The 1994 Constitution of Argentina (as amended) does not refer to the rights to life or to freedom from torture, though it does cite the importance of both the 1966 Covenant on Civil and Political Rights (ICCPR) and the 1984 Convention against Torture (CAT).Art. 22, 1994 Constitution of Argentina.
The Constitution also does not refer to the establishment of a national police service or regulate its power to use force.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||Yes|
|CAT Optional Protocol 1||State Party|
|1998 Rome Statute of the International Criminal Court||State Party|
|1948 Charter of the Organization of American States||State Party|
|1969 Inter-American Convention on Human Rights||State Party|
|Competence of Inter-American Court on Human Rights||Yes|
Police Use of Force
Police forces are organised on a federal and regional basis in Argentina.
Lethal use of force by police is regulated by the 1984 Criminal Code (as amended). Under Articles 79 and 80, the crime of homicide is aggravated when it is committed by a member of the security forces (police or prison officer), in abuse of the function or position. Torture by a public servant is punishable by a term of imprisonment of eight to twenty-five years.Art. 144ter, 1984 Criminal Code (as amended).The 1979 United Nations Code of Conduct for Law Enforcement Officials was incorporated as an annex to the national Public Security Law (24059), which binds all of the provinces of the country.
With respect to firearms, a police training manual on the use of force stipulates that:
As a general rule, the use of firearms is not justified. Grounds for an exception to his rule are only given when ... the aggressor fires against police personnel and not to prevent his/her escape might imply a lethal threat for him- or herself or others.
In November 2018, the Minister of Security issued, by resolution, a new regulation on the use of firearms by the federal security forces.Ministry of Security Resolution 956/2018, Buenos Aires, 27 November 2018.The regulation stipulates that officers can only use firearms when strictly necessary for the performance of their duties and in the following cases:
a) In self-defence or defence of others, in case of an imminent threat or death or serious injury
b) To prevent the commission of a particularly serious crime, which present imminent danger to life or bodily integrity
c) To effect the arrest of a person who represents that imminent threat and actively resists
d) To prevent the escape of a person who represents that imminent threat and until he is arrested.
The notion of imminence is defined in the Regulation as follows:
a) When acting under threat of death or serious injury of yourself or a third party
b) When the alleged offender possesses a lethal weapon, although later it transpires that it was a replica
c) When it is reasonably presumed that the suspect may possess a lethal weapon, such as in the following situations:
c.1.- When in a group of two or more people and another member of the group has a weapon or has fired shots, or has injured a third party
c.2.- When trying to access a weapon in circumstances that indicate the intention to use it against the agent or against a third party
c.3.- When making movements that indicate the imminent use of a weapon.
d) When being armed, seek advantage by parading, hiding, or improving its attack position.
In order to conform to international standards, it would be necessary to clarify that the threat of a minor bodily injury would not be sufficient to justify use of firearms.
Under Law 5688, police action in the capital, Buenos Aires, is subject to additional constraints, including the principle of proportionality.Art. 83, Law 5688.The police are required to ensure the enjoyment of the right to life and bodily integrity of all demonstrators in the capital. Article 95 of the Law subjects the use of firearms to the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.Also restricted is the ability of members of the security forces who will be in direct contact with demonstrators to carry firearms.Art. 91, Law 5688.
Allegations of criminal behaviour by police or prison officers are addressed by the General Prosecutor’s Office, which has an Office on Institutional Violence. The Defensor del Pueblo de la Nación Argentina (The Ombudsman of the Argentine State), established under Article 86 of the Constitution, is an independent institution dedicated to the defence of human rights that may investigate allegations of excessive or indiscriminate police use of force.
Views and Concluding Observations of United Nations Treaty Bodies
In its 2017 Concluding Observations on Argentina, the Committee against Torture expressed its concern
about reported patterns of violence and arbitrary behaviour by the federal and provincial security forces in connection with police custody that takes place without a court order, particularly in cases involving socially marginalized young people and children, who are reportedly sometimes detained for identity checks or other reasons not linked to criminal conduct. According to information received, such abuses can include attempted murder....Committee against Torture, Concluding Observations on Argentina, 2017, para. 13.
Mendoza v. Argentina (2013)
This case, before the Inter-American Court of Human Rights, concerned the injury during detention of two inmates. In its judgment, the Court said that “the State is responsible for respecting the right to personal integrity of every individual in its custody. ... Thus, this Court reiterates that, since the State is responsible for detention centers and prisons, it has the obligation to safeguard the health and well-being of the persons deprived of liberty, and to guarantee that the manner and method of deprivation of liberty does not exceed the inevitable level of suffering inherent in detention….”
Chocobar case (2018)
This recent case concerns the robbing and stabbing of a tourist by two criminals and the action of an off-duty police officer to shoot one of the two criminal suspects to prevent his escape. In February 2018, the officer was indicted for homicide by a Buenos Aires court as video evidence appeared to show the suspect running away and not, as Officer Chocobar had claimed, running towards him.