Overview of drug laws and legislative trends in Argentina

Trend

Following the Supreme Court judgement known as the Arriola Ruling, the progressive trend towards decriminalisation has ground to a halt in parliament, even though there have been some encouraging developments. The different proposals to change the law that are currently being discussed vary in their scope and extent, but they all seek to decriminalise possession for personal use. The most far-reaching proposal is the one put forward by Senator Aníbal Fernández, which seeks to overhaul the whole set of criminal laws currently in force in the country on the subject of drugs. At the opposite extreme are proposals that only seek to introduce a new article decriminalising the possession of drugs for personal use. The change may be postponed until after the Criminal Code is reformed, and the debate on that is due to start in 2013.??

Law

??Law 23.737, which has been in force since 1989, replaced Law 20.771 of 1974, the country’s first specific law on psychoactive substances. The current law broadly retains the previous wording on drug trafficking crimes, but increased the length of the prison sentence to between 4 and 15 years. It also makes possession for personal use an offence that may lead to a prison sentence, although this can be replaced by treatment and/or educational “safety measures.”

In a case related to the possession of small quantities of marihuana, a 2009 Supreme Court judgement known as the “Arriola ruling” declared that it was unconstitutional to enforce the second paragraph of Article 14 of 1989’s Law 23.737, which states: "The prison sentence will range from one month to two years when the small quantity of the drug and other circumstances suggest unequivocally that possession is for personal use." A reform of the law has been pending ever since.

For the latest news on drug law reform in Argentina click here.

Drug laws and legislative trends in Argentina 

In the international drugs market, Argentina is a “transit country” for cocaine. In the last few decades the use of controlled drugs has increased, and in recent years some cocaine chlorhydrate processing laboratories have appeared, though not to the same extent as in Colombia, Peru or Bolivia. Problem drug use in Argentina is associated with cocaine base paste, known locally as paco or lata.

Argentina has been developing criminal laws on these substances since 1924, but their repressive aspects have become more pronounced since the 1970s. The growing persecution resulting from these laws has mainly fallen on drug users and minor players linked to trafficking activities.

Current Legislation

Drug control by means of criminal laws started to become significantly harsher in Argentina in the 1970s – a time when problem drug use was not a major issue and drug trafficking was not a significant activity in the country. Law 20.771 of 1974 was the first specific criminal law against drugs and was framed within the doctrine of "national security," which allowed drug offences to be considered a federal crime.

The current drugs statute, Law 23.737 of 1989, did not change the previous wording on drug trafficking crimes, increased the range of the prison sentence to between 4 and 15 years, and maintained the punishment for possession for personal use with a prison sentence of between one month and two years, which can be replaced by treatment or drug use prevention courses.

Some political leaders promised to reform the law following the Arriola ruling, the application of which by the country’s different courts since 2009 has led to confusion. The ruling’s wording is problematic, because although it decriminalises possession for personal use, it also establishes the requirement that such use must not affect third parties, and that possession for personal use must be determined by “the small quantity of the drug and other circumstances,” thus creating a grey area. This ambiguity has meant that the police have continued to arrest drug users, leaving the decision as to whether the case fits within the Supreme Court ruling in the hands of the judge. In practice, judges have adopted different criteria for determining the quantity and the circumstances in each case.

With President Cristina Kirchner’s second term in office new attempts were made to push things forward. In December 2011 a new executive secretary was appointed to the Planning Secretariat for the Prevention of Drug Addiction and the Fight against Drug Trafficking (Secretaría de Programación para la Prevención de la Drogadicción y la Lucha contra el Narcotráfico, SEDRONAR). The institution’s new secretary, Rafael Bielsa, who gave voice to the government’s pro-reform stance, showed in favour of decriminalisation, harm reduction and a paradigm shift.

In June 2012, two days of hearings were held in the Chamber of Deputies as plenary sessions. These were coordinated by the chamber’s Criminal Law Commission and Addiction Prevention and Fight against Drug Trafficking Commission. Most of those who attended the sessions agreed on the need to decriminalise drug use and change the approach from crime control to social and health support for problem users.

Also during these hearings it was decided that parliament must seek consensus on a legal framework to provide comprehensive protection to the drug user, which is currently considered insufficient. Because of the perception that decriminalisation would increase the demand for assistance, the debate on a National Addiction Response Plan, with different proposals for the public health service, is delaying discussion of the reform.

Opposition to decriminalisation comes partly from the Catholic Church, which is demanding more investment in treatment for young people from the most vulnerable groups and lobbying against the proposed reform, because “we are not going to overcome this growing scourge of drugs, especially in our young people and adolescents, by facilitating drug use or by making something bad seem as though it was good.”

Impact of legislation on the prison situation

The growing persecution that has resulted from this legislation has led to an increase in the number of people in prison for drug offences, most of whom are minor players linked to trafficking activities. Of the different groups in prison, the numbers of women and foreigners incarcerated for offences of this type have increased the most.

At the start of 2009, a third of the federal prison population (SPF) was being held for drugs offences, with these being the second most common type of offence leading to imprisonment after crimes against property (mainly theft). With regard to the prison population in Buenos Aires (SPB), although in 2005 just 46 people were being held for drugs offences, in 2008 this number had risen to 960, not counting those detained in police stations. In September 2009, 7.5% of the SPB prison population was under detention for infringing Law 23.737. (See chapter on Argentina)

In the specific case of women prisoners, until 1988 the percentage of women in prison had never reached 5% of the total SPF population. In 1989 their numbers reached 6.2%, and since 1995 have hovered around 10%, remaining at that level today. It should be noted that the increase in the numbers and percentage of women in the SPF population coincides with the entry into force of Law 23.737 (which increased the length of sentences). This reveals a link between drugs crimes and the number of women prisoners. In the SPB, the percentage of women is lower – about 4% of the total prison population. But according to figures from 2008, the percentage of women is increasing.

Various studies have shown that the main crime for which women are imprisoned in the SPF is drugs-related. And according to the Provincial Memory Commission, 31% of those held in prison in September 2007 were there for drugs offences. The percentage of women in the SPB who had been jailed for these crimes was said to be about 40%.

The percentage of foreign prisoners jailed for drug-related crimes is likewise higher than in the prison population as a whole. In the early 2000s, this percentage was around 50%, and by 2007 it had risen to 68.46%.

While interdiction measures continue to fall disproportionately on such groups, the success achieved will only be momentary, and no real contribution will be made to containing drugs trafficking. Arresting people in a vulnerable situation (due to poverty, gender or nationality) only aggravates the conditions in which these people were living.

A new study by CEDD – Disproportionate Systems – also shows that the strategy being followed is not only inefficient and counterproductive, but also heavily disproportionate in terms of resource allocation, with criminal prosecutions receiving the lion’s share in comparison to any other intervention by the state.

Legislation and Reform

In 2009, the Ministry of Justice, Security and Human Rights set up an "Advisory Committee on the control of illicit narcotics trafficking, psychotropic substances and complex crime," under the leadership of Aníbal Fernández, now a senator. The main objective of this committee was to draft a new law on drugs to replace Law 23.737 in its entirety with a law that “proposes to establish a crime policy for cracking down on the illicit trafficking of narcotic substances that is realistic and meets our country’s needs.”

Eight proposals for reforming the narcotics law are currently before Congress. Most of them propose to roll back the criminal law with regard to certain activities, but there are some that go in the opposite direction. The majority were presented to the Chamber of Deputies in 2010 and propose partial changes to the law. Some were presented again in 2012, having undergone certain modifications.

What all these proposals have in common is that they remove from the realm of criminal law the alternatives to prosecution (treatment and educational “safety measures”) offered by the current law for various activities, mainly involving drug users, possession and growing for personal use, depending on whether the people concerned are “dependent” or “experimental” users (Articles 16-22 of Law 23.737). This change seems justified by the need to accommodate the criminal law to the National Law on Mental Health (2010), which recognises the “right to receive integrated and humane healthcare and social support, with access being free, equal and equitable.” Even some proposals that focus on the situation of prisoners who have been sentenced – for any crime – and who are problematic drug users, make reference to the principles of this law (access to treatment as a right).

Most of the proposals would decriminalise possession for personal use (Article 14, second paragraph, of Law 23.737), which is currently punishable by a prison sentence of between one month and two years (replaceable by the above-mentioned safety measures), although the different forms of wording open up a whole range of possibilities. The most ambitious proposal is the one put forward by congressional representative Victoria Donda, which would decriminalise not only possession for personal use but also simple possession (currently punishable by a prison sentence of one to six years – Article 14, first paragraph, of Law 23.737). Representative Donda argues that leaving this latter provision in place would mean that users could continue to be persecuted, even when possession for personal use was no longer a crime.

Many proposals state simply that possession for personal use will not be a punishable offence but keep the provision on simple possession, adding requirements to ensure that possession for personal use could not be punished. These requirements range from limiting decriminalisation to a “single use,” or to “the small quantity and other circumstances,” or to the condition that “the health of third parties is not placed at risk.” The proposal presented by Senator Fernández – which lowers the penalty on simple possession – and those presented by Ibarra, Conti, Puigross and Peralta fall into this category.

The proposal presented by congressman Gil Lavedra decriminalises possession for personal use. Although it continues to consider simple possession an offence, it adds requirements for determining that it is not for personal use (“when the quantity and the type of substance held and the circumstances of time, place and modality so indicate”). Thus, anyone alleging such possession must prove that its purpose was not for personal use, and the proposal emphasises that the burden of proof lies with the accuser.

A similar situation pertains to growing for personal use, which is currently punishable by a prison sentence of between one month and two years (Article 5, penultimate paragraph, of Law 23.737). While the Donda proposal lifts sanctions on all activities linked to growing psychoactive substances, not just those destined for personal use, the other proposals seek a limited decriminalisation bound by similar requirements. Thus, growing for personal use would not be a crime provided that “the small quantity and other circumstances” demonstrates that it is for personal use and/or “of a private nature,” or provided that “the health of third parties is not endangered.” This wording gives rise to the same problems that affect the current law, leaving growers (of cannabis, mainly) at the mercy of how the police and judges may interpret this text, and having to prove the purpose of their growing if they are to avoid being caught by the criminal law. A separate mention should also be made of one of the proposals put forward by congressional representative Conti, which would authorize different activities – specified in the law – involving “varieties of the chemical compound tetrahydrocannabinol (THC)” for therapeutic or scientific purposes.

In the current law, the possession and use of coca leaf destined for “chewing or preparing herbal infusions” is not considered possession or use of narcotics (Article 15 of Law 23.737). Senator Fernández’s proposal keeps an almost identical wording, but congresswoman Donda proposes that coca leaf destined for such uses should no longer be considered a narcotic – a possibility that could lead to more activities being removed from the criminal law, in addition to possession and use.

Drug trafficking crimes carry a prison sentence of between four and fifteen years (Article 5 of Law 23.737). But when trafficking is cross-border (contraband), the sentence ranges from four years and six months to sixteen years in prison (Article 866 of the Customs Code). The latter sentence is usually applied to the so-called mules, who are mentioned with concern by several proposals. Some proposals – such as those put forward by Ibarra, Conti and Peralta – make no changes on this point. The rest tend to include different proposals, usually leading to less severe treatment for minor players.

Senator Fernández’s proposal distinguishes between crimes that are perpetrated by an “organized criminal group,” which would carry a penalty of between eight and twenty years in prison, and those that are not, in which case the range of prison sentences would be reduced to between three and ten years. But it then goes on to suggest reducing the minimum and maximum sentences by half if “the perpetrator has committed the offence as a subordinate.” The range of prison sentences is maintained for the contraband trade in controlled drugs, although if it is a question of simple possession or possession for personal use it would be treated as such.

In the proposal put forward by congressman Gil Lavedra, trafficking crimes would carry a prison sentence of between three and fifteen years, and the crime of contraband from three to sixteen years. The proposal by congresswoman Puiggros adds the possibility of reducing the minimum and maximum sentences by half in both categories of crime, and even exempting perpetrators from prison, when “there is proven evidence of their situation of socio-economic vulnerability, participation as minor players, and absence of a criminal record.” This proposal would also exempt “mothers of minors” and “pregnant women” from going to prison.

As the above review of the proposals shows, there seems to be a certain degree of consensus among the different parties that the current narcotics law needs to be changed, although of course there are some who oppose the idea. In general, the proposals tend to decriminalise drug use and reduce the penalties on the minor players in drug trafficking.

Argentina on the international debate on drug policy

Argentina has given several clear signals of a change in attitude to drug policies at the latest annual meetings of the United Nations Commission on Narcotic Drugs, held in Vienna.

The first time was in March 2008, when Justice Minister Aníbal Fernández presented the government’s official position at the meeting to evaluate the Action Plan resulting from the 1998 UNGASS on drugs. On that occasion, Argentina recommended applying “the policy of harm reduction, as an ethical and moral principle of the Hippocratic oath that we should be building upon.”

The Minister of Health participated in the 2012 CND meeting, giving a speech which places on record a critical attitude to the drug control treaties, when he said that “after all this time, and in the light of the results so far, perhaps we should analyse whether the time has come to start a frank discussion about the coherence and useful impact of some of the precepts set out in these treaties.”

Additional Information:

• Comprehensive reform of the narcotics law and identification of social policies
• Control of illicit traffic in narcotic drugs, psychotropic substances and organized crime
• Partial reform of Law 23,737 on chemical precursors.

 

Argentina’s criminal legislation on drugs

• 1924 (11,309): The terms “narcóticos” and “alcaloides” were first incorporated into the law. The following acts were criminalized: clandestinely bringing such substances into the country; sale of them by those who, being authorized, do so without medical prescription; and the prescription and dispensing of dosages larger than those indicated. Penalty: six months to two years in prison.

• 1926 (11,331): The unlawful possession of narcóticos and alcaloides is considered a crime. Penalty: six months to two years in prison.

• 1968 (17,567): The term “estupefacientes” (narcotic drugs) is incorporated into the law. Distinct forms of conduct that are part of trafficking are listed – including unlawful possession – and the penalty is increased (one to six years in prison). Unlawful possession remains criminalized, but only if “it exceeds that corresponding to personal use.”

• 1973 (20,509): Law 17,567 is repealed and the law reverts to the 1926 legislation.

• 1974 (20,771): Different conduct that constitutes trafficking is listed, and the penalty is increased (three to 12 years in prison). Unlawful possession is distinguished with a lesser penalty (one to six years in prison), but it includes possession for personal use.

• 1989 (23,737): Different forms of conduct that constitute trafficking are listed, and the penalty is increased (four to 15 years in prison). Unlawful possession (simple), with the same penalty (one to six years of prison), is distinguished from possession for personal consumption with a lesser penalty (one month to two years in prison) and the possibility of diversion to a treatment program (if “dependent”) or an educational program (in the case of “experimenters”).