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OEA/Ser.L/V/II.79.rev.1 ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION
REPORT
N°
74/90 CASE
9850 ARGENTINA 4
October 1990
At the 72nd regular session of the Inter-American Commission on
Human Rights (hereinafter "the Commission"), this case was ruled
admissible. Transcribed below are
the relevant resolution, No. 22/88 of March 23, 1988, and the comments thereon
from both the complainant and the Argentine Government.
Lastly, The Commission states its own conclusions on the matter. I.
Resolution No. 22/88 of March 23, 1988 RESOLUTION
N°
22/88 CASE
9850 ARGENTINA 23
March 1988
WHEREAS the following information was collected on the case:
I. On December 17, 1986, Mr.
Hector Geronimo Lopez Aurelli, an Argentine citizen employed as a workman, at
present free on parole, filed with the Inter-American Commission on Human
Rights (hereinafter the Commission) a complaint alleging violation of the rights
set out in Articles 7 (1, 2 and 5); 8 (2b, c, f, g); 3 and 25 of the American
Convention on Human Rights (hereinafter the Convention), based on the facts and
legal grounds described in the complaint as follows: BACKGROUND:
The complainant, Hector Geronimo Lopez Aurelli, has been unlawfully
imprisoned since November 1975, when he was arrested on charges of having
committed politically motivated offenses.
Like other political prisoners in our country, who were tried before the
constitutional government took office, he was convicted in a trial conducted
without any legal safeguards by judges sworn to uphold the decrees issued by the
military dictatorship. Such judges
had neither the independence nor the impartiality needed for the full exercise
of due process.
The key evidence used to convict him were confessions obtained under
torture and, therefore, worthless, that were not ratified in court despite the
pressure exerted on the defendant. The witnesses were the same people who had
been his official captors and torturers.
The judicial investigation and lower-court decision were the
responsibility of a judge named Zamboni Ledesma, now dead, an acknowledged
accomplice of the military junta. This
alone is enough to explain the arbitrariness and unconstitutionality of the
judgment and the illegality of Hector Geronimo Lopez' continued imprisonment.
The constitutional government has done nothing about this illegality.
The defense filed several appeals that would have enabled the present
judiciary to review the case, but the rejection of these appeals and the length
of time spent by the Supreme Court of Argentina --nearly two
years-- to rule on the special appeal before it, amount to a
confirmation of the unfair conviction, thereby infringing the American
Convention on Human Rights and opening the way for a petition to the Commission
to redress this wrong. THE
TRIAL:
Hector Geronimo Lopez remains in prison serving an arbitrary and
unconstitutional sentence imposed on him under the military dictatorship. In
defiance of the law and of the appeals filed, he has been unable to secure from
the courts of the constitutional government a reversal of his conviction.
The unlawfulness of the imprisonment of the complainant and other
political prisoners tried during the dictatorship is a matter of public
knowledge in Argentina. This is borne out by the various declarations from
political parties, human rights commissions, and so forth. Noteworthy in this connection is the report by the General
Legislation, Interior, and Justice Committee of the Argentine Senate, which
refers specifically to this situation and states: "In view of the serious
and manifest irregularities in criminal proceedings which, for political, labor
or related policy reasons took place between March 24, 1976, and December 10,
1983 ... it is essential to review due process safeguards under Article 18 of
the National Constitution, a supreme value that should not be curtailed.
It is common knowledge that many political prisoners who remain in jail
were convicted or arrested under criminal statutes enacted through
decree-laws from the de facto authorities and under an OBVIOUS LACK OF
INDEPENDENCE BY THE JUDICIARY during this period, as evidenced by the violation
of Article 86 (5) of the National Constitution and the oath to uphold the
statutes enacted by the military junta, taken by those officials who remained in
office ... and the violation of constitutional principles has been duly
established ... the confessions and testimonies on which the convictions rest
were obtained through torture, provable at the time but not now, because of the
time gone by and the absence of timely expert medical examination.
This circumstance, as well as the systematic and permanent violation of
the right to due process, deprives these trials of any legitimacy ..." (cf.
Order of Business 436, Senate Committee, attached).
Similar pronouncements may be found in various bills introduced in the
Argentine House of Representatives to mandate a review of these cases, as well
as in the findings of the Meeting on the Status of Argentine Political Prisoners
held by the Bar Association of Buenos Aires.
Reasons of state or political timeliness unrelated to the enforcement of
individual human rights keep Lopez Aurelli and other political prisoners in
Argentine jails.
In the specific case of the trial to convict the complainant, the
following irregularities may be pointed out:
a. THE JUDICIAL
INVESTIGATION on which the conviction is based was conducted between November
and December of 1975 by the Police Information Service of the Province of
Cordoba (Intelligence D-2). It
may be noted that although the country had a constitutional government at the
time, this was not true of the Province of Cordoba, because in 1974 a
"putsch" headed by a Chief of Police deposed the elected
constitutional Governor, Dr. Obregon Cano.
This marked the beginning of numerous assassinations of political, labor,
and student leaders, among them the Deputy Governor, Atilio Lopez, and the
disappearance of many persons arrested by security and/or para-police
agencies (cf. CONADEP-Cordoba page 103/4).
In other words, when the judicial inquiry began, there were already in
the Province of Cordoba serious violations of human rights involving the
law-enforcement agencies. Later investigations showed that the Police
Information Service (Intelligence D-2) played a major role in these
illegal activities, as indicated in the CONADEP-Cordoba report, "It
was a torture center operating as such from at least 1975."
It is this center of torture, with the same personnel, that later
controlled the secret prison -- that is to say, the concentration
camp known as "Casa de Hidráulica," which cooperated with the camps
known as "La Perla" and "La Rivera."
These facts -- the role played by the investigating agency
-- are set out in detail on pp. 44 to 58 of the CONADEP-Cordoba
report, an official copy of which is attached.
Evidence corroborating this report may be found in the judicial dossier
titled "CONADEP s/denuncia," file 20-C 84 heard by Federal Court
No. 1 of Cordoba. These illegal
activities are also proven in the very proceedings in which Lopez was convicted,
which show that all defendants were tortured, as well as in the following
attached case files: WIELAND,
Alicia s/rev., medica su favor (case file 2-W-75);
ROSETTI DE ARQUEOLA s/den. supuestos apremios (case file
29-D-75); ROSETTI DE ARQUEOLA, Marta s/den. apremios ilegales
(case file 2-R-76); LOPEZ, Hector Geronimo s/den. apremios ilegales
(case file 2-L-76); AUDISIO DE QUIROGA, Ana Maria s/den/ apremios
ilegales (case file 2-A-76); QUIROGA,
Carlos Agustin s/den. apremios
ilegales (case file 1-Q-76);
VELASQUEZ, Raquel Aydee s/den. apremios ilegales (case file 2-v/2D76);
SALCEDO, Angel Ramon s/den. apremios ilegales (case file 2/2DS-76);
BORKOWSKY, Fanny G. s/den. apremios ilegales (case file 3/2DB-76); SILVA,
Juan Ricardo s/den. apremios ilegales (case file 3/2DS-76); FIERRO, Oscar
Alberto s/den. apremios ilegales (case file 7-1-76).
A reading of these case files shows not only the illegal activities of
the investigating officials but also the manifest complicity of the judiciary,
in this case Federal Court No. 1 of Cordoba headed by Zamboni Ledesma, through
Court Secretary Otero Alvarez, who acquitted the officials without
investigating.
b.
THE INVESTIGATING OFFICIALS: The
authenticity of the whole police proceedings is attested to and certified by the
following persons:
1.
Americo Ramano: Police
Commissioner, alias "GRINGO," as indicated in the CONADEP-Cordoba
report, was in charge of the Investigations Brigade Division.
"He was in charge of raids, arresting persons, and distributing the
loot stolen in these raids" (cf. p. 55 CONADEP report).
2.
Raul Telledin: alias "EL TURCO TELLE" [Telle the Turk],
identified as one of the heads of the "Comando Libertadores de
America" para-police agency that operated in Cordoba in 1975.
Chief of the Information Division of the Cordoba Police (Intelligence
D-2) since 1976, at which time the secret camp known as "Casa de
Hidraúlica" was run by that agency. Identified
as a torturer by many persons (cf. case files CONADEP-Cordoba), he figures
as a participant in the murder of the following political prisoners: MOSSE, Miguel Angel; FIDEI DE RABANAL, Diana; VERON, Luis
Ricardo; YUNG, Ricardo; HERNANDEZ,
Eduardo; SGAVUZZA, Jose.
3.
Police Commissioner Tissera, alias "Patilla"
["Sideburns"] and Police Commissioner Gomez Reta:
well-known torturers and participants in the abduction of many
citizens.
c.
The behavior of the judge hearing the case:
Dr. Zamboni Ledesma, the late judge who heard this case, had held his
office since before the military coup. He not only took an oath to uphold the
statutes enacted by the dictatorship but was at all times an accomplice of the
perpetrators of the genocide. Indeed,
in the Province of Cordoba the federal judges were fully aware of the existence
of concentration camps operating within their jurisdictions.
This may be seen from a variety of evidence in official documents, for
whenever a person was seized, the family members would usually file a habeas
corpus petition. In most
cases, the reply given by the military authorities to the requests for
information from the federal courts -- and in the City of Cordoba
there were only two such courts -- was negative; the person was not
in custody. Accordingly, the
petition was rejected. Later, in
the few cases in which the missing person was made to resurface through legal
channels and was brought before the courts, the judges never investigated where
the person had been, even though the dossiers indicated as the points of origin
"L.R.D. LUGAR DE REUNION DE DETENIDOS" [Prisoner Assembly Point].
In the case of "judge" Zamboni Ledesma, his complicity in the
murder of political prisoners who were in his charge also appears to have been
established. Thus, in the Cordoba
Penitentiary Unit, 28 political prisoners were murdered in 1976. Some of these
murders are described in the Report on the Situation of Human Rights in
Argentina issued by the Inter-American Commission on Human Rights on
4/11/80 (cf. p. 46 and ff, CIDH report).
The photocopies of public documents attached under the heading
"murdered prisoners" show that:
i.
the following persons, later killed, were in the charge of this
"judge" as detainees: FIDELMAN
DE RABANA, Diana, MOSSE, Miguel Angel; VERON, Luis Ricardo; YUNG, Ricardo
Alberto; HERNANDEZ, Eduardo Alberto, SGAVUZZA, Jose; FUNES, Jose Cristian;
SGANDURRA, Carlos; PUCHETA, Miguel Angel; TRAMONTINI, Ricardo Daniel; PAEZ DE
RINALDI, Liliana; DE BREUTL, Jorge Enrique; HUBERT, Oscar.
ii.
The "transfer" order, or its authorization, was always given by
this same court official (cf. the attached jail records).
iii. In the court dossier
-- to which third persons might have access -- there is
a different record: it certifies, in an obvious attempt to cover up murders,
that news stories report the death of the prisoner while trying to escape in the
course of the transfer. In every
case the action taken by the court was merely to ask for the death certificate
-- in which the cause of death was ironically stated to be shock
caused by hemorrhage-- and after notifying the prosecutor, the case
against the defendant was closed on account of death.
In the dossier pertaining to Lopez' conviction there are two cases of
murder, that of PAEZ, Liliana Felisa, the complainant's common-law wife,
and that of PUCHETTA, Jose Angel. They
are said to have tried to escape while being transferred for trial before a War
Council. "Judge" Zamboni Ledesma, who was responsible for
investigating the charges against them and had not declined jurisdiction,
ordered the case closed on account of death, as in the other instances.
In summary, the partiality of this "judge" may be seen not only
from his behavior in office but also from the case file itself:
1. He did not investigate the reported torture (see photocopies); 2. He
endorsed the murder of prisoners in his charge; 3. There is information in the
record about transfers of these prisoners to illegal camps while they were in
his charge (see photocopy); 4. He upheld the validity of statements obtained
under torture, claiming that the torture had not been proven ... and this after
having first barred any investigation; 5. There is proof of the violation of the
defendant's right to defend himself and to communicate with counsel, since
meetings between prisoners and lawyers were specifically prohibited (cf.
attached photocopies).
Lopez Aurelli eventually appealed his conviction.
The decision by the Court of Appeals, also made up of judges who were not
impartial, goes even so far as to uphold the torture, stating, in the face of
flagrant contradictions in the statements made by the defendants, the dates on
which statements had been given, and other records of the investigation, that
"as established by this Division of the Court in the "Vanella"
case, these are interrogations preceding the formal statements authorized under
the procedure to collect evidence and conduct inquiries in difficult
investigations, all the more so in times of disturbances such as those that
marked this period, and this explains the omissions or flaws in the
investigation" ... "and I note that, as in the instance dealt with
above in item V, there was a preliminary interrogation (that is to say, torture)
of Hector Lopez, recently arrested, as quickly as the situation demanded.
d.
The key witnesses in the preliminary inquiry, on the strength of whose
testimony Lopez Aurelli was convicted, were the following:
a. The torturers themselves:
Americo Romano and his staff (cf. photocopy of the court decision).
b. Others:
Kent Lopez and his wife Barrera de Lopez. They are listed in the dossier
as co-defendants. However, a
careful reading of the case file indicates that they were part of the staff of
the Police Information Division of the Province of Cordoba, for in the course of
five years they were never in any jail but were kept "under arrest" in
that Division as "collaborators in the effort to break up the PRT
Organization." (see attached photocopy of report). Furthermore, while the
other co-defendants remained incommunicado, were transferred to secret
camps and/or murdered, the woman Barrera de Lopez was authorized to remain at
the home of her mother-in-law because she was about to give birth
(cf. attached photocopy). In
addition, the Information Division of the Cordoba Police indicates that
"the above-mentioned persons were kept in facilities of the Regional
Unit of Villa Dolores, but that Unit of the penitentiary service reports that
"they were not kept or housed in this Unit at any time to this date"
(cf. p. 1099).
As a result of this mockery of a trial in which Lopez Aurelli was
subjected to the most horrifying torments, being first tortured (cf. attached
photocopy), his wife murdered, kept without an attorney for long periods of
time, having prefabricated evidence used against him, and being judged by a
judge who was himself a participant in government terrorism, the defendant was
sentenced to life in prison for allegedly perpetrating the following offenses:
possession of military weapons, possession of emblems of subversive
organizations, possession of materials intended for the manufacture of
explosives, and possession of a military weapon component, all concurrently;
kidnapping, homicide, and causing bodily injury. THE
APPEALS FILED AFTER THE CONSTITUTIONAL GOVERNMENT TOOK OFFICE IN ARGENTINA
Once the constitutional government was in place in the country, the
following appeals (copies of which are attached) were filed:
a.
Petition for parole: lodged
with Federal Court No. 1 in Cordoba. Along
with this petition based on the nullity of the proceedings and the elapsed time,
the defendant asked that the case be reopened on account of the
torture inflicted during the investigation.
The reopening of the case, either to take account of the new evidence
turned up by various investigations or to simply investigate what the court had
not investigated, would have led to the immediate release of Hector G. Lopez
Aurelli because there is no legal evidence against him.
Both motions, for parole and for reopening the case because of torture,
were denied by the lower court as well as on appeal.
b.
Petition to review the case:
heard by the Federal Court of Appeals of Cordoba, based on:
1. More favorable criminal
provisions under the new legislation enacted in the country.
Denied, on the grounds that the new legal provisions did not apply to
offenses carrying an accessory penalty of life in prison.
2. The discovery of a
crucial document hitherto unknown, as provided for in Article 443 of the
procedural law. The document was the testimony given before international
agencies by a former guerrilla who later joined the Police Information Service
in Cordoba. This document was
corroborated by submitting other evidence or identifying judicial case files
where such evidence could be located. These
pieces of evidence as a whole showed the coordinated action carried out by the
armed forces, the police and the judiciary and the repression that took place in
the Province of Cordoba, and made a specific mention of the proceedings in which
the defendant had been convicted. The
grievous nature of these facts, which involved current officials of the
judiciary, led to the rejection of the petition for review as well as to
penalties repeatedly imposed on the defendant's attorney, Dr. Ines Valdes de
Lazcano, for trying to secure recognition of her client's rights.
The judge hearing the case even visited Lopez Aurelli in the Penitentiary
Unit and advised him to change attorneys, claiming "untidiness on the part
of your lawyer" (cf. photocopy of page).
This "untidiness" of his attorney boiled down to her:
1. Having asked the current federal judge, Dr. Rodriguez Villafane, to
disqualify himself because, though only recently appointed, he had been a
government official at the time of the events, and in October 1978, as a
university professor, had signed an open letter addressed to the United States
Ambassador to Argentina, Mr. Raul Castro, stating that to criticize Argentina
for its human rights record was to meddle in the country's internal affairs, and
describing as "anti-Argentine" the campaign to protect human
rights (evidence attached); 2.
Having requested the removal of Secretary Otero Alvarez, the same who held that
office since the opening of the trial and who was a participant in the
irregularities denounced. 3. Having
requested that the prosecutor of the Court of Appeals, Dr. Ali Fuad, should be
removed from the investigation because he had been challenged for cause in the
case of "Fermin Rivera s/denuncia," in which the murders of the
political prisoners held in U.P. No. 1 were being looked into.
The same situation was being repeated in this case, because the lower
court prosecutor was shown to have condoned the murders, including that of the
common-law wife of the defendant. 4.
Objecting to the failure to notify the defendant of the composition of the
Court, which precluded her challenging one of its members.
A review of this case would have made it necessary to investigate the
behavior of part of the present judiciary. Excessive formal rigor was used to
uphold my unlawful imprisonment. When
these appeals were turned down, denial of justice complaints were filed with the
Supreme Court of Justice in February 1985.
These remain undecided (cf. attached record). FULFILLMENT
OF THE REQUIREMENTS FOR ADMISSIBILITY OF COMPLAINTS UNDER THE CONVENTION
a.
Term: the unlawful
imprisonment of Lopez Aurelli is an ongoing crime; accordingly, each moment he
remains jailed entails a violation of Article 7 of the American Convention on
Human Rights.
b.
Exhaustion of internal remedies: The
two petitions --parole and review-- that were filed in
an effort to put an end to the illegal imprisonment were rejected by the lower
and the upper courts, the latter dismissing the special appeal based on
unconstitutionality and arbitrariness that was lodged against those decisions.
That is why a denial of justice complaint was filed directly with the
Supreme Court (this being a non-mandatory appeal).
Although nearly two years have passed since it was filed, and although a
petition to expedite a decision was submitted in December 1985, no ruling has
been handed down. This is an unwarranted delay and opens the way for this
application under Article 46-2-b.
c.
Reservation expressed by the Argentine Government: Lopez Aurelli's
illegal jailing and the actions of the judiciary
upholding his imprisonment are events that took place after the Convention was
ratified; accordingly, the irregularities in that trial and the ensuing unlawful
imprisonment are not covered by the reservation made by Argentina. THE
INFRINGED RIGHTS Article
7 (3): NO ONE SHALL BE SUBJECT TO
ARBITRARY ARREST OR IMPRISONMENT. Inasmuch
as the imprisonment dealt with here is the result of an apparent trial that was
actually devoid of all due process safeguards and was heard by no impartial
judge, the decision by the Argentine courts to bar its review is a confirmation
of the arbitrary imprisonment. Article
8: EVERY PERSON HAS THE RIGHT TO A
HEARING, WITH DUE GUARANTEES, BY A COMPETENT, INDEPENDENT, AND IMPARTIAL
TRIBUNAL. For the sake of brevity, on this point I refer to the above. Article
8.2: THE RIGHT OF THE ACCUSED TO
DEFEND HIMSELF PERSONALLY OR TO BE ASSISTED BY LEGAL COUNSEL OF HIS OWN
CHOOSING, AND TO COMMUNICATE FREELY AND PRIVATELY WITH HIS OWN COUNSEL.
The violation of this right, which took place during the trial now
implicitly upheld, derives from the following evidence:
a. The report by that
Honorable Commission on the situation of human rights in Argentina, 1978; b. The conditions under which the defendant was imprisoned.
Attached are copies of the regulations to which he was subject, which
specifically prohibit visits from attorneys; c.
The records on page ... which show that at some moments not even the
judge knew where he was being sent as a hostage; d.
Bills introduced in the Argentine Congress, particularly the message
introducing bills that deal with the review of trials of political prisoners,
and the report from the General Legislation committee of the Argentine Senate
(cf. attached documents). Article
8.2.g: THE RIGHT NOT TO BE
COMPELLED TO TESTIFY AGAINST HIMSELF OR TO PLEAD GUILTY.
This is shown by the complaints filed in due course by all defendants in
that trial (a copy of which is attached), from the records on page ... of the
judicial case file, and from the CONADEP-Cordoba report. Article
8.3: A CONFESSION OF GUILT BY THE
ACCUSED SHALL BE VALID ONLY IF IT IS MADE WITHOUT COERCION OF ANY KIND.
In this case, the basis for the conviction was the "confession"
extracted in a torture center and never ratified in court. II.
By note dated January 9, 1987, the Commission asked the Argentine
Government to provide the relevant information, conveying to that Government the
relevant portions of the complaint (Article 34, 1 c of the Regulations).
A copy of that note was sent on the same sate to the Ambassador,
Permanent Representative of Argentina to the OAS.
On January 9, 1987, the complainant was informed of the initial steps
taken in connection with his complaint. III.
By note dated April 10, 1987, (No. 107) the Government of Argentina asked
for an extension of the time set in the note of January 9, 1987, to answer the
request from the IACHR.
In response to the above request the IACHR granted the Argentine
Government an extension of 60 days, which was communicated to that Government by
note of April 13, 1987. IV.
By note of June 11, 1987, (No. 212) the Argentine Government replied to
the note of January 9, 1987, providing the following information: The Government of the Argentine Republic has
the honor to address the Executive Secretary of the Inter-American
Commission on Human Rights with regard to the communication dated January 9,
1986, concerning Case No. 9850 on the situation of the Argentine citizen, Hector
Geronimo Lopez Aurelli, and to provide the following answer without prejudice to
such other clarifications as the Commission may see fit to request:
I. Mr.
Hector Geronimo Lopez Aurelli has been imprisoned since November 1975 and is now
at the INSTITUTO DE DETENCION DE LA CAPITAL FEDERAL [Federal Capital Detention
Institute] (U.2).
Mr. Lopez Aurelli has been convicted under a final decision from the
courts. In the lower courts, on
November 25, 1979, he was sentenced by Federal Court No. 1 of Cordoba to life
imprisonment for the following offenses: possession
of military weapons and munitions, possession of emblems of subversive
organizations, possession of materials intended for the manufacture of
explosives, all concurrently, aggravated kidnapping, primary participation in
the crimes of aggravated homicide and serious bodily injury, and commission of
the crime of aggravated conspiracy, all separately (Article 2 (C) and Article 3
(A) of Law 20840 and Articles 189 bis (3) and (5), 142 bis, 80 (4), 90, 281, 213
bis, 55, 54, and 46 of the Criminal Code, and was sentenced to a term of life in
prison on October 16, 1980. On
appeal, the Federal Court of Appeals of Cordoba, Division A, confirmed the
decision. Subsequently, the
defendant filed a special appeal with the Supreme Court of Justice, but the
Federal Court of Appeals of Cordoba ruled it inadmissible, at which point Mr.
Lopez Aurelli filed with the Supreme Court a special application based on denial
of justice, which application was again held inadmissible by that Court on
September 10, 1981. This made the
judgment by the Federal Court of Appeals of Cordoba final.
It may be noted that under law 23070 enacted by the constitutional
government, which establishes a special system to compute sentences served
between 3/24/76 and 12/10/83 and shortens sentences, Mr. Lopez Aurelli will be
held to have served 20 years in prison on February 14, 1988, at which time he
will become eligible for parole (Article 13 of the Criminal Code).
II. When
constitutional government was restored, Mr. Hector G. Lopez Aurelli filed the
following appeals: a. Petition for parole and the reopening of his
case, which was denied by the lower court --Federal Court No. 1 of
Cordoba -- and then by the upper court, Division A of the Federal
Court of Appeals of Cordoba, on November 30, 1984. b. Application for review based on Article 551
of the Code of Criminal Procedure, which was rejected by the Federal Court of
Appeals of Cordoba on November 12, 1984. c. Subsequently, Mr. Lopez Aurelli lodged two
special appeals with the Federal Court of Appeals of Cordoba, but the latter
rejected them both, whereupon Lopez Aurelli went directly to the Supreme Court
of Justice and filed two complaints, one concerning the application for review
(L.202) and one concerning the petitions for parole and the reopening of the
case (P.246).
III. Although
it is true that the conviction has become final, Argentine Law provides for an
exceptional remedy --the review of res iudicata decisions
--for situations in which, after judgment has been rendered, there
is a discovery, for instance, of "documents that are decisive or were
unknown, misplaced or made unavailable by force majeure or by the accusing
party" (Article 551 of the Code of Criminal Procedure).
Thus, the appeals that have been lodged may have decisive consequences on
the legal status of the defendant, if a decision should be made to review the
judgment. When asked about the matter, the Supreme
Court of Justice indicated that it had the case under review and would soon
issue a decision.
IV. In light
of the above, the Argentine Government believes there is no evidence that the
constitutionally established judiciary and, therefore, our Government, has
failed to comply with any of the provisions of the American Convention on Human
Rights mentioned by Mr. Lopez Aurelli in communication No. 9850. Nevertheless and, notwithstanding the
contents of the next paragraph, the Argentine Government remains at the service
of that Honorable Commission to supply any information deemed necessary.
V. Accordingly,
and bearing in mind that the above-mentioned appeals are being heard by
the Supreme Court of Justice, the Argentine Government requests that
communication No. 9850 be ruled inadmissible because it does not meet the
requirements of Article 46 (a) of the American Convention on Human Rights,
inasmuch as the domestic remedies available under Argentine law have not been
exhausted.
V.
By note dated June 18, 1987, the Commission conveyed to the complainant
the pertinent portions of the reply from the Argentine Government, asking him to
submit any comments or observations within 45 days.
VI.
On August 24, 1987, the applicant filed the following comments on the
reply from the Argentine Government:
I. The
contents of the note from the Argentine Government corroborate the substance of
my complaint. The Argentine Government attributes res iudicata status to
the decision handed down in the mockery of a trial I was made to go through.
In so doing, the Government confirms each and every one of the
irregularities denounced, which perverted that trial and turned my imprisonment
into unlawful confinement, in violation of our laws, our constitution and
international treaties such as the American Convention on Human Rights.
II. The
Argentine Government does not dispute any of the charges made by me, which are
self-evident in the judicial case file I impugn and which are as follows:
a. The
absence of an independent and impartial judge: the facts on which I based this
assertion have not been expressly denied; a judge who turned other
co-defendants over to the military of the dictatorship in order that they
might be murdered, clearly showed by his own behavior his lack of impartiality. b. I
was prevented from communicating freely and in private with my attorney. c. Nor
does the Argentine Government say anything about the evidence on which my
conviction rests: depositions from my torturers and an alleged
"confession" also obtained under torture in a secret prison, a prison
on the operation of which the Commission as well as the Argentine Government
have abundant information. That
confession was not even ratified by me in court.
Of all these things I provided ample evidence, including public documents
such as: the newsletter from the Senate, the report by CONADEP
(National Commission on Missing Persons in Cordoba), photocopies of court and
administrative dossiers, about which the Argentine Government is silent except
for its statement that I have been convicted by a final judgment from the
courts. d. May
I point out to that Commission that this argument about "criminal res
iudicata" now yielded against me and the other political prisoners
convicted during the military dictatorship and still in prison, is not to be
found in the case law of the Supreme Court of Justice of Argentina, as I will
now explain. Our highest court has
held that "the concept of res iudicata, like all legal concepts, must rest
on foundations consistent with constitutional rights and guarantees"
(Judgment 238:18). In another
decision (281:421) the Court adds: "the praiseworthy motives that inspired
it (res iudicata) are not absolute and must yield before the need to reaffirm
other constitutional legal values." No immutable validity can be attached to judgments that are not preceded
by a regular trial conducted with all due process safeguards (see Argentine
Supreme Court decisions 279:74-281:421-283-66).
To accept the contrary, as the Argentine Government reasons when arguing
the unchangeable nature of res iudicata, is to favor the accessory over the
principle, over the substantive provisions designed to protect people from the
acts of such tyrants as may at times seize power. The reply from the Argentine
Government is driven by political motives that have little to do with the law. e. In
paragraph II. the Argentine Government acknowledges that I petitioned for a
reopening of the case and for parole, both petitions being rejected by the
Federal Court of Appeals of La Plata on November 30, 1984; that I applied for a
review of the final judgment and was also turned down on November 12, 1984; and
that within 15 days of notification of these two decisions I filed a special
appeal with the Supreme Court, which has kept the matter before it for more
than two and a half years without any decision, thereby infringing the
right of every person under Article 25 of the American Convention on
Human Rights to a simple and prompt recourse or any other effective recourse
for protection against acts that violate his fundamental rights
recognized by the constitutional laws or by this Convention. f.
Accordingly, in view of the time the Supreme Court has allowed to pass
without deciding the appeals lodged with it, and the violation of human rights
embodied in the fact that nearly four years after the constitutional government
took office (Article 46 (2) C) I remain in prison, it is proper and fitting, and
I so request, that the complaint be ruled admissible and that inasmuch as the
nature of it precludes a friendly settlement (Article 45 (7) of the IACHR
Regulations) the report prescribed by Article 50 (1) of the American Convention
and Article 46 of the CIDH Regulations be drafted and sent to the parties,
recommending a review of the trial in which I was convicted, after my immediate
release by the Argentine Government. VII.
In a letter dated September 28, 1987, the Commission acknowledged receipt
of the communication from the complainant.
Furthermore, on September 19, 1987, the complainant's representative to
the IACHR delivered the following comments on the legal issues in this case:
... Mr. Lopez, convicted of activities termed "subversive"
during the military dictatorship, is one of the seven political prisoners who
remain jailed since then, nearly four years after a democratic government took
office.
His application for review of the judgment, filed in the form of a
special appeal to the Supreme Court, has remained before that Court for nearly
three years without any ruling, even though the defendant denounces extremely
serious flaws in the conduct of his criminal trial that ignore the most
elementary due process safeguards. According to our information, the delay is
due to the Supreme Court's request for information on the hearing conducted in
connection with the complaint about torture, which the defendant filed with the
federal courts in Cordoba when the charges against him were still being
investigated by the courts. Because of this inexcusable delay, I
reiterate my request of August 24, 1987, that the Honorable Commission rule this
case admissable, stating that its nature precludes a friendly settlement
(Article 45 (7) of the IACHR Regulations), and that the Commission prepare the
report stipulated in Article 50 of the Convention, including the recommendation
to the Argentine Government to have the case reviewed by the courts. VIII.
On September 10, 1987, the Commission acknowledged receipt of this
communication from the representative of the complainant. IX.
By note of December 18, 1987, the Commission reiterated to the Government
of Argentina its request for the available information on the legal status of
Mr. Hector Geronimo Lopez Aurelli, particularly on the complaint he had lodged
with the Supreme Court seeking a review of his case and, in the meantime, his
parole. The pertinent portion of
that note reads as follows:
By note of June 11, 1987, (No. SG 212 (2/7/17) the Government of
Argentina supplied information relevant to this complaint, which information, to
sum it up, showed that the case was before the Supreme Court in the form of an
application filed by the complainant seeking a hearing of his request for review
as well as of the applications for parole and the reopening of the case.
The note added that the Supreme Court, when consulted about the matter,
indicated that it had the case under consideration and would soon rule on it. Subsequent information received by the
Commission indicates that no progress has been made in those proceedings and
that the application has been before the Court "has remained before that
Court for nearly three years without any ruling, even though the defendant
denounces extremely serious flaws in the conduct of his criminal trial that
ignore the most elementary due process safeguards," and that, furthermore,
the "delay is due to the Supreme Court's request for information on the
hearing conducted in connection with the complaint about torture, which the
defendant filed with the federal courts in Cordoba when the charges against him
were still being investigated by the courts." all of which would be
inexcusable, according to the complainant, and would not justify keeping this
matter unresolved before the highest Argentine Court.
In view of the foregoing and of the fact that the Commission has received
from Your Excellency's Government no information on the outcome of the appeals
to the Supreme Court, may I ask that Your Excellency take the appropriate steps
as soon as possible to furnish this Commission with current information on the
legal status of this case, in order that the Commission may make an informed
ruling on the matter at its next regular session scheduled for mid-March
1988. X.
The Argentine Government did not reply to the above communication, a copy
of which was conveyed to the Argentine mission to the OAS on November 30, 1987.
However, by note dated February 22, 1988, (VS11-2.7.17) the
Government advised the Commission that by order of Federal Court No. 2 of
Cordoba Mr. Lopez Aurelli had been paroled. AND
WHEREAS:
1.
The complaint in Case 9850 meets the formal admissibility requirements of
Article 46.d of the Convention and Article 32,a, b, and c of the Regulations of
the Commission.
2.
The subject of the petition is not pending in another international
proceeding for settlement, as provided for in Articles 46 c of the Convention
and 39 a of the Regulations.
3.
The petition in Case 9850 does not duplicate one pending or already
examined by the Commission (Article 39 b of the Regulations).
4.
The complainant Hector Geronimo Lopez Aurelli was sentenced in the lower
courts on November 25, 1979, by a decisions of Federal Court No. 1 of Cordoba,
to life in prison for the offenses he was charged with in the trial; that on
October 16, 1980, the conviction was upheld on appeal to the Federal Court of
Appeals of Cordoba, which affirmed the 1979 conviction by Federal Court No. 1.
Subsequently, the complainant filed a special appeal with the Supreme
Court of Justice of Argentina, which appeal was ruled inadmissible by the
Federal Court of Appeals of Cordoba. Finally,
the complainant lodged a special complaint with the Supreme Court of Justice,
which, in turn, rejected it as inadmissible on September 10, 1981.
Thus, the decision of the Federal Court of Appeals of Cordoba became
final.
5.
In addition, the complainant has filed the following appeals: i. a
request to have the case reopened and to be granted parole, which was rejected
by the Federal Court of Appeals of La Plata on November 30, 1984; ii. a request
for review of the final judgment, which was rejected on November 12, 1984; and,
iii. a special appeal to have the decision reviewed, filed with the Supreme
Court of Justice of Argentina and said to have been denied on February 18, 1988,
according to the additional information furnished by the applicant in his letter
of March 3, 1988.
6.
Furthermore, the record shows the following:
a.
The key evidence against the defendant is said to have been confessions
obtained under torture and "therefore worthless, that were not ratified in
court despite the pressure exerted on the defendant," and "the
witnesses were the same people who had been his official captors and
torturers"; b. The judicial investigation of this matter is said to have been carried out not by the competent j |