I. BACKGROUND
A. CONTEXT
1. This case concerns events that took place on January 23 and 24, 1989, at the barracks of the General Belgrano Mechanized Infantry Regiment No. 3 (RIM 3), located at La Tablada, Buenos Aires province, and the consequences ensuing from those events for 49 persons on whose behalf a complaint was filed with the Inter-American Commission on Human Rights (hereinafter called the Commission). On January 23, 1989, 42 armed persons launched an attack on the aforementioned barracks. The attack precipitated a combat of approximately 30 hours duration between the attackers and Argentine military personnel which resulted in the deaths of 29 of the attackers and several State agents.2 The RIM 3 barracks had an arsenal from which the attackers, after having entered the site, seized a number of weapons which they used to defend their positions.
2. Although democracy was restored in Argentina in December 1983 after almost eight years of military dictatorship, several uprisings involving the armed forces have occurred since then. Specifically, little over a month before the events at La Tablada, on December 12, 1988 a military uprising led by Colonel Mohamed Ali Seineldin took place in the Villa Martelli military base.
3. In their complaint, the petitioners allege that, after the fighting at the base had ceased, State agents participated in the summary execution of four of the captured attackers, the disappearance of six others, and the torture of a number of other captured attackers, which occurred both in the barracks and in police facilities. Following the attack, five MTP members were arrested in an area near the barracks, and two others turned themselves in voluntarily to the authorities who detained them. According to the petition, these seven persons were tortured physically and psychologically. The same persons, members of the MTP, as well as thirteen attackers captured in the RIM 3 barracks at La Tablada on January 24, 1989, subsequently were tried and convicted under Law 23.077, known as "Law for the Defense of Democracy", in trial No. 231/89 "Abella, Juan Carlos y otros s/rebelión" (hereinafter Abella) and given prison terms that ranged from 10 years to life. In accordance with the provisions of the law, the trial began before a court of second instance, the Cámara Federal de San Martín, which handed down its sentence on October 5, 1989. The petitioners appealed this ruling by means of a special appeal, which was rejected by the San Martín Court. The defense then filed an appeal directly to the Supreme Court, which dismissed it on March 17, 1992.
4. The petition also alleges that the authorities acted with the intention of covering up the violations committed by State agents. Specifically, the petitioners state that those violations were reported during the Abella proceedings, but were investigated separately in so-called "parallel proceedings". According to the petitioners, these "parallel proceedings" were not conducted in a serious or thorough manner, resulting in a lack of clear or conclusive information with respect to the violations alleged in connection with the events of January 23 and 24 at La Tablada.
B. EVENTS ALLEGED BY THE PETITIONERS
5. On September 14, 1992, Martha Francisca Fernández de Burgos and Eduardo Salerno filed a petition with the Commission against the Argentine Republic (hereinafter "the State" or "Argentina"), denouncing these and other crimes supposedly committed by State agents in connection with the events at the La Tablada base. Specifically, the petition alleges violations of Articles 4 (right to life), 5(1) (right to humane treatment), 7(5) (right to be tried within a reasonable time), 8 (judicial guarantees), 24 (right to equal protection), and 25 (right to judicial protection) of the American Convention on Human Rights (hereinafter "the American Convention").
i. The Victims
6. The petitioners' complaint was filed on behalf of 49 victims, whose names appear below, and which are subdivided based on legal and factual criteria as described in the complaint.
a. Sentenced to prison (20 persons)
Life: Claudia Beatriz Acosta, Miguel Angel Aguirre, Luis Alberto Díaz, Roberto Felicetti, Isabel Margarita Fernández de Mesutti, Gustavo Alberto Mesutti, José Alejandro Moreyra, Carlos Ernesto Motto, Sergio Manuel Paz, Luis Darío Ramos, Sebastián Joaquín Ramos, Claudio Néstor Rodríguez, and Claudio Omar Veiga.
20 years: Juan Antonio Puigjané.
15 years: Dora Esther Molina de Felicetti.
13 years: Miguel Angel Faldutti and Daniel Alberto Gabioud Almirón.
11 years: Juan Manuel Burgos and Cintia Alejandra Castro.
10 years: Juan Carlos Abella.
b. Disappeared (6 persons)
Carlos Alberto Burgos, José Alejandro Díaz, Juan Manuel Murúa, Iván Ruiz, Carlos Samojedny, and Roberto Sánchez.
c. Unlawfully executed (4 persons)
Berta Calvo, Francisco Provenzano, Pablo Martín Ramos, and Ricardo Veiga.
d. Dead (19 persons)
Eduardo Aguero, Oscar Allende, Ricardo Arjona, Julio Arroyo, Jorge Baños, Pablo Belli, Pedro Cabañas, José Luis Caldu, José Chebaia, Claudia Deleis, Félix Díaz, Roberto Vital Gaguine, Juan González Rabuggetti, Claudia Lareu, Horacio Luque, Miguel Angel Luque, Carlos Maldonado, Sergio Mamani, and Aldira Pereyra Nunes.
ii. Events
a. The attack and excessive use of force
7. The petitioners allege that the attack on RIM 3 was intended to abort a military coup d'etat. The petition starts the description of the events as follows:
On January 23, 1989, a group of members of the Movimiento Todos por la Patria decided to enter the La Tablada barracks because of information that a new military coup was being planned there...that group of persons took action in the certain belief that the coup was imminent, and they based their action on a precept in the Argentine National Constitution, Article 21, which establishes for citizens the obligation to "take up arms in defense of the Constitution."
8. The group, consisting of some 40 persons, broke into the barracks at approximately 6:30 a.m., by ramming through the gate in their vehicles. The petition clarifies:
...it is important to point out that the attackers used their personal vehicles, were carrying their personal identification papers and were using civilian weapons purchased in conformity with existing rules on this subject for acquisition.
9. The petition continues by stating that one group took over the barracks stockade, where several soldiers were found under arrest, and the rest of the group infiltrated the interior of the barracks. After a short time, the attackers were surrounded by approximately 3,500 police forces, who cordoned off the barracks, and subjected them to indiscriminate fire. Three hours after the attack had started, the attackers signaled their intention to surrender by waving white flags. The petitioners stated that, despite these efforts, the following occurred:
...close to noon, troops arrived under the command of General Arrillaga. With their arrival, the gunfire began anew, and was stepped up from rifles and automatic pistols to tanks, armored vehicles and cannons. Some parts of the barracks were reduced to rubble, without any acceptance of the attackers' surrender or even any attempt to engage them in dialogue. Incendiary bombs were also used.
10. The petitioners allege that the State engaged in "bloody repression" to retake the RIM 3 barracks at La Tablada. They described this event as "unnecessary, without measure, disproportionate, inhumane, ethically indefensible, immoral and legally violative of all current legislation on this subject." They make the following points in the complaint:
a) The La Tablada facility was surrounded by civilian buildings;
b) Immediately after they entered the barracks, the attackers were surrounded by a police force totaling 3,500 members, who remained there until the army troops arrived at mid-morning on January 23, 1989;
c) The army troops were made up of special forces (commandos), supported by armored vehicles, tanks, heavy machine guns, mortars and heavy artillery;
d) The troops had air support from a group of helicopters;
e) White phosphorus or incendiary bombs were used;
f) The group of attackers consisted of approximately 40 persons, using common civilian weapons, who had given clear signals of surrender starting at 9:00 a.m. on the day of the attack;
g) At the time mentioned in the preceding sentence, the number of dead and wounded on both sides was still small.
11. The petition also contains several remarks about the "domestic legislative framework under which the recovery of the barracks should have occurred," as well as "repressive methodology." In connection with the second point, they mention the attackers' attempt to surrender which occurred at 9:00 a.m. on January 23, 1989:
That offer was not accepted, and, to the contrary, was answered by renewed fire which forced the attackers to take cover in the RIM 3 buildings... Nothing that should have been done was done. To the contrary, the explanation given by the head of the repression forces, General Arrillaga, was fantasy, in that he said that he did not give the order to accept the surrender "since he did not have a megaphone."
12. In their communication of February 2, 1994, the petitioners state that all the material and human loss, including the deaths of the soldiers who were inside the headquarters:
...is the consequence and responsibility of that unnecessary bombardment, which was carried out more specifically for the physical elimination of persons, and the political utilization of an event which could have been resolved by much less bloody means.
13. A videotape submitted by petitioners to the Commission contains scenes of one part of the barracks where several persons were waving a white flag, followed by bomb explosions. The petitioners state in their communication of September 27, 1994, that the tape constitutes proof that the attackers had attempted to surrender during the morning of January 23, 1989.
14. The above mentioned video tape starts with a scene depicting explosions inside the RIM 3 barracks (they allege the explosives are napalm, or phosphorus bombs). In the following scene, an army instructor appears explaining that such explosives were never used in military uprisings; another instructor describes "marxist subversives" as persons without a fatherland, which would place them in a special category, worse than any other enemy. The petitioners explain that this is a part of the National Security Doctrine applied in Argentina during the most recent military dictatorship.
15. In other scenes of the videotape, some persons are seen inside a military base waving a white flag. According to the petitioners, this constitutes proof that the surrender attempts began on the first day of the attack, and that it refutes General Arrillaga's statement that it happened on the second day. The same military officer said that tear gas was not available to him at the time, but another part of the videotape shows a policeman with a large quantity of that very element.
16. The petitioners charge the violation by State agents of a number of rules of international humanitarian law during the recapture of the RIM 3 barracks. In this regard they mention the Teheran International Conference on Human Rights of May, 1968, which requested the United Nations General Assembly to enforce compliance with humanitarian rules of conduct in all armed conflicts. That conference also proposed a revision of the current rules to guarantee better protection of civilians, prisoners and participants in armed conflicts, and to proscribe the use of certain methods and means of warfare. Likewise, the petition refers to the 1970 Human Rights Congress at San Remo, Italy, which decided to create a special institute to study the best means of protecting human rights during armed conflicts.
17. The complaint continues by explaining the role played by the International Committee of the Red Cross between 1971 and 1976 to complete and develop the 1949 Geneva Conventions, which resulted in the approval of additional protocols relating to international armed conflicts and non-international conflicts. In 1980, a general convention on the use of certain weapons was adopted along with three protocols which banned the use of devices capable of slaughtering civilians and, in particular, restricted the use of fire bomb weapons, which, according to petitioners, appear to have been used in the recovery of the La Tablada barracks. Continuing their examination, the petitioners refer to legal doctrine developed by professors J. Pictet and Igor Blischenko relating to the observance of human rights and individual liberties during an armed conflict, as well as the restriction on and prohibition of the use of certain weapons. The complaint notes:
All these efforts, all these contributions and all these advances in the field of human rights have produced rules which the Argentine State has agreed to honor; all of these which were in effect, have been violated by the actions of State agents in the La Tablada case. This is also true of the principles of reason and of military science in particular regarding the definition of a military objective and adequate tactics, within a framework relating the ends to the means.
18. The complaint quotes the words of General Arrillaga who defined the opponent as "...the permanent enemy, in all times and in all places." According to the petitioners, this concept is the same as the definition of "subversive" contained in the Doctrine of National Security followed by Latin American armed forces during preceding decades. This same military officer, according to the petition, appears to have stated in the trial that he used fire bomb projectiles because "...fire brings both vermin and subversives out of their holes."
b. Surrender of the attackers and later events
19. The surrender of the attackers took place on January 24, 1989, at 9:00 a.m.. The thirteen persons arrested in the barracks were Miguel Angel Aguirre, Luis Alberto Díaz, Roberto Felicetti, Isabel Margarita Fernández, Gustavo Alberto Mesutti, José Moreyra, Carlos Ernesto Motto, Sergio Manuel Paz, Luis Darío Ramos, Sebastián Joaquín Ramos, Carlos Néstor Rodríguez, Claudio Omar Veiga and Claudia Acosta.
Torture, illegal executions and disappearances
20. According to the testimony of Sergio Paz, Miguel Aguirre, Claudio Rodríguez and Sebastián Ramos, all of whom stood trial in the Abella case, Francisco Provenzano was still alive at the time of the surrender. In effect, their testimony indicates that Provenzano, Luis Díaz, Carlos Motto and Claudio Veiga went out the back door of the building. "When they were told to give up and they saw their partners, Carlos Samojedny and I came out, both of us wounded but not seriously" (testimony of Roberto Felicetti). After the surrender all were taken down a road flanked by trees; they were searched for weapons, their papers were taken away, they were stripped and had hoods put over their heads. Some had their feet tied, others had their hands tied, and still others had both hands and feet tied. All of them were kicked and punched. Felicetti had his right arm broken. All of them were placed face down on the ground. Several saw Francisco Provenzano when he was naked, beaten and put with the others.
21. The group of persons who surrendered were later taken to some place within the barracks where they were held naked, hooded and face down on the ground. The prisoners allege that they were subjected to an ideological interrogation, accompanied by physical and psychological torture by their military captors, under the orders of an officer who said: "I tell you that I am God and I decide who lives and who dies." They were read a statement which indicated that the wounds they had suffered were the result of the combat. They were shown a list of thirteen names which, they noted, did not include Francisco Provenzano, Berta Calvo and Carlos Samojedny. The bodies of Provenzano and Calvo were later identified by family members, but Samojedny remains missing.
22. Carlos Ernesto Motto and Claudio Omar Veiga, both of whom stood trial and were convicted, mentioned the capture of Provenzano in their statements to investigative judge Gerardo Larrambebere. Motto stated that Provenzano had surrendered while still alive, but a soldier later told him that Provenzano had escaped. Veiga, in turn, stated that he had seen Provenzano surrounded by soldiers and then heard a shot fired by a pistol with a silencer. Provenzano's family identified his body by scars from a back operation. The complaint states that the body "...had the viscera out and appendages in parts as if it had been blown up by a bomb."
23. According to the petitioners, at the time of the surrender, Berta Calvo, one of the MTP members who had participated in the attack, was still alive. A non-commissioned officer had requested a stretcher to move her. The petition states:
Several members heard Berta give her name and Moreyra actually saw her alive when the hood was put over her head. She was hurt and they struck her mercilessly while they insulted her. One heard a military person say: "She is about to go" and another answered: "Put the bag on her." After this she was not heard again. Her body was identified by family members.
24. According to the petitioners, there is testimony that Carlos Samojedny was captured while alive and beaten after he identified himself. The testimony states that one of the torturers said that he had been following his "career" for some time and that he was happy to meet up with him. The testimony of the petitioners indicated that after some heavy blows, Samojedny passed out. At this time he is among the missing.
25. The petitioners charge that the alleged unlawful executions of Carlos Alberto Burgos, Roberto Sánchez, Iván Ruiz and José Díaz took place in the barracks stockade:
On the testimony of the conscript soldier Marcelo Fabian Aibar and soldier Oscar Miranda--who recognized Burgos by photographs--Carlos Alberto Burgos was in the stockade; other witnesses described him and stated that he was alive until long after noon. They also recognized Roberto Sánchez, who was said to be very seriously wounded. More testimony came from soldiers Ricardo Medina and René Rojas. These soldiers also recognized Ricardo Veiga, Iván Ruiz and José Alejandro Díaz. They said that at 4:00 p.m., when the gunfire made the roof of the stockade cave in, Ricardo Veiga--whose shooting was caught on television cameras--José Alejandro Díaz and Iván Ruiz jumped out. They said that the latter were detained and held in the custody of First Lieutenant Nacelli. Their arrest can be verified in photographs published in the magazines Somos and El Porteño which clearly show them in detention.
26. During the Abella trial, when Lieutenant Nacelli was shown the film and the pictures, he acknowledged that he was the person who was in the film and in the photographs that showed the detention of Ruiz and Díaz. Nacelli also stated that both were turned over to a corporal named Steigman, who in his statement identified himself as the person in the picture conducting Ruiz and Díaz at gun point to the interior of the barracks. Steigman stated that he turned the prisoners over to Major Varando and Major Varando, in turn, stated that he had put them, without guard, in an ambulance under the care of a non-commissioned officer named Esquivel. Since the latter appears on the list of soldiers killed in the confrontation, Varando assumes that Ruiz and Díaz escaped. This presumption was accepted by the court authorities who issued an arrest warrant for the two of them. The petitioners state that Iván Ruiz and José Alejandro Díaz are among the disappeared persons.
27. The complaint states that Roberto Sánchez and Carlos Alberto Burgos are also among the disappeared. In this regard the account states:
In the case of Burgos, the testimony of the aforementioned soldiers to the effect that he was alive past noon makes it impossible to believe the story put forth by the prosecuting attorney and the judge that he succeeded in escaping because, once the army had set up its cordon around the barracks--starting at 11 in the morning--no one could have escaped. In the case of Roberto Sánchez, the police indicated he was one of the dead. In both cases, the family members could not identify the bodies...All the cases described illustrate the attempt by the repressive forces and the court to cover up the fate of these persons.
28. Pablo Martín Ramos also appears to have been unlawfully executed, according to the petitioners. A photo of him with his hands up, in the custody of a soldier, was published by several Argentine and foreign press media. The petition states that the appearance of his body with eight bullet wounds in it, as well as one in the head, was a disturbing sight for the public. When Joaquín Ramos stated in the trial that his brother Pablo had been arrested still alive and then murdered, he was threatened with expulsion from the courtroom by the president of the tribunal, since such an event was not part of the subject of the trial.
29. With respect to Juan Manuel Murúa, the complaint states that he was in a part of the barracks known as Company B, which was the target of cannon fire on the afternoon of January 23, 1989. Roberto Felicetti, who was in the place at that time, stated that he had jumped out of that area to escape the collapse of the upper floor along with Claudia Lareu (later killed in combat) and Carlos Samojedny (later disappeared). Murúa and Juan Vital Gaguine could not get out. The immediately following events, as well as the outcome, are described by the petitioners as follows:
The survivors called to them several times during the night but received no answer. In the morning, they climbed over the rubble but did not find the bodies. Months later the body of Roberto Vital Gaguine was identified by family members; the body of Juan Manuel Murúa has not been identified and thus he is considered disappeared.
Treatment of survivors after surrender
30. The events after the surrender are reported as follows:
The thirteen prisoners were taken from the cell one by one and moved by elevator to a place where they were required to strip. Along the way they were hit repeatedly. After this they were moved to small cells where they were kept naked. Several times they were taken to interrogations, again hooded. In these interrogations they were beaten again and the interrogation was essentially ideological in nature. Several persons, women among them, participated in these sessions. On Wednesday morning, the prisoners received some type of medical care.
31. The prisoners in the group who had the most serious wounds were transferred to the Ramos Mejía hospital to be cared for. The petitioners alleged that they were tortured again in the cell block of the hospital; Joaquín Sebastián Ramos was treated without his handcuffs even being removed. The doctor told him that he would like to make him talk "by sticking a hot poker up his anus." And the police officer said "...I don't know why we are wasting our time with these guys. If they had killed them, we would not be bothered with them now."
32. The prisoners were moved in different groups and on different days to the courts, usually with hoods over their heads and handcuffed, during which time they were beaten and threatened. The complaint states:
During the last transfer to the courts, Joaquín Sebastián Ramos, Claudio Rodríguez, Claudio Veiga, Luis Díaz and Carlos Motto had hoods over their heads, like during the other transfers. When they got out of the truck, two rows of uniformed officers awaited them and beat them before they went into the cells. Waiting for them in the cells were a group of three or four persons who beat them while they were on the floor and handcuffed. Veiga had a nose bleed that almost choked him, Díaz got a broken rib and all the others had contusions. When they were taken before Judge Larrambebere--in the condition described--they continued being hit in his presence until the judge finally intervened.
Accomplices
33. At 7:00 p.m. on January 23, 1989, Juan Carlos Abella, Juan Manuel Burgos, Dora Molina de Felicetti, Miguel Angel Faldutti and Daniel Gabioud Almirón were arrested some 20 blocks from the La Tablada barracks. All of them were taken to the San Alberto police station, in Buenos Aires province. The prisoners alleged that they were thrown to the floor there, and handcuffed with their hands behind their backs. This resulted in a sprain in Abella's left arm. With insults and threats, they were beaten and kicked while on the floor. After this, they were injected with a substance that numbed them and produced a loss of sense of time. This was followed by an ideological interrogation, accompanied by threats and blows. The complaint also states that at this time Abella was subjected to several feigned shootings.
34. On Tuesday the 24th, the five arrested persons were recorded as "detained to determine information," and were forced to sign a paper advising them that they were at the disposal of Federal Judge Larrambebere, as accused persons who were being held incommunicado. According to the petition, none of them had any criminal record, and they were a considerable distance from the barracks when they were arrested. Accordingly, the only reason to deprive them of their freedom was their membership in the MTP, a lawful organization.
35. The complaint continues to relate that, between 7 and 8 a.m. on the same day, the prisoners were moved to different police stations in Buenos Aires province, and were punched and threatened once again. Dora Molina was insulted for being a woman, and was tortured psychologically. All of them were deprived of food during their time at the police stations. Daniel Gabioud Almirón and Juan Carlos Abella were not given food until Friday the 27th of January.
36. Friar Antonio Puigjané, a priest and a leader of the MTP, appeared before the judge on Monday, January 30, 1989, who ordered him held incommunicado. Puigjané was moved to the federal police station located in the court building where, according to the petition, the following occurred:
There he was submitted to intense ideological interrogation by an officer and two other persons. The officer interrogated him for an hour, and insulted, accused and threatened him. When he was asked about the events at La Tablada, Puigjané stated that he knew nothing--an assertion confirmed by the statements of Roberto Felicetti--and the officer answered him: "You are the ideologue, the person really responsible...you are a leftist." At one point, when Father Antonio said, "I regret every life that is cut short; every life is sacred," the officer said to him, "I don't regret anything; this came at a good time for us, it put us on a war footing. We are going to kill all you leftists. We are back, and we are going to kill you in the democracy."...At the end, he was moved to another place where he was held for 30 hours without water or food, until his statement was taken by the investigating judge. The judge--considering the complaint by Father Antonio--fully justified the interrogation conducted at the police headquarters.
37. On that same day, Cintia Alejandra Castro appeared voluntarily at the federal court. The complaint indicates that she was subjected to an ideological interrogation of the same type as the others. The complaint states that, "She was standing around the barracks for a short time just looking, thinking that this was a military coup in progress," and charges that her companion, Carlos Samojedny, disappeared without a trace. She was arrested on the same charges as Puigjané.
c. The Abella trial
38. The petitioners argue that the State not only erred in its obligation to investigate but also acted to keep the facts as they actually occurred from coming to light in the Abella trial. The complaint also charges that the State did not comply with its obligation under Article 1.1 in view of the discriminatory treatment given to prisoners on the grounds of political position, or ideology, as in the case of Father Puigjané, who is an advocate of liberation theology.
39. The complaint states that the competent federal judge appeared at the barracks at 11:30 a.m. on January 24, 1989. The complainants believe that his presence was necessary to gather evidence and to verify facts, but his performance was "lamentable":
This judge confined himself to a kind of "guided tour" in which he saw what the army showed him, walked where the army allowed him to walk, and also allowed the army to gather weapons, equipment and other materials.
40. The petitioners referred to the "abdication of jurisdictional responsibility" by the judge by not supervising the collection and handling of evidence at the scene. They question that certain materials presumably found in the barracks, according to the army, actually belonged to the attackers. The complaint argues that by characterizing the events as a rebellion, a "circumscription of the proceeding's purpose" occurred, since the information pertaining to all the deaths and wounds suffered by the attackers was removed from the file. The complainants state, "...it became clearly necessary to not investigate what the army had done." They clarified, however, that:
...we do not believe that it was the judge who directed a military operation in tactical terms. But, even in tactical terms, the recapture of part of a military installation is an operation that goes beyond merely military concerns, and, as required by the legal system, ...the event could not be kept outside the justice system.
41. The petitioners maintained that the defendants in the Abella case were not tried by their natural judges. The trial was conducted under a one-instance system ("sistema de instancia única") established by Law 23007, adopted August 9, 1984. The Law of Defense of Democracy, as it is called, creates a special criminal procedure for acts of violence against the constitutional order and the democratic way of life. The law establishes a procedure for which there is no appeal of the judgment, except by filing a special appeal through the Supreme Court of Justice, as stipulated in Article 14 of Law 48.
42. The power to grant the special remedy is the authority of the same court of appeals in which all the proceedings provided under Law 23077 took place. After the request was rejected, the defense filed an appeal to the Supreme Court of Justice of Argentina. The final decision that this last level of appeal handed down was issued two-and-a-half years later. For that reason, the petition argues that the complainants actually had access to only one instance, in violation of Article 8.2.h of the American Convention. The judgment issued on October 5, 1989 in the Abella case resulted in the imprisonment of the 20 persons tried.
43. The trial, according to the petitioners, was political and repressive in nature. They contend that the Doctrine of National Security is still applied in Argentina and that the events at La Tablada were identified as a "low intensity conflict."
44. The petitioners contend that the judge did not appear at the scene of the crime as the law calls for, or gather evidence. The judge appeared at a later time, and he limited his involvement to a walk through the places that were shown to him by the military authorities. This leads the petitioners to contend that the judge did not conduct the procedure but was guided through it. The judge allowed the military personnel to gather evidence, in violation of his legal responsibilities. Both the judge and military authorities failed to comply with their legal obligation which calls for the following in situations such as this:
...the closest national authorities shall call upon the insurgents twice to immediately dissolve and withdraw, and shall leave enough time between the first and the second appeal to perform this.
45. The complaint maintains that the judge had the obligation to be present, and he failed to do so even though he had enough time, and as a result, he did not comply with his legal obligation to call upon the attackers to surrender. The petitioners state that the military officer in charge of the operation also failed to comply with the rule, but he also did something much worse: in the face of a clear intention to surrender, he ordered his troops to open fire in violation of strict standards of international human rights. In addition, the complainants state that the judge received and gave legal standing to a document, prepared by the military authorities, and then put it into the file; this was most important for the decision in the case. The judge also allowed the weapons that presumably had been gathered in the barracks to be deposited at military units of the executive branch of government instead of ordering them held at a court site.
46. According to the statements made in the petition, certain actions occurred during the investigative stage of the proceedings, such as the destruction of documents, addition of certain evidence and elimination of other elements which were later used as grounds for the verdict. The secret nature of this stage and the lack of notification of expert opinions resulted in fewer possibilities to add new testimonial or expert evidence and made it impossible for the defense to participate adequately in the trial.
47. The evidence-gathering stage was closed by the court, according to the petitioners, in an abrupt manner and before any pending evidence was presented. The petitioners also contend that some relevant testimony was not allowed, including that of witnesses such as Eduardo Duhalde, who had made public at the time the news about an "imminent military uprising."
48. The defense argued during the trial that the events of January 1989 could not be categorized as a rebellion as is stipulated in Article 226, paragraph 2, of the Penal Code. The defense attorneys believe that the evidence indicates what motivated the attackers was the obligation set out in the National Constitution to take up arms in defense of that Constitution. The petitioners contend in their letter of March 1993 that the attackers were not able to carry out the objectives described in the description of the criminal offense of rebellion:
...for the penal description used, rebellion, a special law applies, Law 23077, which frames the final nature of the proceeding. This description is used with great prejudice, as are the beliefs in the existence of an illicit association, a crime of which they are also accused and for which they are found guilty. This requires, in addition to the use of arms, the existence of a group, which has a military structure that the MTP has never had nor does it have at this time, and the objective or the intention of preventing the National Constitution, or any of its powers, from being effective and the attempt to change the democratic structure of the country, to move against its republican form of government or to prevent the operation of any of its powers. In fact, this was not the purpose of the attackers but, most of all, this never occurred. It is unthinkable that 40 persons could achieve such a result. Note, however, the criminal description is one of result, and does not relate to the degree of attempt. And obviously, this never occurred in Argentina on January 23 and 24, 1989.
49. The petitioners allege that their right to conduct their defense was restricted by application of Law 23077 to their case. They believe that this constitutes:
...an inappropriate legal framework, juridically inapplicable, which made it difficult to exercise the right of defense in trial. The procedural terms and the possibilities of appeal were small, and therefore, worse for the defense. The judge who had to hand down the sentence only conducted the investigation (instruction). The court that was to review the sentence, but in fact never did so, was the body that had to make the judgment.
50. When it was time for the defense attorneys to counter the preventive imprisonment ruling, they were not permitted to see the file, which was kept secret, and they only received the documents that were used for the accusation. Likewise, the complainants contend that they were never permitted to participate in the gathering of expert testimony, that most of the evidence they offered was rejected, and that the court closed the evidence finding stage "in an abrupt manner and without consultation." This left a large body of evidence outstanding. The petition states that the defense had no involvement in 43 cases of poorly incorporated expert evidence and 21 seizures of materials, which amount to "fatal formal flaws."
51. One example of the defects in the evidence in the Abella case, again according to the complaint, was the incorporation of documents provided by a priest by the name of Jardin. These documents contain information pertaining to the supposed plans of the MTP to commit a number of crimes, among them the assassination of several political figures. The file does not say who could have given such information to the priest since the priest was protected by the secrecy of confession. Authorship of the papers was attributed to Jorge Baños, one of the attackers killed at La Tablada. The petition also mentions certain weapons that were presented initially to the public in a press conference and then exhibited during the trial for recognition. The petition also contends that the military witnesses who were called upon to make statements were obligated to go first to an adjacent military school "...where they were told in advance what to say."
52. The complaint states that the defense attorneys and the accused were prevented from stating during the trial the unlawful acts committed by the military personnel during the recovery of the barracks and then after the surrender. In the case of Berta Calvo, who apparently lost her life, it states:
During the hearings, an Argentine army lieutenant explained that shortly after she turned herself in with serious wounds, as she was walking with her hands up, several 9mm pistol shots went off; these shots caused her death at a later time. It says that the shots came from behind a door. The court heard this, and said nothing. It merely requested that a separate case be filed when the defense accused it of covering this up. In the case pertaining to this matter, the officer was found innocent.
53. The complaint describes an "intention to cover up" by the State, as evidenced by the handling of the cadavers. The complainants believe that the autopsies where poorly performed and incomplete, because the bodies were left out in high temperatures for a week, making them "unusable for any serious study." They were later turned over in boxes containing the remains of more than one person, as in the case of Francisco Provenzano. The petition states that the corpses of some five persons were dealt with in this way, and their identity is unknown.
54. The complaint continues stating that in the Abella trial many decisions were handed down that were either not definitive in nature or did not produce unchangeable situations, and that:
...since there was no court to which not only final decisions such as the verdict but others as well could be appealed, it was the judge himself who decided on the objections raised in the trial. This meant that he was both judge and party, in flagrant violation of both current law and the basic principles of law.
55. During the trial, police officer Carlos Alberto Castañeda stated that for the hearing of August 23, 1989, "He had been appointed by his superior officers in answer to a letter prepared by the judge for the purpose of examining a series of documents attributed to the attackers." Several documents provided by military intelligence were accepted by the court for recognition by the witness. The petition indicates here that the witness was prohibited from doing this by Law of Defense 23554. The petitioners believe that this action is even more serious, because these very documents were later used as the grounds for describing the MTP as an illicit association.
56. During the plenary stage of the proceedings, the defense requested that all the testimonial and expert documents provided by the army be declared invalid since they constituted a violation of constitutional standards of the right to a fair trial and the guarantees of due legal process. In addition, the armed forces were prohibited by law from intelligence gathering tasks involving domestic political matters.
57. The petitioners believe that in the plenary hearings there was clear partiality by the court, specifically with regard to the statements of Sebastián Joaquín Ramos and Lieutenant Molteni. The judges constantly interrupted the accused persons, thereby preventing them from making any charges of illegal acts that could be prejudicial to the police or the armed forces. In this sense, the petitioners likewise mention the presence of senior officers in the courtroom when their subordinates were making statements, presumably taking a "position of support."
58. With respect to the final verdict, the complaint points out that all the persons tried were found guilty as the parties responsible for the events at the RIM 3 on January 23 and 24, 1989. The complainants believe that there was no interest in investigating what each one of the attackers had done individually and, as a result, MTP members who were not in the barracks and had never entered it were accused of the same crimes as the attackers and were detained.
59. Of all the persons found guilty, the case of the Capuchin friar Juan Antonio Puigjané is mentioned as "the most pathetic". The petition describes him as follows:
...a man of more than 60 years of age, who at the time of the events, was convalescing from a hip operation in a wheel chair, quite unable to move, and had not participated in the events, and had no knowledge of them. He went to the legal authorities, and because he was a member of the MTP, was detained, tortured and sentenced to 20 years of imprisonment. We add that he is a well known advocate of human rights who had family members murdered during the military dictatorship. He has a very clear pastoral vocation as a priest who works in extremely poor areas and counts himself as a church member who believes in liberation theology. In this case, there is a clear additional component of ideological discrimination.
60. The verdict of the San Martín court in the Abella case is described as one "of a clearly political stripe." The complainants emphasize that the State attorney had requested that all the arrested persons be sentenced to life imprisonment. Although in the end this sentence was not given to all the persons found guilty, the petition points out that the sentences are disproportionate to those applied to military persons in similar cases.
61. The complaint refers as well to the fact that there was no independent appeal to a higher court in this case because the verdict of the San Martín Federal Court was never reviewed. In effect, the complaint compares the system under Law 23077 to the Federal Criminal Procedures Code. Under the latter system, which was not applied to the Abella case, the judge of the place where the events occurred is the one who conducts the evidence gathering and hands down the verdict, which can be appealed to a higher court. Under the procedural system of Law 23077, on the other hand, the judge of the place where the events take place conducts the evidence gathering but the sentence is handed down by the higher court. In the case under review here, it was the same San Martín Federal Court which took up on appeal its own non-final decisions as well as the objections raised by the defense, and even the defense's protest regarding the application of Law 23077. Consequently, the only means available to the defense attorneys was the special appeal to the Supreme Court of Justice.
62. In clarifying that the possibilities of review are much narrower under Law 23077, the petitioners explain that they had filed a special appeal of the verdict of the San Martín Federal Court in the Abella case, but that the appeal took two and one-half years for the Supreme Court of Justice of Argentina to resolve. The Court finally rejected the appeal "for lack of standing," and because it did not satisfy any of the grounds provided by law for granting an extraordinary writ; i.e., arbitrary decision, institutional gravity or unconstitutionality of a law. The petition also points out:
...shortly after this rejection, this same supreme court, with the same members, shifted its position 360 degrees in the proceedings "Eukmedjian vs. Sofovich," in which it notes the lack of standing in the development of the arguments of the appeal, but states that this does not prevent it from being taken up.
63. The complaint refers finally to the Articles of the American Convention that it considers violated in this case. With respect to Article 1.1, it states as follows:
The State, through its agents, has gone too far in the exercise of its powers, particularly as they relate to the repression of the attackers. This part of the public function was carried out with disregard for human rights and human dignity...as a consequence of its unnecessary, abusive and unlawful form of repressing many persons, both among the attackers as well as among its own agents (soldiers) who were wounded or killed...the State was not able to prevent the high number of violations of human rights to which the prisoners were subjected: they were tortured, some were shot, others disappeared. And this occurred when its agents had complete custody and control of the situation. The attackers had surrendered and were disarmed.
64. The petitioners contend that the repression carried out to recover the La Tablada barracks in January 1989 endangered the life, health and security of the persons who lived around the barracks, and that this was a violation of Article 5.1 of the American Convention. The petitioners believe that the acts of torture, cruel treatment and inhumane treatment of the prisoners, forced disappearance of persons and summary executions are covered "by the same framework of standards."
65. The right to personal freedom of the persons tried in the Abella case is considered to have been violated in this case by the two-year delay of the Supreme Court of Justice to resolve the special appeal filed by the defense. The petitioners contrast this length of time with the speed with which the evidence gathering period was closed and the guilty verdict was handed down by the San Martín Federal Court.
66. Regarding Article 8 of the American Convention, the petition cites it as "the most repeatedly violated rule." The guarantees set out in clause 1 of that article appear to have been violated because, according to the petitioners, the instructions judge and the sentencing court lacked impartiality and independence. Even though the competence of these parties was established earlier by Law 23077, the complaint states that in the Abella case competence was incorrectly based on the nature of the events at La Tablada, rather than on the place where they occurred. They characterize this violation as "subtle," because the judges:
Simply imposed a law that should not have been applied. The judges were the correct ones, but in different roles. They should have been the ones to grant the procedural law that should have been used in this case: the Code of Penal Procedures.
67. The petitioners believe that there was a violation of Article 24 of the American Convention because different treatment has been given to military personnel who have engaged in the type of criminal acts provided for in Law 23077. The references in the complaint emphasize the nature of the repression at La Tablada, how the prisoners were treated, the sentences and the conditions of imprisonment. Comparing these with "acts that were more or less similar undertaken by the military," they believe that there is an obvious discrimination and that the right to equal treatment under the law has been violated for the persons presented as the victims in this case.
C. STATE REPLY
68. The State's initial response to the petitioner's complaint, which was forwarded to the Commission on February 18, 1994, deals fundamentally with the admissibility of the case. The issue of admissibility is discussed separately in a subsequent chapter of this report. In its letter the State also provides an account of the background and scope of Law 23077 which was applied to those tried in the Abella case in Argentina. It refers to the statement of reasons for that law, and quotes:
...the attempt to ignore the will of the people, by violating the provisions of the National Constitution regarding the appointment of authorities and the sanctioning of norms, constitutes one of the most serious crimes that can be committed against the rights of individuals and the interests of the country.
i. The attack and recapture of the military base
69. The State's information is expanded in its letter that reached the Commission on January 9, 1995. This letter recounts the events that occurred on January 23, 1989 at La Tablada, but does not make direct reference to the complaints of excessive use of force in recovery of the RIM 3 barracks, or to the attendant violation of the right to life alleged by the petitioners.
70. Regarding the intervention of the armed forces in the operation, the State states that this intervention was legitimate in nature because the events took place in an area subject to military control. It states that in application of a general principle of law, "whoever has custody of the place also has the right to repel intruders..."
71. Furthermore, the State uses the Argentine National Constitution to base its opinion that the order to recover the barracks was given by the president of the nation and not by the judge since this was a military operation that was the responsibility of the commander-in-chief and not subject to the judicial body's competence. The State terms that order "...an institutional act of a discretionary nature, free of judicial control, although subject to juridical order." However, it recognizes in its reply that actions taken as a consequence of this institutional act are subject to control of the courts "...since those actions could affect the subjective rights of those administered."
72. The State contends that the president of Argentina, in the exercise of his powers as commander-in-chief of the armed forces, ordered the recovery of the RIM 3 barracks at La Tablada. The petitioners argue that the order should have been issued by a judge. The State considers this an erroneous position since the matter involved a military operation that went beyond the jurisdictional powers of a magistrate. Accordingly, the State contends that the order was issued in the legitimate use of discretionary powers of the president.
73. The State's communication refers to international humanitarian law and to the definition contained in the Geneva Convention of August 12, 1949 on the Treatment of Prisoners of War. It notes that such rules apply only to international armed conflicts, which was not the case of the events of January 1989 at La Tablada.
ii. Events following surrender
74. The State's letter mentions the steps taken by the San Martín Court during the evidence gathering stage. These were indictments, arrest warrants, identification of bodies, detention orders and release orders. It explains:
The overlapping in time of evidence gathering steps and gathering of bodies and identification of bodies was the reason that orders were issued to arrest those who had died without identifying the moment when the order was issued, which was later left void. This occurred in connection with Francisco Provenzano...Félix Reinaldo Díaz...Claudia Mabel Deleis.
75. The reply continues by stating that the bodies of Carlos Noberto Maldonado, Pablo Francisco Javier Belli, Sergio Ricardo Mamani, Oscar Alberto Allende and Eduardo Aguero were identified. In other actions, the bodies of Julio Arroyo, Aldira Pereyra Nunes and Ricardo Arjona were identified. The legal process continued with the order of preventive detention of the 20 persons charged, State charges and oral and public hearing which took place from July 20 to October 5, 1989, when the San Martín Federal Court reached the verdict read publicly on October 10, 1989. On October 26, 1989, the Office of the Prosecuting Attorney and the attorneys for the defense filed a special appeal, which was rejected by that Federal Court on December 19, 1989. Consequently, complaint appeals were filed with the Supreme Court of Justice, which rejected them on March 17, 1992.
iii. Applicable laws and judicial proceedings
76. In its letter received on February 18, 1994, the State introduced its arguments with respect to modifying the legal descriptions of the crimes of rebellion and aggravated illicit association. As for changing the rules of competence and procedure, the aforementioned document refers to "...the need to have readily available an effective tool to protect democratic institutions." The reply continues quoting the statement of reasons for the law, which states that
...there must be a penal procedural law that permits a certain amount of effectiveness in prosecuting the aforementioned crimes, and also ensures the parties charged with the republican guarantees of due legal process. The foundation for this is represented by the culmination of the procedure in an oral and public hearing, adversarial and ongoing, which is conducted in the uninterrupted presence of all those involved in the process which develops in an exclusive way the basic reasons for the penal judgment.
77. The State explains the context of the situation that prevailed in December 1983 when democracy was restored in Argentina. Law 23077 was part of "...a package of laws aimed fundamentally at building a juridical order that was consistent with the republican system of State as embodied in Article 1 of the National Constitution." One of the crimes defined by this law was that of aggravated illicit association, punishable by 5 to 20 years of imprisonment for the following acts:
...whoever takes part, cooperates or assists in the formation or the maintenance of an illicit association developed to commit crimes when the action contributes to endangering the effectiveness of the National Constitution, provided that such an association meets at least two of the following characteristics:
a) Consists of ten or more individuals;
b) Possesses a military or military type organization;
c) Has a cellular structure;
d) Avails itself of weapons of war or explosives of great offensive power;
e) Operates in more than one of the political subdivisions of the country;
f) Is composed of one or more officers or non-commissioned officers of the armed or police forces;
g) Has well known connections with similar organizations in the country or abroad;
h) Receives some help, assistance or direction from public officials.
78. The definition of the crime of rebellion in the Penal Code was also amended by Law 23077 which sets out a sentence of 5 to 15 years of imprisonment for those who:
...rise up in arms to change the Constitution, depose any of the public powers of the national government, exact from it any measure or concession or impede, even though temporarily, the free exercise of its constitutional powers or its formation or renovation in legal terms and times.
79. The punishment for rebellion ranges from 8 to 25 years of imprisonment when the aforementioned crimes are committed:
...for the purpose of changing in a permanent manner the democratic system of the government, suppressing the federal organization, eliminating the division of powers, abrogating the fundamental rights of human persons or suppressing or diminishing, even temporarily, the economic independence of the nation.
80. The State states that the documents seized at the MTP headquarters prove that the group had the intention of changing the Constitution by re-insertion of several articles that had been thrown out of the 1949 version, and to overthrow the executive branch of government, since it is impossible to conceive of the consolidation of its "plan of government" without some prior usurpation of that government. The State contends:
It has been proven in this case that they succeeded in seizing a military unit, that they demonstrated sufficient skill and attitude to combat for 27 hours against naturally well armed military personnel and to inflict losses. The seizure of a military regiment by a group of persons without the knowledge of the commander-in-chief of the armed forces, at that time the President of the Nation, inhibited the president from exercising the military powers that the constitution conveys to him.
81. The State likewise denies that the crimes were incorrectly determined as rebellion, as the petitioners charged by invoking the duty that the attackers had to take up arms in defense of the country, on the grounds of Article 21 of the Constitution.3 The State contends that the aforementioned provision is clear and that it does not allow every citizen to interpret the method or the timing of defending the country and its constitution. That would lead to an uncontrollable situation for a democratic government which is constrained by the rule of law.
82. In addition, the State contends that any speculation about the presumably arbitrary nature of the definition of the crimes as rebellion by the San Martín Federal Court only "takes us naturally into the arena of ideology and removes us from the strict application of pre-existing standards," and consequently removes the question from the competence of the Commission.
83. Continuing with its analysis of the applicable legislation, the State contended that Law 23077 does not deprive the accused of the essential means of securing their rights. According to the State, the Abella case produced a judgment based on a law in effect prior to the event, which was the grounds for this trial. Regular judges of the republic were involved and the accused were given sufficient opportunity to be heard and to produce evidence. The State concluded:
...it is necessary to note that the procedure adopted under Law 23077 is responsive to the most modern legislative techniques and chooses at the international level implementation of the oral trial, the procedure that normally signifies, because of its immediacy, the possibility of holding hearings in a public manner and a one-level trial.
84. The alleged violation of the right to appeal the decision of the San Martín Federal Appeals Court does not pertain, according to the State, since the defense had the opportunity to file a special appeal to the Supreme Court of Justice of Argentina for the purpose of overturning the decision. The reply also deals with the active participation of the Supreme Court in the review of the sentences that were supposedly arbitrary through this special appeal procedure. In this context, the State cites the Inter-American Court of Human Rights:
It must not be rashly presumed that a State Party to the Convention has failed to comply with its obligation to provide effective domestic remedies. 4
85. The opinion of the Inter-American Court is also cited with respect to the remedy being adequate and effective, "capable of producing the result for which it was designed." 5 However,
...the mere fact that a domestic remedy does not produce a result favorable to the petitioner does not in and of itself demonstrate the inexistence or exhaustion of all effective domestic remedies... 6
86. The State maintains that the special remedy meets the requirements defined by the Inter-American Court. To that end, the reply mentions that one of the members cast a minority vote in the ruling of the Supreme Court of Justice of Argentina. The dissenting member, Carlos Fayt, held that the decision of the San Martín Federal Court should have been reversed and returned to that Court to issue a new sentence. The State considers:
...this fact indicates that the scope of the remedy was enough, through this review, to have the verdict overruled, as would have occurred if the minority vote had been shared by the majority of the Supreme Court.
87. The State further maintains that the single trial system is the only one consistent with the principles of oral proceedings, immediacy and free assessment of evidence. However, the advantages of an oral and public trial do not absolve the system from the important right of appeal for a review of the legality and reasonability of the verdict. The oral trial is only the first stage of the criminal proceeding which, independently of and viewed within a set of stages that constitutes the penal process, should be adjusted to the presumptions of due process and the right to a fair trial as embodied in Article 8 of the American Convention.
88. The State also argues that the petitioners had the opportunity to have the verdict reviewed under Article 14 of Law 48, before the Supreme Court of Justice of the country, in the form of a special appeal. However, the facts of the case show that the special appeal filed by the petitioners in the Abella case was dismissed by the Federal Court of Appeals, dismissal confirmed by the Supreme Court. Therefore, the petitioners never had a higher court review the sentence in the Abella case.
89. The State's reply of February 1994 includes the major pieces of evidence of the Abella case in Argentina and assures that those documents:
...are evidence of the absence of arbitrary or discriminatory conduct imputable to the Argentine system of justice, and also demonstrate the securities afforded through respect for the principle of due process.
90. In its second reply the State again addresses the issue of the special appeal. It mentions the cases in which the appeal was in order under Argentine law. It contends that the questions drawn from the framework of this appeal are also not the subject for consideration by the Commission by virtue of what is known as the "fourth instance formula." 7
91. The special appeal filed by the defense was refused in the Abella case by the San Martín Federal Court. As a result, the defense attorneys filed a de facto appeal before the Supreme Court of Justice of the Nation. The grounds for that appeal are examined by the State:
The defense attorneys of the defendants set forth the absolute and irreparable nullity of the actions on the grounds of regulatory ambiguity that existed in order to legitimize the recovery of the barracks where the events took place and on what they called the mutilation of the purpose of the hearing and the decision. They advanced a similar request for nullity regarding the expert opinions advanced in the principal written documents. The defense attorneys start an exposition of the historical and political situation that preceded the events of the trial and went on at length in considerations on the events that occurred and their relationship to Article 21 of the National Constitution (to take up arms in defense of the country) and even in the possible error in which their clients incurred by working under the belief of stopping an uprising...They term as arbitrary the consideration made by the judging court regarding the applicable rules of the Penal Code. Finally, they enter into what they define as not federal questions but ones that constitute arbitrariness.
92. The State points out that the opinion of the Attorney General of the Nation dated October 11, 1990, considers the appeal out of order owing to the repetition of the arguments that had already been made before the San Martín Federal Court, "without making, consequently, a concrete and systematic critique of the principles" that were the grounds for rejecting the special appeal to the court. The attorney general examines the offenses behind the complaint and concludes in all the cases that "the written documents presented do not provide accreditation to the extremes to upset the ruling questioned." The attorney general considers in his opinion that "the anomie, as argued, the mutilation of the procedural purpose and the general nullity of the trial" have no connection to the court process but refers to the way in which the security forces and the army recovered the attacked barracks; it does not say which aspects of the actions by those forces influenced the development and outcome of the court proceeding or affected the guarantees of due process and of defense in the trial of the accused. The attorney general believes that the offense caused by the separate judicial investigation of the so-called "related cases" was not shown. The Attorney General also rejects the defense allegations regarding the arbitrary nature of the rejection of the evidence since it lacked the requirements that made its consideration possible. Finally, with respect to the institutional gravity invoked by the defense, he states that "this has not been demonstrated" and that only elements that had already been presented and discarded by the court had been included.
93. On March 17, 1992, the Supreme Court of Justice of the Nation rejected the appeal, agreeing with the opinion of the attorney general. In relation to the "lack of independent grounds," pointed out by the attorney general, the court stated:
...the appeal in question has been made up of isolated and independent written documents, in some cases using photocopies of presentations at the lower level, which, consequently, were not corrected to lay the groundwork for constitutional issues arising as a result of the verdict reached, and constitute a mere repetition of offenses already substantiated and resolved by the lower court.
94. The State points out that the dissenting vote of judge Carlos Fayt in the ruling of March 17, 1992, rejects the pretention advanced by the defense attorneys to the effect that the conduct of the La Tablada attackers was protected by Article 21 of the National Constitution of Argentina which establishes the obligation for citizens to take up arms in defense of the country and the Constitution. In this connection, the State points out that Dr. Carlos Fayt:
...also does not consider valid the offenses aimed at attacking the procedure followed which led to the division of the cases in effect at the time of the substantiation, since it was based on formal legal texts and Law 23077 does not result in any effect on the right to defense in that it does not deprive accused persons of the essential means to secure their rights.
95. The dissenting judge also did not consider that the claim pertains to the incorporation into the trial of evidence that the defense attorneys consider banned since the attorneys did not mention "with the same clarity and insistence what the evidence that had been put together and evaluated in some anomalous way had been." Fayt continues, as quoted by the State, by stating that the appellant did not succeed in demonstrating that:
...the value of the presumably illegal evidence on the reasoning behind the verdict was of such standing that, the suppression of it in some hypothetical way would have altered the conclusion that was reached a quo.
96. All of the foregoing leads the State to conclude that the special appeal made in the Abella case was in accordance with the requirements of Article 8.2.h of the American Convention.
97. "Abandonment of jurisdictional responsibility," as it was called, was actually not such, according to the State, bearing in mind that the federal judge of Moron intervened immediately and started the investigation on January 23, 1989. The judge issued official letters to the Argentine Federal Police and to the police of the province of Buenos Aires calling upon them to determine the identity of the persons eventually detained and to hold them incommunicado. In his letter, the judge gave a period of 24 hours to receive the full list of wounded, the type of wounds, and information on persons who eventually died. At 3:30 a.m. on January 24, 1989, the office of the secretary of the court for the zone received a letter which noted the detention of Dora Molina, Juan Manuel Burgos, Juan Carlos Abella, Daniel Gabioud Almirón and Miguel Angel Faldutti. On the same day, the judge decided to use for this case the procedure set out in Law 23077. The State emphasizes:
...the judge was not able to appear at the barracks of RIM 3 until approximately 11:30 a.m., on January 24, 1989, that is, after the surrender...There was no abandonment of jurisdictional responsibility, but this work could only be undertaken when arms were put down.
98. With respect to the alleged violation of Article 8.1 of the American Convention, the State points out that Law 23077 was adopted in 1984 to establish the procedure and the competency of the Federal Appeals Court to try the crimes against democracy defined by that law. It cites a decision of the Supreme Court of Argentina dated December 27, 1984, which refers to the constitutionality of the new procedural standards. That judgment concludes that Article 18 of the Constitution has the purpose of proscribing ex post facto laws and embodying guarantee of natural judge. 8
99. Reviewing the juridical framework for the trial and the concept of "natural judge," the State points out that the competence of the judge and of the federal court which took up this case had been established in 1984 when Law 23077 was adopted. The reply states that the independence and impartiality of such courts should be measured by the same standards used for the rest of the judicial branch of State since this was a matter of a pre-existing court with competence to hear the crimes that were the subject of the Abella case. The State concludes its analysis of this question in the following terms:
This is not, then, a matter of having "removed" the persons on trial, the petitioners here, from the competent judges in accordance with the laws that pre-existed the commission of the acts but, to the contrary, of an application adjusted to the law of rules adopted by the democratic legislature when it was impossible to foresee the occurrence of events such as those set out in the court case which is the antecedent for the petition being replied to.
100. The State refutes the petitioners' contention regarding the impossibility of introducing new testimonial evidence and expert witnesses, since the defense had the opportunity to present any element they deemed appropriate to support their case. The expert witnesses that testified did so in oral public hearings, where they were interrogated by members of the tribunal, the prosecution and the defense. The State points out that any of these parties had the right to formulate whatever objections or recusals they considered necessary.
101. The restrictions on the right to defense of the persons tried are also disputed by the State. Its reply to the Commission maintains that these persons were defended by 22 private attorneys of their own choice, "all of whom were recognized bar attorneys and many of them known as persons who worked for the cause of human rights." The reply continues stating in this connection that during the summary stage, only 10 of the 20 persons charged gave declaratory statements (Abella, Burgos, Faldutti, Gabioud Almirón, Molina, Castro, Puigjané, Veiga, Motto and Moreyra). During the hearing, all of those charged who made statements (except Faldutti and Puigjané) availed themselves of their right to answer only questions formulated by defense attorneys. Those who gave oral statements were Abella, Acosta, Burgos, Castro, Díaz, Faldutti, Felicetti, Gabioud Almirón, Molina, Moreyra, Motto, Puigjané, Sebastián Ramos and Veiga. The State emphasizes that the evidence to make the case required the participation of 30 experts and some 20 forensic physicians who, during the hearing, "were the subjects of full examination" which enabled the prosecuting attorney's office and the defense attorneys to control the work of drawing out expert information.
102. The verdict of the San Martín Federal Court deals with the questions regarding the following:
...the placement in military installations of seized weapons, the value of the deposition by the witness Castañeda and the utilization of the intelligence material for the purposes of the verdict...It was stated there that the first was based on prior jurisprudence, that the deposition of Castañeda was equivalent to expert opinion, and that the intelligence materials were not incriminating in the verdict. This government can add nothing to this.
103. As for determining the individual responsibilities of those tried in the Abella case, the State emphasizes that point IV of the reasons for the verdict by the San Martín Federal Court, called Criminal Participation, contains a detailed review of that issue with respect to each of them.
104. The State refers to the so-called "parallel proceedings," and explains that these are judicial investigations undertaken as a consequence of a series of actions initiated by the persons on trial, their family members and attorneys during the substantiation phase of the Abella case. The State believes that the text of Law 23077 is clear in the sense that it covers only attacks against the constitutional order and democracy, and defines the pertinent procedures and penalties. Even if it had been proven that the crimes supposedly committed by Argentine state agents were violations of human rights, that would not be grounds for including them in a judicial case reserved expressly for a law covering crimes of a different nature. The State contends that these would be common crimes, which are different from acts of rebellion and aggravated illicit association, which were investigated in Abella. An extensive application of Law 23077 in that sense:
...would have constituted a flagrant violation of the constitutional principles that protect the right of due legal process, the safeguard of natural judge and the principle of equality...
105. The State also disputes the complaint regarding the intentional delay of the "parallel proceedings" for the purpose of achieving impunity. In that sense, it mentions cases 1781, 1753 and 1754, which were filed by several of those tried for the purpose of investigating complaints of tortures at police stations and at the RIM 3 barracks. In all of them, the final decision to dismiss was not challenged. The same occurred with case No. 1794, which investigated the death of Francisco Provenzano and others, as well as case No. 9969 regarding the disappearance of Iván Ruiz and José A. Díaz. Finally, it also reached the same conclusion regarding the investigation of the presumed statements by police and military personnel at military facilities.
iv. Equal treatment before the law
106. The alleged violations of the principle of equality are also examined by the State. Regarding the discriminatory treatment that Antonio Puigjané presumably received as a result of his status as a priest who advocates liberation theology, it states:
The document does not include elements that make it possible to believe any discriminatory treatment of Father Puigjané in the context of case 231 nor in his status as a convicted person. Furthermore, it has been the policy of this group of convicted persons to speak in a single voice regarding any common element of their life in criminal matters and this has generally been accepted by the authorities.
107. In the same sense, the State mentions the vote of Dr. Herrera, a member of the San Martín Federal Court, in the verdict of the Abella case:
The position that the defendant could take in a domestic dispute regarding a belief system to which he ascribes is not a subject for discussion, nor can it be, in any way, the subject of penal prosecution; similarly, the political position a person on trial takes cannot be the subject of prosecution, nor can his opinions be that he would give regarding the framework of the legality and in connection with that political belief. However, specific conducts of the person on trial can be examined, as can whether they are part of some criminal action, independently of the framework in which they have unfolded.
108. Regarding the different treatment that military personnel have received, the State clarifies that the termination of proceedings that followed from application of the law of due obedience were adopted as a consequence of Law 23521 of June 1987, whose realm of application relates to events that took place before the restoration of democracy in Argentina in December of 1983.
109. Regarding the pardons granted previously to military personnel, the State believes that the power accorded to the president of Argentina by the national Constitution is political in nature and an exceptional one, and consequently, "absolutely discretionary." The reply also states:
...the pardons that have had international repercussions--some of which were the subject of examination by your Commission in its report 28/92--referred to persons on trial in cases opened as a result of events that took place prior to the time that concerns us here...Beyond this, and considering that after the judgment in Case 231 cases have been pursued against military personnel who rose up against the constitutional order, any reading that would attempt to draw a symmetry between what is a discretionary and exceptional power and the results of an open trial in conformity with the law of the nation adopted much before the events of the case is out of order.
v. Final considerations
110. In August 1995, the State remitted to the Commission a videotape containing an interview shown on Argentine channel TELEFE with Enrique Gorriarán Merlo, an officer of the MTP and a former member of the Ejército Revolucionario del Pueblo (ERP) guerrilla organization. The interview was conducted on May 17, 1995. The State points out the statements that Gorriarán made when he was asked about the reasons behind the attack on La Tablada:
...what I wanted to do, and not me but all of us who participated there, was to stop the military pressures that the government was giving into on a regular basis. We knew that the special forces were preparing an uprising. Their purposes were to get Alfonsín to resign, to free the commanders, to put the special forces in control over the army and to make them into a major factor of power...I did not get into the barracks because the plan was a global one, which also included a mobilization...
111. In further reference to La Tablada, Gorriarán said that when the military came out with tanks at 11 in the morning, he even thought that his colleagues might be aboard them. At noon he understood that the plan had failed and that the only objective achieved had been to stop the uprising, although "...at an extremely high cost and ultimately with failure of the plan." He himself took responsibility for the events in these terms:
It was a collective political decision but I assume all the responsibility. I am the person mainly responsible for it. We thought that if we were successful in seizing the barracks in the way it was planned, people would respond to a call for mobilization to demand that the government change its economic policy and take a firm stand against military pressures.
112. The State believes that the information that emerged from this interview confirms that the judgment of the participants in the events of January 1989 at La Tablada under Law 23077 was consistent with law, because:
...the conduct described in that law fits the words of the person who publicly took responsibility for the events, even though that responsibility was not assessed by the justice system in the same way because of his status as a fugitive.
113. The State also notes that the statements made by Gorriarán during the course of the interview indicate that:
...those who participated in the events maintain a level of information regarding determined events that was not shared by the judicial authority responsible for explaining those events. In effect, Gorriarán Merlo pointed out that the identity of a Nicaraguan member, José Mendoza by name, has just now been made public. He had been, that is, he had participated in the revolutionary struggle in Nicaragua in 1979 along with us and he has been here in Argentina since 1987...he died on the morning of the 23rd in combat...This shows that they had information which the court authorities did not have at the time.
114. The reply then refers to the videotape that was provided by the petitioners to the Commission and to the State. It points out that the questions raised in that tape "involve considerations about the matters that were not the subject of the trial in the national courts and are issues other than those put before your Commission."
II. PROCESSING BEFORE THE COMMISSION
115. On March 4, 1993, a hearing was held with the petitioners and the Commission. On that occasion, these persons presented a summary of the complaint. On May 14, 1993, the same persons remitted a note containing a complaint that the prison conditions had been unnecessarily aggravated. The letter stated that the imprisoned, both male and female, who were in different penitentiaries, had been grouped with common criminals for the purpose of minimizing their status as "political prisoners." They requested that the Commission visit the prisons to verify their status since they considered that the lives of these persons were in danger.
116. Other letters were received from the petitioners on August 11 and 25, September 27 and October 4, 1993, requesting information about the status of the case and urging the Commission to reach some decision regarding its admissibility. The Commission acknowledged receipt of the letters.
117. On October 18, 1993, the pertinent parts of the petition were sent to the State of Argentina requesting information within a term of 90 days. In reply to a letter sent by the State on December 13, 1993, the Commission granted an extension of 30 days as from January 15, 1994, to furnish the information requested.
118. A second hearing was held on January 27, 1994, between the petitioners and the State representatives.
119. On February 2, 1994, the petitioners remitted additional information about the case in which they stated their discontent with the State's delay in responding. The information was sent to the State on February 15, 1994.
120. A reply was received from the State on February 18, 1994, and sent to the petitioners on March 30, 1994, whose pertinent observations were received by the Commission on May 19, 1994.
121. The petitioners' observations were sent to the State on June 13, 1994. On September 27, 1994, the petitioners sent a new letter that repeated the original complaints, and added information about the violations of the rights protected by Article 24 of the American Convention. The petitioners also sent a videotape of the events at La Tablada. They contend that the tape contains important evidence showing excessive repression and most of the other violations alleged.
122. On January 9, 1995, the State sent its reply to the observations of the petitioners. The reply contains the official version of the events, as set out in the file.
123. The petitioners' observations to the last State reply were received on March 9, 1995.
124. After an extension, the State sent its final letter about this case on August 10, 1995, which also included a copy of the previously mentioned videotape of the TELEFE interview with Enrique Gorriarán Merlo.
125. The petitioners requested a hearing during the ninetieth regular session of the Commission, which was denied by letter dated August 16, 1995.
126. On July 5, 1996, a member of the Commission and an attorney from the Office of the Executive Secretariat met in Buenos Aires with a group of petitioners in this case. The group was made up of attorney Martha Fernández de Burgos, Lidia Felicetti, Beatriz Acosta, Dagmar Alvarez de Ramos, Marta S. Almirón and Marisa Rodríguez, all relatives of the persons convicted or killed as a result of the events at La Tablada in January 1989. These persons reiterated the violations charged, and made a summary of the present status of the victims, and their jail conditions.
III. ADMISSIBILITY
A. FORMAL REQUIREMENTS
127. Internal remedies have been completely exhausted under Argentine law, as called for in Article 46.1.a of the American Convention and Article 37 of the Regulations of the Commission. These remedies were fully exhausted with the rejection of the petitioners' appeal by the Supreme Court of Justice of Argentina on March 17, 1992.
128. The petition was received on September 14, 1992, within the six month period established in Article 46.1.b of the American Convention. The subject matter of the petition is not pending in any other international proceeding for settlement, and the information required by Article 46.1.d has been furnished by the petitioners.
129. The State has not objected to the compliance with the formal requirements for admissibility of this case.
B. GROUNDS FOR INADMISSIBILITY
130. Article 47 of the American Convention establishes the grounds for inadmissibility of petitions or communications presented to the Commission. Clause b of that Article refers to complaints that do not state facts that tend to establish some violation of the rights guaranteed by the American Convention.
i. Position of the State
131. According to the State, the issues at bar were fully and fairly litigated in Argentina and thus, for the Commission to review those issues would be for it to act as a fourth instance.
132. The other complaints of the petitioners regarding the procedural standards applied, the establishment of the crime and the respective levels of responsibility are considered by the State as sufficiently well discussed and decided upon by the national courts.
133. In the letter received by the Commission on February 18, 1994, the State expressed its concern regarding the petition because, in the final analysis, the plaintiffs' allegations and other issues at bar had already been examined and decided upon by the judicial branch of State in Argentina "...all in conformity with domestic law, as well as with obligations assumed by the State at the regional and international level."
134. The State requests in its communications that the case be declared inadmissible although it mentioned on several occasions that it was willing to provide any additional information, if requested by the Commission.
ii. Position of the petitioners
135. The petitioners requested in their letter of February 2, 1994, that the theory of "fourth quasi-judicial level" of the Commission not be applied to its case. In its observations of May 14, 1994, the petitioners dispute the State's statements about the "fourth instance" nature that a review of their case by the Commission would have. They reject the argument that the petition is based on a "mere difference of opinion about estimations and appreciations made by national judges." To the contrary, they contend that their complaint refers to summary executions, torture, death of defenseless persons, and executions of prisoners who had surrendered, none of which had been addressed by the State. They believe that the State's reply deals with abstract matters, and does not refer to a single one of the specific violations denounced.
136. In addition, the petitioners indicate that the reply refers to criminal procedures in effect in Argentina. However, the new Procedural Code was not applied to those tried in the Abella case since they had already been sentenced under Law 23077 when the new rules went into effect. The petitioners likewise maintain that their right to equality before the law was violated, bearing in mind the fact that the special appeal filed to overturn the conviction of the commanders of the military dictatorship juntas from 1976 to 1983 in Argentina was decided by the Supreme Court in one year. They attribute this difference in treatment to their status as civilians.
137. The petitioners believe that the State has failed to reply to most of the specific allegations contained in their complaint, namely:
a. Carlos Samojedny, Iván Ruiz and Alejandro Díaz were arrested while still alive and are still disappeared.
b. Francisco Provenzano was arrested while alive and his body was later identified by his family members; his remains appeared to show the effects of a bomb explosion.
c. Berta Calvo, arrested with serious wounds, later died without medical care; no mention has been made of the status of the military officer who confessed to having emptied his weapon into her while she was defenseless.
d. Ricardo Veiga, Roberto Sánchez and Carlos Alberto Burgos were executed inside the barracks; the latter of these was seen while still alive by his family members after mid-day on January 23, 1989.
e. Pablo Martín Ramos was arrested while alive and then summarily executed.
f. Juan Manuel Murúa was in Company B of the barracks when it was destroyed by cannon fire and the roof caved in; his body has still not been identified and therefore he is included among the disappeared.
g. The attempts to surrender which began at 9:30 a.m. on January 23, 1989, were ignored; General Arrillaga, in charge of the operation, contradicted himself repeatedly in court regarding this and other events.
h. The force used by the State to recapture the base was illegal, unnecessary and irrational, and included methods and weapons prohibited by the Geneva Conventions and its Protocols, and exceeded that which is provided for in Law 23077.
i. The State ignored its jurisdictional responsibility during the evidence gathering phase of this proceeding when illegal evidence was introduced; examples being reports prepared by the military intelligence services and evidence seized in illegal raids. These were given juridical certitude by the court.
j. The prisoners were tortured physically and psychologically in the barracks after their arrest.
k. Numerous violations of due process took place, examples being the crimes with which the defendants were charged, the surprising close of the summary stage, the 43 expert testimonies and the 19 seizures made outside procedural law, as well as the so-called "parallel proceedings."
l. The violation of the right to equality before the law.
iii. The "fourth instance formula"
138. The jurisprudence of the Commission regarding the "fourth instance formula" has been defined repeatedly since report 39/96. 9 Below appear several of the grounds of that report which apply to this case.
139. The international protection provided by the supervisory bodies of the American Convention is of a subsidiary nature. The Preamble to the American Convention is clear in this respect, when it refers to the reinforcement or complementariety of the protection provided by the domestic law of the American states.
140. The rule of prior exhaustion of domestic remedies is based on the principle that a defendant State must be allowed to provide redress on its own and within the framework of its internal legal system. The effect of this rule is "to assign to the jurisdiction of the Commission an essentially subsidiary role". 10
141. The nature of that role also constitutes the basis for the so-called "fourth instance formula" applied by the Commission, consistent with the practice of the European human rights system. 11 The basic premise of this formula is that the Commission cannot review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees, unless it considers that a possible violation of the Convention is involved.
142. The Commission is competent to declare a petition admissible and rule on its merits when it portrays a claim that a domestic legal decision constitutes a disregard of the right to a fair trial, or if it appears to violate any other right guaranteed by the American Convention. However, if it contains nothing but the allegation that the decision was wrong or unjust in itself, the petition must be dismissed under this formula. The Commission's task is to ensure the observance of the obligations undertaken by the States parties to the American Convention, but it cannot serve as an appellate court to examine alleged errors of internal law or fact that may have been committed by the domestic courts acting within their jurisdiction. Such examination would be in order only insofar as the mistakes entailed a possible violation of any of the rights set forth in the American Convention.
143. In democratic societies, where the courts function according to a system of powers established by the Constitution and domestic legislation, it is for those courts to review the matters brought before them. Where it is clear that there has been a violation of one of the rights protected by the American Convention, then the Commission is competent to review, if domestic remedies have been exhausted.
144. The Commission has full authority to adjudicate irregularities of domestic judicial proceedings which result in manifest violations of due process or of any of the rights protected by the American Convention.
145. The Commission believes that the petitioners' complaint refers to events that tend to establish the violation of a number of human rights protected by the Convention. The petitioners have exhausted all domestic legal remedies as required by Article 46 of the American Convention, and there is no verification of any of the grounds for inadmissibility set out in Article 47 of the instrument. Consequently, this case is admissible and therefore the Commission is competent to examine and decide on the fundamental issue of the violations charged.
IV. ANALYSIS
146. In order to facilitate the analysis of key events and issues raised in this case, this report will examine those events and issues under the following three headings: the attack on and the recovery of the military base; the events that followed the surrender of the attackers and the arrest of their alleged accomplices; and the trial of those same persons for the crime of rebellion in the Abella case.
A. THE ATTACK AND RECAPTURE OF THE MILITARY BASE
147. In their complaint, petitioners invoke various rules of International Humanitarian Law, i.e. the law of armed conflict, in support of their allegations that State agents used excessive force and illegal means in their efforts to recapture the La Tablada military base. For its part, the Argentine State, while rejecting the applicability of interstate armed conflict rules to the events in question, nonetheless have in their submissions to the Commission characterized the decision to retake the La Tablada base by force as a "military operation". The State also has cited the use of arms by the attackers to justify their prosecution for the crime of rebellion as defined in Law 23.077. Both the Argentine State and petitioners are in agreement that on the 23 and 24 of January 1989 an armed confrontation took place at the La Tablada base between attackers and Argentine armed forces for approximately 30 hours.
148. The Commission believes that before it can properly evaluate the merits of the petitioner’s claims concerning the recapture of the La Tablada base by the Argentine military, it must first determine whether the armed confrontation at the base was merely an example of an "internal disturbance or tensions" or whether it constituted a non-international or internal armed conflict within the meaning of Article 3 common to the four 1949 Geneva conventions ("Common Article 3"). Because the legal rules governing an internal armed conflict vary significantly from those governing situations of internal disturbances or tensions, a proper characterization of the events at the La Tablada military base on January 23 and 24, 1989 is necessary to determine the sources of applicable law. This, in turn, requires the Commission to examine the characteristics that differentiate such situations from Common Article 3 armed conflicts in light of the particular circumstances surrounding the incident at the La Tablada base.
i. Internal disturbances and tensions
149. The notion of internal disturbances and tensions has been studied and elaborated on most particularly by the International Committee of the Red Cross ("ICRC"). In its 1973 Commentary on the Draft Additional Protocols to the Geneva Conventions,12 the ICRC defined, albeit not exhaustively, such situations by way of the following three examples:
- riots, that is to say, all disturbances which from the start are not directed by a leader and have no concerted intent;
- isolated and sporadic acts of violence, as distinct from military operations carried out by armed forces or organized armed groups;
- other acts of a similar nature which incur, in particular, mass arrests of persons because of their behavior or political opinion.13 (Emphasis supplied.)
150. According to the ICRC, what principally distinguishes situations of serious tension from internal disturbances is the level of violence involved. While tensions can be sequels of an armed conflict or internal disturbance, the latter are
...situations in which there is no non-international armed conflict as such, but there exists a confrontation within a country, which is characterized by a certain seriousness or duration and which involves acts of violence. . . In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order.14
151. Situations of internal disturbances and tensions are expressly excluded from the scope of international humanitarian law as not being armed conflicts. Instead, they are governed by domestic law and relevant rules of international human rights law.
ii. Non-international armed conflicts under humanitarian law
152. In contrast to these situations of domestic violence, the concept of armed conflict, in principle, requires the existence of organized armed groups that are capable of and actually do engage in combat and other military actions against each other. In this regard, Common Article 3 simply refers to, but does not actually define "an armed conflict of a non-international character."15 However, Common Article 3 is generally understood to apply to low intensity and open armed confrontations between relatively organized armed forces or groups that take place within the territory of a particular State.16 Thus, Common Article 3 does not apply to riots, mere acts of banditry or an unorganized and short-lived rebellion. Article 3 armed conflicts typically involve armed strife between governmental armed forces and organized armed insurgents. It also governs situations where two or more armed factions confront one another without the intervention of governmental forces where, for example, the established government has dissolved or is too weak to intervene. It is important to understand that application of Common Article 3 does not require the existence of large-scale and generalized hostilities or a situation comparable to a civil war in which dissident armed groups exercise control over parts of national territory.17 The Commission notes that the ICRC’s authoritative Commentary on the 1949 Geneva Conventions indicates that, despite the ambiguity in its threshold of application, Common Article 3 should be applied as widely as possible.18
153. The most difficult problem regarding the application of Common Article 3 is not at the upper end of the spectrum of domestic violence, but rather at the lower end. The line separating an especially violent situation of internal disturbances from the "lowest" level Article 3 armed conflict may sometimes be blurred and, thus, not easily determined. When faced with making such a determination, what is required in the final analysis is a good faith and objective analysis of the facts in each particular case.
iii. Characterization of the events at the La Tablada base
154. Based on a careful appreciation of the facts, the Commission does not believe that the violent acts at the La Tablada military base on January 23 and 24, 1989 can be properly characterized as a situation of internal disturbances. What happened there was not equivalent to large scale violent demonstrations, students throwing stones at the police, bandits holding persons hostage for ransom, or the assassination of government officials for political reasons -- all forms of domestic violence not qualifying as armed conflicts.
155. What differentiates the events at the La Tablada base from these situations are the concerted nature of the hostile acts undertaken by the attackers, the direct involvement of governmental armed forces, and the nature and level of the violence attending the events in question. More particularly, the attackers involved carefully planned, coordinated and executed an armed attack, i.e., a military operation, against a quintessential military objective - a military base. The officer in charge of the La Tablada base sought, as was his duty, to repulse the attackers, and President Alfonsín, exercising his constitutional authority as Commander-in-Chief of the armed forces, ordered that military action be taken to recapture the base and subdue the attackers.
156. The Commission concludes therefore that, despite its brief duration, the violent clash between the attackers and members of the Argentine armed forces triggered application of the provisions of Common Article 3, as well as other rules relevant to the conduct of internal hostilities.
iv. The Commission's competence to apply international humanitarian law
157. Before addressing petitioner’s specific claims, the Commission thinks it useful to clarify the reasons why it has deemed it necessary at times to apply directly rules of international humanitarian law or to inform its interpretations of relevant provisions of the American Convention by reference to these rules. A basic understanding of the interrelationship of these two branches of international law --human rights and humanitarian law-- is instructive in this regard.
158. The American Convention, as well as other universal and regional human rights instruments, and the 1949 Geneva Conventions share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity. These human rights treaties apply both in peacetime, and during situations of armed conflict. 19 Although one of their purposes is to prevent warfare, none of these human rights instruments was designed to regulate such situations and, thus, they contain no rules governing the means and methods of warfare.
159. In contrast, international humanitarian law generally 20 does not apply in peacetime, and its fundamental purpose is to place restraints on the conduct of warfare in order to diminish the effects of hostilities. It is understandable therefore that the provisions of conventional and customary humanitarian law generally afford victims of armed conflicts greater or more specific protections than do the more generally phrased guarantees in the American Convention and other human rights instruments.
160. It is, moreover, during situations of internal armed conflict that these two branches of international law most converge and reinforce each other. Indeed, the authors of one of the authoritative commentaries on the two 1977 Protocols Additional to the 1949 Geneva Conventions state in this regard:
Though it is true that every legal instrument specifies its own field of application, it cannot be denied that the general rules contained in international instruments relating to human rights apply to non-international armed conflicts as well as the more specific rules of humanitarian law. 21
161. For example, both Common Article 3 and Article 4 of the American Convention protect the right to life and, thus, prohibit, inter alia, summary executions in all circumstances. Claims alleging arbitrary deprivations of the right to life attributable to State agents are clearly within the Commission’s jurisdiction. But the Commission’s ability to resolve claimed violations of this non-derogable right arising out of an armed conflict may not be possible in many cases by reference to Article 4 of the American Convention alone. This is because the American Convention contains no rules that either define or distinguish civilians from combatants and other military targets, much less, specify when a civilian can be lawfully attacked or when civilian casualties are a lawful consequence of military operations. Therefore, the Commission must necessarily look to and apply definitional standards and relevant rules of humanitarian law as sources of authoritative guidance in its resolution of this and other kinds of claims alleging violations of the American Convention in combat situations. To do otherwise would mean that the Commission would have to decline to exercise its jurisdiction in many cases involving indiscriminate attacks by State agents resulting in a considerable number of civilian casualties. Such a result would be manifestly absurd in light of the underlying object and purposes of both the American Convention and humanitarian law treaties.
162. Apart from these considerations, the Commission’s competence to apply humanitarian law rules is supported by the text of the American Convention, by its own case law, as well as the jurisprudence of the Inter-American Court of Human Rights. Virtually every OAS member State that is a State Party to The American Convention has also ratified one or more of the 1949 Geneva Conventions and /or other humanitarian law instruments. As States Parties to the Geneva Conventions, they are obliged as a matter of customary international law to observe these treaties in good faith and to bring their domestic law into compliance with these instruments. Moreover, they have assumed a solemn duty "to respect and to ensure respect" of these Conventions in all circumstances, most particularly, during situations of interstate or internal hostilities.22
163. In addition, as States Parties to the American Convention, these same states are also expressly required under Article 25 of the American Convention to provide an internal legal remedy to persons for violations by State agents of their fundamental rights "recognized by the constitution or laws of the state concerned or by this Convention" (emphasis supplied). Thus, when the claimed violation is not redressed on the domestic level and the source of the right is a guarantee set forth in the Geneva Conventions, which the State Party concerned has made operative as domestic law, a complaint asserting such a violation, can be lodged with and decided by the Commission under Article 44 of the American Convention. Thus, the American Convention itself authorizes the Commission to address questions of humanitarian law in cases involving alleged violations of Article 25.
164. The Commission believes that in those situations where the American Convention and humanitarian law instruments apply concurrently, Article 29(b) of the American Convention necessarily require the Commission to take due notice of and, where appropriate, give legal effect to applicable humanitarian law rules. Article 29(b) --the so-called "most-favorable-to-the-individual-clause"-- provides that no provision of the American Convention shall be interpreted as "restricting the enforcement or exercise of any right or freedom recognized by virtue of the laws of any State Party of another convention which one of the said states is a party."
165. The purpose of this Article is to prevent States Parties from relying on the American Convention as a ground for limiting more favorable or less restrictive rights to which an individual is otherwise entitled under either national or international law. Thus, where there are differences between legal standards governing the same or comparable rights in the American Convention and a humanitarian law instrument, the Commission is duty bound to give legal effort to the provision(s) of that treaty with the higher standard(s) applicable to the right(s) or freedom(s) in question. If that higher standard is a rule of humanitarian law, the Commission should apply it.
166. Properly viewed, the close interrelationship between human rights law and humanitarian law also supports the Commission's authority under Article 29 (b) to apply humanitarian law, where it is relevant. In this regard, the authors of the New Rules make the following pertinent point regarding the reciprocal relationship between Protocol II and the Covenant on Civil and Political Rights:
Protocol II should not be interpreted as remaining behind the basic standard established in the Covenant. On the contrary, when Protocol II in its more detailed provisions establishes a higher standard than the Covenant, this higher standard prevails, on the basis of the fact that the Protocol is "lex specialis" in relation to the Covenant. On the other hand, provisions of the Covenant which have not been reproduced in the Protocol which provide for a higher standard of protection than the protocol should be regarded as applicable irrespective of the relative times at which the two instruments came into force for the respective State. It is a general rule for the application of concurrent instruments of Human Rights --and Part II "Humane Treatment" [of Protocol II] is such an instrument-- that they implement and complete each other instead of forming a basis for limitations.23
167. Their point is equally valid concerning the mutual relationship between the American Convention and Protocol II and other relevant sources of humanitarian law, such as Common Article 3.
168. In addition, the Commission believes that a proper understanding of the relationship between applicable humanitarian law treaties and Article 27(1), the derogation clause of the American Convention, is relevant to this discussion. This Article permits a State Party to the American Convention to temporarily derogate, i.e., suspend, certain Convention based guarantees during genuine emergency situations. But, Article 27(1) requires that any suspension of guarantees not be "inconsistent with that State's other obligations under international law". Thus, while it cannot be interpreted as incorporating by reference into the American Convention all of a State's other international legal obligations, Article 27(1) does prevent a State from adopting derogation measures that would violate its other obligations under conventional or customary international law.
169. A past President of the Inter-American Court of Human Rights, Professor Thomas Buergenthal, has written the following concerning Article 4 of the U.N. Covenant on Civil and Political Rights, that treaty's derogation clause:
Particularly relevant in this connection are humanitarian law treaties because they apply in time of war: a State which purports to derogate from obligation under the Covenant which are required also by such other treaty would be violating both articles. Similarly, a State could not take measures under Article 4 which could violate provisions in other human rights treaties to which it is a party, for example, which such other treaty contains no derogation clause or has a stricter derogation clause forbidding derogation from some rights for which derogation is permitted under Article 4 of the Covenant.24
170. Inasmuch as the content of Article 27(1) of the American Convention is, in most material respects, identical to that of Article 4(1) of the Covenant, the Commission is of the view that Professor Buergenthal's analysis applies with equal force to issues involving the interpretation and application of Article 27(1) during situations of armed conflict. Thus, when reviewing the legality of derogation measures taken by a State Party to the American Convention by virtue of the existence of an armed conflict to which both the American Convention and humanitarian law treaties apply, the Commission should not resolve this question solely by reference to the text of Article 27 of the American Convention. Rather, it must also determine whether the rights affected by these measures are similarly guaranteed under applicable humanitarian law treaties. If it finds that the rights in question are not subject to suspension under these humanitarian law instruments, the Commission should conclude that these derogation measures are in violation of the State Parties obligations under both the American Convention and the humanitarian law treaties concerned.
171. It is also worth noting that the Inter-American Court of Human Rights has viewed with approval the Commission's practice of applying sources of international law, other than the American Convention. In its Advisory Opinion interpreting the terms "other treaties" in Article 64 of the American Convention, the Court stated:
The Commission has properly invoked in some of its reports and resolutions "other treaties concerning the protection of human rights in the American states", regardless of their bilateral or multilateral character, or whether they have been adopted within the framework or under the auspices of the inter-American system.25
v. Petitioners' claims
172. Petitioners do not dispute the fact that the attackers captured in La Tablada planned, initiated and participated in the attack on the military base. They contend, however, that the reason or motive for the attack --to stop a rumored military coup against the Alfonsín government-- was legally justified by Article 21 of the National Constitution which obliged citizens "to take up arms in defense of the Constitution." Consequently, they assert that their prosecutions for the crime of rebellion was violative of the American Convention. In addition, petitioners argue that because their cause was "just" and lawful, the State, by virtue of its excessive and unlawful use of force in retaking the military base, must bear full legal and moral responsibility for all the loss of life and material damage occasioned by its actions.
173. The Commission believes that petitioners’ arguments reflect certain fundamental misconceptions concerning the nature of international humanitarian law. It should be understood that neither application of Common Article 3, nor of any other humanitarian law rules relevant to the hostilities at the Tablada base, can be interpreted as recognizing the legitimacy of the reasons or the cause for which the members of the MTP took up arms. Most importantly, application of the law is not conditioned by the causes of the conflict. This basic tenant of humanitarian law is enshrined in the preamble of Additional Protocol I which states in pertinent part:
Reaffirming further that the provisions of the Geneva Conventions of 12 August 1949 . . . must be fully applied in all circumstances . . . without any adverse distinction based on the nature or origin off the armed conflict or on the causes espoused by or attributed to the Parties of the Conflict.26(Emphasis supplied).
174. Unlike human rights law which generally restrains only the abusive practices of State agents, Common Article 3's mandatory provisions expressly bind and apply equally to both parties to internal conflicts, i.e., government and dissident forces. Moreover, the obligation to apply Common Article 3 is absolute for both parties and independent of the obligation of the other.27 Therefore, both the MTP attackers and the Argentine armed forces had the same duties under humanitarian law, and neither party could be held responsible for the acts of the other.
175. Insofar as petitioners request the Commission to assess and approve of the motives for which their clients took up arms, the Commission must observe that, as a rule, its jurisdiction does not extend to the conduct of private actors which is not imputable to the State. Further, it is and was, in the first instance, for the Argentine State, and, in particular, its courts, to interpret and apply Article 21 of the National Constitution and Law 23.077. The Commission’s role is to ensure the observance of the obligations undertaken by States Parties to the American Convention, but it cannot serve as an appellate court to examine alleged errors in the application or interpretation of national law that may have been committed by domestic courts acting within their jurisdiction. Such an examination would be in order only if the interpretation or application of the law entailed a possible violation of any of the rights set forth in the American Convention.28 Based on the record, the Commission does not find that the prosecution of petitioner’s clients for the crime of rebellion under Law 23.077 constitutes a violation of any of the American Convention’s provisions.
vi. Application of Humanitarian Law
176. Common Article 3's basic purpose is to have certain minimum legal rules apply during hostilities for the protection of person’s who do not or no longer take a direct or active part in the hostilities. Persons entitled to Common Article 3's mandatory protection include members of both State and dissident forces who surrender, are captured or are hors de combat. Individual civilians are similarly covered by Common Article 3's safeguards when they are captured by or otherwise subjected to the power of an adverse party, even if they had fought for the opposing party.
177. In addition to Common Article 3, customary law principles applicable to all armed conflicts require the contending parties to refrain from directly attacking the civilian population and individual civilians and to distinguish in their targeting between civilians and combatants and other lawful military objectives.29 In order to spare civilians from the effects of hostilities, other customary law principles require the attacking party to take precautions so as to avoid or minimize loss of civilian life or damage to civilian property incidental or collateral to attacks on military targets.
178. The Commission believes that petitioners misperceive the practical and legal consequences that ensued with respect to the application of these rules to those MTP members who participated in the Tablada attack. Specifically, when civilians, such as those who attacked the Tablada base, assume the role of combatants by directly taking part in fighting, whether singly or as a member of a group, they thereby become legitimate military targets. As such, they are subject to direct individualized attack to the same extent as combatants. Thus, by virtue of their hostile acts, the Tablada attackers lost the benefits of the above mentioned precautions in attack and against the effects of indiscriminate or disproportionate attacks pertaining to peaceable civilians. In contrast, these humanitarian law rules continued to apply in full force with respect to those peaceable civilians present or living in the vicinity of the La Tablada base at the time of the hostilities. The Commission notes parenthetically that it has received no petition lodged by any such persons against the State of Argentina alleging that they or their property sustained damage as a result of the hostilities at the base.
179. When they attacked the La Tablada base, those persons involved clearly assumed the risk of a military response by the State. The fact that the Argentine military had superior numbers and fire power and brought them to bear against the attackers cannot be regarded in and of itself as a violation of any rule of humanitarian law. This does not mean, however, that either the Argentine military or the MTP attackers had unlimited discretion in their choice of means of injuring the other. Rather, both parties were required to conduct their military operations within the restraints and prohibitions imposed by applicable humanitarian law rules.
180. In this connection, petitioners in essence allege that the Argentine military violated two specific prohibitions applicable in armed conflicts, namely:
a) a refusal by the Argentine military to accept the attackers offer to surrender, tantamount to a denial of quarter; and
b) the use of weapons of a nature to cause superfluous injury or unnecessary suffering, specifically, incendiary weapons.
181. In evaluating petitioners’ claims, the Commission is mindful that because of the peculiar and confusing conditions frequently attending combat, the ascertainment of crucial facts frequently cannot be made with clinical certainty. The Commission believes that the appropriate standard for judging the actions of those engaged in hostilities must be based on a reasonable and honest appreciation of the overall situation prevailing at the time the action occurred and not on the basis of speculation or hindsight.
182. With regard to their first allegation, petitioners charge that the Argentine military deliberately ignored the attempt of the attackers to surrender some four hours after the hostilities began on January 23, 1989 which unnecessarily prolonged the fighting an additional twenty-six hours and thereby resulted in needless deaths and suffering on both sides. Apart from the testimony of the attack survivors, petitioners rely on a video tape, which they submitted to the Commission, to substantiate their claims. The video tape is a compilation of news programs broadcast by channels 2, 9, 11 and 13 of Argentina on the day of the attack, as well as subsequent documentaries by the same stations and other footage that the petitioners considered relevant to their case. While the tape is an important aid to its understanding of the events in question, the Commission believes that its probative value is nonetheless questionable. For example, the tape does not provide a sequential and uninterrupted documentation of the 30 hours of combat at the base. Rather, it is an edited depiction of certain events which were compiled by a private producer at the request of the petitioners, for the specific purpose of presentation to the Commission.
183. The Commission carefully viewed the above mentioned video tape, and identified two different scenes which supposedly depict the attempted surrender. The first of them, in which the image is not very clear, shows a very brief scene of a white flag being waved from a window. This first scene, however, is not connected to any of the others on the video, nor is there any indication of the precise moment when it took place. The second scene shows a larger image of one of the buildings inside the military base, which is being hit by a volley of gunfire, presumably from Argentine forces. Upon repeated viewings and careful scrutiny of this second scene, the Commission was not able to see the white flag which supposedly was being waved from within the building by the MTP attackers.
184. The tape is also notable for what it does not show. In fact, it does not identify the precise time or day of the putative surrender attempt. Nor does it show what was happening at the same time in other parts of the base where other attackers were located. If these persons, for whatever reason, continued to fire or commit other hostile acts, the Argentine military might not unreasonably have believed that the white flag was an attempt to deceive or divert them.
185. Thus, because of the incomplete nature of the evidence, the Commission is not in a position to conclude that the Argentine armed forces purposefully rejected a surrender attempt by the attackers at 9:00 am on the 23d of January. The Commission does note, however, that the fact that there were survivors among them tends to belie any intimation that an order of no quarter was actually given.
186. The video tape is even less probative of petitioners' claim that the Argentine military used incendiary weapons30 against the attackers. The video does show a fiery explosion in a structure presumably occupied by some of the attackers. But the precise nature of the weapon used that caused the explosion in not revealed by the tape. The reason for the explosion could be attributed to a weapon other than an incendiary device. For example, it might have been caused by a munition designed to pierce installations or facilities where the incendiary effect was not specifically designed to cause burn injury to persons, or as the result of a direct hit by an artillery shell that exploded munitions located within or near the attacker’s defensive position. Without the benefit of testimony from munitions experts or forensic evidence establishing a likely causal connection between the explosion and the use of an incendiary weapon, the Commission simply cannot conclude that the Argentine military employed such a device against the attackers.
187. The Commission must note that even if it were proved that the Argentine military had used such weapons, it cannot be said that their use in January 1989 violated an explicit prohibition applicable to the conduct of internal armed conflicts at that time. In this connection, the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons annexed to the 1981 United Nation’s Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious and to Have Indiscriminate Effects ("Weapons Convention"), cited by petitioners, was not ratified by Argentina until 1995.31 Moreover and most pertinently, Article 1 of the Weapons Convention states that the Incendiary Weapons Protocol applies only to interstate armed conflicts and to a limited class of national liberation wars. As such, this instrument did not directly apply to the internal hostilities at the La Tablada. In addition, the Protocol does not make the use of such weapons per se unlawful. Although it prohibits their direct use against peaceable civilians, it does not ban their deployment against lawful military targets, which include civilians who directly participate in combat.
188. Because of the lack of sufficient evidence establishing that State agents used illegal methods and means of combat, the Commission must conclude that the killing or wounding of the attackers which occurred prior to the cessation of combat on January 24, 1989 were legitimately combat related and, thus, did not constitute violations of the American Convention or applicable humanitarian law rules.
189. The Commission wishes to emphasize, however, that the persons who participated in the attack on the military base were legitimate military targets only for such time as they actively participated in the fighting. Those who surrendered, were captured or wounded and ceased their hostile acts, fell effectively within the power of Argentine state agents, who could no longer lawfully attack or subject them to other acts of violence. Instead, they were absolutely entitled to the non-derogable guarantees of humane treatment set forth in both common Article 3 of the Geneva Conventions and Article 5 of the American Convention. The intentional mistreatment, much less summary execution, of such wounded or captured persons would be a particularly serious violation of both instruments.32
B. EVENTS FOLLOWING SURRENDER
190. Based on the information in this case, the Commission can conclude that on January 24, 1989 State security forces proceeded to arrest some of the attackers, while others surrendered. It should be noted that not all the attackers were in the same place on the morning of the second day; some of them were captured by the military authorities as the fighting continued, before the main group surrendered. The main group, made up of the 13 people identified at the beginning of this report (paragraph 6 "Sentenced to prison - life"), was in the Non-Commissioned Officers' Club of RIM 3, where they were urged to surrender by General Arrillaga; they did so at 9:00 a.m. on January 24, 1989.
191. The petitioners allege that the Argentine State carried out the forced disappearances of six people, and the extrajudicial executions of four others, after they were all in the custody of the military authorities who re-took the barracks.
192. As to the allegations of disappearances, the petitioners base their claim on the fact that it was not possible to locate the remains of the alleged victims. For purposes of establishing the existence of a forced disappearance, the principal source of standards is the Inter-American Convention on Forced Disappearance of Persons.33 That treaty provides, at Article II:
... forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.
193. In this case, the Commission takes note of the fact that the Argentine State declined in its communications to the Commission to refer, much less deny or refute, petitioners' allegations of the forced disappearance of the above-noted individuals. Notwithstanding the State's silence on this issue, the Commission does not believe that the information provided by the petitioners is sufficient to make a showing that Roberto Sánchez, Carlos Alberto Burgos, Iván Ruiz, José Alejandro Díaz, Carlos Samojedny, and Juan Manuel Murúa have been victims of a forced disappearance by agents of the Argentine State. In effect, although the evidence in the file tends to show that some of those persons were detained by State agents after their surrender, there is not sufficient evidence to establish that the authorities have refused to recognize their deprivation of liberty or to report on what happened to them.
194. In the absence of such evidence, the Commission is not able to find that State agents hid the corpses of the six persons indicated as disappeared in the complaint. In this regard, the petitioners themselves indicate that the mortal remains of some of the attackers were mixed up and that their identification, consequently, was impossible. Therefore, the Commission concludes that the factual and legal grounds necessary to make a showing of forced disappearance are not present in this case, and will proceed to analyze whether there was some other violation of the human rights of the persons mentioned.
195. Before beginning the analysis, the Commission should emphasize that once the attackers were captured and disarmed, they were plainly defenseless, indeed several of them were seriously wounded. The Commission believes that the relationship between the State agents and the attackers at the time of their capture, and thereafter, was analogous to that of prison guards and the inmates under their custody. As such, the State had, under Article 1(1) of the American Convention and Common Article 3 of the Geneva Conventions, a duty to treat these persons humanely in all circumstances and to ensure their safety. Consistent with this relationship, the Commission finds that where the deaths of or injuries to such persons under the exclusive control and custody of the State are alleged, the State must bear the burden of proving otherwise to the Commission.
196. The Commission's position, expressed in the previous paragraph, is consistent with the jurisprudence of the Inter-American Court of Human Rights in the Neira Alegría Case. In that case, the Commission charged the Peruvian State with the violation of several rights protected by the American Convention, including the right to life of three persons who died during a prison riot in Peru that included the participation of more than 100 prisoners accused of terrorism. In its final brief, the State limited itself to arguing that the allegations concerning the deaths of the prisoners were not backed by sufficient evidence and that it had met its obligations to respect the rights and liberties recognized by the American Convention. The judgment in that case held:
The Court feels that it is not up to the Inter-American Commission to determine the whereabouts of the three persons to whom these proceedings refer, but instead, because of the circumstances at the time, the prisons and then the investigations were under the exclusive control of the Government, the burden of proof therefore corresponds to the defendant State. This evidence was or should have been at the disposal of the Government had it acted with the diligence required. In previous cases, the Court has said:
[i]n contrast to domestic criminal law, in proceedings to determine human rights violations the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State's cooperation.
The State controls the means to verify acts occurring within its territory. Although the Commission has investigatory powers, it cannot exercise them within a State's jurisdiction unless it has the cooperation of that State. (Velásquez Rodríguez Case, supra 63, paras. 135-136; Godínez Cruz Case, supra 63, paras. 141-142).34
197. This standard for the allocation of procedural burdens is deduced from the particular regime of international protection of human rights put in place by the American Convention. The Inter-American Court has said:
... modern human rights treaties in general, and the American Convention in particular, are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States.
... the Convention must be seen for what in reality it is: a multilateral legal instrument or framework enabling States to make binding unilateral commitments not to violate the human rights of individuals within their jurisdiction.35
198. With respect to the particular features of the system for defending human rights, the Inter-American Court has established that:
The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible.
199. No doubt the standard for allocating the burden of proof reflects the particular aim pursued by the human rights regime set up by the American Convention, to strike a balance, during the procedure, between the different nature of the only two parties-in-interests, the individual and the State, in their purest form, so as to prevent unacceptable inclinations motivated by wealth and power.36
200. To facilitate the analysis of each of the particular cases, the Commission believes a distinction should be drawn between the victims, considering the facts alleged in the file, the responses from the State to the Commission, and all other evidence available. The first group of victims is made up of those cases in which the complaint is founded on eyewitness testimony from several witnesses including the attackers themselves and members of the military who participated in the events of January 23 and 24, 1989. The second group, by way of contrast, includes those cases in which the violations alleged are based on the testimony of the attackers and the respective complaints brought before the Argentine judicial authorities, in addition to other information and data provided by the petitioners.
i. First Group: Allegations based on multiple direct testimony
Carlos Alberto Burgos and Roberto Sánchez
201. The complaint indicates that Carlos Alberto Burgos and Roberto Sánchez were executed in the guards' quarters (la guardia de prevención) within the La Tablada barracks. It cites the testimony given at the Abella trial of four soldiers (Aibar, Miranda, Medina, and Rojas) who recognized Burgos and Sánchez in photographs and stated that Burgos "was alive long after noon" (on January 23, 1989).37 The same persons recognized Roberto Sánchez, who allegedly surrendered with a serious injury. Roberto Sánchez, like Burgos, is listed by the Argentine authorities as having been "killed in combat."
202. The Commission believes that the information available in the file is sufficient to establish that Carlos Alberto Burgos and Roberto Sánchez were taken alive and were under the custody of agents of the Argentine State after surrendering on January 23, 1989. Consequently, they were fully covered by the rights protected in the American Convention and by Common Article 3 of the Geneva Conventions. This assertion with respect to Burgos and Sánchez is based on the coincident testimony in the Abella trial of the four members of the military and several of the attackers. Moreover, as discussed infra, the serious accusation concerning the executions of Burgos and Sánchez was not properly investigated in the domestic jurisdiction of Argentina, and the Argentine authorities did not take the steps necessary to determine the cause of death of these two persons. Therefore, and bearing in mind that the State --which has the burden of refuting the petitioners' allegations--maintained an absolute procedural silence with respect to those allegations, the Commission finds that there are sufficient grounds to conclude that Carlos Alberto Burgos and Roberto Sánchez were taken alive and then executed extrajudicially by agents of the Argentine State in violation of Article 4 of the American Convention.
Iván Ruiz and José Alejandro Díaz
203. The videotape provided by the petitioners shows the arrest of two persons whom they affirm are Iván Ruiz and José Alejandro Díaz. According to the complaint, the same soldiers who testified that they had seen Burgos and Sánchez alive after the surrender recognized Iván Ruiz and José Alejandro Díaz as detainees who were in the custody of an officer by the last name of Nacelli. Nacelli testified at the Abella trial that he had detained Ruiz and Díaz and turned them over to a corporal by the name of Steigman, whom he witnessed take them, at rifle-point, into the barracks. They were then in the custody of Major Varanda, who in turn declared he had delivered them to a non-commissioned officer by the name of Esquivel. Esquivel is on the list of persons killed in the confrontation; because of this, Varanda presumes that Ruiz and Díaz had fled. General Arrillaga, commander in the re-capture of the barracks, explained that they likely escaped when taken to the infirmary, accompanied by a soldier. This theory was described as "fantastic" by the petitioners, since at the time of the surrender the military unit was surrounded by some 3,500 members of the security forces.
204. It was established in the Abella case, based on the similar testimony of the attackers and members of the military, that both Ruiz and Díaz were taken alive by the State agents who recaptured the RIM 3 barracks. Moreover, the videotape and press information from several media outlets that was supplied by the petitioners, depict the size of the security forces in charge of recapturing the barracks. In light of this information, the Commission cannot accept the theory of the authorities according to which Ruiz and Díaz, who were unarmed and seriously wounded, escaped after having been in the custody of the military. In addition, despite the fact that it had the burden of disproving petitioners' claims regarding Díaz and Ruiz's fate, the Argentine State was absolutely silent on this issue. Accordingly, the Commission finds that there is sufficient grounds to conclude that Iván Ruiz and José Alejandro Díaz were taken alive and later executed, after having been in the custody and exclusive control of the members of the military who re-took the RIM 3 barracks at La Tablada.
ii. Second Group: Allegations based on Direct Testimony and Presumptions
205. In contrast to the first group of persons, in respect of which the Commission considers the facts proven, the second group consists of those cases in which disputes or doubts could arise as to the circumstances of and responsibility for the deaths or injuries to the persons involved. To reach a determination as to these allegations of fact, the Commission must first establish whether it is possible to affirm, with support, that the persons included in the second group were taken alive and thereby came under the control and custody of State agents, who had the absolute obligation to provide them humane treatment and to prevent them from suffering any harm. In that case, the Commission must determine whether the State, in violation of this duty, unlawfully deprived these persons of their lives.
Carlos Samojedny, Francisco Provenzano, Berta Calvo, Pablo Martín Ramos, and Ricardo Veiga
206. The petitioners allege that Carlos Samojedny, Francisco Provenzano, Berta Calvo, Pablo Martín Ramos, and Ricardo Veiga were executed extrajudicially after surrendering to the Argentine security forces who recaptured the RIM 3 barracks. As in the case of the allegations of forced disappearances, the Argentine State did not respond to these accusations in any of its communications to the Commission.
207. The petitioners' complaint cites the testimony of several of the attackers who were tried in the Abella case which affirmed that Carlos Samojedny was taken alive by State agents, whom, they allege, beat him after he identified himself. The non-governmental organization Amnesty International undertook a detailed study of the events at La Tablada, whose relevant parts are used in this report.38 Amnesty International states the following regarding the case of Carlos Samojedny:
Another prisoner, Carlos Samojedny, has "disappeared." The detainee Isabel Fernández claims that when she was lying on the ground, the person next to her identified himself as Carlos Samojedny, the psychologist. 39
208. The complaint states that Francisco Provenzano was alive at the time of the surrender of the group of 13 attackers who were later put on trial, and that he allegedly was in the company of Díaz, Motto, and Veiga when they left through the door at the back of the building where they were. Four of the attackers tried in the Abella case so testified (Paz, Aguirre, Rodríguez, and S. Ramos). Motto and Veiga, who also were defendants in that case, made the same assertions in their statements before an investigative judge. Motto testified that he had seen Provenzano surrender alive, and that a soldier told him he had escaped; Claudio Omar Veiga declared that he had seen Provenzano surrounded by soldiers, and that he later heard a shot from a revolver with a silencer.
209. The official medical examiner's report of January 25, 1989, shows the cause of death of Francisco Provenzano as "total carbonization". Nonetheless, the forensic experts consulted by Amnesty International believe that in the case of Provenzano there were serious grounds for requesting a second autopsy. For example, there is a dental report on the lower jaw that suggests that at least part of his internal structure was still intact, making it possible to try to undertake some type of later examination. Although Provenzano's body was missing the upper jaw, the State's autopsy did not make reference to that fact; nonetheless, there is a dental report only for the lower jaw.
210. The complaint further states that Berta Calvo was also found alive, though wounded, at 9:00 a.m. on January 24, 1989. The petitioners' claim is based on what was said by attacker José Alejandro Moreyra, who stated in the Abella case that he had seen her "during a moment when her hood came off." Other companions of hers were alleged to have made similar statements. The petitioners also allege that those persons heard her voice while she was being tortured to death by her captors.
211. Also according to the complaint, Pablo Martín Ramos was taken alive and later executed by State agents. His corpse, which was identified by relatives, had eight bullet wounds to the body and one to the head. Another item of evidence provided by the petitioners is a photograph of a person holding his hands up at the time of the surrender at La Tablada, whom they allege to be Pablo Martín Ramos. It should be noted that the image bears some similarity to the features and physical appearance of Ramos, when compared with another photograph of him taken shortly before the attack, which petitioners sent to the Commission. These photographs were published by several press outlets in Argentina and other countries.
212. With respect to Ricardo Veiga, the complaint indicates that he was in the part of the La Tablada barracks known as the "Guardia de Prevención," or guards' quarters, and that he jumped from there when fire caused the roof to collapse at 4:00 p.m. on January 23, 1989. It then adds that he was "shot down before the television cameras."
213. The Commission considers the above mentioned testimony on the circumstances surrounding the deaths of Carlos Samojedny, Francisco Provenzano, Berta Calvo, Pablo Martín Ramos, and Ricardo Veiga, to be persuasive and notes that it was not met by any objection by the State. Taken together with a series of other relevant facts and circumstances, this testimony permits the Commission to conclude that these persons were taken alive by State agents, and that they remained under the control and custody of those agents.
214. First, it should be noted that the situation described in the above cited testimony is consistent with acts carried out by State agents at the scene of the events, after the attackers surrendered, which the Commission has accepted as fully proven in the cases of the first group of attackers. In this regard, the videotape provided by the petitioners has some very revealing parts. During the operation to recapture the barracks, the videotape shows a scene in which two attackers are taken into custody by the military. Although it is difficult to identify the prisoners due to the distance, one can clearly hear the members of the military who are alongside the cameraman shouting the following words:
Don't shoot, they're our people! Don't shoot, damn it! If there's any leftist we'll kill him later!
They've killed our own, kill them!
215. The same filmed material includes an interview with General Arrillaga, commander of the forces that recaptured the La Tablada barracks, who states that "... the operation for recapture is a tactical operation. The tactical maneuver is the use of the material resources, of the terrain, of the whole situation, and seeks to annihilate the enemy."
216. The Commission is mindful that the Argentine State, adopting the same attitude as it did before the local courts, has never answered or made any statement, oral or written, regarding the allegations that the human rights of the persons mentioned were violated.40 The testimony and evidence provided, plus the presumptions mentioned, paint a well-defined circumstantial picture that enables the Commission to affirm that Carlos Samojedny, Francisco Provenzano, Berta Calvo, Pablo Martín Ramos, and Ricardo Veiga were taken alive by agents of the Argentine State and that they remained under the control and custody of those agents for an undetermined period.41
217. The Commission must now determine whether Carlos Samojedny, Francisco Provenzano, Berta Calvo, Pablo Martín Ramos, and Ricardo Veiga were unlawfully deprived of their lives in those circumstances. For the purposes of providing a legal framework for that determination, the Commission highlights once again that the State had the burden of refuting the allegation as to a violation of the right to life, based on the relationship of control and custody between the State agents and the persons mentioned, from the moment the latter surrendered.
218. The testimony of several attackers indicates that the persons mentioned, after having been taken prisoner, were executed by State agents. The testimony of these witnesses are presented as credible, and have not met with the objection of the Argentine State in its communications with the Commission. Furthermore, the Argentine State has not undertaken an effective investigation to clear up the allegations. Therefore, and taking into account the absolute silence on the part of the State, which had the burden of proof as to this aspect of the complaint, the Commission concludes that there are sufficient grounds to find that Carlos Samojedny, Francisco Provenzano, Berta Calvo, Pablo Martín Ramos, and Ricardo Veiga were summarily executed by agents of the Argentine State.
Juan Manuel Murúa
219. Following the petitioners' account, on the afternoon of January 23, 1989 a part of the barracks known as "Company B," where Juan Manuel Murúa was situated, was hit with cannon fire. Roberto Felicetti testified that he had been there at that time with Murúa and Roberto Vital Gaguine, and that neither of them could escape the collapse of the upper floor caused by the cannon blast. The survivors looked for the bodies of Murúa and Gaguine the next morning, but did not find them. Gaguine's corpse was later identified by his relatives. Murúa's corpse, however, was never found. This is why the petition alleges that he was disappeared.
220. The Commission must establish whether the information mentioned makes it possible to determine that Juan Manuel Murúa was taken alive and brought under the control and custody of State agents. Even though the State has not undertaken an effective investigation to clarify the circumstances surrounding Murúa's fate, nor has it provided information in that regard during the processing of this case--its silence, once again, was absolute--the Commission considers that these presumptions are not sufficiently backed by other evidence. In effect, the mere circumstance that the corpse of the person who was with Murúa was identified and that, in contrast, Murúa's corpse was never found, is not enough to show that Murúa was taken alive and brought under the control and custody of State agents. Given the lack of other evidence, such as testimony of his arrest or that he had survived after the surrender, the Commission is not able to conclude that Juan Manuel Murúa was executed by agents of the Argentine State.
iii. Treatment of Survivors and Accomplices
221. The petitioners also allege that agents of the Argentine State committed several violations of the right to personal integrity to the detriment of the attackers who surrendered January 24, 1989 at 9:00 a.m., and of the five accomplices arrested the previous day and those who gave up voluntarily in the following days.
Survivors
222. The complaint states that once under the control of the members of the security forces, the survivors were stripped, hooded, and subjected to an ideological interrogation accompanied by physical and psychological torture. It also states that on Wednesday, January 25, at dawn they received medical care, but that the torture continued, even in the prison ward of the hospital.
223. The complaint further alleges that the violations of the physical integrity of the accused continued each time they were transferred to the court building during the trial. On those occasions, they were allegedly hooded and subjected to beatings the while in transit. The complaint refers specifically to the cases of Sebastián Joaquín Ramos, Claudio Néstor Rodríguez, Claudio Omar Veiga, Luis Alberto Díaz, and Carlos Motto, who were taken before the judge after having been brutally beaten; they allege that such treatment continued in the judge's presence, until he ordered the persons responsible to stop.
224. The information gathered by Amnesty International on this aspect of the complaint is especially revealing: a comparison of the medical reports for the detainees on January 24 and 28, 1989, shows that the number of injuries had dramatically increased during this period, when they had been deprived of their liberty and were under the exclusive control of agents of the Argentine State.42 The following table reflects the comparisons from that report, and is convincing evidence of the violations of personal integrity of the five petitioners mentioned.
Number of injuries
Name January 24 January 28 Luis Alberto Díaz 8 25 Claudio Néstor Rodríguez 3 23 Carlos Ernesto Motto 7 29 Claudio Omar Veiga 10 32 Sebastián Joaquín Ramos 3 45
225. Sebastián Joaquín Ramos told the judge how a hood was placed over his head, and how he was beaten and kicked, including where he had bullet wounds, until the moment the judge appeared; the judge ordered the guards to remove the handcuffs and hood. The medical report for January 28, 1989, indicates that Sebastián Ramos had multiple wounds all over his body, as well as injuries and abrasions that indicated that he had been dragged along the ground. For reasons of competence, the complaint regarding these events was processed before another court. The judge assigned the case decided to dismiss it on the grounds that there was insufficient evidence to press charges against individuals responsible for the alleged ill-treatment, nor even to determine that the events had occurred while Sebastián Ramos was in the hands of the police or prison authorities. The judgment of dismissal issued October 25, 1989, cites police officials who declared at trial that they had seen the five detainees "hooded and handcuffed." The judge concluded:
... (a) It has been clearly determined that the detainees, now complainants, were subjected to insults, harsh treatment, and/or lesions.... This has been shown through their statements and the report of the medical examiners, cited above, which tell of new harms to the prisoners' health, in relation to the study performed days earlier.
226. Continuing, the same judge stated:
I cannot find that illegal pressure tactics were used (Art. 144 bis of the Criminal Code), as a showing that they were used requires a special purpose, generally, to obtain a confession, a statement incriminating someone else, the withdrawal of an allegation, or some information of interest for clearing up a fact....
... (b) Nor can I find torture or application of torment, as these require procedures that cause intense physical or emotional pain, which distinguishes them from simple harsh treatment or insults, since a finding of torture requires "sufficient gravity."
(c) It also appears from the record that it has not been possible to determine the individual or individuals perpetrating such suffering, nor those who ordered those characteristics of the detention.
Accomplices
Abella, Burgos, Molina, Faldutti, and Gabioud
227. The complaint alleges that the five persons arrested at 7:00 p.m. on January 23, 1989 were also insulted, beaten, and threatened at the police station where they were held. It is further alleged that they were then injected with a substance that made them lose all notion of time, after which the torture and an ideological interrogation continued. These events were alleged to have recurred several times, together with the refusal by State agents to provide food to Abella and Gabioud until January 27, 1989.
Puigjané and Castro
228. Capuchin priest Juan Antonio Puigjané came before the court on January 30, 1989, and was detained and held incommunicado. The complaint indicates that he was subjected to an ideological interrogation amidst insults, accusations, and threats. It is further alleged that he was then left without water or food for 30 hours, until the investigative judge took his statement. When the accused denounced the above noted violations, the judge allegedly justified the police actions. The complaint also indicates that Cintia Alejandra Castro, the other member of the MTP who came voluntarily before the court, was subjected to the same human rights violations as Puigjané and the others.
229. In the Abella case, the defense attorneys filed several allegations and criminal complaints based on these facts, which affected the twenty persons indicted in the case. The petitioners point out that the complaints were the subject of separate trials which they call "parallel proceedings". The only reference the State makes to these violations alleged before the Commission is to indicate that the respective cases were dismissed, and that the decision to dismiss them was not appealed by the defense attorneys. The Commission expressly notes that this circumstance did not release the State of its obligation under the American Convention to investigate the grave acts alleged. It should be noted in this connection that under Argentine law, these offenses are public criminal actions, and therefore may be prosecuted by the Public Ministry on its own initiative.
230. The Commission reiterates what it previously stated in this report with respect to the burden of proof, which in this case too was clearly borne by the State, as these persons were under the control and exclusive custody of State agents. The Commission takes into consideration the failure of the State to respond to all the serious allegations of torture, as well as an apparent lack of will on the part of the State to conduct an exhaustive investigation to identify the perpetrators, even though the judicial organs in the so-called "parallel proceedings" verified that the defendants had been seriously mistreated. In effect, the judgment of October 25, 1989, determined that the five detainees named suffered "insults, harsh treatment, or lesions" when under the control of the State, but the judge, invoking domestic law, ruled that there were no illegal pressure tactics or torture, and consequently decided to dismiss the case.
231. In view of the foregoing, the Commission considers fully proven that Luis Alberto Díaz, Claudio Néstor Rodríguez, Claudio Omar Veiga and Sebastián Joaquín Ramos were tortured by agents of the State after they had been captured inside the military base at La Tablada. The Commission also notes that the twenty persons accused in the Abella case, including those arrested outside the military base and later convicted as accomplices, were detained in the same places and were under the control of the same authorities. The petition alleges that they were all tortured --a charge which was not rebutted by the State in any of is communications to the Commission.
232. Accordingly, the Commission finds that the twenty persons convicted in the Abella case in connection with the attack on the barracks at La Tablada, including their accomplices, were subjected to torture by agents of the Argentine State, in violation of Article 5(2) of the American Convention, which provides:
No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
233. The concept of torture has been complemented and broadened by the Inter-American Convention to Prevent and Punish Torture, which provides in its Article 2:
... torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.43
iv. Investigation
234. The Argentine State had the obligation to investigate exhaustively the serious allegations of violations of human rights protected by the American Convention, and by the Constitution and laws of Argentina, made by the defense attorneys of the accused in the Abella case.
235. At the outset of this part of the report, the Commission established that once those persons who participated in the attack on the La Tablada base surrendered to or were captured by State agents, they came within the power and custody of those agents. The State had a duty under the American Convention to treat these persons humanely and to protect them from harm. The attackers' alleged accomplices were similarly entitled to the same guarantees when they were detained by and remained in the custody of State agents. When petitioners allege and adduce evidence supporting violations of the rights of these persons in breach of that duty, the State has the burden of refuting those allegations with credible evidence.
236. It is the Commission's view that the Argentine State has manifestly failed to discharge its burden in this regard. In effect, the information it provided to the Commission in this respect was limited to stating that the defendants did not appeal the decisions to dismiss the cases opened to investigate these allegations, and consequently they became final. The Commission notes that the jurisprudence of the inter-American human rights system holds precisely to the contrary, i.e., that the obligation to investigate is a legal duty of the State and not as a step taken by private interests.44
237. The Commission observes that, in any event, the information required could not be supplied, as all the items of written evidence in the file point to the fact that no serious and complete investigation was undertaken in Argentina on the allegations mentioned. In effect, there is sufficient evidence to indicate that there was general negligence in the handling of the issue by the State's representatives.
238. The Commission considers one of the most noteworthy shortcomings in the investigation into the events at La Tablada to be the autopsies and the handling of the corpses of the attackers in the hours and days following the recapture of the barracks. Amnesty International had access to several autopsies of the persons killed at La Tablada (two soldiers, one police officer, and six attackers from the MTP), which were analyzed by forensic experts.45 The conclusions of one of the experts indicate that there was no description of the investigations where the events unfolded, nor were photographs of the corpses attached. In general, the autopsies of the attackers that were studied do not offer information as to the precise nature of the injuries. The autopsies also lack information indicating whether other injuries, fractures, and burns preceded or followed death, which would make it possible to determine their gravity. In general, the autopsies on the corpses of the attackers are notably shorter than those of the members of the military who were also killed in connection with the same events.
239. In addition, the videotape provided by the petitioners focuses on the issue of the corpses abandoned at the place of the events; one such corpse was covered by insects several days after the attack. The petitioners believe that this is part of a deliberate tactic aimed at ensuring that the autopsies were incomplete and deficient.
240. Another expert consulted by Amnesty International indicated that a close study of the autopsies reveals that they were superficial and inadequate. The autopsy reports make reference to the putrefaction of the corpses to justify the omission of certain items of evidence and descriptions, which technically is not acceptable. The expert concludes that putrefaction does not preclude toxicology tests, which can be performed weeks and years after death. The external examinations are limited to a description of the injuries caused by projectiles or burns, but there is no reference to other injuries, contusions, or hematomas, that could have occurred during the combat or after the surrender.
241. The conclusions of the second expert also indicate that the dental reports that were performed are not compared to dental records prior to death, and so are of little use. In several cases, the reports given by the forensic pathologists and radiologists are inconsistent. For example, the radiology report indicates that "there are no signs of projectiles and/or damage to bones" in the full-body X-rays, and in that case the forensic pathologists determined that there were multiple fractures along with bullet wounds.
242. Some of the bodies of the soldiers and attackers were carbonized, making it difficult to identify the corpses. In view of these difficulties, an international commission of forensic pathologists offered the Argentine State the services of experts to conduct the autopsies; this offer was rejected by the Office of the Attorney General.
243. In view of all the evidence brought forth by the defense attorneys in Argentina, the testimony of the persons put on trial and of members of the military, as well as other available evidence, the Commission believes that the State failed in its obligation to carry out an exhaustive, impartial, and conclusive investigation into the serious allegations of violations of the human rights protected by the American Convention. Consequently, the State has not yet clarified what took place after the attackers surrendered at RIM 3 in La Tablada, nor have the persons responsible for the violations alleged been identified or punished. The State has failed in its duty to provide the victims with a simple and effective remedy that would protect them against such violations, as set forth in Article 25(1) of the American Convention.
v. Common Conclusions
244. Under Article 1(1) of the American Convention, the Argentine State undertook "to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms...." With respect to this provision, the Inter-American Court of Human Rights has determined as follows:
The first obligation assumed by the States Parties under Article 1(1) is "to respect the rights and freedoms" recognized by the Convention. The exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are, therefore, superior to the power of the State....46
The second obligation of the States Parties is to "ensure" the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention....
245. Based on the arguments and evidence analyzed, the Commission concludes that the Argentine State is responsible for the violation of the right to life set forth in Article 4, in relation to Article 1(1) of the American Convention, with respect to Carlos Alberto Burgos, Roberto Sánchez, Iván Ruiz, José Alejandro Díaz, Carlos Samojedny, Francisco Provenzano, Berta Calvo, Pablo Martín Ramos, and Ricardo Veiga.
246. The Commission also concludes that the Argentine State is responsible for the violation of the right to physical integrity protected by Article 5, in relation to Article 1(1) of the American Convention, to the detriment of Claudia Beatriz Acosta, Miguel Angel Aguirre, Luis Alberto Díaz, Roberto Felicetti, Isabel Margarita Fernández de Mesutti, Gustavo Alberto Mesutti, José Alejandro Moreyra, Carlos Ernesto Motto, Sergio Manuel Paz, Luis Darío Ramos, Sebastián Joaquín Ramos, Claudio Néstor Rodríguez, and Claudio Omar Veiga, Juan Antonio Puigjané, Dora Esther Molina de Felicetti, Miguel Angel Faldutti, Daniel Alberto Gabioud Almirón, Juan Manuel Burgos, Cintia Alejandra Castro, and Juan Carlos Abella.
247. Finally, the Commission concludes that the Argentine State has violated the right to judicial protection guaranteed by Article 25(1), in relation to Article 1(1) of the American Convention, with respect to the persons identified in the two previous paragraphs.
C. THE TRIAL
248. In this case, the petitioners have alleged several violations of the right to due process, invoking Articles 8 and 25 of the American Convention. The complaints have been summarized at the outset of this report, and refer to the totality of the Abella case, from the beginning of the investigation, primarily in respect of the following aspects: the legal classification of the facts, the competent judge, the petitioners' characterization of the trial as "political and repressive", the taking of the evidence, the lack of any investigation into the complaints of human rights violations made by the accused due to the ineffectiveness of what are called "parallel proceedings", the right to be presumed innocent, the right to defense, and the right to appeal to a higher court.
249. The Commission considers that the complaints with respect to the alleged violations of the American Convention's due process provisions (Articles 8 and 25) are closely related to the alleged violation of the right to appeal the ruling to a higher judge or court. In effect, had petitioners been able as a matter of right to appeal their convictions to a higher court, that court could have been able to establish the existence of the due process violations alleged by petitioners and ordered appropriate relief. Accordingly, the Commission will limit its examination of petitioners' due process claims to a specific issue that affected all the defendants in the Abella case: whether they were afforded the right to appeal their convictions to a higher court as required by Article 8(2)(h) of the American Convention.
The right to appeal the judgment to a higher court (Article 8(2)(h))
250. Article 8 of the American Convention establishes the requirements that should be observed during the various procedural stages to be able to speak of authentic and appropriate judicial guarantees. According to the jurisprudence of the Inter-American Court, Article 8 47
...recognizes the concept of "due process of law", which includes the prerequisites necessary to ensure the adequate protection of those persons whose rights or obligations are pending judicial determination.48
251. The inter-American system, like the European system, has a provision that develops the procedural guarantees for the accused because of the conviction of States that the effective protection of human rights requires procedural guarantees, in addition to the observance of substantive rights. 49
252. One essential aspect of due process is the right to have a higher court examine or re-examine the legality of all judicial decisions that result in an irreparable harm or when that harm affects fundamental rights and liberties, such as personal liberty.50 Due process of law would lack efficacy without the right of defense in a trial and the opportunity to defend oneself against an adverse decision.
253. Article 8(2)(h) of the American Convention provides that:
Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: ... (h) the right to appeal the judgment to a higher court.
254. The Commission will proceed to examine whether remedies under Argentine law available to the defendants in the Abella case effectively permitted them to seek review of their convictions by a higher court. In so doing, the Commission must focus on and ultimately define the scope and content of this right enshrined in Article 8(2)(h) of the American Convention. In this regard, the Commission had the opportunity to consider the same issue in Case 11.086, with respect to Guillermo Maqueda, who was convicted and given a 10-year prison sentence for his alleged involvement in the attack on the RIM 3 barracks at La Tablada. Because the issue concerning the alleged violation of Article 8(2)(h) in this case is virtually identical to that in the Maqueda case, the Commission in its analysis of this issue will draw heavily from its decision in Maqueda.
255. Guillermo Maqueda was a member of the MTP, and was in the immediate area around the La Tablada barracks on January 23, 1989. He was arrested four months after the attack, tried under Law 23.077, and convicted on June 11, 1990. Maqueda filed a special appeal ("recurso extraordinario"), which was denied by the Federal Court of Appeals of San Martín on October 25, 1990. Consequently, he filed an appeal directly before the Supreme Court ("recurso de queja"), which dismissed it on March 17, 1992.
256. In the processing of Case 11.086, the Commission adopted report 17/94 at its Session 1222 on February 9, 1994. In that report, the Commission determined that the Argentine State had violated, among other rights, the right to appeal to a higher court, set forth at Article 8(2)(h), together with the judicial guarantees provided for in Article 25. The Commission submitted the case to the Inter-American Court of Human Rights once the period set in the report had elapsed without the recommendations having been carried out. Finally, the case was settled under the friendly settlement procedure: Mr. Maqueda had his sentence commuted by the State of Argentina, and was thereby released from prison. The Commission filed to voluntarily dismiss the case before the Inter-American Court; that motion was granted by resolution of January 17, 1995.
257. In must be noted that the Argentine Constitution in force during the Abella case did not provide for access to either split-level or multiple-level courts (i.e. some sort of review), nor did it determine the jurisdiction of the federal courts. Therefore, in principle, the cases in the federal courts could be governed by Congressional statute with or without review. The result of this situation was that the constitutional guarantee of due process and the right of defense at trial did not require the right of review.51 While the right of review was not, in and of itself, a constitutional requirement at the time of the Abella trial, it should be noted that the American Convention, when approved by Law 23.054 and ratified by the Argentine State on September 5, 1984, became the supreme law of the nation, pursuant to Article 31 of the Constitution then in force.52
258. In the instant case, the petitioners had only one opportunity to be heard and to present their case. They were tried under the procedural provisions of Law 23.077, which creates a special criminal procedure that does not include an appeal or a broad remedy before any appellate court. Nonetheless, it does allow for the special appeal (recurso extraordinario) provided for in Article 14 of Law 48.
259. The Commission now sets forth its views concerning the purpose and characteristics of the right enshrined in Article 8(2)(h). The American Convention, in contrast to the European Convention on Human Rights and the Universal Declaration of Human Rights, provides ample protection of the right to appeal.53 The Commission views this remedy as a means of benefitting the accused, so as to protect his rights by providing a new opportunity to exercise his defense. The remedy against the definitive judgment is aimed at offering the opportunity to one who has been affected by an unfavorable decision to seek to overturn the judgment and have the matter reviewed. The purpose of the review is to ensure the decision is a rational outcome of a fair trial, pursuant to the law and guarantees, and of the proper application of the criminal law.
260. The State tried to justify the nature of Law 23.077 by citing the basic principles of the draft legislation that was submitted to the Congress, and by referring to the improvements in the justice system. Notwithstanding the broader guarantees provided by the oral hearing procedure, insofar as it constitutes an opportunity for the issues to be debated and confronted, the right of the accused to appeal to a second instance in the criminal procedure strengthens the protection against judicial error.
261. The Commission observes that Article 8(2)(h) refers to the minimum characteristics of a remedy that serves as a check to ensure a proper ruling in both substantive and formal terms. From the formal standpoint the right to appeal the judgment to a higher court to which the American Convention refers should, in the first place, apply to every first instance judgment with the purpose of examining the unlawful application, the lack of application, or the erroneous interpretation of rules of law based on the operative part of the judgment. The Commission also considers that to guarantee the full right of defense, this remedy should include a material review of the interpretation of procedural rules that may have influenced the decision in the case when there has been an incurable nullity or where the right to defense was rendered ineffective, and also with respect to the interpretation of the rules on the weighing of evidence, whenever they have led to an erroneous application or non-application of those rules.
262. Based on the foregoing, the right provided for in Article 8(2)(h) requires the availability of a remedy that would at least allow for review by a higher court of questions of law and of all the major procedural rulings. Such review is especially relevant with respect to those rulings that may result in defenselessness or cause irreparable damage in the final judgment, including the legality of the evidence. The remedy should also allow the higher court a relatively simple means to examine the validity of the judgment appealed in general, as well as to monitor the respect for fundamental rights of the accused, especially the right of defense and the right to due process.
263. Accordingly, the Commission must examine the nature of the special appeal provided for in Law 48, the only one available under Law 23.077, in order to determine whether that appeal constitutes an effective tool for putting in practice the right recognized by article 8(2)(h) of the American Convention.
264. In the Argentine legal order, the special appeal is exceptional, and is limited to the federal jurisdiction. As such, it is not a procedural level that is added on to every trial, but rather it operates as a new but reduced and partial procedural level that is limited to federal subject matter in the case of arbitrary judgments. In the final instance, the special appeal exists to ensure constitutional supremacy.
265. In general, the Supreme Court of Justice of Argentina interprets the application of the special appeal as of restricted scope. In its denial of the complaint appeal filed by the defendants in the Abella case, the Supreme Court held:
(5) That, under doctrine of this Court, to meet the requirement of autonomous grounds required by Article 15 of Law 48, the special appeal must contain a clear and precise Statement of the facts in the case that make it possible to link to them the issues which, such as those federal in nature, are to be submitted to the Court....
(7) That the requirement of sufficient foundation is aimed at examining the concrete federal harms that may justify the intervention of the Court to review a judgment that has put an end to the process, and that can only be reviewed in the specific cases stated in the law....54
266. The special appeal in the Abella case was founded on the alleged nullity of the proceedings due to the irregularities of the proceedings, the interpretation of Article 21 of the Constitution, the legal analysis of the facts, and finally, the weighing of the evidence, which the defense considered arbitrary. In this regard, it should be mentioned that in its judgment in the Maqueda case, handed down the same day as the previous case, the Supreme Court explained:
As to the rest, the matters relating to the weighing of the evidence and the existence of mens rea in Maqueda's conduct, are questions of fact, civil code law, and procedural law which have been resolved by the court below with sufficient reasoning such that it is not up to the Court to analyze these discrepancies, given the limited nature of the appeal.55
267. In the Argentine legal system the arbitrariness of a judgment is considered a federal question, and thus susceptible to review only by special appeal. It should be noted, as has already been said, that this remedy is interpreted narrowly, and consequently the arbitrariness of a judgment will not be considered solely on the ground the judgment is in error, or because its grounds may be called into question.56
268. The Federal Court of Appeals explained as follows in its denial of the special appeal brought by Mr. Maqueda:
... the doctrine of arbitrariness is exceptional in nature, and imposes a particularly narrow criterion for analyzing its origin. Were it otherwise it would mean creating a third regular procedural level in cases in which the parties find the trial judge's decision in error or not well-founded, which is foreign to the nature of the remedy, or in situations involving the selection and interpretation of the evidence and the application of the law that would have been appealed, ... consequently this rule only applies in those situations where the decision, lacking grounds, merits disqualification as a judicial act.57
269. Based on the foregoing, it is clear that the special appeal does not have the purpose of remedying decisions supposedly in error, but only extremely serious omissions or blunders. Bearing in mind that the jurisprudence of the Supreme Court holds that the special appeal does not encompass a review of the procedure, and that the doctrine of arbitrariness imposes a particularly narrow criterion for analyzing its applicability, in practice the special remedy does not allow for legal review by a higher court of the decision or of all important procedural rulings, including the sufficiency and legality of the evidence, nor does it allow for examining the validity of the judgment appealed in a relatively simple fashion. It is a remedy of limited scope, available only on an exceptional basis, whose application is narrow, and therefore it does not satisfy the guarantee whereby the accused may challenge the judgment.
270. The April 7, 1995 judgment of the Supreme Court of Argentina in the case of Horacio David Giroldi (No. 32/93) --decided after it had rejected the special appeal in the Abella case-- is particularly relevant to issue under examination. At that trial, Mr. Giroldi had been convicted by a Criminal Court ("Tribunal Oral en lo Criminal") and given a one-month prison sentence, which was suspended, for the crime of attempted simple robbery. The defense brought a writ of cassation ("recurso de casación"), arguing that the decision violated the right of defense at trial, and that the procedural limitation on the exercise of the remedy, in view of the amount of the penalty, was unconstitutional. The National Chamber of Criminal Cassation ("Cámara Nacional de Casación Penal") rejected the argument of unconstitutionality and denied the motion for cassation. The defense brought a special appeal against that decision, the denial of which led to a complaint appeal before the Supreme Court of Justice of Argentina. The Supreme Court ruled favorably on the complaint appeal, and rendered without effect the judgment appealed, citing as the basis for its decision the guarantee at Article 8(2)(h) of the American Convention.
271. In the judgment in the Giroldi case, the Supreme Court stated:
8. ... in such conditions it can be argued today, with a new basis, that in situations such as procedural rulings, the special appeal is not an effective remedy for safeguarding the guarantee of the right to appeal that should be observed in the framework of criminal procedure as a "minimum guarantee" for "all persons accused of a crime" ....
12. ... it is up to this Court, as the supreme organ of one of the branches of the federal government--within the scope of its jurisdiction--to apply the international treaties to which the country is bound ... for otherwise the Nation would be liable before the international community.
272. In the particular circumstances of this case, the special appeal was not an effective instrument to guarantee the right to appeal a judgment before a higher court to challenge the decision of the Federal Court of Appeals of San Martín.
273. Based on its analysis, the Commission considers that the special appeal, the only remedy available against judgments issued pursuant to the procedure established in Law 23.077, does not satisfy the requirements set forth in Article 8(2)(h) of the American Convention. Consequently, the application of the special criminal procedure provided for by Law 23.077, in this case, was a violation of the petitioners' right to appeal the judgment to a higher court as required by the Convention. The effect of that circumstance was that the petitioners tried in the Abella case did not have access to an effective remedy that protected them from acts violative of their fundamental rights; accordingly, the Commission concludes that the Argentine State is also responsible for violating Article 25(1) of the American Convention with respect to those persons.
iii. Treatment of Survivors and Accomplices
221. The petitioners also allege that agents of the Argentine State committed several violations of the right to personal integrity to the detriment of the attackers who surrendered January 24, 1989 at 9:00 a.m., and of the five accomplices arrested the previous day and those who gave up voluntarily in the following days.
Survivors
222. The complaint states that once under the control of the members of the security forces, the survivors were stripped, hooded, and subjected to an ideological interrogation accompanied by physical and psychological torture. It also states that on Wednesday, January 25, at dawn they received medical care, but that the torture continued, even in the prison ward of the hospital.
223. The complaint further alleges that the violations of the physical integrity of the accused continued each time they were transferred to the court building during the trial. On those occasions, they were allegedly hooded and subjected to beatings the while in transit. The complaint refers specifically to the cases of Sebastián Joaquín Ramos, Claudio Néstor Rodríguez, Claudio Omar Veiga, Luis Alberto Díaz, and Carlos Motto, who were taken before the judge after having been brutally beaten; they allege that such treatment continued in the judge's presence, until he ordered the persons responsible to stop.
224. The information gathered by Amnesty International on this aspect of the complaint is especially revealing: a comparison of the medical reports for the detainees on January 24 and 28, 1989, shows that the number of injuries had dramatically increased during this period, when they had been deprived of their liberty and were under the exclusive control of agents of the Argentine State.42 The following table reflects the comparisons from that report, and is convincing evidence of the violations of personal integrity of the five petitioners mentioned.
Number of injuries
Name January 24 January 28 Luis Alberto Díaz 8 25 Claudio Néstor Rodríguez 3 23 Carlos Ernesto Motto 7 29 Claudio Omar Veiga 10 32 Sebastián Joaquín Ramos 3 45
225. Sebastián Joaquín Ramos told the judge how a hood was placed over his head, and how he was beaten and kicked, including where he had bullet wounds, until the moment the judge appeared; the judge ordered the guards to remove the handcuffs and hood. The medical report for January 28, 1989, indicates that Sebastián Ramos had multiple wounds all over his body, as well as injuries and abrasions that indicated that he had been dragged along the ground. For reasons of competence, the complaint regarding these events was processed before another court. The judge assigned the case decided to dismiss it on the grounds that there was insufficient evidence to press charges against individuals responsible for the alleged ill-treatment, nor even to determine that the events had occurred while Sebastián Ramos was in the hands of the police or prison authorities. The judgment of dismissal issued October 25, 1989, cites police officials who declared at trial that they had seen the five detainees "hooded and handcuffed." The judge concluded:
... (a) It has been clearly determined that the detainees, now complainants, were subjected to insults, harsh treatment, and/or lesions.... This has been shown through their statements and the report of the medical examiners, cited above, which tell of new harms to the prisoners' health, in relation to the study performed days earlier.
226. Continuing, the same judge stated:
I cannot find that illegal pressure tactics were used (Art. 144 bis of the Criminal Code), as a showing that they were used requires a special purpose, generally, to obtain a confession, a statement incriminating someone else, the withdrawal of an allegation, or some information of interest for clearing up a fact....
... (b) Nor can I find torture or application of torment, as these require procedures that cause intense physical or emotional pain, which distinguishes them from simple harsh treatment or insults, since a finding of torture requires "sufficient gravity."
(c) It also appears from the record that it has not been possible to determine the individual or individuals perpetrating such suffering, nor those who ordered those characteristics of the detention.
Accomplices
Abella, Burgos, Molina, Faldutti, and Gabioud
227. The complaint alleges that the five persons arrested at 7:00 p.m. on January 23, 1989 were also insulted, beaten, and threatened at the police station where they were held. It is further alleged that they were then injected with a substance that made them lose all notion of time, after which the torture and an ideological interrogation continued. These events were alleged to have recurred several times, together with the refusal by State agents to provide food to Abella and Gabioud until January 27, 1989.
Puigjané and Castro
228. Capuchin priest Juan Antonio Puigjané came before the court on January 30, 1989, and was detained and held incommunicado. The complaint indicates that he was subjected to an ideological interrogation amidst insults, accusations, and threats. It is further alleged that he was then left without water or food for 30 hours, until the investigative judge took his statement. When the accused denounced the above noted violations, the judge allegedly justified the police actions. The complaint also indicates that Cintia Alejandra Castro, the other member of the MTP who came voluntarily before the court, was subjected to the same human rights violations as Puigjané and the others.
229. In the Abella case, the defense attorneys filed several allegations and criminal complaints based on these facts, which affected the twenty persons indicted in the case. The petitioners point out that the complaints were the subject of separate trials which they call "parallel proceedings". The only reference the State makes to these violations alleged before the Commission is to indicate that the respective cases were dismissed, and that the decision to dismiss them was not appealed by the defense attorneys. The Commission expressly notes that this circumstance did not release the State of its obligation under the American Convention to investigate the grave acts alleged. It should be noted in this connection that under Argentine law, these offenses are public criminal actions, and therefore may be prosecuted by the Public Ministry on its own initiative.
230. The Commission reiterates what it previously stated in this report with respect to the burden of proof, which in this case too was clearly borne by the State, as these persons were under the control and exclusive custody of State agents. The Commission takes into consideration the failure of the State to respond to all the serious allegations of torture, as well as an apparent lack of will on the part of the State to conduct an exhaustive investigation to identify the perpetrators, even though the judicial organs in the so-called "parallel proceedings" verified that the defendants had been seriously mistreated. In effect, the judgment of October 25, 1989, determined that the five detainees named suffered "insults, harsh treatment, or lesions" when under the control of the State, but the judge, invoking domestic law, ruled that there were no illegal pressure tactics or torture, and consequently decided to dismiss the case.
231. In view of the foregoing, the Commission considers fully proven that Luis Alberto Díaz, Claudio Néstor Rodríguez, Claudio Omar Veiga and Sebastián Joaquín Ramos were tortured by agents of the State after they had been captured inside the military base at La Tablada. The Commission also notes that the twenty persons accused in the Abella case, including those arrested outside the military base and later convicted as accomplices, were detained in the same places and were under the control of the same authorities. The petition alleges that they were all tortured --a charge which was not rebutted by the State in any of is communications to the Commission.
232. Accordingly, the Commission finds that the twenty persons convicted in the Abella case in connection with the attack on the barracks at La Tablada, including their accomplices, were subjected to torture by agents of the Argentine State, in violation of Article 5(2) of the American Convention, which provides:
No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
233. The concept of torture has been complemented and broadened by the Inter-American Convention to Prevent and Punish Torture, which provides in its Article 2:
... torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.43
iv. Investigation
234. The Argentine State had the obligation to investigate exhaustively the serious allegations of violations of human rights protected by the American Convention, and by the Constitution and laws of Argentina, made by the defense attorneys of the accused in the Abella case.
235. At the outset of this part of the report, the Commission established that once those persons who participated in the attack on the La Tablada base surrendered to or were captured by State agents, they came within the power and custody of those agents. The State had a duty under the American Convention to treat these persons humanely and to protect them from harm. The attackers' alleged accomplices were similarly entitled to the same guarantees when they were detained by and remained in the custody of State agents. When petitioners allege and adduce evidence supporting violations of the rights of these persons in breach of that duty, the State has the burden of refuting those allegations with credible evidence.
236. It is the Commission's view that the Argentine State has manifestly failed to discharge its burden in this regard. In effect, the information it provided to the Commission in this respect was limited to stating that the defendants did not appeal the decisions to dismiss the cases opened to investigate these allegations, and consequently they became final. The Commission notes that the jurisprudence of the inter-American human rights system holds precisely to the contrary, i.e., that the obligation to investigate is a legal duty of the State and not as a step taken by private interests.44
237. The Commission observes that, in any event, the information required could not be supplied, as all the items of written evidence in the file point to the fact that no serious and complete investigation was undertaken in Argentina on the allegations mentioned. In effect, there is sufficient evidence to indicate that there was general negligence in the handling of the issue by the State's representatives.
238. The Commission considers one of the most noteworthy shortcomings in the investigation into the events at La Tablada to be the autopsies and the handling of the corpses of the attackers in the hours and days following the recapture of the barracks. Amnesty International had access to several autopsies of the persons killed at La Tablada (two soldiers, one police officer, and six attackers from the MTP), which were analyzed by forensic experts.45 The conclusions of one of the experts indicate that there was no description of the investigations where the events unfolded, nor were photographs of the corpses attached. In general, the autopsies of the attackers that were studied do not offer information as to the precise nature of the injuries. The autopsies also lack information indicating whether other injuries, fractures, and burns preceded or followed death, which would make it possible to determine their gravity. In general, the autopsies on the corpses of the attackers are notably shorter than those of the members of the military who were also killed in connection with the same events.
239. In addition, the videotape provided by the petitioners focuses on the issue of the corpses abandoned at the place of the events; one such corpse was covered by insects several days after the attack. The petitioners believe that this is part of a deliberate tactic aimed at ensuring that the autopsies were incomplete and deficient.
240. Another expert consulted by Amnesty International indicated that a close study of the autopsies reveals that they were superficial and inadequate. The autopsy reports make reference to the putrefaction of the corpses to justify the omission of certain items of evidence and descriptions, which technically is not acceptable. The expert concludes that putrefaction does not preclude toxicology tests, which can be performed weeks and years after death. The external examinations are limited to a description of the injuries caused by projectiles or burns, but there is no reference to other injuries, contusions, or hematomas, that could have occurred during the combat or after the surrender.
241. The conclusions of the second expert also indicate that the dental reports that were performed are not compared to dental records prior to death, and so are of little use. In several cases, the reports given by the forensic pathologists and radiologists are inconsistent. For example, the radiology report indicates that "there are no signs of projectiles and/or damage to bones" in the full-body X-rays, and in that case the forensic pathologists determined that there were multiple fractures along with bullet wounds.
242. Some of the bodies of the soldiers and attackers were carbonized, making it difficult to identify the corpses. In view of these difficulties, an international commission of forensic pathologists offered the Argentine State the services of experts to conduct the autopsies; this offer was rejected by the Office of the Attorney General.
243. In view of all the evidence brought forth by the defense attorneys in Argentina, the testimony of the persons put on trial and of members of the military, as well as other available evidence, the Commission believes that the State failed in its obligation to carry out an exhaustive, impartial, and conclusive investigation into the serious allegations of violations of the human rights protected by the American Convention. Consequently, the State has not yet clarified what took place after the attackers surrendered at RIM 3 in La Tablada, nor have the persons responsible for the violations alleged been identified or punished. The State has failed in its duty to provide the victims with a simple and effective remedy that would protect them against such violations, as set forth in Article 25(1) of the American Convention.
v. Common Conclusions
244. Under Article 1(1) of the American Convention, the Argentine State undertook "to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms...." With respect to this provision, the Inter-American Court of Human Rights has determined as follows:
The first obligation assumed by the States Parties under Article 1(1) is "to respect the rights and freedoms" recognized by the Convention. The exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are, therefore, superior to the power of the State....46
The second obligation of the States Parties is to "ensure" the free and full exercise of the rights recognized by the Convention to every person subject to its jurisdiction. This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention....
245. Based on the arguments and evidence analyzed, the Commission concludes that the Argentine State is responsible for the violation of the right to life set forth in Article 4, in relation to Article 1(1) of the American Convention, with respect to Carlos Alberto Burgos, Roberto Sánchez, Iván Ruiz, José Alejandro Díaz, Carlos Samojedny, Francisco Provenzano, Berta Calvo, Pablo Martín Ramos, and Ricardo Veiga.
246. The Commission also concludes that the Argentine State is responsible for the violation of the right to physical integrity protected by Article 5, in relation to Article 1(1) of the American Convention, to the detriment of Claudia Beatriz Acosta, Miguel Angel Aguirre, Luis Alberto Díaz, Roberto Felicetti, Isabel Margarita Fernández de Mesutti, Gustavo Alberto Mesutti, José Alejandro Moreyra, Carlos Ernesto Motto, Sergio Manuel Paz, Luis Darío Ramos, Sebastián Joaquín Ramos, Claudio Néstor Rodríguez, and Claudio Omar Veiga, Juan Antonio Puigjané, Dora Esther Molina de Felicetti, Miguel Angel Faldutti, Daniel Alberto Gabioud Almirón, Juan Manuel Burgos, Cintia Alejandra Castro, and Juan Carlos Abella.
247. Finally, the Commission concludes that the Argentine State has violated the right to judicial protection guaranteed by Article 25(1), in relation to Article 1(1) of the American Convention, with respect to the persons identified in the two previous paragraphs.
C. THE TRIAL
248. In this case, the petitioners have alleged several violations of the right to due process, invoking Articles 8 and 25 of the American Convention. The complaints have been summarized at the outset of this report, and refer to the totality of the Abella case, from the beginning of the investigation, primarily in respect of the following aspects: the legal classification of the facts, the competent judge, the petitioners' characterization of the trial as "political and repressive", the taking of the evidence, the lack of any investigation into the complaints of human rights violations made by the accused due to the ineffectiveness of what are called "parallel proceedings", the right to be presumed innocent, the right to defense, and the right to appeal to a higher court.
249. The Commission considers that the complaints with respect to the alleged violations of the American Convention's due process provisions (Articles 8 and 25) are closely related to the alleged violation of the right to appeal the ruling to a higher judge or court. In effect, had petitioners been able as a matter of right to appeal their convictions to a higher court, that court could have been able to establish the existence of the due process violations alleged by petitioners and ordered appropriate relief. Accordingly, the Commission will limit its examination of petitioners' due process claims to a specific issue that affected all the defendants in the Abella case: whether they were afforded the right to appeal their convictions to a higher court as required by Article 8(2)(h) of the American Convention.
The right to appeal the judgment to a higher court (Article 8(2)(h))
250. Article 8 of the American Convention establishes the requirements that should be observed during the various procedural stages to be able to speak of authentic and appropriate judicial guarantees. According to the jurisprudence of the Inter-American Court, Article 8 47
...recognizes the concept of "due process of law", which includes the prerequisites necessary to ensure the adequate protection of those persons whose rights or obligations are pending judicial determination.48
251. The inter-American system, like the European system, has a provision that develops the procedural guarantees for the accused because of the conviction of States that the effective protection of human rights requires procedural guarantees, in addition to the observance of substantive rights. 49
252. One essential aspect of due process is the right to have a higher court examine or re-examine the legality of all judicial decisions that result in an irreparable harm or when that harm affects fundamental rights and liberties, such as personal liberty.50 Due process of law would lack efficacy without the right of defense in a trial and the opportunity to defend oneself against an adverse decision.
253. Article 8(2)(h) of the American Convention provides that:
Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: ... (h) the right to appeal the judgment to a higher court.
254. The Commission will proceed to examine whether remedies under Argentine law available to the defendants in the Abella case effectively permitted them to seek review of their convictions by a higher court. In so doing, the Commission must focus on and ultimately define the scope and content of this right enshrined in Article 8(2)(h) of the American Convention. In this regard, the Commission had the opportunity to consider the same issue in Case 11.086, with respect to Guillermo Maqueda, who was convicted and given a 10-year prison sentence for his alleged involvement in the attack on the RIM 3 barracks at La Tablada. Because the issue concerning the alleged violation of Article 8(2)(h) in this case is virtually identical to that in the Maqueda case, the Commission in its analysis of this issue will draw heavily from its decision in Maqueda.
255. Guillermo Maqueda was a member of the MTP, and was in the immediate area around the La Tablada barracks on January 23, 1989. He was arrested four months after the attack, tried under Law 23.077, and convicted on June 11, 1990. Maqueda filed a special appeal ("recurso extraordinario"), which was denied by the Federal Court of Appeals of San Martín on October 25, 1990. Consequently, he filed an appeal directly before the Supreme Court ("recurso de queja"), which dismissed it on March 17, 1992.
256. In the processing of Case 11.086, the Commission adopted report 17/94 at its Session 1222 on February 9, 1994. In that report, the Commission determined that the Argentine State had violated, among other rights, the right to appeal to a higher court, set forth at Article 8(2)(h), together with the judicial guarantees provided for in Article 25. The Commission submitted the case to the Inter-American Court of Human Rights once the period set in the report had elapsed without the recommendations having been carried out. Finally, the case was settled under the friendly settlement procedure: Mr. Maqueda had his sentence commuted by the State of Argentina, and was thereby released from prison. The Commission filed to voluntarily dismiss the case before the Inter-American Court; that motion was granted by resolution of January 17, 1995.
257. In must be noted that the Argentine Constitution in force during the Abella case did not provide for access to either split-level or multiple-level courts (i.e. some sort of review), nor did it determine the jurisdiction of the federal courts. Therefore, in principle, the cases in the federal courts could be governed by Congressional statute with or without review. The result of this situation was that the constitutional guarantee of due process and the right of defense at trial did not require the right of review.51 While the right of review was not, in and of itself, a constitutional requirement at the time of the Abella trial, it should be noted that the American Convention, when approved by Law 23.054 and ratified by the Argentine State on September 5, 1984, became the supreme law of the nation, pursuant to Article 31 of the Constitution then in force.52
258. In the instant case, the petitioners had only one opportunity to be heard and to present their case. They were tried under the procedural provisions of Law 23.077, which creates a special criminal procedure that does not include an appeal or a broad remedy before any appellate court. Nonetheless, it does allow for the special appeal (recurso extraordinario) provided for in Article 14 of Law 48.
259. The Commission now sets forth its views concerning the purpose and characteristics of the right enshrined in Article 8(2)(h). The American Convention, in contrast to the European Convention on Human Rights and the Universal Declaration of Human Rights, provides ample protection of the right to appeal.53 The Commission views this remedy as a means of benefitting the accused, so as to protect his rights by providing a new opportunity to exercise his defense. The remedy against the definitive judgment is aimed at offering the opportunity to one who has been affected by an unfavorable decision to seek to overturn the judgment and have the matter reviewed. The purpose of the review is to ensure the decision is a rational outcome of a fair trial, pursuant to the law and guarantees, and of the proper application of the criminal law.
260. The State tried to justify the nature of Law 23.077 by citing the basic principles of the draft legislation that was submitted to the Congress, and by referring to the improvements in the justice system. Notwithstanding the broader guarantees provided by the oral hearing procedure, insofar as it constitutes an opportunity for the issues to be debated and confronted, the right of the accused to appeal to a second instance in the criminal procedure strengthens the protection against judicial error.
261. The Commission observes that Article 8(2)(h) refers to the minimum characteristics of a remedy that serves as a check to ensure a proper ruling in both substantive and formal terms. From the formal standpoint the right to appeal the judgment to a higher court to which the American Convention refers should, in the first place, apply to every first instance judgment with the purpose of examining the unlawful application, the lack of application, or the erroneous interpretation of rules of law based on the operative part of the judgment. The Commission also considers that to guarantee the full right of defense, this remedy should include a material review of the interpretation of procedural rules that may have influenced the decision in the case when there has been an incurable nullity or where the right to defense was rendered ineffective, and also with respect to the interpretation of the rules on the weighing of evidence, whenever they have led to an erroneous application or non-application of those rules.
262. Based on the foregoing, the right provided for in Article 8(2)(h) requires the availability of a remedy that would at least allow for review by a higher court of questions of law and of all the major procedural rulings. Such review is especially relevant with respect to those rulings that may result in defenselessness or cause irreparable damage in the final judgment, including the legality of the evidence. The remedy should also allow the higher court a relatively simple means to examine the validity of the judgment appealed in general, as well as to monitor the respect for fundamental rights of the accused, especially the right of defense and the right to due process.
263. Accordingly, the Commission must examine the nature of the special appeal provided for in Law 48, the only one available under Law 23.077, in order to determine whether that appeal constitutes an effective tool for putting in practice the right recognized by article 8(2)(h) of the American Convention.
264. In the Argentine legal order, the special appeal is exceptional, and is limited to the federal jurisdiction. As such, it is not a procedural level that is added on to every trial, but rather it operates as a new but reduced and partial procedural level that is limited to federal subject matter in the case of arbitrary judgments. In the final instance, the special appeal exists to ensure constitutional supremacy.
265. In general, the Supreme Court of Justice of Argentina interprets the application of the special appeal as of restricted scope. In its denial of the complaint appeal filed by the defendants in the Abella case, the Supreme Court held:
(5) That, under doctrine of this Court, to meet the requirement of autonomous grounds required by Article 15 of Law 48, the special appeal must contain a clear and precise Statement of the facts in the case that make it possible to link to them the issues which, such as those federal in nature, are to be submitted to the Court....
(7) That the requirement of sufficient foundation is aimed at examining the concrete federal harms that may justify the intervention of the Court to review a judgment that has put an end to the process, and that can only be reviewed in the specific cases stated in the law....54
266. The special appeal in the Abella case was founded on the alleged nullity of the proceedings due to the irregularities of the proceedings, the interpretation of Article 21 of the Constitution, the legal analysis of the facts, and finally, the weighing of the evidence, which the defense considered arbitrary. In this regard, it should be mentioned that in its judgment in the Maqueda case, handed down the same day as the previous case, the Supreme Court explained:
As to the rest, the matters relating to the weighing of the evidence and the existence of mens rea in Maqueda's conduct, are questions of fact, civil code law, and procedural law which have been resolved by the court below with sufficient reasoning such that it is not up to the Court to analyze these discrepancies, given the limited nature of the appeal.55
267. In the Argentine legal system the arbitrariness of a judgment is considered a federal question, and thus susceptible to review only by special appeal. It should be noted, as has already been said, that this remedy is interpreted narrowly, and consequently the arbitrariness of a judgment will not be considered solely on the ground the judgment is in error, or because its grounds may be called into question.56
268. The Federal Court of Appeals explained as follows in its denial of the special appeal brought by Mr. Maqueda:
... the doctrine of arbitrariness is exceptional in nature, and imposes a particularly narrow criterion for analyzing its origin. Were it otherwise it would mean creating a third regular procedural level in cases in which the parties find the trial judge's decision in error or not well-founded, which is foreign to the nature of the remedy, or in situations involving the selection and interpretation of the evidence and the application of the law that would have been appealed, ... consequently this rule only applies in those situations where the decision, lacking grounds, merits disqualification as a judicial act.57
269. Based on the foregoing, it is clear that the special appeal does not have the purpose of remedying decisions supposedly in error, but only extremely serious omissions or blunders. Bearing in mind that the jurisprudence of the Supreme Court holds that the special appeal does not encompass a review of the procedure, and that the doctrine of arbitrariness imposes a particularly narrow criterion for analyzing its applicability, in practice the special remedy does not allow for legal review by a higher court of the decision or of all important procedural rulings, including the sufficiency and legality of the evidence, nor does it allow for examining the validity of the judgment appealed in a relatively simple fashion. It is a remedy of limited scope, available only on an exceptional basis, whose application is narrow, and therefore it does not satisfy the guarantee whereby the accused may challenge the judgment.
270. The April 7, 1995 judgment of the Supreme Court of Argentina in the case of Horacio David Giroldi (No. 32/93) --decided after it had rejected the special appeal in the Abella case-- is particularly relevant to issue under examination. At that trial, Mr. Giroldi had been convicted by a Criminal Court ("Tribunal Oral en lo Criminal") and given a one-month prison sentence, which was suspended, for the crime of attempted simple robbery. The defense brought a writ of cassation ("recurso de casación"), arguing that the decision violated the right of defense at trial, and that the procedural limitation on the exercise of the remedy, in view of the amount of the penalty, was unconstitutional. The National Chamber of Criminal Cassation ("Cámara Nacional de Casación Penal") rejected the argument of unconstitutionality and denied the motion for cassation. The defense brought a special appeal against that decision, the denial of which led to a complaint appeal before the Supreme Court of Justice of Argentina. The Supreme Court ruled favorably on the complaint appeal, and rendered without effect the judgment appealed, citing as the basis for its decision the guarantee at Article 8(2)(h) of the American Convention.
271. In the judgment in the Giroldi case, the Supreme Court stated:
8. ... in such conditions it can be argued today, with a new basis, that in situations such as procedural rulings, the special appeal is not an effective remedy for safeguarding the guarantee of the right to appeal that should be observed in the framework of criminal procedure as a "minimum guarantee" for "all persons accused of a crime" ....
12. ... it is up to this Court, as the supreme organ of one of the branches of the federal government--within the scope of its jurisdiction--to apply the international treaties to which the country is bound ... for otherwise the Nation would be liable before the international community.
272. In the particular circumstances of this case, the special appeal was not an effective instrument to guarantee the right to appeal a judgment before a higher court to challenge the decision of the Federal Court of Appeals of San Martín.
273. Based on its analysis, the Commission considers that the special appeal, the only remedy available against judgments issued pursuant to the procedure established in Law 23.077, does not satisfy the requirements set forth in Article 8(2)(h) of the American Convention. Consequently, the application of the special criminal procedure provided for by Law 23.077, in this case, was a violation of the petitioners' right to appeal the judgment to a higher court as required by the Convention. The effect of that circumstance was that the petitioners tried in the Abella case did not have access to an effective remedy that protected them from acts violative of their fundamental rights; accordingly, the Commission concludes that the Argentine State is also responsible for violating Article 25(1) of the American Convention with respect to those persons.