Crime & Justice, Headlines, Human Rights, Latin America & the Caribbean

RIGHTS-ARGENTINA: Last Vestiges of Capital Punishment Abolished

Marcela Valente

BUENOS AIRES, Aug 8 2008 (IPS) - The Argentine Congress eliminated the Military Code of Justice, thereby eliminating a special jurisdiction dating back to the 19th century, as well as burying the last vestige of the death penalty and ending punishment for homosexuality.

The Senate voted unanimously to revoke the Code, originally approved in 1895 and later converted into law in 1951, with very few later modifications.

Military crimes have now been incorporated into the standard Criminal Code, and a military criminal procedure in time of war has been created. In addition, a new disciplinary code excludes punishment for homosexuality, includes penalties for discrimination and sexual harassment, and replaces time in the stockade or confinement with fines.

Until now, military personnel could be judged by their peers and did not have the right to a lawyer. Retribution for the most serious crimes – treason, espionage, rebellion and mutiny – was the death penalty, which does not exist in the country’s civilian justice system.

Disciplinary action under the military code ran counter to respect for human rights as upheld by the constitution. Under the new law, approved on Wednesday night, which enters into force in six months’ time, misdemeanours will merit a warning or fine, and the most serious crimes will result in dishonourable discharge.

“This law brings the military within the scope of the constitution. It’s a big step forward for the democratisation of the armed forces and for the justice system in general,” Gastón Chillier, the head of the Centre for Legal and Social Studies (CELS) and one of the legal experts who worked on the draft law, told IPS.

“It is a cutting-edge reform in Latin America,” Chillier said. In some countries in the region, civilians may be tried by military tribunals, and in others common crimes may fall under military jurisdiction. “This is a better law, because it directly eliminates the special jurisdiction” of courts martial, he said.

New laws passed in 1984, during the administration of Raúl Alfonsín (1983-1989), gave civilian federal appeals courts powers to review the decisions of military tribunals.

This reform made way for the historic trials of the leaders of the 1976-1983 military dictatorship, accused of crimes that the courts martial had left unpunished.

But although the members of the dictatorship’s military junta were convicted and sentenced by civilian courts, shortly afterwards they were pardoned and dozens of prosecutions were cut short under amnesty laws passed in the mid-1980s.

When the pardons and the amnesty laws were struck down in recent years, defence counsel for the accused military officers have continued to claim the jurisdiction of military tribunals, without success.

The repeal of Argentina’s military code of justice and the extension of constitutional rights to the military sphere fulfils a commitment made by the government to the Inter-American Commission on Human Rights (IACHR), as part of an amicable settlement of a petition against the state brought to the IACHR by a retired military officer in 2004.

Army Captain Rodolfo Correa was arrested and sent to a military prison for 90 days in 1997 by a military tribunal, after testifying against superior officers in a civilian court in the case of the 1994 murder of a conscript soldier stationed at the same base.

Under the provisions of the military code that has just been repealed, he was not allowed a lawyer, and was not told what evidence was held against him.

Correa was captain of a regiment in Zapala, in the southern province of Neuquén, where soldier Omar Carrasco was murdered. Two soldiers and a junior officer were accused of the crime. The case caused such an outcry that the government of Carlos Menem (1989-1999) was forced to end mandatory military service.

At his court martial, Correa was punished for publicly testifying about the responsibility of officers of higher rank in the murder and its cover-up. Shortly after, he retired from the army and became a lawyer.

Under the auspices of CELS and other jurists, Correa took his case to the IACHR, part of the Organisation of American States (OAS) justice system, in 2004. The petition maintained that Correa’s punishment was unconstitutional because he was denied due process.

An amicable settlement of the petition was arrived at in 2006. The Argentine state apologised to Correa and promised to reform the Military Code of Justice. The Defence Ministry convened a group of military and civilian jurists which spent months working on the draft law.

One of the members of this group was Supreme Court Justice Eugenio Raúl Zaffaroni, a professor of criminal law.

In his view, just as the Criminal Code has special laws for prosecutors and judges, there should also be special laws for military personnel.

The law approved Wednesday provides that even in time of war, every effort should be made to use the ordinary justice system for cases involving military personnel. If that is not possible, the military judges in the case must abide by the Criminal Code, and their verdict will not be regarded as final until it has been ratified by a civilian court in peacetime.