3. Case 2271 – Testimony of the children of Mrs. Azucena SOSA DE FORTI
Regarding the arrest and kidnapping of Mrs. Sosa de Forti, a case mentioned above,8 her children presented the following testimony to the Commission:
1. As stated earlier, the Commission has no doubt that the problem of the disappeared detainees is the most serious human rights problem in Argentina. This problem deeply affects the unity and harmony of the Argentine society. Consequently, it is of particular interest to examine the ideas about and reaction to this on the part of those who have been affected and those who have a special responsibility for solving it.
a. Family members
2. Those who are concerned about the disappeared persons, in other words, their relatives and close friends, have used virtually every available legal procedure to determine the whereabouts of their loved ones. The most frequently used have been habeas corpus, denunciations of illegal deprivation of liberty in courts of justice or to the police, and administrative measures in accordance with procedures established at the Ministry of the Interior.
From all of these measures—measures that have been taken repeatedly—thousands of persons have obtained no satisfaction. The Executive has consistently replied that no information about the detainees is on record. Investigations have always failed. And generally speaking, the Judiciary has rejected all remedies interposed, as will be seen further on, or has dismissed the cases.
In their anxiety, families have also turned to the Catholic Church and other religious authorities for help and intervention. They have sought the assistance of international human rights agencies, among them the IACHR. The Commission itself has received thousands of complaints, which it has in process.
3. It is also important to note here the solidarity that has developed among the families of the disappeared. These families have taken coordinated action at the administrative and judicial levels of Argentine human rights organizations for the purpose of obtaining answers from the authorities. One example of this is the group known as “The Mothers of the Plaza de Mayo”. This group meets every Thursday in front of the Government House to demand information on the whereabouts of their family members, especially their children.10
In an interview held during the on-site observation, one of these mothers, speaking on behalf of her group, stated the following:
b. The Government
4. The Government’s position when complaints started to come in from family members, as can be drawn from the reports received by the Commission, was to avoid giving clear answers and to state firmly that it was unaware of the whereabouts of the disappeared. As time went by, and due primarily to the ceaseless campaign waged by the claimants, it has recognized that this fact exists and has set up mechanisms within the Government, through the Ministry of Interior, to attend to complaints and to provide information. Despite this, many answers are still vague.
When the Judiciary requested information from the Executive, in processing a writ of habeas corpus, the Executive responded repeatedly that it was unaware of the whereabouts of the individuals involved and stated that they were not detained or at the disposition of any civil or military authority.
5. Fundamentally, four basic reasons have been advanced by the governmental authorities for their disappearance: a) the persons have died in confrontation and, due to the condition of the corpses, could not have been identified; b) they left the country under cover; c) they had been executed by subversive groups because they are deserters; and d) they are living underground.
Ultimately, however, the authorities have also begun to list as one of the causes for the disappearances “excesses or abuses in repression,” although they do not refer to any specific situation or concrete case. During the on-site observation, high-ranking government authorities argued before the Commission that the situation in Argentina for the past few years was one of war, a war that they call a “dirty war” or, in the words of President Videla, a “vague war” or an “ill-defined war.” According to the Minister of the Interior, this could never be admitted since it would mean, under international law, the recognition of a state of war with all the consequences that such a situation implies. According to these authorities, excesses could have been committed during this “war” in the repression of subversion, thus leading to the disappearance of persons.
6. An even more forthright opinion on this matter was given to the Commander-in-Chief of the Army and Member of the Military Junta of Government, Lieutenant General Roberto Viola, who on Soldier’s Day, May 29, 1979, spoke as follows about the aftermath of the campaign against subversion:
7. Earlier statements, combined with the actual experiences of the Commission during its on-site observation, and the express recognition by the Government that the war had ended, and that peace and security now prevail in the streets, inevitably led the Commission to the consideration that the Government ought to use all the means within its power to bring peace and tranquility to the thousands of persons who continue seeking the whereabouts of their loved ones.
c. The Government answers to the IACHR
8. With respect to the Argentine Government’s position, a special section is devoted to the answers the Government has been giving to requests for information from the Commission. As a rule, the answers fall under one of the following formulas:
9. Starting in October, 1978, the Government stopped answering, for a long time, all requests for information about individual cases that the Commission had requested. It was only answering the resolutions adopted by the Commission.
Since August 1979, the Commission has been receiving new answers, which, even though they do not help to locate the disappeared persons, are more detailed than the earlier answers. Many of them explain what investigations have been undertaken or what the results, likewise unproductive, of the habeas corpus procedures have been. In some cases, they have provided information about the sentences or subversive ties of the affected parties.
10. Even though Resolutions 314, 371 and 445, adopted by the OAS General Assembly at its seventh, eighth and ninth regular sessions, respectively, recommended to the member states that they cooperate fully with the Commission and provide it with the information needed to facilitate its work, in the opinion of the Commission the Argentine Government has generally responded in an unsatisfactory manner, and in some cases, it has contradicted itself.11 Only since August 1979, had it been providing more complete information, which the Commission hope is an expression of the Government’s concern for a clarification of the situation of the disappeared persons.
d. The Judiciary
11. The thousands of petitions for habeas corpus entered with the Judiciary on behalf of detainees who have disappeared have produced no effective results. Initially, when habeas corpus petitions were entered, the federal judges asked the pertinent authorities—generally the Minister of the Interior, the Chief of Police or the Commanders-in-Chief of the Armed Forces—for a report to determine whether the individuals were or were not in detention. Since the replies stated that there was no record of detention, the courts opted to deny the petitions.
Subsequently, as the claimants learned more information that led them to presume the involvement of the government security forces in the operations mentioned, they began to present more evidence in the habeas corpus petitions. Despite this, the results continued to be negative and the Judiciary failed to assume a more active role in the investigation the status of the detainees who had disappeared. Sometimes, the courts hearing the cases chose to refer them to examining magistrates for proceedings on illegal detention; however, this route was equally unfruitful in solving the problem and the large majority of the cases ended in a dismissal, owing to the difficult position in which the judges found themselves when they did not receive the due reports from the military or police authorities.
12. This slow process has changed as a result of some recent Supreme Court rulings, notably, the ruling in the case of Inés Ollero, and in three cases entitled Perez de Smith, et al., particularly the final judgment of December 21, 1978. At that time, the Supreme Court explained the reasons why it did not have jurisdiction to hear the case; however, it noted:
At a further point, the same document goes on to say:
13. As a result of this ruling, innumerable habeas corpus petitions were again submitted, but met with difficulties in the lower courts, which continued to receive the same reports from the Executive signifying that the judicial recourse for detained persons who have disappeared continues to be inoperative.13
The Supreme Court has recognized an absence of justice when Courts are unable to carry out their constitutional mandate because of circumstances outside their control; it has urged the Executive to take such measures as may be necessary for the proper administration of the law, and thus guarantee that citizens receive an adequate response to their petitions permitting clarification of the status of the “disappeared”.
Thus, the writ of habeas corpus, a fundamental safeguard for respecting the security of the individual, has not been operative vis-à-vis the “disappeared”.14
e. Public opinion
14. Despite the importance and significance of this problem the lack of public information has prevented the development of a general awareness in Argentina of the implications of what has happened.
Initially, most newspapers refused to publish any news on the issue, and even refused to print paid advertisements that included the word “disappeared”. Nonetheless, as a result of numerous complaints, and the persistence of the human rights defense agencies, some personal advertisements, denunciations, and list of names of persons who have disappeared have been published.
15. At the time of the Commission’s visit, some newspapers expressed their concern over the question, noting the necessity of solving it, and indicated that in the field of human rights, the phenomenon of the disappeared was of the greatest concern. During its visit, the Commission was able to sense a certain indifference, and in a few cases, even incredulity, among some sectors of the population. However, it believes that the visit itself and the broad, objective publication of information during the course of its work, helped the Argentine people form a clear picture of this serious problem, and this in itself represents a valuable contribution toward solving it in the future.
f. The Catholic Church
16. As noted earlier, numerous anguished families have approached the Church in an attempt to obtain information.
In May 1977, the Episcopal Conference issued an important document on the issue. There were moves at that time to form a Special Liaison Committee between the military and the ecclesiastical authorities. Unfortunately, this Committee has never had any significant successes. The topic has continued to be a subject of concern to the Church, as it has indicated in a number of statements. For example, the statements of the Argentine Episcopal Conference in its document “Los Caminos de la Paz” (The Road to Peace) summarized its attitude. This document states:
17. During its on-site observation, the Commission met with the President of the Episcopal Conference, Cardinal Raúl Primatesta, who said that his concern about the problem had been stressed in documents of the Argentine Catholic Church, in the hope of producing a clarification of the facts.
18. It is also important to recall the expressions of concern over the problems of the “disappeared” in Argentina voiced by His Holiness Pope John Paul II, on October 28, 1979, in a sermon to more than 70,000 faithful, after he had received the Argentine bishops.
1. In August and September 1979, the Government of Argentina promulgated two laws on the disappeared, which are controversial by the very nature of the matters they regulate.
These laws are:
a. Law on Presumption of Death because of Disappearance
2. This Law was promulgated as Nº 22.068 on September 12, 1979. Article 1 establishes that a declaration of presumption of death may be issued if a person’s disappearance from his domicile or residence, without there being further news of him, was denounced in a documented report between November 6, 1974, the day on which the State of Siege was declared by Decree Nº 1.368/74, and the date on which the present law was promulgated, i.e., September 12, 1979.
According to Article 2, this declaration of presumption of death shall be issued by the Federal Judge of the last domicile or residence of the disappeared; in the Capital the federal Judge (Federal circuit, for civil and commercial matters) shall have jurisdiction; the declaration may be requested by the spouse, by any family member up to the fourth degree of consanguinity or affinity, or by the State, through the pertinent Ministry. This article adds that this action is exclusive to each person legitimately entitled to exercise it, and it may be exercised “despite opposition by other principal parties.” Article 3 establishes that in no case shall the proceeding be contentious in nature; Article 4, that in all cases, the application for the declaration of death shall indicate the official agency with which the report of disappearance was filed, and the date on which it was filed; Article 5 establishes that when the judge receives the application for the declaration, he shall request information from the agency with which the denunciation was filed regarding the formal veracity of the act and the date of its presentation, and shall order publication of edicts for five successive days in two high-circulation newspapers in the place in question and in the Official Gazette, issuing a summons for the disappeared person. Article 6 establishes that ninety days after the final publication of the edicts, during which time the judge shall de officio request information from the Ministry of the Interior on the information or procedures connected to the reported disappearance, if both are negative, a declaration shall be issued de officio of presumption of death, and the date of decease shall be set as the date of the denunciation, and the ruling shall be ordered recorded in the official agency in each jurisdiction that records births, marriages, deaths and civil capacity. Article 7 provides that the civil effects of the declaration of presumption of death based on the law shall be those established in Articles 28 to 32 of Law Nº 14.394, i.e., for civil effects subsequent to the ruling declaring presumption of death on account of disappearance. Lastly, Article 8 provides for issuing a record of the ruling for presentation to whomever it may concern, at the request of the interested party.16
3. There have been objections to this Law, and a number of its provisions have been questioned, because it only refers to cases of disappearance within a particular time period: those disappearances that occurred between the date when the state of siege was declared (November 6, 1974), and the date on which the law was promulgated; because jurisdiction is given to the federal courts, which is an exception to the Constitution, that is, only judges appointed by National Government and not by the Provinces; nor can the cases be taken up by the civil judges of the regular courts, although it is they who ought to have jurisdiction since the nature of the matters they hear is eminently civil, referring as they do to personal problems which, along with family and inheritance problems, fall within the purview of the Civil Code. There have also been objections and questions because the plaintiff in the action may be, in addition to the spouse, any member of the family up to the fourth degree of consanguinity or affinity, and also the State through the Attorney General of the jurisdiction in question, and because the Attorney General is granted standing to act de officio, with the action being exclusive to each person so entitled, who may act despite opposition from other principal parties; because in no case will the action be contentious in nature, that is to say, that there will be no room for argument in the suits, as if it were an administrative procedure; because it is implicit that there will be no writ of habeas corpus and because, the final part, which recognizes the interested parties’ right to request a certification of the ruling issued by the judge, means the equivalent of issuing a death certificate for the disappeared.
4. It appears from the communication from the Minister of the Interior to the President dated September 5, 1979, with which he forwarded the proposed law for approval, that the bill is “aimed at regulating the situation afflicting a certain number of Argentine families, as a result of the prolonged absence and fate of some of their family members, consequence of the grave events that our country has faced in the recent past.” It also states that the declaration of the state of siege “is evidence that there exists a situation that has made it necessary to take this exceptional measure provided for in the Constitution, in the face of the chaos unleashed by terrorism, with its wake of death, kidnappings and the disappearances.” The communication adds: “While no small number of the presumed disappeared continue underground or have surreptitiously left the country, there is a reasonable possibility that others have died as a result of their own terrorist activities, and that it has not been possible to determine the whereabouts of their remains or to determine their identity. Elementary reasons of order demand that these situations be defined with certainty and that the various family problems they entail be resolved through the law hereby proposed.”
b. Law on Welfare Benefits when a person is absent
5. The other law on the disappeared was Law Nº 22.062, of August 28, 1979, prior to the law on the declaration of presumed death by reason of the disappearance of a person. It contains the rules governing welfare benefits when a person is absent. Article 1 of the Law stipulates the following:
For that purpose, Article 2 specifies that “the interested parties shall substantiate the report of the disappearance by means of a legal certificate and shall justify the legal grounds and the steps taken to ascertain the existence of the absent person to the National Welfare Institute or the agency responsible for the payment of the noncontributory benefit; it adds that “without prejudice to the evidence offered by the petitioner or to that which is deemed appropriate ex officio, the absent person shall be summoned by notices to be published free of charge in the official Bulletin for five (5) days.” This provision amends the time limits and procedures specified in Law 14.394 of 1954 whose provisions have been incorporated into the Civil Code.17
Although as time goes on matrimonial and property situations concerning disappeared persons will arise as a result of such events, it would nevertheless appear that the provisions of the Civil Code would be sufficient for dealing with or solving these situations; as already stated, the Civil Code was amended by Law 14.394, which shortens the deadlines and provides a pragmatic procedure that guarantees the legitimate interests of the parties and averts risks and delays in the relevant legal processing.
c. Opinions obtained during the on-site observation
6. During the on-site observation, the Commission wished to obtain as many opinions as possible about the laws relating to the disappeared. To that end, it discussed the subject with the governmental authorities and with a number of professional institutions and organizations engaged in the defense of human rights.
7. The associations devoted to the promotion and respect of human rights, as well as many relatives of disappeared persons, expressed views that echoed the objections that have been pointed out and stated some of the legal implications of those laws. They emphasized that as regards the problem of the disappeared, they considered Law 22.068 illegal in that it deals only with welfare problems or possible civil situations caused by the loss of a relative, but does not go into the causes which gave rise to such consequences, i.e., the problem of disappeared persons, which in their opinion persists and is still a burning issue. In addition, these associations and the relatives of the disappeared have informed the Commission that they did not seek the enactment of those laws, nor have they publicly stated that they were necessary, and that, on the contrary, what they have always strived for is a thorough investigation and report about the fate of the disappeared; that their protests have specifically concerned life and liberty; that in their reports, testimony, and appeals, they have gone on record for the basic defense of those values; and that it was precisely on that issue that the Supreme Court stated in the case of Pérez de Smith et al, that there was a deprivation of justice; that their protests have never concerned property questions nor have civil actions even been instituted; and that their attitude in no way minimized the seriousness of the situation caused by their disappearance, in particular their effects on the family, minor children, and property.18
8. The Lawyers Association of the City of Buenos Aires is of the opinion that the Government has endeavored to find a practical remedy to the problem of the disappeared, the existence of which it admits; and that when death is not established with certainty, it seeks to institute a system for solving the problems arising from that circumstance; that such laws are aimed at remedying the situation from the financial and social welfare point of view; that id does not preclude the lodging of criminal complaints or the filing of writs of habeas corpus; and it adds that the basic wish of the Association, what is most important, is that the disappeared persons should appear and steps in that regard should therefore continue to be taken, but the laws can help to solve the legal problem in part.
9. The subject was discussed by the Commission with the Argentine Government. The President, Lt. Gen. Jorge Rafael Videla, referring to the problem of the disappeared stated that it is a painful fact and that the law on presumed death takes into account the situation of the relatives, in so far as it is a legislative measure aimed at solving, among other problems, those issues relating to adoptions, divorces, widowhood, all of which require a determination of legal status.
In the interview the Commission had with the Military Junta, the Commander-In-Chief of the Army, Lt. Gen. Roberto Eduardo Viola, said that the purpose of these laws is to help solve the problem of the disappeared and its consequences; that to obtain approval of those laws required lengthy discussions but that finally they were approved in view of requests from within and outside the country to regularize the rights of the disappeared from human rights organizations who now criticize them; and that the intent of the laws is not to preclude writs of habeas corpus, but to clear up the situation of individuals whose whereabouts are unknown due to the civil war in which unidentified persons were killed in conflict, others were executed by terrorists who passed sentences on each other, others clandestinely left the country, and others went into hiding conspiring to endanger the security of the State.
In an interview with the Commission, the Minister of Justice made observations about the role of the Attorney General, the non-contentious nature of the procedure and the fact that the time period is considered short; he stated that the persons who drafted the law did so with a humanitarian sense for the problems connected with the disappeared and that its purposes are merely patrimonial, in that the law is intended for third parties, for the families. He added that the sentence is one of those which doctrine points out as being for “as long as legally appropriate,” that is, until the contrary is not shown. But in no way does this preclude the fact that if the subject is still alive, the sentence does not take effect. Obviously, he said, provisions call for an Attorney General to initiate the action under any circumstance, but whoever wishes to initiate habeas corpus proceedings may do so. He repeated that the sentence did not call for the death of the person except when legally appropriate; as for the issue of eliminating the intervention by the Attorney General, he said he would bring this matter to the attention of the President.
The Minister of the Interior, General Albano Harguindeguy, also answered the Commission’s questions on this subject. He stated that he was aware of the worldwide reaction to the law on the presumption of death and went into great detail on the background of this subject in Argentine law. He further stated that the judgment only had a social effect, that it did not rule out habeas corpus proceedings and other procedures, and that the purpose of providing that the procedure not be contentious, is that the procedure outlined by the law should be followed, that the law was promulgated for the purpose of providing a solution for family and social problems that arose for persons who considered themselves victims of this situation, and that for this reason, the only goal was to shorten the time involved and to accelerate the procedure. At the same time, the Minister of the Interior stated that the State’s official intervention through the Attorney General had never been exercised arbitrarily or abusively, but only under very exceptional circumstances. Finally, the Minister of the Interior turned a document over to the Commission containing a study on this matter. This study was made public by the Argentine Government on September 21, 1979, as an explanation of “reasons for State intervention in the subject governed by Law 22.068.”
d. Foundation of the Law on Presumption of Death by Disappearance, according to the Government
10. The document turned over to the Commission by the Minister of the Interior, which was mentioned above, contains what, in the opinion of the Argentine Government, are the fundamental reasons underlying Law 22.068. These are summarized below:
i. The possibility of State initiation of the procedure for a declaration of absence based on the presumption of death arises from the need to provide a solution for cases involving small children, orphans or abandoned children, whose parents may have died in subversive activities. It is not just a question of property left in the name of the deceased but also that the declaration of absence (with presumption of death) is an essential condition necessary for providing children with the social security benefits to which they may be entitled.
ii. Law Nº 14.394 of 1954 provides that “when a person has disappeared from his domicile or residence and there is no further news of that person and without that person having left any guardian, the judge may, on appeal by the interested party, designate a custodian for the person’s property, provided that the care of such property so requires.” It further establishes that “the Attorney General and any person having a legitimate interest in the property of the absent party may request a declaration of absence and the appointment of custodian.” The Attorney General’s office represents the State and exercises all judicial action corresponding to it.
iii. State intervention of this type is practically universal.
iv. Law 1893 on the Organization of the Courts points out that government attorneys are responsible for intervening in all matters in which a government interest is involved and in all other matters in which the Attorney General must perform functions as provided by the code. The Attorney General must intervene on behalf of the State in cases involving individuals and family rights.
v. Law 14.394 provides that “the absence of the person from his domicile and residence in the Republic, whether or not the person has left a guardian, and provided that there has been no news of the person for over three years, is cause of presumption of that person’s death.” The recent law shortened the time applicable to the common property system by starting with the more convincing presumption of a relationship between the absence and terrorist events that have occurred in the country. Article 24 of Law 14.394 permits “all those who had some right subordinated to the death of a person in question” to request a declaration of absence with presumption of death.
vi. It is universally recognized that the State has a fundamental interest in this subject and to give legal authority to the Attorney General to act in these cases is nothing but a legal recognition of the principle. The judge is the person who in the end accepts or rejects the action taken. The declaration of absence with presumption of death does not imply a definitive and irreversible declaration, and common law itself provides for cases where the absent person reappears, how the measures adopted for his property are nullified and the result of family relations.
vii. Articles 110 to 125 of the Argentine Civil Code, now superceded by Law 14.394, established the system of absence with presumption of death. Article 113 of that Code provided that “the spouse of the absent person, the presumed legitimate heirs, the Attorney General and the appropriate Consulate, if the absent party was a foreigner, may request a judicial declaration of the presumed date of death.”
viii. Reference is made to the Swiss Civil Code, Article 35 of which provides that “in the event of the death of a disappeared person in danger of death or from whom no news has been had thereafter, the judge may declare the absence by the request of those who are entitled to rights subordinated to his death.” It is stated that this formula has been used, as in Argentina, by the great majority of world legislatures.
ix. It is stated that all of the laws currently in effect envisage and regulate the institution of the declaration of absence with presumption of death.
x. All decisions involved in proceedings relating to the declaration of absence with presumption of death, or simply, presumption of death, do not produce the same effects as in res judicata since they do not result from a contentious suit, strictly speaking, and the matter may be taken up as many times as necessary.
xi. The judicial declaration made by a judge in civil court on the presumed death of a person does not imply in any way that the person’s family members may not start or continue penal actions to bring about an investigation of the person’s disappearance, nor does it imply that they are deprived of habeas corpus proceedings in the event that it is thought that the person is being detained. Both procedures are completely unaffected by a judicial declaration of this nature since the declaration has purely civil effects.
e. The opinion of the Commission
11. The Commission has examined objectively the documents it has received from the Argentine Government and those presented by groups associated with the problem of the disappeared. On the basis of these documents and the Commission’s examination of the laws in question, it would like to advance an opinion on this important subject.
In the opinion of the IACHR, the fundamental question is one of ascertaining and communicating in a timely manner with the family members on the situation of the disappeared. It is necessary to establish beyond any doubt whether these persons are still alive or are dead; if they are alive, it is necessary to know where they are; if they are dead, it is necessary to know where, when and under what circumstances they lost their lives and where their remains are buried.
12. Having made this fundamental point, the Commission would like to add that the laws themselves, especially Law Nº 22.068, are a matter of concern to the Commission, independent of the arguments that have been advanced for them, or the commitment made to the Commission by the Government through the Ministry of the Interior, that they would never be applied arbitrarily or abusively.
The Commission is concerned, for example, that in cases in which the State, in accordance with Article 2 of Law 22.068, has legitimate authority to promote the action of declaration of presumed death through the Attorney General, opposition to this procedure may be precluded. This could be the case of objection by the spouse or the parents of the disappeared person, especially considering that the procedure is not contentious in nature and the interpretation could be that the action is the sole right of the State.
Likewise, it is concerned that after the judicial ruling has been made, the family members of the disappeared person may not be able to initiate action of a penal nature or use habeas corpus proceedings for the purpose of investigating their disappearance. Such an interpretation is possible in view of the declarative nature of the ruling of presumed death. This could mean that the family members no longer have any right to act on behalf of the person who legally is considered dead.
The Commission trusts that such interpretations would not be made in practice. However, it would be desirable for the law itself to state this on its face. It hopes that such laws, which amount to explicit and official recognition of the existence of the problem of the disappeared, will never pose an obstacle to the necessary investigation of this dramatic problem, which, sooner or later, the Government and the Armed Forces will have to deal with.
Given the above, the Commission has no alternative but to adhere to the following paragraph of Resolution 445 adopted at the Ninth Regular Session of the OAS General Assembly:
1. The origin of the phenomenon of the disappeared, the manner in which the disappearances occurred, and the astonishing number of victims, are all intimately connected with the historical events that unfolded in Argentina during the last few years, in particular, the organized campaign against subversion. The violence employed by the terrorist groups was more than matched by that of the State security apparatus, resulting in serious abuses incurred in its attempt to suppress the subversion by dispensing with all moral and legal considerations.
Much of the testimony and information which the Commission has received appears to support the fact that in the campaign against subversion, special units were established with participation, at different levels, of each of the branches of the Armed Forces whose command units were autonomous and independent in their operations.
The activities of these command units were directed against all persons who, actually or potentially, could pose a danger to the security of the State by virtue of their real or presumed ties to the subversive movement.
This campaign, unleashed for the purpose of totally annihilating the subversive movement, had its most sensitive, cruel and inhuman expression in the thousands of disappeared persons, today presumed dead, whom it left in its wake.
It appears evident that the decision to form the command units, that were involved in the disappearance and possible extermination of these thousands of persons, was adopted at the highest level of the Armed Forces, for the purpose of decentralizing the antisubversion campaign. As a result, each of the command units had unlimited power to eliminate terrorists or those suspected of being terrorists.
The Commission is morally convinced that, in general, these authorities could not have been ignorant of the events as they were occurring and did not adopt the necessary measures to terminate them.19
2. The Commission has received statements to the effect that the Government “has won the war” and that the subversion is now under control. Despite this, however, the problem of the disappeared persons continues. Even though it is true that compared with 1976, 1977 and 1978, there was a smaller number of disappeared detainees20 in 1979, and that since October 1979, the Commission has received no new claims of disappearances. The fact that the Government has not taken all measures within its reach to clarify earlier situations means, in the opinion of the Commission, that the problem is not being taken care of.
Even while the Commission was on its visit to Argentina there was an operation very similar to earlier ones involving the disappearance of an entire family which was kidnapped by security agents. This situation prompted the Commission immediately to intervene with the Argentine authorities.21
3. The Commission is not able to give an exact number of the disappearances in Argentina. Of all the lists of disappeared persons that have been received, the Commission believes that the most reliable, since it agrees with the number of complaints that it has received, is the list turned over to it by the Minister of the Interior, General Albano Harguindeguy. This list was prepared by the Permanent Assembly of Human Rights, the Committee of Family Members of Disappeared and Detained Persons for Political Reasons, the Argentine League for Human Rights, and the Ecumenical Movement for Human Rights.22 This list includes 5,818 persons who, between January 7, 1975 and May 30, 1979 were “apprehended in their homes, places of work or in public places by armed groups, who prima facie, and almost always stating so specifically, acted under the color of authority, using procedures conducted in the open, with a full display of men—uniformed at times—weapons and vehicles and carried out with a promptness and detail that confirm that those involved were working in a manner typical of the security forces.”
The aforementioned list does not include persons whose families have not presented testimony to the agencies that prepared the list. In the opinion of these agencies and the Commission, this means that it does not include all disappeared persons.
During the Commission’s interview with General Harguindeguy, the General pointed out that his Ministry has carefully examined the list in question and that of this list his Ministry had received complaints of disappearances for 3,447 persons. Of these 2,092 had no information about them, 172 names were repeated, 16 persons were currently detained at the disposition of the Executive, 73 had appeared under different circumstances and 18 had died.
4. Whatever is the final number of disappeared persons; it is nonetheless impressive and does nothing if not confirm the extraordinary seriousness of this problem.
Furthermore, the lack of clarification of this problem of disappeared persons has affected many families in the Argentine community. The uncertainty and lack of all contact with the victims have upset the families greatly and especially the children who, in some cases, witnessed the kidnappings of their parents and the mistreatment to which they were subject during the raid. Many of these children will never see their parents again and will thus inherit a number of psychological problems from their memory of the circumstances of the disappearance.
On the other hand, many men and women between 18 and 25 years of age are affected by the anxiety and length of time that has passed without any knowledge of their parents or brothers and sisters.
Spouses, both men and women, who have been violently separated, live in an environment of severe mental disturbances, accentuated by the many economic and legal problems that this separation poses for them. Many men and women do not know whether they are widowed or still married. Many of them will never regain personal peace, harmony or security because of the exhaustion produced by their attempts to carry on in a home where the physical and moral absence of the father or the mother is felt every day.
These and other problems cannot be resolved as long as the situation of these thousands of disappeared persons is not clarified in a final and responsible manner.
5. The Commission took special interest in exhausting all possibilities to determine, without any shadow of a doubt, the truth of the present situation of the “disappeared”. To this end, it made inquiries at prison establishments, military installations, cemeteries, the resocialization center, all those places where there was the slightest possibility that persons apprehended by police or military groups might be held or might have been buried. All of its efforts have been in vain.
These circumstances, combined with the information received by the Commission, lead the Commission to the painful conclusion that the great majority of the disappeared are dead, the causes of which it is not in a position to determine but which, in any event, involve a great responsibility for their captors or those who kept them detained.
6. After having studied with great thoroughness the response of the Government with respect to all the cases discussed above, the Commission would like to make some general comments:
The Commission cannot fail to point out that during the period 1976-1979, a great number of persons, ultimately recognized by the Government as official detainees, were initially apprehended and held incommunicado in operations identical to those which, according to a great body of testimony received by the Commission, produced the disappearances which remain unexplained.
This information is confirmed by a great number of persons whose detention has been recognized at some point or another by the Government, who have testified to having seen in unofficial detention centers various disappeared persons, and to have seen them at times and under circumstances which coincide with the denunciations received by the Commission.
In a number of cases considered, such as the cases of Mrs. Forti, Ms. Hagelin, and Messrs. San Vicente and Falicoff, and others exhaustively investigated by the Commission, which are mentioned in this report, the explanations of the Government have been extremely inadequate and unconvincing. Most of the Government replies add little of substance, and do not persuasively contradict the occurrence of the alleged events.
In addition, high Government officials have stated that the arrest of persons suspected of subversive activity were carried out on a regular basis by security forces in civilian clothing. Those and other functionaries have implied that the nature of the conflict required the application of measures that violated human rights.
In view of the circumstances, the Commission finds itself compelled to reiterate its conviction that the material facts of the denunciations must be presumed to be true.
8 See page 91.
10These meetings were prohibited by the Government in late 1978.
11An example of such an answer is the case of Nélida Azucena Sosa de Forti (Case 2271) which was examined earlier, and Case 2209 referring to Mónica María Calendaria Mignone. According to the Government’s reply in a note dated September 29, 1977, “steps have been undertaken to determine whereabouts of Miss Mignone since the national authorities have no record of reports claiming her disappearance prior to the denunciations presented by the Inter-American Commission on Human Rights.” However, the claimant showed the Commission documented proof of having asked the Ministry of the Interior, the Ministry of Defense, the Commanders-in-Chief of the Army, Navy and Air Force, the Federal Police, the Police of the Province of Buenos Aires, the National Gendarmerie and the Maritime Prefecture for information about her. Faced with this evidence, the Government, one and a half years later, acknowledged its error in a note of February 27, 1979, but did not provide any information on the status or whereabouts of Mónica María Candelaria Mignone.
12The Commission has recently received reports on a new submission before the Court in the case of Pérez de Smith, et al. The decision of the Supreme Court has not been made known as of the date of approval of this Report. This new information indicates that the Executive, one and a half years later, has not told the Court what measures have been adopted to clarify the status of the “disappeared”.
13The case of Inés Ollero (Case 4326) is significant here. This case will be analyzed in greater detail in the section corresponding to habeas corpus petitions in Chapter VI.
14This problem will again be examined in Chapter VI in the discussion of habeas corpus.
15Argentine Episcopal Conference. Los Caminos de la Paz. Buenos Aires, Editorial Claretiana y Ediciones Don Bosco, 1978, pages 18 and 19 (Maestros de la Fe, 31).
16Articles 28 to 32 of Law 14.394 govern judicial proceedings related exclusively to settlement of the property of the person presumed dead, and to authorization for his or her spouse to enter into a new marriage, by dissolution of the previous marriage. Law 14.394 amended and repealed certain provisions of the Civil Code of January 1, 1871, as regard the legal regime on “persons absent and presumed dead”. Law 22.068 on civil effects contains no express provision, only a referral to Law 14.394 on this matter.
17Article 3 of Law 22.062 stipulates: “On the grounds set forth in this law, the pension or the noncontributory benefit, as the case may be, shall be paid from the day following that of the last day of the first SIX (6) months of absence. On the expiry of THREE (3) years from the time the pension or noncontributory benefit began to be received, evidence of the initiation of judicial proceedings to declare the presumption of the death of the absent person, in accordance with Law 14.394, must be provided in order to continue to enjoy the benefit. Article 4 of the same Law states that: “If subsequently, the death of the absent person is proven or his presumed death is judicially declared, the pension or noncontributory benefit shall be paid from the date of the death or the presumptive date of death judicially established without prejudice to the application, where appropriate, of the statute of limitations. If following the grant of a pension or noncontributory benefit under this law, the absent person should appear or information of his existence be obtained, the pension or noncontributory benefit shall terminate.
18Subsequently, in November 1979, approximately 700 relatives of disappeared persons filed a complaint against the Government of Argentina with the federal civil and commercial Court “to obtain a declaration by the Judiciary of the unconstitutionality of Law 22.068…”. Also in that complaint, they requested that: “changes be forbidden in order to suspend the possible execution of the law and until the court rules on its constitutionality.”
19This profound moral conviction is strengthened by statements made in a farewell address given at the Inter-American Defense Board by the Chief of the Argentine Delegation to that Board, Division General Santiago Omar Riveros, on January 24, 1980 from which the following is excerpted:
… We waged the war with a doctrine in hand, with written orders from the Superior Commands, we never needed paramilitary organizations, despite accusations to the contrary, we had a surplus of our own strength and legal organization for combat against irregular forces in an unconventional war… It is a simple matter of not knowing or being aware that this war of ours was conducted by the Generals, Admirals or Brigadiers in each force. It was not conducted by a dictator or any dictatorship, as world public opinion is being led to believe. The war was conducted by the Military Junta of my country through the Chiefs of the Armed Forces…
20The Commission has received information that the following persons were detained and disappeared during the course of 1979: ABRUZZESE, Julio César, detained April 11; ABRALES, Héctor, detained January 22; AGUILERA, Horacio, detained January 9; BARREIRO, Roberto Marcelo, detained March 12; BEITONE, Noemí Graciela, detained May 13; JARA DE CABEZAS, Telma, detained April 30; MANZA, Julio Martire, detained May 13; MARRERO, Mario, detained April 20; MALOSOWSKY, Hugo Armando, detained May 13; MARTÍNEZ, Héctor, detained February 5; MOLINA, Donaldo David, detained January 8; PAREDES DE BARREIRO, María Rosa, detained March 12; PÉREZ BRANCATO, Jorge, detained May 13; PÉREZ, Carlos Alberto, detained May 13; PRADO, Angel Alberto, detained January 3; RODRÍGUEZ, Elvio José detained April 23; RODRÍGUEZ, Juan Antonio, detained January 9; RODRÍGUEZ, Mario, detained in March; RODRÍGUEZ, Mario Germán, detained January 6; ROMOLI, Ana María, detained January 7; SASSO, Mario Antonio, detained January 4; SCHIPANI DE SASSO, Norma Alicia, detained January 4; SILBER DE PÉREZ, Mirtha, detained March 13; SCIUCA DE RUIZ, Palmira Amelia, detained in January; SZNAIDER, Jorge Víctor, detained May 13.
21This was the case of the González Castaño family. On the night of September 13, 1979, approximately 20 men dressed in civilian clothing entered their home located at Ituzaingó 4640, Munro, Capital. They hooded and carried away Mrs. María Consuelo Castaño de González and her young daughters Delia Teresa, 5 years, Eva Judith, 4 years and Mariana, 3 years. According to the complaint received, the husband and father, Regino Adolfo González, disappeared and was not even seen leaving his home. His present whereabouts are unknown.
On the last day of the on-site observation of the Commission, authorities reported to the Commission that Mrs. Castaño de González and her daughters had actually been detained in the aforementioned operation. They would, however, be released after the necessary interrogation. Before this, during the habeas corpus proceedings, the authorities reported, as in all cases, that the victim was not being detained. As for Regino González, it was reported that he is a Montonero leader and his whereabouts are unknown.
Later on, the Commission was told that the daughters had been placed in the custody of their grandparents, that a Military Tribunal had sentenced María Consuelo Castaño de González to 18 years imprisonment for her “terrorist activities” and that she could not be visited by any family member or defense attorney until the date of approval of this report. As for Regino Adolfo González, his whereabouts are still unknown and he had no contact with any of his family members.
The case of the González Castaño family is on record at the Commission as number 4.600.
22For example, the Commission has recently proven this in two complaints received during the moths of October and November of 1979. Fortunately in both cases the Government reported to the Commission that those persons, after being detained, are under arrest and at the disposition of the Executive (PEN).