Justice orders compensation to Mario Santucho’s daughters for his arrest and death

The National Appeal Chamber for Federal Administrative Litigation has decided to compensate $300,000 to the daughters of Mario Roberto Santucho after accrediting the damage suffered as a result of the death of their father, the subsequent exile to which they were subjected and the non-return of the remains of the commander of the People’s Revolutionary Army (ERP). The court’s decision overturned the trial judgment rendered in 2018, which condemned the national state for “the moral damage caused to the plaintiffs by the non-delivery of their father’s body” and declared the other claims statute-barred.

The one responsible for examining the case was chamber V, composed of judges Pablo Gallegos Fedriani, Guillermo Fabio Treacy there Jorge Federico Alemany -on leave-, which analyzed the claims filed by the three daughters of the Secretary General of the Partido Revolucionario de los Trabajadores (PRT) regarding “damages arising from: I) kidnapping, the practice of torture, cruel treatment and the later murder of his father Mario Roberto Santucho; II) the persecution, detention, practice of torture to which they were subjected and the subsequent exile to which they were forced as their only option for life; III) failure to hand over his father’s body, despite public acknowledgment of his murder.”

federal trial judge Maria Jose Sarmiento had validated the moral damage for “the omission to deliver the body” after having considered it a “continuing crime” at the head of the State – whose body denounced was the Ministry of Justice and Human Rights ‘Man of the Nation-. However, concerning the other requests, it pronounced the prescription since the plaintiffs took 20 years to claim since the condemnation – on September 9, 1996 – of the absence with presumption of death of their father.

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In this sense, the judge had stated: “The civil reparation that the plaintiffs seek for material, psychological and moral damages for the abduction, torture and subsequent homicide of their father, should have been filed from the moment when the right could be exercised, so that, taking into account the fact that democracy was established in 1983 and that the absence with presumption of death was then pronounced by judgment dated September 9, 1996, until the date of introduction of this action the limitation period – of 2 years – of article 4037 of the Civil Code”.

All parties involved have appealed the decision. And in such a case, the two magistrates -by coincidence- when they study the institute of the prescription applicable to the crimes against humanity expressed: “It is particularly relevant to point out that, recently, the Inter-American Court of Human Rights -in a case in which the Argentine Republic was condemned- recalled its case law in the case “Ordenes Guerra et al. v. Chile’ (…) in which it had already ruled on the imprescriptibility of legal actions brought to obtain redress for serious human rights violations”.

“The Inter-American Court added, in this sense, that ‘the inapplicability of prescription is affirmed both with regard to judicial, civil, contentious-administrative or other actions, as well as administrative procedures which, being available, are requested by THE victims of serious human rights violations in order to claim the corresponding reparations’”, quote the judges of the Chamber in the judgment published by the blog Palabras del Derecho.

In view of this, it is necessary to point out that it is not controversial that The reparation sought by the plaintiffs is based on crimes against humanity committed by the national state to the detriment of the plaintiffs and their families during the last military dictatorship. In this sense, the National Congress, through the sanction of successive restorative laws (…) has attempted to respond to crimes and abuses of power such as those suffered by the plaintiffs -motivated by political persecution- and has specifically considered the character illegitimate state actions of persecution, detention and enforced disappearance of people as part of state terrorism,” they said.

And in this order they added: “Therefore, the analysis of the claim in this case must be carried out “in the light of the obligations contracted by our country under the celebration of international treaties, which makes them not only imprescriptible , both criminal and civil, but also the cause and origin of full compensation for the damage caused. As such, it is appropriate to revoke the judgment of first instance as soon as the plaintiffs’ claim for compensation has been declared time-barred.

For their part, in detailing the damages claimed by the plaintiffs regarding the death of their father – and after a detailed account of the historical facts provided by newspaper headlines, testimonial statements and court records – they stated “It should be noted that the assumptions that determine the responsibility of the State in this aspect of the claim are configured. The evidence is sufficient to consider as proven that the military junta ordered the death of Mario Roberto Santucho -decision which, once carried out, was made public by an official press release-, as well as he then ordered the disappearance of his remains. In addition, the information collected in the criminal file and in the summary information allows us to corroborate the context of political persecution that gave rise to the act, so it should be concluded that the national state is responsible for the acts of unlawful detention and death of Mr. Santucho as part of the systematic commission of crimes against humanity by state forces under the de facto government”.

And they added: “Such actions, the illegality of which was expressly recognized by the Argentine Congress when enacting the reparation laws (…), generate the obligation of the State to recognize reparation for the victims. On the other hand, at the end they studied the damage “that they suffered as a result of the persecution, abduction and detention that led them to exile from the country when they were minors and as the only possible alternative to continue their lives with relative normality”, which they considered accredited after a series of interviews as part of a psychological expertise.

In this context, the judges held that “both the persecution and illegitimate detention of the plaintiffs, and the subsequent exile to which they were forced, by constituting illegal acts attributable to the national State, entail a generating responsibility and must do subject to reparation.”

In turn, with respect to the omission in the delivery of the body, the decision again cited the Inter-American Court of Human Rights by virtue of the fact that “it established that the right of the relatives of the victims to know where the remains of their relatives are is, in addition to a requirement of the right to know the truth, a measure of reparation, and therefore gives rise to the correlative duty for the State to satisfy these fair expectations. Receiving the bodies of the deceased (…) is of the utmost importance for their loved ones, as it allows them to bury them according to their beliefs, as well as to close the process of mourning that they have experienced throughout these years. “.

In this understanding, they used the information collected by the expert psychologist in relation to the fact that “Plaintiffs have suffered the effects of marginalization and helplessness in the face of what they perceive as damage to the reputation of the missing loved one; leading them to a fight for the recovery not only of their father’s body but of social value, due to the denigration and rejection they suffered. It can be observed that an affective and subjective deterioration occurs, since the complainants live with feelings of ambivalence, on the one hand fear-strength, shame-hate, hope-despair. (…) By virtue of this, as established in the judgment, the deliberate failure to hand over the body after the death of Mr. Santucho – a fact recognized by the Military Junta – and the moral prejudice caused to the plaintiffs, is duly accredited and must also be repaired by the national state”.

“That therefore, Not only have the damages suffered by the plaintiffs been duly accredited, but they are also attributable to the intervention of State forces in their production., by acting in a totally irregular manner. In this way, the obligation is configured – of an imprescriptible nature, given the nature of the unlawful acts of the State – to repair the damage caused,” they concluded.

Finally, when quantifying the amount of compensation, they established that due to the death of Santucho and the consequences that led to the exile of his daughters, the application of the provisions of Law 24.411 corresponds, which in its article 1 establishes the equivalent of “the monthly Remuneration of the agents of level A of the scale of the civil personnel of the national public administration by the decree 993/91, by the coefficient 100″.

Then, with regard to “the deliberate concealment and non-delivery of the remains of the plaintiffs’ father, it corresponds -according to the elements produced in the file- to recognize a special indemnity prudently established in the sum of $300,000 in favor of each of them, without prejudice to what corresponds in terms of application of the regulations on debt consolidation”, they resolved.

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