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officers to “detain, for purposes of identification under circumstances that justify the
detention and for no longer than 24 hours, any person whose criminal record it is
necessary to verify.” In 1991, the National Congress amended this organic law by
means of Law No. 23,950. This law modified the purpose of the detention, which
would not seek to check the person’s “criminal record” but rather to “verify identity.”
“Detention to verify identity” has as a conditio sine qua non that the person does not
“convincingly prove his or her identity,” and this sought to limit the cases in which
imprisonment was in order. It was also necessary, pursuant to this law, for there to
“be well-founded circumstances that lead to the presumption that someone has
committed or might commit a criminal act or misdemeanor.” What is intended is for
detention to take place when there is a well-founded presumption that a person has
committed a crime or misdemeanor, and this must be based on objective criteria.
However, “detention to verify identity” in the new legal text is also in order when
there is a well-founded presumption that a person might in the future commit a
crime or misdemeanor, which is the traditional generic police function of preventing
crimes, one that is entirely subjective.
The legal amendment also established that detention time must be the “minimum
required to ascertain identity,” and no longer than 10 hours. On the other hand, the
new legal text granted the person detained to verify his or her identity the right to
communicate immediately with a relative or person he or she trusts so as to inform
them of his or her situation.” In this manner, the law seeks to ensure “transparency”
of the police procedure. Finally, the new legal text imposes upon intervening police
officials the obligation to “notify the competent correctional Judge on duty.” One
observes the intention of generating a judicial control mechanism regarding the use
of this police authority.
Since 1870, the Head of the Police of the Province of Buenos Aires –later on the
Argentine Federal Police- drafted the police edicts, which are normative instruments
specifying prohibitions and misdemeanor sanctions. The definitions of misdemeanors
were stated arbitrarily, in vague and ambiguous terms, often describing typical
personal traits of certain groups of persons –based on their sexual preference, social
condition, or age- rather than behaviors. Offenders were apprehended, processed
and convicted by police authority, without the intervention of a judicial institution.
While there was the legal possibility of appealing to judicial control with respect to
the police proceeding, the minimal time allowed to do so made it practically
impossible. This police proceeding did not ensure the right to defense or minimum
guarantees of due process. Punishment imposed could be a fine or arrest, not to
exceed eight days. With the adoption of the 1889 Criminal Proceeding Code, that
maximum increased to 30 days.
This normative structure was in operation until March 1998, by means of police
edicts and the Rules of Procedure for Misdemeanor Proceedings issued by the
Commander of the Federal Police.
After the 1994 amendment to the National Constitution and the adoption of the 1996
Constitution of the City of Buenos Aires, a scenario was established in which the
political and juridical debate on the need to abolish the system of police edits took
place.
In March 1998, the Code of Harmonious Urban Relations or “Código de Convivencia
Urbana” of the City of Buenos Aires was unanimously adopted, as a legal instrument
respectful of the principles of the Rule of Law, regulating behaviors that damage