Criminal Code Reform: A Debate in the Making

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The draft bill for a new Criminal Code is yet to be officially released and sent to Congress, but it has already sparked a heated debate.

Whilst the draft sits with President Cristina Fernández de Kirchner, who will study it before submitting it to Congress for debate and approval, a preliminary copy was leaked, showing the main changes proposed by the new Criminal Code.

The latest controversy came yesterday, when Frente Renovador (FR) deputy Sergio Massa reiterated his proposal to carry out a referendum in order to approve the new Code, which, he said, “is made to benefit criminals.”

The committee presents the draft bill to President Cristina Fernández de Kirchner (photo: Raúl Ferrari:Télam:cf)

The committee presents the draft bill to President Cristina Fernández de Kirchner (photo: Raúl Ferrari:Télam:cf)

Some History

The foundations of Argentina’s current Criminal Code date back to 1921, though it has undergone several modifications – around 900, according to estimates – throughout the years.

These sometimes haphazard changes are what prompted President Fernández to form a committee made up of representatives from different political parties and presided over by Supreme Court judge Raúl Zaffaroni.

The members of the committee are former judge and minister León Arslanián, constitutional lawyer and former UCR deputy Ricardo Gil Lavedra, former Socialist deputy María Elena Barbagelata, and PRO deputy Federico Pinedo. It was formed by presidential decree in May 2012, with the aim to “reform, update, and integrate criminal legislation into a single body of law” that restores the code’s “original coherence”.

The Criminal Code project follows on from the comprehensive Civil Code reform being debated in Congress since 2012, and come before forthcoming reforms to the Criminal Procedure and Administrative Codes, announced by the president in the opening of Congress’ 2014 sessions on Saturday.

After two years’ work, the committee in full presented the draft bill to President Fernández on 13th February. Zaffaroni considered the new version to be “revolutionary”, as the current code “has a number of reforms that make it inapplicable.”

Supreme Court judge Zaffaroni (photo: José Romero:Télam:jcp)

Supreme Court judge Raúl Zaffaroni presided over the reform committee (photo: José Romero:Télam:jcp)

Sentences

The criticisms aimed at the draft code by the likes of Massa are consistent with, and build upon, the usual criticism aimed at Zaffaroni himself for his support of ‘guarantism’, a liberal school of thought developed by Italian jurist Luigi Ferrajoli which places great emphasis on the recognition and protection of the individuals’ rights and constitutional guarantees. In criminal law, this translates to the defence of personal freedom against arbitrary interventions by the judicial system.

The draft code has been criticised mainly for decreasing jail terms and removing the concept of recidivism (repeat offending) as an aggravating factor in sentencing.

One of the main problems with the “chaotic” legal criminal system currently in place, is the lack of proportionality in jail terms. As such, it was an important task of the committee to re-organise the length of the punishment for different crimes in order to make the scale more coherent -that is, to give tougher sentences for more serious crimes and shorter sentences -or even no sentences at all- for lesser crimes.

Members of the committee have defended this decision by pointing out that, while it is true that some sentences are now shorter, others have been lengthened. The main changes on this regard are:

– Life sentence -which exists nominally in the current code but is not applied in practice- is eliminated.

– The maximum jail term is reduced from 35 to 30 years, in line with the Rome Statute, and is applicable to crimes against humanity.

– Parole is eliminated, and replaced with alternatives to prison, such as house arrest, weekend arrest, community service, fines, and limitations to a convict’s mobility. This does not apply to serious crimes.

– Recidivism (repeat offending) is eliminated. Currently, its only use is to limit access to parole. Without parole, all terms will be served in full, either in prison or using any of the alternatives described above.

– Judges can reduce or eliminate prison sentences in certain cases, such as when the ‘insignificance’ principle is applied (if the damage caused is irrelevant or simply a nuisance), when there is a ‘natural punishment’ (ie, the consequences of the crime caused physical or emotional damage to the accused that count as part of the punishment), or when the crime involves an indigenous community that has executed its own “solution processes” (though this does not apply to serious crimes).

Crimes

As for the definitions and re-definitions of the different types of crimes, some of the main innovations are:

– Crimes against humanity are included in the Criminal Code, as a specific category. They include genocide, forced disappearance, and others as specified in the Rome Statute, as well as war crimes. In line with international law, these crimes are not subject to statute of limitations or prescription.

– Torture “by omission” is penalised, including the cases of those who do not interrupt the act of torture or report it, having the chance to do so.

– Fellatio and rape within a marriage are explicitly mentioned as punishable cases of rape.

– Environmental crimes -such as pollution or attacks on animals- and cyber-crimes -such a identity theft- are included in the Criminal Code.

– Possession and/or cultivation of drugs for personal use is decriminalised, as per a recent Supreme Court ruling.

– Abortion legislation is not modified, but the text is clarified to avoid common interpretation problems. On this point, committee members stated that they specifically avoided making changes – as requested by Barbagelata – as past experiences have shown that “the inclusion of decriminalisation or criminalisation of abortion has interfered with the debate regarding the other items to be reformed, often making the whole project fail.”

Opposition deptuy Sergio Massa (photo: Wikipedia)

Opposition deptuy Sergio Massa is a vocal critic of the new bill (photo: Wikipedia)

The Repercussions

Even though the draft bill was presented to the president almost three weeks ago, it was only this week, after she mentioned it on Saturday’s address before Congress, that it started making the headlines.

Massa led the charge against the proposed code, safe in the knowledge that his party was not involved in drafting it. After a few months of relatively low public exposure, his criticism of the project and his intention to carry out a referendum on it propelled him back into the limelight.

According to the congressional deputy, his reasons for opposing the draft are that “it removes recidivism, decreases jail terms for 146 crimes, and diminshes crimes such as kidnapping, aggravated crimes, torture, trafficking, proxenetism.” With regards to the committee, he said that “they wrote a text, now they need to explain to society why eight out of ten crimes can benefit from probation. That requires a ‘yes’ or ‘no’ answer.”

The answers came from all sides of the political spectrum. Committee coordinator Roberto Carlés explained in an article published by Página 12 that the draft includes 85 new offences, reduces 116 penalty ranges and decriminalises 17 former offences, but also raises jail terms for 159 crimes. He also criticised Massa’s limited understanding of constitutional law, as the Argentine Constitution does not allow for popular initiatives on matters related to criminal law, and the doctrine extends this to referendums.

Zaffaroni took Massa’s statement as a “defamation, rather than criticism”, as “any ordinary citizen that listens to what he’s saying may well believe that we are five irresponsible lunatics.” He clarified that “issues such as probation and detention pending trial are ruled by [provincial] criminal procedures’ codes, and not by the Criminal Code.”

UCR’s Gil Lavedra, in turn, called Massa’s stance a case of politically motivated “demagogic opportunism”. “The opportunistic use of sensationalist expressions makes me think the [2015 presidential] election campaign has already begun,” he said.

Controversy has extended to within the UCR as well. Despite having Gil Lavedra as co-author of the draft Code, some party members, such as Julio Cobos, have expressed their discontent with the proposed bill along similar lines as Massa.

As the committee members have pointed out, what the executive is currently studying is merely a first draft. It is still to be reviewed by the president and the Justice Ministry before it can be submitted as a bill to Congress, where it will be debated and possibly modified. With this in mind, committee member and PRO deputy Federico Pinedo suggested that, rather that opposing the project, Massa should “do his best possible work,” because “it is the job of lawmakers to pass good laws.”

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2 Responses to “Criminal Code Reform: A Debate in the Making”

  1. Werner Almesberger says:

    I think the main problem with this reform may be that people don’t trust the government in such matters anymore. This comes from a) mafiesque operations by the executive in high-profile cases like the on-going investigation against vice president Boudou, b) similar “reforms” with a clear aim to extend the party’s sphere of control, and last but not least c) a perceived and most likely real increase of violent crime, which neither police nor justice seem to be able to handle.

    So the government itself is seen as consisting of white collar criminals, being exceedingly soft on their less sophisticated brethren, and actively hostile towards the forces of order.

    And of course, each time a repeat offender is caught committing more crimes, people rightly ask why that guy’s human rights would be a higher good than the lives of his victims. The question thus becomes less one of justice but more one of protection.

    It’s a bit odd that the constitution doesn’t consider the possibility of having such things decided by the people. Aren’t they a democracy’s sovereign ? Well, given the current climate, it’s probably a good thing, for if there was a popular vote, I wouldn’t be surprised if we’d end up with a return of capital punishment.

    It can hardly surprise that Massa would jump on this opportunity. He did very well with law and order in Tigre. Being tough on crime may well be the ticket to the next presidency.

    By the way, there’s also the question of whether trying to mimic criminal law of considerably more quiet countries is really a good idea. For example, a place where violent crime doesn’t exist as a way of life is likely to have a completely different scenario when it comes to recidivism.

    Instead of focusing on prison terms, I would think it a lot more important to consider how convicts who are willing to change are prepared for their return to society, what is being done to give them a realistic chance to make the right choices where before they made the wrong ones, and also to have an eye on what environment they’ll return to.

    At the same time, what to do with the ones who won’t change ? Maybe they never had a chance, but does this make everyone else – who most likely never wronged them – fair game ?

    – Werner

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