By Sam Ferguson
Over 30 officials from Argentina's notorious Naval Mechanic's School, or "ESMA," have been indicted for their responsibility in the kidnapping and torture of about 900 people during Argentina's last military dictatorship, which ruled from 1976 to 1983. For human rights groups, it is a symbol that "the impunity" has ended. For 16 years, the ESMA's henchmen were protected by amnesty laws passed in the wake of democratic transition in 1986 and 1987. Those laws were repealed by the Congress in 2003, and declared unconstitutional by the Supreme Court in 2005. The ESMA case is most representative of the repression which claimed nearly 9,000 victims during Argentina's dictatorship - students, dissidents, guerrillas, labor activists, journalists, psychiatrists, and others, who were kidnapped, tortured and sometimes exterminated by the armed forces.
But it has now been more than six years since the case was opened. Only one defendant has been tried on four counts of kidnapping. He was poisoned - whether it was a suicide or he was murdered has yet to be conclusively established - before the case reached a verdict. In the interim, the ESMA defendants have been held in jail during the pretrial phase without bail. One defendant, Jorge Acosta, has been in jail for over ten years without trial. (He was arrested in 1998 on charges of planning a kidnapping ring by placing children of victims of the government in military homes rather than returning them to their families. He was later indicted in 2003 in the ESMA case). On October 6, 17 defendants were supposed to show up in court to hear the allegations against them in a case involving 85 victims of the ESMA, but it has once again been delayed until November 19. In prosecuting human rights violators, Argentina has demonstrated it falls short of guaranteeing criminal defendants a speedy trial.
Why has the ESMA case taken so long to prosecute? There are many reasons, including an overly formal and bureaucratic justice system, ideological resistance on the part of Argentina's highest criminal appeals court, purposeful delay tactics by the defense and a lack of courtrooms with adequate security to advance with the cases.
The majority of the delay is the result of the Camara de Casacion, Argentina's highest criminal appeals court. Almost immediately after the case was reopened - the investigation began in the 1980s, before it was halted by Argentina's amnesty laws - defense attorneys appealed, saying that the amnesty law couldn't be repealed. From there, the case arrived at the Camara de Casacion in December 2003.
The Camara de Casacion sat on the case for four years. (A lower appeals court took two months to decide the issue before the Camara de Casacion). Human rights groups and prosecutors here allege that the Camara de Casacion purposefully took a long time to decide the case because of ideological resistance. The president of the Casacion during the delay, Alfredo Bisordi, was a secretary for a judge during the military dictatorship, who was a well-known sympathizer with the military.
The case finally came out after President Nestor Kirchner forced the resignation of several members of the court, including Bisordi, after a heated public verbal battle and the initiation of impeachment proceedings. In November 2007, the Camara de Casacion allowed the ESMA case to go forward, nearly four years after it was opened. Bisordi, who resigned in 2008, now represents military defendants in human rights cases.
Prosecutors and human rights groups have also accused the defense of purposefully planting appeals, which they know will be rejected, to delay the case, hoping that their aging clients will be released from preventive detention by the Camara de Casacion. "It has been the strategy of the defense to delay the case in Casacion" says prosecutor Taiano.
But public defender Lucas Tassares, who is representing one of the 17 defendants in the ESMA case, says that it is his job as a defense attorney to use all legal tools available to defend his client.
Still, some of the private attorneys in the case continue to introduce legal arguments - such as the fact that the statute of limitations has run out in this case, or the fact that the defendants are protected by the amnesty law - even though the Supreme Court has decided these legal questions. For these attorneys, such as Adolfo Casabal Elia, who has been defending Argentina's military officers in Dirty War trials for over 20 years, and is defending Adm. Oscar Montes in the case, the highest ranking official amongst the group of 17 defendants, say they will do whatever is within their legal power to defend their clients and resist the trials. Casabal Elia says that the trial "is revenge for the human rights groups and the government." He says that the whole process is "very bad - it's all politics, not justice."
It is not simply the delay in the Camara de Casacion that explains the long period of time it has taken to bring this case to trial. The atmosphere inside Comodoro Py also tells part of the story.
Everyone who enters Comodoro Py must pass through a metal detector. The siren sounds after almost every person walks through, but the three guards seated next to the entrance hardly bat an eye. Bags are passed around the detector, but are not checked. A smoking ban was recently passed for buildings in Buenos Aires, but lawyers, judges and other employees of the building still smoke, sometimes throwing butts directly onto the floor. The official working hours are 7:30 AM to 1:30 PM, but many offices maintain their own schedules. Where justice is to be done, rules are flaunted.
There is also a lack of resources. The case started on the fifth floor of Comodoro Py, in Eduardo Taiano's office. Taiano is the prosecutor in charge of the pretrial phase of the case. Taiano's office is crammed, made smaller by files from the case that line his floor. Several of his attorneys work side by side at desks stuck in irrational layouts in a small room. The case contains over 50,000 pages. He has worked on it with just four other attorneys.
There are also cultural and bureaucratic reasons why the case has moved so slowly. Mirna Goransky, a prosecutor in the case, explains, "Comodoro Py operates according to its own rules." She says that the Argentine justice system is overly formalistic, bureaucratic and often sacrifices reason for local custom. This delays cases.
For instance, human rights cases across the country have been assigned to prosecutors just as any other cases would be, that is, by chance. No matter a prosecutor's experience or expertise, they may be assigned a human rights case involving hundreds of victims and dozens of defendants. They are also expected to handle these cases alongside any other cases that land in their office, from simple armed robberies and drug offenses to complex cases of state corruption and organized crime. Though a unit was finally formed two years ago to specialize in human rights cases - Goransky is part of this unit - pretrial work is still sorted amongst prosecutors randomly. The unit only handles the oral phase of the trial.
There have been other obstacles. The courtroom in Comodoro Py's basement, a large, wooden and pink velvet-lined hall, is the only courtroom that has adequate security for human rights cases. Though there are dozens of human rights cases ready for trial, they must go one by one. Majors portions of the ESMA case were ready for trial a year ago or more, but did not begin because there was no courtroom to house the cases. The lack of space has created a backlog for years to come. The most recent delay in the ESMA case - from October 6 to November 19 - happened because another human rights case lasted longer than the court had anticipated. Four hundred witnesses appeared in the case.
In many ways, though, the ESMA case is similar to other judicial proceedings in Argentina, which is generally slow. Another complicated case unrelated to human rights, involving a fire at the Coma√íon nightclub on December 30, 2004, in which 194 people died and over one thousand were injured, took four and a half years to end. The accused, Omar Chaban, spent nearly three years in jail without bail while awaiting trial before he was sentenced to 20 years for his role in the fire. Common criminal cases can take up to two years.
Similarly, the Argentine justice system, based on the inquisitorial Spanish model introduced during colonial times, separates the trial into two distinct parts - the written, or first phase, and the oral phase. New prosecutors and judges are brought in during the oral phase, requiring a duplication of work.
Additionally, many criminal defendants spend long periods of time in prison during pretrial investigation in Argentina. According to the human rights group the Center for Social and Legal Studies ("CELS"), which also represents victims in the ESMA case and other human rights cases, 63 percent of Argentina's prison population in 2006 was under preventive, pretrial detention. However, the law which allows defendants to be held in pretrial detention establishes a maximum of three years. This law has been given an expansive reading in human rights cases, and military suspects are generally held for longer periods of time. Some legal observers and defense attorneys in the case say that this is a violation of basic legal guarantees for the defendants.
The ESMA trial will likely take a year for the court to decide. In its wake, there are two other large ESMA cases, involving many of the same defendants, with 800 other victims. These are still being processed in the pretrial phase.
Most commentators predict all 17 defendants will be convicted. One of the defendants, Alfredo Astiz, was already convicted in abstentia by a French court. When the verdict comes, it will likely be a triumph for human rights groups, which have fought against impunity for perpetrators of state terrorism for 30 years. But inside Comodoro Py, new cases will arrive, files will be filled, orders stamped and justice will lumber along.