Juan Carlos Abella v. Argentina, Case 11.137, Report Nº 55/97, Inter-Am. C.H.R., OEA/Ser.L/V/II.95 Doc. 7 rev.

at 271 (1997)
REPORT Nº 55/97 CASE 11.137 JUAN CARLOS ABELLA ARGENTINA 1 November 18, 1997

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

was answered by renewed fire which forced the attackers to take cover in the RIM 3 buildings. heavy machine guns." 12. to the contrary. using common civilian weapons. they mention the attackers' attempt to surrender which occurred at 9:00 a. the petitioners state that all the material and human loss.attack had started. 11. without measure. the attackers signaled their intention to surrender by waving white flags. inhumane. the following occurred: .close to noon. To the contrary. e) White phosphorus or incendiary bombs were used. who remained there until the army troops arrived at mid-morning on January 23.500 members. General Arrillaga. the explanation given by the head of the repression forces. tanks. troops arrived under the command of General Arrillaga. in that he said that he did not give the order to accept the surrender "since he did not have a megaphone. mortars and heavy artillery. f) The group of attackers consisted of approximately 40 persons.. disproportionate. despite these efforts. without any acceptance of the attackers' surrender or even any attempt to engage them in dialogue. and was stepped up from rifles and automatic pistols to tanks. was fantasy.m. the gunfire began anew. the number of dead and wounded on both sides was still small." In connection with the second point. The petition also contains several remarks about the "domestic legislative framework under which the recovery of the barracks should have occurred. 1989. With their arrival. The petitioners allege that the State engaged in "bloody repression" to retake the RIM 3 barracks at La Tablada. armored vehicles and cannons. immoral and legally violative of all current legislation on this subject. Some parts of the barracks were reduced to rubble. and. g) At the time mentioned in the preceding sentence.." as well as "repressive methodology. on January 23. including the deaths of the soldiers who were inside the headquarters: ." They make the following points in the complaint: a) The La Tablada facility was surrounded by civilian buildings. d) The troops had air support from a group of helicopters. 1994. b) Immediately after they entered the barracks. who had given clear signals of surrender starting at 9:00 a. 10. They described this event as "unnecessary. In their communication of February 2. Nothing that should have been done was done. on the day of the attack. supported by armored vehicles.m. the attackers were surrounded by a police force totaling 3. ethically indefensible. Incendiary bombs were also used. The petitioners stated that. 1989: That offer was not accepted... c) The army troops were made up of special forces (commandos).

the petitioners refer to legal doctrine developed by professors J.. In 1980. and that it refutes General Arrillaga's statement that it happened on the second day. some persons are seen inside a military base waving a white flag. 1994. The above mentioned video tape starts with a scene depicting explosions inside the RIM 3 barracks (they allege the explosives are napalm. which resulted in the approval of additional protocols relating to international armed conflicts and non-international conflicts.. 13. 1968. as well as the restriction on and prohibition of the use of certain weapons. and to proscribe the use of certain methods and means of warfare. In this regard they mention the Teheran International Conference on Human Rights of May. followed by bomb explosions. which would place them in a special category. In the following scene. or phosphorus bombs). this constitutes proof that the surrender attempts began on the first day of the attack. Continuing their examination. 16. Likewise. worse than any other enemy. The petitioners state in their communication of September 27. according to petitioners.. Pictet and Igor Blischenko relating to the observance of human rights and individual liberties during an armed conflict. restricted the use of fire bomb weapons. which. 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. but another part of the videotape shows a policeman with a large quantity of that very element. which was carried out more specifically for the physical elimination of persons. the petition refers to the 1970 Human Rights Congress at San Remo. and the political utilization of an event which could have been resolved by much less bloody means. 14. Italy. that the tape constitutes proof that the attackers had attempted to surrender during the morning of January 23. 1989. In other scenes of the videotape.is the consequence and responsibility of that unnecessary bombardment. The same military officer said that tear gas was not available to him at the time. A videotape submitted by petitioners to the Commission contains scenes of one part of the barracks where several persons were waving a white flag. The petitioners explain that this is a part of the National Security Doctrine applied in Argentina during the most recent military dictatorship. 17. in particular. another instructor describes "marxist subversives" as persons without a fatherland. which decided to create a special institute to study the best means of protecting human rights during armed conflicts. an army instructor appears explaining that such explosives were never used in military uprisings. According to the petitioners. 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. prisoners and participants in armed conflicts. which requested the United Nations General Assembly to enforce compliance with humanitarian rules of conduct in all armed conflicts. 15. The complaint notes: . That conference also proposed a revision of the current rules to guarantee better protection of civilians. appear to have been used in the recovery of the La Tablada barracks. 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.

" b. hooded and face down on the ground. Claudio Omar Veiga and Claudia Acosta.All these efforts. 18." They were read a statement which indicated that the wounds they had suffered were the result of the combat. did not include Francisco Provenzano.the permanent enemy. Luis Díaz. José Moreyra. they were stripped and had hoods put over their heads. according to the petition.. all these contributions and all these advances in the field of human rights have produced rules which the Argentine State has agreed to honor. and still others had both hands and feet tied. others had their hands tied. Carlos Samojedny and I came out. have been violated by the actions of State agents in the La Tablada case.. Isabel Margarita Fernández. appears to have stated in the trial that he used fire bomb projectiles because ".fire brings both vermin and subversives out of their holes. Sebastián Joaquín Ramos. The bodies of Provenzano and Calvo were later identified by family members. The thirteen persons arrested in the barracks were Miguel Angel Aguirre. 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. Several saw Francisco Provenzano when he was naked. This same military officer. both of us wounded but not seriously" (testimony of Roberto Felicetti). Carlos Motto and Claudio Veiga went out the back door of the building.. all of these which were in effect. Luis Darío Ramos. All of them were kicked and punched. they noted. They were shown a list of thirteen names which. Francisco Provenzano was still alive at the time of the surrender. illegal executions and disappearances 20. beaten and put with the others. . Roberto Felicetti. under the orders of an officer who said: "I tell you that I am God and I decide who lives and who dies. After the surrender all were taken down a road flanked by trees. All of them were placed face down on the ground. their papers were taken away. According to the testimony of Sergio Paz. accompanied by physical and psychological torture by their military captors. all of whom stood trial in the Abella case. In effect." According to the petitioners. The group of persons who surrendered were later taken to some place within the barracks where they were held naked.m. Felicetti had his right arm broken. at 9:00 a.. "When they were told to give up and they saw their partners. Berta Calvo and Carlos Samojedny. Carlos Ernesto Motto. Some had their feet tied. Torture. Luis Alberto Díaz. The prisoners allege that they were subjected to an ideological interrogation. 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. The complaint quotes the words of General Arrillaga who defined the opponent as ". Miguel Aguirre. 1989. Sergio Manuel Paz. The surrender of the attackers took place on January 24. Carlos Néstor Rodríguez. they were searched for weapons. Gustavo Alberto Mesutti. 21.. in all times and in all places. their testimony indicates that Provenzano. within a framework relating the ends to the means. Claudio Rodríguez and Sebastián Ramos. but Samojedny remains missing. Surrender of the attackers and later events 19.

More testimony came from soldiers Ricardo Medina and René Rojas. mentioned the capture of Provenzano in their statements to investigative judge Gerardo Larrambebere. These soldiers also recognized Ricardo Veiga. stated that he had put them.22. Ricardo Veiga--whose shooting was caught on television cameras--José Alejandro Díaz and Iván Ruiz jumped out. one of the MTP members who had participated in the attack. During the Abella trial. A non-commissioned officer had requested a stretcher to move her. Roberto Sánchez. The petition states: Several members heard Berta give her name and Moreyra actually saw her alive when the hood was put over her head. in turn.. Varando assumes that Ruiz and Díaz escaped. was still alive. at the time of the surrender. Provenzano's family identified his body by scars from a back operation. Samojedny passed out. The petitioners charge that the alleged unlawful executions of Carlos Alberto Burgos. According to the petitioners. Motto stated that Provenzano had surrendered while still alive.had the viscera out and appendages in parts as if it had been blown up by a bomb. in an ambulance under the care of a non-commissioned officer named Esquivel. They said that at 4:00 p. Nacelli also stated that both were turned over to a corporal named Steigman. At this time he is among the missing. Berta Calvo. 26. but a soldier later told him that Provenzano had escaped. in turn. Since the latter appears on the list of soldiers killed in the confrontation. They also recognized Roberto Sánchez. 24. when the gunfire made the roof of the stockade cave in. The complaint states that the body ". 25. The testimony of the petitioners indicated that after some heavy blows. 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.." 23. This presumption was accepted by the court authorities who issued an . without guard." After this she was not heard again. other witnesses described him and stated that he was alive until long after noon. when Lieutenant Nacelli was shown the film and the pictures. who was said to be very seriously wounded. stated that he had seen Provenzano surrounded by soldiers and then heard a shot fired by a pistol with a silencer. Iván Ruiz and José Alejandro Díaz. Veiga. there is testimony that Carlos Samojedny was captured while alive and beaten after he identified himself.. 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.m. he acknowledged that he was the person who was in the film and in the photographs that showed the detention of Ruiz and Díaz. Carlos Ernesto Motto and Claudio Omar Veiga. She was hurt and they struck her mercilessly while they insulted her. 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. One heard a military person say: "She is about to go" and another answered: "Put the bag on her. Her body was identified by family members. both of whom stood trial and were convicted. 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. According to the petitioners. Steigman stated that he turned the prisoners over to Major Varando and Major Varando.

the police indicated he was one of the dead. Several persons. Along the way they were hit repeatedly.arrest warrant for the two of them. again hooded. 28. Several times they were taken to interrogations. The petition states that the appearance of his body with eight bullet wounds in it. since such an event was not part of the subject of the trial.. The complaint states that Roberto Sánchez and Carlos Alberto Burgos are also among the disappeared. 1989. In both cases. Months later the body of Roberto Vital Gaguine was identified by family members. With respect to Juan Manuel Murúa. who was in the place at that time.All the cases described illustrate the attempt by the repressive forces and the court to cover up the fate of these persons. as well as one in the head. he was threatened with expulsion from the courtroom by the president of the tribunal. once the army had set up its cordon around the barracks--starting at 11 in the morning--no one could have escaped. was a disturbing sight for the public. participated in these sessions. In this regard the account states: In the case of Burgos. according to the petitioners. the prisoners received some type of medical care. The petitioners state that Iván Ruiz and José Alejandro Díaz are among the disappeared persons. as well as the outcome. Treatment of survivors after surrender 30. they climbed over the rubble but did not find the bodies. the complaint states that he was in a part of the barracks known as Company B. in the custody of a soldier. 27. In these interrogations they were beaten again and the interrogation was essentially ideological in nature. Roberto Felicetti. When Joaquín Ramos stated in the trial that his brother Pablo had been arrested still alive and then murdered. the family members could not identify the bodies. 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. Pablo Martín Ramos also appears to have been unlawfully executed. the body of Juan Manuel Murúa has not been identified and thus he is considered disappeared. The immediately following events. 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). are described by the petitioners as follows: The survivors called to them several times during the night but received no answer. In the case of Roberto Sánchez. 29. In the morning. . was published by several Argentine and foreign press media.. On Wednesday morning. Murúa and Juan Vital Gaguine could not get out. A photo of him with his hands up. women among them. After this they were moved to small cells where they were kept naked. 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. which was the target of cannon fire on the afternoon of January 23.

Juan Manuel Burgos. like during the other transfers. Joaquín Sebastián Ramos was treated without his handcuffs even being removed. The prisoners were moved in different groups and on different days to the courts. 1989. Claudio Veiga. in Buenos Aires province. during which time they were beaten and threatened. . and were punched and threatened once again. they were beaten and kicked while on the floor. All of them were taken to the San Alberto police station. With insults and threats. All of them were deprived of food during their time at the police stations. usually with hoods over their heads and handcuffed. If they had killed them.I don't know why we are wasting our time with these guys. Accomplices 33. Dora Molina was insulted for being a woman. At 7:00 p. The prisoners in the group who had the most serious wounds were transferred to the Ramos Mejía hospital to be cared for. the prisoners were moved to different police stations in Buenos Aires province. the only reason to deprive them of their freedom was their membership in the MTP. and was tortured psychologically. The complaint continues to relate that. 34. and handcuffed with their hands behind their backs." 32. as accused persons who were being held incommunicado.m.31. On Tuesday the 24th. between 7 and 8 a. a lawful organization. we would not be bothered with them now." And the police officer said "." and were forced to sign a paper advising them that they were at the disposal of Federal Judge Larrambebere.. 35. The doctor told him that he would like to make him talk "by sticking a hot poker up his anus. on January 23. the five arrested persons were recorded as "detained to determine information. Díaz got a broken rib and all the others had contusions. Luis Díaz and Carlos Motto had hoods over their heads. This was followed by an ideological interrogation. The petitioners alleged that they were tortured again in the cell block of the hospital. After this. Accordingly. none of them had any criminal record. When they were taken before Judge Larrambebere--in the condition described--they continued being hit in his presence until the judge finally intervened. they were injected with a substance that numbed them and produced a loss of sense of time. Claudio Rodríguez. two rows of uniformed officers awaited them and beat them before they went into the cells. Miguel Angel Faldutti and Daniel Gabioud Almirón were arrested some 20 blocks from the La Tablada barracks. on the same day. The complaint states: During the last transfer to the courts. Joaquín Sebastián Ramos. 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. According to the petition. This resulted in a sprain in Abella's left arm. Juan Carlos Abella. and they were a considerable distance from the barracks when they were arrested. The prisoners alleged that they were thrown to the floor there. When they got out of the truck. Dora Molina de Felicetti. accompanied by threats and blows..m. The complaint also states that at this time Abella was subjected to several feigned shootings. Veiga had a nose bleed that almost choked him.

The officer interrogated him for an hour. according to the petition. and insulted. as in the case of Father Puigjané. until his statement was taken by the investigating judge.. She was arrested on the same charges as Puigjané.". 1989. but his performance was "lamentable": This judge confined himself to a kind of "guided tour" in which he saw what the army showed him. We are back." At one point. When he was asked about the events at La Tablada. The judge--considering the complaint by Father Antonio-fully justified the interrogation conducted at the police headquarters. Carlos Samojedny. disappeared without a trace. . The complaint also charges that the State did not comply with its obligation under Article 1. 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 officer said to him. it put us on a war footing. 1989. and we are going to kill you in the democracy.At the end.you are a leftist. 36. he was moved to another place where he was held for 30 hours without water or food. appeared before the judge on Monday. accused and threatened him.m.1 in view of the discriminatory treatment given to prisoners on the grounds of political position.. "She was standing around the barracks for a short time just looking. and also allowed the army to gather weapons. "I don't regret anything.. the person really responsible. 39. We are going to kill all you leftists. walked where the army allowed him to walk. or ideology.Daniel Gabioud Almirón and Juan Carlos Abella were not given food until Friday the 27th of January. thinking that this was a military coup in progress. 37. equipment and other materials. c. every life is sacred. On that same day. 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 states that. "I regret every life that is cut short. January 30. The complaint states that the competent federal judge appeared at the barracks at 11:30 a. when Father Antonio said. Friar Antonio Puigjané. The complainants believe that his presence was necessary to gather evidence and to verify facts. Cintia Alejandra Castro appeared voluntarily at the federal court. Puigjané was moved to the federal police station located in the court building where. The Abella trial 38. a priest and a leader of the MTP. who ordered him held incommunicado.. the following occurred: There he was submitted to intense ideological interrogation by an officer and two other persons. this came at a good time for us." and charges that her companion. The complaint indicates that she was subjected to an ideological interrogation of the same type as the others. on January 24. who is an advocate of liberation theology.

the defense filed an appeal to the Supreme Court of Justice of Argentina. The complaint argues that by characterizing the events as a rebellion. except by filing a special appeal through the Supreme Court of Justice..40.2. actually belonged to the attackers. 1989 in the Abella case resulted in the imprisonment of the 20 persons tried. 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. however. in violation of Article 8.h of the American Convention. 41. The final decision that this last level of appeal handed down was issued two-and-a-half years later.. adopted August 9. was political and repressive in nature. This leads the petitioners to contend that the judge did not conduct the procedure but was guided through it. The trial was conducted under a one-instance system ("sistema de instancia única") established by Law 23007. . ". The judge allowed the military personnel to gather evidence. the recapture of part of a military installation is an operation that goes beyond merely military concerns. since the information pertaining to all the deaths and wounds suffered by the attackers was removed from the file. .the closest national authorities shall call upon the insurgents twice to immediately dissolve and withdraw. The petitioners contend that the judge did not appear at the scene of the crime as the law calls for. in violation of his legal responsibilities. according to the petitioners.. a "circumscription of the proceeding's purpose" occurred." 44." They clarified. After the request was rejected. and shall leave enough time between the first and the second appeal to perform this. 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. The Law of Defense of Democracy. Both the judge and military authorities failed to comply with their legal obligation which calls for the following in situations such as this: . 43. the petition argues that the complainants actually had access to only one instance. as required by the legal system. The judge appeared at a later time.it became clearly necessary to not investigate what the army had done. as it is called. The trial. The judgment issued on October 5.the event could not be kept outside the justice system. creates a special criminal procedure for acts of violence against the constitutional order and the democratic way of life. or gather evidence. But.. as stipulated in Article 14 of Law 48. according to the army. that: . even in tactical terms. and.. For that reason.. They question that certain materials presumably found in the barracks. The petitioners maintained that the defendants in the Abella case were not tried by their natural judges. The petitioners referred to the "abdication of jurisdictional responsibility" by the judge by not supervising the collection and handling of evidence at the scene. The law establishes a procedure for which there is no appeal of the judgment. The complainants state. 42.we do not believe that it was the judge who directed a military operation in tactical terms. and he limited his involvement to a walk through the places that were shown to him by the military authorities.. 1984..

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: . the existence of a group. 46. prepared by the military authorities. however. the criminal description is one of result. 47. The petitioners state that the military officer in charge of the operation also failed to comply with the rule. And obviously. 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 defense argued during the trial that the events of January 1989 could not be categorized as a rebellion as is stipulated in Article 226. This requires. They believe that this constitutes: . and does not relate to the degree of attempt. paragraph 2. and he failed to do so even though he had enough time. Note.. according to the petitioners. to move against its republican form of government or to prevent the operation of any of its powers. rebellion. certain actions occurred during the investigative stage of the proceedings. in addition to the use of arms. this never occurred in Argentina on January 23 and 24. from being effective and the attempt to change the democratic structure of the country. and then put it into the file. of the Penal Code.. and as a result. this never occurred. in an abrupt manner and before any pending evidence was presented. 49. The petitioners allege that their right to conduct their defense was restricted by application of Law 23077 to their case. This description is used with great prejudice. The evidence-gathering stage was closed by the court. In fact. and the objective or the intention of preventing the National Constitution. which has a military structure that the MTP has never had nor does it have at this time. who had made public at the time the news about an "imminent military uprising. or any of its powers. a special law applies.for the penal description used. The complaint maintains that the judge had the obligation to be present. most of all. 1989. the complainants state that the judge received and gave legal standing to a document. he ordered his troops to open fire in violation of strict standards of international human rights. It is unthinkable that 40 persons could achieve such a result. this was most important for the decision in the case. According to the statements made in the petition. In addition. 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. addition of certain evidence and elimination of other elements which were later used as grounds for the verdict. as are the beliefs in the existence of an illicit association.45. 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. a crime of which they are also accused and for which they are found guilty. such as the destruction of documents. this was not the purpose of the attackers but. The petitioners also contend that some relevant testimony was not allowed. including that of witnesses such as Eduardo Duhalde. Law 23077. he did not comply with his legal obligation to call upon the attackers to surrender. which frames the final nature of the proceeding. but he also did something much worse: in the face of a clear intention to surrender." 48.

as she was walking with her hands up. and that the court closed the evidence finding stage "in an abrupt manner and without consultation. The petition states that the defense had no involvement in 43 cases of poorly incorporated expert evidence and 21 seizures of materials. was the body that had to make the judgment.. . In the case of Berta Calvo." 51. When it was time for the defense attorneys to counter the preventive imprisonment ruling. 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 "." They were later turned over in boxes containing the remains of more than one person. which was kept secret. 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. several 9mm pistol shots went off. These documents contain information pertaining to the supposed plans of the MTP to commit a number of crimes. juridically inapplicable. these shots caused her death at a later time.an inappropriate legal framework. was the incorporation of documents provided by a priest by the name of Jardin." This left a large body of evidence outstanding. It says that the shots came from behind a door. which amount to "fatal formal flaws. One example of the defects in the evidence in the Abella case.where they were told in advance what to say. and their identity is unknown. an Argentine army lieutenant explained that shortly after she turned herself in with serious wounds. 50. making them "unusable for any serious study.. 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. The judge who had to hand down the sentence only conducted the investigation (instruction). Authorship of the papers was attributed to Jorge Baños. It merely requested that a separate case be filed when the defense accused it of covering this up. The complaint describes an "intention to cover up" by the State.. and therefore.. In the case pertaining to this matter. which made it difficult to exercise the right of defense in trial.. 53. Likewise. but in fact never did so. who apparently lost her life. 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. and they only received the documents that were used for the accusation. because the bodies were left out in high temperatures for a week. the complainants contend that they were never permitted to participate in the gathering of expert testimony. as evidenced by the handling of the cadavers. that most of the evidence they offered was rejected. worse for the defense. the officer was found innocent. The court that was to review the sentence. as in the case of Francisco Provenzano. The court heard this. they were not permitted to see the file. it states: During the hearings. again according to the complaint. The petition states that the corpses of some five persons were dealt with in this way. The procedural terms and the possibilities of appeal were small. The complainants believe that the autopsies where poorly performed and incomplete. and said nothing." 52. one of the attackers killed at La Tablada.

the petitioners likewise mention the presence of senior officers in the courtroom when their subordinates were making statements. specifically with regard to the statements of Sebastián Joaquín Ramos and Lieutenant Molteni. there is a clear additional component of ideological discrimination. the armed forces were prohibited by law from intelligence gathering tasks involving domestic political matters. thereby preventing them from making any charges of illegal acts that could be prejudicial to the police or the armed forces. was detained. 59. 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. as a result. it was the judge himself who decided on the objections raised in the trial. 56. In this case. was convalescing from a hip operation in a wheel chair. "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. the case of the Capuchin friar Juan Antonio Puigjané is mentioned as "the most pathetic". who at the time of the events. tortured and sentenced to 20 years of imprisonment. The petitioners believe that this action is even more serious. 57. 1989. in flagrant violation of both current law and the basic principles of law.a man of more than 60 years of age. During the plenary stage of the proceedings. We add that he is a well known advocate of human rights who had family members murdered during the military dictatorship.54. The petitioners believe that in the plenary hearings there was clear partiality by the court.since there was no court to which not only final decisions such as the verdict but others as well could be appealed. With respect to the final verdict.. 55." Several documents provided by military intelligence were accepted by the court for recognition by the witness. and had no knowledge of them. 1989. Of all the persons found guilty. In addition. 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. 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.. During the trial.. . The petition indicates here that the witness was prohibited from doing this by Law of Defense 23554. 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. presumably taking a "position of support. The complainants believe that there was no interest in investigating what each one of the attackers had done individually and. The judges constantly interrupted the accused persons. quite unable to move.. This meant that he was both judge and party. and because he was a member of the MTP. 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. police officer Carlos Alberto Castañeda stated that for the hearing of August 23. He went to the legal authorities. and that: . because these very documents were later used as the grounds for describing the MTP as an illicit association. The petition describes him as follows: . and had not participated in the events." 58. In this sense.

This part of the public function was carried out with disregard for human rights and human dignity." The complainants emphasize that the State attorney had requested that all the arrested persons be sentenced to life imprisonment. In the case under review here. shifted its position 360 degrees in the proceedings "Eukmedjian vs. with the same members. 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.e.60.. has gone too far in the exercise of its powers.1. Under the procedural system of Law 23077. In effect. The attackers had surrendered and were disarmed. abusive and unlawful form of repressing many persons. The Court finally rejected the appeal "for lack of standing. In clarifying that the possibilities of review are much narrower under Law 23077.. institutional gravity or unconstitutionality of a law. it states as follows: The State. the petition points out that the sentences are disproportionate to those applied to military persons in similar cases.. And this occurred when its agents had complete custody and control of the situation. Sofovich. which was not applied to the Abella case. through its agents.as a consequence of its unnecessary.. the only means available to the defense attorneys was the special appeal to the Supreme Court of Justice. others disappeared. but states that this does not prevent it from being taken up.. health and security of the persons who lived around the . 64. particularly as they relate to the repression of the attackers. both among the attackers as well as among its own agents (soldiers) who were wounded or killed.. the judge of the place where the events occurred is the one who conducts the evidence gathering and hands down the verdict. some were shot. but that the appeal took two and one-half years for the Supreme Court of Justice of Argentina to resolve. Although in the end this sentence was not given to all the persons found guilty. 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 which it notes the lack of standing in the development of the arguments of the appeal.the State was not able to prevent the high number of violations of human rights to which the prisoners were subjected: they were tortured. which can be appealed to a higher court." and because it did not satisfy any of the grounds provided by law for granting an extraordinary writ. the complaint compares the system under Law 23077 to the Federal Criminal Procedures Code. Under the latter system. The petition also points out: . arbitrary decision. The petitioners contend that the repression carried out to recover the La Tablada barracks in January 1989 endangered the life. Consequently. and even the defense's protest regarding the application of Law 23077.. 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. on the other hand. 62. 63. the petitioners explain that they had filed a special appeal of the verdict of the San Martín Federal Court in the Abella case. With respect to Article 1. 61.shortly after this rejection. this same supreme court. The verdict of the San Martín court in the Abella case is described as one "of a clearly political stripe. i. The complaint refers finally to the Articles of the American Convention that it considers violated in this case.

It refers to the statement of reasons for that law. according to the petitioners. which was forwarded to the Commission on February 18. The petitioners believe that the acts of torture. the petition cites it as "the most repeatedly violated rule. Comparing these with "acts that were more or less similar undertaken by the military. 66. C. and that this was a violation of Article 5. by violating the provisions of the National Constitution regarding the appointment of authorities and the sanctioning of norms.. They should have been the ones to grant the procedural law that should have been used in this case: the Code of Penal Procedures. the instructions judge and the sentencing court lacked impartiality and independence.barracks. constitutes one of the most serious crimes that can be committed against the rights of individuals and the interests of the country. 67. The attack and recapture of the military base . the sentences and the conditions of imprisonment." 65. the complaint states that in the Abella case competence was incorrectly based on the nature of the events at La Tablada. and quotes: . 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. i. STATE REPLY 68. The judges were the correct ones. Even though the competence of these parties was established earlier by Law 23077. 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. They characterize this violation as "subtle.. forced disappearance of persons and summary executions are covered "by the same framework of standards." 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.1 of the American Convention. 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 references in the complaint emphasize the nature of the repression at La Tablada.the attempt to ignore the will of the people. The State's initial response to the petitioner's complaint. 1994. The issue of admissibility is discussed separately in a subsequent chapter of this report. rather than on the place where they occurred. but in different roles. Regarding Article 8 of the American Convention. 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. cruel treatment and inhumane treatment of the prisoners." because the judges: Simply imposed a law that should not have been applied. how the prisoners were treated." The guarantees set out in clause 1 of that article appear to have been violated because. deals fundamentally with the admissibility of the case.

The petitioners argue that the order should have been issued by a judge. These were indictments. ii. This letter recounts the events that occurred on January 23. 70. 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. 1989 at La Tablada. which was later left void. Pablo Francisco Javier Belli. but does not make direct reference to the complaints of excessive use of force in recovery of the RIM 3 barracks. The State contends that the president of Argentina.an institutional act of a discretionary nature.... "whoever has custody of the place also has the right to repel intruders. The State's information is expanded in its letter that reached the Commission on January 9. It states that in application of a general principle of law. 1949 on the Treatment of Prisoners of War.. This occurred in connection with Francisco Provenzano. which was not the case of the events of January 1989 at La Tablada. free of judicial control. The reply continues by stating that the bodies of Carlos Noberto Maldonado. Furthermore. ordered the recovery of the RIM 3 barracks at La Tablada. 1995. although subject to juridical order. Events following surrender 74. detention orders and release orders. it recognizes in its reply that actions taken as a consequence of this institutional act are subject to control of the courts ".. Regarding the intervention of the armed forces in the operation. 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." However. the State states that this intervention was legitimate in nature because the events took place in an area subject to military control. identification of bodies.Claudia Mabel Deleis. the State contends that the order was issued in the legitimate use of discretionary powers of the president..Félix Reinaldo Díaz... or to the attendant violation of the right to life alleged by the petitioners." 71. arrest warrants. The State's letter mentions the steps taken by the San Martín Court during the evidence gathering stage. 73. It notes that such rules apply only to international armed conflicts. Oscar Alberto Allende and Eduardo Aguero were .since those actions could affect the subjective rights of those administered." 72. The State considers this an erroneous position since the matter involved a military operation that went beyond the jurisdictional powers of a magistrate. Sergio Ricardo Mamani.. 75.69. in the exercise of his powers as commander-in-chief of the armed forces. Accordingly. The State's communication refers to international humanitarian law and to the definition contained in the Geneva Convention of August 12.. The State terms that order ".

In its letter received on February 18.the need to have readily available an effective tool to protect democratic institutions..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... Applicable laws and judicial proceedings 76. 77. c) Has a cellular structure. State charges and oral and public hearing which took place from July 20 to October 5. adversarial and ongoing.there must be a penal procedural law that permits a certain amount of effectiveness in prosecuting the aforementioned crimes. when the San Martín Federal Court reached the verdict read publicly on October 10." The reply continues quoting the statement of reasons for the law. 1989. 1989. which was rejected by that Federal Court on December 19.whoever takes part. 1994. Consequently. provided that such an association meets at least two of the following characteristics: a) Consists of ten or more individuals. the bodies of Julio Arroyo. . As for changing the rules of competence and procedure.. Aldira Pereyra Nunes and Ricardo Arjona were identified. and also ensures the parties charged with the republican guarantees of due legal process. which rejected them on March 17. d) Avails itself of weapons of war or explosives of great offensive power. the aforementioned document refers to ". The State explains the context of the situation that prevailed in December 1983 when democracy was restored in Argentina. iii. the Office of the Prosecuting Attorney and the attorneys for the defense filed a special appeal. 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. 1989. On October 26.. The foundation for this is represented by the culmination of the procedure in an oral and public hearing..identified. punishable by 5 to 20 years of imprisonment for the following acts: .. which states that . complaint appeals were filed with the Supreme Court of Justice. the State introduced its arguments with respect to modifying the legal descriptions of the crimes of rebellion and aggravated illicit association. 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. 1992.. Law 23077 was part of ". b) Possesses a military or military type organization. The legal process continued with the order of preventive detention of the 20 persons charged." One of the crimes defined by this law was that of aggravated illicit association. 1989. In other actions.

on the grounds of Article 21 of the Constitution. The punishment for rebellion ranges from 8 to 25 years of imprisonment when the aforementioned crimes are committed: . 82. inhibited the president from exercising the military powers that the constitution conveys to him.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. g) Has well known connections with similar organizations in the country or abroad. The State contends: It has been proven in this case that they succeeded in seizing a military unit. 81. even though temporarily. The State likewise denies that the crimes were incorrectly determined as rebellion. 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: . as the petitioners charged by invoking the duty that the attackers had to take up arms in defense of the country. suppressing the federal organization. since it is impossible to conceive of the consolidation of its "plan of government" without some prior usurpation of that government.. h) Receives some help. at that time the President of the Nation. That would lead to an uncontrollable situation for a democratic government which is constrained by the rule of law.. eliminating the division of powers. even temporarily.. 79. and to overthrow the executive branch of government. In addition. f) Is composed of one or more officers or non-commissioned officers of the armed or police forces.rise up in arms to change the Constitution. abrogating the fundamental rights of human persons or suppressing or diminishing. 80. The seizure of a military regiment by a group of persons without the knowledge of the commander-in-chief of the armed forces. depose any of the public powers of the national government. the free exercise of its constitutional powers or its formation or renovation in legal terms and times. 78. the economic independence of the nation. exact from it any measure or concession or impede. 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 . 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..for the purpose of changing in a permanent manner the democratic system of the government. that they demonstrated sufficient skill and attitude to combat for 27 hours against naturally well armed military personnel and to inflict losses. assistance or direction from public officials.e) Operates in more than one of the political subdivisions of the country.

. the State contended that Law 23077 does not deprive the accused of the essential means of securing their rights. the Abella case produced a judgment based on a law in effect prior to the event.. In this context. the procedure that normally signifies.. Carlos Fayt. 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. 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 State further maintains that the single trial system is the only one consistent with the principles of oral proceedings. According to the State. through this review. The alleged violation of the right to appeal the decision of the San Martín Federal Appeals Court does not pertain. because of its immediacy. immediacy and free assessment of evidence. 4 85. Regular judges of the republic were involved and the accused were given sufficient opportunity to be heard and to produce evidence. the reply mentions that one of the members cast a minority vote in the ruling of the Supreme Court of Justice of Argentina." and consequently removes the question from the competence of the Commission.. 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. The oral trial is only the first stage of the criminal proceeding which. The State maintains that the special remedy meets the requirements defined by the InterAmerican Court. 83. To that end. to have the verdict overruled. 6 86. according to the State.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. 87.. 84. independently of and viewed within a set of stages that . Continuing with its analysis of the applicable legislation.this fact indicates that the scope of the remedy was enough. "capable of producing the result for which it was designed.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. However. the possibility of holding hearings in a public manner and a one-level trial. 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. The State concluded: . as would have occurred if the minority vote had been shared by the majority of the Supreme Court.into the arena of ideology and removes us from the strict application of pre-existing standards.. which was the grounds for this trial. The dissenting member.. The opinion of the Inter-American Court is also cited with respect to the remedy being adequate and effective. .. The State considers: ." 5 However. 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 special appeal filed by the defense was refused in the Abella case by the San Martín Federal Court. in the form of a special appeal. "without making." The attorney general considers in his opinion that "the anomie.are evidence of the absence of arbitrary or discriminatory conduct imputable to the Argentine system of justice. 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." 7 91. 90. and also demonstrate the securities afforded through respect for the principle of due process. The State's reply of February 1994 includes the major pieces of evidence of the Abella case in Argentina and assures that those documents: . It mentions the cases in which the appeal was in order under Argentine law. Therefore. 88. They advanced a similar request for nullity regarding the expert opinions advanced in the principal written documents. 89. Finally. 92. 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. As a result. 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 enter into what they define as not federal questions but ones that constitute arbitrariness. before the Supreme Court of Justice of the country. dismissal confirmed by the Supreme Court. . The State also argues that the petitioners had the opportunity to have the verdict reviewed under Article 14 of Law 48. the petitioners never had a higher court review the sentence in the Abella case. 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. a concrete and systematic critique of the principles" that were the grounds for rejecting the special appeal to the court. The State points out that the opinion of the Attorney General of the Nation dated October 11. consequently. 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.. 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.They term as arbitrary the consideration made by the judging court regarding the applicable rules of the Penal Code. However.constitutes the penal process.. In its second reply the State again addresses the issue of the special appeal. 1990. as argued. considers the appeal out of order owing to the repetition of the arguments that had already been made before the San Martín Federal Court. the defense attorneys filed a de facto appeal before the Supreme Court of Justice of the Nation..

and constitute a mere repetition of offenses already substantiated and resolved by the lower court.2. 1992.. the suppression of it in some hypothetical way would have altered the conclusion that was reached a quo. the Supreme Court of Justice of the Nation rejected the appeal. the State points out that Dr. 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.the appeal in question has been made up of isolated and independent written documents. consequently. 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. . 96. agreeing with the opinion of the attorney general. In relation to the "lack of independent grounds. Finally. 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." Fayt continues.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. Carlos Fayt: . in some cases using photocopies of presentations at the lower level.. the court stated: . 95. 93. 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.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.. The attorney general believes that the offense caused by the separate judicial investigation of the so-called "related cases" was not shown." pointed out by the attorney general. The State points out that the dissenting vote of judge Carlos Fayt in the ruling of March 17.the value of the presumably illegal evidence on the reasoning behind the verdict was of such standing that. 1992. 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.. In this connection. 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.h of the American Convention. by stating that the appellant did not succeed in demonstrating that: . with respect to the institutional gravity invoked by the defense. 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. were not corrected to lay the groundwork for constitutional issues arising as a result of the verdict reached.. as quoted by the State. On March 17. 94. which..

since the defense had the opportunity to present any element they deemed appropriate to support their case. In his letter.the judge was not able to appear at the barracks of RIM 3 until approximately 11:30 a. 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." as it was called. . 8 99. to the contrary.. 1984. on January 24.m. the judge decided to use for this case the procedure set out in Law 23077. That judgment concludes that Article 18 of the Constitution has the purpose of proscribing ex post facto laws and embodying guarantee of natural judge. the petitioners here. The State refutes the petitioners' contention regarding the impossibility of introducing new testimonial evidence and expert witnesses. It cites a decision of the Supreme Court of Argentina dated December 27. 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. was actually not such. The State points out that any of these parties had the right to formulate whatever objections or recusals they considered necessary. the office of the secretary of the court for the zone received a letter which noted the detention of Dora Molina. according to the State.1 of the American Convention. "Abandonment of jurisdictional responsibility. The State concludes its analysis of this question in the following terms: This is not..There was no abandonment of jurisdictional responsibility. At 3:30 a. On the same day. the judge gave a period of 24 hours to receive the full list of wounded. after the surrender. from the competent judges in accordance with the laws that pre-existed the commission of the acts but. 100. then. With respect to the alleged violation of Article 8. 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. but this work could only be undertaken when arms were put down. bearing in mind that the federal judge of Moron intervened immediately and started the investigation on January 23.m. 98.. Reviewing the juridical framework for the trial and the concept of "natural judge. where they were interrogated by members of the tribunal." 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. 1989. The expert witnesses that testified did so in oral public hearings. and information on persons who eventually died.97. a matter of having "removed" the persons on trial.. the type of wounds. which refers to the constitutionality of the new procedural standards. Daniel Gabioud Almirón and Miguel Angel Faldutti.. 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. the prosecution and the defense. that is. Juan Manuel Burgos. The State emphasizes: . 1989. Juan Carlos Abella. on January 24.

Motto. Molina. Gabioud Almirón. Díaz. all of those charged who made statements (except Faldutti and Puigjané) availed themselves of their right to answer only questions formulated by defense attorneys. The restrictions on the right to defense of the persons tried are also disputed by the State. that the deposition of Castañeda was equivalent to expert opinion. their family members and attorneys during the substantiation phase of the Abella case. which are different from acts of rebellion and aggravated illicit association. the value of the deposition by the witness Castañeda and the utilization of the intelligence material for the purposes of the verdict. The State refers to the so-called "parallel proceedings. 103. called Criminal Participation. Faldutti." and explains that these are judicial investigations undertaken as a consequence of a series of actions initiated by the persons on trial. An extensive application of Law 23077 in that sense: . and that the intelligence materials were not incriminating in the verdict. Those who gave oral statements were Abella.. the final decision to . Veiga.would have constituted a flagrant violation of the constitutional principles that protect the right of due legal process. "all of whom were recognized bar attorneys and many of them known as persons who worked for the cause of human rights. The verdict of the San Martín Federal Court deals with the questions regarding the following: . "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.. 1753 and 1754. and defines the pertinent procedures and penalties. Castro. 102. This government can add nothing to this. the safeguard of natural judge and the principle of equality. Puigjané. it mentions cases 1781. Acosta. Gabioud Almirón. which were investigated in Abella. Molina. Faldutti. Sebastián Ramos and Veiga.the placement in military installations of seized weapons." The reply continues stating in this connection that during the summary stage. In all of them. Motto and Moreyra). during the hearing. that would not be grounds for including them in a judicial case reserved expressly for a law covering crimes of a different nature. In that sense.. Moreyra. only 10 of the 20 persons charged gave declaratory statements (Abella. the State emphasizes that point IV of the reasons for the verdict by the San Martín Federal Court.. Its reply to the Commission maintains that these persons were defended by 22 private attorneys of their own choice. The State emphasizes that the evidence to make the case required the participation of 30 experts and some 20 forensic physicians who. The State also disputes the complaint regarding the intentional delay of the "parallel proceedings" for the purpose of achieving impunity. 105. Burgos. The State contends that these would be common crimes.. Burgos. Even if it had been proven that the crimes supposedly committed by Argentine state agents were violations of human rights. Castro.101. 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. During the hearing.It was stated there that the first was based on prior jurisprudence. As for determining the individual responsibilities of those tried in the Abella case.. 104. Puigjané.. contains a detailed review of that issue with respect to each of them.. Felicetti. 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.

the political position a person on trial takes cannot be the subject of prosecution. 1794. and considering that after the judgment in Case 231 cases have been pursued against military personnel who rose up against the constitutional order.. the State mentions the vote of Dr. 108. 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. similarly. Regarding the discriminatory treatment that Antonio Puigjané presumably received as a result of his status as a priest who advocates liberation theology. nor can it be. independently of the framework in which they have unfolded. Herrera. Díaz. it also reached the same conclusion regarding the investigation of the presumed statements by police and military personnel at military facilities." The reply also states: . as can whether they are part of some criminal action.. However. a member of the San Martín Federal Court. 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. 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 his opinions be that he would give regarding the framework of the legality and in connection with that political belief. the subject of penal prosecution.. The same occurred with case No. as well as case No. which investigated the death of Francisco Provenzano and others.Beyond this.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. In the same sense. 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. Equal treatment before the law 106. specific conducts of the person on trial can be examined. whose realm of application relates to events that took place before the restoration of democracy in Argentina in December of 1983. and consequently. Regarding the different treatment that military personnel have received. 109. 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.dismiss was not challenged. in any way.. 9969 regarding the disappearance of Iván Ruiz and José A. any reading that would attempt to draw a symmetry between what is a discretionary and exceptional power and the results of an open trial . The alleged violations of the principle of equality are also examined by the State. Finally. "absolutely discretionary. iv.

At noon he understood that the plan had failed and that the only objective achieved had been to stop the uprising. 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. Gorriarán Merlo pointed out that the identity of a Nicaraguan member. an officer of the MTP and a former member of the Ejército Revolucionario del Pueblo (ERP) guerrilla organization. v.. Final considerations 110. In effect.. to free the commanders.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. 111..in conformity with the law of the nation adopted much before the events of the case is out of order.the conduct described in that law fits the words of the person who publicly took responsibility for the events. he even thought that his colleagues might be aboard them. to put the special forces in control over the army and to make them into a major factor of power. 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. Their purposes were to get Alfonsín to resign. although ".what I wanted to do.I did not get into the barracks because the plan was a global one. We knew that the special forces were preparing an uprising.at an extremely high cost and ultimately with failure of the plan. that is. The State points out the statements that Gorriarán made when he was asked about the reasons behind the attack on La Tablada: . In August 1995." He himself took responsibility for the events in these terms: It was a collective political decision but I assume all the responsibility... In further reference to La Tablada. The interview was conducted on May 17... has just now been made public. was to stop the military pressures that the government was giving into on a regular basis. which also included a mobilization. he had participated in the revolutionary struggle in Nicaragua in 1979 along with us and he has been here in Argentina . The State also notes that the statements made by Gorriarán during the course of the interview indicate that: . 1995. the State remitted to the Commission a videotape containing an interview shown on Argentine channel TELEFE with Enrique Gorriarán Merlo. I am the person mainly responsible for it.. 113. and not me but all of us who participated there. because: .... José Mendoza by name. even though that responsibility was not assessed by the justice system in the same way because of his status as a fugitive.. Gorriarán said that when the military came out with tanks at 11 in the morning. We thought that if we were successful in seizing the barracks in the way it was planned. 112. He had been.

1994. whose pertinent observations were received by the Commission on May 19. 119. September 27 and October 4. to furnish the information requested. The information was sent to the State on February 15. the pertinent parts of the petition were sent to the State of Argentina requesting information within a term of 90 days. the Commission granted an extension of 30 days as from January 15. 1994. a hearing was held with the petitioners and the Commission. On February 2. The petitioners also sent a videotape of the events at La Tablada. the petitioners sent a new letter that repeated the original complaints. The reply then refers to the videotape that was provided by the petitioners to the Commission and to the State. 1994. 1993. On September 27. 1994. On October 18. The petitioners' observations were sent to the State on June 13.. had been grouped with common criminals for the purpose of minimizing their status as "political prisoners. the petitioners remitted additional information about the case in which they stated their discontent with the State's delay in responding. 1993. The Commission acknowledged receipt of the letters. both male and female. The letter stated that the imprisoned. 1993. 1994.. 118. Other letters were received from the petitioners on August 11 and 25. 117. and sent to the petitioners on March 30. 116. 1994. 1994. requesting information about the status of the case and urging the Commission to reach some decision regarding its admissibility.he died on the morning of the 23rd in combat. 120. A second hearing was held on January 27. In reply to a letter sent by the State on December 13." They requested that the Commission visit the prisons to verify their status since they considered that the lives of these persons were in danger. 1994. On that occasion.This shows that they had information which the court authorities did not have at the time.since 1987. They contend that . and added information about the violations of the rights protected by Article 24 of the American Convention. 1994. these persons presented a summary of the complaint. A reply was received from the State on February 18." II.. 121. between the petitioners and the State representatives. PROCESSING BEFORE THE COMMISSION 115. 1993. 1993. the same persons remitted a note containing a complaint that the prison conditions had been unnecessarily aggravated. On March 4. who were in different penitentiaries. On May 14.. 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. 114.

The State has not objected to the compliance with the formal requirements for admissibility of this case. 125. 126.the tape contains important evidence showing excessive repression and most of the other violations alleged. and made a summary of the present status of the victims. The subject matter of the petition is not pending in any other international proceeding for settlement. The petition was received on September 14. which was denied by letter dated August 16. Lidia Felicetti. Dagmar Alvarez de Ramos. and their jail conditions.1. as called for in Article 46.1. 1992. B. Internal remedies have been completely exhausted under Argentine law. 1992. III. as set out in the file.d has been furnished by the petitioners. 129. the State sent its reply to the observations of the petitioners. Marta S. 123. On July 5. 122. These remedies were fully exhausted with the rejection of the petitioners' appeal by the Supreme Court of Justice of Argentina on March 17. The group was made up of attorney Martha Fernández de Burgos. The reply contains the official version of the events. The petitioners requested a hearing during the ninetieth regular session of the Commission. 124. FORMAL REQUIREMENTS 127. After an extension. the State sent its final letter about this case on August 10. Almirón and Marisa Rodríguez. all relatives of the persons convicted or killed as a result of the events at La Tablada in January 1989. Beatriz Acosta. The petitioners' observations to the last State reply were received on March 9. 128. GROUNDS FOR INADMISSIBILITY .1. 1995. These persons reiterated the violations charged. within the six month period established in Article 46. 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. 1995. On January 9. ADMISSIBILITY A. 1996.b of the American Convention. which also included a copy of the previously mentioned videotape of the TELEFE interview with Enrique Gorriarán Merlo. 1995.a of the American Convention and Article 37 of the Regulations of the Commission. and the information required by Article 46. 1995.

that the theory of "fourth quasijudicial level" of the Commission not be applied to its case. Article 47 of the American Convention establishes the grounds for inadmissibility of petitions or communications presented to the Commission. the plaintiffs' allegations and other issues at bar had already been examined and decided upon by the judicial branch of State in Argentina ". 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. ii.. Position of the State 131. if requested by the Commission. as well as with obligations assumed by the State at the regional and international level. torture. 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..all in conformity with domestic law. In addition. The petitioners likewise maintain that their right to equality before the law was violated. the petitioners dispute the State's statements about the "fourth instance" nature that a review of their case by the Commission would have. 136. According to the State. The other complaints of the petitioners regarding the procedural standards applied. They reject the argument that the petition is based on a "mere difference of opinion about estimations and appreciations made by national judges. They believe that the State's reply deals with abstract matters. 133." To the contrary. 132. the petitioners indicate that the reply refers to criminal procedures in effect in Argentina. In its observations of May 14. they contend that their complaint refers to summary executions. the issues at bar were fully and fairly litigated in Argentina and thus. death of defenseless persons. i. In the letter received by the Commission on February 18. in the final analysis. the State expressed its concern regarding the petition because. 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. 1994." 134. and does not refer to a single one of the specific violations denounced. none of which had been addressed by the State. Position of the petitioners 135. 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. 1994.130. The petitioners requested in their letter of February 2. and executions of prisoners who had surrendered. However. bearing in mind the fact that the special appeal filed to overturn the conviction of the commanders of the . for the Commission to review those issues would be for it to act as a fourth instance. 1994.

f. These were given juridical certitude by the court. namely: a. Francisco Provenzano was arrested while alive and his body was later identified by his family members. contradicted himself repeatedly in court regarding this and other events. g. Carlos Samojedny. Ricardo Veiga. Iván Ruiz and Alejandro Díaz were arrested while still alive and are still disappeared. and included methods and weapons prohibited by the Geneva Conventions and its Protocols. his remains appeared to show the effects of a bomb explosion. later died without medical care. k. 1989. i.military dictatorship juntas from 1976 to 1983 in Argentina was decided by the Supreme Court in one year. arrested with serious wounds. Juan Manuel Murúa was in Company B of the barracks when it was destroyed by cannon fire and the roof caved in. The State ignored its jurisdictional responsibility during the evidence gathering phase of this proceeding when illegal evidence was introduced. and exceeded that which is provided for in Law 23077. e. Roberto Sánchez and Carlos Alberto Burgos were executed inside the barracks. j. examples being the crimes with which the defendants were charged. The force used by the State to recapture the base was illegal. d.m. The petitioners believe that the State has failed to reply to most of the specific allegations contained in their complaint. The attempts to surrender which began at 9:30 a. General Arrillaga. in charge of the operation." l. c. the latter of these was seen while still alive by his family members after mid-day on January 23. on January 23. 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. h. They attribute this difference in treatment to their status as civilians. unnecessary and irrational. as well as the so-called "parallel proceedings. the surprising close of the summary stage. the 43 expert testimonies and the 19 seizures made outside procedural law. The prisoners were tortured physically and psychologically in the barracks after their arrest. The violation of the right to equality before the law. Pablo Martín Ramos was arrested while alive and then summarily executed. Berta Calvo. his body has still not been identified and therefore he is included among the disappeared. 1989. were ignored. b. Numerous violations of due process took place. . 137. examples being reports prepared by the military intelligence services and evidence seized in illegal raids.

where the courts function according to a system of powers established by the Constitution and domestic legislation. The Preamble to the American Convention is clear in this respect. 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. 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 petition must be dismissed under this formula. 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.iii. then the Commission is competent to review. The "fourth instance formula" 138. 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. . Where it is clear that there has been a violation of one of the rights protected by the American Convention. when it refers to the reinforcement or complementariety of the protection provided by the domestic law of the American states. 140. 139. The nature of that role also constitutes the basis for the so-called "fourth instance formula" applied by the Commission. In democratic societies. The jurisprudence of the Commission regarding the "fourth instance formula" has been defined repeatedly since report 39/96. 144. However. if domestic remedies have been exhausted. 142. 10 141. or if it appears to violate any other right guaranteed by the American Convention. The effect of this rule is "to assign to the jurisdiction of the Commission an essentially subsidiary role". consistent with the practice of the European human rights system. 9 Below appear several of the grounds of that report which apply to this case. unless it considers that a possible violation of the Convention is involved. The international protection provided by the supervisory bodies of the American Convention is of a subsidiary nature. it is for those courts to review the matters brought before them. The Commission's task is to ensure the observance of the obligations undertaken by the States parties to the American Convention. 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. 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. 143. if it contains nothing but the allegation that the decision was wrong or unjust in itself.

e. A. 148. the Argentine State. ANALYSIS 146. Because the legal rules governing an internal armed conflict vary significantly from those governing situations of internal disturbances or tensions. 1989 is necessary to determine the sources of applicable law. 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. this case is admissible and therefore the Commission is competent to examine and decide on the fundamental issue of the violations charged. in turn.145. in support of their allegations that State agents used excessive force and illegal means in their efforts to recapture the La Tablada military base. and the trial of those same persons for the crime of rebellion in the Abella case. This. THE ATTACK AND RECAPTURE OF THE MILITARY BASE 147. 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". 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"). In order to facilitate the analysis of key events and issues raised in this case. 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. i. In their complaint.077. . this report will examine those events and issues under the following three headings: the attack on and the recovery of the military base. 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. petitioners invoke various rules of International Humanitarian Law. 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. the events that followed the surrender of the attackers and the arrest of their alleged accomplices. a proper characterization of the events at the La Tablada military base on January 23 and 24. IV. The petitioners have exhausted all domestic legal remedies as required by Article 46 of the American Convention. For its part. Consequently. 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. and there is no verification of any of the grounds for inadmissibility set out in Article 47 of the instrument. the law of armed conflict.

Instead. Situations of internal disturbances and tensions are expressly excluded from the scope of international humanitarian law as not being armed conflicts.13 (Emphasis supplied. but does not actually define "an armed conflict of a non-international character. which is characterized by a certain seriousness or duration and which involves acts of violence. . In contrast to these situations of domestic violence.riots. . Non-international armed conflicts under humanitarian law 152.) 150. Article 3 armed conflicts typically involve armed strife between governmental armed forces and organized armed insurgents. what principally distinguishes situations of serious tension from internal disturbances is the level of violence involved.14 151.12 the ICRC defined. to restore internal order.i. all disturbances which from the start are not directed by a leader and have no concerted intent. mass arrests of persons because of their behavior or political opinion. While tensions can be sequels of an armed conflict or internal disturbance. such situations by way of the following three examples: .isolated and sporadic acts of violence. . Common Article 3 simply refers to. the latter are . which do not necessarily degenerate into open struggle. requires the existence of organized armed groups that are capable of and actually do engage in combat and other military actions against each other. ii. or even armed forces.. 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. It is important to understand that application of Common . for example. they are governed by domestic law and relevant rules of international human rights law. 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 principle. in particular. as distinct from military operations carried out by armed forces or organized armed groups. albeit not exhaustively.situations in which there is no non-international armed conflict as such. Common Article 3 does not apply to riots."15 However. the established government has dissolved or is too weak to intervene. In these situations. the authorities in power call upon extensive police forces. According to the ICRC. that is to say. Internal disturbances and tensions 149. but there exists a confrontation within a country. It also governs situations where two or more armed factions confront one another without the intervention of governmental forces where. In its 1973 Commentary on the Draft Additional Protocols to the Geneva Conventions. the concept of armed conflict.16 Thus. mere acts of banditry or an unorganized and short-lived rebellion.other acts of a similar nature which incur. In this regard. .

iii. What differentiates the events at the La Tablada base from these situations are the concerted nature of the hostile acts undertaken by the attackers. bandits holding persons hostage for ransom.a military base. against a quintessential military objective . The line separating an especially violent situation of internal disturbances from the "lowest" level Article 3 armed conflict may sometimes be blurred and. . to repulse the attackers. despite the ambiguity in its threshold of application. Before addressing petitioner’s specific claims.. The Commission's competence to apply international humanitarian law 157. Common Article 3 should be applied as widely as possible.is instructive in this regard. The most difficult problem regarding the application of Common Article 3 is not at the upper end of the spectrum of domestic violence. and the nature and level of the violence attending the events in question. More particularly. thus. the attackers involved carefully planned. and President Alfonsín.18 153. A basic understanding of the interrelationship of these two branches of international law --human rights and humanitarian law-. iv. 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. not easily determined.e. Characterization of the events at the La Tablada base 154. coordinated and executed an armed attack. ordered that military action be taken to recapture the base and subdue the attackers.17 The Commission notes that the ICRC’s authoritative Commentary on the 1949 Geneva Conventions indicates that. as well as other rules relevant to the conduct of internal hostilities. When faced with making such a determination. 1989 can be properly characterized as a situation of internal disturbances. 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. the violent clash between the attackers and members of the Argentine armed forces triggered application of the provisions of Common Article 3. students throwing stones at the police. a military operation. but rather at the lower end. what is required in the final analysis is a good faith and objective analysis of the facts in each particular case. 155. exercising his constitutional authority as Commander-in-Chief of the armed forces. despite its brief duration. The officer in charge of the La Tablada base sought. 156. as was his duty. i.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. The Commission concludes therefore that. What happened there was not equivalent to large scale violent demonstrations. the direct involvement of governmental armed forces. or the assassination of government officials for political reasons -all forms of domestic violence not qualifying as armed conflicts.

and the 1949 Geneva Conventions share a common nucleus of non-derogable rights and a common purpose of protecting human life and dignity. both Common Article 3 and Article 4 of the American Convention protect the right to life and. The American Convention. none of these human rights instruments was designed to regulate such situations and. 19 Although one of their purposes is to prevent warfare. by its own case law. moreover. Therefore. thus. as well as the jurisprudence of the Inter-American Court of Human Rights. Such a result would be manifestly absurd in light of the underlying object and purposes of both the American Convention and humanitarian law treaties. 21 161. inter alia.158. In contrast. 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. As States Parties to the Geneva Conventions. These human rights treaties apply both in peacetime. Claims alleging arbitrary deprivations of the right to life attributable to State agents are clearly within the Commission’s jurisdiction. For example. 159. and its fundamental purpose is to place restraints on the conduct of warfare in order to diminish the effects of hostilities. much less. 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. This is because the American Convention contains no rules that either define or distinguish civilians from combatants and other military targets. 160. 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. Indeed. international humanitarian law generally 20 does not apply in peacetime. during situations of internal armed conflict that these two branches of international law most converge and reinforce each other. 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. they are obliged as a matter of customary international law to observe these treaties . prohibit. summary executions in all circumstances. they contain no rules governing the means and methods of warfare. 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. 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. 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. It is. the Commission’s competence to apply humanitarian law rules is supported by the text of the American Convention. specify when a civilian can be lawfully attacked or when civilian casualties are a lawful consequence of military operations. as well as other universal and regional human rights instruments. and during situations of armed conflict. Apart from these considerations. 162. thus.

they have assumed a solemn duty "to respect and to ensure respect" of these Conventions in all circumstances. 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. Thus. It is a general rule for the application of concurrent instruments of Human Rights --and Part II "Humane Treatment" [of . 166. where appropriate. 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. 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." 165. Thus. a complaint asserting such a violation. In this regard. on the basis of the fact that the Protocol is "lex specialis" in relation to the Covenant. which the State Party concerned has made operative as domestic law.in good faith and to bring their domestic law into compliance with these instruments. On the contrary. 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. during situations of interstate or internal hostilities. 164.22 163. Article 29(b) of the American Convention necessarily require the Commission to take due notice of and. In addition. most particularly. the American Convention itself authorizes the Commission to address questions of humanitarian law in cases involving alleged violations of Article 25. 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. this higher standard prevails. Properly viewed. 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). The Commission believes that in those situations where the American Convention and humanitarian law instruments apply concurrently. where it is relevant. give legal effect to applicable humanitarian law rules. can be lodged with and decided by the Commission under Article 44 of the American Convention. If that higher standard is a rule of humanitarian law. Article 29(b) --the so-called "most-favorable-to-theindividual-clause"-. On the other hand. Moreover. as States Parties to the American Convention. where there are differences between legal standards governing the same or comparable rights in the American Convention and a humanitarian law instrument. Thus.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. the close interrelationship between human rights law and humanitarian law also supports the Commission's authority under Article 29 (b) to apply humanitarian law. the Commission should apply it. when Protocol II in its more detailed provisions establishes a higher standard than the Covenant.

Article 27(1) does prevent a State from adopting derogation measures that would violate its other obligations under conventional or customary international law. 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. Thus. 168. i. for example. has written the following concerning Article 4 of the U. 171. 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. Rather.that they implement and complete each other instead of forming a basis for limitations.N. If it finds that the rights in question are not subject to suspension under these humanitarian law instruments. certain Convention based guarantees during genuine emergency situations. 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. Inasmuch as the content of Article 27(1) of the American Convention is. such as Common Article 3.Protocol II] is such an instrument-. 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. Their point is equally valid concerning the mutual relationship between the American Convention and Protocol II and other relevant sources of humanitarian law.. This Article permits a State Party to the American Convention to temporarily derogate.23 167.24 170. while it cannot be interpreted as incorporating by reference into the American Convention all of a State's other international legal obligations. 169. But. Covenant on Civil and Political Rights. In addition. suspend. other than the . 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. A past President of the Inter-American Court of Human Rights. is relevant to this discussion. the Commission should not resolve this question solely by reference to the text of Article 27 of the American Convention. 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.e. Professor Thomas Buergenthal. the derogation clause of the American Convention. in most material respects. 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. Thus. identical to that of Article 4(1) of the Covenant. Article 27(1) requires that any suspension of guarantees not be "inconsistent with that State's other obligations under international law". the Commission believes that a proper understanding of the relationship between applicable humanitarian law treaties and Article 27(1). it must also determine whether the rights affected by these measures are similarly guaranteed under applicable humanitarian law treaties.

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. nor of any other humanitarian law rules relevant to the hostilities at the Tablada base.077. government and dissident forces. . regardless of their bilateral or multilateral character. It should be understood that neither application of Common Article 3. the obligation to apply Common Article 3 is absolute for both parties and independent of the obligation of the other.. to interpret and apply Article 21 of the National Constitution and Law 23. and. Moreover. its jurisdiction does not extend to the conduct of private actors which is not imputable to the State. can be interpreted as recognizing the legitimacy of the reasons or the cause for which the members of the MTP took up arms. in the first instance. 175. . must bear full legal and moral responsibility for all the loss of life and material damage occasioned by its actions. both the MTP attackers and the Argentine armed forces had the same duties under humanitarian law. initiated and participated in the attack on the military base. In its Advisory Opinion interpreting the terms "other treaties" in Article 64 of the American Convention. in particular. Further. 174. 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 . Most importantly. Common Article 3's mandatory provisions expressly bind and apply equally to both parties to internal conflicts. application of the law is not conditioned by the causes of the conflict. Petitioners do not dispute the fact that the attackers captured in La Tablada planned. as a rule. Petitioners' claims 172. They contend. petitioners argue that because their cause was "just" and lawful. it is and was. 173. or whether they have been adopted within the framework or under the auspices of the inter-American system. must be fully applied in all circumstances .27 Therefore. the State. they assert that their prosecutions for the crime of rebellion was violative of the American Convention. the Commission must observe that. by virtue of its excessive and unlawful use of force in retaking the military base.was legally justified by Article 21 of the National Constitution which obliged citizens "to take up arms in defense of the Constitution.e.American Convention.26(Emphasis supplied). Unlike human rights law which generally restrains only the abusive practices of State agents. . and neither party could be held responsible for the acts of the other. Insofar as petitioners request the Commission to assess and approve of the motives for which their clients took up arms.25 v. 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". The Commission’s role is to ensure the observance of the obligations undertaken by States Parties to the American . its courts. however. for the Argentine State. i. The Commission believes that petitioners’ arguments reflect certain fundamental misconceptions concerning the nature of international humanitarian law." Consequently. . In addition. that the reason or motive for the attack --to stop a rumored military coup against the Alfonsín government-.

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. they thereby become legitimate military targets. 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.29 In order to spare civilians from the effects of hostilities. even if they had fought for the opposing party. 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. they are subject to direct individualized attack to the same extent as combatants. whether singly or as a member of a group. vi. when civilians. Thus. Persons entitled to Common Article 3's mandatory protection include members of both State and dissident forces who surrender. such as those who attacked the Tablada base. 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. those persons involved clearly assumed the risk of a military response by the State. As such. however. In addition to Common Article 3. that either the Argentine . 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. When they attacked the La Tablada base. assume the role of combatants by directly taking part in fighting. 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. 179.28 Based on the record.077 constitutes a violation of any of the American Convention’s provisions. by virtue of their hostile acts. 177. are captured or are hors de combat. In contrast. 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. the Commission does not find that the prosecution of petitioner’s clients for the crime of rebellion under Law 23.Convention. Application of Humanitarian Law 176. 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. 178. 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. 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. This does not mean.

petitioners in essence allege that the Argentine military violated two specific prohibitions applicable in armed conflicts. to substantiate their claims. the Commission was not able to see the white flag which supposedly was being waved from within the building by the MTP attackers. In evaluating petitioners’ claims. 183. 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. the ascertainment of crucial facts frequently cannot be made with clinical certainty. Upon repeated viewings and careful scrutiny of this second scene. and b) the use of weapons of a nature to cause superfluous injury or unnecessary suffering. . the Commission is mindful that because of the peculiar and confusing conditions frequently attending combat. 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. nor is there any indication of the precise moment when it took place. petitioners rely on a video tape. presumably from Argentine forces. which is being hit by a volley of gunfire. 1989 which unnecessarily prolonged the fighting an additional twenty-six hours and thereby resulted in needless deaths and suffering on both sides. In this connection. Apart from the testimony of the attack survivors. 11 and 13 of Argentina on the day of the attack. both parties were required to conduct their military operations within the restraints and prohibitions imposed by applicable humanitarian law rules. incendiary weapons. shows a very brief scene of a white flag being waved from a window. Rather. 181. in which the image is not very clear. as well as subsequent documentaries by the same stations and other footage that the petitioners considered relevant to their case. is not connected to any of the others on the video. tantamount to a denial of quarter. For example. which they submitted to the Commission. 180. The first of them. for the specific purpose of presentation to the Commission. specifically.military or the MTP attackers had unlimited discretion in their choice of means of injuring the other. however. Rather. and identified two different scenes which supposedly depict the attempted surrender. While the tape is an important aid to its understanding of the events in question. This first scene. With regard to their first allegation. it is an edited depiction of certain events which were compiled by a private producer at the request of the petitioners. 9. 182. the Commission believes that its probative value is nonetheless questionable. The second scene shows a larger image of one of the buildings inside the military base. namely: a) a refusal by the Argentine military to accept the attackers offer to surrender. The video tape is a compilation of news programs broadcast by channels 2. the tape does not provide a sequential and uninterrupted documentation of the 30 hours of combat at the base. The Commission carefully viewed the above mentioned video tape.

Because of the lack of sufficient evidence establishing that State agents used illegal methods and means of combat. however. 186. 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. If these persons. 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. The Commission must note that even if it were proved that the Argentine military had used such weapons. 188. But the precise nature of the weapon used that caused the explosion in not revealed by the tape. the Commission simply cannot conclude that the Argentine military employed such a device against the attackers. did not constitute violations of the American Convention or applicable humanitarian law rules.184. Although it prohibits their direct use against peaceable civilians. which include civilians who directly participate in combat. it does not ban their deployment against lawful military targets. the Commission must conclude that the killing or wounding of the attackers which occurred prior to the cessation of combat on January 24. 189. Nor does it show what was happening at the same time in other parts of the base where other attackers were located. the Argentine military might not unreasonably have believed that the white flag was an attempt to deceive or divert them. 187. 1989 were legitimately combat related and. As such. Thus. cited by petitioners. The reason for the explosion could be attributed to a weapon other than an incendiary device. continued to fire or commit other hostile acts. 185. for whatever reason. The Commission wishes to emphasize. 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. was not ratified by Argentina until 1995. 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. that the persons who participated in the attack on the military base were legitimate military targets only for such time as they actively . The Commission does note. thus. however. The video tape is even less probative of petitioners' claim that the Argentine military used incendiary weapons30 against the attackers. the Protocol does not make the use of such weapons per se unlawful. For example. The tape is also notable for what it does not show. it does not identify the precise time or day of the putative surrender attempt.31 Moreover and most pertinently. In fact. 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"). this instrument did not directly apply to the internal hostilities at the La Tablada. The video does show a fiery explosion in a structure presumably occupied by some of the attackers. that the fact that there were survivors among them tends to belie any intimation that an order of no quarter was actually given. 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. because of the incomplete nature of the evidence. In addition. In this connection. or as the result of a direct hit by an artillery shell that exploded munitions located within or near the attacker’s defensive position.

on January 24. there is . 191.life"). fell effectively within the power of Argentine state agents. 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. made up of the 13 people identified at the beginning of this report (paragraph 6 "Sentenced to prison . For purposes of establishing the existence of a forced disappearance. Iván Ruiz. petitioners' allegations of the forced disappearance of the above-noted individuals. 1989 State security forces proceeded to arrest some of the attackers. much less summary execution. 1989. before the main group surrendered. Notwithstanding the State's silence on this issue.33 That treaty provides. The main group. in whatever way.. of such wounded or captured persons would be a particularly serious violation of both instruments. Carlos Alberto Burgos. support. As to the allegations of disappearances. In this case. the petitioners base their claim on the fact that it was not possible to locate the remains of the alleged victims. The petitioners allege that the Argentine State carried out the forced disappearances of six people. much less deny or refute. the Commission does not believe that the information provided by the petitioners is sufficient to make a showing that Roberto Sánchez. or acquiescence of the state. perpetrated by agents of the state or by persons or groups of persons acting with the authorization. 192. who could no longer lawfully attack or subject them to other acts of violence. and the extrajudicial executions of four others. the Commission takes note of the fact that the Argentine State declined in its communications to the Commission to refer.m. Based on the information in this case. José Alejandro Díaz. and Juan Manuel Murúa have been victims of a forced disappearance by agents of the Argentine State. forced disappearance is considered to be the act of depriving a person or persons of his or their freedom. EVENTS FOLLOWING SURRENDER 190. although the evidence in the file tends to show that some of those persons were detained by State agents after their surrender. Those who surrendered. It should be noted that not all the attackers were in the same place on the morning of the second day. 193. after they were all in the custody of the military authorities who re-took the barracks. they did so at 9:00 a. Carlos Samojedny. were captured or wounded and ceased their hostile acts.32 B. 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. some of them were captured by the military authorities as the fighting continued. at Article II: . where they were urged to surrender by General Arrillaga. thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees. the principal source of standards is the Inter-American Convention on Forced Disappearance of Persons. In effect. The intentional mistreatment. the Commission can conclude that on January 24. while others surrendered.participated in the fighting.. was in the Non-Commissioned Officers' Club of RIM 3. Instead.

As such. Consistent with this relationship. The Commission's position. In its final brief. In that case. a duty to treat these persons humanely in all circumstances and to ensure their safety. supra 63. it cannot exercise them within a State's jurisdiction unless it has the cooperation of that State. In this regard. the Commission is not able to find that State agents hid the corpses of the six persons indicated as disappeared in the complaint. is consistent with the jurisprudence of the Inter-American Court of Human Rights in the Neira Alegría Case. under Article 1(1) of the American Convention and Common Article 3 of the Geneva Conventions. The State controls the means to verify acts occurring within its territory. was impossible. indeed several of them were seriously wounded. the Commission charged the Peruvian State with the violation of several rights protected by the American Convention. the petitioners themselves indicate that the mortal remains of some of the attackers were mixed up and that their identification. 194. 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. 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. Godínez Cruz Case. the burden of proof therefore corresponds to the defendant State. the prisons and then the investigations were under the exclusive control of the Government. 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. but instead. the Commission should emphasize that once the attackers were captured and disarmed. the State had. 141-142). consequently. and thereafter. Before beginning the analysis. Although the Commission has investigatory powers. the Court has said: [i]n contrast to domestic criminal law. was analogous to that of prison guards and the inmates under their custody. The Commission believes that the relationship between the State agents and the attackers at the time of their capture. In the absence of such evidence. 135-136. the Commission concludes that the factual and legal grounds necessary to make a showing of forced disappearance are not present in this case. the State must bear the burden of proving otherwise to the Commission. 196. because of the circumstances at the time. In previous cases.34 . they were plainly defenseless. expressed in the previous paragraph. and will proceed to analyze whether there was some other violation of the human rights of the persons mentioned. paras.not sufficient evidence to establish that the authorities have refused to recognize their deprivation of liberty or to report on what happened to them. the Commission finds that where the deaths of or injuries to such persons under the exclusive control and custody of the State are alleged. Therefore. (Velásquez Rodríguez Case. This evidence was or should have been at the disposal of the Government had it acted with the diligence required. 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. paras. 195. supra 63.

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. Their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality. but rather to protect the victims and to provide for the reparation of damages resulting from the acts of the States responsible. both against the State of their nationality and all other contracting States. during the procedure. between the different nature of the only two parties-in-interests. to strike a balance. 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. The second group. modern human rights treaties in general. 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. considering the facts alleged in the file. by way of contrast. 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 facilitate the analysis of each of the particular cases. . 199.35 198. i. and the American Convention in particular.36 200. the Commission believes a distinction should be drawn between the victims.. the InterAmerican Court has established that: The international protection of human rights should not be confused with criminal justice. the responses from the State to the Commission. 1989. The objective of international human rights law is not to punish those individuals who are guilty of violations. so as to prevent unacceptable inclinations motivated by wealth and power. in their purest form.. With respect to the particular features of the system for defending human rights. and all other evidence available. are not multilateral treaties of the traditional type concluded to accomplish the reciprocal exchange of rights for the mutual benefit of the contracting States.. States do not appear before the Court as defendants in a criminal action. The InterAmerican Court has said: ..197. the individual and the State. First Group: Allegations based on multiple direct testimony Carlos Alberto Burgos and Roberto Sánchez . 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. in addition to other information and data provided by the petitioners.

Miranda. accompanied by a soldier. They were then in the custody of Major Varanda. based on the similar testimony of the attackers and members of the military. In light of this information." 202.37 The same persons recognized Roberto Sánchez. 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. the videotape and press information from several media outlets that was supplied by the petitioners. Moreover. into the barracks. Iván Ruiz and José Alejandro Díaz 203. It cites the testimony given at the Abella trial of four soldiers (Aibar. commander in the re-capture of the barracks. and the Argentine authorities did not take the steps necessary to determine the cause of death of these two persons. 1989). 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. 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. depict the size of the security forces in charge of recapturing the barracks.201. whom he witnessed take them. they were fully covered by the rights protected in the American Convention and by Common Article 3 of the Geneva Conventions. Varanda presumes that Ruiz and Díaz had fled. The videotape provided by the petitioners shows the arrest of two persons whom they affirm are Iván Ruiz and José Alejandro Díaz. Roberto Sánchez. 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. 204. because of this.500 members of the security forces. General Arrillaga. explained that they likely escaped when taken to the infirmary. who allegedly surrendered with a serious injury. as discussed infra. 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. and Rojas) who recognized Burgos and Sánchez in photographs and stated that Burgos "was alive long after noon" (on January 23. the serious accusation concerning the executions of Burgos and Sánchez was not properly investigated in the domestic jurisdiction of Argentina. It was established in the Abella case. the Commission cannot accept the theory . Esquivel is on the list of persons killed in the confrontation. Medina. like Burgos. who in turn declared he had delivered them to a non-commissioned officer by the name of Esquivel. is listed by the Argentine authorities as having been "killed in combat. According to the complaint. Therefore. This theory was described as "fantastic" by the petitioners. Consequently. that both Ruiz and Díaz were taken alive by the State agents who recaptured the RIM 3 barracks. at rifle-point. Moreover. 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. since at the time of the surrender the military unit was surrounded by some 3. 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.

that the persons included in the second group were taken alive and thereby came under the control and custody of State agents. Carlos Samojedny. and Ricardo Veiga 206. and Veiga when they left through the door at the back of the building where they . whom. In contrast to the first group of persons. escaped after having been in the custody of the military.38 Amnesty International states the following regarding the case of Carlos Samojedny: Another prisoner. the psychologist. the Argentine State was absolutely silent on this issue. In addition. 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. Accordingly. Francisco Provenzano. who had the absolute obligation to provide them humane treatment and to prevent them from suffering any harm. after having been in the custody and exclusive control of the members of the military who retook the RIM 3 barracks at La Tablada. In that case. and that he allegedly was in the company of Díaz. the Commission finds that there is sufficient grounds to conclude that Iván Ruiz and José Alejandro Díaz were taken alive and later executed. ii. has "disappeared. Berta Calvo. Francisco Provenzano. with support. Pablo Martín Ramos. in violation of this duty. The petitioners allege that Carlos Samojedny. the Commission must first establish whether it is possible to affirm. Carlos Samojedny." The detainee Isabel Fernández claims that when she was lying on the ground. whose relevant parts are used in this report. despite the fact that it had the burden of disproving petitioners' claims regarding Díaz and Ruiz's fate. Motto. Second Group: Allegations based on Direct Testimony and Presumptions 205. 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. the person next to her identified himself as Carlos Samojedny. in respect of which the Commission considers the facts proven. 207. who were unarmed and seriously wounded. 39 208. Pablo Martín Ramos. To reach a determination as to these allegations of fact. Berta Calvo. they allege. 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. beat him after he identified himself. The non-governmental organization Amnesty International undertook a detailed study of the events at La Tablada.of the authorities according to which Ruiz and Díaz. unlawfully deprived these persons of their lives. the Commission must determine whether the State. and Ricardo Veiga were executed extrajudicially after surrendering to the Argentine security forces who recaptured the RIM 3 barracks. the Argentine State did not respond to these accusations in any of its communications to the Commission. As in the case of the allegations of forced disappearances.

the complaint indicates that he was in the part of the La Tablada barracks known as the "Guardia de Prevención. the forensic experts consulted by Amnesty International believe that in the case of Provenzano there were serious grounds for requesting a second autopsy. 1989. Francisco Provenzano. and that they remained under the control and custody of those agents. which was identified by relatives. 1989. after the attackers . 210. 1989. though wounded. Motto and Veiga. 212. and that a soldier told him he had escaped. The petitioners also allege that those persons heard her voice while she was being tortured to death by her captors. It should be noted that the image bears some similarity to the features and physical appearance of Ramos. nonetheless. 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. Claudio Omar Veiga declared that he had seen Provenzano surrounded by soldiers. These photographs were published by several press outlets in Argentina and other countries. who also were defendants in that case. to be persuasive and notes that it was not met by any objection by the State. The official medical examiner's report of January 25. Aguirre." 213. making it possible to try to undertake some type of later examination. on January 24. shows the cause of death of Francisco Provenzano as "total carbonization". 211. and Ricardo Veiga. First. which petitioners sent to the Commission. had eight bullet wounds to the body and one to the head. there is a dental report on the lower jaw that suggests that at least part of his internal structure was still intact. For example. and S. The complaint further states that Berta Calvo was also found alive. Pablo Martín Ramos. on January 23. 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. It then adds that he was "shot down before the television cameras. Ramos). With respect to Ricardo Veiga. at 9:00 a. 214.m. Nonetheless. and that he jumped from there when fire caused the roof to collapse at 4:00 p. Four of the attackers tried in the Abella case so testified (Paz. The petitioners' claim is based on what was said by attacker José Alejandro Moreyra. the State's autopsy did not make reference to that fact. 209. Rodríguez. made the same assertions in their statements before an investigative judge.m. Also according to the complaint.were. The Commission considers the above mentioned testimony on the circumstances surrounding the deaths of Carlos Samojedny. Although Provenzano's body was missing the upper jaw. there is a dental report only for the lower jaw. Motto testified that he had seen Provenzano surrender alive. Taken together with a series of other relevant facts and circumstances. and that he later heard a shot from a revolver with a silencer. Berta Calvo." or guards' quarters. this testimony permits the Commission to conclude that these persons were taken alive by State agents. Pablo Martín Ramos was taken alive and later executed by State agents. whom they allege to be Pablo Martín Ramos. when compared with another photograph of him taken shortly before the attack. His corpse. 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.

damn it! If there's any leftist we'll kill him later! They've killed our own. one can clearly hear the members of the military who are alongside the cameraman shouting the following words: Don't shoot. the Commission highlights once again that the State had the burden of refuting the allegation as to a violation of the right to life. Pablo Martín Ramos.surrendered. The Commission is mindful that the Argentine State. after having been taken prisoner. adopting the same attitude as it did before the local courts. 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. the operation for recapture is a tactical operation.40 The testimony and evidence provided. Therefore. Following the petitioners' account. Pablo Martín Ramos. of the terrain. who states that ". Berta Calvo. oral or written. 218. The same filmed material includes an interview with General Arrillaga. commander of the forces that recaptured the La Tablada barracks. Although it is difficult to identify the prisoners due to the distance. and taking into account the absolute silence on the part of the State. Berta Calvo. The tactical maneuver is the use of the material resources. were executed by State agents. the Argentine State has not undertaken an effective investigation to clear up the allegations. from the moment the latter surrendered. Berta Calvo. During the operation to recapture the barracks. they're our people! Don't shoot. and Ricardo Veiga were unlawfully deprived of their lives in those circumstances. The testimony of these witnesses are presented as credible. The Commission must now determine whether Carlos Samojedny. Pablo Martín Ramos. based on the relationship of control and custody between the State agents and the persons mentioned.. on the afternoon of January 23. Juan Manuel Murúa 219. For the purposes of providing a legal framework for that determination. The testimony of several attackers indicates that the persons mentioned. 1989 a part of the barracks known as "Company B. plus the presumptions mentioned. and Ricardo Veiga were summarily executed by agents of the Argentine State.. which had the burden of proof as to this aspect of the complaint. and have not met with the objection of the Argentine State in its communications with the Commission." 216. and seeks to annihilate the enemy. which the Commission has accepted as fully proven in the cases of the first group of attackers. the videotape shows a scene in which two attackers are taken into custody by the military. Francisco Provenzano. was hit with cannon . Francisco Provenzano. regarding the allegations that the human rights of the persons mentioned were violated. Francisco Provenzano. paint a well-defined circumstantial picture that enables the Commission to affirm that Carlos Samojedny. has never answered or made any statement. Furthermore. kill them! 215. In this regard." where Juan Manuel Murúa was situated. the Commission concludes that there are sufficient grounds to find that Carlos Samojedny. of the whole situation. the videotape provided by the petitioners has some very revealing parts.41 217.

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.

All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.230. but the judge. as personal punishment.. and by the Constitution and laws of Argentina. were detained in the same places and were under the control of the same authorities. 231. in violation of Article 5(2) of the American Convention. The concept of torture has been complemented and broadened by the Inter-American Convention to Prevent and Punish Torture. including their accomplices. 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. Accordingly. In effect. 1989. even if they do not cause physical pain or mental anguish. which provides: No one shall be subjected to torture or to cruel.. including those arrested outside the military base and later convicted as accomplices. and consequently decided to dismiss the case. or for any other purpose. as well as an apparent lack of will on the part of the State to conduct an exhaustive investigation to identify the perpetrators. determined that the five detainees named suffered "insults. as these persons were under the control and exclusive custody of State agents. the Commission finds that the twenty persons convicted in the Abella case in connection with the attack on the barracks at La Tablada. invoking domestic law.43 iv. ruled that there were no illegal pressure tactics or torture. 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. or degrading punishment or treatment. even though the judicial organs in the so-called "parallel proceedings" verified that the defendants had been seriously mistreated. the Commission considers fully proven that Luis Alberto Díaz. which provides in its Article 2: . the judgment of October 25. 233. The Commission takes into consideration the failure of the State to respond to all the serious allegations of torture. as a means of intimidation. 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 preventive measure. Investigation 234. harsh treatment. The Commission reiterates what it previously stated in this report with respect to the burden of proof. In view of the foregoing. Claudio Néstor Rodríguez. inhuman. were subjected to torture by agents of the Argentine State. . or lesions" when under the control of the State. 232. 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. which in this case too was clearly borne by the State. as a penalty. The Argentine State had the obligation to investigate exhaustively the serious allegations of violations of human rights protected by the American Convention. made by the defense attorneys of the accused in the Abella case.

and consequently they became final. and burns preceded or followed death. they came within the power and custody of those agents. The expert concludes that putrefaction does not preclude toxicology tests. one such corpse was covered by insects several days after the attack. the information required could not be supplied.44 237. 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. The attackers' alleged accomplices were similarly entitled to the same guarantees when they were detained by and remained in the custody of State agents. i. in any event. nor were photographs of the corpses attached. 240. the autopsies of the attackers that were studied do not offer information as to the precise nature of the injuries. The petitioners believe that this is part of a deliberate tactic aimed at ensuring that the autopsies were incomplete and deficient. The autopsies also lack information indicating whether other injuries. fractures. 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. The autopsy reports make reference to the putrefaction of the corpses to justify the omission of certain items of evidence and descriptions.45 The conclusions of one of the experts indicate that there was no description of the investigations where the events unfolded. 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. When petitioners allege and adduce evidence supporting violations of the rights of these persons in breach of that duty. In general. 236. In effect. the videotape provided by the petitioners focuses on the issue of the corpses abandoned at the place of the events.e. The State had a duty under the American Convention to treat these persons humanely and to protect them from harm. 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. In general. which were analyzed by forensic experts. The external . In effect. the State has the burden of refuting those allegations with credible evidence. 238.. 239. Another expert consulted by Amnesty International indicated that a close study of the autopsies reveals that they were superficial and inadequate. In addition. 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. which technically is not acceptable. Amnesty International had access to several autopsies of the persons killed at La Tablada (two soldiers. At the outset of this part of the report. It is the Commission's view that the Argentine State has manifestly failed to discharge its burden in this regard. which can be performed weeks and years after death. and six attackers from the MTP). that the obligation to investigate is a legal duty of the State and not as a step taken by private interests. there is sufficient evidence to indicate that there was general negligence in the handling of the issue by the State's representatives. one police officer. The Commission observes that.235. The Commission notes that the jurisprudence of the inter-American human rights system holds precisely to the contrary. which would make it possible to determine their gravity.

In view of all the evidence brought forth by the defense attorneys in Argentina. this offer was rejected by the Office of the Attorney General. contusions.. in general. nor have the persons responsible for the violations alleged been identified or punished." With respect to this provision. the State has not yet clarified what took place after the attackers surrendered at RIM 3 in La Tablada. This obligation implies the duty of the States Parties to organize the governmental apparatus and. impartial.. For example. the reports given by the forensic pathologists and radiologists are inconsistent. as well as other available evidence.examinations are limited to a description of the injuries caused by projectiles or burns. an international commission of forensic pathologists offered the Argentine State the services of experts to conduct the autopsies. The conclusions of the second expert also indicate that the dental reports that were performed are not compared to dental records prior to death. that could have occurred during the combat or after the surrender. The exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are. As a consequence of this obligation. all the structures through which public power is exercised. Consequently. In view of these difficulties. v. 241. and in that case the forensic pathologists determined that there were multiple fractures along with bullet wounds. as set forth in Article 25(1) of the American Convention..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. Under Article 1(1) of the American Convention. the testimony of the persons put on trial and of members of the military. but there is no reference to other injuries. 243. the . Some of the bodies of the soldiers and attackers were carbonized. Common Conclusions 244. 242. The State has failed in its duty to provide the victims with a simple and effective remedy that would protect them against such violations... and so are of little use. making it difficult to identify the corpses. therefore. so that they are capable of juridically ensuring the free and full enjoyment of human rights.. 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 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. and conclusive investigation into the serious allegations of violations of the human rights protected by the American Convention. or hematomas. the radiology report indicates that "there are no signs of projectiles and/or damage to bones" in the full-body X-rays. superior to the power of the State. the Commission believes that the State failed in its obligation to carry out an exhaustive. In several cases.

245. and refer to the totality of the Abella case. had petitioners been able as a matter of right to appeal their convictions to a higher court. with respect to the persons identified in the two previous paragraphs. Miguel Angel Aguirre. Juan Manuel Burgos. in relation to Article 1(1) of the American Convention. the right to defense. from the beginning of the investigation. Daniel Alberto Gabioud Almirón. Roberto Felicetti. In this case. Luis Alberto Díaz. 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. Claudio Néstor Rodríguez. in relation to Article 1(1) of the American Convention. .. In effect.States must prevent. Miguel Angel Faldutti. Sebastián Joaquín Ramos.. Sergio Manuel Paz. 247. the Commission concludes that the Argentine State has violated the right to judicial protection guaranteed by Article 25(1).. with respect to Carlos Alberto Burgos. the petitioners' characterization of the trial as "political and repressive". The complaints have been summarized at the outset of this report. primarily in respect of the following aspects: the legal classification of the facts. 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. Gustavo Alberto Mesutti. Dora Esther Molina de Felicetti. THE TRIAL 248. the petitioners have alleged several violations of the right to due process. Pablo Martín Ramos. José Alejandro Moreyra. that court could have been able to establish the existence of the due process violations alleged by petitioners and ordered appropriate relief. to the detriment of Claudia Beatriz Acosta. 246. Berta Calvo. and Ricardo Veiga. invoking Articles 8 and 25 of the American Convention. C. Finally. Carlos Samojedny. Isabel Margarita Fernández de Mesutti. and Claudio Omar Veiga. Based on the arguments and evidence analyzed. and the right to appeal to a higher court. Accordingly. Cintia Alejandra Castro. the competent judge. 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. José Alejandro Díaz. 249. and Juan Carlos Abella. the taking of the evidence. Juan Antonio Puigjané. Francisco Provenzano. Roberto Sánchez. the Commission concludes that the Argentine State is responsible for the violation of the right to life set forth in Article 4. investigate and punish any violation of the rights recognized by the Convention. Luis Darío Ramos. 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". Carlos Ernesto Motto. Iván Ruiz. the right to be presumed innocent.

086. 253. tried under Law 23. The inter-American system.48 251. and was in the immediate area around the La Tablada barracks on January 23.The right to appeal the judgment to a higher court (Article 8(2)(h)) 250. Guillermo Maqueda was a member of the MTP. to the following minimum guarantees: . Because the issue concerning the alleged violation of Article 8(2)(h) in this case is virtually identical to that in the Maqueda case. every person is entitled. like the European system. 254. with full equality. with respect to Guillermo Maqueda.recognizes the concept of "due process of law". In this regard. 1989. 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. 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. During the proceedings. He was arrested four months after the attack. 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. which was denied by the Federal Court of Appeals of San Martín on October . 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. the Commission had the opportunity to consider the same issue in Case 11. and convicted on June 11. One essential aspect of due process is the right to have a higher court examine or reexamine the legality of all judicial decisions that result in an irreparable harm or when that harm affects fundamental rights and liberties. 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... (h) the right to appeal the judgment to a higher court. Article 8 47 . 49 252. 1990. the Commission in its analysis of this issue will draw heavily from its decision in Maqueda.077.50 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. 255. 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.. Maqueda filed a special appeal ("recurso extraordinario"). such as personal liberty. which includes the prerequisites necessary to ensure the adequate protection of those persons whose rights or obligations are pending judicial determination. In so doing. According to the jurisprudence of the Inter-American Court.. in addition to the observance of substantive rights.

the right to appeal to a higher court. in principle. 1995. 260. among other rights. 259.077 by citing the basic principles of the draft legislation that was submitted to the Congress. pursuant to the law and guarantees. The Commission now sets forth its views concerning the purpose and characteristics of the right enshrined in Article 8(2)(h). The State tried to justify the nature of Law 23. some sort of 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. that motion was granted by resolution of January 17.53 The Commission views this remedy as a means of benefitting the accused. set forth at Article 8(2)(h). so as to protect his rights by providing a new opportunity to exercise his defense. the Commission adopted report 17/94 at its Session 1222 on February 9.51 While the right of review was not. a constitutional requirement at the time of the Abella trial. Consequently. which creates a special criminal procedure that does not include an appeal or a broad remedy before any appellate court. 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.054 and ratified by the Argentine State on September 5. when approved by Law 23. In the processing of Case 11. Therefore. which dismissed it on March 17. the cases in the federal courts could be governed by Congressional statute with or without review. The Commission filed to voluntarily dismiss the case before the Inter-American Court. Maqueda had his sentence commuted by the State of Argentina. became the supreme law of the nation. 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. nor did it determine the jurisdiction of the federal courts.077. the petitioners had only one opportunity to be heard and to present their case. 1990. and was thereby released from prison. provides ample protection of the right to appeal. The American Convention. in contrast to the European Convention on Human Rights and the Universal Declaration of Human Rights. the Commission determined that the Argentine State had violated.52 258. Nonetheless. 1992. 257. and by referring to the improvements in the justice system. The purpose of the review is to ensure the decision is a rational outcome of a fair trial. it does allow for the special appeal (recurso extraordinario) provided for in Article 14 of Law 48. 256. the case was settled under the friendly settlement procedure: Mr. They were tried under the procedural provisions of Law 23. it should be noted that the American Convention. pursuant to Article 31 of the Constitution then in force. In the instant case. 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. in and of itself. 1994. and of the proper application of the criminal law. together with the judicial guarantees provided for in Article 25. In that report.25. Finally.e. he filed an appeal directly before the Supreme Court ("recurso de queja").086. insofar as it constitutes an opportunity for the issues to be debated and confronted. the right of . Notwithstanding the broader guarantees provided by the oral hearing procedure. 1984.

264. the Supreme Court of Justice of Argentina interprets the application of the special appeal as of restricted scope. and that can only be reviewed in the specific cases stated in the law. 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 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. especially the right of defense and the right to due process. Such review is especially relevant with respect to those rulings that may result in defenselessness or cause irreparable damage in the final judgment.the accused to appeal to a second instance in the criminal procedure strengthens the protection against judicial error.. apply to every first instance judgment with the purpose of examining the unlawful application. the special appeal is exceptional. 265. 261. to meet the requirement of autonomous grounds required by Article 15 of Law 48. whenever they have led to an erroneous application or non-application of those rules. In the final instance. the special appeal exists to ensure constitutional supremacy. 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. the lack of application.. 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. In its denial of the complaint appeal filed by the defendants in the Abella case. The Commission also considers that to guarantee the full right of defense.. As such. and also with respect to the interpretation of the rules on the weighing of evidence. are to be submitted to the Court. the Commission must examine the nature of the special appeal provided for in Law 48. or the erroneous interpretation of rules of law based on the operative part of the judgment. under doctrine of this Court. 263. Accordingly. 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. 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. Based on the foregoing.54 . it is not a procedural level that is added on to every trial. the Supreme Court held: (5) That.. From the formal standpoint the right to appeal the judgment to a higher court to which the American Convention refers should. the only one available under Law 23. as well as to monitor the respect for fundamental rights of the accused. 262. and is limited to the federal jurisdiction. The remedy should also allow the higher court a relatively simple means to examine the validity of the judgment appealed in general.. such as those federal in nature. In general. in the first place.077. including the legality of the evidence. (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. In the Argentine legal order..

and consequently the arbitrariness of a judgment will not be considered solely on the ground the judgment is in error. and imposes a particularly narrow criterion for analyzing its origin.266. the interpretation of Article 21 of the Constitution. 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. the matters relating to the weighing of the evidence and the existence of mens rea in Maqueda's conduct.. but only extremely serious omissions or blunders. that this remedy is interpreted narrowly. 270. as has already been said. nor does it allow for examining the validity of the judgment appealed in a relatively simple fashion. The April 7. The special appeal in the Abella case was founded on the alleged nullity of the proceedings due to the irregularities of the proceedings. it is clear that the special appeal does not have the purpose of remedying decisions supposedly in error. given the limited nature of the appeal. 1995 judgment of the Supreme Court of Argentina in the case of Horacio David Giroldi (No. in practice the special remedy does not allow for legal review by a higher court of the decision or of all important procedural rulings. It should be noted. are questions of fact. Based on the foregoing. the doctrine of arbitrariness is exceptional in nature. and therefore it does not satisfy the guarantee whereby the accused may challenge the judgment. which was suspended. Maqueda: .55 267.. 32/93) --decided after it had rejected the special appeal in the Abella case-. arguing that the decision violated the right of defense at trial. At that trial. 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 wellfounded. The Federal Court of Appeals explained as follows in its denial of the special appeal brought by Mr. the legal analysis of the facts. handed down the same day as the previous case. the Supreme Court explained: As to the rest. or because its grounds may be called into question. . whose application is narrow. or in situations involving the selection and interpretation of the evidence and the application of the law that would have been appealed. and thus susceptible to review only by special appeal.56 268. and that the doctrine of arbitrariness imposes a particularly narrow criterion for analyzing its applicability. in view of the amount of the . the weighing of the evidence. including the sufficiency and legality of the evidence. Bearing in mind that the jurisprudence of the Supreme Court holds that the special appeal does not encompass a review of the procedure. In this regard.57 269. and finally. which the defense considered arbitrary. available only on an exceptional basis. It is a remedy of limited scope. Giroldi had been convicted by a Criminal Court ("Tribunal Oral en lo Criminal") and given a one-month prison sentence. merits disqualification as a judicial act.. which is foreign to the nature of the remedy. In the Argentine legal system the arbitrariness of a judgment is considered a federal question. The defense brought a writ of cassation ("recurso de casación"). it should be mentioned that in its judgment in the Maqueda case. and that the procedural limitation on the exercise of the remedy. Mr.is particularly relevant to issue under examination. lacking grounds. civil code law.. consequently this rule only applies in those situations where the decision. for the crime of attempted simple robbery.

Based on its analysis. 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" .. The National Chamber of Criminal Cassation ("Cámara Nacional de Casación Penal") rejected the argument of unconstitutionality and denied the motion for cassation. the Commission considers that the special appeal. iii. The Supreme Court ruled favorably on the complaint appeal. and of the five accomplices arrested the previous day and those who gave up voluntarily in the following days.penalty. In the particular circumstances of this case.m..077.. hooded. 271. . Consequently. 273. in such conditions it can be argued today. Survivors 222. the Commission concludes that the Argentine State is also responsible for violating Article 25(1) of the American Convention with respect to those persons. and rendered without effect the judgment appealed. it is up to this Court. The defense brought a special appeal against that decision... in this case.. that in situations such as procedural rulings. does not satisfy the requirements set forth in Article 8(2)(h) of the American Convention.077. 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. 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. citing as the basis for its decision the guarantee at Article 8(2)(h) of the American Convention. The complaint states that once under the control of the members of the security forces. the Supreme Court stated: 8. for otherwise the Nation would be liable before the international community. and subjected to an ideological interrogation accompanied by . 272.. the survivors were stripped. was a violation of the petitioners' right to appeal the judgment to a higher court as required by the Convention. 1989 at 9:00 a. 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 . accordingly. In the judgment in the Giroldi case. the application of the special criminal procedure provided for by Law 23.. 12. the denial of which led to a complaint appeal before the Supreme Court of Justice of Argentina.. . 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. was unconstitutional. the only remedy available against judgments issued pursuant to the procedure established in Law 23. Treatment of Survivors and Accomplices 221.. with a new basis.

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. until the moment the judge appeared. 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. the same judge stated: . even in the prison ward of the hospital." The judge concluded: . (a) It has been clearly determined that the detainees. 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. cited above. Claudio Néstor Rodríguez. shows that the number of injuries had dramatically increased during this period. as well as injuries and abrasions that indicated that he had been dragged along the ground. Sebastián Joaquín Ramos told the judge how a hood was placed over his head.. 224. 223. were subjected to insults. It also states that on Wednesday. and is convincing evidence of the violations of personal integrity of the five petitioners mentioned. indicates that Sebastián Ramos had multiple wounds all over his body. until he ordered the persons responsible to stop. the judge ordered the guards to remove the handcuffs and hood. harsh treatment. in relation to the study performed days earlier. they were allegedly hooded and subjected to beatings the while in transit. The judgment of dismissal issued October 25. nor even to determine that the events had occurred while Sebastián Ramos was in the hands of the police or prison authorities. the complaint regarding these events was processed before another court. when they had been deprived of their liberty and were under the exclusive control of agents of the Argentine State..physical and psychological torture. For reasons of competence. 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. cites police officials who declared at trial that they had seen the five detainees "hooded and handcuffed. 1989. 1989.. The complaint refers specifically to the cases of Sebastián Joaquín Ramos. but that the torture continued. at dawn they received medical care. which tell of new harms to the prisoners' health. 226. who were taken before the judge after having been brutally beaten. 1989.. and/or lesions. now complainants. This has been shown through their statements and the report of the medical examiners. Luis Alberto Díaz. Claudio Omar Veiga. and how he was beaten and kicked. and Carlos Motto.42 The following table reflects the comparisons from that report. including where he had bullet wounds. they allege that such treatment continued in the judge's presence.. The medical report for January 28. January 25. On those occasions. Continuing.

When the accused denounced the above noted violations. the withdrawal of an allegation. until the investigative judge took his statement. 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. generally. and threatened at the police station where they were held. These events were alleged to have recurred several times. which affected the twenty persons indicted in the case. Burgos. 1989. and was detained and held incommunicado. Puigjané and Castro 228. It is further alleged that they were then injected with a substance that made them lose all notion of time. The petitioners point out that the complaints were the subject of separate trials which they call "parallel proceedings". accusations. . 229. these offenses are . 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. nor those who ordered those characteristics of the detention.. The complaint also indicates that Cintia Alejandra Castro." (c) It also appears from the record that it has not been possible to determine the individual or individuals perpetrating such suffering. which distinguishes them from simple harsh treatment or insults. It is further alleged that he was then left without water or food for 30 hours. a statement incriminating someone else. together with the refusal by State agents to provide food to Abella and Gabioud until January 27. and threats. the defense attorneys filed several allegations and criminal complaints based on these facts.. was subjected to the same human rights violations as Puigjané and the others. beaten. 1989 were also insulted. It should be noted in this connection that under Argentine law.. as these require procedures that cause intense physical or emotional pain. after which the torture and an ideological interrogation continued. the judge allegedly justified the police actions. as a showing that they were used requires a special purpose. on January 23. 1989. The complaint alleges that the five persons arrested at 7:00 p.m. the other member of the MTP who came voluntarily before the court. The complaint indicates that he was subjected to an ideological interrogation amidst insults. In the Abella case. Molina. Accomplices Abella. (b) Nor can I find torture or application of torment. since a finding of torture requires "sufficient gravity. and Gabioud 227. 144 bis of the Criminal Code). or some information of interest for clearing up a fact.I cannot find that illegal pressure tactics were used (Art. Faldutti.. Capuchin priest Juan Antonio Puigjané came before the court on January 30. to obtain a confession..

the Commission finds that the twenty persons convicted in the Abella case in connection with the attack on the barracks at La Tablada. 233. The Commission reiterates what it previously stated in this report with respect to the burden of proof. in violation of Article 5(2) of the American Convention.43 iv.public criminal actions. were subjected to torture by agents of the Argentine State. but the judge. inhuman. or for any other purpose. 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. 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. 232. even though the judicial organs in the so-called "parallel proceedings" verified that the defendants had been seriously mistreated. 1989.. 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. as a preventive measure. including their accomplices. harsh treatment. invoking domestic law. as these persons were under the control and exclusive custody of State agents. The concept of torture has been complemented and broadened by the Inter-American Convention to Prevent and Punish Torture. as well as an apparent lack of will on the part of the State to conduct an exhaustive investigation to identify the perpetrators. 231. and therefore may be prosecuted by the Public Ministry on its own initiative. or lesions" when under the control of the State. ruled that there were no illegal pressure tactics or torture. Investigation . as personal punishment. and consequently decided to dismiss the case. 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. which provides: No one shall be subjected to torture or to cruel. or degrading punishment or treatment. The Commission takes into consideration the failure of the State to respond to all the serious allegations of torture. the judgment of October 25. as a means of intimidation. The Commission also notes that the twenty persons accused in the Abella case. In view of the foregoing. as a penalty. which in this case too was clearly borne by the State.. even if they do not cause physical pain or mental anguish. In effect. were detained in the same places and were under the control of the same authorities. the Commission considers fully proven that Luis Alberto Díaz. Accordingly. which provides in its Article 2: . All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. including those arrested outside the military base and later convicted as accomplices. Claudio Néstor Rodríguez. 230. determined that the five detainees named suffered "insults.

the autopsies of the attackers that were studied do not offer information as to the precise nature of the injuries. The Commission observes that. 235.e. made by the defense attorneys of the accused in the Abella case. fractures. and consequently they became final. 238. 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. which were analyzed by forensic experts. The State had a duty under the American Convention to treat these persons humanely and to protect them from harm. and six attackers from the MTP). It is the Commission's view that the Argentine State has manifestly failed to discharge its burden in this regard. . which would make it possible to determine their gravity. 239. In addition. and by the Constitution and laws of Argentina. i. 236. nor were photographs of the corpses attached. that the obligation to investigate is a legal duty of the State and not as a step taken by private interests. they came within the power and custody of those agents. The petitioners believe that this is part of a deliberate tactic aimed at ensuring that the autopsies were incomplete and deficient. 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. Amnesty International had access to several autopsies of the persons killed at La Tablada (two soldiers. one such corpse was covered by insects several days after the attack. The Argentine State had the obligation to investigate exhaustively the serious allegations of violations of human rights protected by the American Convention. In effect.45 The conclusions of one of the experts indicate that there was no description of the investigations where the events unfolded. The attackers' alleged accomplices were similarly entitled to the same guarantees when they were detained by and remained in the custody of State agents. there is sufficient evidence to indicate that there was general negligence in the handling of the issue by the State's representatives. The Commission notes that the jurisprudence of the inter-American human rights system holds precisely to the contrary. 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. and burns preceded or followed death. When petitioners allege and adduce evidence supporting violations of the rights of these persons in breach of that duty. At the outset of this part of the report. one police officer. In general. In general.. 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 any event. The autopsies also lack information indicating whether other injuries.44 237. the videotape provided by the petitioners focuses on the issue of the corpses abandoned at the place of the events. the State has the burden of refuting those allegations with credible evidence.234. In effect. the information required could not be supplied. 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.

.240.. In several cases.46 . Consequently. an international commission of forensic pathologists offered the Argentine State the services of experts to conduct the autopsies. as well as other available evidence. the radiology report indicates that "there are no signs of projectiles and/or damage to bones" in the full-body X-rays. 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. or hematomas. the State has not yet clarified what took place after the attackers surrendered at RIM 3 in La Tablada. Some of the bodies of the soldiers and attackers were carbonized. 243.. The external examinations are limited to a description of the injuries caused by projectiles or burns. this offer was rejected by the Office of the Attorney General.. which technically is not acceptable. which can be performed weeks and years after death. that could have occurred during the combat or after the surrender. 242. and conclusive investigation into the serious allegations of violations of the human rights protected by the American Convention. The expert concludes that putrefaction does not preclude toxicology tests. making it difficult to identify the corpses. contusions.. Under Article 1(1) of the American Convention. nor have the persons responsible for the violations alleged been identified or punished. therefore. For example. 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. v. as set forth in Article 25(1) of the American Convention.. but there is no reference to other injuries. The exercise of public authority has certain limits which derive from the fact that human rights are inherent attributes of human dignity and are. The State has failed in its duty to provide the victims with a simple and effective remedy that would protect them against such violations. Common Conclusions 244." With respect to this provision. 241. Another expert consulted by Amnesty International indicated that a close study of the autopsies reveals that they were superficial and inadequate. In view of all the evidence brought forth by the defense attorneys in Argentina. superior to the power of the State. the Commission believes that the State failed in its obligation to carry out an exhaustive. the testimony of the persons put on trial and of members of the military. and in that case the forensic pathologists determined that there were multiple fractures along with bullet wounds. the reports given by the forensic pathologists and radiologists are inconsistent. In view of these difficulties. impartial. The autopsy reports make reference to the putrefaction of the corpses to justify the omission of certain items of evidence and descriptions. 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.

Gustavo Alberto Mesutti. Roberto Felicetti. the competent judge. investigate and punish any violation of the rights recognized by the Convention. Berta Calvo. Carlos Samojedny. Francisco Provenzano. Carlos Ernesto Motto. invoking Articles 8 and 25 of the American Convention. Based on the arguments and evidence analyzed. with respect to the persons identified in the two previous paragraphs. C. the States must prevent. in relation to Article 1(1) of the American Convention. Dora Esther Molina de Felicetti. THE TRIAL 248. the Commission concludes that the Argentine State has violated the right to judicial protection guaranteed by Article 25(1). Sebastián Joaquín Ramos. Juan Manuel Burgos. the petitioners have alleged several violations of the right to due process. José Alejandro Díaz.. the right to defense. had petitioners been able as a matter of right to appeal their convictions to a higher court. from the beginning of the investigation. and refer to the totality of the Abella case. Juan Antonio Puigjané. Luis Darío Ramos. The Commission also concludes that the Argentine State is responsible for the violation of the right to physical integrity protected by Article 5. 245. in relation to Article 1(1) of the American Convention. so that they are capable of juridically ensuring the free and full enjoyment of human rights. Iván Ruiz. and Ricardo Veiga. 249. in relation to Article 1(1) of the American Convention. 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".. José Alejandro Moreyra. the taking of the evidence. with respect to Carlos Alberto Burgos. This obligation implies the duty of the States Parties to organize the governmental apparatus and. 246. the right to be presumed innocent. Roberto Sánchez. the Commission concludes that the Argentine State is responsible for the violation of the right to life set forth in Article 4. In effect. The complaints have been summarized at the outset of this report. As a consequence of this obligation. and the right to appeal to a higher court. Cintia Alejandra Castro. Daniel Alberto Gabioud Almirón. Miguel Angel Aguirre. In this case. and Juan Carlos Abella. 247. Pablo Martín Ramos. to the detriment of Claudia Beatriz Acosta. Isabel Margarita Fernández de Mesutti. Miguel Angel Faldutti.. Claudio Néstor Rodríguez. 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. the petitioners' characterization of the trial as "political and repressive". primarily in respect of the following aspects: the legal classification of the facts. Sergio Manuel Paz. Luis Alberto Díaz.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. and Claudio Omar Veiga. Finally. in general. that court could have been able to establish the existence of the due process violations alleged by . all the structures through which public power is exercised.

in addition to the observance of substantive rights. with full equality. Because the issue concerning the alleged violation of Article 8(2)(h) in this case is virtually identical to that in the Maqueda case. such as personal liberty. with respect to Guillermo Maqueda. One essential aspect of due process is the right to have a higher court examine or reexamine the legality of all judicial decisions that result in an irreparable harm or when that harm affects fundamental rights and liberties. 254. During the proceedings. (h) the right to appeal the judgment to a higher court. like the European system. According to the jurisprudence of the Inter-American Court.recognizes the concept of "due process of law". to the following minimum guarantees: . 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. 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.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. 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. 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.48 251... 253. 49 252. Accordingly. 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. 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. .086. the Commission in its analysis of this issue will draw heavily from its decision in Maqueda. In so doing.. every person is entitled.. which includes the prerequisites necessary to ensure the adequate protection of those persons whose rights or obligations are pending judicial determination. In this regard.petitioners and ordered appropriate relief. the Commission had the opportunity to consider the same issue in Case 11. The inter-American system. The right to appeal the judgment to a higher court (Article 8(2)(h)) 250. Article 8 47 . 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.

set forth at Article 8(2)(h). so as to protect his rights by providing a new opportunity to exercise his defense.e.077. nor did it determine the jurisdiction of the federal courts.077. 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. The purpose of the review is to ensure the decision is a rational outcome of a fair trial. the Commission adopted report 17/94 at its Session 1222 on February 9. 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. 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. 256. in and of itself. pursuant to Article 31 of the Constitution then in force. Consequently. 1992. Therefore. The Commission now sets forth its views concerning the purpose and characteristics of the right enshrined in Article 8(2)(h). it does allow for the special appeal (recurso extraordinario) provided for in Article 14 of Law 48. a constitutional requirement at the time of the Abella trial. and was in the immediate area around the La Tablada barracks on January 23.51 While the right of review was not. 257. the cases in the federal courts could be governed by Congressional statute with or without review. The Commission filed to voluntarily dismiss the case before the Inter-American Court. 1984.53 The Commission views this remedy as a means of benefitting the accused. some sort of review). it should be noted that the American Convention. Maqueda had his sentence commuted by the State of Argentina. in principle. that motion was granted by resolution of January 17. In the processing of Case 11. He was arrested four months after the attack. in contrast to the European Convention on Human Rights and the Universal Declaration of Human Rights. Nonetheless. the petitioners had only one opportunity to be heard and to present their case. and was thereby released from prison. which was denied by the Federal Court of Appeals of San Martín on October 25. Maqueda filed a special appeal ("recurso extraordinario"). 259. The American Convention. tried under Law 23.086. 1990. the Commission determined that the Argentine State had violated.52 258. 1995. among other rights. he filed an appeal directly before the Supreme Court ("recurso de queja"). the case was settled under the friendly settlement procedure: Mr. They were tried under the procedural provisions of Law 23. became the supreme law of the nation. 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. which dismissed it on March 17. Guillermo Maqueda was a member of the MTP. which creates a special criminal procedure that does not include an appeal or a broad remedy before any appellate court. pursuant to the law and guarantees. together with the judicial guarantees provided for in Article 25. .054 and ratified by the Argentine State on September 5. In the instant case. 1994. when approved by Law 23. 1990. In that report. Finally. 1989. and convicted on June 11. and of the proper application of the criminal law.255. provides ample protection of the right to appeal. the right to appeal to a higher court.

the special appeal exists to ensure constitutional supremacy. insofar as it constitutes an opportunity for the issues to be debated and confronted. 263. the special appeal is exceptional. 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. The State tried to justify the nature of Law 23. the Supreme Court held: (5) That. 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. as well as to monitor the respect for fundamental rights of the accused. From the formal standpoint the right to appeal the judgment to a higher court to which the American Convention refers should. In general. whenever they have led to an erroneous application or non-application of those rules. the right of the accused to appeal to a second instance in the criminal procedure strengthens the protection against judicial error. Notwithstanding the broader guarantees provided by the oral hearing procedure. 264. 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. it is not a procedural level that is added on to every trial. to meet the requirement of autonomous grounds required by Article 15 of Law 48. and by referring to the improvements in the justice system. in the first place. and is limited to the federal jurisdiction. Accordingly. The remedy should also allow the higher court a relatively simple means to examine the validity of the judgment appealed in general. 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.077. The Commission also considers that to guarantee the full right of defense.. and also with respect to the interpretation of the rules on the weighing of evidence.. 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. apply to every first instance judgment with the purpose of examining the unlawful application. especially the right of defense and the right to due process. In the final instance. the Supreme Court of Justice of Argentina interprets the application of the special appeal as of restricted scope. the lack of application. Such review is especially relevant with respect to those rulings that may result in defenselessness or cause irreparable damage in the final judgment. 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. including the legality of the evidence. 265. Based on the foregoing. are to be submitted to the Court. In the Argentine legal order. the only one available under Law 23. In its denial of the complaint appeal filed by the defendants in the Abella case.. such as those federal in nature. As such.260. the Commission must examine the nature of the special appeal provided for in Law 48. 261. .077 by citing the basic principles of the draft legislation that was submitted to the Congress. under doctrine of this Court. 262. or the erroneous interpretation of rules of law based on the operative part of the judgment.

Mr. as has already been said.(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. that this remedy is interpreted narrowly.. merits disqualification as a judicial act. and that the doctrine of arbitrariness imposes a particularly narrow criterion for analyzing its applicability. 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 wellfounded.. the Supreme Court explained: As to the rest. 1995 judgment of the Supreme Court of Argentina in the case of Horacio David Giroldi (No. and imposes a particularly narrow criterion for analyzing its origin. and consequently the arbitrariness of a judgment will not be considered solely on the ground the judgment is in error.54 266. and that can only be reviewed in the specific cases stated in the law.57 269. The special appeal in the Abella case was founded on the alleged nullity of the proceedings due to the irregularities of the proceedings. Based on the foregoing. Maqueda: . In this regard.. which the defense considered arbitrary. 270.is particularly relevant to issue under examination. including the sufficiency and legality of the evidence..55 267.56 268. the doctrine of arbitrariness is exceptional in nature. Giroldi had been convicted by . or because its grounds may be called into question. lacking grounds. which is foreign to the nature of the remedy. the weighing of the evidence. 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. it is clear that the special appeal does not have the purpose of remedying decisions supposedly in error. . the interpretation of Article 21 of the Constitution. consequently this rule only applies in those situations where the decision. In the Argentine legal system the arbitrariness of a judgment is considered a federal question. in practice the special remedy does not allow for legal review by a higher court of the decision or of all important procedural rulings. whose application is narrow. are questions of fact. it should be mentioned that in its judgment in the Maqueda case. the legal analysis of the facts. It should be noted.. the matters relating to the weighing of the evidence and the existence of mens rea in Maqueda's conduct. The Federal Court of Appeals explained as follows in its denial of the special appeal brought by Mr. Bearing in mind that the jurisprudence of the Supreme Court holds that the special appeal does not encompass a review of the procedure. and thus susceptible to review only by special appeal. and finally. It is a remedy of limited scope. nor does it allow for examining the validity of the judgment appealed in a relatively simple fashion. given the limited nature of the appeal. 32/93) --decided after it had rejected the special appeal in the Abella case-.. The April 7.. and therefore it does not satisfy the guarantee whereby the accused may challenge the judgment. handed down the same day as the previous case. or in situations involving the selection and interpretation of the evidence and the application of the law that would have been appealed. but only extremely serious omissions or blunders. available only on an exceptional basis. At that trial.

. 12.a Criminal Court ("Tribunal Oral en lo Criminal") and given a one-month prison sentence. which was suspended. in this case. does not satisfy the requirements set forth in Article 8(2)(h) of the American Convention. and rendered without effect the judgment appealed. arguing that the decision violated the right of defense at trial. Based on its analysis. The Supreme Court ruled favorably on the complaint appeal.077.. with a new basis. the application of the special criminal procedure provided for by Law 23. Consequently. was unconstitutional. In the particular circumstances of this case. and that the procedural limitation on the exercise of the remedy. 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. The defense brought a special appeal against that decision.. accordingly. the Supreme Court stated: 8. in such conditions it can be argued today. . for the crime of attempted simple robbery.. in view of the amount of the penalty. 273. In the judgment in the Giroldi case. the Commission considers that the special appeal.. 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 .. 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. The National Chamber of Criminal Cassation ("Cámara Nacional de Casación Penal") rejected the argument of unconstitutionality and denied the motion for cassation. 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" . 271. 272. for otherwise the Nation would be liable before the international community. that in situations such as procedural rulings.. The defense brought a writ of cassation ("recurso de casación"). was a violation of the petitioners' right to appeal the judgment to a higher court as required by the Convention.. .077. citing as the basis for its decision the guarantee at Article 8(2)(h) of the American Convention.. the Commission concludes that the Argentine State is also responsible for violating Article 25(1) of the American Convention with respect to those persons. the denial of which led to a complaint appeal before the Supreme Court of Justice of Argentina. it is up to this Court. the only remedy available against judgments issued pursuant to the procedure established in Law 23. .