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May 29, 2017
Friday, May 12, 2017

Once more, a country says: Nunca más

A member of the Mothers of Plaza de Mayo human rights group sits seated as demonstrators in masks, representing those who disappeared during the last military dictatorship, pose before the doors of a court in Mar del Plata.
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By Herald Staff

Ten days ago, the Supreme Court ruled that the so-called “2x1” law could apply to those convicted of crimes against humanity committed under the military dictatorship, prompting repressors who qualified to seek their freedom. The decision sparked outrage, condemnation and fired up human rights activists, bringing hundreds of thousands to the streets in a call to end impunity. With the pressure on, lawmakers stepped in, uniting to close the loophole for the abusers and setting a new landmark in the country’s human rights history.

The message was loud and clear. As the television cameras, press photographers and mobile phones captured the sea of white headscarves, held up by the hundreds of thousands of people who had gathered in the Plaza de Mayo, the messages could be seen on each and every placard and heard from every set of lips. Never again. No freedom for the perpetrators of genocide. Nunca más.

The protest, a mass mobilisation of citizens delivering a rallying cry from a nation, had been planned as a rejection of the Supreme Court’s controversial “2x1” ruling just over a week before, a split 3-2 decision which had opened the door to freedom for criminals responsible for the deaths of thousands of people and sparked outcry. But for once, the nation’s elected representatives had united, stepping in to close the loophole, just hours before people made their way to centre of the city.

That night, from a stage in front of the Casa Rosada, Estela Barnes de Carlotto, the president of the Grandmothers of the Plaza de Mayo, addressed the crowd, reading from their joint statement, flanked by members of the Mothers of the Plaza de Mayo and fellow human rights organisations.

“The whole society has reacted firmly,” she said. “Numerous judges rejected the requests for a reduction of sentences and the freeing of human rights abusers. Today, lawmakers approved a measure that seeks to put a break on this law that favours genocide and repressors. These decisions fill us with gratitude and hope.”

“We have shown, once again, that we do not want perpetrators of genocide, rapists and murderers to walk by our side,” cried Taty Almeida, another veteran activist and figurehead of Argentina’s human rights movement.

Moments later, as those headscarves were held up in an image that would travel across the world, it became clear that this was not just a protest, not just a rejection of impunity and the era of state terrorism. It was also a reiteration. A reiteration of the country’s commitment to memory, truth and justice. It was a fresh page in Argentina’s human rights history.

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Ten days ago, as the justices of the Supreme Court deliberated, the country knew little of the storm that would rage in the coming days. They were addressing an appeal by 61-year-old Luis Muiña — who was serving a 13-year prison for kidnapping and torture — whose legal team had asked for the application of Law 24,390, more commonly known as the ‘2x1’ benefit, to his sentence.

Under that law — passed in November 1994 and repealed in 2001 — after two years, convicted criminals would have every day in pre-trial detentionjail count double, shortening their sentence.

Eventually, in a 3-2 majority ruling, the nation’s highest tribunal ruled in favour. The court had decided the ‘2x1’ was applicable to cases involving crimes against humanity, creating a precedent that others convicted of such violations under the last military dictatorship will seek to take advantage of. Muiña’s time served in prison before his conviction would count double.

There was an immediate uproar. The majority votes of Justices Elena Highton de Nolasco, Carlos Rosenkrantz and Horacio Rosatti confounded human rights advocates across the country and most of the public. Many were stunned as to how could these justices apply a law that had been overturned in 2001.

“The best response that a society respectful of the law can give to the committee of crimes against humanity ... is by the strict fulfillment of the law and the principles characterised in the state of law,” stated Highton and Rosenkrantz in the written opinion explaining why they voted in favour of the ruling.

Although the law, was no longer valid after 2001, the justices stated that criminals convicted of crimes against humanity during the last military dictatorship were the exception. The legal argument was based on the type of crimes they committed: forced-disappearances. Under Argentine law, a suspect convicted of kidnapping a person is continually committing that crime until the missing person is discovered. Since the victims have never been found, those who committed those crimes were permitted to benefit because, by law, a defendant must be awarded the most benign penalty that exists at the time of the crime.

While Justice Rosatti recognised the moral dilemma behind the reasoning, he hinted that it was the lawmaker’s duty to make those modifications.

On the other hand, Justices Ricardo Lorenzetti and Juan Carlos Maqueda, both appointed by previous administrations, dissented, stating that Law 25,430 — which had replaced the 2x1 law in 2001 — should override their arguments as a crime is permanent.

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Human rights activists were the first to express their disgust with the ruling. Politicians followed as did a large part of the public. Several opinion polls appeared in the media, showing that an overwhelming majority of the Argentine people disapproved of the Supreme Court’s ruling. The Analogías polling consultancy estimated that 85.7 percent of Buenos Aires province’s population disagreed with the Supreme Court’s ruling, with 60 percent of the population saying they had “an unfavourable opinion” of the court. Only 10 percent said agreed with ruling. (This survey was based on a questionnaire of 3,000 people in Buenos Aires province.)

Another survey conducted by the CIGP polling company offered more extreme versions. It estimated that 88 percent of the country disapproved of the ruling, while 64 percent said they believed that the court hadn’t made an independent decision. Pressure was building.

Before those polls were published, the reaction of the government had been closely watched. President Mauricio Macri’s administration, for many, had not offered a clear response and many — especially those in opposition to the Let’s Change administration were critical of the government.

The pressure to offer a quick response would initially prompt missteps. “I comply with what the Supreme Court said over the 2x1 ... we need to be respectful with the court’s ruling, because the law is over all of us,” offered Human Rights Secretary Claudio Avruj, just hours after the ruling. He was immediately criticised by most human rights advocates. Although Avruj would later change his position, saying what he had said was a mistake, prominent activists and politicians began campaigning for his resignation.

However, the tone of the Let’s Change administration began to change the next day when Justice Minister Germán Garavano spoke out with harsh words against the nation’s highest court’s decision.

“The 2x1 ruling doesn’t seem good to me in any scenario,” said Garavano, though he said he was against the principle of the 2x1 benefit for calculating all sentences, not just those convicted of human rights violations.

Following the same line, Cabinet Chief Marcos Peña said that he rejected the ruling. “The 2x1 is a symbol of impunity in general because it is a mechanism that benefits the most complicated criminals,” said Peña.

Provisional Senate President Federico Pinedo took one of the strongest stances, calling the ruling a backward step and promised to introduce legislation to block it.

The anger of rights activists continued to rage and many accused sectors of complicity. During the same week that the ruling was made, the Argentine Synod was holding a series of meetings centred around “reconciliation” between the military and its victims from the last dictatorship. Many politicians and human rights activists claimed that there was a plot between the government, the Catholic Church, and the Judiciary. Yet to the surprise of some, several high-ranking bishops began to criticise the Supreme Court too.

“A ruling with these characteristics doesn’t help us travel on the path to justice. It’s far from helping, it reopens wounds, disturbs and angers,” said Bishop Jorge Lozano.

The newly appointed Military-Chaplain General Santiago Olivera said he was against the ruling. “Sometimes it’s believed that in the word reconciliation impunity is meant and to leave behind those horrendous crimes committed, but it is not like that, true reconciliation only works if you obtain justice, with reparations and with truth,” he stated.

The consensus was clear, forming in almost all sectors of society. It would act as the driving-force, leading the way for Congress and the legislative wheels of action began to turn quicker.

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In the immediate aftermath of the ruling, with the outrage of human rights activists still reverberating, the first requests for leniency began to file in. They were matched by legal challenges from prosecutors and ultimately, the courts were tasked with analysing those requests.

The first to request his release was Víctor Gallo, a repressor condemned to a 15-year prison sentence in 2012 for the systematic appropriation of babies, which was later unified with other cases, in 2016, into a single sentence of 25 years. Gallo’s defence team, which had previously sought to take advantage of the 2x1, seized upon the opportunity to refresh his request before the judges. Prosecutor Ángeles Ramos responded to the request, urging the judges to reject the motion and to declare the 2x1 article “unconstitutional.”

“The judicial effect caused by the application of ‘Bignone-Muiña’ precedent of the Supreme Court completely denaturalises the impact of the punitive response to proven crimes,” he declared to the courts, warning application of the rule would impact “victims and society in its entirety” with “irreparable effects.”

Similar requests from repressors — Héctor Salvador Girbone, Claudio Vallejos, Miguel Etchecolatz, Christian Von Wernich, among others — sprang up in the following days.

They were met with immediate rejections from prosecutors, and the courts alike. A federal court in Mendoza declared the 2x1 formula unconstitutional, and another court in Tucumán said that applying that formula would constitute “an amnesty and (put) a limit to the sentence camouflaged with fallacious arguments of due process guarantees.

“This cannot be so, because it is unconstitutional and non-conventional, that is, it undermines the entire legal order,” the court declared.

A trend set in the courts, they were rejecting the 2x1 ruling. Many noted that Supreme Court jurisprudence can be set aside when the specific details of the case at hand differ.

As such yesterday — a week after Gallo’s lawyers made the first request — the repressor’s prison sentence was maintained as is and the 2x1 reasoning was rejected out of hand.

The Grandmothers of the Plaza de Mayo celebrated the decision, yet cautioned they would remain vigilant about a separate appeal for a previous release request that is currently before a Cassation Court.

In another sign of the rebellion within the Judiciary, a criminal complaint filed by lawyer and former City legislator Marcelo Parrilli against Supreme Court Justices Elena Highton de Nolasco, Carlos Rosenkrantz and Horacio Rosatti for “perverting the course of justice” while the Muiña ruling was greenlighted by Prosecutor Guillermo Marijuán. That accusation, that the justices knowingly and intentionally ruled in such a way that clashed with the existing legal norms, is now being studied by Federal Judge Daniel Rafecas.

“This is a very delicate situation from an institutional point of view,” said Rafecas, pointing to how infrequent the accusation tends to be. It was a strange situation to be in, he added, investigating members of the country’s highest court for one of their rulings.

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Once the shock of the Muiña ruling had settled somewhat, voices across the political spectrum announced their intention to find a legislative solution to the crisis. In their opinions, Justices Rosatti, Rosenkrantz and Highton de Nolasco hinted that they could not act as legislators and give additional meaning to the underlying law.

Congress responded, by its usual standards, with lightning speed considering its habitually snail-placed approach to seeking resolution. A Tuesday session in the Lower House provided the ideal opportunity for the multiple drafts making the rounds to come together into a single version that reached near-unanimous approval later that night.

Versions put forward by Victoria Donda (Libres del Sur), Alicia Ciciliani (Socialists), the Workers’ Leftist Front (FIT), Juan Cabandié and Remo Carlotto in the Victory Front (FpV), Daniel Lipovetzky and Pablo Tonelli (PRO) were discussed and merged into a single draft. Broadly, the law makes it clear that the 2x1 formula cannot be applied to those convicted of crimes against humanity, genocide or war crimes and that it cannot only be applied to those who were in custody between 1994 and 2001, when the original law was in effect. Lastly, the bill made it clear that it applied to cases in process.

“The génocidares cannot be forgiven! We will not allow a wall of impunity to be lifted in our country once again,” proclaimed Donda — the daughter of a disappeared couple, who was appropriated and raised by a repressor —on the floor of the Lower House as the legislation was introduced. “Many of us relive the horror every time we close our eyes on March 24 as we recall the process that took from us the power to live our lives.”

Carlotto, a son of Estela de Carlotto, said that “when we speak of making prison time effective, we speak of them serving the totality of the sentence.” He noted that the bill would mean “criminals such as (Alfredo) Astiz, (Miguel) Etchecolatz, (Christian) Von Wernich and infamous characters like Luciano Benjamín Menéndez can go free.”

Cabandié, also a recovered grandchild went further, suggesting the government had laid the conditions for such a ruling and pushed for impeachment proceedings to be opened against the three justices who approved the ruling. After hours of often emotional debates, finally the vote arrived. The Lower House approved the draft with 212 votes in favour, one against, no abstentions and 43 absences. Only lawmaker Alfredo Olmedo cast the sole negative vote.

The next morning the bill was swiftly approved by the Senate, unanimously, with 56 votes in favour. Senators echoed their colleagues in the Lower House in their arguments, but many cited the justices on the Supreme Court in particular (the Senate has the power to confirm nominees to the country’s highest court).

In particular, FpV caucus chair Senator Miguel Pichetto said that the Supreme Court had been “devalued” by the ruling. “If the justices do not comply with the Constitution we are irrevocably lost. If the Constitution says 75, it’s 75,” he said, a reference to Justice Highton de Nolasco’s successful bid to remain on the court after passing the age of retirement. The government declined to litigate against that effort.

The Senate’s approval, only hours before the start of the massive demonstration at the Plaza de Mayo, was timely. It now remains to be seen what steps, if any, are taken against the justices themselves.

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For now, the government awaits to what the fall-out of its reaction to the ruling will be. While the initiative in Congress was supported by the Let’s Change (Cambiemos) coalition, members such as lawmaker Tonelli said he felt the ruling was legally defensible. That point of view coincided to an extent with the government’s initial reaction, which was kicked off by Human Rights Secretary Avruj who said that he would respect it, if lawful.

President Mauricio Macri, as the nation{s head of state, faced criticism as he remained silent. But on the morning of the Plaza de Mayo demonstration, he finally spoke. “I congratulate Congress on the speed with which it was begun to resolve the issue of legal vacuum that this unfortunate 2x1 law had allowed, a law that I have always been against because I am against any tool that favours impunity, more so when that tool is to be applied to crimes against humanity,” he said.

The PRO leader was not finished, however. He attacked the Kirchner administrations, criticising the saying “political leaders that have had leading roles in the last few years in Congress, in the Executive, in the various governments that came before us, and who did nothing when this law was approved, led by (Raúl) Zaffaroni.

“This law was approved with the consensus of many of whom we hear today are very angry about the 2x1.”

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On Wednesday, traffic in the city centre became thicker as roads were closed off. Though the protest had been widely publicised by human rights organisations and spread through social networks, it remained unclear how well attended it would be, especially in light of the legislative action earlier in the day.

The City government’s transport account on Twitter attempted to warn residents of which streets would be blocked: “Today, from 4pm, total block on traffic due to the demonstration from Avenida 9 de Julio to Plaza de Mayo and the Obelisk. Avoid the area,” it added in a somewhat unfortunate turn of phrase.

But as late afternoon approached and the subway lines, buses and streets began to fill, it became clear that the people would do anything but that. Soon, the area was flooded with people who were prepared to answer the call of the human rights organisations. And their message was heard loud and clear.

 

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