Based inter alia on the forensic examination of the alleged “victims,” who constantly claimed they had never been victimized, the defense insisted the prosecutors had no case.
by Alessandro Amicarelli
Article 2 of 4. Read article 1.
The arguments presented by the BAYS defense, outlined in my first article, were rejected by the prosecutor in charge of the case, Carlos Stornelli, and the deputy prosecutor for PROTEX, Alejandra Mángano. On August 7, they also presented a request for “partial elevation to trial” of the seventeen defendants. They requested, among other things, that two of the defendants go to trial and at the same time continue to be investigated by the court of first instance. In addition, they suggested that new victims should continue to be identified. The problems already visible in the title of the request (“partial”) were not the only ones, as the prosecutors continued to present evidence in the following days. One of those elements was an “extension of the forensic report” prepared by the Forensic Medicine Unit of the General Directorate of Investigations and Technological Support for Criminal Investigations (DATIP is its Spanish acronym) after their participation in the psychiatric and psychological assessments as experts on behalf of the MPF, dated August 17.
As mentioned in a previous article by “Bitter Winter,” this document is based on and advocates the application of the pseudo-scientific theory of brainwashing (under the name “coercive persuasion”) in the examinations of “victims of cults” (called “coercive organizations”). In this “report,” DATIP officials stated that, although each of them participated in some of the examinations and approved and signed their results—without exception—in agreement with the other experts, the psychological post-effects of “coercive persuasion” are not visible until long after the victims have stopped participating in “coercive organizations.”
Besides, they added, those effects are evident only when examining the victims collectively and not on an individual basis. For that reason, they stated, although these alleged elaborate brainwashing techniques generate a mental slavery that completely annuls the self-perception, reasoning, and will of their victims, along with a marked social isolation, the “normal” forensic experts cannot notice their effects, as they are considered to be not competent enough, and consequently the intervention of “qualified personnel”—meaning those indoctrinated into the anti-cult ideology—is necessary. Thus, after an extensive written elaboration based on pseudo-scientific bibliography on brainwashing, and without detailing what concrete indicators the women presented and that were so strong that would allow to notice a total absence of will or logical reasoning, they concluded that the nine alleged victims of BAYS were unable to realize that they themselves were victims due to the sophisticated brainwashing and manipulation they had been submitted to for decades, through which their exploitation was carried out consistently and relentlessly.
The document presented by DATIP was strongly criticized by the defense on the basis of its numerous shortcomings. One of the critical points is that the report did not answer the questions submitted to the experts, which had been discussed between the parties and determined by the judge. It alluded to abstract and dogmatic anti-cult theories that did not apply concretely to the subjects of evaluation (the nine women) and did not offer specific indicators for the analysis of their specific cases. In addition to this, the report referred to the nine women as a homogeneous group and did not evaluate each of them individually. The defense also emphasized that DATIP’s experts had approved and signed the previous examination results in agreement with the other forensic experts. They reserved the right to file supplementary comments but did not state that they disagreed with the conclusions they co-signed. At this point, in their new report they were contradicting those previous conclusions, in clear disagreement with what they had previously agreed upon and signed together with the other experts.
In practice, the DATIP supplementary report implied that the nine women had been brainwashed in such a perfect way that they had become able to brainwash in turn the experts, including those of DATIP, who only after several weeks realized they had been misled and induced to sign conclusions they did not share.
The defense claimed that, if the DATIP officials did not agree with the results of the expert opinion, they should have presented a dissent report. This would have created the corresponding discussion among all the experts, especially with those of the Forensic Medical Corps of the Supreme Court, who were in charge of the analysis.
The defense also argued that the DATIP supplementary report was included into the file after the request for elevation to trial signed by the prosecutors, which represented a “clear contradiction and a clear violation of rights.” This fact, by preventing the debate between the experts and the parties, affected the guarantee of due process and defense in trial in terms of the American Convention on Human Rights and the International Covenant on Civil and Political Rights.
The report was also repudiated by the concerned analyzed women. Each of them presented an individual document exposing the falsity of the statements, denouncing the use of faulty bibliographic sources, and contrasting DATIP’s claims with details and accounts of their personal lives. In addition to this, they jointly submitted a document entitled “They Exercise the Right to Be Heard,” in which they reaffirmed their right to self-determination and supported the defense’s claim.
Notwithstanding this strong reaction from the defense and the nine women presented as “victims,” Judge Lijo supported the prosecutors’ opinion. On September 19, 2023, he signed an order of elevation to trial in which he decreed the “partial closure of the investigation” and, as in the document of July 4, 2023, he decided to continue collecting evidence and receiving testimonies in relation to the crimes charged. Finally, he rejected the defense’s claims of nullity and lack of action.
In response to the investigating judge’s decision, the defense appealed the rejection of the plea of lack of action and the nullity action and, at the same time, filed another appeal against the elevation to trial, in which it claimed the unconstitutionality of article 352 of the criminal procedure code, which declares the elevation to trial unappealable.
The appeal was filed on the grounds that the judge’s decision was arbitrary and precipitated. The defense claimed that the interpretation of the evidence by the judge was capricious and biased, and that the decision was issued immediately after the production of new key evidence (the psychiatric and psychological tests) without prior discussion and evaluation of the results between the parties. In fact, they said, the order of elevation to trial only made a generic and brief reference to the reports made by the Forensic Medical Corps of the CSJN and argued that these should be compared with all the evidence in the file, particularly the reports made by the professionals of the National Program for the Rescue and Support of Persons Victims of the Crime of Trafficking (PNR its Spanish acronym) and the DATIP.
In addition to recalling the criticism made to the DATIP report, the defense added that the PNR report was superficial, partial, and biased. It was carried out in the context of a raid where police officers committed demonstrable crimes (including theft of property of the defendants and of the alleged victims, and physical abuse). In fact, several of the women questioned on that occasion, later reported that they felt coerced by the police and by the PNR personnel as they were threateningly interrogated and urged to talk while their IDs and personal belongings were being withheld. Moreover, the PNR document presented as possible victims only one of the women mentioned in the order of elevation to trial, adding explicitly: “It is noted that none of the persons interviewed were placed under the protection of the Rescue Program.” In other words, the PNR data did not support the judge’s hypothesis.
In addition to this, the defense pointed out that the judge justified his decision with the fact that the Court of Appeals had rejected an appeal against the indictments in November 2022. However, the judge did not take into account that, on that same occasion, the higher court demanded that medical expertise be carried out to evaluate the scope of the charges based on scientific evidence. The expertise should investigate specific and punctual evidence to determine whether or not there had been sexual exploitation. The scientific evidence, the defense pointed out, had now been obtained. It indicated that none of the alleged victims examined showed indicators or evidence of vulnerability, tendency to subjugation, cooptation of the will, or similar problems. Thus, these results contradicted the DATIP and PNR reports, and indicated that not a single instance of human trafficking for the purpose of sexual exploitation had been proven.
As well as the grounds for appeal, as mentioned above, the defense claimed that the impossibility of appealing the judge’s decision violates the right legally provided for in the Criminal Code to appeal to a higher court to resolve possible contradictions between the parties before the case is sent to trial. The defense argued that “although there was double conformity in relation to the indictment, the truth is that this double conformity is not complete insofar as we are not allowed to have the effectiveness of the evidence obtained after the indictment assessed by a higher body than the judge,” even more so when obtaining this evidence had been ordered by the Court of Appeals. Then, the defense added, “the issue cannot be remedied at a later date without serious prejudice to this party, insofar as it obliges our defendants to remain involved in a court case that will be extended in time.”
In fact, the defense claimed, “the discussion in oral proceedings results in the fact of delaying the course of the process (violating the right to be judged within a reasonable period of time) as we will have to discuss the value of this evidence only in a final argument.”
This also causes “economic damages derived from the fact that the seizures ordered by the judge are seriously affecting the subsistence of our defendants.”
Thus, “the subsequent review will not be effective. It may, eventually, prevent further damage from being caused; but it will not be able to remedy all the damage that has been caused up to now and that which will be caused until the case is decided.”
The defense considered that not being able to appeal the elevation to trial was contrary to the guarantees of the right to defense in court and due process, since it contradicted the provisions of the American Convention on Human Rights and the case law of the Inter-American Court of Human Rights. The latter had established that “Every individual subject to criminal proceedings has the right to appeal any ‘important procedural order.’” This should include the order of elevation to trial, which is “the jurisdictional acceptance, against the request for its rejection, of the request for elevation to trial,” thus becoming the most important step between the two stages of the criminal proceedings. Therefore, the defense asserted, the order of elevation to trial should be considered an “important procedural order” for the purposes of the Convention, and for that reason article 352 (which prevents its appeal) should be considered unconstitutional.
The examining magistrate rejected the arguments, and the defense appealed to the Court of Appeals. What the Court decided will be discussed in the next article of the series.
