|
|
|
RESOLUTION
Nº 15/87 HAVING
SEEN The background of the case, to wit: A. In a
communication of October 18, 1985, Mr. Osvaldo Antonio López, an
Argentine citizen, former airplane mechanic in the armed forces,
currently in the Argentine Federal Prison Unit located in Bermudez, Nº
2651, PCL Buenos Aires, presented to the Inter-American Commission on
Human Rights a claim alleging the Argentine Government's violation of
the provisions of Articles 7 (3); 8 (1) (2 g and h) and 8 (3); 9,
24, 25 (1) and 25 (26) and 1 and 2 of the American Convention on Human
Rights, in view of the the facto and de jure reasons set
forth in the denunciation itself, as follows: The
complainant, a political prisoner designated as special by the Federal
Prison Service, who has been illegally and arbitrarily detained since
August 1977, a situation that had the semblance of normality when the
military dictatorship scourged the country, which remains unchangeable.
The denial of all appeals filed since the Constitutional Government came
to power and the decisions of the Supreme Court of Justice that confirm
this situation (copies of which are attached) constitute new violations
of human rights and amount to noncompliance with the international
commitments assumed by the Argentine State. The
illegal and arbitrary nature of the denial of freedom stems clearly and
obviously from the case filed against him before the standing Court
Martial for enlisted personnel and students of the Air Force, decided
upon by the Supreme Council of the Armed Forces in November 1978 and
declared unappealable by the Supreme Court of Justice on April 23, 1985.
CASE RECORD 1.
The proceedings began on April 29, 1976, when explosive devices
were discovered in tanks of six aircraft. These devices, although they
had acted, had not exploded, and therefore the aircraft were not harmed
(fs. 3/4/22/42). Thus
the Government attorney proceeded to take a statement from all personnel
who had acted as Technical Duty Officer and Watch Duty Officer, and all
those who had been on duty the afternoon of the previous day, and the
troops who were on detail at the place (fs. 10 and 14, 17, 28 and V. 30,
V. 31, 33 and V. 80, 84 and 85, 87, 102 V. 103, 106 and V. 108 and 119
to 120, 123, 125, 131, 133, 137 V. 144, 145 to 148, 150 V. to 151, 155
V. 157 V. 160 V. and 161, 163 165 V. to 166 and 170 V. They all
explained the activities they had been engaged in and none had been any
suspicious movements. Among those making statements was myself, who--as
seen from this initial summary--was never alone during my time on duty. 2.
Attached to the summary are sketches of the site showing the
location of the aircraft, the expert's report and photos. 3.
The aforementioned statements show that the night before the act
was discovered, one of the hangar doors have been left open, and no one
had been in the Technical Duty room, from which place any irregularity
could have been seen, because it had been closed for several days. Since
all the statements were contested and since the explanations offered led
to discovery of the act's perpetrator, the summary proceeding in
reference was dismissed. Fifteen months after the act investigated, in
July 1977, López was abducted at the exit of his workplace, according
to a denunciation by the individual accompanying him, and this appears
in the record. Also attached is a photocopy of a preventive writ of habeas
corpus before the Federal Court of Cordoba. Then, eight days after
being kept hooded and abducted, the complainant succeeded in fleeing his
place of confinement. His relatives homes were broken into by the
security forces who, in every instance, tried to pinpoint his location.
Those who "because of what could happen to them in the near
future" asked why he was sought, were told that it was for
desertion. Attached
is a proceeding for desertion, with the explanation that López appeared
voluntarily at the Córdoba Air Force Base to make a summary statement
for assault with explosive devices. Then there was an unsworn statement
in Moron, which was not the seat of the Court, nor was it the place of
work, but rather Unit VIII. In that statement, López said he had placed
the explosives under investigation, had met with individuals belonging
to the People's Revolutionary Party, and had delivered cartridges to
members of the organization. He had done all this due to his love for a
woman Gladis Aoad, who had told him she belonged to the PRP and had
introduced him to a former fiancé, Osvaldo Oscar Rosonn. When López
was confronted with Aoad, the latter denied having engaged in political
conversations with the deponent, although she did say she had been his fiancé
and had introduced him to the person in reference. It
should be said that the aforementioned Rosonn has been on a long list of
detained and missing persons in our country for more than a year. This
is not based on any record but rather on the report of CANADEP,
Appendices, list of missing persons, p. 399. The prosecutor called for a
deposition by all of Gladis Aoad's girl friends, her mother, and her
work supervisor; and all these said they were unaware that she might be
interested in politics. There are also depositions by the persons who
lived with López, work-mates, persons with whom he went bowling in the
area, and the bowling alley's owner, and all of them concur in stating
their unawareness as to whether he might be engaged in political
activities. The
statement by López is not corroborated by any other evidence and it is
not consistent with the circumstances of the case, since there is no
agreement as to the events investigated. When the witnesses who had
worked with López the day of the event were called, they maintained
their statement made a year before. In view of the contradictions
existing between the confession, the statements of the witnesses, the
date of the act, the impossibility that this could have been done in the
manner confessed, a new statement was taken from him while he was held
in strict preventive detention. His
new statements describing how he might have placed the explosive devices
were also inconsistent. Shown
the sketch that had been prepared in due course, he said that "he
did not agree with it," and he drew another that lent truth to the
explanations given (pp. 345 to 347 vta). The drawing that had been made
the day of the event shows clearly that López could not have placed the
explosive devices without having been seen, due to the distance between
the place in which he performed his duties and the place in which three
of the affected aircraft were located, since he would have had to go to
another hangar and all afternoon he had been with other persons up to
the time he left the unit. Based
on this evidence, he was convicted of the following crimes: attested
illicit association, theft, attack on aircraft, and desertion from the
armed forces. This
conviction was upheld by the Supreme Council of the Armed Forces. When
so notified, the complainant stated expressly for the record that he
wished to appeal to the Supreme Court of Justice. His defense counsel,
an untrained member of the military, whom he had been unable to choose
freely, did not file an appeal to that Court. Clarification:
The page numbers of the record showing the facts are not indicated and
the photocopies of such record are not attached because the Supreme
Council of the Armed Forces again denied my current defense counsel
access to that record by providing false information on its whereabouts.
This
situation was pointed out in due course to the President of the country
in his capacity as Commander in Chief of the Armed Forces, Dr. Raul
Alfonsin. APPEALS
FILED: After
the Constitutional Government assumed office, and now having free access
to trained counsel, the following appeals were filed: a.
Remedy of appeal: The Military Code of Justice in force in
the country (Law 23.049) was amended by an act of Congress in February
1984. This amendment provides, in accordance with the Argentine
Constitution, that there can be no civil jurisdictions by such courts
only to try violations. Since this affected the existence of the
military establishment only the military codes make provisions by
establishing appeal of the judgments handed down by the Supreme Court of
the Armed Forces (Art. 445 bis C.J.M.), with special reference to the
fact that civilians convicted by military courts file such an appeal
within 60 days from the effective date of that law (Art. 13, law
23.049). The
Supreme Council of the Armed Forces denied submission of the record.
When filed, the Federal Court of La Plata did not approve the appeal, as
it understood that such an appeal is valid only in the case of persons
having future military status. After an exceptional writ alleging
arbitrary action was filed before the Supreme Court, the latter did not
consider the case, alleging that it was not sufficiently well-founded.
This decision was announced on April 24, 1985. The
pertinent parts of the appeal in reference are attached (photocopy). b.
Habeas Corpus: Since appeal based on the invalidity of all
proceedings has not been legislated in Argentina, a writ of habeas
corpus was filed. The
institution of habeas corpus has already been legally admitted as a
valid action against judgements the courts martial had handed down
against civilians. This jurisprudence was adopted by our legislators
who, in order quickly to restore the rule of law in our country,
approved law 23042, which so established it. This
appeal was rejected by the Supreme Court, after a year of processing,
which alleged that it was submitted in untimely fashion, that it was
based on inadequate evidence, and that at the appropriate time, in early
1979, it had not been possible to file a special appeal based on illegal
action. COMPLIANCE
WITH THE REQUIREMENTS OF THE CONVENTION TO ADMIT THIS COMPLAINT: 1.
The notification documents indicate that the Supreme Court's
resolutions were announced on April 24, 1985. Moreover, by arbitrarily
denying freedom, each moment I continue to be held means continued
violation of Art. 7.3 of the American Convention on Human Rights. b.
Exhaustion of domestic remedies: Upon consideration by the
Supreme Court that the judgement convicting Antonio López has the
authority of res judicata and that objection thereto was filed in
an untimely manner, it can be stated that domestic remedies have been
exhausted, because this judgement upholds the decision on the domestic
level. An
appeal for review has not been filed, since it would be based on the
assumption of a valid proceeding, which was lacking in the case we
denounce. c.
Reservation by the Argentine Government: The arbitrary
denial of freedom the complainant suffers and the Argentine court's
decision upholding an irregular proceeding constitute a violation of
human rights after ratification of the American Convention on Human
Rights, for which reason the irregularities of that proceeding and their
consequences are not protected by the reservations made by Argentina. HUMAN RIGHTS VIOLATIONS DENOUNCED: Art.
7, paragraph 3. NO ONE SHALL BE SUBJECT TO ARBITRARY ARREST OR
IMPRISONMENT. Since
denial of his freedom stems from an irregular proceeding by unqualified
judges who acted with prejudice and were not independent, where the
defendant did not freely choose his defense counsel (the latter was
untrained, and since they also failed to fulfill their obligations, the
proceeding is absolutely void. Moreover, the judgement is arbitrary
because it did not analyze the evidence, the facts were wrongly
depicted, and he was subjected to a law that had been repealed. Further,
he was convicted of crimes whose existence was also unproved. All of
this renders the arrest and imprisonment arbitrary. The verdict of the
Argentine court, citing problems of form, avoids analysis of the matters
of substance and is a violation of this standard through the denial of
justice, because the procedural forms have been established to guarantee
rights. Article
8. RIGHT TO A FAIR TRIAL: 1.
EVERY PERSON HAS THE RIGHT TO BE HEARD, WITH DUE PROCESS
GUARANTEES...BY A COMPETENT, INDEPENDENT, AND IMPARTIAL JUDGE OR
TRIBUNAL... Osvaldo
López was not tried by a competent court, because the military
authority can only try military violations. The contrary would be to
establish courts as a matter of privilege (which
is prohibited by Arts. 16 and 95 of the National Constitution
prohibiting the Executive Branch from assuming judicial duties).
Moreover, at the time of the deponent's arrest and trial, the Armed
Forces were operating jointly throughout the country, with their
commanding officers having assumed all public authority, systematically
violating human rights. It
should be pointed out that so-called area of Triple M, or Sub area 16,
which corresponded to the districts of Moreno, Merlo and Moron, were
under the operational control of the Air Force, according to newspaper
articles and testimony and statements on the trial to the Military
Juntas. This is the area in which López was abducted and in which this
case was later pursued. The Palomar Air Brigade, the Court's seat, and
the III Air Brigade, based in Moron, where the complainant made a
statement and later, for security reasons, was imprisoned, are places
that have been denounced by various individuals as clandestine detention
centers. These
statements are supported by the unsworn statement that we have
invalidated in 8.2.g) as in violation of Art. 18 of the Constitution and
the Convention on Human Rights. It should be indicated that other events
mentioned are not in keeping with the truth of the matter. Article
9. NO ONE SHALL BE CONVICTED FOR ANY ACT OR OMISSION THAT DID NOT
CONSTITUTE A CRIMINAL OFFENSE, UNDER THE APPLICABLE LAW, AT THE TIME IT
WAS COMMITTED. NOR SHALL A HEAVIER PENALTY BE IMPOSED THAN THE ONE THAT
WAS APPLICABLE AT THE TIME THE CRIMINAL OFFENSE WAS COMMITTED. IF
SUBSEQUENT TO THE COMMISSION OF THE OFFENSE THE LAW PROVIDES FOR THE
IMPOSITION OF A LIGHTER PUNISHMENT, THE GUILTY PERSONAL SHALL BENEFIT
THEREFROM. This
right was violated because, upon conviction, he was subjected to a law
that had been repealed (law 21.272). In the event of there having been a
valid trial, and the perpetration of the crime having been proved, the
punishment established for such act (damage to aircraft) in Article 794
of the Military Code of Justice should have been applied: a shorter
prison term, a month to two years, through application of the most
favorable law. It
remains to be pointed out that, after his conviction, there were also
changes in the prison terms under Art. 210 bis, attested illegal
association, and Art. 222, disclosure of military secrets, without the
penalty having been revised. Article
24. ALL PERSONS ARE EQUAL BEFORE THE LAW. CONSEQUENTLY, THEY ARE
ENTITLED, WITHOUT DISCRIMINATION, TO EQUAL PROTECTION OF THE LAW. The
Argentine court violated this right when it based its denial of justice
on his status as a member of the armed forces at the time he was tried,
even denying the possibility of filing a writ of habeas corpus. Article
25. JUDICIAL PROTECTION: EVERYONE HAS THE RIGHT TO A SIMPLE AND PROMPT
RECOURSE, OR ANY OTHER EFFECTIVE RECOURSE, BEFORE A COMPETENT COURT, OR
TRIBUNAL FOR PROTECTION AGAINST ACTS THAT VIOLATE ONE'S FUNDAMENTAL
RIGHTS RECOGNIZED BY THE CONSTITUTION OR LAWS OF THE STATE CONCERNED OR
BY THIS CONVENTION, EVEN THOUGH SUCH VIOLATION MAY HAVE BEEN COMMITTED
BY PERSONS ACTING IN THE COURSE OF THEIR OFFICIAL DUTIES. The
outcome of the appeals filed and the time taken to decide them is
evidence of such violation. Article
25.2.B. TO DEVELOP THE POSSIBILITIES OF JUDICIAL REMEDY The
complaint filed also reports the Argentine State's failure to comply
with the rights mentioned in Art. 1 and 2 of the aforementioned
Convention. PETITION DUE TO THE FOREGOING, I REQUEST: 1.
That this denunciation be admitted and that its admissibility be
declared. 2.
That the presentation to the Argentine State be examined. 3.
If the violations denounced persist, that this denunciation be
brought before the Inter-American Court of Human Rights in due course. B. In a note dated
October 28, 1985, the Commission asked the Government of the Argentine
Republic for the corresponding information, enclosing the pertinent
parts of the claim. A copy of this note was transmitted to the
Ambassador, Permanent Representative of the Argentine Republic to the
OAS, on that same date. C. The complainant
was informed of the steps taken regarding his denunciation in a letter
dated October 28, 1985. D. In a note dated
January 24, 1986, the Government of the Argentine Republic requested, in
keeping with Article 34 of the Commission's Regulations, an extension of
the deadline for sending the information requested. E. In a note dated
January 27, 1986, the Commission granted the Argentine Government 60
days for submission of the information requested in the aforementioned
note dated October 28. F. In a note dated
March 26 (SG Nº 48 (7-2-17/86), the Argentine Government answered the
Commission's request. This note was supplemented by several appendices
under the corresponding headings it cites. The answer reads as follows:
The
Government of the Argentine Republic has the honor to address the
Executive Secretary of the Inter-American Commission on Human Rights
and, with regard to the communication dated October 28, 1985 on case Nº
9635 dealing with the status of the Argentine citizen, Mr. Osvaldo
Antonio López, makes available to you the following reply, without
prejudice to any other explanations the Commission may deem advisable to
request: I.
On the date the crimes Mr. Osvaldo Antonio López was accused of
occurred (April 22, 1976), he was a Corporal in the Argentine Air Force.
Taking
heed of the facts and the provisions of paragraph 2, Article 108 of the
Military Code of Justice in effect at that time, he was tried by the
Military Tribunals in accordance with that jurisdiction's judicial
procedure. In
a proceeding carried out through file "C" Nº 248.558
(F.A.A.), he was tried, found guilty and finally sentenced on November
23, 1978 by the Supreme Council of the Armed Forces to 24 (twenty-four)
years in prison, plus absolute disqualification for the same period, and
demotion, as he was considered the perpetrator of the crimes of
"damage to items" assigned to the service of the Armed
Forces" (armed attack against aircraft), "illicit
association," "disclosure of national defense secrets,"
and "theft," with the aggravating circumstances of falling on
munitions, while on duty and to the detriment of the public treasury and
with extenuating circumstances for all of the acts if their perpetrator
had come forward spontaneously before the authorities became aware of
the circumstances, and of the crime of "simple desertion"
(Arts. 2 and 5 of law 21.272; 871 paragraphs 1 and 2 and 10, 536, 539,
515 paragraph 8 and 716 paragraph 1, 3; 718 of the Military Code of
Justice, 210 bis, 210 quater, 222, 162, 12, 24, 40 and 41 of the
Criminal Code). Copies
are included of all these provisions, which were in effect at the time
of the sentence. This
judgement was confirmation, with relation to the punishment with few
legal differences, of the decision of the first instance handed down on
September 21, 1978 by the Standing Court Martial for enlisted personnel,
troops and students of the Air Force. II.
After the Constitutional Government headed by Dr. Raúl Ricardo
Alfonsín assumed authority, the complainant files three new appeals, as
follows: a. Appeal to the Supreme Council of the Armed Forces. This appeal was denied through a resolution of April 12, 1984. On the basis of Article 13 of law 23.049, the complainant addressed a complaint to the Federal Court of La Plata, which also rejected it on August 23, 1984. Finally, the Supreme Court, which is the final instance in our legal system, declared the special appeal filed to be inadmissible in view of the resolution of April 23, 1985, endorsing the opinion of the Attorney General, who argued that this appeal was not based on Article 15 of Law 48, which provides the legal requirements for appealing to the Supreme Court by way of special appeal. b.
Writ of habeas corpus, based on Article 1 of law 23.042, filed
with the Fourth National Federal Court in Criminal and Correctional
Matters. This
appeal was rejected in the first instance and also by the National
Federal Court of Appeals in Criminal and Correctional Matters of the
Federal Capital through a resolution of May 31, 1984. The
special appeal was also rejected by the Supreme Court on April 23, 1985.
There were basically two reasons for the Court's decision: First, the
accused status as a member of the armed forces on the date of the events
is not covered by the provisions of Article 1 of Law 23.042, which deals
exclusively with civilians. Secondly, the Court felt that the appeal
based on the possible unconstitutionality of the military jurisdiction
and the arbitrary nature of the Supreme Council's judgement was not
filed at the proper time as required by such special appeal. c.
Finally, on August 21, 1985 and after his sentence had been
reduced through Law 23.070, the complainant filed a complaint with the
Supreme Council of the Armed Forces based on that law, asking that his
prior time in prison be calculated in a more favorable manner, thus to
obtain a further reduction in sentence. This proceeding has not yet been
settled. It
should be pointed out that the original sentence of former Corporal
Osvaldo Antonio López would have had him imprisoned until July 1, 2002;
but, by virtue of law 23.070, approved by the current constitutional
government, his term expires on February 26, 1997. III.
CONCLUSIONS OF THE LEGAL PROCEEDINGS THUS FAR The
Argentine Government understands that, in the light of the legal
proceedings that have taken place in the case of former Argentine Air
Force Corporal Osvaldo Antonio López, there is no evidence of
noncompliance by the Argentine constitutional justice, and, therefore,
by our government with any of the standards of the American Convention
on Human Rights to which the petitioner makes reference in communication
Nº 9635. IV.
INADMISSIBILITY OF THE PETITION As
stipulated in Article 46, paragraph a) of the American Convention on
Human Rights, and in keeping with the Commission's Regulations, the
Government of Argentina asks that the petition filed be declared
inadmissible for the following reasons: A.
General: As is known, immediately after assuming its
duties on December 10, 1983, the Argentine Constitutional Government
adopted several provisions aimed at full restoration of the rule of law
and unrestricted enjoyment of basic human rights and freedoms. Among
the many measures taken by that government, the following should be
indicated, because they are directly related to the petition in
question: a.
Law 23.040, which repeals law 22.924 enacted by the previous de
facto government. It will be remembered that the latter law sought
to extend amnesty to those responsible for past human rights violations.
b.
Law 23.042, which makes it possible to claim personal freedom by
filing a writ of habeas corpus for all civilians sentenced by
military courts. c.
Law 23.070, which substantially reduced the sentences of
prisoners between March 24, 1976 and December 19, 1983. d.
Law 23.077, which expressly repealed repressive standards
established by the previous government and substantially reduced the
sentences of others. Copies of the aforementioned laws are included as
an appendix. Specific:
The Argentine Government understands that communication Nº 9635 does
not meet the conditions required by Article 46, paragraph a) of the
American Convention on Human Rights for admission, since the petitioner
has not exhausted the remedies the Argentine system provides for under
domestic law. Proof
of this is that the petitioner has not yet filed an appeal for review of
sentence provided for in Articles 439, paragraph 4) of the Military Code
of Justice and 551, paragraph 4) of the Code of Procedure in Criminal
Matters of the federal jurisdiction and regular courts of the Federal
Capital and the national territories, copies of which are included
herewith. This
remedy made available by both governing bodies, provides for review of
the sentence in case of a less severe criminal law, under the first
assumption, or one that has reduced the sentence or declared that the
act is not punishable, under the second assumption. It should be pointed
out that, in addition to the provision set forth in Article 439,
paragraph 4 of the Military Code of Justice, the Procedural Code of the
federal jurisdiction and regular courts of the Federal Capital is
applied supplementally. Moreover, both standards of procedure are
correlated through the principle of application of the most favorable
criminal law contained in Article 2 of the Penal Code. The
standards upon which the conviction of former Corporal Osvaldo López
was based have undergone substantial changes. Thus, for example, Law
21.272, in addition to having been partially repealed (see Laws 21.463
and 22.928), was fully repealed on August 9, 1984 by Law 23.077, which
in turn repealed the two other laws in reference. In
turn, Articles 162, 210 bis and 222 of the Penal Code were also amended
by Law 23.077, calling for lighter punishment. Moreover,
the appeal for review of sentence filed by the petitioner under Law
23.070 is still in process, as already explained above. By virtue of the
foregoing, the Argentine Government requests that communication 9635 be
declared inadmissible because it does not meet the conditions of Article
46, paragraph a) of the American Convention on Human Rights and of the
Regulations of the Honorable Commission, since the petitioner has not
exhausted the domestic remedies provided for in the Argentine legal
system. G. In a letter
dated March 31, 1986, the Commission sent the complainant the
information provided by the Argentine Government, with a 45-day deadline
for making his observations or comments. H. In a cablegram
dated May 10, 1986, the complainant requested an extension of the
deadline. He was given a 30-day extension, which he was informed of in a
letter dated May 14, 1986. I. In a
communication dated June 5, 1986, the complainant made the following
observations: I
have the pleasure of sending you my observations to the Argentine
Government and of attaching complementary information: As already indicated, it is true that Osvaldo Antonio López, at the time of the events of which he was accused (April 22, 1976), was a Corporal in the Argentine Air Force. The
Argentine Government says that, in keeping with the nature of the facts
and the provisions of paragraph 2 of Article 108 of the Military Code of
Justice in effect at that time, he was tried by the military courts in
accordance with the judicial proceedings of that jurisdiction. In
message 166, in which a bill was submitted to Parliament to amend the
Military Code of Justice, the President of the Nation, accompanied by
the Council of Ministers, stated the following: "The current system
of competence of the military court established by Articles 108 and 109
of the Military Code of Justice, which includes the trial of common
crimes committed at military sites or in the performance of duty
constitutes TRUE CIVIL JURISDICTION CONTRARY TO ART. 16 OF THE
CONSTITUTION. In the future, military jurisdiction must be restricted to
the trial of military crimes, that is, those not included in the Penal
Code, and disciplinary infractions." He adds later that "to be
judged for the commission of common crimes by an administrative court
consisting of peers involves both a privilege and a lack of protection,
both constitutionally inadmissible, and, therefore, it is necessary to
add an appeal that can be supported by both the prosecutor and the
defendant. This makes it "the last analysis the judges, common to
all Argentines, who judge these events in the last instance". In
addition to the unconstitutional nature of Articles 108 and 109 of the
Military Code of Justice in reference, the aforementioned legislation
contains several provisions that are seriously detrimental to the right
of defense--legally declared several times--among which the following
should be indicated: a)
Article 197, which establish that the defense counsel must always
be an active or retired official; b)
Article 98, which defines defense as an act of service; c)
Article 366, which provides that in no case shall it be permitted
to advance in favor of the defendant any consideration detrimental to
the respect due to a superior or to lodge against them any accusation
related to facts that are not related to the case; nor shall it be
allowed to criticize or unfavorably assess the activities or political
or administrative acts of the government; d)
Article 367, which, in accordance with Article 664, punishes a
defense counsel who lacks due respect for a superior or who makes
assessments of government acts, with punishment of up to four years in
prison or detention; e)
Article 364, which says that no brief other than those expressly
allowed shall be admitted; f)
Article 264, which establishes that no one may attend the
presentation of testimony; g) Article 237, which authorizes that an individual giving unsworn testimony may be urged to tell the truth, etc. But
not even with these restrictions was López tried in accordance with the
legal procedure of that jurisdiction, as the Argentine Government says,
because the following provisions of the Military Code of Justice were
also violated: Article 2, which provides that military courts may not
apply punishments other than those established under law; Article 226,
which provides that the government attorney shall take steps to confirm
the crime and its circumstances even if the defendant confesses from the
very beginning to being the perpetrator; Article 240, which provides
that he may not use coercion or threats or promises of any kind against
the witness; Article 252, which indicates that, after giving an unsworn
statement, he will be allowed to appoint a defense counsel, all
subsequent procedures being void if such appointment is hindered; Article
290), which provides that two or more experts shall be appointed to
assess the facts; Article
300), which indicates the contents of the expert report; Art. 575),
which says that no tribunal or military authority may increase or
decrease punishment beyond the maximum or minimum,...nor increase it by
replacing it with others; Article
576, which provides that no offense may be suppressed with punishment
nor established by the law before being committed; and if the criminal
law at the time of the offense and subsequent offenses is different, the
one most favorable to the accused shall be applied, and if the
punishment has already been imposed by an executory judgement, it will
be replaced by the least severe one, etc. These
irregularities, together with those that were denounced in the initial
brief, were the reasons for drafting a denunciation against those who
took part in his trial, so that his trial would be ordered for breach of
duty in accordance with the standards of Arts. 832, 833 and 179 of the
Military Code of Justice (cf. document, a copy of which we attach). The
judgement handed down against members of the First Military Junta for
violation of basic human rights clearly held that retired Brigadier
General Orlando Ramón Agosti, as Commander and Chief of the Air Force,
gave his subordinates orders "that called for abductions, torture,
the physical elimination of a vast number of individuals vaguely
categorized as 'subversive,' and that such orders involved acceptance of
the idea that in their area of operations other crimes were to be
committed, such as robbery, abortions, rape and suppression of the civil
status of minors"; and it is also confirmed that he gave the order
for operations--Provincia--for the participation of Air Force personnel
in the struggle against subversion. This operational order was the
outcome of A DELEGATION TO THE ARMY TO ACT IN THE DISTRICTS OF MORON,
MERLO, MORENO (Buenos Aires Province) FOR THE AIR FORCE, which had the
main responsibility throughout the Republic for how to implement and
carry out the struggle against subversion (Judgement of the Court of
Appeals on Federal Criminal and Correctional Matters of the Federal
Capital), December 9, 1985. Article
468 of the Military Code of Justice provides that execution of final
judgements by military tribunals must be ordered by the President in all
instances in which the judgement imposes the death penalty or affects
senior personnel, and by the corresponding commanders in chief in
other instances. Dr.
Raul Zaffaroni holds that the order to carry out the military judgement
is a legal control and that official approval by the President or the
branch commander is not of discretional compliance but rather a legal
control, a very restricted assessment of the principle of suitability
limited to exceptional cases and transitory situations, only for the
time necessary. The competent authority may in no case change the
judgement for a military crime nor arbitrarily delay the official
approval, thus safeguarding the constitutional authority of the
Executive Branch to pardon or commute punishment (Arts. 469, paragraphs
1 and 2 of the Military Code of Justice) (Zaffaroni-Cavallero, Derecho
Penal Militar, Editorial Aries, 1980, p. 523). For
the purposes of this case, the official approval was given by Brigadier
Agosti through resolution 203 of May 10, 1979 (p. 503). It is obvious
that the legal control applied by Brigadier General Agosti's official
approval must be totally disqualified, it being left to the President of
the Nation to exercise certain authority provided for in Article 469 of
the Military Code of Justice. The
report on the human rights situation in Argentina by the IACHR
(OEA/Ser.L/V/II.49 doc. 2011 of April 1980), on pages 223 and 224,
analyzes the action taken by the military tribunals beginning March 24,
1976, which is fully applicable to the case. In
this regard, it points out that "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...
constituted serious infringements of the right to defense inherent in
due process." It mentions Art. 95, which provides that in no case
may the President exercise judicial functions..." With regard to
the right to an impartial trial, it points out that "the Military
Courts composed of officers involved in the repression of the same
crimes they are judging, do not offer sufficient guarantees of
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 also part of, and has strong
disciplinary ties to, the same force responsible for investigating and
repressing the acts with which the accused is charged. With regard to
this parody of a trial to which López was submitted, and against which
all remedies allowed under domestic law have been exhausted, the
Argentine Government reports that "he was tried in accordance with
the judicial proceedings of this jurisdiction." The
Argentine Government recognizes that, after the Constitutional
Government took office, López filed several appeals. He endeavored to
be included too, in the legal order that began to be restored in our
country. Let us see: a)
Law 23.049 was approved. He filed appeals based on Art. 13
against the judgement handed to him by the military tribunals. This is
the appeal referred in the afore-mentioned presidential message Nº 166.
This appeal was denied by both the Supreme Council of the Armed Forces
and by the Federal Court of Appeals of La Plata. The Supreme Court of
Justice which, as the Argentine Government well points out, is the final
instance of our judicial system, declared the special filing to be
inadmissible, arguing that it was not based on Art. 15 of Law 48. In
view of the denial of freedom López was suffering due to the unfair
trial to which he had been submitted, this decision was included among
those which in similar instances that high court had disqualified
because "the pronouncements that hide the objective truth due to an
obvious ritual excess injure the requirement that justice be suitably
served as guaranteed by Art. 18 of the National Constitution,"
because trial formalities have been established to guarantee the basic
right, never to legitimize lack of proper defense, never to confirm the
arbitrary denial of freedom. b)
An appeal of habeas corpus was filed with the Fourth National
Federal Court for Criminal and Correctional Matters. This appeal, which,
like the previous one, would have assisted review of the arbitrary
nature of the Supreme Council's judgement, was rejected in the first
instance. The resolution was confirmed by the Federal Court on May 31,
1984, and the appeal was also rejected by the Supreme Court of Justice
on April 23, 1985. There were basically two grounds for the decision: 1)
The military status of the accused on the date of the events
which would not include him under the provisions of Law 23.042 which
refers exclusively to civilians. This restrictive interpretation of
habeas corpus denies the purpose of that procedure: the immediate
release of anyone who may be illegally denied his freedom. 2)
The opinion--with excessively strict formality--that the possible
unconstitutionality of the military jurisdiction and the arbitrary
nature of the judgement should have been expressed at the appropriate
time, the impossibility of timely filing not having been shown. The
Supreme Court omits the records in the file, since the record of
notification of the judgement (fs. 448) includes the request made by López
to appeal the decision, which was not done because of his lack of proper
defense without access to a trained civilian lawyer and because his
military "defense" counsel was not an attorney and/or did not
perform his duties. Upon
the rejection of both appeals by the National Supreme Court, the
domestic appeals that might have enabled reexamination of the trial were
exhausted. c)
On the basis of Law 23.070, the Argentine Government reported
that the sentence handed down by the Supreme Court of the Armed Forces
for Osvaldo López had been reduced from July 1, 2002 to February 26,
1997. This reduction was figured at three days for every two days of
prison served. Instead of this, since this was a prisoner who had been
placed in "maximum security," it should have been computed at
two for one, which would have taken his sentence to 1995 under the
provisions of that law. In view of the violation of current legislation,
on August 21, 1985, Osvaldo López filed an appeal to the Supreme
Council of the Armed Forces asking that his imprisonment be calculated
in accordance with the law. This is being processed and since it deals
with a consequence of the proceeding, it does not affect the petition
filed by Osvaldo López with the Inter-American Commission on Human
Rights. III.
ADMISSIBILITY OF THE PETITION: None
of the Argentine Government's opinions are adequate for declaring the
petition to be inadmissible. they are: General:
The fact that the Argentine Government has enacted a series of legal
standards aimed at restoring the rule of law and the unrestricted
enjoyment of human rights does not mean that they apply to the situation
of López. a)
Law 23.040 repeals Law 22.924 enacted by the de facto
government as a consequence of popular demand and the political
prisoners themselves, which include Osvaldo López, because this law
sought to extend amnesty to those responsible for the genocide that
occurred in the country. b)
Law 23.042 was expressly declared by the National Supreme Court
of Justice as not applicable to the case of Osvaldo López. c)
Law 23.070 reducing the sentence does not permit reexamination of
the proceeding. d)
Law 23.007, which repealed Law 21.272 and amended the penalties
in Articles 162, 210 bis and 222, allows for filing an appeal for
review as provided for in Article 439 of the Military Code of Justice.
It reads as follows: "This remedy is provided against final
judgements by the Military Tribunals and its effect is to suspend
execution or to interrupt fulfillment thereof; and it is appropriate, in
the proper instances, to apply the most favorable penal law
retroactively." Article 551 of the Code of Penal Procedures is in
agreement with this provision. Specific:
By virtue of the latter standard, the only one of those cited by the
Argentine Government that applies to the case of Osvaldo Antonio López,
it is sought to have the Inter-American Commission on Human Rights
declare the petition inadmissible because the petitioner would not have
exhausted all domestic remedies under the Argentine legal system. This
opinion should be rejected, and the petition of Osvaldo López should be
admitted because the appeal for review to which the Argentine Government
refers deals exclusively with the consequences of the proceeding in
terms of the reduction of penalties or elimination of criminal figures,
but it does not deal with the invalidity of the process itself through
which the sentence was reached. It
should be pointed out that at the sessions convoked by the Buenos Aires
Bar Association as a contribution to the parliamentary debate on the
"current legal status of political prisoners" the opinion as
expressed on this topic was as follows: "4)
Standing unchanged as of this date is the appeal for review of
judgements handed down under the authority of previous adjudication,
even though they have been handed down by the National Supreme Court of
Justice for the assumptions governed by Article 551 of the Code of Penal
Procedures applicable to the federal jurisdiction. 5) None of the
assumptions of Article 551 of the afore-mentioned Code provides for the
possibility of filing an appeal for review in cases of violation or
nonobservance of the legal guarantees established in Article 8 of Law
23.054. 6) The individual study of each case of the aforementioned
political prisoners thus highlights the violation of all the cases and,
to different degrees of seriousness, that of each and every legal
guarantee recognized in Article 8 of the American Convention on Human
Rights, or Pact of San José, Costa Rica, and this situation has been
aggravated thus far by the circumstance indicated in item 5." The
Argentine Government's argument that the petition should be rejected
because an appeal for review under Law 23.070 on how to calculate the
sentence is still pending is not worthy of serious consideration. A
state cannot claim confusion between due process, a decision as to guilt
or innocence, and how to figure a sentence depriving freedom. CONCLUSION: I.
As inferred by the Argentine
Government's answer, the judicial branch has systematically refused to
study the procedure whereby López is imprisoned, always raising up
problems of form. Thus it confirms the illegal denial of freedom to
which López is subjected, giving the authority of prior adjudication to
a spurious proceeding which ended with an arbitrary decision, in this
instance deviating from its own jurisprudence, which establishes that
"no judicial proceeding shall be maintained if its inferences wound
the community's legal and moral conscience set forth in the
Constitution's standards and principles" (decisions T. 248 - 291). II.
Faced with the precise violations of the
Pact of San José, Costa Rica, which were denounced, the Argentine
Government is silent. This in itself must be understood as an implicit
acceptance of each and every one of the irregularities, in accordance
with the principle of law that establishes the consequences of silence
when there is a legal obligation to answer. III.
The Government claims that the remedies under
domestic jurisdiction are exhausted as though it were unaware of the
differences between the proceeding and its consequences. It
conspicuously points to the existence of an appeal to reduce the
sentence, but it does not apply this officially in accordance with the
procedures established in articles 439 and 576 of the Military Code of
Justice and 552 of the Code of Penal Procedures. NEW |
