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REPORT Nº 124/06 CASE 11.500 TOMÁS EDUARDO CIRIO URUGUAY MERITS October 27, 2006
I. SUMMARY
1. On October 12, 1993, the Inter-American Commission on Human Rights (hereinafter “the Commission”) received a petition presented by Tomás Eduardo Cirio (hereinafter “the petitioner”), a Uruguayan citizen, a retired military officer, against the Oriental Republic of Uruguay (hereinafter “the State”) in which the violation was alleged of the following rights protected in the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration”): Article II (right to equality before the law), Article IV (right to freedom of investigation, opinion, expression and dissemination), Article V (right to protection of honor, personal reputation and private family life), Article XVI (right to social security), Article XXVI (right to due process of law). Moreover, the complaint alleged the violation of the following rights of the American Convention on Human Rights (hereinafter “the American Convention”) on the part of the State: Article 5 (right to humane treatment), Article 8 (right to a fair trial), Article 9 (right to due process of law), Article 10 (right to compensation), Article 11 (right to privacy), Article 13 (freedom of thought and expression), Article 24 right to equal protection) and Article 25 (right to judicial protection
2. The petition denounces that since July 4, 1972, following a meeting of the Assembly of the Military Center (Centro Militar), the petitioner, a retired army major, resigned from the Center by means of a letter in which he made general accusations about the violation of human rights in the context of the struggle against subversion by the Uruguayan Armed Forces. Since then, the petitioner alleges that he has persistently suffered punishment in reprisal for having expressed his opinion freely. The Military Center informed the General Command of the Army and proceeded to remove him from its register of members. Subsequently, the General Command submitted him to the jurisdiction of the Tribunal de Honor [non-judicial court]. He alleges that he was judged by a tribunal that lacked jurisdiction, given his status as a retired officer and in rebeldía (absence), denying him the right to defense. In November 1972, the Tribunal de Honor cashiered him and assigned him the status known as situación de reforma. He alleges that as a result of this decision not only was his honor and reputation impaired, but also his rights to remuneration, to medical care, to occupy posts in the Ministry of Defense, in addition to the loss of any possibility of obtaining credit, disqualification and loss of military status. The position of the Uruguayan State is that the petition of Mr. Tomás Cirio is baseless, and lacks any judicial foundation either in domestic or international law. Notwithstanding this, it points out that “the Government of the Republic over the last 17 years and in its various administrations, all democratically elected, has made its best efforts to consider the situation of Major Tomás E. Cirio.” It points out that his rights were partially restored, though not entirely, through a Ministry of Defense resolution. In December 1997, in recognition of the State’s partial responsibility, the petitioner was once again accorded the status of a retired officer, rescinding his situación de reforma, but without total reparation (restitutio in integrum).
3. Following the analysis of the respective merits of the supposed violations of Articles II, IV, XVI, XXVI of the American Declaration and Articles 5, 8, 9, 10, 11, 13, 24 and 25 of the American Convention, that through the penalty imposed by the Tribunal de Honor as a disciplinary measure, the Uruguayan State has subjected Mr. Tomás Eduardo Cirio to a military trial as a reprisal for his complaints about human rights violations perpetrated by members of the Uruguayan Armed Forces. The Uruguayan State has failed to comply with its obligation to respect and uphold the right to be heard by a competent, independent and impartial tribunal, previously established by law (Article XXVI of the American Declaration) and judicial protection (Article 25 of the American Convention), freedom of expression (Article IV of the American Declaration) and his right to honor and reputation (Article V of the Declaration and 11 of the Convention). Equally, the Commission concludes that by virtue of the foregoing violations, the Uruguayan State has not complied with its obligation to respect and uphold the human rights and guarantees imposed by Article 1(1) of the American Convention and to adopt the dispositions of domestic law imposed by Article 2. Having concluded that these dispositions of the American Convention have been violated, the Commission considers that the petitioner in this case has failed to sustain his allegations with respect to the violation of Article 9 of the American Convention.
II. PROCEEDINGS SUBSEQUENT TO ADMISSIBILITY REPORT
4. On October 12, 1993, the complaint was received by the Commission. On October 16, 2001, the Commission approved Report 119/01 on admissibility[1]. On October 22, 2001, the report on admissibility was transmitted to the State and the petitioners, and the parties were notified that the Commission was disposed to assist them in reaching a friendly settlement, in accordance with Article 48 (1)(f) of the Convention, were they interested in this. The Commission requested the parties to respond to this offer with all due speed. By letter dated November 20 2001, the petitioner expressed interest in the possibility of negotiating a friendly settlement. For its part, in a noted dated February 13 2002, the State rejected the possibility of a friendly settlement, and consequently, the Commission decided to proceed with the preparation of a report on the merits of the case. . 5. On February 22, 2002, the Commission transmitted additional observations from the Government of Uruguay to the petitioner, requesting his additional observations within 30 days. On March 18 2002, the petitioner gave his response to the observations of the State. The petitioner’s observations were transmitted to the State on May 6, 2002, with a request to provide any additional information on the merits within a period of two months. On July 8, 2002, the Commission received from the State a written statement, dated July 5, 2002, which was transmitted to the petitioner on July 15, 2002. On September 9 and 27, in two written statements, the petitioner defended himself against the “falsehoods” presented by the State, reiterated his previous positions, and requested the preparation of the report envisaged in Article 50 of the American Convention. On January 29, 2003, the petitioner informed the Commission of his change of postal address, e-mail address and telephone number. Since this date, the Commission has received no further information from either party.
III. POSITIONS OF THE PARTIES
A. Position of the petitioner
6. Tomas Eduardo Cirio is a retired military officer (ret. 1966) and Uruguayan citizen. In 1972 he resigned from the Military Center (Centro Militar del Uruguay) a private club comprised of retired and active duty members of the military, in protest against a position taken by the Center. On July 4, 1972, the General Assembly of the Military Center issued a statement, approved unanimously about what it called the “campaign carried out to discredit the Armed Forces at every level”[2] The petitioner alleges that this was a response to a declaration by the Uruguayan Chamber of Representatives in respect to the questioning of the Defense Minister over the death of Luis Carlos Batalla, a Uruguayan citizen who died from maltreatment in detention by the armed forces at military unit number 33.
7. In response to the unanimous declaration by the Assembly of the Military Center, which the petitioner found deeply disturbing, he submitted his resignation to the said Center, first by telephone and than by letter dated July 19, 1972. In this letter, the petitioner stated:
Suffice it to say that I disagree completely and radically with the motion presented and then approved in the assembly, and this – I should add in times in which, sometimes for reasons that remain unclear, witches are seen everywhere – it is not because I am the instrument of any scheme contrived by those who are the enemies of the fatherland. I am a free man, and speak as such, in my own words and under my exclusive responsibility. As such, may I may it clear that although I have political views, these are not such as to associate me with colorados, blancos, communists, tupamaros, nor indeed with fascists.
Unanimity among more than 500 people is little less than a statistical impossibility when dealing with problems of such seriousness, even when the influence of the hierarchy is overwhelming.
From a strictly human angle, it is also impossible for there to be unanimous agreement when faced with statements that should be described as monstrous, such as those relating to the death that prompted the declaration by the Chamber of Representatives of [a person] whose status as a citizen was sought to be denied, amid general applause, and who along with his wife was then the victim of an outrage. Even if these statements were true, how could they justify what doubtless must have been horrible suffering. However, if this were not enough, the argument was concluded – incredibly -- by attesting that the death of [the individual], doubtless after brutal torture, was due to his “falling on a stone”. And then, claiming that the issue had been properly clarified, and after making the customary invocations to dignity and honor (which were wholly absent in this instance), the matter was closed.
But this was but one of the few cases that have come to light, because of the lack of any alternative. For months, one after another, serious accusations are accumulating about the behavior of the armed forces; the number and importance of these make any thinking person reject all possibility of an “insidious campaign”, and even if a large proportion can be attributed to lies, the rest are more than enough cause for alarm.
Public opinion can only glean such accusations from the words of parliamentarians, transcribed in the official daily records of the sessions in the Chambers, since military secrecy surrounds everything. These show with proof and testimony in many cases, cases ranging from robbery to the collective assassination of completely defenseless people with no conceivable links to subversion (the case of Paso del Molino), and including illegal detention, assault, unlawful arrest and torture. At no point have these been properly refuted [by the armed forces], except if this is what is to be understood by repeated protestations about dignity and honor that convince no-one. For the people to accept that they have dignity and honor, it is not enough just for them say so; rather they have to prove it when the circumstances demand. To this end, it would be useful to know the result of at least some of the enquiries that are so often invoked.
Moreover, people ask themselves how it can be that so many doctors, engineers, architects, lawyers, teachers, students, men and women of the people, who until not long ago were respected and appreciated for their intellectual and human qualities, have suddenly become criminals of the worst order and treated in ways that no delinquent has ever been treated in this country. Apart from the assaults on their homes at dead of night, instilling terror into their children, do they deserve to be held incommunicado, separated from their families who for long periods often do not know where they are being held, manacled, hooded with their eyes and ears blocked so as to drive them mad, to be the victims of endless picanas, submarinos, plantones, as well as ferocious and cowardly beatings?
Are any of these things anything but torture? And if our parents, wives, brothers or sons are to suffer these, is this not torture? Who is safe? Who has the right to make sure that their human condition is respected? Who is free of fear?
Let us recall Artigas: “Go and tell your master that General Artigas is not an executioner”. That is not the way. He who cultivates the wind faces the tempest. Such practices will not bring the peace that they suppose [is] the objective, the “final success of the struggle under way,” as the resolution adopted implores.
I do not forget those who have lost their lives from subversion, and I deplore their killings, especially of humble people caught up in the cogs of the machine that others have set in motion. But it is said that the victims were torturers. And in this case, it has been said endlessly that violence begets more violence. Are we to continue in this way? And what sort of future will we hand on to our children?
If you do not play by the rules, in the long run you lose more than you gain. The undignified actions of our enemy do not justify us doing the same. And we should never forget that the armed forces are armed by mandate of law, and the law does not permit – even when invoking its own defense – that its power is used to inflict unhappiness on the people to which it belongs, to whom in the last instance it owes its very existence..
For this reason, exemplary punishment should be meted out to those – a small minority, I am sure – who have tarnished the uniform of the army, using it to cover up their excesses, their abuse of authority, their sadism. And their names should be made known to the people for the criminals that they are. This goes beyond a question of discipline, governed as it is by the confidentiality with which discipline and subordination should be protected.
Only thus can the moral principles be that we like to cite so as our exclusive claims to patriotism be safeguarded. And in this regard, we should welcome “every action or manifestation, corporate or individual” that helps us to clean out our own house, even though it may be disagreeable for us to do it. Let us not ignore it, since this tends to diminish us or discredit us. To do nothing is but an act of complicity with the adversary.
As members of the military we do not possess, any more than any other citizen of this country, the divine essence: we are not demi-gods, nor infallible nor pure. On the contrary, we are subject to the errors and vices to which any human being is exposed. Indeed, these tend to be more serious in us, because the power we wield is in a variety of ways greater than that of civilians.
And let us not be disrespectful towards the decisions of the legislature. Its members have arrived at their seats through elections, which – the armed forces say – have been free and which they have acted as guarantors. It is not a matter that when the democratic representatives of the people, in a decision taken democratically and in considered language – what reasons could there be for this not to be the case – refer to the conduct of the armed forces, which they are free to judge, that we should consider them to be “covert accomplices of the enemies of the democratic republican regime” (Emphasis added).
8. On August 3, 1972, in response to the petitioner’s resignation letter, the Military Center rejected “categorically the concepts set forth therein, considering them totally out of place, damaging to the other members, and detrimental to the prestige of the Armed Forces and the Institution.”[3] The Military Center resolved not to accept the petitioner’s resignation, declaring him to be in violation of the Center’s statutes, to eliminate it from the public records of the institution, and to forward a copy of the letter to the General Command of the Army “for the purposes it may deem appropriate”. The Commander in Chief of the Army ordered that a Tribunal de Honor be established.
9. On November 7, 1972, the petitioner received a notice from the Tribunal General de Honor, advising him that he was being placed under its jurisdiction. The petitioner complains that the State had become involved in the matter raised in the Military Center, a private institution independent of the State and the armed forces. The petitioner alleges that as a retired officer he was not subject to the jurisdiction of a military tribunal.[4]
10. The proceedings before the tribunal began on November 16, 1972. The petitioner alleges that the charges against him were those of having expressed his thinking in a free manner[5]. In sum, the State, through a Tribunal de Honor, formed under the aegis of the Ministry of National Defense, judged him for the ideas contained in his letter of resignation as a member of the Military Center – punishing him for having defended human rights in the context of the struggle against subversion.
11. The petitioner also denounces the fact that, because there were no guarantees of due process before the Tribunal, he decided not to attend the hearing, and the tribunal judged him in absentia, in rebeldía according to Article 165 of the Rules of Procedure of the Tribunal de Honor of the Armed Forces. The petitioner alleges that he was thus deprived of the right of defense. On November 22, 1972, the Tribunal cashiered the petitioner “for a very serious offense”, stating for the record that he had been judged en rebeldía and that he was discharged from the officer corps. The petitioner requested in writing the grounds for the ruling, which the Tribunal rejected, informing him that “his request was turned down because he had refused to appear before the Tribunal for the causes adduced, he has ceased to be entitled to the rights established in this respect by the said Rules of Procedure”. In January 1973, the Executive approved the ruling of the Tribunal and the petitioner was transferred to a situación de reforma.[6] In December 1973, the Ministry of Defense set the remuneration under the reform regime at a third for the petitioner, and two thirds “for those who justify rights to pension”.[7]
12. The petitioner states that on May 2, 1974, he lodged an appeal before the Ministry of Defense to revoke the Executive Branch’s resolution and to have his status restored as a retired army major. Due to the dictatorship in Uruguay at the time and fearful for his own and his family’s safety owing to the lack of minimal guarantees, the petitioner opted to shelve his claim.
13. After the return to democracy in Uruguay in March 1985, and following the publication in March 1991 of an journalistic article by Lt. Gen. Hugo Medina in the magazine Búsqueda, in which he explained the extent of what he termed “the loss of points of reference” in the actions of the military, acknowledging deaths in prison, the “disappearance” of people, and torture perpetrated by the armed forces, the petitioner resumed his claim. For the petitioner, it was “honor” that “had been put at jeopardy (…) and it was essential [for him] to prove through the statements and deeds of those military officers involved what the Law of Legal Expiry (Ley de Caducidad) had made it impossible to discuss, namely through those who in one way or another took part, even indirectly, in the Tribunal de Honor and his transfer to a situación de reforma"
14. On April 30, 1991, the petitioner again brought an action before the Ministry of Defense to revoke Resolutions No. 46,204 issued by the Executive and 6,540 by the Ministry itself which had impaired his rights. In his action, the petitioner argued for the annulment of the resolutions because of the lack of competence of the Tribunal de Honor owing to the fact that (a) the petitioner no longer came under its jurisdiction, (b) the lack of the right of defense, and (c) the violation of Article 66 of the Uruguayan Constitution[8] and other statutory and regulatory provisions. The Ministry of Defense failed to pronounce on the action brought by the petitioner.
15. On October 23, 1991, the petitioner initiated an action against the State in the Tribunal on Matters of Contentious Administration to nullify these resolutions. On March 10, 1993, the Tribunal ruled that the action could not validly proceed because the expiry of the right of the petitioner to initiate it. The petitioner received notification of the Tribunal’s ruling on April 26, 1993.
16. Parallel with this, on May 27, 1991, the petitioner submitted a note to the Military Center, informing it that “even though the word ‘honor’ is often used to cover up ‘dishonor’ and appears to have been overused and hollow for some time now, it is still vital that honor be paid by honor.” The petitioner pointed out to the Center its direct responsibility for the unjust and illegal situation in which he had been living for more than twenty years, and requested the following reparations:
1. To publish in the same daily papers in which the communiqué of October 5, 1972 was published, in the same position and in the same manner, a new communiqué in which it is clearly recognized the error of not accepting my resignation and eliminating my name from the social registers.
2. To intercede with the Commander-in-Chief of the Army, reversing the erroneous steps taken previously and to nullify the ruling of the Tribunal de Honor which was to my prejudice when it was announced in the way it was, and taking into account Article 66 of the Constitution.
3. To accept my resignation from this Military Center dated July 6, 1972, when I submitted it by telephone to the president of the Center.
17. On June 5, 1991, the Military Center returned the note "for not being admissible". Consequently, the petitioner initiated an action for damages against the Military Center, basing this on an abuse of the law. The ruling in the case against the Military Center went against the petitioner because the tribunal found the action to be inadmissible because of the expiry of time limits.
18. For the petitioner, the classification as being in a situación de reforma meant practically his becoming a ‘non-person’ as well as being a serious blow to his moral standing as a military officer to be punished in this way. This was because at the time when his status was removed, transfer to a situación de reforma was something reserved for pederasts and thieves. This was the notion that prevailed at the time in the army. According to the petitioner, the nub of the issue was a matter of military honor:
The honor that the Mlitary Center, the Tribunal General de Honor, the Ministry of National Defense and the Executive Branch “removed” from me, dignity which they refused to restore to me because it implied recognizing that I was right and they were wrong, as well as admitting that the armed forces committed tremendous violations of human rights, so much so that they were only prepared to admit these indirectly and under duress.
19. The petitioner alleges that his demand for compensation for indemnity for damages suffered over more than 20 years came to a total of US$300,000 (2/3 of the pension: US$116,000; private health insurance: US$10,000, unpaid annual bonuses and moral damages including the impossibility of obtaining credit: US$160,000.
20. On June 14, 1994, in view of the policy of “National Pacification”, the laws of amnesty, and the call to Ministry of Defense personnel who thought they had been dismissed for political or ideological reasons, the Ministry issued a new resolution, which made mention of the resolutions referred to by the petitioner and modified the petitioner’s reforma pension, but without conceding any retrospective rights for pension payment and without lifting his reforma status.[9]
21. The petitioner alleges that it was because he had made his opinions clear in his resignation letter that he was subjected to the Tribunal de Honor, violating various Articles of the American Declaration: Article II (right to equality before the law), Article IV (right to freedom of investigation, opinion, expression and dissemination), Article V (right to protection of honor, personal reputation and private family life), Article XVI (right to social security), Article XXVI (right to due process of law), as well as the following provisions of the American Convention: Articles 8, right to a fair trial, 13, for having been penalized for free expression, and 25, for being deprived the right to simple and speedy recourse to challenge penalizing resolutions. The petitioner alleges that, after the return to democracy and in spite of the lapse of time, the State continued to ignore his claim, perpetuating the violations against him. For this reason, he alleges, his rights to honor and dignity were violated (Article 11) and equality before the law (Article 24).
22. The petitioner declares that on December 24, 1997, by virtue of Resolution 76,161 from the Ministry of Defense, he recovered his status as a retired officer, rescinding his reforma status, “without this signifying any retroactive rights whatsoever”. This resolution declares:
Resulting from […] III.That the [situaciones de reforma] were determined in a context of generalized social conflict; considering […] III. That at the same time the previous administration […] determined that […] there should be established a series of guidelines for reparation applicable through administrative channels to military personnel dismissed from the Armed Forces for political or ideological reasons or for mere exercise of arbitrary power […] it is believed pertinent to grant [you] the status of retired officer, rescinding the situación de reforma […]. The President of the Republic resolves (1) – Legal standing shall be granted to the Distinguished Officers cited in the ‘Seeing that’ clause of the present resolution, without this meaning any retroactive rights whatsoever, rescinding the situación de reforma […].[10] Emphasis added. .
23. The petitioner alleges that this resolution, in view of the disposition “without (…) any retroactive rights whatsoever”, instead of “rescinding” the situación de reforma, leaves him in the same situation, even though the State recognizes that his dismissal from the Armed Forces was owing to political or ideological motives, or to the mere exercise of arbitrary power, and thereby tacitly ratifies its responsibility for the violation by reversing the situación de reforma.
24. The petitioner declared that this resolution restored his status as a military officer prior to January 1, 1973, and adds that:
Nonetheless, I have not committed any offense whatsoever, nor transgressed any rule of honor; on the contrary, I showed myself to be an opponent of those that did. Consequently, I can only accept that I be granted through executive pardon (or under the “inspiration of magnanimity” what I am legally entitled to. […].[11]
25. Finally the petitioner observes that:
It is wrong to state that (my) former claim has been remedied by rescinding the situación de reforma […] Even though , when this situación came to an end, the material damages which I bore for a quarter of a century (along with my family) because of being cashiered and loss of my military status, title, rank and right to wear uniform, the humiliation that this involved, exposing me publicly as a person without honor, is not satisfied by just restoring what was ultimately mine, adding some material concessions, and turning the page as if nothing had happened. As a result, there is a continuing obligation for reparations for the wrong unjustly caused, for those for whom money is not enough […]. It is a matter of vindicating the values of (true) honor […].[12]
B. The position of the State
26. In its response of June 13, 1995, the State argued that the allegations are inadmissible of non-defense and lack of guarantees in the internal disciplinary action of the Tribunal de Honor, established by the General Command of the Army in 1972. This was because the petitioner had “resigned from them unilaterally and voluntarily at their administrative and jurisdictional headquarters”. According to the State, the petitioner has admitted his voluntary absence at the proceedings, so cannot allege non-defense or lack of guarantees in these.
27. The State recognizes that the petitioner exhausted domestic remedies. The State points out that the petitioner appealed against the decision of the Tribunal de Honor through the corresponding administrative and jurisdictional channels, “having exhausted both”. His action for nullification was rejected by the Tribunal of Administrative Contention, the maximum judicial organ for administrative matters which ruled rejecting the petition, arguing that “…the action of Mr. Tomás E. Cirio could not validly be initiated since the right of the petitioner to do so had expired.”
28. The State alleges that the petitioner was aware of the 1973 and 1974 resolutions and that the petitioner failed to exhaust domestic remedies at that time, as he could have done before the Tribunal of Administrative Contention by filing an action for nullification. Thereafter, on October 23, 1990, nearly twenty years after his transfer to the situación de reforma and five years after the restitution of democracy in Uruguay, the petitioner filed an action for nullification against the 1974 resolution. This was found to be time-barred, his right to file it having expired.
29. The State sustains that throughout this process and in all its various stages, constitutional principles were upheld. Moreover, it emphasizes, the action was filed in 1991, when democratic conditions in Uruguay prevailed. . 30. The State also submits that the petitioner pursued an action for damages against the Military Center in the First Level Civil Court of the Eighth District whose admissibility was rejected on account of time limits.
31. The State alleges that even though the petitioner’s situation does not accord with the criteria used for reparations agreed between the Executive and the National Defense Commission of the Uruguayan Senate, the petitioner’s case was reviewed in 1994 and the pension benefits relating to the situación de reforma were restored, as set out in a Ministry of Defense resolution in June 1994. This review was based, the State maintains, not on the legitimacy or opportune nature of the petition, rather on a superior consideration of seeking to consolidate once and for all the process of national peacemaking. The State alleges that this resolution was emitted in order to “temper the one-time severity with which the former officer may have been judged, within its discretion for doing so at a critical moment for the nation, but without this signifying at all that it involved recognition of an illegitimate or unlawful situation that needed to be reverted (sic).” At that moment, with the consent of the petitioner, the pension payments were unified from those paid during the situación de reforma. The reparation made effective by the Executive on June 14, 1994, was fully backed up by the Tribunal of Administrative Contention in its ruling No 35 of February 21, 1994. The State also maintains that if it was the case that the petitioner had suffered unequal treatment, this ended up working to his benefit, since his separation from the armed forces took place outside the time frame established in the guidelines for reparations.
32. In its additional observations of February 14, 2002, the State, through the Ministry of Defense, disagrees with some of the facts presented by the petitioner. It maintains that on July 19, 1972, the petitioner sent a note to the president of the Military Center, in which he submitted his resignation as a member of it, setting out his discrepancies with the resolution of the extraordinary assembly on June 4, 1972, at which he was present. He also requested that he be given the necessary surety to request from the municipal authorities the removal of his father’s remains from the Social Pantheon (Panteón Social). In this letter, he made a series of affirmations questioning the activities of the armed forces in the struggle against subversion. This letter, according to the Ministry of Defense, was made public, since it was read out by the then legislator Zelmar Michelini on July 27 and 28 before the national parliament and this was picked up by the press. On October 6, 1972, the Minister of Defense resolved to place the officer in question before the Tribunal de Honor, without prejudice to putting this matter before the Criminal Prosecutor for having published the letter in the written press.
33. On November 7, 1972, the Tribunal General de Honor (hereinafter the “Honor Tribunal”) notified the petitioner that it had been decided to submit him to the jurisdiction of the same. On November 8, the petitioner attended and was informed of the reasons for his submission to the Tribunal. He questioned the fact that the notification had been made to his wife, and not directly to himself. Verbally, he challenged the members of the Tribunal as having been present at the extraordinary assembly of the Military Center. The challenge was considered and the president and one of the two members of the Tribunal were changed, as well as a secretary to the Tribunal and an assistant secretary. In other words, only one of the original Tribunal members remained. He asked the reasons of his being submitted to the Tribunal be put in writing, but this was denied by the president of the Tribunal
34. On November 16, 1972, Major Cirio appeared before the TGH. The president of the Tribunal asked him whether he was going to make use of the three days contemplated in Article 178 of the Rules of Procedure. To this question, Major Cirio requested that the Tribunal provide him with a certified copy of the typewritten version of the minutes of the extraordinary assembly of the Military Center on July 4, 1972, an authentic copy of the legal advice received by the Minister of Defense prior to the calling of the tribunal, and finally a written version of the presumed facts imputed to his person, linked to the respective Articles of the Rules of Procedure of the Tribunales de Honor. The Tribunal let it be known to him that it did not possess a copy of the minutes referred to, since these had not been the object of analysis by the Tribunal. Similarly, the petitioner was informed that its own competence was also not the object of analysis. The Tribunal agreed to provide the petitioner with the detail of the imputations. This was done on November 17, within the three-day period
35. The State also alleges not to have found the register of any claim presented by the petitioner to the Minister of Defense about to the supposed incompetence of the TGH to judge him, owing to his status as a retired officer. Furthermore, in his first appearance he had stated “…I want to have in my possession the legal status of the Tribunal, but this does not mean that I oppose, I recognize its competence, logically I am subject to it…” Nevertheless, Major Cirio made it known to the Tribunal that he wished to withdraw from it. In view of this, the TGH proceeded to invoke Article 165 of the Rules of Procedure which state “if the accused, without proper motive in the view of the Tribunal, fails to concur or does not wish to give evidence, he will be judged to be in rebellion (en rebeldía).”
36. On November 22, the TGH made its ruling, establishing that the petitioner came under Section D of Article 108 of the Rules of Procedure “dismissed for very grave violation”. On November 25, the petitioner issued a note to the Tribunal in which he reiterated that in his opinion it was not competent, and that as far as he was concerned there existed absolutely no guarantees, and for this reason he requested that he be given the grounds on which the Tribunal reached its ruling and for this to be reconsidered. According to the Rules of Procedure, any reconsideration should take place in a hearing, in other words “listening to the accused”, but this was not possible because of the stubborn refusal of Major Cirio to appear, and it was this which ultimately led to his being judged en rebeldía. The ruling of the TGH was ratified by the Executive in Resolution 46,202 of January 2, 1973. At the same time, Resolution 46,204 of the same date ruled that Major Cirio be transferred to the situación de reforma. On May 2, 1974, Major Cirio lodged an appeal against Resolution 46,204. The State points out that the time limit for lodging an appeal is ten days from that the date the impugned act was notified or published. According to the State, it does not appear in the records whether the petitioner presented himself in time, nor whether the appeal was resolved or not since it was not possible to find all the administrative antecedents owing to the passage of time. Nevertheless, the State emphasizes that it has to be pointed out that there was no appeal against the Executive’s resolution which confirmed the TGH ruling that provided the grounds for transfer to a situación de reforma. The State stresses that it should be recalled that there was an institutional rupture that took place on June 27, 1973, and which lasted until March 1, 1985. It is therefore of note that Major Cirio did not appeal at a time when democratic institutions fully prevailed, but did so under a de facto government.
37. The State points out that between 1985 and 1991, a number of norms were passed to review situations within a State policy to promote national pacification. Major Cirio’s situation was not included in those that were subject to reparation by the legislative and executive branches. However, according to the State, the Executive included his case in the guidelines for reparation agreed with the Senate National Defense Commission, basing this on precepts of equity and the superior consideration of achieving national pacification. As a consequence, he benefited with the inclusion of his services for the period of his dismissal – namely from January 2, 1973, when the administrative resolution was passed that transferred him to the situación de reforma and June 14, 1994, the date of the resolution. Furthermore, he benefited from the payment for the situación de reforma being increased to that which he would have earned had he been promoted in line with section b) of Article 145 of Decree Law 15,688 of November 30, 1984, to the rank of lieutenant colonel, notwithstanding the situación de reforma. As a result of this, the calculation of for the petitioner’s period of service went from 22 years, two months and 18 days, to 44 years.
38. Finally, through Resolution No. 76,161, dated December 24, 1997, the Executive gave the petitioner, along with another 41 former officers, the legal status of retired officers, ending their period of transfer to the situación de reforma, although without retroactive rights. From that moment onwards, Mr. Cirio regained his right to wear military uniform, to his title, rank and other prerogatives that might be conceded to him, and if the opportunity arose to occupy posts in the Ministry of Defense, to collect the annual bonus, and to have the right to make contributions to the Armed Forces Health Service and to benefit from the medical care that goes with it.
39. The State points out that this reparation “is based on the magnanimity which in the years prior to the coup d’etat constituted the very essence of national tradition”. According to the State, Mr. Cirio’s case was dealt with on two opportunities, dealing with both economic questions as well as moral ones, and restoring fully his right to wear the uniform of a retired military officer, in spite of the facts that led to him being cashiered on June 27, 1973.
40. In relation to the competence of the TGH over the petitioner, the State upholds that as a retired officer he remained subject to the jurisdiction of the Tribunales de Honor due to a number of legal dispositions. For instance, Article 341 Section c) of Law 10050 (Military Framework Law) as included in Law 10757 dated July 27, 1946, establishes that “retirement has a number of specific effects among which it points out that the retiring person remains subject to military jurisdiction during the whole time in which he occupies posts in the Army and other instances, for four years from the date on which he passed into retirement.”. The State argues, in its response on July 5, 2002, to the observations of the petitioner that “the concept of military jurisdiction does not include the Tribunals of Honor whose actions are of an administrative nature”. Without prejudice to this interpretation of the jurisdiction of the Tribunals of Honor, the Military Framework Law establishes that the position of a member of the military ceases: for officers in (..) retirement: …c) when they are transferred to situación de reforma in cases under review… Tribunal de Honor consequence of the judgment given by civilian tribunals, for crimes that affect the decorum or dignity of the officer or by resolution of the Executive, following judgment by the Tribunal General de Honor of the Army.“ According to the State, Mr. Cirio’s affirmation was entirely groundless that because he was a retired officer for more than four years he could not be subjected to military jurisdiction, including that of the Tribunal de Honor. This is because 1) The Tribunales de Honor do not involve the exercise of military jurisdiction, since their function is administrative; 2) a retired officer may be subjected to the Tribunal de Honor by express mandate of the Military Framework Law, without there having been or being a time limit; and c) it was incumbent to apply the legal framework in Uruguay which involves objective guarantees in administrative rulings, without prejudice to subsequent oversight by jurisdictions independent of the Executive.
41. The State alleges that the situación de reforma does not have the scope mentioned by the petitioner, and that this is defined by the Military Framework Law No 10,050.[13] It also alleges that retired military officers will be reformed in the same conditions as apply to officers on active service.[14] For this reason, the State alleges that the Tribunal de Honor was competent to judge the petitioner. Consequently, the State alleges that the transfer to the situación de reforma was wholly legitimate, based as it was on the “grave violation” found in the Tribunal’s ruling. The State maintains that:
Logically, it is clear to all that among its competences the Tribunal de Honor of the Armed Forces has the power to judge the honor, the private and public conduct of its equals, taking into account the moral, professional and social values at any particular point in time, in accordance with its own precepts but attempting to reflect those of the entire military institution that they represent.
The accused cannot escape from this reality which has universal application for the armed forces. Due to his military standing, he was subject to his superior officers, and the parameter of their rulings is bounded by their military nature, and is not comparable to those of civilian life...
Military life in all States, among others, imposes rigorous and severe duties of obedience, respect and subordination to superior authority at all times and in all places, according to the laws and regulations in force. He who tries to evade these, for whatever motive, has to be prepared to accept the consequences. This is something that every member of the military knows and accepts when he enters the armed forces.[15]
42. The State alleges that the petitioner passed to his situación de reforma in total conformity with the laws in force at the time, without him taking those actions pertinent to challenging the procedure that led him into the situación de reforma. Finally, the State makes it known that the bonus benefit (aguinaldo), which the petitioner claims, is received by retired officers in the armed forces, and consequently is not received by those who are in situación de reforma. The State adds that, in the same way, the right to care from the Armed Forces Health Service is also lost. The State argues that the loss of benefits is a legitimate consequence of transfer to a situación de reforma.
43. The State concludes that the petitioner omitted to define clearly the dispositions of the American Convention which, in his opinion, have been violated, as well as the facts that provide the grounds for his complaint. It similarly points out that the Convention entered into force for Uruguay on April 19, 1985, the date of its adhesion. Consequently, it can only be judged for acts that took place after that date.
IV. THE FACTS
A. GENERAL CONSIDERATIONS
1. The scope of review
44. In line with what was already been resolved in its report on admissibility, the Commission is competent, in accordance with Articles 26 and 51 of its Rules of Procedure, to examine and pronounce on the petition about the presumed violation of rights of equality before the law, the right to freedom of investigation, opinion, expression and dissemination, the right to protection of honor, personal reputation and private family life, the right to social security and the right to due process of law established in Articles II, IV, V, XVI and XXI of the American Declaration.
45. It also falls within its competence to examine the complaints against the Uruguayan State for violations of human rights based on the provisions of the American Convention on Human Rights, and in Article 26 of its regulations.
46. Consequently, the Commission is competent ratione temporis to examine and decide upon the case sub judice in accordance with the American Declaration regarding violations that took place before April 19, 1985, and also in accordance with the American Convention with respect to violations after April 19, 1985[16].
47. Subject to these considerations, the Commission finds that the alleged facts and their effects over time may constitute violations of rights established both in the American Declaration and the American Convention. Hereinafter the Commission will deal on the one hand with the facts that constitute violations to the American Declaration because they took place prior to April 19, 1985. On the other hand, the Commission will deal with those facts that constitute violations and which took place after the date of ratification of the Convention.
2. The alleged reparation made under Resolution 76.161
48. The State points out that by virtue of Resolution No. 76.161, dated December 24, 1997, Mr. Cirio was granted the juridical status of a retired officer, bringing to an end his transfer to a situación de reforma, without this signifying any right to retroactivity. From that moment on, Mr. Cirio recovered his right to the use of uniform, title, rank, and other prerogatives, being able (were the situation to arise) to occupy posts in the Ministry of Defense, receive payment of the bonus (aguinaldo) and contribute to the Armed Forces Heath Service for medical care. Consequently, the State considers that Mr. Cirio’s case was adequately attended to, covering both the economic and moral questions, restoring fully his right to dress as a retired military officer, in spite of the facts that gave rise to his being cashiered well before the military coup d’etat of June 27, 1973.
49. The petitioner claims that the Government of Uruguay never considered reparations to the moral damages inflicted on him owing to the ignominious way he was degraded. Furthermore, the petitioner upholds that Resolution 76,161 did not revoke resolutions 46,202 or 46,204 of January 2, 1973, which altered his status from that of a retired officer to the situación de reforma. Consequently, in the petitioner’s opinion, there has only been partial reparation of the violations committed against him.
50. On this point, the Commission makes the observation that, as the Court has recently ruled, notwithstanding the partial restitution to which the State refers, the Commission has the competence to examine the merits of the case in hand. According to the Inter-American Court:
When the Inter-American system examined the case the facts leading to the alleged violation had already been committed. This Tribunal should remember that the international responsibility of the State arises immediately with the internationally illicit deed attributed to it, although it can only be demanded after the State has had the opportunity to provide reparation by its own means. Possible subsequent reparation made under domestic law, prevents neither the Commission nor the Court examining a case already initiated under the American Convention. It is for this reason that the position of the State of having duly investigated cannot be accepted by the Court in declaring that the State has not violated the Convention[17].
51. Consequently, the Commission reiterates its competence to undertake a detailed examination of the matter with respect to the presumed violating effects of the measures that were not subject to reparation and those to which Resolution 76.161 of December 1997 refers.
V. ANALYSIS OF THE MERITS
A. The alleged violation of Article IV of the American Declaration and Article 13 of the American Convention
52. According to the petitioner, the entire situation has been a reprisal for his having given his opinion freely, beginning with his resignation as a member of the Military Center, conveyed by telephone and then by letter dated July 19, 1972. In this, he pointed out his disagreements with the resolution of the extraordinary assembly of July 4, 1972, variously questioning the activities of the armed forces in the struggle against subversion. The views he expressed gave rise to: 1) the reply of the Military Center with the forwarding of a copy of the letter to the General Command of the Army; 2) the decision by the Minister of Defense to subject him to the TGH; 3) the steps taken by the TGH (in spite of its lack of competence); 4) its ruling, ordering his “disqualification for a very grave violation”; 5) the ratification of this by the Executive Branch; 6) its subsequent resolution transferring him to a situación de reforma. The petitioner alleges that his being cashiered had as its sole cause the expression of his views within the Military Center, a private institution. According to the petitioner, the expression of his views in a private letter constitutes an essential human and constitutional right. He upholds that he has been a defender of human rights and maintains that a person who points to illicit acts and brutal excesses is not a transgressor; rather those who have committed such acts. With respect to his letter being read out in the Uruguayan Congress and its subsequent publication, the petitioner maintains that he was not in a position to control the content of what is read out in the Congress or published in Uruguay.
53. The State argues that the petitioner did not ask permission to express his opinion in the assembly of members belonging to the Military Center. The State maintains that the petitioner lacked the arguments to convince the rest of the membership on the point under discussion. Days after the assembly, the petitioner sent his letter of resignation to the Military Center. The State maintains that Major Cirio questioned the actions of the armed forces in the pursuit of the struggle against subversion, and that the letter was not a private letter since its was read out aloud in Congress by a congressman belonging to the Frente Amplio party, Zelmer Michelini, and afterwards the content of the letter was published in the Ahora daily newspaper on September 29, 1972. Publication of this letter constituted a crime, according the State.
54. The petitioner made it clear that because of the opinions he had made in a personal letter addressed to the Military Center, a private organization, the Commander-in-Chief of the Army ordered that he be tried by a Tribunal of Honor, in violation of the law then in force because the petitioner was not subject to the jurisdiction of the military tribunal, and his status en situación de retiro was transferred into one of situación de reforma, denying him the status and benefits to which he was entitled as a retired officer
55. In this case, the petitioner sent a letter to the Military Center, which was considered by the Center as an act of insubordination to the Armed Forces. The letter was sent on to the General Commander of the Army, who decided to take the matter seriously and institute proceedings against the petitioner by ordering the constitution of a Tribunal de Honor.
56. Article IV of the American Declaration of the Rights and Duties of Man enshrines the right to freedom of opinion and expression and the right to disseminate information and ideas by whatever means:
Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever.
57. The Inter-American Court has established that “The freedom should not only be guaranteed with regard to the dissemination of information and ideas that are perceived favorably or considered inoffensive or indifferent, but also with regard to those that offend, are unwelcome or shock the State or any sector of the population” [18].
58. Freedom of expression constitutes one of the essential pillars of democratic society and one of the essential conditions for the progress and self esteem of any individual. It is applicable not only to “information” and “ideas” that are perceived favorably or seen as inoffensive or as something indifferent, but also those that offend, surprise or annoy. These are the requisites for pluralism, tolerance and the broad mindedness, and without them there is no democracy.
59. As established under Article 13, this freedom is subject to restrictions which, however, must be interpreted strictly, and the need for any such restrictions must be convincingly established. The text of Article 13 of the Convention sets out in its relevant provisions:
1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one’s choice.
2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
a. Respect for the rights and reputation of others; or b. The protection of national security, public order, or public health or morals. (Emphasis added)
60. The facts show that the petitioner, by means of a letter of resignation addressed to the Military Center, sought to resign from the said Center, a private organization, on account of a declaration that the Center had made defending actions by the military which the Center called in response a “campaign to discredit the Armed Forces carried out at every level”. This personal letter was then relayed to the commander-in-chief of the Army, who convened a Tribunal de Honor that essentially judged the petitioner for the crime of insulting military honor. According the the petitioner, the Tribunal adduced as “detailed causes” each and every one of the views expressed in his letter to the Center. According to the petitioner, he exercised his right to communicate his views freely and the Center, a private entity, had no reason to pass on the content of the letter to the commander-in-chief of the Army. Furthermore, the commander-in-chief, the petitioner alleges, had no reason to order the convening of a Tribunal de Honor on the basis of a private note that did not concern internal discipline within the Army.
61. The petitioner’s "disqualification for a very grave violation" and his transfer to a situación de reforma undoubtedly corresponded to “ulterior responsibilities” with respect to the exercise of his freedom of expression. The Commission ought now to consider if the “ulterior responsibilities” violated Article IV of the Declaration.
62. The petitioner alleges that it was not foreseeable how the Military Center would react to his letter of resignation, at least that it was not foreseeable that his resignation would be rejected and that a Tribunal de Honor would be established to try him and to impose a life-time punishment involving the deprivation of his status and benefits. Although the Commission agrees that the precise reaction of the State was not foreseeable, it warrants mentioning that the environment in Uruguay in mid 1972 was tense and civil liberties were rapidly being infringed upon. The Government of Uruguay, on April 15, 1972, declared a “State of Internal War” in its efforts to destroy the “Tupamaro” guerrilla movement and enacted, at the request of the Executive, various measures that temporarily suspended a number of constitutionally guaranteed rights.
63. The Inter-American Commission on Human Rights, in its “Report on the Situation of Human Rights in Uruguay” described the deteriorating legal situation prevalent in mid 1972.[19] Law 14,068 of July 10, 1972 entitled “De lesa Nación” added new crimes to the Military Penal Code, some of which replaced similar provisions of the regular Penal Code. Using this procedure, prosecution of these crimes was transferred to the military courts, even though the accused might be civilians charged with “subversive activities”. In addition to the crimes of “lese majesté”, the military judges were to apply the preexisting provisions of the Military Penal Code when prosecuting civilians, including Article 58 thereof, which defined the crimes that affected the moral fiber of the Army and the Navy:
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 sovereignty endowed.
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.
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