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CHAPTER
IV
THE
RIGHT TO LIBERTY
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:
a.
In a penal or prison facility.
b.
In a military facility or a facility of the security forces.
c.
In such place as may be determined in each case, with limits
being placed on the movement of the person arrested, under a system of
supervised liberty.
d.
In the home of the person arrested.”
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.
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).
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.
B.
Preventive detentions 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:
a.
Detainees at the disposal of the Executive without trial.
b.
Detainees at the disposal of the Executive whose trial is
pending.
c.
Detainees at the disposal of the Executive whose cases were
dismissed by the Courts.
d.
Detainees at the disposal of the Executive despite having
completed the sentence.
e.
Detainees at the disposal of the Executive who have been
sentenced by the civil or military courts.
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,
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
During its 45th Session, the Commission adopted a resolution
on this case. Its main points are the following:
1. The kidnapping in Buenos Aires of
former Senator Hipólito Yrigoyen was denounced in a communication and
cables dated August 24, 1976.
2. On August 26, 1976, via cable,
the Commission transmitted the pertinent parts of this denunciation to
the Government of Argentina, requesting that the pertinent information
be supplied.
3. The Government of Argentina
replied by cable on August 31, 1976, to the Commission’s request and
provided the following information:
As a result of investigations, the relevant authorities on the 30th
of this month obtained the release of former Senator Solari Yrigoyen and
former Congressman Amaya, who had been kidnapped by an as yet
unidentified group.
4. In a communication dated
September 2, 1976, the Commission transmitted the pertinent parts of the
Government’s response to the petitioners and requested any
observations that they may have on that response.
5. The claimant, in a note dated
September 14, 1976, reported that although former Senator Solari had
appeared alive, he was detained and placed at the disposal of the
Executive (PEN) by virtue of the enforcement of the State of Siege, and
that he was being held in the facilities of the Fifth Army Corps, in the
city of Bahía Blanca, in the southern part of Buenos Aires province.
6. The Commission, meeting in its 39th
Session, decided to request additional information from the Argentine
Government regarding the arrest of Senator Solari Yrigoyen, particularly
whether any charges had been brought against him. The above-mentioned
information was requested in a note dated December 6, 1976.
7. In a communication dated January
11, 1977, the Government of Argentina replied to the request of the
Commission in the following terms:
With regard to this matter, be advised that Dr. Hipólito Solari
Yrigoyen is detained at the disposal of the Executive by Decree 1831/76
because of his links with subversive activities; and is in excellent
state of health. Also, I wish to inform the Hon. President that he will
be duly advised when Dr. Solari Yrigoyen is called to appear before the
courts of this nation.
8. In a letter dated January 14,
1977, the pertinent parts of the reply from the Argentine Government
were transmitted to the claimants, and they were invited to make further
observations.
9. The claimant, in a letter of
January 30, 1977, presented the following comments:
The communication of the Argentine Government indicates that “Dr.
Solari Yrigoyen is detained at the disposal of the Executive by Decree
1831/76 because of his links with subversive activities.” We wish to
remind you that Dr. Solari Yrigoyen and his colleague, Dr. Mario Abel
Amaya, who died in prison, were victims of an investigated kidnapping,
for which the parties responsible have gone unpunished. They were later
detained at the disposal of the Executive, which is evidence that there
have been no charges or trial, by virtue of the State of Siege.
As to the affirmation that Dr. Solari Yrigoyen has “links with
subversive activities,” this must be proven in a trial, which has not
as yet taken place although the communication assures that “you will
be duly advised when Dr. Solari Yrigoyen is called to appear before the
courts of this nation.” In this regard, it should be noted that
according to Argentine law, a citizen may remain incommunicado
for five days (5), and after this time he must be brought to trial or
set free.
If he is called to appear, Dr. Solari Yrigoyen can exercise his
legitimate right of defense, and at the same time this will enable
consideration to be given to all the details regarding the kidnapping of
which he was a victim. But, the fact remains that Dr. Solari Yrigoyen is
serving a virtual sine die sentence, without having been brought
to trial and without having been called to appear in court nor has there
been any accusation made against him to this date.
The communication of the Argentine Government also states that Dr.
Solari Yrigoyen is in an “excellent state of health.” Obviously the
information of the authorities fails to include information from those
persons who subject the former legislator to corporal and mental
punishment. Moreover, the general conditions which exist in Rawson
prison are a virtual aggravation of the sentence—in the case of Dr.
Solari Yrigoyen and the other prisoners at the disposal of PEN, an
illegal sentence—since the physical and mental well being of the
political prisoners are being harmed in violation of the Constitution.
10. In a communication dated February 10, 1977,
the claimant sent to the Commission a copy of the affidavit of the
federal lower Court, containing the following:
I HEREBY CERTIFY: Under the Law, that Dr. Hipólito SOLARI YRIGOYEN has
not been brought to trial in any proceedings of this Court, that this
Court has not sought nor is interested in his detention, and that there
is no impediment in the court to his leaving the country. Furthermore,
it is stated that the above-named professional man was questioned under
the terms of article two hundred thirty-six, second paragraph, of the
Criminal Code, in case Nº 378, folio 183, year 1976, entitled “Annotated
Summary to determine alleged violation of Law Nº 20.840,” that he was
at no time charged in the above-mentioned case, in which a temporary
stay was issued on the second day of December 1976 (Art. 435, par. 1 of
the Criminal Code), with a statement that no person had been brought to
trial.
11. In notes dated May 9 and 19, 1977, the
Government of Argentina advised the following:
I am pleased to write to you with regard to case 2088 and, on
instructions from the Ministry of Foreign Affairs of Argentina, to
advise you that by Executive Decree Nº 1098 authorization has been
granted for the person detained at the disposal of the Executive,
Hipólito Solari Yrigoyen, to leave the country.
Dr. Hipólito Yrigoyen left for Venezuela on May 17 of this year, on
VIASA flight 941.
12. The Commission received from the claimants a
letter dated October 16, 1977, containing the following declaration of
Mr. Hipólito Solari Yrigoyen.
I have noted the reply of the military Government of Argentina dated
September 1, 1976, and the report dated January 11, 1977, regarding the
arbitrary detention that I was subject to.
I feel obliged to indicate that the affirmations contained in those
reports are false:
1) I was never “kidnapped by
unidentified groups.” I was arrested on August 17, 1976 in a military
operation ordered by the Chief of Security and the Second Chief of the V
Army Corps, with headquarters in Bahía Blanca; the order was carried
out in Area 536, with headquarters in Trelew. I was arrested at my home
address, Puerto Madryn, Province of Chubut, by uniformed military who
later plundered my home and blew up my car.
2) It is not true that I was “set
free” by police authorities on August 30, 1976. I was transferred from
Communications Regiment 181 in Bahía Blanca, where I had been kept, to
the city of Vidma, where I was thrown on to the side of the road, and
immediately picked up by a police car. My illegal arrest thus became a
legal arrest. Both before and after the alleged “liberation” I was
subject to cruel torments.
3) I have never had links with
subversive activities of any kind. I have always condemned any kind of
violence. I was never charged before a court, nor have I been brought to
trial. I was detained for nine months at the disposal of the Executive
until I was expelled from the country and forbidden to return.
4) Congressman Mario Abel Amaya was
also arrested on August 17, 1976 at his home address in Trelew, Province
of Chubut and went through the same events as I until September 11, 1976
when we were both transferred in a navy airplane from Bahía Blanca to
the Naval Air Base “Almirante Zar” in Trelew, and from there to
Rawson prison. As a consequence of the brutal punishment we received in
the Base and in the prison, and the lack of medical attention during the
early days, Congressman Amaya who was in critical condition, was
transferred to the hospital of Villa Devoto Prison in Buenos Aires,
where he died on October 19, 1976.
13. In a letter dated August 1, 1978, the
claimants provided the following additional information:
We also wish to point out the violation of human rights being committed
in cases in which the individual is prohibited from returning to his
country. In fact, according to the so-called Law 21.228 decreed by the
Military Government on June 25, 1976, the penal code included—in art.
281 (ter.)—sentences of up to four years in prison for those persons
who leave the country, and there is a decree placing them at the
disposal of the Executive, as in this case, should they ever return.
A further flagrant violation of human rights is the treatment received
by Congressman Amaya and by Dr. Solari during the time they were in
prison. As a consequence of the beatings and tortures they were
subjected to, Congressman Amaya died and Dr. Solari’s health seriously
deteriorated.
14. In a note dated August 4, 1978, the
Commission transmitted to the Government of Argentina the pertinent
parts of the additional information supplied by the claimants. As of
this date, there has been no reply from the Argentine Government.
WHEREAS:
1. In the light of the preceding, it
appears that Dr. Hipólito Solari Yrigoyen was detained and tortured by
the Argentine authorities.
2. In a note dated January 11, 1977,
the Government of Argentina told the Commission that it would duly
advise it when Dr. Solari was to be called to appear before the courts
of the nation, but such information has not been supplied by this date.
3. Dr. Solari Yrigoyen, due to a
lack of guarantees for his personal safety, was obliged to abandon
Argentina and was authorized to do so by the Government through
Executive Decree Nº 1098 of 1977.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
RESOLVES:
1. To advise the Government of
Argentina that such acts constitute very serious violations of the right
to liberty, to personal security (Art. I); to the right to residence
(Art. VIII); to the right to a fair trial (Art. XVIII); and the right to
protection against arbitrary arrest (Art. XXV) of the American
Declaration of the Rights and Duties of Man.
2. To recommend to the Government of
Argentina: a) that it order a complete and impartial investigation in
order to determine responsibility for the reported actions, b) that in
accordance with Argentine law, the persons responsible be duly punished,
and c) that a report be made to the Commission, within a maximum period
of 30 days, regarding the measures taken to implement the
recommendations listed in the present Resolution.
3. To communicate this Resolution to
the Government of Argentina and to the claimants.
4. To include this Resolution in the
Annual Report to the General Assembly of the Organization of American
States pursuant to Art. 9 (bis), paragraph c. iii of the Statute
of the Commission.
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:
The alleged “illegal detention” of Dr. Solari Yrigoyen
It is totally untrue that the above-named party was arrested on August
17, 1976. On that date, Mrs. Teresa Marta HANSEN DE SOLARI YRIGOYEN
denounced the apparent kidnapping of the claimant by unknown and
unidentified persons. This denunciation was presented to the District
Police Station (Comisaría Distrito) of the city of Puerto Madryn
(Chubut Police) and with the intervention—on that same day—of the
Provincial Judge (Primera Instancia) of the Section,
headquartered in the city of Trelew.
On the 20th day of the same month and year, the investigation
originating in that denunciation was presented to the Federal Court (Primera
Instancia) in the city of Rawson (Chubut Police) by Dr. Omar D.
Garzonio, Secretary of Dr. Esteban Cerra, which gave rise to Summary
Examination Nº 662/206/1976, entitled: SOLARI YRIGOYEN, re: alleged
kidnapping.
This legal dossier of 190 folios, includes all the measures ordered by
the judge who intervened ordering clarification of the facts, after the
Magistrate decided on December 15, 1978, to grant a temporary stay to
the case, pursuant to Art. 435, paragraph 2 of the Criminal Code. This
file is at present before this Court.
Consequently, the allegation presented by Dr. Solari Yrigoyen to the
Commission that he was “arrested” by Argentine authorities is
inaccurate. He was kidnapped by persons who, in doing so, committed the
crime of illegal detention (Art. 141 et seq. of the Criminal
Code), and whose identity is sought both by the police and the courts,
as prescribed by the Argentine law.
It should further be indicated that the claimant himself made a
statement on October 1, 1976 before the aforementioned Judge, making no
mention at all—in spite of enjoying full guarantees for doing so—of
the alleged “arrest” nor giving the name of the persons whom he
later accused of this act when he approached the Commission. We cannot
pretend that there be an investigation of or judgment on facts and data
that he himself concealed or kept silent from the police authorities and
the Magistrate in this case.
And furthermore, Dr. Solari Yrigoyen—who, being a lawyer cannot be
unaware of the laws of his country—did not exercise his right to
present himself as a private plaintiff or accuser, pursuant to Art. 170
of the Criminal Code, in spite of the fact that he could at any time do
so and can still do so by means of a power of attorney (since he
is abroad). Therefore, it is not the Argentine Government that has
violated the rights and guarantees of Dr. Solari Yrigoyen, but rather
he, who, being able to do so, has not made use of these rights and
guarantees.
The search operation for the defendant decreed by the Argentine
authorities:
On the same day that the denunciation of the alleged kidnappings of Dr.
Solari Yrigoyen was received, a broad search operation was officially
initiated. This information was published in the newspapers, through
official channels, as can be seen in the clipping from the newspaper “La
Nación”, of 8.18.76, a photocopy of which is attached as Appendix
2.
As a result of this search operation, personnel from the Federal Police
Detachment in Viedma were able to obtain the release of the claimant on
August 30, 1976. This occurred under circumstances in which Dr. Solari
Yrigoyen and Dr. Mario Abel Amaya were being transported (tied and
blindfolded) in a vehicle whose other occupants, on noting the police
chase, threw them alongside the road, while at the same time shooting at
the police.
The above-mentioned information is taken from the newspaper “La
Nación” of August 31, 1976, which is included as Appendix 3,
as well as from the statements made by both persons freed, in the
above-mentioned Dossier Nº 622/206/1976 of the Federal Court (Primera
Instancia) of the City of Rawson (folios 80/82).
It should also be noted that on that occasion both parties indicated
that on being led to the police station, they were treated by medical
personnel of that detachment (conf. idem).
Arrest at the disposal of the Executive
By Decree 1878, of September 1, 1976, Dr. H. Solari Yrigoyen was
arrested and placed at the disposal of PEN, in the city of Bahía
Blanca. This Decree and the subsequent arrest were based on the State of
Siege in force, and were carried out within the ambit of the powers
granted to the Executive by Art. 23 of the Constitution.
It should be noted that at that moment, Dr. Solari Yrigoyen was under
suspicion of a possible violation of Law Nº 20.840 which deals with
subversive activities, before the Federal Court (Primera Instancia)
in the city of Rawson.
The case was tried under Nº 633/128/1975 entitled TOMASELLI, Víctor
Enrique et al. on Violation of Security Law – a handwritten letter
from the terrorist group “Montoneros” implicated Dr. Solari in
activities linked to that group.
The Judge received the investigatory statement under the terms of Art.
236, part 2 of Criminal Code, and it was decided to grant a provisional
stay to the proceedings as of December 2, 1976.
The trial had started on June 15, 1976.
Conclusion
This Government greatly appreciates the interest shown at all times and
under all circumstances by the Inter-American Commission in the
protection and defense of human rights, and its access to the
denunciations and information being sent to it in the performance of its
duties, as well as the painstaking care in fully clarifying the
situations submitted for its views and judgment.
This leads us to the justified expectation that the charges that were
presented as background for Resolution 18/78 be carefully evaluated—charges
that are not always true or that are not notably correct—along with
the information given above.
The Government of Argentina deems that this information is a true and
documented frame of reference, which make it feasible and vital that the
terms of the three clauses of the preamble to the above mentioned
resolution be reviewed and even, in consequence of the above, that the
points contained in the resolution itself be reviewed.
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.
1.
Case 2353 – Jorge Alberto TAIANA
The IACHR received the following denunciation:
Dr. Jorge Alberto Taiana, 65 years of age, surgeon and Minister of
Education and Culture in 1973, was detained by the Federal Police in
Buenos Aires on April 5, 1976. He is now being detained under
Institutional Act Nº 2 of the Military Junta. To date no formal charges
have been brought against him and he has been denied due process of law.
The Argentine Government replied to the request for information of the
Commission in a note dated October 25, 1977, in the following terms:
A. MEMBERS OF THE SUBVERSIVE
TERRORIST GROUPS, ERP AND MONTONEROS, AT THE DISPOSITION OF THE
EXECUTIVE, FOR HAVING COMMITTED CRIMES OF TERRORISM, ILLEGAL POSSESSION
OF ARMS AND WAR SUPPLIES, ILLEGAL ASSOCIATION AND OTHER TERRORIST
SUBVERSIVE CRIMES AS SET FORTH IN THE ARTICLES OF LAW 20.840 ON SECURITY
OF THE STATE:
7. TAIANA, Jorge Alberto. PEN Decree
1205 of 5-76; held in Magdalena by Resolution Nº 2 of the Military
Junta.
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:
The conduct of Jorge Taiana was considered by the Military Junta as
contrary to the higher interest of the Nation, for which reason it
decided to apply, through Resolution Nº 2, the measures set forth in
Article 2, subparagraphs a) and e), of the Act signed into law on June
18, 1976.
As a result of the foregoing, the Executive established the site for his
detention in Decree 1205/76.
Furthermore, it is important to point out that Taiana has exercised none
of the rights which the law places at his disposition to contest the
measures adopted in this regard.
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:
Dora Goldfarb, a Judge in Mendoza, and her husband, Pedro Lucero, were
detained on March 24, 1976, and held in the military prison of Mendoza
without charge. They were placed at the disposition of the Executive
under Decree 1120 of June 29, 1976. Dora Goldfarb was later detained in
Villa Devoto.
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:
In this regard allow me to inform you that Dora Goldfarb is being held
at the disposition of the Executive under Decree 1120, dated June 9,
1976, for having been involved in activities that affect domestic peace
and the national interest.
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:
Furthermore, in the additional information that was provided, it is
stated that Lucero was “cruelly tortured”, and that he now suffers
from permanent physical and mental damage”, and that Dora Goldfarb was
imprisoned “under shocking conditions, and subject to ill-treatment,”
and denied her rights for more than a year.
The Government of Argentina categorically denies having inflicted
punishment or physical or moral torture either on those in question, or
on any other detainee, and therefore denies that he suffers from any of
the illnesses mentioned in the denunciation.
With regard to the conditions of Dora Goldfarb’s detention, it should
be pointed out that she received the same treatment other detainees
received in accordance with prison regulations now in force, as the
Commission was able to verify during its on-site observation. With
regard to the statement that she was denied her rights for more than a
year, this is totally false and contradictory as well, because in fact
she did exercise the above-mentioned right of option.
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:
1. In a note dated November 17,
1976, the Commission received a denunciation concerning the detention,
imprisonment and ill treatment of Mr. Gustavo Westerkamp by the
Argentina authorities.
2. The Government of Argentina in
response to an oral request from the Executive Secretariat of the IACHR,
provided the pertinent information in a note dated February 4, 1977,
indicating the following:
With regard to the case of the Argentine citizen, Gustavo Westercamp, he
is at the disposition of the Executive by virtue of Decree 3076 of
October 23, 1975, for having been involved in activities that are
prejudicial to the public order and the basic interests of the State.
3. The Commission, in a note dated
May 24, 1977, transmitted to the claimant the pertinent parts of the
Government of Argentina’s reply and asked him to put forward
observations with regard to that reply.
4. The Commission decided to
officially transmit the pertinent parts of this denunciation to the
Government of Argentina, and on June 30, 1977, it addressed the
Government and requested that the corresponding information be provided.
5. The Government of Argentina in a
note dated September 29, 1977, replied to the Commission as follows:
A) Members of the subversive
terrorist groups the ERP and Montoneros, at the disposition of the
Executive, for having committed crimes of terrorism, illegal possession
of arms and war supplies, illegal association and other terrorist
subversive crimes, as set forth in the articles of Law 20.840 on
security of the State.
…..
17. WESTERKAMP, Gustavo: PEN, document 3076 of
October 23, 1975. Held at Sierra Chica.
6. The Commission, in a note dated
October 13, 1977, transmitted the pertinent parts of the reply of the
Government to the claimant, and requested that he formulate observations
with regard to that reply.
7. In June 1978, the claimant
provided the additional information as follows:
Gustavo was arrested on October 21, 1975 when he appeared at the
military headquarters in Palermo, Buenos Aires, for the requisite
medical and physical examination prior to entering compulsory military
service. He appeared at headquarters early in the morning. When the
examination was completed, upon leaving the building, at approximately
mid-day, he was violently overtaken by four armed men in civilian dress.
After being severely beaten and blindfolded, he was violently and
forcefully put into an automobile and taken to the Superintendence of
Federal Security, located on Calle Moreno 1417 in the Capital. There
Gustavo was barbarously tortured for 48 hours during which time he was
given neither food or water. He remained blindfolded. As he lay on the
floor, everyone that passed kicked him, spit on him, or urinated on him.
The blindfold was repeatedly soaked in an irritant which produce burns
around his eyes. He was tortured with an electric prod and his genitals
were beaten with chains in an effort to obtain information. He was
finally forced to sign a statement while blindfolded.
From approximately October 28, 1975 to September 6, 1976, Gustavo was
confined to the prison Unit 2 in Villa Devoto in the city of Buenos
Aires, where conditions were terrible. During a large part of the time
he was confined to a cell for two persons which he shared with four
other inmates. Three of them slept on a light mattress on the floor.
Sewage water frequently flooded the cell. The only sanitary facility was
a hole in the floor, surrounded by insects and rodents. He was permitted
practically no activity. The diet was poor and scant, and on many
occasions he was sent to the punishment cell without cause.
He was transferred to Sierra Chica prison (Unit 2), near Olavarría, in
the province of Buenos Aires, together with approximately 60 other
detainees, where he was brutally beaten. Marks from the blows could
still bee seen. Gustavo was forced to sign another statement however,
which said that those marks resulted from an accident.
Gustavo was imprisoned in Sierra Chica prison for approximately one
year, from September 6, 1976, to September 21, 1977. During most of this
period, he was kept in a small cell, alone, for 23 hours each day. He
had only 60 minutes of recreation. He was awakened at 5 in the morning
and was only allowed to go to bed at 9:00 pm. During the day, the
mattress was rolled up. He was not allowed to do any physical or
intellectual work. The purpose of this was clearly to paralyze him, both
mentally and physically; that is to say to bring about the progressive
destruction of his personality. For the same reason he was not permitted
to receive books or scientific publications, nor was he permitted a
transistor radio. During the winter, which in that region is very
severe, he was exposed to extremely low temperatures and provided no
heat. The cell window, furthermore, had no glass. He was ill for a week
without receiving medical attention or medication.
Finally, on September 21, 1977, Gustavo was transferred from Sierra
Chica to Unit 9 in the city of La Plata. During the first two weeks he
was again beaten while being submitted to interrogation. At this time,
Gustavo was sharing his cell with another political prisoner. They were
not allowed to read newspapers or books, nor to listen to the radio,
watch television, or participate in any other form of diversion. The
diet was very poor. Recreation limited to two hours in the morning and
two hours in the afternoon. Discipline was very severe and on the whole
designed to humiliate him, break his will, and destroy his mind.
From the legal viewpoint, Gustavo was being held at the disposition of
the Executive by Decree Nº 3076/75, without any charges or accusations
against him. He is, therefore, a typical political prisoner. His
detention is based on the powers granted to the President under Article
23 of the Constitution for cases during a state of siege. It is,
however, well known that the Constitution has been undermined by two
institutional acts issued by the Military Junta, which in fact holds
power. The first act, dated March 24, 1976, suspends the right of option
to leave the country, which is set forth in the corresponding article of
our Magna Carta. The second, signed into law on September 10, 1977,
re-establishes that right, but conditionally, making it subject to the
decision of the President and requiring several conditions set forth in
Law 31.650.
In our constitutional system, however, this power of the Executive is
not entirely discretionary. Both doctrine (cf. Germán S. Bidart Campos:
Derecho Constitucional, Edlar, Buenos Aires 1964, vol. I, p. 610 et
seq.), and the jurisprudence of the Supreme Court, are almost in
unanimous agreement that, “although the declaration of the state of
siege is a political act, which is beyond the judgment of the Judiciary,
it is the latter-s responsibility to ensure that such state of siege is
reasonably implemented by the Executive in cases that are brought before
the Judiciary” (judgment rendered in the case Zamorano, Carlos
Mariano, La Opinión, August 13, 1977, and the decision in Pérez
de Smith, Ana María, et al. re effective denial of fair trial,
P. 327-XVII-ORIGINARIO of April 10, 1977).
In view of this, there can be no doubt that prolonged detention without
cause, apparently for security reasons which are never specified, for
more than two and a half years, exceeds any “test of reasonableness”
and clearly constitutes distortion of the principle of the separation of
powers set forth in the Constitution. In effect, by prolonging detention
without bringing formal charges or initiating proceedings, the
President, in effect, has handed down a sentence, thus assuming judicial
functions, which is expressly prohibited by Article 95 of the
Constitution.
It is true that Gustavo was previously detained on March 14, 1974 and
charged with illegal association. However, proceedings were dismissed by
the Federal Judge on June 17 of the same year, for which reason his
detention at this time lacks any legal basis or even elementary
rationale.
8. The Commission, in a note dated
August 10, 1978, transmitted the foregoing additional information to the
Government of Argentina, and requested that it provide information. To
date the Government has not replied.
9. In a note dated December 2, 1978,
the claimant informed the Commission that Mrs. Westerkamp has been again
transferred from the prison of La Plata to Sierra Chica; he has been
confined for three years and two months at the disposition of the
Executive without due process of law, and he has been denied a second
request to exercise the right of option to leave the country.
10. The Commission, in a note dated June 30,
1977, in requesting information on these events, asked the Government of
Argentina for any opinion that would allow the Commission to determine
whether or not all domestic legal remedies had been exhausted; the
silence of the Government in this regard implies that there is no
further remedy.
The Commission recommended that Mr. Westerkamp be released and that the
Government undertake an investigation to determine the factual basis of
the event denounced as regards his ill treatment.
The Government of Argentina, in a note dated March 20, 1979, explained
that the prolonged detention was due to exceptional rules that the
Argentina Constitution grants to the Executive during a state of siege.
In addition, it set forth the reasons for which it has repeatedly denied
Mr. Westerkamp the right of option to leave the country.
Subsequently, in a note dated October 17, 1979, the Government provided
further information with regard to the ill treatment that had been
denounced, and make known the results of the writ of Amparo and
of the investigation that had been ordered to clarify the illegal
actions that had been denounced. The Court ordered a stay of proceedings
pursuant to the provisions of Article 435, subparagraph 1, of the Code
of Criminal Procedure, which establishes: “There may be a stay of
proceedings: 1) when the evidence gathered in the case is not sufficient
to demonstrate that a crime has been committed.”
The IACHR visited Mrs. Westerkamp at Rawson prison, and verified that he
is still being detained exclusively at the disposition of the Executive,
without charges or trial.
b. Detainees at the disposition
of the Executive with pending trials
With regard to this class of detainees, the IACHR has received the
following denunciations:
7. Case 3482 – Raúl
Héctor CANO
The IACHR received the following denunciation:
Raúl Héctor Cano: born in San Juan, Province of San Juan, on November
19, 1948, occupation: automobile mechanic, has been detained at the
disposition of the Executive since May 27, 1976, under Decree 657/76,
and is being held at Unit 9 prison of La Plata, in the Province of
Buenos Aires.
This detainee’s case was dismissed by Dr. Mario Alberto Geranduzzi,
Federal Judge of San Juan on February 10, 1977, although he remains in
detention.
The Argentina Government, in a note dated August 9, 1979, replied:
The person in reference was detained on March 29, 1976, and tried for
violation of Security Law 20.840. On June 2, 1976, he was placed at the
disposition of the Executive pursuant to the constitutional powers
thereof, for activities considered to be prejudicial to public order and
peace.
With regard to the case brought before the Federal Judge in the Province
of San Juan, a stay of proceedings was given on February 1, 1977, which
was confirmed by the Federal Court of Appeals of Mendoza. Enclosed is a
copy of the respective order. It should be pointed out that, in
accordance with the provisions of the Code of Criminal Procedure,
applicable to federal jurisdiction, a person who is given a temporary
stay (Art. 435 of the LPP) continues to be under investigation.
The individual in question requested the right of option to leave the
country according to Law 21.650, dated October 11, 1978.
This request was denied by Decree Nº 176/79, on the basis of the
provisions of Law 21.650, and in exercise of the powers therein granted.
In accordance with the provisions of Article 13 of the above-mentioned
Law, another request may be submitted 6 months subsequent to the Decree,
which denied the former request, although to date no such request has
been received.
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:
Norberto Ignacio Liwsky, physician, married, two daughters, 32 years of
age; on April 25, 1978, a group of heavily armed persons entered his
domicile by force, robbed him and attacked him, and intending to kidnap
him, wounded him by shooting him in both legs. He was kidnapped and
tortured with electricity throughout his body, especially on the
genitals; he was whipped for days, and burned with a branding iron also
placed on his genitals. His health seriously deteriorated as a
consequence during the two months leading to his “appearance” with
eight other persons in detention in a Buenos Aires police station. There
he was held in a cell measuring 2 x 2 meters without sanitary
facilities, and without sunlight for two months, during which time the
legal remedies introduced on his behalf returned negative results. In a
decree issued in August, the Executive ordered that he be detained.
He was then transferred to Villa Devoto prison and informed that he was
under the jurisdiction of the military and at the disposition of the
Executive. He came before Military Tribunal headquarters, Command 1, in
Palermo, Buenos Aires, which stated that it does not have jurisdiction
over this case and which transferred it to the federal judicial system
for trial, stating that it is neither a crime of terrorism nor
subversion, for which reason it expects the Court to endorse its
decision.
In a note received by the Commission on March 27, 1980, the Government
of Argentina replied as follows:
According to the statements of the claimant, Liwsky was kidnapped from
his domicile on April 25, 1978, by a group of armed persons, from whom
he received gun wounds in both legs. He states that, while kidnapped, he
was beaten and tortured, and the statement goes on to say that “his
health seriously deteriorated as a consequence during the two months
leading to his appearance” together with eight other detainees in a
police station in the city of Buenos Aires.
This is a malicious attempt to represent as a single fact two events of
very different origin. The first in April of 1978 concerns an alleged
kidnapping of the individual in question. This act, its nature, and
authors are now the subject of judicial investigation. The other event
is the detention of Liwsky, which took place on June 1, 1978, at
Gregorio Laferrere, which gave rise to the initiation of a suit charging
violation of Law 21.325, under the jurisdiction of the Special Military
Tribunal Nº 1.
The individual in question was detained at the disposition of that
Tribunal in the police station located in Gregorio Laferrere until
August 22, 1978, at which time he was transferred to Unit 2 of the
federal Penitentiary Service.
In the interim, through Decree Nº 1613 of July 18, 1978, the Executive
ordered that Liwsky be arrested pursuant to Article 23 of the
Constitution.
On December 29, 1978, the Military Tribunal declared that it did not
have jurisdiction to hear this case, for which reason it was returned to
the federal justice system, and heard by Federal Court Nº 2 in Buenos
Aires. On July 20, 1979, the latter dismissed the case with regard to
the crime under investigation.
At this time, Liwsky is in detention at the disposition of the
Executive, and is being held at Unit 1 prison. It should be pointed out
that, at this time, a writ of habeas corpus on his behalf is
before the federal Criminal and Correctional Court of Appeals, which
remedy provides judicial review over the reasonableness of the measure
taken by the Executive, which charge was based on the consideration that
LIWSKY’s activities were contrary to domestic peace, tranquility, and
public order.
With regard to the claimants’ statements in reference to ill-treatment
and torture, it should be pointed out that, should this have occurred
while he was kidnapped, it falls within the jurisdiction of the
Judiciary to investigate the acts and to the interested party to
contribute the pertinent evidence, if he has not already done so.
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:
Mario Raúl Belsuzari, born in the Province of Salta, has been detained
at the disposition of the Executive (PEN) since mid-June 1975, charged
with violating National Security Law 20.840. He was acquitted in Salta
by federal Judge Dr. Richard Lona on January 13, 1978, for lack of
evidence. However he is detained under Decree Nº 1876/75, which is
undated, in Unit 9 prison of La Plata, in the Province of Buenos Aires.
Belsuzari is by profession a teacher, having studied geology at the
National University of Salta.
He had opted to leave the country, in accordance with Art. 10 of Law
21.650, and has submitted a visa request to the Swedish Embassy in
Buenos Aires. On February 17, 1978, the Correctional Service, Unit 9,
Province of Buenos Aires, issued certification to the effect that the
detainee had asked to invoke the law in question.
In a note dated August 21, 1979, the Argentine Government replied as
follows:
Belsuzari was detained on June 19, 1975, in the city of Salta, because
of his association with terrorist organizations, primarily those that
operated out of the National University of Salta.
He was arrested and placed at the disposal of the Executive (PEN) by
Decree Nº 1876 of August 10, 1975; the grounds invoked for the measure
were the need to guarantee social peace, public security and
institutional order within the country.
He was also brought to trial before the federal Judge of the Province of
Salta, for violation of Law 20.840. He was acquitted in connection with
the specific criminal activity with which he was charged and the ruling
was upheld by the Court of Appeals of the city of Tucumán.
At the present time, he remains at the disposal of the Executive, since
the causes and reasons for his detention are considered not to have
disappeared.
It is true that Belsuzari, exercising his option to leave the country,
under Article 23 of the Constitution, has visas issued by the Embassies
of Spain and Sweden on his behalf on file with the Government; on one
occasion he was denied the opportunity to emigrate by Decree Nº 15 of
January 3, 1979.
The Government’s denial was neither whimsical or unfounded; rather it
was the result of the Nation’s legitimate right to analyze the
advisability of granting the petition and is in conformity with the
standards imposed by Law 21.650, which governs the exercise of the right
of option. In this way, this Government, having analyzed the case
history of the individual in question, has concluded that it is
inadvisable to grant his petition, on the understanding that any other
decision would mean that the detainee—once he has regained his freedom—would
continue to engage in subversive activities by joining terrorist
organizations which act even from abroad and of whose existence the
members of the Commission are aware.
Furthermore, the detainee may resort to judicial remedies to determine
the reasonableness of these administrative measures; it should be
pointed out that the Supreme Court has acted on such matters on a
considerable number of occasions, and this Government has accepted its
decisions.
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:
José Luis Medela, single, 23 years of age, a radio and television
technician, was detained on March 17, 1974, charged with illegal
association and sentenced to three years imprisonment, which he
completed on March 17, 1977. Having completed his sentence he was placed
at the disposal of the Executive (PEN). He has requested that he be
granted the option to leave the country, but that request has been
denied on two occasions. At the present time he is in La Plata prison.
The Argentina Government in August 1979 replied to the IACHR’s
requests for information. The principal parts of that reply state the
following:
As to the inquiries made in connection with Medela, which have been duly
recorded, the fact is that he was detained on March 16, 1974, by members
of the Villa Martelli Police Force, Buenos Aires Province; he was
detained along with two other individuals; many firearms and extremist
literature belonging to illegal organizations were taken from them;
Medela claimed to be a member of the Revolutionary Army of the People,
August 22nd faction (Ejército Revolucionario del Pueblo,
22 de agosto), an armed extremist group which operated
clandestinely. He was tried for the crimes of illegal association and
illegal possession of arms and explosives before the federal Judge of
the San Martín District, Buenos Aires Province; he was sentenced by the
Second Court of Appeals to a term of three years imprisonment, for the
crime of subverting the public order. He was confined in the prison in
the Capital.
On January 28, 1975, while the Constitutional Government was still in
office, he was placed at the disposal of the Executive (PEN) for having
been found to be closely linked to extremist activities aimed at
disrupting the pace; at that point he was regarded as an element that
continually attempted to subvert the domestic order and peace.
On June 1, 1977, he initiated the procedure to opt to leave the country,
invoking Law 21.449. The petition was denied since he was considered a
threat to the peace and security of the Nation under Article 2 of that
law.
On May 5, 1978, he again initiated the procedure to leave based on a new
Law Nº 21.650, which was denied on the same grounds invoked earlier,
and because his record described him as a professional terrorist.
As can bee seen, it is clear that the truth is not in keeping with the
information presented in the denunciation; quite to the contrary. Medela
was never denied a reply to the petitions he submitted, as on each
occasion the grounds for the refusal were given.
As for the powers of the Executive to act as it did in this case, they
are beyond question, given the considerations taken into account by the
jurisdictional power reviewing the situation. It is obvious that the
present historical circumstances and those immediately preceding render
innocuous the powers granted under Article 23 of the Constitution, due
to the abusive exercise of the right of option to leave the country by
(PEN) detainees.
Thus, the restrictions which under normal circumstances would be
illegitimate, are rendered legitimate under special or extraordinary
circumstances, when it is appropriate to consider the more important
values vis-à-vis public order or community order, which can only be
achieved at the cost of restricting individual rights.
Despite what has been noted in connection with the personal
characteristics of the detainee, it should be added that on July 11,
1979, by a Decree issued by the Argentine Government, the detainee was
authorized to leave the country for Sweden, as the authorities were of
the opinion that the citizen in question could not jeopardize national
security if allowed to leave Argentina.
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:
Hugo Rubén Perie, born in Posadas, Misiones Province, was detained in
the city of Buenos Aires on July 20, 1975, and is being held at the
disposal of the Executive (PEN) by virtue of Decree Nº 2045 of 1976, in
prison, Unit Nº 9, in La Plata, Province of Buenos Aires.
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:
The Argentine Government reports that Hugo Rubén Perie was sentenced
August 29, 1977, by the federal Judge of La Plata, to a term of four
years, six months imprisonment for violating Article 292, paragraph 2,
and Article 296 of the Penal Code, for a compound offense; that sentence
was changed later by the federal Court of Appeals of La Plata, and Perie’s
sentence was reduced to four years imprisonment which ended, with time
already served included, on July 22, 1979 at twelve o’clock midnight.
In view of the danger demonstrated by Perie’s terrorist activities and
by the fact that he was a high-ranking member of the gangster/terrorist
organization known as the “Montoneros”, the Executive feels it
advisable, exercising powers provided for in the Constitution (Art. 23)
to keep Perie under detention; it is of the opinion that his release or
his exit from the country would pose a threat to the domestic peace.
While it is Perie’s human right to enjoy freedom, it is also a human
right—not just of one individual, but of thousands of Argentines—to
live in peace. This is undoubtedly the basic concept underlying Article
XXVIII of the American Declaration of the Rights and Duties of Man.
This reply calls for some comments from the IACHR. To argue that an
individual who has been sentenced and has completed his sentence cannot
be released because “while it is Perie’s human right to enjoy
freedom, it is also a human right—not just of one, but of thousands of
Argentines—to live in peace,” is a misinterpretation of Article
XXVIII of the American Declaration of the Rights and Duties of Man. In
fact, thousands of Argentines could not “live in peace,” in the
absence of the security that the decision of the Judiciary would be
respected.
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:
On May 27, 1976, at 20.10 hours, at 4200 Avenida Díaz Vélez, in the
Argentine Capital, a number of individuals—not yet identified—broke
the window of a business by throwing a bottle of gasoline through it
(which did not do any other damage) and also three in pamphlets
referring to the “Cordobazo”, after which they fled in various
directions.
Horacio Oscar Saragovi, an Argentine, 17 years of age, happened to be on
the sidewalk in front of the business, waiting for a collective cab to
take him to a Jewish center. When he saw what was happening he
immediately left the heavily trafficked area, as did the other people
around. On the next block, a plainclothes policeman detained one of
these people—Saragovi—because he was coming from the direction of
the event.
The policeman was approximately 130 meters from the scene of the events;
it was nighttime and he did not have on the glasses he normally wore.
Then, when the police car arrived, he detained two other people for the
same reason.
Of the three detained, one was released at police headquarters the same
day; another placed at the disposal of the Executive (PEN) and released
after four and half months, because he had demonstrated that at the time
of the events he was in a bar at the corner. The policeman had to admit
that he was mistaken in both cases.
But Saragovi remained at the disposal of the Executive (PEN) and was
brought before Standing Military Tribunal Nº 1/1, even though he had no
record and was a minor (17 years of age at the time of the events). The
records show clearly that the policeman lied, as did his witness; the
two contradicted each other, were not eyewitnesses, and were guided by
mere suspicions.
It is also known that before the trial, three members of the Tribunal
made anti-Semitic statements against Saragovi. These were: the judge,
the secretary and the prosecuting attorney.
Decision handed down
DECISION I: The trial lasted only one day, and the next day, November
17, 1976, Saragovi was sentenced to 6 years imprisonment for “altering
public order” and “violence against members of the police force.”
What was brought to this trial was a weak police report, containing only
the statements made by the policeman and his witness, (who, despite the
claim that the two did not know one another, turned out to be the
doorman at the apartment building where the policeman lived) and without
evidence.
The only real eyewitness said that he did not recognize Saragovi as
being at the scene of the crime.
Only five of the defense witnesses were heard, even though the defense
proposed twelve witnesses, and those five witnesses spoke on Saragovi’s
behalf.
The only time any statement was taken from Saragovi was on the day of
the trial, near its end; at that point he was weak, since for the 48
hours prior to his testimony, he had been given neither food, water, nor
permitted to rest, and had not been allowed to use the bathroom,
seemingly due to someone’s error or oversight.
On the very day of the trial, seven months after the detention, the
policeman said that he’d been “hit by Saragovi with a bar”,
something that had never been said before, not even during the police
investigation. However, because of this impromptu statement, young
Saragovi was sentenced for “violence against the police,” a crime
that he had not been accused of, not even by the district attorney;
hence, he could not defend himself against the charge. Thus, a seemingly
unimportant issue came to be the most important, even though the
policeman himself described it as being “something of no importance.”
Further, the bag was never presented during the trial nor had it been
confiscated; this means that the alleged corpus delicti was not
presented. There was no medical expert’s report concerning alleged
injuries, because there was no injury at all.
It should be pointed out that a member of the military served as defense
attorney; he was not a lawyer and did not intervene at any point during
the trial. He was not given leave or anything else that would have
enabled him to prepare the defense. The members of the Tribunal were not
lawyers, except for the judge.
In order to draw out this description of juridical arbitrariness in the
sentence and the absence of any defense during the trial, only some of
the decisions will be described.
DECISION II: The earlier judgment was appealed on December 23, 1976, and
the Supreme Tribunal of the Armed Forces overturned that judgment,
because of “substantial error that affects the validity of the
proceedings conducted,” and in order to “find the means to arrive at
a just decision.”
DECISION III: Thus, the file was returned for another judgment on the
issue. But it was returned to precisely the same Tribunal that
had ruled on it earlier. The defense asked that the Tribunal decline and
that the case be transferred to another Court, but the request was
refused.
On March 28, 1977, during two hours of trial, the same judgment as the
one handed down earlier (Judgment Nº 1) was again down with the same
sentence.
DECISION IV: When appealed by the defense, the file was again returned
to the Supreme Tribunal of the Armed Forces; but according to the
Military Code of Justice, a military judgment cannot be declared null
and void a second time; nor is the Court empowered to consider the
evidence. When the Tribunal declares “that something is irrevocably
proven,” nothing remains to be done.
This time, the Supreme Tribunal could do nothing, and confirmed the
lower court judgment. Neither the military defense attorney nor the
parents of the accused were notified officially of this decision. The
parents were never notified of anything.
On September 13, 1977, a special remedy was filed before the Supreme
Court, but there is little hope that the evidence or the facts will be
considered in vies of the fact that it “is irrevocably proven…”.
Note should be made of the disproportionate severity of the punishment,
even under the assumption that the alleged acts had been committed (and
this is an assumption), especially since the Law of Minors should have
been applied to Saragovi, who was born on June 5, 1958 and had not yet
reached 18 years of age at the time the events occurred.
The Law of Minors, which was not applied, establishes a special
procedure by recommending a series of guarantees since minors do not
have the same responsibilities as adults. This law provides for the
possibility of suspended sentence and also for a probationary period of
one year to determine whether the individual can be rehabilitated when
considered to be guilty; the minor is placed under the system of
controlled or restricted freedom. None of this has been done in the case
of Saragovi, quite to the contrary, the sentence is confinement
instead of prison.
In summary, he has not had access to due process because of the
atmosphere of intolerance, hate, and hostility that prevails in the
country. A case has been built against Saragovi without proof and
without his having had access to valid legal defense. The saddest part
of this case is that Saragovi is genuinely innocent of the charges filed
against him.
The Supreme Court did not consider the remedy because, it said, there
were insufficient grounds. Thus, ended any other possibility of remedy.
The defense attorneys were not allowed to see the case file.
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.
C.
Right of option to leave the country
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.
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.
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.
D.
House Arrest
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 h | 
