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OEA/Ser.L/V/II.74 ANNUAL
REPORT OF THE INTER-AMERICAN COMMISSION RESOLUTION
NO. 25/88 CASE
9635 ARGENTINA September
13, 1988 THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, HAVING
SEEN Resolution No. 15.87 (OES/SER.L/V/II.70, doc. 15), adopted at the 70th
session (June 1987), whereby it resolved: 1.
To declare admissible the communication dealing with Case 9635 presented
by Mr. Osvaldo Antonio Lopez; 2.
To declare that, in application of the provisions of Articles 48,
paragraph 1.f) of the Convention and 45 of the Regulations, it places itself at
the disposal of the parties in this case with a view to reaching a friendly
settlement of the matter on the basis of respect for the human rights recognized
in the American Convention on Human Rights, in view of the fact that the
positions and intentions of the parties have been sufficiently clarified and, in
the Commission’s opinion, the matter, due to its nature, lends itself to
settlement through this procedure. 3.
To convey this resolution to the Government of the Argentine Republic and
to the complainant. CONSIDERING:
1.
That the aforementioned resolution No. 15/87 was published in the 1986-87
Annual Report to the OAS General Assembly (OEA/Ser.L/V/II.71, doc.9, rev.1, pp.
34 to 66);
2.
That the Government of the Argentine Republic addressed a note dated
September 21, 1987 (Vs.25-7.2.17) to the Commission in regard to resolution No.
15/87, the contents of which are summarized below:
a)
It welcomed the IACHR offer to place itself at the disposal of the
parties in this case with a view to reaching a friendly settlement of the matter
on the basis of respect for the human rights recognized in the American
Convention on Human Rights, because that offer was tendered in the spirit of
collaboration that had always characterized that body’s relations with the
Argentine Government and those of the Argentine Government with the Commission,
but that “because this is a democratic country where a state of law prevails,
the Executive Branch that is responsible for external relations can carry out
the measures cited in Article 48 of the American Convention only if they take
place in conformity with national juridical procedures and to the extent that
and within the limits of a republican government in which the separation of
powers is fully valid”;
b)
In its judgment of September 14, 2987, the National Supreme Court of
Justice, had vacated all action taken in the case against Osvaldo Antonio López,
starting on folio 500, and transferred the matter to the San Martín Federal
Court of Appeals so that it could issue a final verdict;
c)
In this decision, the Court repeated that “compliance with the rules
designed to ensure that the accused has access to proper legal counsel
constitutes a valid requirement, the failure to comply with which leads to an
annulment that the Tribunal must declare in exercise of its special jurisdiction
(Judgments. 189; 34 and 237; 158 and quotations therefrom)”; and that “this
conclusion is predicated both on the guarantee of the defense in court, and on
the guarantee of due process complementing it and integrating it with those
cited in Article 33 of the Constitution as being inherent to the republican
system,” not excluding military jurisdiction, since every individual subject
to military jurisdiction “enjoys the fundamental rights to which all
inhabitants of the Nation are entitled, of which they cannot be deprived
(Judgments 54:777)”;
3.
That according to the aforementioned judgment of the Court, the decision
handed down by the Supreme Council of the Armed Forces on November 23, 1978,
sentencing Osvaldo Antonio López to 24 years of imprisonment plus additional
penalties of absolute disqualification from service and reduction in rank, was
not affirmed, and the legal possibility of a review of the proceedings was left
open with regard to the substance of the matter.
This is consistent with the statements made by the Commission in its
resolution No. 15/871
to the effect that the substance petition 9635 was designed to redress “the
juridical and moral injury stemming from a proceeding presumedly invalidated by
serious irregularities which, for that reason, should be reopened so that the
convicted individual would have a procedural opportunity to show his innocence
or, otherwise, for his guild to be established beyond ay doubt”;
4.
That the judgment rendered by the National Supreme Court of Justice on
September 14, 1987 nevertheless failed to order the immediate release of Osvaldo
Antonio López, despite the order annulling part of the proceedings that led to
his imprisonment;
5.
That, in a note dated September 23, 1987, (Vs. 26), the Government of
Argentina transmitted a copy of the resolution adopted by the San martin Court
on September 21, 1987, “concurring with the findings of the National Supreme
Court of Justice” and using the means contemplated in Article 445 bis
of the code of Military Justice to open a new trial based on the principle of juris
novis curiat, which obliges the judge to resolve the questions raised in
accordance with the law that he deems to be reasonably applicable.
This could–in the opinion of the Commission–be considered a judicial
decision consonant with the causa petendi;
6.
That, in the course of its 71st session (September 1987), when the
Commission was apprised of the notes from the Argentine Government and the
judicial decisions in question, it sent a note to that Government, on October 2,
1987, expressing its concern over the fact that Argentina’s Supreme Court of
Justice, when it declared null and void a large part of the proceedings that
convicted López, failed to order his release, and stating its hope that the
case would soon be resolved with the review of the proceedings and the release
of Osvaldo Antonio López;
7.
That, on February 8, 1988 (No. Vs. 7.2.17), the Argentine Government sent
the Commission a copy of the findings of the San Martin Court of Appeals in the
course of the review of the proceedings against Osvaldo Antonio López, which
resulted in the acquittal and release of the prisoner from the very courtroom, a
right which he enjoys at present. Pertinent
portions of the court’s decision are quoted below: III
The San Martín Federal court of Appeals, having ordered the evidence to
be taken and heard the parties, resolved on November 20, 1987: I.
TO REJECT the charge of unconstitutionality presented in respect to
Articles 235 and 252 of the Code of Military Justice. II.
TO REJECT the proposal for application of the Statute of limitations to
the crime of unlawful association. III.
TO UPHOLD the sentence handed down by the Supreme Council of the Armed
Forces’ appearing on pp. 486-490, insofar as it considers OSVALDO ANTONIO
LOPEZ–whose particulars are given in the case files, to be guilty (Art. 45 of
the Penal Code) of placing six (6) incendiary devices in the fuel tanks of six
“MIRAGE III” aircraft located in the hangars of the VIII Brigade of
Argentina’s Air Force and of belonging to an unlawful association, reducing
the charge for the first of the aforementioned acts, which is subject to the
provisions of Arts. 827 and 828 of the Code of Military Justice to the level of
an attempt (Arts. 42 and 44 of the Penal Code and Art. 510 of the Code of
Military Justice) and maintaining the classification of the second of those acts
based on the principle established in Art. 2 of the Penal code of applying the
lighter punishment (Arts, 219 bis 210 quarter of the Penal code, as established
in law 21,338); and consequently, TO SENTENCE OSVALDO ANTONIO LOPEZ to SIXTEEN
YEARS AND EIGHT MONTHS OF IMPRISONMENT, with the additional penalties of
ABSOLUTE DISQUALIFICATION FROM SERVICE FOR THE SAME PERIOD and REDUCTION IN RANK
*Code of Military Justice, Arts. 536, 539, and the last paragraph of 585). IV.
TO DECLARE that, according to the computation made by the actuary on f.
12 of the release order issued for OSVALDO ANTONIO LOPEZ, the term of his
sentence expires on this date and he is to be set free forthwith from the very
courtroom. V.
TO REVOKE in part the sentence that is the subject of the appeal and,
consequently, TO ACQUIT the aforementioned OSVALDO ANTONIO LOPEZ of the crimes
set forth in and prohibited by Arts. 162 and 222 of the Penal Code and Arts. 716
and 718 of the Code of Military Justice, under which he was convicted.
8.
That, in the aforementioned note of February 8, 1988, the Argentine
Government says “that having conducted a review of the cases pursuant to the
provisions of Article 445 bis of the Code of Military Justice, and since Mr.
Osvaldo Antonio López was released on November 20, 1987 because he had served
out his sentence…,” the case before the Commission should be considered
closed;
9.
That, in a communication dated February 12, 1988, the Commission
forwarded to counsel for the complainant the information supplied by the
Argentine Government and ask for his comments thereon;
10.
That counsel for the complainant sent his comments in communications
dated February 12 and March 1, 1988, which are summarized below:
a)
Mr. Osvaldo López was released in November 1987, when the San Martín
Federal Court handed down a new decision and computed the time he had served
since his arrest more than 10 years earlier; but the Court refused to review the
proceedings, despite the irregularities pointed out by the Supreme Court of
Justice in its judgment of September 1987 when it annulled all proceedings since
1979 in the case before the military court;
b)
López’ lawyers in Argentina had therefore filed a special appeal
charging that the sentence of the Court of Appeals was unconstitutional “since
it continues to be founded on a confession extracted under duress, but the San
Martín Court denied the appeal. As
a result, a complaint of miscarriage of justice was brought before the National
Supreme Court of Justice, the resolution of which was expected in the near
future;
c)
In the meantime, faced with the possibility of very protracted
formalities, friendly settlement of the case having been to no avail, he
requested that the IACHR submit the case to the Inter-American Court of Human
Rights, with a statement that Argentina was in violation of Articles 8 and 25 of
the American Convention on Human Rights.
11.
That the Commission continued to study this case during its 72nd session
(March 1988), in light of the information from the Argentine Government and the
observations of counsel for the complainant and decided to send a further
request for information to the Argentine Government. It did so in a note of April 7, 1988, the pertinent portions
of which read as follows:
In communications of which copies are attached, counsel for the
complainant alleges that the San Martín Federal Court failed to review the
proceedings whereby Mr. Osvaldo Antonio López was sentenced to prison, in the
course of which the judicial guarantees set forth in Article 8 of the American
Convention on Human Rights were violated. Consequently,
López conditional release apparently occurred solely as a result of a
computation of the punishment based on the years he had spent in prison, and not
as a result of a review of the proceedings;
2.
The decision of the San Martín Court apparently failed to take into
account the relevant legal fact that, in September 1987, Argentina’s Supreme
Court of justice vacated the proceedings as of 1979 that had led to Lopez’
sentencing, transmitting the case records to the San Martín Court so that it
could issue a “final” verdict, according to the terms of the Argentine
Government’s reply attached to its note of September 21, 1987 (Vs. 25-7.2.17). The
Commission is troubled by the fact that proceedings that have been declared null
and void by the highest tribunal of the nation, i.e., the Supreme Court of
Justice–starting on folio 500–have not resulted in a review of the case by
means of a special procedure for acquittal or a similar procedure enabling Mr.
Osvaldo Lopez to prove his innocence and thus remain unconditionally at liberty.
3.
Mr. Lopez’ lawyers have filed an appeal against the sentence of the San
Martín Court, on the grounds of unconstitutionality “since it continues to be
founded on a confession of the complainant in the attached letter.”
Since that appeal was denied by the Court of Appeals, a remedy is now
being sought before the Supreme court, for denial or miscarriage of justice,
according to the aforementioned communication from counsel for the complainant. For
all those reasons, the Commission decided at its 72nd session (March 14-25,
1988) to continue to study this case. 12.
That the Argentine Government replied to the Commission in a note dated
July 6, 1988 (Vs. 38), stating the following: The
Government of the Argentine Republic has the honor to address the Executive
Secretary of the Inter-American Commission on Human Rights with reference to the
communication dated April 7, 1988, requesting information on certain aspects of
case 9635 concerning Mr. Osvaldo Antonio López, and places at this disposal the
following items, without prejudice to any further clarification the Commission
might see fit to request. Introduction In
his communication of April 7, 1988, addressed to the Government of Argentina on
behalf of the Inter-American Commission on Human Rights, the Executive secretary
requests information on certain aspects of the case of Mr. Osvaldo Antonio López,
which had led that Commission to decide at its 72nd session (March 14-24, 1988)
to continue to study the case. These
aspects were pointed out to the Commission my counsel for the complainant in his
communications of February 12 and March 1, 1988. I.
COMMUNICATIONS OF COUNSEL FOR THE COMPLAINANT 1.a
In his communication of February 12, 1988, counsel for the complainant
states that López was released in November 1987, when the San martin Federal
Court rendered a new decision and computed the time he had served since his
arrest more than 10 years earlier. b.
That statement is true. The
complainant is now completely free, having served the time required by the San
Martín Federal Court’s new sentence. 2.a
But it goes on to say that “the Court refused (to review) the
proceedings, despite the irregularities cited by the Supreme Court in its
judgment of September 1987, which vacated all proceedings before the Military
Court since 1979.” b.
This statement is false. First:
The new decision rendered by the San Martín Federal Court was
specifically the conclusion of a thorough review of the López case, which
included a public hearing at which numerous pieces of evidence were produced by
the parties and taken into account by that Court in its new decision.
Accordingly, it is not true: the
san Martín Federal Court did indeed review this case, and did so publicly. The
Argentine Government wishes to point out that the honorable Commission was
invited to attend the aforementioned public hearings, which took place on
October 28 and November 18, 1987. Secondly:
The Supreme Court judgment of September 1987 annulled all the proceedings
as for 1979 in López’ trial before a military court, more specifically,
everything from folio 500 onward, where the record shows that López expressed
his wish to file an appeal with the Supreme Court of Justice regarding the
sentence handed down by the military court, but his military counsel had not
laid the proper ground for that special appeal. The
guilty verdict rendered by the supreme Council of the Armed Forces was therefore
not affirmed and the case submitted to the compulsory appeal procedure before
the civil courts, established by law 23,049 for all causes that, after the
reform introduced therein, remained within the competence of military justice. It
was the Federal Court’s guilty verdict that put an end to the review process
which, as stated earlier, did indeed take place, 3.a
In the remaining paragraphs of his communication of last February 12,
counsel indicates the measures adopted by Lopez’ defenders to impugn the new
sentence issued by the San Martín Federal Court in his case, noting that
“past experience suggests that it will be a long time before the Supreme Court
issues a final judgment on the substance of the question, since now that López
is no longer in prison the case will not be given priority attention.” b.
This “prediction” of representative counsel for the complainant did
not prove to be accurate. Last
April 14, the National Supreme Court of Justice dismissed the complaint lodged
because of its denial of the special appeal against the judgment of the Federal
Court, which had again found López guilty.
Copies are attached of both this judgment–which by dismissing the
complaint upheld the verdict against Osvaldo Antonio López’–and the
decision of the Federal Court denying the special appeal. 4.a
Finally it stated in the communication of February 12 and repeated in the
one date March 1 that the Commission’s efforts to arrive at a friendly
settlement through negotiations with the Argentine Government came to naught
since “unlike the attitude on our part, the Argentine Government has not
responded to the Commission’s proposal to place itself at the disposal of the
parties to reach a friendly settlement.” b.
The Government of Argentina wishes to remind the honorable Commission
that it duly responded to that offer and expressed its appreciation of it
because it “was tendered in the spirit of collaboration that has always
characterized that body’s relations with the Argentine Government and those of
the Argentine Government with the Commission.”
Its reply to that offer in September 1987 stated that the Executive
branch, which in our institutional system is responsible for foreign relations,
can carry out only such measures as are permitted by national juridical
procedures, within the limits of a republican government in a country where the
separation of powers is fully valid. Moreover,
and in light of the concrete results obtained, the statement made by counsel for
the complainant to the effect that the Argentine Government had never cooperated
in this case is inaccurate and unjust. This
Government is confident that the honorable Commission will, in its wisdom, be
able to appraise the efforts made to arrive at a just solution predicted on the
law and the principles underlying the American Convention on Human Rights. II.
INFORMATION REQUESTED BY THE COMMISSION 1.a
Point 1 of the communication from the Commission’s Executive Secretary
includes an inaccurately points out that Osvaldo Antonio López is now out on
parole. b.
Today López is a free man who has served out the sentence that a court,
made up of judges appointed pursuant to constitutional mechanism in Argentina
for this purpose, had imposed on him after hearing his testimony, considering
the evidence presented in his defense, which it found inadequate to substantiate
the acts he denied, and further after thoroughly reviewing the evidence against
him. The
violation of his right to defense in court as a result of this special
appeal’s not being filed on time, was rectified when the Supreme Court of
Justice ordered application of the broad review process established by Law
23.049, as requested by Osvaldo Antonio López’ defense. The
final sentence imposed on López was deemed to have been served out in
accordance with a privileged computation of the time he had spent in prison. Today
López is not out on parole, he is a free man.
He has paid the debt that the San martin Federal Court considered he owed
to society, after a thorough review of the proceedings in the case against him. 2.a
According to point 2 of the communication of the Commission’s Executive
Secretary, the decision of the San Martín Federal Court did not take into
account the fact that the Supreme Court had annulled the court proceedings in
which López had been sentenced as of 1979. b.
In fact, exactly the opposite occurred.
The decision handed down by the San martin Federal court was the
consequence of the annulment decision of the Supreme Court.
And although the annulment applied only to proceedings following the
sentence the Supreme Council of the Armed Forces imposed on López, from a
procedural point of view it weakened all the proceedings that took place in the
military jurisdiction. In
reviewing the López trial, the San Martín Federal Court considered the
objections made and, after taking and examining the evidence offered by the
defense, rendered a definitive decision. At
present, Mr. Osvaldo Antonio López is completely unconditionally free. Similarly,
at a public hearing to which the Commission was invited, he had the opportunity
to prove both his innocence–which neither he nor his counsel had argued in his
defense–and any flaws in the evidence the prosecution had introduced against
him. 3.
Point 3) of the Executive Secretary’s communication refers to the final
phase of Osvaldo Antonio Lopez’ trial. With
a view to clarifying matters for the Commission, an account of what occurred
during that phase of the trial follows. III. ACCOUNT OF THE
PROCEDURAL STAGES FROM SEPTEMBER 14, 1987, WHEN THE NATIONAL SUPREME COURT OF
JUSTICE RENDERED ITS JUDGMENT 1.
On that date the National Supreme Court of Justice vacated all
proceedings beginning with folio 500 in the case “LOPEZ Osvaldo Antonio for
unlawful association, etc.” and ordered that the case files be returned to the
San Martín Federal Court of Appeals so that the sentence handed down by the
Supreme Council of the Armed Forces might come under review pursuant to article
445 bis of the Code of Military Justice. 2.
On September 21, 1987, the Federal Court notified the defense so that it
might voice its complaints and formulate petitions.
This was done on October 2, 1987. Subsequently,
the prosecution was notified. 3.
On October 27, 1987, having examined the positions of the parties, the
Court rules the appeal filed by the defense admissible. 4.
The Court allowed almost all the taking of evidence requested by the
defense and even provided for other means of taking evidence considered
necessary to clarify the facts. Having
received the evidence and heard the arguments, the Federal Court returned a
decision on November 20, 1987. 5.
On that date, the San Martín Federal Court unanimously decided: a.
To reject the charge of unconstitutionality brought by the defense. b.
To reject the proposal made by the defense for application of the statute
of limitations to the crime of unlawful association. c.
To uphold the judgment of the Supreme Council of the Armed Forces that
had been appealed, insofar as it considers Osvaldo Antonio López to be guilty
of placing six incendiary devices in the fuel tanks of six “MIRAGE III”
aircraft of the Argentine Air Force and of belonging to an unlawful association,
reducing the charge for the first of the aforementioned acts, which is subject
to the provisions of articles 827 and 828 of the Code of Military Justice, to
the level of an attempt (Arts. 42 and 44 of
the Argentine Penal Code) and maintaining the classification of the second of
those acts based on the principle of applying the lighter punishment (Arts. 2,
210 bis and 210 quarter of the Argentine Penal Code, as established in Law
21.228). d.
To alter the sentence to sixteen years and eight months of imprisonment
plus the additional penalties of absolute disqualification from service for the
same period and reduction in rank. e.
To rule that the sentence imposed ended on the same day as the decision
(thus López regained his freedom inside the Courtroom). f.
To revoke the decision of the Supreme Council of the Armed Forces in
respect of crimes set forth in and prohibited by Articles 162 (theft), 222
(breach of secrecy) of the Argentine Penal Code, and 716 and 718 (simple
desertion of the Code of Military Justice, and consequently to acquit López of
those crimes. 6.
On November 30, 1987, the Court announced the grounds for its decision. 7.
On December 14, 1987, López’ defense brought a special appeal against
the Federal Court’s decision before the Supreme Court of Justice, which was
rejected by the Supreme Court on February 1, 1988, because the defense had
limited itself to challenging questions of fact and of evidence.
The defense then filed a complaint with the Supreme Court of Justice
against denial of the special appeal. That
complaint was rejected by the Supreme Court on April 14, 1988. IV. MR LÓPEZ’
SITUATION AT PRESENT As
a result of the foregoing, Mr. Osvaldo Antonio López–we repeat–is free
(Since November 20, 1987) and not subject to any condition whatsoever under the
sentence handed down by the San Martín Federal Court of Appeals–which now has
the authority of res judicata-pursuant tot he procedure ordered by the
National Supreme Court of Justice. V.
REVIEW PROCESS OF THE CASE 1.
Based on the incontrovertible fact that Mr. Osvaldo Antonio López is
completely (unconditionally) free, the Argentine Government wishes once again to
underscore that that freedom is the result of the process of review of his case. 2.
The San Martín Federal Court of Appeals did review the proceeding
whereby Mr. Osvaldo Antonio López was found guilty.
The zeal with which the Court conducted its review of the case–the
review process that the honorable Commission invited to attend–is confirmed in
the statement of grounds issued on November 30, 1987 by that Court.
That statement was forwarded to the Honorable Commission in January. 3.
The Argentine Government expresses its surprise at the type of
information requested by the Commission after a copy of the decision and its
grounds were sent, since those documents answer the questions posed by the
Executive Secretariat on April 7. 4.
The Argentine Government regrets that the Honorable Commission was not
present at the public hearings in which the Federal Court produced the evidence
introduced during the process of review of the case.
The fact that the Commission was not present at those hearings, to which
it had been specially circumstance mentioned in paragraph 3 of this chapter are,
in the view of this Government, the obstacles that have prevented the Honorable
Commission from closing the case. VI.
CONCLUSION Lastly,
the Government of the Argentine Republic reiterates what it expressed in its
communication of last February, in which it said: “That,
having conducted the review pursuant to Article 445 bis of the Code of Military
Justice and inasmuch as Mr. Osvaldo Antonio López has been free since November
20, 1987 since he has served his term, this Government deems it appropriate, and
it so requests, that Case 9635 be considered closed.”
(This Government should point out that the sentence handed down in the
trial of Osvaldo Antonio López was definitive as of April 14, 1988.). “That
in view of the well-known impact of this case both nationally and
internationally and recognizing that the case is a clear example of the
cooperation of a Government with the Inter-American Commission on Human Rights
and vice-versa, this Government considers that it would be appropriate for the
honorable Commission to complete publication of the proceedings of this case.” “Indeed,
during the 17th regular session of the General Assembly of the Organization of
American States, the Report of the Commission containing Resolution No. 15/87
was approved, without it having been possible obviously, to include the most
recent events, which were without a doubt decisive and indicative of the
aforementioned cooperation.” On
the basis of these considerations, the Argentine Government again requests the
Inter-American Commission on Human Rights to consider Case 9635 definitively
closed. 13.
That the Commission, in order to give the complainant the opportunity to
present final considerations on the case, transmitted to him, by a letter dated
July 21, 1988, the note from the Argentine Government; 14.
That, in a communication dated August 16, 1988, counsel for the
complainant made observations and comments, the pertinent parts of which follow: Inadequacy
of the judicial review: The
case was reopened only in part as a result of the earlier decision of the
Supreme Court of Justice. The San
Martín Federal Court did not throw out the confession extracted from Osvaldo López
under torture during the military dictatorship nor did it rule it null and void.
Neither did it challenge nor dismiss the evidence obtained by the
prosecution as a result of such duress. Modern
procedural law strikes down as absolutely null and void not only a confession
obtained under torture but also any evidence for the prosecution thus as
“fruit of the poisonous tree” [Weeks v. United States, 232 U.S. 383 (1914),
and Mapp v. Ohio, 367 U.S. 643 (1961) of the Supreme Court of the United
States]. In recent decisions the Argentine Courts have adopted this
modern view, based on the need to discourage police practices that violates the
rights of the person detained. For
example, in the case Rayford, Reginald R. (May 13, 1986, Law (LL),
7-7-86] the National Supreme Court of Justice emphasized the link between the
exclusionary rule and due process: “The
law stipulates that any evidence obtained illegally is excluded; otherwise the
right to due process enjoyed by every inhabitant pursuant tot he guarantees
accorded under our National Constitution would be violated.”
In the same case, the Argentine Court also rejected all evidence that
stemmed from the originally vitiated evidence; in other words, it not only
invalidated the “tree” but also the “poisonous fruit.” The
Court affirmed the doctrine established in Rayford in the case Francomano,
Alberto (November 19, 1987, LL, April 28, 1988), this time by a vote of four
to one. The case had to do with a
violation of the now repealed Law 20,840 on suppression of subversive
activities. Referring to the U.S.
case of Miranda v. Arizona, the Court said that "the principles
established herein respond to the imperative need for the mandate of Article 18
of the National Constitution … to be actually applied and not become a mere
‘verbal formula.’” Other
recent cases of the Argentine Supreme Court along the same lines are: Montenegro, Luciano B., 12-10-81, Jurisprudencia
Argentina (JA) No. 5277, 10-20-82; Fiorentino, Diego E., 11-17-84, LL
12-24-85, also in 306 Fallos 1752 (1984); D’Acosta, Miguel A., 1-9-87,
LL, 4-8-87; Ruíz Roque A., 9-17-87, LL, 4-28-88. It
should be noted that the principle of Article 18 of the Argentine Constitution,
cited in the preceding paragraph, is that no one is compelled to testify against
himself. This principle, which is
central to any definition of due process and to defense of the physical
integrity of the person detained, is essentially the same one protected and
guaranteed by articles 5 and 7 of the American Convention on Human Rights.
Consequently, a judgment based, even in part, on evidence obtained in
violation of those safeguards under national law.
As said by the Inter-American Court of Human Rights on July 29, 1988,
(Case 7920, Manfredo Velázquez v. Honduras), these standards must be
read in conjunction with Article 1.1 of the Convention, which establishes the
twofold obligation of states to respect human rights and to ensure to all
inhabitants exercise of those rights. The
Court interpreted that provision as an imperative obligation to organize any
state system in such a way as to provide such guarantees.
As a result, to the extent that the Argentine system of justice has
withheld its protection, in this case against torture, the Argentine State has
failed to meet its obligation with respect to the guarantee. The
judgment, based on a confession extracted under duress, also violates Article 15
of the Convention against Torture, which recently entered into force. That provision specifically stipulates that the States
parties must ensure that no statement shown to have been obtained under torture
may be invoked as evidence in any proceeding.
Argentina has signed and ratified that new instrument for the
international protection of human rights. 2.
The Facts: In this
case, the San Martín Federal Court admitted a confession made by Osvaldo López
before the military court tried him in 1977.
The Court affirmed that it had not been proved that that confession had
been obtained under duress or through any other type of coercion. However, in the same proceeding, the Court refused to accept
the taking of evidence that might have demonstrated the existence of such
coercion. At the same time, for
reasons of form, it rejected evidence introduced by the defense aimed
specifically at proving the existence of such coercion and thus the nullity of
the confession as evidence. In that
way, López’ confession, without any other supporting evidence, was the only
piece of evidence that incriminated him and enabled the Court to uphold the
verdict and simply reduce the length of the sentence. As
may be seen in proceedings before this Commission, López had been interrogated,
along with other noncommissioned officers of the Air Force, in April 1976, about
acts of sabotage against Mirage aircraft, which in any event could not have
caused damage but simply adulterated the fuel.
At that time nothing pointing to his involvement.
In 1977, accused by third parties, he was abducted and held as a missing
person in clandestine Air Force installations, where he was seen by Miriam
Levin, a survivor of the Argentine concentration camps who has testified before
the National Commission on the Disappearance of Persons [Comisión Nacional de
Desaparición de Personas (CONADEP)] and in the case against the
commanders-in-chief. López escaped
from one of these installations located on Virrey Cevallos street in Buenos
Aires. His family was then
subjected to severe persecution and threats, including the search of three
family homes, until López once again turned himself in to Air Force authorities
at the urging of relatives and family friends.
Although he turned himself in in Córdoba, he was taken by helicopter to
the Morón VII Air Brigade Base near Buenos Aires. It was under those circumstances that López “confessed”
to a military court that he had perpetrated an act of which there was no
corroborating evidence. It
is important to note that at that time the Morón VII Air Brigade was one of the
many clandestine detention centers used by the military dictatorship to hold the
“desaparecidos” during their interrogation and prior to their
elimination. The detention
conditions in those places, which the military called “prisoners’ meeting
places (Lugares de Reunión de Detenidos – LRD)” were solitary
confinement and prolonged periods of incommunication.
In this connection see Nunca Más, the report of the National
Commission on the Disappearance of Persons, Eudeba, Buenos Aires, 1984, pp. 89
and 146-148. Cited therein is the
testimony of several survivors of the LRD in the VII Air Brigade, including that
of Luis Pereyra, who–like Osvaldo López–turned himself in and was then
tortured for two days at the brigade’s headquarters (p. 148). In
the same decision in the aforementioned Velázquez case, the
Inter-American Court of Human Rights has just affirmed that “protracted
periods of solitary confinement and compulsory incommunication … represent, in
and of themselves, forms of cruel and inhuman treatment, damaging to the
psychological and moral freedom of persons and the right of every prisoner to
due respect for inherent inhuman dignity, which constitute for its part a
violation of the provisions of Article 5 of the Convention …” In
the same military proceedings, the witness Gladys Vilma Auad, denied knowledge
of the acts that López had attributed to himself.
The third person named in that “confession,” Osvaldo Oscar Rosson,
who allegedly incited López to the acts of sabotage, could not be found because
disappeared after his abduction by security forces in may 1977, as shown by the
inclusion of his name on the CONADEP lists (APPENDIXES to the CONADEP report,
Eudeba, Buenos Aires, 1984, p. 399). Miriam
Lewin and several of López’ relatives corroborate not only López’
abduction and escape on the first occasion, but also the threats to the family
and searches of their homes, which created the coercive environment in which López
made his statement. López’
abduction and escape on the first occasion, but also the threats to the family
and searches of their homes, which crated the coercive environment in which López
made his statement. López’ first
abduction, it should be mentioned, took place in the company of his girlfriend
Maria Jiménez, a customary practice under the dictatorship, which surely had an
influence on his morale when he was subsequently obliged to make a statement. However,
the Federal Court rejected that evidence. In
Miriam Lewin’s case, it accepted her testimony with regard to the
concentration camp of the Escuela de mecánica de la Armada but considered it
insufficient to prove the existence of a similar center on a property on Virrey
Cevallos street. At the same time,
it rejected the means of taking evidence offered by the defense (summons of the
owner to ascertain who occupied the property on those dates and an on-site visit
to compare it with the sketch provided by Miriam Lewin and López), which would
have helped to prove the coercion surrounding López’ “confession.” It
also rejected the testimony of López’ relatives concerning the searches by
arguing that a single witness was involved, an argument also used to reject
Miriam Lewin’s testimony on the Virrey Cevallos property. On
this point it is important to point out that the use of the rule “testis unus
testis nullius” inherent to the system in which the value and admissibility of
evidence are predetermined (sistema de pruebas tasadas) contradicts the
express decision of the Court in this case the system whereby the judge is given
the leeway to admit evidence (sistema de libres convicciones).
In Argentina, the National Code of Criminal Procedure, which is regularly
applied in federal cases, provides for the former system (pruebas tasadas);
the Code of Military Justice, applicable to this case since it was originally a
case within the jurisdiction, provides for the latter (libres convicciones).
Curiously, however, the federal Court applied the system giving the judge
leeway for the prosecution the reverted to the more restrictive system (for
example, “testis unus testis nullius”) to invalidate the evidence presented
by the defense, which would have been able to prove coercion and resulted in the
annulment of the “confession.” It
is exceptional for the San Martín Federal Court to apply such stringent
criteria in evaluating the evidence of duress and the nullity of the confession. In the aforementioned Francomano case, the Argentine
Supreme court said that “there are serious presumptions in the records that
indicate” that the incriminating statement “was not a product of the free
expression” of the deponent’s will, and that statement is therefore ruled
invalid. The confession the
defendant made to the police was also ruled invalid because his attorney was not
present. In other words, under
current Argentine Law, presumptions of the existence of these flaws
invalidate the evidence thus produced, without its being necessary to prove
torture beyond any doubt. In
addition, the Court rejected the arguments and evidence on the widespread
practice of duress under the military dictatorship, especially in cases heard by
military courts and in cases of persons accused of subversive activities. Such defense arguments were based not only on the judgment of
the Argentine courts in the cases known as Case 13, against the
commanders-in-chief, but also on the Sabato report (cited above), and in the
very Report on the Human Rights Situation in Argentina, produced by this
Honorable Commission in 1980 (OEA/Ser.L/V/II.49, doc.20, April 11, 1980; see in
particular pp. 217-244). The
judgment in Case 13, the Sabato Report, and the IACHR report itself make it
possible to affirm that–at the time the acts were committed–in almost all
similar cases in which the activities of clandestine organizations were being
investigated, torture was commonly resorted to by the security forces.
This being the case, it is absolutely illogical for the Court to presume
otherwise and consider legitimate a confession extracted in a clandestine
military installation. 3.
International Law: Our
party considers that the Commission should in this case decide in favor of the
principle that the obligation of states to provide guarantees with respect to
the provisions of articles 5 and 7 of the Convention extends to refusing to
admit juridical-procedural acts that violate these provisions, especially since
that obligation comprises a real commitment to investigating the facts making it
possible to establish that there was indeed a violation of the norms of due
process and the physical integrity of persons. Further
more, we request the Commission to resolve that, in connection with the facts of
this case, the Argentine Government has failed to meet that obligation. It
may be concluded from the foregoing that what is at issue is not simply a case
of appraising the evidence, in which the judge would have to be given broad
autonomy. On the contrary, our
client is affected by a stance of the Argentine court that prevents him from
demonstrating the nullity of the only piece of incriminating evidence.
That stance constitutes a violation of the obligation to uphold Article
1.1 of the Convention. In addition,
since the result was a prison sentence based on a confession extracted under
duress, that stance is a violation of the aforementioned Article 15 of the
Convention against Torture. 4.
Friendly settlement: The
Argentine Government has repeatedly come forth in these proceedings to request
that the case be closed, which proves that it is not interested in the
Commission’s proposal to place itself at the disposal of the parties with a
view to reaching a friendly settlement. Consequently,
our party is also of the view that a friendly settlement is not possible under
the circumstances, and that a resolution is therefore in order.
15.
That, as shown in the case files, in point V of the judgment of the San
Martín Court, the complainant was acquitted of the crimes of which he
had been found guilty by the Supreme Council of Military Justice and was
released because he had “served out the sentence that a court, made up of
judges appointed pursuant to the constitutional mechanism in Argentina for this
purpose, had imposed on him after hearing his testimony, considering the
evidence presented in his defense, which it found inadequate to substantiate the
acts he denied, and further after thoroughly reviewing the evidence against
him”;
16.
That, similarly, as shown in the case files, violations of judicial
guarantees committed to the detriment of the complainant in the course of the
trial that ended with a guilty verdict on November 23,1 978, were righted or
rectified by the judgment of the National Supreme Court of Justice of September
14, 1987, which provided for a process of review of the case as established in
Law 23,049, exactly as requested by the counsel for the complainant in his
original petition to the IACHR;
17.
That, furthermore, the review process before the San Martín Court took
place, was may be seen in the case files, affording the defense every
opportunity to voice its complaints and formulate its petitions, with the
prosecution receiving notification of the proceedings, allowing almost all the
taking of evidence requested by the defense and arranging, at the government’s
initiative, for other procedures with a view to clarifying the facts, which
indicates that in the review of the case the judicial guarantees provided for in
Article 8 of the American Convention on Human Rights were respected;
18.
That finally, as indicated above and in the case files, the complainant
has been free since November 20, 1987, without any conditions whatsoever, on the
basis of the aforementioned decision of the San Martín Court, which has the
authority of res judicata, wherefor the Commission considers that it has
responded to the points of the petition, based on respect for the human rights
of the party concerned;
19.
That, at this point in the case, the objections of counsel for the
complainant with regard to alleged flaws in the proceedings reviewed by the San
martin Court of Appeals are not admissible, since that those proceedings were
annulled in part by the National Supreme Court of Justice.
It was therefore possible for the Court of Appeals to review the
proceedings and for that reason–the cause petendi having been
achieved–the Commission refrains from assessing or beginning to assess an act
or proceeding that took place in proceedings that are now null and void and no
longer have any legal validity, without prejudice to the fact that the act or
situation occurred prior to the ratification of the American Convention on Human
Rights by the Argentine Republic. The
statement made by the Argentine Government in the instrument of ratification to
the Convention that “obligations undertaken under the Convention shall apply
only to events occurring subsequent to the ratification of the aforementioned
instrument” therefore applies;
20.
That, in the opinion of the Commission, Case 9635 may be deemed concluded
in light of the foregoing and because the alleged violation has disappeared or
ceased to exist.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES:
1.
To declare this case concluded and order the filing thereof with no
further proceedings.
2.
To thank the Government of the Argentine Republic for its cooperation in
resolving this case;
3.
To publish the present resolution in the Annual Report of the Commission
for 1987-88, and
4.
To notify the Government of the Argentine Republic and the complainant of
this resolution.
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