RESOLUTION Nº 14/80
1. In a
communication dated November 17, 1976, the Commission received a
denunciation on the detention, imprisonment and ill treatment of Mr.
Gustavo Westerkamp by the Argentine authorities.
2. In response to
an oral request by the Executive Secretariat of the IACHR, the
Government of Argentina provided the pertinent information in a note
dated February 4, 1977, indicating the following:
regard to the case of the Argentinean citizen Gustavo Westerkamp, he is
at the disposition of the Executive by virtue of Decree 3076 of October
23, 1975, for having been involved in activities that are prejudicial to
the public order and the basic interests of the State.
3. In a note dated
May 24, 1977, the Commission transmitted to the claimant the pertinent
parts of the Government of Argentina's reply, and asked him to put
forward observations on that reply.
4. The Commission
decided to officially transmit the pertinent parts of this denunciation
to the Government of Argentina, and on June 30, 1977, it addressed the
Government and requested that the corresponding information be provided.
5. The Government
of Argentina, in a note dated September 29, 1977, replied to the
Commission as follows:
Members of the subversive terrorists groups the ERP and
Montoneros, at the disposition of the Executive, for having committed
crimes of terrorism, illegal possession of arms and war supplies,
illegal association and other terrorist subversive crimes, as set forth
in the articles of Law 20.840 on security of the State.
WESTERKAMP, Gustavo: PEN, document 3076 of October 23, 1975. Held
at Sierra Chica.
6. The Commission,
in a note dated October 13, the pertinent parts of the reply of the
Government to the claimant, and requested that he formulate observations
with regard to that reply.
7. In June 1978,
the claimant provided the additional information as follows:
was arrested on October 21, 1975 when he appeared at the military
headquarters in Palermo, Buenos Aires, for the requisite medical and
physical examination prior to entering compulsory military service. He
appeared at headquarters early in the morning. When the examinations was
completed, upon leaving the building, at approximately mid-day, he was
violently overtaken by four armed men in civilian dress. After being
severely beaten and blindfolded, he was violently and forcefully put
into an automobile and taken to the Superintendence of Federal Security,
located on Calle Moreno 1417 in the Capital. There Gustavo was
barbarously tortured for 48 hours during which time he was given neither
food or water. He remained blindfolded. As he lay on the floor, everyone
that passed kicked him, spit on him, or urinated on him. The blindfold
was repeatedly soaked in an irritant which produced burns around his
eyes. He was tortured with an electric prod and his genitals were beaten
with chains in an effort to obtain information. He was finally forced to
sign a statement while blindfolded.
approximately October 28, 1975 to September 6, 197b, Gustavo was
confined to the prison Unit 2 in Villa Devoto in the city of Buenos
Aires, where conditions were terrible. During a large part of the time
he was confined to a cell for two persons which he shared with four
other inmates. Three of them slept on a light mattress on the floor.
Sewage water frequently flooded the cell. The only sanitary facility was
a hole in the floor, surrounded by insects and rodents. He was permitted
practically no activity. The diet was poor and scant, and on many
occasions he was sent to the punishment cell without cause.
was transferred to Sierra Chica prison (Unit 2), near Olivarría, in the
province of Buenos Aires, together with approximately 60 other
detainees, where he was brutally beaten. Marks from the blows could
still be seen. Gustavo was forced to sign another statement however,
which said that those marks resulted from an accident.
was imprisoned in Sierra Chica prison for approximately one year, from
September 6, 1976, to September 21, 1977. During most of this period, he
was kept in a small cell, alone, for 23 hours each day. He had only 60
minutes of recreation. He was awakened at 5 in the morning and was only
allowed go to bed at 9:00 p.m. During the day, the mattress was rolled
up. He was not allowed to do any physical or intellectual work. The
purpose of this was clearly to paralyze him, both mentally and
physically; that is to say to bring about the progressive destruction of
his personality. For the same reason he was not permitted to receive
books or scientific publications, nor was he permitted a transistor
radio. During the winter, which in that region is very severe, he was
exposed to extremely low temperatures and provided no heat. The cell
window, furthermore, had no glass. He was ill for a week without
receiving medical attention or medication.
on September 21, 1977, Gustavo was transferred from Sierra Chica to Unit
9 in the city of La Plata. During the first two weeks he was again
beaten while being submitted to interrogation. At this time, Gustavo was
sharing his cell with another political prisoner. They were not allowed
to read newspapers or books, nor to listen to the radio, watch
television, or participate in any other form of diversion. The diet was
very poor. Recreation limited to two hours in the morning and two hours
in the afternoon. Discipline was very severe and on the whole designed
to humiliate him, break his will, and destroy his mind.
the legal viewpoint, Gustavo was being held at the disposition of the
Executive by Decree Nº 3076/75, without any charges or accusations
against him. He is, therefore, a typical political prisoner. His
detention is based on the powers granted to the President under Article
23 of the Constitution for cases during a state of siege. It is,
however, well-known that the Constitution has been undermined by two
institutional acts issued by the Military Junta, which in fact holds
power. The first act, dated March 24,1976, suspends the right of option
to leave the country, which is set forth in the corresponding article of
our Magna Carta. The second, signed into law on September 10, 1977,
re-establishes that right, but conditionally, making it subject to the
decision of the President and requiring several conditions set forth in
our constitutional system, however, this power of the Executive is not
entirely discretionary. Both the doctrine (cf. Germán S. Bidart Campos:
Derecho Constitutional, Edlar, Buenos Aires 1964, vol. 1, p. 610 et
seq.), and the jurisprudence of the Supreme Court, are almost in
unanimous agreement that, "although the declaration of the state of
siege is a political act, which is beyond the judgment of the Judiciary,
it is the latter's responsibility to ensure that such state of siege is
reasonably implemented by the executive in cases that are brought before
the Judiciary (judgment rendered in the case, Zamorano, Carlos
Mariano, La Opinión, August 13, 1977, and the decision in Pérez
de Smith, Ana María, et al. re effective denial of fair trial, p.
327-XVII-ORIGINARIO of April 10, 1977).
view of this, there can be no doubt that prolonged detention without
cause, apparently for security reasons which are never specified, for
more than two and a half years, exceeds any "test of
reasonableness" and clearly constitutes distortion of the principle
of the separation of powers set forth in the Constitution. In effect, by
prolonging detention without bringing formal charges or initiating
proceedings, the President, in effect, has handed down a sentence, thus
assuming judicial functions, which is expressly prohibited by Article 95
of the Constitution.
is true that Gustavo was previously detained on March 14, 1974 and
charged with illegal association. However, proceedings were dismissed by
the Federal Judge on June 17 of the same year, for which reason his
detention at this time lacks any legal basis or even elementary
8. The Commission,
in a note dated August 10, 1978, transmitted the foregoing additional
information to the Government of Argentina, and requested that it
provide information. To date, the Government has not replied.
9. In a note dated
December 2, 1978, the claimant informed the Commission that Mr.
Westerkamp has been again transferred from the prison of La Plata to
Sierra Chica; he has been confined for three years and two months at the
disposition of the Executive without due process of law, and he has been
denied a second request to exercise the right of option to leave the
The Commission, in a note dated June 30, 1977, in requesting
information on these events, asked the Government of Argentina for any
opinion that would allow the Commission to determine whether or not all
domestic legal remedies had been exhausted; the silence of the
Government in this regard implies that there is no further remedy.
1. In light of the
background information given above, it is found that Mr. Gustavo
Westerkamp's case was one of arbitrary arrest; he was detained on
October 21, 1975, when he voluntarily appeared at the military barracks
in Palermo, Buenos Aires, in connection with his beginning obligatory
military service, as stated in documents in the possession of the
Commission, which include information provided by the Government of
Argentina on February 4, 1977, and its subsequent note of September 29,
1977, stating that Mr. Westerkamp was at the disposal of the Executive
by virtue of Decree 3076 of October 23, 1975.
2. That since that
time, Mr. Westerkamp has been detained without due process and subjected
to inhumane prison conditions.
3. The IACHR
adopted Resolution Nº 25 on the present case on March 5, 1979, at its
4. In a note dated
March 30, 1979, the Government of Argentina requested a reconsideration
of the resolution adopted, the substance of which was taken up during
the present session.
5. The IACHR has
on several occasions stated its opinion with regard to prolonged
detention sin die, imposed without discrimination and without any
criterion of reasonableness, which makes it a real punishment.
6. This situation
has become more serious in that Mr. Westerkamp has been kept in
detention, and no specific charges have been brought against him for
breaking national security or other laws, and he has been denied, to
date, the right to exercise his guarantees of normal due process.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES:
1. To declare that
the Government of Argentina violated the right to personal security
(Art. I); the right to protection against arbitrary arrest (Art. XXV),
and the right to due process (Art. XXVI) of the American Declaration of
the Rights and Duties of Man.
2. To recommend to
the Government of Argentina; a. that it immediately release Mr. Gustavo
Westerkamp; b. that it order a complete, impartial investigation to
determine responsibility for the events denounced in reference to
inhumane treatment; c. that it punish those responsible for these acts,
in accordance with Argentinean law, and d. that it inform the Commission
within sixty days of the measures taken to put these recommendations
3. To communicate
this resolution to the Government of Argentina and to the claimant.
4. To include this
Resolution in the Annual Report to the General Assembly of the
Organization of American States, pursuant to Article 9 (bis), paragraph c.iii,
of the Statute of the Commission, without prejudice to the Commission's
being able to reconsider the case at its next session, in light of
measures that the Government may have adopted.