RIGHTS-ARGENTINA: Jurists Say Case on Theft of Minors Weakened

By Marcela Valente Reprint | | Print |

Marcela Valente

BUENOS AIRES, Jun 12 1998 (IPS) - Legal experts in Argentina fear that the case against former commanders of the 1976-83 dictatorship on charges of theft of minors has been drastically weakened by the arrest of ex-dictator Jorge Rafael Videla.

Hopes soared this week among human rights groups in the wake of Videla’s arrest, over the possibility of putting the former military commanders, pardoned by President Carlos Menem in 1990, back in prison on new charges of theft of minors.

But doubts raised by several legal experts as to the solidity of the legal basis for the case dampened those hopes.

And while an opinion poll by Catterberg y Asociados indicated that three out of four Argentines wanted investigations to continue into the human rights violations committed by the regime – which “disappeared” some 30,000 people, according to rights groups – more than half said they believed Videla’s arrest was “a political maneuvre.”

Videla – a former commander-in-chief of the army – was arrested Tuesday on the order of federal Judge Roberto Marquevich, who is investigating those responsible for the appropriation of five minors, presumably children of “disappeared” victims. The judge is seeking to prove that the former general participated in planning the systematic theft of children.

For the time being, Videla is waiting in prison for Marquevich to decide whether he will remain in custody and be tried, or will be released. He challenged the judge’s authority Thursday by refusing to testify.

Former federal prosecutor Luis Moreno said legal charges could not be filed against Videla and the rest of the dictators, because “they were absolved of the crime of theft of minors” by the Federal Chamber in 1985, in a ruling confirmed by the Supreme Court of Justice.

He pointed out that people cannot be tried twice for the same crime, which would violate their constitutional safeguards.

“The Federal Chamber did not include theft of children as part of the dictatorship’s criminal plan, because there were few proven cases, and the court considered them to be isolated, so they absolved the former commanders for that crime.

“Since they were sentenced to life in prison for homicide and torture, it did not matter much that they had been absolved on the charges of kidnapping children,” said Moreno, who served as assistant prosecutor in the 1985 trial against the former military commanders. But, he added, their release with the 1990 pardon changed that situation.

Human rights groups estimate that around 300 young children abducted with their parents or born in captivity “disappeared” during the dictatorship. The minors – 59 of whom have been found – are thought to be living with their new families under false names. Some may have been “adopted” by those who took them from their parents.

Alberto Pedroncini, attorney for the rights group Grandmothers of the Plaza de Mayo – who are looking for their grandchildren – agreed with Moreno that the case might lack the legal elements necessary to obtain a conviction.

“For starters, the former commanders were absolved of the crime of theft of minors, and the Federal Chamber, in an unusual ruling, clarified that they could not be prosecuted for those crimes in the future,” he said.

Pedroncini questioned Marquevich’s reasons for ordering Videla’s arrest. He agreed with Moreno that the only way to reach those who planned the abductions – apparently among those who gave orders at the top of the chain of command – was to begin at the bottom. “But Marquevich suddenly skips over all the links, and captures Videla” before others have been arrested, he added.

If Marquevich wanted to prove that Videla had issued the orders, he should have continued climbing up the chain of command from below – from military hospital authorities, to the chief of a particular zone, to the head of the army – and only then to the commander-in-chief.

“That is the first cause of my concern – why did Marquevich, who was investigating the base of the pyramid and had arrested individuals directly involved in appropriating children, suddenly leap up to those who apparently planned the crime, without reconstructing the chain of command? Skipping those links could weaken the legal proceedings in an extremely dangerous manner,” he warned.

“From an emotional and ethical point of view, I as the attorney for a group of Grandmothers of the Plaza de Mayo fully share their satisfaction with Videla’s arrest. But as an attorney, I believe” the necessary footwork was not completed before the arrest, he added.

Pedroncini said Marquevich’s haste provided Videla’s defence counsel with arguments that they had already begun to use. The lawyers maintain that their client was already tried and sentenced.

He pointed, however, to the possibility of an analysis of whether the Federal Chamber had the right to extend the effects of its earlier ruling beyond the limit of the sentence itself, thus affecting possible future action by other judges who might find elements to return to the question.

Former prosecutor Moreno also admitted that those directly involved in the abductions of minors – medical staff attending births, for example – could be tried.

The Grandmothers of the Plaza de Mayo initially filed their lawsuit on charges of theft of minors with federal Judge Antonio Bagnasco, who had begun to gather evidence and hear testimony from midwives, nurses and other medical practitioners who admitted that newborn infants had been removed by military personnel from the Campo de Mayo Hospital, used as a clandestine prison in the late 1970s.

Just under three-quarters of Argentines interviewed by the Catterberg y Associados polling firm said they approved of Videla’s arrest. But more than half suspected the motives underlying the move.

One of the versions circulating is that in line with his aspirations to a third consecutive term, President Menem is trying to give a new image of a leader who takes a more subordinate position to court rulings, to counteract past criticism.