17. A number of complaints were filed in Argentina but it was not until 2002 that the case was denounced in Uruguay.7 On June 19, 2002, Juan Gelman, denounced the kidnapping and disappearance of Maria Claudia before the Fourth Criminal Court in Montevideo (Juzgado Letrado en lo Penal del Cuarto Turno). On December 13, 2002, the case was officially opened to receive evidence. The Prosecutor sought to have the proceedings closed due to the applicability, in his opinion, of the Uruguayan Amnesty Law. The Judge did not accede to the Prosecutor’s request, due to the fact that pursuant to article 3º of Law Nº 15.848, only the Executive branch could decide on the closing of such cases and as a result the issue was sent to President Jorge Battle to determine whether the facts fell within the scope of the Amnesty Law or not. On November 2003 the Executive branch informed the Court that the Amnesty Law applied and on December 2, 2003 the Court filed the case. Juan Gelman filed a writ seeking to have the decision to file the case declared unconstitutional, inter alia, for having violated the principle of the separation of powers, but the Supreme Court, in a judgment issued November 15, 2004, rejected the writ. 18. On June 10, 2005, Juan Gelman sought to have the investigation reopened and filed a request for the reactivation of the case before the Second Criminal Court in Montevideo (Juez Letrado de Primera Instancia en lo Penal de Segundo Turno) based on new evidence consisting of three newspaper articles relating to the killing of Maria Claudia and other persons who had “disappeared” during the dictatorship. The Court again requested the Executive branch to decide whether these acts were covered by the Amnesty Law and, by note dated June 23, 2005, the new administration of President Tabaré Vásquez informed the Court that they were not covered by the Amnesty Law. The Executive branch explained that three specific situations were excluded from the scope of the Amnesty Law: 1) crimes that were committed for the purpose of economic gain by the perpetrator or a third person, 2) crimes committed by civilians or high ranking military or police during the dictatorship established between June 27, 1973 and March 1, 1985; and 3) crimes committed outside the national territory. Consequently, the investigation was reopened. On August 8, 2005, the Prosecutor again requested that the investigation be closed because, in his view, the case came under the Amnesty Law, and he argued that the earlier decision to close the investigation was cosa juzgada.8 The Judge did not consider that the Amnesty Law covered the crimes alleged, but rather established a sui generis proceeding that granted the Executive the power to authorize or not a judicial proceeding. Since the Executive had issued a decision to proceed in this case, that act permitted the Judiciary to continue with the investigation. The Ministry of Justice (Ministerio Público) appealed and the Court of Appeals in a judgment dated October 19, 2005, revoked the impugned ruling and determined that the case be filed. The rationale of the Appeals Court’s decision was a deferral to prosecutorial discretion. 9 Juan Gelman’s lawyer was personally notified of the Appeals Court decision on November 9, 2005. 19. In summation, the criminal investigation was reopened in 2005 and the Executive branch, under the Presidency of Dr. Tabaré Vasquez, authorized the reopening of the case. Nevertheless, the investigation was truncated by the intervention of the Ministry of Justice (Ministerio Público), which sought to have the case filed. The decision to file the case issued by the Court of Appeals on October 19, 2005 formally terminated the domestic proceedings in this matter. As regards the Court of Appeals’ decision, Mr. Gelman’s lawyers were not granted access to present a challenge or to seek its modification. B. The Position of the State 7 The kidnapping and illegal detention of Maria Claudia, her husband Marcelo Ariel Gelman and the sister in law, Maria E. Cassinelli de García Ireretagoyena were denounced by Maria Teresa Laura Moreira on August 25, 1976 to the Argentine Police, then by Juan Antonio García Ireretagoyena, the father of Maria Claudia, on September 12, 1977 before the Investigating Court in Argentina (Juzgado Instructor) and by Nora Eva Gelman Schubaroff (the sister in law of Maria Claudia who was also detained in Automotores Orletti) on May 20, 1987 before the Investigating Court 8 The petitioners point out that the Prosecutor, Enrique Moller Méndez, was the same Prosecutor who requested that the investigation be closed in September 2003. 9 The Appeals Court determined that the Justice Ministry, which is obliged to carry forward the prosecution, did not consider that the prerequisites for a prosecution were present. The investigating Judge’s investigation only serves to facilitate the Justice Ministry’s indictment. If the Prosecutor is of the view that the bases for the prosecution do not exist, the Judge is bound by this decision and cannot pursue the prosecution on his own. 5