Artículo publicado en el International Justice Central de Radio Netherlands y reproducido en IJ Central.

On 27 October, 2011, the Uruguayan Parliament adopted Law No. 18.831, allowing the judiciary to independently investigate, for the first time, crimes against humanity that might have been perpetrated during the military government that ruled the country between 1973 and 1985. Although there have been some judicial investigations in Uruguay, the so-called 1986 “Expiry Law” prohibited the judiciary from administering justice in an autonomous manner.

The peculiarity of the Uruguayan experience is that the Expiry Law has been submitted twice to a referendum. In 1989, the Uruguayans voted for the Law to remain into force, while in 2009 it didn’t get the majority of votes necessary to push for a reform to repeal it.

Uruguay, military rule and Plan Condor

During the military dictatorship, human rights organization estimate that approximately 300 people were disappeared, between 300,000 to 500,000 people left for exile, over 60,000 people were arrested and/or detained and 7,000 people were held long term political prisoners. One of the most common practices was the abduction of children from political dissidents, who were later handed to other families.

Uruguay, like Argentina, Brazil, Bolivia and Paraguay, was part of Plan Condor, which supported right-wing military governments in order to fight the influence of communism in South America in the 70’s. This regional strategy facilitated transboundary assassinations, tortures and enforced disappearances.

The 1986 Uruguayan Expiry Law

After the return to democracy, the civil government led by President Sanguinetti, adopted in 1986 Law No. 15.848 (Ley de Caducidad de la Pretensión Punitiva del Estado), also known as Expiry Law, by which amnesty was granted to those responsible for human rights violations during the military rule.

This Law declared the expiration of the State power to prosecute crimes committed until 1 March 1985 by military personnel or police forces during the de facto regime. The approval of this Act was also consistent with the policies and laws adopted by other countries in the region at the time which decided to approve Amnesty Laws fearing chaos or further threats to democracy after years of military dictatorships.

The difference against other Amnesty Acts adopted in the region is that under the Expiry Law, some cases could be opened if the President decided that investigations into cases of alleged abuses could be allowed to proceed.

After the restoration of democracy, many cases were blocked, without the right to appeal. This faculty granted to the Executive is in direct contravention to the Uruguayan Constitution and International Human Rights Law, by which the Judiciary branch can decide on judicial matters and embodies the separation of powers.

Despite the peculiarities of the Expiry Law, de facto President Bordaberry (1973-1976), and President Alvarez (1981-1985) have been prosecuted and convicted for crimes that were not covered by the amnesty.

President Mujica, a former Tupamaro leader that was tortured and served in prison for a long term during the military regime, had previously argued publicly against scrapping the amnesty, pointing to the referendum results. Nevertheless, before the vote in Parliament, amnesty-supporters and members of the Armed Force claimed they would seek prosecution of former guerrillas, especially Tupamaros.

Revoking the Expiry Act

Uruguay’s Expiry Act violated not only the Constitution, but international human rights principles and treaties, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights, and the Inter-American Convention to Prevent and Punish Torture. It also violates rulings by the Inter-American Court of Human Rights which are binding and final. Even the Uruguayan Supreme Court ruled on several occasions on the unconstitional character of such Act.

In 2000, President Tabaré Vázquez allowed an investigation into the crimes perpetrated under the military regime. Earlier this year, President Mujica, using the powers granted under the Expiry Act, decided to reopen 88 cases of human rights abuses.

However, the decisive turning point was given in February 2011, when the Inter-American Court of Human Rights rendered the Gelman Case, determining that the 1986 Expiry Law had no legal effect vis-à-vis the American Convention on Human Rights, ordering Uruguayan authorities to strike down any internal measures that could represent an obstacle to investigate and prosecute those responsible for crimes against humanity, especially enforced disappearances.

The adoption of Law No. 18.831 represents a major change in the national prosecution of crimes against humanity in Uruguay and for the first time, it is the Judiciary the organ in charge to lead these proceedings, leaving all political considerations aside. Due to the fact that only those practices considered as crimes against humanity can be reopen, no statutory limitations or other measures that may halt proceedings are applicable.

Families of the victim’s celebrate the recent approval as one step closer to know the truth about their beloved ones. This new event in Uruguay shows that despite the challenges and limitations, the Constitutional standing of Human Right treaties, the rulings of the Inter-American Court and its interpretation by national tribunal can bring positive change and consolidate the rule of law.