Part III
The judiciary during the Repression

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

Testimony of Gustavo Caraballo - File N° 4206

During the night of 1 April 1977 1 was abducted from my home by four or five armed persons in civilian clothes who claimed to be members of the Army. They put me into a Ford Falcon, and went to pick up two other people - the journalist Maríano Montemayor and Horacio Rodríguez Larreta. When we reached the Plaza de Mayo we were hooded and the car drove off towards the south of the city. After about thirty or forty minutes we arrived at our destination, still hooded ...

On my second day there General Camps arrived and I was taken to see him without a hood on.

I was then taken to a room on the same floor where I was ordered to undress and take off my ring. They threw water over me and tied my hands and feet to a bed with a metal frame. While they interrogated me they applied an electric current to all parts of my body, for an hour and a half. One of the torturers had the same voice as the person in charge of the place whom they called Darío. Another person in charge had a surname like Cosani or Cossani, and I subsequently learned that he had been decorated by Camps. A week later they transferred me in a pick-up with ten other people to a place near there, not more than ten or fifteen minutes' drive away. It was a two- or three-storey building.

Women were being detained on the third floor, and one of them had a baby while I was there.

I was there for eight days and was then transferred to the police station in Bánfleld, a journey of about five minutes. My detention was made official and I was held at the disposition of the National Executive.

This lamentable situation of contempt for individual rights was widespread, but the courts made no decisive attempt to challenge it. Only on very few occasions, and then very timidly, did they fulfil their duty of assessing the appropriateness of the order for arrest in relation to the objectives of the state of siege. Nor did they consider the duration or form of detention with a view to preventing the application of penalties or sentences without trial. The facts show that in only one case did a court decision obtain the release of a person detained at the disposition of the National Executive.

The right of option to leave the country also disappeared. It was suspended by an Institutional Act of 24 March 1976, and Law 21,275 of 29 March 1976 invalidated all applications, no matter what stage the formalities had reached. This resolution was endorsed by the Supreme Court in the Ercoli case, according to which when the suspension of the right of option was for a limited period of time, then the measure was no longer arbitrary and unreasonable.

Some idea of the attitude adopted by the de facto judicial authorities in this matter is illustrated by the case of a doctor, Alfredo Felipe Otalora de la Serna, who was arrested on 19 November 1975 and put at the disposition of the President under the state of siege. He duly solicited his constitutional option to leave Argentine territory in order to get out of prison. Because of the excessive delay in settling the matter, a writ of habeas corpus was presented and the then Federal judge Dr Eugenio R. Zaffaroni passed a favourable judgment, requiring the President to allow him to travel to another country.

Immediately following the judge's decision, the above-mentioned law suspending this option was passed. This law would not have been expected to apply retroactively to those whose exit permits had already been granted by a judge, However, Federal Judge Dr Rafael Sarmiento did not put the resolution into effect for the following reason: the conditions under which the decision was made no longer applied since Article 23 of the Constitution - which recognized the right of option - had been replaced by Article I of Law 21,275 which suspended this right. This was a law passed by the Military Junta in exercise of its constituent power, an institutional and doctrinal position passively recognized by the Supreme Court.

This same judge then informed the National Executive that the necessary steps
should be taken to legislate the change in the right of option to leave the country (La Nación 30 May 1976).

They were not long in complying. They established a procedure which first prevented the relevant application from being presented until 90 days after the date of arrest. Then it would take 120 days for the National Executive to process the application and, if refused, a new application could not be made until six months after the first refusal. This was a real calvary for a person who, without any judicial charge against him, was meanwhile suffering extremely harsh prison conditions, permanent maltreatment and the anguish of knowing that he might be killed by the application of the 'escape law' during some sudden prison transfer, or that his eventual release might be used as a cover for his disappearance.

We can see that the Military Government left no stone unturned in the suppression of individual rights, and the judges designated by the de facto authorities complied.

In May 1981, the Supreme Court set a precedent which was the first sign of a reaction to such a complete abdication of its duties in restraining these activities.

In the Benito Moya case, after the National Executive again refused him permission to leave the country, it decided to grant a period of fifteen days to choose between authorizing the exit permit or changing the status of detention to 'conditional release'.

Moya was nineteen when he was arrested in 1975, He was detained at the disposition of the National Executive and only brought to trial four years later, accused of belonging to a subversive organization. The charge was not proven because of lack of evidence, but he was not released. Repeated applications to take advantage of the right of option were refused, On 9 June 1981, the National Executive complied with the Supreme Court ruling and changed the status of his detention to that of 'conditional release'.

The detention of persons for an indefinite period, without precise charges, without trial, without defence counsel or any effective defence measures, constitutes without doubt a violation of human rights and the due process of law. This is much more serious if we remember that prisoners were judged and absolved by civil or military courts, but still remained at the disposition of the National Executive. When the period of detention is longer than the time required to collect enough evidence to bring the prisoner to trial, then its raison d'itre is only maintained by the crudest and most wilful repression. From what we have seen this was commonplace during the government of the Military Junta.