Fernández Suárez does not respond. But on January 30 he sends a copy of the note that he has just presented to the Minister of the Army, General Ossorio Arana, with the purpose, he says, of having “the military justice system hear the case that is being tried, which falls exclusively under its jurisdiction.” The note to Ossorio Arana reviews the background for the case (without mentioning decree number 10.364) and requests:
a) that the military justice system hear the case that is being tried; b) that the relevant issue of the judge’s withdrawal for lack of jurisdictional competence (Art. 150, paragraph 1 of the Military Justice Code) therefore be brought forward.
That same day, the military judge, Colonel Abraham González, took up the case as follows:
I have the pleasure of writing to Your Honor regarding the higher-order investigation that I am conducting concerning alleged infractions of the application of martial law as it was ordered by higher decree numbers 10.362 and 10.363. I request that you kindly report to this military court of justice number 27 . . . on whether a case is being tried before your court . . . that was initiated based on a report or complaint lodged by Mister Juan Carlos Livraga, which is tied to the same event that the undersigned is investigating. If affirmative, since the event in question falls within military jurisdiction either by ratione materiae or likewise by ratione personae (based on the assumption that it deals with whether military personnel acted in compliance with what Article 2 of the aforementioned higher decree number 10.363 stipulates), and considering that such a case calls for the strict application of Article 108, paragraph 1, of the Military Justice Code . . . I hereby leave Your Honor with the motion to contest jurisdiction, which is delineated in articles 150 (paragraph 1) and 151 of the aforementioned legal code.
Consequently, I ask that Your Honor desist from continuing to hear the referenced case and submit the matter at hand to this military court of justice, or, should the motion that has been made not be accepted, that the decisions be left to the National Supreme Court such that the matter in question be resolved conclusively.
On February 1, 1957, the La Plata judge resolves to retain jurisdiction, claiming the following: that ratione personae, it is premature to make a motion for recusal because, as it stands, the case does not directly charge any one person and the event to date does not involve “military personnel on active duty”; and that ratione materiae, there are similarly insufficient reasons to relinquish the case. He adds that, when the same matter was brought forth by the Chief of Police, he expressed his resolve to retain jurisdiction,
even though said person bringing forth the issue was not involved in the case and, to that end, on January 23, he ordered the release of an official letter to the judge currently presiding over the criminal court of the capital to demand, from wherever necessary, an original copy of decree 10.362 and 10.363, as well as the date and exact time they were enacted. Said official letter was resent on the 28th, and was met no reply.
Judge Hueyo has understood from the beginning that the crux of his investigation is this: the hour at which the law was announced. He did not have enough time to obtain the evidence that I would obtain months later, once the State Radio registry book of announcers had been photocopied and published. But the following analysis seems irrefutable to me:
The goal of the requested information —he says— was to determine whether the detention of the declarant, which occurred between 2315 and 2330 on June 9, took place after or before the instatement of martial law.
In the former case, the investigation and penalty pertain to whether an infraction occurred, either regarding the application of said martial law or regarding pertinent regulations of the military code of justice. In this case, the matter does not fall under the jurisdiction of civil authorities and, with the necessary information, the undersigned would have stated as much.
But in the latter case, that is, that the detention of these individuals took place prior to the instatement of martial law: even if the execution was ordered after the law had come into effect, the law would not have applied to said individuals as no criminal law can have retroactive effect and, in that case, those in question, whatever their connection to the subversive movement may have been, were not given the opportunity to desist and lay down their weapons because they had already been seized.
Given this hypothesis, the detention in question, the subsequent execution of several of these individuals, the attempt to execute others and the repeated detention of the declarant that ultimately placed him under the jurisdiction of the National Executive Power, are events that are not within the scope of military law or its interpretation, but rather, should they be duly proven, are classified as crimes under the penal code, which the undersigned is qualified to apply. For the above reasons, it is resolved to inform the solicitor that the undersigned retains jurisdiction.
Footnotes:
32On this point, Rodríguez Moreno’s version differs from the one that I provide in the text, which is based on the testimony of six of the seven survivors.
33R. Moreno is mistaken. The bullet did in fact destroy Livraga’s jaw, but more than that, Julio Troxler saw him walking wounded, eight blocks away from the garbage dump, at the José León Suárez rail crossing. He saw a police officer pick him up there. Di Chiano and Benavídez saw him get off at the site of the execution. Troxler even remembers exactly where he was sitting in the assault car and also saw him get off. It’s not plausible that Livraga, having saved himself, would have run off somewhere to shoot himself, as R. Moreno seems to suggest, and as F. Suárez has alleged.
34The receipt they gave to Livraga.
35. Blind Justice
The case went to the National Supreme Court, which, on April 24, 1957, passed one of the most shameful rulings in our judicial history, signed by all the members—Judges Alfredo Orgaz, Manuel J. Argañarás, Enrique V. Galli, Carlos Herrera, Benjamín Villegas Basavilbaso—following a prior report from the Attorney General of the Nation, Sebastián Soler.
Once the case was transferred to a so-called military justice system that was equally complicit and partisan, this ruling is what left the crime of the José León Suárez massacre forever unpunished.
Half a page was enough for Judge Soler to give his ruling on the events that I have recounted in this book. Here is his opinion:
According to the statements of the declarant, the event being investigated in the proceedings was carried out by the staff of the Police Department of the Province of Buenos Aires.
However, beginning on page 24, it appears that during the happenings of June 9, 1956, police forces acted “in accordance with military commands and authority.”
Consequently, considering what is mandated by Article 108, paragraphs 2 and 3, and by Article 109, paragraph 6, of the Military Code of Justice, it is my opinion that the competence of the military justice court sub judice should be declared and I underscore, moreover, that this decision is supported by Article 136 of the same legal text in its stipulation that “the accountability of military authorities regarding the decrees that they pass, or of those entrusted with their application, should they overstep their authority, can only be established by military courts.”
Note that the ruling does not even mention the basic discrepancy raised by Judge Hueyo. It tiptoes around all the significant elements of the issue. It is founded on the childish equivocation that the police were reporting to the Army during “the events of June 9, 1956,” which is false because throughout the entirety of June 9, given that no decree was enacted that day to change the situation, the police were legally subordinated not to the Army, but rather to the Governance Ministry of the Province. Moreover, though, besides being false, this is all irrelevant because Livraga’s formal accusation, which is what is being considered, refers to a crime committed on June 10, which is like saying a day later, a year later, a century later. Or is it that a famous jurist came
to believe he was an angel, or a Wells character, who could play with time like this? In half a page, Judge Soler does away with everything he has taught in decades of lectures and texts.
The Court’s ruling states:
Findings of fact and conclusions of law:
WHEREAS the actions that prompted this case are imputed to functionaries and employees of the Province of Buenos Aires Police, who acted during the emergency in accordance with commands and authority that were military in nature, per what is reported on page 24 by request of this Court, and what emerges as well from the proceedings is that the aforementioned events were motivated by the revolutionary movement stifled on that occasion, namely, under exceptional circumstances during which the keeping of internal order was specifically assigned to the military, according to doctrine established as of the end-date of the “Todesco, Hernando” case; and
WHEREAS in such conditions and considering what is ordered by Article 136 of the Military Code of Justice and what has been decreed by the Attorney General, it is appropriate to declare the jurisdictional competence of the presiding military judge in this case;
THEREFORE and given the report of the Attorney General, be it declared fitting for the proceedings to be heard by the presiding military judge, to whom the trial will be transferred.
In the first edition of this book I said—without its occurring to anyone to sue me for contempt—that the attorney general’s report and the ruling of the Court were an evil corruption of the rule of law. I want to sum up, in the most straightforward way possible, the reasons behind this “report” that made me believe I was authorized to make such a statement.
An individual, Livraga, is arrested on a day when the ordinary rule of law is in effect. He is not formally accused of anything during the arrest, but this in itself does not yet constitute a crime. They do rough him up a bit; let’s say we forget that part.
The person who arrests him is a civil servant, the Chief of Police of the Province. It is true that this civil servant is, additionally, a lieutenant colonel; but, for the purposes of this case, it is as though he isn’t; he does not arrest him in his capacity as a lieutenant colonel, but as a civil servant under the authority of the Governance Ministry of the Province.
While detained, Livraga of course does not commit any crimes. That day—like every day—ends at twelve o’clock at night. The following day (it does not matter that hardly thirty-two minutes have gone by, it is already the following day, June 10), a law is instated—martial law. This law is put into effect on June 10. Livraga, imprisoned since the previous day, cannot violate it. It is as though this law does not exist for Livraga, and Livraga does not exist for it; they are spheres that do not make contact; whatever is done to him and whatever punishment is inflicted upon him in the name of this law will be a crime. Livraga exists in the penal realm that precedes this law; he cannot be judged or punished except according to the criminal code that was in effect at the time of his arrest, which entitles him to guarantees, the right to defense, an impartial judge, due process.
Now a man enters the picture. He is the same man as before, the civil servant, the Chief of Police who has undergone a Doctor Jekyll and Mr. Hyde kind of transformation and appears in the form of a military authority; his rank of lieutenant colonel—which earlier was insignificant—now serves him well. This man cannot be unaware that he, a civilian, has arrested Livraga, a civilian, and that their interactions are entirely frozen on this plane; that he has arrested Livraga at a time governed by civil law, and can only deal with him on this plane; and that any transgression he commits regarding this clear rule will have to be judged on that same, unabandonable plane—that is to say, will have to be judged by a civil judge. Because this time of civil relations between authorities and mere citizens does not expire when a revolution hits; at most, civil rule underlies military rule: one can be superimposed on the other, but they cannot merge. This civil servant cannot act as a military authority toward someone he has arrested in his role as a civil servant. But he does. He orders for him to be killed. But it is clear that when he acts, when he sends Livraga to be killed, he continues acting like a civil servant, even though he believes the opposite to be the case, because that is the only way he has of relating to this detainee. If he commits a criminal offense within this relationship, he absolutely must be judged as a civil servant. What he orders is not an execution; it is a murder.
To get a clearer picture of things, let’s suppose that during this revolution-inspired interval of metamorphosis, this civil-servant-cum-military-authority takes advantage of the situation to commit some kind of crime, to rob a bank or murder a creditor. Would he then be judged by the military justice system? It seems clear to me that he wouldn’t. His dual nature as a civil servant and military authority does not prevent him from committing a crime according to the penal code and correspondingly being tried under this very code.
Now let’s suppose the opposite. Let’s suppose that the mere instatement of martial law gives the chief of police the unchecked authority over all persons previously detained in precincts, etc., that Fernández Suárez exercised over Livraga. This man, then, can murder all of the prisoners in his custody, and later—if the issue is raised—be “judged” by a military court, that is, by his colleagues and comrades-in-arms involved in the same splinter groups and possibly guilty of similar exploits.
Isn’t that how it happened? Did Lieutenant Colonel Abraham González, the military judge, penalize Lieutenant Colonel Fernández Suárez or even disclose any of the results of this “trial”?
I want somebody to tell me what the difference is between this conception of justice and the one the Nazi gas chambers created.
Let’s return now to Livraga. When this man, already arrested, gets on a bus at 11:30 p.m. on June 9, he is, despite everything, protected by Article 18 of the Constitution, which says that “No inhabitant of the Nation can be punished without a trial governed by the law that was in effect prior to the act that gave rise to the proceedings . . . or deprived of the judges appointed by law before the act for which he is tried.”
What does Livraga do to lose these rights? Nothing. And yet, he loses them, and this is one more of the phases of legal monstrosity validated by the Court’s ruling and by the military “trial”—two stones along the same path because in 1957 you did not need to be a genius to know that Lieutenant Colonel González was not going find Lieutenant Colonel Fernández Suárez guilty.
This, then, is the irremovable stain that soils a government, a justice system, and an army equally:
That the men arrested in Florida were punished, condemned to death without trial; that they were deprived of the judges appointed by law before the act that gave rise to the case, and under law instated subsequent to the act in question; and that there was in fact no act and no justification for any of it.
No amount of finagling will manage to erase the horrific evidence showing that the government of the Liberating Revolution retroactively applied a martial law that was instated on June 10 to men who were arrested on June 9.
And that is not execution. It is murder.
36. Epilogue
One of my concerns upon finding out about this massacre and telling its story while the executioners were still in power was to keep it separate, to the extent possible, from the other executions, whose victims were primarily military personnel. Here was an incident that the Liberating Revolution could not even respond to with sophistries.
This approach forced me to make a specific allegation instead of a historical argument. It meant presenting the Liberating Revolution and its heirs to date with the borderline case of an unjustified atrocity, and asking them a question: Did they acknowledge the atrocity as their own, or did they explicitly disapprove of it? The only way to show that they had not authorized it was to punish those responsible and offer moral and material compensation for the victims. Three editions of this book, about f
orty published articles, a bill presented to Congress, and countless smaller initiatives have all served to pose the question to five successive governments over the course of twelve years. The response has always been silence. The ruling class that these governments represent supports this act of murder, accepts it as a part of itself, and does not punish anyone for it simply because it does not want to punish itself.
The executions of military personnel in the barracks were, of course, just as barbaric, illegal, and arbitrary as the civilian executions in the garbage dump.
The six men who, following Colonel Yrigoyen’s orders, attempted to establish Valle’s command in Avellaneda, put up no resistance when they were caught. They are executed in the Lanús District Police Department at dawn on June 10.
Colonel Cogorno, the leader of the uprising in La Plata, is executed during the first minutes of June 11 in the Seventh Regiment barracks. The civilian Alberto Abadíe, wounded in the skirmish, is first treated. Then, at nightfall on the twelfth, he is ready for the firing squad, which he has to face in the Bosque de La Plata park.
On June 10 at noon, Colonels Cortínez and Ibazeta, along with five junior officers, are tried at Campo de Mayo. The court, presided over by General Lorio, decides that the case does not warrant the death penalty. The Executive Power completely disregards res judicata and passes Decree 10.364, which condemns six of the seven accused men to death. The order is carried out at 3:40 a.m. on June 11 near an embankment.
Operation Massacre Page 17
