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Part III
The judiciary during the Repression

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


A. Habeas Corpus

No official or extra-official procedure was left unexplored by the families of the disappeared. They appealed to the country's rulers and the most influential people in society, they went through all the administrative channels laid down by the Ministry of the Interior, they begged the various Churches to intervene, and reported their terrible experiences to national and international human rights organizations. Only on very few occasions did these measures bring any positive result.

The families also appealed to the law. They covered the whole range of possibilities offered by the legal process. In an overwhelming majority of cases, they took the most obvious step: they repeatedly filed writs of habeas corpus to establish where their loved ones had been taken and who was detaining them.

Habeas corpus is the fruit of a long and often difficult historical evolution. It has become the fundamental guarantee of freedom of movement and is, with good reason, the legal mechanism despotism hates most. A free and just society is almost unimaginable without it.

In our country, it has always been thought of as one of the implicit guarantees in our Constitution. It is the basic right to ask a judge to order, through a rapid, summary, procedure, the cessation of any action by an official which restricts the right of personal freedom. The magistrate must be informed if the beneficiary of habeas corpus is being detained, which official is holding him, the legitimacy of the detention, and also whether there is reasonable cause for arrest when it is ordered by the National Executive under a state of siege.

The statistics of the Federal Criminal Court are very eloquent in this respect. Not counting renewed applications, the number of writs presented in the period 1976/9 in Buenos Aires city alone reached 5,487 against 1,089 for the period 1973/5 and
2,848 for the period 1980/3. The same proportions, but with lower figures, apply in the main provincial cities.

It must be said, however, that not a single case of habeas corpus fulfilled the hopes put in it. A substantial modification, decreed in February 1976, already affected the summary and rapid nature of recourse to habeas corpus; this was ratified on18 May by Law 21,312 which greatly altered Article 639 of the Penal Code. This Article previously prescribed that, if the court decision secured the freedom of the protected person, he would without exception be released while an appeal was dealt with by a higher court. The revised wording stipulated in practice that if the beneficiary of the writ was arrested at the disposition of the National Executive, a decision in his favour to release him would not take immediate effect if the public prosecutor appealed against it. Since this was invariably the case, the protected person remained in custody while the appeal was dealt with. Through a succession of appeals the case went up to the Supreme Court and several years could pass, with the gravest consequences for the person urgently in need of protection. For an example of this we only have to look at the case of Capitman and Creatore referred to previously (page 388-90). Similarly, when a case reached the Supreme Court, the decision almost invariably went against release. The only known exceptions in the first five years of the de facto government were the cases of Timerman and Moya - although they were not released unconditionally either - and a few after 1982 when the Court decision was confinement in a particular town or expulsion from the country. In this way, all the verdicts from the lower courts in favour of release - either total or conditional - could not be put into effect until a final decision had been made in the Supreme Court (On 9 February 1984 Congress passed Law No. 23,050, which revoked the modification to the original text of Article 639 of the Penal Code, recognizing that appeal against a favourable decision by a habeas corpus judge should not postpone title execution of the release.). 

it is not surprising, therefore, that from 1973 on, judges did not manage to locate or rescue a single one of the many disappeared.

We can find only one reason for such a dramatic fact. The blueprint for the techniques employed in forcible and systematic abduction included eliminating recourse to habeas corpus from the constitutional guarantees in our country. This criterion for the government's position was set out in a statement attributed to General Tomás Sánchez de Bustamante by the Rosario newspaper La Capital, on 14 June 1980:

There are judicial norms and standards which do not apply in this instance: the right of habeas corpus, for example. In this type of struggle, the secrecy with which our special operations must be conducted means that we cannot divulge whom we have captured and whom we want to capture; everything has to be enveloped in a cloud of silence.

Such clear, explicit statements explain why in the majority of cases when a magistrate made official inquiries to the police, military or prison authorities as to the beneficiary of the habeas corpus writ, he accepted the standard reply which informed him that the person was not being detained. The authority against which the writ was issued was the very one whose negative response determined that the investigation be closed.

This deliberate withholding of information was, however, met by growing evidence brought by the families of the victims. The situation became more and more dramatic. Although government policy did not change in the slightest in this respect, the dubious verdicts of the Courts became more widely known. These illustrated just how large a part the lack of justice played in events.

Contempt for judicial authority was so blatant that it was necessary to instruct judges to carry their investigations further and to take the necessary measures to clarify the alleged facts themselves. To this end, the Supreme Court recalled that:

habeas corpus requires that all the judicial procedures which can reasonably be expected in the circumstances of the case be exhausted, so that the objective, the restitution of the liberty of the individual illegally deprived of it, be quickly and efficiently expedited. (Cases: Ollero, Inés; Giorgi, Osvaldo: Machado-Rébori-, Zimerman de Herrera; Hidalgo Solá, etc.)

The direction events were now taking prompted the government to adopt even more stringent norms for restricting the sacred guarantees for the protection of the individual more efficiently. We refer to the modification of Article 618 of the Penal Code, the original wording of which was altered by Law 22, 383 of 28 March, 1981.

As from that date, the Federal Criminal Court was designated the only body authorized to deal with writs of habeas corpus. It was impossible therefore to appeal to ordinary magistrates, at the very time when 'detention-disappearance' and arrests without trial were becoming more frequent. It was prohibited, then, to appeal to judges in the provinces, and this damaged the Constitution with respect to the federal organization of the country. This legal position remains unchanged, and represents an obstacle to the historically recognized right to file a writ of habeas corpus with a judge of one's own choosing.

In the face of this general state of defencelessness, not only was it useless for individuals to carry out the investigation which some court decisions encouraged, but the results obtained by the few judges who made desperate efforts to provide the required jurisdictional protection were distressingly few and far between.

Even when people opted to present cases for judgment under the ordinary procedures for preventing illegal deprivation of liberty, they came no closer to solving the problem, since a large majority of cases came to a provisional halt, given that, although certain judges were convinced that serious crimes had taken place, they had no means of clarifying the facts or the slightest possibility of punishing them.

The question was of a serious constitutional nature, inasmuch as there were no historical precedents of similar magnitude. It explains why our Supreme Court pointed out that the judges lacked the necessary conditions for exercising their jurisdictional authority, and that this meant the miscarriage of justice. It therefore advised the National Executive to speed up measures necessary to correct this situation and safeguard the individual liberty guaranteed by the Constitution (the case of 'Pérez de Smith and others' in various presentations).

While we recognize that the main responsibility for what occurred lay with the bodies which exercised a monopoly of state power, we feel it is only fair to point out that the judiciary did not urge firmly enough the exceptional measures needed in the circumstances to compensate for the loss of authority they faced. Not once did a judge go to any of the places controlled by the bodies issuing the false reports, If they had, they would have seen the grossly untrue version of events which had become public knowledge. They used no special methods of investigation, despite the fact that there was a general awareness of the extraordinary magnitude of the cases involved. And except for the timid steps taken by some of them in the final moments of the tragedy, they did not bring to trial a single person who due to his position in the repressive apparatus must have been directly involved in the disappearances under investigation.

It is inadmissible - and in this the judges should have concurred - for so many families to have been subjected to such an overwhelming feeling of impotence. On top of their fear, pain and grief, they had to endure the frustration of having no adequate legal channel to protect their rights. Recourse to habeas corpus, this simple but vital procedure which was considered the 'cornerstone of liberties', was totally ineffective in preventing abductions by force.

As we have said, thousands of writs proved to be nothing but useless formalities, offering no possibility of locating or releasing the individual illegally deprived of his freedom. In fact, habeas corpus totally failed to achieve what it was intended to do, since the formal way in which it was implemented operated in practice like the 'other face' of disappearance.

In no way can it be inferred from what we have said, however, that the failure lay in habeas corpus itself as a guarantee of liberty. It was made deliberately ineffective through the perverse exercise of power by a government which instructed officials to ignore the norms governing its application. The majority of cases mentioned in this report are examples of this.




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