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Milagro Sala Has Been Convicted, But Remains in Pre-Trial Arrest Since 2016 Without a Firm Sentence

In Argentina, offenders are not formally guilty until all appeals are dismissed.

By | [email protected] | January 17, 2019 12:06pm

16-01-2019_jujuy_la_dirigente_social_milagroPhoto via Télam
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On January 14, controversial social leader Milagro Sala was sentenced to 13 years in prison by a lower court, which found her guilty of leading an unlawful association and defrauding the state for AR $60 million by embezzling funds that should have been used for social housing projects. She was also prevented from holding public office for the same time period.

“It is so easy to accuse this black person, it is so easy to lie. But finish this circus once and for all, end the harassment from the judiciary and some sectors of the press,” Sala said before the reading of the sentence.

Despite this ruling, the controversy surrounding Sala’s delicate legal situation, given its political component, still very much exists.

Sala has been in pre-trial arrest for exactly three years now, and the circumstances of her arrest, as well as the arguments used to keep her behind bars, have been heavily criticized by her political allies who argue she is a political prisoner.

“Another step in the brutal persecution Milagro Sala suffers, with a sentence tailored to the demands of [President Mauricio] Macri and [Jujuy Governor] Gerardo Morales. #ArgentinaWithoutRuleOfLaw,” reads the tweet by former President Cristina Fernández de Kirchner, with whom Sala is closely allied.

Her detractors, led by Cambiemos Governor and long-time political rival Gerardo Morales, assure in contrast that the judiciary’s decision contributes to fight against corruption in the province. “The ruling marks a turning point in the attempt to reestablish peace in Jujuy,” said Governor Morales on Tuesday.

Sala’s case illustrates the controversial use of pre-trial arrest in Argentina. First, because she was initially imprisoned for “instigating criminal activity and social unrest” while leading a protest against Morales in Jujuy; even though she was cleared from those charges, a judge ordered she remain behind bars during the course of the fraud investigation.

Second, because regardless of whether she effectively committed the crimes, Sala is not legally considered guilty yet, as she still has the possibility to appeal the ruling to up to three higher courts. Only if the court that holds the last word determines that she is guilty, or decides to not take on the case and upholds the decision of its lower counterpart, will Sala have to serve her sentence.

In an interview with El Destape radio, Sala’s lawyer Elizabeth Gomez Alcorta said that “we will even appeal to the Supreme Court, and, if necessary, take the case to inter-american courts.”

Sala had already been convicted in another case, in which she was found guilty of instigating a violent protest against then-Senator Morales in 2009. However, she did not have to serve time because she was given a three-year suspended prison sentence and in Argentina, offenders don’t have to go to prison if their sentence is equal to or less than three years.

In the meantime, however, she remains imprisoned because the Jujuy court considers she poses a danger to the investigation, thinking she could a) tamper with it through, for example, threatening witnesses or b) flee from justice.

The pre-trial arrest has been heavily criticized  by several human rights organizations — the OAS’s Inter-American Commission on Human Rights and the UN’s working group on arbitrary detention among them — spoke up to claim that Sala’s detention was “explicitly arbitrary” and requested that she be freed.

Moreover, at the end of last year, the government changed its position regarding pre-trial arrest, with several officials – who had before been in favor of it – criticizing its widespread use, and asking that instead courts move faster to issue sentences. In fact, during the last part of the year, several former Kirchnerite officials who were in pre-trial arrest, former Vice President Amado Boudou among them, were released from prison while the cases against them continue.

But even though Morales is one of the government’s main allies, this judicial squabble is taking place in Jujuy, a territory that during the better part of the 21st century has been a battleground between Morales and Sala. The two highest-profile figures in the province constantly accuse each other of co-opting democratic institutions to use them as tools to implement patronage systems and perpetuate themselves in power.

Photo via Télam

In an interview with Página 12, Sala accused Morales of influencing the tribunal’s decision:”I knew that Gerardo Morales met with judges and prosecutors during the weekend to continue with his plan, which has me in prison since 2016. It is the only way this criminal has to stay in power. He does all this because he is afraid, because he does not want me to compete for the governorship and beat him,” she said.

Beyond the outcome of a hypothetical election between Sala and Morales, both this sentence and a new anniversary of her imprisonment are yet another reminder of how politics and the judiciary are intertwined, and how the credibility of practically all decisions made in cases relevant to the political landscape are tainted as a result.