For the first time, crimes against humanity that might have been perpetrated under the military government that ruled the country between 1973 and 1985 may be investigated. Law No. 18.831, allowing the judiciary to independently investigate these crimes, was adopted by the Uruguayan Parliament on 27 October.

By Mariana Rodríguez-Pareja and Salvador Herencia-Carrasco*

Although there have already been some judicial investigations in Uruguay, the so-called 1986 "Expiry Law" prohibited the judiciary from administering justice in an autonomous manner. The peculiarity of the Uruguayan experience is that the Expiry Law has been submitted twice to a referendum. In 1989, the Uruguayans voted for the Law to remain into force. But in 2009 it didn't get the majority of votes necessary to push for a reform to repeal it.

During the military dictatorship, human rights organisations estimate that approximately 213 people disappeared; around 6,000 were jailed as long-term political prisoners. The most common practices were tortures and the abduction of the children of political dissidents, who were later given to other families.

Uruguay, like Argentina, Brazil, Bolivia and Paraguay, was part of Plan Condor, which supported right-wing military governments in order to fight the influence of communism in South America in the '70's. This regional strategy facilitated cross-border assassinations,  tortures and enforced disappearances.

The 1986 Uruguayan Expiry Law
After the return to democracy, the civil government led by President Sanguinetti, adopted in 1986 Law No. 15.848 (Ley de Caducidad de la Pretensión Punitiva del Estado), also known as the Expiry Law, granting amnesty to those responsible for human rights violations during military rule.

This Law declared the expiry of the State's power to prosecute crimes committed before 1 March 1985 by military personnel or police forces during the de facto regime. The approval of this Act was also consistent with the policies and laws adopted by other countries in the region at the time which decided to approve Amnesty Laws fearing chaos or further threats to democracy after years of military dictatorships.

The difference against other Amnesty Acts adopted in the region is that under the Expiry Law, some cases could be opened if the President decided that investigations into cases of alleged abuses could be allowed to proceed.

But after the restoration of democracy, many cases were blocked, without the right to appeal. This power granted to the Executive is in direct contravention to the Uruguayan Constitution and International Human Rights Law, which embodies the separation of powers. Despite the peculiarities of the Expiry Law, de facto President Bordaberry (1973-1976), and President Alvarez (1981-1985) have been prosecuted and convicted for crimes that were not covered by the amnesty.

President Mujica, a former Tupamaro leader who was tortured and served in prison for a long term during the military regime, had previously argued publicly against scrapping the amnesty, pointing to the referendum results. Nevertheless, before the vote in Parliament, amnesty supporters and members of the Armed Forces claimed they would seek prosecution of former guerrillas, especially Tupamaros.

Revoking the Expiry Act
Uruguay's Expiry Act violated not only the Constitution, but international human rights principles and treaties, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Convention of Human Rights, and the Inter-American Convention to Prevent and Punish Torture. It also violates rulings by the Inter-American Court of Human Rights which are binding and final. Even the Uruguayan Supreme Court ruled on several occasions on the unconstitional character of the Act.

In 2006, President Tabaré Vázquez allowed an investigation into the crimes perpetrated under the military regime. Earlier this year, President Mujica, using the powers granted under the Expiry Act, decided to reopen 88 cases of human rights abuses.

Turning point
However, the decisive turning point came in February, when the Inter-American Court of Human Rights in the Gelman Case, determined that the 1986 Expiry Law had no legal effectvis-à-vis the American  Convention on Human Rights, ordering Uruguayan authorities to strike down any internal measures that could represent an obstacle to investigate and prosecute those responsible for crimes against humanity, especially enforced disappearances.

The adoption of Law No. 18.831 represents a major change in the national prosecution of crimes against humanity in Uruguay. For the first time, the judiciary is in charge of leading these proceedings, leaving all political considerations aside. Due to the fact that only those cases considered as crimes against humanity can be reopened, no statutory limitations or other measures that may halt proceedings are applicable.

Families of the victims are celebrating the adoption of this law as one step closer to knowing the truth about their loved ones. This new development in Uruguay shows that despite the challenges and limitations - the constitutional standing of human rights treaties, the rulings of the Inter-American Court and its interpretation by national courts - can bring about positive change and consolidate the rule of law.

* Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocat- based in Buenos Aires. Twitter: @maritaerrepe

Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists, based in Lima.