Über die Autorin bzw. den Autor

Kevin Jon Heller is a Senior Lecturer at Melbourne Law School. His recent publications include "The Cognitive Psychology of Mens Rea," 99 Journal of Criminal Law and Criminology 317 (2009), and "Mistake of Legal Element, the Common Law, and Article 32 of the Rome Statute: A Critical Analysis," 6 Journal of International Criminal Justice 419 (2008).Markus D. Dubber is Professor of Law at the University of Toronto. His recent publications include The Police Power: Patriarchy and the Foundations of American Government (Columbia University Press, 2005) and The Sense of Justice: Empathy in Law and Punishment (New York University Press, 2006).

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THE HANDBOOK OF COMPARATIVE CRIMINAL LAW

Stanford University Press

Contents

Introduction: Comparative Criminal Law Kevin Jon Heller and Markus D. Dubber.....................1Argentina Marcelo Ferrante.......................................................................12Australia Simon Bronitt..........................................................................49Canada Kent Roach................................................................................97China Wei Luo....................................................................................137Egypt Sadiq Reza.................................................................................179France Catherine Elliott.........................................................................209Germany Thomas Weigend...........................................................................252India Stanley Yeo................................................................................288Iran Stanley Yeo.................................................................................320Israel Itzhak Kugler.............................................................................352Japan John O. Haley..............................................................................393Russia Stephen C. Thaman.........................................................................414South Africa Jonathan Burchell...................................................................455Spain Carlos Gómez-Jara Díez and Luis E. Chiesa........................................488United Kingdom Andrew J. Ashworth................................................................531United States Paul H. Robinson...................................................................563The Rome Statute of the International Criminal Court Kevin Jon Heller............................593Index.............................................................................................635

Chapter One

Marcelo Ferrante

I. Introduction A. Historical Sketch B. The Constitution and the Criminal Law (Judicial Review and Juries) C. Jurisdiction D. Legality Principle

II. General Part A. Theories of Punishment B. Liability Requirements C. Defenses

III. Special Part A. Structure B. Homicide C. Sex Offenses D. Property Offenses

I. INTRODUCTION

A. Historical Sketch

Argentine criminal law, as we now conceive of it, began in the second half of the nineteenth century with the first attempts at enacting a criminal code under the 1853 constitution. The centerpiece of current Argentine criminal law is the Criminal Code (the Código Penal, or CP), which was enacted by the federal Congress in 1921. The 1921 code put an end to a long period of debates over criminal law reform that the constitution had mandated almost seventy years earlier.

That period had begun with public discussion—within both the federal Congress and the provincial governments—of the first official draft of a national criminal code. Th is first draft, known as the Tejedor Code after its author, jurist Carlos Tejedor, was heavily influenced by the Bavarian Criminal Code of 1813 draft ed by Anselm Ritter von Feuerbach. A deeply modifi ed version of the Tejedor Code was finally enacted as the first national criminal code in 1887. Once enacted, the code underwent several reforms and amendments—typically in the form of special criminal statutes—in only a few years. It seemed that the constitutional ideal of unified legislation through the adoption of stable codes had yet to be achieved. Several alternative criminal codes were thus proposed in those years to the Congress and the executive to replace the 1887 criminal code. One of them, the 1891 Criminal Code Draft, eventually led, in 1903, to an important reform of the 1887 code. The 1891 draft had been influenced primarily by the Italian Criminal Code of 1889, also known as the Zanardelli Code after the then Italian minister of justice, Giuseppe Zanardelli. The code that the Congress enacted in 1921, oft en referred to as the Moreno Code after Rodolfo Moreno (h), the congressman who led the drafting and enacting process, was meant to capture in a simple and pragmatically oriented text the basics of the Tejedor Code and the 1891 draft. Unlike its immediate antecedents, it was the work of no individual drafter, but the result of a collective drafting process that managed to engage representative members of the different groups whose conflicting views had contributed to the instability of the previous legislative attempts (i.e., scholars with conflicting legal approaches, practitioners, and judges and other officials).

As its salient antecedents suggest—especially the Bavarian Code of 1813 and the Zanardelli Code—the 1921 code (the CP) falls within the liberal codification tradition of the nineteenth century. It is brief and relatively simple. It established a simple regime of sanctions, comprising primarily imprisonment and secondly fines and incapacitation to perform certain activities (like holding official positions or exercising a given profession). The CP indeed marks the abolition of capital punishment in Argentine criminal law. In general, prison terms in the CP were comparatively mild, with a maximum prison term of 25 years—only after a 2004 reform could the maximum imprisonment time mount up to 50 years in the case of the commission of a plurality of crimes (article 55). It introduced a regime of conditional convictions for first-time off enders (articles 26–28) and of freedom on parole (or conditional freedom) for the last third of the sentence (articles 13–17). Its general part was written with a pragmatic eye; besides adopting general rules for the application of the criminal law, including a statute of limitations, it included only a narrow set of simple rules of responsibility, avoiding definitions that might have shown commitment to a particular theoretical position. In particular, it included a list of substantive defenses (article 34), rules of attempt liability (articles 42–44) and of accomplice liability (articles 45–49), and a few rules for the aggregation of convictions and sentences (articles 54–58).

The special part of the CP contained fewer than 250 rules defining crime types and affixing sanctions—typically ranges of punishment, with legal minima and maxima (e.g., from 8 to 25 years' imprisonment for criminal homicide, article 79). Crime types are ordered by the kind of interest affected, starting with personal life and following with bodily integrity, honor or reputation, personal status and identity, basic freedoms (like freedom from sex abuses, freedom of movement, and freedom from intrusion in one's home and other protected places), property, public safety, political order, and other public goods (such as those secured by legal currency and other documents).

The CP is still the centerpiece of Argentine criminal law. In the meantime it has undergone many relatively marginal reforms and amendments, which in the aggregate have introduced complexity in an otherwise relatively simple text, often affecting the code's systematicity—especially by altering its punishment schedule. To cite just one example, possessing explosives is now subject to higher penalties (5 to 15 years' imprisonment, article 189 bis) than making those same explosives explode and thus risking or actually...