The editorial
reproduced below shows the editor of the newspaper La Nueva Provincia
, Vincent Massot, known for his National Socialist ideas. This posthumous eulogy Admiral Massera is nothing more than public recognition of their commitment to the project of the admiral, who was none other that the draft Navy emerged in early 1970 in Puerto Belgrano and no doubt a reflection of the National Socialist ideas.
This project was defended in the pages of La Nueva Provincia
, gray provincial newspaper, however, was and is the body lift the ideological mentioned. As
testify in his day the naval officer Adolfo Scilingo , Massot and La Nueva Provincia
were a must for any naval officer at the time.
should be noted this political-ideological PTO upon termination scheme Onganía, so that by 1972 the Navy had developed a project planning meant death through the creation of Task Forces, which, based German experience during World War II, have their operation from a model that sought to counter the persecution and extermination of students, intellectuals, workers and social activists who, according to their interpretation, were undercover agents of international communism . In the semantics of law enforcement were called "subversives." Among
1971 and 1976 is senior Naval Secretary General and Chief of Naval Operations, is at the time when developing and implementing counterintelligence operations plan that is reflected in the secret order, the true rules of operation of death squads.
During this period, ultimately establishes its relationship with Licio Gelli and Roberto Calvi, characters on board, so to speak naval, in the creation of a National International. Both characters attend over the years, as special guests at the annual ball of the Admiralty in Puerto Belgrano, to the delight of the citizens bahienses participants in the project pipeline.
late Admiral took over political control of national universities in the first indirectly and then directly after the appointment of such a Frattini - member of Opus Dei and reactionary known as Director General of Universities at the time of the Minister Ivanissevich. At that time it was necessary to approve any appointment Puerto Belgrano in the National Universities, leading to the end, in the aftermath of Isabel Peron's Government, that copies of decrees signed by the President-white were filled with names of "dispensable "provided by Puerto Belgrano.
control the universities, was made with blood and fire support of these reactionary forces and National, and in some ways, continues today as the existing university model developed is continuity in the period we are talking about.
The model was repression at the University of La Plata, University of Mar del Plata and the University of the South. To this end, launched the counter-model developed by these ideologues, including occupied a special place Vicente Massot's mother and himself. This has been ratified by the statements in court of bahiense also, Adolfo Scilingo.
To carry out this plan of extermination was used "Task Forces" which in practice were groups composed of civilians and members of other militaries. These groups are a functional copy of the Einsatzgruppen and methodological Nazis, used for killing operations in Eastern Europe.
The plan developed, the region near the naval bases were from priority use of the Navy, so figure in the "Capacity Building Plan" prepared in 1972, as amended in November 1975 and June 1976, this last signed by the then Chief of Naval Operations, Admiral Luis Mendía. We can therefore say without any legal doubt, that in the three areas mentioned military operations were subsidiaries of the ordered and directed by the Navy.
In the case of La Plata was used task force number five (FUERTAR5, in naval parlance), James River Group, which depended operationally to the Director of the Naval Academy and was composed of personnel from the following units: School Naval Academy, Liceo Naval Almirante Brown, James River Naval Hospital, MI Battalion No. 3, Prefecture of La Plata, Center for Recruitment and Training of Conscripts of IM and Units based in La Plata, Berisso and Ensenada.
In case of Mar del Plata used the task force number six (FUERTAR6) operationally dependent Force Submarines, and was composed by the Association of Divers Tactical Amphibious Group Command, Submarine School, Antisubmarine School, Diving School, NCO Academy IM Prefecture, Mar, Mar del Plata Prefecture, Prefecture Quequen, Provincial Governor General Lavalle and dependencies based in Mar del Plata and surrounding areas.
Today we know from judicial investigations carried out in the city of Mar del Plata that its leaders were the
Peter Judge Federico Hoft, nacionalsocialta, founder of the Nationalist Concentration University (CNU) and that during the period dictatorship lived inside the Naval Base Mar del Plata, and also the Attorney
Gustavo Demarchi, processed a few days ago for crimes against humanity and to date fugitive along with other defendants in the same case.
operations depended on the number-one task forces, of which he was chief Admiral Zero, codenamed Admiral Massera, which is explained by the pyramid itself control the death squads. The FUERTAR1, in naval parlance, depended Sea Fleet and its chief operating officer was the Naval Commander. In it were added the Puerto Belgrano Naval Base, Puerto Belgrano Naval Hospital and FUERTAR2 depended on the Amphibious Support Force and its chief operating officer was the commander of the Amphibious Support Force. She was aggregated School Officers of the Navy, Center for Recruitment and Training of Conscripts of Seamanship, Dependencies, based in Bahia Blanca and Punta Alta and Bahía Blanca Prefecture.
At least since 1972 began to take control of foreign operations and, particularly, the Embassy of Argentina in Rome, for which they were appointed several bahienses, the most famous Professor Bruno Pasarelli. It is in that Licio Gelli embassy where he served with all his power for years. This explains the appointment of Tetus Remus and other religious fundamentalists and citizens of reactionary ideologies of various kinds. After the military coup entire foreign policy became controlled by Puerto Belgrano.
This model was developed to counter all the state level and later transferred abroad, mostly to
Bolivia, where these forces managed to
control the cocaine market. This financed operations in Central America, and in regard to the Navy, especially in El Salvador, in the Gulf of Fonseca and in Miami, where they held a special unit under the coverage of companies, some of them with origins in Bahia Blanca and Mar del Plata. To this end they allied with criminal organizations, the latter being understood in terms of the "United Nations Convention against Transnational Organized Crime", which, in most cases, were under control of National at that time led by Klaus Barbie, who is credited with appointing specialist coaches for extermination practices. At that time there was even the fact that naval officers were involved in illegal operations in Uruguay and counterintelligence training practice for future operations task forces.
Task Groups will be expanded to Europe, especially Italy, France and Germany and especially during the World Cup, where the image is directed operations from the Embassy in Rome because of this fact it Professor Bruno Pasarelli subsequently become famous sportswriter, just at the time the P2 Licio Gelli had taken control of the entire group of several publishers in Argentina, Brazil and Italy. This type of operation remained at least to the Falklands War, when it meant a tipping point for the model given the strategic and military failure that occurred.
In Spain we have a permanent place as a result of their direct relations with the English government, especially with the Socialist leader Felipe Gonzalez, who not only protected the counter forces of the Navy, but many contributors who were admitted to Madrid with precise knowledge of their responsibilities. Similarly, as part of peace accords in Central America (a direct consequence of the withdrawal of Argentine troops because of the defeat in the Falklands), Spain several officers protected even giving them new identities.
This was the time when, to the scandal of the Radical Party member of the Socialist International, the Social Democratic Party founded by Admiral Massera was for at least two years political observer in that group. The English Popular Party came to have a security force led by counterintelligence officers of Battalion 601, specifically the so-called "Andean Task Force", who were trained and led by Puerto Belgrano and that most had originated in Bahía Blanca and Neuquén.
legal defense strategy of the Navy, once the trial was over to commanders known as
Case 13, was very simple but very effective: left exposed to mockery of the collective imagination the officers identified in the
"indictment of the prosecutor in the case n º 761 ' ESMA - Acts that were reported as having occurred in the area of \u200b\u200bthe School of Naval Mechanics' "(Task 3.3.2), and some of the employees contained in the documents of military trials Navy had implemented to try to comply with the trial of the naval officers involved in the repression against its own military courts.
Cause No. 761 was open from the very
decision of the Case 13 and then "suspended" by the "Law of Punto Final. This legal strategy was organized and financed from Bahia Blanca, according to statements by the lawyers themselves.
This was complemented by a tight social and political control in the city of Bahía Blanca and a special control of the federal courts of the city and the Federal Capital, where he managed the "Cause Marina" was left outside the judicial agenda.
The Admiralty was concerned about the fate of his officers, especially from the vicissitudes of
Lieutenant Junior Miguel Angel Cavallo, closely related to the city of Punta Alta, to obtain the annulment of the trial in Spain and move to Buenos Aires, which was included in the facts of the Task Force 3.3.2. Thus
have hidden criminal structure that worked in those years. Without going into the merits and only an indication, we must clarify the criminal structure in the Federal Capital, as it is necessary to understand the steps that are beyond the control of the proceedings at ESMA.
This was integrated into the Group FUERTAR3 Buenos Aires, under the Operations Chief of Staff of the Navy, and was composed of the Security Battalion General Command Headquarters of the Navy Mechanics School of the Navy, Naval Air Ezeiza, Marine Artillery Arsenal Zarate, Buenos Aires Naval Station, Naval Station San Fernando, organizations and units based in the Federal Capital and Greater Buenos Aires, National School of Nautical and Naval Arsenal Azopardo. Until
Lieutenant Commander Adolfo Francisco Scilingo Manzorro, born on July 28, 1946 in the city of Bahia Blanca, was presented in Madrid in order to make a statement in the English courts, no naval officer had explained the operation of criminal operations of the Navy in court.
October 08 2001 with the closing of the proceedings in the case of Adolfo Scilingo by the Central Criminal Court No. 5 of the Audiencia Nacional in Madrid, opened the trial stage in the proceedings for the "Argentine case", whose first session was held on January 14, 2005 in the High Court, being seen for sentencing on March 10, 2005, which was read on 19 abrril 2005 Scilingo unanimously condemned for crimes against humanity, this statement would be ratified by the English Supreme Court concerning the figure of crimes against humanity and criminal organization.
A significant number of naval officers involved in the organization constituted criminal, under a secret order of military power, such as counterintelligence and extermination units similar to the Task Force called 3.3.2 and that would work instead of the ESMA (Escuela de Mecanica de la Armada). The Argentine armed forces used this method in Bolivia, El Salvador, Guatemala, Honduras, Nicaragua and South Africa. The victims are counted in tens of thousands.
Adolfo Scilingo is a symbol of the operation of the Navy and is a consequence of cultural and political space created in the city of Bahía Blanca around the Navy and which was, as stated, with great influence of National Socialist groups linked to daily La Nueva Provincia, the Cabildo magazines and The Fort and publisher, now defunct, who edited most of the works of theorists of National Socialism, like the Argentine Walter Darre and family owned Massot .
This
sentence strip fixed maximum penalty for crimes committed by the Navy in Argentina and for the first time, we got the international criminal law for serious crimes against human rights be applied in ordinary courts, what would the legal basis for the decision to annul the laws of impunity pronounced shortly after June 14, 2005 Argentina's Supreme Court and decisions of
European Court of Human Rights (case Kolk and Kislyiy v. Estonia) confirming the jurisdiction of the courts of countries that are part of the Council of Europe to apply this doctrine of international criminal law and the crime of crimes against humanity, or, the
court's ruling Human Rights September 26, 2006, relapse in the case Almonacid.
As President of the Supreme Court of Justice of Argentina, Dr. Ricardo Lorenzetti, in the presentation of
Report on proceedings of a trial for crimes against humanity " last August 11, 2010:" The legal aspect is very important because after finding that the crimes committed during the military dictatorship were crimes against humanity, there was something very important that there were three legal effect: the invalid and unconstitutional due obedience laws and end point, the inapplicability of the shares, and the unconstitutionality of a pardon. This allowed them to fall all the barriers that existed for the investigation of crimes against humanity. And here opens another phase, because justice is not sufficient as a statement. We went in a scenario where it is important to effective justice, which is accomplished through investigation, prosecution, conviction or acquittal. "
As is known, the Equipo Nizkor was the foundation of a legal strategy that led to this point and This was due to a systematic analysis of international jurisprudence and the functioning of organizations in Argentina killing selectively persecuted tens of thousands of people. There is then what had happened there met all the conditions of the crime of " crimes against humanity. "
This analysis was particularly important firsthand knowledge society bahiense and its social and ideological structure and operation of naval officers.
This is what the model meant extermination launched by the Argentina Navy and this criminal organization in terms of criminal law is not adhering to the director of La Nueva Provincia , Vincent Massot, who, as shown of his true personality, has not had the moral courage to sign with name, despite being an opinion editorial responsibility is total. Continue in this way with the practice of "official silence" rather similar to the "omerta" mafia than any other criminal simil.
I can only, in remembrance to all the victims I met in La Plata, Mar del Plata, Bahía Blanca and elsewhere, paraphrasing the president of the Supreme Court when he said "And here opens another phase, because justice is not sufficient as a statement. We entered a scenario where it is important to effective justice, which is accomplished through investigation, prosecution, conviction or acquittal. "
be justice.
Diaz Gregorio Dionis
Nizkor Team President
National Judicial Power
Federal Appeals
Record no. 66 767 - Single Room - Sec 2
Delhi, April 26, 2011.
and Vista: case No. 66,767 captioned: "MIRAGLLA, Andrés Reynaldo and Other s / Appellee v. revocation releases in 05/07 inc. 275" , originating in the Federal Court No 1 headquarters to resolve appeals filed on fs. U 18/19, U 20/21, U 22/23, U 24/25, U 26/27, U 28/29, U 30/31, U 32/33, U 34/35, U 36/37, 38/39 sub, sub 40/41, 48/50 sub, sub 51/vta., 53/58 sub row. and sub 129/142, against the decision of fs. sub 2 / 17, and
WHEREAS
I. - That Mr. Federal Judge Alcindo Alvarez Dr. Beat, dated 06/01/2011 decided to revoke the releases granted to the accused Reynaldo Andres Miraglia, Hector Luis selaya, Ricardo Claudio GANDOLFO, Jorge Enrique Mansueto SWENDSEN, Carlos Andres Stricker, Felipe Ayala, Armando BARRERA, Artemio CABEZÓN Bernardo, Gabriel heatwave, Desiderio Andrés González, Arsenio Lavayén, José María Martínez, Fernando Antonio VIDELA, Carlos Alberto Arroyo, José Oscar FIDALGO, Miguel Antonio VILLEGAS, Juan Manuel Bayona, Osvaldo Bernardino PAEZ, Jorge Hugo DELMAS, Walter Bartholomew TEJADA, and Osvaldo Alejandro LAWLESS CRIPPA LAURELL, and revoke the exemption granted to Raul Oscar prison OTERO (pages sub 2 / 17).
For so decide, following a request by the Public Prosecutor (see fs. bis 99 sub / 100 row.), Took into account only the jurisprudence adopted by the Supreme Court of Justice's Office in late November 2010 that resulted in the revocation of releases granted in cases in which we investigate the crimes against humanity, an approach that would have been followed by this House in its decision of December on matter, which in its opinion, "new circumstances" within the meaning of art. CPP 333 of revocation imposed because decisions related to orders for release status and can not cause further discussion at any time.
II .- a) - That the resolution was the subject of several appeals.
For the Public Ministry of Defence, Dr. Staltari-Advocate Ad-hoc official filed appeals on behalf of Carlos Andres Stricker, Hector Luis Andrés Reynaldo selaya and Miraglia (cf. fs. Sub 18/19, 20/21 and sub sub 22/23, respectively), Dr. Schut - Official Defender ad.hoc- did for his pupil, Jorge Enrique Mansueto SWENDSEN (pages sub 24/25), and Dr. Castelli, Public Defender ad hoc- appealed for Juan Manuel Bayona, Osvaldo Bernardino PAEZ, Fernando Antonio VIDELA, Bernardo Artemio CABEZÓN, Desiderio Andrés González, Arsenio Lavayen, LAURELL CRIPPA and Felipe Osvaldo Ayala (cf. fs. U 26/27, U 28/29, U 30/31, U 32/33, 34/35 sub, sub 36/37, 38/39 sub, sub 40/41, respectively). These funds were granted on 14/01/2011 (sub f. 42).
Dr. Ibáñez, particularly defender Claudio Ricardo Jorge Hugo DELM GANDOLFO and appealed to fs. 48/50 by the appointed sub. Dr. Gutierrez appealed on behalf of their clients, as relevant here, the accused José Oscar FIDALGO, Alejandro LAWLESS, Raul Oscar Otero, Gabriel heatwave, José María Martínez and Armando BARRIER (pages sub 51/vta. .) These funds were granted on 09/02/2011 (sub f. 117/vta.).
particular defender Miguel Antonio VILLEGAS, Dr. Corigliano, appealed to fs. 53/58 sub row., while Dr. Barbitta, in charge of the technical defense of Carlos Alberto Arroyo, he did a fs. 129/142. Both petitions were granted on 02/24/2011 (sub vf 77).
b) - That set the hearing provided for in art. 454 of the CPP for the 12/4/2011, provided the appellants with the submission of written briefs (Ac. CFABB n º 72/08): Dr. Gutiérrez did it f. sub 266/vta., Dr. Staltari to fs. sub 267/273, Dr. Schut fs. sub 274/279, Dr. Corigliano to fs. sub 282/289, Dr. Ibanez fs. 290/294 sub row. and sub 295/299 row., and Dr. Castelli to fs. 300/305 sub row.
Also, fs. 306/315 sub was presented by Dr. Walter E. Tejada, by technical defense of Walter Bartholomew TEJADA, "... in order to substantiate the given timely appeal against the decision of a quo dated 6 January this ..." however, certification obrante actuary to f. sub 393 it was not such an appeal, so nothing is for that has not been opened for competition reviewing court to respect (art. 445, CPP), without prejudice to the possibility of being struck by what in ultimately be resolved (art. 441, CPP).
also arises from the clerk's certification f. sub 393 which Dr. Barbitta defender Carlos Alberto Arroyo particular, did not report on terms of art. 454 of the CPP (Law 26,374 and Ac. CFABB n º 72/08), either orally or in writing. Breach of this caseload involves the renunciation or abandonment of the objecting party's right to appeal and therefore it will have been withdrawn in respect of the appeal, which is equivalent to consider the appeal as wilderness (cf. Solimine-Pirozzo; and Resources other remedies to control the decisions of judges and prosecutors, ed. Ad-Hoc, Buenos Aires 2008, p. 300).
therefore have the corresponding withdrawn the appeal filed on fs. sub 129/142 (art. 454 seconds CPPN paragraph sg / law and 26,374 pts. 4th. and 5th. of the Agreed CFABB No. 72/08).
Notwithstanding the foregoing, it is clear that the defendant regained his freedom by resolution of the House of 03.04.2011 (cf. c. n º 66,675, "ARROYO, Carlos Alberto s / invalidity and raises new order of release").
c) - That, in short, the grounds of appeal (art. 438, CPP), are similar in all appellants: they believe that the decision that overturned the releases does not comply with the law and is void because arbitrary, unreasonable and uncaused, which made an interpretation of art. 316, 317, 319 and 333 of the CPP in a manner inconsistent with the art. 18 of the CN; that a quo had no authority or competence to repeal a measure granted by a higher court, which conducted an extensive application in malam partem of judgments of the Supreme Court 30 / 11/2010 in flagrant violation of the principle of innocence and in dubio pro reo; the Whole 13 still in force, while the Supreme Court rulings are not binding on a quo and only have particular scope, that the resolutions that granted the releases to their clients had already spent in formal res judicata and the instance is was precluded, that does not develop a specific assessment of the objective factors reconfigured circumstances that would lead to procedural risk, for no those referred to fulfill the conditions required by art. 333 of the CPP, which in all cases the accused came in compliance with the conditions imposed on the granted an advantage. Cited recent resolutions of this House records 66,675 No "Arroyo ..." And No. 66,764 "Busser ...".
III .- That going to decide it should be noted that it is wrong what is claimed by some of the appellants with respect to Dr. Alvarez Canale incurred in excess of jurisdiction or that it had no competence to decide, because is the trial judge was available and the situation of the defendants released, more Beyond its success or failure of the decision.
However, it should be noted that the detail should be made in considering 2nd.) of the decision appealed (pages sub 2 / 8) it is clear that in all cases, a decision that granted the release possessed to 06 January this formal res judicata, and went running for a period more than sufficient to demonstrate further that the beneficiaries were exempted from the procedural risk adjective presumed by law (which was secured with real security) for so this situation could only be modified in the cases accepted by the art. 333 of CPP.
IV .- That furthermore, be understood that it was only an issue of estoppel, the parties may renew the issue during the process (cf.. mutatis mutandis; Quevedo Mendoza; Thing judicata, estoppel, and Resolutions Incidental , LL 1997-D-592), except supervening facts because such those of other causes unrelated to these defendants.
To vary the procedural status of any of the defendants referred to the resolution of fs. sub 2 / 17, is essentially necessary for the applicant to demonstrate fiscal (Dr. Abel Córdoba), and in particular cada.caso, that circumstances have varied and that this change has increased procedural risk in such a way that is not even possible moderating a higher bond, but with direct imprisonment.
The mere fact of a new approach, this time held by the Supreme Court, taken as a basis in the decision appealed (even when matched with the original position of acting judge and in this House) can not apply without knowing the specifics of each case, not the individual conduct of the defendants in compliance with the conditions imposed on them by granting the benefit.
So, to say the judge of first instance, that the decisions of state and do not cause release are provisional modifiable or not enough or justify a modification without the need for particular factual condition, requiring timely to reconsider the decision made earlier.
Art. 333 of the CPP has to be revoked when the release of the accused '... does not meet its obligations or fails to appear at the call of a judge without excuse or make enough preparation for flight or when new circumstances require arrest' (textual, the Bold is not original).
Doctrine is peaceful compared to the revocation of the order granting the final release (art. 128, CPP) shall only "... when new circumstances arise justify the withdrawal (for example, the appearance of the accused for criminal records, previously unknown, or the new qualification had been made of the fact ...) or when you check some of those expressly provided for ... " that." . the absence of supervening reason to justify the revocation becomes invalid the car that has, to affect the value of formal jeopardy which granted ... " (cf. NAVARRO-Daray; CPP, 4 * - edition, T 2, Hammurabi, 2010, pg. 608).
being so, the mere variation of jurisprudential approach of the Chamber of Criminal Appeal by the Supreme Court of the Nation (about what sustained by Chambers II and III of Cassation) may be evaluated when analyzing the award or order of release or waiver of imprisonment presented thereafter (as Cam made this causes no 66,566 "ARENAS GOMEZ ..." , No. 66,563 "FARÍAS BARRIER ..." -both of 14/12/2010-, No. 66,565 " REINHOLD ... " of 23/12/2010, No. 66,554 " GATICA ... "28/12/2010 of 66,594 y. No " FLORIDIA ... " of 30.12.2010), but not reason enough, by itself, to change a decision that has formal authority of res judicata.
To put it another way, neither the prosecutor nor the complaint questioned the previous release, trail running uncontested, namely the Supreme Court of Cassation and Justice of the Nation. Entrate grades are treated as process, process-device parts, the final decision should be respected no rule challenged by the provisions of art. 128 of the CPP in the absence of any mutation of the factual and legal basis that was taken into account to resolve.
has been said in this sense that the release granted "... Shall not be altered even by difference of opinion between the judges to happen in the process" (CAFFERATA NORES; coercive measures in the new Code of Criminal Procedure of Argentina (Law 23.984), ed. Depalma, 1992, pg. 57).
V. - It therefore corresponds to accede to appeals filed on fs. U 18/19, U 20/21, U 22/23, U 24/25, U 26/27, U 28/29, U 30/31, U 32/33, U 34/35, U 36/37, 38/39 sub, sub 40/41, 48/50 sub, sub 51/vta. and 53/58 sub row., and revoke the resolution to fs. sub 2 / 17, returning things to their previous state by restoring the releases that were revoked for not having been perfect reason for such decision.
be noted that this resolution extends to all those included in the reversed order dated 06/01/2011 and became effective on the accused Reynaldo Andres Miraglia, Hector Luis selaya, Ricardo Claudio GANDOLFO, Jorge Enrique Mansueto SWENDSEN, Carlos Andres STRICKER, Felipe Ayala, Artemio CABEZÓN Bernardo, Desiderio Andrés González, Arsenio Lavayén, Fernando Antonio VTDELA, Miguel Antonio VILLEGAS, Juan Manuel Bayona, Osvaldo PÁEZ Bernardino, Delmar and Osvaldo Jorge Hugo CRIPPA LAURELL, as well as Walter Bartholomew TEJADA benefits, even in the absence of appeal, by the extensive effect brought by their consorts the cause (art. 441 of the CPP), for not being personal reasons.
This is clear, because the accused Carlos Alberto Arroyo, Alejandro LAWLESS, José Oscar FIDALGO, Gabriel heatwave, Oscar Raul Otero, José María Martínez and Armando BARRERA, deduced new orders for release or elimination of any prison, denied the request grade were successfully appealed to the House, which was solved using identical arguments to those shown here (cf. c. 66,675 No "ARROYO ..." 03/04/2011 of c. 66,684 No "LAWLESS .. . of 04/07/2011 and c. No 66,668 "LAWLESS ..." 12/4/2011 of c. 66,669 No "FIDALGO. .." of 04.07.2011, c. No 66,722 caniculas ... " 04/08/2011 of c. 66,723 No "BARRIER ..." 13/4/2011 of c. 66,754 No "OTERO ..." of 14/4/2011, and c. 66,721 No "MARTÍNEZ ..." of 04/13/2011).
the foregoing, RESOLVED, 1st.) - have as withdrawn the appeal brought by the particular defense of Carlos Alberto Arroyo to fs. sub 129/142 (art. 454, 2 or para., CPP, Ac. CFABB n º 72/08, pt. 4 and 5). 2nd.) - Make room for appeals filed in fs. U 18/19, U 20/21, U 22/23, U 24/25, U 26/27, U 28/29, U 30/31, U 32/33, U 34/35, U 36/37, 38/39 sub, sub 40/41, 48/50 sub, sub 51/vta. and 53/58 sub row., revoke the resolution on 06.01.2011 (a fs. sub 2 / 17), and return the releases to Andrés Reynaldo Miraglia, Hector Luis selaya, Ricardo Claudio GANDOLFO, Jorge Enrique Mansueto SWENDSEN, Carlos STRICKER Andres Felipe Ayala, Artemio CABEZÓN Bernardo, Desiderio Andrés González, Arsenio Lavayén, Fernando Antonio VIDELA, Miguel Antonio VILLEGAS, Juan Manuel Bayona, Osvaldo Bernardino PAEZ, Jorge Hugo DELMAS, Osvaldo LAURELL TEJADA CRIPPA and Walter Bartholomew, which shall be executed by the court a quo in the same terms that were granted earlier.
Register, report and return.
Agustín Enrique Fernández
Ricardo Emilio Plans
Angel Alberto Argañraz
National Judicial Power
Federal Appeals
Record no. 66 773 - Single Room - Sec 2
Delhi, April 26, 2011.
and Vista: case No. 66,773 captioned: "BOTTO, William F., BUSSE, Carlos Alberto C. and Other s / c. They appeal revocation releases in 04/07 inc. 96" , originating in the Federal Court No 1 of the seat, for resolving the appeals filed on fs. sub 19/20, 21/22 sub, sub. 23/24, U 25/26, U 27/28, U 29/30, U 31/32, U 33/34, U 35/36, 37/40 sub row., 41/44 sub row., 45 sub / 48 row., 49/52 sub row., 56/58 sub, sub 68/vta. and sub-opt-266/268, against the decision of fs. sub 4 / 18 row., and f. sub 62, against the decision fs. 54/55 sub.
WHEREAS
I. - That Mr. Federal Judge ad hoc, Dr. Eduardo Tentoni , dated 07/01/2011 decided to revoke the releases granted to the accused Guillermo Félix BOTTO, Carlos Alberto César BUSS Hermogenes Thomas REED, Oscar Alfredo Castro, Carlos Ovidio Cornell, Henry De Leon, Victor Oscar Fogelman, Eduardo René FAILURE, Hugo José André MAC Gaula, Marcelo Leandro MALOBERTI, Angel Lionel MARTIN, Francisco Manuel Martínez Loyd, Domingo Ramón Negrete, Edmund Oscar Nuñez, Guillermo Martín OBIGLIO, Carlos Alberto Padul, Hernán Lorenzo PAYBA, Gerardo Alberto Pazos, Luis Alberto Paulo Pons, José Luis Ripa, and Hector Luis Selaya Garlas Andrew Stricker, and exemptions from arrest granted to Alexander Lawless ya Raúl Oscar Otero (fs. sub 4 / 18 VTA.).
Asimismo, in cases where prior to granting them excarcelaciones, preventive detention was cumpliendo Bajo la mode home detention, ordered it restored.
For so decide, following a request by the Public Prosecutor (pages sub 2 / 3 row.), Took into account only the jurisprudence adopted by the Supreme Court's Office in late November 2010 resulted in the revocation of releases granted in cases in which we investigate the crimes against humanity, an approach that would have been followed by this House in its decision of December on the subject, which in its opinion, "new circumstances "within the meaning of art. CPP 333 of imposing the revocation, as the related resolutions with orders of release status and can not cause further discussion at any time.
A fs. 54/55 sub, the a quo warning that Carlos Alberto César BUSSE gave him the benefit of home detention despite the detention had not complied with under that mode, decided to rescind it and send it to the prison complex II Marcos Paz.
II .- a) - That the resolution was the subject of several appeals.
For the Public Ministry of Defence, Dr. Staltari Official Defender ad-hoc- filed appeals on behalf of Carlos Andres Stricker, Francisco and Héctor Manuel MARTÍNEZ Loydi Luis selaya (cf. fs. Sub 19/20, 21/22 and sub sub 23/24, respectively), Dr. Schut-Official Defender ad hoc- did for Marcelo Leandro Maloberti, William Martin OBIGLIO, Domingo Ramón and Carlos Alberto PADULA NEGRETE (cf. fs. U 25/26, U 27/28, 29/30 and sub sub 31/32, respectively), and Dr. Castelli, Public Defender ad hoc- appealed Please Fogelman and Victor Oscar Hernán Lorenzo PAYBA (cf. fs. sub sub 33/34 and 35/36, respectively).
Dr. Olmedo Barrios appealed on behalf of their clients RIPA José Luis Gerardo Alberto Pazos, Hugo Andrés José MAC GAUL and Oscar Alfredo Castro (cf. fs. Sub row 37/40., U 41/44 row., 45/48 sub row. and 49/52 sub row., respectively).
These funds were granted on 17/01/2011 (sub f. 53/vta.).
A fs. 56/58 sub, Dr. Ibanez appealed for René Eduardo Fracassi, Angel Lionel Martin, Luis Alberto Pablo Pons and Enrique de Leon, which was granted by the a quo dated 01/25/2011 ( sub f. 59). Dr. Gutiérrez
appealed afavor Carlos Alberto César BUSSE against him, determined to fs. 54/55 sub (sub f. 62), then fs. 68/vta sub. appealed the revocation of the appointment Buss releases, the rest of his clients: Thomas Hermogenes REED, William Felix BOTTO, and Raul Oscar Alejandro OTERO LAWLESS. These funds were granted on 02/01/2011 (vf sub 63 and sub 64) and 3.1.2011 (sub f. 69).
entered and the record of this House, to fs. 266/268 sub presented Dr. Florio, defender Carlos Ovidio Cornelli particular, to adhere "... the appeal process ..." in terms of art. 453 of the CPP; presentation that was put to consideration by this Court (sub f. 275).
b) - That set the hearing provided for in art. 454 of the CPP for the 12/4/2011, provided the appellants with the submission of written briefs (Ac. CFABB n º 72/08): Dr. Gutiérrez did it f. sub 308/vta., Dr. Schut fs. 311/316 sub row., Dr. Staltari to fs. sub 317/323, Dr. Olmedo Barrios fs. 366/371 sub row., 372/377 sub row., 378/383 sub row. and sub 402/407 row., Dr. Ibanez fs. 384/388 sub row., Dr. Castelli to fs. 389/394 sub and Dr. Florio to fs. 395/401 sub row.
actuary's certification obrante to f. 414 sub is that Dr. Gutierrez, did not report in terms of art. 454 of the CPP (Law 26,374 and Ac. CFABB n º 72/08), either orally or in writing concerning the appeal lodged on f. sub 62, and as the appeal filed on f. sub 68/vta., failed do for their clients and Alejandro Otero Raúl Oscar LAWLESS (comes by default). Breach of this caseload involves the renunciation or abandonment of the objecting party the right to appeal and therefore it will have been withdrawn in respect of the appeal, which is equivalent to consider the appeal as wilderness (cf. Solimine-Pirozzo; and Resources other remedies to control the decisions of judges and prosecutors, ed. Ad-Hoc, Buenos Aires 2008, p. 300).
therefore have the corresponding withdrawn the appeal filed on f. sub 62 and partially withdrawn from f. sub 68/vta., only in relation to the accused Raúl Oscar Alejandro Otero and LAWLESS (art. 454 second paragraph of CPP sg / law and 26,374 pts. 4th. and 5th. of the Agreed CFABB No. 72/08).
c) - That with regard to the accession attempted by Dr. Florio to fs. 266/268 sub, it was not the appropriate procedural time.
Indeed, from the CPP reform by law 26,374, has established a differentiated regime between the parties and the prosecutor when it comes to when the term starts to adhere, to the parties dies a quo begins upon notification by the judge in the instance of the granting of the degree of resource that you want to join, so that the accession should take place in the source instance, while activity the prosecutor must be verified within three days of income reported the case to the House, because the phrase "At the end ..." that starts the 2nd. paragraph of art. 453 of the CPP can not be understood otherwise, if not force the camera to report fiscal first instance (cf. NAVARRO-Daray; CPP, 4th-edition, T 3, Hammurabi, 2010, pg. 348/350; and PAMPLIEGA, Ignacio M.; Recent recursive system in criminal law amendments introduced by 26,374, Law 2008-C-1223).
Since the last notification of allocation of resources to the party seeking to join, was dated 15/3/2011 (Cf. on Dr. Florio: fs. 113/vta sub. And sub 125/vta., In conjunction with fs. Sub 53, sub 59 and sub 63; respect of the accused Cornelli: fs. Sub 240/243) the deadline for joining in any instance for appeals perished dated 21/3/2011 at 10:00 (arts. 439, 453 and 164 of the CPP), so that the presentation of fs. 266/268 sub is unacceptable.
d) - That, in short, the grounds for appeal (art.438, CPP), are similar in all appellants: they believe that the decision that overturned the releases does not comply with the law and is void as being arbitrary unfounded and uncaused, which was interpreted of the arts. 316, 317, 319 and 333 of the CPP in a manner inconsistent with the art. 18 of the CN; that a quo had no authority or power to revoke a measure granted by a higher court, which conducted an extensive application in malam partem of judgments of the Supreme Court in violation of 30/11/2010 flagrant presumption of innocence and in dubio pro reo- that infringed the rights of defense and due process under the Constitution and international covenants, as the EPC 13 is still in force, while the failure of the Supreme Court not are required for a quo and only have particular scope, that the resolutions that granted the excarcelaciones a sus defendidos ya habían pasado en autoridad de cosa juzgada formal y la instancia se hallaba precluida; , que no se desarrolla una apreciación concreta de los elementos objetivos configúrateos de nuevas circunstancias de las que surja riesgo procesal, pues ninguna de aquellas a las que hace referencia cumple las condiciones requeridas por el art. 333 del CPPN; que en todos los casos los imputados venían cumpliendo con las condiciones impuestas al otorgárseles el beneficio. Citan recientes resoluciones de esta Cámara en los expedientes nº 66.675 "Arroyo..." y nº 66.764 "Busser...".
III.- Que entrando a decidir, cabe señalar que no es correcto lo sostenido por algunos de los recurrentes, respect for the Judge ad hoc , Dr. Eduardo Tentoni incurred in excess of jurisdiction or that it had no jurisdiction to decide, because it is the trial judge was available and the situation of the defendants released, beyond its right or wrong in the decision.
However, it should be noted that the detail should be made in considering 2nd.) of the decision appealed (pages sub 4 / 9) it is clear that in all cases, a decision that granted the release possessed to 07 January this formal res judicata, and went running for a period more than enough -The most since 2009 - to demonstrate further that the beneficiaries were exempted from the procedural risk adjective presumed by law (which was secured with real security), so this situation could only be modified in the cases accepted by the art. 333 of the CPP.
IV .- That furthermore, be understood that it was only an issue of estoppel, the parties may renew the issue during the process (cf. mutatis mutandis ; MENDOZA QUEVEDO; Jeopardy , Estoppel and Resolutions Incidental; LL 1997-D-592), except supervening facts because such those of other causes unrelated to these defendants.
To vary the procedural status of any of the defendants referred to the resolution of fs. sub 4 / 18 row. it is essentially necessary for the applicant to demonstrate fiscal (Dr. Abel Córdoba), and in each case, that circumstances have changed and that this change has increased procedural risk in such a way that is not even be moderated with greater caution, but with direct imprisonment.
The mere fact of a new approach, this time held by the Supreme Court, taken as a basis in the decision appealed (even when matched with the original position of acting judge and in this House) can not apply without knowing the specific each case, neither the individual conduct of the defendants in compliance with the conditions imposed on them by granting the release from custody.
So, to say the judge of first instance, that decisions to release state and are not cause temporary or changeable-not enough or justify a modification without the need for particular factual condition requiring timely to reconsider the decision made earlier.
Art. 333 of the CPP has to be revoked when the release of the accused '... does not meet its obligations or fails to appear at the call of a judge without excuse or make enough preparation for flight or when new circumstances require arrest' (text, bold is not original).
Doctrine is peaceful compared to the revocation of the order granting the final release (art. 128, CPP) shall only "... when new circumstances arise that justify the revocation (for example, the appearance of a criminal record the accused, previously unknown, or the new qualification had been made of the fact ...) or when I check some of those expressly provided ... " and that "... the absence of supervening reason to justify the revocation becomes invalid the car that has, to affect the value of formal jeopardy which granted ..." (cf. NAVARRO-Daray, op. Cit., T º. 2, p. 608).
being so, the variation of the jurisprudential approach of the Chamber of Criminal Appeal by the Supreme Court's Office (for what is maintained by the Chambers II and III of Cassation) may be assessed at the time to analyze or not to grant requests for release or exemption of imprisonment presented outside the field of arts. 128 and 333 of the CPP (as did the House in cases No. 66,566 "ARENAS GOMEZ ..." , No. 66,563 "FARÍAS BARRIER ..." -both of 14/12/2010-, No. 66,565 "REINHOLD ..." of 23/12/2010, No. 66,554 "GATICA ..." of 28/12/2010 and No. 66,591 "FLORIDIA ..." of 30/12/2010), but not reason enough, by itself, to change a decision that has formal authority of res judicata.
To put it another way, neither the prosecutor nor the complaint questioned the previous release, trail running uncontested, namely: Supreme Court of Cassation and Justice of the Nation. Entrate grades are treated as process, process parts, devices, must be respected the final decision rule is not challenged by the provisions of art. 128 of the CPP in the absence of any mutation in the factual and legal basis that was taken into account to resolve.
has been said about the release granted "... not be altered even by difference of opinion between the judges to happen in the process" (CAFFERATA NORES; measures of coercion in Criminal Procedure Code of Argentina (Law 23.984), ed. Depalma, 1992, pg. 57).
V. - It therefore corresponds to accede to appeals filed on fs. U 19/20, U 21/22, U 23/24, U 25/26, U 27/28, U 29/30, U 31/32, U 33/34, U 35/36, 37/40 sub row., 41/44 sub row., 45/48 sub row., 49/52 sub row!, 56/58 sub, sub 68/vta. and revoke the resolution to fs. sub 4 / 18 row., returning things to their previous state by restoring the releases that were revoked naber been no reason for not suitable for such a decision. Even
, it should be noted that this resolution extends to all those included in the order dated 07/01/2011 reversed, becoming effective on the accused Guillermo Félix BOTTO, Thomas Hermogenes CARRIZO, Oscar Alfredo Castro, Enrique de Leon, Victor Oscar Fogelman, Rene Eduardo Fracassi, Hugo Andrés José MAC GAUL, Marcelo Leandro Maloberti, Angel Lionel Martin, Francisco Manuel MARTÍNEZ Loydi, Domingo Ramón NEGRETE, OBIGLIO Guillermo Martín, Carlos Alberto PADULA, Hernán Lorenzo PAYBA, Gerardo Alberto Pazos, Luis Alberto Pablo Pons, José Luis RIPA, Hector Luis selaya and Carlos Andrés STRICKER, as well as benefits to Carlos Ovidio Cornelli, Oscar Nunez and Raul Edmundo Oscar OTERO, even in the absence of valid resource for the extensive effect brought by their spouses consent (art. 441 of the CPP).
This is clear, because the accused Carlos Alberto César Alejandro Buss and LAWLESS, to date have freedom recuprado through new requests for release or elimination of any prison, denied the request of grade were successfully appealed to the House, which was solved using arguments identical to those shown here (cf. c. 66,764 No "BUSSE ... "23/3/2011 of c. 66,684 No" LAWLESS ... "on 04/07/2011 and 66,668 c. No" LAWLESS ... " of 12/04/2011).
the foregoing, RESOLVED, 1st.) - have as withdrawn the appeal filed by a defense of Carlos Alberto César Buss f. sub 62 (art. 454, 2 º para., CPP, Ac. CFABB n º 72/08, pt. 4 and 5). 2nd.) - Having abandoned by the appeal filed on f. sub 68, charged only for the Oscar Raúl Alejandro Otero and LAWLESS (art. 454, 2nd para., CPP, Ac. CFABB n º 72/08, pt. 4 and 5). 3rd.) - declare inadmissible the appeal sought to opt for defender Carlos Ovidio Cornelli particular fs. sub 266/268 (sections 439 and 453, CPP). 4th) - Make room to appeals filed on fs. U 19/20, U 21/22, U 23/24, U 25/26, U 27/28, U 29/30, U 31/32, U 33/34, U 35/36, 37/40 sub row ., 41/44 sub row., 45/48 sub row., 49/52 sub row., 56/58 sub, sub 68/vta., and revoke I solved the 01/07/2011 (a fs. sub 4 / 18 rnd.) returning things to their previous state by restoring the releases to William Felix BOTTO, Thomas Hermogenes CARRIZO, Oscar Alfredo Castro, Carlos Ovidio Cornelli, Enrique DE LEON, Oscar Victor Fogelman, René Eduardo Fracassi, Hugo Andrés José MAC GAUL, Marcelo Leandro Maloberti, Angel Lionel Martin, Francisco Manuel MARTÍNEZ Loydi, Domingo Ramón NEGRETE, Edmund Oscar NUNEZ, Guillermo Martín OBIGLIO, Carlos Alberto PADULA, Hernán Lorenzo PAYBA, Gerardo Alberto Pazos, Luis Alberto Pablo Pons, José Luis RIPA, Hector Luis selaya, Carlos Andres Stricker, and exemption from prison Oscar Raúl OTERO, which is taken by the court a quo on the same terms that were granted earlier.
Register, report and return.
Agustín Enrique Fernández
Ricardo Emilio Plans
Angel Alberto Argañraz
Written requesting it to court cases
against Carlos Andres Stricker, Felipe Ayala and
Oscar Alfredo Castro charged with crimes against humanity
and directing a death squad within the jurisdiction of Delhi
http://www.derechos.org/nizkor/arg/doc/ bbca26.html processing
Captain of Ship Oscar Alfredo Castro for crimes against humanity committed
as head of a death squad
jurisdiction over the area of \u200b\u200bBahía Blanca
http:// www.derechos.org/nizkor/arg/doc/bbca22.html
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Not for Sale - Not For Sale
From Corporate Social Responsibility Observatory
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