December 20, 2014
BA province begins trial by jury
Selection to be held today to pick 12,000 provincial residents who may be called to courtA new era dawns today for the courts in Buenos Aires province, where the judiciary will take its first step to increase social participation within its sphere, as most people residing in the country’s most populous district could be chosen to sit on a jury.
Twelve thousand possible jurors will be selected today by a random draw with the goal of getting 6,000 men and 6,000 women who reside in Buenos Aires province to eventually take part in the system that seeks to democratize at least some legal proceedings, while assuring those charged with certain crimes will be sentenced by a jury of their peers.
“This is a fundamental step,” Vanina Almeida, a member of the Argentine Association for Trials by Jury, said. “This system was established in the 1853 Constitution but the Congress has failed to legislate on the issue.” Some provinces, including Córdoba and Neuquén, have already instituted a jury-trial system.
In a conversation with the Herald, Andrés Harfuch, one of the heads of Institute for Comparative Studies in Criminal and Social Sciences (INECIP) explained that “we will be selecting citizens who will be acting as judges to apply the law directly.”
The system, however, also faces criticism from jurists and members of the Supreme Court.
Harfuch explained that the system of trial by jury will contribute to a general decentralization of power.
“Judges will now have to share their responsibilities with 12 citizens,” Harfuch added.
For the members of INECIP, one of the organizations that has been promoting the project, the implementation of trials by jury in Buenos Aires province marks a step forward.
“The judiciary is the only branch of the state that does not involve any kind of citizen participation. The power is concentrated with the magistrates and that’s something that must be changed,” Almeida added.
In September 2013, the law that establishes trial by jury in Buenos Aires province for cases that could have a minimum penalty of 15 years in prison was approved. It establishes that any person between 21 and 75 years old can be called to be part of a jury in a criminal case.
Both Argentines and naturalized citizens with more than five years residency in the province are eligible to sit on a jury but they have to fully understand the language and must be deemed to be physically and mentally fit for the post.
The process has different steps. The first will take place today, when 12,000 citizens will be selected by lottery. Then, these citizens will be divided according to the place where they live and will be called to take part in a jury for a crime committed in that jurisdiction. The list will be valid for one year. Next year, another l 12,000 citizens will be chosen.
“The juries will determine culpability in a crime committed in the area where they live,” Harfuch confirmed.
Before each case, 48 potential jurors will be called and they will hold a meeting with the parties, including the judge, the prosecutor and the defence lawyers. They will be asked several questions to try to determine whether they are impartial or if they are directly or indirectly linked to the case. Then only twelve will be selected to sit on the jury.
Members of the government and of security forces or those who work for prisons are forbidden from taking part. Lawyers and public notaries are also exempt, as is anyone convicted of an intentional crime or anyone indicted for a criminal offence. The exemptions also apply to religious and political leaders.
“The idea is to have impartial citizens,” Harfuch explained.
The jury will have to be made up of an equal number of men and women and there will be a number of substitute jurors designated, who will have to be in the courtroom during the entire trial.
Guilty, not guilty
After a trial, the 12 members of the jury will have to deliberate behind closed doors on whether a suspect is guilty or innocent.
If 10 of the 12 members on the jury find the defendant guilty, the judge will then decide, in another hearing, the sentence that the person will receive.
If the defendant is found innocent, he or she will be cleared of charges.
An open debate
According to sources, there is a bill in the national Senate to discuss trial by jury. In 2004 and 2006, President Cristina Fernández de Kirchner — when she was a senator — presented a bill to discuss the system.
A year ago, the president also promoted a package to reform the judiciary in the middle of a heated dispute with the Supreme Court, which was then mitigated when the country’s top court declared the 2009 Broadcast Media Law constitutional.
But last week, new controversy appeared to have been sparked when Foreign Minister Héctor Timerman and Justice Minister Julio Alak denounced the Criminal Appeals Court for interfering in the political sphere, following their declaration that the memorandum of understanding sealed with Iran to investigate the AMIA bombing was unconstitutional.
There are several members of the Supreme Court who do not back trial by jury. For instance, Eugenio Zaffaroni has said that juries do not operate 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.
Late Justice Carmen Argibay was also an opponent of the jury system.
Chief Justice Ricardo Lorenzetti has tried to strike a middle ground, saying the system has not been completely successful in places where it has been implemented and that it is 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, inexperienced jurors charged with analyzing a serious offence could produce a dangerous ruling. Last year, Highton de Nolasco considered that the system could show how difficult it is to decide whether to acquit or sentence a person.
“Justice is undergoing a profound crisis,” Harfuch said. “Maybe it’s time to obey the Constitution.”
Almeida agrees: “Some justices believe people aren’t able to understand legal proceeding but making legal procedures and rulings understandable is a challenge that directly involves the courts.”