Controversy arose yesterday after the Supreme Court applied, in a split decision, the so-called “two for one” procedural benefit in a case investigating crimes against humanity. The benefit indicates that the time inmates spend in preemptive detention without a firm ruling will be calculated at a factor of two as part of their total conviction time, starting at the beginning of the second year of their imprisonment.
Even though the law had been abolished in 2001, the Court decided to apply it anyway, basing its argument on the “most benign law” principle which, as it name indicates, grants that the courts will always use the most beneficial law for the accused at the time of judging its conviction. The ruling could benefit about 750 former military members who are currently on trial for having committed crimes against humanity but haven’t been formally convicted.
Due to the extremely sensitive subject it touches, the sentence immediately caused shock waves through the political spectrum and prompted heated condemnation from most of its ends, government officials included. In fact, the ruling barely made it through the Court itself, as three of the five justices voted against granting the two for one benefit.
Those who voted against it — Court President Ricardo Lorenzetti and Juan Carlos Maqueda — argued that the benefit doesn’t apply in crimes against humanity cases: “the principle [of the most benign law] is constitutional and requires an evaluation about whether the posterior law [the two for one] is the expression of a change in the consideration of the crime. This has not happened,” argued the justices in a joint vote. Justices Horacio Rosatti, Carlos Rosenkrantz and Elena Highton de Nolasco voted in favor of the ruling.
Human rights leaders and most politicians and government officials who weighed in on the subject were less technical at the time of expressing their disapproval of the decision. They focused on the moral aspect and the message the decision sends, considering also that these type of crimes do not enjoy the same benefits as ones we could call “common.” For example, they are not reached by the statute of limitations. The only high ranking member of the government who didn’t criticize the measure — or the law — was Human Rights Secretary Claudio Avruj.
Grandmothers of Plaza de Mayo Estela de Carlotto spearheaded the criticism, which she tied to a political move by the Mauricio Macri administration: “they are destroying us, this administration. Not only on the economic front, but the moral one as well and the civic conscience that we have gotten in the last time,” she said yesterday in a radio interview.
Mothers of Plaza de Mayo founding line leader, Nora Cortiñas, echoed Carlotto’s thoughts, calling the ruling “terrible.” She argued that human rights are “not negotiable” and assured that there’s an intention to go after these kind of organisations: “it seems like they want to deal us a blow every day,” she said.
Nobel peace prize Adolfo Pérez Esquivel said the ruling is “political” and that the benefit shouldn’t apply “because that’s a principle for common crimes and there’s a difference between them and the ones against humanity.” Following the same lines, former President Cristina Fernández de Kirchner said in a series of tweets that “Argentina went back 20 years in time” and that “a ruling like that wouldn’t have happened during her administration.”
Por si faltaba algo, hace unos instantes, como en el Juego de la Oca, la Argentina retrocedió 20 años en materia de Derechos Humanos…
— Cristina Kirchner (@CFKArgentina) May 3, 2017
Este Fallo no se hubiera dado en el Gobierno anterior… pic.twitter.com/EVbsyzVEGY
— Cristina Kirchner (@CFKArgentina) May 3, 2017
The official in charge of transmitting the government’s official stance was Justice Minister Germán Garavano. Even though he was careful to stick to the official policy of not weighing in on the ruling itself — leaving the judiciary to be independent, respecting the separation powers — he didn’t refrain at the time of giving his opinion about the benefit.
“In my role as Justice Minister, I make sure Supreme Court rulings are respected, I don’t criticize nor praise them. Regardless of that, and knowing that I had previously [before being Minister] gave my opinion about this law, I again point out that I think that in this case, as well as others, this law was one of the worst things that has ever been done in criminal policy in our country,” he said. Human Rights Secretary Avruj, however, refrained from weighing in on the law itself and said that if the ruling goes in accordance to the law, he will support it.
The law was passed in 1994, during former President Carlos Menem’s first term, in an attempt to decrease the number of people who were in prison without a firm ruling. It was derogated during the Fernando de La Rúa administration and subsequently replaced by a new article, which abolished the benefit for the accused who had been indicted. Instead, they were enabled to request be released two years since they were put behind bars without a firm sentence.