‘Breaking the wall of impunity’ in Uruguay

Uruguayan judges and prosecutors begin to defy the Supreme Court of Justice’s closure of human rights investigations.

Judges and prosecutors are no longer willing to silently tolerate impunity - they are ready to fight for justice [AFP]

During my first trip to the country in 2007, one interviewee wryly joked that justice in Uruguay had two speeds: “slow, and very slow”. Since then, however, things have changed; so much so that in the first four months of 2013, the flurry of events and developments regarding prosecutions for the crimes of the dictatorship has, at times, been difficult to keep up with.

In our earlier pieces on the transfer of judge Mariana Mota and the sentence of the Supreme Court of Justice in February and March this year, we voiced several concerns, including possible delays to the numerous human rights cases that Judge Mota was in charge of, as well as the Supreme Court’s blatant disregard for international human rights law provisions.

A further fear was that the traditionally conservative Uruguayan judiciary would adhere to these signals from the Supreme Court and passively resign itself to closing down all investigations and prosecutions into past human rights violations.

Indeed, during the 1980s and 1990s, only a handful of judges and prosecutors dared to defy the structure of impunity embodied in the Ley de Caducidad amnesty law. Those who did paid a high personal and professional price, as in the cases of Alberto Reyes and Alejando Recarey, who were consequently transferred to different jurisdictions in 1997 and 2003 respectively.

History repeating itself?

The beginning of 2013 had begun to feel like a serious bout of dejá vu. Out of the 15 unconstitutionality appeals lodged with the Supreme Court’s regarding law 18.831, the tribunal has already deliberated on eight, judging in all but one in favour of the crimes being subjected to statutes of limitations and therefore being shelved invoking the principle of non-retroactivity of criminal law.

Supreme Court Judge Jorge Ruibal Pino, furthermore, stated in early April that none of the cases of past human rights violations would prosper and that they would face “a wall” in the Supreme Court. In addition, criminal judge Roberto Timbal managed to archive a 1978 political murder by applying the Supreme Court’s jurisprudence, which deemed it not a crime against humanity but a common crime. Judge Fanny Canessa likewise shelved another case of past human rights violations a few days later siding with the Supreme Court’s stance.

All these developments were met with pithy mocking by one lawyer who, playing with the country’s official name – Oriental Republic of Uruguay – called it la Republica Impune del Uruguay (the Unpunished Republic of Uruguay), highlighting once again the consolidation of impunity for past atrocities.

Recent developments in the country were unsurprisingly met by a wave of international condemnations, including by Amnesty International, the UN High Commissioner for Human Rights, the Center for Justice and International Law and the Inter-American Commission on Human Rights. More recently, the Inter-American Court of Human Rights also unequivocally rejected the Supreme Court’s argument regarding the statute of limitations and went as far as saying that it constituted an obstacle to the full compliance with the 2011 verdict of the Inter-American Court in the Gelman vs Uruguay case. 

A direct challenge against the Supreme Court is an unprecedented step and it is unclear what will happen next...

by Francesca Lessa and Pierre-Louis Le Goff

Domestic challenges to impunity

While international criticism of these developments is foreseeable, there are signs of apparent winds of change blowing from within the judiciary itself. In a significant twist in the fight against impunity in Uruguay, judges and prosecutors have begun to take a stand against the closure of investigations into the dictatorship’s crimes, throwing down the gauntlet the authority of the Supreme Court.

On the very same day, the Supreme Court released its first sentence on the statutory limitations (February 22, 2013), the Appeals Court No 1 unanimously argued that investigations into the crimes committed during the dictatorship should continue so that those crimes would not go unpunished; further, in a second sentence, the same tribunal contended that, the jurisprudence from the Supreme Court notwithstanding, Uruguay was obliged to prosecute and punish such atrocities in compliance with the Gelman verdict.

More recently, in the aftermath of Ruibal Pino’s combative statements, five criminal public prosecutors presented an appeal against four of the five Supreme Court judges calling for them to be put aside in future sentences relating to the crimes of the dictatorship. The prosecutors maintained that Ruibal Pino had “pre-judged” in the cases – violating the principle that bodies can review their decisions and listen to other arguments – and as such, he and the other three judges should no longer adjudicate on them.

Such a direct challenge against the Supreme Court is an unprecedented step and it is unclear what will happen next; normally, judges from the Appeals Court are selected to temporarily substitute Supreme Court judges. However, this is the first time that four out of five judges are being called upon to recuse themselves from considering cases.

Over the past couple of days, two criminal court judges have also gone against the Supreme Court. Judge Beatriz Larrieu – who has taken over Mota’s tribunal – rejected the petition to close down the investigation into the death and torture of Norma Cedres that occurred between 1975 and 1978. In her resolution, Larrieu had a two-fold argument.

First, she claimed that those crimes amounted to crimes against humanity and were therefore not subject to statutes of limitations; second, the judge argued that the Ley de Caducidad had blocked all investigations into human rights crimes since 1986 and therefore the statutory limitation should only begin to be counted from 2009, when the law was declared unconstitutional by the Supreme Court.

Just a few days later, judge Juan Carlos Fernandez Lecchini – without deeming it necessary to deliberate on the issue of crimes against humanity – considered that the 1977 assassination of Julio Castro by the dictatorship had not expired given that between 1985 and 2005 the state had been unable to prosecute the crimes of the dictatorship due to the application of the Ley de Caducidad.

While it is still too early to say whether these attempts will be enough to guarantee that past crimes will not go unpunished, it is nonetheless important to recognise the significance of these developments, which suggest that things are changing in Uruguay. Following in the steps of judges Mota, Reyes, Recarey – as well as those of other individuals such as former prosecutor Mirtha Guianze and human rights lawyer Pablo Chargonia who led landmark prosecutions such as that into the disappearance of Elena Quinteros in 2002 and 2003 – judges and prosecutors in Uruguay are no longer willing to silently tolerate impunity and are ready to fight for justice.

Dr Francesca Lessa is a postdoctoral researcher at the Latin American Centre and St Anne’s College, University of Oxford, specialising on issues of justice and human rights in Uruguay.

Pierre-Louis LeGoff is a research assistant at the Latin American centre, University of Oxford, and a member of the committee for Crimes Against Humanity at the Permanent Assembly for Human Rights (APDH), Buenos Aires, Argentina.

Follow him on Twitter: @P_LeGoff