Part III
The judiciary during the Repression

Nunca Más (Never Again) - Report of Conadep  - 1984
 

Once it has been clearly demonstrated that an enormous number of people disappeared and thousands of abductions were carried out involving the deployment of a great many vehicies and men, that big, well-organized detention and torture centres situated in densely populated areas housed hundreds of rapidly changing prisoners, and that the families of the disappeared exhausted practically all the available legal procedures, the following questions have to be asked: 'How could so many crimes with the same modus operandi and often with numerous witnesses be carried out with such impunity? How was it that judges failed to locate a single kidnap victim, even after the experiences of those fortunate enough to have been released had been public knowledge for several years? What prevented them from investigating a single one of those detention centres? These are painful questions, but they must be clarified.

After the Armed Forces took power on 24 March 1976, Argentine institutions were drastically subverted. A kind of 'executive-legislative-constituent power' was created. it assumed extraordinary governmental powers and supreme public authority.

The composition of the highest levels of the judiciary, that is, the Supreme Court, the Attorney-General, the Provincial High Courts, changed on the first day of the coup. At the same time all other members of the judiciary were suspended from duty. All judges, whether newly appointed or confirmed in their posts, had to swear to uphold the Articles and objectives of the 'Process' instigated by the Military Junta.

From then on, the activities of the judiciary assumed very distinctive features. Although intended by the Supreme Law of the Nation to protect citizens from excesses of authority, it now condoned the usurpation of power and allowed a host of judicial aberrations to take on the appearance of legality. With a few exceptions, it recognized the discretionary application of the powers of arrest under the state of siege, and accepted the validity of secret reports from the security services as justification for the detention of citizens for an indefinite period. At the same time, it turned the writ of habeas corpus into a mere formality, rendering it totally inefficient as a means of combating the policy of forcible abduction.

Instead of acting as a brake on the prevailing absolutism as it should have done, the judiciary became a sham jurisdictional structure, a cover to protect its image. Free expression of ideas in the press was denied through control of the mass media and through self-censorship practised as a result of the state terrorism unleashed on dissident journalists. Legal representation in court was seriously affected by the imprisonment, exile or death of defence lawyers. The reluctance and even complacency with regard to human rights shown by many judges complete the picture of a total absence of protection for Argentine citizens.

Nevertheless, there were judges who, in the face of tremendous pressure, carried out their duties with the dignity and decency expected of them. It is also true, however, that although it is a judge's duty to protect individuals and their property, many did not do so. Many who could have limited the abuses of arbitrary detention endorsed the imposition of sentences without trial. And many showed complicity with the abductions and disappearances by their indifference. People came to feel that it was useless to appeal to the judiciary for protection of their basic rights. This situation became so notorious internationally that a Swiss court once refused to extradite five Argentines even though all the requirements of the relative treaty had been met, on the grounds that the lives of the criminals, once extradited, could not be guaranteed.

Our conclusion is that during the period in which large numbers of people disappeared, the judicial process became almost inoperative as a means of appeal. Furthermore, it could almost be said that under the military regime, the right to life, security of person and individual liberty had little to do with the decisions of the judges; the sole arbiters of these decisions were the members of the State's repressive apparatus.

The following cases are eloquent proof of this: