Arancibia Clavel (summary)
The defendant Arancibia Clavel, the number six Federal Court sentenced him to life imprisonment and accessories be considered part of the homicide, aggravated by the use of explosives and the aid of two or more people, marriage Prats Cuthbert and author of the conduct consistent with belonging to an unlawful association composed of ten or more people with type organization and composed of military officers or noncommissioned officers of the armed forces, who possessed firearms and explosives and received support, help or guidance public officials; understood them to participate as members of the de facto government of Augusto Pinochet in Chile, but the cooperation of individuals or public officials Argentino, as informants or participate mere logistics.
The murder was committed in Argentina by Chileans against Chileans. Also been established that the accused had been part of the DINA (National Intelligence Directorate of Chile, foreign faction), under the aforementioned government during the years from 1974 to 1978. This body was a conspiracy made up of more than ten members whose purpose was the persecution throughout the world opositores políticos exiliados y miembros del gobierno Chileno derrocado, también exiliados; cuyo fin fue la persecución, la privación ilegitima de la libertad, las lesiones por medio de torturas, la sustracción de documentos para su falsificación y reutilización, como amedrentar a los exiliados que tomaren conocimiento de dichas actividades, con el fin de que estas personas exiliadas no se organizaren políticamente.
Por estos motivos el tribunal oral fallo contra el acusado Clavel, como autor del delito de asociación ilícita agravada, en concurso real con el de participación necesaria en el homicidio. A raíz de esta fallo la parte demandada apelo a la Cámara de Casación Penal, esta caso parcialmente and acquitted the accused in the crime of conspiracy on the grounds the statute of limitations and considering that just as unproven association.
The complainant, on behalf of the government of Chile, filed a federal special appeal considers the failure of the Chamber of Criminal Appeal as arbitrary.
The Attorney General's Office ruled as frivolous grievances presented by the complainant, to be dealt with by the Supreme Court's Office, as outlined in six considerations that the decision of the Court of Criminal Appeal has foundations sufficient to dismiss the charge of arbitrary decision. And so on such date, the Attorney General's Office rejected the complaint.
Following the denial of federal special appeal, plaintiffs filed the complaint.
Consequently, the Supreme Court's Office decided on the substantive matter of the case. Corresponding failed to apply the criterion of international treaties and the ius gentium. I declare from the special appeal, overturned the original ruling, referred the case to the court of origin for that failure as the opinion of this (which was the same as in the original court), on the date of August 24, 2004 .
The consequences of failure off the sources of internal and external law weigh on the supremacy they have some sources over others. The Supreme Court in ruling that judges Arancibia Clavel was referring to the applicability of crimes against humanity says
"That in itself is not strictly the rule retroactive effect of the international treaty, since his character customary rule of international law before the ratification of the 1968 convention was jus cogens, whose primary function is to protect the States of agreements against some general values \u200b\u200band interests of the international community of States as a whole to ensure respect of those general rules of law, breach of which may affect the very essence of legal system "(Bugs: 318:2148, vote of the judges of Nazareth and Moline O'Connor).
From this perspective, and it can be said that international custom and indefeasible considered crimes against humanity before the convention, This custom was also common subject of international law prior to the incorporation of the convention into domestic law "
Thus, it is understandable that the" ius cogens or customary international law would be even above the Constitution itself, since the this be accepted by the national government, the forces in automatic form, leaving the law applied to move to implement the "ius cogens" international automatically, that is, operationally, even before a convention is incorporated into domestic law, since the usual source should be the same.
To understand the reasoning of the majority vote of the Court, we can mention the analysis of the author Maria A. Gelli "art. 75, 22, ruled that the Human Rights Treaties were stated there have constitutional hierarchy) under the conditions of its validity, b) does not repeal any section of the first part of the Constitution, and c) should be understood as complementing the rights and guarantees recognized therein. " Also the author drawing a parallel with the ruling "Chocobo" (321: 885, 1998) concludes that "in several previous Supreme Court held that the Constitutional Convention of 1994 made the analysis of compatibility between these two sources of law, ensuring that there was no derogation from the first part of the Constitution. Consequently, no winch to judges rather than bring these two sources, Constitution and treaties, in the specific case. "
This analysis can be complemented by a vote of Judge Boggiano, in paragraph 10 second paragraph: "In fact, when Congress gives constitutional status to the treaty makes a constitutional trial by authority of the Constitution itself under which the raise the treaty to the same hierarchy that the Constitution establishes that: this is not only based on the principles of public law but the Constitution does not override any rule of the Constitution but complements it. "... "If such harmony and agreement must be found, obviously, more so than the treaty also conforms to Article 27 of the Constitution."
As a corollary to the doctrine cite Miguel M. Padilla, in the opinion of the author, maintains its position on two issues critical to the Court, namely: Refers to the Convention on Crimes against Humanity, considering the opinion of the majority vote and in reference to the opinion of one judge that formed such a vote.
"With regard to this instrument, I think interesting to cite this authoritative opinion:" However, it is said that because of small numbers of states that have expressed their consent to be bound by it and rejected the practice of extradition request such crimes founded precisely on the statute of limitations would be difficult to argue that this rule has a source of both conventional and customary and therefore could be a general principle of international law well recognized by the international community "HG Posse "The general principles of law and the most serious crimes of international concern" in a publication issued by the National Academy of Law and Social Sciences entitled "The International Criminal Court jurisdiction." Buenos Aires 2004.
The second point raised by the author is referring to the Rome Statute, also cited in the majority vote. The statute was approved July 17, 1998, entered into force on July 2002, the Nation Argentina deposited the instrument of ratification on February 8, 2001.
Article 11 provides: The Court has jurisdiction only over crimes committed after the entry into force of this Statute.
And the author asks "Can there be any doubt as to the inapplicability the rules of the Rome Statute only for facts and events subsequent to its entry into force? ". (Legal considerations about the doctrine of the supreme court in the case Arancibia, National Academy of Moral and Political Sciences bs. Aires 2005, pages 322 and 363 respectively)
As shown in summary form, the failure Court makes application of human rights treaties with constitutional status, operationally, which did not preclude receiving criticism due to the complexity of harmonizing
Constitutional guarantees and responsibilities of Argentina to the citizens and States .
The defendant Arancibia Clavel, the number six Federal Court sentenced him to life imprisonment and accessories be considered part of the homicide, aggravated by the use of explosives and the aid of two or more people, marriage Prats Cuthbert and author of the conduct consistent with belonging to an unlawful association composed of ten or more people with type organization and composed of military officers or noncommissioned officers of the armed forces, who possessed firearms and explosives and received support, help or guidance public officials; understood them to participate as members of the de facto government of Augusto Pinochet in Chile, but the cooperation of individuals or public officials Argentino, as informants or participate mere logistics.
The murder was committed in Argentina by Chileans against Chileans. Also been established that the accused had been part of the DINA (National Intelligence Directorate of Chile, foreign faction), under the aforementioned government during the years from 1974 to 1978. This body was a conspiracy made up of more than ten members whose purpose was the persecution throughout the world opositores políticos exiliados y miembros del gobierno Chileno derrocado, también exiliados; cuyo fin fue la persecución, la privación ilegitima de la libertad, las lesiones por medio de torturas, la sustracción de documentos para su falsificación y reutilización, como amedrentar a los exiliados que tomaren conocimiento de dichas actividades, con el fin de que estas personas exiliadas no se organizaren políticamente.
Por estos motivos el tribunal oral fallo contra el acusado Clavel, como autor del delito de asociación ilícita agravada, en concurso real con el de participación necesaria en el homicidio. A raíz de esta fallo la parte demandada apelo a la Cámara de Casación Penal, esta caso parcialmente and acquitted the accused in the crime of conspiracy on the grounds the statute of limitations and considering that just as unproven association.
The complainant, on behalf of the government of Chile, filed a federal special appeal considers the failure of the Chamber of Criminal Appeal as arbitrary.
The Attorney General's Office ruled as frivolous grievances presented by the complainant, to be dealt with by the Supreme Court's Office, as outlined in six considerations that the decision of the Court of Criminal Appeal has foundations sufficient to dismiss the charge of arbitrary decision. And so on such date, the Attorney General's Office rejected the complaint.
Following the denial of federal special appeal, plaintiffs filed the complaint.
Consequently, the Supreme Court's Office decided on the substantive matter of the case. Corresponding failed to apply the criterion of international treaties and the ius gentium. I declare from the special appeal, overturned the original ruling, referred the case to the court of origin for that failure as the opinion of this (which was the same as in the original court), on the date of August 24, 2004 .
The consequences of failure off the sources of internal and external law weigh on the supremacy they have some sources over others. The Supreme Court in ruling that judges Arancibia Clavel was referring to the applicability of crimes against humanity says
"That in itself is not strictly the rule retroactive effect of the international treaty, since his character customary rule of international law before the ratification of the 1968 convention was jus cogens, whose primary function is to protect the States of agreements against some general values \u200b\u200band interests of the international community of States as a whole to ensure respect of those general rules of law, breach of which may affect the very essence of legal system "(Bugs: 318:2148, vote of the judges of Nazareth and Moline O'Connor).
From this perspective, and it can be said that international custom and indefeasible considered crimes against humanity before the convention, This custom was also common subject of international law prior to the incorporation of the convention into domestic law "
Thus, it is understandable that the" ius cogens or customary international law would be even above the Constitution itself, since the this be accepted by the national government, the forces in automatic form, leaving the law applied to move to implement the "ius cogens" international automatically, that is, operationally, even before a convention is incorporated into domestic law, since the usual source should be the same.
To understand the reasoning of the majority vote of the Court, we can mention the analysis of the author Maria A. Gelli "art. 75, 22, ruled that the Human Rights Treaties were stated there have constitutional hierarchy) under the conditions of its validity, b) does not repeal any section of the first part of the Constitution, and c) should be understood as complementing the rights and guarantees recognized therein. " Also the author drawing a parallel with the ruling "Chocobo" (321: 885, 1998) concludes that "in several previous Supreme Court held that the Constitutional Convention of 1994 made the analysis of compatibility between these two sources of law, ensuring that there was no derogation from the first part of the Constitution. Consequently, no winch to judges rather than bring these two sources, Constitution and treaties, in the specific case. "
This analysis can be complemented by a vote of Judge Boggiano, in paragraph 10 second paragraph: "In fact, when Congress gives constitutional status to the treaty makes a constitutional trial by authority of the Constitution itself under which the raise the treaty to the same hierarchy that the Constitution establishes that: this is not only based on the principles of public law but the Constitution does not override any rule of the Constitution but complements it. "... "If such harmony and agreement must be found, obviously, more so than the treaty also conforms to Article 27 of the Constitution."
As a corollary to the doctrine cite Miguel M. Padilla, in the opinion of the author, maintains its position on two issues critical to the Court, namely: Refers to the Convention on Crimes against Humanity, considering the opinion of the majority vote and in reference to the opinion of one judge that formed such a vote.
"With regard to this instrument, I think interesting to cite this authoritative opinion:" However, it is said that because of small numbers of states that have expressed their consent to be bound by it and rejected the practice of extradition request such crimes founded precisely on the statute of limitations would be difficult to argue that this rule has a source of both conventional and customary and therefore could be a general principle of international law well recognized by the international community "HG Posse "The general principles of law and the most serious crimes of international concern" in a publication issued by the National Academy of Law and Social Sciences entitled "The International Criminal Court jurisdiction." Buenos Aires 2004.
The second point raised by the author is referring to the Rome Statute, also cited in the majority vote. The statute was approved July 17, 1998, entered into force on July 2002, the Nation Argentina deposited the instrument of ratification on February 8, 2001.
Article 11 provides: The Court has jurisdiction only over crimes committed after the entry into force of this Statute.
And the author asks "Can there be any doubt as to the inapplicability the rules of the Rome Statute only for facts and events subsequent to its entry into force? ". (Legal considerations about the doctrine of the supreme court in the case Arancibia, National Academy of Moral and Political Sciences bs. Aires 2005, pages 322 and 363 respectively)
As shown in summary form, the failure Court makes application of human rights treaties with constitutional status, operationally, which did not preclude receiving criticism due to the complexity of harmonizing
Constitutional guarantees and responsibilities of Argentina to the citizens and States .
