Universal Periodic Review at the UN

0

what is the UPR and why is it important?

1

police violence

2

right to protest

3

memory, truth and justice

4

persons deprived of their liberty

5

disappearance of Santiago Maldonado

6

arbitrary detention of Milagro Sala

7

access to abortion and other women's rights

8

migrant persons

9

adequate housing

10

indigenous peoples

11

persons with disabilities

12

execution of international decisions

13

communication rights

 
 
 
 

what is the UPR and why is it important?

0

The Universal Periodic Review (UPR) is an assessment of the human rights situation in the world in which the 193 Member States of the United Nations participate. It is a peer evaluation in which countries subject themselves to review by the other 192 States every four-and-a-half years. The UPR was created by the UN General Assembly in 2006 and is the only universal mechanism of its kind.

In the Human Rights Council, each State under evaluation must present a report on what it has done to improve the human rights situation at home. The other States formulate questions and make observations. The evaluation takes into account the information provided by each State in its national report as well as material contributed by civil society organizations and UN human rights mechanisms.

In a subsequent session, the final UPR report is adopted that includes recommendations for each State and the voluntary commitments it made in the framework of the evaluation. The State must implement these in the years that pass between evaluations.

In November 2017, Argentina will be evaluated for the third time. On this occasion, the country must explain to what extent it has advanced on implementing its human rights commitments and international obligations.

These official documents were submitted in the context of the UPR:

 

 

police violence

1

Public policies with regard to citizen security in recent years have been characterized by exponential growth in the number of police agents on duty, the proliferation of random checks of individuals and cars, and massive police intervention in neighborhood sweeps in poor areas allegedly aimed at “restoring peace” or “recovering” territory theoretically in the hands of criminal groups or gangs. This line of approach entails inefficient police work and leads to rights violations.

In different jurisdictions in Argentina, such as the provinces of Córdoba, Santa Fé, Buenos Aires and the city of Buenos Aires, there have been documented cases of police harassment of poor young people, as well as repeated and arbitrary detentions, threats, insults, physical mistreatment, robbery or damage to belongings. Some cases involve more serious forms of physical abuse, such as torture and grave injuries – on some occasions caused by firearms – and arbitrary police action, such as the fabrication of criminal grounds. These may potentially lead to extreme cases of police violence, such as executions or enforced disappearances.

Recent enforced disappearances show patterns of human rights violations that are the consequence of systematic practices of police abuse and forms of negligence, indifference, inaction and/or judicial and political complicity in different jurisdictions throughout the country. These practices are enabled due to broad police autonomy, the absence of political oversight to effectively control their actions and the judicial system’s failure to properly investigate and sanction them.

The magnitude of these phenomena cannot be clearly and rigorously estimated, because political authorities at both the national and provincial levels fail to systematically produce and/or release statistics on police detentions or on incidents of violence led by the security forces.

 
Suggested Recommendations to the State:
1.    Modify misdemeanor regulations and security forces’ organizational rules that enable police to detain persons without either a court order or in flagrante crime.
2.    Reform organic laws that have governed the country’s security forces since the time of the military dictatorship and enact laws to establish a new framework for police action in accordance with international human rights standards.
3.    Systematically produce public information that includes detailed statistics on acts of violence perpetrated by agents of the security forces, both on and off duty.
4.    Systematically produce public information on police detentions disaggregated by motive, gender and age.
5.    Adopt pertinent administrative measures to relieve of duty those members of the security forces implicated in acts of police violence.
6.    Protect the most vulnerable groups from police violence, particularly young people from poor neighborhoods.

The full report was produced with the Cátedra de Criminología y Control Social – Universidad Nacional de Rosario and Equipo de Investigación en Políticas de Seguridad y Derechos Humanos – Universidad Nacional de Córdoba.

 

 

right to protest

2

In the past two years, there has been a notable increase in the frequency and intensity of cases of repression and criminalization of social protest. The highest authorities have taken very negative positions on social protest and are moving forward with protocols to authorize and aggravate this scenario. This restrictive position on social protest is occurring in a context of growing social conflict and diversification of groups taking the streets to protest.

In 2017 in particular, there have been troubling acts of repression. Police have borne firearms in different operations during public demonstrations, a serious setback in terms of the regulatory directives and practices regarding the use of force that had been achieved in the country. In the city of Buenos Aires, there have been reiterated episodes of illegal police action: the presence of police agents without identification, roundups and detentions, and aggression toward journalists or persons attempting to record police action.

The state response to the massive social mobilization over the disappearance of Santiago Maldonado  that took place on September 1, 2017 involved a series of grave acts. More than 30 people were violently detained, deprived of their liberty, held incommunicado for over 36 hours and are now being charged with the federal crime of “public intimidation.” If this charge goes forward, they will face criminal proceedings that could take years. A similar scenario took place on March 8 of this year during a large march at the end of the international women’s strike: 20 people were arbitrarily detained and criminally charged, for participating in a protest.

Repression bears a correlation with the criminal prosecution of protesters and social leaders in different parts of the country. This underscores a parallel between the criteria and actions taken by political authorities and judicial sectors to limit collective action on the streets. Furthermore, framing such action as a crime not only goes after protest, it also proves to be instrumental to a broader persecution of social, political and trade-union organizations. Numerous leaders with broad representation and legitimacy stand accused of a variety of offenses, some with stiff penalties, such as the crime of public intimidation.

At the same time, the federal government has been spreading the idea that there is a climate of “political violence” fostered by destabilizing groups, and it has toughened police response as a consequence. It has drawn a connection between this supposed climate and public demonstrations, in particular those led by groups the government has characterized as threats to Argentina’s territorial integrity, or as “terrorists”, as has been the case with the indigenous Mapuche communities in southern Argentina.

 
Suggested Recommendations to the State:
1.    Adopt a national law that incorporates the principles of police action in the context of public demonstrations, such as regulating the use of lethal and non-lethal force, procedures for potential detentions, and the mandatory visible use of police identification.
2.    Guarantee that police involved in operations related to social protests bear proper identification.
3.    Guarantee that security forces refrain from indiscriminate and/or collective detentions in the context of public demonstrations.
4.    Adopt the necessary measures to implement different political, administrative and judicial mechanisms of civilian oversight, external to police institutions.
5.    Guarantee that criminal charges will not be widely applied to conduct occurring in the context of claiming rights and public demonstrations.
6.    Guarantee that aggravated criminal charges will not be used to intimidate or dissuade protest, such as the charge of “public intimidation”, which entails federal court intervention, or the aggravated charge under the anti-terrorism law.
7.    Guarantee that anyone charged in events related to social protest cannot be kept incommunicado.

 

 

memory, truth and justice

3

March 24, 2017 marked the 41st anniversary of the civil-military coup perpetrated in Argentina. The dictatorship lasted for seven years and left a balance of 30,000 disappeared, thousands killed, exiled and imprisoned for political reasons, close to 500 children appropriated and unprecedented levels of poverty and foreign debt.

Right after the dictatorship ended in 1983, the process of Memory, Truth and Justice (MTJ) was initiated. Without question, this process gained firm footing in the last decade, becoming state policy. Currently, however, we are facing the challenge of continuing to deepen this process in a context in which regressive trends are developing in certain arenas and insufficient progress is being made in others.

On the one hand, certain public officials have adopted a deliberate policy of denial, while seeking to stigmatize victims. For instance, statements have resurfaced in the official discourse regarding concepts of “war” and “reconciliation”. Furthermore, there has been a marked weakening of different public policies and entities reporting to the national executive branch, whose job was to contribute to judicial investigations already underway. For example, in late March 2016, the state body that included the Special Group for Documentary Review (Grupo Especial de Relevamiento Documental – GERD), in charge of federal security forces’ documentary archives, was dissolved. At the same time, on January 2, 2017, resolution 44/2016 was published by the Secretariat of Administrative Modernization, establishing that hardcopy files can be digitalized, which, upon obtaining a digital signature, authorizes their physical destruction. In this regulatory framework, there is no specific procedure for evaluating documents and establishing the rank of the officials who will make these decisions.

In regards to the judicial branch, there have been alarming decisions even in the highest federal court. The Supreme Court’s ruling of May 3, 2017, in which it declared the so-called “2 x 1 law” (law 24.390) applicable to these proceedings, is extremely worrisome. This law established a regime of commuted prison sentences and was in force until June 2001. However, 16 years later the Supreme Court resolved to apply it to the case of Luis Muiña, using an argument that blurred the legal consequences of classifying these crimes as crimes against humanity. Indeed, the application of this criteria could imply a situation of de facto impunity, without valid grounds. The massive popular mobilization and widespread social repudiation that followed forced a rapid response from Congress, which enacted Law 27.362. In addition, the lower courts distanced themselves from the jurisprudence established by the Supreme Court. This highlights the enormous social consensus when it comes to sustaining the MTJ process and rejecting any decision that runs counter to these pillars.

In November 2015, Congress passed Law 27.217 on the creation of a Bicameral Commission on the Identification of Economic Complicity with the civil-military dictatorship. Unfortunately, no members have been appointed to the Commission to date and its concrete implementation remains to be seen.

Finally, it is worth mentioning that there has been a notorious delay in the resolution of cases submitted to the Supreme Court’s jurisdiction, of which it has only ruled on 23%. The sluggish progress on these cases is also seen in the lower courts. Given the advanced age of both the accused and the victims, the need for swifter proceedings for these crimes against humanity has become paramount and urgent.

 
Suggested Recommendations to the State:
1.    Guarantee the necessary resources for the full continuity of the process of memory, truth and justice for crimes against humanity in Argentina. Reincorporate the specialized personnel displaced from state offices dedicated to supporting the process of justice for crimes against humanity, so that they may resume their work.
2.    Ensure that the judicial system complies with its international obligations to impose the appropriate and proportionate sanctions on those responsible for crimes against humanity.
3.    Advance in the investigation and prosecution of business people, company executives and/or managers involved in crimes against humanity.
4.    Implement the Bicameral Commission on the Identification of Economic and Financial Complicity during the last military dictatorship.

The full report was produced with Asociación Abuelas de Plaza de Mayo; Madres de Plaza de Mayo – Línea Fundadora; Familiares de Desaparecidos y Detenidos por Razones Políticas; Agrupación H.I.J.O.S Regional – Capital Federal; Fundación Memoria Histórica y Social Argentina; Asociación Buena Memoria; Familiares y Compañeros de los 12 de la Santa Cruz; Asamblea Permanente por los Derechos Humanos – APDH; APDH – La Matanza; Comisión por la Memoria de Zona Norte; Movimiento Ecuménico por los Derechos Humanos – MEDH.

 

 

persons deprived of their liberty

4

The main jurisdictions in Argentina are facing scenarios of overpopulation that are closely tied to the sustained increase in incarceration and excessive use of pre-trial detention: half of the prison population is held under pre-trial detention.  Criminal policy has had a significant effect on the increase in prison population.

In the province of Buenos Aires, most of the reforms and measures adopted are aimed at restricting early release, and enshrine pre-trial detention as the rule during the process without establishing alternative measures. The Argentine State has yet to create a body to define prison system capacity according to decent habitability standards. Capacity is modified randomly according to the number of mattresses available.

This situation has grave repercussions on the lives and physical and psychological integrity of inmates, who live in inhuman conditions characterized by a lack of infrastructure maintenance, light, ventilation or access to hot water. In addition, food provision is inadequate and of poor quality.

In light of this situation of widespread overcrowding, there are many detainees in the province of Buenos Aires being held for prolonged periods in police facilities – spaces that are not equipped for this use, according to international standards and Argentina’s Supreme Court.  In March 2017, there was a 68% recorded increase in the number of persons detained in police jails compared to the year before. As of September 1, 2017, there were 3035 persons deprived of liberty in police stations in the province of Buenos Aires.

On March 2, 2017, seven detainees held in police station No. 1 of Pergamino, in Buenos Aires province, died while trapped in a fire. In addition to the scenario of critical overpopulation, detainee deaths due to fire underscores the state’s deep negligence.

Although official records are lacking, torture and cruel, inhuman or degrading treatment are extensively practiced in penitentiary settings all over the country. Recently, Argentina’s Congress made progress in appointing representatives of civil society to the National Torture Prevention Mechanism, but the remaining members have yet to be appointed to complete its conformation and move forward after its delayed implementation.

 
Suggested Recommendations to the State:
1.    Prohibit the use of police facilities as permanent detention sites.
2.    Prohibit by law the confinement of more persons than the number of spots available in places of detention. In addition, establish by law mechanisms to immediately solve overcrowding. The solution to overcrowding should not consist of building more jails.
3.    Design and implement legislative and judicial policies aimed at eliminating the abusive, unrestricted application of pre-trial detention and its use beyond a reasonable period.
4.    Urgently adopt a comprehensive firefighting plan inside all the country’s detention centers and create effective institutional mechanisms for monitoring its compliance.
5.    Carry out, as soon as possible, the necessary procedures for appointing all members of the National Torture Prevention Mechanism. Guarantee its urgent implementation and the provision of resources needed for that purpose.

The full report was produced with Asociación para la Promoción y Protección de los Derechos Humanos (Xumek).

 

 

disappearance of Santiago Maldonado

5

Santiago Maldonado was last seen on August 1, 2017 while attempting to escape from a National Gendarmerie operation in the territory claimed by the Pu Lof Cushamen Mapuche community in the province of Chubut. He had arrived there the previous day to support their territorial claims.

From day one, his family and different human rights organizations asked for a search mission and for the Gendarmerie to be investigated to determine if it had anything to do with his disappearance. Nevertheless, state authorities were reluctant to carry out an exhaustive investigation of this hypothesis. Measures that should have been taken urgently at the very start to confirm or rule out any role by state agents in human rights violations were delayed. Moreover, several weeks went by before any broad search efforts began.

The undue delays that hindered an immediate investigation in keeping with the severity of the case were compounded by the national government’s strategy of focusing on unsubstantial hypotheses, denying the Gendarmerie’s participation and mistreating the Maldonado family. For weeks, the National Ministry of Security hid information relevant to the Gendarmerie’s operation. Once all the hypotheses it had circulated proved to be flawed, the Ministry began to disclose (invariably incomplete) information that it had early on. It thus became clear, more than one month later, that the operation by the Gendarmerie was violent and riddled with irregularities – just as initial reports had indicated.

On August 7, the UN Committee on Enforced Disappearances demanded that the Argentine State take urgent measures to locate Santiago Maldonado. This requirement was not met.

After 78 days of searching, on October 17, 2017, Santiago’s family learned that a body had been found in the Chubut river. This occurred during a sweep ordered by the new judge in the case. After being told of the discovery, the family requested that media outlets wait for a proper identification to be carried out. On October 20, once the identification procedure and autopsy had concluded, the family publicly stated that the body was that of Santiago Maldonado. The final report on the results of those procedures – in which experts designated by the family and CELS, among others, participated – will be released in the coming days. The judge made public statements regarding some preliminary conclusions, ratifying that the identity of the person was verified and it could be determined that “there were no wounds on the body.”

Now that Santiago Maldonado’s body has been found, it is essential that all the branches of the State fulfill their obligation to guarantee a serious, impartial and effective investigation that leads to discovering the truth and to justice.

 
Suggested Recommendations to the State:
1.    Urgently adopt the necessary measures to investigate any possible state role, and specifically that of the National Gendarmerie, in the disappearance of Santiago Maldonado.
2.    Stop the harassment of Santiago Maldonado’s family members and guarantee their full participation in the judicial and administrative investigations relevant to discovering the truth and attaining justice.

 

 

arbitrary detention of Milagro Sala

6

Milagro Sala is a social leader of the Tupac Amaru Neighborhood Association, which groups low-income and indigenous members and was founded in the late 1990s in the province of Jujuy. In October 2015, the election for governor was won by then Senator Gerardo Morales, who was already in political conflict with the Tupac Amaru, and with Milagro Sala in particular. The Morales victory brought the announcement of a re-registration plan for cooperatives. In light of this measure, the network of social organizations of which Tupac is a member made several requests for a meeting aimed to establish dialogue regarding the implementation of this plan. In response to government silence, a mobilization was organized on December 14, 2015 in front of the provincial seat of government, demanding dialogue begin on the matter. Upon receiving no response, protesters occupied the city’s main plaza.

Based exclusively on the grounds of protest, state prosecutor Mariano Miranda (who reports to the provincial executive branch) filed criminal charges against Milagro Sala and other social activists present at the sit-in. For this reason, she was arbitrarily detained on January 16, 2016. Since then, the Jujuy judicial system has systematically filed additional charges against her that have either been illegally reopened with serious irregularities, or been actively initiated in recent months. The deprivation of her liberty is unjustifiable during the criminal proceedings in any of these cases.

The arbitrary detention of Milagro Sala occurred in a context of generalized criminalization of social protest in the province of Jujuy. In 2016, a new misdemeanor code came into force that punishes protests with fines, organizational disqualifications and closings and even arrests. In addition to serious episodes of police repression of protest-related events, the authorities have sought to weaken social organizations and organized labor through the legal prosecution of their leaders.

The situation of Milagro Sala was denounced before the Inter-American Commission on Human Rights (IACHR) and the UN Working Group on Arbitrary Detention. In October 2016, the Group urged the State to release her immediately. The Argentine State did not heed that demand. The IACHR, in turn, granted precautionary measures, stipulating that Ms. Sala should in no way remain in jail. The provincial judges then ruled that she be remanded to a property in her name. However, the modalities used to authorize that transfer have reaffirmed the scenario of harassment and persecution and aggravated the extreme surveillance against her.

The situation worsened further on September 29, when a provincial appeals chamber in Jujuy decided to ignore the IACHR’s precautionary measure and order that Milagro Sala return to prison.

 
Suggested Recommendations to the State:
1.    Annul regulations that infringe the right to social protest and, as a result, the freedom of speech, assembly and association, in particular articles 71, 112 and 113 of the new misdemeanor code of the province of Jujuy and the crime of sedition set forth in article 230, section 2 of the Argentine Criminal Code.
2.    Release Milagro Sala immediately, as requested by the UN Working Group on Arbitrary Detention.

The full report was produced with ANDHES.

 

 

access to abortion and other women's rights

7

Numerous reasons justify the need to decriminalize and legalize early abortion in Argentina. Its criminal regulation does not dissuade women from practicing abortions and induces them to resort to unsafe methods that put their lives and health at risk. Currently, Argentina has a high rate of maternal mortality  and abortion continues to be one of its main causes.

Since 1921, Article 86 of the Criminal Code establishes exceptions to the prohibition of abortion. In 2012, the nation’s Supreme Court issued a historic ruling in F., A.L. s/ medida autosatisfactiva, in which it established the scope of legal permissions and reaffirmed women’s right to interrupt pregnancy when their life or health is in danger or when the pregnancy is the result of rape. The high court called on the judicial system to abstain from intervening in the access to legal abortion, and urged authorities to implement hospital protocols to remove the barriers to accessing those services. However, the national executive branch has formulated a protocol that lacks the status of a ministerial resolution and has failed to actively promote its dissemination and application.

In Argentina, there are no abortion medications formally recognized by the health authorities. Access to medical technology is severely limited: there is no authorized sale of Mifepristone or Misoprostol (both defined as “essential medications” by the World Health Organization – WHO). In the case of Misoprostol, it has been approved solely for gastric uses and the laboratory with the monopoly on its production takes advantage of its dominant position.

Despite the legal framework, reality in Argentina is much more akin to legal contexts in which abortion is completely banned. Some of the obstacles include the abusive use of conscientious objection by healthcare professionals and excessive judicial intervention aimed at placing barriers in the way of abortion, which often result in the criminal prosecution of women.

Regarding other gender issues, Law 26.485 on the comprehensive protection of women from all forms of violence incorporated the recognition of diverse forms of violence suffered by women. However, the production of information on violence against women continues to be fragmented, non-uniform and sporadic, making assessments difficult. Furthermore, although there are programs in different areas that assist with cases of violence against women, they are uncoordinated or overlapping.

Separately, while Comprehensive Sex Education has been law (26.150) since 2006, its application is inadequate and nonexistent in some provinces. Unplanned teen pregnancies continue to be a serious problem and, in general, are the result of a lack of sex education and information on birth control methods.

Finally, criminal policy has focused on the persecution of the most vulnerable links in the drug-trafficking chain, which has contributed to the criminalization of women and their increased incarceration. In the last 15 years, there has been a 32% rise in the number of women imprisoned in the country, and in the province of Buenos Aires, the figure surged 90% between 2002 and 2016.

 
Suggested Recommendations to the State on access to abortion:
1.    Develop policies to reduce high maternal mortality rates due to unsafe abortions, including the adoption of measures to ensure broad, affordable access to available abortion medication.
2.    Adopt the necessary measures to ensure the availability of medications recommended by the WHO for abortions that are safe and effective, in the cases permitted by law.
3.    Guarantee access to legal abortions in all jurisdictions throughout the country, supported by publicity campaigns on the right to legally interrupt pregnancy in the cases provided for by law, as well as training for healthcare workers.
4.    Approve the protocol for the legal interruption of pregnancy by ministerial resolution, establishing minimum obligations for local jurisdictions.

Suggested Recommendations to the State on other women’s rights:
1.    Create a unified record system for cases of violence against women to be shared by the different jurisdictions of the judicial system and executive areas.
2.    Guarantee the implementation and financing of the Comprehensive Sex Education Program in all jurisdictions throughout the country and guarantee access to birth control methods, especially for adolescents and groups excluded due to market dynamics.
3.    Promote the use of alternatives to incarceration in cases of petty drug-related crimes committed by women heads of household.

 
The full report on access to abortion was produced with ANDHES, Asociación Católicas por el Derecho a Decidir – Argentina (CDD), Asociación Lola Mora, Centro de Estudios de Estado y Sociedad (CEDES), Centro de la Mujer (CEDEM), Centro de Intercambios y Servicios para el Cono Sur Córdoba (CICSA), Comité de América Latina y el Caribe para la Defensa de los Derechos de las Mujeres (CLADEM-Argentina), Equipo Latinoamericano de Justicia y Género (ELA), Fundación para Estudio e Investigación de la Mujer (FEIM), Instituto de Genero, Derecho y Desarrollo (INSGENAR), Lesbianas y Feministas por la descriminalización del aborto, Mujeres por Mujeres, Mujeres Autoconvocadas de Trelew, and Observatorio de Violencia de Género (OVG) de la Defensoría del Pueblo de la provincia de Buenos Aires.

The full report on other women’s rights was produced with ANDHES, Asamblea Permanente por los Derechos Humanos (APDH), CDD, Asociación Lola Mora, CEDES, Centro de Intercambios y Servicios para el Cono Sur (CICSA – AFM), CAREF, CLADEM-Argentina, ELA, Feministas en Acción, Fundación Interamericana del Corazón Argentina (FIC), Fundación Mujeres en Igualdad (MEI), FEIM, Fundación Siglo 21, INSGENAR and OVG.

 

 

migrant persons

8

Since 2004, a migration law has been in effect in the country that has gained international recognition for regulating migration based on the logic of guaranteeing the human rights of migrant persons. Migration Law 25.871 and its Regulatory Decree 616/2010 established migratory regularization as a State obligation, as well as access to justice and due process in any migration-related deportation or detention proceedings, and the elimination of any distinctions in access to rights between Argentines and foreigners.

In detriment to this policy, the national executive branch issued a Decree of Necessity and Urgency (DNU 70/2017) on January 30, 2017, repealing a substantial part of the Migration Law and introducing a regulatory framework that moves backward in terms of guaranteeing the rights of the migrant population. The modifications introduced are regressive; more specifically, the DNU: (a) violates due process, the right to a defense and access to justice by creating a procedure for summary deportation for certain categories of migrants; (b) violates the use of detention only in exceptional cases for migratory reasons by expanding the grounds for pre-trial detention as well as the timeframes and conditions for detention; (c) violates the right to family unity in restricting the concept and limiting its analysis by the courts; and (d) criminalizes migrant persons by linking migration to criminal activity. In light of this scenario, the UN Committee against Torture, in its final observations of May 2017, requested that the Argentine State repeal DNU 70/2017.

Furthermore, in the framework of the DNU’s enforcement, we have begun to observe situations involving the criminalization and stigmatization of migrant persons. The use of racial profiling and police persecution of migrants of African and Latin American descent are becoming more common. At the same time, in August 2016, the government announced it would build and implement a migrant detention center as a means of “combating irregular migration.” The property in which this center will operate is currently undergoing renovations and should open in the coming months.

 
Suggested Recommendations to the State:
1.    Repeal DNU 70/2017, which establishes a summary procedure for deporting migrants, expands the State’s powers of detention and hinders the exercise of the right to family unity.
2.    Ensure that migration control operations are not aimed at persecuting and stigmatizing migrants but rather at facilitating their regularization.
3.    Guarantee that under no circumstances should migrant persons be deprived of their liberty for reasons of irregular migration status.
4.    Refrain from opening the announced migrant detention center and establish alternative measures to deprivation of liberty.
5.    Adopt the necessary measures to guarantee that the security forces, in the framework of other crime-prevention duties, do not undertake administrative tasks related to migration procedures, such as those associated with migration status.

The full report was produced with Abogados y Abogadas del Noroeste Argentino en Derechos Humanos y Estudios Sociales (ANDHES), Colectivo para La Diversidad (COPADI), Comisión Argentina para Refugiados y Migrantes (CAREF), Instituto Argentino para la Igualdad, Diversidad e Integración (IARPIDI), Centro de Justicia y Derechos Humanos de la Universidad Nacional de Lanús, Red de Migrantes y Refugiadxs en Argentina and Global Detention Project.

 

 

adequate housing

9

The housing situation continues to be one of the largest social shortcomings in Argentina. In addition to deficits in infrastructure, 13.5% of homes are informally owned. Official statistics for the third quarter of 2016  show that nearly 30% of homes in Argentina do not have proper sewers and nearly 29% do not have access to the natural gas grid.  Finally, a government survey revealed that there are 810,000 families living in 4100 slums and precarious settlements. This means living under threat of potentially violent evictions, without prior warning, and without any alternative housing solution for affected households.

In recent years, Argentina has experienced a strong real estate market dynamic and public works momentum. This has meant higher values for urban land and the transfer of significant wealth to private property owners. This process has generated a market concentration in higher income segments and an increase in informal occupation of land as the only refuge for the poor in their search for a place to live. In rural settings, the increase in commodities prices has pushed the agricultural frontiers, putting pressure on territory historically inhabited by rural and indigenous communities.

National housing policies, however, have approached the problem through remedial solutions, without intervening in the dynamics that reproduce the problem, i.e. in the market speculation of urban and rural lands that draws a line between those who can and those who cannot access the right to adequate housing.

 
Suggested Recommendations to the State:
1.    Incorporate the Social Function of Property principle into the national regulatory framework.
2.    Guarantee the full socio-urban integration of slums and settlements, eliminating segregation, in accordance with international human rights standards.
3.    Promote a national law to strengthen the processes of ownership regularization through financing and technical assistance to the provinces.
4.    Guarantee the full implementation of the Fair Access to Habitat Law (Ley de Acceso Justo al Hábitat) in the province of Buenos Aires.
5.    Approve a protocol for security force action during evictions, in accordance with international human rights standards.

The full report was produced with Habitar Argentina.

 

 

indigenous peoples

10

The indigenous peoples of Argentina are in a most urgent situation. Despite significant regulatory recognition of their rights, they are not able to adequately enjoy or exercise those rights. Indeed, these indigenous communities do not exercise their territorial rights, which are in constant dispute and a state of tension. The State has not provided indigenous communities with simple and straightforward procedures for them to channel their claims regarding the protection and enjoyment of their territorial rights. National law 26.160 provides for surveying indigenous territories and suspending evictions for a period of three years (extended by subsequent laws). This suspension will expire in November 2017, but the survey of all indigenous lands in Argentina has not been completed. In the meantime, existing natural resources have been systematically stripped from indigenous territory. Furthermore, the State has not created the conditions for the compulsory consultation with and participation by the indigenous peoples affected by development, investment and/or infrastructure projects and/or actions, in order for them to express – or withhold – their free, prior and informed consent.

At the same time, the acts of violence toward these communities by government agents, or with their acquiescence, is alarming. In most cases, such acts occur in the context of eviction proceedings.  The legal prosecution of Félix Díaz and the arbitrary detention of Agustín Santillán in the province of Formosa are emblematic of the recurring criminalization of indigenous leaders by a repressive and discriminatory state apparatus.

 
Suggested Recommendations to the State:
1.    Adopt measures to prevent the eviction of indigenous communities and guarantee compliance with national law 26.160, including the completion of the territorial survey prescribed by that law.
2.    Establish legal procedures for demarcation and title to indigenous lands in accordance with current international standards.
3.    Put in place the means to guarantee the security of indigenous peoples who are currently suffering threats, persecution, violence and evictions, and prevent acts of violence against them committed by both public officials and private individuals.
4.    Adopt effective measures to guarantee that indigenous peoples are consulted about any project or initiative that may affect them.

The full report was produced with el Parlamento de Naciones Originarias, el Observatorio en Derechos Humanos y Pueblos Indígenas (ODHPI), la Red Agroforestal Chaco Argentina (REDAF), la Asociación de Abogados en Derecho Indígena (AADI), Acompañamiento Social de la Iglesia Anglicana del Norte Argentino (ASOCIANA), la Asociación Civil por los derechos de los Pueblos Indígenas (ADEPI-Formosa), la Junta Unida de Misiones (JUM-Chaco), APDH, el Equipo Nacional de la Pastoral Aborigen (ENDEPA), OCLADE (Obra Claretiana para el Desarrollo), la Maestría en Derechos Humanos de la Universidad Nacional de Salta and la Comisión de Juristas Indígenas de la República Argentina (CJIRA).

 

 

persons with disabilities

11

Public policy on mental health in Argentina is governed by the National Mental Health Law (LNSM, Law 26.657), passed in 2010 and regulated by decree 603/2013. This law incorporates human rights and health standards that reaffirm the State’s obligation to replace indefinite psychiatric institutionalization with other approaches centered on community and social inclusion. Nevertheless, psychiatric institutionalization continues to be the predominant mental health public policy in Argentina.

At the same time, psychiatric hospitals are in critical condition, where practices of negligence, abandonment and ill treatment prevail, in addition to precarious living conditions. The inadequacy of services in general hospitals leave people who require hospitalization with no alternative other than entering the cycle of deterioration inside psychiatric asylums.

The executive branch has passed administrative resolutions introducing deep changes, such as authorizing the application of scientifically prohibited treatments that pose a risk to physical health (such as electroshock therapy and insulin shock therapy).

At the federal and provincial levels, there is a lack of budgetary redistribution toward the type of mental health care system required under the law. There is no official source of centralized information on the numbers or situations of people hospitalized in Argentina due to disabilities. And finally, the current administration has also unjustifiably and arbitrarily deactivated the mechanisms for inter-ministerial cooperation and consultation with civil society and users of the mental health system.

 
Suggested Recommendations to the State:
1. Fully implement National Mental Health and Addictions Law 26.657 and its regulatory decree 603/2013.
2. Promote channels and effective mechanisms for the participation of civil society in the design, execution and evaluation of public policy on mental health.
3. Carry out a broad and exhaustive national census on the number of persons interned in psychiatric hospitals throughout the country and their living conditions.
4. Establish the National Inter-Ministerial Mental Health and Addictions Commission (Comisión Nacional Interministerial de Salud Mental y Adicciones – CONISMA) with the original institutional representatives as defined by regulatory decree 603/2013.
5. Create and implement mechanisms of oversight and protection of mental health rights in the provinces where they still do not exist, particularly local mental health review boards and technical public defenders’ offices specialized in mental health.

The full report was produced with Asociación Civil por la Igualdad y la Justicia (ACIJ).

 

 

execution of international decisions

12

In 2011, the Inter-American Court of Human Rights ruled that the Argentine State had violated the right to freedom of expression of two journalists who were denounced by former President Carlos Menem for having published information about his son in 1995. In 2001, the Argentine Supreme Court upheld the civil court conviction of the journalists who, once the local judicial process had run its course, sought redress through the inter-American system, arguing that the high court decision violated the American Convention on Human Rights (ACHR). After a long international process, the Inter-American Court found (in 2011) that the Argentine State had indeed violated their right to freedom of expression and ordered that the conviction be revoked, among other reparation measures. In a ruling issued on February 14, 2017, the Supreme Court decided it would not comply.

Under international law, and according to Article 68 of the American Convention, the Inter-American Court’s decisions are obligatory. But the Argentine Supreme Court argued that they are only obligatory “in principle” and that in this case revoking the conviction would violate the national Constitution. According to this approach, the Supreme Court itself would define when and how to comply with the Inter-American Court’s sentences, based on criteria that it did not make clear. In that sense, the ruling fails to acknowledge the international obligations assumed by the State upon signing the American Convention.

This Supreme Court decision causes great uncertainty for people who have suffered human rights violations and have not gotten an effective response from the local judicial system, because now they do not know if the Argentine State will comply with international rulings. In addition, it weakens the weight that international law and the Inter-American system’s precedents and standards hold for all Argentine tribunals in cases related to human rights.

 
Suggested Recommendation to the State:
1. The Argentine judicial branch must fully implement the decisions of international human rights protection mechanisms.

 

 

communication rights

13

Law 26.522 on Audiovisual Communication Services (LSCA) was passed in 2009 after a long process of citizen participation and congressional debate. The LSCA was pioneer legislation in the Latin American region, noted by the special rapporteurs on freedom of expression of the United Nations and the Inter-American Commission on Human Rights (IACHR). It recognizes the equal exercise of freedom of expression and access to plural information in the individual and collective sense. It furthermore establishes a series of redistributive policies for certain disadvantaged sectors of the media, such as indigenous peoples and community media sources.

However, in December 2015 the government issued the Decree of Necessity and Urgency (DNU) 267/15, introducing substantial reforms to the LSCA and Law 27.078 on Information Technology and Media.

DNU 267 replaced the plural and representative bodies provided for under the LSCA – Federal Media Services Authority (AFSCA) and the Federal Audiovisual Media Council (COFECA) – with a body at the complete service of the executive branch. At the same time, this regulation expanded the limits on ownership of licenses, extended previously granted licenses for 15 years, suppressed limits on extensions and the obligation to submit to a bidding process, repealed the limitation on license transfers, did away with the prohibition on delegating the exploitation of licenses to third parties and excluded cable TV service providers from compliance with the LSCA.

All the changes introduced by the decree are an assault on a plural, diverse spectrum of audiovisual media sources and favor the concentration of licenses, the creation of dominant positions, discretionary decision-making and lack of transparency with regard to media ownership.

At a public hearing before the IACHR in April 2016, the Argentine State indicated that the measures taken by the national executive branch had a “provisional” nature and that a new legislative bill was in the process of being drafted. The deadlines announced by the government have come and gone, and no draft bill has been made public thus far. In fact, the scenario of media ownership concentration has intensified in the last year. Through various administrative decisions, the national executive branch has generated a regulatory framework that allows the market to concentrate more and more, in direct opposition to what is established in the LSCA.

The UN Human Rights Committee, during its evaluation of the Argentine State in August 2016, expressed concern over the reforms and requested that the State revise them so as not to diminish the diversity of sources and opinions.

Finally, the Ombudsman’s Office for Audiovisual Communication Services, the only surviving institution dedicated to defending the rights of audiences, has been headless since November 2016. This serious omission in the appointment by Congress serves to weaken the system of legal guarantees. The Committee for the Elimination of Racial Discrimination, during its review of Argentina in December 2016, has urged the country to adopt all the necessary measures to appoint a representative to the Ombudsman’s Office.

 
Suggested Recommendations to the State:
1. Adopt the necessary measures to prevent concentration of the communications market and ensure the full observance of the principles of plurality and cultural diversity, with special concern for community and non-profit media outlets.
2. Adopt the necessary measures to ensure the independence of the authority overseeing the audiovisual communication services system.
3. Ensure a broad and plural debate for the adoption of new legislation that respects the principle of non-regression.
4. Adopt all necessary measures to ensure a participatory process for the prompt appointment of a representative to the Ombudsman’s Office.