The Argentine Supreme Court resolved that the Due Obedience and Full Stop Acts are unconstitutional, thus paving the way for the Courts to end the appalling situation of impunity in the country.
The Supreme Court declared the nullity and unconstitutionality of the Full Stop and Due Obedience Acts (laws 23.492 y 23.521). The decision was based on the incompatibility with international treaties with constitutional hierarchy and following the guidelines set by the Inter-American Court of Human Rights in the "Barrios Altos" case against Peru. The Court had already stated that there is no statute of limitations for crimes against humanity. In this ruling the highest court in the country established once again the obligation of the State to investigate and punish the crimes committed during the dictatorship and also the unpardonable nature of these crimes and the rejection of impunity for such offences.
Today the Judiciary has demolished the last existing scheme hindering the search for truth and punishment of perpetrators of State terrorism. This ruling is the last development of a long process of the unrelentless claim for justice of human rights organizations; relatives of the victims and those committed with democracy. The suit filed by CELS had a first favourable resolution on March 2001 when Judge Gabriel Cavallo declared the unconstitutionality and nullity of the Full Stop and Due Obedience Acts. In November of the same year, the Second Chamber of the Federal Court of Appeals unanimously confirmed the judgment and concluded: "the invalidation and declaration of unconstitutionality of the 23.492 and 23.521 acts is not an alternative; it is mandatory". Today the Court has fulfilled with its obligation.
The Higher Court passed judgment in a suit brought by CELS as a plaintiff at the end of 2000 requesting the investigation of the forced disappearance and tortures of José Poblete and Gertrudis Hlaczik Poblete. The suit was filed as part of an ongoing judicial investigation brought forward by the Abuelas of Plaza de Mayo (in 1998) for the misappropriation of their daughter, Claudia Victoria Poblete.
The Poblete family was kidnapped in 1978 by a group claiming to belong to the Joint Forces. José, Gertrudis and Claudia, who was only eight months and three days old, were last seen at the El Olimpo clandestine detention centre (at the Automobile Maintenance Division of the Argentine Federal Police).
The case had a fundamental contradiction by which the judiciary could only investigate and punish the misappropriation of Claudia but could do nothing for the forced disappearance of her parents. The Due Obedience and Final Stop Acts had guaranteed impunity for the perpetrators.
Human Rights Organizations did not let these laws undermine their determination and sought new paths within democratic institutions. En 1995, Emilio Mignone presented the first suit requesting the recognition of the Right to the Truth in the case of the forced disappearances of his daughter, Monica. Civil Society has also achieved the indictment of the military hierarchy for the misappropriation of children as well as looting cases. In 1998, the National Congress revoked both laws. Moreover, due to the committed resistance to impunity of the international community, courts in Spain, Italy, France, Sweden and Germany brought many cases to trial. The Human Rights movement has also achieved the revocation of the decree that banned extraditions of military officers to those countries.
The Trials for the Truth initiated across the country, the revocation of the impunity laws by Congress, the arrest of dozens of high-ranking officers for the misappropriation of children and looting, as well as the trials held overseas, led CELS to believe that there were no legal, ethical, political, national or international excuses to justify the upholding of these laws. Therefore, our organization requested the judiciary to declare the nullity of these laws in 2000.
In this long process, international human rights law and the international community have played a fundamental role. The task carried out by European Courts in the prosecution of crimes against humanity committed by Latin-American dictatorships has breathed new life into domestic courts. Pinochet’s arrest in London and Scilingo’s conviction in Madrid proved that justice is the only way to face these types of crimes.
The most important obstacle, however, was the standing of the impunity laws. CELS decided to legally dispute the constitutionality of the laws aiming to pardon the perpetrators, with the certainty that those responsible for the horrendous crimes committed in our country should be bought to trial. The State has the duty of bringing justice to the victims, their families and society as a whole. Truth and justice are the institutional pillars on which a democratic country must be built, with the enforcement of equal rules and clear ethical limits.
In August 2002, the Federal District Attorney at the time, Nicolás Becerra, highlighted the importance of declaring both acts unconstitutional so as to guarantee the existence of a law-abiding State and counteract the violence stemming from State institutions. In May 2005 the new District Attorney, Esteban Righi, maintained the same criteria.
Since the first judicial resolution of unconstitutionality, federal courts across the country have passed over a dozen of similar rulings. The Parliamentary annulment passed in August 2003 has given new momentum to these procedures. More than 37 cases are active and 150 people have been indicted for crimes committed during the dictatorship. Most are retired members of the Armed and Security Forces. The fact that they are being brought to trial has not, as some groups had claimed, altered the well-being of democracy. Quite the contrary, these trials have reaffirmed the Rule of Law.
Our society finally faces a crucial issue for its future and is doing so through the appropriate channels. The wisdom that has guided the search for justice proves that the reasoning behind forgiving and forgetting are false. The prosecution of the culprits of these crimes results in judicial and political stability since it fulfils fundamental values such as the respect for life and the rejection of any form of authoritarianism.
The judiciary has contributed another building block in the bonding of our community. Our commitment to democracy forces us to complete the task of achieving memory, truth and justice.