Preventive detention in the new Argentine Criminal Procedure Code

Introduction:

This reform is not minor, in fact it involves multiple profound changes. Among them we find the transfer of the direction of the investigation to the hands of the Public Prosecutor's Office, the power of the latter to totally or partially dispense with the exercise of criminal action based on certain criteria of opportunity, such as that of an insignificant fact, the establishment of a maximum term of duration of the processes or a more specific treatment regarding procedural coercive measures.

It is the treatment given to procedural coercive measures, more precisely preventive detention, which motivates the present analysis.

I understand that the hasty treatment of this project has prevented the necessary debate in order to perfect the project that is now law, losing the possibility of enriching and modernizing the Criminal Procedure Code of the Nation (CPPN), and of complying with the standards in terms of Human Rights established by the international community, which are mandatory, by virtue of the commitments assumed by our country.

Development:

We know that preventive detention arises from the combination of articles 18 and 14 of the CN. The first establishes No inhabitant of the Nation may be punished without a prior trial based on a law prior to the fact of the process, axiom that establishes the principle of presumption of innocence. On the other hand, the same article further establishes  No one may be arrested except by virtue of a written order from a competent authority, which enables certain forms of coercion but always limited by the principle of presumption of innocence. Finally, art. 14 of the CN establishes the right to general freedom of movement, All inhabitants of the Nation enjoy the following rights in accordance with the laws that regulate their exercise; namely: to enter, remain, transit and leave Argentine territory..-

Coercion is the means organized by law for the State to intervene in the sphere of personal freedom[1]. In the case of procedural coercion, e.g. preventive detention, it is the application of public force whose purpose is to safeguard the procedure. In this sense, a procedural coercive measure in criminal law will find its basis in a risk of flight by the person under investigation or of hindering the development of the procedure. These procedural coercive measures differ from coercive measures in material law, in that the latter represent the sanction or reaction of the Law in the face of an unlawful action or omission[2], an example of which are prison sentences.

As stated in previous works, (Preventive detention and the presumption of innocence in Argentina), The main characteristic feature of pretrial detention is its exceptionality, since the CN establishes the right to general freedom of movement of persons, while establishing that no one may be punished without a prior trial that establishes, with certainty, the guilt of the accused in the act of which he is charged. This exceptionality is established in the International Covenant on Civil and Political Rights (ICCyP), 9.3, in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, 36, 2 and 39, the United Nations Minimum Rules on Non-custodial Measures (Tokyo Rules), 6.1 and the doctrine of both the Inter-American Court of Human Rights (IACHR) and the Inter-American Commission on Human Rights (IACHR), among other Human Rights bodies. These instruments have a higher hierarchy than the laws and some, such as the ICCPR, have constitutional hierarchy, by virtue of art. 75, paragraph 22 of the CN In this context, preventive detention is applied when the concrete danger, if it exists and is proven, that is, the danger that the accused may evade the responsibilities of the process or hinder its development, cannot be neutralized by less onerous coercive measures. And I say that the danger must be proven; one cannot start from a presumption of procedural risk or even admit that the contrary can be proven, even when the expected sentence is high.

Respect for the provisions of Human Rights instruments and for the doctrine of both the IACHR and the IACHR has been reflected in the jurisprudence of our Supreme Court of Justice of the Nation (SCJN), where in the opinion of Mr. Attorney for the Merlini case on procedural fraud[3], reference was made to the case "Palamara Iribarne vs Chile[4]«. In this ruling, the IACHR indicated "In order for the presumption of innocence to be respected when restrictive measures of freedom are ordered, it is necessary for the State substantiate and prove the existence, in the specific case, of those referred to requirements demanded by the Convention[5] [American Human Rights]» (emphasis mine).- These requirements, raised by the IACHR in the case «Chaparro Alvarez and Lapo Iñiguez vs. Ecuador[6]» consist of that the purpose of the measures that deprive or restrict freedom is compatible with the Convention. It is worth noting that this Court has recognized as legitimate purposes of ensuring that the accused will not impede the development of the procedure or evade the action of justice; ii) that the measures adopted are suitable for achieving the intended purpose; iii) that they are necessary, in the sense that they are absolutely indispensable for achieving the desired purpose and that there is no measure that is less burdensome in relation to the right affected among all those that are equally suitable for achieving the proposed objective. For this reason, the Court has pointed out that the right to personal freedom implies that any limitation to it must be exceptional, and iv) that they are measures that are strictly proportional, such that the sacrifice inherent in the restriction of the right to freedom is not exaggerated or disproportionate compared to the advantages obtained through such restriction and the fulfilment of the intended purpose.[7]«.  Any restriction on freedom that does not contain sufficient motivation to allow an assessment of whether it complies with the conditions indicated will be arbitrary and, therefore, will violate Article 7.3 of the Convention.[8]«.- (emphasis mine).-

The same thing happened in the Loyo Fraire case s/ psa repeated fraud[9], where the Court adopted the arguments put forward by Mr. Prosecutor in his opinion, which, in turn, referred to the opinion issued in the Merlini case[10]. Although a notable difference between the two cases was highlighted, since in the Loyo Fraire case the defendant had been convicted. In relation to this circumstance, the Attorney General understood that although the conviction may have an unfavorable impact when analyzing a possible risk of flight, the ordered imprisonment is still precautionary, therefore, the conviction that is not yet final cannot operate as a presumption of procedural risk, it being essential that the motivation conforms to the requirements set forth by the IACHR.

 From the doctrine established by the IACHR, other characteristic features of preventive detention are also derived and explained:

– The precautionary coercive measure adopted must be suitable for the purpose pursued;

– Necessary and Indispensable, such that there are no other less aggressive ways to neutralize the existing procedural risk;

– Reasonable and proportional, both in relation to the quality of the measure adopted, that is, preventive detention would not be appropriate in cases where the sentence was not imprisonment and in relation to the amount of time it should last, which covers another very important point: the time limit that it should have as maximum preventive detention.-

That said, and going into the analysis of the new CPPN, its articles 16 and 17 establish that the powers to restrict or limit the enjoyment of the rights recognized by the CN or by the Human Rights instruments must be exercised in accordance with the principles of suitability, reasonableness, proportionality and necessityIt is also established that restrictive measures on freedom may only be be based on the real existence of a risk of flight or obstruction of the investigationThe same applies to art. 176, which provides that The authorized coercive measures will be in accordance with the provisions of articles 15, 16 and 17, just as it clarifies that its character is exceptional.-

So far we have a treatment consistent with what is regulated by the constitutional block on the subject of preventive imprisonment. The problem, or problems, arise as the new CPPN progresses through its subsequent articles.

Article 185 states that  the seriousness of the circumstances and nature of the act and the conditions of the accused  They are used to decide the criteria of risk of flight or obstruction of justice, as conditions for issuing preventive detention.

Furthermore, and with respect to these procedural risks, the new CPPN details, in a non-exhaustive manner, what must be taken into account when proving them. In this regard, article 188 mentions:

a. roots, determined by the domicile, habitual residence, seat of the family and their business or work, and the facilities for leaving the country or remaining hidden and other issues that influence the roots of the accused;

b. the circumstances and nature of the act, the penalty expected as a result of the procedure, the verification of previous arrests, and the possibility of declaring a repeat offence for intentional crimes; (underlining is mine)

c. the conduct of the accused during the proceedings in question, any previous proceedings or any proceedings currently in progress, to the extent that it indicates his willingness to submit to criminal prosecution and, in particular, whether he was in rebellion or whether he concealed or provided false information about his identity or address.

Since the same new CPPN refers to the CN and to the Human Rights treaties, which expressly emphasize the principle of presumption of innocence, the right to general freedom of movement and the procedural nature of preventive detention and other coercive measures, it is not understood how it incurs in such an evident contradiction by maintaining as a prerequisite for dictating preventive detention, the circumstances and nature of the act or the expected sentence, when they have nothing to do with procedural issues; the same happens with the verification of previous arrestsIt should be remembered that our law is one that is based on the criminal law of the act. It is investigated and judged by a new act committed, and not by what the person is or the character that he/she has. At least this should be so. Otherwise we are faced with a criminal law of author. In any case, if the accused has had previous arrests, such as at his/her home, and which he/she has complied with, then we have a presupposition that must operate in his/her favor and never against him/her. We must remember that The principle of innocence applies equally in all cases and for all people.. Therefore, the principle cannot be ignored for certain types of cases or criminal offenses, even when they involve emergency situations, such as "terrorism" or extremely serious crimes. In this regard, the IACHR has criticized the exception contemplated in the Argentine law on the temporary limitation of preventive imprisonment in relation to drug trafficking offenses, as a mechanism that undermines the presumption of innocence and imposes an anticipated punishment (cf. IACHR, Report No. 2/97, Cases 11.205 et al., Argentina, para. 51). (underlining is mine)[11].-

Article 189 refers to the clues that must be taken into account when analyzing the risk of obstruction of the investigation. And he mentions the serious suspicion that the accused:

a. destroy, modify, conceal, suppress or falsify evidence;

b. influence witnesses or experts to give false information or behave in a disloyal or reticent manner or;

c. will induce others to perform such behaviors.

The suspicion must be well-founded, one cannot only invoke these causes or the fear that this may happen, for example, due to the seriousness of the fact being investigated or the expected sentence, since then this article would be distorted.

It is not unusual, unfortunately, to see prosecutors request judges to order preventive detention based on the seriousness of the crime under investigation or the expected sentence. The truth is that if the ordering of such a measure responds to these guidelines, then it becomes the early application of a sentence, which may never exist, and what is worse, on a person who is technically innocent. And it is a contradiction that the Public Prosecutor's Office, who has the duty to promote justice, acts by beating it up. We must not forget that preventive detention It violates the fundamental rights of the accused in the most cruel and brutal way.[12], hence the need to limit this coercive power of the State. In this sense, Lon the sole suspicion that the accused, due to the amount of punishment expected in the event of a conviction, [firm]will try to evade the action of the administration of criminal justice, cannot justify any preventive imprisonment. The State, in order to apply a constitutionally authorized preventive imprisonment, must prove its assumptions[13]. It is that the principle of innocence It does not state that the accused is, in fact, innocent, but rather that he cannot be considered guilty until the decision that ends the procedure, condemning him.[14].-

The most curious thing is that article 3 of the new CPPN establishes No one can be considered or treated as guilty until a final sentence is issued., dictated on the basis of legitimately obtained evidence, undermines the legal status of innocence enjoyed by every person. The accused must not be presented as guilty. Court records, files and communications may not contain stigmatizing inscriptions or those that distort the legal status of innocence., (emphasis mine).-

Another issue that does not go unnoticed is the one raised in article 177, which details coercive measures alternative to preventive detention and among them, house arrest is mentioned (paragraph j). House arrest implies the deprivation of liberty; it is a form of preventive detention and no less harmful to art. 14 of the CN.

Article 182 enables the representative of the Public Prosecutor's Office to ask the judge to detain the accused if there is sufficient evidence to reasonably support the need for preventive detention, and it is necessary to prepare and justify the request for the imposition of this measure at the hearing . Once again, the CPPN deviates from what it itself and the constitutional block have established. Detention during the process is of a procedural nature and therefore cannot be based on evidence to maintain that preventive detention would be appropriate. It must respect the criteria issued by the CN, the Human Rights treaties and the doctrine of both the IACHR and the IACHR. Regardless of its duration, detention is still a type of imprisonment that restricts the right enshrined in art. 14 of the CN.

Article 187 establishes that when requesting the imposition of one or more of the coercive measures listed in Article 177, the representative of the Public Prosecutor's Office or the complainant must: prove that there are sufficient elements of conviction to support the probability of the existence of the fact and the participation of the accused in it. The truth is that the act by which the accreditation of sufficient elements of conviction is produced to support the positive probability of the participation of the accused in the investigated fact, is that of the processing, the jurisdictional act par excellence. Art. 9 of this new CPPN clearly establishes the differentiation of functions between the representatives of the Public Prosecutor's Office and the judges, Representatives of the Public Prosecutor's Office cannot carry out acts that are strictly jurisdictional and judges cannot carry out acts of investigation or that involve the promotion of criminal prosecution.. Once again, this CPPN incurs in an evident contradiction, which violates due process, a constitutional right protected by article 18. And I wonder, is then a necessary condition for the issuance of preventive detention, the indictment of the accused?

Article 193 establishes that, if the conditions on which the issuance of a coercive measure was based have disappeared, the judge may order: revocation or replacement of such imposed measure. It is necessary to clarify that, once the aforementioned conditions have disappeared, the coercive measure must be revoked, by operation of law, and never replaced, since, in this case, it would lack foundations, becoming arbitrary.

In relation to the concept of arbitrariness and the measures that order a deprivation of liberty, the IACHR held in the judgment "Chaparro Alvarez and Lapo Iñiguez vs. Ecuador[15]"Que"The concept of 'arbitrariness' should not be equated with 'contrary to law', but should be interpreted more broadly to include elements of incorrectness, injustice and unpredictability, as well as the principle of 'due process'. This means that pretrial detention following lawful arrest must be not only lawful but also reasonable in all circumstances.[16]«.-

Last but not least is the question of the time limit for pretrial detention.

Article 191 establishes that pretrial detention shall cease:

a. if the accused has served in preventive detention the sentence requested by the representative of the Public Prosecutor's Office;

b. if the accused has spent in preventive detention a period equal to the sentence imposed by the non-final judgment;

c. if the accused had remained in preventive detention for a period of time which, had there been a conviction, would have allowed him to apply for conditional release or assisted release.

Unfortunately, with the promulgation of this new CPPN, Argentina lost the possibility of regulating the duration of pretrial detention as it did with the duration of proceedings.

In this regard, the country has a law, no. 25.430[17], which establishes in its article 1° Preventive detention may not exceed two years, without a sentence having been handed down. However, when the number of crimes attributed to the accused or the evident complexity of the case have prevented the issuance of the sentence within the indicated period, this may be extended for one more year, by a reasoned resolution, which must be immediately communicated to the corresponding higher court, for its due control.  and in its article 2° The time periods provided for in the preceding article shall not be computed for the purposes of this law when they are met after a conviction has been handed down, even if the judgment is not final. Therefore, this period is calculated from the moment of arrest until the verdict of the trial, excluding the subsequent appeal stage, which can take years.

The problem is that this law ignores the jurisprudence of the IACHR that established in Suarez Rosero[18], that the term of preventive detention must be calculated from the arrest until the final sentence becomes final, and expressly highlights that, in criminal matters, all appeals must be included. Once this term has expired, the release is carried out due to the cessation of preventive detention. It is therefore fair to say that an excellent opportunity was lost to incorporate into the new CPPN the maximum term of duration of preventive detention, which includes the appeal stage, updating a law that is contrary to the mandatory jurisprudence of the IACHR.

Conclusion:

As has been observed in this small work, and at least in relation to preventive imprisonment, the new CPPN incurs in contradictions, in contradictions, attacks the rights and guarantees of people, supports the restriction of the enjoyment of constitutional rights without valid grounds, and remains silent on issues that should have been addressed; all of this under the cloak of a discourse that, ironically, seems to protect and defend what is regulated in the constitutional block.

And this criticism does not mean that the now old Code of Criminal Procedure has not needed changes, since many errors or lack of pronouncements present in this new CPPN are carried over from the previous one. The regrettable thing is that a magnificent opportunity to have a modern, effective, truly accusatory and, above all, respectful Code of Criminal Procedure has been lost.

Insecurity, a claim reiterated and justified by society, is not addressed through preventive detention; comprehensive plans are needed that involve policies on education, childhood and adolescence, health, and integration. Statistics[19] They show that 59,7% of the people subjected to confinement in Federal Penitentiary Service prisons are in preventive detention, and what is even more difficult is that of the total population in these prisons of young people between 18 and 21 years old, 84,1% are serving preventive detention. It is clear that an open door to the issuance of preventive detention as this new CPPN does would only worsen the situation as reflected in statistics.

Now we have to wait to see the consequences of the implementation of this new CPPN and, most importantly, the pronouncement of our courts, especially the Supreme Court of Justice, regarding the constitutionality of many of its norms.

Dr. Catalina de la Torre - lawyer specializing in criminal law –

Literature:

• Bovino, A., Preventive detention in human rights treaties, in Abregú, Martín, and Courtis, Christian (comps.), The application of international human rights treaties by local courts, Ed. Del Puerto/CELS, Buenos Aires, 1997.-
• SCJN ruling, Loyo Fraire s/ psa repeated fraud, March 06, 2014.-
• CSJN ruling, Merlini s/procedural fraud, August 12, 2013.-
• IACHR ruling, Chaparro Alvarez and Lapo Iñiguez vs. Ecuador, year 2007.-
• Ruling of the Inter-American Court of Human Rights, Palamara Iribarne vs Chile, 2005.-
• Ruling of the Inter-American Court of Human Rights, Suarez Rosero vs. Ecuador, 1997.
• Maier, J., Criminal Procedural Law, T. I, Puerto Editors, Bs. As., 2004.-
• Pastor, DR, The new Criminal Procedure Code, Chapter I Preventive imprisonment, Critical analysis, Editores del Puerto, Bs. As., 1993.-
• Sergi, Natalia, Time limits on preventive detention, in NDP's separate "New Penal Doctrine“ Ed. Del Puerto, Buenos Aires, 2001.-