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Tuesday, December 6, 2016
- The slow progress that human rights cases are making as they wind their way through the courts in Argentina has awakened fears among activists of a repeat of what happened in neighbouring Chile, where former dictator Augusto Pinochet died recently without ever having been sentenced.
Human rights attorneys and prosecutors alike told IPS that the current political scenario is favourable to advances in human rights cases dating back to the 1976-1983 dictatorship, and that some of the lawsuits are moving forward in an orderly, efficient manner, towards an oral trial and eventual sentencing.
But they also acknowledged the persistence of bureaucratic hurdles in the justice system which are taken advantage of by defence attorneys for the accused, as well as by judges reluctant to try former senior military officers who held high-level posts in the dictatorship, former police officers, or former civilian officials in the regime who are still influential.
The Centre for Legal and Social Studies (CELS), a local human rights group, estimates that some 1,400 members of the military and the police and civilians are facing lawsuits since the reopening of the trials in June 2005, when the Supreme Court declared unconstitutional the two amnesty laws that let human rights violators off the hook in 1986 and 1987.
Of that total, 260 have been arrested for human rights abuses, including 70 who are under house arrest because of their advanced age, like former dictator Jorge Videla. Five others were declared unfit to stand trial due to health reasons, such as former navy chief Emilio Massera. Meanwhile, 45 are fugitives from justice and 50 were released from prison because legal deadlines expired.
In addition, at least 100 of those involved in the "dirty war" against leftists and other opponents of the regime, which according to human rights groups forcibly disappeared around 30,000 people, have died. Among the members of the ruling junta who passed on without ever being convicted was former General Guillermo Suárez Mason.
The cases that have been reopened since the amnesty laws were struck down have been added to legal proceedings that got underway in the 1990s but have not yet led to a conviction, such as trials for the theft of babies of political prisoners, or involvement in Operation Condor, a coordinated strategy among military governments in South America in the 1970s and 1980s aimed at tracking down, capturing, torturing and eliminating dissidents.
To avoid lagging behind the efforts of the victims of human rights, the office of the public prosecutor created the "unit of assistance for cases of human rights violations during the state terrorism" in 2004, and last year it urged prosecutors "to take every precaution, in order to expedite the legal proceedings."
But the system has responded slowly. "There are multiple factors," Pablo Parenti, assistant director of the special prosecutor's unit, told IPS.
"There are cases in which the period of investigation stretches out over time and which take too long to go to trial, and others that are delayed because it takes so long to get decisions on the various legal actions filed by the different parties."
Parenti said the public prosecutor's office has done what it can to create the conditions enabling these cases to move forward. He mentioned the progress made by some of the trials that have reopened since the amnesty laws were scrapped, such as the prosecution involving the multiple abuses committed by the First Army Corps, one of the most high-profile cases because of the huge number of victims.
"The First Army Corps case is moving in an orderly, rapid manner towards the oral trial phase, which means that between this year and the next there will be many trials," he said.
He admitted, on the other hand, that slow progress is being made in the process involving ESMA (the Navy School of Mechanics), the dictatorship's most notorious torture camp.
CELS lawyer Carolina Varsky said that since the amnesty laws were overturned, "the scenario is favourable to bringing human rights violators to trial."
She added, however, that so far only two of them have been tried and convicted: former police officer Julio Simón, alias "Julián the Turk", and former police chief Miguel Etchecolatz, who were sentenced last year in separate cases. Both men also face charges in connection with a number of other victims.
The next to be brought to trial, probably in March, will be a Catholic priest, Christian von Wernich, who is implicated in cases of torture and murder.
"We must speed things up because the accused are going to die," said Varsky, who noted that in some provinces like Córdoba, Chaco, Mendoza, Salta or Santiago del Estero, legal proceedings move even more slowly. In fact, some have ground to a complete halt, while others have never even gotten underway.
Varsky, who heads CELS' programme for "memory and the struggle against impunity for state terrorism", says the cases get bogged down in the Supreme Court's Cámara Nacional de Casación Penal, the federal courts, and the various courts of first instance.
"This has to do with our penal procedures system," she said. "I don't see it in political terms; on the contrary, I see judges who are determined to move ahead, especially in the last few years, but for example in the investigation stage things could move faster, but nevertheless that stage drags on for years in our system."
Alcira Ríos, a legal representative for members of the human rights group Abuelas (Grandmothers) de Plaza de Mayo, told IPS that "we human rights lawyers are thinking about filing a joint complaint in the courts, because we believe it is clear that the hurdles lie in the Cámara Nacional de Casación Penal, where all of these legal processes get held up."
The cases that have been delayed the longest began in the 1990s against former junta members and lower-ranking officers.
At that time, human rights organisations found legal loopholes that allowed them to file lawsuits despite the "punto final" and "due obedience" amnesty laws passed in 1986 and 1987 and the pardons granted to junta members and other senior officers in 1989 and 1990 by then president Carlos Menem (1989-1999).
That led to the 1998 arrest of Videla and other officers in a case involving the theft of small children of political prisoners. It also led to the opening of the Operation Condor case, which could soon go to oral trial.
Both of these cases have already dragged on for more than 10 years.
In an interview with IPS, Luciano Hazan, a lawyer for the Abuelas de Plaza de Mayo, said that sentences have been handed down in cases against people charged with stealing the children of the victims of forced disappearance.
But the main case, which led to the conclusion that there was a "systematic plan" to steal the babies and young children of the "disappeared", and the case against Videla, are both still bogged down in the courts.
And Videla is not even under arrest as the trial goes on.
"It's reasonable, we don't want the accused to be in pretrial detention forever, but we also don't want them to be released or to die without being convicted," said Hazan.
Activists and lawyers are afraid that the delays will leave the cases hanging, as occurred with Pinochet in Chile, who died at age 91 on Dec. 10 without having been convicted in any of the numerous cases against him.
Hazan said that in Argentina there are "structural problems in the way the criminal justice system functions." But he also asserted that there is a lack of political will in some cases. "Some judges in the Cámara de Casación Penal, for ideological reasons, take advantage of the system's shortcomings to delay the cases," he maintained.
Parenti also agreed that the Cámara de Casación Penal, which has a number of chambers, is slow in handing down resolutions. For instance, for the last two years, the court has been considering a verdict from a first instance court that declared the pardons for former junta members unconstitutional.
In order for Menem's presidential pardons – the last redoubt of impunity – to be overturned once and for all, the Cámara de Casación Penal must take a stance. The case will then go to the Supreme Court, which is expected to annul the pardons – if the case ever gets that far.