The Handbook of Comparative Criminal Law

By Kevin Jon Heller and Markus Dubber

This handbook explores criminal law systems from around the world, with the express aim of stimulating comparison and discussion. General principles of criminal liability receive prominent coverage in each essay—including discussions of rationales for punishment, the role and design of criminal codes, the general structure of criminal liability, accounts of mens rea, and the rights that criminal law is designed to protect—before the authors turn to more specific offenses like homicide, theft, sexual offenses, victimless crimes, and terrorism.

This key reference covers all of the world's major legal systems—common, civil, Asian, and Islamic law traditions—with essays on sixteen countries on six different continents. The introduction places each country within traditional distinctions among legal systems and explores noteworthy similarities and differences among the countries covered, providing an ideal entry into the fascinating range of criminal law systems in use the world over.

• Language: English
• Publisher: Stanford Law Books
• Release date: Dec 1, 2010
• ISBN: 9780804777292

Book preview

INTRODUCTION: COMPARATIVE CRIMINAL LAW

Kevin Jon Heller and Markus D. Dubber

Kevin Jon Heller is a Senior Lecturer at Melbourne Law School. His recent publications include The Cognitive Psychology of Mens Rea, 99 Journal of Criminal Law and Criminology 317 (2009), and Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis, 6 Journal of International Criminal Justice 419 (2008).

Markus D. Dubber is Professor of Law at the University of Toronto. His recent publications include The Police Power: Patriarchy and the Foundations of American Government (Columbia University Press, 2005) and The Sense of Justice: Empathy in Law and Punishment (New York University Press, 2006).

The comparative analysis of criminal law can do many things for many people. For the legislator, it can be a source of possible approaches to a specific issue or even to the enterprise of criminal law reform and criminal lawmaking in general. For the judge, it can suggest different solutions to tricky problems of interpretation or common-law adjudication. The theorist can mine the vast stock of principles and rules, of structures and categories, and of questions and answers that can be found in the world's criminal law systems. And the teacher, too, can draw on the positive manifestation of different, or not-so-different, approaches to particular or general questions of criminal law to challenge students’ ability to comprehend, to formulate, and eventually to critically analyze black-letter rules that are all too often presented by judicial—or, occasionally, professorial—oracles of law as the manifestations of inexorable logic or, at least, of stare decisis.¹

Oddly, it is precisely this critical potential that may well account for the fact that the comparative study of criminal law traditionally has been neglected. In fact, if not in theory, Anglo-American criminal law continues to be regarded as an exercise of the police power of the state, where the power to police is thought to be closely related, even essential, to the very idea of sovereignty. More particularly, the police power is the modern manifestation at the state level of the deeply rooted power of the householder (oikonomos, paterfamilias) over his household (oikos, familia).² In Blackstone's memorable phrase, public police or oeconomy is the due regulation and domestic order of the kingdom: whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners: and to be decent, industrious, and inoffensive in their respective stations.³

As essentially discretionary, and defined by its very indefinability, the police power is incompatible with principled critique. And insofar as a penal police regime is not subject to critical analysis, it has no use for regarding criminal law comparatively.

Comparative analysis fits more comfortably with a conception of criminal law as law, which recognizes and attempts to meet the challenge of a system of state punishment consistent with the state's function of safeguarding and manifesting the autonomy of its constituents under the rule of law (i.e., in a Rechtsstaat). It is therefore no surprise that the project of comparative criminal law begins in the wake of the Enlightenment's fundamental critique of state power in general, and of state penal power in particular. P. J. A. Feuerbach, one of the leading figures of Enlightenment criminal law and the generally acknowledged father of modern German criminal law, thought the comparative method essential to the project of constructing a critical theory of criminal law. Comparative analysis, in Feuerbach's view, was essential not only to the project of critical criminal law but also to the project of legal theory in general: Just as the comparison of various tongues produces the philosophy of language, or linguistic science proper, so does a comparison of laws and legal customs of the most varied nations, both those most nearly related to us and those farther removed, create universal legal science, i.e., legal science without qualification, which alone can infuse real and vigorous life into the specific legal science of any particular country.⁴

One need not share Feuerbach's enthusiasm for a universal legal science, or pursue the analogy between language and law that was commonly drawn at the time, to appreciate his insight into the critical potential of comparative analysis. That critical potential can be put to use in various contexts, some more ambitious than others. The least self-conscious and ambitious form of comparative analysis is exemplified by modern American criminal law. At least since the completion of the Model Penal Code in 1962 and the widespread reform of American criminal codes in its wake, American criminal law can no longer be regarded as a common-law subject. Instead, it is a collection of self-standing code-based jurisdictions, dominated by the criminal law systems of the fifty states and the District of Columbia, superimposed on which is the ever-growing body of federal criminal law. In teaching and in scholarship—though decreasingly in judicial opinions, which by necessity concern themselves with the criminal law of the jurisdiction in question—the subject of American criminal law survives as a form of domestic or internal comparative criminal law, where norms from various American jurisdictions are compared, contrasted, and (with difficulty) synthesized into a more or less coherent whole. American criminal law teaching and scholarship would benefit from the conscious adoption of a comparative approach that includes both domestic and foreign materials, rather than maintaining the anachronistic image of a unified body of American criminal law that contributes to the evolution of a yet larger body of common law.⁵

An explicit form of international and external comparative analysis is exemplified by the ambitious research project prompted by an early twentieth-century effort to revise the German Penal Code. Although the effort proved unsuccessful—the Code was not significantly reformed until the late 1960s—it generated a sixteen-volume overview of criminal law systems throughout the world.⁶

The frequent reference to foreign criminal law in the jurisprudence of the Canadian Supreme Court falls somewhere in between the two forms of comparative criminal law exemplified by this systematic inquiry into foreign criminal law and the implicit comparativism of contemporary American criminal law. In general, these references are restricted to common-law countries, notably England and to a far lesser extent Australia, New Zealand, and the United States,⁷ although certain basic concepts of German criminal law have had some influence, indirectly, as disseminated in English-language criminal law scholarship, notably George Fletcher's Rethinking Criminal Law.⁸ The limitation to Commonwealth countries and the continued special place accorded English criminal law, however, indicates that Canadian criminal law also continues to regard itself as part of the general common-law enterprise; in this sense, references to foreign law are less an exercise in comparative criminal law than they are the canvassing of persuasive, though no longer controlling, precedent familiar from centuries of common-law judging.⁹

The emerging enterprise of international criminal law is inherently and explicitly comparative. The broad provisions of the Rome Statute of the International Criminal Court (ICC) leave considerable room for comparative inquiries into the treatment of central questions of criminal liability, including intent and other forms of mens rea, accomplice and group liability, inchoate criminality (conspiracy, attempt, solicitation), and the availability of defenses (e.g., self-defense, necessity, duress, superior orders, and ignorance of law). Article 21 of the Rome Statute expressly instructs ICC judges to consult general principles of law derived by the Court from national laws of legal systems of the world. Because of the often-nebulous quality of international criminal law, judges of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) have frequently decided cases through such comparative surveys: in Delalic (1998),¹⁰ where ICTY judges had to interpret the mens rea requirement for murder when charged as a grave breach of the Geneva Conventions; and in Akayesu (1998),¹¹ where ICTR judges examined national criminal law systems to decide what kinds of acts qualify as rape when charged as a crime against humanity.¹²

The rise of international criminal law and the creation of institutions of international criminal law have attracted the attention of criminal law theorists who, like Feuerbach, see an opportunity for the development of a universal, or at least supranational, theory of criminal law.¹³ But even without this doctrinal ambition, which reflects an elevated sense of the significance of theorizing (and of the theorizer) in the construction and maintenance of a system of criminal law, criminal law theory can be enriched by taking a comparative perspective. The mere recognition of the existence of well-developed and well-considered alternatives makes room for the consideration not only of new answers to familiar questions, but of new questions as well. Comparative analysis, of course, can also be rewarding as a scholarly end in itself, although the meaningful comparison of even a single doctrinal rule requires careful consideration of the rule's place in the doctrinal system as a whole, along with an inquiry into historical and sociolegal context, notably its interpretation and implementation. To quote Feuerbach once more: Without knowledge of the real and the existing, without comparison of different legislations, without knowledge of their relation to the various conditions of peoples according to time, climate, and constitution, a priori nonsense is inevitable.¹⁴

This Handbook contains seventeen chapters, sixteen that are country specific—a sample that includes countries in six different continents and covers all of the world's major legal systems—and one that discusses the criminal law applied by the International Criminal Court from a comparative perspective.

Argentina's criminal code, the Codigo Penal (CP), was adopted in 1921. The CP has been influenced by both the German and the Italian criminal law traditions: the first draft of the CP, the Tejedor Code, was heavily influenced by Feuerbach's Bavarian Criminal Code of 1813, and the 1891 draft code that ultimately led to the current CP was primarily influenced by Giuseppe Zanardelli's Italian Criminal Code of 1889. The current CP was intended to capture in a simple and pragmatically oriented text the basics of the Tejedor Code and the 1891 draft, and to a significant extent it succeeded: the CP established a simple regime of sanctions, abolished the death penalty, and endorsed straightforward rules of responsibility and definitions of offenses. However, as Marcelo Ferrante notes, the numerous minor reforms and amendments adopted since 1921 have—as is often the case with codes that are updated in piecemeal fashion—introduced complexity into an otherwise relatively simple text, often affecting the code's systematicity. Ferrante offers a particularly striking example of this in the area of punishment: possessing explosives in Argentina is now subject to longer imprisonment (5 to 15 years) than detonating the explosives and destroying goods or endangering human life (3 to 10 years).

The history of Australia's criminal law, according to Simon Bronitt, is bound up in its foundation as a penal colony. Because it was a settled colony, as opposed to a conquered or ceded one, English criminal law applied in Australia. Nevertheless, English criminal law's tangled mass of common-law and statutory offenses ultimately made Australia fertile ground for codification. Today, most states and territories in Australia, which are bound together by Australia's federal system of government, have codified systems of criminal law (the code jurisdictions), and even those that do not (the common-law jurisdictions) have adopted extensive criminal consolidation statutes. The many important substantive differences between the various jurisdictions led Australia—like the United States—to develop a Model Criminal Code. The Code has been received with markedly different degrees of enthusiasm across Australia, however, so fundamental differences remain. For example, although the Code provides that murder requires a perpetrator to act with at least English criminal law's oblique intention, five of Australia's eight jurisdictions continue to criminalize reckless murder.

Like the United States and Australia, Canada has a federal system. Unlike those countries, however, all criminal law in Canada is federal—a direct response, in fact, to the perceived weaknesses of the U.S. system. The federal criminal power in Canada is quite broad, extending to a number of areas that are not traditionally regulated by criminal law, such as tobacco advertising and pollution. But there are important limits, the most important of which is the Canadian Charter of Rights and Freedoms, adopted in 1982. According to Kent Roach, the Charter has…emerged as a significant restraint on the criminal law in Canada, with some basic criminal law principles being constitutionalized. Roach provides a number of illuminating examples of how courts have used the Charter to restrain the more punitive tendencies of Canadian criminal law: striking down constructive murder offenses on the ground that the stigma and penalties associated with a murder conviction require proof that the perpetrator subjectively foresaw the likelihood that his or her act would lead to death; holding that criminal negligence requires a much greater departure from the standard of care than ordinary civil negligence; and refusing to apply a statutory definition of duress that is far more restrictive than its common-law counterpart.

China's current criminal code was adopted in 1979, after a thirty-year period in which the Chinese Communist Party ruled the country without a criminal code or comprehensive set of criminal laws. As Wei Luo notes, many of the basic principles of the current code—for example, mental states, foreseeability, and causation—differ from their common-law and civilian counterparts. The code abandons several features of traditional Chinese criminal law, such as its lack of separation between administrative and judicial powers (which permitted a person to be convicted of a crime without a formal judicial proceeding), its willingness to extend the definition of crimes by analogy (which served as a useful tool for political repression), and its reliance on severe penalties for even minor crimes (which was useful to deter crime during times of social instability), but retains the death penalty for nearly seventy offenses, including bribery and embezzlement.

Modern Egyptian criminal law began in 1883 with the creation of national courts and a number of new legal codes. The Penal Code itself, which was modeled along the lines of the Napoleonic Code, was adopted in 1937. Perhaps the most striking aspect of Sadiq Reza's account of Egyptian criminal law is the progressive role that the Supreme Constitutional Court has played in its development: striking down both irrebuttable and rebuttable presumptions of knowledge on the ground that they violated the presumption of innocence; affirming the constitutional status of the voluntary-act requirement by disapproving a status law criminalizing vagabondage; declaring the Penal Code's conspiracy provision unconstitutional as inconsistent with the principle of legality; creating a fair-notice mistake-of-law defense; and so on. Unfortunately, as is the case in many criminal law systems, the Egyptian judiciary has proved considerably more deferential when it comes to terrorism offenses, where the president's decisions have largely gone unchallenged.

France finally adopted a new criminal code in 1992, after nearly two centuries of unsuccessful efforts to reform the Napoleonic Code of 1810. Like many criminal law systems, French criminal law normally distinguishes between crimes that require some form of intention and those that do not. Interestingly, though, le dol éventuel—where a perpetrator foresees the possibility of a particular result but does not want it to occur—does not satisfy the mens rea requirement of a crime that requires a special intent to cause a result forbidden by law. As Catherine Elliott discusses, before the adoption of the new Criminal Code dol éventuel was simply treated and punished as a form of negligence. Now, however, that mental state is a mens rea in its own right: deliberately putting someone in danger. A perpetrator who deliberately puts someone in danger—a mens rea that lies somewhere between intention and negligence—is either convicted of a separate substantive offense (where there was an immediate risk of death or serious injury) or is sentenced as if he or she committed an aggravated offense of negligence (for crimes such as involuntary homicide and nonfatal offenses against the person).

The German Penal Code has been amended regularly since it was adopted in 1871, but its main structure has remained intact. German criminal law is remarkably systematic, particularly in terms of protecting fundamental interests. The centrality of the right to life in the German legal and philosophic tradition, for example, means that necessity can never justify killing an innocent person—not even in order to save the lives of several innocent people. However, Thomas Weigend makes clear that even German criminal law is willing to deviate from its own principles when the situation demands it. The strict prohibition against applying criminal laws retroactively is a striking example. After the reunification of Germany, East German soldiers who were charged with manslaughter for shooting people who tried to escape from the German Democratic Republic (GDR) often invoked a GDR statute that, under certain circumstances, justified such killings. The Federal Constitutional Court recognized that prohibiting the soldiers from relying on the statute was inconsistent with the principle of nonretroactivity, but prohibited the defense anyway.

Macaulay's Indian Penal Code, which dates from 1860, was inspired by English criminal law, the French Penal Code, and Edward Livingston's Benthamite draft of a Louisiana Penal Code.¹⁵ Particularly noteworthy, as Stanley Yeo points out, is Indian criminal law's comprehensive taxonomy of homicides, which are divided into two categories—culpable homicide amounting to murder and culpable homicide not amounting to murder—and are arranged in descending order of culpability according to the perpetrator's intent to harm or his or her knowledge of the likelihood of death. Culpable homicides amounting to murder include killings in which the perpetrator intended to cause death, intended to cause injury the perpetrator knew would likely cause death, intended to cause injury that a reasonable person would have known most probably would cause death, or did not intend to cause death but knew that death would be a virtual certainty. Culpable homicides not amounting to murder include killings in which the perpetrator intended to cause injury that a reasonable person would have known was likely to cause death or did not intend to cause death but knew that death was likely. Finally, killings in which the perpetrator did not intend to cause death and only knew that death would possibly result are excluded from the category of culpable homicide entirely and constitute the much less serious crime of causing death by a rash act. A number of partial defenses are also available under Indian criminal law to reduce culpable homicide amounting to murder to culpable homicide not amounting to murder, such as provocation, excessive self-defense, and consent. Interestingly, and reflective of India's unique caste system, although the existence of adequate provocation is assessed objectively, the standard is a reasonable man, belonging to the same class of society to which the defendant belongs.

The Islamic Revolution in 1979 led Iran to replace its General Criminal Code of 1926, which had been strongly influenced by the Napoleonic Code, with a new criminal code based exclusively on classical Islamic criminal law. The Iranian Penal Code contains a general part, but—unusually—the principles contained therein do not apply to all the substantive crimes in the special part. Indeed, Silvia Tellenbach shows how the same principle can have a different meaning depending on the offense at issue. Dolus eventualis is a striking example: a death that results from an inherently deadly act (such as using a weapon) committed with dolus eventualis is regarded as intentional, while an arson that leads to death committed with the same dolus is regarded as nonintentional. This is an important difference, because the former crime will be punished by retaliation, while the latter will be punished only by blood money. However, whether to prosecute the perpetrator for homicide at all will be decided solely by the victims of the crime: The role of the state is limited to conducting proceedings on the demand of the blood avengers.

The general part of Israel's Penal Law, which dated back to the criminal code enacted by the British mandatory legislature, was completely revamped by the Knesset in 1994. A number of features of Amendment no. 39, the vehicle for reform, have proven controversial and have led to judicial resistance. An example Itzhak Kugler discusses is section 20(b), the so-called foresight rule, which provides that the mens rea of all intention crimes is satisfied if the person knew that a particular result was almost certain to occur—equivalent to oblique intention in English criminal law. Before Amendment no. 39 was adopted, Israeli courts had held that the foresight rule did not apply to the crime of murder, because only persons who intended to cause death deserved the stigma (and accompanying life sentence) of a murder conviction. Amendment no. 39 would seem to eliminate that exception, but a number of courts have held that because murder requires premeditation and section 20(b) speaks only of intention, the traditional exception to the foresight rule continues to apply.

Japan's criminal code, Keiho, celebrated its one hundredth birthday in 2007. Two aspects of Japanese criminal law, clearly interrelated, are worth noting. On the one hand, negligence crimes play an unusually large role in Japanese criminal law, which criminalizes a wide range of conduct, such as negligent driving, that would attract only civil liability in most countries. On the other hand, Japanese criminal law is remarkably lenient: as John O. Haley points out, [o]nly rarely…do convicted offenders receive any significant formal punishment. In part, that is due to Japan's very low crime rate and the fact that more than two-thirds of code violations consist of negligence offenses, which are normally punished with fines instead of incarceration, but it also reflects the significant discretion possessed by police, prosecutors, and judges: the police fail to report 33 percent of all crimes; prosecutors refuse to prosecute 33 percent of their cases; and judges suspend nearly 60 percent of all sentences. It is little wonder, then, that Japan has the lowest per capita incarceration rate of any industrial democracy, including the Nordic countries.

Russia's criminal code, the Ugolovnyy kodeks Rossiyskoy Federatsii (UK), is relatively new, having been adopted in 1996 and amended frequently since, including a comprehensive reform in 2003. One of the more unusual aspects of the UK, in Stephen Thaman's view, is its socially dangerous act requirement, according to which an act that does not pose a danger to society is not criminal even if it satisfies all the formal requirements of a particular offense. Although the socially dangerous act requirement is a vestige of Soviet criminal law, it now serves to limit the ambit of criminal responsibility instead of, as in the Soviet era, to expand it. And limit it does: Russian criminal law's emphasis on social protection leads to expansive defenses of necessity (permitting an actor to take a justified risk toward the achievement of socially useful goals) and self-defense (permitting the use of force to defend social or state interests protected by the law), among others.

South African criminal law is a true hybrid system that blends, in Jonathan Burchell's words, Roman-Dutch, English, German, and uniquely South African elements. There is much that is unusual about this system, particularly its insistence that a person does not act with the guilty mind that criminal responsibility requires unless he or she subjectively appreciates the unlawfulness of his or her conduct. True mistakes of law are thus always exculpatory in South Africa, even if they are unreasonable or unavoidable. Equally unusual—and equally subjectivizing—is South African criminal law's concept of non-pathological incapacity, according to which mental disturbance that falls short of insanity can negate not only the mens rea of a criminal offense but also criminal capacity itself. A number of courts have relied on non-pathological incapacity to acquit defendants who committed serious crimes because of intoxication, provocation, or emotional stress.

Although modern Spanish criminal law dates back to the reform movement of the late eighteenth century—and is thus deeply influenced by Cesare Beccaria's seminal work Of Crimes and Punishments (1764)—the current penal code was enacted only in 1995. There are a number of interesting features of Spanish criminal law, such as its categorical rejection of strict liability and its willingness to acquit individuals who use disproportionate force in self-defense. The most interesting aspect, however, has to be the right of victims to pursue civil claims against a defendant within a criminal proceeding. As Carlos GómezJara Díez and Luis E. Chiesa explain, As private prosecutors, the victims not only charge the defendant with the commission of an offense but also seek monetary relief through restitution, compensation, or indemnification. Indeed, Spanish criminal law provides victims with an incentive to litigate civil and criminal claims simultaneously, because civil courts cannot award damages to victims until a criminal court has determined that a crime was committed.

The criminal law of the United Kingdom is perhaps the most common-law of all the common-law systems: although efforts to codify English criminal law have led to the adoption of a number of important statutory reforms, such as the Theft Act 1968 and the Sexual Offences Act 2003, the vast majority of rules relating to the general part of the criminal law remain governed by the common law and therefore by judicial decisions. The lack of a comprehensive criminal code explains, at least in part, what Andrew Ashworth describes as English criminal law's shadowy engagement with the principle of legality; indeed, as late as 1962 the House of Lords was willing to convict a defendant of conspiracy to corrupt public morals even though he could not have known at the time that such a crime existed. More recently, however, that shadowy engagement has begun to blossom into open marriage—the result of Parliament's decision to enact the Human Rights Act 1998, which incorporated the European Convention on Human Rights (ECHR) into English law. The principle of legality enshrined in article 7 of the ECHR has transformed English courts’ approach to determining the ambit of common-law offenses, and the ECHR has had a significant impact on English criminal law in general, such as leading courts to read down reverse burdens of proof for many defenses into more easily discharged evidentiary burdens. However, on more than one occasion English courts have resisted giving the ECHR domestic effect—upholding, for example, the conviction of a fifteen-year-old boy of raping a child, the most serious child sex offense in English criminal law, despite the fact that such a conviction would almost certainly be impermissible under the ECHR.

The defining feature of criminal law in the United States, in Paul Robinson's account, is that there is no such thing as American criminal law: there are fifty-two American criminal justice systems—the fifty states, the federal system, and the District of Columbia—and each is different from the others in some way. The fragmentation of criminal law in the United States has been minimized somewhat by the promulgation of the 1962 Model Penal Code: a number of states have adopted the Code wholesale, with only minor revisions, while other states have used it to provide the style and form for their statutory (re) codifications. Other states, however, have yet to adopt a modern criminal code, and all efforts to reform the federal code over the last four decades have failed miserably, meaning that the federal code is not significantly different in form from the alphabetical listing of offenses that was typical of the original American codes in the 1800s. However, modern state criminal codes are remarkably comprehensive, with detailed general and special parts that are designed to include a comprehensive and self-contained statement of all the rules required to adjudicate all criminal cases.

The Rome Statute of the International Criminal Court was adopted in 1998 and entered into force in 2002. The Rome Statute has been described as a major step forward for substantive international criminal law, and with good reason: unlike the minimalist statutes of earlier international courts, such as the Nuremberg Tribunal, the ICTR, and the ICTY, the Rome Statute provides detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility. The Statute thus represents the international community's most ambitious attempt to create a special and general part of international criminal law. How successful that attempt has been remains to be seen: as Kevin Jon Heller explains, the Rome Statute is based on a complicated and often-unstable hybridization of common law and civil law that leaves open as many questions—including fundamental ones, such as the meaning of intent—as it answers.

Rather than present an album of postcards from faraway, and not-so-faraway, criminal law places, never mind an encyclopedic overview of World Criminal Law, this Handbook aims to provide a diverse selection of criminal law systems designed to stimulate comparative analysis. The authors of each chapter were asked to address a common set of topics to ensure reasonable comprehensiveness and facilitate comparison among chapters (and systems). At the same time, the list and order of topics were designed to allow for maximum flexibility. Conceptual rigidity is not only inconsistent with the very idea of comparative analysis, but also may result in formulaic summaries that are neither accurate nor particularly interesting. Instead, contributors were encouraged to write the sort of essay they would like to read about an unfamiliar criminal law system. The contributors are not necessarily comparativists by trade; they are leading criminal law scholars who portray a given (their) criminal law system with a comparative sensibility (i.e., with an eye to facilitating comparative criminal law research).

General principles of criminal liability (the general part of criminal law) receive greater attention than detailed definitions of specific offenses (the special part), which differ considerably, but not necessarily interestingly, from jurisdiction to jurisdiction. In the special part, coverage is largely limited to key offenses like homicide, theft, rape, and victimless crimes.

Although specific topics for fruitful comparison will emerge from perusing the rich and varied contributions to this Handbook, some promising issues may include the rationales for punishment (and other sanctions, or measures), the scope and shape of the legality principle (nulla poena sine lege), the role and design (and existence) of criminal codes, the general structure of the analysis of criminal liability (and the related question of the distinction between justifications and excuses), accounts of mens rea (including the distinctions between dolus and culpa, and between intent and recklessness or negligence), and—in the special part—the scope of criminal law and the sorts of interests and rights the criminal law is designed to protect (Rechtsgüter), as well as the continued relevance, if any, of the distinction between common law and civil law systems or, relatedly, the influence of so-called Anglo-American criminal law, on one hand, and of German criminal law, on the other. Different readers, and different readings, will reveal different points of similarity and contrast, producing an image of convergence or divergence depending on one's point of view and point of focus.

NOTES

1. The pedagogic potential of comparative criminal law is explored in Richard S. Frase, Main-streaming Comparative Criminal Justice: How to Incorporate Comparative and International Concepts and Materials into Basic Criminal Law and Procedure Courses, 100 West Virginia Law Review 773 (1998); Markus D. Dubber, Criminal Law in Comparative Context, 56 Journal of Legal Education 433 (2007).

2. See Markus D. Dubber, The Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005).

3. 4 William Blackstone, Commentaries on the Laws of England 162 (Chicago: University of Chicago Press, 1979) (1769); see also Jean-Jacques Rousseau, Discourse on Political Economy, in On the Social Contract with Geneva Manuscript and Political Economy 209, 209 (Roger D. Masters ed. & Judith R. Masters trans.) (Boston: Bedford Books, 1978) (1755) (political economy derived from "oikos, house, and nomos, law, extending the wise and legitimate government of the household for the common good of the whole family to the government of the large family which is the State").

4. P. J. A. Feuerbach, Anselm Feuerbachs kleine Schriften vermischten Inhalts 163 (1833).

5. For an attempt to implement this approach, see Markus D. Dubber and Mark Kelman, American Criminal Law: Cases, Statutes, and Comments, 2d ed. (Foundation Press Thomson/West, 2009).

6. Vergleichende Darstellung des deutschen und ausländischen Strafrechts: Vorarbeiten zur deutschen Strafrechtsreform, 16 vols. (1905-1909).

7. See, e.g., R. v. Martineau, [1990] 2 S.C.R. 633 (England, New Zealand, Australia, United States).

8. George P. Fletcher, Rethinking Criminal Law (Little, Brown, 1978); see, e.g., R. v. Perka, [1984] 2 S.C.R. 232.

9. For a broader comparative analysis, see BVerfG, 2 BvR 392/07 (26 Feb. 2008) (German Constitutional Court judgment relying on study of criminal incest laws in twenty Anglo-American, European, and other non-European jurisdictions, prepared by the Max-Planck-Institute for Foreign and International Criminal Law, Freiburg, Germany). The U.S. Supreme Court, to put it mildly, has less enthusiastically embraced comparative analysis in its constitutional criminal law jurisprudence, although this has begun to change. See, e.g., Lawrence v. Texas, 539 U.S. 558, 573, 576 (2003) (discussing European Court of Human Rights [ECtHR] jurisprudence); Atkins v. Virginia, 536 U.S. 304, 317 n. 21 (2002) (considering attitude of world community toward execution of mentally retarded offenders).

10. Prosecutor v. Delacic et al., Case No. IT-96-21-A, Judgment (16 Nov. 1998).

11. Prosecutor v. Akayesu , Case No. ICTR-96-4-T, Judgment (2 Sept. 1998).

12. See also ECtHR, M.C. v. Bulgaria, Appl. Nr. 39272/98, paras. 88-100 (4 Dec. 2003) (comparative analysis of European rape law).

13. See, e.g., George P. Fletcher, The Grammar of Criminal Law: American, Comparative, and International, vol. 1: Foundations (Oxford University Press, 2007).

14. P. J. A. Feuerbach, Versuch einer Criminaljurisprudenz des Koran, 2 Bibliothek für diepeinliche Rechtswissenschaft und Gesetzkunde 163, 164 (1800).

15. See generally Barry Wright, Macaulay's Indian Penal Code: Historical Context and Originating Principles, in A Model Indian Penal Code (forthcoming 2011); see also Sanford Kadish, Codifiers of the Criminal Law: Wechsler's Predecessors, 78 Columbia Law Review 1098, 1106-1121 (1978).

ARGENTINA

Marcelo Ferrante

Marcelo Ferrante is Professor of Law at the Universidad Torcuato Di Tella. His recent publications include Causation in Criminal Responsibility, 11 New Criminal Law Review 470 (2008), and Recasting the Problem of Resultant Luck, 15 Legal Theory 267 (2009).

In writing this chapter I have benefited from the assistance of Guillermo Orce, who wrote first drafts for sections II.A and II.B.3.iii and edited the notes and the selected bibliography. Many thanks to him. I would also like to thank Gustavo Bruzzone, Luis María Bunge Campos, Fernando Córdoba, Leonardo Filippini, Roberto Gargarella, Hernán Gullco, and Pablo Parenti for helpful comments during the preparation of this chapter. The selection of judicial cases I include in this chapter has been influenced by Gullco's selection in Hernán V. Gullco, Principios de la parte general del derecho penal: Jurisprudencia comentada (Buenos Aires: Editores del Puerto, 2006).

I. Introduction

A. Historical Sketch

B. The Constitution and the Criminal Law (Judicial Review and Juries)

C. Jurisdiction

D. Legality Principle

II. General Part

A. Theories of Punishment

B. Liability Requirements

C. Defenses

III. Special Part

A. Structure

B. Homicide

C. Sex Offenses

D. Property Offenses

I. INTRODUCTION

A. Historical Sketch

Argentine criminal law, as we now conceive of it, began in the second half of the nineteenth century with the first attempts at enacting a criminal code under the 1853 constitution.¹ The centerpiece of current Argentine criminal law is the Criminal Code (the Código Penal, or CP), which was enacted by the federal Congress in 1921. The 1921 code put an end to a long period of debates over criminal law reform that the constitution had mandated almost seventy years earlier.

That period had begun with public discussion—within both the federal Congress and the provincial governments—of the first official draft of a national criminal code. This first draft, known as the Tejedor Code after its author, jurist Carlos Tejedor, was heavily influenced by the Bavarian Criminal Code of 1813 drafted by Anselm Ritter von Feuerbach. A deeply modified version of the Tejedor Code was finally enacted as the first national criminal code in 1887. Once enacted, the code underwent several reforms and amendments—typically in the form of special criminal statutes—in only a few years. It seemed that the constitutional ideal of unified legislation through the adoption of stable codes had yet to be achieved. Several alternative criminal codes were thus proposed in those years to the Congress and the executive to replace the 1887 criminal code. One of them, the 1891 Criminal Code Draft, eventually led, in 1903, to an important reform of the 1887 code. The 1891 draft had been influenced primarily by the Italian Criminal Code of 1889, also known as the Zanardelli Code after the then Italian minister of justice, Giuseppe Zanardelli. The code that the Congress enacted in 1921, often referred to as the Moreno Code after Rodolfo Moreno (h), the congressman who led the drafting and enacting process, was meant to capture in a simple and pragmatically oriented text the basics of the Tejedor Code and the 1891 draft.² Unlike its immediate antecedents, it was the work of no individual drafter, but the result of a collective drafting process that managed to engage representative members of the different groups whose conflicting views had contributed to the instability of the previous legislative attempts (i.e., scholars with conflicting legal approaches, practitioners, and judges and other officials).

As its salient antecedents suggest—especially the Bavarian Code of 1813 and the Zanardelli Code—the 1921 code (the CP) falls within the liberal codification tradition of the nineteenth century. It is brief and relatively simple. It established a simple regime of sanctions, comprising primarily imprisonment³ and secondly fines and incapacitation to perform certain activities (like holding official positions or exercising a given profession). The CP indeed marks the abolition of capital punishment in Argentine criminal law.⁴ In general, prison terms in the CP were comparatively mild, with a maximum prison term of 25 years—only after a 2004 reform could the maximum imprisonment time mount up to 50 years in the case of the commission of a plurality of crimes (article 55). It introduced a regime of conditional convictions for first-time offenders (articles 26-28) and of freedom on parole (or conditional freedom) for the last third of the sentence (articles 13-17). Its general part was written with a pragmatic eye; besides adopting general rules for the application of the criminal law, including a statute of limitations, it included only a narrow set of simple rules of responsibility, avoiding definitions that might have shown commitment to a particular theoretical position. In particular, it included a list of substantive defenses (article 34), rules of attempt liability (articles 42-44) and of accomplice liability (articles 45-49), and a few rules for the aggregation of convictions and sentences (articles 54-58).

The special part of the CP contained fewer than 250 rules defining crime types and affixing sanctions—typically ranges of punishment, with legal minima and maxima (e.g., from 8 to 25 years’ imprisonment for criminal homicide, article 79). Crime types are ordered by the kind of interest affected, starting with personal life and following with bodily integrity, honor or reputation, personal status and identity, basic freedoms (like freedom from sex abuses, freedom of movement, and freedom from intrusion in one's home and other protected places), property, public safety, political order, and other public goods (such as those secured by legal currency and other documents).

The CP is still the centerpiece of Argentine criminal law. In the meantime it has undergone many relatively marginal reforms and amendments,⁵ which in the aggregate have introduced complexity in an otherwise relatively simple text, often affecting the code's systematicity—especially by altering its punishment schedule. To cite just one example, possessing explosives is now subject to higher penalties (5 to 15 years’ imprisonment, article 189 bis) than making those same explosives explode and thus risking or actually destroying goods or even endangering another person's life (3 to 10 years’ imprisonment, or up to 15 years in case of risk of death, article 186). In addition, many special statutes containing criminal clauses—typically introducing new crime types—have been passed in the ninety years since the adoption of the CP.⁶ All in all, the CP still rules the basics of the general principles of criminal liability, the definition of most core crimes, and the punishments affixed to them.

B. The Constitution and the Criminal Law (Judicial Review and Juries)

Argentine law is based on its 1853 written constitution, which was modeled after the U.S. Constitution.⁷ Very roughly, the Argentine constitution is a nineteenth-century liberal constitution, establishing a government in three branches—though more biased toward the executive than its American model—and a strong set of individual rights of liberal and republican lineage. Laws are passed primarily by the federal Congress, and in the legal domains of common jurisdiction (i.e., civil, commercial, labor, and criminal law) it has done so (observing a constitutional mandate) by adopting national codes. Argentine law thus combines an American-like constitutional law with nonconstitutional legal codes of a civil law tradition.

As is the case under its American model, Argentine constitutional law establishes a system of diffuse judicial review, under which each and every judge, in any judicial case, has the power to evaluate the constitutionality of the applicable law and to refuse to apply it if it is found unconstitutional. My impression is that there have been only a few sustained declarations of unconstitutionality in the domain of substantive criminal law during Argentine constitutional history. Part of this story may be due to a kind of resistance of the courts to declare statutes unconstitutional.

This resistance may be exemplified by introducing another feature of Argentine criminal law that is worth comment. Criminal trials are conducted before professional, life-tenured judges, appointed either by the national government through a complex process in which the three government branches intervene or by a provincial government through variable processes.⁸ In striking contrast with this practice, the constitution states that every criminal trial…shall be decided by juries (article 118). Indeed, under the constitution, an express constitutional task of the Congress is that of promoting the establishment of the trial by juries (article 24) by adopting the statutes that such a task may require (article 75, section 12). However, after more than 150 years of constitutional life, no such statute has ever been passed, although many have been proposed. From time to time a criminal case appears in which the defendant moves for a dismissal on the ground that he or she has a constitutional right to be judged by a jury rather than by the professional judge who is hearing his or her case. Courts have invariably rejected such motions, typically on the argument that there is no operational constitutional right to be judged by juries; the constitution has placed no term, and therefore, the argument goes, it is for the Congress to determine the proper time to reform criminal procedures by adopting a regime of trial by juries.⁹ That courts are prepared to make this argument even today, after more than 150 years of congressional inactivity on this issue, I take to be a peculiar feature of Argentine practice of judicial review.¹⁰

C. Jurisdiction

Argentine criminal law is territorial. As affirmed in article 1, section 1, of the CP, the code is applicable to crimes committed, or whose effects should occur, within Argentine territory, which is conventionally understood to comprise land, jurisdictional waters, and airspace, Argentine boats navigating on international waters, and Argentine aircraft flying through international airspace.

There are two legal exceptions to territorial jurisdiction. The first exception is afforded by article 1, section 2, of the CP: Argentine criminal law is applicable to crimes committed by Argentine official agents or employees while discharging their official duties outside Argentine territory. The second exception is provided by article 118 of the constitution, which claims federal jurisdiction over crimes committed beyond the borders of the Nation, against the Law of Peoples, a clause that is understood as a constitutional commitment to universal jurisdiction for international law crimes.¹¹

Another jurisdictional feature that should be of interest has to do with federalism. Argentine constitutional distribution of power between the federal government, on the one hand, and the provinces, on the other, is such that it gives the federal government the task of legislating on substantive issues—including the adoption of, among other codes, a criminal code—while leaving to the provinces the tasks of legislating on procedural issues and of interpreting and applying the substantive laws adopted by the national government. Thus, even though there is only one criminal code that is applicable in every province, there may be as many interpretations of it as there are provinces—but no more than that, because each of the twenty-four provinces has procedural mechanisms to unify the interpretation of the substantive law within the provincial jurisdiction.¹² The impact of this decentralization of the interpretation of a common code has proved less dramatic than it could have been. Still, there are interpretive differences from jurisdiction to jurisdiction, especially in the realm of the special part of the criminal law. For example, under article 163, section 6, of the CP, the misappropriation of vehicles left on the street or other places of public access is an aggravated form of theft. Within some jurisdictions a bicycle amounts to a vehicle as this term figures in article 163, section 6, whereas in others only motor vehicles count as vehicles in the legal sense, on the theory that this was the original meaning of the statute.¹³

D. Legality Principle

Like any other criminal law that is governed by a liberal constitution, Argentine criminal law is subject to the so-called principle of legality. Indeed, the constitution provides for legality together with other liberal guarantees of mostly procedural nature in the first clause of article 18, which states that no one shall ever be punished without a prior trial based on a statute that is itself prior to the facts of the case on trial. Courts—especially the Supreme Court—have interpreted this clause of the constitution as encompassing essentially four doctrines: (i) the prohibition of ex post facto criminal laws (the lex praevia requirement); (ii) the prohibition of criminal law sources other than statutes passed by the Congress (the lex scripta requirement); (iii) the void-for-vagueness doctrine (the flip side of the lex certa requirement); and (iv) the requirement of strict judicial construction (the lex stricta requirement). (International treaties on human rights signed by the government during the twentieth century, which have constitutional status since a 1994 constitutional reform, have given textual support to some of these doctrines that the courts had previously inferred only from article 18’s nonretroactivity clause.)

These four doctrines do not have the same weight. The judicial practice appears to be that whereas the lex praevia requirement is as strict as a rule (a rule, that is, with one exception: the retroactivity of more lenient laws), the other three doctrines work as more or less weak principles that compete with other considerations on a case-by-case basis.

The case Arancibia-Clavel is revealing. Defendant Arancibia-Clavel was convicted on murder and conspiracy charges in 2000. He had been an official of the Chilean dictatorship working in Argentina with the support of the local government—his work being kidnapping and murdering opponents of the Chilean dictatorship. The facts of the case had taken place between 1974 and 1978, far beyond the maximum fifteen-year term of the statute of limitations.¹⁴ The court, however, considered the crimes committed by Arancibia-Clavel to be crimes against humanity according to international law and therefore not subject to statutory limitations. The defendant appealed on the claim (among others) that at the time of commission his crimes were subject to the statute of limitations of domestic law—the Argentine Congress approved the International Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity only in 1995. Before that date there was only an unqualified statute of limitations, with no exception made for crimes against humanity. The Supreme Court ultimately affirmed the conviction on the argument that, in holding the statute of limitations inapplicable to the crimes committed by Arancibia-Clavel in the 1970s, the trial court could not validly have applied the 1995 statute approving the International Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity because that would have amounted to an unconstitutional retroactive application of a criminal statute. The statute of limitations was nevertheless inapplicable to the case, the Supreme Court held, in virtue of international law (mostly of nonconventional nature) that was binding on Argentina already in the early 1970s.

The Arancibia-Clavel case exemplifies two aspects of the Argentine lex praevia requirement that I think are worth emphasizing. The first aspect concerns the requirement's scope. Although Argentine courts have denied that the requirement applies to merely procedural criminal law, they have classed statutes of limitations as nonprocedural criminal law to which the requirement does apply. Thus, in contrast to prevailing American and European case law, Argentine case law is such that the lex praevia requirement bars the retroactive extension of the term of a statute of limitations even in cases where the prior limitation term has not expired at the time when the extension is approved.

The second aspect relates to the weight of the lex praevia requirement in comparison with the rest of the legality doctrines. Courts are unwilling to tolerate exceptions to the lex praevia requirement, other than the legally established exception for more lenient criminal laws,¹⁵ but they are open to considering deviations from the other requirements. Indeed, in cases like Arancibia-Clavel and other comparable cases¹⁶ courts take pains to find what the law was at the time of commission, suggesting that there is no room for a judicial exception to the ban on ex post facto criminal laws, while they accept that what counts as the law may be norms other than statutes passed by Congress—for example, international nonconventional law—and hence deviate from the lex scripta requirement.

Deviations from the lex scripta requirement are also found in domains other than the prosecution of crimes against humanity and can be based on reasons other than those related to the Argentine constitutional commitment to international criminal law. They are indeed commonplace in the domain of what we may call regulative criminal law, where the Congress passes blanket criminal statutes—that is, statutes providing for legal punishment for more or less undefined kinds of conduct and delegating to a different authority (typically a regulatory agency in the executive branch) the task of defining the punishable kind of conduct to which the punishment will be affixed. Two examples of this practice are the Drugs Act, in which the Congress delegated to a public health agency within the executive branch the definition of the substances that count as illegal drugs,¹⁷ and the Criminal Exchange Act (Regimen Penal Cambiario), in which sanctions up to 8 years of imprisonment are set for any act or omission infringing the [executive] regulations on money exchange.¹⁸ In upholding blanket statutes of this kind, Argentine courts reveal that the democratic reasons that give support to the lex scripta requirement compete with, and are outweighed by, the reasons that militate in favor of legislative delegation in many, typically technical, fields.¹⁹

There is a similar trend in case law on the lex certa requirement. There seems to be no Supreme Court ruling invalidating a criminal statute on the grounds that its language is vague. Every time a claim that a statutory definition is vague has arrived at the Supreme Court, the court has upheld the statute, arguing that a degree of vagueness in legal language is inescapable, and that it is the business of courts to specify its meaning through interpretation.²⁰ (When a petition of void for vagueness did prosper—only in low-level courts—it did so together with other, stronger objections, like the fact that the statute criminalized harmless actions or a character trait or personal status, or it had been passed by a government department lacking authority.)²¹ Again, then, the reasons to allow courts room to interpret more or less vague legal language have proved to outweigh the reasons grounding the lex certa requirement.

A final remark should be made on the local application of the doctrine of strict judicial construction, or the lex stricta requirement. There are two contrasting views in comparative criminal law on the lex stricta requirement. Both views yield different prescriptions in the scenario in which the language of a statute defining a criminal act is such that it is unclear whether a given case falls under the legal definition. According to the first view, the court should not apply the statute to the case—criminal law, according to this view, applies only when there is no doubt that the Congress approves of its application, as follows from the language of the law. According to the second view, the court should interpret the law and find out whether the unclear case should fall under the statute, in which case it should apply the statute to the unclear case. Under this second view, the lex stricta requirement allows for an extensive construction of the law and bars only its analogical application, which means the application of a statute to a case that clearly does not fall under the language of the legal definition but should be treated alike on normative grounds. Argentine criminal courts and scholars massively assume that the second view is true.

II. GENERAL PART

A. Theories of Punishment

According to the CP, there are only four types of punishment—two forms of incarceration (reclusion and prison), fines, and the deprivation of rights related to the activity through which the crime was committed (e.g., withdrawal of driving or professional licenses, or incapacitation to hold public official positions). The two forms of incarceration, reclusion and prison, were intended to express a difference in seriousness that manifested itself in the kinds of treatments inmates received under either one. Reclusion, purportedly the harsher of the two, involved somewhat longer incarceration terms and in distant facilities, whereas prison involved incarceration in a local facility. Reclusion was also meant to have a shaming dimension that prison would not have.²² As a matter of fact, however, reclusion and prison sentences have long been indistinguishable—incarceration at an available correctional facility and under a unified punitive treatment.

Still, the CP includes a number of rules that presuppose a difference between the two forms of incarceration. Thus legal privileges regarding freedom on parole,²³ conditional conviction,²⁴ and the discounting of time spent under pretrial detention²⁵ vary from one form of punishment to the other, making things worse for those subject to sentences that the sentencing court happens to label reclusion rather than prison. In a recent case the Supreme Court affirmed a decision by a sentencing court that had declared unconstitutional the application of one of these rules. In its ruling the Supreme Court stated that because current law on the administration of incarceration sentences makes no distinction of kinds of incarceration, the older CP distinction between prison and reclusion should be considered virtually abrogated, and with it all the aggravated conditions affixed to reclusion sentences.²⁶

After conviction, courts ought to enter a determinate sentence falling within the legal minima and maxima established in the applicable criminal statute—say, between 8 and 25 years’ imprisonment for criminal homicide (article 79 CP); between 6 months’ and 4 years’ imprisonment for a minor sexual abuse, 4 to 10 years for aggravated sexual abuse, and 6 to 15 years for rape (article 119 CP); between 1 month's and 2 years’ imprisonment for nonaggravated larceny (article 162 CP); between 1 month and 6 years for nonaggra-vated robbery (article 164 CP); and the same for the basic forms of swindling and embezzlement (articles 172 and 173 CP). Only occasionally does the code mandate life imprisonment, most saliently for murder (article 80 CP).

The CP makes an exception to the requirement of a determinate sentence in article 52, which mandates an additional reclusion for an indeterminate period of time for multi-recidivists having four previous sentences (one longer than 3 years) or five previous sentences of any length. (Temporally indeterminate reclusion is mandatory, although courts may once suspend it if there are circumstances that make indeterminate reclusion inconvenient.) Temporally indeterminate reclusion amounts to life imprisonment, with the chance of being released on parole only after 5 years since the expiration of the last prison term to which the convict had been sentenced.²⁷ In a recent decision, however, the Supreme Court reversed a decision that had imposed temporally indeterminate reclusion on a multirecidivist defendant who had otherwise been sentenced to 2 years’ imprisonment for attempted robbery.²⁸ In a nutshell, the court argued that, lacking proportion to the crime for which the defendant had been convicted, the imposition of indeterminate reclusion—a sort of life imprisonment under another name—was unconstitutionally cruel.

In addition to the regime of sanctions, the CP includes a regime of what have traditionally been called safety measures.²⁹ Briefly, this term means some sort of confinement in mental institutions of mentally insane defendants who are acquitted by reason of insanity.³⁰ Safety measures do not follow automatically from insanity acquittals; they require a court finding that the defendant poses a danger for himself or others. In line with that requirement, confinement should not be merely incapacitating but should involve rehabilitative treatments addressed to counteract the condition that justifies the confinement (i.e., the condition grounding the court finding of dangerousness). Also, although there is no time limit for safety measures of this sort, they must cease when that condition disappears.³¹

Rehabilitation or resocialization is the main, legally stated goal of imprisonment sanctions. The source of this legal goal lies in the texts of the International Covenant on Civil and Political Rights (article 10, section 3) and of the American Convention on Human Rights (article 5, section 6), both with constitutional status by virtue of article 75, section 22, of the constitution. Accordingly, the Imprisonment Administration Act of 1996 organizes incarcerative sanctions that expressly track this goal.³²

The rehabilitation-organizing goal, however, is of limited force. Under the rehabilitation goal, incarceration is conceived of as a way to administer to inmates some kind of treatment (e.g., psychological, medical, social) that would somehow help them steer clear of criminal activity. However, sensitive to weightier constitutional values, article 5 of the Imprisonment Administration Act affirms that submission to such rehabilitative treatments is not mandatory—according to the Act, only norms regulating coexistence, discipline, and work are mandatory within correctional facilities. Thus, under the Act, there is room for nonrehabilitative imprisonment because, when inmates refuse treatment, imprisonment obviously continues, even though in such cases rehabilitation may no longer play any orga niz ing role.

Furthermore, inmates are subject to determinate prison terms, fixed by the sentencing court after conviction. They are released when the prison term determined by the sentencing court expires, rather than when the rehabilitation treatment to which they might have submitted comes to successful completion. In other words, punishment ends, and the convicted person is released, when the time comes, independently of whether resocialization has already been achieved or not.

There is also an apparent inconsistency between the rehabilitation goal and rules mandating life imprisonment, most notably for types of murder crimes (article 80 CP). It is meaningless to claim a resocialization purpose for a sanction that implies removing the convict from social life once and for all. Because the rehabilitation goal has constitutional status, this point would suggest an argument for the unconstitutionality of life imprisonment. The customary answer to this argument stresses the fact that convicts sentenced to life imprisonment may apply for freedom on parole after 35 years in prison,³³ and that hence life imprisonment is just long imprisonment as a matter of fact. (This answer is, however, weakened by the fact that release on parole ultimately rests on a court's discretion.)

A similar argument applies, of course, to the use of death penalty. The death penalty, however, is banned in Argentine law on independent grounds. Article 18 of the 1853 constitution declared the abolition of the death penalty for political reasons, as well as the use of torture. As I mentioned earlier, capital punishment for regular (i.e., nonpolitical) crimes continued on the books until the enactment of the CP in 1921. It was reinstated during two short periods (1971-1972 and 1976-1983)