Document #1032398
IRB – Immigration and Refugee Board of Canada (Author)
The text that follows is an unofficial DIRB
translation, provided for your reference, of a fax sent to the DIRB
by the Peace and Justice Service of Uruguay (Servicio de Paz y
Justicia, SERPAJ-Uruguay), which consulted a number of specialized
sources (24 Aug. 1994).
1) On the penalties for refusing to follow
orders, particularly when thesewere orders to commit illegal
acts:
According to the Military Penal Code
(Código Penal Militar), every person serving in the military
who refuses to follow a normal order, which, according to Colonel
Dr. (in law) Dario Cortagelli, must be interpreted as "orders which
correspond to legitimate acts" (órdenes con arreglo a la
legitimidad), must be judged by the Military Justice
(Justicia Militar). Military Justice must apply one of two
main concepts: a) disobedience and lack of respect, which receive
penalties ranging from four months in jail to four years in
penitentiary; and b) insubordination, whose penalties range from
eight months in jail to eight years in penitentiary.
No code contemplates the refusal to follow
illegal orders. In reality, particularly during the dictatorship,
reasons other than refusal to follow orders were sought for
applying punishments. There were cases in which servicemen were
persecuted, and/or had fictitious charges pressed against them
which the Military Justice used to imprison and, at the end of the
prison terms, discharge them from the forces without any rights. In
many cases, the individuals were gravely tortured.
2) On the maximum and minimum penalties for
desertion, and whether these are currently applied:
According to the Military Code, simple
desertion (deserción simple) is punished with terms
ranging from 3 to 18 months of imprisonment. If it is considered
that there was neglect (omisión) during service, the
penalties can reach three years in penitentiary. Qualified
desertion (deserción calificada) receives penalties
ranging from 3 to 8 years.
Since Uruguay has no compulsory military
service, deserters are those who abandon their duties after having
signed a contract. During the dictatorship, generally speaking,
even those whose contracts had expired were not allowed to leave
the forces. According to our sources, under normal circumstances
those who had incurred in simple desertion were not pursued.
3) On whether cases of desertion and
disobedience, as described above, which took place during the
dictatorship would have been pardoned by the 1986 amnesty or for
any other reason:
Law No. 15,848 on the Expiration of the
Punitive Intentions of the State (Caducidad de la
Pretensión Punitiva del Estado), also known as the "law
of impunity" (ley de impunidad) states the following
(original text in Spanish follows the paragraph):
The enforcement of the punitive intentions of the state as regards
to the offenses committed up to 1 March 1985 by military and police
personnel, equivalents and assimilated personnel, due to political
motives or while fulfilling their duties and as a result of orders
set by the commanders who operated during the de facto period, has
expired.
Ha caducado el ejercicio de la pretensión punitiva del
Estado respecto de los delitos cometidos hasta el 1ro de marzo de
1985 por funcionarios militares y policiales, equiparados y
asimilados, por móviles políticos o en ocasión
del cumplimiento de sus funciones y en ocasión de acciones
ordenadas por los mandos que actuaron durante el período de
facto.
When the dictatorship ended, no political
prisoner remained in jail, including the military personnel who
were tried for desertion and disobedience. On the other hand, the
majority of these military servicemen could not continue their
military careers. There is an association in Uruguay of military
and police personnel discharged by the putschists
(Asociación Militar y Policial de Destituídos por los
Golpistas). It has some 200 members who await redress of their
situation, meaning the restitution of their careers or professions
and/or proper discharge or retirement, which were granted to other
dismissed public employees. There are approximately 300 other
persons in the same situation.
This response was prepared after
researching publicly accessible information currently available to
the DIRB within time constraints. This response is not, and does
not purport to be, conclusive as to the merit of any particular
claim to refugee status or asylum.
Servicio de Paz y Justicia
(SERPAJ-Uruguay), Montevideo. 24 August 1994. Fax received by
DIRB.