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October 1, 2014
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Penal Code bill brings bad news for police

According to Penal Code bill, it is not longer an aggravating factor if the victim or the perpetrator is a member of a security force.
By Mariano Parada López
For The Herald

Hefty penalties for security forces included in the reform sponsored by Zaffaroni

When the Penal Code reform draft was leaked, political voices rose for and against it. One of the main opposition voices was Renewal Front leader Sergio Massa, who harshly criticized it because some crime convictions carry lower penalties than the 1921 code. Massa stressed the need for higher sentences to stop criminals. But the 600-page Penal Code reform draft rises 178 convictions while reducing 129, lawyer Gustavo Arballo said.

Some of these penalty modifications closely affect security forces, whose officers could be jailed for more years if they commit fraud on the job, while being an enforcement agent will not be an aggravation if they commit (or suffer) homicide.

Forged procedures

The well-known federal judge Daniel Rafecas is a former prosecutor who investigated police fraud early in this century. In that time, a team of prosecutors discovered nearly 100 fake procedures against poor people, the destitute, illegal immigrants or prostitutes, who were victims of federal policemen who arrested them as alleged drug-traffickers or thieves. Rafecas remembered that, talking to the Herald: “All cases had things in common. A low-income person or illegal immigrant met an unknown person, who offered them a job. Then, they had to go to a place, where everything was prepared. Mass media coverage appeared shortly afterwards, and it was presented as a successful police raid.” All the cases took place in Buenos Aires City and involved the Federal Police.

“The same people responsible for catching alleged criminals worked for different departments. We proved many police enforcement secretaries had been involved. It was a systematic practice in around 25 police precincts,” Rafecas added.

After this astonishing discovery, the team of prosecutors formally accused the federal officers involved of false statements, document forgery, illegal arrest and harbouring. All officers responsible were cashiered and the current judge stated that he has no information related to similar behaviour in the Federal Police in recent times.

“This practice completely disappeared within enforcement,” Rafecas said.

In the current Penal Code, illegal arrest is punished with three years in prison if the offender is a law enforcement officer. With the Penal Code reform, this crime is punished with up to six years. False statement keeps the same punishment: 1-10 years conviction if made during a criminal procedure. In addition, document forgery carries eight years in prison (currently six).

The habit of forging procedures to burnish the law enforcement image was not exclusive to the Federal Police. When León Arslanián, one of the members of the multi-party commission who proposed the Penal Code reform, was Security Minister in Buenos Aires province, his office discovered similar cases to Rafecas’. The alleged thieves, drug-traffickers and rapists were defended by Peronist lawyer Atilio Neira, who was a ministry adviser in those times.

“I took part in seven or eight big causes. People were accused of kidnapping or drug-dealing, and I realized the causes were badly investigated, mostly by policemen. A youngster was remanded in custody for four years and then found innocent,” Neira told the Herald.

“In almost each trial, there were statements which were useful to accuse police officers,” he explained.

The main reason to carry out these fake procedures was to enhance police records, Neira affirmed.

“Police stations do not want many murders to remain unpunished because their jobs seem to be irrelevant. So they caught patsies, planted some fake evidence and sent them to trial. Meanwhile, the defendant still remains in prison for three or four years.”

“It is not about changing the law but changing both the judiciary and police structures, which are not changeable from one day to another,” he emphasized.

In the same terms, Rafecas asked for Federal Police enforcement democratization.

“In Argentina there is still an Inquisition system instead of an accusatory one. The prosecuting attorney’s office should conduct police enforcement, setting up criteria. Current Federal Police chiefs are likely to accept and adapt to these changes. A political decision is needed,” Rafecas suggested.

Trigger-happy cases

Lawyer María del Carmen Verdú, as a CORREPI member, underlined the organization reached “700 years of sentences” against different security enforcement officers convicted for being “trigger-happy” when killing people.

Verdú does not believe the Kirchnerite government was so worried about human rights.

“Kirchnerism is the most effectively repressive government since 1983,” Verdú told the Herald. Since 2003, she said, “2,500 teenagers were shot by Kirchnerite police or by their allies, 22 murdered during protests and 60 people still remain missing.”

In her view, any police structure reform is useless “The nature of the state and the system in which we live has to change. The role of enforcement is social control, that is their job and it is not possible to change.”

In current criminal law, being a police officer is an aggravation, both if he is the perpetrator or the victim. The present Penal Code establishes life imprisonment in these cases.

With the reform, these aggravations are excluded as they are considered “discriminatory.”

Penal Code reform under debate

Some days ago, President Cristina Fernández de Kirchner met a special commission aimed at updating criminal law. The commission, whose members were current Supreme Court justice Eugenio Zaffaroni, PRO party whip Federico Pinedo, former Buenos Aires province security minister León Arslanián, and former deputies Ricardo Gil Lavedra (UCR) and María Elena Barbaleta (Socialist Party) suggested some changes to the 1921 Penal Code. The bill is now in the hands of CFK, who will decide whether she will amend it and when she is going to endorse it.

Once the proposal was known, Massa issued harsh criticisms saying the reform worked “for the criminals and against the workers” because sentences are reduced for some crimes. Moreover, the former Kirchnerite Cabinet chief stated that the reforms would prompt “1,7000 criminals” currently jailed being freed.

Now, Massa has released a website gathering support for a plebiscite on the bill, something which Jorge Capitanich pointed out as “unconstitutional”, according to Article 39.

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