Police can detain without cause in City
Human rights groups say decision by City’s highest court opens door to possible abuse
Police officers in Buenos Aires City can request that any citizen present an identification card without any specific reason or suspicion, the capital’s Supreme Court has ruled in a decision that was made public yesterday.
The ruling sparked heated controversy among human rights groups and progressive jurists who argued that the resolution gives a green light to security forces to carry out what would now be deemed lawful detentions with the sole purpose of checking someone’s criminal record. They also warned that it will enable security forces to harass the residents of impoverished neighbourhoods.
“The ruling represents a sharp step backward,” Paula Litvachky from the Centre for Legal and Social Studies (CELS) told the Herald.
“Courts are there to oversee police forces and not to sign blank cheques. These security policies are useless. They are only aimed at controlling the population and lead to the worst practices of police harassment,” the head of the CELS area of Justice and Security added. “In this context, it is a terrible message for the transfer of the Federal Police (PFA) to the Metropolitan Police.”
On December 23, the members of the BA City Supreme Court allowed police authority to request anyone to show his or her DNI identity card in order to prevent crime and without violating constitutional rights.
The City’s highest tribunal made the decision as it overturned a ruling by the City Appeals Court that declared null and void an investigation started against a man who was apprehended in Constitución railway station two years ago.
Lucas Abel Vera was intercepted by PFA officers at the train station on the afternoon of April 14, 2014. A police officer whose surname is Hoyos said that Vera was asked to show his DNI identity card and he started to get nervous and then told the agents that he had a gun.
According to the police officer, he called two witnesses and started examining Vera’s belongings and found a grey weapon.
The man was accused of violating the Misdemeanour Code’s Article 85, which establishes that anyone carrying a weapon on the streets or objects in order to generate violence can be issued a fine of 1,000 to 3,000 pesos and to be sent to serve between five to 15 days in prison.
According to the police, the railway concessionaire had requested the security force to reinforce its presence after thefts were reported and complaints increased about rampant drug consumption.
The second division of the BA City’s Criminal and Misdemeanour Court considered that the operation that led to the identification of the suspect was null and void as officers cannot prevent the free circulation — even for a very short period of time — and to demand somebody to identify him or herself without reason. City prosecutors brought the case before the City’s Supreme Court.
Justices Inés Weinberg, Luis Lozano, José Casás and Ana María Conde agreed with the prosecutors and overturned the resolution issued by the appellate tribunal.
Weinberg cited the Organic Law of the PFA — passed in 1958 — that establishes the force has to prevent crime. Even though requesting someone’s identification is not listed among the activities entrusted to the PFA, the judge pointed out that law enforcement officers are allowed to carry out other tasks in order to prevent social unrest or crime.
“Requesting the ID card of a person should be considered an implicit faculty,” Weinberg de Roca wrote in her vote. The magistrate was appointed to the City’s Supreme Court in 2013 by then-BA City Mayor Mauricio Macri.
According to Weinberg, in the case of Vera, he was only stopped for an identity check. “The detention was not linked to the identification request but to the fact that the suspect became nervous and said he had a firearm,” the magistrate said.
Lozano, for his part, agreed with his colleague, but said that the security forces should not be faced with several restrictions. For instance, the request cannot be part of a persecution and superiors should make sure that officers follow the laws. Whatever decision is made cannot contradict constitutional rights.
“It cannot discriminate. It cannot be based on suspicious criteria such as skin colour, clothes, age or gender. It cannot be invasive in an unjustified way. This can be measured by taking into consideration the oversight capability and the level of risk. For instance, more intense controls of passengers in a plane can be justified,” Lozano wrote.
Casás also issued a vote in line with his colleagues.
“The solution proposed by the Appeals Court is based on the wrong equation of an interception of a person on the street to request an identification to a seizure of his or her belongings,” Casás noted.
“The fact that law enforcement agents carry out operations to identify people randomly does not per se violate any constitutional principle,” Justice Conde wrote.
According to the magistrates, any time that a person is stopped on the street by a member of a security force, it cannot be equated to an arrest.
The national Constitution’s Article 18 establishes that no one can be arrested without a warrant.
A stark reminder
Human rights activists said yesterday that giving a green light to security forces to request that citizens show their ID cards immediately brought to mind the murder of teenager Walter Bulacio at the hands of PFA officers in 1991, an iconic case of police brutality.
Bulacio, 17, was a fan of Patricio Rey y sus Redonditos de Ricota, a popular rock band. On April 19, 1991, the band played at the Obras Sanitarias stadium in Buenos Aires City’s Núñez neighbourhood and Bulacio went there with a group of friends. His grandmother had given him money to buy a ticket but the concert was sold out. The children tried to sneak into the stadium but they were quickly arrested. Walter, along with 70 others, was taken to the police station even though the detainees were minors. A PFA inspector was furious and, according to witnesses, vented his anger against Bulacio by hitting him on the head. Walter then began feeling sick in his cell.
The police never called his parents to tell them that Bulacio had been arrested nor informed a judge. They were following the instructions outlined in a memo issued by the PFA in 1958, which established that policemen had 24 hours before informing magistrates that they had arrested someone.
After his release, Bulacio was taken to the Pirovano Hospital and then to the Fernández Hospital while his parents were trying to find him. A week after his arrest, Walter died at the Mitre Clinic.
The case launched a debate over police practices, which led to the approval of Law No.23,950 that establishes that police forces can only detain someone if there is sustained suspicion that he or she could commit a crime or doubts regarding the person’s identity.
The CELS also said that the magistrates from the BA City’s Supreme Court did not take into consideration the 2003 ruling issued by the Inter-American Court, that ordered the Argentine state to prevent another case like Bulacio’s from taking place.
Criminal law expert Roberto Carlés took to Twitter to criticize the decision made by the City’s Supreme Court.
“I regret that our country still debates the constitutionality of detention to look into somebody’s criminal record or to be identified,” the jurist nominated to the Supreme Court by former president Cristina Fernández de Kirchner wrote.
Workers’ Leftist Front (FIT) lawmaker Myriam Bregman also condemned the decision made by the City’s highest tribunal.
“This power has a sad record in Argentina. It has always been used as a method to persecute the youth and vulnerable sectors,” said Bregman, a human rights lawyer.