52
h. the State should have criminalized the act of enforced disappearance, but it
did not do so until 2006. Consequently, the State violated Articles I(b), III,
IV, and V of the Inter-American Convention on the Forced Disappearance of
Persons for its delay in criminalizing the act of enforced disappearance and
for failing to thoroughly investigate the fate of María Claudia García.
141.
The representatives alleged that:
a. suggested an analysis of the elements of to establish a reasonable period of
time to argue that the involvement of State officials and the impunity that
has prevailed for years due to the Expiry Law in effect, as well as the
military secret that continues to operate to date with a certain tolerance
from the State, do not justify its failure to investigate or delay in doing so,
rather, they increase the State’s responsibility;
b. all the preliminary investigations regarding the disappearance of María
Claudia García Iruretagoyena and Macarena Gelman García’s birth in
captivity, as well as the suppression of her identity, were the result of Juan
Gelman’s tireless and private efforts, who tried to investigate the facts,
"unsuccessfully, for over eight years." Moreover, since the investigation was
reopened in 2008, most of the evidence submitted to the court has been
made available by means of the personal efforts and investigations carried
out by the relatives.;
c. by permitting Law No. 15.848 to remain in force and by protecting those
who have direct knowledge of the facts under a “military secret” claim, as
well as neglecting to investigate the facts, Uruguay violated Articles 8 and
25 of the Convention because, for years, it failed to provide access to
judicial remedy for crimes against humanity;
d. the State’s did not exercise due diligence on various occasions, such as: the
repeated efforts by the Public Prosecutor’s Office to file the case within the
scope of the Expiry Law; the judge and prosecutors’ lack of attention to
Macarena Gelman’s requests in February of 2008 to the Court of First
Instance on Criminal Matters of Second Round to process the pending
evidence; the lack of lines of investigation into testimonial statements in
other criminal courts and witnesses in the present case; and the failure to
summon public and military officials who might have relevant information;
e. no information has been gathered to establish the location and
circumstances of the birth of María Macarena Gelman, nor has there been
any investigation in relation to the medical staff that worked at the place
where she was allegedly born;
f. the Expiry Law grants the Executive Branch jurisdiction to decide whether a
case falls within the scope of said law, and consequently, allows the
Executive Branch to close a case or to archive the records, making it
impossible to prosecute those responsible for committing crimes against
humanity;
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