Transitional Justice in Latin America

Halfway towards accountability

Francesca Lessa and Elin Skaar^*

‘If you were to place Uruguay on a scale from 0 to 10, where 0 is total impunity for past human rights violations and 10 is full accountability, where would you locate your country?’ This is one of the questions we asked about 30 interviewees in Montevideo during our fieldwork in March 2012. We interviewed people from different sectors of society: legal professionals (judges, lawyers, prosecutors), academics (historians, political scientists, psychologists), activists from human rights and civil society organisations, trade union representatives, politicians, and journalists, among others.¹ Most people we talked to, irrespective of their background and their views on the question of how to respond to past human rights violations, awarded Uruguay a 6 on the 10-point imaginary impunity–accountability scale. In other words, Uruguay was generally perceived to be a bit more than halfway down the road to full accountability for past abuses.²

Since 2013, several events in Uruguay point to a slowing or partial reversal of this progress, especially in the area of criminal justice. Parallel to these negative developments, however, there has been progress in the areas of truth-finding and reparations. This suggests to us that that the country still deserves a 6 overall on the accountability scale. Whatever rating is applied, Uruguay’s almost three-decades-long trajectory from impunity to some accountability has been far from smooth but rather has been characterised by alternating periods of progress and setbacks.

Transitional justice measures in Uruguay came in response to repression carried out during the period of civil-military rule (1973–85), which coincided with military governments in the rest of the Southern Cone and Brazil. Unlike Argentina, which had long periods of alternating civilian and military governments, Uruguay had largely been a stable democracy before that period. Apart from dictatorial intervals in the 1930s and 1940s, the country had a distinctive experience with liberal and participatory democracy, a rising and educated middle class, and growing financial markets. By the late 1960s, however, Uruguay was caught in a downward spiral of social and political polarisation, ideological tensions, and the erosion of civil liberties. Torture was increasingly used as a counter-insurgency technique in the fight against the urban guerrilla movement known as the Tupamaros. The deepening economic and political crisis led to the installation of a brutal dictatorial regime, including both civilian and military components, in June 1973.

While in other countries of the region the military took over by force, in Uruguay it was gradually invited into politics from the late 1960s onward. Accelerating this process, President Juan María Bordaberry of the right-wing Colorado Party placed the judiciary under military control in April 1972. He then carried out an autogolpe (self-coup), handing over the executive branch to the military’s National Security Council in February 1973. In June of that year, Bordaberry finally dissolved Parliament and suspended the constitution. By the late 1970s, Uruguay had shattered its image of being the ‘Switzerland of Latin America’ and earned a new title: the ‘torture chamber of Latin America’, reflecting the state’s widespread use of illegal detention, imprisonment, and torture (Pearce 1980). Most victims were activists on the political left, including politicians, students, trade unionists, teachers, and journalists. The country’s small size and population enabled the regime’s repressive apparatus to deeply infiltrate both public and private life (Gillespie 1991). The result was an oppressive culture of fear and insilio (internal exile) that instilled passivity and compliance, nearly paralysing the society (Perelli 1992).

The human cost of repression in Uruguay, with a population of approximately 2.8 million at the time, was large. Between 300,000 and 500,000 Uruguayans fled the country. More than 60,000 people were arrested and detained, of whom 5,000–6,000 were held as long-term political prisoners (Lessa and Fried 2011). In the 1970s, Uruguay was reported to have the highest percentage of political detainees per capita in the world (Sondrol 1992). However, compared to other countries examined in this volume, Uruguay had a relatively small absolute number of people who were murdered or forcibly disappeared. Data released from the Human Rights Secretariat in December 2014 confirmed the occurrence of 123 politically motivated assassinations and 192 cases of forced disappearance (La República 2014).³ A feature particular to Uruguay is that the majority of cases of forced disappearance occurred outside the country’s borders, especially in Argentina, within the framework of the transnational coordination of repression under Operation Condor.⁴

In the early 1980s, a pacted transition brought about a return to democracy. The military stepped out of the government after democratic elections in late 1984, following the plan set earlier that year in negotiations between military commanders and political leaders at Montevideo’s Club Naval. However, with the right-wing Colorado government winning the elections, strong links to the military were preserved; accountability for past wrongs was not the principal subject for discussion at the time of transition in 1985. Impunity for past atrocities prevailed for almost two decades after the end of civil-military rule.

Nevertheless, Uruguay in recent years has begun to come to terms with its legacy of human rights violations and to initiate some transitional justice measures. Most importantly, the validity of Uruguay’s enduring amnesty law has been repeatedly challenged. Uruguay has also had several attempts at both official and unofficial truth-finding, and the government has set in motion measures to pay reparations to victims. When evaluating Uruguay’s trajectory in dealing with the past, it is worth noting that transitional justice developments between 1985 and 2004 occurred in a context of state-sponsored legal impunity, which fundamentally restricted the scope of judicial action. For almost 20 years, a human rights official told us, ‘the Uruguayan state adopted a closed up policy of impunity without any fissures, which was absolutely counter-productive for the country’.⁵ While there were tiny steps towards criminal accountability, impunity remained basically unaffected until 2004.⁶

The slow and irregular move towards accountability has obviously not taken place in a vacuum. As in many other countries in the region, civil society has been the main driving force in demanding truth and justice for past human rights violations. Activists inside Uruguay and exiles abroad have used the language of human rights to articulate their demands and denounce atrocities perpetrated both nationally and internationally (Markarian 2005). A particularity of the Uruguayan case is the strong link between the human rights movement, the main labour union PIT-CNT (Plenario Intersindical de Trabajadores – Convención Nacional de Trabajadores) and certain politicians, principally in the Frente Amplio (Broad Front).⁷ In fact, unlike in Argentina, Chile, and Guatemala, where relatives and victims have been at the forefront of mobilisations for accountability, a distinctive feature in Uruguay is the heterogeneity of the groups struggling for justice (Burt, Fried Amilivia, and Lessa 2013).

Receptiveness, on the part of the executive and judges, to these demands has grown over time from almost nil to considerable. In this chapter we highlight some of the factors that have contributed to this shift, as well as some of the obstacles that persist. We argue that important political changes at the national level explain the start of the shift towards more accountability at the turn of the millennium and that this process has been complemented, and at times accelerated, by regional and international developments.

Amnesties: two decades of impunity for human rights violations

Unlike in Argentina, Brazil, and Chile, where the dictatorial regimes implemented self-amnesty laws before transition, no such legislation existed in Uruguay. Accounts of the political negotiations that produced the Pacto del Club Naval affirm that no formal guarantees of impunity were agreed between the commanders of the armed forces and representatives of the three political parties participating in the talks: the Colorado Party, the Frente Amplio, and the Unión Cívica.⁸ Therefore, immediately upon transition, victims and their relatives presented claims to the courts regarding human rights violations. Judges began investigating the allegations of atrocities. In response, the right-wing Colorado government of President Julio María Sanguinetti downplayed the gravity of the human rights violations perpetrated in Uruguay, arguing that it was necessary to turn the page on the past and look to the future to achieve peace.

Throughout the 1980s, the government emphasised the need to consolidate democracy through ‘peaceful change’ (cambio en paz). It’s 1985 National Pacification Project included Law 15.737, known informally as the National Pacification Law. This provided for the release of all political prisoners, except those who had committed ‘blood crimes’ and whose sentences would be reviewed by the courts (Barahona de Brito 1997). Since Art 5 of Law 15.737 explicitly excluded from the amnesty’s remit human rights crimes committed by military or police officials, initially there seemed to be no intention to pardon human rights violations. However, as denunciations of atrocities increased in the courts, and judges started summoning alleged perpetrators, the military began to express discontent. The Colorado government responded swiftly to resolve the question by political means (Skaar 2007).

The Expiry Law and state-sanctioned impunity

Political parties were deeply split over how to handle the human rights issue. After much political wrangling, Parliament in December 1986 enacted Law 15.848, the Ley de Caducidad de la Pretensión Punitiva del Estado. Known in English as the ‘Expiry Law’ or simply the ‘amnesty law’, it was designed to terminate nearly all judicial proceedings involving the security forces. Article 1 suspended the state’s punitive capacity regarding crimes committed prior to 1 March 1985 by military and police officials in fulfilment of their functions or while following orders. A few exceptions were made: judicial proceedings at the indictment stage (Art 2), although there were none, and crimes committed for economic gain (Art 2). The law also entrusted the executive with the task of conducting investigations into cases of disappeared adults and minors (Art 4).

Significantly, Art 3 obliged the courts to transmit all allegations of past violations to the executive, which had the exclusive responsibility to decide on a case-by-case basis whether or not the Expiry Law was applicable. Article 3, in particular, undermined the separation of powers and judicial independence, as it divested the judiciary of its functions and transferred them to the executive, thus ensuring governmental control over any progress in criminal accountability.

Between 1986 and 2004, all governments applied the Expiry Law to prevent human rights cases from being examined by the courts.⁹ As a result, impunity prevailed in Uruguay for the first two decades of democratic life after the transition (Roniger 2011).

Challenges to the Expiry Law

The Expiry Law has been the subject of repeated civil society, political, and legal challenges, both nationally and internationally. Shortly after its adoption in 1986, the law was cemented by two important events. First, in a 3–2 decision in 1988, the Supreme Court of Justice (SC) deemed the law constitutional, effectively endorsing the government’s official policy of impunity.¹⁰ Second, in 1986, human rights activists had initiated a referendum with the aim of overturning the Expiry Law; that referendum, held in April 1989, resulted instead in 55 per cent of Uruguayans voting to retain it (Roniger 1997). This democratic seal of approval seemingly rendered the government immune to international criticism of the amnesty. Critical reports by the Inter-American Commission on Human Rights in 1992 and by the United Nations (UN) Human Rights Committee in 1993, 1994, and 1998, as well as several reports by Amnesty International, were pointedly ignored by the government.

Nonetheless, after almost two decades of state-endorsed impunity, a new and broad democratic mobilisation emerged to challenge the amnesty law. Between 2007 and 2009, the main trade union PIT-CNT, the student federation, human rights non-governmental organisations (NGOs), cultural and public figures, and some Frente Amplio legislators launched a campaign to hold a second public vote on whether the Expiry Law should be annulled. The plebiscite, held on 25 October 2009 in conjunction with national elections, ultimately failed, as less than 50 per cent voted in favour of eliminating the law (Lessa 2014).

As pointed out by several of our informants, including both human rights activists and legal professionals, the failure of the campaign may largely be attributed to internal disagreements within the Frente Amplio on how to deal with the past. Although this left-wing coalition had traditionally been an ally of the human rights cause and had promoted transitional justice after it was voted into power in 2004, the Frente only very timidly endorsed the plebiscite (Lessa 2013c). The coalition, as well as its presidential candidate at the time, José Mujica, focused on winning the presidential and parliamentary elections and did not actively support the plebiscite. This was likely a result of the fact that the coalition remained deeply divided internally over how to deal with the Expiry Law. While several of the Frente’s constituent parties like the Partido por la Victoria del Pueblo, Nuevo Espacio, and the Communist Party strongly campaigned for the plebiscite, other factions of the coalition prioritised the continuity of government (Lessa and Fried 2011).

After the failed plebiscite, politically heated discussions continued over what to do with the amnesty law. The Frente Amplio government headed by President Mujica (2010–15) initially sought a so-called interpretative law that would clarify the Expiry Law. After months of political wrangling between the Chamber of Deputies and the Senate, the interpretative bill collapsed in Parliament.

Parallel to these civil society and political efforts, the amnesty law was being challenged in Uruguayan courts. In 2000, a first instance civilian court of Montevideo ordered investigation into the detained-disappearance of Elena Quinteros Almeida, a Uruguayan teacher who disappeared in 1976. Though the aim was to establish the facts and not to criminally prosecute the defendant, the judge in the case challenged the power that the Expiry Law gave to the president to order investigations or criminal prosecution (Skaar 2011). In 2002, a first instance criminal court in Montevideo formally charged the former minister of foreign affairs, Juan Carlos Blanco, with the unlawful kidnapping and disappearance of Quinteros. This was the first time a judge accepted going ahead with prosecution in a case of human rights violations stemming from the dictatorship period. To get around the Expiry Law, the lawyers in the case argued that Blanco was a civilian and was therefore not covered by the law, which grants impunity only to military and police. Moving away from its own 1988 decision, the Supreme Court in 2009 and 2010 handed down three landmark rulings declaring Arts 1, 3, and 4 of the Expiry Law in violation of the constitution and several human rights treaties, marking a positive leap on the accountability scale.¹¹

The Expiry Law was also strongly criticised by the Inter-American Court of Human Rights. In a February 2011 ruling in the emblematic Gelman case, the Court declared the Expiry Law to be in violation of Uruguay’s international human rights obligations. The Court condemned Uruguay for the disappearance of María Claudia Gelman and the illegal alteration of the identity of her infant daughter Macarena.¹² According to informants interviewed in Montevideo in the legal sector, academia, and human rights NGOs, the Gelman ruling worked as an effective catalyst in bringing about the eventual derogation of the amnesty law. International pressure mounted on Uruguay to comply with the Court’s ruling. Although Uruguayan judges were previously not indifferent to regional legal developments in human rights, they had reacted much more slowly than their counterparts in Chile and Argentina (Skaar 2011). After Gelman, a heightened sensitivity to international precedents signalled a new trend in Uruguay.

Eventually, a second legislative challenge to the Expiry Law was successful, and Parliament derogated the law on 27 October 2011. Law 18.831 re-established the state’s punitive capacity regarding crimes of state terrorism committed before 1 March 1985 and declared them to be crimes against humanity. Amnesty has thus formally come to an end, but achieving justice for dictatorship crimes remains an uphill struggle. Indeed, as detailed below, there has been a backlash in favour of impunity since then. Only a handful of trials have been completed over the past three years and just one new prosecution has been initiated since 2011, despite many fresh allegations of atrocities presented to the courts.

Trials: advancing criminal accountability through the courts

Criminal accountability for past human rights violations in Uruguay has taken place in a civil law-based inquisitorial judicial system that, unlike most other judicial systems in Latin America, has remained virtually unreformed since the dictatorship (Skaar 2011). The judiciary is well institutionalised and quite professional, giving it among the highest scores in Latin America on the rule of law index (World Justice Project 2014). Yet it is deeply hierarchical and conservative in nature. Supreme Court judges wield substantial power over lower court judges with respect to appointments and disciplinary measures, making judicial independence a tricky issue. The structure and nature of the court system no doubt partly helps to explain why justice for past wrongs is being delayed (Skaar 2011).

Criminal prosecutions for dictatorship crimes in Uruguay may be divided into three phases, closely related to the status of the amnesty law. Immediately after transition, numerous cases of human rights violations (HRV) were brought to court, only to stall when the adoption of the Expiry Law in 1986 led to their closure. There followed a period of almost no activity in this area (1986–2002).¹³ The third phase of criminal trials for dictatorship crimes – the main focus of our analysis – began in 2002 and has been characterised by a few, rather spectacular, verdicts.

Exploiting loopholes in the Expiry Law

The first breach in the logic of impunity and the Expiry Law occurred in 2002 in the Elena Quinteros case. Elena’s mother, with the support of lawyer Pablo Chargoñia, succeeded in having the previously archived criminal case into her daughter’s fate reopened, based on the innovative legal argument that the Expiry Law did not apply to civilians. As a result, in October 2002, Judge Eduardo Cavalli charged the dictatorship’s former foreign minister, Juan Carlos Blanco – a civilian – with Elena’s unlawful imprisonment. Coming 17 years after the transition, Blanco’s trial and preventive detention was the first to take place in post-dictatorship Uruguay; as such, it constituted an historic achievement in the struggle against impunity. The case set the tone for how potential loopholes in the amnesty could be exploited while the law was still in force.¹⁴

Progress in criminal accountability was directly related to whether executives applied the Expiry Law to permit or prevent criminal investigations of alleged atrocities. After 20 years of conservative rule, the first Frente Amplio government, headed by President Tabaré Vázquez (2005–10), allowed some judicial investigations to move forward in a series of specific crimes. These included economic crimes, crimes committed by civilian or military/police officials of the dictatorship, crimes committed abroad, and the illegal appropriation of children, all of which the president considered to fall outside the amnesty law’s remit. This resulted in the opening of judicial proceedings in approximately 25 cases, encompassing about 60 victims in total. Subsequently, President José Mujica, also of the Frente Amplio (2010–15), followed the trend set by his predecessor.¹⁵

Since 2005, civilians, police and military officers, and even two former heads of state (Juan María Bordaberry and Gregorio Álvarez) have been indicted, prosecuted, and sentenced for crimes committed both within Uruguay and – more often – outside its borders, principally in Argentina. We highlight a few emblematic cases. The first charges ever brought in Uruguay against military and police officials took place in 2006, when a criminal court judge in Montevideo prosecuted six military officers and two policemen for 28 disappearances of Uruguayans in Buenos Aires in 1976 (SERPAJ 2006). In 2009, in the first judgment to be handed down regarding past crimes, the defendants received sentences ranging from 20 to 25 years’ imprisonment for aggravated homicide (SERPAJ 2010). This judgment was upheld by the Supreme Court in 2011.

In another landmark case, Uruguay in 2010 became one of the first countries in Latin America (indeed the world) to hold a former head of state accountable for past human rights violations. A Montevideo court sentenced former dictator Bordaberry to 30 years’ imprisonment for orchestrating two political murders and nine disappearances and for leading the 1973 coup d’état (de León Orpi 2011). The same year, former foreign minister Blanco was sentenced to 20 years for the aggravated homicide of Elena Quinteros, a sentence confirmed by the Court of Appeals in 2012 (Pernas 2012). In 2011, Bordaberry and Blanco also received 30-year prison terms for the aggravated homicides of two prominent politicians kidnapped and murdered in Buenos Aires in 1976 (La República 2011a).¹⁶ In 2011, the Supreme Court confirmed the 25-year sentence of former dictator Gregorio Álvarez (1981–85) for 37 aggravated murders (Palermo 2011).

In 2010, Judge Mariana Mota applied the legal term ‘disappearance’ in the case of two Uruguayan citizens who disappeared in Paraguay in 1977. The Montevideo Court of Appeals confirmed Mota’s sentence in 2011, thus accepting the application of the crime of forced disappearance for the first time in Uruguayan legal history (Rodríguez 2011). Finally, judicial proceedings began in 2010 against one active and one retired general for the murder of literature professor and communist militant Nibia Sabalsagaray in 1974. General Miguel Dalmao was prosecuted and sentenced to 28 years in prison in 2013 for Sabalsagaray’s death (La República 2013), the first active duty military officer ever to receive such a sentence.

As this brief overview shows, trials have taken place in relation to active duty and retired police and military officials as well as civilians, including two former dictators and the dictatorship’s foreign minister. They have concerned crimes that occurred both in Uruguay and outside the country, particularly in Argentina and Paraguay. The vast majority of trials have been for murder or aggravated murder; in only one case has the crime of disappearance been accepted. As will be discussed below, however, there has been much resistance in Uruguayan courts against applying international law on torture and disappearance (Guianze 2011).

While progress in these emblematic cases is clearly welcome, lawyer Chargoñia warns that this selective approach also constitutes ‘a form of impunity’. He contends that it runs the risk of ‘overshadowing other individuals and their responsibility’, given that the machinery of state terrorism, of systematic torture and illegal transfer of prisoners went well beyond these symbolic cases and relied on an extensive number of people and resources.¹⁷

Recent legal developments

In late 2011, alongside efforts to derogate the Expiry Law in Parliament, human rights activists worked to present new allegations of past crimes to the courts. This wave of denunciations occurred because they feared that, after 1 November 2011, a statute of limitations could be invoked to shelve criminal investigations into dictatorship crimes. Thus, in September 2011, 50 former political prisoners filed accusations of torture, while another 30 did so for similar abuses at the clandestine detention centre known as 300 Carlos. In October 2011, the student federation, together with the NGO Iguales y Punto and lawyer Federico Álvarez Petraglia, helped present 170 new denunciations of torture, illegal detention, and kidnapping (Subrayado 2011). Female former prisoners also presented denunciations of torture, particularly sexual violence (Contreras and Touriño 2011). While torture and prolonged imprisonment were the principal characteristics of the repression, the focus of trials up to that point had been on disappearances and assassinations.¹⁸ These important denunciations turned the spotlight back on torture, paving the way for prosecutions for this crime.

However, the picture a few years later looks quite bleak. As of December 2014, there were 256 criminal cases making their way through the judicial system. Yet only six prosecutions (2 per cent) had gone though all stages of appeal and had received a final ruling by the Supreme Court. Just eight cases (3 per cent) had reached the indictment phase, while the majority (164 cases, 63 per cent) were still at the pre-indictment stage. Between 1985 and 2014, 33 individuals were tried for dictatorship crimes, 19 of whom ended up spending time in prison. Since the overturning of the Expiry Law in 2011, only one new trial into past crimes has been initiated – in March 2012 – while many of the torture allegations presented to the courts are still in the pre-indictment stage (Chargoñia 2014, 30, 37). Between the end of 2011 and the end of 2014, only six trials advanced in the courts: two resulted in proceedings being shelved and two absolved four defendants. There were two condemnatory verdicts for Colonel Tranquilino Machado and General Dalmao in separate criminal investigations regarding the murders of Ramón Peré and Nibia Sabalsagaray. Uruguay thus presents a stark contrast with Argentina, where, during the same period, 58 trials were concluded.

In addition to the extremely slow pace of criminal proceedings, the stance of the Supreme Court on the question of whether the dictatorship’s crimes constitute crimes against humanity has also shifted the balance back towards impunity. In a February 2013 judgment, and in several subsequent judgments that year, the Supreme Court, invoking the principle of non-retroactivity of criminal law, declared that Arts 2 and 3 of Law 18.831 – the law derogating the amnesty law – were unconstitutional. The Court further argued that dictatorship crimes should be subject to a statute of limitations. This conservative jurisprudence has been criticised both nationally and internationally. The Inter-American Court unequivocally rejected the Supreme Court’s argument regarding the statute of limitations, saying that it constituted an obstacle to full compliance with the 2011 verdict in the Gelman case (Lessa and Le Goff 2013). Some prosecutors and judges have distanced themselves from this jurisprudence and vowed to continue investigating. Yet, as human rights activists have highlighted, ‘the stance of the SCJ [Supreme Court of Justice] 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’, with the goal of delaying the justice process indefinitely (Lessa and Le Goff 2014).

Drivers of change and remaining obstacles to criminal accountability

Victims and survivors, supported by human rights NGOs and a handful of human rights lawyers, have pushed for justice through the Uruguayan courts since the time of transition, but their efforts have been increasingly successful only in recent years. There has been a sharp upturn in independent action by judges and prosecutors willing to hear human rights cases since the turn of the millennium. This helps to explain this positive development in criminal accountability, as shown in Figure 4.2.

Although the number of judges (Alberto Reyes, Estela Jubette, Mariana Mota), prosecutors (Mirtha Guianze, Ana María Tellechea), and lawyers (Pablo Chargoñia, Walter De León, Álvarez Petraglia, and Pilar Elhordoy) making progress on these cases is still relatively small, they have been essential in bringing about some accountability. If the judicial apparatus had not been receptive to claims for truth or justice consistently voiced by the victims and relatives, either these cases would not have been heard (as has been a dominant trend in many countries) or they would have stalled due to lack of evidence (Skaar 2013). Yet the inconsistent stance of the Supreme Court on the Expiry Law – first declaring the law unconstitutional in a unanimous decision in the Sabalsagaray case in 2009, and then ruling in 2013 on the partial unconstitutionality of the Expiry Law’s derogation – no doubt sends mixed messages to lower court judges. The ambivalence of the Supreme Court on how to deal with the past is probably due, at least in part, to internal divisions over how to apply national versus international law to the human rights cases stemming from the dictatorship.

There are numerous political and legal obstacles to full criminal accountability. First, the Frente Amplio government, despite taking unprecedented steps since 2005, has nonetheless failed to adopt clear-cut policies favouring accountability.¹⁹ Indeed, the government continues to give mixed and tentative signals, as illustrated by its failure to fully endorse the 2009 plebiscite on the Expiry Law and by the debacle of the proposed interpretative law in 2010 and 2011.

Second, the executive has not collaborated sufficiently with the judiciary in providing access to archives and other types of documentation; in some instances, it has actively blocked the provision of information. Scholar Gerardo Caetano laments the condition of state archives and argues that the state must proactively search for those files that relate directly to political repression, not only for use by scholars and historians, but also, and most importantly, to support ongoing judicial investigations.²⁰

Third, judicial investigations have been slow and inefficient. The almost 200 denunciations presented in October 2011 preceding the derogation of the Expiry Law have largely languished in the judicial system. Judges report that they struggle with the lack of information needed to make progress on difficult human rights cases. Military personnel have systematically refused to tell the truth about what happened when they have been called by judges to testify, although they have provided some general information about certain incidents. According to one of the high-profile judges handling human rights cases, Judge Mariana Mota, ‘the vertical hierarchical structure of the military is very strong and very much respected’.²¹ Rather than rely on military confessions, then, judges have to depend largely on other sources. The secretariat set up in the wake of the Peace Commission (discussed in the next section) is supposed to supply the courts with such information, but although there is willingness to do so, no formal structure is in place to ensure the necessary flow of information.²²

Furthermore, even though a new unit was set up in 2013 within the Ministry of Interior to support the investigation of state terror crimes, many judges were unaware of its existence, since the Supreme Court failed to transmit this information to them. Victims themselves and their relatives commonly play a fundamental role in cases of past crimes, presenting denunciations to the courts and submitting relevant proof and documentation (Chargoñia 2011). The lack of witness protection is also considered to be a problem.²³ The inquisitorial system is still used in Uruguay, so investigative judges are in charge of obtaining all relevant documentation in the case; these same judges later pass judgment, a procedure described as ‘absurd’ by a first instance judge. There is no system of technical assistance provided to the investigative judges by the prosecutors, as is done in Argentina. There are also no specialised courts to deal with human rights cases, as there are in Chile and Guatemala.²⁴

Fourth, there is resistance within the judiciary to dealing with human rights cases. The Uruguayan judiciary has been described as conservative, cautious, ‘resistant to change, and very orthodox in its interpretation of the laws’ (Brinks 2008, 199). A point frequently brought to our attention was the lack of training in human rights issues and international law, as well as the lack of exchanges with judges and prosecutors in other countries, even neighbouring ones (Guianze 2011).²⁵ Although there have been some improvements in recent years, judges, especially older ones, persist in disregarding international treaties and international human rights law in their judgments.²⁶ Judges reluctant to deal with human rights cases tend to keep on applying national law rather than invoking international human rights law in their judgments. The designation of enforced disappearances as ‘continuous crimes’ (delitos permanentes), adopted in Argentina and Chile, has yet to be assimilated in Uruguayan jurisprudence (Guianze 2011).

The main point of contention is application of the term ‘homicide’ (a common crime) rather than ‘disappearance’ (an internationally defined crime). Homicide is subject to statutes of limitations: it has a limitation of 20 years, though this was increased for dictatorship crimes, in light of their gravity, to 26 years and eight months. Disappearance is considered a continuous crime and is, therefore, exempt from statutes of limitations. This has a direct bearing on determining which cases can be investigated by courts and which cannot. Indeed, most Uruguayan judges have characterised past violations as common crimes, following national legislation, rather than as crimes against humanity. Although international law has the same legal standing as national law, Uruguay has been very slow to incorporate the norms of international law into its jurisprudence.

Truth-finding: multiple, complementary attempts

Like criminal accountability, truth-finding in Uruguay has been a lengthy process, stretching over four decades. While only one truth-finding attempt fits the formal definition of truth commissions used in this volume, we offer below a more inclusive overview of both informal and formal truth-finding efforts since transition.

Parliamentary and civil society inquiries into past human rights violations

Unlike the official truth commissions set up by the executive branch of the state in Argentina in 1983 and Chile in 1990, the first attempt at truth-telling in Uruguay was sponsored by opposition parties in Parliament. In the mid-1980s, the Frente Amplio and the Blanco party set up three investigative commissions to clarify some cases of disappearances and political murders.²⁷ These commissions gathered important information and testimonies, but due to their limited resources and powers, they failed to find conclusive proof of an institutional decision-making process leading to violations. Neither the military nor the government ever responded to their final reports; these were never officially announced or acknowledged and it remains very difficult to gain access to them. President Sanguinetti dismissed the commissions’ findings, publicly stating that the investigations did not clarify the authorship of the crimes or produce credible conclusions (Barahona de Brito 1997). In 1990, the Senate established yet another investigative commission to determine whether former Senator Juan Carlos Blanco of the Colorado Party bore any responsibility for the 1976 disappearance of Elena Quinteros, but it found no grounds to initiate a lawsuit.

The most significant attempt to shed light on the past was carried out by the Uruguayan branch of the regional human rights organisation SERPAJ (Servicio Paz y Justicia/Peace and Justice Service). In March 1989, the group released its report, Nunca Más, documenting atrocities committed in Uruguay between 1972 and 1985 and analysing the impact of state terrorism on the society (SERPAJ 1989). The SERPAJ report was, for two decades, the only publicly available document to provide a comprehensive overview of the repression. Despite the lack of government support and military cooperation combined with limited human and financial resources, the SERPAJ investigation was stronger than the parliamentary inquiries (Hayner 2001). It uncovered important information on abuses that would be used in court cases and as background material for a government-sponsored truth commission ten years later. The information gathered by the parliamentary commissions and SERPAJ became particularly instrumental in later years, when subsequent administrations promoted further truth-seeking inquiries into dictatorship crimes.

Civil court cases seeking truth

Truth-finding has also taken place through court procedures and the search for disappeared children. With the amnesty law still in place, a handful of lower court judges in the 1990s instigated trials with the aim of aiding the search for the disappeared rather than bringing criminal action against those responsible. Pushing these cases in a context of state-induced impunity, however, came at a high cost for the careers of these bold judges, who suffered undue pressure from their superiors or were transferred to other courts and forced to drop their cases (Skaar 2011).

These first signs of internal pressure within the judicial hierarchy eventually evolved into a pattern of sanction against judges willing to investigate past atrocities. The most recent manifestation was the transfer of Judge Mariana Mota from a Montevideo-based criminal first instance court to a civil court in early 2013. Mota, the judge who prosecuted the former dictator Bordaberry, had over 50 cases of dictatorship crimes on her docket when she was transferred by the Supreme Court.

The Comisión para la Paz

Truth was further sought through more formal institutional measures. In 2000, President Jorge Batlle (2000–5) of the Colorado Party established the Comisión para la Paz (Peace Commission) to gather information on enforced disappearances that occurred between 1973 and 1985 (Allier 2006). Composed of political and religious figures, the Commission worked for two years. Its final report confirmed the disappearance of 26 Uruguayans in Uruguay and over 130 in the region, mainly in Argentina but also in Paraguay and Chile (Comisión para la Paz 2003). The report showed that disappeared citizens in Uruguay had been detained in official or unofficial actions and submitted to physical abuse in clandestine detention, and that many had died as a result of torture.

In its report, the Commission recommended the creation of a follow-up secretariat (Secretaria de Seguimiento de la Comisión para la Paz), which was duly established. It also called for the creation of the legal status of ‘absent due to enforced disappearance’ and for the extension of Uruguayan legal norms to cover crimes such as torture and disappearance. Other recommendations stipulated dissemination of the report’s content and inclusion of study of the dictatorship in educational curricula and teacher training.

The Peace Commission was the first official initiative through which the state acknowledged certain crimes of the repression, 15 years after transition. Despite its many shortcomings, it signalled, together with the Gelman case, a political opening that ‘allowed for progress and a switch in the mentality’.²⁸ It contributed to public discussion of previously silenced issues such as disappearances, torture, and the kidnapping of children. The Commission was, however, fiercely criticised by human rights and victims’ groups, who rejected its final report. Relatives of the disappeared faulted the Commission for giving them only a certificate testifying that their loved one had effectively disappeared at a certain time and place, while providing no other information. Other criticisms related to the Commission’s exclusive focus on disappearances and its failure to include crimes like torture and prolonged imprisonment, which had been hallmarks of the repression (SERPAJ 2007). The Commission hardly resembled other well-known international truth-seeking bodies, as it was granted very limited powers and resources, had to rely only on voluntary testimonies, and was denied access to archives.

Although the human rights community pinned high hopes on the Commission when it was established, the controversies provoked by its report had perhaps a negative overall effect on accountability. It was widely perceived as yet another attempt by the executive to close the books on the past. Nevertheless, it is generally agreed that the Commission represented a breach with the former state policy of total impunity. The report acknowledged, for the first time, the existence of state terrorism, providing space for truth – however incomplete – to emerge. Also, several of the report’s recommendations would have a positive influence on accountability later on, including a call for reparations to victims of abuse.

Further advances

Parallel to the workings of the Peace Commission, high-profile individual searches by the families of two disappeared children resulted in the location of Macarena Gelman in 2000 and of another missing child, Simón Riquelo, in 2002. The crimes starkly illustrated the collaboration between the Argentine and Uruguayan regimes within the framework Operation Condor. Macarena – born to Argentine parents – was appropriated by the family of a police chief in Uruguay, while Simón – born to Uruguayan parents in exile in Argentina – was raised by the family of a policeman in Buenos Aires.

Yet another form of truth-finding took place under the Frente Amplio government of President Vázquez, who ordered excavations to take place at military sites to look for remains of the disappeared. The first successful discovery of this kind in Uruguay came in 2005 and resulted in the identification of a member of the Uruguayan Communist Party who had disappeared in 1978. Also in 2005, the remains of Fernando Miranda, kidnapped in 1975, were found at the headquarters of the 13th Infantry Battalion (Clarín 2005; La República 2006). These discoveries had an extraordinary impact on Uruguayan society, featuring on all television channels and in front-page newspaper headlines. The location of remains of the disappeared effectively demonstrated beyond doubt the perpetration of atrocities by the state, as well as its subsequent cover-up.

In June 2005, the executive for the first time instructed the armed forces to carry out investigations into the fate of disappeared detainees. The military submitted a report in which it made unprecedented admissions, acknowledging illegal detentions, the practice of torture, the use of clandestine flights to transfer political prisoners from Buenos Aires to Montevideo, clandestine burials, and the cremation of human remains (Fuerzas Armadas de Uruguay 2007). In 2007, the executive also released, in Spanish, Historical Investigation on Disappeared-Detainees, compiled by researchers from the Universidad de la República, who gathered documents and archival information. In 2008, the same team of historians published Historical Investigation on the Dictatorship and State Terrorism in Uruguay (1973–1985) (Presidencia de la República 2007, 2008).

Discoveries continued under the next government. In February 2011, President Mujica ordered excavations to resume in the search for the remains of María Claudia Gelman and for a clandestine cemetery known as Arlington (La República 2011b). In October 2011, human remains were again discovered on military land, in this case the 14th Battalion of Toledo. They were later identified as those of Julio Castro, a 68-year-old teacher and journalist executed in 1977 (Cavallo and Pérez 2011). A few months later, in March 2012, on the same site where Julio Castro had been buried, searchers found the remains of trade unionist Ricardo Blanco, who disappeared in 1978 (El País 2012). The discovery of additional bodies profoundly affected the public and coincided with important events, including the derogation of the amnesty and a public acknowledgement of state responsibility in the Gelman case, discussed further below.

Material and symbolic reparations

Reparations in Uruguay have principally taken place in the wake of the Peace Commission’s work, and upon its recommendations. In the 1980s, no reparations were paid to victims of human rights abuses; initial provisions mainly targeted returning exiles and employees unfairly dismissed during the dictatorship, as specified in the government’s 1985 National Pacification Project (Barahona de Brito 1997). However, according to scholar Louise Mallinder, the 1985 National Pacification Law (Law 15.737) ‘can be viewed as a form of reparations’ in that it released political prisoners from prison and provided some form of restitution in an effort to ‘undo some of the harm that had been inflicted during military rule’. Furthermore, she notes, the 1985 law also created the National Repatriation Commission ‘to facilitate and support the return of all exiles to Uruguay’. Article 25 of the law ‘stated that public officials who had been dismissed by the military junta because of their political beliefs could be reinstated in their former posts, or where this was not possible, they or their relatives could be awarded a pension’ (Mallinder 2009, 1, 34, 35). Only since 2005, though, has the government taken important steps in providing reparations to victims of physical abuse and to their families.²⁹ All reparations are granted by law and relate to individual victims and claimants, with no instances of collective reparations.

Following recommendations by the Peace Commission, the Law on Forced Disappearances (Law 17.894) of September 2005 created the legal category of ‘absent due to enforced disappearance’ for citizens who disappeared inside and outside Uruguay. In October 2006, the Law on Pension Rights (Law 18.033) granted special reparatory pension rights to individuals who either for political or trade union reasons had been unable to work between February 1973 and 1985.³⁰ A special commission was established in the Ministry of Labour and Social Security to process applications by claimants and distribute benefits. In September 2009, what is known as the Reparations Law (Law 18.596) finally recognised the systematic practices of repression, torture, disappearances, and homicide by the state. A special commission was set up in the Ministry of Education and Culture to pay reparations to victims, including political prisoners, minors born in detention or disappeared, exiles, and torture victims.

It is too soon to tell how extensive or comprehensive these various reparations programmes will turn out to be, but progress so far is promising. Between 2010 and August 2014, over 1,100 applications were submitted to the Ministry of Education Special Commission, which awarded 506 symbolic reparations to victims of state terror and health benefits to 269 people, while 74 applications were dismissed. Economic reparations were also granted to 364 people. These included compensation to 84 children born in captivity and kept away from their parents for more than six months; 196 families of the disappeared; 80 people who had suffered gross torture; and four children who had been disappeared for more than a month (Zecca 2014).

These efforts, however, still fall short in some respects. Although the recent legislation aims to compensate all victims of state terrorism, the Uruguayan association of former political prisoners, Crysol, has highlighted delays in offering medical and psychological support. Crysol representatives, as well as the UN special rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence, particularly emphasised that the law fails to meet international standards on reparations, as it does not encompass all categories of possible victims and forces recipients to choose between reparations and pension provisions. Article 22 is particularly criticised for requiring those who enjoy the benefits of the law to give up their right to bring cases against Uruguay, both domestically and internationally (Fassanello 2010).

In addition to monetary reparations and compensation policies, there have also been instances of symbolic reparations, two of which stand out. First, the Cultural Centre and Museum of Memory (MUME) was inaugurated in December 2007 with support from the Montevideo municipal government (intendencia) and the national government through the Ministry of Education. Its creation was endorsed by several social and human rights organisations, including the relatives of the disappeared, SERPAJ, Crysol, and the Social Rehabilitation Service (SERSOC). The MUME is dedicated to the recuperation of the memory of state terrorism and of the efforts of the Uruguayan people in their struggle against the dictatorship (Lessa 2010). Thousands of people have visited MUME, where exhibitions, theatre, murga musical theatre, literature readings, and cinema workshops are regularly held to make people feel an active part of the museum.

Second, on 21 March 2012, a public act of acknowledgement of international responsibility and recovery of memory, ordered by the Inter-American Court in the Gelman ruling, took place, despite initial resistance by President Mujica and political controversy surrounding the event. A memorial plaque was unveiled to honour María Claudia Gelman and all the victims imprisoned in the former clandestine detention centre known as Centro de Altos Estudios Nacionales (SERPAJ 2012). President Mujica acknowledged Uruguay’s responsibility for María Claudia Gelman’s disappearance in an official speech in Parliament, attended by members of the legislature, executive, and judiciary, as well as the military high command, with Macarena and her grandfather Juan Gelman also present (La República 2012). Although the speech was a landmark in terms of establishing officially the state’s responsibility for the atrocities committed, it was brief and perfunctory. President Mujica had already stated publicly that he would not ‘go one millimetre more’ than what was required by the regional court. Historian Aldo Marchesi highlights this attitude of ‘always doing less than what could be done’, and points out that the state could have ‘taken advantage of this opportunity to recognise the violations against the Gelmans as well as acknowledge the crimes committed against all Uruguayans’.³¹

Conclusions

In an interview in 2012, public prosecutor Mirtha Guianze asserted that Uruguay was characterised by ‘impunidad de hecho y de derecho’ (factual and legal impunity).³² This rather pessimistic view captures the difficulties and challenges faced in coming to terms with the atrocities of the past. The legal obstacle to criminal prosecution, the Expiry Law, was for decades reinforced by other sources of impunity, such as the lack of political will to investigate, the resistance of the judiciary, and the limited resources provided by the state to support any examination of the past.

Yet as the analysis in this chapter has shown, there has been a definite movement in the direction of more accountability over the past 15 years. It started tentatively in 2000, when the Batlle government came to power, although impunity still featured centrally in the political arena. The curve towards accountability became noticeably steeper after the Frente Amplio government took office in 2005, suggesting that one of the principal explanations for the general shift from impunity towards accountability in Uruguay is political will.³³ The Frente Amplio government, although internally split, signalled to civil society that there was room for public deliberation of these issues, and it signalled to the judiciary that addressing human rights violations could be done without causing institutional instability.

The major expressions of increased accountability for past human rights violations in Uruguay are the following:

•the various truth-telling initiatives – most notably the SERPAJ report and the Peace Commission report, which provided an overview of the systematic character of the repression, but also the location of remains of the disappeared, discoveries that had great symbolic value;

•a few trials, which have documented the violence and repression in specific court cases and ensured criminal accountability;

•the imprisonment of high-level military officials and civilian leaders, showing that even top leadership has to stand to account for the wrongs they have committed;

•the reparation programmes, which have made the state accountable to the victims for past wrongs and are expected to have a restorative effect on victims;

•the public acknowledgement by President Mujica of the dictatorship’s involvement in systematic repression, accepting the state’s responsibility for the violations and implying that the state can or should be held accountable for them; and

•most importantly, the derogation of the Expiry Law, so that it no longer provides a legal framework that hinders criminal accountability for past human rights violations.

It is important to recognise that accountability goes beyond the sum of various individual transitional justice mechanisms. The culture of fear that dominated Uruguayan society for so long is arguably no longer present. The fact that the military no longer constitutes a threat to democracy makes the political context very different from that of 1985, allowing more space in which to choose a pro-human rights stance. With the overturning of the Expiry Law, the legal framework appears more conducive to accountability now than at any time in the past three decades. Additional factors include several laws in place regarding reparations and Supreme Court rulings that favour accountability. Overall, there is increased sensitivity to human rights and to international norms of human rights protection and Uruguay has signed several key international conventions.³⁴

The picture is not all rosy, though. A series of events over the past five years have raised serious questions about the depth of the Frente’s commitment to accountability. They include the failed plebiscite in 2009, the debacle of the interpretative law in 2011 and, most recently, the reluctance demonstrated by President Mujica in his public acknowledgement of the Gelman case.

It should thus come as no surprise that there remain many obstacles to full accountability for past human rights violations. As pointed out by UN special rapporteur Pablo de Greiff, ‘Uruguay still has an important chapter of its past that it has not adequately resolved. To really advance towards the future and continue on the path of development requires compliance with the rights to truth, justice, reparation, and guarantees of non-repetition. This is the responsibility of the three branches of power that make up the State’ (UNGA 2014, 3, our translation).

More specifically, obstacles include:

•lack of political will and absence of clear-cut policies favouring accountability;

•lack of collaboration from the executive in providing access to archives and allocating sufficient judicial resources, especially human rights training for judges and prosecutors;

•slow and inefficient judicial investigations;

•a judiciary that is resistant, conservative, and reactive in human rights matters, especially within the Supreme Court;

•the explicit sanctioning of judges and prosecutors who take on human rights cases; and

•practical limitations to more criminal accountability related to the lack of material evidence, the lack of witnesses, and the enduring threat of the statute of limitations.

Many Uruguayans feel that there is room for still more accountability, given the extent of needs and demands that have not been satisfactorily addressed by the state. A large number think that the type of repression that was most common under the dictatorship, namely illegal imprisonment and torture, has not received sufficient attention, either in terms of detailed official documentation or in the field of reparations. There is discontent with the scope of reparations and the pace at which they are being paid. In sum, accountability remains partial and tentative, and many of the actors who benefited from impunity continue to obstruct justice and truth.

On balance, however, we can say that Uruguay’s progress along the scale from impunity towards accountability has been significant, especially during the past decade, a period that has seen the most positive developments. With the institutional and legal limitations at least partly removed, the quest for greater accountability in Uruguay now turns mainly on the political and judicial will to push for it. A recent report by the International Commission of Jurists underscored the difficulties, especially the obstruction by the Ministry of Defence and the recent jurisprudence of the Supreme Court that hindered progress during the Mujica administration. The jurists called on the new government of President Vázquez, inaugurated on 1 March 2015, to overcome the paralysis in human rights investigations and give a fresh impetus to the search for the disappeared (ICJ 2015). The current government in Uruguay thus has an historic opportunity to deliver truth, justice, and reparations to victims of human rights atrocities and their families, as well as to the rest of society.

Figure 4.1 Uruguay: the overcoming amnesty dimension of accountability, 1983–2014