25/08/2009 - said it is unconstitutional to punish an adult for use if not a threat to others. He urged the other powers to set policies against illicit drug trafficking. If the conviction was upheld traffickers. COMPLETE FAILURE
Source: Website of the Judicial Information Center (www.CIJ.gov.ar)
The Supreme Court's Office said it is unconstitutional to punish an adult to have and use marijuana if it does not endanger others. He said we need to protect personal liberty. decriminalization not ordered and directed: "To call on all public authorities to ensure a state policy against illegal drug trafficking and preventive health measures, information and consumption deterrent education, focusing particularly on the most vulnerable, especially children, to give proper effect to the international human rights treaties signed by the country. " Ruled in a case where to stay firm conviction of traffickers. Addiction was not demonstrated in the case.
The main points are as follows
The judges voted unanimously, but with different grounds on which each made reference to issues as important. Lorenzetti judges voted for their vote, Highton-Maqueda, for his vote, Argibay for your vote, Zaffaroni for their vote, Fayt for your vote, Petracchi for your vote.
failure Limits
1. The Court did not rule legitimized or ostentatious consumption to third, or one with intent to sell, and only referred to marijuana. The convicts were marijuana and did not show the drug, nor was there danger to others, nor had he proven addiction, nor was there any evidence about who had intentions of marketing.
2. Not devoted one allowed to use indiscriminately, but only in the event that defined precisely.
3. Not adopted positions on the desirability of criminal punishment of drug or decriminalization.
Declaration of unconstitutionality
All judges agreed to declare the unconstitutionality of the death of tenure for private consumption, with the following basics. The rationale is that should protect the privacy of adults to decide what their conduct and in the case, you want to have or do drugs. It was resolved to re-apply the criteria already established in a timely manner "Bazterrica" \u200b\u200bwhich consists of the following: a.
Each adult individual is sovereign to decide freely on the lifestyle you want without the state to intervene in that area (Art 19 CN);
b. There is no private criminalize conduct on that do not cause danger or harm to others. The arguments based on mere abstract danger, whether or public morality do not exceed the test of constitutionality;
c. Behavior made in private is lawful, unless it constitutes a specific risk or cause damage to property or rights of others.
were considered two key elements: 1). The restriction of personal freedom: if the consumer had been sentenced to stop abusing alcohol and interact with people linked to dispensing or consumption of narcotics, which is an intrusion into the private life of an adult, 2 .) Ruled that when the criterion of "Bazterrica" \u200b\u200bnow enshrined there was no increase in consumption.
Exhortation to the other powers
The Court unanimously, also decided:
"To call on all public authorities to ensure a state policy against illegal drug trafficking and preventive health measures, information and education deterrent consumption, focusing particularly on vulnerable groups, especially children, to appropriate to comply with the international human rights treaties signed by the country. "
Facts cause
The case began on January 19, 2006, following the report from the Chief of the Federal Police Rosario Argentina, realizing that pre-trial investigations of different cultivated this dependence for infringement 23,737 came to the law that all detainees had been in sporadic contact with a farm located on Forest Street near the corner of Nicaragua, where they had observed the typical movements of the retail sale of drugs. Under it was decided that the preliminary investigation was delegated to the prosecutor on duty, who according to the tasks of monitoring and surveillance conducted by the prevention, images captured and recorded on a video cassette that was incorporated into the record, and on the evidence emerging from the accumulated copies of the summaries to the process said it could be inferred that at the farm alluded to a subject is devoted to the marketing of drugs. On that basis sought and obtained the relevant search warrant, search and seizure, which took place on February 26, 2006.
The Oral Criminal Court No 2 Federal de Rosario, Santa Fe, dated August 30, 2007, rejected the nullity filed by the defense and the charge of unconstitutionality of Article 14, second paragraph, of the law 23,737, and sentenced to: a) Sebastian Eduardo Sebastian Eduardo Arriola Arriola or, as the perpetrator criminally responsible for the crime of drug trafficking in the form of possession of drugs for marketing-two events, in real competition-(arts. 55 CP and 5th., in. C of Law 23,737), and sentenced to six years imprisonment, a fine of six hundred dollars ($ 600) and disqualification for a period equal to the sentence, imposing the remedial care measure provided for in Article 16 of the Act cited; b) Carlos Alberto Simonetti, criminally responsible as the perpetrator of the crime of drug trafficking in the form of possession of drugs for marketing-contest two events in real-(arts. 55 and 5th CP., in. C, of \u200b\u200bthe law 23,737), and sentenced to four years imprisonment, a fine of five hundred dollars ($ 500) and disqualification for a period equal to the sentence (art. 12 CP), c) Monica Beatriz Vázquez, as author criminally responsible for the crime of drug trafficking in the form of possession of drugs for marketing purposes, two facts in real competition, acting as a secondary participant (arts. 5th., inc. c, of Law 23,737, and 46 and 55 of CP), and sentenced to two years and six months imprisonment and a fine of two hundred dollars ($ 200), d) Gustavo Alberto Perez, Ezequiel Marcelo Acedo, Mario Alberto Villarreal, Gabriel Alejandro Medina and Leandro Cortejarena, as the authors of offense of possession of drugs for personal use (art. 14, second paragraph, of Law 23,737) and sentenced to one month imprisonment for conditional execution (art. 26 of the Penal Code) by imposing for a term of two years following rules of conduct (Article 27 bis of the Penal Code): 1) establish residency and submit to the care of Trustees, 2) refrain from using drugs, abusing alcohol and interact with people involved the dispensing or consumption of narcotics. In all cases replaced the penalty and ordered a safety education as provided by art. 21 of Law 23,737, giving speech to that effect to the criminal enforcement Honor (pages 1021/1023 and 1048/1063).
The defense appealed for Sebastian Eduardo Arriola, Monica Beatriz Vázquez, Gustavo Alberto Perez, Marcelo Ezequiel Acedo, Mario Alberto Villarreal, Gabriel Alejandro Medina and Andrés Leandro Cortejarena (pages 1101/1130), which was rejected by the court a quo to fs. 1154/1157, who, in turn, declared inadmissible the net extra resources for the defense.
This led to the proceedings actually deducted by the public defender Sebastian and Monica Beatriz Arriola Vázquez (exp. A.890.XLIV), decided by the Supreme Court dated May 5, 2009, where it was as withdrawn the appeal in favor of Arriola and dismissed the complaint on Vazquez.
Thus, the issue under consideration by this Court has been circumscribed to the facts linked to Fares, Acedo, Villarreal, Medina and Cortejarena in the complaint under consideration.
The trial court had been demonstrated that the possession by Gustavo Alberto Perez of three marijuana cigarettes assembly manual (with a weight of 0.283 grams, 0.245 grams and 0.161 grams each, and dose thresholds: 0.8, 1.1 and 0.5, respectively), seized the left breast pocket of his trousers he wore Fares by staff of the Section Rosario of the Superintendent of Federal Investigations of the Federal Police Argentina, in the proceedings that took place on 29 October 2005 at the intersection of Forest and Mexico, the city of Rosario, Santa Faith
tested also had the possession of three marijuana cigarettes by Ezequiel Marcelo Acedo and a marijuana cigarette by Mario Alberto Villarreal (with a weight of 0.25 grams, 0.30, g, 0 , 27 grams and 0.25 grams, and 10 doses in total), seized the left back pocket of the trousers he wore the first side and the right pocket of his trousers he wore the second in the procedure carried out by staff prevention above, on January 18, 2006, at the intersection of Forest and Mexico from the city of Rosario.
It also had to prove the possession by Gabriel Alejandro Medina and Leandro Andrés Cortejarena three marijuana cigarettes manual assembly-each-(with a weight of 0.31 gr., 0.29 gr., 0.29 gr., 0.25 gr., 0.26 gr ., 0.27 gr., each, and dose thresholds: 0), kidnapped in the proceedings that took place on April 26, 2006, at the intersection of Forest and Mexico from the city of Rosario, by Staff of the Brigade Operations Department II, under the Dangerous Drugs Directorate General of Police of the province of Santa Fe, in this case, noticing the police presence, the accused were dropped on the sidewalk two packs of cigarettes containing subsequently seized material. The appeal
of appeal, the defense did wrong in the rejection of unconstitutionality of art. 14, second paragraph, of Law 23,737, and ran a review of the decisions on the basis of the new composition of the Supreme Court and the arguments they had made the ruling of the Court in the case "Bazterrica" \u200b\u200bin which had been declared constitutional invalidity of a legislative text-Law 20,771, art. 6 ° - incriminating drug possession for personal use with a range similar to that makes the rule in question.
Chamber I of the National Chamber of Criminal Appeal rejected the appeal noting that the room had previously issued in the background that quote, about the constitutionality of the second paragraph of Article 14 of Law 23,737.
In the special appeal the defense argued that the original ruling was in violation of the principle of confidentiality set out in Article 19 of the Constitution, since the conduct of the accused had been carried out within the framework of constitutionally protected privacy.
