After a judicial process of more than 6 years, the Superior Court of Justice of Cordoba rejected the action of amparo filed by the Portal de Belén association that objected the guide that regulates non-punishable abortions, confirming its constitutionality and providing its full force.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”.

Background

On March 30, 2012, and following the guidelines of the Supreme Court in the FAL ruling, the government of the province of Córdoba, through the Ministry of Health, approved Resolution 93/12 and the Guide to the care of non-punishable abortions. with the purpose of guaranteeing a fast and safe access to the practice of non-punishable abortions in the provincial public health services.

On April 12 of that year, the Asociación Civil Portal de Belén filed a collective action against the government of the Province of Córdoba. He requested that the ministerial resolution be declared inapplicable as unconstitutional and that the legal figure of non-punishable abortion contained in art. 86 of the Criminal Code. As a provisional measure, he also requested that the suspension of the application of the guide be ordered. The Civil Association for the Right to Decide (Catholics for the Right to Decide) appeared in the case as a third co-defendant in defense of women’s human rights.

The precautionary measure

On April 13, 2012, the first instance judge, Federico Ossola, partially granted the provisional measure requested by Portal de Belén ordering the suspension of the application of the guide, but only for the case provided for cases of violation. On October 3 of the same year, the Third Chamber of Appeals confirmed the precautionary measure.

However, because the application of the Guide was suspended, even in that only case, women and pregnant persons in Córdoba could not access any kind of non-punishable abortion in provincial hospitals, since the judicialization of the protocol generated misinformation in professionals of health and public opinion.

The background: the constitutionality of the resolution and the guide

On the other hand, in the argument for the unconstitutionality of the ministerial resolution (main file), in the judgment of August 24, 2012 Judge Ossola ruled in favor of the constitutionality of the resolution and the procedures provided by the guide, but he questioned the presentation of an affidavit of the rape victim to access the abortive practice without other collection. He argued that, being an exception, the sworn statement was insufficient to guarantee that punishable abortions are not committed. In May 2013, the Appeals Chamber held that the resolution and the guidance were unconstitutional for contradicting local public law.

In May 2014, the file was sent to the Superior Court, which had to decide on the constitutionality, conventionality and application of the ministerial resolution and the non-punishable abortion care guide. In 2016, on the second occasion that the Court arranged for it, FUNDEPS presented itself as amicus curiae together with other organizations supporting the defense of the sexual and reproductive rights of the women of Córdoba and contributing arguments of international human rights law.

Sentence

The Superior Court of Justice considered that there was no judicial case that allowed it to examine the constitutionality of Resolution No. 93/12, since Portal de Belén had only raised a “mere subjective discrepancy” with the provisions of the Criminal Code in the art. 86, which grants exceptional permission to abort without punitive consequences for women.

He considered that Portal de Belén wanted the State to ignore said article, based on “the only support of his personal opinion“, with the aspiration that “the Province does not recognize the authorization or permission recognized by the basic law to every woman victim of a violation (according to the interpretation made by the CSJN), which would imply establishing a prohibition-against legem-where criminal law does not institute it. “

The majority vote, dictated by Aida Tarditti, Domingo Sesin, Mercedes Blanc de Arabel and Silvana María Chiapero, gave rise to the cassation appeal promoted by the Province and revoked the judgment of the House that had declared the ministerial resolution unconstitutional. Consequently, it rejected the amparo action promoted by Portal de Belén, which sought what the Chamber had resolved at the time, a decision that has now been annulled, so that the resolution remains fully valid.

In summary, he concluded that there is no collective judicial case in the terms proposed by Portal de Belén for the following reasons:

1) The National Legislative Power is the only one with competence to sanction substantive norms with general reach and has already resolved the constitutional dilemma between fundamental legal rights at stake that involves any violation that leads to the victim’s pregnancy through art. 86, subsection 2, of the Criminal Code. The same can be said when the interruption of pregnancy is enabled if there is danger to the life or health of the woman (Article 86, paragraph 1, of the Penal Code).

2) It is not possible to address the analysis of the guide without first doing the same with regard to the Criminal Code that serves as support for the guide, which far exceeds the procedural margins of an amparo. But, also, because this would mean republishing what has already been resolved in the case “F., A. L.” by the Supreme Court.

3) It is not possible to collectivize, in block, non-transferable situations in their configuration and significance without affecting the personal rights of the victims of said unlawful act.

4) An indivisible collective good is not at stake, nor can one hypothesize about how each woman could react and decide about the possibility provided by article 86, paragraph 2. That is why there is no collective legitimacy with repercussions on a right of personal exercise for which the guide aims to establish a procedure to guarantee this exercise.

The implementation of the protocol: a debt with equality

In this context and after years of waiting, it is necessary to ensure the effective implementation of the provincial protocol. From FUNDEPS, we celebrate this judicial decision and the statements of the highest authority of the Ministry of Health of the Province.

More Information

Publication

Authors

Virginia Pedraza

Mayca Balaguer

Contact

Mayca Balaguer maycabalaguer@fundeps.org

On November 9, the Superior Court of Justice (SCJ) resolved the definitive integration of the court that will decide on the “Portal de Belén” case, in which the constitutionality of the “Procedural Guide for the care of patients who request non-punishable abortion practices “(Resolution No. 93/12, Ministry of Health). In addition, he urged the plaintiff party to avoid delays in the case.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”

Resolution No. 106 of the highest court of the Province of Cordoba is issued on three issues:

1. The allegation by the Portal de Belén association that the rejection by the Senate of the project of decriminalization and legalization of the voluntary interruption of pregnancy constitutes a new fact to be taken into account by the court.

On this point, the TSJ states that the allegation was made out of time. But also, said that “the supposed alleged novelty became a mere particular legal interpretation rehearsed by the plaintiff on a political-legislative decision of the Congress of the Nation”, prima facie, far exceed “What is specifically discussed in these cars, with the independence of the integral weighting that has been done in the final judgment “. “I have not had a place.” Finally, this request will be rejected as manifestly inadmissible and dilatory.

2. The recusal without cause to the cameraman Sánchez Torres.

Given that three of the seven “natural” members of the TSJ will not resolve in this case due to licenses or excuses (Carlos García Allocco, María Marta Cáceres de Bollati and Sebastián López Peña), the three vacant places will be completed by female judges from a list of 16 judges conformed through Regulatory Agreement No. 1434 – Series “A” of 07/11/2017. The association Portal de Belén opposed that Judge Julio Ceferino Sánchez Torres joined the court through a challenge without expression of cause.

To this request the Court responded that “the recusal without expression of cause is not possible, in Córdoba, in an amparo trial, such as the one dealt with in these proceedings, in accordance with Law No. 4915 (Article 16) . However, even if by mere hypothesis it is admitted that the parties have such an attribution for subsidiary application of the CPCC, the Bethlehem Portal proposal should also be rejected as untimely “, since it took more than three days, which is the deadline for this type of orders. Consequently, it is clear that the attempt of Portal de Belén to prevent Sánchez Torres from joining the Tribunal was only a delaying strategy.

3. The recusal with expression of cause to the four natural vowels of the SCJ.

The plaintiff argued that the four original vowels of the SCJ should be set aside because the deadlines for failure are “overdone”. However, the Court considered that this assertion “has no basis […] and seems rather aimed at delaying and making impossible that this TSJ can finally be issued.”

The court affirms that the departures attempted by “Portal de Belén” are inadmissible, “even more in the context and in connection with the battery of incidents promoted by the plaintiff, which, if they are linked, demonstrate the will to prevent the integration of this court ”

“The broad exercise of the right of defense can not be confused or made compatible – much less tolerated – with the articulation of ostensible and evidently dilatory incidents, as is clear if each of the presentations made by “Portal de Belén” are connected,” concluded the Court.

Consequently, the final sentence will be dictated by the “original” members of the Superior Court Aida Tarditti, Domingo Sesin, Luis Enrique Rubio and Mercedes Blanc de Arabel, as well as by the chambers Claudia Zalazar, Julio Ceferino Sánchez Torres and Silvana María Chiapero.

The situation of the Legal Interruption of Pregnancy in Córdoba

In 2012, after the pronouncement of the Supreme Court of Justice of the Nation in the ruling “FAL s / autosatisfactivas measures”, the Ministry of Health of the Province of Córdoba approved the resolution 93/12 and the Guide of abortion care not punishable in order to guarantee rapid and safe access to the practice of non-punishable abortions in the provincial public health services. Thirteen days later, Portal de Belén – Civil association filed an appeal against the Province of Córdoba, requesting that the resolution and guidance be declared unconstitutional and, as a precautionary measure, the suspension of the same.

In the first instance, the judge in the case made the precautionary measure stating that the guide could not be applied in its entirety, specifically with regard to access to legal interruption of pregnancy in cases of rape. In second instance, the Civil Chamber resolved the amparos presented for the purposes of appealing the first sentence, making room for it. Since 2013, the Superior Court of Justice must resolve the appeals filed and rule on the merits of the case.

Access to the Legal Interruption of Pregnancy is a recognized human right in our national and international legal framework. It is necessary to consolidate an institutional framework in which the rights to health, sexuality and reproductive security are respected, eliminating all the judicial and administrative barriers that obstruct access to this right.

After more than 6 years of the judicialization of the guide, it is time for the court to be issued in this case that, in its own words, “has the maximum social significance and public interest.”

More Information:

• Amicus Curiae causes “Portal de Belén c / Province of Córdoba”

Writer: Mayca Balaguer 

Following the preliminary draft of Penal Code 2018, a group of professionals and civil society organizations sent a letter to Minister Germán Garavano requesting that he suspend articles 95 and 96 of the preliminary draft because they are regressive for the rights of pregnant persons.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”

Together with a group of professionals and civil society organizations that work in defense of human rights, we sent a letter to Germán Garavano, Minister of Justice and Human Rights, requesting that he suspend articles 95 and 96 of the preliminary draft because they are regressive for human rights. of pregnant people.

The text proposed in the Draft of Penal Code 2018 does not accept the important modifications approved in the Chamber of Deputies of the Nation in the recent treatment of the bill that decriminalized and legalized the interruption of pregnancy on a voluntary basis until the 14th week of gestation.

1. The proposed wording does not substantially change the conditions and guidelines set forth in arts. 85 and next. of the current penal code in force since 1921, although it uses different expressions and, on the contrary, may be regressive.

2. The fundamental change foreseen in the legal reform debated and approved in Deputies is not contemplated, that is, that the abortion is not punishable when the woman voluntarily decides to interrupt the pregnancy in the first 14 weeks of gestation. Consequently, the grounds for exemption from punishment in the preliminary draft under analysis remain the same as those currently in force: danger to the life and health of women and in case of violation.

3. The new proposed text qualifies health in its physical and mental aspect, while in the current penal code in force, as well as in the project approved in Deputies, only “Health” is spoken, which we consider more correct, because enables the development of the broad concept according to WHO guidelines that does not limit the concept of health to physical and mental aspects only. Therefore, the change is limiting and can be interpreted restrictively, generating greater obstacles when it comes to accessing the legal interruption of pregnancy for this reason, as it is currently planned.

4. The enumeration proposed by the preliminary bill in relation to the grounds for exemption from punishment is also restrictive insofar as it does not expressly contemplate the possibility of deciding to terminate the pregnancy when there is a diagnosis of non-viability of extra-uterine life of the fetus (for example in the case of anencephaly ), as today is accepted and admitted by the jurisprudence for decades, and was expressly consigned in the project that had half sanction.

5. In relation to the amount of the penalties provided for the crime of abortion instead of the current one from 1 to 4 years, it is established from 1 to 3 years, thus reducing the maximum in one year, which may mean greater possibilities that the prison sentence is not effective, although it depends on the judicial criterion since as a general principle in the Preliminary Draft the penalties are effective compliance. It should be noted that the project with a half sanction established a substantially lower penalty: from 3 months to a year with the possibility of being left in suspense at the discretion of the judiciary criteria.

6. In the Preliminary Draft the possibility of suspension is extended and even the benefit is extended with the possibility that the judge decides to leave the penalty without effect, but it should be noted that in addition to being substantially greater than in the project with half sanction, there was a judicial process that occurred when the termination of pregnancy was practiced only after the week 14, ie, from week 15 of pregnancy – and provided that the other causes that do not have a deadline of expiration-, which substantially reduced the universe of cases caught in the criminal sphere.

The circumstance that this Draft incorporates this figure of suspension of punishment or exemption from punishment at the discretion of the criminal judges intervening in proceedings against women, does not improve the clearly punitive and persecutory issue that this crime involves for women. In addition to continuing to prosecute, women are subject to the discretion and discretion of criminal judges, who will graduate the sentence and decide discretionally on its amount, suspension or exemption.

7. We consider it necessary to emphasize that the evolution of comparative law and the most modern tendencies in the criminal field and in the international law of human rights, which permeates and especially affects sexual and reproductive rights in the 21st century, point not only to decriminalization and legalization of the IVE during the first weeks of pregnancy, but consider that the criminal appeal is disproportionate, discriminatory against women and only applicable as a measure of last resort (ultima ratio).

8. As a result, legal systems abandon criminalization and resort to other measures outside the criminal context. Compared legislations abstain from incorporating into the codes new norms that suppose the creation of new crimes or criminal types, such as, for example, abortion in its culpable form, which this preliminary draft incorporates.

The preliminary draft that concerns us deepens this regressive path, creating more criminal figures directly linked to abortion that until now was always contemplated in its intentional form (ie with intention). Creating the crime of wrongful abortion not only strengthens the punitive path, but it also constitutes a direct threat to the professionals involved in health practices, who see a new criminal figure that involves them beyond other criminal figures that will be applied to them. the commission of harmful acts due to malpractice, which are already contemplated.

9. Wrongful abortion is a very scarce figure in comparative legislation. Very few penal codes outside Spain (Article 146 with a prison sentence of three to five months alternative with fine and disqualification in your case from one to three years), where non-punishable abortion is contemplated before 14 weeks of pregnancy; only three countries in Latin America contemplate it – two of them with serious maternal mortality problems – such as Guatemala (article 139 with one to three years imprisonment); Costa Rica (Article 122 sixty to one hundred and twenty days of fine) and El Salvador (Article 137 prison from six months to two years). The Preliminary Draft adopts for this figure the same penalty as El Salvador, one of the Central American countries with the highest criminalization against women.

10. Therefore, we consider it necessary to suppress the crime of miscarriage of the criminal code proposed in the preliminary draft in art. 87 inc.2, which is also public action may be seriously intrusive to the privacy of women.

11. On the same path of punitive increase directly related to the sexual and reproductive rights of women, the preliminary draft incorporates two new offenses: injury to the fetus, called “injury to the unborn person”, in its willful and guilty manner. Nor do we find reception of these figures in comparative law, more than the few examples offered by the laws of Peru that includes the fraudulent figure and Spain, El Salvador and Colombia that admit both intentional and culpable. In the rest of the legislation these criminal types are not contemplated. It could be understood that this crime gives the fetus a certain legal status, alien and different to the body of the woman or pregnant person, trying to equate it with a person already born. This question has been the object of deep analysis in the jurisprudence, in particular by the Supreme Court of Justice of the Nation in the previous FAL and by the Inter-American Court in the Artavía Murillo case whose conclusions do not validate the criterion that informs this crime, but quite the opposite.

12. On the other hand, in the preliminary projects that were made in our country so far this century (2006 and 2014), these figures that are reproduced here are incorporated (in 2006 only the malicious form was included), with many criticisms and observations, including the dissidence presented by one of the members of the Drafting Commission to art. 96 of the Preliminary Draft of the reform created by Dto.678 / 2012, to which we refer (See “Draft of the Criminal Code of the Nation – Det. PEN 678/2012”, Dissident Dra. María Elena Barbagelata). On both occasions, the Public Ministry of Defense also held that in the face of any pretension to incorporate the crime of injury to the fetus, it will be essential to bear in mind that these proposals frequently violate women’s right to choose, encourage social control policies of the pregnancy and motherhood and unjustifiably expand the punishable area (See “Opinion for the preparation of the new Criminal Code of the Nation with a gender perspective” Dra. Stella Maris Martínez – General Office of the National Ombudsman).

For the above, we advise the deletion of arts. 95 and 96 of the preliminary draft of the penal code 2018, especially taking into account that these crimes are also public action. (Articles 71 and following of the Draft).

PEOPLE AND INSTITUTIONS THAT SUBSCRIBED THE DOCUMENT:

ASOCIACIÓN DE ABOGADOS DE BUENOS AIRES (AABA)–

Dras. María del Carmen Besteiro

Dra. Gabriela Nasser

Dra. María Elena Barbagelata

Dra. Julieta Bandirali

Dra. Nelly Minyersky

Dra. Nina Brugo Marcó

Dra. Sandra Mónica González

Dra. Verónica Heredia

Dra. Natalia Ferrari

Dra. Cristina Raquel López

Dr. Ricardo Huñis

Dr. Guillermo Goldstein

Dr. Carlos Alberto López de Belva

Dra. Alba Rocío Cuellar Murillo

FUNDACION MUJERES EN IGUALDAD (MEI)

Sra. Monique Altschul

CEDEM- (Centro de Estudios de la Mujer)

Lic. María Luisa Storani

AMNISTÍA INTERNACIONAL (AI)

Lic. Paola García Rey

CENTRO DE ESTUDIOS LEGALES Y SOCIALES (CELS)

Dra. Edurne Cárdenas

EQUIPO LATINOAMERICANO DE JUSTICIA Y GÉNERO (ELA)

Dra. Natalia Gherardi

UNR- FACULTAD DE DERECHO- PROGRAMA GÉNERO Y SEXUALIDADES

Dra. Analía Aucía

CLADEM ARGENTINA

Lic. Milena Páramo

INTEGRANTES DE LA COMISIÓN DE LOS DERECHOS DE LA MUJER DE LA F.A.C.A:

Dra. Silvia Pedretta

Dra. Marisa Eisaguirre

Dra. Mariela Jesús

Dra. Mabel López

ASOCIACIÓN DE MUJERES PENALISTAS DE ARGENTINA (AMPA)

Dra. Mariana Barbitta

CATOLICAS POR EL DERECHO A DECIDIR

CUERPO DE ABOGADAS FEMINISTAS DE CÓRDOBA (CAF)

FUNDACIÓN PARA EL DESARROLLO DE POLÍTICAS SUSTENTABLES (FUNDEPS)

XUMEK (ASOCIACION PARA LA PROMOCIÓN Y PROTECCIÓN DE LOS DERECHOS HUMANOS (MENDOZA).

MUJERES X MUJERES

MULTISECTORIAL DE MUJERES DE SANTA FE

ALIANZA POR LOS DERECHOS HUMANOS DE LAS MUJERES (RED QUE AGRUPA MAS DE 300 ABOGADAS DE TODO EL PAIS)

Dra. Mariana Romanelli

Dra. Mariana Vargas

Dra. Daniela Fagioli

Dra. María Elisa Vilca

Dra. Mariana Hellin

Dra. Laura Julieta Casas

Dra. Susana Chiarotti

Dra. Mónica Menini

Dra. Soledad Deza

Dra. María Urueña Russo

Dra. Mariana Soledad Alvarez

Dra. Raquel Asensio

Dra. Paula Condrac

Dra. Larisa Moris

Dra. María Renée Carrizo

Dra. Karina Selva Andrade

Dra. Alejandra Perez Scalzi

Dra. Silvia Juliá

Dra. Manuela G. González

Dra. Lucía Puyol

Dra. Mariana Ripa

Dra. Sabrina Frydman

Dra. Patricia Bustamante Quintero

Mg. Cecilia Russo

Dra. Analía Mas

Dra. Andrea Caleri

Dra. Eleonora Lamm

Dra. Lucila Puyol

Dra. Valentina Tarqui Lucero

Dra. María Gabriela Pellegrini Salas (AAMJUS)

Lic. Dora Barrancos

Dra. Celeste Perosino

Lic. Mónica Tarducci

Sra. Marta Alanis

Sra. Julia Martin

Lic. Dolores Fenoy

Lic. Victoria Tesoriero