Working Group on Arbitrary Detention: Preliminary Findings from its visit to Argentina (8 to 18 May 2017)

Spanish

18 May 2017

At the invitation of the Government, the United Nations Working Group on Arbitrary Detention conducted its second official country visit to Argentina from 8 to 18 May 2017. The Working Group visited the City of Buenos Aires as well as the provinces of Buenos Aires, Chubut and Jujuy. The Working Group was represented by Mr. Sètondji Roland Adjovi (Bénin) and Ms. Elina Steinerte (Latvia, Vice-Chair), and accompanied by staff from the Office of the United Nations High Commissioner for Human Rights.

The Working Group extends its gratitude and appreciation to the Government of Argentina for inviting it to undertake this country visit, and for its cooperation before and during the visit. The Working Group intends to continue the constructive dialogue with the Government on the issues presented in this report.

In the course of its visit, the Working Group met with officials from the Ministry of Foreign Affairs, the Ministry of Justice and Human Rights, including the Secretariat for Human Rights and Cultural Pluralism, the Ministry of Security, the National Migration Agency, the National Public Prosecutor’s Office, the National Public Defender’s Office, the National Ombudsperson’s Office, the National Penitentiary Attorney¹, as well as with various authorities in the City of Buenos Aires and provinces of Buenos Aires, Chubut and Jujuy. The Working Group also recognizes the contribution of numerous stakeholders from civil society who shared their perspectives on arbitrary deprivation of liberty in Argentina, particularly representatives from non-governmental organizations, indigenous communities, human rights defenders, lawyers, academics, parliamentarians, as well as individuals who had been or are currently deprived of their liberty.

The observations we are presenting today constitute the preliminary findings of the Working Group. This will be followed by a report that the Working Group will officially adopt and submit to the Human Rights Council at its session in September 2018.

The Working Group visited various places of deprivation of liberty at the federal and provincial levels, including penitentiary facilities, police stations, juvenile centres, and mental health institutions. It interviewed numerous persons who are currently deprived of liberty.

In determining whether the deprivation of liberty is arbitrary, the Working Group refers to the five categories outlined in its Methods of Work, namely: 1) when it is impossible to invoke any legal basis justifying the deprivation of liberty; 2) when the deprivation of liberty results from the exercise of certain rights guaranteed by the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights; 3) when the right to a fair trial has been seriously violated; 4) when asylum-seekers, immigrants or refugees are subjected to prolonged administrative detention without the possibility of an administrative or judicial review or remedy; and 5) when the deprivation of liberty constitutes a violation of international law on the grounds of discrimination of any kind.

The Working Group provides its preliminary findings on the deprivation of liberty and the relevant institutional framework, and in the context of the criminal justice system, psychosocial disabilities, and migration.

I. Constitutional Framework
8. Argentina has a complex structure and division of competencies between the federal government, 23 provinces and the autonomous City of Buenos Aires, which have own constitutions and laws as well as executive, legislative and judicial authorities. Furthermore, article 75 of the Constitution of Argentina gives international human rights treaties precedence over national and provincial laws, thus providing for their direct application by authorities and domestic courts. It is the responsibility of the federal government to ensure that its international legal obligations are complied with at all levels within its jurisdiction. The federal construct of the country should not become an obstacle to the effective enforcement of the international obligations undertaken by Argentina.
II. Institutional Framework

During its visit, the Working Group learned that the Ombudsperson (Defensor del Pueblo de la Nación) of the nation has not been appointed since 2009. In 2010, the Deputy Ombudsperson took charge until 2013, when his mandate expired. Since then, the Under-Secretary General of the Office of the Ombudsperson has been in charge, but without a mandate to exercise the full range of the Ombudsperson functions in terms of the promotion and protection of human rights. The appointment of the Ombudsperson should be made through a bi-cameral commission of the National Congress which is yet to select a candidate. The appointment is not expected before the end of 2017. The Working Group notes that this situation has an adverse impact on the overall human rights situation in Argentina and urges the Argentine authorities to double their efforts to appoint the Ombudsperson as a matter of priority.

During the meeting with the Federal Penitentiary Attorney, the Working Group learned that the Penitentiary Attorney’s Office has faced a number of instances where it has been denied access to places of deprivation of liberty, and in some instances, had to resort to litigation to ensure unimpeded access. This may have an adverse impact upon the ability of the Office to discharge its mandate. The Working Group urges the authorities to ensure that the Penitentiary Attorney’s Office has unfettered access to all places of deprivation of liberty, including penitentiary facilities, police stations, juvenile institutions, holding rooms for migrants, and other relevant facilities. This unfettered access should be granted not only to federal institutions but also to those other detention facilities where federal prisoners or others under the federal jurisdiction are held. The Penitentiary Attorney should be systematically informed of all the different places of deprivation of liberty where persons are held, including in the context of migration.

The Working Group welcomes the ratification by Argentina of the Optional Protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) on 15 November 2004.

The Working Group commends the adoption of Law 26827 on the National Prevention Mechanism System. In accordance with articles 3 and 17 of the OPCAT, Argentina was to designate its National Preventive Mechanism (NPM) within one year of the ratification. To this date, the designation of the NPM in Argentina is far from complete and the Working Group notes with concern that Argentina appears on the Subcommittee against Torture list of countries whose compliance with article 17 is substantially overdue. While the Working Group understands that the provinces of Chaco, Mendoza, Misiones, Rio Negro, Salta and Tucuman have designated their local prevention mechanisms, other provinces have not done so and the National Committee for the Prevention of Torture has not been established.

The Working Group recalls that regular independent oversight over all places of deprivation of liberty has a significant role in reducing the instances of arbitrary detention. The Argentine authorities should increase their efforts to implement the NPM in accordance with the provisions of OPCAT at federal and local (provincial) levels. The system of NPM at all levels must be comprised of entities that are fully independent of the executive, properly funded and able to discharge their mandate effectively by having unfettered access to a wide range of places of deprivation of liberty. The requisite authorities must enter into a constructive dialogue with the designated NPMs about the implementation of the recommendations.

The Working Group commends the recent publication (May 2017), in the Argentine official gazette, of the names of candidates from civil society for the Committee on the National Preventive Mechanism.

III. Criminal Justice System

A. Wide powers of the police to arrest

The Working Group learned of the wide powers of the police to deprive persons of liberty based on either the suspicion of the commission of a crime or for verification of identification. While the applicable legislation requires that the police follow rigorous assessment when deciding upon the need to arrest someone on the suspicion of the commission of a crime, this is not implemented in practice. The possibility to arrest on the basis of a suspicion of a crime is widely used towards those in situations of vulnerability like street children, members and leaders of indigenous communities, migrants and LGBTI persons and others.

The Working Group observed the same in relation to the inherent powers of the police to “withhold” persons in order to carry out identity checks. The Working Group was informed that this process could take up to 12 hours. However, the Working Group observed that such instances of detention in practice can be as short as a few minutes but also as long as overnight and even last over the whole week-end. Such detention does not appear to be considered by the authorities as deprivation of liberty but rather only as ‘withholding of a person’ which is among the necessary police powers, including for ‘population control’. The Working Group recalls that the question of whether a particular situation constitutes deprivation of liberty is first and foremost a question of fact: if a person is unable to leave a place at will, the situation constitutes deprivation of liberty and all the safeguards that are applicable to guard against arbitrary detentions and possible ill-treatment must be enforced, and compensation granted to those whose right to liberty has been violated.

Moreover, the Working Group observed that the current legislation does not oblige everyone to carry an identification document which stands at odds with the inherent powers of the police to request anyone to prove their identity.

In this regard, the Working Group reiterates the concern of the Human Rights Committee about this police practice and the regulation under which it is permitted. It urges Argentina to take all necessary steps, including the adoption of legislative measures, to put an end to the practice of detaining persons when such detention is not related to the commission of an offense, in accordance with article 9 of the International Covenant on Civil and Political Rights (hereinafter “the Covenant”).

B. The excessive use of pre-trial detention

According to the National Law 24.390, promulgated on 21 November 1994, pre-trial detention must be an exceptional measure. The application of such an exceptional measure must be determined in each case, after the consideration of relevant factors such as the risk of absconding and the risk of interference with the investigation, as well as the complexity of the case. Depending on these factors, the prosecutor may request and the judge may impose reasonable duration of pre-trial detention, which in principle must not exceed two years and, in cases of multiple charges or their complex nature, three years.

The Working Group, however, found that this legal framework is not reflected in the practice of the judiciary which tends to grant most of the requests for pre-trial detention. As a result, pre-trial detainees constitute about 60 per cent of those detained within the criminal justice system. In some institutions visited by the Working Group, this figure was even higher. For instance, 75 per cent of the detainees in the Women’s Federal Penitentiary Complex IV in Ezeiza were in pre-trial detention.

Furthermore, the Working Group observed that the two year limit for pre-trial detention, which is an exceptionally long period in itself, is often exceeded and it encountered persons who spent four to six years in pre-trial detention. The Working Group was informed of other cases where individuals have spent as long as 10 years in pre-trial detention. While the separation of pre-trial detainees and convicted persons is envisaged in law, the Working Group also observed that the separation was not implemented in many of the facilities visited due to the lack of space and the pre-trial detainees were subjected to the same treatment regime as those convicted. Such transformation of the nature of pre-trial detention into a de facto punishment without any conviction is in violation of article 10 (2) (b) of the Covenant.

The Working Group is concerned about the lengthy pre-trial detention and the large percentage of pre-trial detained and notes that there is an urgent need to revise this practice in Argentina at both federal and provincial levels. The Working Group notes the positive developments made in some provinces such as Chubut to curtail the excessive use of pre-trial detention and encourages the respective authorities to continue with their efforts. The Working Group acknowledges the recent guidelines and instructions (May 2017) of the General Prosecutor of the province of Jujuy to provincial prosecutors regarding the exceptionality of pre-trial detention and the use of alternatives to detention.

C. Availability and application of alternatives to detention

The Working Group learned that the legislation in Argentina at both the federal and provincial levels provides for alternatives to detention for both pre-trial and post-trial stages. While the instances of using such methods as electronic tagging are slowly rising, the high percentage of those in pre-trial detention continues.

The Working Group learned that, for example, in the province of Buenos Aires, the application of the alternatives to detention since the amendments in the Criminal Procedural Code Law 11.922 is only possible in three instances: for persons over the age of 70; for pregnant and nursing mothers, and women with childcare responsibilities; and for people with serious health conditions. These limited options for cases when alternatives to detention can be applied render the alternatives to detention ineffective. Moreover, while the law does allow judges discretion to grant alternatives to detention in other exceptional cases, this discretion is very narrow and in fact is extremely rarely used in practice.

During its visit to some police stations, many female pre-trial detainees had children under the age of five. Yet this had no impact upon their pre-trial detention and some were told that they could only benefit from electronic tagging if they were able to pay for the device themselves.

The current approach whereby the consideration of alternatives to detention is not automatic in all cases, but rather depends upon the initiative of the prosecution or defense, should be reviewed. There is a need to broaden the scope of the application of alternatives to detention by expanding the applicability criteria. The judiciary must be encouraged to apply alternatives in all possible cases and especially in instances when sending a person to a custodial setting would mean sending this person to an overcrowded or unsuitable custodial setting.

D. Deprivation of liberty at the police stations

The Working Group is alarmed about the use of police stations to hold detainees for prolonged periods. This mainly stems from the excessive use of pre-trial detention across the country and the lack of space in detention facilities. During its on-site visits, the Working Group was able to observe the widespread nature of this phenomenon, particularly in the province of Buenos Aires as well as Jujuy and Chubut where the large majority of the detainees held at police stations were at the pre-trial stage. The periods of their detention ranged from three days to five months and were undertaken in unacceptable conditions. Furthermore, persons in police custody scarcely received information regarding the reasons for their arrest and their rights. Most detainees complained of difficulties in obtaining effective legal assistance. The police officers were over-burdened with the tasks of looking after the detainees on a long-term basis.

While its mandate does not focus on conditions of detention or the treatment of prisoners per se, the Working Group must consider to what extent detention conditions can negatively affect the ability of detainees to prepare their defence as well as their chances of a fair trial. Holding pre-trial detainees in facilities entirely unsuited for such a purpose, like the police stations in unacceptable conditions, poses severe impediments to the possibility of the detainees to prepare for their defence. The Working Group urges the respective authorities to cease the holding of pre-trial detainees in the facilities not suited for such purpose.

Moreover, the Working Group urges the authorities of Chubut to step up their efforts to establish the provincial penitentiary system, including appropriate facilities with dedicated services for the detainees and professional penitentiary personnel, and to cease holding convicted persons at the police stations for the purposes of serving their sentences. The police stations are not equipped for this purpose and the police personnel is neither suited nor trained to exercise the prison guard functions.

E. Use of isolation and force in prisons

The Working Group was concerned to observe that in some institutions there was no strict observance of the requisite procedures regarding the imposition of disciplinary sanctions, isolation and the use of force by the guards. The Working Group was particularly alarmed by the reported use of isolation or punishment cells in some facilities which was not preceded by any form of disciplinary adjudication process.

During an on-site visit, the Working Group found a small cell without windows and only bars for the door. The administration explained that this is not a punishment cell and that placement there is at times necessary when disturbances between inmates take place in order to ensure the protection of the inmates. However, the Working Group received statements that the placement in the cell usually takes place in the middle of the night, whereby large number of officers wearing full protective gear suddenly burst into the cell, drag inmates from their beds, at times naked, using considerable physical force and not giving an option to comply, and carry the ‘guilty’ inmate to that cell where they are often injected with a sedative to put them to sleep.

The Working Group insists that this practice is stopped immediately and that any use of isolation cells, irrespective of how these cells and/or places are named, is formalized with the appropriate procedures and governed by clearly stipulated regulations to guard against their arbitrary use. The placement of an inmate in an isolation cell is a form of disciplinary sanction and constitutes a further deprivation of liberty which must be subjected to the basic safeguards. The detainees have the right to know why a disciplinary measure is applied to them and be given an opportunity to explain and defend themselves. Any punishment applied must be strictly proportionate and respectful of human dignity and there must be proper record of each instance of the application of disciplinary punishment. Any use of force must be strictly necessary and proportionate; all instances of use of force must be properly recorded, noting the type of force and/or physical restrain used and the reason for it. Any use of sedatives as a means to control inmates is illegal and must be stopped at once.

F. Juveniles in conflict with the law

The current juvenile justice system in Argentina sets the age of criminal responsibility at 16 years and the Working Group was informed that nobody below the age of 16 could be detained. The Working Group recalls that the deprivation of liberty of anyone under the age of 18 must be a measure of last resort and must always fully comply with the safeguards of article 40 of the Convention on the Rights of the Child irrespective of whether it occurs in the criminal justice setting or other settings, such as the healthcare or detention of migrants.

The Working Group observed that the exceptionality of deprivation of liberty in relation to juveniles was not fully enforced in Argentina as the delegation heard about instances of individuals below the age of 16, including one who was eight years’ old, being deprived of liberty and ill-treated by the law enforcement agents. The Working Group is concerned about the limited possibilities for alternatives to detention in relation to children.

Furthermore, juveniles are held in so-called “reception centres” which are often a transitional location towards a detention in the criminal justice system once they turn 18 years’ old. The conditions of deprivation of liberty in such places were entirely inadequate with limited provisions for education, vocational training and purposeful activities which adversely impact the children’s ability and interest in rehabilitation. Currently, the availability of most of these activities rests with the good will of the staff in charge of these facilities which is commendable but not sustainable in the long-term.

The Working Group urges the Argentine authorities to ensure that children are not deprived of liberty in inappropriate facilities and that the law enforcement agencies refrain from the use of disproportionate and unjustified force. Moreover, there is an urgent need to address the dilapidated state of the many juvenile facilities in Argentina so as to enable the provision of the requisite care and education to children. The Working Group encourages Argentina to bring its legislation at all levels in compliance with the terms of the UN Convention on the Rights of the Child.

G. Selectivity of the criminal justice system

Article 14 of the Constitution of Argentina protects human rights of all inhabitants of the Nation and article 20 expressly states that foreigners in Argentina enjoy the same rights as citizens. This constitutional provision of equality before the law of all people in Argentina reflects articles 2 and 26 of the International Covenant on Civil and Political Rights.

During its visit, the Working Group noted the selectivity in the application of the criminal justice system in relation to persons from different socio-economic backgrounds. Those from humble backgrounds as well as those in situations of vulnerability like children, including street children, LGBTI persons, indigenous peoples and migrants are more likely to be arrested by the police on the suspicion of the commission of a crime or “withheld” for verification of identity. The Working Group learned of instances of children under the age of 10 being arrested by the police, taken to police stations without notification to their parents or legal guardians or social services, and requested to sign documents without any understanding of what they are signing and without legal assistance.

Similarly, the Working Group was informed of the deprivation of liberty in the context of public and social protests by members of different communities, including indigenous peoples, union members, and political and social movements. The Working Group wishes to reiterate that international human rights instruments guarantee the right to peaceful assembly and States should refrain from preventing or punishing peaceful protests. Any punishable actions should be clearly outlined in order to uphold the principle of legality in criminal law. Offences such as “traffic blockage” and “disobedience and resistance to authority” are inherently ambiguous affording a high degree of discretion to the law enforcement authorities without sufficient safeguards to ensure protection against arbitrary detention. The Working Groups also notes that the “Protocol on Action by the State security forces during public manifestations” adopted by the Ministry of Security in 2016, if implemented, may create an increased risk of arbitrary detention by amplifying discretionary powers of security forces.

The Working Group was particularly concerned to learn about the violent repression of the indigenous communities as these communities engage in protests in support of their rights stemming from the ILO Convention No. 169, ratified by Argentina. The Working Group was informed of the excessive use of force, ill-treatment and humiliation suffered by the members of the indigenous communities at the hands of the law enforcement agents and private security companies. The Working Group was alarmed by the sweeping arrests of the indigenous peoples engaged in social protests. The law enforcement agencies in areas where indigenous peoples reside have no protocols for the holding of such individuals which would respect their rights as indigenous peoples and allow for the observance of their religious, spiritual and medical needs. The anti-terrorism law should not be used to criminalize indigenous and peasant leaders for activities related to the defence of their territory and their culture, all elements duly protected by international human rights law. The Working Group urges the Argentine authorities to refrain from disproportionate use of force and resume the process of dialogue with the indigenous communities.

Moreover, the Working Group was informed that the application of pre-trial detention is by far more common among the suspects from the vulnerable groups. For instance, the Working Group learned about numerous instances of harassment of transgender persons in specific locations in Buenos Aires city and provinces, as alleged suspicion of prostitution. Such targeting of individuals is obviously discriminatory and in violation of international norms strongly prohibiting discrimination.

In the view of the Working Group, the criminal justice system of Argentina treats markedly differently those from humble backgrounds or those engaged in social protest and this should be addressed as a matter of priority.

The Working Group would like to acknowledge the Program Justice 2020 of the Ministry of Justice and Human Rights.

IV. Deprivation of liberty and psychosocial disabilities

The Working Group commends the adoption of the Mental Health Act 26.657 in 2010 which introduced a progressive framework in this area. It establishes comprehensive, community care as a public policy objective, and reforms the previous legal regulations regarding compulsory hospitalization under the provisions of article 482 of the Civil Code and national Law 22.914 of 1983 of persons with psychosocial disability and those with drug and alcohol addictions.

The Working Group, however, learned of numerous alarming cases concerning the detention of individuals due to their psychosocial disability. The Working Group met ‘social patients’ who do not have either the resources or the social networks to live in the community and are confined in such institutions. ‘Social patients’ often spend years and even decades confined in such institutions without any true prospect for release. Notably, the Working Group observed numerous instances where individuals had spent between 30 and 63 years in a mental institution, some being social patients.

While periodic assessments are apparently carried out in some instances to ascertain whether it would be possible to move the person out of the institution, without a family willing to look after the patient concerned, there are no community support systems in place and these ‘social patients’ remain institutionalized indefinitely.

Furthermore, during its visits to penitentiary institutions, the Working Group learned that pursuant to article 34 of the Criminal Code, a security measure could be attached to the sentence imposed on persons with psychosocial disabilities. Persons are usually sent to the mental health care facilities within the penitentiary for treatment and, in practice, their stay there becomes unlimited. There are periodic assessments carried out by a multi-disciplinary team, but the ultimate decision about the release of the person rests with the judiciary. The assessment of ‘dangerousness’ is required but there is a great reluctance to release such individuals. The Working Group met individuals who have been in such places for 33 and 13 years, respectively, and the medical staff of the facility affirmed that while ongoing management of their psychosocial disability was necessary, there was no need for them to remain in the institution.

The Working Group is of the view that these examples of ‘social patients’ and those sentenced with the security measure in fact constitute indefinite deprivation of liberty. While in both instances there are mechanisms in place for periodic review of the necessity for continued detention, without viable alternatives to detention or with the high threshold of the ‘dangerousness’ to satisfy, these review mechanisms are ineffective in practice. The Working Group urges the Government of Argentina to put in place effective review mechanisms and make sure that there are practically available solutions to ensure that individuals suffering from psychosocial disability are able to live in the community with appropriate support provided by the state.

V. Detention of Migrants

While currently there are no dedicated facilities for detention of migrants in Argentina, the Working Group learned of the plans to open a detention facility for migrants in Buenos Aires although currently most of the migrants are not actually held in the city. The Working Group wishes to emphasize that detention in the context of migration must be an exception and will closely follow the implementation of the plans concerning the detention facilities for migrants in Argentina.

During its visit, the Working Group also noted the adoption of the Decree of Necessity and Urgency No. 70/2017 which effectively changed the provisions of the Migration Law 25.871. The newly adopted Decree authorizes the deprivation of liberty at the outset of the summary procedure, removing the principle of exceptionality and allows detention prior to the expulsion order. The requirement to justify the necessity and proportionality of detention before the judicial authority has been effectively removed and the permitted detention period has been increased to 60 days with the possibility of an indefinite extension for the duration of the proceedings. Moreover, there are restrictions on access to free legal aid and the terms for submitting an appeal have been significantly reduced.

The Working Group has serious concerns about the Decree 70/2017 and the fact that this order by the executive significantly modifies the legal provisions of the Law 25.871. These major changes should have been subjected to an open and transparent debate with a wide variety of stakeholders and especially discussed at the national legislature. The Working Group wishes to recall that the detention in the context of migration must be exceptional and as such, it must be subject to an individual assessment. The detention can only be justified if it pursues a legitimate aim and is both proportionate and necessary, with the judicial oversight.

VII. Opinions of the Working Group on Arbitrary Detention

The Working Group requests the Government to give full effect to its Opinions adopted involving Argentina.

Conclusion

These are the preliminary findings of the Working Group. We look forward to continue to engage in the constructive dialogue with the Government of Argentina over the following months while we determine our final conclusions in relation to this country visit. We acknowledge with gratitude the willingness of the Government to invite the Working Group and note that this is an opportunity for introducing reforms to address situations which may amount to arbitrary deprivation of liberty.

1. Also referred to as the Federal Penitentiary Ombudsperson.