Mariela Belski
Mariela Belski is the Director of Human Rights Watch Argentina.

Milagro Sala has been wrongly detained for more than 420 days. The leader of the Tupac Amaru organization was deprived of her freedom on January 16, 2016 as a result of a peaceful demonstration in front of the House of Government in Jujuy, accused, among other crimes, of sedition.

Amnesty International issued an urgent action and filed a complaint before the Working Group on Arbitrary Detention (WGAD) of the United Nations (UN) and the Inter-American Commission on Human Rights (IACHR) of the OAS, for the arbitrary and illegitimate deprivation of a woman’s liberty — a woman who was exercising her right to protest. Several days later, the justice revoked Sala’s detention. However, the Justice system simultaneously accused Sala of more serious offences, such as “extorsion,” “conspiracy” and “fraud to the detriment of the state.”

The United Nations reached consensus that Sala’s detention was “arbitrary” and that there was a scheme of “consecutive accusations” to deprive her of her liberty indefinitely. The UN argued that it violated judicial independence and concluded that no legal elements exist to justify pre-trial detention. In its decision, the WGAD said that the Argentine State failed to show that there was either a potential flight risk or a possible obstruction of justice that required Sala’s detention. In addition, they stated that the state prevented Sala from accessing her right to a proper defense.

Milagro Sala is a controversial figure. There are reports that suggest she is the author behind several crimes, including corruption, threats and attempted murder. However, in the Argentine criminal justice system, presumption alone is not enough to justify pre-trial detention – not for Sala, nor any other person. In its report on the “Use of Pre-Trial Detention in the Americas,” the IACHR reiterated the importance of the presumption of innocence as abasis for the general rule that “any person subject to criminal proceedings must be judged in freedom.” Pre-trial detention is only used in exceptional cases and cannot be used as a punitive measure.

Milagro Sala is a stone in Mauricio Macri’s shoe. On more than one occasion, the Argentine president has been questioned by his peers in respect to this case. Such was the case when he met with fellow leaders such as Justin Trudeau of Canada. In Spain and Italy he had to endure groups of people standing outside of his meeting with posters, asking for freedom of the social leader.

Sala is also a nuisance for the Argentine Government. It is obvious that Sala’s arrest is strongly question by Macri’s opposition. However, it is also question by local human rights organizations, as well as journalists and prestigious leaders that don’t sympathize with Sala’s political party. It is condemned by international human rights organizations, such as Amnesty International and Human Rights Watch, by academics of different political parties, and there are even different viewpoints on the situation within the government. The Sala case is also a difficult problem to resolve because the decision has been left up to the Governor of Jujuy, Gerardo Morales, who belongs to the Radical party that today, together with PRO, forms Cambiemos.

The President could implement, and still can, the decision made by the Working Group on Arbitrary Detention through the Foreign Ministry by ordering the Judiciary of Jujuy to release Milagro Sala. This does not violate the separation of powers. The international responsibility being asked of us by theWorking Group on Arbitrary Detention is against the “Argentine State,” not Jujuy. Before the United Nations, Macri’s federalist argument fades away.

The case is now at the Supreme Court of Justice, where the highest court in the nation will revise two important lower court decisions. In the meantime the Court has requested to the Public Prosecutor its opinion on the merits of the case, and to the province of Jujuy about Sala’s detention conditions.

The political cost to freeing Sala is too high for the government, especially in an election year where its alliance with the Radical party has to be airtight. Now, the only one who can resolve this issue is the Supreme Court of Justice. Who would call into question an order from the most important organ of the judiciary to release a person improperly detained and investigate the evidence for which they were charged, guaranteeing the rules of due process and a trial justly carried forward by an impartial and independent judiciary?