Given the renewed public interest in legal action, CELS decided to press the courts to investigate a few emblematic cases. The cases were chosen carefully to counter the most obvious legal objections. In each one, the relatives were founding members of CELS, giving the organization a stronger legal basis for making the presentation. Each involved the same agencies denounced by Scilingo, Ibañez, and others. These "truth trials" (juicios por la verdad), as they became known, were an innovation in Argentine justice, and possibly in the rest of the Americas.24 They were unlike ordinary criminal trials in that judicial action was expressly limited to investigation and documentation, without there being a possibility either of prosecution or punishment. They were based on the right (both of the relatives and of society as a whole) to know the truth, and the right of the relatives to bury and mourn their dead (derecho a duelo).
Explaining this rationale in 1995, then-director of CELS Martín Abregú wrote:
The impossibility of pursuing the authors of these crimes in criminal proceedings did not mean simply the closure of any kind of judicial intervention. On the contrary, the social impact caused by the declarations of the former naval officer (Scilingo) highlighted another crucial issue about state terrorism: the right of the relatives to know the final destiny of their loved ones and the right of society to know in detail the methodology used by the military dictatorship to exterminate tens of thousands of Argentines. It was this need to know (in both its aspects, the personal right of the relatives and the collective right of the whole community) that was presented to the courts, pleading the "Right to the Truth."25
CELS sought to persuade the courts to uphold the doctrine and jurisprudence on the right to truth established over the years by international human rights bodies, especially by the Inter-American Commission on Human Rights and the Inter-American Court. The Argentine human rights groups believed that the information already gathered by the federal courts in the trials of the juntas and later trials in the 1980s, if coordinated and systematized, provided a strong basis for further investigation. Moreover, the courts had powers to obtain information from official sources, as well as to summon military and police personnel to testify. For the courts to assume this role, however, they first had to be convinced that the full stop and due obedience laws did not rule out further judicial investigation. After a promising start, this turned out to be an arduous uphill battle.
The two cases initially presented were those of Mónica Candelaria Mignone, the daughter of the late Emilio Mignone, founder of CELS and a figurehead of the Argentine human rights movement, and of Alejandra Lapaco, whose mother, Carmen Aguiar de Lapaco, helped found the Madres de la Plaza de Mayo, and was a board member of CELS. Mónica Mignone "disappeared" after being abducted on May 14, 1976 and taken to ESMA. Alejandra Lapaco and her mother were detained on March 17, 1977 and held in the "Athletic Club," an army detention center in Buenos Aires. Her mother was released two days later. Alejandra was never seen again.
In April 1995, the Federal Chamber of Buenos Aires ruled in the Mignone case to order the naval chief of staff to track down navy files on operations in ESMA, or, failing that, to reconstruct the data and make it available to the court, including the names and fate of infants born in captivity. The court acknowledged that in both international and domestic law and jurisprudence, the relatives had a right to know the truth about the fate of their loved ones and the court had a duty to use its powers to assist them.26 This was reflected in the scope of the information sought by the court, which went far beyond the single case of Mónica Mignone.
The resolution on the Lapaco case was stronger still, and more extensively based on international law and jurisprudence. Accepting a petition by the relatives, the court ordered the Ministry of Defense to produce all the information the army possessed on the fate of Alejandra Lapaco and other prisoners who "disappeared" in the custody of the First Army Corps between 1976 and 1983.27
The advance was short-lived, however. The two judges who had consistently favored the investigations, Horacio Cattani and Martín Irurzún, now found themselves in a minority; their colleagues, apparently influenced by the refusal of the navy to cooperate in the Mignone case, decided not to continue the investigations. Faced by the navy's objections, some of the judges claimed that to pursue the case might violate the principle of double jeopardy, since the officials implicated in the "disappearances" had already been relieved of any criminal responsibility.
In August the court reached a similar conclusion in the Lapaco case, once more against the dissenting votes of Judges Cattani and Irurzún. Faced by the army's categorical denial that it possessed any information to clarify the fate of the "disappeared," the CELS lawyers petitioned the court to seek information from the files of other government departments. The majority judges, citing different reasons, turned down the petition, suggesting instead that the executive branch, specifically the under-secretary for human rights of the Interior Ministry, take over the inquiry. Lawyers for the relatives appealed to the Supreme Court. It was up to the courts to uphold the right to truth, they argued, rather than pass the buck to the government.
The Argentine Supreme Court took three years to decide on the appeal. In a fourteen-line judgment given on August 13, 1998, the court held by five votes to four that it would be pointless to allow the inquiry to be reopened, since the legal basis for a prosecution no longer existed.28
In response, in November 1998, Carmen Aguiar lodged a complaint with the Inter-American Comission on Human Rights. In May 1999, the Commission declared the petition admissable. On November 15 1999, it brokered a friendly settlement of the dispute, by which the State agreed to "accept and guarantee the right to truth which consists in the exhaustion of all means to obtain clarification of what happened to disappeared persons." The agreement required the government to award exclusive competence to the federal courts to continue the trials for truth, which could not be made the object of any statute of limitations. The agreement, therefore, made it an official obligation of the state to continue judicial investigations into the fate of the "disappeared." Human rights organizations celebrated this as a landmark victory.
Although the government formally acknowledged its commitment to further the truth trials, the army's cooperation has been minimal. Army officers called to give evidence in these proceedings have frequently refusedto do so, and even more seriously, the army has given legal and moral support to officers who have been detained for contempt of court or perjury. The most senior officer in the army, Gen. Ricardo Brinzoni, has publicly criticized the trials. For example, apparently speaking in the name of the army, Brinzoni said in a July 2000 newspaper interview:
We do not think that the trials are the most appropriate path, because they have not accomplished anything. The courts, for example, act according to different criteria. Some courts have powers to order arrests or incriminate for perjury. Others understand that this procedure should not be conducted in a court room. What we are demanding is that the rules be the same whatever the jurisdiction. A soldier is a citizen in uniform with obligations and rights. What we are demanding is that our obligations be carried out and our rights respected, because we are citizens like any other and no one can be forced to testify against themselves.29
Currently, truth trials are continuing in courts across the nation, some with considerable publicity, others with very little. Although federal appeals courts are conducting the best known investigations, most (at least sixteen) have been conducted by criminal trial courts, and still others by civil courts. No single legal mechanism has been used and individual judges have followed the procedures they considered most appropriate. Although part of the friendly settlement brokered by the Inter-American Commission was to regulate the truth trials, both the human rights groups and government human rights officials have considered the existing diversity to be beneficial.30
The most noted proceedings have been held by the Federal Appeals Court in Buenos Aires; the Federal Appeals Court of La Plata; the Federal Appeals Court of Bahía Blanca; and the Federal Court of Instruction No. 3 in Córdoba. In La Plata, oral public hearings have been conducted weekly on Wednesdays, in full court session, with witnesses being cross-examined not only by the judges but also by attorneys representing the human rights group that presented the case, the Permanent Assembly of Human Rights of La Plata. By contrast, the proceedings conducted by the Federal Chamber of Buenos Aires have relied much less on new oral testimony. Instead the court has sifted existing documents and testimony already collected in the trial of the juntas, as well as new documentary evidence from police files and other official sources.
The Federal Court of Buenos Aires, in which CELS chose to present the Mignone and Lapaco cases, had accumulated an enormous quantity of information as a result of the trials it conducted in 1984 against the military juntas and other high profile cases. Despite the official closure of these important cases under the full stop and due obedience laws, the Federal Court continued to assist relatives seeking information about the "disappeared." One of its most important tasks was the identification of remains found in common graves in public cemeteries, in which the court was assisted by the Argentine Team of Forensic Anthropologists. The court has now identified some thirty-seven victims of extrajudicial execution, previously considered "disappeared," by comparing fingerprints from military records, use of odontological records and DNA samples.31
Beginning in April 1998, the investigation conducted by the Federal Court of La Plata has accumulated more than 2,000 cases of "disappearances", including many new ones not included in the CONADEP report.32 In threeyears of weekly public hearings, the court has questioned some 400 people, including relatives, friends and associates of victims, former and serving military and police officers, priests, army chaplains, and doctors who signed death certificates for unidentified victims. The judges have personally inspected La Plata police stations, sites of former secret detention centers, and cemeteries, and have searched in police archives. Working around the edges of the impunity laws, the court charged a police doctor, Néstor De Tomás, with concealing evidence after it emerged that medical-legal records giving physical details of unidentified cadavers had disappeared (the victims were described in death certificates as having died from gunshot wounds to the head). Judge Leopoldo Schiffrin requested the court to subpoena the former investigations chief of the Buenos Aires police, Miguel Etchecolatz, on multiple counts of torture and murder, but after long deliberations the court declined to do so. In a hearing at which Human Rights Watch was present as an observer on April 25, 2001, the court questioned two recently promoted Buenos Aires police officers (Mario Jaime and Daniel Del Arco), both of whom had been implicated by several witnesses in abductions carried out in 1976. Jaime refused to testify, and Del Arco denied any participation.
The unusual status of the former members of the military and police called to testify in the truth trials has meant that judges have often differed over the procedural norms applicable. Since these are trials without defendants, military and police personnel usually have been summoned to appear and questioned as if they were ordinary witnesses. As a guarantee against self-incrimination, Argentina's legal system exempts those accused in criminal proceedings from being required to testify under oath when they take the stand. By contrast, witnesses, who may be arrested if they fail to appear, are required to testify under oath. As participants in crimes, many officers feared that their statements could incriminate them, whether in subsequent court proceedings or in trials conducted outside the country. For this reason, many refused to declare unless the oath was lifted. Some judges responded by ordering their arrest until they agreed to testify. Other military witnesses made untruthful declarations under oath and were charged with perjury.
Federal courts in Bahía Blanca and Córdoba have invoked articles of the Code of Military Justice and the Penal Code to arrest officers who appear in court but refuse to testify or reply to questions. The arrests provoked concern in the army leadership and in the government at alleged violation of the officers' right not to incriminate themselves, and led to legal moves to terminate the jurisdiction of the federal courts.
For example, in December 1999, public prosecutor Hugo Cañón called for the arrest of Lt. Col. Julián Corres, a former chief of security at "La Escuelita," a secret detention center run by the Fifth Army Corps, after Corres refused to testify and denied the competence of the court. The Federal Court of Bahía Blanca was investigating allegations by a group of students from a local Bahía Blanca school that they had been detained and tortured in La Escuelita. After being obliged to testify under oath, Corres refused to acknowledge participating in torture sessions. The court charged Corres with perjury.33
In 2000, courts responded to the refusal of officers to testify by ordering more arrests, which in turn spurred high level army protests. In July, following the detention (under similar circumstances to that of Corres) of two retired officers, Armando Barrera and Santiago Cruciani, Gen. Brinzoni dispatched army Secretary General Gen. Eduardo Alfonso to visit the detainees and to offer the army's moral and legal support. Since Cruciani was unable to travel to Bahía Blanca for health reasons, the Bahía Blanca court sent three judges to interview him in Mendoza. When he refused to testify he was promptly placed under detention in the military hospital there.
Similar tensions arose in a truth trial under way in the city of Córdoba, where Judge Cristina Garzón de Lascano of the Third Federal Court of Instruction was investigating "disappearances" and extrajudicial executions attributed to the Third Army Corps, under the command of Gen. Luciano Menéndez. In April 2000, when five former officers and a police agent refused to testify in a hearing about the murder of thirty political prisoners in 1976, JudgeGarzón placed them under arrest. On April 29, General Menéndez, who had earlier received a telephone call from Brinzoni expressing sympathy, was himself detained for refusing to recognize the court's jurisdiction.34
On September 13, 2000, the National Court of Cassation ruled on an appeal lodged by Corres, Cruciani, Barrera, and two other officers against the jurisdiction of the Federal Appeals Courts, and against their arrest for refusing to testify under oath. The cassation court ruled that the judges' orders detaining Cruciani and Barrera indefinitely until they testified were illegal, and violated their constitutional right not to incriminate themselves.3524 In Chile, another country in which human rights prosecutions were barred by a broad amnesty law, some judges refused to apply the law until the facts of the case and those responsible for the crimes committed had been identified. This position has gained increasing acceptance in the judiciary since Chile regained democracy in 1990, but in earlier years some judges who insisted on their duty to investigate, like Judge Carlos Cerda of the Santiago Appeals Court, were sanctioned by their superiors. Chile now has legislation protecting the right of relatives of the "disappeared" to pursue the truth about the fate of their loved ones. 25 Informe Anual, 1995, p. 88. 26 The Federal Chamber admitted, for the first time, an amicus curiae brief submitted jointly by Human Rights Watch and the Center for Justice and International Law (CEJIL) citing international law arguments in support of the presentation by Mignone and CELS. 27 Judges Horacio Cattani, Martín Irurzún, and Eduardo Luraschi consistently upheld the cause of the relatives; in the Lapaco decision they were joined by Judges Juan Pedro Cortelezzi and Raúl Vigliani. 28 Corte Suprema de Justicia de la Nación, Suárez Mason, Carlos Guillermo, homicidio, privación ilegal de la libertad, September 29, 1998. 29 Eduardo Van Der Kooy and Walter Curia, "Brinzoni: los juicios por la verdad no lograron nada," Clarín, July 26, 2000. 30 Human Rights Watch interview with Diana Conti, Under-Secretary for Human Rights at the Ministry of Justice and Human Rights, Buenos Aires, July 25, 2001. 31 Human Rights Watch interview with judges Horacio Cattani and Martín Irurzín, Federal Court of Buenos Aires, April 27, 2001. 32 Human Rights Watch interview with Dr. Jaime Gluzmann, attorney for the Permament Assembly of Human Rights of La Plata, April 25, 2001. 33 Gabriel Bermúdez, "Procesan a un Teniente Coronel," Clarín, December 16, 1999. 34 Mónica Gutierrez, "Menéndez se negó a declarar y la jueza lo dejo detenido," Página 12, April 29, 2001. 35 Camera Nacional de Casación Penal, Causa No. 1996- Sala IV Corres, Julián Oscar, s/recurso de queja. Article 18 of the Constitution states: "no one may be obliged to declare against themselves." The Cassation Court noted that witnesses, as well as defendents, have the right to refuse to declare under oath in order avoid incriminating themselves.