Uruguay has won international plaudits of late and gained the image as a bastion of progress in the Americas. Last year, abortion was legalised, making it only the second country to do so; proposed legislation to legalise marijuana places it at the vanguard of the so-called war on drugs; and then there is President José ‘Pepe’ Mujica, whose folksy, down-to-earth form of leadership and position as the “world’s poorest president” places him as a refreshing contrast to the vast majority of the globe’s leaders. As such, Uruguay is becoming again “the Switzerland of Latin America” as it was once known.
This positive image took a significant step backwards on February 13, 2013, however, when, without explanation, the country’s Supreme Court of Justice decided to transfer Judge Mariana Mota from her criminal jurisdiction (Court No.7 in Montevideo) to a new position as judge of Civil Court No.1 in Montevideo.
For the past several years, Mota has been at the forefront of investigations into the vast human rights violations, including executions, torture, disappearances and prolonged imprisonment, committed by the military dictatorship which ruled from 1973 to 1985.
Until a few days ago, she had been in charge of more than 50 cases of the dictatorship’s crimes. In February 2010, it was Mota who sentenced – in a verdict historic in Latin America – the former dictator Juan María Bordaberry to 30 years in prison for his part in leading the 1973 coup d’état.
Triumph of impunity
Throughout Uruguay, Mota is well respected, and considered to be well trained, competent, qualified, professional and responsible. In the aftermath of her transfer, several political leaders expressed their indignation and surprise. Uruguay’s Foreign Minister Luis Almagro for instance labelled Mota an “extraordinary judge” and declared that Uruguay is likely to lose its international standing as a result of this event.
MP Felipe Michelini expressed his surprise and indignation for the lack of explanation behind the court’s decision as well as his preoccupation for the stance of the Supreme Court in terms of fighting impunity for the dictatorship’s crimes. Lastly, MP Luis Puig asserted that the judge’s transfer amounted to “a real triumph of impunity”.
By removing Mota, the Uruguayan Judiciary has shown itself determined to derail efforts to deliver justice for the military’s crimes, despite the revocation of a 25-year-old amnesty law in October 2011.
In the 1970s and 1980s, Uruguay was known as “the torture chamber of Latin America”, reflecting the repressive techniques used by the military dictatorship. Between 1973 and 1977, the dictatorship boasted the highest percentage of political prisoners per capita in the world, who were subjected to prolonged imprisonment, physical and psychological torture. Over 200 civilians were forcibly disappeared during the 12-year rule while thousands were brutally tortured and illegally detained.
Following the return to democracy in 1985, the administration of Julio Maria Sanguinetti established the Ley de Caducidad de la Prevención Punitiva del Estado (Law on the Expiry of the Punitive Claims of the State, or Expiry Law), an amnesty law which granted complete impunity to military and security personnel for the crimes they committed during the dictatorship.
The new democratic government took a position of “no truth, no justice” to calls for accountability and information about the whereabouts of the disappeared. As such, silence and oblivion because institutionalised, and the Expiry Law became the cornerstone of a culture of impunity.
There have been sustained challenges to institutionalised impunity since the adoption of the Expiry Law, always spearheaded by civil society organisations. Two referenda triggered by human rights groups failed to overturn the law in 1989 and 2009.
Some high-profile prosecutions were achieved after 2005 with efforts by lawyers to circumvent the parameters of the law; nevertheless, the preservation of the amnesty meant that all attempts to investigate abuses had to be approved by the Executive.
A decision by the Inter-America Court of Human Rights (IACHR) in the case of Gelman vs Uruguay in February 2011, finally led to the revocation of the law by Parliament in October 2011.
Overturning the Expiry Law means that Uruguay’s Judiciary is free to investigate and hold to account those responsible for abuses carried out a generation ago. However, the decision to transfer Mota suggests that the culture of impunity that existed for over 20 years still exerts its influence and is much harder to eradicate than initially expected.
Fight for justice
As many, including lawyer Pablo Chargonia and activist Raul Olivera, have previously stated, impunity in Uruguay goes well beyond specific laws such as the Expiry Law and has transformed itself into “factual impunity”.
Mota’s involvement in high-profile cases had previously generated attempts to oust her from her position. In 2011, she was forced to explain to the Supreme Court allegations in a news article that she had attended a March of Silence, an annual demonstration organised by the human rights community to demand information about those disappeared by the dictatorship.
Last year, she incited the wrath of many individuals, including former President Jorge Batlle and current President Mujica following an interview with an Argentine newspaper in which she criticised the Uruguayan government’s efforts to shed light on the crimes of the past. Once again, Mota was forced to explain her actions to the Supreme Court.
Given previous efforts to undermine her position, it appears unlikely to be a mere coincidence that the Supreme Court should decide to remove her from her post. Although the court is permitted to do so according to Uruguayan laws, its failure to provide an adequate explanation points to something more calculated.
As Mota explained in an interview with La Diaria newspaper: “It is strange for a judge to be transferred without having made a request, nor having demonstrated malpractice.”
What is worrying is that the court should decide to remove a judge who has proved herself as competent, efficient and well trained in the cases in which she is involved. Even worse is that such a development should arise only months after which the Expiry Law was finally overturned.
With Mota’s removal, it is highly likely that the 55 cases of abuse by the dictatorship she was investigating will cease to develop and be subject to lengthy delays. With the advanced age of many of the defendants, such delays can dramatically reduce the likelihood of them standing trial and produce further impunity.
If Uruguay is to retain its image as the “Switzerland of Latin America”, it is fundamental that the independence of judges such as Mota, as well as the rule of law, is respected. Judges like Mota should be supported and accompanied in the fight for justice, not ousted and removed from their jobs. Without this, the dark years of the dictatorship will continue to cast a long shadow.
Pierre-Louis LeGoff is a research assistant at the Latin American centre, University of Oxford, and a member of the committee for Crimes Against Humanity at the Permanent Assembly for Human Rights (APDH), Buenos Aires, Argentina.
Follow him on Twitter: @P_LeGoff
Dr Francesca Lessa is a postdoctoral researcher at the Latin American Centre and St Anne’s College, University of Oxford, specialising on issues of justice and human rights in Uruguay.