The judicial case in Uruguay

 

Once the dictatorship ended, the democratic Parliament sanctioned Law No. 15,737 on March 8, 1985, amnesty for political and union persecuted people, or the National Pacification Law. Not all political detainees were included in the amnesty. In accordance with the provisions of article 1, paragraph 2, the authors and co-authors of completed intentional homicide are excluded. By articles 3 and 5, three categories of people were also excluded: a) responsible for completed international homicide; b) responsible for inhuman, cruel or degrading treatment, or for the detention of people who later disappeared, when their perpetrators, accomplices or accessories were military or police officers; c) those who have committed crimes from government positions or under the power of the State.
This Law was welcomed internationally, but its duration was very short in relation to those responsible for committing crimes against humanity.
The sanction of Law 15,737 made it possible for, on October 15, 1986, Arturo Reyes, Flora Potasnik and Marta Odizzio de Raggio, relatives of Silvia Reyes, Diana Maidanic and Laura Raggio respectively, to file a complaint before the Court of First Instance. in Criminal Matters of 8th. Shift, for the purposes of investigating the extrajudicial execution that occurred, for the arrest of the person or persons responsible for the commission as authors or accomplices of crimes against humanity and applying the corresponding sanction.
When the Judiciary began to investigate this case and the other reported cases, a campaign strongly promoted by the ruling party of the time began, which obtained the results expected by its promoters, and on December 22, 1986, the Law was sanctioned. No. 15,848 called “Expiration of the State's Punitive Claim”, which renders Articles 3 ineffective. and 5th. of Law No. 15,737 and did not allow the trials of those responsible for the commission of crimes against humanity, closing the possibility of any investigation of the facts and subsequent punishment of the authors, co-authors and accomplices, accused of having committed crimes against humanity. against humanity (torture, forced or extrajudicial executions and forced disappearance of people). When the Law was passed, unconstitutionality appeals were presented in all cases reported to the Judiciary, based on the fact that the Law violated articles 8, 72, 83 and 233 of the Constitution: a) separation of powers; b) right to due process; c) independence of the Judiciary and, d) equality before the law. On May 2, 1988, the Supreme Court of Justice issued the first Judgment for the unconstitutionality appeals presented, stating: “The exception of unconstitutionality of the articles is dismissed 1, 2, 3 and 4 of Law No. 15,848 of December 22, 1986.”
The Sentence had the favorable votes of the Ministers Rafael Addiego Bruno, Armando Tomasino and Nelson Nicoliello, and the dissenting votes of the Ministers Jacinta Balbela de Delgue and Nelson García Otero.
The Supreme Court of Justice (in the majority) concludes that “due to its general characteristics, the motivation of the Law and the extraordinary political-social circumstances that led to its sanction, it constitutes an authentic amnesty, in light of the regulatory principles.” of the institute, in accordance with the most prestigious constitutional and criminal doctrine.” The exception of unconstitutionality, filed before the 8th Criminal Court of First Instance. Turno, by Arturo Ricardo Reyes, Flora Potasnik and Marta Odizzio de Raggio, was archived because it was considered included in the provisions of the Expiration Law, by decision of the executive branch.
The Supreme Court of Justice, in Resolution No. 467/2004 of 09/20/2004, rejected an extradition request made from the Argentine Republic, of Uruguayan citizens accused as alleged perpetrators of crimes against humanity.
In summary, our highest judicial body resolved:
a) That the Judiciary is incompetent to resolve the specific request for international cooperation (in our opinion based on an erroneous interpretation of the provisions of the Extradition Treaty with the Argentine Republic – Law 17,225 of 12/21/1996 and we made it known as such to the Inter-American Commission on Human Rights).
b) That the Executive Power is empowered to resolve the denial of the extradition request, since the Expiry Law is of “public order.”
The Executive Power, in a plenary session with the Council of Ministers, on 12/30/2002 rejected the request for international cooperation with the Argentine justice system, based on the fact that the expiration law is a matter of public order, and that the Extradition Treaty with the Republic Argentina authorizes the denial of the cooperation measure in the event that principles of public order are affected.
There is a double absurdity of the Executive Powe, considering the Law of Expiration of the Punitive Claims of the State as a matter of public order, and also giving it extraterritorial effect.
Unfortunately, the Supreme Court of Justice, which had before it the Resolution of the Executive Branch, endorsed this position of extraterritorial impunity through the argument of its "incompetence", so as not to go into the substance of the matter and peacefully accepted the attribution of character of public order by the Executive Power.
It cannot be accepted that this Law was declared a matter of public order, given that a coherent system of values ​​and principles rests on impunity for serious violations of human rights, nothing more absurd and contrary to international human rights law.
Due to the legal curtailment of the investigations of crimes against humanity, the sanction of the Law of Expiry of the Punitive Claims of the State and the repeated Constitutionality Sentences of this law, international mechanisms were resorted to, requesting Hearings before the Commission Inter-American Court of Human Rights, for the purposes of the Uruguayan State complying with Report 29/92 dated 10/2/1992, which is directly related to Law 15,848 on the “Expiry of the Punitive Claims of the State.”
Report 29/1992 concluded that; “Law 15,848 of December 22, 1986 is incompatible with Article XVIII (right to justice) of the American Declaration, and Articles 1, 8 and 25 of the American Convention on Human Rights.”
It recommended that the Uruguayan state: “Grant fair compensation to the victims” and “adopt the necessary measures to clarify the facts and identify those responsible for the human rights violations that occurred during the de facto period.” The case was never referred to the Inter-American Court of Human Rights.
We requested and were granted two Hearings, which were held in two periods of Sessions, with dates 10/17/2005, 123rd Period of Sessions and March 10, 2006 - 126th Period of Sessions. The State attended with its legal representatives, and despite the request of the Commissioners to comply with this Report, they ignored their requests.
Faced with this new situation on 10/28/2005, we tried a new legal strategy, going before the Judiciary again, to request the reopening of the investigations making the following interpretation, “investigation” and “expiry of the punitive claim” are not legal elements communicating parties, but that there may be an investigation regardless of the conviction and it was for these purposes that we requested the reopening of the files.
The reopening of the cases of Reyes, Raggio and Maidanic and the forced disappearances of Luis Eduardo González González and Oscar Tassino Asteazú was requested.
In the case of the “April Girls”, in which the Headquarters proceeded to unarchive the proceedings, some evidentiary procedures began to be carried out, without conditioning them on the prior participation of the Public Ministry. After a few months, and despite not having concluded the investigation, it was concluded. Suddenly changing his initial position, he sent the proceedings to a “fiscal hearing”, in order to know his opinion. The Magistrate's attitude is an example of what is a mere “formal investigation” and not a – real investigation –.
However, according to the justification provided, Prosecutor Dr. Enrique Moller requested that the proceedings be archived because he understood them to be included in the law of expiration, based on the position of the previous Executive Branch, to which he attributed the value of res judicata.
In the case of Luis Eduardo González González, and despite the favorable position of Prosecutor Olga Caraballo, the Judge decided to file the case.
In relation to Oscar Tassino Asteazú, Prosecutor Dr. Enrique Moller proceeded in the same manner as the “April Girls.”
The new legal affront to the victims' families clearly emerges. The Judiciary again denied the following rights: access to justice, truth and information; also ignoring the binding nature of the Human Rights Treaties ratified by our country.
 
  • On July 22, 2022, Judge Isaura Tórtora, after 2 years of request and 8 months after the Court's Sentence was issued, ordered the prosecution of Juan Modesto Rebollo García, José Nino Gavazzo and Eduardo Klastornick, the latter two having since died. , because there are sufficient elements of conviction to maintain that they are prima facie involved in three crimes of murder in real repetition.
  • On April 28, 2023, the 2nd shift Criminal Appeals Court, made up of ministers Beatriz Larrieux and Daniel Tapié, ratified the prosecution with imprisonment of retired military officer Juan Rebollo, for the murders of Diana Maidanic, 22 years old; Laura Raggio, 19; and Silvia Reyes, also 19 years old, which occurred on April 21, 1974.

The judicial case in the I/A Court H.R.

 


In 2007, with all domestic appeals already exhausted, the family members and their legal representatives (IELSUR) went to the Inter-American Commission on Human Rights to present a petition for the extrajudicial executions of Diana Maidanic, Laura Raggio and Silvia Reyes. and the forced disappearances of Luis Eduardo González González and Oscar Tassino Asteazú. This request was presented on the basis that our country, in the free and full exercise of its sovereignty, ratified the American Convention on Human Rights (CADH) by law 15,737 of 03/08/1985, having expressly recognized “the competence of the Inter-American Commission on Human Rights.” Human Rights for an indefinite period, and of the Inter-American Court of Human Rights on all cases related to the interpretation or application of the I/A Court H.R..
The Petition was filed with number 1056/2007 and was admitted after its legal analysis with number 90/12 dated 11/08/2012.
In summary, the procedure before the Commission was as follows:
a) Petition -On August 15, 2007, the Institute of Legal and Social Studies of Uruguay (IELSUR) presented the initial petition.
b) Admissibility Report. – On November 8, 2012, the Commission approved Admissibility Report No. 90/12, in which it admitted the petition. "Regarding compliance with the admissibility requirements, the petitioner alleged that the State has not fulfilled its obligation to investigate in an exhaustive, impartial and serious manner the forced disappearances and extrajudicial executions of the alleged victims, in order to know the truth of what happened."
c) Background Report. – On November 9, 2019, the Commission approved Merits Report No. 169/19 (hereinafter “Merits Report”), in which it reached a series of conclusions and made several recommendations to the State, one of them was: "Investigate in a complete, impartial, diligent, effective manner and within a reasonable period of time with the objective of completely clarifying the facts, and identifying all possible material and intellectual responsibilities and imposing the corresponding sanctions. Taking into account the seriousness of the declared violations and the inter-American standards in this regard, the Commission highlights that the State will not be able to assert the guarantee of non bis in idem, res judicata or prescription, to justify non-compliance with this recommendation. "
d) On May 24, 2020, the case of "Diana Maidanic and others", with respect to Uruguay, the aforementioned report was presented to the Inter-American Court of Human Rights.
The case is related to the international responsibility of the State for the extrajudicial executions of Diana Maidanic, Silvia Reyes and Laura Raggio Odizzio, and the forced disappearances of Luis Eduardo González González and Oscar Tassino Asteazu, as well as the lack of an adequate investigation.
The Commission determined, with respect to Diana Maidanic, Silvia Reyes and Laura Raggio Odizzio, that their deaths constituted extrajudicial executions due to the existence of a series of indications that prove that the use of force was not justified. In relation to the cases of Luis Eduardo González González and Oscar Tassino Asteazú, the I/A Court H.R.  concluded that the constitutive elements of forced disappearance are met, and that said disappearances continue to be committed to date.
Due to the aforementioned, by virtue of the provisions of Articles 25 and 40 of the Regulations, IELSUR presented before the Court – case CDH 03-2020-2004, an autonomous claim, adjuvant with the arguments and evidence in the case promoted by the Inter-American Commission. of Human Rights against the State for violations of the rights enshrined in Article I of the American Declaration. They include rights: to life, recognition of legal personality, personal freedom, personal integrity, among others.
After giving the corresponding transfer to the State and it opposing the demands of the Commission and the autonomous one presented by IELSUR, the Inter-American Court of Human Rights, Case of MAIDANIK et al. v. URUGUAY issues Judgment dated NOVEMBER 15, 2021 (Merits and Reparations), which was communicated to the State on 12/20/2021. In its conclusions, the Court DECLARE:
That the State is responsible for the violation of the rights to recognition of legal personality, to life, to personal integrity and to personal freedom, recognized in the American Convention on Human Rights and the Inter-American Convention on Forced Disappearance.
Likewise, it is responsible for the violation of the rights to judicial guarantees and judicial protection recognized in the same treaties and violated the right of the next of kin to know the truth.
It also declared the State responsible for the violation of the right to personal integrity, recognized in the American Convention on Human Rights.
And consequently essentially PROVIDES:
The State will continue the investigation of the events, in order to identify, prosecute and, where appropriate, punish those responsible for the extrajudicial executions of Diana Maidanik, Silvia Reyes and Laura Raggio, as well as the forced disappearances of Óscar Tassino Asteazú and Luis Eduardo González González.
The State will continue with the effective search and carrying out actions aimed at the immediate location of Luis Eduardo González González and Óscar Tassino Asteazú, or their mortal remains.
The State will carry out the publications ordered in this Judgment.
The State will carry out a public act of recognition of international responsibility in relation to the facts of this case.
The State will adopt the corresponding actions to strengthen the capacity of the Special Prosecutor's Office for Crimes Against Humanity to act, as well as its training in the gender perspective.
The State will adopt permanent training, training and awareness programs for members of the Armed Forces in relation to human rights.
The State, within a period of one year from the notification of this Judgment, will present to the Court a report on the measures adopted for its compliance.
• The Court will supervise full compliance with this Judgment, in the exercise of its powers and in compliance with its duties in accordance with the American Convention on Human Rights, and will conclude the present case once the State has fully complied with the provisions of the same.

The memory of the April Girls commits us to demand compliance with the Judgment of the Inter-American Court of Human Rights.

The public act of recognition of international responsibility of the Uruguayan State in the case of MAIDANIK AND OTHERS VS. URUGUAY was held on Thursday, June 15, 2023 in the Hall of Lost Steps in the Legislative Palace in compliance with the ruling of the Inter-American Court of Human Rights.

Karina Tassino's proclamation

Good afternoon, we are here today in the Hall of Lost Steps of the Legislative Palace in front of all of you, 50 years after the coup d'état, with great emotion.

In accordance with what is established in the ruling of the Inter-American Court of Human Rights, this act of reparation must “have the presence and be carried out by high national authorities and be present by high authorities” of the Executive Branch, the Legislative Branch, and the Judicial, as well as high military authorities, the Specialized Prosecutor's Office and the National Human Rights Institution and the Ombudsman's Office."

We appreciate and value the presence of the President of the General Assembly, Beatriz Argimón, today exercising the function of the President, and also of the authorities present or their representatives demonstrating the will of the State to comply with this sentence.

We regret the absence of the President of the Eastern Republic of Uruguay, Dr. Luis Lacalle Pou. The family members always proposed to define the date of the event based on their agenda because we understood that their presence was essential due to the fact that in their capacity as Supreme Commander in Chief of the Armed Forces, to comply with the resolutions of the Court's Sentence on issues related to the Armed Forces.

An immense recognition to the witnesses, organizations, groups, people who maintain this persevering path for truth, justice and where they are. The researchers, academics, journalists, to: Mothers and Families, Crysol, and among all, especially to IELSUR, who, with their warm and firm company, brought us here.

But mainly we thank those who are no longer here today. To our dear family members who could not see this sentence and were a fundamental pillar in achieving it today. To Pepe, Celia, Stella, Adela, Nené, Washington, Edward, Cholo, Martha, Raúl, Cacha, Mamina, Disnarda, Gabriel, Álvaro and Marcos.

Today we want to give our word, as Irene Vallejo says, “the words that are just a breath of air.”

How many blows have passed in these 50 years! How much have we denounced, how many generations, so that today we have this Sentence that tells us that we were right, that the Uruguayan state violated all our rights: the right to recognition of legal personality, to life, to personal integrity, to freedom personal rights, judicial guarantees and judicial protection, the right of family members to know the truth.

The right of our childhood, adolescence, youth, maturity, the rights of our loved ones and of society as a whole, because State terrorism affected the entire society.

The process that culminates with this ruling by the Inter-American Court of Human Rights began a long time ago. These breaths of air began in the dictatorship when mothers, wives, family members who experienced terror were found, they filed complaints in 1985 with the return of democracy.

In 2007, promoted by IELSUR, in the face of the blockade of access to justice that the Uruguayan State resolved, and along with it the immense difficulties in restoring to us (as families and society) the truth about the bloody victims (and I must stop at name all its synonyms so that it is understood) bloody, fierce, brutal, ferocious, inhuman, sanguinary events that occurred during the years of civil-military dictatorship and State Terrorism.

The essential justice for them and the transformations that as a society we needed to reestablish a rule of law; the responsibilities of these crimes, and the whereabouts of the missing detainees, during all these years it has been a leap of obstacles that despite the excellent work of the Specialized Prosecutor's Office (achievement of the Gelman sentence, the numerous prosecutions, the progress in the reconstruction of the facts still have to deal with the same obstacles that we have suffered since 1985.

It should be noted that Uruguay is a State Party to the American Convention on Human Rights, the Inter-American Convention on Forced Disappearance of Persons, and the Inter-American Convention to Prevent, Punish and Eradicate Violence against women.

This sentence, which refers to and recognizes the events of the past, is about the unfulfilled responsibility of State agreements, about investigating and prosecuting crimes against humanity...unfulfilled responsibility by the three powers of the State until the present. It is a sentence of the present. How to “resolve, coexist or naturalize” these crimes and their consequences today.

Somewhere I read that “time is not exactly as we conceive it and in a present several pasts coexist in different ways.”

These 5 crimes are committed in the repressive context of State Terrorism, and in massive operations, in which other compatriots are arrested, tortured, killed or disappeared.

We want to talk about the Body as lack of protection.

In the body where the events of our life are marked, the wounds and scars are woven into our flesh, into our soul, and we still have living flesh; these are forced disappearances today.

We live through violent and traumatic events, an unexpected experience, in a particular and massive way. We lived through authoritarian processes that installed terror and fear.

The impunity of doing with our bodies what they wanted. Tortured, murdered, disappeared; relatives without information and dehumanization. We had to resist abuse and lies and build a patched-up social body. Our bodies somatize to this day. The memories of each of the families that are present here today know it. The new generations also feel it in their hearts. We know that there are crimes that, due to their magnitude, are irreparable.

Interweaving of memory. The facts are woven into the flesh. Diana was 22 years old, Laura and Silvia were 19 when they were murdered, their bodies were destroyed by bullets, Silvia was 3 months pregnant. The family, the neighbors, the neighborhood experienced this traumatic event that morning. They were looking for Washington (who today remains detained and missing), his parents told them that he had gone to Buenos Aires, that Silvia was in the other apartment, but that they should be careful with her because she was pregnant. They massacred her and her friends, Diana and Laura.

Then they took out the bodies and emptied the apartment, they stole everything, even the light bulbs and plugs, with total impunity so as not to leave anything behind, they almost took them to the door of the house, Washington's father was the only thing that could stop them.  When they entered that apartment he and his 17-year-old son had to clean everything. How does a person recover from this, entire families from this tragedy? When the bodies were delivered, their friends say that they had to take charge of arranging it in the coffin, since it was not shrouded "we were 22 years old and we never thought we could see so much horror."

Luis Eduardo (Chiqui) was born in Young in August 1952, his parents were Orlando and Amalia; She was 22 years old and was expecting her first child. He was kidnapped from his home on 12/13/74 along with his wife Elena, 4 months pregnant, and taken to the 6th Cavalry. Elena says “There they took us to the cars to watch him torture and do the same with us to pressure him… sessions on my son… who accompanied everything inside my belly, for years he woke up every morning screaming, amazed… what we had to do see, what we had to forget…

And in the midst of that horror the sweetness of his voice naming us, a thread of love that continued with us. 12/25/74 was surely the day they murdered him, because it was the day they cowardly issued a statement lying about his his escape.

When I was writing this text, a body appeared in the 14th battalion…. Everything stops, anguish explodes in the chest, tears escape, although we still don't know who it is. A body appeared. I look closely at Dad's photo and ask, is that you?

What a situation so out of time. Outside of chronological time. 46 years later I still wonder, are you dad?

I see your hands, your legs, your face, your smile, your watch, your wedding ring, your eyes. Always your eyes.

I hear your voice singing with us, here close, outside the Palace, when we came to play with Marcelo, Gabriel and you. On the cobbled and steep Guatemala street where we would jump with the flat that they had built together. And you singing with us, the 4 of us singing. Nearby in César Díaz, the apartment where the 5 of us lived, that day seven-year-old Marcelo was left alone crying in the empty dining room and when his mother came to look for him and asked him why he was crying, if he wasn't happy that we were moving to the little house new thing, he told her, - we are never going to be as happy as here - and he was right.

Oscar was 40 years old, on the morning of July 19, 1977, when he was going to enter a house in Carrasco and was violently stripped of his belongings, beaten, hooded and kidnapped by the OCOA, he was carrying a bag of biscuits. The owners of the house were also kidnapped in their own home along with their minor daughters. They transferred him to the clandestine detention center of La Tablada (today the site of Memoria), my brother Gabriel wrote one day: “witnesses say that you reacted to being left in the cell fresh from torture, to a comment from one of your executioners” and that led to several of them hitting you, hitting your head against a sink and breaking your skull.”

Between horror and tenderness. We went to Battalion 14 with Relatives. The horror of what we encountered, the tenderness of containment of the work team of anthropologists and among the Relatives themselves. Each one thinks it is their loved one, it is already the 6th time we have gone through this, another duel, endless like a ferris wheel. How much longer will it be repeated? Again we had to put the body.

As the poet says, “I want to dig up the earth with my teeth, I want to separate the earth part by part and kiss your noble skull, and ungag you and return you.”

The horror of knowing how the bodies of our loved ones were treated until the last moment. Buried face down on a lot of lime, below and above. The marks of his buttocks, legs, arms, buttocks were left in the lime. and his face? That face that received so much affection from birth, that was so loved until it was taken from us, in the words of Saramago "the color of the hair and eyes, the shape of the ear, the dark arch of the eyebrow, the shadow so soft from the corner of the mouth.”

Intimate personal and family pain and suffering transcends society. We continue to receive from people all their tenderness, their breaths of air, with their messages, through different expressions of art, drawings, designs or poems, our people are so impacted!

Thanks to the struggle and perseverance, a body appeared today. It was not found due to information provided by those who know where they are, NO, nor was it due to information provided by the State, they found it due to years of work that the team of anthropologists are doing together with the Human Rights Institution in Battalion 14, weeding, cutting trees and drilling into the ground, one space next to the other. There are 420 hectares, 32 managed, can you imagine the effort? They know where they are, but they don't say it, they prefer to continue committing the crime and abusing our bodies.

Today the state recognizes its institutional responsibility and the Court says that it must also comply and report within a period of one year (which has already passed), on different reparatory points of the Sentence.

  • Continue with the effective search and carrying out actions aimed at the immediate location of Luis Eduardo González González and Óscar Tassino Asteazú, or their mortal remains.
  • The Court says that the State must identify the whereabouts of the missing detainees, know where their remains are located, so that we can receive them and bury them according to our beliefs, thus closing the grieving process that we have been experiencing over the years , constituting this a reparation measure.
  • Continue the investigation of the facts, in order to identify, judge and, where appropriate, punish those responsible for the extrajudicial executions of Diana Maidanik, Silvia Reyes and Laura Raggio, as well as the forced disappearances of Óscar Tassino Asteazú and Luis Eduardo González González”. These investigations must pay primary attention to the issue of gender, the need to judge with a gender perspective because certain violations were suffered by women due to their condition as women, state terrorism took its toll on them.
  • Provide victims with psychological or psychiatric treatment.
  • Adopt the corresponding actions to strengthen the capacity of the Special Prosecutor's Office for Crimes Against Humanity to act.
  • Adopt permanent training, training and awareness programs for members of the Armed Forces in relation to human rights that include content related to the serious violations committed during the dictatorship, their incompatibility with international law and the need and importance of avoiding their repetition.
  • Compensate for material and immaterial damages established in the Judgment.

We and our families, also victims and survivors, suffered double victimization and we expect the state to comply with this sentence. Today the State is represented by you. High authorities who preside over the event. From you, supported by this immense people who demand truth, we expect today, we demand today, forceful actions that direct us to them.

After 50 years of this impunity, the family members have long added to our demand to NEVER AGAIN... Not only do the family members need to know, the entire Uruguayan society needs to know. Because the serious violations committed during the dictatorship are incompatible with the rule of law. Because knowing and remembering is the guarantee of non-repetition.

“Con las tripas decimos que más tarde o más temprano los vamos a encontrar a todas y a todos.”

For memory, truth, justice and NEVER AGAIN.

¡PRESENTS!