Committee on E nforced Disappearances
30 March–9 April 2020
Item 7 of the provisional agenda
Consideration of additional information submitted by States parties
Additional information submitted by Argentinaunder article 29 (4) of the Convention *
[Date received: 18 November 2019]
1.This report was prepared by the National Directorate of International Legal Affairs in respect of Human Rights of the Secretariat for Human Rights and Cultural Pluralism within the Ministry of Justice and Human Rights, and the Directorate for Human Rights and Gender Issues of the Ministry of Foreign Affairs and Worship.
II.Report submitted under article 29 of the International Convention for the Protection of All Persons from Enforced Disappearance
1.Follow-up information on paragraphs 9 and 11 of the concluding observations (CED/C/ARG/CO/1)
2.A bill on granting constitutional status to the Convention, to which Argentina became a party under Act No. 26.298, is currently before the Senate.
3.Parliamentary file No. 0191-S-2018 has been registered with the Senate with a view to constitutional status being granted to the Convention (reproducing file No. 0906-S-16).
B.Definition and criminalization of enforced disappearance
1.Follow-up information on paragraph 13 of the concluding observations
4.Pursuant to Decree No. 103/17, a commission on reform of the Criminal Code was set up within the Ministry of Justice and Human Rights in March 2017.
5.The commission was tasked with drawing up a preliminary draft of the Criminal Code, taking into account the international human rights instruments ratified by Argentina and the progress made towards regional integration, with a view to incorporating all criminal legislation into a single legislative instrument.
6.The draft proposes the addition of a new chapter to the Criminal Code that would contain provisions on crimes against humanity and crimes against the international community, including enforced disappearance.
7.Book Three of the draft incorporates the crimes covered by the Rome Statute of the International Criminal Court (genocide, crimes against humanity, enforced disappearance, war crimes and aggression) and sets out the general rules applicable to these types of crimes.
8.It was decided to reproduce the definition of enforced disappearance contained in the current article 142 ter of the Criminal Code in Book Three of the draft since that definition is compatible with the general rules applicable to offences against the international order.
9.The general rules applicable to such crimes include the non-applicability of statutory limitations to criminal proceedings and penalties, universal jurisdiction, and the non-applicability of the defence of obedience to superior orders.
10.The systematic incorporation of these crimes in a new book, separate from other offences covered by the Code, and the penalties provided for in such cases (life imprisonment, the maximum penalty provided for in the legal system) reflect the importance given to the issue.
11.In March 2019, the President submitted the draft reform of the Criminal Code, prepared by the commission, to Congress for consideration.
C.Criminal responsibility and judicial cooperation in matters of enforced disappearance
1.Follow-up information on paragraphs 15, 17, 19, 21 and 23 of the concluding observations
12.The Public Prosecution Service is an autonomous and independent body within the national justice system whose functions include providing access to justice for all inhabitants and ensuring the effective enforcement of the Constitution and the international human rights instruments to which Argentina is a party.
13.Given that Argentina has a federal structure, the Public Prosecution Service intervenes throughout the country in legal proceedings under federal jurisdiction, including those relating to crimes against humanity, trafficking in persons, enforced disappearances and offences committed by members of the federal security forces. It deals with non-federal offences only in the Autonomous City of Buenos Aires, which is the country’s federal capital.
14.The Public Prosecution Service has promoted institutional policies intended to prevent and prosecute practices that constitute institutional violence and tackle persistent and systematic patterns of impunity for certain offences that constitute human rights violations.
15.To this end, a series of specialized structures, protocols and guidelines for action in the field of human rights have been put in place. Although many of these measures are not exclusively concerned with the offence of enforced disappearance, they are concrete initiatives for tackling this crime and ensuring access to justice for victims and their families.
Measures taken to investigate and criminally prosecute crimes against humanity
16.With regard to legal action related to the serious human rights violations perpetrated by the last civil-military dictatorship in Argentina (1976–1983), the Government has maintained its firm commitment to investigating and criminally prosecuting the crimes against humanity perpetrated by the last military dictatorship, which include thousands of cases of enforced disappearance.
17.Since 2007, one of the main objectives of the Public Prosecutor’s unit for coordination and follow-up in cases involving human rights violations during the period of State terrorism has been to arrange preliminary investigations into the massive and systematic human rights violations that took place during the last civil-military dictatorship. In 2013, this unit was replaced by the unit for the prosecution of crimes against humanity, which is also tasked with designing strategies to identify and promote the further investigation of cases in which civilian actors are responsible for participating in State terrorism, establishing round-table discussions with institutional and social stakeholders involved in the truth and justice process, and monitoring and conducting statistical analysis of trials for offences perpetrated by the dictatorship in Argentina.
18.The unit for the prosecution of the wrongful removal of children during the period of State terrorism, within the Public Prosecutor’s Office, was set up with the aim of designing and implementing measures to increase the efficiency of the Office’s work in such cases and to reduce the long periods of time spent on some investigations, which tend to be prolonged unnecessarily without relevant evidence being uncovered. In particular, the unit is responsible for ensuring full compliance with the protocol for cases involving the wrongful removal of children during the period of State terrorism, which sets out guidelines for the criminal investigation of these offences.
19.To date, 130 persons, who as babies or children were wrongfully removed during the period of State terrorism, have managed to recover their identities thanks to the policies implemented by the Argentine State in collaboration with civil society human rights organizations.
20.With regard to statistics on judicial proceedings, the unit for the prosecution of crimes against humanity is taking steps to develop and update a database on the status of trials for crimes against humanity in Argentina.
21.The paragraphs below provide statistics on judicial proceedings, updated as at 3 June 2019.
22.Data issued by the unit for the prosecution of crimes against humanity indicate that, as of June 2019, 915 people had been convicted in 226 cases. A further 22 cases were at the trial stage. According to the data, 263 cases were still at the investigation stage and over 80 were ready for trial.
23.A total of 1,459 persons were being held in detention, of whom 649 were under house arrest, 248 were in prison and 77 were being held in security force facilities. A total of 974 suspects were at large.
24.The unit for the prosecution of crimes against humanity is taking steps to disaggregate the data contained in its register of judgments to indicate whether the accused were convicted or acquitted of each charge brought against them and to identify each victim of the offences concerned.
25.This new focus on systematization, which is still a work in progress, will make it possible to identify those cases in which the accused were convicted of the offences of enforced disappearance or unlawful deprivation of liberty.
Measures taken to investigate and criminally prosecute cases of institutional violence
26.The Public Prosecution Service has adopted a number of measures to promote the investigation and criminal prosecution of acts of institutional violence, including Resolution PGN No. 3/11, adopting the protocol for investigations into ill-treatment, harassment, unlawful coercion and torture; Resolution PGN No. 10/11, pursuant to which criminal prosecutors are instructed to order or request the exclusion of a security force from an investigation in which the responsibility of one of its members for the offence under investigation cannot be ruled out; and Resolution PGN No. 4/12, adopting the minimum procedural rules for the investigation of injuries and homicides committed by members of the security forces in the exercise of their duties.
27.In 2013, the Office of the Ombudsman for Institutional Violence was established to raise awareness of this type of offence and to provide more efficient mechanisms for investigating and prosecuting serious offences, including enforced disappearance.
28.To date, the Office has participated in the investigation and criminal prosecution of eight cases of enforced disappearance. On these occasions, the Office provided advice to the prosecutors’ offices concerned to enable them to carry out a preliminary analysis of the cases and determine the criminal offences that were applicable to the acts under investigation. It also proposed evidence-gathering measures, prepared legal briefs at the different stages of proceedings (requests to initiate investigations and/or commit cases for trial) and provided technical assistance at oral hearings.
Competence of the Public Prosecution Service to launch ex officio investigations into cases of enforced disappearance
29.The unit for the prosecution of crimes against humanity and the Office of the Ombudsman for Institutional Violence carry out preliminary and generic investigations ex officio (Act No. 27148, art. 24) and collaborate at different stages of judicial proceedings that are under way. In many cases, their respective heads act as intervening parties on behalf of the prosecution in cases where acts involving the disappearance of persons are being investigated.
Measures to ensure the exclusion of security forces from the investigation of acts in which they are allegedly involved
30.On 5 May 2011, the Congress adopted Act No. 26.679, which, among other reforms, provided for the incorporation of article 194 bis in the Criminal Code of Procedure. The article provides that “security forces must be excluded from an investigation if it emerges from the circumstances of the case that members of those forces might have committed or been involved in the acts under investigation, even if their involvement is only suspected”. This clause was retained in the current Federal Code of Criminal Procedure, the title of which was established pursuant to Act No. 27482.
31.The actions of federal and national prosecutors in this area are regulated by Resolution PGN No. 10/11, which establishes a general instruction for criminal prosecutors to order or request that a security force be excluded from an investigation when the responsibility of one of its members for the offence under investigation (including offences of enforced disappearance) cannot be ruled out.
Measures taken by the Public Prosecution Service in relation to international cooperation in the investigation of cases of enforced disappearances
32.A set of strategies has been developed to promote and expedite international cooperation and mutual legal assistance in the investigation of complex cases involving enforced disappearance and other offences.
33.At the Specialized Meeting of Public Prosecution Services of the Southern Common Market (MERCOSUR) and Associated States, steps were taken to promote the establishment of a subcommission on crimes against humanity to act as a regional body that would enable the exchange of experiences and good practices in the criminal prosecution of serious human rights violations and facilitate international legal assistance in such cases.
34.Within this framework, specific instruments were adopted to accelerate legal cooperation between the public prosecutor’s offices of MERCOSUR member States in criminal investigations into crimes against humanity. Thus, a guide for public prosecutor’s offices of MERCOSUR member States was adopted on the interpretation and implementation of treaties concerning mutual legal assistance in criminal cases involving serious human rights violations, and a series of bilateral agreements on the formation of joint investigation teams were established and signed with the public prosecutor’s offices of Brazil, Ecuador and Uruguay in order to coordinate actions to achieve greater effectiveness and efficiency in the prosecution of complex offences.
35.The Specialized Meeting of Public Prosecution Services of MERCOSUR also has a subcommittee on persons deprived of liberty and the monitoring of police actions coordinated by the public prosecutor’s offices of Argentina and Brazil. This regional body has also promoted the negotiation and adoption of legal instruments aimed at guiding the actions of prosecutors in cases involving institutional violence.
36.In compliance with the principle of international law that requires States to investigate international crimes irrespective of where they were committed, a task force on universal jurisdiction has been working since 2016 to draft general guidelines governing the actions of prosecutors who are required to participate in cases in which the principle of universal jurisdiction is likely to be invoked.
Measures implemented by the Public Prosecution Service to support and protect victims of enforced disappearances
37.Specialized programmes have been established to provide support and guidance for victims of various offences, particularly offences involving institutional and police violence.
38.Victims of enforced disappearance and their relatives receive support through the Special Programme for the Assistance of Victims of Police Violence. The aim of the Programme is to implement a networking mechanism covering the entire Public Prosecution Service so as to ensure that victims and witnesses of police violence are able to exercise their rights to receive guidance, information and protection throughout criminal proceedings and to participate in such proceedings. The Programme is always implemented in conjunction with prosecutors working on cases that have already been brought before a court.
39.The Programme includes a protocol for the assistance of victims that sets out the principles governing the work of the task force involved, the criteria to be complied with in providing support to victims in accordance with the specific nature of the offence and the issues faced, and the guidelines to be followed from the start of the process until its completion, thereby ensuring quality care with a focus on promoting and protecting the human rights of victims.
40.Under the auspices of the National Executive, the National Directorate for the Truth and Justice Programme has been established within the National Secretariat for Human Rights and Cultural Pluralism of the Ministry of Justice and Human Rights.
41.As explained in document CED/C/ARG/CO/1/Add.1, the Truth and Justice Programme was established within the Executive Office of the Cabinet of Ministers in 2007 to coordinate the actions required to promote and institutionally strengthen the truth and justice process in connection with crimes against humanity committed during the period of State terrorism and to guarantee the protection of witnesses, victims, lawyers and justice officials involved in court cases or investigations related to such crimes.
42.In 2016, Decree No. 12/2016 provided for the transfer of responsibility for the Programme to the National Secretariat for Human Rights and Cultural Pluralism. Subsequently, the Programme was elevated to a national directorate pursuant to Administrative Decision No. 312/2018, thereby giving it greater primary responsibility.
43.The National Directorate for the Truth and Justice Programme has included within its sphere of competence work carried out under the Programme for the Unified Registry of Victims of State Terrorism and the activities of the group of lawyers involved in the truth and justice process.
44.Following the incorporation of new work units and the reorganization of its original internal departments, the activities of the Directorate were structured around four fundamental areas: (1) coordinating with the stakeholders involved to ensure the proper conduct of trials; (2) investigating repressive forces and identifying victims; (3) bringing complaints; and (4) assisting victims and witnesses.
45.Within this framework, work is under way to develop analytical and practical tools based on the way in which justice officials investigate offences and determine responsibility in cases involving State terrorism. Reports are then generally prepared.
46.These tools are aimed at promoting collaboration with the judicial authorities, the Public Prosecution Service and organizations that specialize in providing support and/or protection to witnesses, identifying and preventing the risks facing the justice officials concerned and recommending necessary safety and support measures.
47.In addition to the preparation of reports, work is undertaken to organize and systematically arrange the information collected with a view to its use in identifying risk situations.
48.The process of gathering information on situations that might concern persons involved in complaints or ongoing court cases, or in the institutional truth and justice process, has led to the development of a database on acts of threat, intimidation and/or bullying.
49.If appropriate, and if the gravity of the situation so warrants, the necessary coordinated action is taken ex officio by the various State agencies concerned to ensure the safety of the victims of such acts.
50.Pursuant to a court order, the Directorate locates, contacts and summons witnesses, at both the investigation and oral proceedings stages of cases, in order to prevent witnesses from being summoned by the security forces and to promote the right of victims of State terrorism to be considered as subjects of law.
51.Interviews are held with witnesses whose risk situation warrants a specific assessment, and steps are taken to involve the witness assistance and support teams.
52.The Directorate also plays a part in contacting and summoning young persons believed to have been taken from their families so that they may be called to court hearings in order to give DNA samples.
53.In carrying out these activities, the Directorate works in conjunction with courts, oral tribunals and federal prosecutor’s offices throughout the country, the Public Prosecution Service, the Dr. Fernando Ulloa Centre of the National Secretariat for Human Rights and Cultural Pluralism and provincial victim support teams.
54.Since 2018, the Directorate has intervened in summonses issued under Act No. 27.372 on the Rights and Guarantees of Crime Victims (see p. 20) in cases related to crimes against humanity.
55.The Directorate’s research unit collects, studies and interprets archives, including the digital archive of the National Memory Archive, the General Archives of the Nation and other archives of State organizations and human rights bodies. Using the information obtained, efforts are made to reconstruct the entities that operated during and before the period of State terrorism and to identify the persons responsible for them. The information in the different archives is cross-checked in order to obtain a complete reconstruction of each act under investigation.
56.In taking over the Programme for the Unified Registry of Victims of State Terrorism, the Directorate’s research unit assumed responsibility for constructing a nationwide, updatable database of disappeared, deceased and released victims of human rights violations and clandestine places of detention established under the illegal and repressive State regime (Places of Remembrance of State Terrorism, Act No. 26.691). It was also tasked with using fingerprint or genetic data to establish the fate of disappeared detainees.
57.Investigations are carried out both at the Directorate’s own initiative and at the request of courts, tribunals and prosecutor’s offices throughout the country within the framework of proceedings involving crimes against humanity and at the request of provincial human rights bodies, remembrance commissions and organizations responsible for places of remembrance, family members and civil society organizations.
58.The Directorate, through the group of lawyers involved in truth and justice processes, is competent to act as legal adviser, plaintiff, injured party, monitor, amicus curiae and/or to participate in proceedings in any other way that may be appropriate, in accordance with the formal rules of the competent jurisdiction in cases where human rights need to be protected.
59.The Directorate represents the National Secretariat for Human Rights and Cultural Pluralism as a plaintiff at the various procedural stages (investigation, hearing, appeal) of cases being processed in the country’s various jurisdictions.
60.At the regional level, the Standing Commission on Memory, Truth and Justice operates within the Meeting of the High Authorities on Human Rights of MERCOSUR and Associated States. Within the framework of the Commission, the National Secretariat for Human Rights and Cultural Pluralism signed a memorandum of understanding on the exchange of documentation for the investigation of serious human rights violations (MERCOSUR/CMC/DEC No. 19/17).
61.In 2019, when Argentina was serving as the temporary chair of MERCOSUR, the Commission expressed its support for the designation of the Navy School of Engineering Place of Remembrance Museum as a UNESCO World Heritage Site.
62.All the actions carried out by the Directorate are in compliance with the strategic objectives of the First Action Plan on Human Rights (2017–2020), which was adopted pursuant to Decree No. 1024/2017 of 11 December 2017 and is implemented by the National Secretariat for Human Rights and Cultural Pluralism.
63.The Action Plan includes the areas of memory, truth, justice and reparation (area No. 3) as part of a policy involving the three branches of government, which join forces to implement the Plan with a view to deepening democracy.
64.The strategic objective of area 3.1 (memory) is to guarantee the right to memory for both individuals and groups. The strategic objective of area 3.2 (truth) is to guarantee the right to truth for both individuals and groups. The strategic objectives of area 3.3 (justice) are to promote a series of judicial measures and public policies aimed at investigating and punishing persons responsible for serious human rights violations. The strategic objective of area 3.4 (reparation policies) is to ensure reparation for serious human rights violations.
65.The measures implemented to prevent other contemporary forms of enforced disappearance include the reorganization, in March 2018, of the Ministry of Security under Administrative Decision No. 299/2018, which established the current functions of the Directorate on Institutional Violence.
66.This Directorate is responsible for advising on the comprehensive handling of judicial investigations of cases of institutional violence involving members of the police and security forces, collaborating on the design of projects intended to regulate the use of force in accordance with relevant international rules, and monitoring court cases in which members of the security forces are being investigated in connection with institutional violence.
67.A system of administrative protection for the federal police and security forces has also been established to promote the reporting, investigation and punishment of offences and irregular acts committed by members of the police and security forces.
68.Pursuant to Administrative Decision No. 483, the National Directorate of Policies to Combat Institutional Violence was established under the auspices of the National Secretariat for Human Rights and Cultural Pluralism in May 2016.
69.The Directorate’s main function is to propose and implement policies and actions related to the follow-up of cases involving institutional violence and to provide legal advice to victims.
70.Its actions include tackling and preventing practices that violate human rights carried out by members of the security forces, armed forces, prison staff and health-care providers against persons whose freedom and/or autonomy has been restricted.
71.The Directorate operates a free hotline for reporting acts and/or situations involving human rights violations against persons whose autonomy and/or freedom has been restricted. On the basis of the reports received, it is possible to identify the action required at the institutional level and to coordinate a systematized response together with the various competent national and/or provincial bodies.
72.In order to establish mechanisms for preventing and punishing violence and abuse of power by security and prison officials, efforts are made to coordinate the work of the national and provincial judicial authorities, the Directorate on Institutional Violence of the Ministry of Security, the Office of the Ombudsman for Institutional Violence and the Office of the Ombudsman for the Prison System.
73.In October 2016, pursuant to Decree No. 1093/16, the Federal Search System for Disappeared and Missing Persons was established within the Ministry of Security.
74.The origins of the System within the Ministry date back to 2011, when a directive for action in cases of disappeared persons was issued, and 2014, when the Disappeared Persons Search Unit was set up.
75.The main functions of the System are to establish mechanisms for coordinating with other State agencies in order to promote effective cooperation with judges responsible for investigations related to the search for disappeared or missing persons; coordinate exchanges of information with relevant public and private agencies; implement capacity-building and training plans for members of the police and security forces and judges and prosecutors in all provinces and jurisdictions; establish agreements to expedite the exchange of information between all the registries and databases of missing persons in the country; issue specific protocols; and draft any necessary regulatory proposals.
76.The System receives and registers reports of missing persons and located persons of unknown identity sent by the different districts through various channels. Every case that comes to its attention is immediately forwarded, in real time, to the provincial police forces, federal forces and migration authorities through the federal system of police communications.
77.The System has an interdisciplinary team of lawyers, psychologists and sociologists who analyse cases on which collaboration is required and evaluate the type of resources that can be used. The resources that can be made available include ground-penetrating radar, specialist researchers, search dogs, specialist search staff, experts, scientific equipment, drones, boats, teams specializing in technological investigation and communication and rewards granted through the national programme to coordinate efforts to locate persons sought by the judicial authorities, established under Resolution No. 1552/12 of the Ministry of Justice and Human Rights.
78.A number of protocols have been drawn up, including a protocol on receiving complaints in cases of disappeared and missing persons, a code of conduct for police forces, a protocol on returning children and adolescents who have been located, a protocol on taking fingerprints when persons of unknown identity are located and a protocol on communication when persons of unknown identity are located.
79.These protocols are intended for the security forces and provincial police forces whose provinces participate in the Federal Search System for Disappeared and Missing Persons.
80.In order to ensure that existing protection measures are implemented, the National Protection Programme for Witnesses and State’s Witnesses operates under the auspices of the Office of the Under-Secretary for Criminal Policy of the Ministry of Justice and Human Rights.
81.The Programme is designed to ensure the safety of accused persons and witnesses who have made a significant and efficient contribution to a federal judicial investigation and whose lives or physical integrity are in danger.
82.The Programme, which was established pursuant to Act No. 25764 in 2003, is aimed at persons who collaborate in cases involving drug trafficking, kidnapping for extortion, terrorism, crimes against humanity committed between 1976 and 1983, and trafficking in persons.
83.Act No. 27304, which amended the Criminal Code, regulated the benefits and procedure applicable to persons involved in, or responsible for, offences provided for in the Act who provide information or precise, verifiable and plausible data, and established that accused persons who collaborate under the Act are covered by the provisions of the above-mentioned Programme.
84.The Act provides that, at the request of the judicial authority, the Ministry of Justice and Human Rights may include other cases, providing that they concern offences relating to organized crime or institutional violence and that the importance and political and criminal interest of the investigation so warrant.
85.In 2016, with a view to carrying out reforms and designing actions aimed at fulfilling the Programme’s objectives, an action plan was developed to bring the Programme’s structure, operations and operational capacity into line with international standards.
86.In June 2017, in the absence of an organizational structure that defined operational levels, Resolution No. 2017-468-APN-MJ, on the distribution by sector of the work of the National Directorate of the National Protection Programme for Witnesses and State’s Witnesses, was adopted to assign responsibilities, in accordance with management processes and procedures, with a view to improving the efficiency, effectiveness and quality of the service.
87.The Directorate is headed by a national director and composed of an operational coordination division, a technical and administrative coordination division, a risk analysis unit and a department for coordinating with the judiciary and the public prosecutor’s offices. The operational coordination unit is divided into a case follow-up department, a security department and an interdisciplinary evaluation department. The technical and administrative coordination division is composed of a legal department and an administrative and accounting department.
88.New software that complies with security, integration and operability requirements has been designed, developed and implemented in conjunction with the General Directorate of Information Technology Management.
89.In view of the highly sensitive nature of the information handled by the Programme, the safeguarding of that information was evaluated, a user module developed that complies with those already registered in the human resources system of the Ministry of Justice and Human Rights and a process established for encrypting all the data handled by the system, including the database, photographs of witnesses and documents. There is also an audit log in which all the changes made in the system are saved in the database, ordered by date, time, author of the change and edited data.
90.It was assumed from the outset that the different departments should be able to interact with each other, which is why the data from the different operating units (personal data, health data, protection measures, call logs, psychosocial consultations, appointment schedule, administrative area data) are shared.
91.Efforts were made to find a straightforward computer tool whose benefits could be harnessed in an agile, efficient and safe way.
92.The main objective is to store information related to all registration files, new developments in connection with such files, different types of security measures, calls made to monitor witnesses and statistical reports and graphs.
93.In order to adapt and modernize the infrastructure and equipment, internal procedures were initiated to enhance the efficiency and safety of the Programme through the acquisition of vehicles to increase the size of the fleet used for transporting and/or removing protected witnesses, bullet-proof vests, drones, satellite phones, signal jammers, satellite tracking devices, security cameras, portable notebooks and printers, and furniture.
94.The Programme is a central tool in the investigation, prosecution and punishment of organized crime since it protects citizens who collaborate with the justice system and thereby safeguards evidence. For this reason, Resolution No. RESOL-2017-338-APN-MJ was issued in April 2017 to promote the establishment of a unit for the protection of witnesses and defendants within the Federal Prison Service and under the main security directorate of the National Directorate of the Federal Prison Service. The unit is responsible for efficiently carrying out the tasks assigned to it by the national director of the Programme in coordination with the national director of the Federal Prison Service, thereby strengthening that Service’s operational capacity.
D.Measures to prevent enforced disappearances
1.Follow-up information on paragraphs 25, 27 and 29 of the concluding observations
95.The Justice 2020 Programme of the Ministry of Justice and Human Rights, gave momentum to the reform of the Federal Code of Criminal Procedure, which was adopted in 2019 pursuant to Act No. 27482.
96.The new Code ensures that both victims and defendants have guarantees of a fair, prompt and impartial trial and replaces the so-called mixed system of criminal prosecution with one that is adversarial or accusatory.
97.Victims can participate actively in proceedings. They have the right to be heard and may request investigative measures, psychological support and security measures.
98.The new Federal Code of Criminal Procedure also provides that defendants’ right to a defence must include the rights to be informed of the reasons for their arrest or detention and the identity of the authority that ordered it, to receive a copy of any court order issued against them and to be brought before a judge without delay so that he or she may decide on the legality of their arrest or detention. Persons should therefore be brought before a judge as soon as they are arrested.
99.Transfers of persons deprived of liberty within the Federal Prison Service are arranged by the Department of Corrections in accordance with standards for their treatment (on the basis of risk and needs) and their security category. The competent judge is duly informed in accordance with article 72 of the Custodial Sentences Enforcement Act (No. 24660).
100.In a similar vein, transfers from prisons in the metropolitan area and the Province of Buenos Aires to prisons in the interior of the country are reported to the court responsible for the inmates concerned and to the Public Defence Service.
101.With regard to the system for registering persons deprived of liberty, the Federal Prison Service has a computerized system of personal files that provides accurate, consistent and real-time information on the situation of persons deprived of their liberty who are held in prisons.
102.This system was developed using web technology and secure links. It allows fingerprints and facial images to be captured biometrically, stores data related to inmates’ identity and legal status and makes it possible to link up data related to education, social assistance, medical care, employment, criminology, accommodation, visits and transfers.
103.The system provides reliable and useful information for decision-making within the institution, greater security and control of data, homogeneous operations for user areas and automatic recording of the operations carried out.
104.The Office of the Ombudsman for Institutional Violence produces periodic reports containing detailed, up-to-date data on persons detained in federal prisons and in the main provincial prisons that hold persons by order of the federal justice system.
105.In 2016, the Office began to participate in an inter-agency process aimed at drafting a bill on establishing and launching a single registry of persons deprived of liberty. The bill also provides for the establishment of a unified information system that will enable the production and publication of statistics disaggregated by relevant indicators and the development of public policies based on reliable data.
106.The Public Prosecution Service also has a sentence enforcement unit that is responsible for harmonizing the measures taken by the Public Prosecutor’s Office in the area of sentence enforcement. This unit is competent to act within the national justice system in the city of Buenos Aires and mainly focuses on monitoring the status of proceedings involving persons who have been convicted.
2.Follow-up information on paragraph 31 of the concluding observations
107.The National Committee for the Prevention of Torture, which is the governing body of the National System for the Prevention of Torture and was established under Act No. 26827, is a mechanism for the monitoring, oversight and inspection of places of deprivation of liberty including prisons, jails, security force facilities and police stations.
108.The National Committee was constituted on 28 December 2018 by the National Senate. In accordance with Act No. 26827, the Committee is composed of 13 members: 6 parliamentary representatives, 3 representatives of non-governmental organizations, 2 representatives of local mechanisms for the prevention of torture, 1 representative of the National Secretariat for Human Rights of the Ministry of Justice and Human Rights, and the Prison System Ombudsman.
109.Its members enjoy the same immunity as the Constitution provides for members of the National Congress.
110.The process of selecting the Executive Secretary of the National Committee is under way, pursuant to article 28 of Act No. 26827.
111.The National Secretariat for Human Rights and Cultural Pluralism carries out advocacy and collaboration activities with the provinces in order to ensure that local mechanisms for the prevention of torture can be made operational in accordance with the international obligations assumed by the Argentine State.
112.To this end, institutional visits to the provinces are undertaken and working meetings are held with key actors, including officials of the provincial executive authorities, legislators, representatives of civil society organizations, academics, victims of institutional and domestic violence and their family members, members of the security forces, and prison authorities and officers. Training and awareness-raising activities are also carried out, projects for implementing mechanisms are monitored and reports and recommendations are drawn up with a view to ensuring the effective implementation of local mechanisms for the prevention of torture.
113.Local mechanisms for the prevention of torture in local districts have the following status:
(a)In the province of Chaco, the Provincial Mechanism for the Prevention of Torture and Other Cruel, Inhuman and/or Degrading Treatment and Punishment was established pursuant to Provincial Act No. 6483 in 2010. A new bill, adopted in 2015 as Act No. 7682, was subsequently submitted to bring the mechanism into line with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The mechanism is now operational.
(b)In the province of Mendoza, the Provincial Commission for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was established pursuant to Provincial Act No. 8284 in 2011. This mechanism is regulated by Regulatory Decree No. 2207/2011 and is currently operational.
(c)In the province of Misiones, the Provincial System for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment was established pursuant to Provincial Act No. 4378 in 2007. The mechanism is regulated by Act No. IV-65 of 2014 and its launch was completed in 2016. It is now operational.
(d)In the province of Río Negro, the Committee for the Evaluation, Monitoring and Implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was established pursuant to Act No. 4621 in 2010. A new bill, adopted in 2014 as Act No. 4964, was subsequently submitted to bring the mechanism into line with the standards of the Optional Protocol. As the mechanism currently has six designated representatives, rather than the eight stipulated by the regulations, it is not currently operational.
(e)In the Autonomous City of Buenos Aires, the Local Mechanism for the Prevention of Torture and Other Cruel and/or Degrading Treatment and Punishment in the Autonomous City of Buenos Aires was established in 2016 within the City’s Office of the Ombudsman, pursuant to Act No. 5787. Although the regulations implementing Act No. 5787 have not yet been adopted, the Office of the Ombudsman has established, pursuant to Order No. 065/2017, a unit for the implementation of the mechanism for the prevention of torture and other cruel, inhuman and/or degrading treatment or punishment, which currently exercises the functions, powers and duties assigned to the mechanism.
(f)In the province of Salta, the Provincial System for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment was established pursuant to Act No. 7733 in 2012. New bills were subsequently submitted to bring the System into line with the Optional Protocol and, in 2017, Act No. 8024 was passed to bring the relevant regulatory framework into line with the required standards. The regulations implementing the Act were adopted under Decree No. 1139/2018. The mechanism is not yet in operation because its members have not been appointed.
(g)In the province of Entre Ríos, the Provincial Mechanism for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in the Province of Entre Ríos was established pursuant to Act No. 10563 in 2018, taking into account the provisions of the Optional Protocol. The mechanism is not yet operational as its members are currently being appointed.
(h)In the province of Corrientes, the Provincial Committee for the Evaluation, Monitoring and Implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was established pursuant to Act No. 6280 in 2014. Although the independence and budgetary safeguards of the mechanism are not fully compliant with international standards, it has been put into operation and is currently carrying out its tasks.
(i)In the province of Tucumán, the Provincial Commission for the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was established pursuant to Act No. 8523 in 2012 and is regulated in accordance with international standards under Decree No. 3956/2016. The mechanism is not yet operational because its members have not been appointed.
(j)Although the provinces of Buenos Aires, Tierra del Fuego, Jujuy, Catamarca, Santa Fe, Córdoba and Neuquén do not yet have a constituted local prevention mechanism, a number of bills on the establishment of such mechanisms have been drafted. The National Secretariat for Human Rights and Cultural Pluralism has conducted several advocacy visits and provided technical advice in order to supervise the parliamentary process.
(k)The provinces of Santiago del Estero, San Luis, La Pampa, Formosa, San Juan, La Rioja, Santa Cruz, and Chubut do not yet have local prevention mechanisms and no parliamentary bills on the establishment of such mechanisms have been submitted. The National Secretariat for Human Rights and Cultural Pluralism has conducted visits and provided advice on the drafting of the bills.
3.Follow-up information on paragraph 33 of the concluding observations
114.The Directorate-General for Training and Education of the Public Prosecution Service has carried out 29 training and education activities in the form of face-to-face courses, distance learning courses and special workshops.
115.These activities focused on strategies and approaches to institutional violence, investigations into offences that violate human rights, the process of searching for and identifying persons, the rights of persons deprived of liberty and the rights of victims, among other areas.
116.Two actions in particular stand out: the broadcasting of a programme produced by the Public Prosecution Service and the television channel “Encuentro” in which the sister of Franco Ezequiel Casco narrated the story of his enforced disappearance with the aim of disseminating recommendations and information on how to submit complaints; and the holding of a workshop on strategies for investigating complex crimes, based on the Ayotzinapa case, which was organized by the Human Rights Directorate of the Attorney General’s Office.
117.As mentioned above, one of the functions of the Federal Search System for Disappeared and Missing Persons of the Ministry of Security is to implement capacity-building plans and ongoing training for members of the System, including police and security officers and judges and prosecutors in all provinces and districts.
118.Since the establishment of the System, three international conferences have been held in the city of Buenos Aires, each attended by over 300 people. Those in attendance included national and international experts on different aspects of investigations into cases of disappeared persons and the identification of located persons of unknown identity.
119.Working group meetings are being held with specialized prosecutor’s offices, including the Unit for the Prosecution of Trafficking and Sexual Exploitation of the Public Prosecution Service, and work is being carried out with relevant civil society organizations.
120.At the international level, the Federal Search System for Disappeared and Missing Persons is, along with bodies from 27 other countries, part of the International Centre for Missing and Exploited Children. The System hosted the ninth global network meeting of the Global Missing Children’s Network in November 2017 and also works in coordination with the International Criminal Police Organization (INTERPOL).
121.The National Directorate of Policies to Combat Institutional Violence and the National Directorate of Civic Culture in Human Rights, both of which report to the National Secretariat for Human Rights and Cultural Pluralism, are implementing joint training activities on the prevention of institutional violence for public officials, including members of the security forces, legislators, provincial and municipal officials and local community workers.
E.Measures for reparation and for the protection of children from enforced disappearance
1.Follow-up information on paragraphs 35, 37 and 39 of the concluding observations
122.In 2011, the Dr. Fernando Ulloa Assistance Centre for Victims of Human Rights Violations of the National Secretariat for Human Rights and Cultural Pluralism extended its remit and the measures being developed to support victims of State terrorism to encompass victims of human rights violations in democratic contexts (Decree No. 141/2011) on the grounds that, in the interests of democracy, it was necessary to raise awareness of current State violence as a social issue.
123.The Ulloa Centre defines institutional violence as any arbitrary or illegitimate use of force exercised or permitted by the various State agencies.
124.The booklet “Los Derechos Humanos frente a la violencia institucional” (Human Rights in the Face of Institutional Violence), which was produced by the National Secretariat for Human Rights and Cultural Pluralism in 2015, defines institutional violence as “structural practices involving violations of rights by officials belonging to the security forces, armed forces, prison services and health-care providers in contexts in which individuals’ autonomy and/or freedom has been restricted”. These situations necessarily involve three components: specific practices, actions taken by public officials and contexts in which individuals’ autonomy and freedom have been restricted.
125.In this regard, the Ulloa Centre has been planning and implementing a comprehensive health reparation policy for victims of human rights violations. Interdisciplinary teams of health-care professionals, including psychiatrists, psychologists and social workers, work in each area. The aim is to provide comprehensive support to victims of serious human rights violations in democratic contexts; make considered referrals to health providers, thereby ensuring access to care; support victims of institutional violence and their relatives when they appear before the courts, which involves coordinating with justice officials; establish an inter-agency network of relevant public bodies and civil society organizations; provide training to interdisciplinary teams in order to establish referral networks and raise awareness of the issue; and develop content for publications on the subject.
126.As explained in the report submitted by Argentina (CED/C/ARG/1) and the information on follow-up to the Committee’s concluding observations (CED/C/ARG/CO/1/Add.1), the Reparations Policy Directorate of the National Secretariat for Human Rights and Cultural Pluralism is responsible for coordinating actions linked to reparation programmes targeted at victims of enforced disappearance during the civil-military dictatorship. Within this framework, it is continuing to implement Acts No. 24043, No. 24411, No. 25192 and No. 25914, which deal with reparations, and any other instruments addressing the area which may be enacted in the future.
127.Act No. 27372 on the Rights and Guarantees of Crime Victims was enacted in June 2017 to address the issue of reparation and protection measures for children.
128.This law amended the Code of Criminal Procedure by extending the rights of victims, including in cases where they have not been named as plaintiffs, in order to ensure that they are able to remain informed of the status of the proceedings and motions, particularly those concerning the freedom or detention of the accused, and to provide information and evidence.
129.The regulations implementing Act No. 27372 set out details of the protection afforded to victims of different types of offence and provide for the establishment of the Centre for the Assistance of Crime Victims under the Ministry of Justice and Human Rights.
130.The Centre’s most relevant tasks include providing immediate support to victims by means of an emergency service, providing temporary accommodation and emergency provisions of food, providing health care and counselling, and ensuring that victims benefit from legal assistance and representation.
131.The new legislation extends the concept of victim to include not only the person against whom the offence was committed but also, in cases involving death or serious psychological or physical impairment, his or her spouse, partner, parents, children, siblings, guardians or custodians.
132.The Civil and Commercial Code, as amended by Act No. 26994, entered into force on 1 August 2015.
133.Article 2561 of the new Code stipulates that “civil actions arising from crimes against humanity are not subject to any statute of limitations”; therefore, no statute of limitations may be applied to reparations for crimes against humanity, including enforced disappearance.
134.Pursuant to Act No. 24584, the Argentine Republic granted constitutional status (Constitution, art. 75 (22)) to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. Article 1 of that Act stipulates that war crimes and crimes against humanity are not subject to statutory limitations, irrespective of the date on which they were committed.
135.Since crimes against humanity are imprescriptible, the new text of the Civil Code establishes that a statute of limitations may not be applied to civil actions arising from such crimes.