Sam Ferguson: In Pursuing Human Rights, Argentina Displays a Broken Justice System
[Sam Ferguson is currently a Yale Law School Robina International Human Rights fellow, and is residing in Buenos Aires, Argentina. He is writing a book about prosecuting military atrocities committed during the Dirty War. In March, he will begin a Fulbright Fellowship.]
Buenos Aires, Argentina - Buenos Aires' Comodoro Py judicial building is situated far from the city's municipal core, sandwiched between the city's busy bus terminal and the country's main port. Long distance buses and semis go rumbling by on a 12-lane road outside. The building is a nine-story, concrete behemoth surrounded by seven-foot high, temporary, riot-control fencing. It is about three times as wide as it is high, with rickety, rusting air conditioners dotting the gray, imposing facade. Behind closed doors lining the dirty corridors of this house of justice, the largest human rights case against Argentina's dictatorship is being investigated.
Over 30 officials from Argentina's notorious Naval Mechanic's School, or "ESMA," have been indicted for their responsibility in the kidnapping and torture of about 900 people during Argentina's last military dictatorship, which ruled from 1976 to 1983. For human rights groups, it is a symbol that "the impunity" has ended. For 16 years, the ESMA's henchmen were protected by amnesty laws passed in the wake of democratic transition in 1986 and 1987. Those laws were repealed by the Congress in 2003, and declared unconstitutional by the Supreme Court in 2005. The ESMA case is most representative of the repression which claimed nearly 9,000 victims during Argentina's dictatorship - students, dissidents, guerrillas, labor activists, journalists, psychiatrists, and others, who were kidnapped, tortured and sometimes exterminated by the armed forces.
But it has now been more than six years since the case was opened. Only one defendant has been tried on four counts of kidnapping. He was poisoned - whether it was a suicide or he was murdered has yet to be conclusively established - before the case reached a verdict. In the interim, the ESMA defendants have been held in jail during the pretrial phase without bail. One defendant, Jorge Acosta, has been in jail for over ten years without trial. (He was arrested in 1998 on charges of planning a kidnapping ring by placing children of victims of the government in military homes rather than returning them to their families. He was later indicted in 2003 in the ESMA case). On October 6, 17 defendants were supposed to show up in court to hear the allegations against them in a case involving 85 victims of the ESMA, but it has once again been delayed until November 19. In prosecuting human rights violators, Argentina has demonstrated it falls short of guaranteeing criminal defendants a speedy trial.
Why has the ESMA case taken so long to prosecute? There are many reasons, including an overly formal and bureaucratic justice system, ideological resistance on the part of Argentina's highest criminal appeals court, purposeful delay tactics by the defense and a lack of courtrooms with adequate security to advance with the cases.
The majority of the delay is the result of the Camara de Casacion, Argentina's highest criminal appeals court. Almost immediately after the case was reopened - the investigation began in the 1980s, before it was halted by Argentina's amnesty laws - defense attorneys appealed, saying that the amnesty law couldn't be repealed. From there, the case arrived at the Camara de Casacion in December 2003.
The Camara de Casacion sat on the case for four years. (A lower appeals court took two months to decide the issue before the Camara de Casacion). Human rights groups and prosecutors here allege that the Camara de Casacion purposefully took a long time to decide the case because of ideological resistance. The president of the Casacion during the delay, Alfredo Bisordi, was a secretary for a judge during the military dictatorship, who was a well-known sympathizer with the military.
The case finally came out after President Nestor Kirchner forced the resignation of several members of the court, including Bisordi, after a heated public verbal battle and the initiation of impeachment proceedings. In November 2007, the Camara de Casacion allowed the ESMA case to go forward, nearly four years after it was opened. Bisordi, who resigned in 2008, now represents military defendants in human rights cases...
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Buenos Aires, Argentina - Buenos Aires' Comodoro Py judicial building is situated far from the city's municipal core, sandwiched between the city's busy bus terminal and the country's main port. Long distance buses and semis go rumbling by on a 12-lane road outside. The building is a nine-story, concrete behemoth surrounded by seven-foot high, temporary, riot-control fencing. It is about three times as wide as it is high, with rickety, rusting air conditioners dotting the gray, imposing facade. Behind closed doors lining the dirty corridors of this house of justice, the largest human rights case against Argentina's dictatorship is being investigated.
Over 30 officials from Argentina's notorious Naval Mechanic's School, or "ESMA," have been indicted for their responsibility in the kidnapping and torture of about 900 people during Argentina's last military dictatorship, which ruled from 1976 to 1983. For human rights groups, it is a symbol that "the impunity" has ended. For 16 years, the ESMA's henchmen were protected by amnesty laws passed in the wake of democratic transition in 1986 and 1987. Those laws were repealed by the Congress in 2003, and declared unconstitutional by the Supreme Court in 2005. The ESMA case is most representative of the repression which claimed nearly 9,000 victims during Argentina's dictatorship - students, dissidents, guerrillas, labor activists, journalists, psychiatrists, and others, who were kidnapped, tortured and sometimes exterminated by the armed forces.
But it has now been more than six years since the case was opened. Only one defendant has been tried on four counts of kidnapping. He was poisoned - whether it was a suicide or he was murdered has yet to be conclusively established - before the case reached a verdict. In the interim, the ESMA defendants have been held in jail during the pretrial phase without bail. One defendant, Jorge Acosta, has been in jail for over ten years without trial. (He was arrested in 1998 on charges of planning a kidnapping ring by placing children of victims of the government in military homes rather than returning them to their families. He was later indicted in 2003 in the ESMA case). On October 6, 17 defendants were supposed to show up in court to hear the allegations against them in a case involving 85 victims of the ESMA, but it has once again been delayed until November 19. In prosecuting human rights violators, Argentina has demonstrated it falls short of guaranteeing criminal defendants a speedy trial.
Why has the ESMA case taken so long to prosecute? There are many reasons, including an overly formal and bureaucratic justice system, ideological resistance on the part of Argentina's highest criminal appeals court, purposeful delay tactics by the defense and a lack of courtrooms with adequate security to advance with the cases.
The majority of the delay is the result of the Camara de Casacion, Argentina's highest criminal appeals court. Almost immediately after the case was reopened - the investigation began in the 1980s, before it was halted by Argentina's amnesty laws - defense attorneys appealed, saying that the amnesty law couldn't be repealed. From there, the case arrived at the Camara de Casacion in December 2003.
The Camara de Casacion sat on the case for four years. (A lower appeals court took two months to decide the issue before the Camara de Casacion). Human rights groups and prosecutors here allege that the Camara de Casacion purposefully took a long time to decide the case because of ideological resistance. The president of the Casacion during the delay, Alfredo Bisordi, was a secretary for a judge during the military dictatorship, who was a well-known sympathizer with the military.
The case finally came out after President Nestor Kirchner forced the resignation of several members of the court, including Bisordi, after a heated public verbal battle and the initiation of impeachment proceedings. In November 2007, the Camara de Casacion allowed the ESMA case to go forward, nearly four years after it was opened. Bisordi, who resigned in 2008, now represents military defendants in human rights cases...