The case went to the National Supreme Court, which, on April 24, 1957, passed one of the most shameful rulings in our judicial history, signed by all the members—Judges Alfredo Orgaz, Manuel J. Argañarás, Enrique V. Galli, Carlos Herrera, Benjamín Villegas Basavilbaso—following a prior report from the Attorney General of the Nation, Sebastián Soler.
Once the case was transferred to a so-called military justice system that was equally complicit and partisan, this ruling is what left the crime of the José León Suárez massacre forever unpunished.
Half a page was enough for Judge Soler to give his ruling on the events that I have recounted in this book. Here is his opinion:
According to the statements of the declarant, the event being investigated in the proceedings was carried out by the staff of the Police Department of the Province of Buenos Aires.
However, beginning on page 24, it appears that during the happenings of June 9, 1956, police forces acted “in accordance with military commands and authority.”
Consequently, considering what is mandated by Article 108, paragraphs 2 and 3, and by Article 109, paragraph 6, of the Military Code of Justice, it is my opinion that the competence of the military justice court sub judice should be declared and I underscore, moreover, that this decision is supported by Article 136 of the same legal text in its stipulation that “the accountability of military authorities regarding the decrees that they pass, or of those entrusted with their application, should they overstep their authority, can only be established by military courts.”
Note that the ruling does not even mention the basic discrepancy raised by Judge Hueyo. It tiptoes around all the significant elements of the issue. It is founded on the childish equivocation that the police were reporting to the Army during “the events of June 9, 1956,” which is false because throughout the entirety of June 9, given that no decree was enacted that day to change the situation, the police were legally subordinated not to the Army, but rather to the Governance Ministry of the Province. Moreover, though, besides being false, this is all irrelevant because Livraga’s formal accusation, which is what is being considered, refers to a crime committed on June 10, which is like saying a day later, a year later, a century later. Or is it that a famous jurist came to believe he was an angel, or a Wells character, who could play with time like this? In half a page, Judge Soler does away with everything he has taught in decades of lectures and texts.
The Court’s ruling states:
Findings of fact and conclusions of law:
WHEREAS the actions that prompted this case are imputed to functionaries and employees of the Province of Buenos Aires Police, who acted during the emergency in accordance with commands and authority that were military in nature, per what is reported on page 24 by request of this Court, and what emerges as well from the proceedings is that the aforementioned events were motivated by the revolutionary movement stifled on that occasion, namely, under exceptional circumstances during which the keeping of internal order was specifically assigned to the military, according to doctrine established as of the end-date of the “Todesco, Hernando” case; and
WHEREAS in such conditions and considering what is ordered by Article 136 of the Military Code of Justice and what has been decreed by the Attorney General, it is appropriate to declare the jurisdictional competence of the presiding military judge in this case;
THEREFORE and given the report of the Attorney General, be it declared fitting for the proceedings to be heard by the presiding military judge, to whom the trial will be transferred.
In the first edition of this book I said—without its occurring to anyone to sue me for contempt—that the attorney general’s report and the ruling of the Court were an evil corruption of the rule of law. I want to sum up, in the most straightforward way possible, the reasons behind this “report” that made me believe I was authorized to make such a statement.
An individual, Livraga, is arrested on a day when the ordinary rule of law is in effect. He is not formally accused of anything during the arrest, but this in itself does not yet constitute a crime. They do rough him up a bit; let’s say we forget that part.
The person who arrests him is a civil servant, the Chief of Police of the Province. It is true that this civil servant is, additionally, a lieutenant colonel; but, for the purposes of this case, it is as though he isn’t; he does not arrest him in his capacity as a lieutenant colonel, but as a civil servant under the authority of the Governance Ministry of the Province.
While detained, Livraga of course does not commit any crimes. That day—like every day—ends at twelve o’clock at night. The following day (it does not matter that hardly thirty-two minutes have gone by, it is already the following day, June 10), a law is instated—martial law. This law is put into effect on June 10. Livraga, imprisoned since the previous day, cannot violate it. It is as though this law does not exist for Livraga, and Livraga does not exist for it; they are spheres that do not make contact; whatever is done to him and whatever punishment is inflicted upon him in the name of this law will be a crime. Livraga exists in the penal realm that precedes this law; he cannot be judged or punished except according to the criminal code that was in effect at the time of his arrest, which entitles him to guarantees, the right to defense, an impartial judge, due process.
Now a man enters the picture. He is the same man as before, the civil servant, the Chief of Police who has undergone a Doctor Jekyll and Mr. Hyde kind of transformation and appears in the form of a military authority; his rank of lieutenant colonel—which earlier was insignificant—now serves him well. This man cannot be unaware that he, a civilian, has arrested Livraga, a civilian, and that their interactions are entirely frozen on this plane; that he has arrested Livraga at a time governed by civil law, and can only deal with him on this plane; and that any transgression he commits regarding this clear rule will have to be judged on that same, unabandonable plane—that is to say, will have to be judged by a civil judge. Because this time of civil relations between authorities and mere citizens does not expire when a revolution hits; at most, civil rule underlies military rule: one can be superimposed on the other, but they cannot merge. This civil servant cannot act as a military authority toward someone he has arrested in his role as a civil servant. But he does. He orders for him to be killed. But it is clear that when he acts, when he sends Livraga to be killed, he continues acting like a civil servant, even though he believes the opposite to be the case, because that is the only way he has of relating to this detainee. If he commits a criminal offense within this relationship, he absolutely must be judged as a civil servant. What he orders is not an execution; it is a murder.
To get a clearer picture of things, let’s suppose that during this revolution-inspired interval of metamorphosis, this civil-servant-cum-military-authority takes advantage of the situation to commit some kind of crime, to rob a bank or murder a creditor. Would he then be judged by the military justice system? It seems clear to me that he wouldn’t. His dual nature as a civil servant and military authority does not prevent him from committing a crime according to the penal code and correspondingly being tried under this very code.
Now let’s suppose the opposite. Let’s suppose that the mere instatement of martial law gives the chief of police the unchecked authority over all persons previously detained in precincts, etc., that Fernández Suárez exercised over Livraga. This man, then, can murder all of the prisoners in his custody, and later—if the issue is raised—be “judged” by a military court, that is, by his colleagues and comrades-in-arms involved in the same splinter groups and possibly guilty of similar exploits.
Isn’t that how it happened? Did Lieutenant Colonel Abraham González, the military judge, penalize Lieutenant Colonel Fernández Suárez or even disclose any of the results of this “trial”?
I want somebody to tell me what the difference is between this conception of justice and the one the Nazi gas chambers created.
Let’s return now to Livraga. When this man, already arrested, gets on a bus at 11:30 p.m. on June 9, he is, despite everything, protected by Article 18 of the Constitution, which says that “No inhabitant of the Nation can be punished without a trial governed by the law that was in effect prior to the act that gave rise to the proceedings . . . or deprived of the judges appointed by law before the act for which he is tried.”
What does Livraga do to lose these rights? Nothing. And yet, he loses them, and this is one more of the phases of legal monstrosity validated by the Court’s ruling and by the military “trial”—two stones along the same path because in 1957 you did not need to be a genius to know that Lieutenant Colonel González was not going find Lieutenant Colonel Fernández Suárez guilty.
This, then, is the irremovable stain that soils a government, a justice system, and an army equally:
That the men arrested in Florida were punished, condemned to death without trial; that they were deprived of the judges appointed by law before the act that gave rise to the case, and under law instated subsequent to the act in question; and that there was in fact no act and no justification for any of it.
No amount of finagling will manage to erase the horrific evidence showing that the government of the Liberating Revolution retroactively applied a martial law that was instated on June 10 to men who were arrested on June 9.
And that is not execution. It is murder.