The law more beneficial to the individual (La ley mas benigna)

The Argentine Supreme Court is comprised of 5 judges, --two were nominated by President Mauricio Macri in 2016, and confirmed by the requisite 2/3 vote of the Argentine Senate.  These two new judges, Horacio Rosatti and Carlos Rosenkrantz, with the assistance of Elena Highton de Nolasco, form the majority of the Court, which now has a more conservative character than the very human rights- biased court under former President Cristina Fernandez de Kirchner.

On May 3d, the Court issued a ruling affirming the reduction of the sentence of 61 year old Luis Muina, who in 2011 was convicted and sentenced to 13 years in prison for having participated in a paramilitary group that kidnapped and tortured 5 persons during Argentina’s dirty war (1976-83).  The reduction in sentence was achieved by the Court’s application of a law that had been repealed but was more beneficial to the individual (“la ley mas benigna”) than the current law.  Since one of the 5 victims of Muina was disappeared, the crime is considered continuous or permanent (until the victim is found) and the Supreme Court reasoned that it could apply a law that is no longer in effect to someone convicted of crimes against humanity.  The law, known as the “two for one” law, allowed for the computation of each day spent in prison, before a final conviction and sentence, to count for two days when more than two years had been spent in custody.  The law, which was in force from 1994-2001, was designed to reduce the prison population, which was comprised of many people in long term detention who had not been convicted and sentenced.

The application of this law to someone who had been convicted of crimes against humanity caused an uproar on the part of the human rights community in Argentina.  There are approximately 2,000 persons charged with crimes against humanity in Argentina and approximately 750 members of the military and police are in detention for crimes committed during the dirty war without a final conviction and sentence.  This latter group would be able to benefit from the “two for one” law and be placed in conditional liberty once they complete two thirds of their sentence. 

The human rights community organized a protest of tens of thousands of people against the law on May 10, 2017 (above photo), causing President Macri to denounce the law and Congress to swiftly pass a new law prohibiting its application to cases of crimes against humanity, genocide and war crimes and limiting its applicability to persons who were prisoners during the time the law was in force (1994-2001). It is not clear whether this new law will result in Muina’s return to prison.