Report No. 55 (1997) IACHR. Case No. 11.137 (Argentina)

• Case Number: 11.137
• Year: 1997
• Report Number: 55
• Respondent State: Argentina
• Case Type: Merits
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Juan Carlos Abella

OEA/Ser.L/V/II.98; doc. 6 rev.; 13 April 1998; Original: Spanish CASE 11.137; JUAN CARLOS ABELLA; ARGENTINA [1]/; November 18, 1997 I. BACKGROUND A. CONTEXT 1. This case concerns events that took place on January 23 and 24, 1989, at the barracks of the General Belgrano Mechanized Infantry Regiment No. 3 (RIM 3), located at La Tablada, Buenos Aires province, and the consequences ensuing from those events for 49 persons on whose behalf a complaint was filed with the Inter-American Commission on Human Rights (hereinafter called the Commission). On January 23, 1989, 42 armed persons launched an attack on the aforementioned barracks. The attack precipitated a combat of approximately 30 hours duration between the attackers and Argentine military personnel which resulted in the deaths of 29 of the attackers and several State agents. [2]/ The RIM 3 barracks had an arsenal from which the attackers, after having entered the site, seized a number of weapons which they used to defend their positions. 2. Although democracy was restored in Argentina in December 1983 after almost eight years of military dictatorship, several uprisings involving the armed forces have occurred since then. Specifically, little over a month before the events at La Tablada, on December 12, 1988 a military uprising led by Colonel Mohamed Ali Seineldin took place in the Villa Martelli military base. 3. In their complaint, the petitioners allege that, after the fighting at the base had ceased, State agents participated in the summary execution of four of the captured attackers, the disappearance of six others, and the torture of a number of other captured attackers, which occurred both in the barracks and in police facilities. Following the attack, five MTP members were arrested in an area near the barracks, and two others turned themselves in voluntarily to the authorities who detained them. According to the petition, these seven persons were tortured physically and psychologically. The same persons, members of the MTP, as well as thirteen attackers captured in the RIM 3 barracks at La Tablada on January 24, 1989, subsequently were tried and convicted under Law 23.077, known as "Law for the Defense of Democracy", in trial No. 231/89 "Abella, Juan Carlos y otros s/rebelión" (hereinafter Abella) and given prison terms that ranged from 10 years to life. In accordance with the provisions of the law, the trial began before a court of second instance, the Cámara Federal de San Martín, which handed down its sentence on October 5, 1989. The petitioners appealed this ruling by means of a special appeal, which was rejected by the San Martín Court. The defense then filed an appeal directly to the Supreme Court, which dismissed it on March 17, 1992.; 4. The petition also alleges that the authorities acted with the intention of covering up the violations committed by State agents. Specifically, the petitioners state that those violations were reported during the Abella proceedings, but were investigated separately in so-called "parallel proceedings". According to the petitioners, these "parallel proceedings" were not conducted in a serious or thorough manner, resulting in a lack of clear or conclusive information with respect to the violations alleged in connection with the events of January 23 and 24 at La Tablada. B. EVENTS ALLEGED BY THE PETITIONERS 5. On September 14, 1992, Martha Francisca Fernández de Burgos and Eduardo Salerno filed a petition with the Commission against the Argentine Republic (hereinafter "the State" or "Argentina"), denouncing these and other crimes supposedly committed by State agents in connection with the events at the La Tablada base. Specifically, the petition alleges violations of Articles 4 (right to life), 5(1) (right to humane treatment), 7(5) (right to be tried within a reasonable time), 8 (judicial guarantees), 24 (right to equal protection), and 25 (right to judicial protection) of the American Convention on Human Rights (hereinafter "the American Convention"). i. The Victims 6. The petitioners' complaint was filed on behalf of 49 victims, whose names appear below, and which are subdivided based on legal and factual criteria as described in the complaint. a. Sentenced to prison (20 persons) Life: Claudia Beatriz Acosta, Miguel Angel Aguirre, Luis Alberto Díaz, Roberto Felicetti, Isabel Margarita Fernández de Mesutti, Gustavo Alberto Mesutti, José Alejandro Moreyra, Carlos Ernesto Motto, Sergio Manuel Paz, Luis Darío Ramos, Sebastián Joaquín Ramos, Claudio Néstor Rodríguez, and Claudio Omar Veiga. 20 years: Juan Antonio Puigjané. 15 years: Dora Esther Molina de Felicetti. 13 years: Miguel Angel Faldutti and Daniel Alberto Gabioud Almirón. 11 years: Juan Manuel Burgos and Cintia Alejandra Castro. 10 years: Juan Carlos Abella. b. Disappeared (6 persons) Carlos Alberto Burgos, José Alejandro Díaz, Juan Manuel Murúa, Iván Ruiz, Carlos Samojedny, and Roberto Sánchez. c. Unlawfully executed (4 persons) Berta Calvo, Francisco Provenzano, Pablo Martín Ramos, and Ricardo Veiga. d. Dead (19 persons) Eduardo Aguero, Oscar Allende, Ricardo Arjona, Julio Arroyo, Jorge Baños, Pablo Belli, Pedro Cabañas, José Luis Caldu, José Chebaia, Claudia Deleis, Félix Díaz, Roberto Vital Gaguine, Juan González Rabuggetti, Claudia Lareu, Horacio Luque, Miguel Angel Luque, Carlos Maldonado, Sergio Mamani, and Aldira Pereyra Nunes. ii. Events a. The attack and excessive use of force 7. The petitioners allege that the attack on RIM 3 was intended to abort a military coup d'etat. The petition starts the description of the events as follows: On January 23, 1989, a group of members of the Movimiento Todos por la Patria decided to enter the La Tablada barracks because of information that a new military coup was being planned there...that group of persons took action in the certain belief that the coup was imminent, and they based their action on a precept in the Argentine National Constitution, Article 21, which establishes for citizens the obligation to "take up arms in defense of the Constitution." 8. The group, consisting of some 40 persons, broke into the barracks at approximately 6:30 a.m., by ramming through the gate in their vehicles. The petition clarifies: ...it is important to point out that the attackers used their personal vehicles, were carrying their personal identification papers and were using civilian weapons purchased in conformity with existing rules on this subject for acquisition. 9. The petition continues by stating that one group took over the barracks stockade, where several soldiers were found under arrest, and the rest of the group infiltrated the interior of the barracks. After a short time, the attackers were surrounded by approximately 3,500 police forces, who cordoned off the barracks, and subjected them to indiscriminate fire. Three hours after the attack had started, the attackers signaled their intention to surrender by waving white flags. The petitioners stated that, despite these efforts, the following occurred: ...close to noon, troops arrived under the command of General Arrillaga. With their arrival, the gunfire began anew, and was stepped up from rifles and automatic pistols to tanks, armored vehicles and cannons. Some parts of the barracks were reduced to rubble, without any acceptance of the attackers' surrender or even any attempt to engage them in dialogue. Incendiary bombs were also used. 10. The petitioners allege that the State engaged in "bloody repression" to retake the RIM 3 barracks at La Tablada. They described this event as "unnecessary, without measure, disproportionate, inhumane, ethically indefensible, immoral and legally violative of all current legislation on this subject." They make the following points in the complaint: a) The La Tablada facility was surrounded by civilian buildings; b) Immediately after they entered the barracks, the attackers were surrounded by a police force totaling 3,500 members, who remained there until the army troops arrived at mid-morning on January 23, 1989; c) The army troops were made up of special forces (commandos), supported by armored vehicles, tanks, heavy machine guns, mortars and heavy artillery; d) The troops had air support from a group of helicopters; e) White phosphorus or incendiary bombs were used; f) The group of attackers consisted of approximately 40 persons, using common civilian weapons, who had given clear signals of surrender starting at 9:00 a.m. on the day of the attack; g) At the time mentioned in the preceding sentence, the number of dead and wounded on both sides was still small. 11. The petition also contains several remarks about the "domestic legislative framework under which the recovery of the barracks should have occurred," as well as "repressive methodology." In connection with the second point, they mention the attackers' attempt to surrender which occurred at 9:00 a.m. on January 23, 1989: That offer was not accepted, and, to the contrary, was answered by renewed fire which forced the attackers to take cover in the RIM 3 buildings... Nothing that should have been done was done. To the contrary, the explanation given by the head of the repression forces, General Arrillaga, was fantasy, in that he said that he did not give the order to accept the surrender "since he did not have a megaphone." 12. In their communication of February 2, 1994, the petitioners state that all the material and human loss, including the deaths of the soldiers who were inside the headquarters: ...is the consequence and responsibility of that unnecessary bombardment, which was carried out more specifically for the physical elimination of persons, and the political utilization of an event which could have been resolved by much less bloody means. 13. A videotape submitted by petitioners to the Commission contains scenes of one part of the barracks where...