The Supreme Court of Justice of the Nation signed a ruling this Thursday declaring the unconstitutionality of life imprisonment in Argentina because it excludes the possibility of granting conditional freedom to an accused when certain crimes are committed. It was by rejecting an appeal by the prosecution against that particular case in which the defense alleged the affectation of the right to hope of a condemned man. The decision was signed by the judges Carlos Rosenkrantz, Juan Carlos Maqueda and Horacio Rosattiwhile Ricardo Lorenzetti did not subscribe
“It is not noted that in the extraordinary federal appeal the appellant has refuted the statements of the National Chamber of Cassation in Criminal and Correctional Matters regarding the right of a person to know, from the moment of the imposition of the custodial sentence effectively perpetual, what is the definitively applicable regime of the sentence imposed,” it was stated.
This is the case in which the criminal Sebastián Alejandro Guerra shot and murdered María Luján Campilongo, 34 years old, who was a corporal in the Federal Police; also injuring her boyfriend, Diego Hernán Ghiglione, 28, who survived the shots received.
In general terms, the ruling of the CSJN implies declaring the unconstitutionality of art. 14, inc. 1 of the Penal Code, insofar as it establishes that those convicted of any of the crimes provided for in art. 80 of the Penal Code cannot access conditional release. The main consequence is that the sentence of “life imprisonment” is no longer “truly life-long” in their respect, given that they can eventually access conditional freedom, regardless of the crime committed.
The police couple was on vacation, but they went to work dressed in civilian clothes. She was driving and when they were about to reach the section, two cars surrounded her with at least six criminals who fired 30 shots and killed her by hitting her in the head. On November 19, 2014, Guerra was sentenced by the Oral Court of Minors No. 2 of CABA to life imprisonment, legal accessories and costs for being considered a criminally responsible co-author of the crimes of robbery with a firearm repeated in four opportunities (two attempted) and homicide also repeated on two occasions (one of them attempted).
The event occurred on November 19, 2012. Twelve years later, the ruling endorses a position that would allow the release of the convicted person regardless of the impact on the victims. The sentence is based on “the right to hope”, that is, that the person sentenced to life imprisonment has the right to be allowed rehabilitation and therefore his freedom.
Strictly speaking, the Supreme Court of Justice of the Nation declared that an extraordinary appeal was incorrectly granted in a case in which the prosecution had questioned the moment in which the validity of the sentence of death can be examined. really life imprisonmentwhich excludes any possibility of the convicted person regaining freedom at some point in his life. In the case, the National Court of Cassation in Criminal and Correctional Matters of the Federal Capital had declared the unconstitutionality of the rule that excludes the possibility of granting conditional freedom when certain crimes are committed. The case reached the Court upon appeal by the prosecutor, who alleged that it was not the procedural moment to analyze the legality of these regulations.
The Court considered that the extraordinary federal appeal was poorly granted, since the prosecution “did not refute the arguments of the chamber’s ruling,” and clarified that in the case “the constitutional validity of the life imprisonment sentence is not in dispute.” What the appellant alleges, he explained, is the lack of a specific and current grievance for the convicted person, which justifies the declaration of unconstitutionality.
Guerra’s defense requested the unconstitutionality of the truly life-long prison sentence, due to the impossibility of accessing parole and assisted release, among other benefits, but the court rejected the proposal. He understood that Guerra was not yet qualified to request conditional release, having not served the minimum sentence required for the evaluation of his granting. “Only effective and concrete damage can enable the competence to deal with an issue such as the one raised,” he said.
Against that decision, the defense filed an appeal. There he maintained the unconstitutionality of the truly perpetual prison sentence and, in particular, of its application to the case, since the legal regime in force at the date of the incident did not admit early discharge. He pointed out that such a sanction violated the resocializing mandate of the custodial sentence, the requirement of proportionality and strict legality, and the prohibition of the imposition of cruel or inhuman punishment.
Chamber I of the National Chamber of Cassation in Criminal and Correctional Matters of the Federal Capital, by majority, declared the unconstitutionality of article 14 of the Penal Code and, consequently, its inapplicability with respect to the sentence imposed on Guerra. He affirmed that it was unequivocal that article 14 of the CP, applied to sentences of imprisonment for life, pursued the social exclusion of the convicted person definitively and, therefore, was irreconcilable with various international human rights treaties.
Against that decision, it was the Attorney General’s Office that presented an extraordinary federal appeal. He understood that the sentence was arbitrary, that the appropriate moment to discuss the constitutionality of the norm in question would be that in which the convicted person was in a position to access, for example, conditional freedom, and that the questioned resolution had declared the inapplicability of a rule that was not (yet) applicable to the specific case.
Chamber I of the National Court of Cassation in Criminal and Correctional Matters granted the appeal and referred the case to the Court. The Supreme Court, with the signature of Horacio Rosatti, Carlos Rosenkrantz and Juan Carlos Maqueda, declared the extraordinary appeal improperly granted. “In the case, the constitutional validity of the sentence of life imprisonment is not in dispute,” it was stressed, but “what the appellant alleges is the lack of a specific and current grievance for the convicted person that justifies the declaration of unconstitutionality of article 14. of the CP, since he has not complied with the minimum time necessary to request access to conditional release.”
The Highest Court considered that the Prosecutor’s Office did not refute the arguments of the Chamber’s ruling in terms that satisfy the requirement of autonomous foundation (article 15 of law 48), which means that the document must refute each and every one of the foundations in the supported by the appealed court, in a concrete and reasoned manner. In this sense, it indicated that “without making a minimum effort to respond to the numerous grounds that supported the cassation resolution, the appellant limits itself to maintaining the nonexistence of a specific and current grievance to examine the constitutionality of article 14 of the CP from that the convicted person has not complied with the minimum time necessary to request the granting of conditional release.”
In this regard, the Court recalled that, for a rule to respect the principle of legality in criminal matters, it is necessary that, in addition to describing the reprehensible conduct, it establishes the nature and limits of the penalty in such a way that, at the time of committing the infraction , its possible author is in a position to represent in concrete terms the sanction with which he is threatened.
The appeal, the Court concluded, does not refute the Chamber’s conclusions. There it was stated that the principle of legality in criminal matters, which contains the mandate of certainty, combined with the resocializing mandate of custodial sentences and the prohibition of imposing cruel, inhuman and degrading punishments, “requires that the law define, explicitly and in advance, the criminal conduct, the temporal extension of the applicable sentence and, as a necessary derivation in the case of perpetual custodial sentences, the conditions that the convicted person must meet for their social reintegration, which means establishing the period for reviewing compliance with said sentence and its requirements, so that the convicted person can know what he must do, in terms of compliance with prison treatment, to regain his freedom.
