December 5, 2013
Trial by jury up and running in BA province
Governor Scioli enacts law to implement a system that will apply to most serious crimes
Buenos Aires Governor Daniel Scioli yesterday enacted the law that establishes trials by jury for offences punishable with at least 15 years imprisonment, a ground-breaking system that reignites a debate over the fairness of a judicial process that is largely untested in Argentina.
Scioli celebrated the full enforcement of the law, a step that was demanded by some sectors who insist it is part of a broad effort to democratize the judiciary.
“With this measure, we will improve citizens’s participation in the resolution of criminal proceedings,” the head of the provincial state said in a rally held at the Teatro Argentina in La Plata City, the capital of the province of Buenos Aires.
Alongside Lieutenant Governor Gabriel Mariotto, Scioli explained that during his second term in office he devoted himself to carrying out structural reforms in the judiciary and he had as pending issues the trial by jury and the judicial police.
The new law establishes that a jury system will be used in cases in which the crime involved can be punished with 15 years of prison or above, or in cases of several felonies. Juries will be made of 12 citizens and six others will be appointed as alternates. They will receive instructions from a judge, who will explain to them the legal framework for the offence they will have to analyze.
To find an offender guilty, the jury will have to gather 10 affirmative votes and if the case involves life imprisonment the jury’s decision will have to be unanimous.
In Buenos Aires province, every citizen between 21 and 75 years of age with a full understanding of the language, and who is considered physically and psychologically fit, could be included in a jury list that will be selected by the drawing of lots by the provincial electoral board.
The law enacted yesterday was sponsored by Victory Front (FpV) Congressman Iván Budassi and Nuevo Encuentro lawmaker Marcelo Sain, a key Kirchnerite ally in the provincial Legislature.
“It is unbelievable that obeying the Constitution seems revolutionary,” Budassi yesterday wrote on Twitter, while Sain complained because he was criticized by a prosecutor at yesterday’s rally.
Trials by jury was a part of the 1853 Constitution and was kept in the 1994 reform, but is currently only implemented in the provinces of Córdoba and Neuquén.
“Besides encouraging civic participation, trials by jury are a fundamental tool to improve credibility in times when the judicial system is harshly criticized,” INECIP institute and the Argentine Association for Trials by Jury (AAJJ) celebrated when the Buenos Aires legislature approved the law on September 12.
A useful tool for democratization?
Some sectors demanding a judicial reform say that trial by jury should be enforced. In their first convention, pro-reform association Legitimate Justice called for trials by jury in all the branches of the Judiciary and considered it the first step toward democratization.
Months ago, Cristina Fernández de Kirchner administration hurried forth a judicial reform package, including a series of laws. However, the essential part of the reform package — the direct election of Magistrates Council members — was quashed by the Supreme Court in June and since then the Executive deepened its fight against the Judiciary.
But the only justice who considered the Magistrates Council reform constitutional, pro-government Justice Eugenio Zaffaroni, is not a supporter of trial by jury.
In an interview with the daily Página/12, Zaffaroni said that juries do not work properly in any part of the world and he said that no judge can explain to a lay person what it is taught in two or three years of Law school. That’s why the Justice said he was in favour of a mixed jury composed of magistrates and common people.
Chief Justice Ricardo Lorenzetti said that the system has not been completely successful in places where it was implemented and that it was expensive and should be introduced progressively.
Days after she was appointed at the Supreme Court in 2004, justice Elena Highton de Nolasco suggested that the trial by jury system should be introduced for minor crimes.
In Buenos Aires province, however, the decision seems to follow a different path. According to Highton de Nolasco, juries analyzing a serious offence, without any experience, could result in a dangerous ruling.
During the last convention for judges of Federal and National Courts held in Villa La Angostura three weeks ago, justice Carmen Argibay said that she used to be a supporter of the system but “experience” had shown her that it can be problematic due to economic, educational and communicational reasons.
For instance, the justice said that there is no possibility of restructuring the tribunals in order to build jury rooms for the citizens to deliberate, and she particularly highlighted her concern over “public lynching,” especially fuelled by the media in controversial cases.
Last month, judge María Laura Garrigós de Rébori, the president of Legitimate Justice, criticized the Justices for their “conservative inclination” after they quashed the Magistrates Council reform and she gave the example of their refusal of the trial by jury system. “They think that citizens are going to condemn every defendant because they are not lawyers. I am not afraid of trials by jury,” Garrigós de Rébori said.
However, there is at least one justice who supports the system: Juan Carlos Maqueda, who is probably one of the justices who is least tied with the Kirchnerite administration. Maqueda, along with Zaffaroni, took part in the 1994 constitutional convention and praised the system for certain cases.