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In brief

By means of Resolution PGN No. 92/23 (“Resolution“), acting Attorney General Eduardo Casal established performance criteria for representatives of the Prosecutor’s Office (PO) to set the performance standards of the PO in conciliatory proceedings between the accused and the victims of crimes in criminal cases (Articles 59, paragraph 6 of the Argentine Criminal Code (ACC) and 34 of the Code of Federal Criminal Procedure (CFCP)).


The Resolution establishes that: (1) the intervention of the PO in the process corresponding to the conciliation agreement is necessary to ensure legality and to ensure the interests of society; (2) the prosecutor shall oppose any conciliation agreement that disregards normative and  international regulatory mandates (treaties and supranational conventions); (3) prosecutors may argue criminal policy reasons (prior convictions, previous agreements, probation or multiplicity of crimes) to oppose and/or not consent to the agreement; (4) representatives of the PO must ensure the agile and informal participation of victims; and (5) conciliation agreements may be entered into before the indictment control hearing, closing of the investigation, and/or the elevation to trial.

Below are the links to the Resolution and the opinion to which it refers.

In depth

On 7 December 2023, the acting attorney general of the PO issued the Resolution, by which he instructed the prosecutors with criminal jurisdiction to intervene in conciliatory proceedings between the accused and the victims of crime.

As the Resolution anticipates, notwithstanding the mandatory participation of the accused and the offended party in the conciliation agreement, the intervention and conformity of the representative of the PO is also unavoidable (cf. Opinion of the same 7/12/2023, in CCC 49402/2021/4/1/RH2, Complaint No. 1 – Incident No. 4 – Barrera, Noemí E). Strictly speaking, the PO must ensure that the agreements comply with the criminal policy reasons in force and do not transgress the normative limits.

The Resolution establishes the following criteria for action:

1) The intervention of the PO, as holder of the public criminal action (sections 5 CPPN, 25 CFCP, 33 of Law 24.946 and 3 of Law 27.148, among others), is unavoidable. Otherwise, the PO must file for the nullity of the proceeding and, if necessary, appeal the judicial approval in all instances.
The representative of the PO must ensure the legality and ensure the general interests of society, in addition to verifying compliance with legal and criminal policy requirements.

2) The representative of the PO shall rule on the possibility of disposing of the criminal action through conciliation agreements in light of the normative and regulatory mandates included in international treaties and other obligations assumed by Argentina, notwithstanding the limits set forth in Article 30 CFCP.

3) The representatives of the PO shall not agree and/or consent to conciliation agreements in cases where: (a) the defendant has a previous conviction, whether (i) the sentence is being executed (under any modality) and/or the new crime has been committed within the period for recidivism (art. 50 ACC) or (ii) a conditional prison sentence and 8 or 10 years have not elapsed since the conviction (art. 27 ACC); (b) the defendant has benefited from a suspension of probation or conciliation agreements in other proceedings, and 8 or 10 years have not elapsed since the conviction (art. 27 ACC); (c) the defendant has benefited from a suspension of probation or conciliation agreements in other proceedings, and 8 or 10 years have not elapsed since the conviction (art. 27 ACC); (d) the accused person has previously benefited from the suspension of the trial on probation or conciliation in other proceedings, and the term of 8 years has not elapsed; (e) the investigated facts are reached by more than one legal qualification, and any of them does not allow conciliation.

4) The representatives of the PO must ensure the participation of the victims in an agile and informalized manner, guaranteeing their understanding of the legal consequences of the agreement and procuring full consent, with discernment, intention and freedom. They must also ensure unanimity in the case of multiple victims (arts. 59, sub. 6, CC. and 34 CFCP).

5) The PO can only propose or accept conciliatory agreements that are entered into before the indictment control hearing (article 279 of the CPPF), the closing of the investigation (article 349 of the CPPN), or the order of elevation to trial (articles 351 and 353 quinquies of the CPPN).

Links of interest:

PGN-0092-2023-001.pdf (fiscales.gob.ar)

Recurso_Queja_CCC_49402_2021_41RH2-1.pdf

Clik here to read the Spanish version.

Author

Fernando Goldaracena is a partner in Baker McKenzie Buenos Aires Office. He heads the White Collar Crime Practice Group and is a member of the Compliance & Investigations Practice Group. Prior to joining the Firm, Fernando served as secretary of the Federal Criminal Court No. 2 of San Isidro, where he led several criminal investigations ranging from white collar crimes, public corruption and tax fraud. He is member of both the Compliance & Money Laundering and the Criminal Law Practice Groups of the City of Buenos Aires Bar Association (Colegio de Abogados de la Ciudad de Buenos Aires).

Author

Nicolás Servente is an Associate in Baker McKenzie Buenos Aires office.

Author

Candela Perri is an Associate in Baker McKenzie Buenos Aires office.

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