Gelman v. Uruguay

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 Although in 2011, Law 18831 was enacted, which effectively repealed the Amnesty Law this law was subsequently declared unconstitutional by the Supreme Court.