Argentina’s courts are beginning to allow small numbers of criminals to leave prisons, amid fears about the spread of Covid-19 within the penitentiary system.
Authorities are also hoping to avoid the repetition of violent scenes witnessed in other countries, as tensions run high.
Earlier this week, the Federal Criminal Cassation Court, the country’s highest criminal court, recommended that the judges grant such benefits to persons detained for minor offences, making it clear they were not considering the release of dangerous criminals.
After weeks of discussion, 11 of the 13 members of the country’s highest criminal court signed a recommendation for judges to begin analysing requests for house arrest or release made by various detainees.
Judges at the tribunal have asked their colleagues in the lower courts to be especially cautious when granting such benefits to those convicted of serious crimes – i.e. those serving sentences for murder, rape, kidnapping or gender violence.
A few weeks earlier, the same court called for a speedy resolution to requests from people in high-risk groups – those with diseases such as HIV, tuberculosis and diabetes, those over 60 and women who are pregnant or detained with their children.
The judges have been following recommendations laid out by the United Nations High Commissioner for Human Rights, the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
To date, Argentina’s Supreme Court has remained silent on the topic.
In federal prisons, there are a total of 12,976 people currently in custody. According to the Federal Penitentiary Service (SPF), 1,280 people are particularly at risk from the Covid-19 pandemic.
Sources within the Justice and Human Rights Ministry told the Times about 15 percent of those considered ‘at risk’ in federal prisons have already been released to house arrest.
However, federal prisons are overcrowded by about three percent, which means that more than 300 people are being held than are authorised. The percentage has been dropping in recent weeks. Some specialised agencies, such as the Procuración Penitenciaria de la Nación (PNN, Procurator’s Office, also known as the National Prison Attorney’s Office), say that overcrowding is higher and that prisoners are being deprived of fundamental rights.
“The worsening in recent years of the inhumane and unsafe conditions of the prisons, as a result of overcrowding due to the punitive demagogy of hyperincarceration that increased by 40 percent during the last administration, makes it urgent to depopulate [them],” Judge Alejandro Slokar, the vice-president of the Federal Cassation Court, told the Times.
“That is, to release as many prisoners as possible – startingrationally and orderly with the most vulnerable, those who are are already innocent, and using restrictive criteria for serious crimes – before Covid-19 unleashes a massacre on the precarious infrastructure of the prisons and the loss of countless lives is lamented,” Slokar explained.
“Deprivation of liberty should never be about health, much less about existence,” he added.
According to Raúl Zafaroni, a former member of the Supreme Court and one of the members of the Inter-American Court of Human Rights, the prison population should be reduced to 70 or 80 percent so that, should the virus begin circulating in the penitentiary system, the authorities can handle the situation.
The problem is not only the spread of the disease, but also the violence that can be unleashed inside the prisons, he warned.
In Santa Fe Province, two riots last month resulted in the deaths of five inmates at a prison. So far, Argentina’s jails have not reported any cases of Covid-19 among prisoners. The Villa Devoto prison – the only prison unit within the City of Buenos Aires – has said that five nurses and doctors have tested positive and are under isolation.
The National Committee for the Prevention of Torture (CNPT) has been asking judges to take measures to reduce the size of the prison population.
“On a federal level, the Federal Chamber of Cassation has already issued three recommendations referring to Covid-19. All three were in line with what the CNPT has requested,” Alan Iud, CNPT’s executive secretary, told the Times.
“There were also positive pronouncements in particular rulings, but it is not yet clear that the impact will be sufficient to reduce overpopulation,” he added.
The expert explained, for example, that the Court of Cassation of Buenos Aires Province went further by ordering house arrest for all members of risk groups be granted within its jurisdiction.
The prisons in the region are in a critical situation. About 45,000 people are detained, with another 3,900 held in police stations. Of those, 2,300 people are considered at risk.
According to sources at the provincial Justice Ministry, some 450 would be able to obtain house arrest following the ruling by the provincial Chamber of Cassation. Next week, the provincial Supreme Court will analyse whether this is the right way to reduce overcrowding.
Dictatorship-era criminals to remain behind bars
The majority of the country’s federal courts have rejected the requests filed by criminals convicted of crimes against humanity during the 1976- 1983 military dictatorship, asking that they released in the context of the coronavirus pandemic.
According to the Office of the Attorney General for Crimes Against Humanity, 138 requests for house arrest have been filed during the last month. About 30 of them were granted by the courts, with the human rights criminals sent to their homes for the duration of the pandemic. Courts in Mendoza seem to be the most likely to grant such requests.
Federal Oral Court 5 has rejected a series of petitions presented by human rights violators who formed part of the ex-ESMA Navy Mechanics School’s “ death squad.” So far, the judges have declined requests from some of Argentina’s mostinfamous dictatorship-era criminals, such as Alfredo Astiz, Antonio Pernías and Ricardo Cavallo. On Thursday, the Federal Court of Criminal Cassation rejected a request from Miguel Osvaldo Etchecolatz, one of the heads of the Buenos Aires provincial police force during the years of state terrorism. Judges Mariano Borinsky and Javier Carbajo considered that he was not entitled to the benefit because he was sentenced to life imprisonment for heinous crimes.
Etchecolatz, who is 90 years old and detained at the Ezeiza prison hospital, filed the same request before the federal courts in La Plata. So far, all the courts have dismissed his petitions, but it is likely that in the next few days another chamber of the Federal Court of Cassation will hear the case again.
According to statistics from the Federal Prison Service (SPF), Etchecolatz and 130 other repressors from the last dictatorship are in prison.