THE RIGHT TO A FAIR TRIAL AND DUE PROCESS1
A. General Considerations
1. According to the Argentine Constitution, the administration of justice is vested in the Judiciary, whose organizational structure and operations are set forth in Section Three, Chapters 1 and 2, entitled: “The Judiciary”. These articles read as follows:
Article 94. The Judicial Power of the nation shall be vested in one Supreme Court and in such inferior Courts as the Congress may establish in the territory of the Nation.
Article 95. In no case may the President exercise judicial functions, assume jurisdiction over pending cases, or reopen those decided.
For its part, Article 100 provides that the Supreme Court and the lower courts of the Nation have jurisdiction to resolve all causes submitted to them for decision.
2. In furtherance of these constitutional provisions, Law Nº 27 of October 16, 1862, which regulates the nature and general operations of the judicial Power in Argentina, provides in Article 1, “National justice shall always proceed in application of the Constitution and national laws…”; Article 3 states, “One of its purposes is to enforce the Constitution and to disregard, when it decides cases, any provision applicable to any of the national branches which may be contrary to the Constitution.” Article 21 of this law states: “The national Courts and Judges, in the exercise of their functions, shall proceed to apply the Constitution as the Supreme Law of the land, the laws that the Congress has passed or will pass, treaties with foreign nations, individual laws of the provinces, general laws that prevailed prior to the establishment of the Nation and the principles of International Law, as required, respectively, in cases submitted to it in the order of priority that is established.”
3. The highest organ of the judicial Power is the Supreme Court. This Court is composed of five members and the Attorney General is the Chief prosecutor. The Attorney General is in charge of all public prosecutors.
To apply the federal Law, which derives from Article 100 of the Constitution, the provinces of Argentina currently have approximately fifty federal trial courts and eight appeals courts. Buenos Aires has a more complicated judicial organization divided into different jurisdictions that hear cases according to subject matter. This organization consists of several hundred single judge trial courts and appeals chambers.
Besides the federal judicial system, each province—which according to Article 5 of the Constitution must ensure its own administration of justice—has its own judicial organization and procedural laws.
4. In view of the special influence that the proper administration of justice and due process have on the implementation of human rights, during its on-site observation, the Commission held lengthy conversations on the subject with the President of the Supreme Court, the Ministers of the Interior and Justice, members of the federal Appeals Court, judges of Buenos Aires and Rosario, the Argentine Federation of Bar Associations, the Bar Association of Buenos Aires and several defense attorneys from both Buenos Aires and the interior who agreed to interviews with the Commission.2
B. Organization of the Judicial System under the present Government
1. Pursuant to the Act for the National Reorganization Process, issued on the date of the military takeover, March 24, 1976, changes were made in the Argentine judicial system, the Supreme Court, the Office of the Attorney General, and in the membership of the Superior Provincial Courts. This act signified that the new authorities assumed the power to remove any sitting judge without prior judgment or complaint of misconduct.
The changes in the federal court system had repercussions on the entire system, from the highest jurisdictional bodies to provincial courts throughout Argentina. In other words, the government dispenses with the legal system responsible for the administration of Justice.
2. Article 96 of the Constitution sets forth the principle of judicial stability. The pertinent part of that article reads:
The justices (judges) of the Supreme Court and of the lower courts shall hold office during their good behavior…
Compared to the Constitution, Article 5 of the Act for the National Reorganization Process reads as follows:
To remove the members of the Supreme Court, the Attorney General and the members of the Superior Provincial Courts.
Article 9 of the Statutes for the National Reorganization Process reads:
Article 9 – To fill the vacancies of justices of the Supreme Court, the Attorney General and the Comptroller General, the President shall confirm the appointments made by the Military Junta.
Appointments of judges to the lower courts of the nation shall be made by the President.
Article 10 – The members of the Supreme Court, the Attorney General, the Comptroller General and judges of the lower courts shall enjoy the guarantees established in Article 96 of the Constitution, from the time of their appointment or confirmation by the Military Junta or the President, as the case requires.
3. The removal and replacements mentioned above, allowed the military authorities to appoint a new Supreme Court and Attorney General new superior courts and district attorneys general and to replace a large number of judges.
All these new magistrates were obliged to swear allegiance to and respect for the Acts and Objectives of the institutional process decreed by the Military Junta.
4. In an interview with the President of the Supreme Court, Dr. Adolfo Grabielli, the Commission raised this issue. The President of the Supreme Court confirmed to the Commission the source of these judicial appointments. He added, however, that most of these appointments involved persons with proven moral and professional background and were generally individuals with several years of experience as judges.
Dr. Gabrielli also maintained that in seeking to enforce the Constitution and the laws, the Supreme Court had shown its independence of the Executive Branch in many cases. As examples of this behavior, he mentioned the sentences handed down in the cases of Pérez de Smith, Ollero3 and Giorgio. The President of the Supreme Court added that within a few days the Commission would have the opportunity to see first hand a new expression of its independence. He was obviously alluding to the Timerman case, in which the Supreme Court would order his release.4
5. However, the Commission has also received information on many cases involving persons who have been detained for a long time without any charges having been brought against them, or who have been released by courts or have completed their sentences. In these cases, the Courts have not sought their release due to the fact that some authority in the Executive Branch has so ordered or requested. Several of these cases were examined in the earlier chapter on personal liberty.5 The Commission will return to this anomalous situation when it considers the remedy of Habeas Corpus later in this chapter.
C. Military Tribunals
1. After March 24, 1976, several legal provisions were promulgated on the sentencing and punishment of persons charged by military courts with involvement in subversive activities.
The abovementioned juridical order led to the establishment and operation of Special Standing Military Tribunals, the purpose of which was to ensure the effectiveness of the campaign against subversion.
The very day of the military takeover, Law 21.264 was promulgated. This law creates Special Standing Military Tribunals throughout all of Argentina, which are described in Article 483 of the Code of Military Justice, on extraordinary procedures during times of war. Along with Permanent Military Tribunals for Subordinate Personnel of the three Armed Forces, these special tribunals have the power to pass judgment on crimes covered in this law. The law also deals with summary judgment in time of peace for the application of the law to those 16 years of age and older and the use of the death penalty pursuant to the Military Code and its regulations.6
On the same date, March 24, 1976, the Military Junta stated that as of 1.00 pm that day, personnel of the security forces, police and penitentiary forces, both national and provincial, were under military jurisdiction.7
In November of that same year, the President approved a law stipulating what crimes of subversion were to be submitted to a hearing and trial by the Special Standing Military Tribunals. These crimes refer to events and situations provided for in the Military and Penal Codes of Justice. The law also set forth certain assumptions that deal particularly with the competence of the military courts.8
2. During its on-site observation, the Commission confirmed the complaints submitted to it to the effect that a large number of persons detained for subversive activity had been judged and sentenced by military courts. The sentences were as high as 25 years in prison.
The alleged criminals were not allowed to choose their own defense attorneys but were assigned official military defenders who are not licensed lawyers. These circumstances and the fact that civilians were made subject to military jurisdiction under the prevailing legislation were serious infringements of the right to defense inherent in due process.
The Commission flagged its concern about this matter with the national authorities. It also heard the ideas of experts in this field. These experts all agreed that both the military courts and trials for which they assumed responsibility were unconstitutional; they said they did not know of any cases in which civil attorneys had been allowed to participate. These situations violate basic provisions of the Constitution. One of these is Article 18 dealing with due process and the fact that no inhabitant of Argentina may be tried by special commissions, nor removed from the judges designated by law in view of the facts involved in the case. Article 95, mentioned earlier, deals with the nature of the judicial branch and provides the following: “In no case may the President exercise judicial functions, assume jurisdiction over pending cases, or reopen those decided.”
D. Guarantees of Administration of Justice
1. One topic of special concern to the Commission is that of guarantees of the administration of justice, in the absence of which, the fundamental rights and liberties cannot be truly observed.
As will be explained further on, these fundamental guarantees of the administration of justice have been seriously violated in Argentina. Protection of these guarantees is taken up in the American Declaration of the Rights and Duties of Man and in the Argentine Constitution itself. Among these guarantees the following should be mentioned:
2. a. Nullum crimen, nulla pena, sine lege (no crime, no penalty, without law) is provided in Article XXV of the American Declaration and Article 18 of the Argentine Constitution. The latter reads as follows: “No inhabitant of the Nation may be punished without a prior judgment pursuant to a law which antedates the trial…”.
Despite the express norms implementing this juridical principle, the Military Government, in the Act of Institutional Responsibility, expressly abrogated this principle, establishing explicitly the retroactivity of these norm in referring to prior actions, and in establishing in Article 1, that: “The Military Junta assumes the function and responsibility of considering the conduct of those persons who have prejudiced the national interest by having committed…”.
3. b. Declaration of Presumption of Innocence, is provided for in Article XXVI of the American Declaration. This principle was eliminated as a judicial guarantee by Law 21.460 which gave the Armed Forces and security personnel the power to detain persons suspected of crimes of subversion against which they have “half proof” of their guilt, and to institute against them the corresponding proceedings, whenever they have knowledge of that “half proof”:
This manner of investigation—according to the statement of reasons for the law—is simple and flexible, and makes it possible to bring together all the necessary evidence, within a short period of time and in a concrete way…
It is evident that this law expressly denies the accused the presumption of innocence.
4. c. Right to an impartial trial. This elementary and basic principle, expressly recognized by Article XXVI of the American Declaration of the Rights and Duties of Man, has been the subject of much testimony and information received by the Commission. According to this information, the Military Courts composed of officers involved in the repression of the same crimes they are judging, do not offer guarantees of sufficient impartiality. This is aggravated by the fact that in a military court, the defense is in the hands of a military officer, meaning that the defense is taken over by a person who is part of, and has strong disciplinary ties to, the same force responsible for investigation and repressing the acts with which the accused is charged.
5. d. Right to be brought to trial within a reasonable time. This guarantee, as stipulated in Article XVIII of the American Declaration of the Rights and Duties of Man, is not enforced in Argentina, because, as the great majority of the complaints involving detainees show, the corresponding appeals generally are not resolved opportunely. This guarantee has been violated by both police authorities responsible for investigating alleged crimes and the military. It has also been violated by the Executive branch which is holding hundreds of citizens without charge.
E. The Writ of Habeas Corpus
1. The actions of Habeas Corpus and of Amparo (or protection of individual liberty) are covered in the Code of Criminal Procedure, Title IV of Section Two, concerning to special trials under the subtitle “Procedure in cases of illegal detention, arrest or imprisonment of personnel.” Article 617 of the aforementioned Code reads as follows:
The writ of Amparo (protection of individual liberty) is appropriate against any order or measure of a public official that illegally restricts the freedom of a person.
The writ of Habeas Corpus is appropriate when a state official imprisons a member of Congress or any other individual working on contract or as an employee of the federal Government.
2. The writ of Habeas Corpus in Argentina is an institution that is not expressly set forth in the Constitution; it is found instead in the Code of Criminal Procedure, although it is understood to be implicitly guaranteed by the Constitution, and applies to both the administration of justice in Buenos Aires and throughout all the federal territory. In the Province, similar legal provisions exist and even permit the writ to be processed without formality.
According to Articles 618 to 645 of the aforementioned Code, claims of illegal detention in Argentina have been filed and processed before federal judges in both the capital and the provinces. Federal Courts act in exceptional cases, the writ is used because the organizations that carry out detentions, such as the Armed Forces, the Federal Police and the border security forces, are federal; all these organizations are responsible for waging the campaign against subversion.
3. In this examination of the effectiveness of Habeas Corpus, a distinction should be made as to cases involving the status of disappeared persons or a person detained at the disposition of some authority.
In principle, the difference between a kidnapping and a detention charged to security forces, is virtually indiscernible, as can be deduced from the many testimonies gathered by the Commission. In virtually all the cases recorded by the Commission, the detainee or his friend or relative were unable to determine which authority was responsible for the detention. They merely knew that the detention occurred in the guise of kidnapping. That is, it involves individuals out of uniform, unidentified vehicles, masks in some cases, no writ or record made of the act, and no information as to where the detained person was taken; the same procedure as in the case of a disappeared person. The fact that a detained person is later placed at the disposal of the Executive branch pursuant to the state of siege, is the only point that differentiates, in practice, one situation from the other.
4. First, the Commission will analyze the situation and processing of a writ of Habeas Corpus of the type involving an individual who ultimately is added to the growing list of the disappeared.
Within 48 hours of receiving a Habeas Corpus, a judge generally will request a report on the situation covered in the writ by means of telegrams to the Ministry of the Interior, the Federal Police or to Armed Forces Command Units. These telegrams are also addressed in some cases to police authorities in the place where the detention occurred. The various authorities generally reply to the effect that they have no information about the detention of such person. With that reply in hand, the Court forwards the information to the attorney and the parties, and then proceeds to hand down a ruling which states that the person is not in detention; that there are no grounds for the writ and that it is, therefore, rejected. Before placing the file in the archives, the federal judges submit a copy of the proceedings to the criminal court of the locality where it is alleged that the disappearance of the person, and on whose behalf the Habeas Corpus was filed, took place, so that the disappearance of that person is investigated. In the criminal court, the files are classified as “investigation for illegal deprivation of liberty of … (person’s name.”
If the family or the interested party appeals to the federal Court, the Court, on the basis of the evidence in the file, almost without exception, affirms the decision of the federal Judge and the petition for Habeas Corpus is rejected.
Finally, if an appeal is made to the Supreme Court (by presenting a special petition to the federal Court asking that the file be submitted to the Supreme Court), the federal Court will not allow it, stating that such appeal is improper.
Facing such denial, some persons file a complaint directly with the Supreme Court. In such instances, the Supreme Court requests the file from the federal Court and decides that the denial of appeal was proper.
Despite this manner of dealing with Habeas Corpus petitions in cases of the disappeared, the fact that the courts state that thus far the party for whom the appeal is entered is not listed as detained, causes many persons, desperate to establish the whereabouts of the disappeared person, repeatedly to file petitions of Habeas Corpus yet receiving the same negative result.
It should be pointed out that the decision taken with regard to the petition for Habeas Corpus does not constitute res judicata, and the petitioner has the right to appeal again to the same court or to another one as many times as he may wish until the case of the disappeared person is clarified.
5. Although Habeas Corpus is appropriate only in cases of illegal detention, in the case of the disappeared given the fact that the military authorities deny having any information and since such persons have been seized by individuals apparently belonging to the military, the only legal recourse left for the families of the disappeared is to petition for Habeas Corpus. Actually, through such a petition, they seek to learn whether the disappeared person was detained and the place of detention, in order to exercise the right of defense. The reason why several petitions for Habeas Corpus were entered with regard to the same person was the hope that, after the initial denial, the person might turn up in the custody of some military authority. The parties did not file charges on the crime of kidnapping because the seizure apparently was not made by a private group, but rather by military authorities. The “operation” almost always followed the same pattern, it took a long time, no military authority interfered, and there was freedom to carry out such activities.
The foregoing leads the Commission to the conclusion that the petition for Habeas Corpus was the only means for guaranteeing not only freedom but life itself.
In the great majority of cases, however, it was not a suitable instrument for having the judges order better and exhaustive investigations to clarify the situation of the disappeared persons.
6. The Supreme Court sought to remedy these inefficient investigations of the disappeared. The Court decided that the judge should expand the investigations and take the necessary measures to clarify the situation of disappeared persons.
In a judgment dated April 25, 1978, the Supreme Court, in a petition for review filed by César Ollero, in the case Ollero, César s/Habeas Corpus, on behalf of his daughter, Inés Ollero, stated as follows:
1) The federal Court of Criminal and Correctional Appeals of Buenos Aires affirmed the lower court judgment which rejected the petition for Habeas Corpus filed on behalf of Inés Ollero by her father, because the reports received from the relevant security organs indicated that the person named was not being held by any of the authorities consulted. He entered a special petition, which, upon being denied, gave rise to this complaint.
2) That there is a federal question on record, due to the nature of the matter and due to the allegation of injury to the right to a defense, insofar as certain evidence was not considered and the investigation was not carried out in accordance with the requirements of the facts of the case.
3) Although it is true that, according to the reports on file, the security forces would not have taken measures to restrict the freedom of Miss Ollero, and she is not at the disposal of those agencies, it is no less true that there is evidence on file that supports a strong presumption that Miss Ollero was a passenger on a bus subject to a control operation in which all the passengers were taken to Police Station Nº 49. This emerges from page 24 of the military communication, page 45 of the report, and pages 29, 30, 31 and 32 of the witnesses statements, which are the same in several respects, including the bus number, although not the line to which it belonged.
4) In view of this, the judge should have broadened the investigation and taken the necessary measures required by the facts on record to duly clarify the matter relative to the status and personal situation of the individual named, and the truth of the events, because it seemed the evidence prima facie showed that she was deprived of her freedom by public officials.
This is so because the institution of Habeas Corpus, which was established to immediately restore freedom to persons illegally deprived of it, requires the exhaustion of judicial procedures.
5) Notwithstanding the above conclusion the judge has transmitted a photocopy of the proceedings to the relevant authority to investigate the possible crime of illegal deprivation of Miss Ollero’s freedom. This measure did not excuse or replace the requirements referred to in the preceding paragraph. Moreover, on the date of the Court’s judgment which affirmed the petition for Habeas Corpus (page 65) the judge who had jurisdiction over the proceedings relative to the abovementioned crime had already dismissed that case (cf. page 57 overleaf of the file appended), whereby Miss Ollero’s fate was left completely uncertain.
Therefore, having heard the Attorney General, this complaint is justified, and since no further material is necessary, the judgment on page 65 of the principal file is revoked, and the files are to be remanded to the Court of origin so that the case be processed in accordance with established procedure.
Despite the categorical terms of the judgment and the investigation carried out by the judge having jurisdiction over the case, it is a fact that, as of the date of approval of this report, Miss Ollero continues to be a disappeared person.9
The accumulated evidence subsequently led the Supreme Court, upon the third presentation of the case Pérez de Smith, et al. to reiterate in its judgment of December 21, 1978, that there reigns a situation of actual loss of jurisdiction which the judges are unable to remedy.10
7) It is appropriate to recognize that the main responsibility for this situation of loss of jurisdiction is with organizations which effectively monopolize the exercise of state forces. Even so, it must be pointed out in this Chapter that the judges have not taken exceptional steps to clarify the instances of loss of jurisdiction which they have had to face. In none of the recorded cases have the judges come to the headquarters of the security forces in order to establish, in situ, the truth of the reports that have been submitted to them. Neither have special investigatory measures been provided for, despite the awareness of the magnitude of the cases at hand, nor has any public official even been tried who may have participated in the operations involving the disappearance of individuals. It is not acceptable—and in particular it should not be acceptable to the judges—that so many thousands of cases of disappeared persons remain unsolved, and that no official has to answer for them due to the inefficacy of those who have assumed the exercise of the authority of the state, which involves, among other obligations, the obligation of guaranteeing the safety of the community.
8) In cases in which petitions for Habeas Corpus are entered, with regard to persons detained on instructions of the Executive branch, the results thus far have been equally ineffective. In these cases, the judge requests information from the Executive branch, which, through the Ministry of the Interior, submits a copy of the arrest warrant, signed by the President o the judge. This warrant states that the measure has been taken pursuant to the authority granted by Art. 23 of the Constitution.
Almost all of these warrants follow the same pattern, varying only in terms of whether they were issued under the government of former President María Isabel Martínez de Perón or by the current government. In both instances, the warrants include several persons in the same statement who generally have nothing in common other than their date of arrest.
In the reports that accompany submission of a copy of the arrest warrant, issued by the Ministry of the Interior, a formula is used which states in part that the arrest of the person for whom appeal is entered was due to “his connection with subversive elements.”
Having seen the arrest warrant, the judge rejects the petition for Habeas Corpus, stating that the Executive is authorized to detain anyone pursuant to the aforementioned constitutional article.
9) This pattern was broken in April 1977, with the judgment handed down by the federal Court of Appeals in Criminal and Correctional Matters of Buenos Aires, which accepted a petition for Habeas Corpus presented on behalf of the lawyer Carlos Mariano Zamorano.11 The Court, applying the theory of reasonableness in determining the justification for his prolonged detention under the Executive branch, stated, among other things, as follows:
The Court, concerned with the special features of the case, since the detention of this citizen goes back to November 28, 1974, and in order to gather the information collected by the Executive branch over such a long period of time and to have the evidence for a final decision, sent a telegram to the Minister of the Interior, asking him to state whether the reasons for which Mr. Zamorano was deprived of his freedom still exist and, if so, to state such reasons.
The judgment continues:
With regard to the substance of the matter, it should be stated that this Court, now and in previous decisions, has stated that the judicial branch is an integral part of the government of the Republic and therefore shares in governing the state with regard to each juridical and institutional organization, acting within the sphere of its competence.
Therefore, it has the inescapable duty of ensuring the rights and guarantees established in the Constitution, which were emphatically affirmed by the Institutional Acts, which are the basis for the current process of national reorganization.
It is unacceptable to sustain the theory put forth that the President is the only person empowered to evaluate the situation of persons held on his instructions. Although eminently political and non-judicial matters fall outside his sphere of jurisdiction, it is no less true that the judicial branch is responsible for analyzing, in exceptional cases such as this, the reasonableness of the measures adopted by the Executive branch. This is set forth in Art. 25 of the Constitution and in Articles 29 and 95 of the Fundamental Law.
The national interest and individual freedom must be made compatible so that it will not be possible even to assume that those who are deprived of their freedom on instructions from the Executive branch will be left to their fate and beyond any control by the judges of the Nation, no matter how long the arrest continues.
In after more than two years of the citizen’s deprivation of freedom the Administrative branch can show only the arrest warrant as the sole reason therefore, and if such a long period of time has not been diligently used to gather evidence of charges or answers to charges regarding the person detained, then it is self-evident that this Court must conclude that in the present instance, since there is nothing on record concerning the dangerous nature of Carlos Martínez Zamorano, and in view of the time that has gone by since his detention, it is unreasonable and unfounded to prolong such a situation.
The judgment concludes as follows:
… In view of the need to choose between individual freedom and the hypothetical and undemonstrated dangerous nature (of the detainee), we choose the former, running the risks that it involves, safeguarding a value which no Argentine has renounced.
The federal Court ordered the Executive to release the person detained, but the judgment was not executed. In view of the appeal of the government attorney, the Supreme Court, in August 1977, demanded a more detailed response from the Executive branch, and accepting the arguments presented by the Government, decided that the detention by the Executive could continue, since the aforementioned report was now accurate and specific with regard to the connection between the reasons for the State of Siege and the detention of Dr. Zamorano.12
10) In all the subsequent instances in which the courts applied the doctrine of the Zamorano case, in accordance with the terms of the federal Court of Appeals judgment handed down on April 23, 1977, the Supreme Court, upon taking up the petition for Habeas Corpus on motion by the Government attorney, has revoked the order for release.13
Only in the first resolution of July 20, 197814 handed down in the Timerman case, which deals with the arrest on instructions from the Executive, did the Supreme Court have recourse to the Zamorano case, adopting its judgment of August 9, 1977, the conclusions of which it applied in their entirety.
Thus there is uncertainty as to the final result of the Habeas Corpus petition.
11) In the light of this background, the conclusion that can be drawn is that the petition of Habeas Corpus has been frustrated. It is not a matter of the Commission’s recommending an improvement—which might be possible—in the nature of the Habeas Corpus, but rather its seeking and end to the procedure followed in detentions or kidnappings, which is the basis for the frustration of the jurisdictional guarantee of the right to life, liberty and the physical integrity of all the inhabitants of Argentina.
It is because the organs centralizing control of the state forces are certain that they will be treated with impunity that they answer to judges simply that the beneficiary of the appeal is not under any detention order.
In brief, Habeas Corpus in Argentina has meant a real, virtual frustration of this right. This is evidenced by the fact that out of the thousands15 of petitions presented no petition for Habeas Corpus has succeeded in recovering even one disappeared person alive and, with regard to persons detained without trial, only very few petitions for Habeas Corpus, if any, other than the one filed on behalf of Jacobo Timerman, have brought about release.
F. Writ of Amparo (Judicial protection of civil rights)
1. The writ of Amparo is a judicial act established by Law 16.986 of October 18, 1966 “against any act or omission by the public authority which currently or imminently harms, restricts, alters, or threatens, with obvious arbitrariness or illegality, rights or guarantees explicitly or implicitly recognized by the Constitution, with the exception of individual freedom protected by Habeas Corpus.
Originally, neither the Constitution nor the law of Argentina contemplated the writ of Amparo among the defense guarantees citizens might use to ensure respect for all the other rights and guarantees under the Constitution, other than the right to personal liberty in cases of illegal detention. It was the jurisprudence of the Argentine courts which, in 1956, established this means of defense, 10 years before promulgation of Law 16.986.
2. In accordance with Argentine jurisprudence and doctrine, mention could be made of some examples in which recourse to the writ of Amparo is appropriate.
a) When an individual believes that he is in imminent danger of being murdered or kidnapped upon release;
b) When a free individual suspects that he might be kidnapped;
c) When an individual is prevented by threats and intimidation from working or living in a specific place;
d) When an individual is threatened with the murder or kidnapping of his children;
e) When an individual fears being murdered upon transfer from one prison to another;
f) With regard to wounds inflicted by the prison detention system; and
g) In general, against any current or imminent act or omission by the authorities or by individuals or organized groups of individuals, against the rights and guarantees set forth in the Constitution, other than freedom protected by Habeas Corpus.
3. In practice, however, this defense is not used very frequently, and when it has been used under the current military government, it has been accepted on very few occasions.16
G. The situation of the defense lawyers
1. To conclude this Chapter, the Commission will refer to the situation of the defense lawyers, who aid in the administration of justice, and without respect for whom such administration cannot adequately proceed.
Since October 1975, that is to say, prior to the installation of the current government, the Commission has been studying with concern the complaints and information received, on the situation of defense lawyers, both in the exercise of their professional activities and as concerns their lives, freedom and personal safety. Thus it is that, on the basis of the reports presented by the International Commission of Jurists, the Commission forwarded to the Argentine Government, in various communications, complaints of violations of human rights alleging the death, disappearance, detention or maltreatment of defense lawyers.17
In a note dated November 1, 1976, the current government, in reply to the requests for information by the Commission, stated that “currently all professionals can freely exercise their profession without suffering outrages or persecution such as those mentioned, since the Argentine Government is devoted to eradicating, one and for all, these methods of aggression, injustice and abuse.”
2. Subsequently, several complainants have reported on the worsening of the situation of defense lawyers in Argentina, for which reason the Commission has continued to consider this problem.
The Commission has received complaints alleging the death or disappearance of several lawyers.18 The Commission has also received information according to which there are currently nearly one hundred lawyers in detention, several of them without trial.19
3. Moreover, the professional bar association and unions have expressed their concern with the lawyers’ situation. The Argentine Federation of Bar Associations, in a document entitled “Guarantees of due process,” which it approved at its meeting held in Paraná on April 15, 1978, stated the following: “The security forces must respect lawyers and protect the scope of their jurisdiction in the legitimate exercise of their profession, so that due process will be possible and so that the individual guarantees and the stability of the Republic will not be unduly diminished.”
At the same time, the professionals belonging to the Buenos Aires Bar Association, in a public statement on September 3, 1979 demanded “the full effectiveness of the system of constitutional guarantees,” pointed out that one of the most important purposes of union action was “to call for effective guarantees for professional practice and the prerogatives of defense; to obtain the release of the lawyers detained without trial and without charges on instructions of the Executive branch, and to push for full clarification of the attacks and kidnappings of which lawyers have been victims; to call for the highest respect for the dignity, social standing and decorum corresponding to the professional practice of law.”
1 Article XVIII of the American Declaration of the Rights and Duties of Man provides: “Every person may resort to the Court to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.” Article XXVI adds: “Every accused person is presumed to be innocent until proven guilty. Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with preexisting laws and not to receive cruel, infamous or unusual punishments.”
2 Besides the authorities and attorneys mentioned, the Commission requested and held interviews with the full Supreme Court. It also conducted hearings with all the professional institutions that had requested them in a timely manner. For that reason, the Commission considered it highly unusual that, on the eve of its departure, the Bar Association of Buenos Aires issued a press release pointing out that the Commission had not interviewed representatives of that association, given that the IACHR offices in Buenos Aires had never received a request for a hearing. The Commission itself sought an interview with the Argentine Federation of Bar Associations, an organization whose members comprise all the Bar Associations of Argentina, including the Buenos Aires Association.
3 The Commission discussed these Supreme Court cases in Chapter III. As for the case of Inés Ollero, it will be taken up again in section E of this chapter in the discussion of Habeas Corpus.
4 Despite this, as the Supreme Court was handing down its ruling, the Government proceeded to strip Mr. Timerman of his Argentine nationality and to expel him from the country.
5 In Chapter III, the cases involving Jorge Taiana, José Luis Medela, Hugo Rubén Perie, Gustavo Westerkamp, Raúl Héctor Cano, Norberto Ignacio Liwsky and Mario Raúl Belsuzari.
6 Law Nº 21.264 provides that military, security and law enforcement personnel should use weapons when persons involved in any of the crimes covered by this law are caught in flagrante delito, and do not surrender at the first request or use arms against the authorities. The crimes covered by this law include incitement to mass violence and disruption of public order, assaults against transport and other public services, actions against water, food and medicine, and fire, explosion or any other similar means that may do harm to persons and property.
7 Law 21.267 of March 24, 1976. The Military jurisdiction established covers any criminal and/or disciplinary infractions committed by members of the forces during, or on the occasion of, missions charged to them by the respective military command.
8 Law 21.461 of November 19, 1976. Decree 2963 put the aforementioned law into effect. Furthermore, Law 21.463 published in the Official Gazette of December 1, 1976, deals with this same subject.
9 The case of Miss Inés Ollero is recorded by the Commission under the number 4326.
10 The corresponding paragraphs of this judgment have been quoted in Chapter III.
11 The case of Mr. Carlos Mariano Zamorano is recorder under the number 1980 on the status of the defense lawyers in Argentina, and is being processed in accordance with the Commission’s Regulations.
12 Dr. Zamorano is currently free under surveillance on orders from the Executive.
13 As an example of this Supreme Court procedure mention can be made of the judgment regarding the case of Castro, Fidel Angel; Feldman, Sajario; Perelmuter, Enrique; and La Rizza, José, mentioned in Section B of this Chapter.
14 It should be made clear that this judgment did not bring about actual freedom for the beneficiary, because Timerman was included in a resolution by the Military Junta pursuant to an Institutional Act, which also resulted in the deprivation of his freedom. This resolution was recently annulled during the second appeal for Habeas Corpus, in accordance with the judgment handed down on September 17, 1979. As indicated elsewhere in this Report, Mr. Timerman, despite the Court’s order for release, was exiled and stripped of his nationality. Nevertheless, the Court’s judgment offers hope for effective action by the legal apparatus for protection against arbitrary detention.
15 According to information provided to the Commission by the Government, from April 1, 1976 to June 30, 1979, some 7,000 petitions for Habeas Corpus had been presented to federal, provincial, local and Buenos Aires Courts (the Government gave no information on the results of the petitions). It may be that the figure given by the Government—clearly smaller than the figure the Commission has received from other sources—has counted only one petition presented when it has been on behalf of several persons, or that when the same person has been the subject of several petitions for Habeas Corpus only one instance has been counted.
16 According to information provided by the Government to the Commission, of 702 writs of Amparo presented to federal, provincial, local and Buenos Aires lower Courts, from January 1, 1976 to June 30, 1979, 309 were rejected, 13 were accepted, 12 were dismissed, 37 are being processed and the court disqualified itself in 188 instances.
17 For this purpose, the Commission opened case Nº 1980. Subsequently, some of the lawyers originally involved in that case were taken up individually under different numbers.
18 In this regard, see the situation of several disappeared lawyers in Chapters II and III.
19 According to information received by the Commission, the following defense lawyers are being held: Acosta, José Leonardo; Acosta, Osvaldo; Acosta Mena, Juan de Dios; Altmark, Daniel; Arguello, María; Arroyos, Christina; Asberg, Jorge; Ashut, Enrique; Asuad, Ariel; Avalos, Alberto; Benamo, Víctor; Berentein, Rubén; Borella López, Liliana; Brower de Koning, José; Cáceres Oscar; Calabró, Elba; Canada, Carlos; Celada, Rolando; Chávez, Héctor; Ciaravino, Norberto; Chorni, Manuel; Diebenberg, Jacobo; Divinsky, Daniel; Epstein, Mauricio; Fachini, Eduardo; Falcone, Norma; Favila, Saturnio; Fernández, Isabel; Ferreyra, Oscar Alfredo; Fidalgo, Andrés; Foresti, Norberto; Fragale de Anguita, Wanda Josefa; Garrai, Horacio Aníbal; Giordano Cortazzo, Héctor; Gerchunoff, Salomón; Gervasoni, Rito Julio; Gigliano, Alejandro; Goggi, Alejandro Ernesto; González, Héctor Raúl; Gordillo, Silvia; Hairabedian, Carlos; Horane, Eduara; Ipuche, Ricardo; Izaguirre, Estela; Jarana, Emilio María; Jozami, Eduardo Ricardo; Kunkel, Carlos Miguel; Laplasa, Rafael; Lava, Horacio; López, Simón; López Forastier, Leopoldo; Llanos, Juan; Maccio, Ana María; Mansur, Julio; Marca, Jorge Mario Domingo; Marchesini, Víctor; Mercado Luna, Ricardo; Melucci, María Teresa; Montalvo, María Luisa; Molteni, Hugo; Palacio, Dante, Luis; Pallardini, Jorge; Panza, José; Peña, José; Prol, Luis María; Quiroga, Juan Facundo; Rafaghelli, Luis Aníbal; Rearte, Ana Lucía; Repetto, Santiago; Ripodas, Ricardo; Rodríguez, Luis; Rojo, Juan Ardeo; Romero, Carlos; Rossi, Roberto; Ruiz Taboada de Corvalán, María Eugenia; Salvo, Ada; San Martín, Rafael; Santos, Jesús; Schenfelde, Enrique; Senan, Elías; Serra, Luis; Soria, José Arturo; Tomás, Julio Emilio; Tomasevich, Luis Alberto; Torres, Hugo Francisco; Torres Molina, Ramón Horacio; Vara, Carlos María; Vargas Alvarez, José; Vázquez, José María; Verges, Juan F.; Vernier, Carlos; Villa Acevedo, Carlos; Zappia, Jorge; Zareceansky, Mario; y Zieschank, Carlos Manfredo.