Center For Human Rights and Humanitarian Law
April 9, 1980
RESOLUTION No 14/80
Case 2127 (ARGENTINA)
"With regard to the case of the Argentinean citizen Gustavo Westerkamp, he is at the disposition of the Executive by virtue of Decree 3076 of October 23, 1975, for having been involved in activities that are prejudicial to the public order and the basic interests of the State."
A) Members of the subversive terrorists groups the ERP and Montoneros, at the disposition of the Executive, for having committed crimes of terrorism, illegal possession of arms and war supplies, illegal association and other terrorist subversive crimes, as set forth in the articles of Law 20.840 on security of the State.
. . . . . . . . . . . . . . . . . . . .
17. WESTERKAMP, Gustavo: PEN, document 3076 of October 23, 1975. Held at Sierra Chica.
Gustavo was arrested on October 21, 1975 when he appeared at the military headquarters in Palermo, Buenos Aires, for the requisite medical and physical examination prior to entering compulsory military service. He appeared at headquarters early in the morning. When the examinations was completed, upon leaving the building, at approximately mid-day, he was violently overtaken by four armed men in civilian dress. After being severely beaten and blindfolded, he was violently and forcefully put into an automobile and taken to the Superintendence of Federal Security, located on Calle Moreno 1417 in the Capital. There Gustavo was barbarously tortured for 48 hours during which time he was given neither food or water. He remained blindfolded. As he lay on the floor, everyone that passed kicked him, spit on him, or urinated on him. The blindfold was repeatedly soaked in an irritant which produced burns around his eyes. He was tortured with an electric prod and his genitals were beaten with chains in an effort to obtain information. He was finally forced to sign a statement while blindfolded.
From approximately October 28, 1975 to September 6, 197b, Gustavo was confined to the prison Unit 2 in Villa Devoto in the city of Buenos Aires, where conditions were terrible. During a large part of the time he was confined to a cell for two persons which he shared with four other inmates. Three of them slept on a light mattress on the floor. Sewage water frequently flooded the cell. The only sanitary facility was a hole in the floor, surrounded by insects and rodents. He was permitted practically no activity. The diet was poor and scant, and on many occasions he was sent to the punishment cell without cause.
He was transferred to Sierra Chica prison (Unit 2), near Olivarría, in the province of Buenos Aires, together with approximately 60 other detainees, where he was brutally beaten. Marks from the blows could still be seen. Gustavo was forced to sign another statement however, which said that those marks resulted from an accident.
Gustavo was imprisoned in Sierra Chica prison for approximately one year, from September 6, 1976, to September 21, 1977. During most of this period, he was kept in a small cell, alone, for 23 hours each day. He had only 60 minutes of recreation. He was awakened at 5 in the morning and was only allowed go to bed at 9:00 p.m. During the day, the mattress was rolled up. He was not allowed to do any physical or intellectual work. The purpose of this was clearly to paralyze him, both mentally and physically; that is to say to bring about the progressive destruction of his personality. For the same reason he was not permitted to receive books or scientific publications, nor was he permitted a transistor radio. During the winter, which in that region is very severe, he was exposed to extremely low temperatures and provided no heat. The cell window, furthermore, had no glass. He was ill for a week without receiving medical attention or medication.
Finally, on September 21, 1977, Gustavo was transferred from Sierra Chica to Unit 9 in the city of La Plata. During the first two weeks he was again beaten while being submitted to interrogation. At this time, Gustsvo was sharing his cell with another political prisoner. They were not allowed to read newspapers or books, nor to listen to the radio, watch television, or participate in any other form of diversion. The diet was very poor. Recreation limited to two hours in the morning and two hours in the afternoon. Discipline was very severe and on the whole designed to humiliate him, break his will, and destroy his mind.
From the legal viewpoint, Gustavo was being held at the disposition of the Executive by Decree No. 3076/75, without any charges or accusations against him. He is, therefore, a typical political prisoner. His detention is based on the powers granted to the President under Article 23 of the Constitution for cases during a state of siege. It is, however, well-known that the Constitution has been undermined by two institutional acts issued by the Military Junta, which in fact holds power. The first act, dated March 24,1976, suspends the right of option to leave the country, which is set forth in the corresponding article of our Magna Carta. The second, signed into law on September 10, 1977, re-establishes that right, but conditionally, making it subject to the decision of the President and requiring several conditions set forth in Law 31.650.
In our constitutional system, however, this power of the Executive is not entirely discretionary. Both the doctrine (cf. Germán S. Bidart Campos: Derecho Constitutional, Edlar, Buenos Aires 1964, vol. 1, p. 610 et seq.), and the jurisprudence of the Supreme Court, are almost in unanimous agreement that, "although the declaration of the state of siege is a political act, which is beyond the judgment of the Judiciary, it is the latter's responsibility to ensure that such state of siege is reasonably implemented by the executive in cases that are brought before the Judiciary (judgment rendered in the case, Zamorano, Carlos Mariano, La Opinión, August 13, 1977, and the decision in Pérez de Smith, Ana María, et al. re effective denial of fair trial, p. 327-XVII-ORIGINARIO of April 10, 1977).
In view of this, there can be no doubt that prolonged detention without cause, apparently for security reasons which are never specified, for more than two and a half years, exceeds any "test of reasonableness" and clearly constitutes distortion of the principle of the separation of powers set forth in the Constitution. In effect, by prolonging detention without bringing formal charges or initiating proceedings, the President, in effect, has handed down a sentence, thus assuming judicial functions, which is expressly prohibited by Article 95 of the Constitution.
It is true that Gustavo was previously detained on March 14, 1974 and charged with illegal association. However, proceedings were dismissed by the Federal Judge on June 17 of the same year, for which reason his detention at this time lacks any legal basis or even elementary rationale.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
Copyright © 1998Center For Human Rights and Humanitarian Law All Rights Reserved