On May 3, the Argentine Supreme Court issued a controversial ruling on sentencing for crimes against humanity committed during the country’s last dictatorship, from 1976 to 1983. It ruled that Luis Muiña, convicted for torture and kidnappings committed in 1977, could benefit from a 1994 law—colloquially known as the “2x1” law. The court reduced his sentence from 13 years to 9, based on provisions in that law that after two years, every additional day a person spent in pretrial detention would count as two as part of the total sentence.
A slim majority of three out of five justices concluded that in light of existing provisions in the Criminal Code, the 2x1 law, which was abrogated in 2001, was applicable based on the “the most favorable law” principle. Under that well-established human rights principle, defendants should benefit from the retroactive application of reforms that would lessen their punishment. In this case, the “the most favorable law” principle meant applying a 1994 law to crimes committed in 1977. The two dissenting judges stated that the “most favorable law” was not applicable, in part because it runs counter to Argentina’s international obligation to sentence people for grave human rights abuses in way that is not grossly inadequate with respect to the gravity of the crimes.
The ruling was denounced by many human rights groups as well as high-level officials, including President Mauricio Macri. It opened the door to heated discussions in Argentina about whether the court’s majority was right. A close look at the ruling and the legal issues at stake suggests, however, that there are valid arguments in both the majority and the minority votes.
There are three preliminary considerations that must be clearly stated.
First, policies that dissuade authorities from employing pre-trial detention excessively are positive measures. These incentives are especially necessary in countries where defendants often suffer from the combination of an unreasonable use of pre-trial detention, overcrowded prisons, and delays in the justice system. In this light, it is worth emphasizing that the 2x1 law’s provisions became relevant only after a criminal defendant had spent two years behind bars awaiting resolution of the case against them.
Second, due process guarantees, including the “most favorable law” principle, should be applicable to everyone, including those responsible for the worst atrocities. In any democratic society, the rules of the game must be equal for all, without discrimination.
Third, under international human rights standards, sentences that are grossly or manifestly inadequate given the gravity of these crimes would not constitute real accountability, and would deprive victims of the meaningful justice they deserve. Provided meaningful justice is delivered, however, there is nothing in international law forbidding governments from applying sentencing benefits—including sentence reductions and house arrest—for those convicted of grave abuses, when the requirements for these benefits under domestic law are met.
So, the issue at stake is not whether the 2x1 law was good, or whether those who committed the most egregious abuses are entitled to due process guarantees.
The issue is, rather, whether this specific rule should apply to abuses committed during the dictatorship. To answer that, it’s important to remember that the principle of the “most favorable law” is based on the idea that if a society decides—when passing a new law—that certain actions are less condemnable, it would be unfair to maintain a punishment that does not reflect the new social assessment of the crime. When the 2x1 law was passed in 1994, abuses committed during the dictatorship were not under investigation by Argentine courts and prosecutors because they were covered by amnesty laws and pardons. Legislators were therefore most likely expressing concern about the excessive use of pre-trial detention for ordinary crimes, and not leniency in addressing past abuses. In other words, they likely never even considered the possible application of the 2x1 law to a case like this one.
Nothing is set in stone yet. Legislators have passed a new law to clarify the scope of the 2x1 law, and exclude crimes from the dictatorship era. Given that the Supreme Court’s ruling in the Muiña case is not automatically applicable to other cases, prosecutors and lawyers can present new arguments to the courts, which could lead to different outcomes concerning other defendants.
Yet, perhaps the most positive outcome of the public outrage that the ruling has triggered is that, if channeled properly, it could also provide a much needed incentive for investigations and prosecutions of crimes against humanity to move forward more quickly to ensure victims’ right to justice—a long overdue debt in Argentina.
JOSÉ MIGUEL VIVANCO IS THE AMERICAS DIRECTOR AT HUMAN RIGHTS WATCH.