Elusive justice in Uruguay

On February 13, 2013, the Uruguayan Supreme Court of Justice (SCJ) announced that criminal judge Mariana Mota was transferred to a new assignment in a civil court. Mota was investigating over 50 cases of serious human rights violations (including murders and disappearances) perpetrated by the Uruguayan dictatorship between 1973 and 1985.

Even though Uruguayans awoke to this news in the middle of the summer vacations, the reaction at this event was unprecedented. Hundreds of people peacefully went into the streets to protest in Uruguay, while academics wrote an open letter [Sp] in La Republica newspaper demanding that the SCJ clarify the reasons behind the transfer. Furthermore, numerous local and international human rights organisations warned of a serious setback that could potentially stall progress on accountability in Uruguay and throughout the region.

A year later, what has been the impact of Mota’s transfer? Is the shadow of the dictatorship still hanging over Uruguay?

The transfer

Mota’s transfer caused shock, but not surprise. Throughout 2012, the judge faced several attempts to oust her from her post, including investigations by the SCJ [Sp]; she was never formally sanctioned. The magazine Busqueda was a source of frequent attacks. Even the president of Uruguay, Jose Mujica, took a stance [Sp] in support of the SCJ, following comments Mota had made to Argentinian newspaper Pagina12 on the slowness of the Uruguayan legal process [Sp] in investigating past crimes. Furthermore, some cases that Mota was investigating regarding a former clandestine detention centre [Sp] and the Air Class accident [Sp] led to friction with the Ministry of Defence.

The SCJ is yet to publically state the reasons for the transfer, beyond mentioning merit and seniority [Sp]. In September 2013, Mota and her lawyer presented an administrative claim for the transfer’s annulment[Sp]; a decision is pending. In June 2013, the SCJ rejected an earlier petition, arguing it possessed “exclusive competence“[Sp] regarding judges’ nomination and transfer.

The campaign against the judge is far from over. In November 2013, the SCJ asked Mota[Sp] to explain whether she made statements to El Pais newspaper regarding the prosecution of four individuals for protests inside the SCJ against Mota’s transfer on February 25.

In a personal interview, human rights activist Raul Olivera (Observatorio Luz Ibarburu[Sp]) emphasised that the context in which the transfer occurred is fundamental. It was a particular moment for Uruguay: The country had just received the first condemnatory verdict by the Inter-American Court of Human Rights (February 2011) and had been dealing, during 2012, with new allegations of atrocities encompassing torture, deaths in prison and sexual crimes that had never been presented in court before. Furthermore, criminal investigations progressed beyond the lower and middle ranks of the security forces reaching former and active generals, such as General Miguel Dalmao who was tried for the 1974 murder of a teacher.

Mota’s transfer was only the beginning of a broader accountability setback. Ten days after her transfer, the SCJ released a ruling deeming dictatorship crimes not to be crimes against humanity and therefore subject to statutes of limitation. Following this logic, most allegations of past crimes should be shelved. Even though this ruling did not set a precedent, it would be hard for lower level judges to disregard this strong signal from their superiors, who are in charge of career progress and evaluation.

A turning point?

Looking back at 2013, the record on accountability is bleak. While over 200 investigations into dictatorship crimes [Sp] are open in Uruguay, there were just fives sentences. Two sentences shelved proceedings following the SCJ’s position, two more absolved four[Sp] defendants and one was a condemnatory verdict[Sp] – albeit with an extremely light sentence for the 1973 murder of students. Compare this to Argentina where 24 criminal trials were completed with 160 people sentenced[Sp].

According to activists, the cases that Mota had in her docket were in a situation of “semi-paralysis”. Even though a new judge has taken over and declared that she will continue investigating, there has not been much progress. The other criminal cases besides Mota’s were similarly being stalled and delayed because, as human rights lawyer Pablo Chargonia explained in a personal interview, “the stance of the SCJ on statutory limitations and the unconstitutionality of law 18.831 allow defendants’ lawyers to generate delays upon delays by presenting unconstitutionality appeals and prescription claims”.

In the ongoing struggle against impunity, Olivera highlighted, time has become “a key element: The SCJ and the security officers’ defence lawyers are skilfully using “multiple strategies to delay indefinitely the justice process”.

Twists and turns

This is only the latest episode in the twists and turns characterising Uruguay’s path in seeking accountability for past violations of human rights.

The transfer and/or sanction of judges and prosecutors working on past atrocities are hardly new: The cases of Alberto Reyes, Estela Jubette, Alejandro Recarey and Mirtha Guianze throughout the 1990s and 2000s are illustrative. Former SCJ prosecutor Oscar Peri Valdez even publicly admitted in 2004 that, in the aftermath of the first criminal trial for a dictatorship crime, he had received pressure from the Minister of Culture and Education to transfer the prosecutor in the case[Sp].

While this trend persists, what has changed is the public reaction. In 2013, human rights groups and activists mobilised quickly, calling attention to Mota’s transfer and triggering national and international criticism.

It is undeniable that Mota’s transfer, the SCJ stand on dictatorship crimes and its disregard for international obligations are a cause of concern. The SCJ’s conservative attitude can be partially explained by the lack of vetting of judges upon the democratic transition in 1985. A degree of continuity exists, with some judges that worked during the dictatorship retaining their positions under democracy.

Furthermore, many judges lack training in international law.The likelihood of any systemic shift in the culture of impunity is therefore reliant on individual judges effectively applying it by themselves. The composition of the SCJ will also not change until 2015.

Additionally, the governing Frente Amplio coalition has failed to wholeheartedly embrace the cause of accountability. With elections coming up in October 2014, this is unlikely to change. The issue of the past generates political controversy and political leaders will steer clear of it this year, as they did during the 2009 electoral campaign. The armed forces remain unrepentant: The new army commander-in-chief Juan Villagran recently asserted that there is no more information to contribute[Sp] in the search for the disappeared.

Yet, in a broader perspective, not all hope is lost. According to Alvarez Petraglia, the movement for justice in Uruguay has, “overcome plenty of difficult obstacles before, from the government’s discourse denying the existence of the desaparecidos to the most absolute impunity”.

New strategies and creative tools to achieve justice have consistently been found such as Chargonia’s first breach in 2002 of what seemed an impenetrable amnesty law leading to criminal trials. These are just a few examples of what an extremely resilient human rights movement has achieved against all odds. All their efforts are required to completely move Uruguay away from the shadow of its dictatorship. 

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