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Sunday, December 4, 2016
- Human rights groups and legal experts are concerned that a law passed by the Argentine Congress in the early hours of Thursday morning to crack down on terrorism could be used to criminalise social protest.
The government introduced the reform of the penal code under threat of sanctions from the Financial Action Task Force (FATF), an inter-governmental body whose purpose is the development and promotion of national and international policies to combat money laundering and financing of terrorism.
Human rights organisations had questioned the bill sent to the legislature by the government of Cristina Fernández, and managed to secure the incorporation of a clause that would supposedly prevent the law from being used to target social movements.
But that modification is seen as insufficient. Legal experts say the law stiffens penalties based on vague wording and lacks the rigour required for the fair, effective enforcement of the penal code.
Article 41 of the reformed code doubles the penalties for any crime committed with the aim of terrorising the people or pressuring the national authorities or foreign governments or agents of an international organisation to take some action.
In response to the criticism, another paragraph was added, indicating that the aggravating factors will not be taken into account in the case of events that take place in the context of the exercise of human or social rights, or any other constitutional right.
Alan Iud, a lawyer with the Grandmothers of the Plaza de Mayo Association, said that “talking about crimes aimed at terrorising the people is an overly broad concept that increases the risk that it will be used against social protests.
“Many conflicts involve occupations, sometimes with damage to property or restrictions of the circulation of people, and these demonstrations could be punished with this law,” he warned.
Iud said that although the current government has shown that it is not interested in criminalising social protest, “we cannot lose sight of the fact that those who apply the law are judges, and many of them believe that the penal system should crack down on these protests.”
The passage of the reforms to the penal code upset the harmony that has characterised relations between human rights groups and the government since the administration of Fernández’s predecessor, her late husband Néstor Kirchner, decided eight years ago to take a proactive stance on human rights cases involving the 1976-1983 dictatorship.
The Centre for Legal and Social Studies (CELS), a local human rights group, also expressed “profound concern over the broad, vague wording of the law and the risk that it could be applied to evictions, roadblocks or protests in public spaces.”
For its part, the Civil Rights Association pointed out that the use of excessively abstract language “is not in keeping with the requirements of precision and clarity in penal matters required by the Inter-American Court of Human Rights.”
Nor does the law have the support of Supreme Court justice Eugenio Zaffaroni, who described it as a response to “extortion” by the FATF, in an interview with a radio station from the central province of Córdoba.
The FATF had demanded that Argentina “continue working urgently to address the deficiencies” in its anti-money laundering and combating the financing of terrorism regime, and the justice ministry pledged to do so before February 2012.
Zaffaroni said the FATF “is a second-tier body which grants itself more rights than the United Nations.”
With respect to the crime of terrorism, the magistrate said that “in Argentina, the death of one single person caused by something capable of provoking huge damages has already carried a life sentence in our criminal code for 90 years.”
And crimes of financial terrorism are already covered by the penal code, he added.
Opposition legislators also criticised the law. Congresswoman Liliana Parada with the Progressive Broad Front said it could be used against peasant farmers or indigenous people demanding access to land.
Other possible targets of the law, said Parada, are local groups opposed to open-pit mining or other polluting industries in their communities. She cited the case of Chile, where a draconian counter-terrorism law has been used to prosecute Mapuche Indian activists fighting for control over their ancestral territory.
Another of the reforms passed by Congress toughens penalties for economic and financial crimes such as money laundering – which had been included in the penal code earlier this year – or tax evasion, as well as actions carried out for the purpose of upsetting the economic or financial order, like triggering a run on the banks.
It also criminalises insider trading and stipulates sentences of up to six years for benefiting from bribery.