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SECTION
TWO PART
I INFORMATION
PROVIDED BY SOME GOVERNMENTS OF MEMBER STATES OF
THE ORGANIZATION OF AMERICAN STATES ON THE “PROGRESS ACHIEVED
IN REALIZATION OF THE GOALS SET FORTH IN THE AMERICAN
DECLARATION OF THE RIGHTS AND DUTIES OF MAN” Information
provided by the Governments of Argentina, Brasil,
Chile, Haiti, and the United States of America
In accordance with Article 9 (bis) of its
Statute, the Inter-American Commission on Human Rights has, among other
duties, that of submitting a report annually to the Inter-American
Conference (now the General Assembly, Articles 51 and 52 f of the
Charter of the OAS) or to the Meeting of Consultation of Ministers of
Foreign Affairs. This report should include, among other matters, the
following: “1) A statement of progress achieved in realization of the
goals set forth in the American Declaration of the Rights and Duties of
Man.”
In order to comply with the aforementioned
mandate, the Commission, through its Chairman, requested the governments
of the member states to provide the information mentioned in the
Introduction to this report.
Information was received from the
Governments of Argentina, Brazil, Chile, Haiti, and the United States of
America and is summarized below:
Law Nº 1.702 of the provinces of
the Chaco, established a health control plan for schoolchildren that
includes medical examination, laboratory control work, and keeping
individual records for each student attending the educational
institutions of the provinces.
By means of Law Nº 5.890,
promulgated on November 6, 1975, the Province of Córdoba established
within its jurisdiction a workday of no more than eight (8) hours from
Monday through Friday, and of no more than four (4) hours on Saturday,
with a weekly total not exceeding forty-eight (48) hours.
The Province of La Pampa approved Laws
Nos. 680 and 681, under which pensions to the blind, deaf-mute,
disabled, and handicapped, and old-age pensions, would be adjusted
annually in relation to the cost-of-living increase in the previous
year.
Various decisions of the Ministry of Labor
(Nos. 125/75, 201/75 and 287/75, among others) have granted legal status
to labor unions and approved the statutes of a number of unions and
professional associations.
Under Law Nº 21,312 published in
the Official Bulletin of May 21, 1976, petitions for habeas corpus are
admitted, in both its effects in favor of a person being held at the
disposition of the Executive Branch under Article 23 of the
Constitution; and Law Nº 21,449, published in the Official
Bulletin of November 1, 1976, regulates the procedure for considering
the situation of persons detained at the disposition of the Executive
Branch who request authorization to leave the country, it being agreed
that such a request may be brought 90 days after the date on which the
arrest was ordered.
Resolution 3,168 of April 30, 1976,
of the National Migration Office, regulates the status of political
asylees.
Resolution 3,439 of May 12, 1976, of
the National Migration Office, authorizes persons with temporary
residence permits to enter and leave the country during the effective
period in which their permits are valid.
Decree Nº 1,483, published in the
Official Bulletin on September 2, 1976, provides a period of time for
all foreign nationals residing illegally in the country who cannot
return to their country of origin due to political, social, racial, or
religious reasons, to report to the immigration authorities, in order to
normalize their status under current immigration regulations.
Under Law Nº 5,878, the Province of
Córdoba modified the organic law of the Federal Penitentiary Service in
order that this service may fully carry out its functions of guarding,
custody, and rehabilitation of prisoners being held in the various
prisons throughout the province.
Under Decree Nº 3,116/75, the
Province of Mendoza regulated the application of the progressive
penitentiary system in its territory.
Among the most important activities of 1975
was the immunization of over 80 million persons against meningococcic
meningitis, the eradication of malaria in six states with a population
of nearly 6 million, and the establishment of a system for cholera
prevention, which made it possible to keep the country free of this
disease.
Under Law Nº 6,229 of July 6, 1975,
the National Health System was established, enabling the government to
adopt a pragmatic course of action to avoid duplication and competition
between the mechanisms of organization and operation of the country’s
health services.
The Educational Credit Program, established
by the Ministry of Education and Culture in coordination with the Caixa
Econômica Federal and the banking system, provides for the investment
of nearly one billion dollars in four years to aid students lacking
financial resources. Due to the technical assistance provided in
planning preschool education and in setting up the necessary
infrastructure, in 1975 there was a 20% increase in the enrollment of
preschool children from ages 4 to 6. With regard to elementary
education, the government’s efforts to reach a desirable level of
fundamental education should be noted. In 1975 the average rate for the
population from 7 to 14 years of age was about 84%, as against 71.6% in
1964. With regard to supplementary education and literacy programs for
adults, it should be mentioned that in 1975, MOBRAL (Brazilian Literacy
Movement) reached 1,600.000 people. With regard to assistance provided
to students, the following should be mentioned: the awarding of 113,465
scholarships in 1975, the provision of school lunches, which in 1975
benefited 83% of Brazilian cities and 11 million children, the supply of
notebooks and school materials to 2 million students, and through the
National Book Institute, the free distribution of 11.5 million texts to
needy students.
Decree Nº 76,403 of October 1975
establishes the National Employment System (SINE), whose basic task is
to serve as an intermediary between people seeking employment and
production units in need of labor. The activities carried out by the
National Commercial Apprenticeship Service (SENAC) and by the National
Industrial Apprenticeship Service (SENA) were responsible for the
vocational training of 900,000 workers.
Law 6,210 of June 4, 1975, revokes
both the contributions on social security benefits and the suspension of
retirement payments due to renewed employment.
Law 6,226 of July 14, 1975,
establishes a system of reciprocal counting of time served between
public service and private enterprise for the purposes of retirement.
Law 6,243 of September 24, 1975,
defines the status of retired persons who go back to work and of insured
persons who enter the social security program after age 60.
Law 6,260 of November 6, 1975,
establishes social security benefits for rural employers and their
family dependents.
The conditions for financing were
reformulated, and new measures designed to make home ownership easier
for a larger number of families, particularly lower income families,
were implemented.
Decree Law Nº 1,008, of May 8,
1975, amended Article 15 of the country’s Political Constitution,
making 5 days the maximum period for detention for crimes against the
national security during emergency situations; in other cases, the term
is forty-eight hours. It must be noted that Article 13 of Constitutional
Act Nº 4, published on September 13, 1976, extended the five-day period
established in this decree law to 10 days.
Decree Law Nº 1.009 of May 8, 1975,
systematized standards on legal protection of procedural rights for
those persons held for crimes against the national security, creating a
more favorable and liberal treatment of them. Article 1 provided that
during a state of siege, the agencies authorized to preventively detain
persons presumed, with grounds, guilty of endangering the security of
the state, shall be obliged to inform the immediate family of the person
being held, within 48 hours of the detention.
Moreover, this complement and clarifies the
change introduced in Article 15 of the Political Constitution by Decree
Law 1.008, previously cited, prescribing that the detention may not last
more than five days and after this period the person being detained
shall be set free or remanded to the appropriate Court, or to the
Minister of the Interior when it is a case of applying the special
powers or a state of siege, in which case it shall be accompanied by a
written report with all the background information. Moreover, it
drastically sanctions the use of illegal pressures on those being
detained.
Article 8 changed Decree Law Nº 640 of
September 10, 1974, limiting the operation of Military Courts in time of
war to states of siege due to external or internal war, and in the
degree of internal defense.
Decree Law Nº 1.181 of September
11, 1975, put an end to the state of siege in degree of internal
defense, establishing the state of siege in degree of internal security.
Supreme Decree of Justice Nº 187 of
January 26, 1976, regulates the standards aimed at guaranteeing the
rights of those detained by virtue of a state of siege, set forth in
Article 1 of Decree Law Nº 1.009, summarized in the following manner:
1. Medical examination for those detained upon entering as well as
leaving detention establishments, with the purpose of determining
whether the have been mistreated or subjected to undue pressures, in
which case the Ministry of Justice will denounce the fact to the
pertinent authority, who, within 48 hours, shall draw up the appropriate
summary to determine who is responsible and proceed accordingly. 2.
Inspections by the President of the Honorable Supreme Court and the
Minister of Justice, without advance notice, to detention sites in
connection with states of siege to verify strict compliance with the
legal and regulatory standards in force over the rights of those
detained, duly reporting to the respective authorities any
irregularities they notice. 3. Arrests related to application of a state
of siege may be made only with a prior written order from the head of
the pertinent specialized security agency, which must indicate the name
of the person arrested, of the arresting officer, place of imprisonment,
date and time of the arrest, name, position and signature of the person
who ordered this measure, and seal and stamp to authenticate the order.
A copy of the order of arrest must be handed to the immediate family
member that the person being detained indicates. In the case of entry
and search, the appropriate written order to conduct the it shall be
shown, and a copy of it given to the owner of the house or the occupant
of the house searched, once the action is completed. 4. Through Supreme
Decree of the Ministry of the Interior Nº 146, detention sites were set
up at Puchuncaví in Valparaíso, Region V, Tres Álamos and Cuatro Álamos
in Santiago, Metropolitan Region. 5. Decree 187 indicates the offices
and employees in the respective regions who will take the steps
necessary in providing the President of the Supreme Court, the Minister
of Justice or the employee designated by him, as the case may be, all
the means of support leading to the proper fulfillment of their duty.
Supreme Decree of Justice Nº 504 of
April 30, 1975, states that punishment depriving one of his liberty or
restricting it, imposed by the military courts, can be commuted to
required departure from the country.
By virtue of Law 94-135 of November 28,
1975, the Older Americans Act of 1965 was amended, establishing several
social service programs for senior citizens and prohibiting
discrimination on account of age.
By Decree of the President of the Republic
dated December 23, 1976, pardon was granted to 140 prisoners, some of
whom were considered to be political prisoners. The names of those
pardoned were published in “Le Moniteur”, the official newspaper of
the Republic of Haiti. Furthermore, this decree commuted the death
sentence of several people to hard labor for no more than 15 years, and
reduced the length of other persons’ sentences to hard labor.
On December 24 of the same year, by a new
decision of the President of the Republic, 24 more persons were freed.
Their names appeared in a communication issued by the Ministry of
Justice. ----
----
The fact that the data requested by the
Commission were sent, as well as the measures taken by the Governments
of Argentina, Brazil, Chile, Haiti, and the United States of America,
constitutes positive acts that show interest in the attainment of the
goals of the American Declaration of the Rights and Duties of Man.
This information constitutes important
elements that the Commission will take into account, at the appropriate
time, in evaluating the effective exercise of human rights in a specific
country, as has been done in relation to the same legal standards
referred to now by the Government of Chile, which had already been
analyzed in the Second Report on the Situation on Human Rights in Chile
(OEA/Ser.1/V/II.37, doc. 19 corr. 1, pp. 6-19).
AREAS
IN WHICH STEPS ARE NEEDED TO GIVE EFFECT TO THE
HUMAN RIGHTS SET FORTH IN THE AMERICAN DECLARATION OF THE
RIGHTS AND DUTIES OF MAN
The first paragraph of the preamble of the Charter of the
Organization of American States affirms that “…the historic mission
of America is to offer to man a land of liberty, and a favorable
environment for the development of his personality and the realization
of his just aspirations.” The third paragraph states that “…the
true significance of American solidarity and good neighborliness can
only mean the consolidation on this continent, within the framework of
democratic institutions, of a system of individual liberty and social
justice based on respect for the essential rights of man.”
Unfortunately, the situation in 1976 in the American countries as
concerns respect for an effective protection of human rights does not
allow us, generally speaking, to say that our hemisphere is remaining
faithful to its historic mission and to these lofty ideals.
Numerous persons have lost their lives due to terrorist attacks,
clashes with armed forces or police authorities or under circumstances
that make presumable the intervention of paramilitary and parapolice
groups tolerated, if not fostered, by the authorities.
There have already been many cases recorded of “missing
persons”, that is, persons who according to witnesses and other
evidence have been detained by military or police authorities but whose
detention is denied and whose location is unknown. Added to the illegal
deprivation of freedom in these instances is the anguish of relatives
and friends who do not know whether the missing persons are dead or
alive and who are unable to avail themselves of the remedies established
under law or to lend them material and moral assistance. The growing
number of cases of this kind in several American countries is a reason
for serious concern to the Commission and is, properly, one of the
aspects of the situation in the area of human rights that has warranted
very special attention by the Commission as well as the governmental and
nongovernmental bodies which function in this area in one way or
another.
The status of “missing” 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 detentions and the use
of physical and psychological duress against persons detained.
It must not be forgotten that Article I of the American
Declaration of the Rights and Duties of Man mentions the right to
personal security immediately after the rights to life and to liberty.
Every state has the clear duty to guarantee the security of all persons
living in its territory, whether they be citizens or foreigners.
Another aspect of the problem which particularly concerns the
Commission is the widespread practice of sophisticated means of torture
in several American states. The spread of these means of repression is
due to the lack of standards that would effectively protect persons
detained or due to the fact that these standards are not applied in
practice or, what is more serious, due to the intimidation of judges and
high officials of the administration, who do not perform their duty of
preventing these acts by investigating and punishing those responsible
for such acts with all force.
An equally disturbing form of mistreatment of detainees is the
lack or shortage of medical attention in jails and other detention
centers, which has been repeatedly denounced and which in no few
instances has led to the death or permanent harm of the victims of this
kind of violation.
Added to these problems, which warrant emphasis due to their
serious nature, are others which, without compromising human life,
physical security or dignity, touch on rights as basic as the right to
liberty and to due process.
In this line of thinking, we must mention first of all the
serious limitations on the right to a defense in some countries of our
continent. According to information gathered by the Commission, in some
countries the performance of attorneys in defense of human rights is
obstructed or prevented by assaults against life, deprivation of
freedom, exile, or every kind of threat or reprisal against them or
their families. The Commission has specific denunciations by attorneys
who have been victims of every kind of violence caused only by their
active participation in the defense of persons detained for reasons of
state security or for alleged violations against the public order.
In some instances the bar associations or similar organizations
which have fulfilled their duty to defend their members’ rights have
also been subjected to threats and acts of violence.
The Commission has also received denunciations stating that in
some instances judges have also been victims of these abuses and that
they are also exposed to delayed promotions or even loss of their
positions if they do not yield to the intentions of the executive
authorities.
Unfortunately, these highly serious violations do not complete
the list of acts that warrant special remarks in this part of our
report.
The handing over of refugees to the authorities of their country
of origin, in violation of the conventions on human rights and other
accepted international humanitarian principles and standards, knowing
that this involves serious risk to such persons and even endangers their
very lives, is clearly an act that involves the responsibility of the
authorities of the country that enables or allows such action, as well
as that of the authorities of the country so requesting.
Added in some instances to the entire range of penalties that are
being applied to the political dissidents is the loss of citizenship,
with all the consequences thereof to the persons to whom it is applied
and to the international community.
The frequency with which the exiling of nationals is resorted to,
not as an option as established in some bodies of law but rather as an
act forced upon the person and against which there is no recourse, in
violation of the right to residence and movement established in Article
VIII of the American Declaration of the Rights and Duties of Man, is
reason for alarm and concern.
Mention should also be made of the policy followed by some states
of not granting passports to their nationals, who then in most instances
are able only to travel to and reside in bordering countries.
The Commission is not unaware that these and other violations
occur in a context of acute ideological or, more generally, political
conflicts and that some states have lived through a situation quite like
a civil war or have been on the brink thereof.
Under such circumstances it is obvious that the standards
established for normal times cannot be applied without serious risk to
the maintenance of public order and state security, but, as the
Commission has said so many times, application of the emergency decrees
provided for in the constitutions and laws of many states cannot or
should not result in the repeated violation of basic human rights.
Thus, for example, the declaration of a state of emergency or a
state of siege cannot serve as a pretext for the indefinite detention of
individuals, without any charge whatever. It is obvious that when these
security measures are extended beyond a reasonable time they become true
and serious violations of the right to freedom. Likewise, the indefinite
prolonging of trials for crimes against public order and state security,
which give rise in some instances to deprivation of the freedom of the
accused for a longer period than the longest sentence he could receive,
is a violation of the right to a fair trial provided for in Article
XVIII of the American Declaration of the Rights and Duties of Man. It
goes without saying that these emergency situations in no instance
justify the application of torture, nor much less the loss of life
except, in the latter instance, in application of the death penalty, if
this penalty has been provided for under a law preceding the violation
and has been imposed by the competent courts under due process in which
the person convicted has had all the guarantees necessary for his
defense.
It should be stated at this time that the states have not only
the right but the duty to take the measures necessary to prevent acts of
terrorism and violence. As the Commission has stated on other occasions,
the governments cannot, without incurring serious responsibilities, act
as simple spectators of the violence caused by one sector of the
population against another.
The Commission’s task in the area of human rights protection is
possible due largely to the cooperation it receives from individuals,
institutions and other entities that act in their respective countries
in the defense of human rights. Without this cooperation, which enables
the Commission to receive accurate information on specific cases of
human rights violations, with all the requirements of our Regulations,
it would be hardly possible to form a complete opinion on these cases
and on the general status of human rights in the different countries of
this hemisphere. Thus it observes with great concern the measures taken
by some governments against some of these persons and institutions. It
must be kept in mind in judging these acts and in assessing their
seriousness that these measures have been taken against respectable
individuals, institutions or entities which have acted out in the open
in the territory of the states in which they reside or are located,
which have bravely faced the misunderstanding of some persons and in no
few instances have faced threats and acts of violence and have been
subjected to measures that can be explained only as reprisals for their
humanitarian efforts.
In this context, we can stress a favorable situation: the
increase in and strengthening of private international associations
truly devoted to fostering respect for the rights and freedoms
established in universal and regional declarations, conventions and
covenants on human rights.
In view of the preceding considerations, the Commission
reiterates, first of all, the recommendations contained in its earlier
report1
which continue to be very current, and, in addition, recommends:
1.
That all the necessary measures be taken to prevent the security
forces or other authorities from arresting and detaining persons without
the knowledge of the competent authorities and of the relatives of the
prisoner, so as to put an end to the so-called cases of
“disappearance”. Among these measures the following may be
mentioned: close vigilance by the high officials and by the Judicial
Branch over the actions of the security forces; periodic visits to the
places described as illegal detention centers and imposition of severe
sanctions on members of these forces who give an evasive reply to
requests for information about persons they have detained.
2.
That an effective policy be applied against torture, for which
purpose everything possible should be done to enable the judges to
investigate denunciations received about these violations, without
prejudice to the duties the administrative authorities themselves have
to make the appropriate investigations and to impose the penalties
established in the laws and regulations. Only through rigorous
investigations, submission to trial, and the imposition of severe
penalties on the persons responsible for these tortures will it be
possible to put an end, or at least to limit, this abominable practice
and prevent its recurrence.
3.
That the detention centers and prisons be provided with the staff
and the means necessary for giving adequate medical assistance to the
prisoners or convicts and to authorize the transfer of these prisoners
to public or private hospitals or clinics, outside of these centers,
when the resources available there are not sufficient to ensure the
treatment required by the patients.
4.
That the necessary measures be taken to ensure the protection of
lawyers and judges so that they may fully carry out their functions.
5.
That the standards established in the Convention regarding the
situation of refugees of which the state concerned is a member, be
adhered to faithfully.
6.
That an end be put to the increasingly generalized practice in
some countries of canceling passports or denying the issuance or renewal
of them to their nationals, for political reasons or for causes not
contemplated in the pertinent legislation. PART
II 1 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
Very few changes have occurred in the period covered by this
report in the situation described in general terms in Part II of the
preceding report of this Commission.
If, on the one hand, there has been progress in some American
countries in the field of economic, social, and cultural rights, on the
other hand, insofar as the effective respect for an protection of civil
and political rights is concerned, the most than can be said is that the
general situation is not worse than in preceding years.
Violence continues to be an instrument used by groups or
organizations bent on imposing their own political views by this means,
or by government officials and agents, in some cases made worse by the
fact that they operate as paramilitary or parapolice organizations.
In this climate of violence, the life, the liberty, and the
security of the individual, that is to say, his basic rights as set
forth in Article I of the American Declaration of the Rights and Duties
of Man, are in constant danger and are frequently violated.
In this regard, the Commission is concerned with the view that
the government is responsible only for violations committed by its
officials or agents and that it could remain with its arms crossed in
the face of attacks on these rights that are the result of armed
struggle between enemy factions. The duty of the state is to guarantee
the security of the population, and it would be failing in this duty,
both by action and by omission. The state cannot remain indifferent in
such a fundamental matter, and it must do everything in its power to
effectively protect these rights.
Special reference should be made in this report to repeated
denunciations that, in several American countries, physical and mental
pressures are applied to prisoners, without, apparently, the persons
indicated as being responsible for the commission of these offenses
against the dignity, and at times, the very life of the person, being
submitted to trial, and eventually being punished with the severity
called for by these crimes.
The Commission is also concerned about the fact that in some
American countries either there are no adequate resources for protecting
human rights or the exercise of these rights is impossible in fact,
either because the detained person does not, in fact, have access to the
protection agencies, or because of the inhibition of these agencies.
It is necessary to issue a clear and precise legal rules deciding
how and with what effect one may have recourse to habeas corpus
when persons have been arrested or confined through the exercise of
“special powers”, or “exceptional powers”, or “immediate
security measures”, if the Constitution that should be applied does
not contain express provisions to the contrary.
The advantages that would be derived from the enactment of a law
that would clarify this point are infinite. The fact that, even in those
cases, the Judge can force the arresting authority to bring the prisoner
before him (which is what “habeas corpus” means), would enable one
to determine the following (which is not always known): 1.
Whether the person is still alive. 2.
Whether he bears signs of having been tortured or subjected to
physical or psychological pressures. 3.
Where he is being detained. 4.
What are the conditions of the detention site or prisoner camp to
which the prisoner has been sent. 5.
Whether he is being given cruel, inhuman, or degrading treatment.
The safeguarding of the institutions, of the integrity and
sovereignty of the states, is an extremely important matter, which amply
justifies the granting of special powers to certain organs of the
government to be exercised in exceptional cases; but the protection of a
person’s liberty, integrity, and honor are also a primary function of
law.
Finally, we find it useful to point out the importance of respect
for conventions or customary rules with regard to asylum, the result of
a long evolution in our hemisphere. FINAL
RECOMMENDATION
In order to try to reduce the violation of human rights resulting
from the fact that in several American countries the whereabouts of
hundreds or thousands of persons who have been arrested by the
authorities is unknown, we consider it of the highest priority that the
General Assembly of the Organization adopt a resolution based on the
observations made by the Commission in Part II of this report. [ Table of Contents | Previous | Next ]
1
These recommendations are contained in the Appendix included
at the end of this Part II. 1 Annual Report of the Inter-American Commission on Human Rights for 1975. (OEA/Ser.L/V/II.37 doc. 20 corr. 1 of June 28, 1976). |
