Friday, December 19, 2014

Inter-American Court decides Arguelles case from Argentina

Inter-American Court of Human Rights

The case of Arguelles et al. v. Argentina was decided by the Inter-American Court of Human Rights ("the Court") on November 20, 2014 but was just posted on the Court’s website.  The petitioners requested the Court to determine whether military court proceedings against military officials for military crimes in this case met the international human rights standards set forth in the American Convention.  The Inter-American Commission and Court, on numerous prior occasions, have developed significant doctrine on the issue of military jurisdiction.   Prior cases, however, have all involved either one of two situations: 1) questions relating to the treatment of civilians by military courts or 2) military court proceedings, or the lack thereof, against military officials charged with violations of human rights.  The novelty of the question presented by the petitioners in this case, however, goes to the compatibility of a Code of Military Justice (CMJ), applied within its appropriate scope, and a State’s human rights obligations under the American Convention.  This is a case of first impression since it has not been addressed by the Court before.

The facts were not in contention.  Both the petitioners and the State accept that the 20 alleged victims were subject to military and civilian proceedings that terminated in a military court’s first instance judgment and a civilian appeals court judgment, respectively, and that the Supreme Court declined to review the matter.  Between the military and civilian proceedings, in 1994, the Argentine Constitution was amended and international human rights treaties were given constitutional ranking in domestic law.  As a result, on appeal, the petitioners were able to argue that the military procedures to which they had been subjected violated fundamental constitutional rights and Argentina’s human rights obligations under the American Convention.  At issue was whether the domestic judicial proceedings violated the alleged victims’ rights to personal liberty, due process and judicial protection and/or any other right protected by the American Convention.

In Argentina, during the time of the events in this case, military jurisdiction was defined by the Constitution and the CMJ.  Military courts were organized by the Supreme Council of the Armed Forces, which depended on the Ministry of National Defense and was comprised of nine members who were appointed by the President.  The CMJ was reformed on February 15, 1984, by law 23.049, two months after Argentina became democratic and introduced two substantive changes: 1) it limited the competence of military courts, during peace time, to essentially military crimes and 2) the obligatory and total revision of sentences of military courts by the Federal Criminal Appeals Courts (later the National Chamber of Criminal Cassation).  The 1984 reforms, which provided for the obligatory review by the civilian courts of the actions of the military tribunals provided the appropriate guarantee to determine whether there had been a violation of human rights and the necessary means to remedy it.  Consequently, the Court did not find a violation of articles 8.1 and 25.1 of the American Convention, regarding fair trial and access to justice.

More than a decade after the National Chamber of Criminal Cassation issued a decision in the present case (March 20, 1995), the Argentine Supreme Court issued its decision May 6, 2007) on the applicability of the CMJ in the case “Lopez, Ramon Angel.”  In that decision, the Argentine Supreme Court held that functionaries of the Executive branch are not competent to try crimes.  The competence of military tribunals arises from the condition of commander in chief of the President, and this is an administrative not judicial competence.  These courts do not have competence in criminal jurisdiction since the Executive branch has no such competence and the Executive’s subordinates cannot derive such competence if the head of the Executive branch does not possess it.  Consequently, by means of law 26.394 of August 26, 2008, the CMJ was derogated and it was established that military jurisdiction would apply only to disciplinary matters and that jurisdiction over crimes would be transferred to ordinary criminal justice.

The Court questioned the independence of the members of the Supreme Council of the Armed Forces since the members were active members of the Armed Forces and were dependent and subordinate to their superiors, who were part of the Executive branch.  In addition, six of the nine members of the Supreme Council were not required to have legal training (art. 12 of the CMJ), which is not a problem in a purely administrative or disciplinary court but which does not comply with the requirements of article 8.2 of the American Convention as regards the right to a fair trial.

In addition the Court declared a violation of article 8.2 together with 1.1 of the right of the criminally accused to be assisted by a defense lawyer of one’s own choosing.  Article 97 of the CMJ did not grant the accused the right to a lawyer, but only the right to be defended by a military official in active service or in retirement.  Despite the fact that the National Chamber of Criminal Cassation decided that the accused did not suffer any violation of rights by not having legal representation, the Court found a per se violation of this provision by the failure to provide legal counsel.

In addition, the fact that the proceedings extended over 18 years, 14 of which transpired under the Inter-American Court’s jurisdiction, the Court found a violation of article 8.1 together with 1.1 of the right to be tried “within a reasonable time.”

1 comment:

  1. Thanks to Christina Cerna for another outstanding summary. This decision could have implications for the Superior Military Tribunal of Brazil, which includes a number of non-lawyer senior military officers as judges.


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