Overview of drug laws and legislative trends in Argentina

Trend

On August 25, 2009, the Supreme Court of Argentina unanimously declared unconstitutional the second paragraph of Article 14 of the national Narcotics Law (Law No. 23,737) which punishes the possession of drugs for personal consumption with imprisonment, ranging from one month to two years (replaceable with educational measures or treatment). According to the Court the unconstitutionality of the article is applicable to cases of drug possession for personal consumption, when third parties are not affected.

Although the Court's ruling does not specifically refer to one particular substance, and the case on which it ruled dealt with cannabis, it opens the door to judicial reform of drug laws in Argentina, since these arguments also apply to other drugs. A bill to decriminalize the possession of all drugs for personal consumption was expected in 2010, but will now most likely be discussed in 2012.

Law

The ruling of unconstitutionality by the Supreme Court, known as the ‘Arriola Ruling’, a case involving possession of small amounts of cannabis, referred to the application of the following provision of 1989 Law 23,737, Article 14 in the following terms: “The penalty is from one month to two years of imprisonment when the small amount and other circumstances strongly suggests that the possession is for personal use.”

Drug laws and trends in Argentina

Within the international drug market, Argentina is a cocaine 'transit' country. In recent decades consumption of illicit substances has increased and, in recent years some cocaine labs have been discovered, though not at the scale of those in Colombia, Peru or Bolivia. Most problematic use is related to Paco, a cocaine derivative. Argentina has developed criminal law with regard to these substances since 1924 and, since the seventies, has increased its repressive aspects. The growing persecution that resulted from this legislation has been primarily of consumers and smaller players linked to trafficking activities.

Current Legislation

Control of drugs using criminal law began to harden significantly in Argentina during the seventies, when the phenomenon of problematic consumption or a major activity of drug trafficking in the country did not yet exist. Law 20,771 from 1974 was the first special criminal law on drugs framed within the doctrine of “national security”, making it possible to consider drug crime a Federal offense.

The current drug statute - Law 23,737 of 1989, did not substantially modify the definition of trafficking offenses and increased the range of sentencing to between four and 15 years in prison, and kept the punishment of the possession for personal use established in the prior law, set at one month to two years.

Impact of legislation on the prison situation

The increasing persecution that resulted from this legislation has led to an increase in the prison population for drug offenses with the weight falling mainly on small actors linked to the trafficking activities. Particularly women and foreigners are among those groups with the highest increase in imprisonment for drugs offenses.

With regard to the federal prison population (Federal Penitentiary Service), in early 2009 one third of prisoners were arrested for drug offenses, making this type of crime second after crimes against property (mainly theft). In terms of the prison population in Buenos Aires (Buenos Aires Penitentiary Service, SPB), while in 2005 there were only 46 arrested for drug offenses, in 2008 there were 960, not including those detained in police stations. In September 2009, 7.5 percent of the people jailed at the SPB were prosecuted for violation of Law 23,737.

In the specific case of the female population, until 1988, the percentage of women in prison had never reached 5 percent of the total population of SPF. In 1989 this reached 6.2 percent and, since 1995, has increased to about 10 percent, and remained at that level. It is important to note that the nominal and percentage increase of women in the population of SPF coincides with the enactment of Law 23.737 (which increased penalties). This reveals a link between drug crimes and the number of women incarcerated. On the side of the SPB, the percentage of women is lower with about 4 percent of the total population. But according to 2008 data, this percentage is likely to have been increasing.

Various studies indicate that the main type of crime for which women are held at the Federal level, is drugs related. Further, according to the Provincial Memory Commission, as of September 2007, 31 percent were detained for drug offenses. The percentage of women arrested for these crimes in the SPB is probably around 40 percent.

Also the percentage of foreigners arrested for drug offenses is higher than the general population. In the early 2000s, this percentage was around 50 percent. In 2007 it rose to 68.47 percent.

If the use of criminal law continues to target these types of actors, successes will only be achieved momentary without a genuine contribution to the containment of drug trafficking. Arresting people in vulnerable situations (due to poverty, gender, and nationality) only aggravates the conditions they were already in.

Attempts to reform legislation (Proposed legislative changes)

Drug laws and their application through criminal law in Argentina have been subject to criticism for several decades, particularly by the judiciary. Recently there has been an interesting series of events aimed at improving the effectiveness of drug legislation in the interest of public health, aligning legislation with the obligations assumed by the country on human rights, and putting aside the criminal prosecution of consumers as the only answer to an issue that should be considered a health problem.

In 2008, shortly after a group of judges, lawyers and prosecutors raised their voices in a public statement addressed to the nation's judiciary, the Ministry of Justice, Security and Human Rights formed an “Advisory Committee on Control of Illicit Traffic in Narcotic Drugs, Psychotropic Substances and Complex Crime.”

The primary objective of this Committee was to develop a new drug law to replace Law 23,737, which would respect human rights and decriminalize possession of drugs for personal use, and also set lower penalties for the sale and/or trafficking of marijuana, for example, and/or small amounts of other drugs. Also, it would allow those formally accused to await their sentence in freedom, banning preventive detention. In short, the Committee projected a more humane law that respects the principle of legality, harmfulness and proportionality.

The Committee also developed a series of documents that contain the basic ingredients of a sound public policy on drugs:

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

Argentina showed another clear signal of changing attitudes towards drug policies at the annual meeting of the UN Commission on Narcotic Drugs, held in Vienna in March 2008, when the Minister of Justice presented the government’s official position during the evaluation process of the UNGASS on Drugs 1998 Action Plan.

Apart from the previously described Arriola case of 2009, there were several other previous rulings of the Supreme Court on the rights of people with mental illness, which are also relevant in this regard: Sentence R., MJ s / Insania, February 19, 2008, and Judgement T. R. A. s / Hospitalization, December 27, 2005.

In 2010 several bills to reform Law 23,737 were presented to Congress, most of them following the Court’s ruling: decriminalizing possession for personal consumption. Among them we can mention three. The first one was presented by Deputy Fabian Peralta in mid-June 2010, and intends to decriminalize the possession and cultivation of cannabis for personal consumption. It also repeals the security measures (curative and educational) proposed by the current law as an alternative to punishment in case of plant possession and consumption.

Two months later the Radical Party presented a bill to reduce the minimum penalty for trafficking offenses, with the situation of the so-called ‘mules’ on their minds.

The third bill, introduced in October 2010 by parliamentarians Cecilia Merchán and Victoria Donda proposes not only the decriminalization of possession and cultivation for consumption, but even includes simple possession (not for immediate consumption) in their definition. It also repeals the crime of sowing seeds, cultivation of plants, and the storing of seeds or raw materials for the elaboration of drugs, while maintaining as an offense the trade, possession for the purposes of trade, distribution, storage or transportation of plants used to produce narcotics, but excluding those who sell seeds.

All of these steps towards a debate in the National Parliament are encouraging. The reform is pending, but there is still much to do. The public debate on the decriminalization of consumption currently has great relevance in the country.

More recently after the reelection of Cristina Kirchner as Argentine president in October 2011, reforms at the level of the national drugs agency SEDRONAR look promising.

Trends

As in others Latin American countries, there is in Argentina a growing interest in the debate about drug policies and current laws. It is at this stage that new proposals for reform have been developed, which on certain issues seem to have reached some consensus, although there are still sectors opposing them. In addition, the explosion of trafficking and consumption of paco in poor neighborhoods of urban centers and among young people in particular, the seizure of labs where cocaine is produced, all these phenomena unknown ten years ago, have led to perceive consumer-related problems within a security perspective and not as a social and health problem.

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”).