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.” 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” 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.
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