The Supreme Court shook the end of the year with a ruling that benefits two civilians, Emilio and Julio Méndez, who had been convicted in 2012 by the Federal Oral Court (TOF) of Mar del Plata for having provided to the military who operated in Tandil a fifth to be used as a clandestine center and where it was proved the labor lawyer Carlos Alberto Moreno was held captive in 1977 before his murder. Head of the subject of Criminal Procedure Law at the National University of Mar del Plata, Roberto Falcone is an experienced judge who has intervened in trials against humanity for more than a decade and previously did so in those of truth in that city. Falcone, in addition, was a member of the court that convicted the Mendez and spoke with Page 12 to break down the Court’s ruling. “The statements I make are as a professor of Criminal Procedure Law, I am not defending a sentence of mine through a journalistic note. The sentences defend themselves and, if they are not defended, the Criminal Cassation Chamber will know what to do ”, he clarifies.
– How is the Court’s ruling explained?
– In the majority vote, the Court says that the right of the convicted person to a comprehensive review of the sentence guaranteed by Article 8.2.h of the American Convention on Human Rights has been violated. Thus, he reiterates something that he has already said since 2008: in order to guarantee double compliance, the court that reviews the sentence cannot refer to the mere reiteration of the arguments presented by the oral court, that this does not constitute a due control of the arguments of the sentence that is appealed and compromises the rights of the accused to have his sentence fully reviewed and to respect the double conforming. So the Court disqualifies the ruling and clarifies that it is without implying a decision on merit. That is, it does not enter the merits of the matter and forwards it to the Federal Criminal Cassation Chamber to review the judgment of the TOF of Mar del Plata.
– And the Rosenkrantz vote?
– It’s a completely different vote. Dr. Rosenkrantz introduces in Argentina what is called the complex integrative sentence, which is an elaboration that Perfect Andrés Ibáñez did in Spain. Rosenkrantz descends to the examination of the facts, that is, to the assessment of the evidence made by the TOF of Mar del Plata and, based on the defense arguments – it does not appear from his ruling that he has seen the entire trial – – He constructs a complex integrative sentence, disqualifies a series of evidentiary elements and incorporates others, and concludes by saying that the knowledge of the use of the home by military personnel is not proven or that the court should have doubted. That is why he understands that the guilt of the accused is not proven and obviously concludes in an acquittal.
– So how is this failure evaluated?
– There are two problems. In the majority vote, constant reference is made to in doubt for the accused, but up to now the Court had never presented it as an objective situation. In other words, the federal court should have doubted, it did not doubt, so I have one more argument as constitutive of a federal question that I can take to the federal court. Doubt is a state of mind in the judge, which the TOF raises it when it notices that the evidence of the charge does not allow it to prove the certainty of the facts on which the prosecution founded the conviction. The accusation is responsible for the accreditation of the truth of the facts and the TOF understood that the accusation proved the facts on which it based its request for conviction, so it does not have to consider the in dubio pro reo. That mention made by the majority vote can be considered as a incidentally it, that is, an argument that the court includes in the sentence so that the judges take it into account but that, if they do not take it into account and the Court believes that the evidence has not been evaluated according to legal parameters, could motivate a revocation of the sentence. But this revocation of the sentence should lead to another oral and public trial and another court has to do it because the judges who made up the court are already contaminated by the perception of the evidence.
– What is the problem, in your opinion, in the vote of Rosenkrantz?
– In the Matías Casal case of 2005, the Court applies a review method that translates into exhaustion of the review capacity. In a sentence handed down by an oral court, some of the grounds can be reviewed by a higher court, such as the Cassation or the Court itself. The sentences handed down by an oral court are made up of two types of statements: inferential, which are conclusions based on premises, which can be reviewed by a higher court, and immediacy, which are those sensory perceptions of the trial court, which are intersubjectively communicable, but that if I do not believe the witness because he doubts or because he looks to the sides before answering, all this is not controllable by a higher court because, to be controllable, that higher court has to be found par epistemic condition, that is to say, the reviewing judge would have to have been seated next to the oral court judge in order to be able to perceive sensually as the trial judge perceives it. But that does not happen because it is reinterpreting evidence that was produced several years ago in relation to the prosecution of events that occurred more than 40 years ago. This is something that until now in Argentina the Court had not done. When the Court annulled sentences of the oral courts because it understood that there could be an arbitrary assessment of the evidence, generally this was extracted from the analysis of the inferential statements, what it did is annul the trial and ordered another trial to be made. Not here, the presidency says “here there is no evidence of the charge and you have to acquit”, which is highly debatable.
— What are the arguments that allow to conclude that Rosenkrantz is on this path?
– Next year there is a Centennial Congress, in which the prosecution of crimes against humanity will be discussed in one of the points. It seems to me that there is a very big error in this regard: I believe that it is intended to judge State terrorism with phenomenological criteria. It is required, as it was required at the beginning of the last century, that each fact be accredited by an eyewitness or two witnesses answer at the scene, but State terrorism worked in a way in which the perpetrators of these crimes had dominance From the state apparatus, they seized power by force, they mobilized in unidentified cars, entered houses with hoods, kidnapped people and took them to places where no one could access, tortured and killed them. These issues – and I have explained them in all the judgments in which I intervened since 2010 – cannot be judged with phenomenological criteria, they must be judged with normative criteria. So it cannot be said that they should be judged with the same evidentiary rigor as common cases because they are not common cases. I do not need in all cases to have the photograph or film of the murderer when he stabs the dagger on the victim’s chest because then no one could be convicted. We do not condemn by inference, as it is stated in the sentence, we condemn based on direct evidence and indirect evidence. We convict based on “fresh” evidence, as fresh as we can obtain in a country like Argentina that makes the trials 40 years after the events and we extract serious, precise and consistent assumptions from the evidence produced in the trial. The review made by the Federal Cassation of the sentences handed down in trials for State terrorism is very complete.
– Do you think that this ruling sends a discouraging message to those who have to judge civilians for their role in State terrorism?
– It is a question that I have to answer in a couple of months, because first this case has to go to Cassation.
– Rosenkrantz says that there is no evidence to support that the Mendez participated in the criminal enterprise with the military in the area. What elements did you find to take it for granted?
– We are not talking about criminal enterprise. The conviction was handed down because at the discretion of the three judges, unanimously, there was full proof of the facts that the prosecution confronted him. Until the sentence reached the Court, twelve magistrates intervened and they all saw it in the same way. That something wants to say.