THE RIGHT TO LIBERTY1
A. General Considerations
1. The preamble to the Argentine Constitution states that one of its basic objectives is “to secure the blessings of liberty to ourselves, to our posterity and to all men in the world who wish to dwell on Argentine soil.”
Article 15 stipulates that there are no slaves in Argentina, and that any sale or purchase of persons is a crime. Article 28 establishes that nobody may be arrested except pursuant to a written order from the proper authorities.
Article 23 of the Constitution says that during a State of Siege, constitutional guarantees are suspended, but the President shall not convict or apply punishment upon his own authority, and his power shall be limited with respect to persons, to arresting them or transferring them from one point of the nation to another, if they do not prefer to leave Argentine territory.
2. Since the present government came to power, certain laws have been enacted that affect the right to liberty.
These restrictive laws include first, the Statute of June 18, 1976 on the conduct of persons responsible for harming the supreme interests of the nation: it establishes that the Military Junta shall determine to whom the Statute applies and what measures are to be taken; these measures include confinement in a place determined by the Executive, while such persons are at its disposal.
The Institutional Act of September 1, 1977, was subsequently enacted, Article 3 of which provides that “an arrest ordered by the President in exercise of the powers granted him under Article 23 of the Constitution may be carried out:
Article 3 of the Statute provides that the President is responsible for indicating the manner in which the arrest will be carried out, taking into account the circumstances of the case and the person’s background.2
Law 21.650 of September 26, 1977 regulates the Institutional Act mentioned above. Chapter one establishes the rules to be followed in making the arrest.
Article 5 of the Law indicates the way in which the system of supervised liberty is to operate.
Article 7 regulates house arrest. The Presidential Decree ordering this form of arrest shall indicate the house where the person must remain, and the military, security or police authority that will supervise the arrest. Lastly, Article 8 states that persons who are in this situation may not move from their fixed domicile and must refrain from holding meetings of any type, except those that are merely family reunions.
Any failure to comply with the conditions set for the supervised liberty and house arrest system will be punished with a six-month to eight-year prison term.
3. The present detention rules under Argentine law, together with the other provisions enacted to suppress subversion, and particularly those that create certain types of crimes and increase sentences, limit the right to liberty. This legal framework, added to invocation of Article 23 of the Constitution, under which the Executive has ordered detention of all persons linked to subversion or with possible links to subversion, patently restricts individual freedoms. While it is true that the Argentine Constitution places no time limit on detentions ordered by the Executive, and prohibits sentencing by the President himself, this type of detention has in practice become a true penalty, without legal due process, since individuals are kept indefinitely under the Executive (PEN).3
The detention of individuals for an indefinite time, without specific charges, without trial, without defense counsel, and without effective means of defense, is a violation of the right to liberty and to due process of law. This is all the more serious if we bear in mind that in many cases, the detainees have been tried and their cases dismissed by the civil or military courts, and they are nonetheless still detained by orders of the Executive. The same situation occurs when individuals have completed their sentence, but despite this, they continue to be detained sine die. In all these cases, it must be understood that while Article 23 of the Constitution grants the President the power to order the detention of persons whom he believes constitute a danger to the public order, nonetheless, this power cannot be used at his discretion, but must be limited to the time needed for a background investigation and then the person must be placed under the authority of either the civil or the military court which has jurisdiction, depending on the case. To maintain that the Executive may prolong detention indefinitely, without bringing the person to trial, would mean converting the Executive into a part of the judiciary, and thus destroying the separation of powers structure characteristic of a democratic system.
The Supreme Court and the Buenos Aires federal Courts of Appeal have reiterated their opinion in a number of rulings that the principle of “reasonableness” must be used in determining whether the detention is or is not indefinite or justified and whether the person has been able to exercise his right to a legal defense. Thus, judges have been urged to request reports from the competent authorities, not only on procedures used to investigate the status of disappeared persons, but also to ascertain whether or not specific charges have been brought against persons detained at the disposal of the Executive.
1. The Commission has received a significant number of denunciations stating that there has been prolonged detention of individuals placed at the disposal of the Executive, in exercise of the exceptional powers granted the President under the State of Siege, in Article 23 of the Constitution.
According to the denunciations and information in the possession of the Commission, the situation with regard to these detainees can be classified as follows:
2. The Commission has been processing the denunciations filed in accordance with its Regulations, and has transmitted the pertinent parts to the Argentine government, requesting the corresponding information, in order to determine the legal status of the detainees.
During its on-site observation, the IACHR expressed its concern about this problem to the highest authorities, as it has done in cases in other countries, emphasizing that detention for prolonged periods without due process is in violation of human rights, because it means imposing a real penalty that violates the rights to liberty, justice and due process.
In its replies to the IACHR, both before and during the visit, the Argentine government recognized that there were detainees under PEN, but denied that the detention was arbitrary, referring to the powers granted to the Executive during a State of Siege, and the need to wipe out subversion, in the name of national security.
It is important to note that most of the detentions occurred in operations intended to combat subversion, and that they were similar to those mentioned in Chapter three, in reference to the disappeared. The IACHR is also concerned over the information, denunciations and testimony received during its on-site observation,4 which allege that during the initial stage of apprehension, some of the detainees were not officially recognized, they appeared as disappeared or lived in the same places (in most cases, without full identification) as persons who today are listed as missing.
Some examples based on the denunciations and information received are given below as an illustration of the topic at hand.
a. Persons detained at the disposal of PEN without trial
The following have been or are under this type of detention:
3. Case 2088A – Hipólito SOLARI YRIGOYEN
The Argentine Government, in a note dated February 27, 1979, replied to the Commission denying actions attributed to it in the resolution. Some of the Government’s considerations are:
With regard to the observations of the Argentine Government regarding the case of former Senator Hipólito Solari Yrigoyen, the Commission considers that revoking Resolution 2088A is unwarranted, for the following reasons:
a) The kidnapping of Dr. Hipólito Yrigoyen presents the same characteristics as most of the military operations carried out in Argentina by forces acting with the knowledge of the government authorities.
b) Although Dr. Solari Yrigoyen did not denounce to the authorities that he had been tortured, it is clear that there were not sufficient guarantees for him to come forward with such denunciations. The Supreme Court in the Pérez de Smith, et al. case, stated that, in effect, a situation of deprivation of justice existed due to causes beyond the control of the Judiciary.
c) Although the Government says that on August 30, 1976, the Federal Police succeeded in obtaining the release of Dr. Solari Yrigoyen, he was not in fact released, but was led to a place of detention, and on September 1, 1976, through Decree 1878, he was placed at the disposition of the Executive, and was detained until he was granted the option to leave the country.
d) It was stated that Dr. Solari Yrigoyen was involved in subversive activities, but although proceedings were begun, they were dismissed, and he remained in detention without being charged until he was granted the option to leave the country; and
e) The Government of Argentina in its reply to the Commission acknowledges that if Mr. Solari Yrigoyen legally returns to Argentina, he will again be detained unless the warrant for his arrest is invalidated, which represents a violation of the right to residence, particularly since Dr. Solaris’ case was dismissed by the lower court Federal Judge and there are no proceedings pending against him.
In a note dated August 2, 1978, the IACHR asked the Government to indicate if charges had been brought against Dr. Taiana.
On August 6, 1979, the Commission again addressed the Government o request additional information.
The Government of Argentina informed the Commission in a note received on March 27, 1980, of the following:
During its on-site observation, the Commission interviewed Dr. Taiana in the military prison of Magdalena, and had the opportunity to speak at length with him.
5. Case 2114 – Dora GOLDFARB and Pedro LUCERO
The Commission received the following denunciation:
The Commission asked the Government for information as to the reasons for Mrs. Goldfarb’s initial detention in an institution for common criminals. The claimant later informed the Commission that Mr. Pedro Lucero had been released. Lucero’s wife finally obtained authorization from the Government to leave the country. The claimant alleges that during their detention they were submitted to inhumane treatment and were cruelly tortured.
In a note dated February 4, 1977, the Government replied:
On the other hand, the Executive released Pedro Lucero under Decree 3472 of December 29, 1976.
Subsequently, in a note dated May 9, 1977, the Government of Argentina advised the Commission that the detainee, Dora Goldfarb, had left the country.
The victims are now at liberty. Mrs. Lucero was detained for almost one year without charges having made against her and without due process of law.
The Commission, currently considering this case, asked the Government for additional information on May 2, 1979. With reference to this request, the Government informed the Commission as follows:
This case is still under the consideration of the IACHR.
6. Case 2127 – Gustavo WESTERKAMP
At its 46th Session, the Commission adopted a resolution on this case. The background to the case states the following:
The IACHR is currently processing this case as prescribed by its regulations, but advises that at present the Government’s reply does not refute the events denounced.
c. Detainees at the disposition of the Executive (PEN) whose cases have been dismissed by the courts
8. Case 3905 – Norberto Ignacio LIWSKY
The IACHR received the following denunciation on February 27, 1979:
In a note received by the Commission on March 27, 1980, the Government of Argentina replied as follows:
During its visit, the Commission obtained a certified copy of the judgment rendered by federal Judge Dr. Marín Anzoátegui, on July 20, 1979, which dismisses the case and orders that Mr. Liwsky be released. Nevertheless, he is still being detained at the disposition of the Executive at Unit 9 in La Plata. The Commission had the opportunity to interview Mr. Liwsky in that prison.
9. Case 3382 – Mario Raúl BELSUZARI
The IACHR received the following denunciation:
In a note dated August 21, 1979, the Argentine Government replied as follows:
At the present time, the Commission is processing the case in accordance with its Regulations. According to a note received from the Argentine Government, dated December 4, 1979, Mr. Belsuzari left the country for Sweden.
d. Detainees at the disposal of the PEN despite having completed their sentence
Among the denunciations received by the IACHR on individuals who continue to be detained even though they have completed the sentence imposed against them, the following may be mentioned:
10. Case 3422 – José Luis MEDELA
On October 17, 1978, the IACHR received the following denunciation:
The Argentina Government in August 1979 replied to the IACHR’s requests for information. The principal parts of that reply state the following:
During its visit, the IACHR was able to confirm that in fact the detainee was at last authorized to leave the country.
11. Case 3390 – Hugo Rubén PERIE
The Commission received the following denunciation:
In response to the Commission’s request for information, the Government replied in a note dated October 17, 1979, from which the following excerpt is taken:
e. Detainees held at the disposition of PEN, who have been sentenced
During its on-site observation, the Commission visited various prisons where it spoke with a number of detainees who initially were held at the disposal of the Executive (PEN) and were later tried and sentenced by civil or military courts. One significant case history is described below:
12. Case 3917 – Horacio Oscar SARAGOVI
On February 22, 1979, the following was denounced:
In a note received on March 27, 1980, the Government of Argentina replied to the Commission as follows:
A) Horacio Oscar SARAGOVI was found guilty on March 28, 1977, by Standing Special Military Tribunal Nº 1/1 and condemned to a sentence of six years of confinement as a criminally liable co-author of the crime of “alteration of the public order” and “incitement to group violence” and as author of the crime of “violence against the police force,” as a compound offense.
That sentence, which followed another that was declared null and void by a higher court, was in turn confirmed by the Supreme Tribunal of the Armed Forces; the complaint lodged before the Supreme Court in connection with that judgment was rejected in a decision handed down on November 9, 1978.
B) Hence, this is merely the legitimate action of the competent jurisdictional organ—specifically a military tribunal—in accordance with the legislation in force, by virtue of which the highest judicial organ of the nation even intervened.
The Commission has continued to process the case, and notes that in its judgment the Government’s reply does not sufficiently clarify the matters denounced; it is hoping for an elaboration and clarification of the allegations made.
1. The Argentine Constitution makes provision for the right to opt to leave the country as a temporary alternative for those individuals who, during a state of siege, prefer to leave Argentina rather than be arrested or transferred from one place to another at the disposition of the President, pursuant to the exceptional powers conferred upon him by the Constitution during those limited situations when the constitutional guarantees are suspended.5
2. On the basis of an analysis of the right of option, it can be said that this right has been seriously affected in two ways: 1) the Argentine Constitution grants this right unconditionally, as an alternative that an individual, arrested at the order of the Executive (PEN) has to resolve his situation; Law 21.339, on the other hand, has converted it into a merely discretionary power of the Executive, which contradicts both the letter and the spirit of the Constitutional provision; and 2) the Argentine Constitution provides that during a state of siege the President cannot impose punishment; but the option to leave the country, set forth constitutionally as a temporary solution, has been converted, through these regulations, into a double penalty. On the one hand, the delay in granting it—because of the troublesome processing and the unlimited judgment conferred upon the public authority in this regard—means that the detainee remains deprived of his freedom for too long a period of time; on the other hand, once the option is granted, exile is prolonged insofar as a voluntary right becomes a forced imposition for the duration of the State of Siege at the national level.
It should be added that the Government has confirmed, and said as much to the Commission during the on-site observation, that the subversive activity has been brought to an end and that the country enjoys tranquility and security, which is sufficient reason to contend that an indefinite prolongation of the state of siege is not justified. It should be added that, pursuant to the regulations in question, the individual who has opted to exercise the option to leave the country brings upon himself the threat that if he returns he will be punished by confinement.
3. Through the Statute of March 24, 1976, the right of option set forth in the Constitution was suspended; five days later, on March 29, any requests submitted prior to that date were declared invalid. Later, this suspension was extended, exercise of the option re-established, and then qualified through a set of regulations that made obvious the ostensible violation of this constitutional right.6
4. The Commission has sufficient information on cases of individuals who have been detained and who have repeatedly filed requests to exercise the right to leave Argentina, requests that have been delayed or refused on numerous occasions. There are also cases of individuals who have served their sentences, and then have been placed at the disposal of the Executive (PEN), so that they remained in prison, and who, under such circumstances have on a number of occasions requested the option only to be refused.
During the on-site observation the Commission, through its respective investigation, was able to confirm cases such as those mentioned below, both through the documents and testimony presented to it, and during the visits it made to the various prison centers in the country. Among others, the following examples may be mentioned:
a. Alberto Schprejer, detained in 1976, is in Unit 9 of La Plata, at the disposal of the Executive. No decision has been made on his request to leave the country; he has been granted a visa by the Government of the United States of America.
b. Luis Jorge Toledo, detained in 1976, is in Unit 9 of La Plata. He has a visa for the United States of America, but the time period for requesting the option expired in September 1979, without any decision being taken.
c. Rubén Alberto Rissi, detained on October 21, 1976, has been in the penitentiary in Mendoza Province for a number of years. No decision has been made on his request to leave the country; he has a visa for Spain.
d. Hebe Margarita Tizio, is being detained at the disposal of the Executive in Villa Devoto Women’s Prison. Her request to opt to leave the country has been denied.
e. Graciela Santucho, is being detained at the disposal of the Executive in Villa Devoto Women’s Prison, even though she has already served her sentence. She has a visa for Germany, but no decision has been reached on her request to leave.
f. Hugo Rubén Perie, completed a sentence of four-years imprisonment on July 22, 1979, but is still in detention. He was denied permission to exercise the right to leave the country as the Government was of the opinion that he constituted a real threat to domestic tranquility. He is in Rawson Prison.
g. Domingo Francisco Barbetti, was detained on February 26, 1976, the proceedings against him were discontinued in 1978, and he was then placed at the disposal of the Executive. He has requested the right to exercise the option, and has a visa for Sweden, but he has not yet been granted permission to exercise that right.
h. Gustavo Westerkamp, was detained in 1975 while he was preparing to do his military service. On two occasions he has been denied the right to leave the country to go to France.
i. Sebastian Ferrer, detained in 1975, is now being held in Unit 9 of La Plata. The proceedings against him were postponed in December of that year and he was placed at the disposition of the Executive. He is in possession of a visa for Sweden, but his request for the option to leave the country has been rejected on two occasions.
5. Through their diplomatic representations in Argentina, a number of countries have granted visas to hundreds of detainees. Special mention should be made of the case of the Embassy of Sweden which, as of September 14, 1979, had lists containing the names of 500 individuals to whom the Swedish Government had granted visas during the period 1978 to 1979, as they satisfy the requisite legal requirements, inter alia Law Nº 21.650 of September 26, 1977, in light of which the diplomatic representation of Sweden has issued the necessary papers.
When analyzing the administration of this right, it can be shown that, in some cases, the receiving countries set quotas for the admittance of detainees and that at the present time the number available through such quotas is greater than the number of requests granted by the Government of Argentina.
6. On September 6, 1979, the Ministry of the Interior made public a report on a number of aspects, in connection with this topic which the Minister delivered during his interview with the Commission. The report indicated that 779 requests for options to leave the country had been granted in accordance with Laws 21.449 and 21.650 of October 27, 1976, and September 26, 1977, respectively.
According to information provided by the Government, as of October 31, 1979, 1.285 individuals had asked to exercise the right to leave the country on the basis of Article 23 of the Constitution.
7. During the on-site observation, the Commission discussed this matter with the Argentina authorities. President Videla told the Commission that the right of option was being limited, but that in the future it would be more generous and offered more expeditiously. The Minister of Justice, Mr. Alberto Rodríguez Varela, made reference to the limitations raised by the Commission and argued that there were people who left the country and often returned clandestinely, only to continue as militants engaged in subversive activities; he added that the Supreme Court must decide on the constitutionality of this matter.
During its interview with the Minister of the Interior, General Harguindeguy, the Commission emphasized the need to systematize the exercise of the right of option to leave the country so as to facilitate its administration and make Article 23 of the Argentine Constitution more effective. During the analysis of this issue, the Minister of the Interior said that at the outset, very few options were granted, but that with time, more have been granted, and a Committee is convened twice each week to review the cases presented. He added that any limitation on the exercise of the right is due to the dangerousness of the individual or for security reasons, and that consideration was given to the varying degrees of control that the governments of the receiving countries might have over the individuals to whom the right to leave Argentina is granted.
1. House arrest is one form of detention governed by the Institutional Act of September 1, 1977, used by the President in the exercise of the exceptional powers provided for in Article 23 of the Constitution, bearing in mind the detainee’s personal record and the special circumstances surrounding the case.
According to public information provided by the Ministry of the Interior on September 6, as of that date, twelve individuals were under house arrest. During the course of its on-site observation, the Commission visited three of them: former President Isabel Martínez de Perón, the journalist Jacobo Timerman, and union leader Lorenzo Miguel.
2. Isabel MARTÍNEZ DE PERÓN
The former President is being held in a country house in San Vicente, Buenos Aires Province, at the disposal of the Military Junta and the Federal Criminal Court.
Before this, she was being detained at the “El Mesidor” Residence, located in the Province of Neuquén and at the “Azopardo Naval Arsenal” in the town of Azul, Buenos Aires Province.
According to reports received by the Commission, initially Mrs. de Perón was held totally incommunicado and under interrogation. At the present time she is allowed one visit per week from certain members of her family and her attorney.
Through the “Act to consider the conduct of those persons responsible for causing injury to the high interest of the nation,” and Resolution Nº 1, the Military Junta imposed a set of sanctions against her which include detention; loss of political and union rights; disqualification for office, employment, public office, and honorary posts; and a restriction preventing her from disposing of and administering her property, thereby obligating her to account for the acquisition of same within the last ten years.
Further, five criminal proceedings are underway in the federal criminal Court of Buenos Aires. The defense attorney asked that the proceedings be nullified; but the request was rejected in the lower Court and is now being considered by the Supreme Court. The criminal proceedings are following their legal course.7
3. Lorenzo MIGUEL
A prominent labor leader, Lorenzo Miguel is being held under house arrest at his home, in application of the Act issued on June 18, 1976, by a decision of the Military Junta. Mr. Lorenzo Miguel was Secretary General of the Metal Workers Union, and was regarded as one of the most powerful labor figures in the country.
During its on-site observation, the Commission visited him at his home. In the garage of his residence, an official specified the restrictions that apply to visits, which established that he is in fact under police surveillance.
Initially, Lorenzo Miguel was detained on board a boat in the Port of Buenos Aires, and was then transferred to the Magdalena Military Prison, where he remained for two and a half years. At this point he has been under house arrest for one year; he said that he is subject to many restrictions that are prejudicial not only to him but also to his family, as they disrupt the normal functioning of the family.
The police have him and his house under surveillance 24 hours a day which makes life difficult for his children. The only visits he can receive are those of close relatives on Saturdays and Sundays; his children are subject to the same restrictions.
Mr. Miguel said that he was not mistreated during his detention on board the boat and at the Magdalena Prison. He thanked the members of the Commission for the visit and introduced his wife, sister and children, the youngest of whom is 4 years old.8
4. Case 2502 – Jacobo TIMERMAN
On October 16, 1977, the following denunciation was received:
In a note dated April 21, 1978, the Government of Argentina reported to the IACHR that “as of the 17th of this month, Mr. Jacobo Timerman will be in detention in his private home” at the disposition of the Executive.
In notes dated July 17, 1978 and May 18, 1979, the Commission requested new reports from the Government of Argentina. Subsequent to its on-site observation, on October 2, 1979, it received the following communication from the Government:
During its stay in Argentina, the Commission visited Mr. Jacobo Timerman under house arrest in the Capital, which included the presence of a Deputy and various policemen. Custody was on a rotating basis and there was strict surveillance of visits, telephone calls and correspondence. With regard to the condition of the journalist, Mr. Timerman explained to the Commission that he had been engaged in political and independent journalism for thirty years and that he used the pages of the newspaper to fight subversion from the Montoneros on the left and the “Triple A” on the right. He added that 10 days prior to his arrest, the Minister of the Interior denounced him for having published various writs of habeas corpus in connection with some disappearances as his newspaper had taken very seriously the promotion of human rights in Argentina.
The Institutional Act of June 18, 1976, was applied to Mr. Timerman by means of the November 1977 Resolution (Nº 6) of the Military Government Junta and he was placed at the disposal of the Executive by Decree 1093/77. The Institutional Act includes, among other measures, a prohibition against practicing the profession for which one was licensed, in this particular case, journalism.
The Commission confirmed the condition under which Mr. Timerman was being detained. In its judgment, it was punitive in nature and the conditions went considerably beyond the minimum conditions necessary for the custody of the detainee.
1. The system of restricted liberty permits an arrest ordered by the President, during a state of siege, pursuant to Article 23 of the Constitution. The Military Tribunal is empowered to confine persons in the place determined by the Executive (PEN) for as long as that person remains at its disposal.9
Prior to and during the on-site observation, the Commission received reports and testimony concerning the system of restricted liberty and spoke with persons who have been subject to that system.
2. The regulations enacted by the Military Government in connection with the system in question include the Statute of September 1, 1977, the law of that same date whereby the Advisory Committee to the President of the Nation is established, and the law of September 27, 1977, providing specific regulations on these forms of detention.10
3. Arrest under the system of restricted liberty, in accordance with the regulations in force, is ordered through a Presidential decree where the following is indicated: a) the place where the arrested individual must remain; b) the geographic limits within which he may move; c) the military, security or police authority to whom the arrested individual must report.
The individual arrested under these circumstances cannot move outside the established limits and must fulfill the following obligations: a) appear voluntarily before the military, security or police authority assigned, every three days during the first two months of arrest, and every seven days there after; b) appear before the same authority when so instructed by the latter; c) abstain from engaging in any specifically prohibited activity; d) abstain from participating in public or private meetings except those of a purely family nature.
4. The report made public by the Ministry of the Interior on September 6, 1979 on detainees at the disposal of the Executive (PEN), stated that as of that date 180 individuals were under the system of restricted freedom, 20 of whom were placed under that system between August 22 and September 6 of that year.
1. To conclude this chapter, the Commission would like to address certain statements and evidence that it collected during its visit in Argentina.
The majority of entities involved in human rights, the Catholic Church, professional and political groups and individuals, told the Commission of their concern over prolonged detentions where the detainees are unable to exercise their constitutional rights such as those of defense and the right to due process. However, these individuals and entities agreed that because of the special circumstances that prevailed in the country during the immediately preceding years, detentions under the Executive power (PEN) were one of the measures used to combat subversion.
Without exception, the groups that expressed this concern also expressed a desire for a swift and complete return to the legal system; for this to occur they considered it essential that the various cases of PEN detainees be resolved first. It was said that merely by complying with the provisions of the Constitution and the laws, this problem would be reduced to reasonable proportions.
2. It is important to point to the statement made by the Argentine Bishops’ Conference in its document entitled “The Roads to Peace”, which states the following:
3. This issue was raised with all the various authorities with which the Commission had an opportunity to speak during the course of the on-site observation. For their part, such authorities as the Military Junta, the President, the Ministers of the Interior and of Justice, the Supreme Court and the federal Court of Appeals were receptive to the idea of finding a gradual solution to this problem. Thus, for example, the Minister of the Interior said that the total number of detainees at the disposal of the Executive was at one time 5,018, while at present it was approximately 1,400; this, he said, showed that progress has been made toward solving this problem. Of those 1,400, approximately 800 are exclusively under the PEN, without having been charged or tried. The remainder, apart from being at the disposal of the PEN, are being brought to trial and some have been sentenced.12
The Minister added that when the Court orders the release of a detainee or when the Executive has knowledge that this is going to occur, in order to avoid a collision between these two branches of Government, the release is ordered, the right of option is granted, or the individual is expelled from the country, thereby resolving any eventual conflict. However, he noted, the only grounds for detaining an individual exclusively under the PEN is Article 23 of the Constitution and he explained the legal reasons for the extension of these exceptional measures, it being understood that the Executive is subject to the control of a Court as to the reasonableness of the detention. The Minister indicated that in his judgment there is no fixed time period for the detention since the system of exception is ordered for reasons of security and as long as those reasons are valid, the Executive is allowed to keep an individual in detention. He also noted that the Advisory Committee created for this purpose meets each week and settles many of these cases.
For his part, the Minister of Justice pointed out that for the bulk of the Argentine population the existence or nonexistence of individuals detained under the Executive power, or sentenced, was not a major concern; but abroad pressure had been strong on this issue. If the Government was paying a price for keeping these persons in detention, the Minister explained, it was because they were dangerous and willing to kill. He added that this was a Government under which the independence of judges was guaranteed and their decisions respected.
4. Both in the interview with the President of the Supreme Court and with members of the federal Court of Appeals, the Commission was given an explanation of the reasonableness of the prolonged detentions; it was pointed out that, at present, most judges ask the Government to clarify its report as to the reasons for maintaining a person in detention, and if the report was found to be unsatisfactory, the members of the Judiciary release the detainee.
Further, they said that under the Constitution there was no limit on detention and that Argentine legal tradition indicated that the period of detention could not be controlled because this would imply an intervention on the part of the Judiciary in the Executive branch; but that at the present time, thanks to the jurisprudence of the Court, based on the theory of reasonableness, progress has been made in terms of limiting the length of a prolonged detention.
5. The IACHR wishes to reiterate its position in this regard by indicating that despite the fact that the constitutions of the American countries, including that of Argentina, allow temporary suspension of certain rights during irregular periods, as is the case with the guarantee against arbitrary arrest, in cases of danger to the internal peace or security of the State, the suspension should be applied only insofar as it is necessary, for specific time periods, and solely for the purpose of correcting the reasons for the suspension.
Further, it is clear that the international legal norms in the area of human rights provide for this very situation, but there are no international legal norms that justify prolonged detentions pursuant to the exceptional powers of the State of Siege, even less so in order to keep people in prison without bringing charges against them for violations of national security or any other type of laws and depriving them of the exercise of their due process guarantees.
1. To conclude this chapter on personal liberty, the Commission will refer to the prolonged confinement of individuals in a place subject to diplomatic immunity, which constitutes a violation of the freedom of the individual in asylum. In Argentina, this situation has emerged in the cases of individuals in asylum in the Embassy of Mexico in Buenos Aires.
2. Dr. Héctor J. Cámpora, former President of the Republic, and his son, Dr. Héctor Pedro Cámpora, sought asylum in the Embassy of Mexico in Buenos Aires on April 13, 1976. On April 20 of that year, Dr. Juan Manuel Abal Medina, a Peronist leader, sought asylum in that same Embassy. The three individuals in question sought asylum because of the military takeover of March 24, 1976.
The Commission received a complaint on behalf of former President Cámpora and his son, to the effect that the Military Government did not grant the corresponding safe conducts; the corresponding parts of that denunciation were forwarded to the Government of Argentina in accordance with the Commission’s regulatory procedure. The Government of Argentina sent the following reply to the Commission:
3. On November 26, 1979, the Government of Argentina, in view of the seriousness of Dr. Héctor J. Cámpora’s illness, finally granted him the corresponding safe conduct. Dr. Cámpora left Argentina the next day. However, as of the date of approval of the present Report, his son Héctor Pedro Cámpora and Dr. Juan Manuel Abal Medina are still in asylum in the Embassy of Mexico.
4. In the Commission’s opinion, the purpose of territorial and diplomatic asylum is to safeguard the freedom, safety and physical integrity of individuals. Any individual who considers himself the object of persecution may seek asylum, although asylum may be granted only by the state to which this right belongs. However, the Commission considers that the prolonged confinement of an individual in a place protected by diplomatic immunity constitutes a violation of the freedom of the individual in asylum and it thereby becomes a form of excessive punishment.
1 The American Declaration of the Rights and Duties of Man states:
Article I – Every human being has the right to life, liberty and the security of his person.
Article XXV – No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law. No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character.
Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.
2 On September 1, 1977, also through an Act of the Military Junta, a Presidential Advisory Commission was created to examine and advise on the situation of persons arrested at the disposal of the Executive. The Commission’s members are one representative from each of the Armed Forces; the Assistant Secretaries of the Interior and Justice, and Assistant Secretary “A” of the State Intelligence Secretariat. The Minister of the Interior chairs the Commission.
3 Consideration will be given below to the view of the Supreme Court and the federal Court of Appeals on the principle of reasonableness in determining justification for detentions sine die ordered by the Executive.
4 During its on-site observation, the IACHR visited the country’s major prisons and held extensive conversations with detainees. In La Plata and Caseros prisons, a total of 600 notes were received which have been analyzed by the Commission. Most of the inmates mentioned their legal status, the limited possibilities of exercising their constitutional guarantees, such as the right to due process, the right to a legal defense, the right of option to leave the country, and also referred to the treatment they received while in detention. A considerable number of letters refer to detainees under PEN, held without legal charges and without any trial.
5 Article 23 of the Constitution reads as follows: “In the event of internal disorder or foreign attack endangering the operation of this Constitution and of the authorities created thereby, the Province or territory in which the disturbance of order exists shall be declared under a state of siege and the constitutional guarantees shall be suspended thereto. But during such suspension the President shall not convict or apply punishment upon his own authority. His power shall be limited, with respect to persons, to arresting them or transferring them from one point of the Nation to another, if they do not prefer to leave Argentine territory.”
6 Statute of March 24, 1976: the right of option to leave the country is suspended. Law 21.275 of March 29, 1976: all requests for the right of option submitted during the period of effect of that law are invalid, regardless of the stage of processing. Law 21.448 of October 27, 1976: provides a period of 180 days for the suspension of the right of option. Law 21.449 of October 27, 1976: provides that individuals detained under the Executive may ask to exercise the right of option, but that the PEN shall grant it exclusively to those detainees that it feels will not jeopardize the peace and security of the Nation if allowed to leave. It adds that the PEN must decide upon the request within 90 days of its presentation, and must deny it if it does not meet the conditions listed; that when the right is denied him, the interested party may present another request, six months after the first request. The same law states that the individual who exercises this right and leaves the country is forbidden to return until the state of siege is lifted, unless the Executive expressly authorizes his return or the person will be detained by immigration or police authorities upon his return; violation of this prohibition is punishable by four to eight years in prison. Law 21.568 of April 30, 1977: extending for 150 days, effective May 1 of that year, the suspension of the right of option. Statute of September 1, 1977: lifts the suspension of the right of option and establishes that the individual arrested at the disposition of the Executive can exercise the right, but that the President may deny that right when in his judgment the arrested individual could pose a danger to the peace and tranquility of the country if he were allowed to leave. Institutional Act of September 1, 1977: creates the Advisory Committee to the President, in order to analyze and provide advice on the situation of individuals arrested at the disposal of the Executive, presided over by the Minister of the Interior and composed of representatives of each one of the Armed Forces, the Under Secretaries of the Interior and Justice and by an Under Secretary from the Secretariat for State Intelligence; the Committee, among its other functions, provides advice concerning the release of individuals arrested, or advice on whether the right of option to leave the country should be granted. Law 21.650 of September 26, 1977: governs the Institutional Act of September 1 of that year and provides that ninety days after the date of the decree ordering their detention, those arrested at the disposal of the Executive may submit requests to leave the country, which must be processed by the Ministry of the Interior; further, this Law sets the following requisites: a) the request must indicate the country of destination, with certification from the diplomatic authority of that country attached, to the effect that the individual under arrest is being accepted; b) the President shall grant or deny the request within 120 days of its receipt at the Ministry of the Interior; c) six months after a rejection is issued, another request may be submitted; and d) requests submitted prior to the enforcement of that law, which conform to the provisions contained in Law 21.449, shall be processed and decided in accordance with its provisions. The most recent precedents for these various provisions are a number of decrees enacted prior to March 24, 1976, which include the following: Decree 807 of April 1, 1975: establishes standards for exercising the right of option; Decree 642 of February 17, 1976: establishes standards on the exercise of the right of option, and stipulates that no authorization to leave shall be granted when a country within this hemisphere has been chosen. Decree 1078 of March 23, 1976: establishes the time period for presenting reports on the right of option, which must be compiled by the Ministry of the Interior and channeled through the Federal Police.
7 The IACHR visited Mrs. de Perón at her residence. The former President made a public statement at that time. In view of the political significance of Mrs. de Perón, the Commission felt it appropriate to include her case in this report, even though it does not have any official denunciation concerning her present status on record.
8 The IACHR wishes to point out that no formal denunciation has been received in connection with this case, but because of the public importance of the case, it is presented in this report as general information.
9 The Institutional Act of June 18, 1976, paragraph e) of Article 2.
10 Article 2 of the Statute of September 1, 1977, provides that an arrest ordered by the President can be carried out, inter alia, “in the place determined in each case, by establishing the boundaries of movement of the individual arrested under a system of restricted liberty.” The Law of September 1, 1977, empowers the Advisory Committee to the President, among other things, to advise as to how to carry out the arrest ordered by the President. Articles 5 and 5 of Law 21.650, of September 26, 1977, set forth the various requisites that must be satisfied in an arrest under the form of restricted liberty.
11 “Maestros de la Fe” – The Roads to Peace (Argentina Bishops’ Conference) – Ediciones Don Bosco, Argentina and Editorial Claretiana, Buenos Aires, 1978, page 20.
12 Subsequently, through a note dated November 20, 1979, the Ministry of Foreign Affairs sent the Commission the names of 1,638 individuals who, as of October 31, 1979, were being detained at the disposal of the Executive (“PEN”). According to the information provided by the Government detentions during the State of Siege have evolved as follows: