Symposium: The Sabalsagaray Case: A Uruguayan Example of the Integration of International Human Rights Law with Constitutional Law

Stefanía Rainaldi

Catholic University of Uruguay

In 2009, with judgement N° 365/2009 (“the Sabalsagaray judgement”), the Supreme Court of Justice of Uruguay (“the Court”) declared unconstitutional articles 1, 3 and 4 of Law No. 15.848 on the Expiry of Punitive Claims of the State ("the Expiry Law"). The Court held that these provisions violated both the Constitution and international human rights law.

The Sabalsagaray judgement is seminal because it was the first in Uruguay to recognise the influence of international human rights law on the national legal order. For the sake of brevity, I limit my analysis in this post to features of the judgement that relate to the declaration of unconstitutionality based on the Constitution, international human rights law and the pro homine principle. First, I lay out the main aspects of the case, as well as provide some information about the legal and political context. Second, I explain the Court’s interpretation of the “human rights block” and how this relates to both the national legal order and international human rights law. Finally, I analyse the influence of the judgment on domestic and international jurisprudence.

The Sabalsagaray case relates to a request by the plaintiff that the circumstances of his sister’s death, which occurred during the last civil-military dictatorship of Uruguay (1973-1985), be investigated. The government had not previously investigated her death, nor prosecuted anyone connected to it, because of provisions in the Expiry Law. The Expiry Law was enacted by the Uruguay Parliament in December 1986 as part of a negotiated settlement between political parties and the military, to complete the transition to democracy. The Expiry Law precludes judicial action against State agents of the dictatorship. It has been called a form of “amnesty undercover”  by Dr Francesca Lessa because it ensures impunity for human rights violations committed by the regime. Thus, the Expiry Law established the State’s resignation of its right to prosecute members of the military and the police for crimes committed on or before 1 March 1985. It, therefore, in turn, was necessary to have the Court declare articles 1, 3 and 4 of the Expiry Law unconstitutional, to allow for prosecution in the Sabalsagaray case.

The plaintiff’s legal representatives argued the relevant provisions were unconstitutional as they violated articles 72 and 332 of the (domestic) Constitution and articles 1.1, 8.1 and 25.1 of the American Convention of Human Rights ( “ACHR”). Regarding the Constitution, article 72 states that the enumeration of rights, duties, and guarantees contained in the Constitution does not exclude other rights which are inherent to human beings or which derived from a Republican form of government. Article 332 states that a lack of regulation shall not leave provisions of the Constitution which recognise individual rights without effect. In international human rights law, the articles in the ACHR mentioned above stipulate that Member States must respect rights and freedoms recognised in the ACHR (article 1) – which includes the right to a fair trial (article 8) and the right to judicial protection (article 25).

The Supreme Court of Justice unanimously declared unconstitutional the impugned provisions of the Expiry Law and held they do not apply (inter partes) to the case before it. One of the main reasons, provided by the Court for the finding of unconstitutionality, is that the provisions violated international human rights provisions that fall within the scope of article 72 of the Constitution. The Court considered this provision to be an entry point for the inclusion of rights in international human rights conventions into the national legal framework. The Court relied, in its interpretation of this clause, on the idea of the “human rights block”. In terms of this concept, open-ended constitutional clauses are understood to allow for the coexistence of national and international law.

The Court quoted several Latin American authors in its judgement, including Martín Risso Ferrand, Humberto Nogueira and Alberto Ramón Real. It relied on these authors to explain that human rights established by the Constitution are not limited to the ones mentioned expressly in the Constitution’s text, but also include when protecting human dignity, others recognised by the international human rights law. The “human rights block” consists of the rights mentioned in the Constitution as well as international human rights law, and those implicit in the favourable treatment of the individual. Thus, all these rights are part of the national legal framework – making it mandatory to take them into account in cases relating to the protection of human rights.

The “human rights block” concept is at odds with the classic understanding of state sovereignty in the context of human rights regulation because it recognises international human rights law as part of the national legal framework. The protection of human rights, and their limitation, is focused on human dignity, not state sovereignty. Regarding this point, in the Sabalsagaray case, the Court noted the concept limits state sovereignty in two respects: it limits the State’s guardianship of fundamental rights and its discretion regarding the subjection of public authorities to the law. Accountability for human rights crimes is, therefore, beyond state sovereignty. This point has special significance in Uruguay, where the Expiry Law was submitted to a public vote, twice – a referendum in 1989 and a plebiscite in 2009. 

Risso Ferrand has highlighted two important aspects of this judgement. First, in its acceptance of the direct application of international human rights law, the decision represents an evolution in the jurisprudence of Uruguay. Second, by recognising the “human rights block,” it reaffirms the Pro Homine principle – which requires human rights protection to be balanced in favour of the individual. As a result of the inclusion of the Pro Homine principle, if there is a conflict of norms (or if various interpretations of norms conflict), the rule (or interpretation) most favourable to the individual must prevail – even if it is hierarchically inferior.

In the subsequent case of Gelman v. Uruguay (2011), the Inter American Court of Human Rights held the Supreme Court of Justice had appropriately exercised conventionality control in its treatment of  the Expiry Law in the Sabalsagaray Case. This same Court repeated this sentiment, as part of its monitoring of compliance with the Sabalsagaray judgement, after the Supreme Court of Uruguay applied the mechanism of an “early ruling” (see for example judgements in N° 1525/2010 and 2337/2010). The “early ruling” mechanism allows the Court to reach the same conclusion (that the Expiry Law is unconstitutional) in similar cases, without the need to justify its finding extensively.

The expectation was that this judgment was just the start of a national jurisprudence protecting human rights. Sadly, the Uruguayan judiciary has not entirely lived up to this expectation, and there is still a lot of room for improvement. According to the policy brief, “Investigating Crimes against Humanity in South America,” and the Luz Ibarburu Observatory in Uruguay, there are still 262 lawsuits pending at different stages of the judicial process, and only 20 defendants have been sentenced. Therefore, 35 years after the end of the dictatorship, many enforced disappearances remain unresolved and inadequately compensated victims still await justice.

Stefanía Rainaldi is a consultant for the United Nations in Uruguay and a researcher at the Catholic University of Uruguay.

Suggested citation: Stefanía Rainaldi, “The Sabalsagaray Case: A Uruguayan Example of the Integration of International Human Rights Law with Constitutional Law” IACL-AIDC Blog (28 July 2020), https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-central-and-south-america/2020/7/28/the-sabalsagaray-case-a-uruguayan-example-of-the-integration-of-international-human-rights-law-with-constitutional-law