November 23, 2014
‘Penal Code can’t only be discussed by parties’
María Elena Barbagelata, member of the drafting commission, talks to the Herald
After weeks of stalemate, the discussion over the Penal Code reform has started to move forward as the Kirchnerite administration decided to take the discussion to the universities. Former Socialist lawmaker María Elena Barbagelata (who now belongs to the UNEN-Broad Front) was one of the members of the drafting commission headed by Supreme Court Justice Eugenio Zaffaroni. In conversation with the Herald, she analyzed the most controversial aspects of the criminal reform, such as abortion and recidivism.
Barbagelata not only blamed opposition parties for their reluctance to discuss the draft aimed at overhauling the 1921 Penal Code but also the ruling Victory Front (FpV).
What’s your opinion of taking the discussion over Penal Code draft to universities?
It is an important initiative and it is also a necessary one. When the Penal Code draft was presented in February, the context was not suitable for discussion. Taking the debate to universities, bar associations and criminal law institutes seems like a good decision.
Is it a way to put an end to the deadlock in which the discussion remained after opposition emerged?
It was not a suitable context to discuss the draft that we have been analyzing for a year and a half. There were several interferences to prevent discussion. There were also slogans linked to electoral intentions. Of course, that context affected the positions of the different Congress’ caucuses.
Parties represented in the drafting commission such as the Radical Party and BA City Mayor Mauricio Macri’s PRO said they would not vote for the Penal Code bill. Your party, the Broad Progressive Front (FAP) said it was not time to discuss it. Why?
We should not forget that many bills undergo an authoritarian discussion in Congress. Take into account what happened with the Civil and Commercial Code last year. The ruling party did not allow a discussion. That tendency conspires to discourage the Penal Code draft discussion. It is true that the FAP supports the work done by the commission, we also said that we cannot hold a discussion in this context. The draft has to be analyzed in other spheres apart from political parties.
The Civil Code bill was submitted in 2012 but last year began to be discussed after a long controversy between the Supreme Court and the government. Can that happen with the Penal Code as well?
I don’t know. It’s quite difficult to foresee the manoeuvre. For instance, there was a bill to modify the human trafficking law which had been frozen until there was a ruling in 2012 in Marita Verón’s case, acquitting those responsible for her abduction. Things have to be discussed in a different way. The drafting commission was pluralistic enough to reach consensus in spite of differences.
Why did you complain about the way abortion was considered in the draft?
I expressed my dissenting vote in areas linked to gender: abortion, raping. For instance, I said that abortion cannot be punished in some other cases apart from raping.
In which cases?
If the woman decides to voluntarily interrupt her pregnancy before the 14th week, as many organizations have been demanding. I also opposed to the introduction of entities such as non-guilty abortion and guilty and non-guilty injuries caused to the foetus.
Can you explain that?
For example, an abortion caused by medical malpractice. If we do not discuss in which cases abortion can be decriminalized, we should not introduce other entities to criminalize. That is quite contradictory with the spirit of the Penal Code draft.
It was said that other attempts to overhaul the Penal Code failed because the drafting commission tried to decriminalize abortion...
It is clearly wrong. That’s obvious if you take into account the discussion ignited in February. Controversy is not due to abortion. The problem is that if professionals taking part in these cases are criminalized, this would lead to insecure and clandestine abortion, which is the major cause of maternal mortality in the country. Then we’ll have to see how to get rid of these entities.
What happens with recidivism?
It is not removed. What the draft says is that there are certain cases in which a judge can decide to substitute penalties. We say that a criminal record cannot have an automatic impact. For instance, a person who committed a major crime can be released on parole but somebody who has committed a minor offence before cannot.
And should recidivism taken into account when sentencing a person?
If you take into account the criminal record when delivering a ruling, it is like sentencing somebody twice for the same crime.
A courtroom of the Criminal Cassation court said that but it is a pending debate in the country’s top criminal court.
It’s an open discussion. We know it can be controversial.
Which aspect of the reform has to be highlighted?
It is orderly and ends with the legal anarchy that existed. It also incorporates new crimes, which are problematic in the 21st century.
Environmental crimes, domestic violence. Infanticide has been reincorporated. The draft also establishes requirements to judges delivering a ruling. If the magistrate does not substantiate why he chooses that penalty, the ruling can be considered null and void. We have also introduced the criminal liability of legal entities.