Probation in criminal case against women

Abstract

This essay offers an analysis of the viability of probation in criminal cases dealing with violence against women. To this end, it assesses the Sentence of the Supreme Court of Justice of Argentina in the case “Góngora, Gabriel Arnaldo / No 14.092”, dated April 23, 2013. This analysis considers five relevant topics: violence against women as a problem in itself, the Argentinian normative framework, the reality of the judicial system, and the interests of both the victim and the imputed.

The main argument in the Court’s sentence departs from the premise that recourse to probation is incompatible with the purpose of the Inter-American Convention on the Prevention, Sanction and Eradication of Violence against Women (Convention Belem do Pará). This is so because it is considered to neglect the compromise assumed by the State to “sanction” the relevant offenses by means of a “fair and efective legal procedure” (article 7, b and f of the Convention). In addition to this, the sentence claims that this would be inconsistent with the Interpretation Guidelines of the Vienna Convention on the Law of Treaty.

In contrast to this view, this article argues that there is no prima facie legal impediment to proceed with probation in cases involving violence against women. To the contrary, this option may find support in a systemic analysis of Argentinian law. Furthermore, it maintains that trial and punishment may not constitute the most efficient response neither from the perspective of the criminal system, nor from the perspective of the victim. Parallel to this, it suggests that there are reasons to think that, depending on the case, suspension may turn out to be beneficial both for judicial administration and for those involved.

Finally, the article motivates the claim that recourse to probation in cases involving violence against women must be evaluated in a case-by-case analysis. When regarded as pertinent, judicial operators must focus in the conditions for its admission and in the strict vigilance of its execution. As a result of this, it becomes imperative that probation receives regulation in the Criminal Procedure Code as long as substantive rights, judicial principles, rights and constitucional warranties constitute normative dimensions that should not be severed from each other.