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Put behind bars for being young and poor

Members of the Córdoba provincial police are pictured congregating outside a local police station.
By Fabiana Frayssinet
IPS (*)

Arbitrary detentions by police in Córdoba violate constitutional rights and protections

Just being young, dark-skinned, poor, and wearing a hood or cap exposes you to arrest as a suspected offender in Córdoba. Arbitrary police detentions are based on the misdemeanour of “loitering”, meant to prevent crime but which in fact are a violation of constitutional rights.

José María Luque, known as Bichi, has lost count of the number of times he has been detained by the police for these reasons in Córdoba, the capital of the province of the same name.

Luque is 28 years old and lives in a poor neighbourhood. He was first arrested when he was 13 and on his way home from school with a friend, dressed in school uniform. He was kept in custody for a week.

“They stopped us, asked for our documents and arrested us. Just like that. They made up a criminal charge against me: attempted robbery and possession of a firearm. They let me go when the charges were dismissed,” he said.

Now Luque is a member of the Colectivo de Jóvenes por Nues-tros Derechos (Young People’s Collective for Our Rights), which fights police abuse. He says he is lucky because his family paid for a lawyer, and he has no criminal record.

But that is not what happens to many young people arrested under Cordoba’s Código de Faltas (Code of Misdemeanours), which came into force in 1994 and was reformed in 2007.

A study conducted by the National University of Córdoba and the Spanish University of La Rioja found that 95 percent of people detained under the Code of Misdemeanours do not have access to a lawyer.

“If you have a misdemeanour on your police record, you cannot get a certificate of good conduct, which most companies require in order to hire an employee,” Luque said.

The code penalizes behaviours that supposedly harm civil coexistence, such as disturbing the peace in a public place, not providing proof of identity, resistance to authority, drunkenness, begging or vagrancy.

The study indicates that nearly 70 percent of offenders are charged with merodeo (loitering), a controversial misdemeanour that allows police to pick up suspects who, in an Oxford Dictionary definition, “stand or wait around without apparent purpose” or “stand or wait around with the intention of committing an offence.”

Article 98 of the Code establishes fines or up to five days imprisonment for those who hang around vehicles or urban or rural buildings “with a suspicious appearance or without a proper reason, causing disquiet among proprietors, residents, passersby or neighbours.”

“It’s a completely subjective and arbitrary rule. There is no explanation of what to do in order not to arouse suspicion and be arrested,” said Luque, who has worked since he was a teenager and is now a master pizza maker.

Bichi and other young people of similar social extraction tend to wear particular garments that identify them: coloured hats or caps, jogging pants and flashy trainers.

But the police interpret these cultural identifiers as a presumption of guilt.

“Many of those arrested wear caps. Caps are suspect,” said Luque, one of the organisers of La Marcha de la Gorra (March of Caps), which has taken place every November for the past seven years to demand the repeal of the Code of Misdemeanours. In 2013, 15,000 people took part.

“Whatever they say, the loitering rule is used so that the police can arrest darker-skinned people from the shanty towns who are wandering around wearing caps,” lawyer Claudio Orosz, the representative in Córdoba of the human rights organization Centro de Estudios Legales y Sociales (Centre for Legal and Social Studies), said.

In Orosz’s view, the code is a reflection of a “conservative and timorous” society that has inherited the “repression and genocide” of the 1976-1983 Argentine dictatorship.

This prosecution lawyer for crimes against humanity said that the culture is the reason why the poor are subjected to the “Kafkaesque labyrinth” of loitering rules.

Underprivileged youth

According to the university study, people arrested for misdemeanours are mainly underprivileged youth aged 18 to 25. In 2011, 73,000 people were detained in the province, 43,000 of them in the city of Córdoba.

“It’s the usual thing: if you come from a poor area and you are poor, you dress in a certain way, you have certain features and a certain skin colour, then you are automatically considered a danger to society,” said Luque.

One of the most questionable aspects of the code is that powers that should be reserved for judges are handed over to police superintendents.

This is ironic because the Córdoba police “structure and support the major crime problems that cause most damage to society,” such as “human trafficking, drug trafficking, car theft and arms sales,” said Agustín Sposato, another member of the youth collective.

Aggravating circumstances, according to Orosz, are the unreliable systems for fingerprinting and carrying out police record searches in Córdoba police stations.

“Sometimes they take three days to find out whether the detainee has a record and to release them, which is really illegal deprivation of freedom,” he said.

“It’s a system of social control, formalized by the police, that undermines the basic checks and balances of constitutional law,” he said.

In Orosz’s view, “the Code of Misdemeanours gives enormous power of selectivity and social control to the police, without the proper judicial control.”

Luque is well aware of the fact. “The times I was detained, I experienced that sense of illegitimate deprivation of freedom, of being kidnapped, of not knowing when I was going to get out, of not knowing how to let my loved ones know where I was. The feeling of helplessness was very great, very dark, very ugly,” he said.

A bill to change the code

The governor of Córdoba, José Manuel de la Sota, on February 1 sent a bill to reform the Code of Misdemeanours to the provincial legislature, where it is being debated.

In the view of Sergio Busso, the leader of the parliamentary party for the ruling Unión por Córdoba, the rule on loitering should be preserved because it is important in the fight against rising public insecurity in the province.

Busso said that the Code “is an instrument to regulate and punish illegal behaviours that harm the rights of individuals or of society as a whole, but that do not amount to crimes.”

But he admitted the Code needs to be reformed, so that “arrests and fines may be applied only in special situations, and are replaced instead with alternative and secondary penalties, such as community service.”

He also said the enforcing authority should be changed. The new bill provides for specialist prosecutors or judges to decide misdemeanour cases, rather than police, “in order to separate those who judge from those who execute procedures,” and to ensure “an independent view.”

According to Orosz, this has already been tried, and it failed because the justice system collapsed under the avalanche of cases.

Busso said the reform bill requires loitering to be the subject of a complaint by an identified citizen. But Orosz said such a complainant would be “equally subjective.”

In Orosz’s view, the Code of Misdemeanours should be repealed and replaced with a code of coexistence establishing “the desired conducts, and conflict resolution mechanisms that do not necessarily involve jail time,” like community mediation programmes.

Sposato, for his part, said the proposed reforms “are just window dressing, to ease the climate of social conflict” in the province.

“What is at stake is people’s lives, their rights, and the possibility of equality for all of us in the province,” he concluded.

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