November 28, 2014
2014, the year to overhaul the Codes
Zaffaroni has tabled a bill to reform the Penal Code; Civil Code to be discussed
This year, lawmakers will have in their hands two Codes to discuss: the Civil and Commercial one that has to be examined by the Lower House of Congress and the Penal Code, which is currently being analyzed by President Cristina Fernández de Kirchner.
Kirchnerism seems determined to leave a mark of its more than ten years in office. Fernández de Kirchner has asked Chief Justice Ricardo Lorenzetti to overhaul and unify the Civil and Commercial Code. In 2012, the commission headed by Lorenzetti, Deputy Chief Justice Elena Highton de Nolasco and former member of Mendoza’s Supreme Court member Aída Kemelmajer finished the draft. But the bill was passed in the Senate in November, 2013. In the midst, the Executive and the Supreme Court engaged in a battle, which reached its breaking point when the top court quashed the Judicial reform package sponsored by the Kirchnerite administration. After the Court declared constitutional the Broadcast Media Law, the waters calmed down and the president ordered to dig up the Civil and Commercial Code bill and to hurry it through both chambers of Congress. The clock was ticking and the discussion in the Lower House of Congress had to be postponed until after March this year.
But the relation with Lorenzetti and Highton was eroded. The ruling Victory Front (FpV) included several amendments that disturbed the justices. Sources from the highest tribunal then told the Herald that both justices considered it no longer to be the draft they authored. They were angry to hear that Kirchnerite lawmakers removed part of their article 19, leaving behind the idea that life can start when embryos are implanted in a womb. The president also ordered the discussion of the state’s civil liability in a separate law.
New times for a new Code
The year when the Civil and Commercial Code was presented, the president decided that it was time to start putting in order the Penal Code, which was approved in 1921. But times changed and so did the Code.
“It was destroyed by 900 reforms,” Justice Eugenio Zaffaroni said. “We are ruling with a collection of ancient telegrams,” he also added.
The president left the task in hands of Zaffaroni, a top expert. But Zaffaroni went further to propose a drafting commission composed by opposition jurists. He did not want the Code bill to be stuck in Congress because of internal rifts or due to the lack of support of other parties. In fact, he was following the same formula that late former president Hipólito Yrigoyen when the Code was passed.
That is why the commission was formed by León Arslanián (former judge and Security minister), Ricardo Gil Lavedra (former judge and former Radical Party congressman), Federico Pinedo (BA City Mayor Mauricio Macri’s PRO lawmaker) and María Elena Barbagelata (Socialist party congresswoman). Sources from the drafting commission told the Herald that they were scheduled to finish their work in October but electoral times and the president’s surgery delayed the presentation, which was allegedly made on December 10, when Argentina celebrated 30 years of democracy.
This is not the first time Kirchnerites try to reform the Penal Code, which has not been completely overhauled since 1960. In fact, a commission headed by Alejandro Slokar (currently a Criminal Cassation Court judge) filed a bill in 2006 that generated a huge debate because it suggested to decriminalize a number of cases of abortion. Juan Carlos Blumberg — who sponsored a reform of the Code, toughening the penalties in cases of property crimes rather than in crimes against life — even threatened with calling a demonstration against the Code bill.
Some of the suggestions of that commission were adopted by the one headed by Zaffaroni.
The maximum penalty included in the bill is of thirty years, no longer of 50 as it was introduced by the so-called “Blumberg laws.” Though the figure of 50 years in prison was criticized by progressive sectors, late former dictator Jorge Rafael Videla was sentenced to that penalty in the trial for the systematic plan of snatching babies during the last dictatorship.
The bill includes the legal definition of offences such as forced disappearance, crimes against humanity and genocide. This was a long-term demand by judges and prosecutors taking part in the trials against dictatorship criminals.
The draft also suggests penalties alternative to prison. But there is also an adjustment of the penalties. As the secretary of the drafting commission, Roberto Carlés, explained in an article, a kidnapping of a pregnant woman will not deserve a tougher penalty than her murder.
To avoid repeating the fate of the 2006 bill, the members of the commission agreed to rewrite the article that refers to abortion not being subject to criminal penalties, making it clear that a woman cannot be criminalized if her life is at risk or if the pregnancy is the result of rape.
As the Civil Code bill, this includes penalties for crimes against the environment and cybercrimes. But, there is still a long way to go yet.