Legal
opinion on case No. 10-2015: Argentine Republic
Monday, 25 April, 2016
As a result of the brief presented by Ms. Silvia G.
Pradelli, Director of Criminal Records
and Constitutional Guarantees of the Ministry of Justice - Province of Buenos Aires, dated on
April 12, 2016, it will be determined then whether the facts exposed constitute
a discriminatory act or unconstitutional conduct in terms of Buddhist Tribal
Law and International Law of Human Rights, by performing an analysis of the
possibly illegal actions by the Judicial Power which are made by the relevant
ethical opinion.
I.
Description of the Case
In the brief by Ms. Silvia G. Pradelli, on behalf of
the Government of Buenos Aires, it is detailed that the Correctional Court 1 of
Necochea processed the IPP No. 110003787/13 and 110004131/14, by informing that
said Court ordered the "suspension
of the trial for one year, having been complied the figure of probation in both
cases, the complainants not having been appeared to audiences to which they
were cited, and not having been appealed the measures taken.”
The International
Buddhist Ethics Committee and Buddhist Tribunal on Human Rights have placed
full record that these actions committed by the Court constitute unlawful acts
that violate the fundamental freedoms of the members of our community, in
breach of international human rights treaties that have constitutional status
in Argentina. Below a series of points are detailed showing the unlawful
conduct of the Court:
1.
A week
before the supposed beginning of trial, in 2015, our institution filed a
criminal complaint for Abuse of authority
and Violation of the duties of public officials against Ms. Eugenia Salgado
and Ms. Eugenia Quagliaroli, respective criminal instructor and prosecutor of
the Prosecutor's Office UFI No. 1, which would be the true cause of the
suspension of the trial.
2.
In the
same complaint filed in the Court a series of illegal procedures by the
Judicial Power are detailed, also being carried out a petition which consists
of eleven points that were ignored by who is in charge of the Correctional
Court No. 1 of Necochea.
3.
Attached
to the complaint it was also presented a written Statement, so it is a lie that
the complainants have not appeared.
Complainants have also personally attended several times to say that they were
not agreed with the probation,
because the fact denounced was about an attempted murder with repeated death
threats.
4.
Regarding
the "measures taken" by the Court, to date no notification has being
received, the letter from Mrs. Pradelli being the first news received on the
issue.
This list of facts shows precisely the mistreatment
given to the complainants, which constitutes an act deeply discriminatory that
the Ministry of Justice of Argentina is required to comply and resolve it as
soon as possible. About the above acts, the International Buddhist Ethics Committee and Buddhist Tribunal on Human
Rights proceeds to issue the following ethical legal opinion.
II.
Preliminary Warning
Basically, it should be defined the field of
competence of the International Buddhist
Ethics Committee and Buddhist Tribunal on Human Rights at the moment of
performing the present opinion, which is dedicated to determine the existence
or not of acts that violate Buddhist ethics, but also to analyze conducts that
violate human rights, establishing ways of actions corresponding within the
legal framework of Buddhist Tribal Law. It should also be noted that legal
procedures carried out are ethical and spiritual activities characteristic of
the system of self-government of Buddhist communes, which are entitled to
maintain their political, economic, educational, religious and legal
institutions, as noted by the International Law. The special and universal
jurisdiction of the International
Buddhist Ethics Committee and Buddhist Tribunal on Human Rights has the
rights to develop and maintain the institutional structures of Buddhist people
and its distinctive traditions, procedures and legal practices, simultaneously
adhering to internationally recognized standards, such as International
Declarations, Covenants and Conventions on Human Rights, especially emphasizing
the "169th Convention of the
International Labour Organization (ILO) on Indigenous and Tribal Peoples"
of 1989. Cabe
señalar que el Estado de la República Argentina promulgó la aprobación del
Convenio 169 de la OIT en Abril 7 de 1992 a través de la Ley Nacional Nº 24.071
y posteriormente emitió ratificación del Convenio en Ginebra el 3 de julio de
2000.
III.
Regulatory Framework
In order to analyze the existence of a discriminatory
act or unconstitutional behavior by the Court in this case, it is essential to
provide the regulatory framework of the issue raised, both of the regulations
of Argentine Republic and the international human rights instruments.
In the first place, Articles 16 and 75 of the
Constitution of Argentina establish the right to equality, especially by giving
constitutional hierarchy to international human rights instruments which
enshrine the principle of equality and non-discrimination, like Article 2 the American Declaration of the Rights and
Duties of Man; Article 1 of the Universal
Declaration of Human Rights; Article 24 of the American Convention on Human Rights; Article 26 of the International Covenant on Civil and
Political Rights; Articles 2, 3 and 7 of the International Covenant on Economic, Social and Cultural Rights;
Article 1 of the International Convention
on Elimination of All Forms of Discrimination against Women; Articles 2 and
30 of the Convention on the Rights of the
Child.
Secondly, the Argentine Law No. 23.592 criminalizing
discriminatory acts says: “Any person who
arbitrarily prevents, obstructs, restricts or in any way impairs the full
exercise on an equal footing of the fundamental rights and guarantees
recognized in the National Constitution, shall be obliged, at the request of
the injured party, to render the discriminatory act without effect or cease to
perform it and repair the moral and material damage caused. For the purposes of
this article, particular consideration shall be given to discriminatory acts or
omissions founded on motives such as race, religion, nationality, ideology,
political or trade union opinion, sex, wealth, social status or physical
characteristics”.
Third, the existence of legal discrimination on the
part of the Court of Necochea is based on the violation to the constitutional
guarantees of criminal due process, such as the reasonable duration of process,
the right to defense, the right to be heard, and the right to be legally
assisted. These guarantees are also enshrined in the American Convention on Human Rights.
In fourth place, it is especially applicable in this
case the Article 12 of the “169th
Convention of the International Labour Organization (ILO) on Indigenous and
Tribal Peoples” of 1989, which stipulates: “The peoples concerned shall be safeguarded against the abuse of their
rights and shall be able to take legal proceedings, either individually or
through their representative bodies, for the effective protection of these
rights”.
IV.
Adequacy
of facts of the case
After listing the facts described along with the
regulatory framework, the International Buddhist Ethics Committee and Buddhist
Tribunal on Human Rights is able to perform an analysis about whether the Court
of Necochea committed an act of discrimination and unconstitutional behavior.
In the present case, ever since events began in August 2013, it has been
perceived a complete inefficiency and incompetence by the Argentine State
professionals who are part of the Judicial Power. This means that violations of
Buddhist ethics and human rights are not isolated cases but it is about a
systemic disease that is a characteristic of a Power dominated by organized
crime, corruption and impunity. In short, as the Congresswoman Dr. Elisa Carrió
said, "the institutional scandal
today in Argentina is the federal judges and there is where one has to claim
for the Republic". This fact has caused that each complaint of the
victims of the case is ignored by all organisms of the Judicial Power. Así,
mientras exista justicia para algunos e injusticia para otros, habrá entonces
un sistema jurídico viciado de discriminación. According to the International
Buddhist Ethics Committee and
Buddhist Tribunal on Human Rights, the main objective of Justice should be
to ensure the full enjoyment of the conditions of freedom, equality and
fraternity, allowing the enjoyment of all human rights and by promoting respect
for the fundamental dignity of life. The international treaties incorporated in
the National Constitution of Argentine Republic prohibit any form of
discrimination, especially when it comes to discrimination in access to
effective compliance enforcement of Justice, by imparting directives to ensure
the provisions of due process. However, since the complainants have expressed
having suffered discrimination on more than one occasion to the entities of the
Argentine Judicial Power, the International
Buddhist Ethics Committee and Buddhist Tribunal on Human Rights is issued
on the integral totality of the facts of the case. With regard to the
prosecutor's office of Necochea, it has been perceived that it has never
carried out a detention or a search warrant to seize firearms belonging to the
attackers, paralyzing all kind of measures over 2 years and even verbally
attacking the complainants. In addition, the Bar Association of Necochea
recommended the complainants to invent a false allegation of sexual abuse in
order that the prosecutor's office to take action, otherwise it considered
threats, attack, assault and attempted murder as a mere local civil conflict,
which was what happened when the case was derived to a dispute resolution
office. In the case it has not been verified any action on the part of the
judicial authorities except by the Court of Guarantees when issuing Injunctions
For Protection (IFP) as a request of complainants faced with the judicial lack
of protection by the State. Judicial authorities have neither responded nor
have acted concerning the complaint filed to the prosecutors of the case. All
these misconducts by the institutions of Judicial Power demonstrate that it is
profoundly discriminatory, since in other cases in which individuals with
political and economic power are involved there is a progress while cases of
social, ethnic or cultural minorities are ignored and respective functions are
not complied properly. Given the seriousness of the events denounced, the
complainants have required the intervention of the Inter-American Commission on Human Rights, which failed to halt the
framework of impunity of the case, as demonstrated by the facts narrated by Ms.
Pradelli: the trial was suspended and without notice to the victims, thus
violating all kind of local and international human rights jurisprudence. Faced
with these evidences, the International
Buddhist Ethics Committee and Buddhist Tribunal on Human Rights finds
sufficient evidences to confirm an Opinion concerning Discrimination. Given the
obligations of the Argentine Republic to ensure full access to justice and
social integration of ethnic minorities and tribal peoples, it is underlined
the obligation of the State authorities of the executive, legislative and
judicial powers to deploy all available resources at its disposal in order to ensure
compliance with national and international Law in the best possible conditions. Thus, the International
Buddhist Ethics Committee and Buddhist Tribunal on Human Rights expresses
that currently the Argentine Republic provides political, economic and cultural
resources exclusively to the Catholic Church, ignoring the duty of the State to
recognize the principle of equal opportunities in all social levels. “Such a
totalitarian spirit operates today in Argentina (...) thanks to legal order the
Roman Catholic Church has the religious monopoly and preferential
constitutional status in comparison with other religious confessions which
results in an INEQUALITY in religious freedom (...) bulldozing constitutional
rights (Articles 16 and 17 of Magna Carta) of those citizens who profess a
different cult from the Church of Rome or who do not profess any religion, but
it also gives a determined moral protection to said Church, something which
does not do with other confessions.”[1] To
carry out the egalitarian principle of Buddhist Tribal Law and of International
Law, which is the equality of human beings, the State must ensure that its
legal professionals are trained in human rights, so they can provide the
necessary support to communities that are discriminated. The Argentine Republic
must ensure that all persons have access to justice, especially minority groups
and tribal peoples, which have additional collective rights to individual human
rights.
With regard to the complaint lodged by the victims of
the case, it is stressed that is an Opinion of the International Buddhist Ethics Committee and Buddhist Tribunal on Human
Rights that the refusal of the Argentine Judicial Power to provide
constitutional guarantees and fundamental freedoms in order to access to
justice, as well as the indifference of the Executive Power faced with these
denounced facts, constitutes an act of discriminatory behavior in terms of laws
23.592 and 24.071. Therefore, if the victims
had been citizens with economic power or social status, the judiciary had acted
promptly and effectively. It also comes into consideration the violation of the
human right to peace of complainants, which has been completely unprotected and
ignored by the Argentine State, although there is a legal duty to take into
account the fact of being members of a tribal commune in which spiritual
lifestyle is central to the well-being and physical, mental and social health. This
Human Right to Peace encompasses a wide range of activities which are directly
or indirectly related to the complainants' political, economic, cultural and
environmental activities, which have been attacked as a result of the violent
assaults suffered and subsequently unprotected in face of the framework of
impunity by the State. In the case denounced, members are dedicated to
learning, care and monitoring of spiritual educational processes that are
essential and interdependent of tribal lifestyle of the Buddhist people, so
that protecting the free development of this lifestyle is an essential pillar
when ensuring access to health and justice. As stated above, there are various
international human rights instruments that guarantee the inherent right of
every individual, who is part of some kind of tribal people or ethnic minority,
to enjoy a dignified life according to its own system of traditions and customs.
Furthermore, because it is a violated minority but has full collective rights
to self-determination and self-government, it is indispensable the state
adoption of positive measures in order to guarantee the full integration of the
Buddhist people in the legal system such as it is embodied in the
aforementioned domestic and international regulation. In view of this it is
appropriate the indication of the International
Buddhist Ethics Committee and Buddhist Tribunal on Human Rights, regarding
tribal peoples, stating that the Argentine State is obligated by international
conventions ratified and approved by domestic law to promote the development of
collective rights using its available resources, which requires the Argentine
government to do much more than merely abstain from taking negative measures for members of tribal peoples. In the case of the
Buddhist people which is such a vulnerable community incapable of defending
itself aggressively against physical attacks because of their practice of
non-violence, the State obligation is to take positive measures that reduce structural disadvantages which
are a product of political, economic,
cultural and environmental discrimination, giving a preferential treatment that
is appropriate to members of communities different to those of the rest of the
general population, with the Purpose to achieve full and egalitarian
participation of all members of society. Consequently, the Judiciary must adopt
positive measures, such as dealing with complaints of the victims, thus
offering them preferential treatment. This has been raised in the Jurisprudence
of the Inter-American Court of Human Rights, which in the Saramaka case has
confirmed that tribal peoples keep "a
strong spiritual relationship”[2] with the environment in which they live, which is both their source of
life and their cultural identity. Such consideration would be especially
applied to the Buddhist people to whom the jurisprudence related to tribal
communities must be applied, by requiring special measures of State according
to International Law of human rights to protect the physical and cultural
existence of members of the Buddhist community. In this way, full access to
Justice as a form of protection of the Human Right to Peace is essential for
the survival of the lifestyle of Buddhist people, then being protected by the
provisions of the American Convention on
Human Rights (Pact of San José): Article 4 the right to life, Article 5
right to personal integrity, Article 8 fair trial, Article 11 protection of
honor and dignity, Article 12, freedom of conscience and religion, Article 15
right of assembly, Article 16 freedom of association, article 24 equality
before the law and Article 25 judicial protection.
The International
Buddhist Ethics Committee and Buddhist Tribunal on Human Rights indicates
that ratification of Convention No. 169 of
the International Labour Organization (ILO) on Indigenous and Tribal Peoples
and the corresponding Argentina Law 24.071 provide the legal framework for the
recognition of the operation of legal institutions of tribal peoples among whom
the Buddhist community is found. Therefore, it is the
obligation of the Argentine State not only to defend the collective rights of
the Buddhist people but also to respect their ethical and spiritual conclusions
in favor of human rights, contemplating actions of prevention, promotion and
protection of their cultural integrity, providing assistance to satisfying
their needs and requirements. It is then established that when Judicial Power
does not fulfill its constitutional functions it is essential then that the
tribal legal system of the Buddhist people fights against corruption and
impunity of the system. Following this line of ideas, the Argentine State must
provide appropriate juridical coverage to members of the Buddhist community,
whilst acknowledging the validity of its specialists and professionals
responsible for indispensably intervene in defense of Peace, Good and Justice
which are the specific characteristics of the lifestyle of the tribal people
that has been practiced over thousands of years and in every continent of the
world.
V.
Conclusion
The International
Buddhist Ethics Committee and Buddhist Tribunal on Human Rights concludes
it is out of discussion that the complainants' constitutional guarantees to
access justice have been violated. The latter ones not only having the right to
the highest attainable level of physical, mental, social and spiritual health,
but also the right to have their own tribal juridical systems that become more
important when making heard their fundamental freedoms and fighting against
impunity, so their notifications, opinions, resolutions and judgments must
prosper. The International Buddhist Ethics
Committee and Buddhist Tribunal on Human Rights dictates that state support
is fundamental when ensuring access to justice and health in its integral
sense, but it is also for the possibility of social integration and full
enjoyment of all collective and individual human rights.
Ergo, the International
Buddhist Ethics Committee and Buddhist Tribunal on Human Rights considers
the following points:
1.
It is
claimed that the refusal to provide full and effective access to Justice
constitutes a discriminatory conduct by the Judicial Power the terms of Laws
23.592 and 24.071, together with concordant complementary laws.
2.
It is
requested the impeachment of the judge in charge of such actions along with the
intervention of the Court of Necochea which was in charge of the case.
3.
It is
required the Argentine Republic adapts a special plan to access Justice for
individuals and peoples of all tribal peoples in order to give full response to
needs in legal matters that endanger the physical, mental, social and spiritual
health of its members.
4.
It is
required the Argentine Republic to comply with the Conventions ratified before
the ILO, by providing implicit and explicit legitimacy to the conclusions that
are stipulated by legal institutions which are a characteristic of all tribal
peoples residing in its country, which have self-determination and
self-governance internationally recognized.
5.
It is
declared unconstitutional the Law of Cults 21.745 and its corresponding
Registry of Worship in the Ministry of Foreign Affairs of Argentina for being
an essentially discriminatory body that does not guarantee freedom of worship
and also has its origins in pursuit social control on the part of the military
dictatorship.
6.
It is
declared discriminatory and unconstitutional another law of military
dictatorship, the Argentine law 21.950 by which the Argentine state pays the
salaries of Catholic bishops and archbishops, which would be an equivalent to
80% of the salary of a judge.
7.
It is
hereby stated that indifference to this Opinion by the highest authorities of
Government of Buenos Aires, Ministry of Justice, Ministry of Foreign Affairs
and the Presidency of the Nation, would constitute an act of complicity with
the discriminatory and unconstitutional actions which have been opportunely
analyzed.
Always with a spirit of reconciliation,
Buddhist Master Maitreya
President of the International
Buddhist Ethics Committee & Buddhist Tribunal on Human Rights
