The project preparation process, within the scope of the Ministry of Justice and Human Rights, had a dual instance, on the one hand, there was the creation of a working table coordinated by the Human Rights Secretariat, in which officials from different areas of the national government, the defender of the rights of girls, boys and adolescents, the nation’s ombudsman, legislators and human rights organizations. In particular, the Association of Grandmothers of the Plaza de Mayo, which confirmed that the guidelines of the project do not conflict with the crime of child abduction, currently provided for in Article 146 of the Penal Code; and Leonardo Forneron, who initiated the trial before the Inter-American Court for the violation of numerous rights enshrined in the American Convention on Human Rights. On the other hand, the Advisory Council to the National Directorate of the Unified Register of Applicants for Guardianship of Adoptive Parents to this Ministry also advocated the inclusion of this typification in the draft reform of the PENAL CODE.
If the project is approved by the National Congress, the Argentine state will fulfill the obligation to adapt the provisions of domestic law to international human rights standards established in the “Fornerón” decision of the Inter-American Court of Human Rights.
In this regard, Minister Soria stated: “The initiative fills a very important legal gap in Argentine law, such as the lack of crimes for buying and selling children. In addition, the initiative is part of the tradition of our country’s full commitment to the observance of human rights throughout the region and, in particular, to the observance of the decisions of the Inter-American Court.”
The facts of the Fornerón case, for which the Argentine state was held internationally responsible, revealed the imbalances in domestic legislation in relation to international standards regarding family protection, children’s rights, judicial protection and judicial guarantees provided for in the American Convention on Human Rights , in addition to the violation of the obligation to adopt provisions of domestic law, also established in the Convention.
Despite Leonardo Forneron’s persistent refusal, his daughter was given up for adoption by the justice of Entre Ríos in December 2005 after a process with many irregularities initiated unilaterally by the girl’s mother 5 years ago. Forneron, who was systematically denied legal channels to resolve the conflict, claimed that the girl was “sold”, which was not investigated due to the fact that there is no criminal offense in our country that would allow it.
Faced with this, among many other points of redress, the Inter-American Court ruled in 2012 that the Argentine state must adopt the necessary measures so that the birth of children is considered a criminal offense. After 10 years, as a result of a process that began in 2021 and involved the participation of the government and civil society actors, coordinated by the Ministry of Justice and Human Rights, a preliminary draft was sent to the President at the end of April this year, which served as basis for the presentation made to the Senate of the nation.
The bill also provides that the federal judiciary will have jurisdiction in the investigation and prosecution of the purchase and sale of children to accommodate the practical need to federalize a crime whose inherent characteristic is interjurisdictionalism.
In the same way, crimes are included in the enumeration of Article 67, fourth paragraph of the Criminal Code, according to which the statute of limitations “is suspended until the victim is a minor and until he or she reaches the age of majority, he or she files a claim. appeal or to ratify the one formulated by their legal representatives during their minority”. This ensures that crimes can be prosecuted without the mere passage of time being an obstacle for the victim to report it.