August 30, 2014
Zaffaroni: ‘New Penal Code creates order’
Eugenio Raúl Zaffaroni
Date of birth: January 7, 1940
Education: Juan B. Peña (“where Leopoldo Marechal used to teach”), Mariano Moreno schools.
Media: “I get Página/12, I read Corriere della Sera or Globo. I rarely watch TV and never listen to radio.”
Currently reading: Los días sin López by Werner Pertot and Luciana Rosende, Hacer sufrir by Alejandro Alagia
Metres swum per week: 8,000 (“which means I have to go to the pool four times per week”).
A commission led by Justice Eugenio Raúl Zaffaroni, one of the top criminal experts in the country, will deliver today a draft for a proposed Penal Code bill.
Last week, Zaffaroni welcomed the Herald in his office at the Supreme Court and talked about the chance of reforming a Penal Code from 1921 that has undergone more than 900 amendments.
At a time when the highest court in the land and the Executive seem willing to once again reignite controversy around an issue that divided waters last year, Zaffaroni made a critical assessment of the Supreme Court.
The room is packed with books and doors are open — some of his employees come in and out of the room while Zaffaroni talks to the Herald.
The first question inevitably goes to his announced retirement by the end of the year. According to the justice, the clock is ticking and he is eager to leave the court to fully devote his time to academic life. “I’ve been saying it. I don’t know why it exploded in the papers in that way. It’s my birthday on January 7. On December 31 I’m leaving.”
Will you still be there to vote for the president of the Court?
No, thank God.
Who would you like it to be? They say it could be Elena Highton de Nolasco or Enrique Petracchi.
I don’t know. It’s not my problem.
You said that the delays behind the Media Law left a bad taste in your mouth.
Yes, the delays but not just because of the Media Law — but the whole question of why the courts are so eager to quickly issue preliminary injunctions. I wonder if we’re resolving matters of substance or if we’re handling things with two articles from the Procedural Code. It all becomes (a matter of) injunctions. Civil law’s idea of preventive measures has been expanded to administrative law and also had consequences in penal law. For instance, preventive custody, which is also a form of injunction, tends to prolong a case. I wonder if all law has become preventive. We’ll have to think how to invigorate the whole process, so that decisions are made in the right moment.
At some point, the Supreme Court was also responsible for the delay.
Yes, the Supreme Court, too.
Did you speak about it among yourselves?
When we move toward sentencing in any case, it’s discussed. We didn’t want to resolve the (Media Law) case before an election. Spanish law, for example, establishes that cases of this type should not be decided during the electoral process. Because it would have been read a certain way, even though it wouldn’t have had an impact on the electoral process.
Was there a space for self-criticism? Did you express these concerns to your colleagues?
Quite a few of us expressed these concerns.
What was it like participating in the multi-party comission for the reform of the Penal Code?
Highly positive. It’s not the “Zaffaroni project.” Each of the five of us in the committee had a project in mind and we all realized the need to clean up the chaos we have in terms of criminal legislation. We’ve negotiated among ourselves and made concessions in order to produce a text with consensus. If I had complete freedom in writing it, it would be something quite different. We have the remains of what was a dignified Penal Code in its era, band-aid laws (passed over the last years) have made sanctions disproportionate. Property is worth more than life. (In the current Penal Code there are) surprising things and a lot of criminal laws that were poorly written. I think the new one we agreed on has nothing revolutionary about it; instead it has order.
Criminal topics usually create debates. Is the Code bill going to create a new one?
Criminal topics always bring this type of problem with them. In no way am I a crusader wanting to have the reformed text approved. I’m satisfied with the fact that it’s been written. The history of our Penal Code is rocky. It took the longest time to create. There was a very long process behind producing the 1921 Code. In 1916 Rodolfo Moreno took over the project. He was the president of the conservative bloc opposed to (former president Hipólito) Yrigoyen, who created a committee with two of Yrigoyen’s most trusted lawmakers and another two Socialist lawmakers. In 1917 it was re-designed and spent time going backward and forward between the Upper and Lower House. In this period of back-and-fro, certain texts and projects were elaborated upon, but Argentine politics wasn’t mature enough to have a Code at that moment in time. I don’t know. I feel it was a case of “either it will be sanctioned now or we’ll pick it up again later.” A penal code is an appendix of the Constitution. The Constitution gives me certain rights and the Penal Code limits them. It’s a text that’s just as important as the Constitution.
The Civil and Commercial Code bill presented in 2012 had been on hold for a while and then it was picked up again. Is there a possibility of this happening with the Penal Code?
This is the first experience of this kind since the politically plural commission led by Rodolfo Moreno. The work is done. What’s left from here on out is politics, and in that I don’t mingle. I’m not a crusader of the Code. It’s a great document for the region, which at the moment doesn’t have a Code that can be adapted to each country. In Latin America there’s none of that, just dispersion, so the legislative chaos in terms of criminal law is not just an Argentine experience. On the one hand there’s the media and the vindictive propaganda coming southward from the United States, and on the other, the impotence of governments that increasingly have less space to resolve social problems that require structural reform. Ultimately, propaganda wins out, convincing some that everything can be resolved through criminal law. It’s a big scam.
How do you assess Kirchnerite criminal policy?
It doesn’t exist. That has to do with the (2004 Axel) Blumberg case, which ended up destroying criminal legislation. The relationship between criminal legislation and safety is zero. The 18th century imagery is absurd: that somehow somebody who’s about to kill his wife is going to get the Penal Code out to check what sentence he might get. A new code won’t affect safety. Safety relates to people’s quality of life, crime prevention in general, as well as special prevention — policing — and is also tied to the drawback that is having to control crime in the supply and demand of illicit services. Over the past few years the quality of life here has improved, but on policing little has been done — we see that.
What could have been done with the Police that hasn’t been done?
I think we have to do what the US does — but not what it tells us to do. That is, community policing models. I don’t mean having an elected sheriff but rather starting to think about county police forces as security police forces that serve a function that’s more than just criminal investigation. But the day-to-day grind should be in the hands of the authority with most contact with the people.
What happens when someone triumphs using almost illegal means?
Then he’s mafia, not police.
That’s a risky situation.
One day people will take to the streets, generating an uprising. Or directly wait for the next election and won’t vote for him. Inevitably he will be the one wishing for security in the streets.
But perhaps at the cost of people being tortured and disappeared.
Does that not currently happen, though?
You mentioned in a recent interview the cases of people being murdered or disappeared by police during democracy: (Maximiliano) Kosteki and (Darío) Santillán, Julio López. Were governments aware of these problems or did they think it was the price to pay?
I think there was a lack of policy. There were protests and counter-protests. Let’s agree that in the Buenos Aires province a reform was led by (former Security Minister León) Arslanián, then someone else came along to say that a hard-line on crime was needed. No state policy was seriously implemented. After these 30 years we still owe ourselves a new police model. I think we need to look up and aim high. We have to think about Scotland Yard or Bundespolizei. Yes, we can have a police force like other countries.
Have you spoken about this with the president? Do you think she could implement such a policy?
I think so. This government could do it, and the next government will have to do it. This is a 30-year debt, and of that I have no doubt.
What role does judicial pluralism have in the new Penal Code?
There are two central ideas: to try to distinguish between crime of low and medium severity and crime of greater severity; and on the other hand, to increase the evaluation power of judges. With the Penal Code we have at the moment, I would say that all prison sentences are invalid because judges do not explain their sanctions.
What will you do after you leave the Court?
I think that judicial reform has to begin at universities, which is one of the reasons I want to leave urgently and get back into academia. The universities of Greater Buenos Aires interest me very much. I think it’s one of the most revolutionary things about Greater Buenos Aires. It’s a new social class that we’re incorporating into society.
Which has been the case you’ve most enjoyed and which left the most the most bitter taste in your mouth?
In the criminal realm there’s always a bitter taste. One always has the sensation that one hasn’t done enough. It’s more or less what happens to a Security minister, which is always the worst political portfolio. The greatest satisfaction for me was to declare indefinite incarceration (reclusión accesoria) unconstitutional, making trials of trials (doble conforme) possible, having reopened the case of crimes against humanity. I don’t think this has been historic. When somebody thinks he’s doing something historic, he doesn’t end up in the history books, but rather the comic books.
There are structural problems in the Court, and they have nothing to do with just one individual. This Court has been a political and judicial experiment in the last few years because it became a plural court. We’re the seven nuts that (writer Roberto) Arlt talked about, each with a different background; we respect one another. We don’t have blocs. Sometimes we vote for things together, sometimes we don’t.
What can be done?
It can be resolved within the Constitution we currently have. The only solution I see is adding three specialized chambers to the court to allow for arbitrary judgements. If there were a reform of the Constitution one day, we would have to create a constitutional court separate from the national Cassation Court.
How has your relationship with the media been?
Good. The media have helped me a lot.