Prevention And Punishment Of Trafficking In Persons And Assistance To Victims Code Penal, Code Criminal Procedure And Law N? 26.364 - Modification - Full Text Of The Norm

Original Language Title: PREVENCION Y SANCION DE LA TRATA DE PERSONAS Y ASISTENCIA A SUS VICTIMAS CODIGO PENAL, CODIGO PROCESAL PENAL Y LEY N? 26.364 - MODIFICACION - Texto completo de la norma

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image inicio sitio infoleg MInisterio de Justicia y Derechos Humanos
PREVENTION AND SANTION OF THE WORK OF PERSONS AND ASSISTANCE TO THEIR VICTIMS

Law 26,842

Criminal Code, Code of Criminal Procedure and Act No. 26,364. Modifications.

Sanctioned: December 19, 2012

Promulgated: December 26, 2012

The Senate and Chamber of Deputies of the Argentine Nation assembled in Congress, etc. sanction with force of Law:

ARTICLE 1 — Replace article 2 of Act 26,364 with the following:

Article 2: Trafficking in persons means offering, capturing, transfer, receiving or receiving persons for the purpose of exploitation, whether within the national territory, as from or to other countries.

For the purposes of this Act, the configuration of any of the following cases is understood to be exploited, without prejudice to the fact that they constitute autonomous offences with respect to the offence of trafficking in persons:

(a) When a person is reduced or kept in slavery or servitude under any form;

(b) When a person is forced to perform forced labour or services;

(c) When prostitution of others or any other form of offer of sexual services is promoted, facilitated or marketed;

(d) When child pornography is promoted, facilitated or marketed or any kind of representation or performance with such content;

(e) When a person is forced into marriage or any kind of union in fact;

(f) When the forced or illegitimate removal of organs, fluids or human tissues is promoted, facilitated or marketed.

The victim ' s consent to the trafficking and exploitation of persons shall in no case constitute grounds for the release of criminal, civil or administrative responsibility of the perpetrators, participants, co-operatives or instigators.

ARTICLE 2° — Refer to articles 3 and 4 of Act 26,364.

ARTICLE 3° — Replace the name of Title II of Law 26,364 with the following:

Part II

Minimum guarantees for the exercise of the rights of victims

ARTICLE 4° — Replace Article 6 of Law 26,364 with the following:

Article 6: The national State guarantees the victim of the crimes of trafficking or exploitation of persons the following rights, irrespective of their status as a complainant or a complainant in the relevant criminal proceedings and to the effective achievement of the relevant remedies:

(a) To receive information on the rights that assist him in his or her language and in a manner accessible to his or her age and maturity, so as to ensure the full access and exercise of the economic, social and cultural rights appropriate to him or her;

(b) To receive free psychological and medical assistance in order to ensure their social reintegration;

(c) To receive appropriate accommodation, maintenance, adequate food and personal hygiene;

(d) Receiving labour training and assistance in job search;

(e) To receive comprehensive legal advice and free legal sponsorship at judicial and administrative headquarters in all instances;

(f) To receive effective protection against any possible reprisal against his or her person or family, all available procedural remedies for that purpose are issued for that purpose. In its case, it may request its incorporation into the National Witness Protection Programme under the conditions provided for by law 25,764;

(g) To remain in the country, if so decided, receiving the necessary documentation for that purpose. If appropriate, you will be informed of the possibility of formalizing a request for refuge under the terms of law 26.165;

(h) Return to its place of origin when requested. In cases of a resident victim in the country who, as a result of the crime suffered, would like to emigrate, would be guaranteed the possibility of doing so;

(i) To testify in special conditions of protection and care;

(j) Be informed of the status of the proceedings, the measures taken and the evolution of the process;

(k) Be heard at all stages of the process;

(l) To protect their identity and privacy;

(m) To incorporate or reintegrate into the educational system;

(n) In the event of a minor victim, in addition to the rights set forth above, it will be ensured that the procedures recognize their special needs which imply the condition of being a subject in full development of the personality. Protection measures may not restrict their rights and guarantees, or involve deprivation of their liberty. Reintegration will be sought to its family nucleus or to the place it best provides for its protection and development.

ARTICLE 5° — Replace article 9 of Law 26,364 with the following:

Article 9: When the victim of the crime of trafficking or exploitation of persons abroad has Argentine citizenship, it shall be the duty of the diplomatic representatives of the national State to make to the local authorities the necessary presentations to guarantee their safety and to accompany it in all the arrangements to be made to the authorities of the foreign country. Such representatives shall also provide the necessary means to enable, if required by the victim, their repatriation.

ARTICLE 6° — Replace Title IV of Law 26,364 with the following:

Part IV

Federal Council for Combating Trafficking and Exploitation of Persons and for the Protection and Assistance of Victims.

ARTICLE 7° — Replace article 18 of Act 26,364 with the following:

Article 18: The Federal Council for Combating Trafficking and Exploitation of Persons and for the Protection and Assistance of Victims, which shall operate within the scope of the Chief of Staff of Ministers, in order to constitute a permanent area of action and institutional coordination for the follow-up of all topics related to this law, which shall have functional autonomy, and shall be integrated as follows:

1. A representative of the Ministry of Justice and Human Rights.

2. A representative of the Ministry of Security.

3. A representative of the Ministry of the Interior.

4. A representative of the Ministry of Foreign Affairs, International Trade and Worship.

5. A representative of the Ministry of Social Development.

6. A representative of the Ministry of Labour, Employment and Social Security.

7. A representative of the Chamber of Deputies of the Nation, elected on the proposal of the plenary.

8. A representative of the House of Senators of the Nation, elected on the proposal of the plenary.

9. A representative of the Judiciary of the Nation, to be appointed by the Supreme Court of Justice of the Nation.

10. A representative for each of the provinces and the Autonomous City of Buenos Aires.

11. A representative of the Public Prosecutor ' s Office.

12. A representative of the National Council for Children, Adolescents and the Family.

13. A representative of the National Council of Women.

14. Three representatives of non-governmental organizations, to be incorporated in accordance with article 19 of the present Act.

The Federal Council shall appoint a coordinator through the vote of two thirds of its members, in the terms established by the regulation.

ARTICLE 8° — Replace article 19 of Act 26,364 with the following:

Article 19: Once constituted, the Federal Council for the Fight against Trafficking and Exploitation of Persons and for the Protection and Assistance of Victims shall establish a register in which non-governmental human rights organizations will be registered or with specific activity on the subject, which prove legal status and existence not less than three (3) years.

The regulation shall provide the way in which, rotating and for equal periods not exceeding one (1) year, the registered organizations shall constitute the Federal Council in accordance with the provisions of the preceding article.

ARTICLE 9° — Replace article 20 of Law 26,364 with the following:

Article 20: The Federal Council for Combating Trafficking and Exploitation of Persons and for the Protection and Assistance of Victims has the following functions:

(a) Designing the strategy to combat trafficking and exploitation of persons, monitoring the implementation and effectiveness of existing standards and institutions;

(b) Recommend the development and adoption of rules relating to the purpose of this law; and, in general, participate in the design of necessary policies and measures to ensure the effective prosecution of crimes of trafficking and exploitation of persons and the protection and assistance of victims;

(c) Promote the adoption by the various jurisdictions of standards of action, protocols and intervention circuits that ensure effective protection and respect for the rights of victims of trafficking and exploitation of persons;

(d) Monitor the performance of the functions of the Executive Committee established in Title V of this Act;

(e) Regularly analyse and disseminate the statistical data and reports that the Executive Committee makes in order to control the effectiveness of public policies in the area by requesting any information necessary for the performance of its functions;

(f) Promote studies and research on the problem of trafficking and exploitation of persons, their periodic publication and dissemination;

(g) Design and publish a Services Guide in ongoing coordination and updating with different jurisdictions, which provides information on programmes and services for victims of trafficking and exploitation of persons;

(h) Promoting inter-State cooperation and bilateral and multilateral measures to control, prevent and eradicate trafficking and exploitation of persons. This cooperation will aim to strengthen bilateral, multilateral, local and regional means to prevent the crime of trafficking in persons, enable the prosecution and punishment of perpetrators and assist victims;

(i) To promote the process of reviewing the international and regional instruments that the Republic has signed, in order to strengthen international cooperation in this regard;

(j) Drafting and raising an annual report on its management, to be approved by the National Congress. Once approved, the report will be sent to the Ministry of Foreign Affairs, International Trade and Worship, for submission to the international and regional agencies with competence in the subject;

(k) To adopt the biennial action plan to be developed by the Executive Committee;

(l) To issue its rules of procedure, which shall be approved by the vote of two thirds of its members.

The Ombudsman ' s Office will be the external monitoring agency for the implementation of the plans and programmes decided by the Federal Council.

ARTICLE 10. Incorporate as Title V of Law 26,634, the following:

Part V

Executive Committee to Combat Trafficking and Exploitation of Persons and for the Protection and Assistance of Victims.

ARTICLE 11. - Incorporate as article 21 of Law 26.364, the following:

Article 21: The Executive Committee for the Fight against Trafficking and Exploitation of Persons and for the Protection and Assistance of Victims, which shall operate within the scope of the Chief of Staff of Ministers, with functional autonomy, shall be composed as follows:

1. A representative of the Ministry of Security.

2. A representative of the Ministry of Justice and Human Rights.

3. A representative of the Ministry of Social Development.

4. A representative of the Ministry of Labour, Employment and Social Security.

ARTICLE 12. - Incorporate as article 22 of Law 26.364, the following:

Article 22: The Executive Committee for the Fight against Trafficking and Exploitation of Persons and for the Protection and Assistance of Victims is responsible for the implementation of a National Programme to Combat Trafficking and Exploitation of Persons and for the Protection and Assistance of Victims, which will consist of the following tasks:

(a) Designing standards of action, protocols and intervention circuits that help prevent and combat trafficking and exploitation crimes, and to protect and assist victims of such crimes and their families;

(b) Develop effective actions aimed at enhancing the detection, prosecution and dismantling of trafficking and exploitation networks;

(c) Ensuring victims of full respect for and exercise of their rights and guarantees by providing them with technical guidance for access to free comprehensive care services (medical, psychological, social, legal, etc.);

(d) Generate activities that assist in training and assistance in the search for and obtaining of employment opportunities, together with relevant agencies;

(e) Prevent and prevent any form of re-victimization of victims of trafficking and exploitation of persons and their families;

(f) To carry out a National Register of Data linked to the crimes of trafficking and exploitation of persons, as a permanent and effective system of quantitative and qualitative information and monitoring. To this end, all information that may be useful in combating these crimes and assisting their victims must be regularly relegated. Police, judicial and public prosecutorial officers shall be requested to forward the data required for the purpose of their incorporation into the Register;

(g) Organize outreach, awareness-raising, training and training on the issues of trafficking and exploitation of persons, from the guidelines imposed by respect for human rights, gender perspective and specific issues of children and adolescents;

(h) To promote knowledge on the subject of trafficking and exploitation of persons and to develop materials for initial and continuing education, from a human rights approach and from a gender perspective, in coordination with the Ministry of Education;

(i) Promoting the coordination of public and private resources available for the prevention and assistance of victims, providing or guaranteeing the necessary housing to assist them in accordance with the provisions of this Act;

(j) Train and specialize public officials from all institutions linked to the protection and assistance of victims, as well as police forces, security institutions and criminal prosecution officials and the prosecution of cases of trafficking in persons in order to achieve greater professionalization;

(k) Coordinate with public or private institutions, which provide training or training of pilots, hostesses and all other roles as aircraft cabin crews or ground, international or cabotage means, a mandatory training programme specifically aimed at warning potential passengers of the crime of trafficking in persons;

(l) Coordinate with the provinces and the Autonomous City of Buenos Aires the implementation of the Synchronized System of Complaints on the Crimes of Trafficking and Exploitation of Persons. Conduct throughout the national territory a wide and periodic publicity campaign of the System and the number to make complaints.

The Executive Committee shall develop a work plan every two (2) years which shall be submitted to the Federal Council for approval. It shall also produce and submit reports to the Federal Council on its performance on an annual basis in order to enable it to exercise its supervisory powers. These reports will be public.

In order to implement the Programme, the Executive Committee will coordinate its actions with the provinces, the Autonomous City of Buenos Aires and national and international bodies.

ARTICLE 13. - Incorporate as Title VI of Law 26,364 the following:

Part VI

Synchronized System of Complaints on the Crimes of Trafficking and Exploitation of Persons

ARTICLE 14. - Incorporate as article 23 of Law 26,364 the following:

Article 23: The Synchronized System of Complaints on the Crimes of Trafficking and Exploitation of Persons shall be established within the Public Prosecutor ' s Office.

ARTICLE 15. - Incorporate as article 24 of Law 26,364 the following:

Article 24: In order to implement the System referred to in the previous article, the telephone number one hundred and forty-five (145), even throughout the national territory, which will operate on a permanent basis during the four-hours of the day in order to receive complaints about crimes of trafficking and exploitation of persons. Incoming phone calls will be out of charge and can be made from public, semi-public, private or cell phones.

In addition, technical support will be ensured to develop and implement the text or SMS message service (Short Message Service) to the number indicated, to recept the complaints, which will be without charge.

ARTICLE 16. - Incorporate as article 25 of Law 26,364 the following:

Article 25: The Public Prosecutor ' s Office will keep a file with the records of phone calls and text or SMS messages (Short Message Service) electronically identified, which will be kept for a term not less than ten (10) years, in order to have a database of data consultation to facilitate the investigation of crimes of trafficking and exploitation of persons.

ARTICLE 17. - Incorporate as article 26,364 the following:

Article 26: Complaints may be anonymous. In the event that the complainant is identified, the identity of this person will be reserved, including for the security forces involved.

ARTICLE 18. - Incorporate as Title VII of Law 26,364 the following:

Part VII

Final Provisions

ARTICLE 19. - Incorporate as article 27 of Law 26,364 the following:

Article 27: The General Budget of the Nation shall include annually the necessary provisions for the implementation of the provisions of this Act. In addition, the agencies established by this Act may be financed from international cooperation agreements, donations or subsidies.

Seizures under this Act shall have as a specific duty a fund of direct assistance to victims administered by the Federal Council for Combating Trafficking and Exploitation of Persons and for the Protection and Assistance of Victims.

ARTICLE 20. - Replace the sixth paragraph of article 23 of the Criminal Code with the following:

In the case of conviction for any of the offences provided for in articles 125, 125 bis, 127, 140, 142 bis, 145 bis, 145 ter and 170 of this Code, the property is to confiscate the piece of furniture or property where the private victim of the libelad or object of exploitation is maintained. Property confiscated for such crimes, as provided for in this article, and the proceeding of fines imposed, shall be affected by programmes of assistance to the victim.

ARTICLE 21. - Replace article 125 bis of the Criminal Code with the following:

Article 125 bis: The person who promotes or facilitates the prostitution of a person shall be punished by imprisonment of four (4) to six (6) years ' imprisonment, even if the consent of the victim is mediated.

ARTICLE 22. - Replace article 126 of the Criminal Code with the following:

Article 126: In the case of the preceding article, the penalty shall be five (5) to ten (10) years ' imprisonment, if any of the following circumstances occur:

1. Mediate deception, fraud, violence, threat or any other means of intimidation or coercion, abuse of authority or a situation of vulnerability, or granting or receiving payments or benefits to obtain the consent of a person having authority over the victim.

2. The author is an ascendant, descendant, spouse, attach in a straight, collateral or convivant line, guardian, curator, authority or minister of any recognized or non-recognized cult, or in charge of the education or guardian of the victim.

3. The author is a public official or a member of a security, police or prison force.

When the victim is under eighteen (18) years the penalty shall be ten (10) to fifteen (15) years ' imprisonment.

ARTICLE 23. - Replace article 127 of the Criminal Code with the following:

Article 127: It shall be repressed with imprisonment of four (4) to six (6) years, which shall economically exploit the exercise of the prostitution of a person, even if it shall mediate the consent of the victim.

The penalty shall be five (5) to ten (10) years ' imprisonment, if any of the following circumstances occur:

1. Mediate deception, fraud, violence, threat or any other means of intimidation or coercion, abuse of authority or a situation of vulnerability, or granting or receiving payments or benefits to obtain the consent of a person having authority over the victim.

2. The author is an ascendant, descendant, spouse, attach in a straight, collateral or convivant line, guardian, curator, authority or minister of any recognized or non-recognized cult, or in charge of the education or guardian of the victim.

3. The author is a public official or a member of a security, police or prison force.

When the victim is under eighteen (18) years the penalty shall be ten (10) to fifteen (15) years ' imprisonment.

ARTICLE 24. - Replace article 140 of the Criminal Code with the following:

Article 140: They shall be punished by imprisonment or imprisonment of four (4) to fifteen (15) years, which shall reduce a person to slavery or servitude, under any form, and the person who receives it in such a condition to keep it in it. In the same sentence, a person shall be obliged to perform forced labour or services or to enter into servile marriage.

ARTICLE 25. - Replace article 145 bis of the Criminal Code with the following:

Article 145 bis: He shall be repressed with imprisonment of four (4) to eight (8) years, whoever offers, captures, transports, receives or accommodates persons for the purpose of exploitation, whether within the national territory, as from or to other countries, even if he mediates the consent of the victim.

ARTICLE 26. - Replace article 145 ter of the Criminal Code with the following:

Article 145 ter: In the circumstances of article 145 bis the penalty shall be five (5) to ten (10) years ' imprisonment, when:

1. Mediate deception, fraud, violence, threat or any other means of intimidation or coercion, abuse of authority or a situation of vulnerability, or granting or receiving payments or benefits to obtain the consent of a person having authority over the victim.

2. The victim is pregnant, or is over seventy (70) years old.

3. The victim was a disabled person, sick or unable to rely on himself.

4. The victims are three (3) or more.

5. Three (3) or more persons participate in the commission of the offence.

6. The author is an ascendant, descendant, spouse, attach in a straight line, collateral or convivant, guardian, curator, authority or minister of any
cult recognized or not, or in charge of education or guardianship of the victim.

7. The author is a public official or a member of a security, police or prison force.

When the exploitation of the victim subject to the crime of trafficking in persons is accomplished, the penalty shall be eight (8) to twelve (12) years ' imprisonment.

When the victim is under eighteen (18) years the penalty shall be ten (10) to fifteen (15) years ' imprisonment.

ARTICLE 27. - Incorporate as article 250 of the Code of Criminal Procedure the following:

Article 250 quater: Whenever possible, statements by victims of trafficking and exploitation of persons shall be interviewed by a psychologist appointed by the Court ordering the measure, in no event being able to be interrogated directly by the parties.

When the necessary resources are available, the victims will be received in a “Sala Gesell”, with the recording of the interview in audio-visual support, when this can prevent the recurrence of the interview in successive judicial instances. The accused and his/her defence of such an act must be notified. In those processes where there is still no identified accused, the acts will be developed with judicial control, after notification to the Official Public Defender.

The alternatives of the event can be followed from the exterior of the enclosure through mirrored glass, microphone, video equipment or any other technical means to be counted. In this case, prior to the initiation of the act, the Tribunal shall inform the professional in charge of the interview of the interrogation proposed by the parties, as well as the concerns arising during the course of the interview, which shall be channelled taking into account the characteristics of the fact and the emotional state of the victim.

In the case of acts of recognition of places or objects, the victim shall be accompanied by the professional appointed by the Tribunal in no case being able to present the accused.

ARTICLE 28. - This law shall be regulated within a maximum period of ninety (90) days after its promulgation.

ARTICLE 29. - The executive branch shall issue the orderly text of Act No. 26.364, in accordance with Act No. 20.004.

ARTICLE 30. - Contact the national executive branch.

IN THE SESSION OF THE ARGENTINE CONGRESS, IN GOOD AIRES, TO THE DIECINUEVE DAYS OF THE TWENTY DAY TWO MIL DOCE.

— REGISTRATION BAJO #26,842 —

LOVE BOUDOU. - JULIAN A. DOMINGUEZ. — Juan H. Estrada. - Gervasio Bozzano.

- ERRATA FEE —

Honorable Chamber of Deputies of the Nation

Law 26,842

In the issue of Official Gazette No. 32.550 of 27 December 2012, on page 2, in which the aforementioned rule was published, the following transcription error was displayed in the original:

DONDE DICE: “ARTICLE 10. Incorporate as Title V of Law 26,634... ”

I should say: “ARTICLE 10. Incorporate as Title V of Law 26,364... ”