On the 29th of June this year 2022, President Alberto Fernández traveled to the province of Jujuy to visit Milagro Sala, who is hospitalised after suffering a deep vein thrombosis.

The president, the last time he had met with Milagro Sala, was not yet president. It was on 31 December 2016, when he visited the social leader. On that occasion, Fernández expressed his solidarity with her in the face of her arbitrary detention.

By Miguel Julio Rodríguez Villafañe

Fernández has maintained in the new visit that “I have always raised the undue detention of Milagro Sala, the irregularity of the processes that have taken place” and added that, I went to see her because “humanly it is a disaster what they are doing with Milagro, I have the limit of not having the possibility of releasing her, but I will do everything that the institutionality allows me so that this is resolved because it is an absolute injustice”.

In turn, on 23 November 2017, the Inter-American Court of Human Rights (IACHR), in the framework of the “Request for Provisional Measures regarding Argentina. Case Milagro Sala” and in exercise of the powers conferred upon it by Article 63(2) of the American Convention, had resolved: “1. To require the State of Argentina to adopt, immediately, the necessary and effective measures of protection to guarantee the life, personal integrity and health of Ms. Milagro Sala. In particular, the State should replace Ms. Sala’s pre-trial detention with the alternative measure of house arrest to be carried out in her residence or place where she usually lives, or with any other alternative measure to pre-trial detention that is less restrictive of her rights than house arrest, in accordance with the provisions of Recital 33. This decision was ratified by the CSJN. However, this did not alleviate her hardship.

Milagro has been in pre-trial detention for almost seven years, which is three times the maximum legally established. Meanwhile, the judiciary in Jujuy continues to pursue cases against her and her family. For its part, the CSJN has had the main case against Sala pending for more than two years.

The president said that “a system of clear persecution has been set up” against the social leader Milagro Sala and “I hope that the courts of Jujuy take my criticism in the best possible way. Please, I urge them to review what they are doing, it is not a good model for the country. The same goes for the Supreme Court, which resolves with urgency the things that concern their interests, please give the same urgency to the appeal presented by Milagro Sala”.

Meanwhile, the governor of the Province of Jujuy, Gerardo Morales, not only did not take on board the President’s statements, but limited himself to reproaching him for not having come to visit the province and that in reality he wants Milagro to get better, to go to a common prison, without house arrest, thus ignoring what the CSJN has ordered, in accordance with what has been indicated by the IACHR Court, of obligatory application and in a clear pressure on the Jujuy Judiciary.

Then, the following day, the president stated that “for a long time I have been raising concerns about the things that are happening in the judiciary and particularly with Milagro Sala, about the way she is being detained, the nature of the proceedings, and the persecutory manoeuvres”. He added emphatically that “Argentinean justice is responsible… I ask those who ask me to pardon Milagro to read the Constitution. They cannot ask me to make a gesture that contradicts the Constitution”. He concluded by saying that “no society functions well without a rule of law that respects human rights. Prolonging preventive detention is a way of violating human rights. To the Supreme Court, which has as much urgency to deal with issues that concern its interests as the Council of the Judiciary or the judges of the Federal Chamber, I ask them to give urgency to the treatment of the sentence that came to them by way of complaint and that rests somewhere in the Court, and to please resolve it”.

Now, it is one thing to decide not to pardon Milagro and another not to enforce the American Convention on Human Rights (Pact of San José de Costa Rica), which has constitutional hierarchy in Argentina (art. 75, inc. 22).

Article 28 of this Convention states: “In the case of a State Party constituted as a Federal State, the national government of that State Party shall comply with all the provisions of this Convention relating to matters over which it exercises legislative and judicial jurisdiction”. It adds that “With respect to the provisions relating to matters within the jurisdiction of the constituent entities of the Federation, the national government shall immediately take appropriate measures, in accordance with its constitution and laws, to enable the competent authorities of such entities to take appropriate measures for the implementation of this Convention”.

In turn, Article 7 of the Covenant states that “No one shall be subjected to arbitrary arrest or detention… Anyone who is arrested… shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings…”.

The National State is responsible for compliance with the above, as stated in art. 28, and if the President himself is aware that human rights are not being respected in the case. Therefore, he, as the representative of the National State, has the responsibility to enforce the Pact by constitutional and conventional mandate, in a federal country. Therefore, he will have to give instructions for the National State to appear in the cases and make the pertinent proposals in accordance with the Pact, including interposing “per Saltum” before the CSJN, so that once and for all the responses in law and justice are given to Milagros Sala. And if the CSJN does not assume its role as it should, to activate the relevant request for impeachment against the members of that court.

The national executive branch cannot limit itself to making moral exhortations to a judiciary that has not been listening for some time. Otherwise, an unacceptable omission will continue.

Miguel Julio Rodríguez Villafañe is a constitutional lawyer from Córdoba and journalist and opinion columnist.