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Thursday, December 8, 2016
- In spite of repeated violations of house arrest by people convicted of crimes against humanity during Argentina’s dictatorship, some activists remain in favour of this lenient alternative to prison, but they want better oversight by the courts.
The Prosecution Unit for the coordination and monitoring of cases involving human rights violations committed during the state terrorism indicated that in late 2012, 37.8 percent of the 813 persons detained for crimes against humanity were under house arrest.
Home detention may be allowed by judges for prosecuted or convicted persons over 70, those with terminal illnesses, or with health problems that cannot be treated in prison. But because of the lack of control measures, those supposed to be under house arrest frequently violate its terms.
“You always hear about cases in which victims recognise and denounce them, and if they are not denounced more frequently it is because they aren’t recognised,” lawyer Alan Iud, of the Grandmothers of Plaza Mayo, the organisation devoted to looking for the children of the detained-disappeared during the 1976-1983 dictatorship in Argentina, told IPS.
In January, former army intelligence agent Carlos Hidalgo, prosecuted for more than 200 crimes against humanity and convicted for the baby theft of Laura Catalina de Sanctis, the daughter of a disappeared couple, was seen cycling through the streets of Buenos Aires.
Hidalgo, who had registered Laura as his own biological child, was recognised in the street by de Sanctis herself, who denounced him to the justice system. He was supposedly under arrest in a geriatric centre in Buenos Aires, where he lived. The court revoked his privileges and transferred him to a hospital at the Ezeiza Prison Unit, in the outskirts of the Argentine capital.
This month, obstetrician Jorge Luis Magnacco, convicted for baby theft and prosecuted for his part in several childbirths at the Navy School of Mechanics, located in a residential neighbourhood of Buenos Aires, home to one of the most notorious illegal detention centres of the dictatorship, was seen strolling through the streets with his wife.
Members of the association HIJOS (Children for Identity and Justice, against Forgetting and Silence) filmed Magnacco entering a shopping centre and then a restaurant.
The court that had granted Magnacco the privilege of house arrest decided to repeal it and transfer the convicted doctor to a correctional facility.
Human rights organisations say they are not against house arrest per se in properly justified cases. However, they say home detention cannot be granted without any control or oversight.
“The judge should regulate house arrest, which is not the same as granting release from prison,” said Lorena Balardini, coordinator of research at the Centre for Legal and Social Studies (CELS), an NGO working on legal and human rights issues.
“Curtailing the granting of house arrest is not an option, because it is part of the guarantees of due process for any crime. But neither can detainees be left to their own free will,” the expert told IPS. “The problem is not the privilege itself, but slackness in its regulation,” she said.
In Balardini’s view, house arrest should be terminated when its conditions are violated by the detainee leaving the premises, contrary to what was agreed with the judge.
“Home detention is a privilege because the detainee is living in the comfort of his or her own home, and it is based on legal and humanitarian criteria,” she said.
“This implies a commitment on the part of these persons to comply with the rules of the game, but if they do not, house arrest must be revoked because this is another way of making the benefit tangible,” she said.
“But one must not fall into the trap of concluding that the problem lies in house arrest itself,” she said.
In Balardini’s view, the main thing is that the accused or convicted person is in detention. “The form or method, so long as it is suitably implemented, is not important. As a human rights organisation working with persons deprived of their freedom for common crimes, we do not want to see the eradication of house arrest,” she said.
She also warned of the danger of creating special rules just for crimes against humanity.
“These trials are emblematic, but they cannot be played by different rules, because that could endanger their legitimacy. Criminal law ordains the availability of house arrest, and it is the judge who decides when to apply it,” she said.
Iud, the lawyer for the Grandmothers association, agreed. “We are not against the institution of house arrest when it is used for humanitarian reasons, which must be studied case by case, but we do believe that once it is ordered, and is strictly justified, oversight should be in place, and there should be controls that today do not exist,” he said.
“The judge, or the secretary or other personnel of the court, should be in charge of verifying compliance with the court order. They could carry out surprise visits, or make phone calls, or set temporary guards. A mechanism must be sought, because at the moment there is no control whatsoever, and they (the detainees) know it,” he said.
In Iud’s view, judges cannot shelter behind the excuse of lack of resources, because a simple phone call would suffice to make periodic checks that the order is being respected.
If this is not possible, an institution should be authorised to carry out oversight. Iud suggested this could be the Patronato de Liberados (a welfare organisation for released inmates) that comes under the justice ministry and has a budget provided by the judicial branch.
The trials of military personnel and civilians for crimes during the dictatorship so far add up to 1,013 persons prosecuted and 378 convicted. The number of convictions has increased five-fold since 2008 as a result of combining cases and accelerating trials, according to the Prosecution Unit.