September 1, 2014
Justices insist recidivism is constitutional
At a time when the discussion over reforming the country’s Penal Code appeared to have stagnated, the Supreme Court yesterday decided to reignite one of its most controversial aspects: recidivism.
The five judges, except for Eugenio Zaffaroni — who led the drafting commission to overhaul the 1921 Penal Code — agreed that recidivism is constitutional, undermining the position of Zaffaroni and one of the courthouses within the Cassation Court.
“We’ve already said this. We’re just echoing our previous rulings,” a court source told the Herald.
According to article 50 of the Penal Code, a person can be labelled a “recidivist” — a legal term for repeat offender — if he or she commits a new crime after having served a sentence. Article 14 also establishes that recidivists cannot be released on parole.
In their weekly meeting, Chief Justice Ricardo Lorenzetti, along with his colleagues Elena Highton de Nolasco, Juan Carlos Maqueda, Carlos Fayt and Enrique Petracchi, dismissed an appeal request filed by Martín Salomón Arévalo’s lawyer, agreeing with prosecutor Eduardo Casal, who in February considered that both articles were constitutional.
Arévalo was sentenced by a criminal court for aggravated robbery because he was carrying weapons at the time of the offence. He was also then sentenced for a new case of robbery by Buenos Aires City’s Oral Court No. 3. That court considered that Arévalo was a recidivist as he was sentenced when he was serving his first penalty and was in a programme that granted him temporary release. The court unified both penalties and sentenced Arévalo to 16 years in jail. The third courthouse of the Cassation Court confirmed that decision and Arévalo’s lawyer filed an extraordinary request to take the case to the country’s highest tribunal.
Petracchi and Zaffaroni are the two remaining criminal experts in the highest tribunal after Carmen Argibay’s death. Petracchi agreed with the rest of his colleagues, whereas Zaffaroni did not sign the ruling as he is currently overseas. But there is little doubt the justice would have opposed the decision.
Zaffaroni’s historic opposition
Zaffaroni has repeatedly expressed his opposition to the concept of recidivism in several books but also in a ruling issued last year by the Supreme Court.
In a case known as “Rafael Luis Álvarez Ordoñez,” Zaffaroni considered that recidivism was an outdated concept.
In fact, the justice who is considered to be on better terms with the Kirchnerite administration than his colleagues, said that labelling a person as a recidivist is sentencing him or her for what that person is and not for what he or she had done.
In that ruling, Zaffaroni also considered that a penalty cannot be increased by using any of the articles related to recidivism in the Penal Code.For Zaffaroni, both articles have to be declared unconstitutional as they allow for different treatment for people facing charges.“They take into account personal features that exceed the crime,” Zaffaroni wrote.
The debate over recidivism was reignited as soon as the commission headed by Zaffaroni handed a draft Penal Cord reform bill to President Cristina Fernández de Kirchner.
Among the reformers — except for Mauricio Macri’s PRO lawmaker Federico Pinedo — there was general agreement that recidivism was an element used by several judges to cut back on the release of detainees.
Months ago, drafting commission coordinator Roberto Carlés told the Herald that sometimes judges invoke this tool to prevent releases on parole for non-serious crimes and, in contrast, sometimes offenders who commit a murder or rape are released on parole because they do not have a criminal record.
According to Carlés, while recidivism does not disappear in the draft which is currently being discussed in universities, a series of alternative penalties were introduced in order to ensure that penalties are fulfilled.
In March, Mariano Borinsky, the president of the country’s top criminal court, expressed his desire to discuss this controversial issue with his colleagues in order to establish some definitions. But those intentions were soon forgotten.
The Cassation Court is divided by the issue and Borinsky wanted to unify the judges’ positions.
In June, 2013, the fourth court of the Federal Criminal Cassation Court defined article 14 in the Penal Code as constitutional. Juan Carlos Gemignani, Borinsky and Gustavo Hornos, agreed on that ruling.
But a year earlier, the members of the second court of the Criminal Cassation Court had considered that article 14 was not constitutional because it contradicted articles 18 and 19 of the Constitution. On that occassion, it was judges Angela Ledesma and Alejandro Slokar who agreed and judge Ana Figueroa who did not.