ILF Perspectives: Nicolás Laino on Public Defense in Latin America

Interview by Gabriella Vetrano, ILF Intern


Nicolás Laino is an ILF board member. He is a lawyer at the Federal Public Defender's Office of Argentina. This post is based on an interview conducted over Zoom in December 2020.


Tell me a little about yourself.


I was born in a seaside town in the central part of Argentina, on the coast of the South Atlantic Ocean. I have one older brother and one sister. My father and also my older brother are engineers, so I am the first lawyer in the family. When I was 17, I went to university. From the very beginning, I fell in love with criminal law, so that’s why I decided to take my studies deeper in this area.


What inspired you to pursue a career as a public defender?


When I went to university in Mar del Plata, my hometown, I met a couple of professors who were very critical of the way the criminal justice system worked, especially for the poor. They inspired in me a very critical view of the criminal justice system and criminal law, how it was in reality, how it was practiced.


After I graduated, I worked for a judge in a small city who was very active and used to go a lot to the prisons. That’s not very usual here with criminal judges. They usually receive the prisoners in the courts, but they don’t go to prison to see how they live. This judge, Mario, who passed away unfortunately last month, and who I want to honor, he really marked my career. Because we went into the prisons, we talked to the male and female prisoners, and also the youngsters who were in prison in the province of Buenos Aires, where the most overcrowded prisons are located here in Argentina. That’s something very important that marked me, and that also encouraged me to deepen my studies.


I found out that in Spain there was a very important school of criminology, so I decided I wanted to do my master’s degree there in Barcelona, where a very famous Latin American Argentinian criminologist called Roberto Bergali was giving classes. He had emigrated from the Argentinian dictatorship in 1976 and founded a big school of criminology in Barcelona. Roberto also passed away this year, but he had a disciple, Iñaki Rivera Beiras, who is my mentor and the main specialist in penitentiary law and status.


In Barcelona, I studied critical criminology, which is a very Latin American current that originated after the dictatorships that we had in the region during the 70s and 80s. They were challenging what was happening in our states, which had played a criminal role killing people and disappearing people.


My mentors were very important for me, but so were the experiences I had in the prisons. To talk to prisoners, to be close to them, to see how they were suffering. To see how prison was not only depriving them of liberty, but of also a wide range of rights. It’s not only about liberty and freedom, but also the right to health, the right to education, to work, to family life. Everything is cut when you go into prison, and it’s a lot worse when it’s an overcrowded prison like the ones we have here in this area of the planet.


How did you get involved in legal aid?


When I got back from critical criminology studies in Spain, I worked for a private firm, and I also got involved with an NGO that was working on prison conditions, helping people who were suffering. I was at the private firm with a very good lawyer who taught me a lot regarding legal writing, motions, etc. He was excellent. But what I saw was that all the clients at the private firm were not in prison, they were in their homes. They were free, and that’s okay because they are innocent until proven guilty. It’s okay that they’re free and not in pretrial detention. But the problem is that the poor—the most underserved people in society—are not in their homes. They are not free; they are in prisons. So I saw that there was an unequal and very discriminatory use of the prison system. It was mainly used against the poor as a means of social control. Like how a criminologist would say, a way of “social gardening,” the taking away of people that people don't want to see.


That inspired me to turn to the public defense system because I wanted to dedicate my career and my time, not to defending the most privileged people in society —who of course deserve a good defense and can pay for it—but defending those who don’t have means, who are in the worst position in our societies.


So I quit the private firm, and I joined the public defender's office. The public defender's office of Argentina is a state-funded but autonomous body that provides legal aid, not only on criminal matters, but also in civil courts. That is where I started to make my way. After different positions, finally, I was appointed as a federal public defender in October 2016. I was appointed by the President after approval by the Senate, which is how we are approved here in Argentina in the public defender's office, the same as judges and prosecutors.


What would you say is the most fulfilling part of your job? And what are your proudest accomplishments?


When you get someone acquitted, when you get someone out of prison, that’s something really important for a legal aid provider. But also, the process: talking to them, to the families. As public defenders, of course, we need to know the law and do the right thing in the technical way, but we also have to do a little bit more than that.


About my proudest accomplishments: I was very lucky to be appointed by the Defender General of Argentina to take a very important case, Mendoza vs. Argentina, before the Inter-American Court of Human Rights. The case was about the life imprisonment of children. Even though public defenders are part of the state, the law allows us to take a case representing the victims in the international system. The case challenged the sentencing of five children here in my country to life imprisonment. I was one of the lawyers who took the case, first in Washington to the Inter-American Commission on Human Rights, and after that in San Jose of Costa Rica, to the Inter-American Court. We obtained a very good judgment in the Inter-American Court of Human Rights.


The other cases I would mention are as a public defender on the ground, in the field. Here in our law, we can take collective actions to protect the rights of imprisoned people. There was one case I took representing hundreds of prisoners. This habeas corpus was about the right of incarcerated people who were working in prison to have equal pay to free people who are working outside of the prison, and it was also about the right to social security for them inside the prison. It was a really big case, and it was won in the Court of Appeals. That was something very rewarding and important.


I also represented a group of transgender women imprisoned in some men’s prisons in Argentina, because they were not in women’s prisons after their trials. We obtained for them to be transferred into an area in the women’s prison, and that was very important for their sexual identity. The case was also about very intrusive and invasive police searches of those transgender women who were in prison. We wanted the state not to conduct those invasive police searches and to approve a new regulation respecting gender identity and prohibiting men from doing those searches and making them be practiced by women doctors or nurses. So that was also a big accomplishment in my career as a public defender.


There are a lot of organizations doing great things in the world. What inspires you about the ILF, and what would you say is most important about its work?


Well, I have a lot to say here. First, is what the ILF does around the world: guaranteeing access to legal aid for the poor, for the most underprivileged people. Especially because it’s the most complicated countries—post-conflict areas or places transitioning into democracies—where the ILF goes. Also, we are providing a specific kind of legal aid: quality legal aid, quality representation. We don’t say just give them a lawyer and that’s it. The ILF gives quality representation to the most underserved persons in society.


Another good thing the ILF does is build local capacity by recruiting and training local people. With our guidance and training, local people can provide quality legal aid. Another thing is to spread worldwide the idea that legal aid is a fundamental right that must be fulfilled by the state. The ILF has been amazing, doing a lot of international work with our offices around the world. Also with a lot of resources like “Measuring Justice,” about quality legal aid. That’s probably the most serious document published all around the world talking about how to define and evaluate the quality of criminal legal aid providers.


How has your work had to change because of COVID-19?


I’m working in the super-structure of the Public Defender’s Office in Argentina, and we had to deal with a lot of things. In developing countries and Latin America in general, and in Argentina especially, the situation in the prisons is really terrible. There are a lot of groups at risk, and the prisons are overcrowded, overpopulated. We had to give certain directives to our public defenders all around the country as to how to get people released from prison, how to diminish this overcrowding. The ILF has been amazing during this year, working in different countries to diminish the prison overcrowding, to ask for mass releases. That is something very important: to give certain directives and help our public defenders obtain those releases.


Also, there was a trend during the pandemic to make justice virtual. I think in some ways it was necessary, because a lot of courts were shutting down. A lot of people were not getting access to justice, and that is not acceptable. But on the other hand, we have the accused, who were probably awaiting trial in detention. We observed there was a big risk in some cases to the right to defense, the right to a fair trial. We had to deal with those situations: the judges wanted to advance with the trials, to hold trials with the accused in a prison 2000 km away in the south of the country, very far from the public defender here in Buenos Aires and the judge in his house. That was not acceptable, because you cannot do good questioning of the witnesses. We had to challenge a lot of those tendencies to cut the right to a fair trial because of the pandemic and because of the new virtual reality we are living in.


What would you say is the most challenging part of your job?


I think almost everything in our job as public defenders is very challenging. As you can see, I have behind me a print of “Guernica,” Picasso’s painting of the terrible bombing of a city in northern Spain by the Nazi regime. What we see in this picture is destruction; it’s chaos. When we look at our criminal justice system, no matter where, even in the most developed and rich countries, what we see there is destruction. We see a lot of people suffering inside prisons with very bad conditions. Probably the most challenging part of the job is to deal with that: to deal with a scenario of destruction, of chaos, of the suffering of lots of people, many of whom are innocent and have not been judged yet.


Another part that is very challenging is that our work is kind of unpopular because people don’t always agree with what we do. We are defending the “criminals,” we are defending those who did something bad, or are suspected of having done something bad. We have to try to educate, to explain to society why what we do is important, why it is necessary to guarantee a fair trial for people. That is not easy.


It is also difficult that we can’t always give good news to our clients. We actually lose a lot of cases. Sometimes our clients have a lot of evidence against them, so sometimes they have to be sentenced. We cannot win the cases even if we give our biggest effort. Then our clients will have to spend a long time in prison, and that situation is not easy.


Finally, we have to deal with a very underprivileged segment of our society. Our clients are usually people coming from the poorest neighborhoods, the most underserved areas. The most vulnerable groups of society come to our offices and are represented by us. They are people who have long been excluded from society. That is not easy, because you receive a person and you have to help a person who has a lot of dissocialization and a lot of problems apart from the crime they are being accused of. Sometimes it’s not really a serious crime, but they have past or present drug abuse problems, or they have problems of parental violence if they are young. So they have whatever history and we have to deal with that. We have to try to help those people integrally, not only in the technical part of the case. That’s also a challenging part of our work as public defenders.


Looking ahead with the ILF, what are you hopeful for?


I think the ILF, as it has done from its very beginning, has to continue expanding. In the countries where we have been working for many years, like Afghanistan, Myanmar, Palestine, and Tunisia, where we are established, we have to continue expanding. We have to reach as many people as we can. In countries where there is already some legal aid from states, we have to try to raise the level, to make it better and more comprehensive.


Finally, I think we have to set new goals, new targets. Personally, as a Latin American, I would love for the ILF to open an office in the region. Probably to target those countries where the Public Defender’s offices are underfunded or lack independence, or where they have the worst prison conditions, so we have unrepresented people or people who are not receiving quality representation. I would love for the ILF, in the near future I hope, to start helping with the right to quality legal aid in a Latin American country. That would be very satisfying.