UBACyT research projects

Starting date of the project

July 1, 2011

Ending date of the project

June 30, 2013

Code

20020100200271

Type of project

Group training

Title

Theory and practice of the principle of autonomy of Article 19 of the Constitution.

Director

Marcelo Alegre

Codirector

Roberto Gargarella

Contact

alegre@derecho.uba.ar

 

 

Keywords

Autonomy
Constitution
Privacy

Abstract

The project has two objectives: to enrich the interpretation of article 19 of the Constitution; and to inquire about its possible reform. Regarding the first, although recent Court decisions support a strong notion of autonomy, some doubts remain. We will focus on (a) the punishment of the drugs possession, (b) conscientious objection and (c) the compulsory extraction of DNA. a) As for the punishment of drug possession, the jurisprudence of the Supreme Court shows a zigzag. The ruling in “Arriola” is a major shift. It is disputed whether the rule provides a less extensive protection of autonomy than Bazterrica, or if Arriola simply restores Bazterrica. We will investigate a third hypothesis—that Arriola protects the autonomy even more strongly than Bazterrica. b) In relation to conscientious objection, the Court has addressed the classic conscientious objection but not new forms of objection which could affect the rights of third parties. Should institutional objection be allowed (like some statutes do)?; Is it permissible to impose on the objectors a deferral duty?; What kind of duties should the authorities of the medical institutions have? Our hypothesis is that it could be possible and desirable to design regulations protecting both the objector's autonomy and the patients’ rights. c) The compulsory extraction of DNA poses the question about the constitutionality of Article 218bis of the Penal Code. Does Article 19 of the Constitution protect the refusal of the victims to the DNA tests? Our analysis include two considerations: (1) abstention by the state could prolong the suffering of the families, (2) There may be reasons of public morality enabling government intervention regarding the illegal appropriation of children. Our hypothesis regarding the second objective –i.e. the need for a reform of Article 19 of the Constitution- is that although it is possible to construe a broad conception of the principle of autonomy with the current text, adjustments could be made to the article, on three notions: (a) "private actions" (b) "harm to others" and (c) "public morality." We believe that: a) The conditions of justiciability (harm to others, etc.) differentiate the private and public actions. Perhaps it would be convenient to eliminate the reference to the private nature of actions. b) The notion of injury does not include simple dislikes but only harm; c) the term "public morals" could be rephrased according to the Rawlsian concept of public reason.