A double jurisprudential example in Argentina

by Mónica Cuñarro*

Last August 25, in a doubly exemplary sentence, the Higher Justice Court of the Argentina pronounced on the “Arriola” trial as regards the offense of narcotics possession for personal consumption, by declaring its unconstitutionality.

At a first glance, the decision dictated by the Higher Court would seem to point that, far from resulting in an innovative juridical piece, it proposes no more than a resumption of concepts and foundations of the “Bazterrica” precedent, decided in 1986¹ , when the International Treaties on Human Rights were not a part yet of the constitutional block. However, both pronunciations have occurred in the course of extremely different geopolitical realities, due to which, on the day of today, we celebrate such jurisprudential resumption as a true advancement.

In 1986, the return to democracy after more than 7 years of a bloody dictatorship forged in the Argentinean society the need to respect personal guarantees, particularly, of the constitutional right to personal autonomy. However, at the end of that same decade, the United Nations Organization² “urged” the States to adequate their local legislations to assimilate them to the existing practice in the United States of America, leading as a direct consequence to legislative modification, at least, in the entire region comprising Central and Southern America³, with the introduction of clearly repressive rules that violate their own constitutional principles: the sanction of law 20.771 (and later on of law 23.737) in Argentina is framed within a global process of repression and “fight against drugs”, in the scope of a punitive expansion and of policies supposedly set to provide safety, characterized by the use of force and zero tolerance.

In that context, we must revaluate the abovementioned sentence, which clearly imposes a barrier to the state’s punitive power (a function that concerns judges, especially those who act in the penal jurisdiction) and breaks away with the abovementioned punitive logic.

Therefore, to deal now with the decision in question, why do I mention its double function?

First of all, the sentence opposes the impugned legislation with all and every one of the principles consecrated in the National Constitution and in the International Treaties on Human Rights, to unfailingly conclude on its unconstitutionality. Thus, the Court has made its decision based on the principle of personal autonomy (cons. 10th and 36th), and on the principle of dignity of man (cons. 18th), by placing special emphasis on the “institutional scaffolding imposed by the Constituent Assembly of 1994”, which “went to incorporate the international treaties on human rights as an order on the same level as the very National Constitution” (cons. 16th); and on the pro homine principle, according to which “it shall always be preferable to opt for the interpretation that is less restrictive to such rights” (cons. 23rd).

In that sense, the herein commented sentence is a clear example of an exegetic analysis of the legislation, by opposing the applicable rules to the rights consecrated in the apex of the Argentinean legal order, and by evidencing both their lack of juridical foundation and their blatant violation of the highest constitutional principles of law.

On the other side, the Court’s pronunciation has set an unmistakable and ineludible course to the criminal policy as regards drugs⁴. In that sense, the Higher Court made allusion to all state entities upon recalling “the ineludible commitment that all institutions must assume towards fighting drug trafficking” (cons. 28th) to finally, in its resolution, “exhort all public powers to ensure the adoption of a State criminal policy against drug trafficking and to adopt preventive health measures (…) focused on all of the most vulnerable groups” (cons. 36th)⁵.

The criminal policy as regards drugs, with the exception of some exceptional cases, has historically been repressive, being characterized by the excess of the penalties forecasted therein. But its characteristic note has been to deepen the selectivity of the punitive power, which has persecuted narcotics consumers and small drug dealers, and historically postponing the more complex investigations on the dealings of the so-called “criminal organizations”.

The herein commented sentence has come to settle a debt: firstly, it decriminalizes narcotics possession for personal consumption, by considering any punishment a violation of the abovementioned principles; consequently, it deals with the problem of drug addicts through health policies, which represents a paradigmatic change on the issue. And on the other side, it exhorts all State entities and institutions to direct their resources towards prosecuting and repressing the offenses involving the traffic of illicit narcotics, psychotropic substances and chemical agents, by allocating the scarce resources of police and judicial administration towards the persecution of those offenses that cause greater social damages, which represents a counter-selectivity of the punitive power, in conformity with the new regional trends, which strive to articulate a joint trafficking repression policy.

That is why, in this instance, when a study on the integral reform of the Narcotics Law (Law Nº 23.737) is under way by the National Government, and in the scope of a regional conjuncture than tends to decriminalize narcotics possession for personal consumption, the herein analyzed sentence becomes a cornerstone of the repressive paradigm on this issue, as well as a necessary and deep change in the criminal policy.

Finally, it is not pointless to recall that all countries in the region have subscribed to the human rights instruments that contain principles such as “pro homine”, “harmfulness”, “ proportionality “, “legality“, “humanity”, which on the other side are a part of all constitutions in the region whether these are established as a system of amendments or according to the European continental system, due to which there would not be any hindrance that sentences like this, similarly to the one established by the Columbian court, may become models to be followed in the region in order to make human rights applicable and effective to all citizens in view of the punitive procedures applied by the many different States.-

* Mónica Cuñarro is the coordinator of the Scientific Advisory Committee as regards trafficking control of illicit narcotics, psychotropic substances and complex criminality related to drug users and the policies to deal with them. Besides, she is a teacher at the University of Buenos Aires and an international lecturer. She has specialized in the normative revision and study of the penal area in Latin America, in order to suggest reforms that may or allow harmonizing the legislations as regards drugs.

  ¹In fact, the vote of Dr. Petracchi may only be remitted to the then motivated vote.
  ²Here we make a special allusion to the United Nations’ Single Convention on Narcotic Drugs (1961), amended by its Modification Protocol (1972); to the United Nations’ Multilateral Agreements on Narcotics and Psychotropic Substances (1971); to the United Nations’ Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) and to the United Nations’ Convention Against the Transnational Organized Crime (2000).
  ³Therefore, we may mention the following normative reforms: Peru in 1982 (last reform in 2007), Venezuela in 1984 (reformed in 2005), Chile in 1985 (reformed in 2005), Colombia in l986, Dominican Republic in 1988, Paraguay in 1988 (reformed in 2002), Bolivia in 1988 (no reforms), Argentina l989 (reformed for the last time in 2005), Costa Rica in l989, Brazil in 1976 (reformed in 2006), Uruguay in 1974 (reformed in 1998), and Ecuador in 1990 (reformed in 2004). We should observe that the great exception to this emergency legislation has been the Oriental Republic of Uruguay.
  ⁴En its vote, Dr. Zaffaroni recalled that it is not a function of the Judicial Power to control the criminal policy, adding that it should be so when such policy violates the republican rationality.
  ⁵En that sense, Dr. Fayt, who in previous opportunities had pronounced on behalf of the penalization of the possession of narcotics for personal consumption, considered in his vote as “unquestionably inhumane to criminalizar consumption” (cons. 20th), in relation to the approach to drug consumers.