ARGENTINA: SUPREME COURT RULES FOR LIMITED

UNCLAS BUENOS AIRES 000982

SENSITIVE
SIPDIS

DEPARTMENT FOR WHA/BSC AND INL/LP HOOKER

E.O. 12958: N/A
TAGS: SNAR PREL KCRIM PGOV AR
SUBJECT: ARGENTINA: SUPREME COURT RULES FOR LIMITED
DECRIMINALIZATION OF NARCOTICS FOR PERSONAL USE

REF: Buenos Aires 0811


1. (U) Summary: As anticipated for many months (reftel),the
Argentine Supreme Court ruled August 25 against criminal penalties
for the personal possession of marijuana in a case involving five
young adults arrested with marijuana cigarettes in 2006. The court
ruling appears to open the door to decriminalization of personal
possession of other drugs as well. The justices restricted
decriminalization to cases involving small amounts, in which no
third party is harmed, and in which the possession occurs in a
private place. They called on the Government to make changes along
these lines to national drug laws and also to increase resources for
treatment and for fighting traffickers. Reaction by the church,
center-right political leaders, some pro-government provincial
leaders, and several commentators was critical, focusing on the
negative message the decision would send to youth and on the
difficulties it might cause for law enforcement efforts against
traffickers. Within Government, moreover, there remain concerns
about the effects of decriminalization. End Summary.


2. (U) As had been long anticipated based on statements to the press
by individual Supreme Court Justices, the Supreme Court ruled August
25, in a unanimous seven vote decision, to acquit five young adults
arrested in 2006 after purchasing marijuana cigarettes from dealers.
(Note: In 2008, a lower court upheld the convictions of the three
dealers also arrested in the case. The Supreme Court ruling did not
touch their convictions, signaling that the GOA continues to
prosecute dealers and traffickers. End Note) The ruling, if applied
broadly, may decriminalize personal possession of any narcotic (not
only marijuana) in cases where the use is private and individual and
where no third parties are harmed. (Note: Precedent in the
Argentine legal system is not as clearly defined as it is in the
United States, and cases involving other drugs may have to be
considered individually by lower courts and then again by the
Supreme Court. End Note)


3. (U) In explaining the ruling, Court President Lorenzetti went far
in marking a sphere of personal freedom from state authority, saying
that the Court recognized that "every adult is sovereign to take
free decisions about the way in which they live." The Justices
pointed to Article 19 of the Argentine Constitution, guaranteeing
personal liberties, to support the ruling. Justice Carlos Fayt
emphasized his view that the ruling indicated that the solution to
drug abuse lay through treatment rather than sanctions, while
Justice Raul Zaffaroni gave attention to an "enormous expense of
effort, time and money by law enforcement against insignificant"
cases of possession. Justice Enrique Petracchi and others called on
the state to increase efforts against traffickers and to find
additional resources for prevention and treatment of addiction.



4. (U) The justices spoke in broad terms against the current drug
law's emphasis, in its application, on small consumers. Ninety
percent of narcotics cases, they said, had been brought against
small-time users, leading to stigmatization and unjustified
inconveniences against those arrested. Still, the justices
emphasized that to be "not punishable," any use and possession had
to be private and of a small quantity. Justices Fayt and Carmen
Argibay further emphasized that the possession could not be
"ostentatious, that is to say, that the individual has not exhibited
the drug."

Precedent and Application
--------------


5. (SBU) GOA officials, particularly Cabinet Chief Fernandez, have
long made clear their intention to send Congress a legislative
proposal to decriminalize possession of small quantities, and this
court ruling appears to give further impetus to that. At present,
the draft legislation is being developed by a commission of experts
organized by the executive, prior to submission to the Congress.
Until drug laws are changed, police will still be expected to arrest
anyone possessing marijuana or other drugs. Only judges can make a
determination to dismiss a specific case based on the Supreme
Court's ruling and arguments. The Supreme Court's ruling, however,
does appear to apply to drugs other than marijuana, so the ruling
may be quickly challenged or built on in other cases. The ruling
may also have an effect on the willingness of law enforcement to

make arrests in cases involving small amounts of possession. One
citizen quoted in the press pointed to an upside of that, saying
that police officers would request fewer bribes.

Supporters and Critics React
--------------


6. (SBU) The Government's Chief of Cabinet Anibal Fernandez, a vocal
proponent of decriminalization during his previous tenure as
Minister of Justice, Security and Human Rights, praised the court
decision and reemphasized the GOA's intention to fight trafficking.
"It is along the lines of what we have been urging," he said,
"reversing the repressive policies applied by Nixon and then adapted
with such enthusiasm by Lopez Rega" [an Argentine Minister of Social
Welfare in the early seventies blamed for a variety of human rights
abuses], "policies that have not succeeded in reducing cultivation
or consumption, not even by a bit, anywhere in the world." Op-Ed
columnists supporting the Government's position echoed the Court's
statements, saying the country would be better served by an emphasis
on prevention, treatment and law enforcement efforts against
trafficking organizations.


7. (SBU) The new Minister of Justice, Security and Human Rights,
Julio Alak, asked the CDA in an August 27 pull-aside what he thought
the impact of decriminalization might be. Alak said that he would
be interested in any studies showing effects on consumption of
decriminalization measures in other countries. He also requested
information on how small possession offenses are dealt with in the
United States. (Note: Members of post's Law Enforcement Working
Group have begun gathering information along these lines to share
with the Minister; post welcomes additional materials, particularly
Spanish-language documents. End Note)


8. (SBU) Critics of the measure included the Catholic Church's
Pastoral Commission on Addictions led by Bishop Jorge Lozano.
Lozano said that while the Commission understood the reasons behind
the decision, the country would not overcome the "tragedy of drug
abuse, particularly among youth and adolescents," by "facilitating
consumption and by making something that is bad appear to be
acceptable." He focused on the impact in poorer neighborhoods,
arguing that youth would be less reluctant to try marijuana, which
could lead to harder drugs and/or addiction. Another critic, the
presidentially-appointed head of the National Commission for Drug
Treatment and Prevention (SEDRONAR),Jose Granero, also dissented,
arguing that the ruling implied it "was OK to use drugs."


9. Buenos Aires Mayor Mauricio Macri, of the opposition center-right
PRO party, called the Supreme Court's decision an "error." He
linked his critique to the popular concern over rising crime, saying
that drug use was "intimately tied" to delinquency and crime.
Another PRO party leader, national Deputy Eugenio Burzaco, argued
that the decision would diminish law enforcement efforts against
trafficking because most sales occurred in small quantities and the
ruling would make it hard to address these transactions.


10. (U) Prominent Union-Pro Deputy Elect Francisco de Narvaez said
that the ruling would aid traffickers, arguing that "many countries
that have taken this step have had to reverse it later because it
promoted consumption, insecurity, and violence." His Congressional
ticket-mate Felipe Sola said that Argentina was "not prepared" to
manage a decriminalization regimen and that the Justices were not
living in the real Argentina, the "conurbana" of poorer suburbs
surrounding Buenos Aires. From beyond Buenos Aires, reaction
appeared to be mixed but mostly critical, with even some nominally
pro-Kirchner figures like Tucuman Governor Alperovich calling the
decision ill-advised and likely to lead to more consumption.

Comment
--------------


11. (SBU) While GOA leaders and the Supreme Court make a valid
argument over the lack of sufficient resources in Argentina to help
drug addicts, it is not clear that the Supreme Court's ruling will
elicit any real increase in attention to this deficit. In the
meantime, the country will face new law enforcement challenges in
addressing rapidly rising consumption (reftel). We are not
concerned that the ruling will diminish our important bilateral
collaboration against drug trafficking and will make this plain if

asked by press. At the same time, however, the ruling's potential
impact on local demand warrants attention, as does the government's
response in terms of improving its prevention and treatment record.
The request for more information from the Justice Minister gives us
an excellent opportunity to share our views on the subject with a
key GOA decision-maker.

Kelly