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REPORT
Nº 28/92
On October 4, 1991, during its 80th session, the Inter-American
Commission on Human Rights (hereinafter "the Commission")
approved, by a vote of five to one, Report Nº 34/91, under Article 50
of the American Convention on Human Rights (hereinafter "the
Convention"). That
report was forwarded to the Argentine Government on October 8, 1991.
On January 20, 1992, the Government of the Argentine Republic
sent its observations on that report.
This Report Nº 28/92, provided for in Article 51.1 of the
Convention, was adopted by a unanimous vote.
Dr. Oscar Luján Fappiano, member of the Commission, abstained
from participating in the discussion of the two reports and the votes
taken thereon. I.
INTRODUCTION
1. In
late 1987, the Commission began to receive petitions against the
Government of the Argentine Republic (hereinafter "the
Government"), which denounced the legislature's passage of laws Nº
23,492, enacted on December 24, 1986, and Nº 23,521, enacted on June 8,
1987, and their enforcement by the judiciary; the petitioners alleged
that this violated, inter alia, their right to judicial
protection (Article 25) and their right to a fair trial (Article 8)
recognized by the Convention. In
total six cases were opened. The
petitioners were as follows:
Case Nº 10.147:
Alicia Consuelo Herrera
2. Law
23,492 set a 60-day deadline for terminating all criminal proceedings
involving crimes committed as part of the so-called "dirty
war". Law 23,521
established the irrefutable presumption that military personnel who
committed crimes during the "dirty war" were acting in the
line of duty, thereby acquitting them of any criminal liability.
The law even extended that protection to high-ranking officers
who did not have decision-making authority or any role in drawing up
orders. Unless otherwise
indicated, the instruments in question will be referred to as "the
laws".
3. Starting
in November 1989, some of the petitioners, alleging the same violations,
elaborated upon their petitions by protesting the effects of the
Presidential Decree of Pardon Nº 1002, of October 7, 1989 (hereinafter
the "Decree"), which ordered that any proceedings against
persons indicted for human rights violations who had not benefitted from
the earlier laws be discontinued.
4. In
all, six cases were opened. Some
were individual petitions, while others were filed by institutions
representing a group of petitioners.
Some of the petitioners' grievances concerned the application of
one of the laws, while the others challenged the application of both
laws and the Decree. However,
the fundamental grievance in all the petitions was the same: the effect
of laws Nº 23,492, Nº 23,521 and Decree Nº 1002/89 was denounced as a
violation of the Convention, inasmuch as they curtailed and ultimately
extinguished the criminal proceedings involving the egregious human
rights violations that occurred during the de facto government.
5. Inasmuch
as the grievances are substantially the same and the issue is basically
a question of law, since it is not the facts that are in dispute but
rather whether a type of law and a decree are compatible with the
Convention, the Commission has decided to join the petitions and
consider them as one. II. SUMMARY OF THE PETITIONS AND OF THE GOVERNMENT'S
REPLIES
6. In
all six cases, the petitioners alleged that the criminal proceedings for
human rights violations --disappearances, summary executions, torture,
kidnapping-- committed by members of the armed forces were cancelled,
encumbered or obstructed by the laws and the Decree, and that this
constituted a violation of rights guaranteed to them under the
Convention.
7. In
all six cases, the Government maintained that the alleged violations
occurred before the Argentine State's ratification of the Convention and
therefore were inadmissible ratione temporis.
The Government also argued that some of the cases had already
been heard in other international fora.
As for the merits, the Government stated that an exhaustive
official investigation was conducted and former military leaders
convicted, so that there was no breach of the Convention.
As for the OAS Charter and the American Declaration of the Rights
and Duties of Man, Argentina insisted that while these instruments do
recognize rights, they reserve enforcement of those rights for the
national courts.
III. ADMISSIBILITY
AND PROCESSING WITH THE COMMISSION
8. The
Commission forwarded the replies to the respective parties, who
basically restated their original positions.
At its 76th, 77th and 78th sessions, the Commission received
representatives for those petitioners who had asked to be heard, as well
as the Government's representatives. Those received answered the questions put to them by the
members of the Commission.
9. From
the briefs and the oral proceedings, the Commission was able to
determine the petitioners' basic grievance and the Government's
position. The petitioners
complained that the laws and the Decree violated the Convention since
their effect was to deny the petitioners' their rights under Articles 8
and 25 of the Convention, in respect of Article 1.1 thereof.
The Government's fundamental position was that the Convention did
not apply because of the time element involved, i.e., the events to
which the petitions referred occurred before the Argentine Government's
ratification of the Convention.
10. In the
Commission's judgment, the formal requirements for admissibility
stipulated in Article 46.1 of the Convention and Article 32 of the
Commission's Regulations have been satisfied.
There are no suitable and effective domestic remedies to nullify
the measures being challenged, since the Argentine Supreme Court has
dismissed those cases submitted to it that had argued that the
instruments were unconstitutional.
The Commission also considers that the petitions were presented
at the proper time, given the peculiar nature of the complaint in this
set of cases. The violation
alleged was not consummated at the same moment for all the petitioners,
since each one was affected in turn over the course of time.
In fact, the effect of the laws and the Decree was that cases
against those charged with the crimes were thrown out, trials already in
progress were closed, and no judicial avenue was left to present or
continue cases.
11. The
petitioners in the present case stated that they had never filed a
petition with any other intergovernmental human rights group.
Other individuals denounced the laws to the Human Rights
Committee.
12. The
Government alleges that the petitions should be declared inadmissible ratione
temporis, arguing that the Convention was not violated because the
facts attributed to the present government occurred before the
Convention's ratification.
13. The bulk of
the human rights violations (disappearances, summary executions, torture
and unlawful deprivation of freedom) occurred in the 1970s.
The military government took over in Argentina in 1976, and
democratic institutions were only restored with the inauguration of the
civilian government on December 10, 1983.
14. For
Argentina, the Convention entered into force on September 5, 1984, with
deposit of the instrument of ratification of the Convention.
15. Law Nº
23,492 was enacted on December 24, 1986, Law Nº 23,521 on June 8, 1987,
and Presidential Decree Nº 1002 on October 7, 1989.
16. The
violation at issue in the instant case is the denial of the right to
judicial protection and of the right to a fair trial, since the laws and
Decrees in question paralyzed the judicial inquiry.
Therefore, the disputed measures were adopted at a time when the
Convention was already in force for the Argentine State.
17. Argentina
alleges that the present government is being blamed for "events
that occurred prior to ratification of the Convention."
In this regard, it invokes Article 28 of the Vienna Convention on
the Law of Treaties (1969), the jurisprudence on the subject and the
body of international practice concerning the non-retroactivity of
treaties. It therefore asks
that the petitions be declared inadmissible ratione temporis.
18. The
petitioners argue that the violations being denounced did not predate
the Convention's entry into force, but came after, upon approval of the
laws and the Decree being challenged, which had the effect of denying
them their rights to judicial protection and to a fair trial (Articles
25 and 8, in relation to Article 1.1 of the Convention).
Article 8.1 of the Convention states the following:
Every person has the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial
tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the
determination of his rights and obligations of a civil, labor, fiscal,
or any other nature.
Article 25.1 of the Convention reads as follows:
Everyone has the right to simple and prompt recourse, or any
other effective recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized
by the constitution or laws of the State concerned or by this
Convention, even though such violation may have been committed by
persons acting in the course of their official duties.
19. The articles
of the Convention that the petitioners invoke relate to events that
occurred after Argentina became a State Party to the Convention.
Therefore, the petitions are admissible ratione temporis.
20. As for
friendly settlement, the Commission endorses the finding of the
Inter-American Court of Human Rights in the Velásquez Rodríguez case,
where it states: "...
the Commission should attempt such friendly settlement only when the
circumstances of the controversy make that option suitable or necessary,
at the Commission's sole discretion."[1]
In the instant case, where the issue is part of a
Government policy that the State still supports, the Commission is of
the view that friendly settlement is neither necessary nor appropriate.
21. On October
4, 1991, during its 80th session, the Commission gave preliminary
approval to Report Nº 34/91, pursuant to Article 50 of the Convention.
The report was then forwarded to the Government, on a
confidential basis, for the purposes set forth in the second paragraph
of said article, to guard against its publication.
22. By notes dated
October 23 and November 19, 1991, the Government asked the Commission to
"inform it of the plan that it [the Commission] has in mind"
regarding compensatory damages.
By a note dated December 6, 1991, the Government asked that the
Commission extend the deadline set for the Government to present its
observations on the report.
23. In a note
dated December 16, 1991, the Commission informed the Government that the
program for compensatory damages should be developed by the Government
itself, and then presented to the Commission for comments.
The requested extension was also granted.
24. On January
20, 1992, the Government forwarded its observations on Report Nº 34/91. IV.
THE GOVERNMENT'S OBSERVATIONS ON THE REPORT
25. The Argentine Government contends that the Argentine State
has been the one that has best dealt with the "difficult
problem" of finding a solution to past human rights violations
through a response that came from the "very sectors of the nation
that were affected" and that laws Nº 23,492 and Nº 23,521 and
Decree 1002/89 were approved by "only the appropriate democratic
institutions" (IACHR Report 1985-1986).
It underscores the fact that these were actions taken by
democratic bodies because of the compelling need for national
reconciliation and consolidation of the democratic system.
26. The
Government points out that the Argentine State has said "never
again" and has enacted laws that benefit the victims of the
National Reorganization Process, mentioning the following:
a) Law 23,466 (pensions for families of the disappeared); b) Law
24,043 (compensatory damages for persons who were arrested on orders
from the National Executive Power or who, as civilians, were arrested by
virtue of warrants issued by military tribunals); c) Decree 70/91 (to
benefit persons who had instituted legal proceedings because they had
been arrested on orders from the National Executive Power during the
National Reorganization Process); d) Decree 2151/91 (intended to benefit
those not covered by Decree 70/91).
27. The
Government notes that the violations denounced in the report were the
result of acts of State terrorism in Argentina in the period from 1976
to 1983, but that once the rule of law was restored, the State assumed
responsibility and paid fair compensation for the violations committed.
28. The
Government believes that there was redress because of the laws and
decrees enacted for that express purpose; because of the international
commitments honored and because of its resolve to instill the notion
"never again" in the national consciousness and to mirror it
in this Government's every action.
Consequently, it asks that the Commission find that the
appropriate measures have been taken. V.
THE MERITS
29. Because the
petitioners' grievances were essentially the same, i.e., that the
effects of Laws Nº 23,492 and Nº 23,521 and Decree Nº 1002 violate
the Convention, the Commission has decided to join the petitions and
consider them as one case. Moreover,
inasmuch as the complaints do not seek to denounce or prove disputed
facts but rather to challenge the compatibility of the laws and the
Decree with the Convention, the Commission considers that the issue here
is a point of law.
30. Consequently
the question the Commission has before it is whether or not the laws and
the Decree are compatible with the Convention.
A. As
to the Convention's interpretation
Article 29 of the Convention reads as follows:
No provision of this Convention shall be interpreted as:
a. permitting any State
Party, group, or person to suppress the enjoyment or exercise of the
rights and freedoms recognized in this Convention or to restrict them to
a greater extent than is provided for herein;
b.
restricting the enjoyment or exercise of any right or freedom
recognized by virtue of the laws of any State Party or by virtue of
another convention to which one of the said States is a party;
c.
precluding other rights or guarantees that are inherent in the
human personality or derived from representative democracy as a form of
government; or
d.
excluding or limiting the effect that the American Declaration of
the Rights and Duties of Man and other international acts of the same
nature may have.
31. The
Commission notes that any interpretation of the Convention must be
rendered in accordance with this provision.
B. As
to the right to a fair trial
32. The effect
of passage of the laws and the Decree was to cancel all proceedings
pending against those responsible for past human rights violations.
These measures closed off any judicial possibility of continuing
the criminal trials intended to establish the crimes denounced; to
identify their authors, accomplices and accessories after the fact, and
to impose the corresponding punishments.
The petitioners, relatives or those injured by the human rights
violations have been denied their right to a recourse, to a thorough and
impartial judicial investigation to ascertain the facts.
33. What are
denounced as incompatible with the Convention are the legal consequences
of the laws and the Decree with respect to the victims' right to a fair
trial. One of the effects
of the disputed measures was to weaken the victim's right to bring a
criminal action in a court of law against those responsible for these
human rights violations.
34. In a good number
of the criminal law systems in Latin America, the victim or his or her
attorney has the right to be the party making the charge in a criminal
proceeding. In systems that allow it -such as Argentina's-, the victim of
a crime has a fundamental civil right to go to the courts.
That right plays an important role in propelling the criminal
process and moving it forward.
35. The question
of whether the rights of the victim or his or her relatives, as
guaranteed by the domestic laws, are protected by international human
rights law, means determining: a) whether those rights recognized in the
constitution and laws of that State at the time the violations occurred
acquired international protection through ratification of the
Convention, and then b) whether those rights can be abrogated through
subsequent enactment of a special law, without violating the Convention
or the American Declaration.
36. Under
Article 1.1 of the Convention, the States Parties are obliged "to
respect the rights and freedoms recognized herein and to ensure to all
persons subject to their jurisdiction the free and full exercise of
those rights and freedoms...."
37. The laws and
the Decree sought to, and effectively did obstruct the exercise of the
petitioners' right under Article 8.1 cited earlier.
With enactment and enforcement of the laws and the Decree,
Argentina has failed to comply with its duty to guarantee the rights to
which Article 8.1 refers, has abused those rights and has violated the
Convention.
C. As
to the right to judicial protection
38. Article 25.2
reads as follows:
The States Parties undertake:
a. to ensure that any person
claiming such remedy shall have his rights determined by the competent
authority provided for by the legal system of the State;
b.
to develop the possibilities of judicial remedy; and
c.
to ensure that the competent authorities shall enforce such
remedies when granted.
39. With passage
of the laws and the Decree, Argentina has failed in its obligation to
guarantee the rights recognized in Article 25.1 and has violated the
Convention.
D. As
to the obligation to investigate
40. When
interpreting the scope of Article 1.1, the Inter-American Court of Human
Rights stated that "The second obligation of the States Parties is
to `ensure' the free and full exercise of the rights recognized by the
Convention to every person subject to its jurisdiction.... As a
consequence of this obligation, the States must prevent, investigate
and punish any violation of the rights recognized by the
Convention...."[2]
The Court elaborates upon this concept in several paragraphs that
follow:
What is decisive is whether a violation of the rights recognized
by the Convention has occurred with the support or the acquiescence
of the government, or whether the State has allowed the act to take
place without taking measures to prevent it or to punish those
responsible....;[3]
The State has a legal duty to take reasonable steps to prevent
human rights violations and to use the means at its disposal to carry
out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim adequate
compensation;[4]
....If the State apparatus acts in such a way that the violation
goes unpunished and the victim's full enjoyment of such rights is
not restored as soon as possible, the State has failed to comply with
its duty to ensure the free and full exercise of those rights to the
persons within its jurisdiction.[5]
As for the obligation to investigate, it states that the
investigation "must have an objective and be assumed by the
State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon
their offer of proof, without an effective search for the truth by
the government."[6]
(Emphasis added by the Commission).
41. By its
enactment of these laws and the Decree, Argentina has failed to comply
with its duty under Article 1.1 and has violated rights that the
Convention accords to the petitioners. VI.
THE COMMISSION'S OPINION AND CONCLUSIONS
42. The
Commission is aware of the exemplary measure taken by the Argentine
State when it established the official national commission (CONADEP)
that investigated and documented the disappearances that occurred during
the so-called "dirty war" in its historic report "NUNCA
MAS".
43. The
Commission was also pleased to observe the historic precedent the
Argentine Government set when it put on trial high-ranking officials of
the de facto government and convicted them of human rights
violations.
44. The Government argues that it has taken adequate measures by
enacting provisions to benefit the victims of the National
Reorganization Process.
45. Among those
measures, the Government cites enactment of Law 23,466, of October 30,
1986, which grants a pension equal to 75% of the minimum lifetime salary
to the next-of-kin of the disappeared, which pension can also be claimed
by minors under the age of 21 who demonstrate that one or both parents
were the victim of forced disappearance prior to December 10, 1983, as
demonstrated by a complaint duly filed with the institutions that the
law stipulates. A surviving
spouse and children under the age of 21, parents and/or siblings, and
orphaned sibling minors with whom the victim lived prior to the
disappearance can also qualify to receive the pension.
The law stipulates that its beneficiaries may claim the coverage
provided by the National Social Services Institute for Retirees and
Pensioners.
46. The
Government also mentions Law 24,043, of December 23, 1991, which awarded
a pension to persons who, during the previous dictatorship, were
arrested on orders from the National Executive Power during the state of
siege or who, as civilians, were arrested by virtue of warrants issued
by military tribunals. The
benefit consists of one thirtieth of the monthly remuneration at the
highest category on the civil service scale.
This law stipulates that the indemnizations are to be paid in the
form of bonds, in accordance with Law 23,982 on Public Debt and
Consolidation of Economic Securities.
According to the Government's estimates, this law will benefit
some 8,500 people.
47. Reference is
also made to Decrees 70/91 and 2151/91, executive decrees similar to the
previous law but that benefitted only a certain number of victims who,
after having filed an action for economic compensation - without success
- in the domestic courts, filed a complaint with the Commission.
48. The
Commission is pleased with the measures adopted by the Government to
redress and compensate the victims of the "dirty war."
It refers here not only to the celebrated trials of the principal
guilty parties under the previous dictatorship, but also to CONADEP's
investigation, and the various measures adopted to compensate victims of
human rights violations under the de facto government.
49. Nevertheless,
the Commission must make clear that the issue in the instant cases is
not only economic compensation for damages and injuries caused by the
State.
50. In this
report, one of the facts denounced is the legal consequence of the
passage of the laws and the Decree, in that it denied the victims their
right to obtain a judicial investigation in a court of criminal law to
determine those responsible for the crimes committed and punish them
accordingly. Therefore, the
violation of the right to a fair trial (Article 8) and of the right to
judicial protection (Article 25), in relation to the obligation of the
States to guarantee the full and free exercise of the rights recognized
in the Convention (Article 1.1), is denounced as incompatible with the
Convention. These
violations occurred with the enactment of the disputed legal measures in
1986, 1987 and 1989, after the Convention had entered into force for
Argentina in 1984.
51. On the other
hand, the question of economic compensation - to which the petitioners
have a right - concerns reparation for the original or substantive
violations, most of which took place during the 1970s, before
Argentina's ratification of
the Convention and before enactment of the laws and Decree denounced.
It is a question of the right to be compensated by the State for
its failure to ensure the right to life, humane treatment and freedom,
but not the denial of justice that was the legal consequence of the laws
and the Decree at issue in the instant case.
Compensation was not the only purpose of the petitions and not
the only issue in this report.
52. While both
questions (denial of justice upon cancellation of the criminal
proceedings and the compensation for violations of the rights to life,
humane treatment and liberty) are intimately related, they must not be
confused. Each question is
materially distinct and moreover concerns events that occurred at
different times; the rights or provisions of the Convention affected
also differ.
Given the foregoing, the
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. Concludes
that Laws Nº 23,492 and Nº
23,521 and Decree Nº 1002/89 are incompatible with Article XVIII (right
to a fair trial) of the American Declaration of the Rights and Duties of
Man and Articles 1, 8 and 25 of the American Convention on Human Rights.
2. Recommends that
the Argentine Government pay the petitioners just compensation for the
violations referred to in the preceding paragraph.
3. Recommends to the
Argentine Government that it adopt the measures necessary to clarify the
facts and identify those responsible for the human rights violations
that occurred during the past military dictatorship. 4. Orders publication of this report. |
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