Applauding Uruguay's quest for justice: dictatorship, amnesty, and repeal of Uruguay Law No. 15.848.

• Published date: 22 December 2013
• Author: Soltman, Daniel
• Date: 22 December 2013

INTRODUCTION AND BACKGROUND

A. Dictatorship in Uruguay 1973-1985

Uruguay has been an independent state since 1828, and constitutionally governed since 1830. (1) In 1967, the state adopted a new constitution (1967 Constitution). (2) However, the protections guaranteed by the 1967 Constitution began to erode only a year later, on June 13, 1968, as the government instituted Prompt Security Measures (MPS) in an effort to curb the growing social unrest that resulted from recent economic instability. (3)

In March 1972, Juan Maria Bordaberry won the election for the Colorado Party, setting the stage for the implementation of a dictatorship in subsequent years. (4) Bordaberry immediately pushed for the implementation of the Law on State Security and Public Order (State Security Law), which was designed to supplement the existing MPS and allow the government greater control over subversive forces in Uruguay. (5)

By 1973, the military had taken full control, (6) establishing a "civilian-military regime," characterized by widespread human rights abuses. (7) While the human rights abuses took many forms, (8) perhaps the most egregious were the state-sanctioned "disappearances," (9) which official estimates put in the hundreds. (10) The abuses went well beyond disappearances, but the extent of the abuses in Uruguay at that time was largely unknown, since the military regime so closely shielded any intrastate activities from the eyes of the outside world. (11)

Following the return to full elections after the "civilian-military regime," Julio Mafia Sanguinetti took office in 1985. (12) A few of his first orders of business were to release all political prisoners (13) and create two commissions to investigate the human rights abuses during the dictatorship. (14) The first of these commissions was known as the Commission for the Investigation of the Situation of the Disappeared and Related Events (Commission for the Disappeared) and the second was the Investigating Commission on the Kidnapping and Assassination of the National Representatives Zelmar Michelini and Hector Gutierrez Ruiz (Investigative Commission on Kidnapping). (15) Unfortunately, these two commissions were short-lived, and received no official response from the government. (16)

B. Uruguay's 1986 Expiry Law

In 1986, in an effort to leave the past behind, the Uruguayan legislature passed Uruguay's Expiry Law, granting amnesty to many military and police officers for human rights violations committed during the dictatorship. (17) The Expiry Law, Law No. 15.848, purports to recognize the termination of the "exercise of the punitive aim of the state relating to crimes committed before March 1, 1985 for military and political actions ...." (18) While the Expiry Law contains sixteen Articles, the most important are Articles 3 and 4. Article 3 requires the judicial branch to consult with the executive before opening any cases related to dictatorship-era human rights violations. (19) While some believe that Article 4 tempered the law by allowing the executive to override the default of non-prosecution in certain situations and allow for investigations, (20) others believe that Article 4 only leads to selective exceptions to the general prohibition on investigation and can only hurt the search for truth and justice. (21)

C. Referendums

In a political move that appears to be unprecedented, Uruguay has twice put the Expiry Law to a referendum, and both times the Uruguayan people have voted to keep the Expiry Law, despite its safe harbor for human rights violators. (22) Votes in favor of the Expiry Law did not prevail by a wide margin in either case, but the two referendums, held twenty years apart in 1989 and 2009 (1989 Referendum and 2009 Referendum, respectively), are indicative of a widespread sentiment in Uruguay that the majority wants to move forward and focus on continuing to build a sustainable democracy. (23)

D. Judicial Response to the Expiry Law in Uruguay and Internationally

The Uruguayan Supreme Court and the Inter-American Court of Human Rights (IACHR) have held the Expiry Law to be unconstitutional. Only days before the 2009 Referendum, the Uruguayan Supreme Court held the Expiry Law unconstitutional. (24) Following the decision, lawyers for human rights abuse victim Nibia Salsagaray (25) remarked that "it's understood that this sets a precedent and that the Supreme Court won't change if presented with a similar case." (26) Because the declaration of unconstitutionality in this case was only as-applied, the holding did not effectively annul the law. (27) However, Prosecutor Mirtha Guianze, who was instrumental in bringing the Salsagaray case to the Supreme Court, remarked that "[i]f the law is annulled [in the referendum], there won't be any sense in ruling that it's unconstitutional, but if the referendum doesn't get enough votes, there is the possibility of making this argument in other cases." (28)

The Uruguayan Supreme Court repeated its declaration of unconstitutionality in 2010, allowing the opening of an investigation into Bordaberry's role in twenty deaths during his regime, and ruling unanimously that the Expiry Law was unconstitutional as-applied to Bordaberry in this case. (29)

The IACHR has also held Uruguay's Expiry Law unconstitutional. (30) The ruling was decided in the case of Mafia Claudia Garcia Iruretagoyena Gelman, who was disappeared in the 1970s. (31) The IACHR held specifically that the actions taken with respect to Gelman were in violation of the American Convention on Human Rights, and declared the Expiry Law incompatible with Uruguay's obligations under the American Convention on Human Rights. (32)

E. Recent Developments

In the midst of the most recent referenda and judicial decisions, Uruguay also elected a new president in 2009, Jose Mujica. (33) Mujica publicly supported the repeal of the Expiry Law at the beginning of his presidency, (34) but shortly thereafter changed his position, asking that Uruguayans not "transfer the frustrations of our generation to the new generations," (35) and instead look only to the future. (36) Despite Mujica's recommendation to let the Expiry Law stand, a new law was drafted in 2010 that would supersede and effectively repeal the Expiry Law, and this law received preliminary approval from the Chamber of Deputies in Uruguay in 2010.37 Several months later, in April 2011, the law passed the Uruguayan Chamber of Senators with minor modifications. (38) Due to the modifications, however, the bill had to return to the Chamber of Deputies. (39) In 2009, Jose Mujica's Broad Front Party held the majority (50 seats) in the Chamber of Deputies. (40) Had the voting progressed strictly along party lines, with the Broad Front Party voting for the annulment of the Expiry Law, the Expiry Law would have been annulled by a 50-49 vote. However, just before the vote, Broad Front member Victor Semproni left the debate, and refused to vote. (41) As a result, while the entire remaining Broad Front Party voted to annul the Expiry Law, the rest of the Chamber of Deputies voted against it, and the result was a 49-49 deadlock that left the Expiry Law still intact. (42) Despite his fluctuating position toward the Expiry Law, Mujica has done his part to curtail its effect. In late June 2011, following the failure to annul the Expiry Law, Mujica authorized the Judiciary to reopen as many as eighty human rights cases pursuant to Article 4 of the Expiry Law. (43) Uruguay then stood at a crossroads. The legislature had refused to comply with national and international judicial interpretations of the Expiry Law, and had instead sided with a slim majority of Uruguayan citizens who voted to keep the Expiry Law. The legislature had made the implicit determination to ignore the cries for answers and justice and instead move forward, relying on a likely unconstitutional law.

All this changed in late October 2011. Just when it seemed that the legislative failure to repeal the law in April and May of 2011 meant the death of any opportunity to confront the crimes of the dictatorship era head on, the Chamber of Senators and Chamber of Deputies, following a "long and intense debate," (44) passed a law repealing the Expiry Law. (45) The Expiry Repeal Law, No. 18.831, (46) expressly repealed the current law, (47) eliminated the possibility of any procedural defaults that would bar prosecution, (48) and legislatively reclassified crimes during the dictatorship as crimes against humanity, effectively eliminating any statute of limitations that would bar the prosecutions. (49) The law also has two major

implicit consequences: First, the Uruguayan judiciary now has full autonomy over what cases to open, no longer requiring the approval of the executive branch. Second, prosecution of human rights violations will now be devoid of the constraints of the political process and the unelected judiciary is now free to focus solely on the execution of justice. (50)

HUMAN RIGHTS ABUSES AND JUDICIAL AND LEGISLATIVE RESPONSES THROUGHOUT LATIN AMERICA

The state of affairs in Uruguay, while fascinating and paradoxical, is not entirely dissimilar to neighboring South American countries, many of which were ruled by dictatorships during the twentieth century. (51) Former dictatorships have confronted the aftermath of their respective regimes in a number of different ways, but the approaches of other Latin American countries can provide some guidance when evaluating the wisdom and consequences of recent events in Uruguay, leading to the inevitable conclusion that, for a variety of reasons, Uruguay's recent actions are an important step toward truth that should serve as an example to those countries yet to take these steps to right the wrongs of the past. (52)

A. Human Rights Abuses

Latin America in the latter part of the twentieth century was a hotbed for human rights abuses...