Twenty years ago in a U.S. court, Dolly Filartiga successfully sued the man she believes is responsible for the murder of her 17-year-old brother in Paraguay. Now, the little-known law that allowed her to do this is in peril, and she's raising her voice again.
Dolly Filartiga says she will show the size of the room where she found her brother. She paces it off. A small room. She will show the size of the hallway where the soldiers and police stood. The hallway is long.
Dressed in black, Filartiga is in a better mood than her outfit - or her concerns - might suggest.
She is not preoccupied, but amiable and open. That is what people say about her. That she has not let the past defeat her. She carries her pain, holds fiercely to her memories, but she does not retreat. Sadness, sometimes. Surrender, never.
"It's good to remember," says Filartiga, 48, who lives in Forest Hills. "It's hard to remember. I don't know if you can understand."
In 1976, Filartiga says, her brother, Joelito, 17, was tortured and killed in Asuncion, Paraguay - a crime, she says, intended to punish her father for being a champion of the poor and defying the entrenched authoritarian president, Alfredo Stroessner.
She was called to fetch the body. "This is what you deserve," said the police inspector she believes responsible for Joelito's death.
That was not the end, but the beginning.
Other families might have withdrawn in terror. The Filartigas fought back.
Dr. Joel Filartiga, a physician and artist renowned in international human rights circles, his wife, Nidia, and their surviving children - Dolly, Analy and Katia, daughters named for characters in the Tolstoy novel, "Anna Karenina" - denounced the regime.
They rebuked Stroessner. They cried out for justice and gained enough notice to become subjects of an HBO movie, "One Man's War," with Anthony Hopkins as Dr. Filartiga, and a forthcoming book by American author Richard Alan White.
The family named the police inspector, Américo Peña-Irala, as the killer, and, finally, in unexpected fashion, got a measure of relief - not in Paraguay, but in the United States.
"I was able to sue him," said Dolly Filartiga during a recent conversation in the office of Riptide Communications, a Manhattan public relations firm specializing in human rights and social justice issues. "That's unbelievable, isn't it?"
Using a little-known federal statute that allows non-citizens to bring civil suit for violations of international law, Dolly Filartiga won a judgment in 1984 of more than $10.36 million.
Pena-Irala, who was served court papers while in the United States as an undocumented alien, returned to Paraguay and never paid the damages - common in such cases, according to Jennie Green, an attorney for the nonprofit Center for Constitutional Rights in Manhattan.
But, said Green, while the money is important, so is "holding the perpetrator accountable" and allowing victims a sense of vindication.
Dolly Filartiga is a good example. The judgment against Pena-Irala means right can prevail, she says. "My brother did not die in vain."
Filartiga is telling the story of Joelito again because the U.S. law that made it possible for her to pursue Peña-Irala - a 1789 measure often called the Alien Tort Claims Act - is being challenged in the U.S. Supreme Court. She says it is vital that Americans know how valuable the statute - used successfully 18 times since her case - remains for those with no other recourse.
"I think it's very important," she says. "Human rights has to be one of the first things on this earth we think about."
The case will be argued tomorrow. Filartiga sees meaning in the date. It is the 28th anniversary of her brother's death.
Thinking of Joelito's suffering, of the raw, red marks on his body, of the welts and bruises, of the wire inserted in his penis for electric shocks, of his age and his decency, Filartiga covers her face and weeps, but briefly. She steadies herself. "That is why we have to fight for this law," says Filartiga, who is scheduled to voice her support of the tort claims act at a Washington press conference today.
On one side is the Department of Justice and a private attorney representing a Mexican policeman, Jose Francisco Sosa.
In 1990, the officer, cooperating with U.S. authorities, helped kidnap a physician accused of participating in the torture-killing of an American drug agent. The doctor, Humberto Alvarez-Machain, was secretly flown out of Mexico to stand trial in the United States.
Maintaining his innocence from the outset, Alvarez-Machain was acquitted in 1992. He returned to Mexico and used the tort claims act to sue Sosa for $25,000 in damages.
Government lawyers and Sosa's Washington-based attorney, Carter Phillips, argue that the law was not intended to settle human rights claims for offenses in other countries. Applying the law - originally intended to help piracy victims recover losses - in such fashion, said Phillips, is "just a misinterpretation of the statute." U.S. attorneys also say the law could hamper security efforts if nations cooperating in the war on terror felt American courts were meddling in internal affairs.
"Dolly's case established the idea that the Alien Tort Claims Act could be used to remedy very serious human rights violations," said Paul Hoffman, a Los Angeles attorney representing Alvarez-Machain. Hoffman, a board member of the ACLU Foundation of Southern California, said defeat of the statute - which has withstood challenges in lower courts - would snuff a "beacon of hope" for rights advocates around the world.
Whatever the high court decides, Dolly Filartiga says, she cherishes her victory in the Peña-Irala case. It is her only consolation. No one else has held the former official accountable for what he did to Joelito 28 years ago, she says.
On a bright day in New York, far from the land of her family's sorrow, Dolly Filartiga - now an American, with a husband, Diego, and an 11-year-old daughter, Paloma, and a decent life in a safe place - sat at a table and remembered Paraguay and her brother and his suffering.
It started, she said, early in the morning, before light. There was a knock on the door of the family home in Barrio Sajonia, a pleasant neighborhood in the Paraguayan capital, Asuncion. Dolly's parents were at a clinic run by Dr. Filartiga in the countryside. The knocking continued. At this hour? What could it be?
Two men in uniform said she must come quickly to the home of the police inspector, Pena-Irala, who lived a couple of doors away. There has been a "little problem" with your brother, Filartiga was told. She is quite sure of the words - a "little problem."
There were many people at the house of the inspector - police, military, a coroner. Filartiga was led to a small bedroom. Joelito was on a mattress, naked except for underwear and socks. She was afraid to touch him but knew she must. "I didn't want to," she said. "Oh, God."
Joelito did not move. His upper body was a sight - many wounds. He had been beaten and burned. His teeth had been knocked loose. There were many stab marks. Dolly Filartiga counted 17. "A beautiful person," is how she described her brother, a gentle, respectful young fellow who dreamed of becoming an architect. But innocence proved no shield in Stroessner's Paraguay, said Dolly Filartiga.
"I saw the body of my brother," she said. "I went to wake him up. He would not wake up."
Filartiga was frantic. She cried and Pena-Irala told her: "'Shut up. Get the body out of here, and make no trouble. It will happen to you,'" Filartiga recalled him saying.
With the help of another person, Filartiga, then 20, dragged Joelito home on the mattress.
Dr. Filartiga returned from the Clinic of Hope in the village of Ybycui, 80 miles away. Filled with grief and rage, he invited everyone to view the body of his son - to show them what had been done. "By thousands they came - thousands," said Dolly Filartiga. "I never saw anything like it."
The family holds Stroessner, deposed in 1989 after 35 years and living in Brazil at the age of 91, responsible for Joelito's death. "Pena-Irala was nothing more than a tool of Stroessner to repress our family," said Dr. Filartiga, 71, in a phone conversation from Asuncion. Through a translator at Riptide Communications, the doctor said Joelito "was a symbol of the many people who suffered ... "
After Joelito was killed, Dolly Filartiga said, the family was told by reliable sources - some within the Stroessner government - that abductors took Joelito first to a local police station and then moved him to Pena-Irala's home. They wanted Joelito to sign a letter saying his father was a communist.
Despite torture, she said, her brother would not lie. So the kidnappers continued - for too long. They were not supposed to kkill Joelito, the family believes, but the men were stupid. They did not know when to stop.
Later, Filartiga said, they made up a story to explain the death of Joelito. Officials said the teenager had been stabbed in Pena-Irala's home by a jealous husband - that Joelito was caught in bed with the daughter of the inspector's common- law wife. It was a heartbreaking lie, said Dolly Filartiga.
Pena-Irala took no blame for the killing of Joelito and still claims innocence. Reached by phone at his home in Asuncion, the former police official dismissed the Filartiga account as "propaganda" and suggested a reporter pay a fee to hear his version. Otherwise, Pena-Irala said, he was not interested in talking. As for the lawsuit and $10 million judgment, he said: "I don't give a damn about that, you understand me?" Then he hung up.
The Filartiga family said it not only had to live with Joelito's death but with the scandalous official story manufactured by the government. Sometimes, the anguish was unbearable.
Shortly after Joelito's death, Richard White, a writer and student of Paraguayan political affairs, visited the Filartigas. He found the family in despair and Dr. Filartiga inconsolable. "He was homicidal, suicidal," said White, whose book, "Breaking Silence: The Case that Changed the Face of Human Rights," will be published this summer by Georgetown University Press. "He wrote on Pena- Irala's window, in soap: 'Viva Joelito!'"
Finally, in spring, 1978, the grief-stricken family got a break.
A letter intended for the Pena-Irala household - the police inspector had dropped out of sight the year after the killing - was delivered to the Filartiga home, instead. The family steamed open the envelope. Inside was Pena-Irala's address. The killer was not in Paraguay, Filartiga said. He was in Brooklyn.
Dr. Filartiga was soon to leave for a speaking tour in the United States and Dolly insisted that she go as well. If Pena-Irala was in Brooklyn, she would find him.
"I wanted revenge," she said. "I want to hit him, kill him, punch him, bite him, something." She paused. Yes, she wanted revenge. But she feared her own hatred. "I had that conflict."
Things happened quickly in the United States.
With tips from the Paraguayan community in Brooklyn, Dolly Filartiga located Pena-Irala. On Filartiga's behalf, a young immigration lawyer named Michael Maggio contacted attorneys from the Center for Constitutional Rights, who alerted immigration authorities.
Pena- Irala - then earning money by selling empanadas in Flushing Meadows-Corona Park, according to Filartiga - was taken into custody.
Peter Weiss, a center attorney familiar with the Alien Tort Claims Act - also called the Alien Tort Statute - thought the measure might apply in the Pena-Irala case. Colleagues weren't so sure. "Suing a Paraguayan for something he did in Paraguay to another Paraguayan?" said Weiss. "There were a lot of raised eyebrows."
Time was short: Pena-Irala was scheduled to be deported within hours. In order for the claims act to apply, the defendant had to be in the United States.
"We were really concerned that he would be moved at any minute," recalled Rhonda Copelon, a former center attorney who now heads the International Women's Human Rights Law Clinic at the City University of New York School of Law at Queens College. Barely beating the deadline, Maggio, who was helping Dolly Filartiga apply for political asylum, served Pena- Irala with papers at a detention center at the Brooklyn Navy Yard. "He was quite shocked," said Maggio.
Though Pena-Irala was ultimately sent back to Paraguay a few weeks later, Filartiga and her Center for Constitutional Rights lawyers prevailed in court.
Awarding the family more than $10 million, Eastern District Federal Court Judge Eugene Nickerson, who once served as Nassau County executive, said: "This court must make clear the depth of the international revulsion against torture and measure the award in accordance with the enormity of the offense."
Paraguayan law allows for compensation of victims of human rights abuses, said center attorney Green, and the Filartigas still are pursuing that possibility. If they ever collect, Dolly Filartiga said, the family will establish a foundation in Joelito's name to benefit poor children. Without the money, she said, they will honor his memory - as do the people of Paraguay.
Though it has been nearly three decades since Joelito was killed, Dolly Filartiga said, citizens still lay flowers in his memory at the family mausoleum. There are thank-you notes at the cemetery in Asuncion, too, and so many candles the family sometimes must scrape away the melted wax. "People say that because he suffered so much and was so young that he is a saint," Filartiga said.
Her father said, he, too, thinks constantly of his lost son. "All the time," Dr. Filartiga said on the phone. Just as Joelito endures in memory, the doctor vowed he will endure in life - serving the struggling campesinos so often ignored by those in power.
Lately, Filartiga said, he has been warning about the use of pesticides that place farm workers at risk. He has received anonymous threats. But he will continue. "Until my last breath," the doctor said.
And what of Pena-Irala? Some months ago, Dr. Filartiga spotted the former police inspector in Asuncion, but Pena- Irala did not appear to recognize his old neighbor.
Once swaggering and formidable, Pena-Irala seemed a wasted man - more to be pitied than despised. "I hear he doesn't sleep," Filartiga said.
Copyright © 2004, Newsday, Inc. P.2 March 30, 2004.