11th Circuit tosses $24 million award for victims of Trelew Massacre

(CN) — An 11th Circuit panel tossed a $24 million judgment Monday against a former Argentine naval officer found responsible for a 1972 massacre of political prisoners in his homeland.

In a 28-page opinion, the circuit judges ruled that a lower court incorrectly extended the legal deadline for the plaintiffs’ claims, which were not brought until 2020.

“Because the district court failed to make sufficient findings of fact to allow us to properly analyze its ruling on equitable tolling, we vacate and remand for additional findings,” U.S. Circuit Judge Adalberto Jordan wrote.

Surviving family members of four of the prisoners filed suit against Roberto Guillermo Bravo, seeking civil damages under the Torture Victims Protection Act of 1991 for the extrajudicial killing and torture of their relatives.

A jury ultimately found that the plaintiffs had proven that extraordinary circumstances tolled the act’s 10-year statute of limitations. In July 2022, a jury found Bravo responsible for executing 16 unarmed political prisoners and seriously wounding three others at the Trelew military base in Patagonia during the military dictatorships in Argentina over 50 years ago.

The 79-year-old was the last former Argentine military officer accused of taking part in what is known as the Trelew Massacre to face justice. Three other officers were convicted in Argentina and given life sentences in 2012.

But the 11th Circuit expressed concerns with the lower court’s finding that the plaintiffs were unable to discover “crucial evidence” in support of their claims until the conclusion of the criminal prosecution against Bravo in Argentina.

They wrote that equitable tolling applies until the plaintiff is able to “investigate and compile evidence without fear of reprisals,” and agreed that this did hinder the relatives from taking legal action sooner.

After the lawyer who sought justice for her husband was murdered by the military regime in 1974, Alicia Krueger and her family went into hiding, changed their last name, and fled as political refugees to France.

Grandparents of another victim also attempted to file a lawsuit related to their son’s death, that resulted in the regime “disappearing” his mother, father, brother and the lawyers representing his grandparents.

When Marcela Santucho’s aunt tried to file a lawsuit, she too was “disappeared” and Santucho was kidnapped and detained for a week by the military when she was just a child. She later fled the country and did not return until 2008. Though Raquel Camps’ father initially survived the Trelew Massacre, he was eventually killed by the government in 1977, and her mother was “disappeared.”

However, the circuit judges noted that the tolling period focuses on whether they knew or reasonably should have known about the defendant’s unlawful conduct, not on whether they had enough evidence to successfully prevail on their claims at trial.

Most of the evidence that the lower court considered to be critical became available only after 2008 through the criminal prosecution in Argentina, specifically forensic reconstruction of the crime scene at the Almirante Zar Naval Base.

But “the government was certainly no longer engaging in ‘deliberate concealment,’” in 2008 when the democratic Argentine government had begun investigating the Trelew Massacre and prosecuting its perpetrators, Jordan wrote.

The murders were long covered up by the military government, who claimed the officers had shot the prisoners in self-defense during an escape attempt. Soldiers threatened witnesses who might contradict their story and engaged in significant press censorship, criminalizing the publication of any alternative to the government’s version of events until after Argentina’s return to democracy in 1973.

“Maybe there was some crucial evidence that was missing and did not allow the plaintiffs to sue before October of 2020. But the district court’s order is devoid of factual support for a finding that the end of the criminal trial in Argentina is the point from which the statute of limitations should begin to run,” wrote the Barack Obama appointee.

He also noted the potential importance of the extradition request for Bravo filed by the Argentine government in the Southern District of Florida in March of 2010. This suggests that at least some of the evidence against Bravo that was unearthed during the investigation was presumably made available on public docket, Jordan added.

Bravo might not ever be tried in Argentina as the Southern District Court of Florida rejected a 2010 extradition request and another brought in 2023. He was sent to the U.S. as military attaché to the Argentine embassy in 1973 and since became a citizen.

The 11th Circuit’s ruling remands the case back to the lower court for additional fact-finding and consideration of equitable tolling. If the court determines the statute of limitations should not be extended until at least October 2010 or later, it should address the plaintiffs’ argument that the criminal prosecution in this case is an analog for a domestic truth and accountability proceeding, the judges wrote.

“If meritorious, that argument might toll the statute of limitations so as to render the plaintiffs’ claims timely. We express no view on that matter,” Jordan wrote. He was joined by U.S. Circuit Judge Andrew Brasher, a Donald Trump appointee, and U.S. District Judge Sarah Geraghty, a Joe Biden appointee.

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