The views expressed in this article belong to the authors and do not necessarily represent those of The Argentina Independent.

During my first trip to the country in 2007, one interviewee wryly joked that justice in Uruguay had two speeds: “slow, and very slow.” Since then, however, things have changed; so much so, that in the first four months of 2013 the flurry of events and developments regarding prosecutions for the crimes of the dictatorship has, at times, been difficult to keep up with.

Caricature “Suprema Corte de Uruguay sancionó jueza actuante contra crímenes de la dictadura” by Carlos Latuff

In our earlier pieces on the transfer of judge Mariana Mota and the sentence of the Supreme Court of Justice in February and March this year, we voiced several concerns including possible delays to the numerous human rights cases that Judge Mota was in charge of, as well as the Supreme Court’s blatant disregard for international human rights law provisions. A further fear was that the traditionally conservative Uruguayan judiciary would adhere to these signals from the Supreme Court and passively resign itself to closing down all investigations and prosecutions into past human rights violations. Indeed, during the 1980s and 1990s, only a handful of judges and prosecutors dared to defy the structure of impunity embodied in the Ley de Caducidad amnesty law. Those who did paid a high personal and professional price, as in the cases of Alberto Reyes and Alejando Recarey, who were consequently transferred to different jurisdictions in 1997 and 2003 respectively.

History Repeating Itself?

The beginning of 2013 had begun to feel like a serious bout of déjà vu. Out of the fifteen unconstitutionality appeals lodged with the Supreme Court’s regarding law 18.831, the tribunal has already deliberated on eight, judging in all but one in favour of the crimes being subjected to statutes of limitations and therefore being shelved invoking the principle of non-retroactivity of criminal law. Supreme Court Judge Jorge Ruibal Pino, furthermore, stated in early April that none of the cases of past human rights violations would prosper and that they would face “a wall” in the Supreme Court. In addition, criminal judge Roberto Timbal managed to archive a 1978 political murder by applying the Supreme Court’s jurisprudence, which deemed it not a crime against humanity but a common crime. Judge Fanny Canessa likewise shelved another case of past human rights violations a few days later siding with the Supreme Court’s stance. All these developments were met with pithy mocking by one lawyer who, playing with the country’s official name – Oriental Republic of Uruguay – called it la República Impune del Uruguay (the Unpunished Republic of Uruguay), highlighting once again the consolidation of impunity for past atrocities.

Recent developments in the country were unsurprisingly met by a wave of international condemnations, including by Amnesty International, the UN High Commissioner for Human Rights, the Center for Justice and International Law, and the Inter-American Commission on Human Rights. More recently, the Inter-American Court of Human Rights also unequivocally rejected the Supreme Court’s argument regarding the statute of limitations and went as far as saying that it constituted an obstacle to the full compliance with the 2011 verdict of the Inter-American Court in the Gelman vs. Uruguay case.

Supreme Court of Uruguay (Photo courtesy of Wikipedia)

Domestic Challenges to Impunity

While international criticism of these developments is foreseeable, there are signs of apparent winds of change blowing from within the judiciary itself. In a significant twist in the fight against impunity in Uruguay, judges and prosecutors have begun to take a stand against the closure of investigations into the dictatorship’s crimes, throwing down the gauntlet the authority of the Supreme Court.

On the very same day the Supreme Court released its first sentence on the statutory limitations (February 22, 2013), the Appeals Court No. 1 unanimously argued that investigations into the crimes committed during the dictatorship should continue so that those crimes would not go unpunished; further, in a second sentence, the same tribunal contended that, the jurisprudence from the Supreme Court notwithstanding, Uruguay was obliged to prosecute and punish such atrocities in compliance with the Gelman verdict.

More recently, in the aftermath of Ruibal Pino’s combative statements, five criminal public prosecutors presented an appeal against four of the five Supreme Court judges calling for them to be put aside in future sentences relating to the crimes of the dictatorship. The prosecutors maintained that Ruibal Pino had “pre-judged” in the cases – violating the principle that bodies can review their decisions and listen to other arguments – and as such, he and the other three judges should no longer adjudicate on them. Such a direct challenge against the Supreme Court is an unprecedented step and it is unclear what will happen next; normally, judges from the Appeals Court are selected to temporarily substitute Supreme Court judges. However, this is the first time that four out of five judges are being called upon to recuse themselves from considering cases.

Libertad prison, formerly a detention centre during the military dictatorship (photo by elNico on flickr)

Over the past couple of days, two criminal court judges have also gone against the Supreme Court. Judge Beatriz Larrieu – who has taken over Mota’s tribunal – rejected the petition to close down the investigation into the death and torture of Norma Cedrés that occurred between 1975 and 1978. In her resolution, Larrieu had a two-fold argument. First, she claimed that those crimes amounted to crimes against humanity and were therefore not subject to statutes of limitations; second, the judge argued that the Ley de Caducidad had blocked all investigations into human rights crimes since 1986 and therefore the statutory limitation should only begin to be counted from 2009, when the law was declared unconstitutional by the Supreme Court. Just a few days later, judge Juan Carlos Fernández Lecchini – without deeming it necessary to deliberate on the issue of crimes against humanity – considered that the 1977 assassination of Julio Castro by the dictatorship had not expired given that between 1985 and 2005 the state had been unable to prosecute the crimes of the dictatorship due to the application of the Ley de Caducidad.

While it is still too early to say whether these attempts will be enough to guarantee that past crimes will not go unpunished, it is nonetheless important to recognise the significance of these developments, which suggest that things are changing in Uruguay. Following in the steps of judges Mota, Reyes, Recarey – as well as those of other individuals such as former prosecutor Mirtha Guianze and human rights lawyer Pablo Chargoñia who led landmark prosecutions such as that into the disappearance of Elena Quinteros in 2002 and 2003 – judges and prosecutors in Uruguay are no longer willing to silently tolerate impunity and are ready to fight for justice.

Dr Francesca Lessa is a specialist in issues of justice and human rights in Uruguay based at the Latin American Centre and St. Anne’s College, University of Oxford.

Pierre-Louis Le Goff is a research assistant at the Latin American Centre, University of Oxford, and a member of the committee for Crimes Against Humanity at the Permanent Assembly for Human Rights (APDH), Buenos Aires, Argentina.

The Civil and Commercial Appeals Court in Buenos Aires has ordered that Articles 41, 45, 48, and 161 of the controversial new Media Law are unconstitutional. A long decision was issued today by the judges Susana Najurieta, Francisco De las Carreras, and Ricardo Guarignoni and the details of their decision are still to be announced.

The ruling is the latest in the case brought by Grupo Clarín, the largest media conglomerate in Argentina and – according to some sources – South America.

The saga began in 2009 when the new Audiovisual Communication Services Law 26.522, known more simply as the ‘Media Law’, was passed in both houses in October 2009. Grupo Clarín, and other mass media enterprises, immediately raised the question of constitutionality of some of the articles, leading to various rulings in the case.

In December 2012, judge Horacio Alfonso stated the law to be valid and rejected Clarín’s objections, but Clarín quickly won an extension on the injunction of the law.

And so the saga continues on its way to the Supreme Court. It has already intervened in this case before but will now only rule on the validity or constitutionality of these four articles. A sentence is expected by the end of the year.

The US Supreme Court could get involved with a hedge fund case dealing with an alleged debt of US$2.5bn owed by Argentina due to defaulted bonds. The Supreme Court requested that the Obama administration provide advice on the case on Monday.

The Argentine ship ARA Libertad was detained last year by hedge fund Elliott Management, which backs an investor lobbying group.
(Photo: wikipedia)

Elliott Management Corp. and affiliate NML Capital Ltd. is seeking payment for transgressions pertaining to Argentina’s economic collapse and default in 2001 and 2002. The case currently being appealed required that Bank of America and Banco de la Nación Argentina submit the requested information about the assets of Argentina.

The US Foreign Sovereign Immunities Act has been cited to protect Argentina, claiming that the information about the assets would not have to be turned over because the Argentine instances are all outside of the jurisdiction of the US law. EM Ltd. of Kenneth Dart is, like NML Capital Ltd., seeking to gain funds it claimed to have won in court cases in the US, but it is not involved in the appeal overseen by the US Supreme Court.

Last August, a US appeals court ruled that there were issues with NML demanding the information regarding the assets from the nation, this should not impede them from getting the information from other sources.

This is the latest development in many recent rulings and appeals connected to hedge funds on Argentine debt from the 2001-2 economic crisis.

President Fernandez speaking in congress (photo courtesy of Casa Rosada)

On 2nd March, President Cristina Fernández de Kirchner inaugurated the parliamentary year following the summer recess. Nearly three hours into her speech, having saved the best for last, she put forward a set of controversial judicial reforms that had been the political talk of the town for the last few months, ever since the term “democratisation of justice” was coined by the president herself on the wake of the Marita Verón ruling. The package of proposals outlines a number of measures aimed at an overhaul of part of the judicial system.

Ever since the announcement, there has been a widening chasm between supporters of the proposed judicial reforms, and those who are against it. Its most vocal supporter, the president herself, heralds it as they key to “democratising” the country’s judicial system. Its supporters have described it as “brilliant”, whilst those who have fallen foul of the plan accuse the government of meddling with the justice system, and seeking to consolidate its control over it. The very definition of the presidents’ powerful rhetoric of “democratising” the system is being played out amongst the two opposing camps.

The Magistrates’ Council Reforms

First, and most controversially, is the suggestion that all members of the Magistrates’ Council, a body that oversees the selection and running of the judiciary, ought to be elected by the citizens. The idea and subsequent implementation of a magistrates’ council in the Argentine justice system was imported from Europe via the 1994 constitutional reform which sought to redress the balance of power within the system – stemming from fears of a judiciary which was no longer independent in the wake the so-called ‘Menem years’.

The council, described by Martin Bohmer, senior analyst at Centre for the Implementation of Public Policies for Growth and Equality (CIPPEC), as a “counter-majoritarian force in the separation of powers in the structure of a constitutional democracy” has come into grief due to the fact that the judges, with the power to decide the constitutionality of laws, are a political power. Thus, in his words, the council was inevitably going to find itself “bitterly political” despite efforts to the contrary. According to Bohmer, the crux of the debate thus hinges on, “the tension between the members of the council (whose job it is to check and balance the majoritarian powers of the executive and congress) and the government”, which, for exactly that reason, would see more political voices in the council.

At present, the Magistrates’ Council is made up of two lawyers, three judges, one academic, six legislators (for the first and second parties in each chamber of Congress) and one government representative – although the current outfit shrunk from 20 members to 13 under the administration of the late Néstor Kirchner in 2006, during which time president Fernández was a senator. The proposed reform also includes increasing the amount of “academics and scientists”. Current protocol dictates that they are elected via internal voting.

The president has stated that the “people” must have the power to elect its judicial panel. As she was keen to point out, people already choose their presidents, governors, senators, and congresspeople, which begs the question: why not the judges as well? She expressed that this would create a judicial tapestry that might reflect and represent the people (and society) to which it is indirectly and yet ultimately accountable. In the words of the president, “neither judges or lawyers have the pre-ordained right to be elected amongst themselves”.

To its opponents, the proposals reek of “populist justice”, which, they say, is a far cry from the democratic justice it purports to want to achieve. In an article on the reforms, La Nación journalist Gregorio Badeni, suggests that such popular sentiment can be destructive, being “a concept which is impregnated with an irrational political mysticism which foments civic hedonism as it bequeaths them with republican responsibilities”. In short, the question remains whether the people, receptacles of the ‘public will’ are the right ones to task with choosing members of the Magistrates’ Council.

Buenos Aires Courts (photo by wallyg, on Flickr)

A More Efficient Judiciary

Another point on the agenda is the supposed ‘corporate’ running of the judiciary whereby ‘friends of friends’ and family members are welcomed into the fold – which the new proposals hope to counteract by introducing a selection process based on merit for designations at all levels. This argument, however, is double edged: supporters of the reforms claim it will root out such biased selection, whilst its opponents accuse the government of replacing one corrupt set up for another.

In her speech, the president stated that any citizen who possesses the necessary skills, talents, and pre-requisites to join the judiciary ought to be able to do so. In the event that there are too many applicants for a given post, the reforms propose a lottery system to allocate the winning candidate. In the new, more democratic system envisaged by the current administration, entrance to the judiciary would no longer be a privilege. Critics of the move, including the newspaper Clarín, have postulated that the use of a lottery system is in violation of article 16 of the constitution with regards to ‘appropriate’ means of access to public office: it implies the adoption of an irrational system which is both anti-democratic and based purely on chance.

In a bid to increase transparency in the judicial process, the proposals would see the creation of three new courts of appeal. These would rank below the Supreme Court and above the regular Court of Appeal.  The new courts would include: a Civil and Commercial court, an Administrative Litigation court, and a Labour one. The creation of a ‘third body’ would, according to supporters, create a fairer and more transparent system. The system would also create new jobs.

Justice minister Julio Alak claims it would ease pressures on the Supreme Court, which could reduce its scope to dealing with constitutional issues. In his words, “we can’t ask the court to deal with 13,000 cases a year, they will undoubtedly end up elsewhere. It would be far better for them to be dealt with by a lower court of appeal”. In 2012 13,500 cases reached the Supreme Court, which is overseen by only seven members.

In a rebuttal, radical senator Mario Jorge Cimadevilla denied the above, claiming that it represents an attempt by the government to “fill the courts with its allies to avoid the cases reaching the [Supreme] Court. They [the government] don’t trust the court, and should not be allowed to overpower it”. The reform would make access to the Supreme Court more difficult, an issue which, as outlined above, has its detractors and defenders.

In addition, critics assert that the creation of these new courts would facilitate the introduction of new judges elected during the coming months to the detriment of those judges currently awaiting selection.

The Fight For Transparency

Congress session (photo courtesy of Casa Rosada)

With the aim to further transparency, the president proposed another reform: the creation of a docket (calendar of cases awaiting action in court) accessible via the internet to members of the public. She cited the disparity between the length of time it took for different cases to be processed (and finally concluded) as one of the major failings of the current system. Transparency as regards gestation of cases and eventual conclusions would incentivise judges and lawyers to give equal weight to their cases, ensuring a more balanced time spread. It would also allow greater access to information and court proceedings, with each judge’s list of cases readily accessible.

The proposals also put forward the notion that judges must submit affidavits detailing their assets and income, which have to be made available for public viewing through the internet. This, again, hopes to facilitate a greater transparency in the system, allowing citizens access to sensitive information that is in the public interest that might otherwise remain hidden. This proposed reform would affect all three branches of government: legislative, judicial, and the executive. Judges, argued the president, know a lot about their citizens, and said citizens therefore ought to be entitled to the same treatment.

Lastly, the reforms would do away with injunctions that act against the state. This last measure is strongly suspected by the opposition to be an allusion to the ongoing feud with Grupo Clarín, whereby such measures have protected the media conglomerate from rescinding its media licences following the disputed application of certain articles of the Media Law. Senator for Frente Para la Victoria, Miguel Angel Pichetto, offered the following opinion, “it is essential that we advance on these injunctions as the president has outlined because over the last ten years, justice in this country has been gravely distorted via the repeated application of this measure”.

Under the auspices of an injunction – an interim period in which a law whose validity is in question does not apply until the judge reaches a decision– can lead to cases that drag on. Senator Aníbal Fernández blames the use of injunctions for taking cases “hostage”. Eliminating lengthy injunctions might help speed up court proceedings, but it also carries certain risks. If its opponents are to be believed, the government might have found the perfect excuse (in the shape of judicial reforms) to exact its own, personal, form of justice.

The executive director of data journalism website chequeado.com, Laura Zommer, offered a more tempered view on the matter. She was quick to point out that, when all is said and done, the exact details of the proposed reforms are unknown, and, until they are revealed, each side will continue to defend its own opinion which undoubtedly reflects a “vested interest”. In effect, to its opponents, “democratisation” may yet mean, as Bohmer has said, the attempt to “bring the courts into the logic of majoritarian rule”, or as its supporters would have it, a more transparent and accessible justice system which advocates civic participation. In Zommer’s opinion, and until such time as the intimate details of the proposals are available for scrutiny, the reforms remain, in principle, a “good idea”.

What do people think about the proposed reform to the judiciary? Click here to find out.

Protestors will today demonstrate their anger after Uruguay’s Supreme Court of Justice (SCJ) stated that a law allowing renewed investigations into dictatorship-era human rights crimes violates the constitution.

Uruguay Flag (Photo: marcelmello on Flickr)

The ruling puts many cases in doubt and as a result the Trade Union Confederation PIT-CNT, Madres y Familiares de Uruguayos Detenidos Desaparecidos, and a number of other human rights organisations are expected to participate in a ‘silent’ march outside the High Court building in Montevideo at 18:00 under many banners reading, “Don’t deprive us of justice.”

As a result the court has increased security of their Ministers and their headquarters, local media reported.

Around 200 Uruguayans were kidnapped and murdered during the 1973-1985 dictatorship and much of the nation remains divided over how to best deal with the former military officers who are accused of the atrocities.

In 2011 Congress passed legislation making new rights trials possible regardless of the 1986 amnesty law protecting many accused officers from prosecution. Last Friday’s Supreme Court ruling found two articles of the 2011 law to be unconstitutional, a ruling that effectively reestablished the amnesty.

“I’m surprised and concerned by this ruling.” Said Navi Pillay, United Nations High Commissioner for human rights, in a statement outside court. “These facts can reset the shadow of impunity in a country that has begun to reconcile with truth and justice.” He added.

The Supreme Court justified its decision by claiming that the challenged law violates the principle of non-retroactivity laid down in the Constitution.

Retired Colonel Jorge Silveira, who has formerly been prosecuted for human rights violations, told La Republica newspaper, “The prisoners will be happy at this ruling as it will prevent new prosecutions. There will be no more revenge.”

President José Mujica announced that he will move to try and impeach judges of the Supreme Court, saying that they are “responsible for upholding impunity in Uruguay.”

Lago Escondido / photo courtesy of Wikipedia

Judge Carlos Cuéllar ruled yesterday to enact a new plan for the construction of a public road to the Lago Escondido. The decision allots 120 days for the completion of the new road that will stretch from Tacuifí to the water’s surface, in accordance with the requirements decided by the provincial Supreme Court in 2009.

The new deadline was presented to representatives from Viarse, the Secretary of the Environment, the Hidden Lake firm, and legislator Magdalen Odardo, who have all been involved in legal battles concerning the construction of a road to the lake for years. Cuéllar stated that the civil and commercial court of Bariloche would issue a formal resolution dictating the plan of execution and the amount of allocated funding in the coming days.

Last Friday’s hearing lasted until midday, and representatives from the provincial organisations and the Hidden Lake firm left without commenting on the decision. However, Odardo stated that the hearing was successful, as the court had finally recognised its responsibility to order the opening of public roads to the Lago Escondido, which is situated on the edge of private property. Odardo praised the decision to conclude the long judicial process regarding access to the lake and Cuéllar’s commitment to upholding the previous court decision mandating that a road be constructed.

Hidden Lake representatives rejected the court’s decision and announced their intention to input new measures of justice against Cuéllar’s ruling to proceed with road construction.

Lago Escondido is a lake located 50kms north of El Bolsón, in the province of Río Negro. The land around it was bought by British millionaire Joe Lewis in the 1990s, and access to the lake was blocked, and only allowed for people authorised by his firm Hidden Lake. A campaign has been carried out by residents of the area in order to force Hidden Lake to provide public access roads to Lago Escondido.

The government will ask the courts to work during the traditional January holidays to reach a rapid decision on the appeals presented by Clarín against key articles in the 2009 media law.

The government will formally request first thing on 2nd January that the judiciary establishes “days and hours” to deal with the case during January. The case was returned to the Appeals Court after the Supreme Court rejected the government’s per saltum request to take it straight to the nation’s highest court.

The court also rejected an appeal against the suspension currently protecting the Grupo Clarín media conglomerate from divestment, stating that it should remain in place until a “definitive sentence” is reached. The case can then return to the Supreme Court following the normal judicial process.

Martín Sabbatella, head of the Federal Authority of Audiovisual Communication Services (AFSCA), said he did not have “high expectations” for the ruling by the Civil and Commercial Camera, which he said was “colonised” by corporations, on the request to work through the holidays.

The Supreme Court ruled the government’s request for a per saltum midday today “inadmissible”, rejecting the measure that would have allowed the controversial Media Law case to skip straight to the nation’s highest court. Instead, the normal proceedings stand, dashing government hopes for a quick conclusion. The decision also rejected an appeal against the suspension currently protecting the Grupo Clarín media conglomerate from divestment, stating that it should remain in place until a “definitive sentence” is reached.

The government appealed per saltum on 19^th December after a ruling in its favour from Horacio Alonso, judge of the First Instance on 14^th December. The Court of Appeals must now rule before either party can appeal for the ultimate Supreme Court ruling.

Per saltum is an extraordinary legal tool used in “institutionally important” situations in which a party can ask the Supreme Court to hear his case directly, bypassing corresponding lower courts to which he would normally have to appeal first.

According to CN23, the seven judges’ decision against granting a per saltum was unanimous, but the suspension’s continued existence was not.

The court’s decision, delivered in only a few concise sentences, leaves Grupo Clarín’s polemic constitutionality case against the Media Law with no prompt end in sight.

Justice Minister Julio Alak announced today that the government has appealed ‘per saltum‘ to the Supreme Court to give a final ruling on the media law case.

During a press conference this morning, Alak explained that “the aim of the per saltum is not only that the Court ensures the deadlines are met, but also that it rules on the constitutionality of the [media] law, which Clarín has ignored for three years, two months and nine days.” He added that the government resorted to this measure to ensure that “a law, that was voted by Congress (in 2009), becomes applicable to all the audiovisual media services groups.”

On Friday 14th December, the judge of first instance Horacio Alonso ruled that articles 45 and 161 of the media law, challenged by Grupo Clarín, were constitutional. However on Monday Grupo Clarín appealed the ruling, and the case now sits at the Court of Appeals. In order to move the case forward, the government appealed ‘per saltum‘ to the Supreme Court, requesting that the instance of the Court of Appeals be skipped and that the Court provides a definite ruling on the constitutionality of these articles.

The per saltum is an extraordinary resource to be used in cases of “institutional importance”, and the Supreme Court can accept it or refuse it. If they do the latter, then the case has to go back to the Appeals Court and follow the normal process, eventually making it to the Supreme Court if the Appeals Court ruling is in turn appealed.

President Cristina Fernández de Kirchner came out strongly against the Argentine Justice system after the ruling that acquitted all the suspects accused of human trafficking.

“Last night something very ugly happened. There is a divorce between society and justice, I couldn’t believe it when I was told,” said Fernández in a public speech this afternoon at the inauguration of a medicine production plant.

Cristina Fernández de Kirchner

“We are going to initiate a democratisation of the Judicial Power. Humbly, I believe the time has come for each of the States powers to take care of the things that are happening. I pledge to start a democratisation of the Judiciary,” she added.

Already in conflict with certain judicial decisions taken in recent weeks, namely the extension of the injunction in the Clarín case, and the rejection of the “per saltum” mechanism by the Supreme Court, Fernández continued attacking the judicial branch questioning, “what other office is guaranteed for life?” Seemingly paving the way to what might become a drastic reform of that branch of government. She also stated “when there is money involved no matter how much noise you make they just don’t care”.

Also today the Supreme Court reacted to the news of the Marita Verón verdict by releasing a statement that called on judges to do their best to fight human trafficking.

“Following the events that took place today that are known by the public, the National Supreme Court, as holder of one of the three powers of the State, makes clear that the fight against human trafficking and the protection of victims of gender violence is a very clear and important institutional decision,” read the statement.

Although it made no direct reference to the actual case of Marita Verón, the statement also called on “all the judges in the country to keep maintaining their maximum efforts to end this crime”.

The Supreme Court could eventually be called to rule on the Marita Verón case if it is appealed.