R. Durrieu “Luces y sombras en la reforma penal proyectada”, La Ley (Thomson Reuters), Agosto 2014.

I don’t believe in labels such as ‘guaranteeism,’ ‘hardline approach,’ ‘soft approach,’ and other advertising slogans to debate such a sensitive topic as the ongoing penal reform. The recently presented Preliminary Draft of the Penal Code to the Executive Power has its pros and cons. Some of the positive elements observed are: the implementation of alternative penalties to imprisonment -weekend arrest, fines, house arrest, etc.- for minor offenses; the criminal liability of legal entities for a wide range of crimes; the elimination of the anti-terrorism offense; and, of course, the reorganization of scattered penal norms from hundreds of special laws into a single text. In conclusion, the work of the “Drafting Commission” is highly valued, as they undertook the challenging task of harmonizing the existing Penal Code, which dates back to 1921 and has undergone over 900 partial modifications that have affected its coherence and organization.

However, like any initiative of such magnitude, there are also proposals that have generated controversy and are rejected by large sectors of the population. One of the most provocative proposals seems to be the elimination of recidivism as an aggravating factor for determining the sentence. Supporters of this idea argue that it is not fair to condemn a repeat offender by considering their previous crimes that have already been judged, in order to uphold the principle that “no one can be convicted twice for the same offense” (non bis in idem, in Latin). However, there is another perspective, supported by the Supreme Court in the rulings “Gomez Davalos” (1986) and “R. Gelabert” (1988), which upholds the constitutionality of recidivism by considering it a valid instrument for determining the applicable sentence. Indeed, it is reasonable to be stricter with someone who repeatedly violates the law after having been previously convicted.

The proposal to reduce the minimum sentencing scales for serious offenses such as armed robbery, trafficking of minors, or drug supply and trafficking has also sparked debate. This diminutive position is subject to criticism from the perspective of international criminal law as it goes against the United Nations Convention against Transnational Organized Crime of 2000, which urges countries to be uncompromising in tackling the advancement of organized crime.

But that’s not all. There are two other proposals in the Preliminary Draft that contradict the obligations assumed by our country within the international community: firstly, the complete elimination of the offense of “financing terrorism,” which the OAS Convention against Terrorism of 2005 obliges us to criminalize; and secondly, the reformulation of the money laundering offense, returning to an aggravated version of the simple offense of concealment, which is in clear contradiction with the legislative model suggested by comparative law in the region. Brazil, Uruguay, Chile, and even Argentina since 2011 have been adopting an autonomous offense of money laundering that has the protection of each nation’s socio-economic system as an independent legal interest.

The initiative to outright eliminate the concept of “reckless intent” from our Penal Code is also a matter of debate. I do not intend to open a technical debate on the matter in this brief space; I will simply say that the proposed option is extreme and isolated, as I could not identify any other country in the world that has entirely eliminated this classification of intent in one fell swoop. The explanatory statement of the Preliminary Draft also does not mention any other country that has taken a similar initiative in favor of such a proposal. And here lies my final criticism: the Preliminary Draft does not sufficiently draw upon comparative law when proposing critical issues such as the elimination of reckless intent or recidivism. In the words of French scholar Delmas-Marty, “comparative law is a fundamental methodological tool when making proposals for modifications in criminal matters. It enriches the debate and objectifies legal discussions.”

We need the approval of a new Penal Code. We need to debate the modifications to the new Penal Code in a calm, dispassionate tone, with criticisms based on technical and sincere opinions. In conclusion, we need to continue striving for the construction of a new penal framework that allows us to contemplate the possibility of reaching consensus on how to protect the legal values of any society, such as life, honor, and social peace, which are threatened by increasingly experienced and organized crime.

By Roberto Durrieu: author, criminal defense lawyer, and a Doctor of Philosophy in Law from the University of Oxford.