ARGENTINAtbinternet.ohchr.org/Treaties/CCPR/Shared Documents/ARG... · Web viewLawyers of the Centro de Estudios Legales y Sociales de Argentina (CELS), for cases in La Plata, Córdoba,

ARGENTINA

ADVANCES AND OBSTACLES IN LEGAL PROCEEDINGS AGAINST THOSE RESPONSIBLE FOR CRIMES AGAINST HUMANITY COMMITTED

DURING THE DICTATORSHIP

CONTENTS

1

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

2

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.

Furthermore, the Government arranged for the confidentiality or secrecy of the files of military personnel to be lifted and the judiciary to be provided with information concerning the presumed culprits. Nevertheless, there is still no real wish for the necessary declassification of the military archives in their entirety to be implemented effectively.

In parallel with the action taken by the courts it is also necessary for initiatives to be taken to make symbolic reparations; in that respect, spaces have started to be made available where the victims can be remembered and plaques erected in their memory. Such sites are located in the former clandestine detention and torture centres; for example, the sites being established in areas of the Campo de Mayo and in the large detention centre where ESMA used to operate. On 20 November 2007, the ESMA buildings were transferred by an agreement between the then national president, Néstor Kirchner, and the head of government of the city, Jorge Telerman, which established an Ente público, mixto, autónomo y autárquico (autarkic, autonomous, mixed public entity). From then onwards, what had been a place of horror and death was transformed into the Espacio para la Memoria and para la promoción and defensa de los Derechos Humanos [Place of remembrance and for the promotion and defence of human rights]. This and other places of remembrance are designed as areas in which citizens and future generations can discover and understand recent Argentine history and what happened in the years of incipient State terrorism.

The enormous impetus given to the cases of judicial investigation into violations of human rights thanks to the aforementioned relentless efforts of the surviving victims, relatives of all the victims, civil society in general and, more particularly, human rights organizations since 2003 cannot be denied. At the same time, the participation of the current government in this initial thrust is acknowledged, although the support and back-up required in order to continue the trials efficiently have not been forthcoming. The pressure applied and recommendations put forward by civil society enabled the abovementioned Prosecution Coordination Unit, the Supreme Court unit and the Truth and Justice Programme to be established within the Public Ministry, which is certainly a step forward; however, it is not enough. Indeed, the dimension of the serious crimes committed during the dictatorship is such that far more human and material resources than are currently available are required. The courts have to be reorganized, with cases handled jointly and officials appointed exclusively to deal with the complex proceedings to be investigated, so that the workload can be reduced and judgments can be made in a reasonable time-frame, thus ensuring that the demands of effective legal protection of victims and culprits according to the standards of due process are satisfied.

On the other hand, witness protection in these cases is especially important, as demonstrated by the repeated attacks, threats and instances of abduction which certain witnesses have suffered; however, it is also a matter of ensuring the personal safety and protection of the accused in relation to any homicidal intent or incitement on the part of their colleagues in the military and civilian police forces who might attempt at all costs to draw a veil over the atrocities which might reveal their own possible criminal responsibility.

In this respect it is necessary to make it a strict requirement that the Government demonstrates a real will and employs the necessary means to investigate anyone attempting to prevent cases from proceeding and their possible connections with politicians, police forces and officials of the judiciary who might be guaranteed impunity.

I. REOPENING OF CASES: NULLITY OF THE “PUNTO FINAL" AND “OBEDIENCIA DEBIDA” LAWS

1. BACKGROUND

1.1 “PUNTO FINAL” LAW no. 23.492

At the time when the sentence was handed down in “case 13” (Judgment of the former commanders) and extraordinary recourse before the supreme court against the latter was substantiated, law no. 23.492, called and known as the “punto final” law of 23rd

December 1986, was passed. In the notice of committal of 5th December 1986, the promulgation of this law was justified by the need to achieve social peace and national reconciliation. This law, ex article 1, “extinguished” penal action against anybody resulting from their alleged participation in the crimes committed during the dictatorship, provided that they had not deserted or rebelled, or that they had not been summoned to make an investigatory declaration within sixty days as from the date of promulgation of said law. This annulment of penal action also extended to anyone who had committed crimes associated with the instigation of violent forms of political action up to 10th

December 1983. Said law annulled neither civil action (article 6) nor punishment in cases of identity forgery and the disappearance of minors (article 5).

In short, the law established impunity for all the crimes committed between 1976 and 1983, with the exception of those likely to be qualified as identity forgery and abduction and hiding of minors. From then onwards, since legal redress was impossible, the only judicial processes which - not without difficulty - could be submitted and judged in Argentina were precisely the said crimes concerning identity forgery and the abduction and hiding of minors.

1.2 “OBEDIENCIA DEBIDA” LAW no. 23.521

Since the “punto final” law was passed, countless trials were held within the short period set out in its first article. The continuation of a considerable number of trials provoked various military revolts which demanded a prompt solution to the conflict. The final insurrection took place during Holy Week in 1987. For that reason, on 13 May of that year, the then president of the Argentine Republic, Raúl Alfonsín, referred to parliament a bill which then became law no. 23.521, the law of “Determination of the scope of ‘due obedience’”.

This law established that those who, on the date when the acts in question were carried out, fulfilled a reviewing role, as officers in chief, subalterns, non-commissioned officers and military personnel of the armed, security, police and prison forces, were not responsible for the punishable acts referred to in article 10, clause 1, of law no. 23.049 since they had acted out of “due obedience”. This was confirmed by the rule whereby in those cases said persons were considered with every right to have “acted in a state of coercion, being subordinate to the higher authority, and of having carried out orders, without the power or possibility to examine, oppose or resist them as regards their appropriateness or legitimacy”. Offences involving rape and the abduction and hiding of minors, identity forgery and the extortion of property were excluded.

Many social and doctrinal sectors criticized this law for being unconstitutional and against international law. By a pronouncement of 22 June 1987, the supreme court ratified the law of “obediencia debida” by means of a decision which, as a result of being applied by the rest of the federal Argentine tribunals, determined the actual “final point” of the majority of all pending cases. In short, the criminal proceedings existing up this period were cancelled with the sanctioning of the law of “obediencia debida”.

1.3 PARDONS

With the change of government in the Argentine Republic, the new president, Carlos Saúl Menem, at the end of 1989 and in 1990, rendered various decrees of pardon (numbers: 1002, 1003, 1004 and 1005, of 7 October 1989, and decrees 2741, 2745 and 2746, of 29 December 1990), which implied the end of all the criminal cases being prosecuted at that time. These pardons were granted pursuant to article 86, clause six, of the national constitution of 1853, which gave the national president the power to grant pardons and commute punishments meted out within the scope of federal jurisdiction. This measure, which was justified as a way of seeking national reconciliation, not only did not bring this reconciliation about but rather compounded the legal and social controversy, since the laws could not be considered just norms. Once again, an unacceptable state of impunity prevailed.

1.4 THE CONSTITUTIONAL REFORM OF 1994

Article 31 of the national constitution of Argentina establishes – in spite of conflicting doctrinal interpretations – that, in hierarchical terms, international treaties take precedence over national laws and over any domestic rule hierarchically inferior to the basic law. This aspect was confirmed by the national constitutional convention in 1994 in sanctioning article 75, clause 22, in its current version, thus enshrining this principle in the text of the national constitution itself and expressly that of the precedence in the constitutional hierarchy of all international human rights treaties.

At present, and since the 1994 reform, the Argentine Republic finds itself in a supranational order of such importance that the national supreme court has acknowledged that the jurisprudence of the Inter-American Court of Human Rights (Court of IDH) is a model to be followed by national judges when they are advised that the State will incur international responsibility.

1.5 LAW No. 24.556 OF 13 SEPTEMBER 1995 AND LAW No. 24.952

By means of said law, the Argentine National Congress approved the ratification of the inter-American convention on the forced disappearance of persons.

One of the most serious forms of human rights violations between 1976 and 1983, pursuant to the bills in which this law was crystallized, was the abduction and disappearance of persons in order to remove them both from the civil society to which they belonged and from any form of State jurisdiction. This was clearly a flagrant

violation of the right to life, freedom and safety of all human beings.

The fate of the “disappeared” was systematically denied, sending out a dual and vague message about the families concerned and, consequently, about Argentine society as a whole: the uncertainty as to whether the detainee was alive or dead and, if so, where. This appalling clandestine and generalized practice of the forced disappearance of persons extended to family groups, the elderly and children. The law attempted to oppose impunity and shed light on the truth which had for so long remained hidden in the Argentine Republic.

On the other hand, articles 1 and 2 of law 24.952 repealed laws 23.492 and 23.521. This law sought a symbolic repeal of the “punto final” and “obediencia debida” laws, although it offered no possibility at all of cases being re-opened.

1.6 LAWS 25.778 AND 25.779 OF 3 SEPTEMBER 2003

These two laws were passed simultaneously and published on the same day.

Law 25.778 granted “constitutional hierarchy to the Convention on the non-applicability of war crimes and crimes against humanity adopted by the General Assembly of the United Nations on 26 November 1968 and approved by law 24.584.”

Law 25.779 annulled all the effects of laws 23.492 (“punto final”) and 23.521 (“obediencia debida”), declaring them “incurably null and void”. With this law, the legislative powers were seeking to cancel all the effects of the two annulled laws. The Chamber of Deputies debated and criticized the fact that the repeal of the “punto final” and “obediencia debida” laws by law 24.952 (article 2) did not have the desired effect since it would not set forth with the necessary degree of certainty the inapplicability of the retroactivity of the most favourable criminal law.

The parliamentary debates also confirmed that these laws attempted to reaffirm the national desire to apply full sovereignty and the firm decision to comply with international standards in binding matters of human rights, eliminating all impediments to investigations which had not been permitted under the said “punto final” and “obediencia debida” laws, in order to make good the contravention of international law.

Throughout 2004 and 2005 various pronouncements about the constitutionality of law 25.779 were made in the Argentine courts of justice.

For example, the following declared the law unconstitutional: The Federal Chamber of Córdoba in the verdict of 17 August 2005, and the Federal Chamber of San Martín in the verdict of 22 November 2004.

On the other hand, the constitutionality of law 25.779 was declared by the Second court of the Federal Criminal and Correctional Chamber in its decision of 16 December 2004.

The First Court of the National Federal Criminal and Correctional Appeal Chamber in its decision of 13 July 2004 referred to the constitutionality of law 25.779 and the unconstitutionality of laws 23.492 and 25.521, a decision which the Second Court then upheld. The decision of the Federal Court of Córdoba of 10 June 2004 and also the National Federal Criminal and Correctional Court in its decision of 16 December 2003 pronounced a similar verdict.

It should also be stressed that proceedings concerning the abduction of minors took place during this period and resulted in different convictions for this crime.

2. REPEAL AND EFFECTS OF THE LAW OF THE END POINT AND THE LAW OF DUE OBEDIENCE

The cases previously discussed were the prelude to what ended up being a judicial milestone in Argentina. Sporadic determinations by certain Argentinian courts hastened the long and difficult passage of the laws of the End Point and Due Obedience until their ultimate repeal by the highest Argentinian court: the Supreme Court.

The judgement has its origin in case no. 8.686/2000. The Federal Criminal and Correctional Court no. 4, was investigating in this case the unlawful deprivation of liberty and acts of torture inflicted on the married couple José Poblete y Gertrudis Hlaczik, both detained in the secret detention centre known as “El Olimpo” (Olympus) and both currently disappeared.

The Federal Court in question, on the 6th March 2001, deemed the case upheld and found the actions constituted crimes against humanity, consisting of unlawful deprivation of liberty.

The prosecution of Julio Héctor Simón and the legal finding of crimes against humanity were confirmed by the Second Instance National Court of Appeals in the Buenos Aires Criminal and Correctional Court sitting on the 9th November 2001 (case 17.768).

The aforementioned Federal Court, in the case referred to, declared art. 1 of Law 23.492 and arts. 1, 3 and 4 of Law 23.521 invalid, being incompatible with the American Convention on Human Rights (arts. 1, 2, 8 and 25), with the American Declaration on Human Rights (art. 18), with the International Pact on Civil and Political Rights (arts. 2 and 9) and with the objectives and goals of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and, in turn, following art. 29 of the Argentinian National Constitution, the Court declared as unconstitutional and irrevocably null art. 1 of Law 23.492 and arts. 1, 3 and 4 of Law 23.521.

This resolution was exceptionally important in becoming the basis to resolutions brought down later by other Argentinian courts and judicial bodies, which declared the unconstitutionality of the laws of the End Point and Due Obedience in the prosecution of actual cases.

The ruling by Federal Court number 4 was heard again in the Second Instance National Court of Appeals in the Buenos Aires Criminal and Correctional Court which, on the 9th November 2001, upheld the earlier ruling as to the invalidity and unconstitutionality of art. 1 of Law 23.492 (End Point) and arts. 1, 3 and 4 of Law 23.521 (Due Obedience).

The Supreme Court, in its ruling of the 14th June 2005 (case no. 17.768), definitively declared the unconstitutionality of Laws 23.492 and 23.521, along with the validity of Law 25.779, confirming the rulings that had previously been appealed.

As a consequence, laws founded on these, and their amendments, which had had the effect of impeding the progress of hearings already underway, or which prevented the sentencing and punishment of people responsible, or which hampered in some way investigations being carried out by agencies from various jurisdictions into crimes against humanity committed on Argentinian national territory, were deemed invalid. The ruling also upheld the validity of Law 27.779.

The Supreme Court itself, on the earlier date of the 24th August 2004, ruled that crimes against humanity are imprescriptible, even though Argentina had not become a signatory to the Convention on the Imprescriptibility of War Crimes and Crimes Against Humanity at the time the offences were committed (1974-1978).With this decision, judicial discussion on the nature of crimes against humanity was settled once and for all.

The definitive ruling on the 14th June 2005 extended legal amnesty status to both laws (End Point and Due Obedience) and declared that their joint purpose was “to avoid the investigation and prosecution of grave violations of human rights” and, as they were intended to foster a collective amnesia, declared them constitutionally intolerable since they were contrary to the American Convention on Human Rights and the International Pact on Civil and Political Rights. The Court affirmed that states belonging to the

Interamerican Court of Human Rights (CIDH) were bound to both respect and guarantee human rights, which consequently proscribed any internal legal institution from standing in the way of their international duty to pursue, try and punish grave violations of human rights.

The Supreme Court confirmed that these amnesty laws had lost all pretence to legitimacy since, by obstructing the investigation and appropriate punishment of actions contrary to the rights recognised in the treaties, “they prevent the Argentinian state from complying with its commitment to guarantee these rights and are therefore inadmissible”.

The Supreme Court’s ruling also declared: “any internal legal regulation, supposedly introduced for reasons of pacification, which brings with it the granting of some form of amnesty that leaves unpunished grave violations against human rights perpetrated by the regime benefiting from it, is contrary to clear and obligatory undertakings in international law, and must be effectively suppressed”. Furthermore, as quoted in the Barrios Altos judgement from the Interamerican Court of Human Rights “the promulgation of a law manifestly contrary to the obligations accepted by the State which is party to the Convention constitutes per se a violation of this and calls upon the State’s international responsibility”.

The Supreme Court, following the doctrine of the Interamerican Court of Human Rights, declared that the suppression of the Laws of the End Point and Due Obedience could not therefore be delayed; and that it should be carried out in such a way as to brook no judicial obstacle to the pursuit of these crimes. This meant, practically speaking, firstly, that those who were beneficiaries of such laws could invoke neither the retroactive prohibition of the most serious penal law nor a matter already adjudicated. Secondly, that these principles were irrelevant to the repeal of the laws mentioned and to the persecution of cases which, as a result of the dictates of those laws, simply foundered. And lastly, that the prosecution of cases that had never been started when those successive laws were in effect, should now be pursued.

In short, the Supreme Court conceded there were effects ex tunc. As the tribunal eloquently affirmed: “the subjection of the Argentinian state to Interamerican jurisdiction prevents the principle of irretroactivity of the penal law from being invoked as a means of falling short in one’s duty to prosecute serious violations of human rights”.

The judgement also recalls the Observations of the Committee for Human Rights directed at Argentina concerning the inadequacy of the repeal of the laws enacted on the 3rd November 2000: “serious violations of civil and political rights during the military dictatorship must be prosecutable over whatever time is necessary and with all necessary retroactivity to achieve the conviction of those responsible”.

Finally, the judgement expressly determined that those responsible for the offences committed could not be absolved of their individual responsibility. Accordingly, we quote the Committee of Human Rights, which stated: “when public officials or agents of the State have violated rights enshrined in the Pact…States which are party to it cannot exempt the perpetrators of their personal responsibility, as has occurred under various amnesties”.

In relation to judicial and legislative developments in Argentina from 1983 until the present day, there are three Supreme Court rulings which encapsulate the results of a long period of controversy during which three fundamental principles were hotly debated: (i) the legal nature of actions committed as crimes against humanity, and their imprescriptibility (judgement of the 24th August 2004); (ii) the unconstitutionality of the Laws of the End Point and Due Obedience ( judgement of the 14th June 2005); and (iii) the unconstitutionality of the decrees affording pardon (judgement of the 13th July 2007). The Supreme Court’s three resolutions, in which jurisprudence developed by the Interamerican Court of Human Rights played a fundamental role, were the in principle stimulus to the drive for justice in the Argentine Republic.

II. EVOLUTION AND CURRENT STATUS OF PROCEEDINGS FOR HUMAN RIGHTS VIOLATIONS DURING THE DICTATORSHIP (1976- 1983)

After the enactment of the Supreme Court ruling of the 14th June 2005, the first prosecutions were set in train and the first sentences pronounced, as well as the starting or reopening of many cases for crimes against humanity.

As a sign of the importance and relevance these measures had, we can quote these cases, amongst others: the sentence of the 11th August 2006, the first in which the repeal of the Law of the End Point and of the Law of Due Obedience was applicable, and pronounced in the Federal Trial Court in the Federal Criminal Court no. 5 of the Federal Capital, which condemned a former member of the Federal Police, Julio Héctor Simón, for unlawful deprivation of liberty and torture carried out against the married couple Gertrudis Hlaczik and José Poblete and the appropriation of their daughter Claudia Victoria (cases no. 1.056 and 1.207); the sentence of the Trial Court in the La Plata Federal Criminal and Correctional Court no. 1 (19th September 2006), the first to be pronounced since the reopening of proceedings, which condemned Miguel Osvaldo Etchecolatz; the sentence of 1st November 2007, in the same La Plata court, which condemned the priest Christian Federico Von Wernich.

The first of the sentences mentioned rejected the prescription of penal action in accord with the American Convention on Human Rights and the Convention on the Imprescriptibility of War Crimes and Crimes Against Humanity. In the cases against Etchecolatz and Von Wernich, the sentences determined that the offences for which they were condemned “are crimes against humanity committed within the framework of the genocide which took place in the Argentine Republic between the years 1976 and 1983”.

The celebrated trial of former prefect Héctor Antonio Febres (case no. 1238) in the Federal Trial Court in the Federal Criminal Court no. 5 of the Federal Capital, deserves special consideration. It began on the 4th October 2007. The final depositions from the prosecution and the defence were made on the 28th November 2007, and were indeed the last stages in the trial process, for on the 10th December 2007, four days before the expected end of the trial, when the accused would deliver his final statement and sentence would be pronounced, Héctor Antonio Febres was found dead in the cell he occupied on the base in the Tigre Naval Prefecture, where he was imprisoned. Death was caused by poisoning. This trial was part of case no. 1417/03, ESMA, whose proceedings were assigned to Federal Court no 12.

It is also worth mentioning the judgement in which high-level Army officers were condemned, among them the former Chief of the Army, retired General Cristino Nicolaides, and 7 officials of Intelligence Battalion 601 – the first such trial since that of the military junta itself. They received sentences of between 20 and 25 years’ imprisonment for kidnapping, torture and the disappearance of a group of Montonero militants who were illegally detained when they returned to the country on a so-called counteroffensive operation at the end of 1979 - early 1980. In his sentencing on the 18th December 2007, Federal Judgel Ariel Lijo indicated Battalion 601 was an integral cog in the dictatorship’s machinery, mounting actions that added up to crimes against humanity. All the accused were found guilty of the crimes of unlawful deprivation of liberty, illegal harassment and subjection to slave labour. That sentence was the first condemnation of the military since the repeal of the laws of due obedience and the end point.

Because of its complexity, given the magnitude of the criminal acts under investigation, along with the ESMA case already referred to, case no. 14.216/03, heard in the Federal Court no. 3 and known as “First Corps of the Army”, can also be cited.

We would also like to emphasise the fact that, on the 13th July 2007, the Supreme Court declared as unconstitutional Executive Power Decree 1002/89 which granted pardon to Santiago Omar Riveros, as requested by the LADH and the AEDD. However, that declaration had no effect on other pardons, and so, at this time, Videla and Massera continue to enjoy pardon, even though the Federal Court of Appeal still has to decide if it upholds or not the 25th April 2007 ruling of the Federal Court which revoked pardons for those responsible for the Military Junta at the highest levels, and ordered the carrying out

of the sentence of life imprisonment which they received in Case 13/84, known as the Judgement of the Commanders. The Court of Appeal has been slow to make its pronouncement, so much so that human rights organisations have demanded that the Court immediately direct that the sentence be carried out, even though such a request counts for little unless it is ratified by the relevant public prosecutor’s office, given that it deals with a matter tied to the enacting of the sentence in case 13/84, which had not countenanced the existence of complainants.

It is important to make clear that Massera is not exempt from the 25th April 2007 resolution of the Federal Court, even though he had been declared unfit to stand trial in other cases; he must serve his sentence in a penal psychiatric establishment.

Massera was declared unfit to stand trial in the Systematic Plan case, and is still at liberty as a result. The judge in charge of the case investigating crimes committed in the ESMA has sought an opinion, but the outcome is still unknown at this point.

It needs to be emphasised that Italian justice has declared Massera’s insanity to be a sham and that he would be capable of standing trial.

1. CURRENT GENERAL BACKGROUND TO CASES

It is difficult to establish with any certainty the number of cases still outstanding in the Argentine Republic involving actions that occurred during the former dictatorship. On the one hand, there is no precise methodology used by state instrumentalities to audit and arrive at parameters that would point to concrete figures, and, on the other, there is a lack of necessary co-ordination between state powerbrokers to develop a single list.

Figures produced by public and official bodies differ markedly from those tabled by civilians. It is necessary, therefore, to draw on information and video technology as indispensable tools here; to find out and keep abreast of the status of court proceedings; even local courts initiating proceedings or higher courts that try the different cases, with their common need for keeping track of the same facts and the same people, could be interconnected. Occasionally, as incredible as it sounds, certain judges were unaware of the prisons the guilty had been sentenced to.

The most accurate official statistics are those of the Attorney General’s Department (Unidad Fiscal de Coordinación), which periodically receives reports from all the public prosecutor offices in the country, although, as the Department itself recognises, they are not free from error. In October 2008 there were more than 1,000 cases of violations of

human rights registered as having happened during the state-sponsored period of terrorism, 206 of which were in the process of being heard in the courts. This figure, however, is relative, since different prosecutors’ offices in the country use various methodological criteria to record cases (one case being for an individual victim, and another for most of the offences committed in the same secret detention centre).

In any case, rather than determining the number of cases, it is more relevant to highlight the number of proceedings in train against those presumed responsible. According to data from the Attorney General’s Department (Unidad Fiscal de Coordinación), current at the time of writing, 561 proceedings have been started against 510 people, 384 of whom were in detention, while 59 were on the run. Of all jurisdictions in the country, the Federal Capital is the scene for most proceedings, with a total of 139, followed by Córdoba with 55; and La Plata with 50.

With reference to the number of convictions, the Attorney General’s Department has recorded convictions against 29 people, 17 of whom are also involved in other proceedings. In addition to these 29 people, one needs to add the eight people sentenced in Neuquen in the “La Escuelita” case and the five sentenced in San Luis. Up to the present, civic organisations have recorded 43 people convicted following the re-opening of trial procedures in 2005. Along with these 43 people, there are those who were convicted prior to the re-opening of procedures, five in total. Another two were convicted in the first instance, one of whom died before sentence was carried out, and another who was declared unfit for trial.

Overall, therefore, we are talking about 50 people who have been convicted:

NAME COURT CASE SENTENCE

PLACE RANK

1 Oscar Reinhold

“La Escuelita” secret centre.

25 years’ imprisonment

Unit 5, General Roca Federal Prison Service, Río Negro

Brigade General

2 Luis Farías Barrera




Head of Personnel of the Brigade command

3 Enrique Braulio Olea




Brigade General

4 Hilarión de la Pas Sosa




Military doctor

5 Mario Alberto Gómez




Lieutenant Colonel

6 Sergio San Martín




Intelligence officer

7 Jorge Molina Ezcurra




Intelligence officer

8 Francisco Oviedo




Non-commissioned intelligence officer

9 Julio Héctor Simón, alias “el turco Julian” (Julian the Turk)

Poblete/ Hlaczik court case

+ Battalion 601 court case

25 years’ imprisonment + 23 years’ imprisonment

Marcos Paz Prison

10 Miguel Osvaldo Etchecolatz

“Circuito Camps” (Camps Circuit)

Life imprisonment

Marcos Paz Prison Director of Police Security of Buenos Aires Province

11 Christian Federico Von Wernich

“Circuito Camps” (Camps Circuit)

Life imprisonment

Marcos Paz Prison Priest

Former police chaplain of Buenos Aires Province

12 Cristino Nicolaides

Battalion 601 25 years’ imprisonment

House arrest Former Head of the Army, retired general

13 Jorge Luis Arias Duval


House arrest Former Head of the meeting place of Battalion 601 and task group 2

14 Santiago Manuel Hoya


Technically speaking, he is not one of the convicted persons as he died two days after the Federal Trial Court’s verdict. As a result, his sentence was never confirmed.

Intelligence agent

15 Juan Carlos Gualco


Technically speaking, he is not one of the convicted persons. He was declared incapable by the Court of Cassation, which never confirmed his sentence.

Colonel

16 Waldo Carmen Roldán


House arrest Colonel

17 Carlos Fontana


“Campo de Mayo” Armed Forces Penal Institution

Colonel

18 Pascual Omar Guerrieri


House arrest Colonel

19 Enrique José Berthier

Misappropriation of María Eugenia Sampallo Barragán


“Campo de Mayo” Armed Forces Penal Institution

Retired captain

20 Osvaldo Arturo Rivas



Free until the sentence is confirmed.

Person having taken possession of María Eugenia Sampallo Barragán

21 María Cristina Gómez Pinto




Person having taken possession of María Eugenia Sampallo Barragán

22 Carlos Caggiano Tedesco

“Casita de los Mártires” (The Martyrs’ Cottage) in Formosa.


House arrest Former colonel in the Army of Misiones Province

23 Juan Carlos Lapuyole

Fátima Massacre Life imprisonment

House arrest Retired Superintendent of the Federal Police and former Intelligence Director of Federal Security Superintendence (FSS)

24 Carlos Fátima Massacre Life Federal Prison Service, Federal Retired

Enrique Gallone

imprisonment

Capital Prison. Devoto, Federal Capital

Superintendent of the Federal Police and former Head of the Federal Security Superintendence Brigade (FSS)

25 Luciano Benjamín Menéndez

“Brandalisis” + abduction and murder of the former provincial delegate, Guillermo Vargas Aignasse

Life imprisonment

Córdoba Province Prison Service. Bouwer prison

“24 de Julio” Division General

26 Luis Alberto Manzanelli

“Brandalisis” Life imprisonment


Former member of the “24 de Julio” Army

27 Carlos Alberto Díaz




28 Jorge Exequiel Acosta

“Brandalisis” 22 years Córdoba Province Prison Service. Bouwer prison


29 Hermes Oscar Rodríguez

“Brandalisis” 22 years Córdoba Province Prison Service. Bouwer prison


30 Carlos “Brandalisis” 18 years’ Córdoba Province Prison Former member of

Alberto Vega

imprisonment

Service. Bouwer prison the “24 de Julio” Army

31 Oreste Padován



“24 de Julio” civil intelligence agent

32 Ricardo Alberto Lardone


Prison Department of the Province of Córdoba. Bouwer prison.

“24 de Julio” civil intelligence agent

33 Julio Rafael Barreiro

9th Regiment of Corrientes Infantry.

Life imprisonment

Penal Institution of the «Campo de Mayo » Armed Forces

Retired colonel

34 Horacio Losito




Former army official

35 Juan Carlos De Marchi




Former captain and former Head of Corrientes Rural Society

36 Raúl Alfredo Reynoso




Former commander

37 Antonio Domingo Bussi

Abduction and murder of the former

Life imprisonment

House arrest Division General (r) and former governor of the

provincial delegate, Guillermo Vargas Aignasse

province

38 Hipólito Rafael Mariani

“Mansión Seré” (Seré Mansion)



Retired brigadier

39 César Miguel Comes

“Mansión Seré” (Seré Mansion)



Retired brigadier

40 Alberto Pedro Barda

“La Cueva” (The Cave)

Life imprisonment

House arrest Former colonel

41 Jorge Luis Magnacco

Abduction of Rodolfo Pérez

Ten years’ imprisonment

House arrest Doctor at the Navy Mechanics School (ESMA)

42 Francisco Gómez

Abduction of Rodolfo Pérez

Seven and a half years’ imprisonment

Sentence served Former civil staff member of Air Force Intelligence

43 Teodora Abduction of Three years

Sentence served Wife of Francisco

Jofré Rodolfo Pérez and one month’s imprisonment

Gómez

44 Jorge Antonio Bergés

“Camps” Federal Prison Service, Marcos Paz Prison Complex II

Medical officer working for the Buenos Aires Province police.

45 Norberto Cozzani

“Camps” Federal Prison Service, Marcos Paz Prison Complex II

Sergeant, Buenos Aires Province police.

46Miguel Angel Fernández Gez

“San Luis” Life imprisonment

Former Head of Artillery Command

47 Carlos Plá “San Luis” Life imprisonment

Former Deputy Head of the provincial police

48 Víctor David Becerra


Police, member of the D2 Information Department

49 Juan Carlos Pérez



50 Luis Orozco “San Luis” Life imprisonment


As regards the progress of the legal proceedings in the different courts, it is important to determine the court cases that have already gone beyond the institution of proceedings phase and are at the trial stage. In October 2008, the Public Prosecutor’s Coordination Unit (Unidad Fiscal de Coordinación) had the following information, which shows that there are cases at the procedural stage in only 9 of the 23 provinces. On the other hand, it is relevant to point out that, at the date mentioned, the trial hearings had only started for one of these cases. This was the hearing initiated on 20 August 2008 at the Neuquén Federal Trial Court, for the court case already mentioned involving 17 crimes of unlawful deprivation of liberty and other types of crime committed at the La Escualita secret centre. Finally, the first trial in San Luis for crimes against humanity started on 20 October. This case was investigating the murder of Graciela Fiochetti and other former militants from the province. It ended on 12 March 2009 with the conviction of the 5 accused.

Court Total number of court cases at the trial stage

Total number of charges Total number of victims

Federal Capital (FC): ESMA Case

7 51 397

FC: Case I Cuerpo del Ejército (Army Corps)

6 193 457

FC: “Sustracción de menores” (child abduction) cases

2 7 35

FC: “Plan Cóndor” (Cόndor Plan) Case

1 20 108

Formosa 1 1 13

San Luis 1 5 4

Mendoza 1 3 1

Neuquén 2 11 35

Rosario 1 4 20

Santa Fé 2 7 13

San Martín 1 8 10

Total 28 313 1.135

As for the Argentinian Centre for Legal and Social Studies (el Centro de Estudios Legales y Sociales de Argentina) (henceforth CLSS), in December 2007 it had records of some 200 “moving court cases” in the whole country (as well as six court cases that had started abroad). Moving court cases are those in which the public prosecutor has presented an application for an investigation into the connection between particular accused persons and the criminal acts committed.

In March 2009, the CLSS had recorded the following information:

(i)383 persons on trial in preventive detention.

(ii)142 persons on trial and released from prison without preventive detention.

(iii)More than 190 accused persons deceased.

(iv)46 fugitives from justice

(v)Of the 49 sentences, 5 had been pronounced before the declaration of unconstitutionality of the Obediencia Debida and Punto Final laws.

(vi)15 accused with a writ of dismissal for lack of merit.

(vii)281 accusations awaiting the start of investigations into the crimes.

At the said date, this civil organization estimated that there was a total of 1,254 alleged criminals. The figures concerning trials and convictions relating to some of the main armed forces and security forces are the following:

(i) Of the 422 Army members accused, 60% of them had apparently been tried, and 6 high commanders sentenced.

(ii) Of the 320 members of the Provincial Police, 54% tried and 3 officers of Buenos Aires Police sentenced.

(iii) Of the 171 Navy members, 38 tried and one sentenced.

(iv) Of the 106 civilians, more than 40% tried and three sentenced.

In the light of these facts, the CLSS’s assessment is that the process to obtain justice has been concentrated mainly on high-ranking military men and policemen, who thus have greater criminal responsibility for the acts committed, whereas in the court cases held further inland, it seems there is a greater number of subordinates involved, whom it has been possible to identify and bring to trial.

It should also be stressed that there are court cases for which the public prosecutor has still not made an application to institute proceedings. For example, at present, nobody has been charged in the cases involving the large secret centres such as Pozo de Banfield, Quilmes and La Cacha, belonging to the so-called “Circuito Camps” (Camps Circuit). The public prosecutor’s office says this is owing to a lack of material and human resources needed to bring charges. In any case, the cases cannot progress, despite the requests made, without the public prosecutor’s application.

2. SENTENCES PRONOUNCED

Besides the relevant sentences already mentioned, other trials have taken place in the different provinces in the country, which have also resulted in condemnatory sentences being pronounced. In some of them, mention was made of the systematic nature of the crimes against humanity and the enormous number of victims.

2.1 FEDERAL CAPITAL

(i)In April 2008, in the framework of court case 11.669/2001, Buenos Aires Federal Trial Court no. 5 pronounced a condemnatory sentence, for the misappropriation of María Eugenia Sampallo Barragán when she was a child.

The natural parents of María Eugenia, militants of the Marxist Leninist Communist Party, were imprisoned in the El Atlético y El Banco secret centre,

and at today’s date we do not know their whereabouts. The girl was born at the Military Hospital in February 1978, as her mother was in prison, and she was handed over three months later to the people who took possession of her.

The Court sentenced the retired Army captain Enrique José Berthier to 10 years’ imprisonment for handing the girl over to the people who took possession of her, Osvaldo Arturo Rivas and María Cristina Gómez Pinto, who were given sentences of 8 and 7 years’ imprisonment. This ruling has been criticized by the victim, as well as Human Rights organizations and Argentina’s Human Rights Secretariat, because the minor sentences do not reflect the extremely serious nature of the acts committed. As the victim declared after hearing the verdict: “The misappropriation of children born during their parents’ imprisonment or kidnapped with them, is a crime against humanity, and we believe that it is now time to consider its seriousness in these terms and stop minimizing the impact it had, and continues to have, on us, on our families, and on the whole of society".

(ii)On 11 July 2008, Buenos Aires Federal Trial Court no. 5 sentenced the former Heads of Police, Carlos Gallone and Juan Carlos Lapuyole, to life imprisonment for the Fátima massacre. The other accused, Miguel Timarchi, was acquitted. The acts date back to August 1976 when 20 men and 10 women were held captive in the Federal Security Supervision Centre, under the responsibility of the Army First Corps.

The victims were loaded into a lorry and then executed on a road near Fátima. Their bodies were then piled up and blown up with dynamite.

(iii)In November 2008, Buenos Aires Federal Trial Court no. 5 also sentenced Heads of the western zone of the Buenos Aires Conurbation for crimes against humanity, committed in the framework of the often-mentioned Army First Corps’ repression network.

Former colonel Alberto Pedro Barda was sentenced to life imprisonment for the torture and murder of two persons held in the La Cueva secret centre. Former brigadiers Hipólito Rafael Mariani and César Miguel Comes were sentenced to 25 years’ imprisonment for the unlawful deprivation of liberty and torment of twelve prisoners in the Mansión Seré secret centre.

The ruling – although it was generally well received by the families, the surviving victims and Human Rights organizations - only tried the crimes committed in two secret centres, despite the fact that the accused were responsible for around 20 centres in about 9 areas.

On the other hand, the FIDH has joined in the criticism of the ruling which did not decide on imprisonment in the prison service for the convicted persons. While awaiting confirmation of the sentence by the Criminal Chamber of Cassation, the criminal Barda will be enjoying house arrest, and Mariani and Comes will remain free.

2.2 MISIONES

On 13 July 2008, in the framework of court case 1531/04, the Posadas Federal Trial Court pronounced sentence for the unlawful deprivation of liberty with aggravation and torture resulting in death. The former Head of Area 232 in Misiones, Carlos Caggiano Tedesco, was sentenced to 25 years’ imprisonment in a communal prison.

The victim, a lecturer at Misiones National University, Alfredo González, was held captive for 6 months in La Candelaria Prison Unit and in Federal Prison Unit no. 7 in Resistencia. He was later transferred to the secret detention centre known as La Casita de Los Mártires (The Martyrs’ Cottage).

2.3 CÓRDOBA

On 24 July 2008, the Federal Criminal Trial Court of the Province of Cόrdoba passed sentence for crimes of unlawful and qualified detention with aggravation, torture with aggravation and homicide with aggravation, committed in 1977 against four young militants of the Partido Revolucionario de los Trabajadores (henceforth PRT).

The criminals Luciano Benjamín Menéndez, Luis Alberto Manzanelli, Carlos Alberto Díaz, Valentín Padován Orestes and Ricardo Alberto Ramón Lardone, were sentenced to life imprisonment and absolute and permanent disqualification. The criminals Carlos Alberto Vega, Hermes Oscar Rodríguez and Jorge Ezequiel Acosta were given sentences of between 18 and 22 years’ imprisonment. The criminals were part of the Special Assignments Group that carried out its activities in the La Perla secret detention centre, which came under the responsibility of the Army Third Corps, of which Benjamín Menéndez was the official commander.

In the ruling, the court qualified the crimes committed as crimes against humanity to which the statute of limitations did not apply, by declaring “that the acts being judged in this court constitute crimes against humanity, and against people’s rights […] that they were not exceptional, isolated cases, but were the result of a systematic plan; that because of their seriousness they are among the types of behaviour that are considered criminal by

the International Community”. The sentence concludes “we can state without any doubt that the statute of limitations does not apply to crimes against humanity such as those being judged here today, and that this condition had and has precedence over the date of the acts that are being judged.”

2.4 CORRIENTES

In August 2008, the Corrientes Federal Trial Court pronounced sentences for crimes of illegal association, unlawful deprivation of liberty and torment against political opponents. The acts occurred in Infantry Regiment no. 9 of Corrientes Province that was functioning as a secret detention centre.

Raúl Reynoso was sentenced to 18 years’ imprisonment for the said acts. The former captain and former Head of Corrientes Rural Society, Juan Carlos De Marchi, and Horacio Losito, were sentenced to 25 years’ imprisonment. The retired colonel Julio Barreiro was sentenced to life imprisonment, as the body of the PRT militant, Rómulo Artieda, was identified during the trial. It was found in the middle of 2006, in a communal grave in Empedrado cemetery. The former member of the National Police, Carlos Roberto Piriz, was acquitted. We should draw attention to the important work done by the Argentine Forensic Anthropology Team in the investigation of the crimes committed during the dictatorial period in the Argentinian Republic.

In the sentence pronounced in this case, the Corrientes Court qualified the crimes as crimes against humanity, given their seriousness, their repetition, the way they were carried out, and the resulting number of victims. The verdict considered as proven the systematic plan of persecution for political motives because “the persecutions were carried out for political reasons, with the objective of detaining members of political and social organizations (Agrarian Leagues, Trade Unions, etc.) This was part of a plan devised by the highest authorities in Argentina, but in Corrientes and its zone of influence, it was put into practice by Infantry Regiment no. 9’s Intelligence Group, in collaboration with the Intelligence Area of the Corrientes Section of the National Police”.

2.5 TUCUMÁN

On 28 August 2008, the Tucumán Federal Criminal Trial Court sentenced Luciano Benjamín Menéndez and Antonio Domingo Bussi to life imprisonment for crimes committed against the Peronist politician Guillermo Vargas Aignasse in 1976. The Public

Prosecutor’s Office dealing with the case requested the revocation of the decision of house arrest for Bussi.

The types of crime for which the Court sentenced the guilty parties were illegal association, unlawful entry, unlawful deprivation of liberty with aggravation, causing torment with aggravation and homicide aggravated by treachery, all these crimes qualified as crimes against humanity.

In 1975 Bussi headed the Independence Operation, created to fight the rural guerrilla forces that had formed in Tucumán. When the military came to power, he was elected governor of the province, and he was elected again in 1995. He was also a national delegate in 1999, but the Congress disqualified him because of his participation in crimes against humanity. In 2002, he became mayor of San Miguel in Tucumán, the provincial capital, when the trial concerning Vargas’ disappearance was already going ahead, and for which crime he was finally convicted.

3. STATE OF SOME OF THE MAIN COURT CASES

The huge number of Human Rights infringements committed in the country during State terrorism prevents us from providing a complete analysis of all of them in this report. However, the use of criteria such as the high number of victims or the hierarchical responsibility of the alleged criminals, have enabled us to choose the most representative cases.

3.1 NAVAL MECHANICS SCHOOL (ESCUELA SUPERIOR DE MECÁNICA DE LA ARMADA – ESMA)

3.1.1 The court case in general

The ESMA was transformed into one of the most repressive secret detention centres during the Argentinian dictatorship. It is estimated that more than 5,000 unlawfully detained persons were transferred to its premises. Torture and forced disappearances were practised there systematically against the opponents of the “National Re-Organization Process”, who were considered as subversive by the Military Juntas.

On 1 September 2003, the Buenos Aires Federal Chamber issued a ruling ordering the re-opening of the ESMA court case, having recourse to the declaration of nullity of the Punto Final and Obediencia Debida laws that had prevented judgment until then. The court case, the ruling states, would be investigated by the court determined by lot, which in any case would have to be a civil court. The judges confirmed that the crimes of forced disappearance “could only be judged by the ordinary courts competent in each State, with the exclusion of any specialized courts and in particular any military courts”.

The Human Rights infringements perpetrated in the ESMA were thus divided into different court cases and different sections to be investigated by the National Criminal and Correctional Court of Federal 12 of Federal Capital, which is in charge of the case. This court is gradually committing for trial the different corresponding sections of the cases, for the crimes committed in the ESMA. The trials are taking place at Federal Trial Court no. 5.

In March 2008, there was a total of 56 prisoners and six persons in contempt of court, for crimes in the ESMA. In September 2003, the former Navy frigate captain, Alfredo Astiz; the former Head of the ESMA, Jorge Acosta; and the former Head of ESMA Task Group 3.3.2, Adolfo Donda, had been detained.

The general delay in holding the legal trials has had negative repercussions in this case, as in December 2008 the court ordered the release of 11 of the persons charged in this court case. In its ruling, the Chamber of Cassation decided on the unlawfulness of preventive detention exceeding two years, or three years in cases of respite. Among those benefitting from this decision, against which the public prosecutor and the plaintiffs have appealed, are the accused Astiz and Acosta. The FIDH mission has expressed its great concern about the possible release of the eleven accused.

Until now, the only trial that has been carried through for crimes committed in this secret centre was unsuccessful, as the person brought to trial, Héctor Antonio Febres, was found dead, as has already been mentioned. Officer Febres was found dead in his cell a few days before the date fixed for the pronouncement of the sentence. According to the forensic reports, the death was due to a cardiac-respiratory arrest, and abundant remains of cyanide were found in his blood.

On 18 October 2007, the trial of the accused for four crimes of torture with aggravation against political opponents had started. The court responsible for instituting proceedings on the other hand, had not tried him for the homicide of another torture victim. Although the court charged with investigating his death has not yet been able to determine the person(s) responsible for his death, it is presumed that it was linked to the information that the accused had about other persons involved in crimes committed in the ESMA.

Finally, it is worth drawing attention to the condemnatory sentence of the Spanish Supreme Court against the former Head of Electricity and Cars of the ESMA. On 1 October 2007, Adolfo Scilingo was sentenced for committing thirty murders and one unlawful detention, and also for acting as accomplice in 255 crimes of unlawful detention. This sentence partially considered the cassation appeal, acquitting him of the crime against humanity for which the National Court of Spain had previously sentenced him, but sentencing him – in a novel technical legal construction – for the ordinary crimes of murder and unlawful detention, “which constitute crimes against Humanity according to international law”.

As regards the 255 abductions, the Supreme Court also partially considered the appeal, sentencing Scilingo as an accomplice in the crimes. It did not however accept the request by the appellant to be considered as a necessary collaborator because of his knowledge of and participation in the criminal abduction plan, the torture and the physical elimination of the persons abducted. On this point, the Court acknowledged that the acts carried out by Scilingo as Head of the garage for car repairs had constituted a contribution of minimal relevance for carrying out the abductions, but that the accused did not have decision-making responsibility for the said criminal acts.

In any case, it is important to draw attention to the National Court of Spain’s analysis, not only of the actual participation of the accused and the repression in the ESMA, but also of the ideology of the National Reconstruction Process and the general criminal operation carried out by the so-called Groups of Tasks. On the other hand, the legal proceedings were carried out efficiently thanks to the Argentinian legal authorities’ collaboration, and more particularly the practice of witness statements and expert witness statements given by videoconference.

3.1.2 Court cases and sections of court cases for crimes in the ESMA committed for trial at Federal Trial Court number 5:

At the time of the last revision of this report, the following court cases separated from all the acts committed in the ESMA, have been committed for trial at Federal Trial Court (henceforth FTC) number 5:

(i)On 19 September 2007, 13 cases were committed for trial against the person who was Head of Group of Tasks 3.3.2, Adolfo Donda, for unlawful detention, torture and disappearances.

(ii)On 1 April 2008, a section of the main court case, similar to the last one (i) was committed for trial, but in which Oscar Antonio Montes and Carlos Capdevilla were accused.

(iii)On 29 November 2007, court case no. 18.918/03 was committed for trial against the former Head of the ESMA, Jorge Eduardo Acosta; the former Navy captain, Alfredo Astiz; and against Jorge Carlos Radice and other persons charged with the unlawful deprivation of liberty, the disappearance and the unlawful misappropriation of the belongings of the journalist Rodolfo Jorge Walsh. The legal proceedings against other persons charged, such as Carlos Fotea and those persons in contempt of court were still being prepared.

(iv)On 28 December 2007, court case no. 1376/04 was committed for trial, originating from dossier 7694/99 against Acosta, Jorge Carlos Radice and other persons charged, for the misappropriation of the belongings of persons abducted in the ESMA.

(v)Court case no. 14.217/03 “Witness statements A”, for 107 acts committed in the ESMA Officials’ Club, was committed for trial on 8 and 26 May 2008, respectively for 34 and 175 crimes of torture. In the proceedings, 10 persons have been charged, including Jorge Eduardo Acosta, Alfredo Astiz, Juan Antonio Capdevilla, Oscar Montes and Raúl Enrique Scheller, among others.

(vi)On 3 June 2008, court case no. 18967/03 “Witness Statements B” against Jorge Acosta, Juan Carlos Fotea, Alfredo Astiz and other accused persons was also committed for trial. The case involved 12 abductions followed by torture and the homicide of relatives of persons having disappeared; and the disappearance of the French nuns Alice Domon and René Leonie Duquet, acts that took place between 8 and 10 December 1977 in the Santa Cruz church. Among the relatives of persons having disappeared are the Mothers of the Plaza de Mayo, Esther Ballestrino de Careaga, Mara Ponce de Bianco and Azucena Villaflor.

(vii)On 26 August 2008, the section of the ESMA court case corresponding to cases in the year 1976 was committed for trial. 17 persons have been charged, including Jorge Eduardo Acosta, Oscar Antonio Montes, Alfredo Ignacio Astiz, Jorge Carlos Radice and Néstor Omar Savio, among others.

(viii) Also among the court cases are the Cavallo trials, for the acts committed in the Santa Cruz church. In May 2008, Judge Torres tried Miguel Ángel Cavallo, who occupied various posts in the ESMA as a member of Group of Tasks 3.3.2, and specifically for the abduction and disappearance of the French nuns, and of the Mothers of the Plaza de Mayo, Azucena Villaflor, as well as ten or so other victims. Cavallo had been extradited from Spain following the ruling by the National Court of Spain, which ordered the dismissal and filing of the court case, when the trial in Spain was approaching. A few days afterwards, he was tried in the same way for illicit association, theft and extortion, and for the misappropriation of

the belongings of relatives of a prisoner in the ESMA. The Appeal Chamber has confirmed Cavallo’s prosecution, and after Federal Court no. 12 has instituted proceedings correctly and without due delay, given the speed with which it operates (Federal Court no. 12 being responsible for instituted proceedings), the case will be committed for trial to be judged at the next trial concerning the ESMA court case.