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OEA/Ser.L/V/II.54 ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
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CHAPTER
V GENERAL
SITUATION OF HUMAN RIGHTS IN THE MEMBER STATES OF THE OAS AND
AREAS IN WHICH FURTHER STEPS ARE NEEDED TO GIVE EFFECT TO THE HUMAN
RIGHTS SET FORTH IN THE AMERICAN DECLARATION OF THE RIGHTS AND
DUTIES OF MAN AND THE AMERICAN CONVENTION ON HUMAN RIGHTS
In its tenth regular session, the General Assembly of the OAS
adopted Resolution 510 (X-0/80) concerning the Annual Report and Special
Reports of the IACHR which, inter-alia, urged those governments of
the member states that have not yet done so to adopt and put into practice
the necessary measures to preserve and safeguard the full exercise of
human rights, especially in those cases that concern the status of
individuals detained without due process, the disappearance of persons,
the return of exiles and the lifting of state of emergency (resolutive
paragraph 3); it also recommended to the member states that, bearing in
mind Chapter VI of the Annual Report of the Commission, they continue to
adopt and apply measures and legislative provisions for preserving and
maintaining the full exercise of human rights in accordance with the
American Declaration of the Rights and Duties of Man (resolutive paragraph
4);; likewise it reiterated the need to avoid and, where appropriate, to
put an immediate end to serious violations of fundamental human rights,
especially the rights to life and to personal security and freedom, and
also reaffirmed that summary execution, torture, and prolonged detention
without due process are violations of human rights (resolutive paragraph
5); and it recommended to those member states that have not yet done so
that they reestablish or perfect the democratic system of government, in
which the exercise of power derives from the legitimate and free
expression of the will of the people, in accordance with the particular
characteristics and circumstances of each country (resolutive paragraph
6).
In light of these recommendations, the Commission has carefully
observed the situation of human rights in all the member states of the
Organization, and it regrets to inform the General Assembly that, as a
general rule, its recommendations have not been taken into consideration
by many governments of the member states of the OAS.
It is true that some states have experienced progress in the
observance of the human rights recognized in the American Declaration of
the Rights and Duties of Man by considerably diminishing the violations
that characterize the conduct of the governments of those states in the
field of human rights or, as in the case of other states, by having
enacted measures for a rapid re-establishment of a democratic regime.
Likewise, as has been noted in the previous chapter, some governments have
adopted legislative measures which, according to their criteria, tend to
protect human rights more effectively. It is also important to note that
during the period covered by this report, Mexico acceded to the American
Convention on Human Rights, and Peru, Venezuela and Honduras recognized as
binding the jurisdiction of the Inter-American Court of Human Rights.
Nevertheless, the situation has not improved in most of the states which
have been subjects of previous special reports by the Commission, and in
some cases it has deteriorated due to the generalized and even
institutionalized governmental repression.
It is the opinion of the Commission that during the period covered
by this report, the principal manifestations of violations of human rights
have been summary executions; the lack of clarification of the situation
of those persons that have disappeared after detention; the continuation
or enactment of states of emergency which grant broad powers to chiefs of
state for an unlimited or prolonged period of time and which inhibit the
judicial power from fulfilling its natural functions; detention without
due process, usually accompanied by torture; expulsion of political
dissidents from their national territory without due process; the
limitation of the exercise of freedom of expression and information; the
denial of political rights; and the attempts made against institutions
working in the field of human rights.
Each of these situations shall be analyzed separately, attempting
in each case to point out some representative examples that may illustrate
the situation described by the Commission.
At the same time that the Commission deals with these violations of
human rights, it also wishes to reiterate an opinion expressed in its
previous annual report, that effective protection of human rights should
also extend to economic, social and cultural rights; this position is also
taken in the above mentioned Resolution 510 of the General Assembly.
Finally, in this section the Commission would like to call to the
attention of the General Assembly new areas in which measures could be
taken to give greater effect to human rights. Among those, the Commission
shall address certain problems concerning refugees and the incorporation
into society of sectors or persons that are presently marginalized, such
as those who are physically or mentally handicapped.
During the period covered by this report, the most serious
violation of human rights concerning the right to life, took the form of
summary execution. Such executions occur primarily, although not
exclusively, in El Salvador and Guatemala.
In the context of the climate of generalized violence prevalent in
these two countries, there occurs, in alarming numbers, what the
Commission calls illegal or extrajudicial executions.
In most cases such executions were directly committed by security
forces which act with impunity outside the law, as well as by paramilitary
groups which operate with the acquiescence or tacit consent of the
governments.
As a general rule, such consent has indicated that governmental
authorities do not carry out adequate and effective investigations to
determine those responsible for these crimes.
The Commission has repeatedly emphasized the obligation of
governments to maintain public order to protect the life and the security
of its inhabitants. With such objectives in mind, the Commission has
expressed that governments must prevent and suppress energetically all
incidents of violence, regardless of where they may originate, even if it
is necessary to suspend temporarily the exercise of certain human rights.
However, unnecessary as it may seem to reiterate, the right to life
may never be suspended. Governments may not use, under any circumstances
illegal or summary execution to restore public order. This type of measure
is proscribed by the constitutions of the states and the international
instruments that protect the fundamental rights of persons.
As the Commission has said, states cannot employ state terrorism to
combat subversive terrorism. The rule of law must be the guide which
orients the conduct of those in power. An independent judiciary, with
sufficient resources and power to punish abuses by the authorities and by
private individuals, should be one of the fundamental elements to restore
the lost value of the right to life.
The Commission has also considered cases of deaths occurring on a
smaller scale, in other countries such as Bolivia and Uruguay, under
irregular circumstances, such as at the moment of detention, or when the
detained persons were in jail. These cases are of concern to the
Commission not only because they involve death or summary execution, but
also because of the lack of investigation and punishment of those
responsible.
As was pointed out in the General Assembly of the Organization last
year, the government cannot remain passive in the face of these events.
Their duty and obligation when these events occur requires the use of all
means at their disposal to investigate the occurrences and to impose the
weight of the law on those responsible for the crimes.
Likewise in this field, the governments should not use paramilitary
groups which operate outside the Constitution and the law, and should
instruct and train the regular security forces so that they may adequately
contribute to the elimination of these pernicious groups.
The phenomenon of illegal execution is further aggravated by the
deplorable circumstances surrounding the deaths. In many instances, the
bodies found show signs of brutal torture. Frequently the bodies are found
naked, without any identification, sometimes burned, women usually raped
and, the bodies bearing signs of having been subjected to prolonged
torture that clearly was the direct cause of death.
The Commission urges member states to put an immediate end to this
serious practice of illegal executions carried out by security forces or
para-military groups which operate with the consent of the government. To
that end, in addition to the preventive measures that may be opportune,
including those that may lead to an end to violence by peaceful and
democratic procedures, it is necessary that thorough investigations are
carried out by an independent judicial branch which has sufficient powers
and that subsequently those responsible for these illegal executions be
punished. DISAPPEARANCES
AFTER DETENTION
In several annual reports, the Commission has stated its position
on this serious violation of human rights. It has pointed out that there
are many cases, in different countries, in which the government
systematically denies the detention of persons, even though there is
convincing evidence provided by the claimants to prove their charges that
such persons have been arrested by the police or military authorities, and
that, in some cases they are or have been kept in specific places of
detention.
In its previous reports, the Commission has expressed that this
procedure is cruel and inhuman and that experience has shown that
“disappearance” not only constitutes an arbitrary deprivation of
freedom but also a serious danger to the physical integrity, the security
and the life itself, of the victim. Likewise, it affects relatives and
friends and creates serious mental disorders for children who have
witnessed the detention. It has been the opinion of the Commission that
the status of “disappeared” seems to be a comfortable expedient to
avoid application of the legal provisions established for the defense of
personal freedom, physical security, dignity and human life itself. In
practice, this procedure nullifies the legal standards established in
recent years in some countries to avoid illegal application of the use of
physical and psychological duress against persons detained.
For its part, the General Assembly of the Organization at its tenth
regular session, in Resolution 510, concerning the annual report and
special reports of the IACHR, referred to this matter in paragraphs 12 and
13 in the following manner:
12. To emphasize the need to
put an immediate end, in those countries in which it may occur, to any
practice that leads to the disappearance of persons and also to urge that
the necessary efforts be made to determine the status of persons whose
disappearance has been reported.
13. To recommend to the
government, in connection with the preceding paragraph, that central
records be established to account for all persons that have been detained,
so that their relatives and other interested persons may promptly learn of
any arrest that may have been made; to request that the arrests be made
only by competent and duly identified authorities, and that the arrested
persons be kept in premises designed for that purpose.
Judging by the denunciations received, during the period 1980-1981,
the use of this inhumane practice has apparently diminished,
notwithstanding the cases the Commission has set forth and analyzed
extensively in its special report on Guatemala.
The Commission feels, together with other organizations working in
the field of human rights, that it has contributed in a considerable way
to reducing the proportions of this cruel and illegal procedure.
Nevertheless, it should be pointed out that the problem of disappearances
after detention has not been overcome or completely solved until a
clarification and a full report on the whereabouts and situation of the
persons whose disappearance has been denounced. In this sense, the
Commission would like to reiterate the recommendation made in previous
reports to the Argentine and Chilean Governments, insofar as during this
period there has been no information clarifying the numerous denunciations
earlier presented to the Commission.
Finally, in relation to this subject, the IACHR would like to
insist that the structures which have permitted disappearances to occur
still persist, as can be shown by detentions carried out by elements of
the security forces with the acquiescence or consent of the government
followed by a period in which the authorities, especially the police, deny
detention, including as in some cases that have been brought to the
attention of the Commission, in the responses that the authorities give to
the judges responsible for deciding writs of habeas corpus.
For example, in Argentina, Angel Antonio Romano was detained in San
Francisco Solano, Province of Buenos Aires, on March 27, 1981, at five
o'clock in the morning, by agents dressed in civilian clothes, who showed
their police credentials. Romano's whereabouts were unknown for eight
days, during which time the military police and civilian authorities
denied his detention. On April 3, the Chief of Police of the Province of
Buenos Aires, in the face of public denunciations, acknowledged the
detention. There have been other similar cases in Argentina.
Likewise, in Honduras, on September 12, 1981, Marco Virgilio Carías
and Rogelio Martínez were detained in Ciudad del Paraíso and their
detention was subsequently denied for 10 days; after having been tortured,
they were abandoned in an isolated area.
This conduct deserves special attention from the member states,
since avoiding with impunity the application of the legal norms concerning
detention may mean the transformation of these abusive tactics of
subordinate individuals into a generalized practice. Likewise, this lack
of an immediate acknowledgement of detention may lead to the disappearance
of a person or to the practice of other abuses, which endanger the life,
or physical integrity of the person detained. This is why the Commission
feels the need to reiterate the statement contained in paragraph 13 of the
Resolution of the General Assembly previously mentioned.
Political and social conflict have led some American States to
adopt measures such as the declaration of “state of siege”, “state
of emergency”, “state of internal war”, “state of disturbance of
the peace or internal security”, the application of martial law or the
adoption of “prompt security measures”.
The Commission recognizes that the defense of public order and the
security of the state fully justify the attribution of extraordinary
powers to certain organs of the central government to be exercised with
the objective of preserving democratic institutions or the integrity and
sovereignty of the state during the period that the emergency lasts.
However, in practice in many instances these states of emergency
have been enacted without the circumstances warranting it, as a simple
means of increasing the margin of discretion of the exercise of public
power. This contradiction becomes evident when the public authorities
themselves state, on the one hand, that there is a climate of social peace
in the country and, on the other, establish these exceptional measures,
which may only be justified in the face of real threats to the public
order or the security of the state. Even more serious is the enactment of
these states of emergency for indefinite or prolonged periods of time,
above all when they grant the Chief of State a broad concentration of
power, including the inhibition of the judiciary concerning the measures
enacted by the executive, which may lead, in certain cases to the denial
itself of the existence of the rule of law.
At the time of the approval of this report, several American states
had decreed these measures of exception, although in different degrees and
granting the Chiefs of State powers which vary from country to country. In
Argentina, the state of siege has been in force for several years, since
it was declared before the military takeover of 1976, during the
government of María Estela Martínez de Perón, by virtue of decree 1368
of March 6, 1974. The Military Government has continued to extend it. The
state of siege finds its basis in Article 23 of the Constitution which
authorizes the suspension of Constitutional guarantees, including the
right of the President of the Republic to arrest persons connected with
those causes which motivated the declaration of the state of siege, or to
transfer them from one place to another in the country, if they do not
wish to leave Argentine territory.
When the Bolivian government came to power on July 17, 1980, even
though it did not declare a state of siege, the entire territory was
militarized, bringing into force some military legislation. Such
legislation has limited considerably public liberties. The state of siege
which is in force today in Colombia was actually proclaimed in 1948, and
has only been suspended on some occasions. In this way, it has become an
almost permanent system, while the government argues that it is necessary
to confront political violence. Its enactment finds its basis in Article
121 of the Constitution of 1886, which does not authorize the suspension
or derogation of constitutional and legal provisions, although in
practice, its systematic application has given rise to a regime of
exception, which by the length of time that it has been in force, has
affected the full exercise of human rights.
Since coming to power in September 1973, the Chilean regime has
enforced successive states of emergency. On March 11, 1981, together with
the promulgation of a new constitution, the country was declared in a
“state of danger of disturbance of the internal peace” for six months,
which was extended for another six on September 11, 1981. The powers
accorded by this state of exception are very broad, in conformity with
temporary provision number 24 of the Constitution. In effect, this
provision (whish shall be in force until 1989) authorizes the President of
the Republic to adopt any of the following measures: “a) to detain
persons up to 5 days in their own homes or in places that are not jails.
If terrorist acts with serious consequences occur, this period may be
extended an additional 15 days; b) to restrict the right of assembly and
freedom of information, the latter with respect to the establishment,
publication, or circulation of new publications; c) to forbid entry or to
expel from the national territory those persons who advocate doctrines
prohibited by the Constitution, those that are known or have the
reputation of being activists committed to such doctrines and those that
carry out acts contrary to the interests of Chile or who constitute a
danger or threat to the internal peace; and d) to determine the compulsory
location of certain persons in an urban locality in the national territory
up to 3 months. These provisions add that these powers of the President of
the Republic “shall not be appealable, except for reconsideration before
the authority that applied the measure”, that is, the judiciary is
prevented from intervening in areas that may permanently or indefinitely
affect fundamental rights of a person, such as the right to live in his
own country.
In Grenada, the Constitution has been suspended since the New Jewel
Movement took power on March 31, 1979. While it has not formally declared
a state of emergency, the lack of legal constraints due to the suspension
of the Constitution has permitted the enactment of some laws, such as
People's Law Nº 8 which establishes a preventive detention tribunal that
institutionalizes detentions without due process for those that the
government considers are carrying out counter-revolutionary activities.
A state of siege has been maintained uninterruptedly in El
Salvador. On September 8, 1981, the Government Junta also extended martial
law, which ostensibly restricts constitutional guarantees but which the
Government considers necessary to confront the extremist offensive.
In Haiti, under the presidency of both François Duvalier and
Jean-Claude Duvalier, the legislative branch has adopted the practice of
issuing at the end of its annual session, two decrees which confer full
powers upon the Executive Power during the legislative recess and which
suspend for an equal period of time the most important constitutional
guarantees. In general, this parliamentary recess begins in the month of
August and continues until April of the following year. During the period
of recess, the Haitian people are deprived of their constitutional rights
and the most fundamental human rights. This practice has continued in the
last years and it has meant in practice the suspension of most of the
guarantees recognized in the 1971 Constitution, which also recognizes in
Article 1971 the state of siege, although these institutions as such have
not been in fact the object of recent applications.
In Nicaragua, even though the law of national emergency enacted in
August of 1979, a few days after the revolutionary victory, was permitted
to expire in April of 1980, certain laws have been subsequently
promulgated which increased considerably the discretion of the Executive
power, which permit abuses to be committed against political dissidents.
Along these lines, the law of Maintenance of Order and Public Security of
1980, which has been applied to those accused of counter-revolutionary
activities, merits special consideration. Recently, on September 9, 1981,
the Nicaraguan government announced the enactment for one year of the
“State of Social and Economic Emergency” designed to strengthen public
finances, to prevent the flight of capital and increase productivity.
Although the Commission is not in a position to issue an opinion on such
matters, which regulate in great measure issues that fall exclusively
within domestic jurisdiction, it cannot fail to point out that the
imprecision and excessive generalizations in the definition of prohibited
conduct in the state of emergency decree could result in an overbroad and
arbitrary application of the decree.
In Paraguay, the state of siege was enforced by Article 79 of the
Constitution and considerably limits constitutional guarantees. Even
though in the last few years the state of siege has been in force only in
the Central Department of the Republic, which includes the capital of
Asuncion, in practice, the situation is generalized to the rest of the
country by permitting transfer to the capital of persons detained under
the state of siege in other parts of the national territory.
The state of emergency also continues in force in Uruguay, by
virtue of the National Security Law published by the National Congress on
July 10, 1972. This law, which continues in force, suspends certain
constitutional guarantees concerning persons accused of subversive
activities, and stipulates trials by military instead of civilian
tribunals. Consequently, Decree 393/973 of June 1, 1973, provided for the
indefinite suspension of several constitutional guarantees in accordance
with the extended exercise of the emergency power, in accordance with
Article 168, paragraph 17, of the Constitution of 1967. In addition,
several institutional acts, published as of 1976, have institutionalized
the state of emergency in Uruguay.
As the Commission has repeatedly pointed out, if there are special
circumstances that justify it, it is evident that the provisions
established for periods of normalcy cannot be applied without serious
risks for the preservation of public order and security of the state; but,
at the same time, the application of norms of exception cannot, nor should
not, have as the consequence the repeated violations of fundamental
rights, as is unfortunately occurring in some of the countries mentioned
above.
The Commission is particularly concerned about two violations of
human rights that have their origin in the power conferred by the state of
emergency: detention without due process and the expulsion of nationals.
From a quantitative point of view, detentions without due process
constituted the largest number of violations of human rights committed
during the period covered by this report and concerning which the IACHR
received the greatest number of communications. Many of these
communications allege that the detention was followed by torture.
These violations of human rights were possible, in large measure,
due to the states of emergency which permit excessive and arbitrary powers
to detain without cause or due process those whom the authorities consider
a threat to national security, even though they may be (as the Commission
was able to determine from most of the communications received) lawyers
working for the defense of human rights, trade union leaders,
intellectuals or political dissidents, none of whom used or advocated
violence.
As has been pointed out, in some states arbitrary detentions were
even carried out without the support of any juridical norm, by the simple
decision or consent of a public authority in face of the action of the
security forces or para-military groups linked to these forces. This
situation is, of course, much more serious.
During the period covered by this report, there are several
countries in which detentions without due process occurred with greater
frequency or in which such detentions have been carried over from previous
years.
Even though during the last 12 months in Argentina, the number of
detentions has been reduced based on the powers of the state of siege
accorded to the President of the Republic, there continue to be about 700
people arrested without charge at the disposition of the Executive branch.
All these persons have been detained for several years without due
process, without trial and without the minimum guarantees inherent in due
process. On the other hand, the Commission should emphasize that the
system for period review of the cases of persons detained at the
disposition of the Executive has permitted the release of many of the
persons detained. According to information provided by the Argentine
government, during 1980 and until the end of August of 1981, 742
detentions were terminated.
In Bolivia, as a result of the coup of July 1980, thousands of
persons were detained, and although most were subsequently set free,
arbitrary detentions have persisted. The writ of habeas corpus has
not been effective.
According to the information and communications received by the
Commission, hundreds of persons were detained or exiled in Chile during
1980-1981, in the exercise of the exceptional powers that temporary
provision 24 accords to the Chief of State during the first three months
following the proclamation of the new Constitution. In the city of
Santiago alone, 158 persons were detained and 16 were exiled to
inhospitable places in the interior of the country.
By virtue of People's Law Nº 8, the Government of Grenada has
detained a considerable number of persons without due process “for
counter-revolutionary activities”.
During the period covered by this report, dozens of persons have
been arrested in Haiti, most of them intellectuals, journalists, or
opposition politicians, without the procedures of due process.
In Nicaragua, in addition to the former somocistas that were
condemned without the guarantees of due process, (“roes somocistas”)
as the Commission was able to verify in its Report on the situation of
human rights in that country (OEA/Ser.L/V_II.45, doc.16, rev. 1, of
November 17, 1978) and independently of their responsibility, in
application of the law for the Maintenance of Order and Public Security,
several political dissidents in opposition to the present regime have been
detained.
In Paraguay, although detentions have decreased in comparison to
previous years, important political leaders of the opposition have been
detained by virtue of the state of siege and, in addition, at least in
three cases, the Commission has been aware that persons who had served
their sentence for common crimes, have been detained again without the
right of due process, in accordance with the state of siege, setting a
very serious precedent with respect to the power of the judiciary.
In Uruguay, even though arbitrary detentions have decreased, the
Commission has continued to receive denunciations of detentions, based
exclusively on the prompt security measures in force.
Without analyzing at this moment those detentions carried out by
security organs or para-military groups, without any legal basis
whatsoever but carried out with the consent of the governmental
authorities, and whose serious nature has already been pointed out in
another part of this report, the Commission would like to reiterate at
this point its opinion that the deprivation of personal liberty for
prolonged or indefinite periods of time without due process or formal
charges, violates human rights and implies the application by the
Executive Power of real penalties which violates the right to liberty,
justice and due process.
Likewise, the Commission knows that these detentions practiced by
the Executive Power and which are not subject to review by the judiciary,
also implies the negation of the functions of the latter power, which
constitutes an attempted violation of the separation of public powers
which is one of the bases of any democratic society.
For the same considerations expressed the Commission urges the
member states of the OAS that the detentions carried out under the state
of emergency be for brief periods and always subject to review by the
judiciary, in cases of abuses committed by the authorities who have
ordered them.
The right of every person to live in his own country, to leave and
return when he deems convenient has not been the object of controversy
until quite recently. In fact, such an elemental right is recognized in
every international instrument that protects human rights.
Notwithstanding, in the last few years some states of the
hemisphere have expelled nationals—something that was conceivable until
very recently only as a penalty for a very serious crime and after due
process—as a means of eliminating those political dissidents that the
government considers a threat to its internal security.
These expulsions have been administratively decreed, without any
type of due process, and generally for indefinite periods of time, which
further increase the cruelty and irrationality of the measure, by making
this punishment even more onerous than that which applies to the
commission of a crime, which is usually a specific penalty in its temporal
application. Likewise, on some occasions these expulsions have been
carried out without the approval of the state to which those expelled have
been transferred, which is a violation of international law. Regrettably, without taking into account thousands of persons who were expelled earlier and who are barred from returning to their country, during the period covered by this report, there occurred several administrative expulsions of political dissidents in the American countries. [ Table of Contents | Previous | Next ] |
