This case was a result of the “dirty war” committed by Argentina and Uruguay during the 1970s against suspected leftists (a part of “Operation Condor” – a co-ordination of clandestine military activity against leftist subversives). During this operation thousands of individuals were disappeared, pregnant women were killed, and their children placed with military or police families. This case involved one such child (Ms. García Iruretagoyena) who, after her mother and father were both captured and killed, was placed with a State police officer and brought up as his biological daughter. Only through the perseverance of her biological grandparents did her true identity surface and the reality of her birth and parentage become known.
The case was complicated by the enactment in Uruguay of the “Amnesty Law” which granted amnesty to members and agents of the dictatorship under which Operation Condor was conducted. Mr Gelman, Ms. García Iruretagoyena’s paternal grandfather, filed a criminal complaint in 2002 in relation to the disappearance of his daughter (Mrs. Iruretagoyena Casinelli), the abduction of his granddaughter, and the suppression of her civil status. During this period a “Commission for Peace” was established to receive, analyze, classify and compile information about forced disappearances which occurred during the dictatorship. The report of this Commission confirmed the kidnapping of Mrs. Iruretagoyena Casinelli, Ms. García Iruretagoyena’s birth in State custody, and her placement with a Uruguayan family.
Over a period of several years, the President, Executive, Court and Public Prosecutor’s Office disagreed as to whether the Gelman case fell within the scope of the Amnesty Law. In 2006, a petition was filed with the Inter-American Commission on Human Rights in relation to the Gelman case. The Commission concluded that the Amnesty Law was incompatible with the American Convention on Human Rights (the “Convention”) and submitted the case to the Court in 2010.
As the case was progressing, the State was making legal changes in relation to the Amnesty Law. In 2009, the State enacted Law No. 18.596 which acknowledged the illegality of certain State acts during the dictatorship and granted victims the right to receive reparations for these acts. Furthermore, in 2009, the Supreme Court of Justice declared parts of the Amnesty Law unconstitutional. Although in 2011, Law 18831 was enacted, which effectively repealed the Amnesty Law this law was subsequently declared unconstitutional by the Supreme Court.
In considering the potential violation of rights by Uruguay due to the forced disappearance of Mrs. Iruretagoyena Casinelli and the abduction of Ms. García Iruretagoyena, the Inter-American Court of Human Rights found that, in relation to Mrs. Iruretagoyena Casinelli, the State had violated Articles 3 (Right to Judicial Personality), 4 (Right to Life), 5 (Right to Humane Treatment) and 7 (Right to Personal Liberty) all in relation to Article 1(1) of the American Convention on Human Rights as well as Articles 1 and 11 of the Inter-American Convention on the Forced Disappearance of Persons. The Court held that enforced disappearance is a “complex violation of rights” and is one of the “most serious breaches of the State’s obligations to guarantee human rights.”
The Court further found that Articles 3, 4, 5 and 7 of the Convention had been violated in respect of Ms. García Iruretagoyena as well as Articles 17 (Rights of the Family), 18 (Right to a Name and to a Surname of Parents), 19 (Rights of the Child) and 20(3) (Prohibition of Arbitrary Deprivation of Nationality) all in relation to Article 1(1) of the Convention. The Court noted that the events which had occurred had “profoundly changed” Ms. García Iruretagoyena’s life and that “the State suppressed her identity”.
The Court held that Ms. García Iruretagoyena’s kidnapping and transfer to another family constituted a gross violation of her human rights, including her right to special protection as a child (Article 19), which the Court interpreted in light of the Convention on the Rights of the Child. In particular, Uruguay violated her rights to identity, nationality and family relationships by removing her mother, preventing her from developing relationships with her parents, and hiding her true identity from her. The Court also held that due to the separation, her right to life under the American Convention (Article 4) was affected, finding that her survival and development was placed at risk, which the State was obligated to ensure under Article 19 of the American Convention and Article 6 of the Convention on the Rights of the Child, particularly through the protection of the family and the non-interference of an unlawful or arbitrary nature in the family life of the children, given the essential role that family plays in a child’s development.
The Court also found that Articles 5 and 17 in relation to Article 1(1) of the Convention had been violated in respect of Mr. Gelman. The Court stated that “the next of kin of victims of human rights violations are themselves victims of violations”.
Furthermore, the Court determined that the Amnesty Law had “impeded the investigation of the facts” of the case and agreed with the Commission that the law was incompatible with the Convention. The enactment and enforcement of the Amnesty Law therefore resulted in further violations of rights in relation to proper legal recourse.
The Court required Uruguay to (i) identify, prosecute and punish those responsible and ensure no laws acted to obstruct such an investigation, (ii) determine the whereabouts of Mrs. Iruretagoyena Casinelli, (iii) install a memorial plaque containing the names of those individuals detained, (iv) publish the Court’s judgement, (v) create public access to state files regarding disappearances, (vi) train judicial personnel in human rights, and (vii) pay compensation to the individuals whose rights were violated.
As part of a later court ruling on the progress of Uruguay’s obligations under the judgement, the Court noted the Supreme Court’s ruling that Law 18831 was unconstitutional and stated that such a ruling was incompatible with Uruguay’s international obligations and international law. The Court noted that such a decision could hinder compliance with the Court’s ruling in this case but that the State’s bodies must comply regardless.