The procedural machinations of the AN result in the release of Miguel Angel Cavallo, responsible for crimes against humanity.
In a comuniqué published on 26th December 2006 entitled "Hay razones procesales para suponer que el oficial naval Miguel Angel Cavallo quedará en libertad" ("There are procedural reasons to expect that Navy Officer Miguel Angel Cavallo will be set free"), Equipo Nizkor gave an update on the status of this case as a result of the decision of 20th December 2006 by which the 3rd Section of the Criminal Division of the AN, composed of Judges Alfonso Guevara Marcos (President), Ricardo Rodríguez Fernández and Fermín Javier Echarri Casi, declared itself incompetent to try Cavallo and again invited the Argentinian authorities to formally request his extradition.
In this communiqué we explained the procedural history of the case since 3rd October 2003 when the first order to close the investigation was made, in other words, from the date when the investigation phase with respect to the accused was concluded. We also set out a series of conclusions with respect to the said order of 20th December 2006. The analysis of the situation created by the 3rd Section of the AN by means of this order led to the conclusion that the probable consequence thereof was that the accused would be freed.
Then, on 29th January, due to the expiry of the legal time period of 40 days which had been granted to Argentina to remit the documentation in support of the extradition, the 3rd Section of the Criminal Division of the AN released Cavallo, notwithstanding that its decision is not final as it is subject to an appeal to the Supreme Court.
On 30th January 2007, Cavallo voluntarily appeared first thing in the morning before the investigating judge of the AN, Fernando Andreu. He was accompanied by his lawyer, Fernando Pamos de la Hoz.
The judge, having confirmed the existence of an order of imprisonment issued against Cavallo on 27th December 2006 by the head of the Federal Criminal and Corrections Court No. 12 of Buenos Aires, Sergio Torres (which has indicted him in respect of 5 criminal charges), proceeded to order the imprisonment of Cavallo as part of the extradition process.
According to information provided by the news agency Europa Press on the basis of documents to which the agency has had access, Judge Torres accused Cavallo, amongst other crimes, of "the commission of repeated acts of torture and deprivation of freedom aggravated for having been committed by a public official in abuse of his duties and for having been committed with violence and threats".
According to journalistic sources, at the suggestion of the lawyer defending Cavallo, Fernando Pamos de la Hoz, who would have notice that the documentation from the Argentinian authorities was already in the possession of the Spanish Ministry of Justice, Judge Andreu, proceeded to contact the Ministry which forwarded to him by fax the documentation supporting the extradition sent by the Argentinian authorities. In its note, the Justice Ministry advised the judge that one of the documents expressly asks for "the detention of Sr. Cavallo for the purposes of the extradition request."
In addition, the Justice Ministry informed the Judge that the Council of Ministers would agree, on the following Friday, to the continuation of the judicial extradition proceedings and that he would be sent the entire documentation on the subject which had been transmitted by the Embassy of Argentina.
As can be seen from the way the proceedings have unfurled, the matter has been immersed in an example of sophisticated procedural engineering, the consequence of which has been that a naval officer to be tried for crimes against humanity in the AN has been set free.
There is an evident intention to break the procedural cohesion by releasing Cavallo who, by appearing at court "voluntarily", submits to what can be called a passive extradition, and one in which there is no procedural connection between the two proceedings. (*)
In fact, all the legal decisions that have been taken, including the declining of jurisdiction by Judge Baltazar Garzón in the Fotea case, have one objective, which is to terminate definitively in an arbitrary and illegal way those trials subject to universal jurisdiction in Spain, leaving the prosecuting parties without remedy and making it apparent that there is an agreement between the Spanish and the Argentinian Governments without which this kind of engineering would be impossible.
Madrid, 30 January 2007
We reproduce below the full text of our communique dated 26Dec06, as we think that it can help to understand the way the Audiencia Nacional and the Argentinian authorities have been acting:
There are procedural reasons to expect that the Navy Officer Miguel Ángel Cavallo will be set free.
Since 16th February 2005 when the Central Investigating Court (Juzgado Central de Instrucción - 'JCI') No. 5 of the Spanish Audiencia Nacional (the 'AN') issued a decision to conclude the investigation concerning Ricardo Miguel Cavallo, the process has been plagued by delaying tactics designed to exhaust the maximum period of preventive imprisonment of the accused before the oral trial could take place or, in any event, before a conviction could be handed down.
Let us recall that by 3rd October 2003, the JCI No 5 had already issued a decree concluding the investigation in respect of Ricardo Miguel Cavallo, but this was returned by the Criminal Division of the AN in order to clarify, by way of rogatory commissions, the issue of pending legal processes that may exist in the Republic of Argentina.
Since the conclusion of the investigation was again decreed in February 2005, the most important milestones in this delay - directly relating to the intermediate stage of the proceedings (prior to the oral trial) against Cavallo - consisted of various rogatory commissions agreed by a ruling of 3rd November 2005 and a decision of 27 June 2006, in which the 3rd Section of the Criminal Division of the AN, basically, invited the Argentinian authorities to request his extradition from Spain.
Both these legal requests were produced at the instance of the lawyers for the accused in coordination with certain procedural actions instituted by both the prosecution and the Argentinian judiciary.
Another delaying tactic of great importance is the result of the appeals for annulment which various public and private prosecutions announced between 26th April and 12th May 2005 against the judgement for crimes against humanity published on 19th April 2005 in the case of Adolfo Scilingo Manzorro.
These prosecutions filed a joint formal appeal with the Supreme Court on 12th January 2006. In this they state that "In the context of the proven facts of the judgement we hereby appeal, we shall analyse the erroneous characterisation in law which, in our opinion, the sentencing court has applied to the same", arguing that the proven facts establish the crimes of genocide and terrorism and not crimes against humanity.
The appellants do not offer any kind of evidence which would permit an analysis of the "mens rea" or the specific intent required in genocide that leads to the characterisation of the facts in the particular case of Adolfo Scilingo as constituting genocide; but neither did they do so during the relevant procedural stage, that is to say during the trial itself.
The documents filed by the Argentinian Association for Human Rights ("AAPDH") of Madrid on 10 November 2006 in defence of the judgement against Adolfo Scilingo state: "Ultimately, the lack of evidence of the crime of genocide happens to coincide with the interests of the defence team of Officer Adolfo Scilingo, given that if the charge were to be so characterised the accused would have to be released for lack of evidence. The intention behind seeking to modify the legal definitions in analysing a series of contextual facts which have the clear characteristics of crimes against humanity cannot be for any other reason than to defend the interests of the accused and the officers who organized, directed and planned the extermination group of the Argentinian Navy which operated in the ESMA, throughout Argentina and even in foreign countries".
It is noteworthy that the appellants offer arguments against the judgement issued in the Scilingo case that not even his own defence team put forward.
In any event, the consequence of this joint appeal has also been to extend the time taken by the AN to indicate a commencement date for the trial of Cavallo, as the dispute as to the characterisation of the acts -the decision of the Supreme Court with respect to the appeal and ultimately whether or not it ratifies the judgement in Scilingo-, affects how the AN can characterise the acts to be tried in the Cavallo case.
Returning to the matter of the rogatory commissions issued by the 3rd Section of the Criminal Division to the Argentinian authorities, in the first one of these, dated 3rd November 2005, the Division issued a "Rogatory Commission to be transmitted by means of the INTERPOL service as a matter of urgency, in order that Federal Criminal and Corrections Court No. 12 in Buenos Aires ( Juzgado de lo Criminal y Correccional nš 12 de Buenos Aires ) and the Office of the Federal Prosecutor remit a report stating whether Ricardo Miguel Cavallo will be the subject of a trial in the Republic of Argentina with respect to the same acts as are the subject of the current proceedings, in which case, indicating whether there will be a request for the extradition of the defendant and we request a response with maximum urgency given the time limits of preventive imprisonment". In addition, the Division stated "the proceedings in this case are suspended until the Rogatory Commission has been complied with".
On the same day, 3rd November 2005, the Criminal Division of the AN en banc, (with the President of the Division at this time being Judge Gómez Bermúdez whose appointment to this position has been annulled by the Supreme Court on two occasions), reached an agreement concerning the interpretation of the judgement of the Constitutional Court of September 2005 in which the highest Court ratified the application of universal criminal jurisdiction for serious crimes against human rights.
This agreement, which lacks any merit as jurisprudence given that it does not arise from a court giving judgement in the context of a trial, applies an interpretation of the principle of universal jurisdiction which is contrary to that used by the Spanish Constitutional Court, and tries to exceed the principle of concurrence and convert its application into one of subsidiarity. This was contrary to what the Constitutional Court was seeking to settle as law.
On 15th June 2005, the Prosecutor General, Cándido Conde-Pumpido, in a Press Conference which he gave during his visit to the Prosecutor's Office of Jaén, pointed out, according to press information, that within his Office the case against the former military Ricardo Miguel Cavallo was still pending in proceedings in which the problem of subsidiarity would have to be examined given that "universal jurisdiction intervenes in principle when there is no solution in the location where the acts actually took place", and that " If the Argentinian justice system, by means of appropriate legislative reforms, can be useful in resolving these problems, we will have to examine if the intervention of the Spanish justice system continues to be necessary".
These statements presaged the position of the Prosecutor's Office in the Cavallo case, which in its written provisional conclusions of January 2006 does not once mention the judgement issued in the Scilingo Case for crimes against humanity.
On the other hand, as Radio Nizkor announced in its programme dated 14th August 2005 the Court forecast that the trial of Cavallo would commence in October of the same year.
On 28th September 2005, when the investigation stage had been carried out, the Association HIJOS of Madrid, through its lawyer Susana García, at the time an employee of the Argentinian Embassy in Madrid, asked to appear in the proceedings, which request was agreed by a decision dated 10th October 2005.
Similarly, by means of a document filed at the AN one day before, on 27th September 2005, the accused formally designated the lawyers in charge of his defence as Fernando Pamos de la Hoz, Alberto de la Hoz Pamos, and Sabina Rodrigo de Santiago-Salgado.
Fernando Pamos de la Hoz, had also formally represented Adolfo Scilingo at key moments of the trial and, although Scilingo was represented by a public defender, this attorney relied on the assistance of the Pamos team.
The collusion of the various actions designed to obstruct the proceedings were becoming very clear.
As the public prosecution brought by the AAPDH in Madrid stated in its appeal of 11th November 2005 against the action of the Court to suspend proceedings:
a) An International Rogatory Commission was issued last October 27th, after the head of the National Prosecutor's Office of the Federal Criminal and Corrections Court No. 3 of Buenos Aires, Eduardo Raúl Taiano, had formulated a petition for investigation before Court No. 12, Secretariat No. 23 in the context of Case Nš 14.217/03, "E.S.M.A. s/delito de acción publica" (re: offence for which a public prosecution can be brought)
In his petition, Prosecutor Eduardo Raúl Taiano, requests that "the relevant investigation be carried out with respect to the persons I list in the following paragraph"; this consists of 295 persons, the majority of whom were members of the Argentinian Navy at the time of the acts, and in respect of whom the prosecutor issues the said petition in the view that "the crimes at issue, committed by the State apparatus constituted not only human rights violations but also, given their scale, volume and seriousness, crimes against humanity according to international law."
Among the 295 persons are listed:
"230) CAVALLO, Ricardo Miguel, alias "Marcelo", "Miguel Ángel" and "Sérpico", alias "Marcelo Carrasco". At the time of the acts, he was a Lieutenant in the Argentinian Navy, carrying out duties in the intelligence group of Task Force 3.3/2".
b) The defence of Ricardo Miguel Cavallo, aware of the above action by the Argentinian Prosecutor's Office, filed submissions on 31st October 2005 in the Third Section of the Criminal Division of the Audiencia Nacional, which were the source of the Third Section's Rogatory Commission, thus causing a deciding and competent jurisdictional organ (the Audiencia Nacional) to ask a [foreign] judge and a Prosecutor's Office whether or not a defendant awaiting trial under the AN's jurisdiction is to be tried in the future in another jurisdiction (thus asking for a prediction for the future to which it is impossible to respond) for the same acts, leaving the proceedings entirely at the will of the Argentinian judicial system which thereby becomes the party which determines the jurisdiction of this [the Spanish] Court.
The AAPDH (acusación popular) also stated in its appeal:
"This ruling leaves in doubt the due impartiality of this Court as it constitutes undue favourable treatment to the positions of one of the parties in the process, that is to say, the defence of Ricardo Miguel Cavallo, and puts into question the principle of equality between the parties to the process...
By virtue of this ruling, the Court is de facto withdrawing itself from the case, rejecting the competence which both the law and jurisprudence attribute to it, acknowledge for it and oblige it to exercise. And this is apart from the fact that the competence of the Court is also a right of the victims as to be otherwise would be to deny access to due process to justice and a fair process without delays...
The Rogatory Commission which was issued gives a green light to delaying procedural strategy; it clearly serves no purpose other than to create delays in the face of an expiring period of preventive imprisonment as is apparent from the Court's decision to 'suspend the proceedings until the Rogatory Commission is complied with'.
By failing to take into account the judgement of the Constitutional Court referred to above, what has resulted is an obstruction to the proceedings by the defence of Ricardo Miguel Cavallo, consented to and consummated...
This unusual action in which a competent organ having jurisdiction would abandon that jurisdiction by inviting foreign jurisdictional authorities to create legal conditions which permit them, at some time in the future, to request extradition of an accused subject to the jurisdiction of the ordinary Spanish courts, cannot but create, as we stated, an obstruction to the process, as only two possible actions are left:
a) That the Argentinian judicial system decides procedural time limits which allow the expiry of the period of preventive imprisonment of Ricardo Miguel Cavallo before the trial by this Court can take place or, that the expiry of the said period falls before any conviction can be decided; and/or
b) That faced with this unjust resolution of the matter, this accusing party finds itself compelled to appeal these actions, and as a result the delays to the process in Spain continue, with the consequential risk again of the expiry of the period of preventive imprisonment. Such a delay is not, of course, the will of this prosecution but, due to the procedural machinations taking place, the Court leaves us no alternative but to appeal...
We also want to highlight the bad faith which has been shown by the State of Argentina during the last 10 years while this case has been the subject of investigation, using various and original ways of influencing the proceeding, trying to have the case closed and in every instance, with a clear intention of obstructing and denying Spanish jurisdiction in a case of crimes against humanity.
Even the public prosecutor's office appealed on 14th November 2005 against the suspension of the trial as did other private and public prosecutions.
By an order dated 12 December 2005, the Court having considered the appeals decided to resume the proceedings. Soon afterwards the time period commenced within which the parties must submit their provisional pleadings of the facts, which is normal for this intermediate stage prior to the oral trial.
The Prosecutor presented its provisional conclusions on 11th January 2006, the AAPDH of Madrid, via its lawyer, Antonio Segura, presented its pleadings on 22nd February 2005 submitting a document prepared in consultation with Equipo Nizkor, to which the Private Prosecution of Graciela Palacio de Lois also subscribed, and the pleadings of the other prosecutions represented by the lawyers Carlos Slepoy, José Luis Galán, Jaime Sanz de Bremond, Juan Puig de la Bellacasa, Manuel Ollé and Susana García were filed on 24th February .
With a document dated 12th May 2006, the defence of Ricardo Miguel Cavallo filed what is known in Spanish procedural law as "a motion to declare the proceedings null and void and to decline jurisdiction".
Basically, this filing is a preliminary objection, alleging the lack of competence of the Spanish courts.
On 27th June 2006 the Third Division of the Criminal Court of the AN issued a decision admitting in part the motion of the defence and decided to issue a Rogatory Commission to Argentina to produce the documentary evidence required by the defence and, again, leaving the procedural time limits at the mercy of the Argentinian judicial system.
In the said decision of 27th June 2006, the Court decided, among other things: To issue a Rogatory Commission, under the Treaty of Extradition and Judicial Assistance in Criminal Matters between the Kingdom of Spain and the Republic of Argentina dated 3rd March 1987, to the Federal Criminal and Corrections Court No. 12 in Buenos Aires "so that the same can advise whether an extradition petition for Ricardo Miguel Cavallo in existence in Argentina is addressed to Mexico or Spain, if the said petition is still awaiting a decision of the National Criminal Appeals Court and if it reached that Court as a result of annulment proceedings brought by the prosecution or the defence of Cavallo, and further, advising whether on 29th November 2005 the defence of Cavallo requested that his extradition be sought in Spain in relation to Case 14.217/2003 (Acosta, Jorge Eduardo et al. for deprivation of liberty, events which took place in ESMA"), and indicating at which stage this extradition request is now found."
The Court also asks Central Investigating Court No. 4 for documentation on the decision which agreed to grant to Argentina the extradition of Juan Carlos Fotea Dimieri, detained in Spain in November 2005 at the request of Argentina after having resided in Spain, at least since 1985.
Let us recall that by an order dated 21st April 2006, the Second Division of the Criminal Court of the AN decided to grant Argentina the extradition of Juan Carlos Fotea Dimieri. This accused's defence team, led by the firm Ruiz Jiménez, appealed against this order. It was again the Criminal Division of the AN, in a plenary session, which rejected the defence's appeal by an order of 14th June 2006 (a few days before the order of 27th June 2006 by which it decided to issue the Rogatory Commission to Argentina in the Cavallo case).
For its part, the AAPDH in Madrid had requested the Central Investigating Court no. 5, where the Argentinian cases are held, to continue the proceedings for crimes against humanity against Fotea in Spain. Thanks to the intervention of this prosecution, which also submitted information concerning the massacre at the Church of Santa Cruz as additional facts in the case, it was possible in the context of the Argentinian proceedings to obtain an order for provisional imprisonment of Juan Carlos Fotea on 22nd November 2006. He was then released on bail by Judge Baltazar Garzón by an order dated 20th December 2006, notwithstanding that the crimes against humanity for which he is being investigated, given their serious nature, were not susceptible to such measures of clemency as that granted, without proper substantiation, by the said Judge Garzón.
This slight digression - which we thought appropriate in order to highlight the synchronization of the stages of the legal process between the various cases- and consequent upon certain other actions in the proceedings, leads us to the Order of 20th December 2006 by which the AN declares that it is not competent to try Cavallo and invites the Argentinian authorities, once again, to formally request his extradition.
With that decision, the AN left essentially in the hands of the accused the matter of his own release, given the reading of the following articles of the Treaty of Extradition and Judicial Assistance in Criminal Matters between the Kingdom of Spain and the Republic of Argentina of 1987:
The Requested State may grant the extradition, notwithstanding that the formal requirements of this Treaty have not been complied with, if the person sought, having received legal advice, expressly agrees after having been informed of his rights to an extradition proceeding and of the protection afforded by such proceeding.
1. The Requested State will communicate to the Requesting State, its decision with respect to the extradition in the manner described in Article 15.
2. A negative decision, in whole or in part, shall be accompanied by the reasons for such decision.
3. If extradition is granted, the States shall agree the means by which to surrender the person sought, which surrender should take place within a period of forty-five days from the date of the communication referred to in paragraph 1 of this Article.
4. If the person sought is not removed within the said period, the person will be released and the Requesting State may not submit a further request in respect of the same offence.
5. At the same time that the person sought is surrendered, all documents, money and other property of the person which should be made available shall be surrendered to the Requesting State.
1. If the person sought is subject to a criminal proceeding or conviction in the Requested State, his surrender can be postponed until such proceedings are concluded in the said State, or may be carried out temporarily or definitively on conditions established with the agreement of the Requesting State [...]
By way of conclusion we can therefore state:
1) The Third Section of the Criminal Chamber of the Audiencia Nacional has left the prosecution parties without a legal remedy to the extent that any appeal to the Supreme Court will take longer than the period of provisional imprisonment still remaining for Ricardo Miguel Cavallo and that period expires in the month of June 2007.
2) The Third Section of the Criminal Chamber of the Audiencia Nacional gave the ruling that we refer to here in the conviction that the most opportune moment to do so would be during the Christmas holiday period in Spain and the summer holidays in Argentina.
3) The Third Section of the Criminal Chamber of the Audiencia Nacional has thereby forgotten, neglected and left without remedy the over 600 Spanish victims acknowledged in the judgement which convicted the Navy Officer Adolfo Scilingo, many of whom were killed in ESMA.
4)The Third Section of the Criminal Chamber of the Audiencia Nacional, by virtue of this ruling, leaves the liberty of the defendant entirely in the hands of his own lawyers, given that it opens procedural appeals for extradition and that the parties who are involved as prosecuting parties in the proceedings have no right whatever to participate, whereas the defence lawyers for the Navy Officer Ricardo Miguel Cavallo do have such rights.
5) We should also point out that the time spent by the Navy Officer in prison is also computed for the purposes of Argentinian law, as a result of which the actions of the Third Section allow that the time period, expiring in June 2007, runs out in the course of procedural matters, as a consequence of which there arises not simply an undue delay in the process but a clear denial of justice - and in practice may signify his release.
6) The Third Section of the Criminal Chamber of the Audiencia Nacional by this ruling has put at issue the Judgement of the Constitutional Court dated 26th September 2005 holding that jurisdictions may be concurrent in cases such as this one, again putting the position of the AN and the State Prosecutor, the Government's representative in this proceeding, which favour the implementation of the principle of subsidiarity instead. This is effectively to exercise a non-existent right of political interference in legal matters which are being decided in another country.
7) We understand that the procedural momentum of the case in Spain has pre-eminence over the investigative phase which is being carried out by Judge Torres in Argentina for the simple reason that the Audiencia Nacional concluded the investigation phase on 3rd October 2003 and since that date, without any of the underlying facts having varied, that phase has been re-opened and definitively closed on 26th February 2005.
The foregoing is without discussing the issue of Mexico, which as a matter of pure legal formality, could still claim the return of the extradited navy officer Ricardo Miguel Cavallo.
Given the circumstances, it would be appropriate to conclude that in reality we have witnessed some legal engineering the objective of which was not justice, but obstruction.
Madrid, 26 December 2006
(*) The proceedings taking place in Spain against Cavallo have been investigated by Central Investigation Court No. 5 of the Audiencia Nacional (Case record No. 19/1997). He has been released in connection with this case record. He appeared "voluntarily" before Central Investigation Court No. 4 in the framework of the extradition proceedings promoted by the Argentinian and Spanish authorities, which have no procedural relation at all with case record No. 19/1997. [Back]
Juicio oral en España
|This document has been published on 17Feb07 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.|