Uruguay: Expiry Law
revoked
Published on : 21
November 2011 - 2:36pm | By International Justice Tribune
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Atrocities in Uruguay
Uruguay, like
Argentina, Brazil, Bolivia and Paraguay, was part of Plan Condor, which
supported right-wing military governments in order to fight the influence of
communism in South America in the '70's.
Amnesty law
After the return to
democracy, the civil government led by President Sanguinetti, adopted in 1986 Law
No. 15.848, AKA the Expiry Law, granting amnesty to those responsible for human
rights violations during military rule.
The difference against
other Amnesty Acts adopted in the region is that under the Expiry Law, some
cases could be opened if the President decided that investigations into cases
of alleged abuses could be allowed to proceed.
IACrtHR strike down the
amnesty law
However, the decisive
turning point came in February, when the Inter-American
Court of Human Rights in the Gelman Case, determined that the 1986
Expiry Law had no legal effectvis-à-vis the American Convention on Human
Rights, ordering Uruguayan authorities to strike down any internal measures
that could represent an obstacle to investigate and prosecute those responsible
for crimes against humanity, especially enforced disappearances.
New law adopted
Law No. 18.831, allowing the judiciary to independently investigate these
crimes, was adopted by the Uruguayan Parliament on 27 October (2011)
The adoption of Law
No. 18.831 represents a major change in the national prosecution of crimes
against humanity .. the judiciary is in charge of leading these proceedings, ..
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For the first time, crimes against humanity that might have been
perpetrated under the military government that ruled the country between 1973
and 1985 may be investigated. Law No. 18.831, allowing the judiciary to
independently investigate these crimes, was adopted by the Uruguayan Parliament
on 27 October.
By Mariana Rodríguez-Pareja and Salvador Herencia-Carrasco*
By Mariana Rodríguez-Pareja and Salvador Herencia-Carrasco*
Although there have
already been some judicial investigations in Uruguay, the so-called 1986
"Expiry Law" prohibited the judiciary from administering justice in
an autonomous manner. The peculiarity of the Uruguayan experience is that the
Expiry Law has been submitted twice to a referendum. In 1989, the Uruguayans
voted for the Law to remain into force. But in 2009 it didn't get the majority
of votes necessary to push for a reform to repeal it.
During the military
dictatorship, human rights organisations estimate that approximately 213 people
disappeared; around 6,000 were jailed as long-term political prisoners. The
most common practices were tortures and the abduction of the children of
political dissidents, who were later given to other families.
Uruguay, like
Argentina, Brazil, Bolivia and Paraguay, was part of Plan Condor, which
supported right-wing military governments in order to fight the influence of
communism in South America in the '70's. This regional strategy facilitated
cross-border assassinations, tortures and enforced disappearances.
The 1986 Uruguayan
Expiry Law
After the return to democracy, the civil government led by President Sanguinetti, adopted in 1986 Law No. 15.848 (Ley de Caducidad de la Pretensión Punitiva del Estado), also known as the Expiry Law, granting amnesty to those responsible for human rights violations during military rule.
After the return to democracy, the civil government led by President Sanguinetti, adopted in 1986 Law No. 15.848 (Ley de Caducidad de la Pretensión Punitiva del Estado), also known as the Expiry Law, granting amnesty to those responsible for human rights violations during military rule.
This Law declared the
expiry of the State's power to prosecute crimes committed before 1 March 1985
by military personnel or police forces during the de facto regime. The approval
of this Act was also consistent with the policies and laws adopted by other
countries in the region at the time which decided to approve Amnesty Laws
fearing chaos or further threats to democracy after years of military
dictatorships.
The difference against
other Amnesty Acts adopted in the region is that under the Expiry Law, some
cases could be opened if the President decided that investigations into cases
of alleged abuses could be allowed to proceed.
But after the
restoration of democracy, many cases were blocked, without the right to appeal.
This power granted to the Executive is in direct contravention to the Uruguayan
Constitution and International Human Rights Law, which embodies the separation
of powers. Despite the peculiarities of the Expiry Law, de facto President
Bordaberry (1973-1976), and President Alvarez (1981-1985) have been prosecuted
and convicted for crimes that were not covered by the amnesty.
President Mujica, a
former Tupamaro leader who was tortured and served in prison for a long term
during the military regime, had previously argued publicly against scrapping
the amnesty, pointing to the referendum results. Nevertheless, before the vote
in Parliament, amnesty supporters and members of the Armed Forces claimed they
would seek prosecution of former guerrillas, especially Tupamaros.
RELATED ARTICLES
Revoking the Expiry
Act
Uruguay's Expiry Act violated not only the Constitution, but international human rights principles and treaties, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights, and the Inter-American Convention to Prevent and Punish Torture. It also violates rulings by the Inter-American Court of Human Rights which are binding and final. Even the Uruguayan Supreme Court ruled on several occasions on the unconstitional character of the Act.
Uruguay's Expiry Act violated not only the Constitution, but international human rights principles and treaties, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights, and the Inter-American Convention to Prevent and Punish Torture. It also violates rulings by the Inter-American Court of Human Rights which are binding and final. Even the Uruguayan Supreme Court ruled on several occasions on the unconstitional character of the Act.
In 2006, President
Tabaré Vázquez allowed an investigation into the crimes perpetrated under the
military regime. Earlier this year, President Mujica, using the powers granted
under the Expiry Act, decided to reopen 88 cases of human rights abuses.
Turning point
However, the decisive turning point came in February, when the Inter-American Court of Human Rights in the Gelman Case, determined that the 1986 Expiry Law had no legal effectvis-à-vis the American Convention on Human Rights, ordering Uruguayan authorities to strike down any internal measures that could represent an obstacle to investigate and prosecute those responsible for crimes against humanity, especially enforced disappearances.
However, the decisive turning point came in February, when the Inter-American Court of Human Rights in the Gelman Case, determined that the 1986 Expiry Law had no legal effectvis-à-vis the American Convention on Human Rights, ordering Uruguayan authorities to strike down any internal measures that could represent an obstacle to investigate and prosecute those responsible for crimes against humanity, especially enforced disappearances.
The adoption of Law
No. 18.831 represents a major change in the national prosecution of crimes
against humanity in Uruguay. For the first time, the judiciary is in charge of
leading these proceedings, leaving all political considerations aside. Due to
the fact that only those cases considered as crimes against humanity can be
reopened, no statutory limitations or other measures that may halt proceedings
are applicable.
Families of the
victims are celebrating the adoption of this law as one step closer to knowing
the truth about their loved ones. This new development in Uruguay shows that
despite the challenges and limitations - the constitutional standing of human
rights treaties, the rulings of the Inter-American Court and its interpretation
by national courts - can bring about positive change and consolidate the rule
of law.
* Mariana
Rodriguez Pareja is a Communications Expert and Human Rights Advocat-
based in Buenos Aires. Twitter: @maritaerrepe
Salvador Herencia
Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of
Jurists, based in Lima.
