On October 12, 1993, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) received a complaint
from Mr. Tomás Eduardo Cirio (hereinafter “the petitioner”), an
Uruguayan citizen, retired military officer, dated June 20, 1993, on the
alleged violation of the following rights protected in the American
Declaration on the Rights and Duties of Man (hereinafter “the American
Declaration) by the Republic of Uruguay (hereinafter “the State” or
“Uruguay”): Article II
(right to equality before the law), Article IV (right to freedom of
investigation, opinion, expression, and dissemination), Article V (right
to the protection of honor, personal reputation, and private and family
life), Article XVI (right to social security), Article XXVI (right to due
process of law). In addition, he alleges violations of the following
rights of the American Convention on Human Rights (hereinafter “the
American Convention”) by the State:
Article 5(1) (right to humane treatment, in the moral aspect),
Article 8(1), (2)(b), (2)(d), (2)(f) (right to a fair trial), Article 9
(principle of legality (freedom from ex post facto laws)), Article 10 (right to compensation in case of
judicial error), Article 11(1) (right to privacy), Article 13(1) and 13(3)
(right to freedom of thought and expression), Article 24 (right to
equality before the law), and Article 25(1) (right to judicial
The petition alleges that as of July 4, 1972, after an Assembly of
the Centro Militar, the petitioner, a retired Army major, resigned
from the Centro though a letter in which he set forth his views on
the necessary respect for human rights in the context of the
counter-insurgency struggle by the Armed Forces in Uruguay.
Since then, petitioner alleges, he has continued to suffer
sanctions in retaliation for having freely given his opinion.
The Centro Militar, a private organization, informed the
General Command of the Army of his letter, and proceeded to remove him
from its social registry; then, the General Command placed him under the
jurisdiction of a military court known as a Tribunal de Honor.
The petitioner alleges that he was judged by a court in which jurisdiction
did not lie, as he was a retired military officer, and was tried in
absentia, accordingly he was denied the right to defense.
In November 1972, the Tribunal de Honor demoted him
and assigned him the status known as situación
de reforma. He alleges that as a result of that decision, his honor
and reputation were negatively affected, along with his remunerative
rights and his right to health care; that he was expelled from the Armed
Forces cooperative, prohibited from holding any position in the Ministry
of Defense, had no possibility
of applying for credit, was cashiered and stripped of his military status,
his rank, and the right to use his uniform, and humiliated, as he was
publicly exposed as a person without honor.
In 1994, by resolution of the Ministry of Defense, his rights were
partially restored, but not totally.
In December 1997, by a new resolution of the Ministry, partially
recognizing the responsibility of the State, the petitioner was once again
accorded his status as a retiree, annulling his situación
de reforma but without any right to retroactivity or compensation for
the moral damages suffered during 25 years of his situación
The Commission concludes in this report that the petition meets the
admissibility requirements set forth at Articles 46 and 47 of the American
Convention. Therefore, the Commission decides to declare the case
admissible, to notify the parties of the decision, and to continue with
the analysis of the merits as regards the alleged violations of the
American Declaration and the American Convention.
In addition, the Commission decides to publish this report.
PROCESSING BEFORE THE COMMISSION
On October 12, 1993, the petitioner submitted the complaint in this
case; it was received at the IACHR on March 15, 1994.
In March 1994, August 1994, January 1995, and March 1995, the IACHR
requested information from the State, yet received no response.
On June 13, 1995, the State transmitted its first response. On August 8, 1996, the Commission communicated to the State
that if it did not have its observations in 30 days, the Commission could
apply Article 42 of the its Rules of Procedure, which authorizes it to
presume true the facts described in a petition that has been transmitted
to the State when that State fails to provide the corresponding
information within the time period required by the Commission.
On August 26, 1996, the State requested an extension, which was
granted. On September 2,
1996, the State submitted its response.
The processing continued with the transmittal of the information
and observations as between the parties.
THE POSITIONS OF THE PARTIES
Position of the petitioner
The petitioner is a Uruguayan career military officer who retired
in 1966. Until 1972 he was a
member of the Centro Militar of Uruguay, a private entity made up
of retired and active-duty members of the military.
On July 4, 1972, the General Assembly of the Centro Militar
issued a statement, approved unanimously, in consideration of what it called
the “campaign to discredit the Armed Forces undertaken at all levels.”
The petitioner alleges that this communication was in response to a
declaration issued by the House of Representatives of Uruguay, when the
Minister of Defense was questioned about the death of Luis Carlos Batalla,
a Uruguayan citizen who died while detained at military unit 33 (Treinta
y Tres) by the Armed Forces.
According to the petitioner, the House had expressed its confidence
that the Armed Forces “will impose compliance with the constitutional
and statutory provisions that call for respect for human dignity in every
circumstance. And in the face
of the lamentable events that led a session to be called, which confirmed
the death of a citizen due to mistreatment during detention, it calls for
utmost celerity in the procedures and in the public identification of the
guilty and the punishment to be applied to them.”
The members of the Assembly of the Centro Militar, for their
part, adopted by acclamation the following defensive statement:
“That any corporative or individual action or expression intended
to frustrate or maliciously to object to the procedures of the members of
the Armed Forces in the struggle against subversion, or, in other words,
treason of the Homeland,
constitutes veiled complicity with the enemies of the Democratic Republic
regime who the citizens have elected and reaffirmed.”
In the wake of the unanimous declaration by the Assembly of the Centro
Militar, which the petitioner found disturbing, he submitted his
resignation to the Centro Militar, first by phone and then
by letter dated July 19, 1972. In that letter, petitioner stated, inter
needn’t point out that I take issue totally and radically with the
motion presented and later approved in the assembly, and this--I should
add in times in which, sometimes with aims that are not very clear,
witches are sighted everywhere--it is not because I am an instrument of
any plan contrived by the enemies of the homeland....
in addition, from a strictly human point of view, it is also impossible
for there to be unanimous agreement when faced with statements that at
some moment could be characterized as monstrous, such as those that
referred to the death that prompted the declaration by the House of
Representatives, of a person whose status as a citizen was sought to be
denied, ratified by generalized applause, who was then along with his wife
the victim of an outrageous act, as though even if said statements were
true, they could justify what no doubt must have been horrible suffering.
But, as though that were not enough, the argument was concluded by
“attesting” incredibly that the death of the [individual] who no doubt
was savagely tortured was due “to his falling on a stone.”
And then, having considered the episode sufficiently clarified, and
after invoking, as is customary, dignity and honor (which here, actually,
were nowhere to be found), the page was turned.
this, in addition, is but one case, of the few that have come to light,
because there has been no alternative.
For months, one after another, serious accusations have been
accumulating against action taken by the armed forces; their number and
their importance lead one to dismiss, upon brief reflection, any
possibility of an “insidious campaign,” and even if a large percentage
are attributed to slander, the rest are more than enough reason for
exemplary punishment should be meted out for those--a small minority, I am
sure--who have tarnished the uniform of the army by using it to cover up
their excesses, their abuse of authority, and their sadism.
And their names should be made known to the people, as the
criminals they are, since this goes beyond a disciplinary matter, governed
as it is by the confidentiality with which discipline and subordination
must be protected....
On August 3, 1972, in response to the petitioner’s letter of
resignation, the Centro Militar rejected “categorically the
concepts set forth therein, considering them completely out of place,
harmful to the other members, and detrimental to the prestige of the Armed
Forces and the Institution.”
The board of directors of the Centro Militar decided not to
accept petitioner’s resignation, it declared him to be in violation of
the Center’s Statute, removed him from its social registries, and
forwarded a copy of the letter to the General Command of the Army “for
the purposes it deems advisable.” In
addition, it circulated a “Communiqué” to all the press in Montevideo
publicizing the matter: “We
state for the record that Major (ret) Tomás E. Cirio was removed from the
social registries of this Institution on July 26, 1972.” The Commander in Chief of the Army ordered that a Tribunal
de Honor be constituted.
On November 7, 1972, the petitioner received an official notice
from the Tribunal General de Honor, informing him that he
was being placed under its jurisdiction.
The petitioner alleges that the State had come to consider the
matter raised in the Centro Militar, a private institution
not part of the State or the Armed Forces.
The petitioner alleges that as a retired officer he was not subject
to the jurisdiction of a military tribunal.
The petitioner recused the members of the Tribunal de
Honor based on their participation in the assembly at the Centro
Militar. A new Tribunal
de Honor was constituted, and the proceedings before it began on
November 16, 1972. The petitioner alleges that the charges against him were that
he had freely expressed his thoughts.
In summary, the State, through a Tribunal de Honor
formed under the Ministry of National Defense, tried him for the ideas set
forth in his letter of resignation to the Centro Militar,
and punished him for having defended human rights in the context of the
He also alleges that because he was in retirement, the Tribunal
de Honor did not have jurisdiction over him, accordingly, the
petitioner, on November 20, 1972, withdrew from the courtroom and the
Tribunal judged him in absentia
(“en rebeldía”), under
Article 165 of the Rules of Procedure of the Tribunales de Honor of
the Armed Forces. The
petitioner alleges that he consequently had no possibility of mounting a
defense. On November 22, 1972
the Tribunal de Honor cashiered the petitioner “for a very
grave violation” (“por falta
gravísima”) stating for the record that he had been tried in
absentia, and that he was discharged from the officer corps. The
petitioner requested, in writing, the grounds for the judgment, which the
Tribunal did not grant. Instead,
it informed him: “Does not
accept the request, considering that as he refused to continue appearing
before this Tribunal for the causes adduced, he has ceased to be entitled
to the rights established in this respect by said Rules of Procedure.”
On January 2, 1973, the Executive branch approved the Tribunal’s
ruling, and the petitioner was reclassified as being in situación
In December 1973, the Ministry of Defense set the benefits under
the “reformed” regime at one-third for the petitioner, and two-thirds
“for those who justify the right to pension.”
The petitioner states that he exhausted administrative remedies in
1973, by appealing the decisions of the Executive, and that on May 2,
1974, he filed a motion for revocation of Resolution No. 42,204 of the
Executive before the Ministry of Defense, to restore him to the status of
retired Army Major. Due to the dictatorship in Uruguay at that time, and fearful
of his and his family’s security due to the lack of minimal guarantees,
the petitioner opted to silence his claim.
After the return of democracy to Uruguay in March 1985, and with
the return of the rule of law, the petitioner argues that the Uruguayan
legislation did not provide for claims such as his.
Later, after the publication in March 1991 of a newspaper article
of Lt. Gen. (ret) Hugo Medina in the magazine Búsqueda, in which
he explained the scope of what he defined as “loss of points of
reference” in the actions of the military, acknowledging deaths in
prison, the “disappearance” of persons, and torture by the Armed
Forces, the petitioner took up his claim anew.
For the petitioner, it was “honor” “that had been put in
jeopardy ... and it was essential [for him] to prove through the
statements and deeds of the very military protagonists what the ‘Ley
de Caducidad’ (‘Law on Expiry’) had actually made impossible to
discuss, i.e. through those who, in one way or another, participated,
albeit indirectly, in the proceeding of the Tribunal de Honor and
in [his] reclassification as ‘reformed’ as a result of it.”
On April 30, 1991, the petitioner once again filed a motion for the
revocation of Resolutions Nº 46,204 of the Executive and Nº 6,540 of the
Ministry, which had affected his rights.
In that motion, the petitioner alleged the Resolutions were void
for (a) lack of competence of the Tribunal de Honor, as the
petitioner was not subject to its jurisdiction, (b) lack of a right to
defense, and (c) violation of Article 66 of the Constitution of Uruguay,
and of other statutory and regulatory provisions. The Ministry of Defense did not state its position with
respect to the motion filed by the petitioner.
On October 23, 1991, the petitioner brought an action in the
Tribunal of Contentious-Administrative Matters against the State to void
these resolutions. On March
10, 1993, the Tribunal ruled, that the action could not be validly
initiated, as the petitioner’s right to bring it had lapsed.
The ruling did not make reference to Article 66 of the
Constitution. The petitioner
received notification of the ruling on April 26, 1993.
At the same time, on May 27, 1991, the petitioner submitted a note
to the Centro Militar, informing it that “although the
word ‘honor,’ has been commonly used to cover up dishonors and appears
to have been overused and hollow for some time now, it is still essential
that honor be paid with honor.” The
petitioner emphasized the Centro’s responsibility as the direct
causal agent of the unjust and illegal situation that he was experiencing
for more than 20 years, and he requested that reparations be made to him
1. To publish, in the same daily
papers in which the communiqué of October 5, 1972 was disseminated--in
the identical place and manner--a new communiqué, clearly acknowledging
the error suffered on not accepting my resignation, and instead
eliminating any reference to me from the social registries.
2. To go before the
Commander-in-Chief of the Army, retracing the steps of a mistaken course
taken, to annul the ruling of the Tribunal General de Honor from
which I suffered prejudice, due to the lack of motive on issuing its
judgment as it did, and in view of Article 66 of the Constitution.
3. To accept my resignation from the
Centro Militar, effective July 6, 1972, when I presented it
by phone to the then-President of the Center.
On June 5, 1991, the Centro
Militar returned the note “for not being admissible” (“por
no ser de recibo”). Accordingly,
the petitioner filed an action for damages against the Centro Militar,
based on abuse of right. The ruling in the case brought against the Centro
Militar was adverse to petitioner, as the court found the action
For the petitioner, being “passed into reform” effectively
signified one's death,” as well as grievous moral damages for the
officer subjected to sanctions, as at the time of his demotion, such a
reclassification was reserved for pederasts and thieves--that was the
concept that prevailed at the time in the Army.
According to petitioner, the core issue is military honor:
honor that the Centro Militar, the Tribunal General de
Honor, the Ministry of National Defense, and the Executive
“stripped” me of, dignity that they refuse to return to me
because it means acknowledging that I was right and not them, as well as
admitting that the Armed Forces committed tremendous human rights
violations, is something they only acknowledge under coercion and
The petitioner alleges in his petition that the compensation for
damages suffered for more than 20 years comes to US$ 300,000 (2/3 of the
retirement: US$ 116,000; private mutual health service: US$ 10,000; unpaid
bonuses; and pain and suffering, including the impossibility of getting
loans: US$ 160,000), not counting interest.
On June 14, 1994, within the framework of the “National
Pacification,” the amnesty laws and the call to Ministry of Defense
personnel who thought they were removed for political or ideological
reasons, the Ministry of Defense issued a new resolution, which mentions
the resolutions referred to by the petitioner, and modifies the
petitioner’s reform pension without including the right to collect any
money retroactively, and without lifting his situación
That resolution states:
of Fact ... III. That [the situaciones de reforma] were established in a context of generalized
social conflict; Considering ... III. That at the same time, the previous
Administration ... determined that ... a series of reparations guidelines
be established that are applicable in pursuing administrative relief for
military personnel separated from the Armed Forces for political or
ideological reasons or on merely arbitrary grounds, ... it is deemed
pertinent to accord [him] the status of retiree annulling
the situación de reforma.... The
President of the Republic resolves: 1.
Legal standing shall be granted to the Distinguished Officers cited in the
Having Seen clause of this resolution, without
that meaning the right to any retroactivity, annulling the situación
The petitioner states that by this resolution he regained his
status as a military officer, prior to January 1, 1973, and adds that:
I have not committed any offense, nor have I violated any rule of honor;
to the contrary, I spoke out as an opponent of those who did.
Accordingly, I can only accept that I be granted “through
executive pardon” (“por gracia”)
(or under the “inspiration of a magnanimous attitude”) what is
Finally, the petitioner observes that:
is wrong to say that my long-standing claim has been satisfied upon
nullification of the situation of reform....
While the end of that situation is accompanied by an interruption
of the material damages that I bore for a quarter of a century (with my
family), the de-authorization and loss of military status, of my rank and
right to use the uniform, the humiliation this entailed, exposing me
publicly as a person without honor: these are not satisfied by simply
returning what, after all, was always mine, adding some material
concessions and turning the page, as if nothing had happened....
Therefore, the obligation to make reparation for the unjust harm
caused, and to compensate for the moral and spiritual damages, for which
money is not enough, persists.... It is a vindication of values of (authentic) honor....
The State’s position
The State, in its response of June 13, 1995, requested:
“That the petition presented in these proceedings be declared
inadmissible, as it was time-barred, as the domestic remedies available in
the Uruguayan State have neither been pursued or exhausted, for failure to
set forth facts that tend to establish a violation of rights guaranteed,
and for being groundless and out of order, in keeping with Article 47 of
the American Convention....”
The State indicates that the arguments of no defense and lack of
guarantees in the 1972 internal disciplinary action against the petitioner
before the Tribunal de Honor, comprised of the General
Command of the Army, do not lie, as the petitioner “withdrew from them
unilaterally and voluntarily, in both the administrative and judicial
proceedings.” In addition, the State does not recognize that the
petitioner has exhausted domestic administrative and judicial remedies,
and affirms that the petitioner did not exhaust domestic remedies in due
time and manner, “which totally undercuts his petition.”
It alleges that the petitioner learned of the 1973 and 1974
resolutions and that the petitioner did not exhaust domestic remedies at
that time, as he could have before the Tribunal for
Contentious-Administrative Matters by filing a motion for nullification.
Later, on October 23, 1990, some 20 years after being “passed
into reform” and five years after the restoration of democracy in
Uruguay, the petitioner filed a motion for nullification, which was found
to be time-barred, his right to file it having lapsed.
The State alleges that the petitioner failed to clearly define the
provisions of the American Convention which in his view have been
violated, or the facts on which his complaint is based.
It also notes that the Convention entered into force for Uruguay on
April 19, 1985, the date of its accession, and accordingly can be judged
only for events occurring after that date.
The State alleges that the situación
de reforma does not imply all that the petitioner describes, but that
said situation is defined in the Organic Law on the Military, Nº 10,050. It
also alleges that retired officers shall be “reformed” in the same
manner as active-duty officers. Accordingly,
the State alleges that the Tribunal de Honor was competent
to sit in judgment of the petitioner.
As a result, the State alleges that the pase
a reforma was entirely lawful, and was for a well-established
“serious violation” (“falta grave”) described in the Tribunal’s ruling.
The State alleges that even though the petitioner’s situation
does not fit in the criteria used for reparations agreed upon between the
Executive branch and the Committee on National Defense of the Uruguayan
Senate, the petitioner’s case was reviewed in 1994, and the pension
benefits corresponding to the situación
de reforma were standardized, as dictated by the June 1994 Ministry of
Defense resolution. The State
affirms that the resolution was issued to “temper the possible severity
with which the former Officer may have been judged, within the discretion
for so doing, at a critical moment in the Nation’s history, but without
this signifying at all recognition of an illegitimate or unlawful
situation that needs to be reverted.” The State also maintains that if
the petitioner were accorded unequal treatment, it has been to his
benefit, as his separation from the Armed Forces took place outside the
time frame established in the reparations guidelines.
The State alleges that the petitioner was “passed into reform”
in total conformity with the laws in force at the time, without him taking
the pertinent actions to challenge the procedure that led to the
“reform.” It adds that it
was the petitioner who, on his own, waived his defense before the Tribunal
de Honor, as a result of which the procedure continued in
absentia, without his personal appearance.
This legal concept makes possible a normal prosecution of cases in
which the respondent refuses to appear before the court.
Finally, the State indicates that the benefit of the bonus, which
petitioner claims, is received by Armed Forces officers in retirement, and
accordingly it is not received by those who have been designated as being
in situación de reforma.
Similarly, the State adds, the right to receive care from the Armed
Forces Health Service is extinguished.
The State asserts that the loss of benefits is a lawful consequence
of being reclassified as “reformed.”
ANALYSIS OF ADMISSIBILITY
Competence of the Commission ratione
personae, ratione loci, ratione temporis
The petitioner is authorized by Article 44 of the American
Convention to present complaints to the Commission.
The petition presents as the alleged victim an individual person
with respect to whom Uruguay has undertaken to respect and ensure the
rights enshrined in the American Convention.
As regards the State, the Commission observes that Uruguay is a
state party to the American Convention, having ratified it on April 19,
1985. Accordingly, the
Commission is competent ratione personae to examine the petition.
The Commission is competent ratione
loci to take cognizance of the petition, as it alleges violations of
rights protected in the American Convention within the territory of a
state party to that treaty.
The Commission is competent ratione
temporis, insofar as the obligation to respect and ensure the
internationally protected rights was already in force for the State as of
the date of the facts alleged in the petition, either under the American
Declaration or under the American Convention.
The Commission clarifies that some of the facts allegedly violative
of Mr. Cirio’s human rights were initiated prior to April 19, 1985, the
date of Uruguay’s ratification of the American Convention, accordingly,
one of the sources of applicable law is the American Declaration.
Both the Inter-American Court of Human Rights and the
Inter-American Commission on Human Rights have ruled that the American
Declaration is a source of international obligations for the member states
of the OAS.
As regards events after April 19, 1985, the date Uruguay ratified
the American Convention, or events that occurred prior to that date but
which had continuing effects, those arguments should be analyzed in
relation to the American Convention.
The IACHR has recently affirmed “its practice of extending the
scope of application of the American Convention to facts of a continuing
nature that violate human rights prior to its ratification, but whose
effects remain after its entry into force.”
The Commission has established in this regard that “once the
American Convention entered into force ... the Convention and not the
Declaration became the source of legal norms for application by the
Commission insofar as the petition alleges violations of substantially
identical rights set forth in both instruments and those claimed
violations do not involve a continuing situation.” In
addition, the Commission notes that Article 29 of the American Convention
upholds the case-law of the Commission to the effect that the Commission
is competent to apply both the American Declaration and the American
Convention in the same case.
Finally, the Commission is competent ratione
materiae, because the petition alleges violations of human rights
protected by the American Declaration of the Rights and Duties of Man and
the American Convention on Human Rights.
Other admissibility requirements of a petition
Exhaustion of domestic remedies
On March 10, 1993, the Tribunal for Contentious-Administrative
Matters ruled that the action filed by the petitioner could not be
initiated for having lapsed. This marked the end of the petitioner’s
attempts at seeking domestic remedies for reparation of the violations
alleged. The State recognizes
that the petitioner has no further domestic remedies to exhaust.
Time period for submission
Article 46(1)(b) of the Convention indicates that the petition must
be presented within six months from the time the petitioner is notified of
the final decision that has exhausted domestic remedies.
The petitioner sent his complaint to the Commission on October 12,
1993, i.e. five months and 17 days after receiving notice of the ruling
from the Tribunal for Contentious-Administrative Matters on April 26,
1993. Since this petition was submitted within the six- month
period, the Commission considers it in keeping with Article 46(1)(b) of
the American Convention.
Duplication of procedure and res
The Commission is of the view that the subject matter of the
petition is not pending settlement before any other international
organization, nor does it reproduce a petition already examined by this or
any other international organization. Therefore, the requirements established at Articles 46(1)(c)
and 47(d) are also satisfied.
Characteristics of the facts alleged
The Commission considers that the petitioner’s presentation
refers to facts which, if true, tend to establish a violation of the
rights guaranteed by Articles II, IV, V, XVI, and XXVI of the American
Declaration, and Articles 5, 8, 9, 10, 11, 13, 24, and 25 of the American
Convention, thus the requirements of Article 47(b) of the Convention have
Based on the foregoing considerations of fact and law, the
Commission concludes that this case meets the admissibility requirements
set forth at Articles 46 and 47 of the American Convention, and, without
prejudging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to Articles II, IV, V,
XVI, and XXVI of the American Declaration, and Articles 5, 8, 9, 10, 11,
13, 24, and 25 of the American Convention.
To transmit this report to the petitioner and to the State.
To place itself at the disposal of the parties in order to reach a
settlement based on respect for the rights protected in the American
Convention, and to invite the parties to state their positions, within 30
days, on the possibility of reaching a friendly settlement in this case.
To continue with the analysis of the merits.
To make this report public and to include it in the Annual Report
of the Commission to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., October 16,
Claudio Grossman, President; Juan Méndez, First Vice-President;
Marta Altolaguirre, Second Vice-President; Commissioners Hélio Bicudo,
Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
Declaration of the Assembly of the Centro Militar, July 4,
1972: “(1) That any
corporative or individual action or expression aimed at discrediting
or objecting maliciously to the procedures of the members of the Armed
Forces in the struggle against subversion, or, in other words, treason
of the Homeland, constitutes veiled complicity of the enemies of
the Democratic Republican regime that the citizens have elected and
reaffirmed, (2) that it repudiates any public indication of the
penalties to be applied to any of its members, when they are to be
sanctioned, and (3) that the unwavering moral principles that govern
the members of the Armed Forces assure ultimate success in the
struggle undertaken.” (Emphasis
Response of the Centro Militar, August 3, 1972.
Law on the Military, No. 10,050, Article 344:
“Retirement produces the following effects: ... (c) It keeps
the retiree under the military jurisdiction throughout the time in
which he holds positions within the Army, and in all other cases, for
four years from the date of retirement.” (Emphasis added.)
The petitioner went into retirement on November 16, 1966.
On November 17, 1972, the Tribunal General de Honor informed
him of the alleged violations of the General Regulation of the Tribunales
de Honor of the Armed Forces. He was accused, for example, of having violated Article 4,
subsection IV: “Considering
as true certain alleged acts of torture denounced, and denying that
such torture is part of an insidious campaign against the Armed
Forces, a campaign that was clearly and convincingly proved, the
respective evidence having been officially published”;
“Characterizing as ‘collective assassination of defenseless
persons’ the death of citizens caused as a result of a confrontation
at El Paso de Molina, though the deponent must know that previously an
Army Officer had been seriously wounded”; “Insinuating that the
Armed Forces do not play clean, and act out of vengeance and in an
‘undignified’ manner, and that their power is used for the
‘unhappiness of the people’”; “Asserting that punishment
should be meted out ‘for those who have tarnished the Army uniform
to cover up their excesses, outrages and sadism,’ taking it as given
without providing any evidence that such deeds have been committed,
and recommending the public vilification of the alleged
According to the petitioner, the Tribunal de Honor processed
his case “with illegality, error of motive, lack of cause, and abuse
Resolution No. 46,202, January 2, 1973, of the Executive branch,
approving the ruling of the Tribunal General de Honor.
Resolution No. 46,204 of January 2, 1973, on being given the
status of situación de reforma.
Both resolutions were published in the Boletín of the Ministry
of Defense corresponding to January 4, 1973, which is No. 1594.
of the situación de reforma, as stated by the petitioner:
(1) Division of retirement benefits among the next-of-kin (as a
matter of inheritance), and the petitioner, in the proportion of 2/3
for the first, and 1/3 for the latter; (2) end of collection of the
annual bonus, received by all retired officers, (3) loss of the right
to military health care services, (4) expulsion from the Armed Forces
Cooperative, (5) prohibition on occupying jobs dependent on the
Ministry of Defense, (6) impossibility of obtaining bank loans, and
(7) de-authorization and loss of military status, title, and use of
Resolution No. 6,540 of the Ministry of Defense, December 20, 1973,
set the benefits under the “reformed” regime.
Petitioner was never given notice of this Resolution.
Article 66 of the Constitution of Uruguay establishes:
“No parliamentary or administrative investigation into
irregularities, omissions, or offenses shall be considered concluded
so long as the public employee accused cannot present his or her own
arguments, and mount his or her defense.”
The petitioner alleges that Resolution No. 72-732 recognizes that he
was removed for political and ideological reasons, but does not return
to him: (1) his military
status; (2) his rank; (3) the right to use the uniform; (4) the
possibility of holding positions in offices of the Ministry of Defense
or in the Reserve; (5) the right to assistance in the military health
services; (6) the rights as a member of the Armed Forces Cooperative;
(7) sole claim to his retirement benefits; (8) the right to collect a
bonus like all other retirees from the Public Administration; and (9)
credit vis-à-vis third persons.
Resolution No. 76,161, Ministry of National Defense, December 24,
Letter from the petitioner to the Commission, April 14, 1998.
Letter from the petitioner to the Commission, May 29, 2001.
The State makes no reference to the alleged violations of the American
Article 362: “Reforma
shall be understood to be constituted by the special situation of an
Officer who definitively loses the right to hold a job under the
Ministry of National Defense, not even in the Reserves, and who may no
longer use the title or military uniform corresponding to the rank
held when accorded this status.”
from the Commission: The State cites Article 371, but in the text of Law 10,050,
in force from 1972 to 1974, in the hands of the Commission, the
definition is in Article 362. In
later correspondence with the Commission, the State acknowledged and
amended this error.
Article 364, Law 10,050 (the State cites Article 373).
See I/A Court H.R., Interpretation of the American Declaration on the Rights and Duties of
Man in the Framework of Article 64 of the American Convention on Human
Rights. Advisory Opinion OC-10/89 of July 14, 1989, Series A and B
No. 10, paras. 35-45; IACHR, James
Terry Roach and Jay Pinkerton v. United States, Res. 3/87, Case
9647, September 22, 1987, Annual Report 1986-87, paras. 46-49, Rafael
Ferrer-Mazorra et al. v. United States, Report Nº 51/01, Case
9903, April 4, 2001. See Statute of the IACHR, Article 20.
IACHR, Report No. 95/98 (Chile), December 19, 1998, Annual Report
1998, para. 27.
IACHR, Report No. 38/99 (Argentina), March 11, 1999, Annual Report
1998, para 13.
Article 29 of the American Convention provides:
“No provision of this Convention shall be interpreted as: ...
(d) excluding or limiting the effect that the American Declaration of
the Rights and Duties of Man and other international acts of the same
nature may have.”
The Government of Uruguay suggested in its response that the
petitioner did not act in a timely fashion. In its response the Government noted that the ruling by the Tribunal
de Honor is appealable by the administrative remedies of
revocation (recurso de revocación)
and recurso jerárquico en
subsidio, which can be pursued before the Ministry of National
Defense and the Executive, respectively.
The petitioner indicated in his brief of May 2, 1974, that he
“pursued the revocation remedy vis-à-vis the Ministry of National
Defense against Resolution Nº 42,204 of the Executive branch,
requesting that, definitively, and upon annulment of the ruling by the
Tribunal de Honor, he be restored to the condition of retired
Army Major.” He indicates that his family made him see the danger he
was placing himself in by raising such issues, since the dictatorship
was in power in Uruguay. He
stopped pursuing the claim. The
Government added that after his administrative remedies were
exhausted, that ruling was appealable before the Tribunal for
Contentious-Administrative Matters, by an action for annulment, for
being contrary to a rule of law or for having been issued by abuse of
authority. The Government
holds that the petitioner waited too long to file his claim before the
Tribunal for Contentious-Administrative Matters.
The petitioner indicated that Uruguay returned to democracy in
March 1985, and that he waited until 1991 to present his claim to the
Ministry of Defense, since he had just recently regained the
confidence to do so after the declarations made by Lt. Gen. (ret) Hugo
Medina (supra para. 16),
nonetheless the Ministry never answered its claim.
Therefore he filed a motion before the Tribunal for
Contentious-Administrative Matters, which ruled in five lines that the
action was time-barred. In view of the fact that petitioner was judged
and convicted by the military in 1972, prior to the military taking
power in 1973, the Commission considers that the petitioner’s
refraining from pursuing remedies until observing some sign of change
in attitude on the part of the military, such as General Medina’s
declarations, were necessary prior to seeking to exhaust domestic
remedies. It should be
recalled that the Uruguayan military was not driven out of power, but
that they handed it over to the civilian government in 1985.
The petitioner, by letter dated in 1995, notes that “ten
years after the restoration of democracy, some have died without the
satisfaction of seeing justice done in their cases.
It is regrettable that the present-day Government of Uruguay
continues to defend the abuses of a disreputable dictatorship, when a
mere decree would suffice to
void--in the case of the officers--the decrees of dictator Bordaberry
that confirmed the rulings of the pseudo-Tribunales de Honor.”
In this case, the Commission concludes that the formal return
to democratic government is not a sufficient guarantee for ensuring
the existence of an effective domestic remedy.