Ruling on Argentine Supreme Court

 

RULING ON ARGENTINE SUPREME COURT

I

Following the recent ruling of the Argentine Supreme Court in the Muiña Case, reducing the prison sentence of an individual accused of crimes against humanity during the last military dictatorship, the Buddhist Tribunal on Human Rights affirms that the Argentine Supreme Court is situated on a pathway of violation of human rights, since the consequences of that judgment generate an alarming sense of impunity in society. The Argentine Supreme Court made an incorrect jurisprudential interpretation based on penal guaranteeism, a doctrine that has been used in Argentina for the impunity of crimes of all types. After the intervention of the Vatican, in order to reduce the sentence of an individual convicted for crimes against humanity, the Argentine Supreme Court generates a sense of legal uncertainty, in addition to the fact that its jurisprudential argument uses an Argentine law that was repealed more than 16 years ago, which violates the principle of legality and also the principle of human rights progressivity, being the case of a legally regressive situation that makes no differentiatiation between minor crimes and crimes against humanity. For this reason, the Buddhist Tribunal on Human Rights endorses the declaration of unconstitutionality made by judicial system of the province of San Juan, since reducing penalties for crimes against humanity violates the Argentine Constitution and the international pacts signed by the country. In addition, the judgment of the Supreme Court of Argentina uses an already repealed law that was neither in force during the commission of the crimes nor during their judgment, so it is a resource that is illegal, unconstitutional and contrary to human rights conventions, showing the pursuit for impunity to the hundreds of criminals sentenced for crimes against humanity, something that is perfectly evident in the fact that the Catholic Church called for a supposed reconciliation with these criminals only two days before the ruling of the Argentine Supreme Court. The possible criminal plot on the part of the Catholic Church and the Argentine Supreme Court lies in the fact that its judgment opens the door to the immediate release of others convicted for genocide and crimes against humanity, as is the case of former chaplain Von Wernich, who is the only condemned of the Catholic Church for these international crimes. This conspiracy between the Vatican and Argentine Supreme Court is also clear from the fact that the Argentine government does not seem to be behind this ruling, to which it has criticized as a regime of Impunity. In the past, the Buddhist Tribunal on Human Rights has already denounced the Argentine judicial Power before the Inter-American Commission on Human Rights for maintaining a regime of impunity facing the serious crimes suffered by the Maitriyana Buddhist community in said country, at the same time the Buddhist Tribunal sentenced the Argentine State for corruption and violation of human rights.

The Buddhist Tribunal on Human Rights validates the prevarication complaint made by lawyer Marcelo Parrilli and validates the imputation by prosecutor Marijuan against the three judges of the Argentine Supreme Court who issued the illegal sentence in favor of genocidal individuals for considering that this action violates the social contract and the national policy to prosecute, judge and sanction violations of human rights. Although Argentine lawyers often ignore this concept that in criminal cases judges can be held accountable for their actions, preferring instead to make complex and bureaucratic requests for impeachment, the Argentine Penal Code certainly allows denouncing judges for prevarication or for breaching their legal duty when they issue sentences that are contrary to the Law, although it is a resource that is almost never carried out by the complainants because of the system of impunity and ignorance ruling the Argentine judicial system.

The Buddhist Tribunal on Human Rights also validates the complaint lodged to the Inter-American Commission on Human Rights (IACHR) by the constitutionalist Andrés Gil Domínguez against the Argentine State, since the judgment of the Argentine Supreme Court violated the rights of the victims that are explicit in the American Convention on Human Rights, and the Inter-American Convention on the Disappearance of Persons, not being in accordance with the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, nor with the Rome Statute of the International Criminal Court, as well as it is not in accordance with the own jurisprudences of the Inter-American Court and of the Argentine Supreme Court, breaching the international legal obligation that the Argentine State has to prosecute, judge and condemn those perpetrators of crimes against humanity. Even the Office of the United Nations High Commissioner for Human Rights (OHCHR) has questioned the judgment of the Argentine Supreme Court for carrying out an act of injustice when evaluating ordinary crimes and crimes against humanity in the same way, also breaching the International Law standards established in the Vienna Convention that prohibit invoking provisions of domestic Law as a justification to breach international obligations. The Buddhist Tribunal on Human Rights recalls that the reparation of victims of international crimes is a fundamental human right that has been included in universal human rights treaties, so that the Argentine Supreme Court has a duty to protect it. In this sense, another recent ruling by the Argentine Supreme Court stated that claims for reparations for crimes against humanity are prescriptive, thus violating Argentina’s international obligations signed in order to punish the criminals and simultaneously repair the damage caused on victims of international crimes.

As shown by the last Sentence of penalty reduction to those condemned for crimes against humanity, the Argentine Supreme Court decides not to comply with international human rights law, ignoring standards that are mandatory for the international community and acting in accordance with the shameful Denialism suffered by many government officials of President Macri. The international human rights instruments and ius cogens standards oblige States to struggle against impunity and appropriately punish those responsible for international crimes, so that amnesties, pardons or prescriptions of international crimes have been annulled when they are analyzed under international juridical entities, since they violate international norms that are hierarchically superior than local laws. The prosecution and conviction of international crimes must guarantee international standards and never aim at impunity. In this way, the guaranteeist orientation toward a reduction of sentences to those convicted for international crimes, in a social context that tends to the opposite pole of increasing penalties for ordinary crimes, is certainly a partial amnesty or undercovered pardon that violates International legal principles. Now, in the case of the International Criminal Court (ICC), there is undoubtedly a tendency for the guaranteeist paradigm for having sentenced those responsible for crimes against humanity to 20-year penalties, which demonstrates a humanist orientation that provides the possibility that, after having been in prison, in the future the criminal has the possibility of reintegrating into society. The great problem of the guaranteeism is that in Argentina it is usually applied grossly and to the detriment of the victims, being a distorted use of Law that undermines the social peace of the civil population.

II

The judgment of the Argentine Supreme Court in the Muiña Case was not the episode of illegality committed by such a court, for Deputy Carrió has submitted a request for political trial against the president of the Argentine Supreme Court for bad performance and eventual offences in the exercise of their functions by concentrating power and arbitrarily administering economic funds of the judicial system.

In previous cases, the Argentine Supreme Court has also issued judgments that violate human rights, as in a recent case where it decided that police have no collective right to unionize. Accordingly, in the Orellano Case, the Argentine Supreme Court limited the right to strike when endorsing the dismissal of an employee who participated in protests of a group that was not an officially registered union, thus denying the human right to strike and to social protest, which is not a right that belongs only to the powerful official unions. The Buddhist Tribunal on Human Rights considers that said sentence is a legal aberration that restricts fundamental rights and freedoms, since the strike measures promoted by informal groups – or even by a single subject – are perfectly legitimate and legal. This judgment of the Argentine Supreme Court leaves in total lack of protection to the non-registered workers, who are non-formal employees and without union representation, reason why it is a step back in the process of union democratization. In addition, dismissing a worker for an act of strike constitutes a discriminatory measure. The Argentine Supreme Court also argued that direct action measures by employees are detrimental for the employer and the consumers, and therefore decided that the right to strike must be subordinate and not free. In a world where progresses on human rights were led by social activists who carried out methods of civil resistance and peaceful direct action, the judgment of the Argentine Supreme Court was an involution of Law, only contributing to the trade union bureaucracy and the repression of spontaneous social protest. Like the labor chamber member Arias Gibert, the Buddhist Tribunal on Human Rights considers that said sentence seriously affects union freedom, being only similar to the legal position of the last Argentine military dictatorship that contradicted the Universal Declaration of Human Rights.

In the recent Case Fontevecchia and D’Amico, the Argentine Supreme Court took a new direction towards the violation of International Law by ruling that the Inter-American Court of Human Rights cannot revoke its sentences, which is clearly an unconstitutional sentence for violating international treaties Included in the National Constitution. In this unconstitutional sentence, the Argentine Supreme Court states that its judicial sentences cannot be revoked by the Inter-American Court of Human Rights, despite the fact that its resolutions are binding for the Argentine State because the country has signed the American Convention on Human Rights. This position of the Argentine Supreme Court is quite similar to the position of the Venezuelan Supreme Court of Justice, which was sentenced by the Buddhist Tribunal, and it is also similar to the position of the Supreme Court of Russian Federation with respect to its attitude of non-compliance with the Rulings of the European Court of Human Rights. In this way, the Argentine Supreme Court is following in the footsteps of Venezuela and Russia, ignoring the duty to comply with International Law. The Supreme Court of Argentina cannot deny the Inter-American Court its role of final interpreter of the American Convention, generating a situation of vulnerability of the human right to resort to international instances and that the rulings in violation of law may be revoked. This Case Fontevecchia and D’Amico demonstrates that what happened in the Muiña Case, with the reduction of penalties for genocide criminals, was not a temporary departure from its jurisprudence, but rather it is part of an increasingly growing distance from the Inter-American system of Human Rights. When a State signs international treaties, a local court cannot claim to breach the international courts emanating from such treaties, because if it is done then the local court would proclaim itself as an authority that is independent of the State and to which its decisions cannot be reviewed. Indeed, every Supreme Court must be emancipated from the executive and legislative powers in order to maintain the republican order, but what it can never do is emancipate itself from the very State. The Buddhist Tribunal on Human Rights agrees with the Argentine organization CELS (Centro de Estudios Legales y Sociales or Center for Legal and Social Studies) in the fact that this sentence of the Argentine Supreme Court is seeking the country to be independent with regards to the International Human Rights Law.

Finally, with respect to the Case Comisario Derecho, which is less recent than the jurisprudence previously analyzed, the Supreme Court of Argentina ruled the legal prescription of criminal acts against someone accused for a crime of torture, by refusing to consider torture as an imprescriptible crime against humanity. In addition, the Argentine Supreme Court hinted that during democracy it would not be possible for crimes against humanity to exist – as stated by the executive power at that time – and even that police security forces would not be the State, nor they would be governmental organizations, thus dangerously suppressing the possibility that they may be accused of crimes against humanity. This constitutes a legal aberration that demonstrates absolute ignorance on both International Law as well as ignorance on the systematic and widespread tortures – and even assassinations – occurring in prisons and police stations in Argentina. In committing such a legal aberration, the Argentine Supreme Court deviated from the jurisprudence of the Inter-American Court of Human Rights, which was developed in the Bulacio Case, where it was stated that the prescriptions or obstacles to prevent investigating or sanctioning those responsible for human rights violations are inadmissible. Although the rulings of the Inter-American Court are legally binding and mandatory, the Argentine Supreme Court disobeys the legal doctrine of the Inter-American Court, by arguing that torture in itself is not a crime against humanity, being a common offence rather than a human rights violation. The Argentine Supreme Court violates the Rome Statute of the International Criminal Court (ICC) because it considers that for torture to be considered a crime against humanity, it must be accompanied simultaneously by all other crimes against humanity, such as murders, deportations and abuses. Thus, by refusing to punish crimes against humanity individually, the Argentine Supreme Court shows an appalling ignorance of the International Human Rights Law. The Argentine Supreme Court has also decided to ignore that police torture in said country constitutes a widespread and systematic attack on civilians. Police torture is a widespread and not isolated attack because there are thousands of cases throughout the country, and there is a systematic pattern because the victims are almost all belonging to the poor social class. It is also possible to deduce the presence of a State policy that favors this repressive apparatus, even if it is not an explicit policy, since the permissiveness of the executive, legislative and judicial powers faced with the thousands of cases of police torture shows complicity by omission as form of State policy. Thus, the Buddhist Tribunal on Human Rights condemns the Argentine Supreme Court as an institution that allows impunity of crimes against humanity.

III

The Buddhist Tribunal on Human Rights, by being mainly regulated by Buddhist Law, disagrees with the punitive orientation and the guaranteeist paradigm of Law because,  like Abolitionism, it raises the need to reformulate or to eradicate the penal system, considering that prisons do not meet the goals for which they are created. In fact, imprisonment for a convicted person does not lead to justice, but rather it is nothing more than a field that worsens the criminal’s mind, rather than providing him/her with tools for his/her rehabilitation. Thus, following with abolitionist and restorative parameters, the Buddhist Law establishes that the prison system should be totally replaced by an educational and therapeutic system where the criminal is given the possibility to repair the damages caused to the victims, at the same time that the latter ones be given the opportunity for forgiveness. Being a system based on Tribal Law, the Buddhist Law considers that there are other creative ways of justice. A clear example emanated from the Case Argentina that was sentenced by the Buddhist Tribunal would be that in the face of a corrupt president, just like Cristina Fernandez de Kirchner, an adequate sanction would not be a prison sentence but rather a work sentence, because for a billionaire politician who massively swindled the workers of the country the worst penalty would surely be to work as an ordinary person for about twelve hours per day at the minimum wage. Another creative way might be a confiscation of property sentence, in which any property of the accused as well as the property of all their relatives is removed, thus widely carrying out the principle of civil responsibility that is applied to parents when a child or a pet damages another person. Especially for the powerful people, poverty would be the worst of prisons. This perspective is a fast and concrete way in which most of the criminal crimes could be absorbed by the perspective of the Civil Right, resembling more to the system of justice that humanity originally had, since the prison system is a modern invention. The Buddhist Tribunal on Human Rights recalls that justice is not associated with a punishment of suffering against the criminal, but rather with healing the suffering of the victims and relatives, so that the values of Truth, Memory, Forgiveness and Reconciliation must be properly employed. The prison sentence never leads to these spiritual values, but to resentment and hatred. True impunity does not imply that a criminal is not in prison, but rather that the victims are not heard, understood and helped to heal. It lacks any legal logic to focus the process of justice on punishment rather than focusing on reparation to victims and teaching the offenders. In this way, the approach of Buddhist Law fulfills the legal aim of seeking the most benign sanction. The Buddhist Tribunal on Human Rights confirms two principles: first, international crimes should not be treated as ordinary crimes; secondly, the prison sentence is insufficient to put an end to injustice and impunity. Consequently, Justice should never lead to Prison, but to the Liberation of humanity, always acting in harmony with the principles of equality and fraternity. The only effective way of not resembling criminals is the strict compliance with ethical values, which are above the Rule of Law, since the laws of certain countries have many times led to aberrant decisions. Prison is a mechanism that enshrines impunity, so even the worst criminals should be rehabilitated and put to work for the benefit of all humanity and the Mother Earth. The Buddhist Law chooses ethical principles and a superior form of legality as a way to build a new human being, acting in defense of free life and democratic values. The defense of human rights is the center of the Discourse of Buddhist Law, positioning Liberty as the central motor of the world’s ethical and social revolution. The horizon of Justice that is followed by Buddhist Law proposes an articulation between Truth-Restoration-Reconciliation, activating a very clear and profound humanitarian commitment.

 

President Master Maitreya Samyaksambuddha

 

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