348
1 IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
2 NORTHERN DIVISION
3
4 JUAN ROMAGOZA ARCE, JANE ) Docket No.
DOE, in her personal capacity ) 99-8364-CIV-HURLEY
5 as Personal Representative of )
the ESTATE OF BABY DOE, )
6 )
Plaintiffs, )
7 vs. ) West Palm Beach, Florida
) June 25, 2002
8 JOSE GUILLERMO GARCIA, an )
individual, CARLOS EUGENIO VIDES)
9 CASANOVA, an individual, and ) VOLUME 3
DOES 1 through 50, inclusive, )
10 )
Defendants. )
11 _______________________________ x
12
13
14 COURT REPORTER'S TRANSCRIPT OF
TESTIMONY AND PROCEEDINGS HAD BEFORE
15 JUDGE DANIEL T. K. HURLEY
16
17 APPEARANCES:
18 For the Plaintiffs: JAMES GREEN, ESQ.
PETER STERN, ESQ.
19 BETH VanSCHAACK, ESQ.
20 For Defendant: KURT KLAUS, ESQ.
21
Court Reporter: Pauline A. Stipes, C.S.R., C.M.
22
23
24 PAULINE A. STIPES
Official Reporter
25 U. S. District Court
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1 THE COURT: Good morning, everybody. Are we all
2 set and ready to proceed?
3 Mr. Marshal, would you bring in the jury, please?
4 (Thereupon, the jury returned to the courtroom.)
5 THE COURT: Good morning, ladies and gentlemen,
6 please be seated.
7 Let me turn to the Plaintiffs and allow the
8 Plaintiffs to call their next witness.
9 MR. STERN: The Plaintiffs call Alberto Alvarez.
10 THE COURT: Thank you, Mr. Stern.
11 Mr. Alvarez, if you would come up to the witness
12 stand and make yourself comfortable.
13 I need to tell you the microphone has a short
14 pickup range. If you pull that chair up to the desk
15 there, you will be more comfortable and allow everyone to
16 hear you.
17 Sir, would you raise your right hand?
18 ROBERTO ALVAREZ, PLAINTIFFS' WITNESS SWORN.
19 THE COURT: Mr. Alvarez, would you please begin
20 by introducing yourself to the members of the jury? Would
21 you tell them your full name, and would you spell your
22 last name for the court reporter?
23 THE WITNESS: Roberto, middle initial T, Alvarez,
24 A-L-V-A-R-E-Z.
25 THE COURT: Thank you, sir.
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1 You may proceed.
2 DIRECT EXAMINATION
3 BY MR. STERN:
4 Q. Mr. Alvarez, where are you coming from to be with us
5 today, where do you live?
6 A. Washington, D.C.
7 Q. What is your educational background?
8 A. I got my basic law degree in Dominican Republic, and
9 Master's in Georgetown University.
10 Q. Are you a native of the Dominican Republic?
11 A. Yes, I am.
12 Q. Where is the Dominican Republic?
13 A. In the Caribbean, the middle island between Cuba and
14 Puerto Rico, shares the island with Haiti.
15 Q. Thank you. How did you begin your career?
16 A. Where?
17 Q. In the Dominican Republic.
18 A. I was a member of the foreign service of the Dominican
19 Republic.
20 Q. How long did you continue in that role?
21 A. Five years.
22 Q. What did you do after that?
23 A. I applied for a position within the secretariat of the
24 Organization of American States. I was selected and so I
25 moved to Washington in 1971.
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1 Q. Now, we had some testimony yesterday about the
2 Organization of American States, OAS for short. Can you
3 tell us what that body is?
4 A. The OAS is a regional international organization
5 created under the charter of the United Nations which
6 allows for regional organizations.
7 Q. And what is the region, what are the countries that
8 are included in the Organization of American States?
9 A. The western hemisphere, the Americas.
10 Q. Does that include the United States?
11 A. Yes.
12 Q. Dominican Republic?
13 A. Yes.
14 Q. And El Salvador?
15 A. Yes. All three were founding members.
16 Q. Broadly speaking, what are the functions and
17 responsibility of OAS?
18 A. Main responsibility, promote peace and security
19 throughout the hemisphere.
20 Q. Does the OAS have any particular responsibility of
21 human rights?
22 A. Yes. In order to promote peace and security, one of
23 the main tenets is promotion of democracy and human rights.
24 Q. Are there any parts of the OAS or sub groups within
25 the OAS that has a particular relationship with human
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1 rights?
2 A. A special Orden was formed called American Commission
3 on Human Rights, whose main responsibility was to monitor
4 the observance of human rights on the hemisphere.
5 Q. You refer to that as the Inter-American Commission of
6 Human Rights?
7 A. Yes.
8 Q. If I refer to it as the Interbody Commission, would
9 that be acceptable?
10 A. Yes.
11 Q. Tell the jury how the Commission goes about monitoring
12 human rights in the member countries of the OAS?
13 A. The Commission is composed of seven elected members.
14 They do not represent individual countries, they represent
15 all of the member states. The commissioners -- the
16 Commission has its headquarters in Washington, D.C. It is
17 authorized to receive complaints from throughout the
18 Americas or all the member states of the OAS on human
19 rights, specifically the human rights listed in the
20 American Declaration of the Rights and Duties of Man, which
21 was approved in 1948 when OAS was created, as well as in
22 the American Convention of Human Rights which was approved
23 later but of which El Salvador is a party, is a member
24 country. And those two basic documents contain human
25 rights which the Commission is asked to monitor.
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1 Q. And what are some of the specific human rights that
2 the Commission monitors?
3 A. The fundamental -- civil and political as well as
4 economic, but the basic fundamental human rights, which are
5 called fundamental human rights within the statute of the
6 Commission, are the right to life, the right to liberty,
7 not to be tortured, the right of freedom of association,
8 freedom of speech, due process of law.
9 Q. I believe you refer to petitions received by the
10 Commission; is that correct?
11 A. That is correct.
12 Q. Where do those petitions come from and how does the
13 Commission handle them?
14 A. The Commission is authorized to receive complaints
15 stemming from any individual group or institution, not only
16 in the Americas but from any part of the world.
17 Q. So you are talking about individuals, people in anyone
18 of the member countries of the OAS?
19 A. That is correct.
20 Q. How does an individual go about submitting a petition
21 to the Commission?
22 A. Writing a letter in which it alleges a violation, a
23 specific violation of the human rights, again, contemplated
24 in either the American Declaration or the convention and
25 stating when the violation occurred, where, and of course
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1 that a member -- that the Government or someone acting on
2 behalf of the Government was responsible for the violation.
3 Q. So the Commission deals only with alleged violations
4 by states; is that correct?
5 A. That's correct.
6 Q. What does the Commission do when it receives one of
7 these petitions?
8 A. It takes what are called the pertinent parts of the
9 communication of the violation and it sends it to the
10 government. The government has 180 days to reply, and to
11 the denunciation.
12 Q. And what are some of the -- how does the procedure
13 work after the denunciation is brought to the attention of
14 the state?
15 A. If the government replies, which most governments do,
16 the reply of the government is then sent to the petitioner
17 and the Commission asks the petitioner to respond to the
18 Government's reply.
19 Q. Does the Commission ever take it upon itself to make
20 visits or investigations in member countries in relation to
21 human rights?
22 A. Yes, it does.
23 Q. And in what circumstances does it do that?
24 A. Basically two circumstances. One when there is an
25 egregious violation of human rights in a particular
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1 individual case, it may ask the Government for permission
2 to visit and investigate that individual situation, or in
3 the second, which is the most common, is when a certain
4 volume of communications are received which create a
5 systematic pattern of violations which show that there is
6 just a large number of violations of human rights that are
7 being -- of the fundamental human rights that are being
8 complained about in that particular country. In that case
9 the Commission may decide, negotiates with the government
10 the possibility of a visit.
11 Q. Tell us, if you would, about the pattern you refer to.
12 What is the Commission looking for in order to determine
13 whether a visit to a member country would be appropriate?
14 MR. KLAUS: Objection; relevancy.
15 THE COURT: I will overrule that objection. You
16 may answer the question.
17 THE WITNESS: In the case, take for example of
18 arbitrary detention, if the Commission starts receiving --
19 and there is no magical number as such, it is just a large
20 volume, it depends on the size of the country, depends on
21 the nature of the violations -- but if the Commission
22 starts receiving a certain large number of complaints
23 about arbitrary detention, you start seeing in some cases
24 that there are certain patterns that the complaints state
25 that the people were detained, for example, by heavily
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1 armed men, but not in uniform, that the allegations state
2 that they were taken to specific places, so, you start
3 seeing a pattern of the way the detentions are carried
4 out.
5 BY MR. STERN:
6 Q. Could you tell us again the dates when you were
7 employed with the OAS?
8 A. I was with OAS from 1971 until the end of 1978,
9 December, '78, but I was with the Commission from '76
10 through the end of '78.
11 Q. And during this period, did you participate in any
12 on-site human rights inspection carried out by the
13 Commission?
14 A. Yes, I did.
15 Q. And what countries did you visit in that regard?
16 A. Went to Panama, Nicaragua, and El Salvador.
17 Q. I want to ask you some questions about your visit to
18 El Salvador with the Commission. When did that take place?
19 A. In January of 1978, somewhere between the 9th and 18th
20 of January.
21 Q. And who from the Commission went on that visit?
22 A. The Commission appointed three of its members a
23 special committee to visit El Salvador, along with the
24 staff. I was a staff member, a staff attorney. There were
25 several of us that prepared the visit of the special
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1 committee.
2 Q. And what was your specific role on the visit?
3 A. I -- we opened an office -- among the many things that
4 we did during the visit, we opened an office to receive
5 anyone who had any complaints so that they could come and
6 present the complaints, as well as a place where we could
7 actually interview the people who had already sent us
8 complaints so we could have a personal interview with those
9 individuals.
10 Q. What was your title when you were on the staff?
11 A. I was staff attorney, senior specialist on human
12 rights.
13 Q. I am going to go back and ask you more questions about
14 your visit, but I want to move ahead for the movement.
15 After you completed the visit, did you attempt to
16 summarize the findings of the Commission in El Salvador in
17 some way?
18 A. Yes. We drafted the report on the human rights in El
19 Salvador as a result of the visit.
20 Q. When was that report prepared?
21 A. The report was prepared between January and October,
22 '78. The Commission approved it, the Commission in full
23 approved it in November of 1978.
24 Q. And what happened with the report then?
25 A. It transmitted the report to the government of El
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1 Salvador for its response.
2 Q. Did the government of El Salvador make a response?
3 A. Yes, it did.
4 Q. And when was that?
5 A. I believe it was in February, '79.
6 Q. And was that incorporated in the report?
7 A. When the Commission published the report somewhere
8 around April, 1979, it included in the report the response
9 of the government.
10 Q. And what happened to the report then, in terms of its
11 further distribution?
12 A. By statute --
13 MR. KLAUS: Objection; lack of personal
14 knowledge.
15 THE COURT: You may answer the question if you
16 know yourself, sir.
17 THE WITNESS: Yes, I do.
18 THE COURT: You may.
19 THE WITNESS: The Commission is bound, when it
20 publishes a report, to send it to the Secretary General of
21 the OAS who is bound to transmit it to all of the member
22 states.
23 BY MR. STERN:
24 Q. And when was the report transmitted to the member
25 states of the OAS?
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1 A. After the Commission sent it to the Secretary General
2 in April of '79.
3 Q. And just by way of confirmation, El Salvador is one of
4 the member states, is it not?
5 A. Yes, it is.
6 Q. Mr. Alvarez, can you confirm or do you have knowledge
7 that the government of El Salvador received a copy of the
8 OAS report that you helped prepare?
9 A. Well, it was placed -- the report itself was placed on
10 the agenda of the general assembly. All of the member
11 states have an annual meeting called a general assembly of
12 the OAS, and so when the Commission published its report in
13 April, '79, it was immediately placed on the agenda of the
14 next general assembly which was going to be held in La Paz,
15 Bolivia in October of that year.
16 Q. Do you know the date of October?
17 A. I believe it was around the 22nd of October.
18 Q. And what happened then?
19 A. Actually the general assembly of the OAS adopted a
20 resolution on that report.
21 Q. And did -- are you aware that there was a change in
22 the government of El Salvador certainly after October 15,
23 1979?
24 A. Yes, I am.
25 Q. To your knowledge, did the new government that came
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1 into power following October 15, 1979 acknowledge receipt
2 of the OAS report that you helped to prepare?
3 A. Yes, so far as Resolution 446, I believe adopted at
4 that general assembly of the OAS, stated among other things
5 that the new government committed itself to fulfill the
6 recommendations included in that report.
7 Q. And do you know who was the Minister of Defense of the
8 new government that acknowledged receipt of the OAS report?
9 A. Yes.
10 Q. Who was that?
11 A. Colonel Garcia.
12 Q. Do you know who was the director general of the
13 National Guard of the government that acknowledged receipt
14 of the OAS report?
15 A. Yes.
16 Q. And who is that?
17 A. Colonel Vides.
18 MR. STERN: If I might approach the witness, Your
19 Honor.
20 THE COURT: Yes.
21 BY MR. STERN:
22 Q. Mr. Alvarez, I hand you a copy of Plaintiffs' Exhibit
23 393, which has been admitted into evidence.
24 Is this the OAS report that you have testified to just
25 a few moments ago?
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1 A. Yes, it is.
2 Q. I would like to go back and ask you questions about
3 your on-site visit to El Salvador.
4 You started to tell us about some of the activities
5 that you and other members of the Commission carried out
6 when you got to El Salvador. Could you tell us more how
7 you went about conducting the visit in El Salvador?
8 A. The Commission negotiates the terms of the visit,
9 meaning that the Commission must be free to move about
10 throughout the country. It must not be impeded in any way
11 from meeting, interviewing anyone, visiting jails, meeting
12 with all members of the government, the three branches of
13 the government and so forth, so those are the basic
14 parameters of the visit.
15 Q. Was the government of El Salvador when you visited
16 aware of your presence?
17 A. Yes. Actually the government invited the Commission.
18 Q. And was there any publicity surrounding your visit?
19 A. Yes, considerable publicity. Among other things, the
20 Commission on the first day of the visit published a press
21 release announcing that we were in the country, and where
22 its offices were located so if anyone wanted to present a
23 complaint, they could come by.
24 Q. Now, you testified previously about petitions and a
25 certain volume of petitions leading to a site visit. When
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1 you went to El Salvador, did you have specific areas of
2 interest based on petitions that the Commission had
3 received?
4 A. Well, the Commission had received between 75 and 77, a
5 certain volume of petitions relating more specifically to
6 violations of the right to life, to physical liberty, to
7 inhumane treatment. Those were the most egregious
8 violations, although there were others as well.
9 Q. Did you have specific facilities or locations that you
10 wanted to investigate?
11 A. In 1978, when we visited El Salvador, the Commission
12 was still grappling with one specific complaint that it was
13 receiving from El Salvador, but as well from other
14 countries, which dealt with the unique type of violation
15 which had to do with the kidnapping of an individual by
16 security forces of the country or people acting on behalf
17 of the security forces of the country, and kept in secret
18 detention. This eventually came to be called
19 disappearances as a legal term, but at the time it was
20 called kidnappings or missing persons. And this is one of
21 the violations that we were, the Commission wanted to
22 investigate.
23 Q. And were there any particular locations that you
24 wanted to look at?
25 A. From the complaints that the Commission had received,
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1 it had three places where above all mentioned most
2 frequently, the Treasury Police, National Police, and
3 National Guard.
4 Q. Were there any facilities or locations of those
5 organizations that were identified in the petitions you
6 received?
7 A. Yes.
8 Q. And what were those?
9 A. All three.
10 Q. Geographically speaking, was there any, you know,
11 building or facility, anything in particular?
12 A. The Commission -- most of the complaints referred to
13 underground cells, so the Commission during the visit was
14 looking for underground cells at these locations.
15 Q. How did you go about looking for those cells?
16 A. Well, the Commission visited all three places and it
17 found some underground cells at the Treasury Police, I
18 believe, with no one in them. And these underground cells
19 had no windows, no ventilation, no electricity whatsoever.
20 Q. What city was the Treasury Police facility in which
21 those cells were housed located?
22 A. In San Salvador.
23 Q. And you mentioned that you or other members of the
24 Commission also visited the facility of the National Guard;
25 is that correct?
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1 A. That is correct.
2 Q. Was that facility in San Salvador?
3 A. Yes.
4 Q. And what did you find, if anything, at the National
5 Guard facility in San Salvador?