CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Third periodic reports of States parties due in 1996
Addendum
ARGENTINA*
* For the initial report of Argentina, see CAT/C/5/Add.12/Rev.1;
for its consideration, see CAT/C/SR.30 and 31 and Official
Records of the General Assembly, Forty-fifth session, Supplement
No. 44 (A/45/44), paras. 150-174. For the second periodic
report, see CAT/C/17/Add.2; for its consideration by the Committee,
see CAT/C/SR.122, 123 and 124/Add.2 and Official Records of
the General Assembly, Forty-eighth session, Supplement No. 44
(A/48/44), paras. 88-115.
[23 September 1996]
Annexes
I. Information provided by the National Court of Appeal
for Federal Criminal and Correctional Cases
II. Province of Chaco: complaints of ill-treatment
Article
2
1. Without prejudice to the information provided in the core document
for the Argentine Republic (HRI/CORE/1/Add.74), it should be noted
in this report that article 75, paragraph 22, of the new Constitution
in force since 24 August 1994 stipulates:
" ... treaties and agreements take precedence over laws.
Insofar as they
are valid, the American Declaration of the Rights and Duties
of Man, the Universal Declaration of Human Rights, the American
Convention on Human Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Covenant
on Civil and Political Rights and the Optional Protocol thereto,
the Convention on the Prevention and Punishment of the Crime
of Genocide, the International Convention on the Elimination
of All Forms of Racial Discrimination, the Convention on the
Elimination of All Forms of Discrimination against Women,
the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, and the Convention on the
Rights of the Child have constitutional rank, do not abrogate
any article of the first part of this Constitution, and shall
be interpreted as complementary to the rights and guarantees
recognized thereby. They may be denounced, if necessary, only
by the Executive, following approval by two thirds of the
members of each Chamber.
After being approved
by Congress, other treaties and conventions on human rights
shall require the vote of two thirds of the members of each
Chamber in order to acquire constitutional rank."
2. It is clear from the foregoing that the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
has constitutional rank in Argentina. This means that its contents
are on a par with the constitutional provisions even if the source
of the provision is different.
3. During the period under review Argentina contributed to the
adoption of the Inter-American Convention on Forced Disappearance
of Persons, at Belém do Pará on 9 June 1994, in the context of
the twenty-fourth General Assembly of the Organization of American
States (OAS). The Convention was approved by Act No. 24,556 and
the respective instrument of ratification was deposited with the
OAS secretariat on 28 February 1996. The Convention entered into
force on 28 March 1996.
4. The purpose of the Convention is to prevent, punish and eliminate
the forced disappearance of persons, which is considered to be
"the act of depriving a person or persons of his or their freedom,
in whatever way, perpetrated by agents of the State or by persons
or groups of persons acting with the authorization, support or
acquiescence of the State, followed by an absence of information
or a refusal to acknowledge that deprivation of freedom or to
give information on the whereabouts of that person, thereby impeding
his or her recourse to the applicable legal remedies and procedural
guarantees" (art. II).
5. To that end, the States parties undertake not to practise,
permit or tolerate the forced disappearance of persons, even in
states of emergency (art. I (a)), which cannot be used to justify
the forced disappearance of persons but during which, on the contrary,
judicial guarantees shall remain in force, the parties undertaking
to ensure that the competent judicial authorities shall have free
and immediate access to all detention centres and to each of their
units, and to all places where there is reason to believe the
disappeared person might be found, including places that are subject
to military jurisdiction (art. X). As a general guarantee, the
parties undertake to ensure that every person deprived of liberty
shall be held in an officially recognized place of detention and
be brought before a competent judicial authority without delay,
and to establish and maintain official up-to-date registers of
their detainees (art. XI) (our underlining).
6. The parties also accept the obligation to punish within their
jurisdictions those persons who commit or attempt to commit the
crime of forced disappearance of persons and their accomplices
and accessories (art. I (b)). To that end they agree to define
the forced disappearance of persons as an offence deemed continuous
or permanent as long as the fate or whereabouts of the victim
has not been determined, and to impose an appropriate punishment
commensurate with its extreme gravity, without prejudice to the
establishment of mitigating circumstances for persons who have
participated in acts constituting forced disappearance when they
help to cause the victim to reappear alive or provide information
that sheds light on the forced disappearance of a person (art.
III). Similarly, the Convention stipulates that criminal prosecution
and the penalty imposed shall not be subject to statutes of limitations
or, if this is not possible, that the period of limitation shall
be equal to that which applies to the gravest crime in the domestic
laws of the corresponding State party (art. VII). For the purpose
of determining criminal responsibility, the defence of due obedience
to superior orders or instructions shall not be admitted, as persons
receiving such orders are legally bound not to obey them (art.
VIII), and cases shall be tried by the ordinary courts, to the
exclusion of all other special courts, particularly military courts
(art. IX).
7. The States parties pledge to cooperate with one another in
helping to prevent, punish and eliminate the forced disappearance
of persons (art. I (c)). Consequently, each State party must take
measures to establish its jurisdiction over acts constituting
the forced disappearance of persons when such acts have been committed
within its jurisdiction, when the accused is a national of that
State and when the victim is a national of that State and that
State sees fit to do so (art. IV). Forced disappearance shall
be considered to be an ordinary offence for purposes of extradition,
the Convention being the necessary legal basis therefor (art.
V); when a State party does not grant the extradition, the case
shall be submitted to its authorities (art. VI).
8. Such cooperation includes the search for, and identification,
location and return of, minors who have been removed to another
State or detained therein as a consequence of the forced disappearance
of their parents or guardians.
9. The protection mechanism established by the Convention is the
system of petitions for the parties to the American Convention
on Human Rights, although urgent and confidential reports may
be requested if necessary.
10. Argentina was a determined sponsor of the Convention. In fact,
when the National Constitution was amended, resulting in the text
that has been in force since 24 August 1994, the forced disappearance
of persons was introduced as an offence giving rise to habeas
corpus proceedings, and was therefore established as a constitutional
rather than legislative provision.
11. Another instrument adopted in the Latin American context,
also by OAS, was the Inter-American Convention on the Prevention,
Punishment and Eradication of Violence against Women. Article
2 of this instrument stipulates: "Violence against women shall
be understood to include physical, sexual and psychological violence:
(a) that occurs within the family or domestic unit or within any
other interpersonal relationship, whether or not the perpetrator
shares or has shared the same residence with the woman, including,
among others, rape, battery and sexual abuse; (b) that occurs
in the community and is perpetrated by any person, including,
among others, rape, sexual abuse, torture, trafficking in persons,
forced prostitution, kidnapping and sexual harassment in the workplace,
as well as in educational institutions, health facilities or any
other place; and (c) that is perpetrated or condoned by the
State or its agents regardless of where it occurs" (our underlining).
One of the rights protected in chapter II, article 4, is a woman's
right not to be subjected to torture. The Convention was approved
by Argentina under Act No. 24,632. On 5 July 1996, Argentina deposited
its instrument of ratification with the secretariat of OAS.
Article
3
12. The extraditions granted by Argentina have been effected according
to the procedures established, and with the guarantees required
in article 3 of the Convention.
13. The extradition treaty between Argentina and the Republic
of Korea -currently being reviewed by the legislature pending
approval - contains specific clauses enabling the requested State
to refuse the extradition request when: "the person whose extradition
is being requested has not been and will not be given the minimum
guarantees in criminal proceedings in the requesting State, in
conformity with the provisions of article 14 of the International
Covenant on Civil and Political Rights" (art. 3.II (e)).
14. During the period under review a German national charged with
involvement in crimes against humanity during the Second World
War has been extradited. This information is included because
the offences for which extradition was requested are considered
to constitute torture in accordance with the second part of the
definition contained in article 1 of the Convention, which includes
any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person ... for any reason
and based on discrimination of any kind. Acts corresponding to
the offence of genocide may be presumed to cause the victims severe
suffering within the meaning of the above-mentioned definition.
Article
4
15. Although there have been no changes in the substantive provisions
of the Argentine Penal Code during the period covered by this
report, accusations of torture, ill-treatment and unlawful coercion
have had a better reception.
16. If it is impossible to punish the official responsible in
a criminal court because no provision is made for the offence
in question, the administrative procedure can be used to determine
whether the official in question was responsible for failure to
perform his duties. The preliminary investigation can result in
the official's exemption from responsibility or the imposition
of penalties (transfer, suspension, dismissal, exoneration).
17. As an illustration of the effectiveness of administrative
action in the Oviedo Luis Roque et al concerning ill-treatment
case, which occurred in the Province of Chaco, administrative
proceedings were instituted along with judicial proceedings and
led to the conviction - by orders issued in December 1995 - and
dismissal of the police officers involved in the incident in question.
Article
5
18. There have been no changes in the exercise of jurisdiction
by the judiciary over the offences referred to in article 4 of
the Convention since the preceding reports. These provisions are
also contained in the Code of Criminal Procedure, which has been
in force since 5 September 1992.
Article
6
19. The information provided on article 3 is also applicable to
this article. It should be noted, however, that in cases where
extradition from Argentina has been requested, it has been carried
out in conformity with the guarantees of due process, all cases
ultimately being decided by the Supreme Court of Justice.
20. In cases where Argentina has jurisdiction, proceedings have
been conducted in accordance with the procedural legislation in
force and the provisions of the Convention.
Article
7
21. Argentina applies the principle aut daedere aut punire,
as laid down in the international agreements that are binding
on it. In cases where no agreement exists, the principle applies
to nationals, and also in respect of acts having consequences
within its territory.
22. The treaty of extradition between Argentina and the Republic
of Korea contains a clause which stipulates: "If the requested
State does not agree to the extradition of a national because
of his nationality, it shall - on application of the requesting
State - submit the matter to the competent authorities in order
that judicial proceedings may be brought against that person.
To this end, any documents, information or evidence concerning
the offence may be sent free of charge by the means provided for
in article 6, paragraph 1. The requesting State party shall be
informed of the result of its application".
Article
8
23. Argentina recognizes torture as an extraditable offence, provided
that guarantees of due process for the accused and the requirements
for extradition are met.
24. The extradition treaty with the Republic of Korea, mentioned
in the commentary on the preceding articles, clearly stipulates
that exceptions to extradition shall in no circumstances include
"an offence in respect of which the Contracting Parties are under
the obligation to establish jurisdiction or surrender the individual
in question under a multilateral international agreement to which
both are parties" (art. 3 (1) (d)). It should be noted that the
Republic of Korea deposited its instrument of accession to the
Convention on 9 January 1995 and that the obligation to extradite
persists under the obligations deriving from the Convention, even
though the treaty in question is not yet in force.
25. Reference is made to the 30 August 1989 judgement of the Third
Division of the La Plata Federal Court of Appeal granting the
extradition of Josef Franz Leo Schwammberger to the Republic of
Germany, which stated:
"The extradition
procedure does not constitute an actual trial to determine
the innocence or guilt of the person whose extradition is
being sought, but is simply aimed at reconciling the requirements
of the administration of criminal justice in civilized countries
with the rights of the person who has been granted asylum."
26. The trial of Erich Priebke is current taking place in Italy.
In the recital to the 2 November 1995 judgement giving
rise to the extradition, the Supreme Court of Justice stated "that
the fact of having killed 75 Jews who were neither prisoners of
war nor acquitted or convicted defendants, nor detained at the
German police headquarters, from among the 335 who died in the
particular circumstances of this case, constitutes a prima
facie case of genocide. This is without prejudice to other
characterizations of the act subsumed under that of genocide".
It went on to say "that the characterization of an act as a crime
against humanity is not contingent on the will of the requesting
or requested State in the extradition process but on the ius
cogens principles of international law".
27. In connection with article 8, paragraph 4, reference is made
to the 20 March 1990 judgement of the Supreme Court of Justice
in the above-mentioned Schwammberger case. The defence had argued
that since the events had taken place in the territory of the
present Republic of Poland, the applicable legislation was that
of Argentina which stipulates that when the extradition of a foreigner
is requested for offences committed outside the territory of the
requesting State, extradition shall be granted only in cases where
Argentine legislation permits the prosecution of offences committed
outside Argentine territory. The Court found that "from the point
of view that concerns us, the Federal Republic of Germany is the
sovereign successor of the sovereign German Reich, notwithstanding
its dismemberment and the fact that it has been subject to the
territorial authority of two States recognized as sovereign by
the international community, namely the Federal Republic of Germany
and the German Democratic Republic. This fact might lead to both
German States claiming the right to prosecute offences that were
originally within the jurisdiction of the German Reich, but may
in no way be used as a basis for denying both States this authority".
Article
9
28. The treaties of extradition and judicial assistance in criminal
matters referred to in the preceding reports are still valid in
Argentina. No new treaties have been concluded during the period
under review; as stated earlier, the extradition treaty with the
Republic of Korea is under consideration by the legislature.
Article
10
29. The National Directorate for Development within the Office
of the Under-Secretary for Human and Social Rights (Ministry of
the Interior) has specific functions in the field of information,
for which purpose it has set itself the following objectives:
(a) to promote the inclusion of education on human rights and
democracy at all levels of the formal educational system, as support
for civic ethics, to guarantee human rights and to prevent violations;
(b) to carry out informal human rights education programmes jointly
with governmental, non-governmental and international organizations;
(c) to train public officials (employees of national and provincial
public administrations) in the theoretical and practical aspects
of human rights, given that they have operational responsibility
for the implementation of public policies; (d) to train police
officers and security forces to carry out their work with due
respect for the rules and principles laid down by the laws in
force and in accordance with the recommendations of the United
Nations; (e) to encourage the work of the human rights documentation
centre administered by the Directorate and (f) to promote publications
that support the dissemination, theoretical study and teaching
of human rights.
30. Similarly, as part of an effort to educate and inform the
public, the Institute for the Promotion of Human Rights, the Government
Procurator for the Prison System, both chambers of the Congress
of the Nation and the Office of the Under-Secretary for Human
and Social Rights (Ministry of the Interior) organized the first
symposium on the prison system and human rights in Buenos Aires
from 13 to 15 April 1993.
31. The 1995 activities of the National Directorate for Development
(Office of the Under-Secretary for Human and Social Rights) included
two training courses for police officers, one for the training
of trainers and the other for the members of the federal and provincial
police forces, with the support of the United Nations Centre for
Human Rights.
32. The Publication Division of the Office of the Under-Secretary
has been engaged in distributing the text of the Declaration on
the Protection of All Persons from Enforced Disappearance (General
Assembly resolution 47/133) to government agencies and explaining
its contents and scope at the many seminars it holds for prison,
police and security forces personnel and members of the judiciary,
among others.
Article 11
33. The judicial guarantees of due process are laid down in the
new Code of Criminal Procedure, which has been in force since
5 November 1992.
34. The substantial changes which the new Code has made in the
procedural rules are aimed at safeguarding the physical integrity
of prisoners and detainees. To this end, it reduces the possibilities
for keeping a person in detention and considerably limits the
cases in which a person deprived of liberty may be held incommunicado.
The Code provides a clear framework for restrictions on personal
liberty by establishing two rules, which form the basis for such
restrictions and are therefore residual rules.
35. Article 2 stipulates: "Any legal provision which limits personal
liberty or the exercise of a right granted by this Code or which
establishes procedural penalties shall be interpreted restrictively.
Criminal laws may not be applied by analogy.
36. Article 280, in the section relating to the situation of the
accused, states: "In accordance with the provisions of this Code,
personal liberty may be restricted only to the extent absolutely
essential to ensure that the truth is revealed and the law implemented.
Arrests and detentions shall take place with the least possible
harm to the person and reputation of the individuals concerned,
and with an order drawn up for them to sign, if they are capable,
informing them of the reason for the procedure, the place to which
they are to be taken and the judge who is to preside".
37. With reference to the time limit within which detainees must
be brought before a judicial authority, Argentine procedural legislation
limits the power of police officers and assistants to arrest persons
without a court order to the following expressly stipulated cases:
(a) anyone who attempts to commit a prosecutable offence, at the
time when he is preparing to do so; (b) anyone who escapes while
lawfully detained; (c) anyone who is surprised in flagrante
delicto while committing an offence; and (d) exceptionally,
anyone against whom there is strong evidence of guilt, in the
event of imminent danger of flight or serious delay in the investigation,
for the sole purpose of immediately bringing the person before
the court. In these cases the detainee must be brought before
the court within six hours.
38. In accordance with article 205 of the Code of Criminal Procedure,
the judge may order the detainee to be held incommunicado for
a period of not more than 48 hours, which may be extended for
a further 24 hours by a substantiated order when there is reason
to fear that the detainee may plot with third parties or impede
the investigation in some other way. When the police have exercised
the power to apprehend an alleged perpetrator and have ordered
him to be held incommunicado for a maximum period of six hours,
subject to a physical and psychological examination, the period
of incommunicado detention may only be extended on the order of
the judge to a maximum of 72 hours.
39. In no circumstances shall the fact that the detainee is being
held incommunicado prevent him from communicating with his defence
counsel immediately before making his statement or before any
proceeding requiring his personal participation.
40. A person held incommunicado shall be permitted the use of
books or any other objects he may request, provided that such
objects cannot be used to evade incommunicado detention or endanger
his own life or that of another person. He shall also be authorized
to conclude civil acts which cannot be postponed, provided that
such acts do not diminish his solvency or jeopardize the purposes
of the investigation.
41. As regard the right of detainee or his counsel to institute
proceedings, at any time, before a judicial or other authority
in order to challenge the legality of his detention, article 43
of the Constitution in force since 24 August 1994 stipulates that
"When the right which has been infringed, restricted, jeopardized
or threatened concerns physical liberty, in the event of the illegal
worsening of the form or conditions of detention or the enforced
disappearance of persons, an application for habeas corpus may
be filed by the affected party or any person acting on his behalf
and the judge shall hand down a decision immediately, even if
a state of siege is in force".
42. This provision, which introduces enforced disappearance of
persons into the Constitution, gives constitutional status to
the habeas corpus procedure already in force in Argentina and
regulated by Act No. 23,098, whose text is to be brought into
line with the new concept introduced.
43. At any stage of the proceedings and until such time as pre-trial
detention is ordered by a competent judicial authority, an individual
accused of committing an offence may, either personally or through
a third party, apply for an exemption from detention. In accordance
with the provisions of article 316 of the Code of Criminal Procedure,
the judge shall determine the act or acts involved, and if the
accused is liable to not more than eight years of imprisonment,
the judge may exempt him from detention. The judge may also do
so if he believes prima facie that there are grounds for a suspended
sentence.
44. The order granting or refusing such exemption or release from
custody is subject to appeal by the Public Prosecutor's Office,
the defence counsel or the accused himself, without suspensive
effect, within a period of 24 hours.
45. An appeal against the decision to order pre-trial detention
may be lodged with the court that issued the order which must
take appropriate action. If the remedy is granted, the decision
shall be taken by the appellate court. If it is rejected by the
court responsible for hearing it, the appellant may lodge a direct
complaint for refusal of leave to appeal.
46. Article 280 of the Code of Criminal Procedure, relating to
restrictions on liberty, lays down an obligation for the authorities
to ensure that arrests and detentions take place with the least
possible harm to the person and reputation of the individuals
concerned, and with an order drawn up for them to sign, informing
them of the reason for the procedure, the place to which they
are to be taken and the judge who is to preside.
47. Article 197 of the Code of Criminal Procedure stipulates that,
at the first opportunity, including during police custody, but
in any event before the questioning, the judge shall invite the
accused to choose a lawyer; if the accused does not do so or if
the lawyer does not immediately accept the case, the judge shall
proceed in accordance with article 107 (lawyer appointed by the
court or chosen by the accused from among the lawyers registered
with the Bar Association). Defence counsel may talk to his client
immediately before the client's statement is taken by the police
(art. 184, penultimate paragraph, only admissible if the accused
gives urgent reasons for wishing to make a statement) or by the
examining magistrate; otherwise the proceedings are invalid. If
the accused is left at liberty, he shall specify his domicile.
If he is held on remand, the person indicated by him shall be
informed of the place at which he is being held, and this information
shall be made available to relatives and lawyers.
48. When a detainee is released by order of a competent authority,
the Government provides certain safeguards in order to ensure
that effect has been given to the release order and that the detainee's
physical integrity has been respected.
49. For a prisoner to be released, a court order to that effect
must be issued to the prison authority. The record of execution
of this order, duly signed by the person being released, must
be resubmitted to the judge handling the case.
50. In order to verify detainees' physical integrity, medical
examinations are conducted when they enter and leave places of
detention. In addition to the possibility of lodging an appeal
with the judge handling the case against alleged breach of this
rule, inmates in the federal prison system may lodge a complaint
with the Government Procurator for the Prison System, who is responsible
for protecting the human rights of detainees.
51. Article 493, paragraph 1, of the Code of Criminal Procedure
states that the enforcement judge shall be competent to ... monitor
observance of all constitutional guarantees and international
treaties ratified by the Argentine Republic in so far as they
concern the treatment given to convicted prisoners, detainees
and persons subject to security measures.
52. In order to provide further information on the legislation
in force in this area, the relevant provisions are transcribed
below.
53. Article 282 of the Code dispenses with the detention of the
accused "when the offence being investigated does not carry a
custodial sentence or a suspended sentence appears to be appropriate",
except in cases of flagrancy. In other cases, "the judge shall
issue a detention order for the accused to be brought before him,
provided there are grounds for taking the accused's statement"
(art. 283).
54. With regard to incommunicado detention, article 205 states:
"The judge may
order the detainee to be held incommunicado for a period of
not more than 48 hours, which may be extended for a further
24 hours by a substantiated order when there is reason to
fear that the detainee may plot with third parties or impede
the investigation in some other way.
In cases where
the police have exercised the right conferred on them by article
184, paragraph 8, the judge may only extend the period of
incommunicado detention to a maximum of 72 hours.
In no circumstances
shall the fact that the detainee is being held incommunicado
prevent him from communicating with his defence counsel immediately
before making his statement or before any proceeding requiring
his personal participation.
A person held
incommunicado shall be permitted the use of books or any other
objects he may request, provided that such objects cannot
be used to evade incommunicado detention or endanger his own
life or that of another person.
He shall also
be authorized to conclude civil acts which cannot be postponed,
provided that such acts do not diminish his solvency or jeopardize
the purposes of the investigation."
55. The following provisions deal with situations in which the
accused may be permitted to remain at liberty - provided that
the conduct of the proceedings is not impeded, held in pre-trial
detention, exempted from detention or released from custody:
"Art. 300. Before
the accused's statement has been completed, or after he has
refused to give one, the judge shall inform him of the legal
provisions governing conditional release.
"Art. 306. The
judge shall issue a committal order, within 10 days of the
taking of the statement, if there is sufficient evidence to
substantiate the existence of an offence and the accused's
involvement therein.
"Art. 309. When,
within the time-limit set in article 306, the judge considers
that there is no reason to order the trial or the cessation
of proceedings, he shall issue an order to that effect, without
prejudice to the continuation of the investigation, and shall
order the release of any detainees, after establishing their
domicile.
"Art. 310. If an
indictment does not include a pre-trial detention order because
the conditions listed in article 312 have not been met, the
accused shall be left or placed on bail and the judge may
order him not to leave a given place, to avoid a given place
or to appear before a given authority at stipulated intervals.
If a particular disqualification is applicable to the offence,
the judge may also order him to refrain from the activity
in question.
"Art. 311. The
judge may, on his own initiative, revoke or modify the committal
order or the decision not to order a trial during the pre-trial
investigation. Only an appeal without suspensive effect may
be lodged against these decisions: in the first case, by the
accused or the Prosecutor's Office and, in the second, by
the latter or the plaintiff.
"Art. 312. The
judge shall order the accused to be placed in pre-trial detention
when issuing the committal order, unless he confirms a previously-granted
conditional release, if
(1) The offence,
or series of offences, of which he is accused carries a prison
sentence and the judge considers prima facie that the sentence
will not be suspended;
(2) Although the
offence carries a custodial penalty for which a suspended
sentence is permissible, conditional release is not appropriate,
under the provisions of article 319.
...
"Art. 316. Anyone
who considers himself to be accused of an offence in a particular
criminal case may, at any stage of the proceedings and until
such time as pre-trial detention is ordered, either personally
or through a third party apply to the officiating judge for
an exemption from detention."
56. The judge shall determine the act or acts involved, and if
the accused is liable to not more than eight years of imprisonment,
may exempt him from detention. The judge may also do so if he
believes prima facie that there are grounds for a suspended sentence.
"Art. 317. Release
from prison may be granted:
(1) In the same
circumstances as those applicable to exemption from detention;
(2) If the accused
has served, in custody or pre-trial detention, the maximum
penalty stipulated in the Penal Code for the offence or offences
of which he is accused.
(3) If the accused
has served, in custody or pre-trial detention, the penalty
requested by the prosecutor, and this appears at first sight
to be sufficient.
(4) If the accused
has served the penalty imposed by the non-enforceable judgement;
(5) If the accused
has served, in custody or pre-trial detention, a period of
time which, had he been convicted, would have enabled him
to obtain conditional release, provided that the prison regulations
have been observed.
"Art. 319. Exemption
from detention or release from prison may be denied, with
due respect for the principle of innocence and article 2 of
this Code, if the objective, provisional assessment of the
features of the offence, the possibility of recidivism, the
personal circumstances of the accused or the fact that he
has previously been granted releases provide good reason to
believe that he will attempt to escape justice or interfere
with the investigations."
57. The new Code of Criminal Procedure provides an effective instrument
for verifying, inter alia, respect for the physical integrity
of detainees by authorizing judges, if they deem it necessary,
to carry out a physical and mental examination of the accused,
while ensuring, to the extent possible, respect for the latter's
sense of decency. If necessary, such examinations may be carried
out with the help of specialists. Only the accused's counsel,
or a person whom he trusts and who has been previously notified
of the examination, may be present at the examination (art. 218).
58. There are other means of restricting the number of situations
which pose a threat to the accused's safety. Thus, the new Code
disallows voluntary statements made to the police, following a
clear trend in the jurisprudence of the Buenos Aires courts, which
have ruled such evidence inadmissible, precisely in order to prevent
excesses resulting from use of the accused's statement as evidence.
In this regard, article 184 states:
"(Police or security
force officers) may not take a statement from the accused.
They may only question him to determine his identity, having
read out to him the rights and guarantees contained in articles
104, first and last paragraphs, 197, 295, 296 and 298 of this
Code, applicable by analogy to the case, subject to the proceedings
being declared invalid if this is not done and without prejudice
to the judge's communicating this omission to the officers'
superior, who will order the appropriate administrative penalty
for this serious breach of duty.
"If the accused
gives urgent reasons for wishing to make a statement, the
police or security force officer shall inform him that he
may make an immediate statement before the competent magistrate
or, if the latter is for some reason unable to hear his statement
within a reasonable time, before any other examining magistrate
who may be assigned to do so."
59. The methods in question also include an institution totally
new to our legal system, probation - in other words, the
conditional suspension of proceedings. It is ordered as part of,
or in addition to, a suspended sentence, but always before the
trial and in place of sentencing. Thus, article 293 states:
"If criminal law
authorizes suspension of the prosecution, the competent judicial
body may grant such suspension at a single hearing at which
the parties shall have the right to speak. In such cases,
the competent judicial body shall, at that same hearing, specify
in detail the instructions and conditions to which the accused
shall be subject and shall immediately inform the enforcement
judge of the decision placing the accused on probation".
60. At the organizational and institutional levels, the new criminal
procedure makes provision for an enforcement judge (art. 30),
whose competence is defined by article 490 in the following terms-:
"Judicial decisions
shall be enforce, as appropriate, by the court that issued
them or by the enforcement judge, who shall be competent to
resolve all matters or incidents that may arise while the
decision is being enforced and shall make any notification
required by law".
61. Article 493 stipulates that the enforcement judge's specific
functions shall include competence to: (a) monitor observance
of all constitutional guarantees and international treaties ratified
by the Argentine Republic in so far as they concern the treatment
given to convicted prisoners, detainees and persons subject to
security measures; (b) monitor compliance by the accused with
the instructions and requirements laid down in the case of probation;
(c) ensure that sentences handed down by the judiciary are actually
carried out; (d) resolve any incidental matters that may arise
during this period; (e) cooperate in the reintegration into society
of persons released on parole.
62. This brief summary demonstrates that the combination of limiting
the grounds for imprisonment, and hence the length of deprivation
of freedom, reducing the number of situations which pose a threat
to the physical safety of accused persons, and the presence of
an enforcement judge provide the new criminal procedure with a
greater number of guarantees than has been the case until now.
Articles
12 and 13
63. Without prejudice to the relevant legal remedies specifically
mentioned in the core document, it should be noted that criminal
complaints account for only a small percentage of the total because
of the rapidity and appropriateness of the above-mentioned remedy
of habeas corpus, which is provided for under existing legislation
and was incorporated into the Constitution in the 1994 reform
(art. 43) mentioned in earlier paragraphs.
64. Act No. 23,098 provides that habeas corpus may be applied
for when an act or omission by a public authority is reported
and involves: (a) restriction or threat to freedom of movement,
without a written order from a competent authority; or (b) illegal
aggravation of the form and conditions of detention, without prejudice
to the powers of the trial judge if there is one.
65. Without prejudice to the criminal and correctional courts'
competence to receive complaints of violations of the provisions
contained in the relevant articles of the Penal Code and to hear
habeas corpus applications (see annex I for information provided
by the Office of the Buenos Aires Criminal Court of Appeal), there
are specific focal points which receive complaints from individuals
who claim to be victims of torture or ill-treatment: (1) the Office
of the Under-Secretary for Human and Social Rights (Ministry of
the Interior); (2) at the federal level, the Government Procurator
for the Prison System, whose specific functions include serving
as a focal point for complaints concerning acts falling within
his sphere of competence.
66. Decree No. 1598/93 established the Office of the Government
Procurator for the Prison System, thereby creating, under the
authority of the Executive, a mechanism to monitor respect for
the human rights of persons throughout the country in the custody
of the federal prison service, both during pre-trial detention
and after conviction.
67. The specific functions of the Government Procurator for the
Prison System are to investigate complaints and claims lodged
by prisoners, their families (up to the fourth degree of blood
relationship and third degree by marriage) or anyone able to prove
cohabitation with a detainee, concerning acts which prima facie
appear to be in violation of their rights. The Government Procurator
may also initiate a criminal complaint and refer the case to the
Ministry of Justice, which has jurisdiction over the prison system.
In this respect, his activities and those of the enforcement judge
are complementary.
68. With regard to allegations of ill-treatment, 1,382 complaints
were received in 1993-1994 and 1,170 in 1994-1995.
69. Bulacio case: The proceedings against Police Superintendent
Espósito, which involve determination of criminal responsibility
for the death of a young man, Walter Bulacio, while in the custody
of the Federal Police, have been under way since April 1994, when
the Supreme Court revoked the Criminal Court's dismissal of proceedings
against the officer concerned.
70. Nuñez case: His disappearance and death are under investigation
by Judge Ricardo Szelagowski in the city of La Plata. The judge
assumed jurisdiction in the case in August 1995 after the Court
of Appeal revoked the pre-trial detention order against 7 of the
14 police officers who had been on trial after surrendering to
the authorities in March 1994. Ten of the defendants had been
accused of illegal arrest, illegal search, torture resulting in
death and failure to prevent a victim from being subjected to
torture, but the Court decided that eight of the police officers
presumed responsible had not been direct participants in the events
in question and left them at liberty. Police officers Victor Dos
Santos and Eduardo Fraga are currently in detention and the three
other defendants in the case, junior police officers Luis Ponce,
Pablo Gerez and Alfredo González, have fled.
71. Miguel Brú case: The proceedings initiated following
his death in August 1993 while illegally detained at Police Station
No. 9 in the city of La Plata are being heard by Judge Ricardo
Szelagowsky in Criminal Court No. 7 of that city. The case involves
the prosecution of five officers formerly attached to that police
station. Sergeant Justo López and Deputy Superintendent Walter
Abrigo are in pre-trial detention, having been charged with torture
resulting in death. Superintendent Ojeda, Sergeant Eduardo Ramón
Cereceto and Officer Daniel Gorosito have been charged with the
offence of concealment, which under the criminal legislation in
force does not require the accused to be held in detention. The
judge has ordered the judicial investigation phase to be closed
and the public trial, for which no date has been set, is pending.
72. Province of Mendoza: On 24 April 1996, the Criminal
Court of Appeal in San Rafael sentenced three police officers
to two or three years of imprisonment, barred them from public
office for four years and ordered compensation to be paid to the
victims.
73. Miguel Rodríguez case: In 1995, a police officer was
sentenced to eight years' imprisonment after being tried for the
death of Miguel Rodríguez. In connection with this case, the Governor
of the Province of Córdoba, prior to the handing down of the sentence,
ordered the dismissal of the chief of the provincial police and
his director of internal security.
74. Sergio Santiago Durán case: A young man died as a result
of torture by police officers. In the resulting criminal trial
at the Province of Buenos Aires court, the police officer involved
was found guilty and sentenced to life imprisonment.
75. Carrasco case: The proceedings are currently before
the Court of Criminal Cassation, which is hearing an appeal lodged
by counsel for the persons who were convicted by the Federal Criminal
Court in Neuquén in February 1996. The sentences for homicide
ranged from 10 years' imprisonment (for two of the victim's fellow
conscripts) to 15 years (for an army second lieutenant); a non-commissioned
officer was convicted of concealment and sentenced to three years'
imprisonment.
76. Garrido and Baigorria cases: The Inter-American Commission
on Human Rights has received a complaint concerning the disappearance
of Adolfo Garrido and Raúl Baigorria, who were arrested in General
San Martín park in the city of Mendoza on 28 April 1990. The case,
No. 11,009, was referred to the Inter-American Court of Human
Rights. After acceding to the request received, the Government
held a series of meetings with representatives of the victims'
families in order to pave the way for a solution involving the
granting of appropriate redress and compensation. In a decision
dated 2 February 1996, the Court took note of the Argentine Government's
investigation of the events described in the request and also
of its recognition of international responsibility for those events,
and granted the parties a six-month period in which to arrive
at an agreement concerning redress and compensation. This period
has not yet expired.
77. Guardatti case: On 23 May 1992, Pablo Christian Guardatti
and a group of friends reportedly attended a dance at a school
in the La Estanzuela district of Godoy Cruz, Province of Mendoza.
According to witnesses, Guardatti got into an argument with the
police, who handcuffed him and took him to the local police station,
near the jail. He has not been heard of since. On 30 November
1993, a petition was submitted to the Inter-American Commission
on Human Rights. On 23 January 1996, by Decree No. 53/96, the
President of the Nation issued instructions that a solution should
be sought in the Garrido and Baigorria case and the Guardatti
case. Negotiations are under way.
78. Mirabete case: On 20 February 1996, Alejandro Mirabete,
aged 17, and a group of friends were drinking beer and chatting
at an open-air stall on Vuelta de Obligado Street, between Olazábal
and Mendoza, in the Belgrano district of Buenos Aires. A group
of police officers from Police Station No. 33 arrived and ordered
them to produce identification. For some reason, Mirabete took
fright and ran away. One of the police officers fired his gun
at him, hitting him in the back of the neck. He died three days
later. Case No. 13,758/96, entitled "Miranda, Mario Eduardo, homicide.
Victim: Mirabete, Alejandro", originally came before Juvenile
Court No. 6, Secretariat No. 17, and concerned the events of 20
February in which the Mirabete boy was injured. At that time the
title of the case file was attempted homicide. When Alejandro
Mirabete died, the Juvenile Court judge declared herself incompetent
in the case and referred the proceedings to Criminal Investigation
Court No. 30, Secretariat No. 109, on 4 March 1996. On 5 March,
the accused's statement was amended to include a reference to
ordinary homicide. The following day, there was a reconstruction
of the event under investigation, with the help of experts from
the Gendarmería Nacional. On 7 March, an order was issued for
the prosecution and pre-trial detention of Officer Miranda; this
order was confirmed by the competent Court of Appeal on 22 April.
The pre-trial proceedings having been closed, the parties have
been given an opportunity to make statements on the merits of
those proceedings. The case will then be ready to be heard by
the trial court determined by ballot. This information was transmitted
punctually to the United Nations Special Rapporteur on extrajudicial,
summary or arbitrary executions.
79. Rodríguez Laguens case: The proceedings were heard
by a criminal court in the Province of Jujuy and resulted in the
conviction of police officers Italo Soletta, Juan José Zingarán
and Rogelio Moules, of the same province. They were sentenced
to 16 years' imprisonment for the abduction and murder of Diego
Rodríguez Laguens in February 1994. At the same time, five police
officers and a doctor were sentenced to two years' imprisonment
for concealment. The court also ordered monetary compensation
to be paid to the victim's relatives.
80. Cristián Ariel Campos case: This 16-year-old boy was
abducted on 2 March 1996 in Mar del Plata, and his body was found
later. An initial examination by experts showed that he had been
burned to death. A provincial police sergeant has been charged,
and judicial proceedings are under way.
81. Incidents involving university students and police officers:
On 20 February 1996, during the National University of La Plata
Assembly,
the purpose of which was reform of the university statute, there
were serious incidents involving students and the Infantry Guard,
the Buenos Aires security force, leading to the arrest of many
students, all of whom were released within 48 hours. Criminal
proceedings were initiated under Judge Guillermo Lombarda of La
Plata Criminal Court, who is compiling evidence and paying particular
attention to media coverage of the events (videos, photographs)
and to the testimony of victims of the aggression, students and
journalists. Pre-trial detention has been ordered for 11 police
officers involved in the incidents; they have been charged with
violating article 58, paragraph 15, of Act No. 9559/80.
82. Prison riots: As a result of the events which took
place between 30 March and 7 April 1996 during the riot in Province
of Buenos Aires Prison No. 2, a preliminary administrative investigation
has been opened under file No. 2211-64,377/96, entitled "apparent
mass attempt to escape with use of firearms, rioting with hostage-taking,
abduction, extortion, assault and resisting authority, wounding,
homicide, aggravated damage, sedition, and violation of article
55, paragraphs 1, 3, 4, 5, 7 and 9, of Decree-Law No. 5619/50
and article 117 and article 118, paragraphs 4, 5, 6, 8 and 10,
of Regulatory Decree No. 1373/62, provided for in article 55 of
Decree-Law No. 5619/50". Although the proceedings are currently
at the classified investigation and evidential stages, the Province
of Buenos Aires Human Rights Department has stated that it is
clear from the facts that on the date in question a group of prisoners
with firearms led an escape attempt which was thwarted by the
prison guards. This sparked off a riot in which many prisoners
took part. A group of prisoners took several hostages: seven prison
officers of various ranks, the woman judge on duty, the secretary
of Criminal and Correctional Court No. 1 of the Judicial Department
of Azul, and three Protestant ministers. The record shows that
a number of prisoners were injured and seven killed, while others
were victims of rape and assault inflicted, according to the inmates
themselves and as stated in the proceedings, by their fellow prisoners.
The investigation into the events is still under way.
83. Cases in the provinces of Chaco and Corrientes: Mr.
Nigel S. Rodley, the Commission on Human Rights Special Rapporteur
on the question of torture, requested information from the Government
on alleged cases in the provinces
of Chaco and Corrientes. This information was transmitted punctually,
as stated in the report of the Special Rapporteur of 16 January
1996 (E/CN.4/1996/35/Add.1). In this regard, given that some of
the incidents reported occurred in the Province of Chaco, a list
of complaints of ill-treatment in this province is appended (see
annex II).
84. In addition, by a note of 30 January 1995, the Centre for
Human Rights requested the Government to provide information concerning
a complaint lodged by inmates in jails under police supervision
in the city of Resistencia, Province of Chaco, which was transmitted
by Provincial Deputy Jorge Miño. The requested information was
submitted by the Government in July 1995 and remains valid.
85. Without prejudice to all the information provided under this
article, the Code of Criminal Procedure currently in force includes
the guarantees referred to in the second part of the article concerning
the protection of complainants and witnesses.
Article
14
86. The aim of a criminal indemnity action for injury to victims
of the offence of torture or ill-treatment is to obtain fair and
adequate redress in the form of compensation.
87. In the above-mentioned Rodríguez Laguens case, the court decided
that the sum of US$ 100,000 constituted fair redress for the victim's
relatives.
88. In the trial of three Province of Mendoza police officers,
mentioned with reference to article 13 of the Convention, each
of the convicted
officers was ordered to pay US$ 5,000 in compensation to the victims
of the ill-treatment. The provincial government was also held
responsible for the actions of its employees and ordered to pay
US$ 15,000.
89. In this regard, it is important to bear in mind that the compensation
provided for in Act No. 24,043 of 1991 is still being paid to
the victims of the most recent military dictatorship (1976-1983)
and their relatives. The Argentine State's initiative in compensating
torture victims took into account the recommendations made by
the Committee against Torture (see CAT/C/3/D/1,2,3/1988) with
respect to the communications submitted to it, which also prompted
the Committee to urge the Argentine Government, by
letters dated 23 November, 20 December and 21 December 1989, to
ensure that compensation was paid to torture victims and their
dependants under article 14 of the Convention.
90. In addition, on 7 December 1994 Congress adopted Act No. 24,411,
which calls for the granting of benefits to the rightful successors
of individuals who were in a situation of enforced disappearance
when that Act was promulgated and to the successors of those who
died as a result of action by the armed forces, the security forces
or any paramilitary group prior to 10 December 1983.
91. This Act is part of the Government's progressive redress policy
with regard to the events which immediately preceded the restoration
of democracy. Various measures were taken in this regard, all
of them with government support. These measures include: (i) Act
No. 23,466 of 30 October 1986, which grants non-contributory pensions
to the relatives of individuals who disappeared prior to 10 December
1983; (ii) Act No. 23,852 of
27 September 1990, which exempts from military service, upon request,
anyone whose parent or sibling disappeared prior to 10 December
1983 in circumstances justifying a presumption of enforced disappearance;
(iii) Decree No. 70/91, which authorizes payment of benefit to
individuals who were detained by the Executive prior to 10 December
1983 and whose criminal indemnity action was denied owing to expiration
of the statute of limitations; (iv) Act No. 24,043 of 27 November
1991, which authorizes payment of benefit to persons detained
by the Executive prior to 10 December 1983 and to civilians who
were arrested on the orders of the military courts, whether or
not they were convicted by those courts; (v) Act No. 24,321 of
11 May 1994, which authorizes a declaration of absence due to
enforced disappearance in the case of anyone who disappeared involuntarily
from his home or place of residence prior to 10 December 1983
and has not been heard of since.
Article
15
92. The courts' jurisprudence confirms the broad and full applicability
of the principle recognized in this article. Thus, the Supreme
Court has decided that: "compliance by judges with the directive
contained in article 18 of the Constitution may not be limited
to ordering the prosecution and punishment of those responsible
for ill-treatment, since to give weight to the result of an offence
and to base a judicial decision on it is not only at odds with
the condemnation of the offence but compromises the proper administration
of justice by attempting to establish it as a beneficiary of the
illegal act".
Article
16
93. All the information supplied in connection with the offence
of torture provided for in article 144 ter of the Argentine
Penal Code applies to cases in which the treatment in question
does not constitute torture under article 1 of the Convention.
Without prejudice to this fact, the offence of ill-treatment is
specifically mentioned in articles 144 bis, paragraphs
2
and 3, of the Code.
94. The information on judicial remedies provided in the section
of this report relating to article 13 includes cases involving
enforced disappearance and police violence, even though these
offences do not constitute torture within the meaning of article
1. The Argentine State considers it necessary to include them
in order to show cases in which the State has been held responsible
for the conduct of public officials, even beyond the bounds of
the functions of the official in question and pursuant to the
principle of ultra vires responsibility.
ANNEX I
Information
provided by the National Court of Appeal for
Federal Criminal and Correctional Cases
|
Year
|
Proceedings
initiated
|
Agencies
accused
|
Documented
injuries
|
Decision taken after pre-trial proceedings
|
1992
(1st half) |
35
|
F.P.: 33
F.P.S.: 2 |
17
|
Stay 32
Filed 3 |
1992
(2nd half) |
21
|
F.P.: 20
F.P.S.: 1 |
9
|
Stay 18
Filed 2
Lack of jur. 1 |
1993
(1st half) |
10
|
F.P.: 7
F.P.S.: 3 |
7
|
Stay 2
Filed 8 |
1993
(2nd half) |
7
|
F.P.: 7 |
7
|
Filed 5
Pending 2 |
1994
(1st half) |
0
|
-
|
-
|
-
|
1994
(2nd half) |
4
|
F.P.: 2
F.P.S.: 2 |
4
|
Filed 3
Change char. 1 |
1995
(1st half) |
1
|
F.P. |
none documented
|
Pending |
1995
(2nd half) |
3
|
F.P. |
2
|
Filed 2
Dismissal 1 |
Notes:
(1st half): first six months of calendar year
(2nd half): second six months of calendar year
F.P.: Argentine Federal Police
F.P.S.: Federal Prison Service
Dismissal: case dismissed
Stay: stay of proceedings
Change char.: referred to Correctional Court because of change
of
characterization
Lack of jur.: lack of jurisdiction
ANNEX II
Province
of Chaco: complaints of ill-treatment
Ill-treatment:
cases reported
|
Region
|
June-Dec.
1992
|
1993
|
1994
|
1995
|
Jan.-Mar.
1996
|
 |
Cases
|
Cases
|
Cases
|
Cases
|
Cases
|
| First |
12
|
18
|
9
|
3
|
1
|
| Second |
1
|
1
|
0
|
2
|
0
|
| Third |
0
|
0
|
2
|
1
|
0
|
| Fourth |
0
|
0
|
2
|
1
|
1
|
| Fifth |
0
|
0
|
0
|
0
|
0
|
| Sixth |
0
|
3
|
0
|
1
|
0
|
| Total |
13
|
22
|
13
|
8
|
2
|
