RIGHTS-ARGENTINA: Pardon for Junta Members Ruled Unconstitutional

By Marcela Valente Reprint | | Print |

Marcela Valente

BUENOS AIRES, Mar 19 2004 (IPS) - A federal judge in Argentina ruled Friday that two of the 10 presidential pardons that let the former commanders of the 1976-1983 military dictatorship off the hook are unconstitutional.

The unprecedented legal decision, which applies to two of the pardons benefiting hundreds of military officers that were signed in 1989 and 1990 by then-president Carlos Menem (1989-1999), was handed down by Federal Judge Rodolfo Canicoba.

The ruling can be appealed all the way up to the Supreme Court. But if it is ultimately upheld by the highest court, prosecutors could seek the revocation of the rest of the pardons that allowed the commanders of the ”dirty war”, in which 10,000 to 30,000 leftists, activists and real or suspected opponents of the regime were tortured and ”disappeared”.

The two pardons in question benefited six military officers, three of whom have since died: José Montes, Andrés Ferraro and Adolfo Sigwald. Two of the other three – General Guillermo Suárez Mason y Juan Sasiaín – are under arrest in connection with stealing babies born in captivity to political prisoners who were later ”disappeared”.

An arrest warrant has been issued for the third, Jorge Olivera.

The decision sets an important precedent by ruling that the pardons are unconstitutional, on the grounds that since the 1990s, the Argentine constitution has recognised the validity of international conventions that establish that neither amnesties nor pardons are applicable in the case of crimes against humanity.

Judge Canicoba stated in his decision that ”state terrorism represents the gravest form of terrorism”, ”forced disappearance is the worst human rights violation,” and the dictatorship’s high command ”planned a methodology of terror.”

He also wrote that the president’s prerogative to grant pardons ”is not exempt” from the duty of judges to ensure that a given measure is constitutional.

Human rights groups were pleased with the ruling, which will serve as support for their demands that the former members of the junta be held accountable for gross human rights abuses committed by the dictatorship.

The former commanders have consistently invoked the presidential pardons to refuse to testify in legal proceedings involving cases of torture and forced disappearance.

”This measure fills us with satisfaction, because it represents one more step forward against impunity,” Nora Cortiñas, with the Mothers of the Plaza de Mayo Association, told IPS.

”It is very good news,” said Estela de Carloto, president of Grandmothers of the Plaza de Mayo.

The Mothers and Grandmothers of Plaza de Mayo are groups representing the relatives of victims of the de facto regime.

De Carloto was a plaintiff in the case heard by Canicoba. Her daughter Laura was two months pregnant when she was abducted.

De Carloto found out that before she was killed, Laura gave birth to a baby boy who she named Guido after his father. But the activist has been unable to find her grandson.

When he was informed of Canicoba’s ruling, President Néstor Kirchner said ”it was high time” that the courts pronounced themselves against the presidential pardons handed out to the former dictators.

The legal decision was issued as part of a case involving the investigation of human rights abuses committed in clandestine torture centres that answered to the First Army Corps in the central part of the country, including the capital, when Suárez Mason was the head of the Corps.

After the restoration of democracy, Suárez Mason was tried in connection with 635 human rights violations perpetrated in 40 secret detention centres under his command.

But he fled the country, was extradited to Argentina, and Menem pardoned him before he was convicted. He is now under arrest for the theft of babies and in connection with the 1979 murder of 20 members of the Montoneros, a leftist group.

Canicoba’s decision means Suárez Mason will also have to remain in prison for the rights abuses committed in the area under the control of the First Army Corps.

The case was reopened after the Argentine Congress annulled the ”due obedience” and ”full stop” amnesty laws in August 2003.

The laws, which were passed in 1985 and 1987, ended the prosecutions against lower-ranking members of the military who argued that they were only following orders when they kidnapped, tortured and killed political prisoners.

The two laws were approved after most of the former commanders had already been convicted and were serving time in prison, but before they were pardoned by Menem.

The due obedience and full stop law were already overruled in 1998, and since then, no one has been able to invoke the protection granted by the amnesties.

However, the decision was not retroactive, and those who had already benefited by the amnesties continued to be protected, until Congress annulled the laws on the grounds that neither the statute of limitations nor an amnesty could apply to the brutal repression carried out by the dictatorship.

After the two laws were annulled, several cases were reopened, including the one involving the First Army Corps.

With regards to the presidential pardon, the prosecutors asked Canicoba to take into account the same arguments that have been invoked by several judges in recent years to declare the due obedience and full stop laws unconstitutional, and which were taken up by Congress when it annulled the two laws.