Letter to President Macri on the Sala case

Dear President Macri,

I am writing on behalf of Human Rights Watch to respectfully urge you to take steps to secure the immediate release of Milagro Sala from pretrial detention, in light of the recent decision of the UN working Group on Arbitrary Detention on her case. [1] I would also like to take advantage of this letter to call on your administration, once again, to present a proposal to modify the definition of “sedition” in the Criminal Code so cases such as this one cannot happen again.

As you know, Milagro Sala was detained in January and charged with “sedition” for participating in a peaceful protest in the center of San Salvador de Jujuy, the provincial capital. According to court documents reviewed by Human Rights Watch, Sala was accused of “gesturing and exhorting” others to “camp” and “obstruct” transit, causing “an alteration of public order,” and “collective alarm in the population.” The prosecution did not allege that there was any violence during this protest.[2]

The charges against Sala for participating in a peaceful protest curtail free expression. None of the allegations against Sala, even if true, add up to “sedition” under any legitimate definition of that crime. As I mentioned in an op-ed published on January 28, 2016, and when we met in Buenos Aires in July, the crime of sedition is defined too broadly in the Argentine Criminal Code, which opens the door to using it in ways that severely limit the exercise of free speech.[3]

On January 29, a judge revoked Sala’s pretrial detention related to the sedition charges. However, Sala was not released because on the same day another judge ordered her detention based on another case in which a prosecutor had accused Sala, a day earlier, of “extortion,” “association to commit crimes,” and “fraud.” The UN Working Group on Arbitrary Detention concluded that the Jujuy judicial system employed “consecutive accusations” to keep Sala in prison, and failed to adequately justify Sala’s pretrial detention. [4]

While the Working Group does not have legal powers to force your government to heed its decision, it is an authoritative voice on the issue of arbitrary detention, and its opinions are given great weight as interpretations of governments’ international law obligations.

We understand that your government has invited the Working Group and the Inter-American Commission of Human Rights, which urged your administration to comply with the Working Group’s ruling, to conduct an on-site visit to the country and further analyze the Sala case. We welcome your administration’s engagement with these bodies and hope that these visits are carried out soon. However, these missions should not replace —or allow your government to delay— the compliance with the Working Group’s request to release Sala.    

The arguments put forward by your government in response to the Working Group’s decision in the Sala case are unconvincing. On December 3, 2016, you said that “most Argentinians believe that Sala has committed crimes.”[5] This is a very unfortunate statement. In democratic societies that respect the rule of law, rights—especially human rights like the right to a fair trial and to be judged by an independent and impartial court— are precisely meant to function as a safeguard against the will of majorities and cannot be subject to the circumstantial opinion of the population.

We are aware that Sala is under investigation for a range of crimes, including threats, corruption, and attempted murder. Like any other citizen, she should be investigated for these alleged crimes. However, these allegations are not sufficient to decide on Sala’s pretrial detention. Under international human rights standards, pretrial detention should be based only on a clear risk that the defendant will attempt to escape justice, hinder the judicial investigation, or pose a danger to others, not per se on the gravity of the crimes under investigation.[6] The Working Group concluded that Jujuy judicial authorities failed to adequately justify that Sala would escape justice or hinder the judicial investigation if she is released.[7] Based on the arguments put forward by your government before the Working Group and the rulings of higher courts in Jujuy, we agree with the Working Group on this specific point.[8]

Finally, your Foreign Affairs Minister, Susana Malcorra, has suggested that the federal executive branch cannot interfere with the decision of Jujuy’s judiciary to imprison Sala and noted that United States governments have also put forward this argument in other cases.^[9] We recognize the practical difficulties that the federal system may pose in this case, but your government has a responsibility to take all possible measures to ensure Sala is not held arbitrarily. Human rights obligations extend to all parts of federal states.[10] Furthermore, states —including the US and Argentina— cannot invoke provisions of their domestic law, like their federal system, as a justification for their failure to comply with international obligations. The Inter-American Court on Human Rights has repeatedly emphasized this principle, including on rulings addressing Argentina’s federal system.[11] For example, in 2006, the court stressed that the “State cannot assert defenses based on the State’s domestic law” to refrain from complying with one of its decisions, after a delegation of the Kirchner administration argued that their response to a court order had been limited due to lack of coordination between the federal government and Mendoza provincial authorities.[12]

Mr. President, the promotion and protection of human rights relies on a system of international bodies —including the UN Working Group on Arbitrary Detention— and on states’ obligation to protect fundamental rights both domestically and abroad. Your government deserves credit for the strong stance you have taken on the human rights crisis in Venezuela and could continue to be a vocal actor on abuses committed in the Americas and elsewhere. However, this role can only be pursued with credibility and legitimacy if your administration reaffirms its commitment to human rights by ensuring that its own actions are in conformity with human rights law.

Respectfully,

José Miguel Vivanco
Human Rights Watch