The leader of the Civic Coalition-ARI, Elisa Carrió, through deputies from her bloc, proposed this Tuesday
to change the law and order Justice to make automatic house arrest for soldiers convicted of crimes against humanity over 75 years of age and release those who have been imprisoned for more than 5 years.
Carrió, who wrote the law that annulled the Punto Final and Due Obedience laws of former President Raúl Alfonsín and defended Human Rights, told Clarín
that
it is against “humanism and the Constitution” that
there are more than 150 people over 70 years of age in prison. for crimes against humanity,
despite what the law and the Inter-American Convention on older persons in prison indicate.
He presented it, through deputy
Marcela Campagnoli
, in line with the position of Vice President Victoria Villarruel and the Minister of Security, Patricia Bullrich, among others.
The former member of the National Commission on the Disappearance of Persons (CONADEP), Graciela Fernández Meijide also spoke out in this regard.
Before last year's election, Carrió had invited Villarruel to speak at Hanna Arendt's institute in his capacity as the Center for Legal Studies on Terrorism and its Victims.
Last week, the Federal Court of Criminal Cassation rejected as inadmissible a challenge from the lawyers of a repressor (Diego Chemes), but
did not rule on whether it is unconstitutional to keep military personnel convicted of crimes against humanity over the age of 70 in prison or whether Argentina complies with an Inter-American convention.
A judicial source clarified that the highest criminal court in the country "did not rule on the merits in that Friday ruling," that is, whether subsection "d" of article 32 of law 24660 allows the judge to order the house arrest of the over 70 years old.
Although Carrió speaks of 75 years.
Carrió's project points to that law that Villarruel wants to modify,
who on Sunday at the march for Remembrance Day was repeatedly threatened with death on social networks.
The first article of the law proposes to modify articles 10 of the National Penal Code and 32 of Law 24,660, which will be worded as follows:
“The competent judge must grant the request to comply with
the sentence of confinement or prison under the domiciliary modality, including those in which crimes against humanity are investigated
, when any of the following cases occur,” it states.
The assumptions are those that already exist, such as incurable diseases.
But in Carrió it benefits
prisoners over (75) years of age:
However, “the benefits established in inc.
d)
will not be applicable to persons directly responsible for crimes of humiliation, imposition of torture, sexual abuse of a minor, seriously outrageous sexual abuse, corruption of minors, forced disappearance of people, terrorism, crimes against public powers and the constitutional order. , human trafficking
, unless any of the assumptions in subsections a, b and/oc are also configured.”
On the other hand, Carrió's project modifies “article 3 of law 24,390, regulating article 7, point 5, of the American Convention on Human Rights and integrates the National Criminal Procedure Code.
This article will be worded as follows:
the prosecutor “may oppose the release
of the accused due to the special seriousness of the crime attributed to him, or when he understands that any of the circumstances provided for in article 319 of the Code of Criminal Procedure of the Nation or in articles 221 and 222 of the Federal Criminal Procedure Code;
as well as if there had been manifestly dilatory articulations on the part of the defense.”
In another vein, the proposal indicates that “no person may be held in preventive detention for a period of more than five years.
This limitation also applies to crimes against humanity
.
In the foundations of the project, it is said that it seeks to “make the modality of house arrest mandatory for specific cases that are stated there, all based
on respect for the dignity of the human person, which emanates from the current constitutional principles, and of the basic standard of international norms that integrate principles of public order
.”
“It is about reconciling compliance with an effective prison sentence, such as that provided for in the penal codes for serious crimes, with elementary legal principles that
primarily address the human person and their essential rights
, whose recognition in the international sphere, and in our own internal law it emanates from human dignity, not as an ethical or philosophical concept, but as a legal and imperative statement,” he added.
On the other hand, "the imposition of
preventive detentions used indiscriminately
, and as an advancement of sentences, in a judicial system that allows the indefinite delay of processes with written recursive approaches, as well as the reluctance of national courts to comply with what regulated in art.
10 of the Penal Code for the cases of people who are suffering from illnesses or are of advanced age, requires us to adopt timely and necessary legislative measures, with humanitarian criteria.
On the other hand, “article 18 of our National Constitution prohibits the possibility of prison being imposed as punishment, since its purpose is resocialization.
For this reason, the Judges have said on certain occasions, even supporting house arrest for short effective sentences.
While "starting from that assumption, and in
my capacity as a humanist above all things, I cannot deny the same rights to some people by virtue of the crime committed
- no matter how serious it was -, as this would affect the right to the equality of all persons deprived of liberty who meet the same conditions.
In that sense we clarify that the provisions of art.
10 also apply to perpetrators of crimes against humanity.”
"In my vast political history I have stated on repeated occasions that State terrorism, and its instigators, authors, and participants should be accused before a court of Justice, and condemned with all the rigor of the criminal law. Those who became executioners of other human beings, under the protection and orders of state officials, had to be individualized, tried and condemned," Campagnoli wrote in his project.
The Final Point Law was promulgated on December 24, 1986 by then-president Raúl Alfonsín, and established the suspension of judicial proceedings against those accused of being criminally responsible for having committed the crime of forced disappearance of people during the dictatorship.
The Law of Due Obedience (23,521) also issued by Alfonsín on June 4, 1987, and established a presumption in favor of chief officers, junior officers, non-commissioned officers and troop personnel of the armed, security, police and penitentiary forces, about the fact that they would have acted by virtue of due obedience, for which they did not deserve punishment.
The only crimes exempt from this presumption were
the crimes of rape, abduction and concealment of minors or substitution of their marital status and extortionate appropriation of real estate
.
In addition to this, and for higher positions, a peremptory period of (30) days was determined, beyond which, equal impunity was guaranteed for these atrocious crimes.
After a slow process, and the exercise of democratic institutions was fully restored, "-without ignoring the enormous effort involved in the Trial of the Military Juntas- this Congress declared Laws 23,492 and 23,521 insanely null, through the law the sanction of law 25,779".
This was the law that Carrió promoted when he was a deputy.
Concomitantly, the Supreme Court of Justice of the Nation ruled on June 14, 2005, in proceedings “Simón, Julio Héctor and others regarding illegitimate deprivation of liberty, etc.
case No. 17,768C.
that the laws of full stop and due obedience - laws 23,492 and 23,521 - were invalid and unconstitutional, ruling on the validity of the norm that declared them null.
In short, in the aforementioned precedent “Simón”, the Court recalled that the scope of the report prepared by the Inter-American Commission required the investigation and condemnation of the facts;
which is beyond any doubt, and has been carried out based on the judicial processes carried out.
Campagnoli then warned that the delay in these processes “made the majority of those accused of crimes against humanity face extended periods of detention without having a final sentence that would provide certainty and nullify the state of innocence.”
So far in the long period, “
197 defendants have died,
of which only 12 had a final sentence.
Which implies a failure that concerns us all as a society.
The current photo has improved, but even so, the situation persists and today, of the 151 convicted, only 43 have a final sentence.”
“Today, according to the most updated information that was given to me, in the Penitentiary Service there are 13 detainees over seventy-five years old, and in the Campo de Mayo facilities, there are 9 detainees of that same age range.
As of August 2018, from the Army alone, 8 people over 80 years old and 3 people over 90 were detained, with a 97-year-old detainee in Ezeiza,” he recalled.
"It has happened in recent years that, faced with the seriousness of the acts committed by the last Military Dictatorship, the courts have been reluctant to recognize constitutional rights, depriving those accused in these processes of minimum guarantees, and in some cases , even ignoring medical or health issues," he added.
The Universal Declaration of Human Rights "is part of the Ius Cogens, or international public order; this implies that it is a legal maxim that admits no exception," concluded Campagnoli.