ARGENTINA
AdVANCES and OBSTacles in legal proceedings against those responsible for crimes against humanity COMMITTED during the dictatorship
CONTENTS
2
PERSONS AND INSTITUTIONS VISITED 5
I. REOPENING OF CASES: NULLITY OF THE “PUNTO FINAL" AND “OBEDIENCIA DEBIDA” LAWS 11
1. BACKGROUND 11
1.1 “PUNTO FINAL” LAW no. 23.492 11
1.2 “OBEDIENCIA DEBIDA” LAW no. 23.521 11
1.3 PARDONS 12
1.4 THE CONSTITUTIONAL REFORM OF 1994 12
1.6 LAWS 25.778 AND 25.779 OF 3 SEPTEMBER 2003 13
2. REPEAL AND EFFECTS OF THE LAW OF THE END POINT AND THE LAW OF DUE OBEDIENCE 14
II. EVOLUTION AND CURRENT STATUS OF PROCEEDINGS FOR HUMAN RIGHTS VIOLATIONS DURING THE DICTATORSHIP (1976- 1983) 17
1. CURRENT GENERAL BACKGROUND TO CASES 19
2. SENTENCES PRONOUNCED 33
2.1 FEDERAL CAPITAL 33
2.3 CÓRDOBA 35
2.4 CORRIENTES 35
2.5 TUCUMÁN 36
3. STATE OF SOME OF THE MAIN COURT CASES 37
3.1 NAVAL MECHANICS SCHOOL (ESCUELA SUPERIOR DE MECÁNICA DE LA ARMADA – ESMA) 37
GENERAL INTRODUCTION
The International Federation for Human Rights (“FIDH”) is an apolitical, non-denominational, non-governmental, non-profit organization of internationally recognized public utility, whose aim is to promote the application of all the rights enshrined in the Universal Declaration of Human Rights and in other international instruments protecting said rights.
Established in 1922, the FIDH currently comprises 155 human rights organizations in more than 100 countries. The FIDH coordinates and supports their activities, in particular collaborating at international level. In Argentina, the member organizations of the FIDH are the Comité de Acción Jurídica (CAJ) [Legal Action Committee], the Centro de Estudios Legales y Sociales (CELS) [Centre of Legal and Social Studies] and the Liga Argentina por los Derechos del Hombre (LADH) [Argentine Human Rights League]. The FIDH has consultative status before the United Nations, the Organization of American States, UNESCO and the Council of Europe. It is also an observer at the African Commission on Human and People’s Rights.
As part of its mandate, the FIDH periodically carries out international legal observation and fact-finding missions, the purpose of which is to provide international public opinion and the international community with information concerning trials involving human rights violations, help to improve standards for promoting and protecting these rights, and help to protect victims and strengthen the work of the defenders of human rights.
More than 20 years after the fall of the military regime which kept Argentina in a state of terror for almost a decade and four years after the decision of the supreme court to declare the laws of amnesty, the so-called “punto final” [“final point”] and “obediencia debida” [“due obedience"] laws, unconstitutional, the FIDH considered it necessary to evaluate the state of progress of the legal proceedings against those responsible for crimes against humanity committed under the military dictatorship. The object of this evaluation is to identify the obstacles and positive points of the legal proceedings in order to formulate recommendations which might help the greater advancement of these judgments and, consequently, to help gain respect for and implement the right to learn the truth and obtain justice and reparations for the victims, as well as give the whole country the assurance that such crimes will never be repeated.
This report is the result of a one-year investigation, which included a mission carried out between 24 and 29 March 2008, in which Manuel Ollé Sesé, a Spanish lawyer and university professor of criminal law, and Claudia Josi, a Swiss-Peruvian lawyer studying for a doctorate, participated on behalf of the FIDH.
PERSONS AND INSTITUTIONS VISITED
Members of the National Supreme Court of Justice:
Ricardo Luis Lorenzetti, President of the Supreme Court of Justice
Raúl Zaffaroni, Minister of the Supreme Court of Justice
National Government
María José Guembe, Truth and Justice Programme.
Human Rights Secretariat at the Ministry of Justice, Security and Human Rights:
Andrea Gualde
Rodolfo Matarrollo
Ministry of the Public Prosecutor:
Mirna Goransky: Assistant General Prosecutor and prosecuting attorney in the ESMA case before the trial courts
Félix Crous: Prosecuting attorney in the case of the Primer Cuerpo del Ejército before the trial courts
Eduardo Taiano: Federal prosecuting attorney in Buenos Aires (ESMA case)
Pablo Parenti: Deputy director of the prosecutor’s unit for the coordination and prosecution of cases of human rights violations committed during the period of State terrorism
Memory commission of the province of Buenos Aires: Adolfo Pérez Esquivel
Federal judges:
Mr Eduardo Freiler: President of the Federal Chamber of Buenos Aires
Daniel Rafecas
Rodolfo Canicoba del Corral
Norberto Oandarbide
Carlos Rozanski
Sergio Torres
Jorge Ballesteros
Non-governmental organizations and social movements
Lawyers of the Centro de Estudios Legales y Sociales de Argentina (CELS), for cases in La Plata, Córdoba, Rosario and Santa Fe, and for the Primer Cuerpo del Ejército, ESMA, Plan Cóndor, Mercedes Benz, and Campo de Mayo cases.
Lawyers in the Liga Argentina de Derechos Humanos for cases in La Plata and San Martín and in the ESMA, Rosario, Primer Cuerpo del Ejército, Plan Condor, and Campo de Mayo cases.
Asociación Anahí; Asociación de Ex Detenidos-Desaparecidos; Central de Trabajadores Argentinos (CTA) La Plata-Ensenada; Central de Trabajadores Argentinos (CTA) Provincia de Buenos Aires; Centro de Abogados por los Derechos Humanos (CADHU); Centro por los Derechos Humanos Hermanos Zaragoza; Centro de Profesionales por los Derechos Humanos (CeProDH); Comité de Acción Jurídica (CAJ); Comité de Defensa de la Etica, la Salud and los Derechos Humanos (CODESEDH); Familiares de Desaparecidos, La Plata; Fundación Investigación y Defensa Legal Argentina (FIDELA); H.I.J.O.S. La Plata; La Ciega; Liberpueblo; Madres de Plaza de Mayo, La Plata; Unión por los Derechos Humanos, La Plata; Vecinos de San Cristobal; Apel; Agd-UBA; Comisión de Uruguayos por los Derechos Humanos y abogados querellantes de la Masacre de Palomitas (David Leiva).
INTRODUCTION
In 1976 in the Argentine Republic, prior to the military coup, the Constitutional Government issued a series of decrees with the purpose of carrying out the necessary military operations for neutralizing or annihilating the activities of what were known as subversive elements. This fight against subversion involved the police, security and armed forces, the army being the main body responsible for directing the operations. Although, within the scope of the so-called fight against subversion, the armed forces were legally competent to hold summary trials and enforce the death penalty, during the entire period of the dictatorship neither a single conviction nor a single death penalty was handed down as a result of sentencing.
Quite to the contrary, the military coup which overthrew the democratic regime institutionalized an entire system of repression, the so-called “process of national reorganization”, set up to oppose trade unionists, trade union leaders and teachers in particular and political opponents in general. From the moment when the armed forces took absolute control of the State, arbitrary arrests and the forced disappearance of people became widespread.
Once abducted, victims were taken to one of the 340 secret detention centres located throughout the country, where detainees were kept in subhuman conditions and subjected to all types of torture, torments and humiliation. In many cases, the bodies were destroyed by different mechanisms, such as the so-called “asaderos” [literally “spits”] (in which corpses were incinerated) which were manufactured in the Naval Engineering College (hereinafter ESMA), with the dual purpose of concealing both the death of the person and his or her identity; on other occasions the cause of death was disguised as an armed fight; detainees were also thrown alive into the sea, during so-called “death flights”, as a result of which corpses were washed up along the Argentine and Uruguayan coasts.
The policy of instrumentalized extermination by means of forced disappearance and/or the elimination of corpses was dominated in part by the intention of giving both the Argentine population and the international community the impression that the victims had fled the country.
As concerns the loss of liberty suffered by those held in the clandestine detention centres, the Unidad Fiscal de Coordinación y Seguimiento de las Causas por Violaciones a los Derechos Humanos cometidas durante el terrorismo de Estado [prosecutor’s unit for the coordination and prosecution of cases of human rights violations committed during the period of State terrorism] (hereinafter the Unidad Fiscal de Coordinación) has revealed that the inhuman detention conditions – an almost entire lack of food, accommodation in unsanitary locations, extended periods of solitary confinement or threats of torture, inter alia – succeeded in placing the captives in a state of permanent psychological hardship, tending to destroy their personality and break down their identity.
For the Unidad Fiscal de Coordinación, in legal and criminal terms the conditions to which detainees were subjected constituted a framework of extreme suffering which is subsumed into the legal concept of torment, regardless of whether or not, in specific cases, a particular torture technique was applied to the victim.
After the end of the dictatorship in 1983, the surviving victims of the serious crimes against humanity, their relatives, human rights organizations and political and trades union organizations demanded that the crimes be investigated and those responsible be brought to trial and that the search for the disappeared be continued. In the face of the social outcry, the government declared justice for the violations and the Comisión Nacional sobre la Desaparición de Personas (hereinafter “CONADEP”) was created. In 1984, the commanders in chief of the military juntas were put on trial. However, expectations that justice would be done were dashed when the “punto final” and “obediencia debida” laws were passed in 1986 and 1987, respectively, and the former president Carlos Saúl Menem granted pardons, in 1989 and 1990.
The ineffectiveness and uselessness of the Argentine justice system, a consequence of the effects of the “punto final” and “obediencia debida” laws and of the decrees of pardon, were some of the factors which justified the intervention of courts in other States, such as the Spanish courts, for example, in the cases brought against Adolfo Scilingo and Ricardo Miguel Cavallo. Thus the exercise of universal justice on the part of different domestic courts in other States, such as Spain, Germany and France, also helped to lay siege to the state of impunity in which these heinous crimes remained. The effect was very positive, indirectly raising awareness of the fact that justice should be done in Argentina, the very place where the crimes had been committed and, therefore, that the Argentine State should take all measures to remove any legal impediments preventing these crimes from being judged.
Another of the most important legal devices with which it was attempted to penetrate the ring of impunity was the so-called “juicios por la verdad [“trials for the truth”]. Human rights and relatives organizations, faced with the impossibility of continuing criminal cases owing to the enforcement of the laws of impunity, claimed before the courts the right to know the truth – to know the fate of the disappeared, where there bodies were to be found and who was responsible – independently of the possibility of obtaining criminal sanctions in accordance with both international rules and State obligations deriving therefrom. The Appeal Chamber of La Plata allowed this application. These trials in La Plata were then carried out successfully and were repeated in several locations in the country, contributing to the public debate on the crimes committed and providing a great deal of evidence for the current criminal proceedings seeking sanction.
The intense and continued fight on the part of civil society – principally victims, relatives, human rights organizations, intellectuals and trades union organizations – and of specific political sectors, like the pronouncement of judicial decisions which, in specific cases, considered that the “punto final” and “obediencia debida” laws were null and void, caused the National Congress of the Argentine Republic in 2003 to declare these laws null. However, it was not until 2005 that the Supreme Court of National Justice (hereinafter “supreme court”) definitively declared the above laws unconstitutional with effect ex tunc, qualifying them as amnesty laws. From that moment, progress in the recovering of the historical memory, discovering the truth and obtaining justice acquired greater relevance and prominence but not with the necessary degree of efficacy.
In addition to this significant decision of the supreme court, the latter also issued two others which legally clarified the uncertainty surrounding the two institutions which had prevented the crimes committed during the dictatorship from being judged. These were the judgment of 24 August 2004, which determined that the acts of torture carried out fell into the context of imprescriptible crimes against humanity, and the judgment of 13 July 2007, awarded in favour of entities of the LADH and the Asociación ex-Detenidos Desaparecidos (hereinafter AEDD), which decreed that the pardon granted to General Omar Riveros was unconstitutional.
In order for the investigation to be efficient, the huge number of crimes committed during the period of State terrorism requires a unified and entire structure for the compilation, updating, conservation and digitalization of the archives and information concerning the violations committed.
One step forward in this respect was the creation of the Archivo Nacional de la Memoria [National Memory Archive] in 2003, at the headquarters of the Human Rights Secretariat of the Ministry of Justice by decree no. 1.259. Its object is to centralize the archives of the CONADEP, those of the Secretariat and of the reparative laws, as well as to assist provinces and municipalities in coordinating local archives.
In accordance with the decree establishing it, the principal objective of the National Archive is to help prevent, investigate, punish and seek amends for the serious violations of fundamental rights. In that respect, it was envisaged that those with a legitimate interest, both at State level and in civil society, can consult statements, documents and information found in the Archive. Of particular relevance for shedding light on cases of disappearance and for determining who was responsible is the authority of its president to have direct access to the archives of the National Executive Power, including those of the armed and security forces, and to request information from these bodies.