doc. 19 corr.1
31 January 1978
Original: Spanish   







          1.          In order to assure the greatest accuracy possible in the drafting of this report, the Secretariat of the Commission requested the Representative of Uruguay to the Organization of American States to provide the complete texts of amendments to the 1967 Constitution and any laws affecting the protection of human rights in Uruguay. The text of Law 14.619 of December 23, 1976, was sent to the Commission. To obtain the remaining laws, the Commission resorted o available copies of the Diario Oficial of Uruguay and other sources.1


          2.          From a historical perspective, the Constitution of Uruguay, as amended in 1967, was regarded as one of the most democratic in this hemisphere and Uruguayan law provided for the domestic protection of civil and political rights.


          3.          In the field of international protection of human rights, Uruguay, in addition to its valuable legal and political contributions to the establishment of the present inter-American system in this area, has signed the American Convention on Human Rights (Pact of San José, Costa Rica, 1969). In 1969 the Government also ratified the United Nations International Covenant on Civil and Political Rights and the Protocol thereto (Law Nº 13.751, July 11, 1969).


          A.          Emergency Measures


          4.          As a consequence of the course of events, a “state of internal war” (estado de guerra interna) was declared in Uruguay on April 15, 1972, and, at the request of the Executive Branch, a number of laws were enacted which temporarily suspended certain constitutional guarantees. On July 10, 1972, the General Assembly issued the Law on the Security of the State and Public Order (Ley de Seguridad del Estado y el Orden Público) which replaced the declaration of “state of internal war.” This law, which is still in force, suspended certain rights of persons accused of subversive activities and transferred the authority to prosecute civilians accused of crimes against the security of the state from civilian to military courts.


          5.          Decree Nº 163/973, of February 23, 1973, created a new agency not provided for under the Constitution: the National Security Council (Consejo de Seguridad Nacional, COSENA), composed of the President of the Republic, the Minister of the Interior, the Minister of Foreign Affairs, the Minister of National Defense, the Minister of Economy and Finance, the Director of the Office of Planning and Budget, and the Commanders-in-Chief of the Armed Forces. Its competence covers problems of security, taking into account that questions of “security” may involve the realm of economic and social activity. Another parallel agency, the Joint High Command of the Armed Forces (Estado Mayor Conjunto de las Fuerzas Armadas, ESMACO) exercises powers that extend to the political realm.


          6.          Later, on June 1, 1973, the Executive, supported by the Armed Forces but without consulting the General Assembly, ordered (Decree Nº 393/973) the indefinite suspension of a number of constitutional guarantees, by broadening the exercise of his emergency powers, invoking Article 168, paragraph 17 of the 1967 Constitution for that purpose. This decree authorized the continued detention of persons regarded as a threat to the security of the state and public order, and the “preventive detention” of persons allegedly involved in subversive activities. The Decree also ordered that the General Assembly be advised and that it be sent a list of the persons who, as of that date, were being detained by order of the Executive Branch.


          7.          Uruguay's legal system underwent a profound change with events that transpired on June 27, 1973. On that date, the Executive ordered the dissolution of the General Assembly, which had been elected; some days later all legislative bodies elected locally (Juntas Departamentales) were also dissolved. The legislative powers of the General Assembly were transferred to a Council of State (Consejo de Estado) composed of 25 individuals, appointed by the President (Decree Nº 464/973).


          8.          Shortly thereafter, the Government declared certain political parties, groups and student organizations to be illegal and dissolved the National Worker's Convention (Convención Nacional de Trabajadores). Toward the end of 1973, the Government prohibited all political and union activities, including the activities of those political groups that had not yet been specifically outlawed.


          9.          On June 12, 1976 the Armed Forces removed the President-elect of the Republic from office and installed a provisional President, who on that date decreed Institutional Act Nº 1 which suspended the general elections provided for under Article 77, paragraph 9, of the Constitution.2  On that same date the President promulgated Institutional Act Nº 2 which established the National Council (Consejo de la Nación), again not provided for under the Constitution, empowering it to appoint the President of the Republic, the Chairman and members of the Council of State, the members of the Supreme Court of Justice, of the Administrative Court, and of the Electoral Court.3


          10.          Institutional Act Nº 3, of September 1, 976, enacted as a constitutional decree by the Executive, “using the powers conferred upon it through the institutionalization of the revolutionary process,” altered even further the previous governmental structure. Article 1 of this Act provided that the Executive Power will be exercised by the President of the Republic, acting in conjunction with the respective minister of ministers, with the National Security Council, or with the Council of Ministers.


          11.          Another constitutional decree, institutional Act Nº 4, dated September 1, 1976, citing “situations created in the country by subversive activities and the passiveness of political parties whose leaders are responsible for the institutional breakdown which led to the Decree of June 27, 1973,” prohibited the following categories of individuals from conducting for a period of 15 years any of the political activities authorized by the Constitution: I. A) All candidates to elected office on the slates for the 1966 and 1971 elections presented by Marxist and pro-Marxist Political Parties or groups, declared illegal by virtue of Resolutions Nos. 1788/67 of December 12, 1967 and Nº 1026/73 of November 26, 1973, handed down by the Executive Power; b) All individuals who were tried for the crime of lese majesty (Article 1). II. a) All candidates to elective office on the slates for the 1966 and 1971 elections presented by political organizations that were electorally associated with the organizations mentioned under paragraph a) of the preceding article, under a single heading or subheading, whether by chance or by agreement; b) All individuals who were tried for crimes against the public administration, committed during the exercise of their political offices. The prohibition excludes the right to vote (Article 2). III. a) All candidates to the office of President and Vice President of the Republic on the slates for the elections of 1966 and 1971; b) Permanent or alternate elected officials who had actively held office in the legislature elected during 1966 and 1971, except those who are occupying political offices at the time of enactment of this provision; c) Members of the current boards of officers of the Political Parties. This prohibition excludes the exercise of vote (Article 3).


          12.          An Interpretative Committee was established, composed of three persons (one appointed by the Executive, another appointed by the Council of State and a third by the Joint Commanders-in-Chief), with the task of deciding the cases that are presented officially or by a third party (Article 4), involving prohibition of political activities established under Article 3 of this Decree.


B.  The consequence of these changes in the area of protection of human rights


          13.          Acting on the initiative of the President of the Republic, the General Assembly approved Decree Nº 277/972, of April 15, 1972, which reads as follows:


         1) That a state of internal war be hereby decreed for a period of 30 days in order to curb subversion in the area affected and for the sole purpose established in Article 253 of the Constitution of the Republic.


         2) That the Executive be granted for a period of 30 days, the permission it requested to suspend individual security, for the sole purposes contained in Article 31 of the Constitution of the Republic.


          14.          Law 14.068 of July 10, 1972, added new crimes, entitled de lesa Nación (lese majesty), to the Military Penal Code. Using this procedure, prosecution of these crimes was transferred to the Military Courts, even though the accused might be civilians. The crimes are defined in Article 60 of the law:


         I. (Crime against the Constitution). Any person who, through direct acts, seeks to alter the Constitution or form of government by means not admissible under domestic public law shall be punished by 10 to 30 years imprisonment, and shall be disqualified from holding public office for 2 to 10 years.


         V. (Subversive organizations). Those persons who join together in an attempt to change, through direct acts, the Constitution or form of government by means not admissible under domestic public law shall be punished, for the mere fact of association, by 6 to 18 years imprisonment.4


         VI. (Aid to the Association). Any person who, although not a member of the association, provided it any form of assistance likely to benefit the activities, maintenance or impunity of same, shall be punished by 2 to 8 years imprisonment.5


         VII. (Aid to members). Any person who, although not having participated in the crime provided for under the preceding article nor having concealed same, lends assistance to one or more individuals who are members of the association, shall be punished by 18 months to 4 years imprisonment.


         The individual who provides such assistance for his ascendants, descendants or spouse shall not be punished.


         VIII. (Association to Usurp Public Authorities). Those persons who join together in order to replace the public authority, in those cases wherein it is competent to act so as to prevent or curb actual or presumably criminal acts, shall be punished, for the mere fact of association, by 2 to 12 years imprisonment.


         IX. (Aid to an Association to Usurp Public Authorities). Any person who, although not a member of the association, provides it assistance likely to benefit the activities, maintenance, or impunity of same, shall be punished by 20 months to 6 years imprisonment.


          15.          Chapter II of that law, as indicated previously, amended the Penal Code and modified the following crimes, transferring them to military jurisdiction, even though the accused may be civilians:


         Article 147. (Public incitement to commit crime). Any person who publicly incites the commission of crimes shall be punished, for the mere fact of incitement, by 3 to 24 months imprisonment.


         Article 148. (Praising of acts classified as crimes). Any person who publicly praises acts classified as crimes shall be punished by 3 to 24 months imprisonment.


         Article 150. (Association to commit crime). Those persons who join together in order to commit crimes shall be punished, for the mere fact of association, by 6 months to 5 years imprisonment.


         Article 151. (Aggravating circumstances of the unlawful association). The following constitute aggravating circumstances and the punishment shall be increased by one-third to a half:


         1. The fact that the association became an armed band;


         2. The fact that the number of members exceeds 10;


         3. That of being chief or promoter.


          16.          In addition to the crimes of “lese majesty,” the military judges apply the preexisting provisions of the Military Penal Code when prosecuting civilians, including Article 58 thereof which defines the crimes that affect the moral fiber of the Army and the Navy:


         2. For public mockery of constitutional institutions and lack of proper respect for the flag, the shield or any other emblem of the nation in verbal, written or by acts, or adherence to any system other than the democratic republican system with which the country has been sovereignly endowed.


         3. For similar contempt of the Army and the Navy (Air Force), and even for mere criticism thereof, when such criticism is aimed at attacking the institution itself and not at correcting its defects.


          17.          The constitutionality of Law Nº 14.068 was questioned by a number of lawyers, but on April 5, 1974, the Supreme Court upheld the validity of that law by a vote of 3 to 2.


          18.          Decree Nº 140/973, of February 16, 1973, invoking Article 31 of the Constitution,6 suspended until March 30, 1973 the individual guarantees established under Article 15 (immunity to arrest except for justified cause) and Article 29 (freedom of expression and freedom of the press) of the Constitution. It also suspended Article 16 (right of the individual arrested to appear before a judge within 24 hours and the right to summary proceedings within 48 hours, in the presence of a defense attorney) and Article 17 (right of habeas corpus) of the 1967 Constitution. Article 2 of this Decree provides the following:


         For the sole purpose of the battle against subversion, the guarantees established in Articles 16 and 17 of the Constitution of the Republic are hereby suspended, to the following extent: individuals now detained shall be tried or released by the competent judge within the period established under Article 1 (until March 30). Individuals detained as of the date of this Decree shall be interrogated by the competent judge within a maximum period of 10 working days counted from the date of detention, and his trial or release shall be declared before March 30, 1973.7


          19.          Decree Nº 231/973, dated March 31, 1973, extended until May 31, 1973 the suspension of those rights previously suspended by Decree Nº 140/973, cited above.


          20.          Invoking once again the special powers granted under Article 168, paragraphs 1 and 17 of the Constitution, the Executive promulgated Decree Nº 393/973, dated June 1, 1973, which reads as follows:


         Article 1. The detention of those persons, now deprived of their freedom by order of the Executive Power, who, by their conduct, represent a clear and certain danger to the security of the State and public order, is hereby continued.


         Article 2. The detention, as a Prompt Security Measure, of persons presumably involved in subversive activities or in illicit economic activities, and of public officials (Article 175 of the Penal Code) who in any way do injury to the national heritage is hereby authorized.


         Article 3. The dissemination, by the spoken, written or televised press, of all forms of commentaries or recordings that either directly or indirectly mention or make reference to those who conspire against the Nation or to antisubversive operations, except for official press releases, is hereby prohibited.


         Article 5. A list of the persons who are currently being detained, by order of the Executive Power, shall be sent to the General Assembly.


         Article 6. The General Assembly shall be informed, it shall be informed, it shall be so communicated, filed, etc.


         The basic parts of the preamble state:


         I) That the conclusion of the period of suspension of individual security would make it necessary to release all those individuals who, because of their behavior, are regarded as dangerous to the security of the State and public order;


         II) That interrogation and presentation before a competent judge for initiation of the summary proceedings within the period provided for under the Constitution (Article 16), would make it impossible to continue the antisubversive battle because of the indoctrination and instruction given to members of subversive organizations for police and judicial interrogations, as experience has demonstrated.


         That the same thing occurs in the area of economic offenses as a result of the complexity of the accounting studies that must be conducted in order to establish prima facie proof of these special types of offenses.


          21.          However, Decree Nº 419/973, of June 12, 1973, limited the period of preventive detention in arrests under the Prompt Security Measures to the standard set by the General Assembly in the Resolution dated March 31, 1973. Article 1 of that Resolution provides that an individual detained for alleged subversive activities “shall be brought before the competent judge or released within 10 days, counted from the date of detention;” Article 2, however, declares that “the above provision does not apply to detentions prompted by behavior which although not constituting a criminal offense, seriously affects the public order and tranquility.”


          22.          Decree Nº 466/973, of June 27, 1973, with reference to “the present crisis of powers” and invoking Article 168, paragraph 17, of the Constitution, provided that the right of assembly in open or closed places, whether public or private, for political purposes, may only be exercised with prior authorization. Decree Nº 1.207/973, of November 30, 1973, added that the right of assembly in open or closed places, whether public or private, may be exercised by students only with prior authorization from the Executive, for as long as the circumstances that prompted this Decree exist.


          23.          Resolution 1.804/973, of October 15, 1973, established governmental censorship of press dispatches of the news agencies of their correspondents who transmit to other countries news on the political, social, or economic situation of Uruguay. Such agencies must turn over a copy to the Ministry of the Interior on the date of issuance. The preamble to the resolution gives as the need to adopt this action the fact that as “the foreign press tends to publish news on the situation in Uruguay that is not in keeping with the facts.”


          24.          Decree Nº 450/975, of June 5, 1975, ordered that the National Bureau of Mails confiscate all correspondence containing Marxist “anti-democratic” material. Confiscation is authorized under Article 1, regardless of its origin or source or the nationality or domicile of the sender. Article 3 prohibits “circulation, distribution, marketing and/or dissemination of the materials referred to in the preamble of this Decree, regardless of their origin or source.” The law has been justified in the following manner:


         Having Seen: The entry into national territory and the internal dissemination, either through the mail or some other similar private means, of thousands of pieces of printed matter, in the form of books, newspapers, magazines, pamphlets, documents, printing plates, photographs, films or any other graphic representation, records, tape or wire recordings, Marxist and antidemocratic in nature, which affect the security of the State.8


          25.          Law 14.495, of December 29, 1975, approved by the Council of State, provides the following:


         Article 1. The prosecution and punishment of the crimes listed under Chapter VI bis of the Military Penal Code, are hereby declared to be solely within the competence of the military courts, regardless of when those crimes are committed.

         Article 2. The trials now underway in the regular courts for activities that fail under those described in Chapter VI bis of the Military Code, are to be transferred in their current state to military jurisdiction, including those where sentence has been handed down, so long as the sentence has not been executed.


         Jurisdiction of the Military Courts shall not prejudice application of the appropriate law, as determined by the time of occurrence of the alleged crime.


         Article 3. The Military Court shall always have jurisdiction in cases of repeated offenses of the crimes provided for under Chapter VI bis of the Military Penal Code and common crimes; the provisions of Article 5 of the Military Code shall not be applied in such cases.


         Article 4. (Transitory). The visits to prisons or trials by the Supreme Court, organized in accordance with paragraph 1 of Article 72 of the Code of Organization of the Military Courts with respect to the crimes provided for under Article 15 of Law 14.068, of July 10, 1972, are hereby suspended during 1976.


          26.          Prior to enactment of this law, individuals accused of military crimes committed after July 10, 1972 were tried by Military Courts, by virtue of Law 14.068 (Ley de Seguridad Nacional). In turn, detainees and individuals accused of military crimes between April 15, 1972, and enactment of the law on national security (Ley de Seguridad Nacional) were also under the authority of the Military Courts, on the basis of the provisions contained in the declaration of “state of internal war,” put into effect on April 15. With approval of Law 14.493, of December 29, 1975, to the detriment of defendants, the competence of the Military Court was established retroactively for military crimes committed by civilians, even though those crimes may have taken place prior to April 15, 1972.


          27.          Institutional Act Nº 5, of October 20, 1976, regulated “the manner in which the Human Rights set forth in the current Constitution of the Republic are to be recognized at the national and international level”:


         Article 1. Without prejudice to the provisions contained in Section II of the Constitution of the Republic, the State recognizes Human Rights as a natural expression of man as a principle, independent of any legal status and taking precedence over any provision of written law.


         Therefore, constitutional and legal regulations can only determine the jurisdictions, procedures and occasions to exercise the respective legal protective means.


         Article 2. Individual rights, set forth in the various legal situations in which the individual finds himself, are likewise protected by the corresponding norms in accordance with the regulations that the constitutional and legal system impose for each case.


         Article 3. Every citizen is entitled to domestic security, the generic meaning being comprehensive protection by the State that ensures for him the legal efficacy of his Human Rights and the free exercise of his Individual Rights.


         Consequently, the defense of Human and Individual Rights, which considers man as a total being, must be regulated in accordance with domestic security, which views him collectively within the framework of a political and social order.


         Article 4. The State acknowledges and shall encourage the protection of Human and Individual Rights by international organizations, but shall only approve such protection in the future under the following conditions:


         a)       That these be guaranteed by recognized permanent international courts, whose staff is appointed with the maximum guarantee of impartiality.


         b)       That only communications by other States parties to the respective treaties be admitted.


         c)       That the denouncing State agree to process simultaneously similar communications filed by the party denounced.


         Under no circumstances shall those courts hear cases presented by individuals or by private national or international organizations, whatever their nature.


          28.          In a letter dated February 7, 1977, addressed to the Chairman of the Commission, Mr. Gualberto M. Talamás, Acting Permanent Representative of Uruguay, stated the following:


         Article 4 of Institutional Act Nº 5, programmatic in nature, refers solely and exclusively to the Uruguayan government's future position when agreeing to and signing new treaties referring to human rights. Thus, the provision in question in no way affects the international juridical order in force to which Uruguay is party.


          29.          Finally, Institutional Act Nº 8, dated July 1, 1977, amended the Constitution by eliminating the organic autonomy of the judiciary and by making all organs of ordinary and administrative justice subordinate to the Executive Power.


The innovations include:

          a)          Appointment of members of the Court of Justice (which ceased to be called “Supreme”) by the National Council, from suggestions made by the Executive Branch. (Under the Constitution, the General Assembly was responsible for the appointment; Institutional Act Nº 2 gave the responsibility to the National Council, while Institutional Act Nº 8 gave the power to nominate candidates to the Executive Branch). (Article 3).


          b)          Appointment, transfer and promotion of judges, ministers of Courts of Appeal and Court-appointed defense counsels, heretofore the Court's responsibility (in some cases with the consent of the Senate) became the Executive Branch's responsibility, after nominations are submitted by the Court of Justice (or the Administrative Court, as appropriate). (Article 6 – 4, 5, 6, and 8).


          c)          All present judicial magistrates of any rank, from the regular or administrative courts, regardless of their years of service, are hereby declared  to be “acting,” and for a period of four years shall be subject to removal by the Executive Branch at any time. (Articles 42 and 48).


          d)          The Executive Branch is responsible for appointing the Secretaries and Clerks of the Courts and Tribunals, after nominations are made by the respective judges or tribunals, a procedure controlled by the court (Articles 6 and 7).


          e)          The Executive Branch is entrusted disciplinary authority over the Judiciary. (Article 7).


          f)          The Executive Branch shall be responsible for dismissal of magistrates and officers of the Court. (Article 10).


          g)          The authority to nominate candidates is limited by the right, entrusted to the Executive Branch, to choose from outside the slate received. (Article 17).


          h)          The scope of military jurisdiction is redefined as follows: “to take up, try and carry out execution of the judgment handed down with regard to the military crimes established by the Law.” This wording omits the previous reference to the state of war. (Article 18).


          i)          Magistrates are hereby empowered to restrict “freedom of movement in the territory of the Republic” in certain cases. (Article 19).


          j)          The system of administrative remedies and of administrative proceedings is reorganized. The following specific acts may not be nullified by this means: “Political Acts of the Government,” acts which the Law declares to be unappealable “for reasons of security or public interest” and administrative acts “that the Executive Branch issues for those same reasons.” (Articles 21 through 31).


          k)          All technical, administrative and service personnel of the regular Courts are declared “removable” and appointment thereof is reserved for the Executive Branch (instead of the Court). (Article 47).


          l)          The Executive Branch is empowered to “interpret or rule upon” the norms of the institutional Act for a period of two years. (Article 50).


          30.          With regard to Institutional Act Nº 8, the Bar Association of Uruguay states the following in a note sent to Government authorities:


         Conversant with Institutional Act Nº 8, which alters the nature, structure and functioning of the Regular Courts, of the Administrative Courts and of their respective organs and, ultimately, the forms, guarantees and efficacy of the exercise of judicial functions, with indisputable consequences for attorneys' professional activities, the Bar Association of Uruguay has a duty, dictated by its Statute, to express, from its strictly legal and objective standpoint, the observations warranted by that Act.


         Although not a comprehensive statement of all the observations that could be made, the commentaries that we set forth herein are the result of a careful study of the overriding questions that the Act poses, and will refer especially to its substantive aspects.


         Those observations, insofar as the Regular Courts are concerned, are as follows:


         1) Relinquishment of the traditional three-way separation of powers, which sets aside the prevailing democratic doctrine and the best paradigms of general Comparative Law, thereby weakening its ability to protect freedom, is most assuredly wrong and unjustified, inasmuch as it is given to understand that such action allegedly preserves the permanency of freedom.


         2) To deliberately demote the structure of the Regular Courts from its rank as a Branch of Government is to break the coherence and natural balance that have existed between it and the other centers of authority since the first Constitution of the Republic, a tradition that goes back to the very roots of our nation.


         3) It has not been duly noted that separation and balance have always been an unequivocal guarantee of the independence, authority and impartiality of the Court Magistrates which, in turn, are necessary postulates to the protection of human rights and, ultimately, the security of the individual.


         4) Placing all the organs of the regular Courts, including the highest organ, in a “hierarchical line” at the administrative level, a line that begins with the Executive Power and continues down to the lower ranks is a clear endorsement of subordination which, although it may involve only this field, nullifies and limits, even in the exercise of the Court function, the independence of the department of justice and of the Magistrates that comprise it.


         5) Unlike the solutions peaceably adopted in our country to date regarding so important a point, the procedure used to appoint, promote and transfer judges gives the Executive Power full power in this regard and affects the independence of the Magistrates under such a system because the nomination that the Court retains is not binding.


         6) The future four-year term of office of all Magistrates, and the provisional four-year term of office of present Magistrates from all categories, undermine the important principle of the irremovability of same, a guarantee of their independence and thus generally accepted under the law of democratic organizations.


         7) The power the Act gives to the Executive to intervene  in supervising the handling of proceedings, affects even further the independence of the Magistrates, in addition to being a source of likely practical problem.


         8) The disciplinary powers and corrective authority granted to the Executive Power with regard to these, exacerbate the situation.


         9) Repeal of the system used to render the work of the Magistrates effective, makes the institutional demotion even more evident.


         10) The method of appointment, promotion, transfer and removal of judicial officials, apart from the various foreseeable difficulties which it will give rise in the court offices, emphasizes the lack of independence and authority of the Judges.


         11) Under such circumstances it is clear that the Act's formal and emphatic recognition of the fact that “the activity of the Courts involves the exercise of its own sovereign and independent decision making power” or of the fact that the Court of Justice, the highest legal Court, has institutional and legal authority over all other tribunals, Courts and technical institutions, is a statement that fails to reflect the situation that is being created; centuries of experience have demonstrated that whosoever has influence over the appointment and fate of Judges also has influence over the function that they carry out.


         12) Consideration of the eminently political nature of the Executive Power makes the risks described above even more certain; it is even more serious, juridically speaking, if it is noted that the Court of Justice still has original jurisdiction to rule on questions of the unconstitutionality of regular laws which the Executive Power actively helped to draft.


         13) Unhappily, the imprecise nature of the scope of the formula used in Article 18 of the Act, which replaces Article 253 of the Constitution of 1967, adds to the doubts as to interpretation which already existed in this area, since the new provision provides no criterion whatever for an exact definition, with precedence over regular law, of military crimes.


         14) The danger resulting from the possibility of restricting “freedom of movement,” under the very broad terms of the disposition included in Article 19 of the Act—which is in itself risky and contrary to our constitutional history—increases noticeably. This is so because the judicial nature of the determination of the possible restriction it authorizes—through which, it must be admitted, an attempt to moderate the danger is made—loses its protective force through the emasculation of the Judicial Power as such and the earlier-noted lack of independence of Magistrates, especially where the Executive Power is concerned.


         15) There is no valid reason to deprive those trials wherein original jurisdiction is assigned to the Court of their public nature.


         16) The flaw in the norm contained in the Act which, in establishing the jurisdiction of the present Court, changes the traditional expression: “rule on crimes against rights of man, ...”—which had a clear and exact meaning—to that of “rule on litigations against rights of man,” makes the provision totally inapplicable, since it is impossible to conceive of litigations, that is, law suits or trials against Public International Law, which is, for old and even modern authors, the equivalent of the expression “rights of man.”


         17) Eliminating the requirement that an individual have a law degree in order to be a Justice of the Peace in the Department of Montevideo, or that he be a lawyer or notary public in order to be a Justice of the Peace in the Capitals or cities of the other departments or in any other community of the Republic in the opinion of what was the Supreme Court of Justice, involves a technical step backward; it is not in keeping with the country's legal tradition, it ignores the number of attorneys that the country has, and it is disruptive to proper administration of justice and the exercise of the jurisdictional function invested in it.


         18) Prohibiting naturalized citizens from serving on the Court of Justice, regardless of the number of years they have been naturalized citizens and have resided in national territory, as well as the increase in the length of time required for them to be eligible for the other posts in the judiciary, have no legal justification, especially when the judicial apparatus has had its rank as an equal branch withdrawn and when the Court has been robbed of its position as the head of a true center of authority.


         19) Prohibiting Magistrates and officers of the Court from forming associations for purposes that are not purely social or recreational in nature, is not justified by the argument invoked in the preamble of the Act; it unnecessarily restricts their right of assembly and does not take into account the good effects that association of Magistrates have had in terms of better application of the law and even progress in law.


          After a lengthy discussion of the new structure of the Administrative Court, the Bar Association concluded that “a radical reconsideration of the solutions contained in Institutional Act Nº 8 is in order.”9

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1             After the Report of May 24, 1977 had been adopted by the Commission, the Government of Uruguay provided the information requested.

2             The preamble to Institutional Act Nº 1 provides the following:

“Having Seen: Provisional institutional order established by a Decree of June 27, 1973;

“Whereas: 1) The purposes set forth in that Decree establish that under present circumstances, social peace is incompatible with the free play of Political Parties, thereby recognizing the need to begin efforts to organize Political Parties on the basis of structural and functional standards that will enable them to carry out their lofty mission without placing themselves between the will of the sovereign people and responsible action on the part of those governing;

“Whereas: 2) A necessary consequence of the measures taken is, therefore, the suspension of the electoral acts established under the Constitution for normal conditions, which is distinct from the current situation, both in fact and in law.”

3             The preamble to Institutional Act Nº 2 provides:

“Having Seen: The results obtained through the coherent and systematic efforts of the Armed Forces and the Institutional Acts enacted in order to adapt the activity of the State in view of national and international subversion, gradually restoring the social, economic and moral order of the Nation.

“Whereas: 1) In order to adapt institutionally the country to the emergency situation it experienced, the Executive Power, as the backbone of the political organization responsible for the existence and exercise of public power, made use of Constitutional powers, dissolving both Legislative Chambers and establishing the Council of State with legislative authority, with control over the legality of the administration and respect for individual rights, and assigned it the task of drawing up a draft Political Charter (Decree of June 27, 1973);

“Whereas: 2) This new order, peaceably accepted at both the national and international levels, should be institutionalized for better fulfillment of the goals established at the meetings held in San Miguel and Nirvana.

“Whereas: 3) Such institutionalization, both by virtue of the special situation the country is now experiencing as well as the international political climate, shaken by the systematic and undisguised effort of continuous Marxist aggression, cannot be put into practice through the constitutional mechanism established for ordinary conditions, wherein the normal play of political parties is legitimate and constitutes no threat to social peace.

“Whereas: 4) The current social, economic and political panorama reveals to us a critical period of transition wherein only those political associations that are properly formed can continue to exist on a regular basis.

“Whereas: 5) Under such circumstances those responsible for government are obligated to take the measures necessary to handle all contingencies, thereby ensuring the opportunity to overcome the circumstantial crises and survive with sufficient energy to restore full social and institutional order, when both the world and the country achieve the coveted stability that awaits us in the next stage of history.

“Whereas: 6) Such temporary solution must be implemented in order to prepare the body of formulas needed for future normalcy, a task that requires a reasonable period of time to settle all those factors that are the basis of regular institutional order.

“Whereas: 7) The measures taken to achieve those purposes demand a sacrifice on the part of our generation which those of us responsible for government do not hesitate to make for the sake of generations to come; it also demands responsibility, which we resolutely undertake, in all aspects, etc.”

4             In a note dated February 7, 1977, Mr. Gualberto M. Talamás, Acting Permanent Representative of Uruguay, reported the following:

Law Nº 14.619 dated December 23, 1976, the text of which is enclosed, amends Article 60 (V) and (VI) of Chapter VI (bis) of the Military Penal Code reducing the minimum penalties for the crimes of subversive association and aid to the association, which according to the legislation in force was 6 and 2 years imprisonment, respectively, to 3 years and 24 months imprisonment, respectively, which in the second instance makes provisional release possible.

5             Ibid.

6             Article 31 of the Constitution of 1967 declares:

Individual security may not be suspended except with the consent of the General Assembly or, if this has been dissolved or is in recess, the Permanent Commission, and in the event of an extraordinary case of treason or conspiracy against the country; and even then such suspension may be used only for the apprehension of the guilty parties, without prejudice to the provisions of Section 17 of Article 168.

7             The operative part of this Decree provides:

Having Seen: The resolution of the Permanent Committee of February 15, 1973 whereby the Executive Power is granted permission to suspend specific individual guarantees.

8             The Uruguayan Constitution provides:

Article 28. The papers of private individuals, their correspondence, whether epistolary, telegraphic, or of any other nature, are inviolable, and they may never be searched, examined, or intercepted except in conformity with laws which may be enacted for reasons of public interest.

Article 29. The expression of opinion on any subject by word of mouth, private writing, publication in the press, or by any other method of dissemination is entirely free, without prior censorship; but the author, printer or publisher as the case may be, may be held liable, in accordance with law, for abuses which they may commit.”

9             The Minister of Justice, through a Resolution of September 27, 1977, rejected the petition of the Bar Association, arguing, among other factors, that the question was “juridically inopportune in light of the doctrines of institutional law.”