Nationwide Debate Begins: Can Argentineans Ever Enjoy Equality Under the Law?

EspañolThe debate over Christina Kirchner’s proposed reform of the Argentinean Penal Code began on Monday at various university and academic centers across the country. The goal is to examine, in a public manner, each point within the initiative developed by a committee of lawyers, led by Supreme Court Justice Eugenio Zaffaroni.

Hall central de la Facultad de Derecho de la Universidad de Buenos Aires. Fuente: Wikimedia
Central Hall of the Faculty of Law, University of Buenos Aires. Source: Wikimedia.

The debate will last 90 days and began with a talk delivered by Zaffaroni at the University of Quilmes, followed by a public debate in the auditorium of the Faculty of Law at the University of Buenos Aires (UBA). The objective is to find possible refinements to the reform before the final draft reaches Congress for approval.

Further, according to a statement on the law school’s website, “These conferences intend to give the draft of the penal code a reading from the perspective of cultural diversity.”

The mayor of San Miguel, Joaquín de la Torre, has come out publicly against the academic hearings, even though he wants the reform to be arrived at through what he calls the consent of the people. He joins Tigre Mayor Sergio Massa in opposition to the process, rather than the stated objective.

De la Torre explains that “they wish to hide in the universities what cannot be exposed to the people at large.” The opposition wing of Massa has highlighted the need to call for a referendum to make a final decision, even though the constitution prohibits referendums on criminal matters.

“The academics have already spoken. What is it? Are they afraid of the people?” the mayor asks.

Comodoro Py, donde se encuentran los tribunales federales penales. Fuente: Infobae
Federal criminal courts building, Comodoro Py, Buenos Aires. Source: Infobae.

The Proposal’s Initial Mechanics

The proposed reform would include reduced sentences and more prison releases. Perhaps most controversial, though, it would bring economic crimes into the regular penal code, away from their special civil-court status. The most emblematic example is that of hoarding in an environment of scarcity.

Roberto Carlés, who wrote part of the draft along with Zaffaroni, Gil Lavedra, and Federico Pinedo, was quoted by El Cronista as saying “there are matters that were not previously penalized, like anti-competitive practices.”

Another controversial element of the suggested reform would vary the severity of fines depending on the income level of the offender. Unlike the current penal code, which has fixed fines — usually outdated as a result of inflation and in need of congressional approval for their modification — this would mean, for example, that a company chief executive would pay more than a construction worker for the exact same offense.

In the new code, fines would be measured in days, and their amount would not be allowed to go over a predetermined maximum. Thus, article 34 contemplates fines of five to 720 days, but each day would not be able to exceed either the value of the minimum wage (AR$3,600 monthly), nor amount to more than one third of the total income of the alleged offender, up to $2.6 million (US$325,000 at the official exchange rate).

Another controversial change is the incorporation of Article 168, which establishes a prison term of four to six years for those who abuse their position in the market and engage in collusive and anti-competitive practices. In doing so, the reform seeks to “protect” the general economic interest and penalize monopolies, oligopolies, and cartels when they arbitrarily fix the price of a good or service or impose restrictive conditions for its exchange.

Shortages will also be subject to sanctions. Merchants of essential goods and services (food, health care, transport, electricity, and communications) will be subject to fines of a maximum of 100 days, and up to four years imprisonment if found guilty of causing shortages or immoderately raising prices to the detriment of consumers.

Who Loses With This Reform?

Gustavo Arballo, professor of law at the National University of La Pampa and author of the Right to Know blog, explains that the reform of the penal code would bring both advantages and disadvantages for companies.

“On the one hand, there is a potential for many more sanctions on corporate entities. On the other hand, once within the penal code, there are certain guarantees that can be invoked,” he explains.

With regard to increasing crime rates in Argentina, Ricardo Rojas, lawyer and author of Contradictions of Criminal Law, believes that the problem of insecurity can be solved by opposing collectivist policies within criminal law.

For Rojas, the intrinsic nature of criminal law has been misrepresented in the country and has become an instrument that punishes individual freedom.

“It can be said that criminal law was traditionally recognized by classical liberalism as a basic instrument which the government can use to further protect individual rights, but in reality, it has become the tool used by the state to punish certain behaviors the Congress considers punishable, independent of the will of the victim and the necessity to protect and reimburse for damages sustained.”

Furthermore, by disengaging the power to establish a catalog of offense and penalties from the protection of individual rights, the criminal justice system then becomes an autonomous source for the violation of rights,” said the lawyer.

Translated by Guillermo Jimenez.

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