9
22.
Likewise, in relation to Articles 8 and 25 of the Convention, the State pointed
out that “it is aware that initially the complaint filed by Juan Gelman was understood
to fall within the scope of the Executive Branch of the era and under the Expiry Law;
nevertheless, a criminal court reopened the case in August 2008.” Concerning the
actions of the judicial bodies, the State implied that “the fall of the dictatorship
meant the adoption of various measures – legislation, amnesty laws, replacement of
officials who had been unfairly dismissed, reparations for victims, judicial and
administrative investigations – that is, the adoption of a complex system,” adding
that, in that sense, “under the constitutional system of the Republic, there exists
separation of powers, by which the Executive Branch is prohibited from giving
directions of any kind to a judge regarding the investigation of a case,” and that “the
same applies to the other alleged violations, given that these violations occurred
during the de facto government that ruled Uruguay, and following the restoration of
democratic order, attempts were made to bring the State’s conduct back under the
rule of law, […] whereby, with some exceptions, these violations are limited to the
period in question.” The State mentioned that this “does not imply a lack of
acknowledgment that María Macarena Gelman was found in 2000 and that the
[location and identification] of María Claudia García’s bodily remains a pending issue
for the State.”
23.
The representatives argued that, according to the State’s answer, the State’s
act cannot be considered an “acknowledgment” in accordance with the Court’s
Rules of Procedure and jurisprudence, since it does not clearly and precisely indicate
the scope of the facts and rights that it appears to be acknowledging or challenging;
the only definite parameter it appears to establish is a time reference that does not
fit the period of the facts at issue. Considering the aforementioned, they requested
the application of Article 41(3) of the Rules of Procedure of the Court so as to
establish the State’s acknowledgment of the facts and claims put forth in the
application and the brief of pleadings and motions. Moreover, they considered
relevant, as a form of acknowledgment of State responsibility, the arguments made
by the Minister of Foreign Relations on October 7, 2010, before a parliamentary
commission, since his opinions “are regarded as indicative of what any individual
would consider to be the State’s position.” They also noted that at the Supreme
Court hearing of the case of Sabalsagaray (infra para. 148), the Executive and
Legislative Branches assented to the unconstitutionality exception raised by the
Prosecutor’s Office, and therefore, it is their understanding that the State “has
recognized the unconstitutionality and non-conformity with the Convention of the
Expiry Law,” for which they requested that the principle of estoppel be applied.