It’s a good time to be an Argentinian human rights violator in Spain.

It’s a good time to be an Argentinian human rights violator in Spain. Once upon a time Spain was in the spotlight for its progressive application of international human rights law. Thus in 1998 Pinochet was arrested in London at the request of Spanish judicial authorities, in 2003 Argentine repressor Miguel Cavallo was extradited to Spain from Mexico and in 2005, Argentine captain Adolfo Scilingo was found guilty of committing crimes against humanity. That same year the Spanish Constitutional Tribunal ruled that Spain had universal jurisdiction over human rights violations.

But the tides have turned, and a new class of conservative judges has taken over the National Audience, Spain’s trial chambers. They are associated with fundamentalist currents within the Catholic Church and sometimes espouse Franquist ideologies; Judge Guevara Marcos, the President of the Chamber in charge of the Cavallo trial, for example, is a Catholic fundamentalist close Opus Dei who was sanctioned by the General Council of the Judicial Power for racist attitudes. These judges are antagonistic to criminal procedures against human rights violators in general, and seem determined to get rid of these cases in Spain

Miguel Cavallo was part of the Task Force 3.3.2, an inter-force squad charged with kidnapping, torturing and killing suspected "subversives," among others. Later, Cavallo joined the Argentine Foreign Task Force that went to Central America to give trainings on counter-insurgence and torture techniques. In 2000, Cavallo was found living in Mexico and in 2003 he was extradited to Spain. Finally, in February 2005 the instructional phase of the procedures against Cavallo concluded, and the case passed to the trial stage.

Since then, there have been a series of tactics put in place to delay his trial, which had not started by December 2006. In December 2006, moreover, the trial court all of the sudden decided it did not have jurisdiction over Cavallo, as he had also been indicted by courts in Argentina. This, despite clear language by the Spanish Constitutional Tribunal to the effect that Spain enjoyed concurrent jurisdiction to try crimes against humanity. The trying court, gave Argentina 40 days to present documentation upon which to base an extradition. This was done in the height of Argentine summer, when courts are on vacation. The Argentine court scrambled to send the documentation on time, but this was not forwarded to the National Audience, and Cavallo was set free.

Cavallo has now stated he will present himself for voluntary extradition. That would be to his advantage, as he then can negotiate the charges on which he will be extradited - and he will not have to face additional charges when he arrives to Argentina. These charges are likely to be limited to the murder of journalist Rodolfo Walsh, and perhaps a few other murders - but will most likely not be for crimes against humanity as such. This will mean he will not have to testify about his involvement in either task force described above. Moreover, Cavallo will be freed on June 2007, when his pre-trial detention ends. It can take several years before a trial in Argentina starts, if at all, so he would be de-facto a free man.

The same may happen with Juan Carlos Fotea, a former counter-intelligence agent and member of the Foreign Task Force that functioned in Central America during the 1980's. Despite the fact that Fotea had been indicted by Garzon repeatedly as early as 1998, Garzon has suddenly decided that Spain no longer has jurisdiction over Fotea, for similar reasons to those claimed in the Cavallo case. Fotea’s case is being appealed. Meanwhile bail has been set and reduced for Fotea, and it’s likely that at some point he’ll be released on his own recognizance.

The legal strategy being pursued in Spain appears to be designed to minimize the number of the accused and the severity of the charges against them. Trials in Argentina will likely result in the accused being tried on common crimes rather than crimes against humanity (as Scilingo was in Spain). Being tried for a crime such as murder will require a greater level of evidence to convict the accused of a particular crime rather than demonstrating a particular behavior and/or membership in a criminal organization which led to the commission of crimes and minimizes the seriousness of the crimes and the potential punishment those accused have to face.

So if you are a Latin American human rights violator, you could do worse than visiting Spain.

CA, February, 7, 2007
Por Margarita Lacabe

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