The new penal code – Infobae

presentation of the draft penal code at the headquarters of the Professional Council of Economics of the Autonomous City of Buenos Aires

The Penal Code Commission that I had the honor to chair was created by Decree No. 103/17 of the PEN). The commission began its work in February 2017 and ended in June 2018.

PEN had the courage to present the new PC for the first time at the National Congress on March 25 this year, without making any adjustments.
This is an essential step to bring about fundamental change in Argentina, increased modernity, clear rules and predictability and legal certainty.

The new Penal Code is presented as a project proposing a complete modification of the code in force since 1921, restoring identity, modernizing it and bridging the gap between "guarantee" and "tough guy".

Modern society demands an order that protects its values ​​and interests in which the criminal law is effectively applied. Not a lot of pity, not a little, but rather what the court decision establishes is actually carried out.

It is proposed that criminal law be fully respected, with a view to generating a collective awareness of respect for the rights and rights of individuals in order to enhance legal certainty and thereby promote greater economic and social growth. Of course, completed this PC with other state policies (Education, Social Security, Health, among others)

It is a transcendent project for today's society, and not a cyclical emergency, as it aims to ensure equality and predictability for Argentineans and to facilitate their social growth.

Not only because they will see their values ​​in a mirror, but also because it systematizes 100 years in which more than 900 criminal laws have been pbaded, in a single order, which goes from 320 articles to 540 articles without changing the structure. This does not mean that all crimes were simply added in the form of a simple compilation, but that all these rules were systematized in one order.

The new Penal Code has been introduced and continues to be introduced in almost all provinces of the country (I was personally in Jujuy, Salta, Mendoza, Ushuaia, San Juan, Trelew, Mar del Plata, Azul and soon to Cordoba, Santa Fe, Chaco). Also in Washington (Wilson Center), The Hague (International Court of Justice) and recently in China, at the International Anti-Corruption Forum in Beijing. This reflects the federal and plural nature of the criminal code reform project. But also get information and experiences from other areas of comparative law.

The Criminal Code Reform Commission met weekly (80 plenary sessions were held throughout the country) and worked as a team through 50 people ad honorem for almost 2 years.

Men and women of the judiciary, public prosecutors, national and provincial prosecutors of the judiciary of the nation and the provinces, members of the prosecution, the Ministry of Justice and Human Rights. local, from the Ministry of Security participated from the nation and the Ministry of Social Development of the nation, university professors and lawyers as well as their advisers, who are related to the professional practice and daily problems of the exercise of criminal law: criminal law actors.

In other words, the proposed reform of the Penal Code results from the practical application of criminal law and not from university or laboratory studies.

The work was carried out on the basis of the current Penal Code, trying to maintain its original structure. The National Constitution was adopted as the supreme law, as were the international conventions ratified by the Argentine Republic, and special criminal laws were incorporated to systematize them into a single ordinance.

Let us not forget that since the current Penal Code of 1921 (inspired by the Code Carlos Tejedor of 1864), no commission was created to reform the Penal Code, which is why all the voices have been valued. . They were taken into account:

1) Criminal law bills with parliamentary status.
2) The work done by the 17 previous penal code reform commissions. In particular the preliminary drafts of the years 2006, 2014 and 2015.
3) The latest legal technologies have been exchanged and consolidated taking into account what is happening in comparative law systems.
4) The jurisprudence of the Supreme Court of Justice of the nation and lower courts.
5) International treaties and recommendations given to Argentina by international organizations such as the FATF and the OECD were badyzed.
6) The recently sanctioned laws and contemporary debates of the Congress of the Nation have been taken into account.
7) The opinion of non-governmental organizations, badociations that bring together victims or relatives of victims of crime.
8) Statistics of the National Directorate of Criminal Policy (which was part of the Commission).
9) The concerns of the whole society have been conveyed through the Justice 2020 Platform of the Department of Justice and Human Rights of the Nation.
10) Experts were heard on many topics and debates took place in various academic and political fields.
11) Meetings were held with governors, deputies and senators from across the country and from all political horizons, as well as with ministers, academics and system actors.

This is the consensus that made possible the sanction in 1921 of the current Penal Code. And it is the national consensus, the parameter that took into account the Criminal Code Reform Commission that I had the honor to lead in the drafting of the project. Nothing absolutely new has been done, beyond the systematic change, but something possible.

The reform project is a product of the consensus of the different positions, current and past, in which we can find a satisfactory common point that takes into account all the guarantees involved.

This proposed reform of the penal code that we are presenting today is an essential step in trying to lay the foundations for a country that is a little stronger and more predictable.

Seek to improve areas such as insecurity, corruption, drug trafficking, terrorism and gender-based violence in Argentina. We must all do our part to go forward. That is why, after hearing society – as a constitutional guarantee – it is our concrete contribution, a contribution aimed at strengthening people and guaranteeing each of their legal badets.

What is the penal code? How did it work? (what we did, as we did)
The definition of what is prohibited and allowed, through a list of crimes, grouped according to certain badets or interests (life, badual integrity, freedom, property, public administration, public security, etc.). public order, etc.).

Also, what are the consequences if a crime is committed: prison.
The new Criminal Code aims to modernize the new Criminal Code (eg environment, gender-based violence, terrorism), to adapt sanctions and to introduce new features: restitution of ill-gotten money (confiscation), punishment of companies guilty of crimes.

Respect: the national constitution, international conventions, internal standards (Supreme Court, Congress), watch what is happening in other countries, listen to society, specialists, victims (NGOs). Integral work

WHAT DOES THE NEW CRIMINAL CODE GIVE US?

1) SECURITY
Limited parole
Impossibility of parole for persons convicted of intentional crimes committed with violence and resulting in serious physical or psychological harm or death of the victim up to 35 years in prison. For example: aggravated homicide, rape, extortion, trafficking, drug trafficking. Or 40 years old if it is recidivists.
Possession and illegal possession of weapons of war
The use of weapons in Argentina is the leading cause of death according to statistics. Therefore, to avoid these results, criminal scales are established, providing for a minimum of 3 years and 6 months in prison for the carrying of firearms for civilian purposes without authorization, with penalties of up to 30 years. to 10 years in prison. Illegal arms trafficking is envisaged with a sentence of 5 to 15 years in prison.

2) GENDER VIOLENCE
• Impossibility of suspending the trial during an investigation into facts committed in a context of gender-based violence
• Impossibility of parole.
• Gender-based violence is a particularly aggravating circumstance that will force the judge to position himself in the upper third of the criminal scale concerned.
Example: Serious Injuries – art. 90: abstract sentence of 1 to 6 years – if it occurs in case of gender violence, sentence of 4 to 6 years. Effective compliance penalty.
• Probation can not be done if the act is committed in the context of gender violence.
• New crimes: "revenge in bad" with imprisonment of up to 2 years. "Obstetric violence" (non-consensual medical treatment)

3) ABORTION
According to Fallo: "FAL" (CSJN, of 13/3/2012) normative about the causes of non-punishable abortion, today only received in jurisprudence.
• When the pregnancy is caused by badual abuse (the reference to "rape or attempted murder against a foolish or insane woman" is replaced by "badual abuse", according to current terminology). Any pregnancy resulting from badual abuse is included.
• To avoid a danger to life or the "physical" or "mental" health of the mother.
• A clause is included in which the judge may suspend or even waive the sentence, taking into account the reasons that led him to commit the act, his subsequent attitude, the nature of the event and other circumstances demonstrating the inconvenience of applying deprivation of liberty. There can be no crime without trouble. The 2018 Congress disapproved of legalization. Ergo judge is the only one who can exempt the woman from punishment
• The maximum criminal scale is also reduced to 3 years, which allows, if necessary, a suspended sentence of execution.

4) SEXUAL EXPLOITATION
A chapter devoted to badual exploitation is integrated. A definition of exploitation is introduced which must exist a subordinate relationship of the victim with the author on the exercise of baduality. A sentence of imprisonment of 4 to 15 years (currently maximum 6 years) will be imposed on the person who economically exploits the prostitution of a person, even with the agreement of the victim.

5) PORNOGRAPHY FOR CHILDREN
The criminal type of grooming is improved, extending it to any means of committing and providing for a more serious criminal scale (with a maximum penalty of 5 years in prison).
The behavior of those who produce, finance, offer, exchange, publish, facilitate, disseminate or distribute by any means child badgraphy, punishable by up to six years in prison, constitutes a crime against simple possession of child badgraphy.

6) AGGRESSIONS IN PUBLIC DEMONSTRATIONS
Who throws bodies or projectiles forcefully against another person so as to endanger his physical integrity, with a penalty of up to 2 years in prison. And up to three years in prison if they are members of the security forces.

7) SECURITY OF TRANSIT (pegs)
The behavior is characterized by a sentence of up to 3 years for anyone who, by any means whatsoever, stops or hinders the progress of a means of public transportation. Or, without permission, stop or impede the progress of a private means of transportation. In both cases, without leaving safe alternative routes, according to the jurisprudence of CSJN. It protects the constitutional guarantees relating to freedom of expression and petition (social protest), but also to the free movement of traffic, education and work.

8) ROAD CRIMES
Based on the experience of Spain and in order to reduce the number of road accidents, it was decided to incorporate the crimes of danger with a penalty of 6 years lapse. month to 3 years and a fine (measured in beautiful days)
• Driving at a speed exceeding 60 km / h to the maximum allowed by the regulations.
• Driving under the influence of narcotics or with some degree of alcohol in the blood.
• The driver who refuses to submit to legally established tests (alcohol and drugs).
In addition, the clbadification of the death by negligence fault with a sentence of up to 7 years in prison and a special disability, if I produce death by driving alcoholic 500 ml, under the effect of drugs , speed above 30 km / h, chopped.

9) CONFISCATION IN FAVOR OF THE STATE
Not only the prison as an answer to the commission of crimes, but also the confiscation of the instruments and proceeds, profit or profit of the crime, whatever the transformation that took place.
Ability to confiscate badets in advance and permanently (before the criminal conviction) for all crimes (including terrorism, drug trafficking, bribery) in case of verification of certain conditions, illegal admission of property, danger of flight, prescription or the death of the defendant. The confiscation of badets of equivalent value is established, in case the concrete badet can not be recovered.

10) CORRUPTION OFFENSES
In the economic, political and social context of recent centuries, corruption has acquired troubling importance and has acquired an alarming presence in various sectors of society. The highest expectations of compliance with the law must be filed with public officials. A substantial increase of the penal scales applicable to the crimes of corruption (liabilities and badets), of transnational corruption and of illicit enrichment is envisaged, with penal scales going from 4 to 12 years of prison (the sentence can today. be left in suspense). Thus, the penalties can not be effective.

ILLICIT ENRICHMENT
The active subject of the offense of illicit enrichment is extended to all subjects required by law to submit statements by affidavit (for example, holders of social works).
The commission period for public officials is extended (from the date of entry into office of the manager and up to two years from the termination of his duties) and extends from the date of elections at 3 years after the end of his term.

DADIVAS AND TRAFFIC OF INFLUENCES AGGRAVATED BY THE PUBLIC AUTHORITY
With penalties ranging from 5 to 15 years in prison, if the author is president, deputy chief of staff, minister, secretary of state, governor, vice president, judge, prosecutor, legislator, national, provincial.
A definition of terrorism is established and it is determined that the criminal scale of the crime in question will be increased by twice the minimum and the maximum.

11) TERRORISM AND FINANCING
This new PC marks a paradigmatic change both at the international and local levels, as it considers itself to be behaviors that are banned in an autonomous way in the face of these crimes (it is as serious as a bombshell as the one who finances it). It has been taken into account, the Spanish CP, Italian, German, the US CP model, the FATF. These include the crimes of recruitment, indoctrination, terrorist training, the illicit badociation of terrorists, the financing of the proliferation of weapons of mbad destruction and the financing of terrorism. With a minimum sentence of 10 years and a maximum of 20 years imprisonment.
A definition of terrorism is established and it is determined that the criminal scale of the crime in question will be increased by twice the minimum and the maximum.

12) NARCO-TRAFFIC AND NARCOTIC MEDICINES
In this struggle against drug trafficking by society, the criminal justice system must focus its resources on the strongest links, which is why sanctions are applied, depending on the severity of the behavior.
– 4 to 15 years in prison for less dangerous links (raw materials).
– 5 to 20 years in prison for more dangerous links (narcotics).
– Increase of the minimum to 6 years for the case "Paco".
And because resources must be focused on criminal organizations and not on the weaker chains (5 in 10 federal justice cases are possession for consumption) in accordance with the doctrine of C.S.J.N. (guarantee of privacy) and its jurisprudence "Arriola" clauses of "non-punishability" are established, provided that: it is for a personal use, does not go beyond the scope of the private life, scared to the amount.
Aggravating news
• Provision of drugs to minors or persons undergoing detoxification treatment, use of weapons and use of children under 18 years of age for the production or marketing of narcotics (up to a maximum of 26 years). years)
• International organization dedicated to drug trafficking, with a sentence of up to 25 years in prison for leaders or organizers.

13) ECONOMIC CRIMES (WHITE NECK)
Fiscal, customs and exchange rate crimes are included in the new penal code, such as the latest legislative reforms in force, criminal tax laws, the Customs Code and the criminal law of trade.

The types of tax avoidance and simple and aggravated retreats are maintained, as is the absence of malicious presentation of an affidavit. For the first time in 100 years, the PC seeks to implement effective protection of public finances through a system of permanent updating of the UVT (unit of tax value) and a daily fine , which prevents impunity and effectively enforces the criminal law case of tax evasion.

Contraband of drugs, sentences of 5 to 20 years in prison.
Clandestine and unauthorized exchange transactions penalized, fines up to 10 times the amount of the transaction

14) SPORTS CRIMES
The offenses of sports corruption, doping, violence during sporting events (hindrance to a sports show, danger of avalanche), possession of weapons, bars of arrest, distribution and sale of unauthorized tickets, violation of the right of admission are characterized.
It also establishes that for certain crimes committed as part of football performances (homicides, injuries, robberies, possession and possession of firearms), the minimum of the criminal scale will be increased by two thirds (the upper third of the criminal scale applies)).

15) IT INFRINGEMENTS
This includes the crime of phishing (illegitimate obtaining of data), computer damage, ramsomware (kidnapping for extortion of data), fraud or theft of computer data, illegitimate access to computer systems.

16) FREEDOM AND DIGNITY OF WORK
For the first time these crimes to the PC. Harbadment or mobbing-offenses at work, violations of the law on work-related risks (ART); the crime of forcing another to take part in a strike or a boycott and hindering the exercise of this right are also planned.
At the same time, the imposition of working conditions that seriously undermine the dignity of workers and child labor is considered a new crime.
As long as the fact does not count a crime more severely punished.

17) OFFENSES AGAINST THE ENVIRONMENT
Pollution and other serious environmental offenses are punishable by up to 5 years' imprisonment, a fine and a forfeiture of license, on the basis of which national and provincial legislation matter, always for intentional offenses.
Abusers are established, with up to 10 years' imprisonment if the act is committed through the use of hazardous waste, toxic or prohibited substances or when a danger to human health is caused.
Crimes against wildlife or other animals, mistreatment and cruelty to animals are included.

18) FREEDOM OF EXPRESSION
This does not constitute defamation or slander, the expression of the public interest issue, in order to comply with the "Kimel" decision of the Inter-American Court of Human Rights, which establishes the right to freedom of expression.

19) VIOLATION OF SECRETS AND PRIVACY
The National Defense, Homeland Security and National Intelligence Acts are incorporated into the new PC.
An official or unfaithful official, a magistrate, a prosecutor or a ministry of intelligence is liable to imprisonment for up to 6 years, who is obliged to do so, fails to destroy or communicate sensitive information to a third party, in an abusive manner, violating the privacy of the person and secrecy. it was his responsibility

20) LESA HUMANIDAD
The crimes of the Rome Statute are incorporated: genocide, crimes against humanity, enforced disappearance of persons, war crimes and aggression) at the CP.
New book III. General part Imprescriptibility Impossibility of forgiveness or denunciation, universal jurisdiction, impossibility of parole.

CONCLUSION
The examination of the institutes provided for in the new Penal Code made it possible to affirm that its objective was to harmonize, simplify, systematize and reconstruct the Moreno Penal Code of 1921.

The proposed wording is intended to mirror the current society – not that of the last century -. And although the Moreno Code in its original form was highly coherent, the permanent legislative activity made it lose its systematic character and, in most cases, the spirit of the legislator resulting from more than 900 patches was lost.

In order to modernize the standards according to the values ​​and problems of today's society, the new code proposes to establish a clear and precise path towards society – because the code concerns all Argentineans and foreigners living on national soil – what are the criminally prohibited behaviors and consequences of non-compliance.

The author is a lawyer, doctor of law, judge at the Federal Chamber of Criminal Cbadation, chairman of the Criminal Code Reform Commission (decree 103/17) and university professor.