Gamarra v Paraguay, UN Doc CCPR/C/104/D/1829/2008 (30 May 2012)
The UN Human Rights Committee has found that the use of force by the Paraguay police against peaceful demonstrators was disproportionate, constituting a violation of article 7 of the International Covenant on Civil and Political Rights. Paraguay was also found to have contravened article 2, paragraph 3 of the Covenant by depriving the demonstrators with access to an effective remedy in relation to the human rights violations.
On 3 June 2003, 1000 demonstrators, including Ernesto Benitez Gamarra, orchestrated a peaceful blockade demonstration in an attempt to pressure the Ministry of Agriculture in Paraguay to grant the producers of lemon verbena a subsidy for losses suffered as a result of private sector marketing.
However, the demonstrators were met by armed policemen and military personnel, who commenced a violent assault before negotiations between the police and the demonstrators had concluded. According to Gamarra, the assault involved firing tear gas, live rounds and water cannons, and was not preceded by any loudspeaker warnings. Many demonstrators were beaten violently, with police and military personnel clearing the demonstrators’ camp and singling out between 20 and 25 people for arrest, including Gamarra, forcing them to lie on the ground in order to beat them with batons and kick and stamp on them.
Gamarra and the other detainees were then taken to a police station where personnel continued to beat them. Gamarra was targeted in particular and was taken aside to a room where he was kicked, beaten with batons on his back, feet, stomach and head and sprayed in the face with an irritant gas. This treatment ceased only when journalists covering the demonstrations arrived at the police station. Gamarra and the other detainees were placed in a cell where they were unable to sit, lie down or go to the toilet until 5.30 am the next day. Consequently, Gamarra now suffers from significant physical and psychological ailments.
On 10 June 2003, Gamarra and the other victims filed a complaint for torture and ill-treatment with the Public Prosecution Service. On 3 August 2005, however, the San Pedro del Ykuamandyju interim Criminal Court of Guarantees ruled that the case against the chief of police and prosecutor L.A. should be dismissed on the basis that the prosecutor’s office did not have sufficient evidence to justify continuing the case. Gamarra was not formally notified of this decision, and only determined the status of the case through his own initiative. On 24 May 2006, the Caaguazu and San Pedro Appeal Court declared an appeal by the Special Unit on Human Rights Offences inadmissible, on the grounds that it had not been filed by the deadline. Gamarra was informed that no further appeal was possible.
The Committee determined that Gamarra had exhausted his domestic remedies as required by article 5, paragraph 2(b) of the Optional Protocol to the Covenant. This was held on the basis that the Criminal Court dismissed his case and he was informed by the Appeal Court that no further appeal against this decision was available.
After considering Gamarra’s detailed description of the 3 June 2003 events, the medical reports he submitted and the acknowledgment of the events by the Public Prosecution Service, the Committee determined that the use of force by the police was disproportionate to any threat posed by the demonstrations. The treatment to which Gamarra was subjected therefore constituted a violation of article 7 of the Covenant.
Further, there was significant delay in the prosecution attending to Gamarra’s case. For example, it was not until a year after Gamarra’s complaint that the prosecutor indicted two suspects, and the Criminal Court refused to allow a stay for further evidence to be gathered, dismissing the case altogether. In these circumstances, the Committee found that Gamarra did not have access to an effective remedy and therefore a violation of article 2, paragraph 3 of the Covenant had occurred in conjunction with article 7. The Committee held that Paraguay was under an obligation to provide Gamarra with an effective remedy, including an impartial and thorough investigation of the facts, the prosecution and punishment of the perpetrators and full reparation, including compensation.
The Committee held that Paraguay was under an obligation to prevent similar violations occurring in the future. By way of enforcement, Paraguay is required to submit to the Committee within 180 days information regarding the measures adopted to give effect to the decision.
Section 10 of the Victorian Charter provides that a person must not be subjected to torture or treated or punished in a cruel, inhuman or degrading way. This reflects article 7 of the ICCPR. The Committee’s decision therefore demonstrates that any use of force by the Victorian police must be proportionate to the threat being posed in order to comply with obligations under the Victorian Charter.
The Covenant also obliges State parties to provide effective remedies for non-compliance with the rights it protects. Section 39 of the Victorian Charter provides that there is no free-standing right to a remedy under the Charter. This section therefore does not adequately reflect article 2, paragraph 3 of the Covenant, which is vital to the observance of human rights. The Committee is concerned to ensure that effective remedies are available to victims of human rights violations, therefore this is an aspect that should be explored by the Victorian Charter in the future.
The decision is available online at: http://daccess-ods.un.org/TMP/3904534.87634659.html
Alexandra Jelley is a Winter Clerk with King & Wood Mallesons Human Rights Law Group.