Ekaterina Sivolobova, a student in the Faculty of Law at the University of Buenos Aires, Argentina, writes about the problem of legal impunity in Uruguay...
ithout a doubt, legal impunity is a problem affecting Latin America. Most South American states have issued amnesty laws that prevent the investigation of human rights violations committed during dictatorships. Although some of these amnesty laws have already been nullified, others remain valid, allowing human rights violations to go unpunished. One such case is Uruguay's amnesty law.
The amnesty law of Uruguay, Law 15.848, is also known as the "Ley de Caducidad" (Expiry Law) and was enacted in December 1986 as a result of an agreement between the political parties and the military. This amnesty law has prevented the investigation and adjudication of Uruguay's military and police for illegal detentions, systematic tortures, killings, and forced disappearances committed during the country's civil-military dictatorship.
By enacting the Expiry Law, Uruguay has certainly violated international human rights principles and treaties signed and ratified by the state. The Expiry Law violates 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.
The Expiry Law disregards fundamental legal rights. It obstructs investigations, prevents access to justice, and violates the right to be heard by a competent, independent, and impartial tribunal. Additionally, it contravenes the right to judicial protection by not guaranteeing victims and their families protection against acts that violated fundamental rights recognized by Uruguay's constitution. The Expiry Law also prevents access to the truth, frustrating the investigation of violations of the rights to life, liberty, and physical and psychological integrity. Furthermore, Articles 3 and 4 of the Expiry Law grant the executive the authority to decide, without the right of appeal, whether cases filed in Uruguay's courts would be subject to the Expiry Law. This is in direct contravention of the principle of separation of powers embodied in the Uruguay Constitution. By enacting this law and perpetuating it for 24 years, Uruguay has both guaranteed complete impunity from prosecution for crimes committed during the dictatorship and ignored its obligations as a state.
Nevertheless, there have been two attempts to use the referendum provision set forth in Article 79 of Uruguay's constitution to overturn the Expiry Law. Article 79 establishes the right to call for a referendum on a given law, and is an institutionalized form of direct democracy that permits the citizenry to enact or nullify a law. On April 1989, the first referendum was called on the legitimacy of the Expiry Law, which had been enacted four years earlier. By a popular vote, the Expiry Law was upheld with 57% of the votes in its favor. This disappointing decision was attributed to the then-current transition to democracy, institutional instability, and tensions between the military and civilian government. As a result of this referendum, human rights violations and criminal impunity went unaddressed for 20 years.
A second referendum on the Expiry Law was called on October 25, 2009. Once again, the referendum failed to pass, with 53% of the votes supporting its validity and 47% calling for its nullification. This result has been attributed to Uruguayans' ignorance of the referendum due to a lack of information available in the media. The continued validity of the Expiry Law has been a disappointment to the victims of the Uruguayan dictatorship and their families. However, as Jose Miguel Vivanco, Americas director at Human Rights Watch, has said, "the plebiscite results are disappointing, but let's not forget that accountability is not a popularity contest that should be decided by majorities, [...] Uruguay has an international legal obligation to investigate, prosecute, and try those responsible for heinous crimes, and the courts should continue to prosecute appropriate cases."
After two failed attempts to overturn the Expiry Law through referendums, opponents have discussed other possibilities. Currently, the discussion has centered on whether this law could or should be reinterpreted, derogated, or declared null and void. Without addressing the implications of international human rights law, the discussion persists due to different political interests. Because these three options vary widely in legal effect, it is important to clearly understand each when considering Uruguay's obligations.
A reinterpretation of the Expiry Law would examine and clarify the law's textual meaning. Generally, reinterpretation presupposes different or contradictory interpretations and applications among courts. Until 2005, however, Uruguay's Expiry Law had been interpreted and applied uniformly. Nevertheless, if this law were to be reinterpreted, its new reading would only take effect from that date forward, with no application to previously concluded cases. Those cases would remain covered by the amnesty law. Furthermore, reinterpretation would not nullify the Expiry Law, but rather affirm its validity and purpose. Because re interpretation of the Expiry Law would result in the law's continued legal force, it should not be considered a serious option.
A second option is to derogate the Expiry Law. Derogation would result in the Expiry Law's cancellation and prevent its application to future cases. However, just like reinterpretation, derogation would not have any effect on previously concluded cases. Furthermore, to derogate the amnesty law would imply that the law has legal status, whereas the Expiry Law should not be given any legal credence. Because derogation of the Expiry Law would preserve prior legal impunity, it should also be rejected.
The third option is to declare the Expiry Law null and void. This would imply that the amnesty law, because it violates jus cogens (compelling law) norms, is, and always has been, illegitimate. Therefore, nullification of the amnesty law would extinguish all of its effects, including decisions from previous cases. This would return to victims the right to truth, the right to justice, and the right to reparations. As a result, I hope that nullification is the course chosen by Uruguay.
Nullification is a valid option, as the Uruguayan Constitution gives the legislature the power to issue new laws, modify existing ones, and declare laws unconstitutional. Using this power, Uruguay's legislature has previously declared at least 2 laws null and void, setting a precedent for nullification of the Expiry Law.
The Expiry Law's 20 year history in Uruguay has constituted a continuous violation of human rights, contravening fundamental rights granted by the Constitution and by the international human rights treaties to which Uruguay is a party. Uruguay has an obligation to remove all obstacles to the investigation and punishment of those responsible for the tortures, killings, illegal detentions, and forced disappearances during the dictatorship - including those cases that have already been decided. Uruguay must adopt the necessary legislative measures to comply with international standards and provide retributive and restorative justice to the victims of the Uruguayan civil-military dictatorship.
Photos: Ekaterina Porras Sivolobova
Mentioned in this article:
Uruguay Expiry Law, in Spanish
The Universal Declaration of Human Rights
International Covenant on Civil and Political Rights
American Convention on Human Rights (Pact of San Jose)
Inter-American Convention to Prevent and Punish Torture