Opinion; Subjects: ARGENTINA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.18-01028 (E) 020318 080318
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eightieth session, 20–24 November 2017
Opinion No. 73/2017 concerning María Laura Pace and Jorge Oscar
Petrone (Argentina)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2.
In accordance with its methods of work (A/HRC/33/66), on 2 March 2017 the
Working Group transmitted to the Government of Argentina a communication concerning
María Laura Pace and Jorge Oscar Petrone. The Government replied to the communication
on 2 May 2017; its response was transmitted to the source on 7 July 2017 for additional
comments, which were received on 21 July 2017. The State is a party to the International
Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
United Nations
A/HRC/WGAD/2017/73
General Assembly
Distr.: General
23 January 2018
English
Original: Spanish
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disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
María Laura Pace, an Argentine notary public, has been detained since 24 May
2016. Jorge Oscar Petrone is an Argentine national. Both are detained in Bouwer prison in
Córdoba Province, and both were sentenced to deprivation of liberty during the so-called
Land Registry Megatrial, which consisted of several criminal trials and proceedings relating
to events recorded between 2003 and 2006.
5.
The source reports that the Office of the Attorney General of Córdoba Province
decided as of 2006, through administrative acts Nos. 30/2006, 31/2008, 67/2008 and
04/2009, that all complaints relating to the Córdoba Land Registry should be referred only
to the Fifth Rota Prosecutor’s Office of Judicial District No. 1. In addition, Córdoba
Criminal Court No. 10 issued ruling No. 26 of 21 May 2008, establishing that cases relating
to the Land Registry should not be allocated by rota or by drawing lots, and granting itself
exclusive jurisdiction to deal with such cases. The source claims that this reservation of
jurisdiction through administrative acts and a judicial ruling, whereby a special or ad hoc
court was established, constitutes a violation of the right of Ms. Pace and Mr. Petrone to be
tried by a competent court (natural judge), in accordance with the Córdoba Code of
Criminal Procedure, domestic legislation and international treaties.
6.
According to the information received, Ms. Pace was tried and convicted on four
occasions by the same court (Córdoba Criminal Court No. 10) of the same offence
(ideological forgery), without recidivism. The sentences were handed down on 8 April
2009, 17 August 2010, 25 September 2012 and 10 January 2014. Prior to that, Ms. Pace
had lodged a criminal complaint against certain members of the court in question, which
would have required them to recuse themselves from the case, pursuant to article 60 of the
Code of Criminal Procedure. However, the judges concerned did not recuse themselves;
instead, they proceeded to try Ms. Pace and to impose the four sentences.
7.
The source claims that the denial of the right to disqualify a judge from the
proceedings constituted a violation of the right to be tried by an impartial court.
Furthermore, the fact that the defendant was tried on successive occasions by the same
court allegedly indicates the existence of bias against her. At the time when the submissions
were received, a fifth case against Ms. Pace remained pending before the same court.
8.
Mr. Petrone was convicted, for his part, of appropriation of property and ideological
forgery by Córdoba Criminal Court No. 10 and sentenced to 5 years and 6 months’
imprisonment on 10 January 2014. Subsequently, on 14 March 2014, the High Court of
Justice of Córdoba ordered his release on the grounds that the sentence was not final and
that the preventive detention order failed to meet the relevant legal requirements. Mr.
Petrone was required instead to post bail, appear in court every fortnight and remain in the
province.
9.
According to the source, on 19 August 2015 the High Court of Justice dismissed an
extraordinary appeal lodged on behalf of Mr. Petrone. As a consequence, Court No. 10
ordered his arrest on the following day, 20 August 2015. He was arrested on that day after
appearing in court (in compliance with the requirement that he appear in court every
fortnight).
10.
The source claims that Court No. 10 then issued another preventive detention order,
instead of referring the case to the enforcement judge for execution of the sentence. As a
result, Mr. Petrone’s case remained at the stage of preventive detention, subject to the
jurisdiction of Court No. 10, instead of progressing to the stage of sentence enforcement,
under the supervision of the competent courts. The source alleges that if Mr. Petrone’s case
had been referred to the court responsible for sentence enforcement, he would have had
access to procedural benefits such as commutation of the sentence, probation, the trust
phase and semi-imprisonment. In light of the foregoing, the source asserts that there is no
legal basis for imposing preventive detention on Mr. Petrone, since he has already been
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sentenced. The enforcement of his sentence should therefore be initiated in accordance with
the standard proceedings.
11.
In addition, after the High Court of Justice dismissed the extraordinary appeals,
Court No. 10 imposed preventive detention on Mr. Petrone but allowed the other
individuals who had been sentenced in the same case to remain on conditional release.
Court No. 10 subsequently referred their cases to the enforcement court for execution of the
sentence without imposing preventive detention. According to the source, this constitutes
discriminatory treatment, inasmuch as the decision to deprive Mr. Petrone of his liberty was
based on his economic condition and resulted in unequal treatment, restricting his right to
personal liberty, while the other persons convicted during the Land Registry Megatrial
received more favourable treatment.
12.
The source emphasizes that Mr. Petrone never made plans to flee and had no
criminal record, but rather complied with his obligations by remaining in the province,
posting bail (a larger amount than the others) and attending court twice monthly during the
period when he was on conditional release. In spite of that, he received a harsher sentence,
was not granted conditional release while the extraordinary appeals were being considered
(unlike the other convicted persons), and was not allowed to start serving his prison
sentence under the jurisdiction of an enforcement court (the other convicted persons were
allowed to do so when their appeals were eventually dismissed). According to the source,
this was all due to Mr. Petrone’s economic condition and therefore constitutes
discrimination.
13.
Based on the source’s allegations, the situation could be deemed to constitute
arbitrary detention under category I, on the grounds that there is no legal basis for the
preventive detention of Mr. Petrone. In addition, with regard to the right to be tried in
accordance with due process by a competent and impartial court, the allegations made by
the source could indicate partial non-observance of due process norms to the detriment of
Ms. Pace and Mr. Petrone, under category III. Lastly, the detention of Mr. Petrone could be
considered discriminatory and therefore arbitrary under category V, on the grounds that he
suffered a more burdensome restriction of his right to personal liberty than other convicted
persons on account of his economic condition.
Response from the Government
14.
On 2 March 2017, the Working Group transmitted the communication to the
Government of Argentina through its regular procedure. The Working Group requested that
the Government respond to the communication by presenting its arguments and the details
of the case. The Government submitted its response on 2 May 2017.
Judicial proceedings
A.
Jorge Oscar Petrone
15.
The Government states that Mr. Petrone was detained on 8 January 2014 in
connection with cases Nos. 230527 and 1015074, Enz Alfredo Miguel and others on
charges of ideological forgery, etc., which formed part of the so-called Land Registry
Megatrial. In ruling No. 1 of 14 February 2014, Córdoba Criminal Court No. 10 declared
Mr. Petrone a criminally responsible key participant in the offences of continuing
ideological forgery and appropriation of property, committed as a series of offences, and
sentenced him to 5 years and 6 months’ imprisonment and a fine of 80,000 Argentine pesos
(Arg$) plus legal fees and costs, converting his detention into preventive detention and
ordering that he continue to be held in Reverend Luchesse Prison Complex No. 1, at the
disposal of the court. In that ruling, Court No. 10 also acquitted Mr. Petrone of a second
charge of appropriation of property, since the statute of limitations for criminal proceedings
had expired.
16.
The Government states that Mr. Petrone’s defence counsel lodged an appeal in
cassation against this ruling based on the civil and criminal verdict. The appeal was
dismissed by the Criminal Chamber of the High Court of Justice in a ruling of 30 December
2014. Mr. Petrone’s counsel then filed an extraordinary federal appeal, which was declared
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formally inadmissible on 19 August 2015, leading him to file a complaint with the Supreme
Court. The case is currently pending before the Supreme Court, which means that the
sentence is not yet final.
17.
On the other hand, on 14 March 2014 the Criminal Chamber of the High Court of
Justice upheld the appeal in cassation filed by Mr. Petrone’s counsel against the preventive
detention order handed down by Court No. 10 and extended its decision in that regard to his
co-defendants, including Ms. Pace. On 17 March 2014 Mr. Petrone was released, pursuant
to an order by Enforcement Court No. 3, after having posted bail as required by the High
Court of Justice. He had thus been deprived of his liberty for a period of two months and
nine days.
18.
According to the Government, after the sentence handed down by Court No. 10 was
upheld by the Criminal Chamber and the extraordinary federal appeal was declared
inadmissible, Court No. 10 overturned the decision to release Mr. Petrone on 19 August
2015, and he was returned to preventive detention on 20 August 2015. In response, Mr.
Petrone’s defence counsel lodged an appeal in cassation, which was dismissed by the
Criminal Chamber of the High Court of Justice on 25 February 2016. His counsel then filed
an extraordinary federal appeal, which was declared formally inadmissible on 16 May
2016. There is no record of a direct appeal being filed with the Supreme Court.
19.
On 19 February 2016, Court No. 10 dismissed the request that Mr. Petrone’s
preventive detention be converted to house arrest, on the grounds that the complaint filed
with the Supreme Court by his defence counsel was still pending. In response, his defence
counsel lodged an appeal in cassation, which was dismissed on 15 September 2016 by the
Criminal Chamber of the High Court of Justice. His counsel then filed an extraordinary
federal appeal, which was declared inadmissible by the Criminal Chamber on 7 December
2016. There is no record of complaint proceedings being brought before the Supreme
Court.
20.
On the other hand, the Government states that, on 8 March 2017, Court No. 10
requested the competent enforcement court to rescind order No. 860 of 23 September 2014,
in view of the fact that Mr. Petrone had been deprived of his liberty. Consequently, in an
order handed down the same day, Enforcement Court No. 3 cancelled the bail that had been
posted by Mr. Petrone.
21.
Subsequently, on 24 April 2017, Court No. 10 set 11 December 2020 as the
provisional date for completion of the prison sentence imposed on Mr. Petrone. This
information was passed on to the Enforcement Court.
22.
Lastly, Mr. Petrone’s defence counsel appeared before Court No. 10 and requested
that the criminal proceedings be terminated on the basis of article 59 (6) of the Criminal
Code; that request was rejected on 19 February 2016. His counsel then filed an appeal in
cassation, which was declared formally inadmissible by the Criminal Chamber of the High
Court of Justice on 14 December 2016. In response to that decision, his counsel first lodged
an appeal for annulment, which was declared formally inadmissible by the Criminal
Chamber on 21 March 2017, and then an extraordinary appeal, which was declared
inadmissible on 18 April 2017. As far as the Government is aware, defence counsel has not
filed a direct appeal with the Supreme Court.
23.
The appeal in cassation filed by Mr. Petrone’s defence counsel against the decision
of 15 December 2016 to dismiss the request to ease the terms of his preventive detention
remains pending before the Criminal Chamber of the High Court of Justice.
B.
María Laura Pace
24.
According to the Government, several sentences have been imposed on Ms. Pace by
Córdoba Criminal Court No. 10 in the domestic proceedings brought against her.
25.
In sentence No. 3 of 3 August 2009, Ms. Pace was convicted as a co-perpetrator of
ideological forgery (articles 45 and 293 of the Criminal Code) and sentenced to 3 years and
10 months’ imprisonment, a fine of Arg$ 10,000 and disqualification for seven years (cases
Nos. 154418 and 139110). Her defence counsel filed an appeal in cassation against this
sentence, objecting only to the penalty imposed; the appeal was dismissed and the sentence
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upheld by the Criminal Chamber of the High Court of Justice in ruling No. 154 of 10 June
2010. Her counsel then filed an extraordinary federal appeal, which was withdrawn by Ms.
Pace. The sentence is therefore final.
26.
On 26 July 2010, Ms. Pace was convicted of ideological forgery committed as a
series of offences (articles 45, 193 and 55 of the Criminal Code) and sentenced to 3 years
and 6 months’ imprisonment and specific disqualification for seven years (case No. 95069).
This penalty was combined with the previous one, entailing a single penalty of 5 years and
6 months’ imprisonment, a fine of Arg$ 10,000 and disqualification for ten years. The
sentence was not appealed in cassation and is therefore final.
27.
The Government also states that, on 17 August 2010, Ms. Pace was convicted of
ideological forgery committed as a series of offences (articles 45, 293 and 55 of the
Criminal Code) and sentenced to 3 years’ imprisonment, a fine of Arg$ 7,000 and
disqualification for six years (cases Nos. 91972 and 167157). Her defence counsel filed an
appeal in cassation against this sentence, objecting only to the combined penalties. The
appeal was dismissed by the Criminal Chamber of the High Court of Justice in ruling No.
111 of 24 May 2011. No extraordinary federal appeal was lodged, which means that the
sentence is final.
28.
On 25 September 2012, Ms. Pace was convicted of continuing ideological forgery
(articles 45 and 293 of the Criminal Code) and sentenced to 3 years’ imprisonment, a fine
of Arg$ 15,000 and disqualification for seven years (case No. 161070). Her defence
counsel filed an appeal in cassation against this sentence, objecting to the verdict
concerning the criminal involvement of Ms. Pace. The appeal was dismissed on 30
December 2014 by the Criminal Chamber of the High Court of Justice. The extraordinary
federal appeal that was subsequently filed was also dismissed by the Criminal Chamber on
29 August 2015. As far as the Government is aware, a direct appeal has not been filed with
the Supreme Court.
29.
In sentence No. 1 of 14 February 2014, Ms. Pace was convicted as a co-perpetrator
of ideological forgery (articles 45 and 293 of the Criminal Code) and sentenced to 3 years
and 6 months’ imprisonment, a fine of Arg$ 20,000 and disqualification for ten years (cases
Nos. 235252, 230527 and 1015074), resulting in a combined penalty of 8 years’
imprisonment, a fine of Arg$ 28,000 and specific disqualification for ten years. Her defence
counsel lodged an appeal in cassation against this sentence, objecting to the evidentiary
basis for the verdict concerning her involvement in the offence, and to the penalty, the
combined penalties and the imposition of preventive detention. The Criminal Chamber of
the High Court of Justice upheld the appeal relating to preventive detention (ruling No. 36)
on 14 March 2014, but dismissed the appeal relating to the criminal conviction (ruling No.
516) on 30 December 2014. Ms. Pace’s counsel filed an extraordinary federal appeal
against the second ruling, which was declared inadmissible by the Criminal Chamber on 19
August 2015. Her counsel then filed a complaint with the Supreme Court, which was
dismissed on 24 May 2016. All domestic remedies have thus been exhausted, which means
that the sentence is final.
30.
Lastly, on 27 March 2017 Ms. Pace was convicted, in connection with case No.
954262, Gabarro, of continuing and repeated ideological forgery (articles 45, 293, 55 a
contrario sensu and 55 of the Criminal Code) and sentenced to 3 years’ imprisonment and
specific disqualification for double the term of imprisonment. This sentence was combined
with the previous ones, entailing a sentence of 10 years and 6 months’ imprisonment, a fine
of Arg$ 38,000 and specific disqualification from the notarial profession for ten years.
Analysis of the issues raised
31.
The National Secretariat for Human Rights and Cultural Pluralism notes on behalf of
the Government that on 20 March 2017, in the proceedings entitled Pace, María Laura –
Execution of custodial sentence, Enforcement Court No. 2 granted Ms. Pace conditional
release for the remainder of her sentence, which will end on 9 December 2019. Hence Ms.
Pace is not currently deprived of her personal liberty.
32.
The National Secretariat for Human Rights and Cultural Pluralism nonetheless
draws attention to the observations of the High Court of Justice regarding the alleged
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violation of the right to be heard by an impartial court in the judicial proceedings against
Ms. Pace described above. The High Court notes that Ms. Pace never objected to the
involvement of Córdoba Criminal Court No. 10 and that the appeals filed in the various
cases referred to other grievances.
33.
In that regard, the High Court of Justice further notes that, in case No. 161070,
which concerned Ms. Pace, some of the other defendants challenged the involvement of
Court No. 10, using similar arguments to those submitted by the source (violation of the
natural judge principle). That complaint was dismissed by the Criminal Chamber of the
High Court of Justice in ruling No. 514 of 30 December 2014, on the grounds that the
involvement of Court No. 10 was consistent with the rules of linkage based on the
perpetrator of the offence, consolidation and severance of proceedings. According to the
Government’s response, the High Court of Justice also states that Court No. 10 is a trial
court in all proceedings relating to the so-called Land Registry Megatrial because it was
selected at random through a computerized process, in accordance with regulatory decision
No. 668/2003, which was handed down by the High Court of Justice pursuant to its legal
and constitutional authority to oversee the regulation of case allocation among courts with
the same territorial and material jurisdiction (arts. 166 (2) and 12 of the Constitution of
Córdoba Province and article 25 of the Organic Act on the Judiciary). Moreover, based on
the principle of jurisdiction by connection, given that other proceedings had previously
been brought against the defendant María Laura Pace (starting with case No. 139110,
Cardarelli, Angélica and others), the Court undertook to hear these cases, which should
follow a similar course, through consolidation of proceedings (art. 47 (3) of the Code of
Criminal Procedure), without prejudice to the later severance of proceedings based on
article 368 of the Code of Criminal Procedure (High Court of Justice, Arcana, decision No.
425 of 20 December 2013).
34.
The High Court of Justice also states that the co-defendant who submitted a motion
challenging the court maintained this grievance (violation of the natural judge principle) in
an extraordinary federal appeal that was declared inadmissible (A.I. No. 415 of 19 August
2015) and that the verdict in question was final, as the complaint lodged with the Supreme
Court was declared inadmissible on 19 April 2016.
35.
For these reasons, the Government asserts that the alleged violation of the right to
the natural judge was not a point of contention in the domestic appeal proceedings brought
by Ms. Pace.
36.
In addition, the motion challenging two members of Court No. 10 submitted by Ms.
Pace’s defence counsel in case No. 954262 was declared time-barred and inadmissible by
Court No. 10 on 8 April 2015. Her counsel lodged an appeal in cassation against that
decision before the Criminal Chamber of the High Court of Justice. The appeal was
dismissed on 9 June 2015, inter alia on the following grounds: (a) the motion should have
been submitted to the court during the summons period, unless it was based on facts that
took place or came to light at a later date (article 67 of the Code of Criminal Procedure); (b)
the motion was quite clearly time-barred, since it was submitted almost 10 months after the
facts on which it was based took place; and (c) the judges’ prior involvement, in the
performance of their duties, including as a result of the consolidation of proceedings, and
the existence of verdicts that conflict with the defendant’s interests are not sufficient
grounds to suspect a lack of impartiality on the part of the judge, if no other circumstances
giving serious reason to infer or suspect a lack of impartiality are invoked.
37.
The Government states that Ms. Pace’s defence counsel filed an extraordinary
federal appeal against the Criminal Chamber’s decision. The appeal was declared formally
inadmissible on 4 September 2015. Her counsel then lodged a complaint with the Supreme
Court, which was dismissed on 29 March 2016.
38.
According to the Government, this shows that, in the legal proceedings in question,
the judge was duly appointed and impartial, fair trial guarantees were fully respected and
the defendant could exercise her right of defence effectively before the competent courts,
which dealt with her claims within a reasonable period of time.
39.
With respect to Mr. Petrone’s alleged situation, the Government states, first of all,
that he has been under the jurisdiction of Enforcement Court No. 3 since 14 March 2014
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(the date on which Court No. 10 transmitted his file), while Court No. 10 retains the power
to change or put an end to the coercive measures imposed. With a view to providing further
details, the Government attached a report on Mr. Petrone’s state of health and access to
private services, as well as his access to educational activities and business
communications.
40.
With regard to the alleged unequal treatment of Mr. Petrone, the Government states
that the High Court of Justice gave a detailed description of the situation of the other co-
defendants in the case involving Mr. Petrone, which is outlined above. The Court then
noted that the alleged discrimination was not mentioned in the numerous appeals filed by
his defence counsel regarding his detention. The Court further noted that preventive
detention had been imposed on other co-defendants, including before the verdict was
reached, and that there were special grounds for the release of the other defendants. It is
therefore clear, according to the Court, that there has been no unequal treatment of Mr.
Petrone on the basis of his economic condition or on any other grounds.
41.
The Court maintains that the sentence handed down to Mr. Petrone is not final
because the direct appeal lodged with the Supreme Court is pending, which means that his
deprivation of liberty is a coercive measure.
42.
With regard to the procedural risks that warrant the use of a preventive coercive
measure, the Government notes that the judicial decisions of both Court No. 10 and the
High Court of Justice reaffirm the risks of release, but that an appeal in cassation against
the refusal of Court No. 10 to ease the terms of his detention or to terminate it remains
pending.
43.
The Government also states that the complaints submitted to the Working Group
were not submitted to the domestic courts. This means that the State was not given the
opportunity to deal with the complaints through its domestic courts and provide a remedy
where appropriate.
44.
Lastly, with respect to Mr. Petrone, the Government reiterates that the Supreme
Court is still considering the complaint filed following the dismissal of the extraordinary
federal appeal against his conviction, as well as a claim that the statute of limitations for
proceedings brought by provincial courts has expired.
45.
For all the above reasons, the Government maintains that, in the domestic
proceedings brought against Ms. Pace and Mr. Petrone, the judge was duly appointed and
impartial, fair trial guarantees were duly respected, the defendants were able to exercise
their right of defence effectively by seeking available domestic remedies, and their claims
were being addressed by the various competent courts within a reasonable time frame.
46.
The Government concludes that the situation concerning Ms. Pace and Mr. Petrone
that has been brought to the attention of the Working Group does not constitute any
category of arbitrary detention and therefore requests a declaration to that effect.
Further comments from the source
47.
The source transmitted its comments and observations concerning the Government’s
response on 21 July 2017. The comments include extensive references to a previous
opinion of the Working Group regarding a case of deprivation of liberty in Argentina.
According to the source, since the Land Registry Megatrial was viewed as a single case by
the court concerned, the right to challenge the court could be exercised only once.
However, the disqualified judge subsequently handed down multiple decisions, which is
clearly irregular, because judges cannot decide on a case from which they have recused
themselves. According to the source, this made it possible for Ms. Pace to be convicted
repeatedly by the same court.
48.
The source adds that Ms. Pace was sentenced, in one of the cases brought against
her, to a second term of preventive detention following her completion of the first three-
year term. However, when the maximum legal period of preventive detention had elapsed,
she was denied release on the grounds that her situation, as a convicted person without a
final sentence, was not covered by law.
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49.
The source notes that if Ms. Pace had been tried only once for all the charges laid
against her, she would have received a maximum sentence of 6 years, but as she was tried
separately for each offence, she has already been sentenced to more than 10 years’
imprisonment and to far more than the maximum disqualification period of 10 years.
50.
The source further notes that a member of the High Court of Justice who has dealt
with many cases was formerly a member of the Attorney General’s Office and, in that
capacity, appointed the public prosecutor as an additional party representing the Court
Prosecution Office. The member in question is also a sister of the complainant (the director
of the Land Registry) but nonetheless failed to recuse herself.
51.
The source states that, before the second period of preventive detention, a complaint
was lodged against the three members of Court No. 10 for aggravated illegal deprivation of
liberty. The complaint was dismissed by the Prosecution Office without further comment
and two of the three members were appointed to try Ms. Pace again in the last case brought
against her.
52.
According to the source, the fact that Ms. Pace is now on conditional release and at
risk of being convicted once again does not mean that the Working Group cannot be
requested to determine whether the criminal proceedings brought against her are in line
with international human rights standards, given that she faces an imminent threat of
renewed detention.
53.
In its comments, the source notes that Mr. Petrone was sentenced to a second term of
preventive detention on the ground that he posed a flight risk, even though the decision to
release him from preventive detention had not been revoked, and that he was arrested at the
court in a scandalous and humiliating manner when he made his fortnightly court
appearance. The restriction on his liberty included a large bail sum, which remained
payable, and a ban on leaving Córdoba Province. The second period of preventive detention
was imposed on the ground of flight risk, but no evidence that he was preparing to flee was
provided, even though evidence of that kind is required by law when preventive detention is
imposed. The source maintains that a convicted person who is appealing against a verdict
cannot be subjected to a second preventive detention order in connection with the same
case.
54.
The source reiterates that Mr. Petrone was detained while four other defendants who
were in the same situation (their extraordinary appeals had been dismissed on the same day)
were allowed to remain at liberty, subject to another bail payment.
55.
The source asserts that the preventive detention of Mr. Petrone is unjustifiable, since
he was fulfilling all the precautionary obligations imposed on him while his appeal was
being processed.
Discussion
56.
The Working Group is mandated to investigate cases of deprivation of liberty
imposed arbitrarily that are brought to its attention. In the discharge of its mandate, it refers
to the relevant international standards set forth in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights, as well as to other
relevant international legal instruments, in accordance with its methods of work.
57.
The Working Group is not convinced that Ms. Pace and Mr. Petrone have been
detained arbitrarily under the applicable international law, including the rules for
processing communications through the regular procedure.
Disposition
58.
In light of the foregoing, the Working Group is of the view that, based on the
information provided, María Laura Pace and Jorge Oscar Petrone cannot be considered to
be detained arbitrarily, under the applicable international legal norms and the rules
contained in its methods of work.
[Adopted on 21 November 2017]