortured. No reference is made to the fact that, from the time I was first captured And during the interrogations leading to my indictment I was subjected to physical abuse such as beatings, stringing up, asphyxiatIon, electric shocks and long periods of forced standing in the cold without anything to drink or eRt. None of this is mentioned. No reference is made either to the fact that, in the absence of firm evidence to convict me I was declared a 'spy'. On thifi ground, the procedure was drawn out indefinitely, as I was progceRsively sentenced to 12 months, then 8 1/2 years and finally 14 years oC imprinonment., without any aggravDting factor having intervened in the interim. "Libertad prison, in which I was held, was a place of genuinely repugnant and constant repression, carried out by specialized personnel who were rotated in order that they should not suffer the fatigue which this type of duty inevitably produces. "Th'e following provides evidence of the pleasure that was taken in carrying out torture at Libertad prison. It was a case of torture of the nerves, practised on me and my family, as on many others. On 1 September 1981, the day on which I had served exactly four years of detention, I was informed that I was to report to the warden's office. Also ordered to report were some of my companions who were informed of several decisions, some of them being told that they were to be released. As for me, I was informed that I had been granted freedom. I was informed of this by a military court established there and I was asked to give my address. This is a normal procedure when release is approved. I informed my family, which, when they sought confirmation of my release, were informed that there had been a mistake. "In view of the foregoing, I have to make the following statement: (a) I wish my case to remain open because, in view of the treatment to which I was SUbjected, it is necessary to measure not only the moral damage caused to me and my family and the damage inflicted on the State by the d~_la~tQ Government, but also the damage constituted by the fact that despite all the efforts I have made, I &n still without work. In other words, I have so far not been reinstated in the School of Meteorology or in the Department oC Meteorology and, at the age of 58, it is very difficult for me to obtain a position. (b) I wish my case to remain open in case it is possible to conduct further inquiries and because I shall continue to fight for the genuine welfare of mankind, for its rights and for the possibility for it to live in peace and freednm, as I believe this to be one of the aims man has always pursued."
Before considering any claims contained in a communication, the Hwnan Rights Committee must, in accordance with rule 87 of its provisional rules of procedure, rlecide whether or not it is admissible under th., Optional Protocol to the Cuvenant. The Committee did not rind that any of the procedural obstacles laid down in articles 2, 3 or 5 or the Optional Protocol existed in the present case . .,. Un 11 JUly 1985 the Committee therefore decided: that the communication was i'\dmissible in so rar as the [rH.:ls submitt.ed l"l:!lale to events which allegedly took plnce alter 23 March 1976, the d~te on which the Covenaat and the Optional Protocol nntered into Corcl"' ror Uruguay. The St.ate party wos requested, in accot'dance with 8rticle 4, paragraph 2 01 the l)ptionAl Protocol, to submit written explanations or slnlements clarifying the matter nnd the measures, ie any, that might have been t.aken by it and, again, to furniGh the Committee with copies of all court orders and decisions relevant to the eRse. The Committee's decision was transmitted to the I:'nrties on t August 1905, together with an indication that the .\uthorE; wuuld be
By note of 3 January 1986 the State party confirmed its intention to co-operate with the Committee and stated that it would forward copies of the relevant conrt orders and dwcisions. On 12 December 1986 the State party transmitted copies of the judgement of the Supreme Military Tribunal, dated 5 June 1980, as well as transcripts of the hearings and decilions of the lower courts.
The text of the State party's submissions of 3 January and 12 December 1986 was dispatched to the authors on 18 December 1986 by registered mail. The dispatch was returned by the postal authorities on 1 Apl'il 1987 with an indication that the authors had moved, without leaving a forwarding address. Delivery was therefore unsuccessful. By letter of 16 November 1987, Mr. Berterretche Acosta re-established contact with the Committee and indicated that it was his intention to furnish further information in respect of hi. case. The submissions of the State party of 3 January and 12 December 1986 were thereupon retransmitted to him. Again, he was afforded an opportunity to comment on the State party's submissions. No further information or comments have been received from him, to date.
The Human Rights CommiLtee has considered the present communication in the light of all the information made available to it by the parties as provided in article 5, paragraph 1, of the Optional Protocol. ~he Committee observes in this connection that the information provided by the authors in substantiation of the allegations is somewhat limited. In the circumstances, and in the absence of any comments from the authors on the extensive court records submitted by the State party, the Committee will limit itself to pronouncing on the allegations of ill-treatment and torture, which have not been contradicted by the State party.
The authors' allegations concerning ill-treatment and torture, and the consequences thereof, are ba8ic~11y the followingl (a) Mr. Berterretch. Acosta's mother alleges in the initial letter that her son was subjected to torture at the time he was detained for the first time, from January to February 1976. She also states that her son was held incommunicado for 40 days from the time he was arrested for the second time, on 7 September 1977 (para. 2.1 above), (b) In his comments on the State party's submission of 28 August 1984, Mr. 8erterretche Acosta observes that no reference is made in the State party's submission "to the fact that from the time I was first captured and during the interrogations leading to my indictment, I was subjected to physical abuse such as beatings, stringing up, asphyxiation, electric shocks and long periods of forced &tanding in the cold without anything to drink or eat" (para. 5 above), (c) As to alleged psychological torture carried out at Libertad pris~n, Mr. 8erterretche Acosta refers to the events on 7 September 1981, at which time he was told that he had been granted freedom, and the subsequent explanation given to his family "that there had been a mistake" (para. 5 above), (d) As to the consequences of his treatment while in detention, Mr. Berterretche further observes in his comments on the State party's submission (e) Onar Berterretche further states that as a result of his detention he has lost his employment and has not been reinstated, is without work and that it has been d.iff!cult for him to find new employment.
The Committee observes in this connection, firstly, that the allegations conceruing the treatment of Mr. Berterretche Acosta in January and February 1976 fall outside its competencQ, as they relate to a period of time prior to the entry into force of the Covenant on 23 March 1976. Secondly, the Committee observes th"t Mr. BerterretchQ Acosta's allegations of physical abuse, contained in the comments received from him in July 1985, are to some extent unclear. As to when the alleged torture took place he employs the languBge "from the time I was first captured and duriug the interrogations leading to my indictment". Read in context, however, and lIot.ing that Mr. Berterretche Acosta was not charged at the time he was held in captivity in January and February 1976, it can be assumed that the allegations refer to the period of time from his second arrest, on 7 September 1977, until he was indicted. Mr. Berterretche Acosta does not explain when he was indicted, but from the court records subsequently provided by the Stete party (see para. 6 above) it transpires that he was indicted on 17 October 1977. This corresponds to the period of 40 days, during which Mr. Berterretche Acosta was allegedly held incommunicado (see para. 2.1 above).
In formulating its views, the Human Rights Committee notes that the State party has not offered any explanations or statements concerning the treatment of Mr. Berterretche Acosta frem 7 September to 17 October 1977 and the circumstances of his detention during that time. Although his ~escription of what Rllegedly happened is very brief, it is implicit in article 4, paragraph 2, of the Optional Protocol that the St3te party has a duty to investigate such allegAtions in good faith and to inform the Committee of the results. The Committee further notes that the State party has offered no comments in respect of the alleged conditions of detention at Libertad prison and the consequences thereof (plua. 10 (2». In the cl rcumstances, due weignt must be given to the authora I allegations.
The Committee has taken account of the change of Government in Uruguay on I March 1985 and the enactment of special legisletion aimed at the restoration of rights of victims of the previous military regime. The Committee is also fully aware of the other relevant aspects of the legal situation prevailing now in llruguay. but it remainA convinced that there is no basis to exonerate the State party Crom its obligation under article 2 of the Covenant to ensure that Bny person who~e rights or freedoms have been violated shall have an effective remedy, and to enHura that the competont authorities shall enforce such remedies. Ll. The Human Rights Committee, acting under article 5, paragraph 4, of the (~tional Protocol to the International Covenant on Civil and Political Rights, is ur the view that the events of this case in so far as they occurred aftor ~] March 1976 (the date on which the Covenant and the Optional Protocol entered into Coree for Uruguay), disclose violations of the International Covenant on Civil Dnd Political Rights, particularly 0(:
The Committee, accordingly, is of the view that the State party is under an obligation to take effective measures to remedy the violations which Ornar Berterretche has suffered, and to provide him with adequate compensation.