COURT: Court of Appeals in Criminal and Correctional Federal Capital, Room 7 (CNCrimCorr) (Sala7)
DATE: 1986/04/26
PARTIES : Donoso, Alberto P.
2 ª Instance. - Buenos Aires, April 26, 1986.
Considering Argentine law says to all its inhabitants the enjoyment and exercise of the rights and guarantees, stating in the art. 18 of the Constitution the inviolability of the defense at trial, which corresponds to the judiciary to exercise its custody through appropriate forms, rules and times of "due process."
Even the very respectable performance of the functions of the police power of the state can import a lack of such guarantees, because although the risks of living together may cause harm and danger to persons and property, the preventive and even exercise of constitutional rule, can not affect these principles.
course, not always easy, the need protection order with the need to respect personal freedom, without which it could be confusing to mere oppression. Therefore, when the exercise of police power to affect the legal interests of individuals, the judge must consider whether the case submitted to them the objectives of the police power should not yield to the primacy of personal security, or whether Instead it must be made compatible with it, because without any state police power can observe and enforce precisely human rights.
This habeas corpus by the appellant questioned the judge's ruling grade. No doubt the injuries result from Failure to observe issues detrimental to the supremacy of constitutional order. But, in this regard is worth noting that the rule invoked to punish the offender, such as how to establish your responsibility institutionalized, are unmistakable signs of a functional excess.
As standard incriminating, however emanate from a legislative act of Congress of Argentina (Law 14,467) it does not comply with the precautions required by the arts. 18 and 19 of the Constitution.
Indeed, the legal rule that applies to Donovan has established a fine or arrest of 15 to 30 days to subjects of crime known as professionals were found hanging around the docks, railway stations or tramway, banks, bus stops, hotels, theaters, cinemas or any place of meeting or public assembly, without just cause.
plain reading of this legal figure shows its incompatibility with Art. 19 of the Constitution, importing a vague indictment does not meet the requirements of "typicality" required by the Constitution to the formulation of "offenses."
First, the reference to the active subject of the offense with the term "professional crime", denouncing the undeniable style totalitarian criminal author law unconstitutional. Necessary, deal with cases such as this, to reiterate many sometimes be necessary in our legal legitimacy is original and that no safe-conducts or permits required to exercise their full freedom under Art. 19 of the Constitution.
any inhabitant therefore be accused of exercising a right, it is a subjective and specific power (art. 14 Constitution, art. 1071, Cod. Civil and art. 34, inc. 4, Code . Procedure, or the general right of reservation contained in the cited art. 19 of the Constitution.
Only, then, by constitutional means incriminating creations can build a list of prohibitions consistent with the Constitution, In the case of crimes or misdemeanors.
But, although the legislature has the widest range of possibilities incriminating different human behaviors can not alter the structures anthology of reality and trying to incriminate that is beyond the means of law.
In this regard, as we teach Von Boling, no one should be punished for what it is, but what it does, a principle that prevents making the human condition, personal, concrete and possible involuntary subject of a criminal sanction.
Indeed, if "being something" concrete and not derived directly from a behavior is unrelated to any constitutional criminality, it goes without saying that less can subjective property be referred to by the decree under review. Since it is not even that someone is something material or legally liable objective and impartial record (age, weight, color ,...) but a vague description - "professional crime" - , and an equally vague epistemological phenomenon "known."
The term "professional crime" is vaguely allusive and closer to the metaphorical statements, which requires precise symbols specificities. Such vagueness leaves the shadows semantic meaning, and it must be found, groping for ways of interpretation ignored.
In fact, nobody knows what that professionalism, since the crime is not a personality style, but an action, which lacks consistency and generality, which are essential to any trade or profession. If what is meant is that the subject had committed crimes in the past, the expression becomes stigmatizing and reveals an anachronistic sense dangerous. mind a gross violation of the principle "non bis in idem" criticized as having committed new wrongfulness others in the past.
If finally only be interpreted is that the aforementioned expression of the edict, means a person for committing crimes in the past in the future commit incurs an unjustified police predictability system that does not seem compatible with the constitutional objectives of punishment, which can not be extended beyond their legal term, nor can it move to the personality of the condemned as a species need to be escorted from redemption and any amendment. Neither the nominated gospel of repentance, nor the purposes of the national prison law authorizing the development of such a trial of danger.
The vague notion that someone on his criminal past becomes classified as a criminal future, not only logical inference is false, but also a way of exercising arbitrary state coercion. Ago more than 60 years Soler whipped in his "Exposition and criticism of the theory of dangerous condition" the various forms of positivist notion is unfounded and claimed the notion of crime as the epicenter of the criminal and punishable legitimate.
Hence the term "professional crime" is a formulation that attacks the constitutional foundations of the Argentine criminal law, for due process transforms a declarative mechanism illegally on a person regardless of the objective finding of a factual reality. The edict, by its semantic imprecision will have meaning only through the discretionary use of a police officer which undoubtedly examined denatured the constitutional guarantee.
such imprecision is not solved because the law in question, through the use of the word "loitering" refers to human behavior, because, in this regard, they fit the following objections:
I. For both the most general sense of moving or walking more specific in wandering homeless people and offices known to live on what they take or offend the term used is still being in effect, "loiter" is the core unconstitutional a type belonging to the so-called "crimes of suspicion."
is not that police officers are aware of what I've done in the past a person, but what specifically do this at present. Clearly, then, that what the offender is not simply the exercise of basic conduct of life which is backed by the constitutional guarantee of art. 14 ("walk") and protecting the principle of reservation of Art. 19.
Furthermore, the Edict leads to unjustified discrimination between those who can roam and those who can not, and as such distinction has no foundation other than the opinion of an official, the decree in question also could adversely affect the principle of " equality before the law "under art. 16 of the Constitution.
Nor
reference to certain places can save the criticism that has been developing since the description of those is all-encompassing, so that there is no place in town that the offender might pose to repressive topography. Since the generic term "any place of assembly" to the strange reference to "bus stops" nowhere is beyond the scope of repression. Because
any inhabitant of the country can move without permission from the authorities in the locations in question, it is clear that the justification for such conduct is sufficiently simple and free decision of the resident wins.
In addition, Donoso has been banned under an edict that violates the provisions of art. 19 of the Constitution in relation to the arts. 14, 16, 18, 28, 31 and 33. Because the procedure established by law 23,098 grants to judge the power to declare the unconstitutionality of its own motion, the court so decides in relation to art. 1, inc. c the police edict on vagrancy and begging. This decision is sufficient reason to justify the habeas corpus requested by the plaintiff, and therefore are outside the decision required the issues relating to arts. 27 and 586 of the Code. Procida. in Criminal Matters. Indeed, even if the penalty had been imposed by a correctional court, the standard would still be unconstitutional, because it would be equally exposed to the objections raised over the ruling. Thus the other rules referred to by the judge in the Fourth grade device of its decision-making, are under review herein, because it is an abstract question.
The above considerations become irrelevant the appellant's grievances, as the penalty imposed on the offender is based, as stated in a violation of the Constitution, which in itself imports a sufficient reason for this court to intervene within limits of habeas corpus and the appeal. In this regard, even the lack of appeal before the correctional court by the offender punished, can prevent the origin of habeas corpus. The supremacy of the Constitution can not be ignored even in the case of a victim's consent (art. 31, Constitution).
Therefore, the court finds: I. To declare the unconstitutionality of art. 1, inc. c of the Edict of vagrancy and begging (ratified by Law 14,467), for violation of Art. 19 in relation to the arts. 14, 16, 18, 28, 31 and 33 of the Constitution, which partially confirmed the decision in the decisive fourth point on appeal. II. Confirm the decision in the devices I and II of fs. 17 / 9, in place makes Habeas corpus sought and provides for freedom of Alberto P. Donoso. III. Confirm the point of decision-making V fs. 17 / 9 in that it imposes costs in the order established in recognition of the explicit provisions in art. 23, para. Act 1, 23,098. IV. Head office to get rid of the Federal Police, Judicial Detention Center U22 and the director of Federal Prison Service, confirming the freedom of Alberto P. Donoso, which must be entered before a judge in criminal cases by the Criminal Court No. 1 of San Isidro, Buenos Aires. - William J. Ouviña. - Joseph M. Piombo. (Sec.: July Sagasta)
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