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October 1, 2014
Sunday, March 9, 2014

‘Penalties were not reduced, just readjusted’

From left to right: Roberto Carlés, Federico Pinedo, León Arslanián, Eugenio Zaffaroni, Justice Secretary Julián Álvarez, Ricardo Gil Lavedra and María Elena Barbagelata.
By Luciana Bertoia
Herald Staff
The Herald talks to Roberto Carlés, the expert involved in drafting the Penal Code reform

The Penal Code reform sponsored by the Kirchnerite administration has divided the waters within the opposition but also the Kirchnerite ranks have been shaken by the possible criminal reform.

Renewal Front leader Sergio Massa launched a campaign against the draft. The Radical Party (UCR) was also shaken by the discussion, even though one of its leaders took part in the drafting commission. Something similar happened with BA City Mayor Mauricio Macri’s PRO party, regardless of Federico Pinedo’s role in the drafting commission. The dream of consensus seems to be vanishing in the air.

Legal expert Roberto Carlés, who coordinated the drafting commission headed by Supreme Court Justice Eugenio Raúl Zaffaroni, talked to the Herald about the most striking aspects of the reform, which is being analyzed by President Cristina Fernández de Kirchner before sending it to Congress for its debate.

Why did the commission decide to reduce penalties?

That is not true. We handed over a draft to the president. She has to examine it and introduce all the amendments she considers to be necessary. The president called a pluralistic commission. But we have to make it clear that penalties were not reduced. In fact, they were readjusted because they were disproportionate.

For example?

With the current Penal Code, a person found guilty of an aggravated kidnapping can receive a higher penalty than one convicted of murder.

The commission included jurists from several parties but those parties are now objecting the work done...

Political parties were not summoned to take part in the commission, jurists were. I am not going to talk about internal rifts. But I find quite serious Ernesto Sanz’s attitude, who — as the UCR chairman — requested the president not to send the bill to Congress, which is one of her rights. After years demanding debate, they cannot say that we cannot discuss the bill because we are in the middle of electoral times. In Argentina, we have elections every two years. In that case, we would never be able to discuss anything.

Daily La Nación yesterday said that Kirchnerite lawmakers believe they will not be able to pass this reform. Do you have any information?

None. Nobody told us that.

Why did you remove life imprisonment from the Penal Code bill?

It is a way of acknowledging a factual situation. There isn’t a life sentence in our legal system. In fact, someone given life imprisonment goes home in 18 or 20 years. We are not adapting the text to international law. We are just making it consistent with our Constitution, which says that life imprisonment is an inhumane penalty.

And what happens with recidivism?

It does not disappear. Nowadays, that that legal element is used to reject release on parole, using Penal Code’s Article 14, which was considered unconstitutional by the Cassation Court. For instance, a person who is accused of having committed a robbery and first was accused of giving a bad check can be denied release on parole but a rapist can be granted a conditional release. We are suggesting a different system.

For example?

We suggest alternative penalties. We want all sentences to be fulfilled.

Can somebody accused of armed robbery avoid prison?

That is regulated by the procedural code, which is defined by each province. It is not true that the penalty is reduced.

Senator Fernando “Pino” Solanas said you forgot about corruption in the bill. Is that true?

Maybe they haven’t read the text or they are just plagiarizing Massa. We didn’t reduce penalties, we increased them. For cases of corruption, we have introduced a penalty of prison, confiscation and a fine. We have also introduced the criminal liability of legal entities.

What does that change mean?

Anytime there is a corrupt official, there is somebody else paying bribery. If the one who paid briberies is not found, there is impunity. In this case, even if the person cannot be identified, enterprises can be hold accountable.

Did you reduce penalties for those taking part in de facto administrations?

There are not major changes but they were extremely hefty penalties. We established penalties between five and fifteen years for those taking part in a de facto government. That definition can include several responsibilities and people. For instance, a governor who remained in his post and did not commit any other crime.

Can mercy killing be defined as euthanasia?

Euthanasia means ending with somebody’s life when that person is suffering terrible pains. Mercy killing implies that in particular circumstances a person who helps a close person die will receive a lesser penalty.

Do you admit indigenous communities’ justice?

It is not that indigenous communities’ sanctions have legal entity. What we suggest is that a judge should take into account if a person has already been sentenced by his community when he is measuring the penalty. We do not admit any other legal system but the state’s.

You included the crime of genocide in the Penal Code. Does your definition go beyond the 1948 Convention’s one?

Yes. The convention was adopted in a particular moment marked by the Cold War and the USSR’s pressure to grant impunity to its crimes. The important thing is acknowledging why perpetrators decide to annihilate a particular group. Political groups are as well protected, according to the bill’s definition.

What happens with the crime of slander?

Well, that title was more reduced than it was with the reform sponsored years ago by this government.

But you differentiate the sources used?

A reliable source is required. A person cannot be excused for referring to a rumour. But we have to make it clear that topics related to public affairs cannot be considered a crime.

@lucianabertoia
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