December 18, 2014
Supreme Court joins Penal Code debate
Supreme Court Justice Eugenio Zaffaroni has been in the eye of the storm in the ongoing debate over the Penal Code reform he sponsored.
His colleagues at the Supreme Court yesterday made it clear they are not going to back one of the issues that has caused the most controversy: recidivism.
Four of the seven justices yesterday considered that a repeat offender should not be released on parole. Zaffaroni was the only justice who delivered a dissenting vote.
Justice Carlos Fayt did not take part in the tribunal’s decision and neither did Chief Justice Ricardo Lorenzetti, who is abroad, court sources confirmed to the Herald.
Deputy Chief Justice Elena Highton de Nolasco along with justices Enrique Petracchi, Juan Carlos Maqueda and Carmen Argibay yesterday rejected an appeal filed by Juan Miguel Cabail Abad’s lawyer after a lower tribunal had refused to allow his release because he is a repeat offender.
Article 14 of the Penal Code notes that release on parole should not be granted to recidivists. However, Cabail Abad’s defence lawyers considered that the legislation was unconstitutional because it affects the basic principle that everyone is innocent until proven guilty. They affirmed that no one can be judged twice for the same offence and went on to note the article seems to make reference to what is known as the offender-based criminal law, which means that a person is convicted not for what he or she had done but for what he or she is or represents.
Cabail Abad’s lawyers also contended that refusing to release anyone on parole contradicts the re-socializing process that any penalty is supposed to have according to the National Constitution.
Zaffaroni agreed the recourse should have been used by the Supreme Court in order to overturn the adverse ruling against Cabail Abad.
In fact, Zaffaroni — who led the drafting commission in charge of overhauling the Penal Code — has expressed his opposition to the recidivism exemption.
“No judge can deal with recidivism in a mechanical way. In our Penal Code, it is generic,” he said in conversations with a radio station yesterday. He highlighted that every judge had to decide in every particular case if a person can be released on parole.
In fact, Zaffaroni said that releases on parole should be eliminated and that an alternative system of penalties should be approved.
Cassation Court also divided
Cabail Abad was sentenced to 16 years in prison for accumulating five previous sentences for several crimes, including possession of drugs, aggravated robbery, covering up and possession of a forged identification card.
In June, 2013, the fourth courtroom of the Federal Criminal Cassation Court defined the Penal Code’s article 14 as constitutional and confirmed that Cabail Abad should not be released on parole. The three members of the courtroom, Juan Carlos Gemignani, Mariano Borinsky and Gustavo Hornos, agreed on that ruling. Borinsky is the Cassation Court’s current president.
However, recidivism not only divides the country’s highest tribunal but also the top criminal court. In 2012, the members of the second courtroom of the Criminal Cassation Court considered that the article 14 was not constitutional because it contradicted the Constitution’s articles 18 and 19. That time it was judges Angela Ledesma and Alejandro Slokar who agreed and judge Ana Figueroa who did not.
A new Penal Code
In 2006, Kirchnerism made its first attempt to overhaul the 1921 Penal Code. At the time, the task was left in the hands of Alejandro Slokar, a criminal expert who was later appointed to the Cassation Court. Slokar’s attempt failed due to the opposition raised by conservative sectors, including Juan Carlos Blumberg’s who threatened to call a demonstration against the draft. Blumberg’s son, Axel, was killed by a gang in 2004. He has sponsored several bills to harden penalties.
The 2006 Penal Code draft included some more progressive aspects regarding abortion, for instance, than the one handed over to President Cristina Fernández de Kirchner last month by a drafting commission headed by Zaffaroni.
However, this new attempt to overhaul the Penal Code — which has undergone more than 900 amendments throughout the years, thus losing a systematic approach — is also facing criticisms.
Roberto Carlés — who coordinated the drafting commission — explained on Sunday that recidivism was considered unconstitutional and was only, in fact, used to limit release on parole, sometimes, in absurd circumstances. For instance, he told the Herald that judges sometimes agreed to free a rapist who had only been accused once but not a man who is accused of a robbery and previously had been accused of signing a bad cheque.