ADVANCED TOPICS IN CRIMINAL LAW : SENIOR LEGAL PAPER
PROFESSOR: MATTHEW BIBEN
FROM: SEBASTIAN SAL

DIFFERENT WAYS OF APPROACHING THE WAR ON DRUGS: A COMPARISON BETWEEN ARGENTINA AND UNITED STATES

1) ARGENTINE REGULATION AGAINST DRUG DEALERS

“Argentina faces a growing problem with illegal narcotics, both in the flow of drugs through the country and in domestic consumption. The extent of drug transshipment, consumption, and money laundering is largely an unknown, reflecting a lack of strategic analysis and tactical cooperation among enforcement agencies. The government is actively opposed to drug trafficking and to the sale and consumption of illegal narcotics within the country. Argentina is a party to the 1988 UN Convention. Police and security forces are active in the fight against narcotics. In recent years, police authorities have made seizures of significantly larger drug shipments from major regional narcotics producing countries. Argentine legislation prohibits diversion of precursor chemicals, but actual controls are weak. Government counternarcotics efforts, both in law enforcement and demand reduction, are hampered by restricted budgets and institutional weaknesses. Cooperation with USG authorities continues to be excellent.”

Drug dealers are prosecuted in Argentina under Narcotics Law 23.737 and under Customs Code (law number 22.415), Chapter 1 article 866, which regulates drug smuggling.

The punishment for drugs dealers is different from the punishment for drug users. Drug dealers are considered ordinary criminals – like robbers-. Drug users, on the other hand, are considered specially. They are not only seen as criminals but also as sick people with a chemical dependency.

Both crimes are federal crimes. Federal Criminal Courts have jurisdiction over both types of cases. However drug smuggling cases are different. A special court in Criminal and Financial Matters2 have jurisdiction over these type of crimes.

A detailed explanation of the behaviors that will be punished is provided by Article five of Law 23.737. One can be sentenced to prison from four to fifteen years, without parole, if it is found that an individual: 1) sows or cultivates plants or keeps in his power seeds for cultivating narcotics; 2) produce narcotics; 3) produces or sells narcotics or raw materials in order to produce narcotics or distribute them, transport them or gives narcotics as payment; and 4) sells plants or seeds in order to produce narcotics. It is interesting to note that if one gives narcotics for free possibly one could receive a lower punishment (from three to twelve years in prison)4.

A person could be punished for aiding and abetting in the sell of drugs or if he/she is the financier of the drug business. These added circumstances are called an agravant and entail a fine and a prison term from eight to twenty years.

The punishment would increase from one third of the maximum to half of the minimum in the following circumstances: 1) if the crime was done against a pregnant women or retarded individual or using kids under eighteen ; 2) if the crime was done with violence or fraud; 3) if the crime was done with three or more people in conspiracy; 3) if a public officer is part of the crime; 4) if the crime was done inside or near a school or other places in which young people have sport or social activities and ; 5) if the crime was done by a teacher or someone in charge of children.

Any behavior done in order to promote the use of drugs and the use narcotics with ostentation and public transcendence ( for example a famous person using drugs in a public place) is punishable.

The Custom Code – law 22.415, modified by the law 23.353 – provides in Article 866 that any person who does the behavior described in Articles 863 and 864, smuggling, will be punished from three to twelve years in prison if the smuggling consist of narcotics. This punishment would be increased if your behavior is one of the behaviors described in Article 865 a, b, c, d, and e, or when the quantity of goods introduced to the country is destined for sale inside or outside the national territory.

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