Abstract
This chapter aims to contribute to the comparative debate on the institutional setting, legal cultures and practices that influence the selection of judges, as this relates to the question of how much affinity, alignment and/or coincidence there should be between judges (or their decisions) and the community in whose name they purport to do justice. It provides an introduction to Argentina’s judicial system, its judicial selection procedures, and a description of how lay individuals take part in the process of administering justice. Finally, the chapter provides an overview of the institutional dynamics currently at play between the judiciary and the elected branches. Some brief remarks on the need for strengthening judicial legitimacy are offered.
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Notes
- 1.
Art 116, Argentine Constitution.
- 2.
Law 24,121.
- 3.
Law 26, 853.
- 4.
Civil and commercial lawsuits litigated in the City of Buenos Aires are also subject to the new structure. This creates, potentially, constitutional problems on federalism grounds, as the Constitution grants the City of Buenos Aires the power to establish its own courts (Art 129) and local courts have the final say on all non-federal legal issues, including civil and commercial matters (Art 75 inc 12). The new law creates a national court, other than the Supreme Court, that can revise decisions of tribunals that should be local in non-federal matters. The problem arises because courts in Buenos Aires City were, prior to the 1994 Constitutional Reform, ‘national’ courts created by Congress, and while the situation was altered under the amended Constitution, many jurisdictions have not been ‘transferred’ to the City yet.
- 5.
Art 3, Law 27.
- 6.
CSJN, Sojo, 32 Fallos 120 (1887).
- 7.
Art 43, Argentine Constitution.
- 8.
See Article 110 of the Argentine Constitution, ‘The Justices of the Supreme Court and the judges of the lower courts of the Nation shall hold their offices during good behavior…’
- 9.
Art 99, incise 4, Argentine Constitution.
- 10.
See, e.g., Art 2, Executive Decree 222/2003. The ultimate goal of the procedure is the pre-selection of candidates to the Supreme Court, and the assessment of their ‘moral aptitude, legal and technical capacities, background, and commitment to the defense of human rights and democratic values’.
- 11.
See, e.g., D Kapiszewski, High Courts and Economic Governance in Argentina and Brazil (New York, Cambridge University Press, 2012) 82, recounting several instances in which Menem acknowledged publicly that he wanted to have ‘his own Court’. Kapiszewski also cites several polls taken in the early 1990s showing that ‘only 20 percent of those surveyed believed that the [Menem’s] expanded Court would act according to law’, that ‘63 percent of respondents… doubted the Court was independent of the executive’, and that ‘the Court was the institution that most frustrated the public in comparison with congress, the police, the Catholic Church, and other cultural and political institutions’, ibid, 88–89.
- 12.
Art 4, Executive Decree 222/2003.
- 13.
Art 6, Executive Decree 222/2003.
- 14.
Art 5, Executive Decree 222/2003.
- 15.
Art 8, Executive Decree 222/2003.
- 16.
Art 9, Executive Decree 222/2003.
- 17.
Art 53, Argentine Constitution.
- 18.
Art 59, Argentine Constitution.
- 19.
Idem.
- 20.
20Art 99, incise 4 and Art 114, incise 1, Argentine Constitution.
- 21.
Art 7, incise 2, point d, Law 24,937.
- 22.
Art 13, incise C, Law 24,937.
- 23.
Art 30, Resolution 614/2009.
- 24.
Art 114, Argentine Constitution.
- 25.
See, e.g., Juzgado Nacional de 1a Instancia en lo Contenciosoadministrativo Federal Nro 6, Javkin v PEN; same court, Pitte Fletcher v PEN; same court, Fargosi v PEN; Juzgado Federal de 1a Instancia de Viedma, Unión Cívica Radical – Distrito Río Negro v PEN (declaring that such court lacked jurisdiction to decide a challenge against the reform of the Judicial Council; the lawsuit was redirected to the Electoral Court in Buenos Aires City).
- 26.
Art 22, Law 24,937.
- 27.
Art 7, Law 24, 937 as amended by Law 26,855.
- 28.
Art 25, Law 24,937.
- 29.
CS, 06/18/2013, Rizzo, Jorge G v Poder Ejecutivo Nacional, not yet published.
- 30.
La Nación, for instance, praised the ruling in the following terms: ‘In declaring unconstitutional the law that reformed the [Judicial] Council, the Court gave a lesson in the defense of republicanism. There are [some] steps that are so large, that initially it is hard to get a thorough understanding of their magnitude. That’s the case of the admirable decision through which yesterday the Supreme Court not only aborted the rampant attempt of the Government to subordinate the Judiciary in the most complete way, but it also gave a brave lesson of constitutionality, public-spiritedness, and republicanism… The Court has thus set a timely limit to the totalitarian advance that, under the guise of a supposed ‘democratization’ of the judiciary, has only tried to subject it to the absolute discretion of the executive branch, to turn the Judicial Council into an appendix of the ruling party. The ruling prevented that the body responsible for selecting and removing judges depended entirely on the political will of the person holding the Presidency of the Nation. The vitality of a democratic and republican regime is evidenced when the head of the judiciary, is able to rule as it did yesterday, despite the open attacks of the executive branch’ (see ‘Límite al totalitarismo’, La Nación, 19 June 2013). Clarín, in turn, assessed the decision in the following terms: ‘Not because it was expected, the decision of the Supreme Court is less transcendent. By a six-to-one vote, the Court sanctioned two crucial things for this historic moment. It confirmed that the members of the Judicial Council must be elected in accordance to the Constitution and not by the popular vote as provided by the Government-approved reform. And, thus, it foreclosed the possibility of removing or disciplining judges that may annoy the Kirchners. The ruling sets a limit to the Government’s attempt to dominate the Judiciary and run over the separation of powers. Hence, it transcends itself to become a message to the society: the Government cannot do everything it wants, even if it has gotten 54 % of the votes’, see R Roa, ‘Un fallo que se trasciende a sí mismo’, Clarín, 19 June 19 2013). Roa was one of Clarín’s editors, and the section where he published his note is called ‘from the editor to the public’ (Todo Noticias) (reporting the favorable opinions of a number of constitutional lawyers). The day of the ruling, but before the ruling was publicly known, Jorge Enríquez called the citizenship to support an eventual ruling declaring the unconstitutionality of the reform, praising the lower court that had ruled the reform unconstitutional, and declaring that the Court was ‘at the gates of history’ (J Enríquez, ‘La Corte, a las puertas de la historia’, Economía para Todos (18 June 2013), available at http://economiaparatodos.net/la-corte-a-las-puertas-de-la-historia/
- 31.
The day before the ruling, Justice Maqueda had received threats from members of La Cámpora, a juvenile branch of the Peronist Party founded to support the Kirchners’ political project (‘Piden que se investiguen las amenazas de La Cámpora a Maqueda’, Diario Perfil, 18 June 2013). Immediately after the ruling, the Federal Administration of Public Revenues (AFIP) began a tax investigation on the President of the Court, Justice Lorenzetti. That move was widely perceived as a political retaliation for the ruling (‘Alerta en la Corte Suprema: la AFIP investiga a Lorenzetti y sus tres hijos’, Diario Perfil, 25 June 2013).
- 32.
CS, 03/06/2014,M. 2503.XLII., Monner Sans.
- 33.
See Rizzo at paras 22–24 (transcribing passages from the debates in the Constitutional Convention).
- 34.
Art 13, Law 24,937.
- 35.
Idem.
- 36.
Art 114, Argentine Constitution.
- 37.
Acordadas are decisions, mainly (but not exclusively) of an administrative character, that are taken outside the context of a judicial case. Two notorious acordadas which far exceeded any administrative function were those through which the Court acknowledged and legitimated the de facto governments put in place after the putschs of 1930 and 1943.
- 38.
See, e.g., Acordada 36/2004, where the Court ‘suspended’ the Judicial Council Resolution 471/04 that had approved an agreement between the Council and the union of judicial employees by which the parties provided for a new scheme of appointments for employees and gave a general salary rise of 10 %.
- 39.
See, e.g., P Rodríguez Niell, ‘El Gobierno cerró un año marcado por la obsesión de reformar el sistema judicial’, La Nación, 1 February 2014. Rodríguez Niell argues that ‘the High Court had managed to stop the bill that deprived the Court from the control over the Judiciary’s budget and gave it to the [Judicial] Council. That initiative didn’t even make it to Congress. The President accepted to withdraw it [from the bill]’. Still, immediately after the Rizzo decision striking down the reform of the Judicial Council, the executive charged against the Court once again, threatening to send a bill to Congress that remove the Court’s control over the Judiciary’s budget (‘La última amenaza de Cristina a la Justice: retirarle el control de su presupuesto’, El Mundo, June 2013).
- 40.
Art 99, incise 4, Argentine Constitution.
- 41.
CS, Fayt, 322 Fallos 1616 (1999).
- 42.
14 Art 5, Argentine Constitution.
- 43.
CS, Iribarren, 322 Fallos 1253 (1999).
- 44.
See Report of the Primer Encuentro Nacional de la Justicia de Paz y Faltas (Chaco, Argentina, 10–11 June 2010) at 22 (intervention of Dr Augé), available at http://www.justiciachaco.gov.ar/jornadapaz/conclusiones/Conclusiones_Encuentro_Junio_2010.pdf
- 45.
Article 159 of the Chaco Constitution organizes the system of Peace Courts with lay or lawyer-judges, but it expresses a preference for lawyer-judges by requiring a high school degree and, ‘preferably, a law degree’, for the post of Peace Court judge. The Judicial Council makes a nomination for the post which, if not challenged by the Superior Tribunal within 15 days, becomes an effective appointment (article 9 Decree-law 2247/62). Peace judges are subject to removal by the Superior Tribunal (Art 162, incise 2, Chaco Constitution).
- 46.
In Chubut there are two different categories of Peace Courts. Under the first category, defined by a number of districts listed in the Constitution, judges are appointed by the provincial Judicial Council with approval of the corresponding Municipal Assembly (if no decision is made by the Assembly within 30 days of the nomination or if the Assembly does not reject the candidate by a two-thirds vote, the appointment becomes effective). Under the second category, judges are chosen by direct popular election. In both cases, judges can be lay individuals. They remain in post for 6 years, and are subject to removal in accordance with causes prescribed by law. See Arts 184 and 185, Chubut Constitution.
- 47.
Córdoba has a mixed system, with Peace Courts staffed by either lawyers or non-lawyers. Article 168 of the Córdoba Constitution only requires a judge in a Peace Court to be 25 years of age, with 3 years of residence in the corresponding district, and to have a law degree ‘where possible’.
- 48.
The Ley Orgánica del Poder Judicial de Catamarca (Organic Law of the Judiciary of Catamarca) provides for a number of Peace Courts with lay judges. Peace Courts with lawyer-judges act as appellate courts in regard to decisions issued by lay judges of the same district, see Arts 23, 31 and 35.
- 49.
In Entre Ríos, lay judges are appointed by the executive branch, based on a three-name list submitted by each municipality, and they are subject to removal by the Superior Court of the province, see Arts 135, incise 19 and 166, incise ‘c’ of the Entre Ríos Constitution.
- 50.
Article 169 of the Formosa Constitution grants the Superior Tribunal of Formosa the power to set up Peace Courts and to establish the requirements for appointment as a Peace Court judge. There are both lay and lawyer-judges in Formosa’s Peace Courts. See Report of the Primer Encuentro Nacional de la Justicia de Paz y Faltas at 24–25 (intervention of Dr Tievas).
- 51.
Peace Courts in Jujuy have lay judges. The Jujuy Constitution only requires that the candidate be a citizen of Argentina, of legal age, and that he or she has resided in the corresponding district for 2 years at least. They are appointed by the Superior Tribunal of the province for a 2-year period, see Arts 159 and 161, Jujuy Constitution.
- 52.
La Pampa is especially open to the participation of lay individuals in the Peace Courts system. In order to be appointed judge, an individual only needs to be an Argentine citizen, 22 years old, and to have completed elementary school. Peace Court judges are elected alongside other municipal authorities in the general elections, for a 4-year period, with the possibility of their being reelected, see Art 100, Constitution of La Pampa, Art 44; Ley Orgánica del Poder Judicial; Decree-law 2229/56, and Arts 1 and 2, Law 270. The Law 2, 574 (new Ley Orgánica del Poder Judicial, which abrogated Decree-law 2229/56) prescribes that the provisions of Decree-law 2229/56 regarding Peace Courts will continue to be in force until a new law, regulating the Peace Courts in accordance with Article 100 of the Constitution, is enacted, see Art 168, Law 2,574.
- 53.
Art 141 of the Constitution of La Rioja provides for the appointment of lay judges who need only to be 25 years of age, to have finished high school, and to fulfil a requirement of 2 years of immediate residency in the judicial department where the court is located.
- 54.
As of 2010, Neuquén had 32 Peace Courts, all of them with lay judges, by decision of the provincial Superior Tribunal. These lay judges are appointed by the Superior Tribunal, on the basis of proposals submitted by the corresponding municipal council. See Report of the Primer Encuentro Nacional de la Justicia de Paz y Faltas, 5 (intervention of Dr Castillo). See also Art 19, Law 2, 659 of Neuquén.
- 55.
Río Negro possessed, as of 2010, 49 Peace Courts with lay judges. They are nominated by the Municipal Council and appointed by the Superior Tribunal de Justicia of the Province. They are subject to removal by the provincial judicial council. See Report of the Primer Encuentro Nacional de la Justicia de Paz y Faltas at 3–4 (intervention of Dr Lutz).
- 56.
Article 163 of the Constitution of Salta organizes a system of Peace Courts with lay judges. They are appointed by the Court of Justice of Salta (the highest provincial tribunal), for a period of 4 years; they can be re-appointed and are subject to removal by the same Court.
- 57.
The Constitution of San Luis expressly provides for a system of Peace Courts with lay judges. The only requirements for a lay judge are to be 18 years old, to be a neighbour of the district, a citizen of Argentina, and to have a high school degree. Lay judges are appointed by the Superior Tribunal of the Province, for 3 years, and are subject to removal by the same appointing body. See Arts 220, 221 and 222, Argentine Constitution.
- 58.
In Santa Cruz, the Peace Courts have only lay judges. In order to be appointed lay judge, it is necessary to be a citizen of Argentina and to be 25 years old, see Art 64, Ley Orgánica de la Justicia de Santa Cruz (Organic Law of the Judiciary of Santa Cruz). See also Report of the Primer Encuentro Nacional de la Justicia de Paz y Faltas at 8 (intervention of Dr Maimo) (explaining that these courts are staffed by lay judges and that there are 20 such courts in the province).
- 59.
Santiago del Estero has a mixed system, with both Peace Courts with lay judges and Peace Courts with lawyer-judges. They have different functions. Peace Courts with lawyer-judges act as an appellate tribunal to the lay courts. The provincial Ley Orgánica de Tribunales (Organic Law of the Judiciary) prescribes that lay judges be selected by the Superior Tribunal of the province through an open contest. The Superior Tribunal then elaborates a five-candidate short list, and submits it to the executive branch to select three candidates. If the executive does not make the selection within 30 days, the Superior Tribunal does it (sending the top three candidates). Lay judges are appointed by the Chamber of Superintendence of the Superior Tribunal for a renewable 2-year period. See Arts 80, 84, 85, 86, 87 and 88, Law 3, 752.
- 60.
See Art 13, Decree-law 9229/79 of the Province of Buenos Aires.
- 61.
The Constitution of Mendoza organizes a system of Peace Courts and a law degree is not required for eligibility. In fact, there is no educational requirement, such as having a high school degree, and only a residence of 1 year in the province is needed for those judges who are not born in Mendoza, see Article 176, Constitution of Mendoza. However, Law 5, 094 introduced the requirement of a law degree to be eligible as a judge in a peace court (Article 2), while keeping the then-sitting lay judges in their posts (Article 15). Both the executive and the provincial Supreme Court are pushing for a reform that completely abolishes lay judges, see ‘El Ejecutivo insistirá para transformar los juzgados de paz’, Los Andes, 21 August 2011).
- 62.
The Constitution of Santa Fe does not provide for a system of Peace Courts, but they have been created by law pursuant to a constitutional habilitation. These courts are called ‘communal courts’ (as opposed to ‘Peace Courts’ in Santa Fe), but they do have power and functions identical to those of Peace Courts. While the Ley Orgánica 10, 160 (Organic Law of the Judiciary of Santa Fe) did allow for lay judges (Article 118, Law 10, 160), Law 13, 178 re-organized the system, amending Article 118 and adding the requirement of having a law degree to be appointed judge of the ‘communal courts of small causes’.
- 63.
In Tucumán, under Law 6, 238, Article 168 provides that once the Peace Court system staffed by lawyer-judges is in force, the lay judges will cease in their functions. They will have the options of becoming secretaries of the lawyer-judges (keeping their salaries and tenure), of staying in their posts with a very reduced function, or to be transferred to other posts in the provincial judiciary as employees. Since the new system has not been implemented yet, the Peace Courts still have lay judges, Report of the Primer Encuentro Nacional de la Justicia de Paz y Faltas 6 (intervention of Dr Castillo).
- 64.
See Arts 197, 203 and 204 of the San Juan Constitution.
- 65.
Art 24, Argentine Constitution.
- 66.
There are, however, some initiatives to mobilize a national debate on the topic, see a report (in ‘Impulso para el juicio por jurados’, La Nación, 8 September 2013) that a national conference of federal judges concluded that a general debate on the topic was needed. The Cristina Fernández de Kirchner administration has also used the topic as part of its initiative to, allegedly, ‘democratize the judiciary’ (see Asociación Argentina de Juicios por Jurados, ‘La presidenta Cristina Fernández de Kirchner anunció el juicio por jurados como la próxima reforma judicial (2013), available at http://www.juicioporjurados.org/2013/05/la-presidenta-se-refirio-la-necesidad.html.
- 67.
The law in Córdoba establishes jury trials for all economic and corruption crimes, as well as for ‘heinous crimes’. The jury is composed of eight lay jurors and two judges. The jury decides on whether the facts occurred or not and whether the indicted person is responsible or not. They do not determine the penalty, see Law 9, 182 of the Province of Córdoba.
- 68.
See Law 14, 543 of the Province of Buenos Aires, which establishes jury trials for cases where the maximum penalty exceeds 15 years of prison (Article 338). The jury is composed of 12 lay jurors and the judge, who acts as president of the jury (Art 228 bis). At the time of writing this report, the system is still being implemented.
- 69.
See Law 2, 784 of the Province of Neuquén, enacted on 11/24/2011, which establishes a system of jury trials for all criminal cases involving crimes against individual integrity, sexual crimes, and any kind of crimes when the victim has died or suffered very serious injuries and the prosecutor has requested a sentence no less than 15 years of prison.
- 70.
See MI Bergoglio and SA Amietta, ‘Reclamo social de castigo y participación lega en juicios penales: lecciones desde la experiencia cordobesa’ (2012) 3 Revista Derecho Penal 54.
- 71.
ibid, 55.
- 72.
See A Tarditti, ‘Análisis del funcionamiento del sistema por jurados en la provincia de Córdoba en el marco de la ley 9182’ (2012) 3 Revista Derecho Penal 326.
- 73.
See Bergoglio and Amietta, ‘Reclamo social de castigo y participación lega en juicios penales’ 58.
- 74.
JM Miller, ‘Judicial review and constitutional stability: a sociology of the US Model and its collapse in Argentina’ (1997) 21 Hastings International and Comparative Law Review 77, 79–80.
- 75.
ibid.
- 76.
See, e.g., JM Miller, arguing that ‘[t]he Supreme Court has been characterized by its relative weakness under all democratically elected governments since its 1947 impeachment, particularly in comparison with the many decisions in which it challenged the government in previous years’, in ‘Judicial review and constitutional stability’ at 153. See also A Pellet Lastra, arguing that there are two distinctly different phases in the political history of the Argentine Supreme Court. The first one begins with the establishment of the Court in 1862, until the 1947 impeachment: there was then an axiom of respecting the independence of the judiciary. The second one begins in 1947, when Courts are frequently allied to the incumbent president, see A Pellet Lastra, Historia Política de la Corte (1930–1990) (Buenos Aires, Ad-Hoc, 2001) 32, 37–39. See also LJ Alston and AA Gallo (2010), ‘Electoral fraud, the rise of Peron and demise of checks and balances in Argentina’ (2010) 47 Explorations in Economic History 179, 194: ‘The impeachment of the Court could be viewed as the culmination of the departure from the road towards a true system of checks and balances that was started by the coup of 1930 but burrowed into the beliefs of constituents with the decade of fraud during the 1930s’.
- 77.
See, e.g., AB Bianchi, arguing that the 1947 impeachment interrupted the possibility of calling the Court by the name of its most influential judge: ‘[u]ntil then, we could talk about Gorostiaga’s, Bermejo’s or Repetto’s Court. From then on, we have to tell the story in accordance with the changes that occurred in the executive branch’, in Una Corte Liberal: La Corte de Alfonsín (Buenos Aires, Editorial Ábaco, 2007) 25.
- 78.
D Kapiszewski, High Courts and Economic Governance, 69.
- 79.
One judge who was an existing member of the Court, Jorge Bacqué, resigned in protest at the enlargement, and another one (José Caballero) had resigned for personal reasons shortly before. Thus, Menem got six appointments.
- 80.
See, e.g., C Larkins describing the performance of the Court after the successful packing plan by President Menem and citing polls that show the very negative public image of the Supreme Court, in ‘The Judiciary and Delegative Democracy in Argentina’ (1998) 30 Comparative Politics 423, 429–430.
- 81.
Justice Bossert, a career judge with ties to the Radical Party appointed by Menem under the 1993 Olivos Agreement (by which Menem and former president Alfonsín agreed to reform the Constitution), resigned after being acquitted in the impeachment, so Duhalde nominated Senator Juan Carlos Maqueda to the Supreme Court. Maqueda received the support of his colleagues in the Senate and was quickly appointed to the High Court.
- 82.
It must be said, however, that the professional qualifications of Kirchner’s appointees were far superior to those of their predecessors. Given the fact that Kirchner had gotten to power with only 22 % of the votes, and only after Menem stepped down from the ballotage, he had to build his own basis of legitimacy and, therefore, could not afford to appoint cronies to the Court. Instead, he pushed a program of reestablishing the Court’s credibility, which resulted in much better appointments and better prospects for the institutional future of the Court.
- 83.
AM Hernández, D Zovatto and M Mora y Araujo, Argentina: Una Sociedad Anomica – Encuesta de Cultura Constitucional (México, Universidad Autónoma Nacional de México-Asociación Argentina de Derecho Constitucional-Idea Internacional, 2005) 87 and 135 (Table 71).
- 84.
ibid, 45.
- 85.
ibid, 66.
- 86.
ibid.
- 87.
ibid, 144 (Table 100).
- 88.
ibid, 98.
- 89.
ibid, 88 and 136 (Table 73).
- 90.
See the Americas Barometer for the year 2010, by the Latin American Public Opinion Project at Vanderbilt University. The results are presented in G Lodola, and M Seligson, Cultura Política de la Democracia en Argentina 2010 (Buenos Aires, Universidad Torcuato Di Tella-Americas Barometer-LAPOP, 2011) 116, available at http://www.vanderbilt.edu/lapop/argentina/2010-culturapolitica.pdf
- 91.
See AM Hernández, D Zovatto and M Mora y Araujo, Argentina: Una Sociedad Anomica, 128 (Table 42).
- 92.
ibid, 87.
- 93.
Some 63 % of the respondents chose Defensor del Pueblo as the officer charged with protecting individual rights, while 22 % chose the judges for that role, ibid, 72–73.
- 94.
ibid, 77 and 132 (Table 64).
- 95.
ibid, 78.
- 96.
ibid
- 97.
Kapiszewski argues that ‘[t]he Court’s instability and insecurity, and the weaker qualifications of some of its justices, encouraged it to defer to elected leaders…The Court had few exogenous or endogenous sources of strength to support rulings challenging elected leaders…elected leaders generally complied only partially or even ignored…strong challenges, given the established expectation that they would be eventually able to replace the Court with one that would defer to them, and the relatively low political cost of disobeying the unpopular institution’, in High Courts and Economic Governance, 31. For an instance of open defiance against a ruling of the Supreme Court whose majority had been appointed by the same individuals who were now disobeying, see CS, Sosa, 332 Fallos 2425 (2009). In that ruling, the Court ordered the Province of Santa Cruz to re-appoint a former Solicitor General who had been dismissed by then-Governor Kirchner (who would later become president) in a wholly unconstitutional way as determined by the courts. Former president and then-Deputy Kirchner, husband of then-President Cristina Fernández de Kirchner, organized a public act of opposition to the Court’s ruling, along with other prominent political figures such as Vice-President Daniel Scioli and Governor Daniel Peralta (see ‘Kirchner lideró el acto en Santa Cruz contra la Corte junto a gobernadores’, Diario Perfil, 10 October 2010).
- 98.
See, e.g., 308 Fallos 2268 (1987) (Petracchi, J, concurring, at [7]); 311 Fallos 1499 (1988) (Petracchi, Bacqué, JJ, dissenting, at para 7). Emphasis added.
- 99.
330 Fallos 855 (2007) (Lorenzetti, Zaffaroni, JJ, concurring, at para 13). Emphasis added.
- 100.
It must be noticed, however, that this lay participation is not direct, but channeled through political processes instead.
Reference List
Books
Bianchi, AB (2007) Una Corte Liberal: La Corte de Alfonsín (Buenos Aires, Editorial Ábaco, 2007).
Hernández, AM, Zovatto, D and Mora y Araujo, M (2005) Argentina: Una Sociedad Anomica—Encuesta de Cultura Constitucional (México, Universidad Autónoma Nacional de México-Asociación Argentina de Derecho Constitucional-Idea Internacional, 2005).
Kapiszewski, D (2012) High Courts and Economic Governance in Argentina and Brazil (New York, Cambridge University Press).
Pellet Lastra, A (2001) Historia Política de la Corte (1930–1990) (Buenos Aires, Ad-Hoc).
Chapters, Journals, Articles and Reports
Alston, LJ and Gallo, AA (2010) ‘Electoral fraud, the rise of Peron and demise of checks and balances in Argentina’ 47 Explorations in Economic History 179.
Anonymous (2010) ‘Kirchner lideró el acto en Santa Cruz contra la Corte junto a gobernadores’ Diario Perfil, 10 October.
Anonymous (2011) ‘El Ejecutivo insistirá para transformar los juzgados de paz’ Los Andes, 21 August.
Anonymous (2013) ‘Impulso para el juicio por jurados’ La Nación, 8 September.
Anonymous (2013) ‘La última amenaza de Cristina a la Justice: retirarle el control de su presupuesto’ El Mundo, 28 June.
Anonymous (2013) ‘Límite al totalitarismo’ La Nación, 19 June.
Anonymous (2013) ‘Piden que se investiguen las amenazas de La Cámpora a Maqueda’ Diario Perfil, 18 June.
Anonymous (2014) ‘Alerta en la Corte Suprema: la AFIP investiga a Lorenzetti y sus tres hijos’ Diario Perfil, 25 June.
Bergoglio, MI and Amietta, SA (2012) ‘Reclamo social de castigo y participación lega en juicios penales: lecciones desde la experiencia cordobesa’ 3 Revista Derecho Penal 54.
Larkins, C (1998) ‘The Judiciary and Delegative Democracy in Argentina’ 30 Comparative Politics 423.
Lodola, G and Seligson, M (2011) Cultura Política de la Democracia en Argentina 2010 (Buenos Aires, Universidad Torcuato Di Tella-Americas Barometer-LAPOP).
Miller, J (1997) ‘Judicial Review and Constitutional Stability: A Sociology of the U.S. Model and Its Collapse in Argentina’ 21 Hastings International and Comparative Law Review 77.
Roa, R (2013) ‘Un fallo que se trasciende a sí mismo’ Clarín, 19 June.
Rodríguez Niell, P (2014) ‘El Gobierno cerró un año marcado por la obsesión de reformar el sistema judicial’ La Nación, 1 February.
Tarditti, A (2012) ‘Análisis del funcionamiento del sistema por jurados en la provincia de Córdoba en el marco de la ley 9182’ 3 Revista Derecho Penal 326.
Case Law
Corte Suprema de Justicia de la Nación, Sojo, 32 Fallos 120 (1887)
Corte Suprema de Justicia de la Nación, Sejeán, 308 Fallos 2268 (1987)
Corte Suprema de Justicia de la Nación, Troiani, 311 Fallos 1499 (1988)
Corte Suprema de Justicia de la Nación, Fayt, 322 Fallos 1616 (1999)
Corte Suprema de Justicia de la Nación, Iribarren, 322 Fallos 1253 (1999)
Corte Suprema de Justicia de la Nación, Acordada 36 (2004)
Corte Suprema de Justicia de la Nación, Rinaldi, 330 Fallos 855 (2007)
Corte Suprema de Justicia de la Nación, Sosa, 332 Fallos 2425 (2009)
Corte Suprema de Justicia de la Nación, Rizzo, Jorge G v Poder Ejecutivo Nacional (2013) (forthcoming)
Juzgado Nacional de 1a Instancia en lo Contenciosoadministrativo Federal Nro. 6, 06/07/2013, Javkin v PEN La Ley Online AR/JUR/21410/2013
Juzgado Nacional de 1a Instancia en lo Contenciosoadministrativo Federal Nro. 6, 06/06/2013, Pitte Fletcher v PEN, La Ley Online AR/JUR/21409/2013
Juzgado Nacional de 1a Instancia en lo Contenciosoadministrativo Federal Nro. 6, 06/05/2013, Fargosi v PEN, La Ley Online AR/JUR/21416/2013
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Elias, J.S. (2015). Judges and Democracy in Argentina: An Elite in Search of Legitimacy. In: Turenne, S. (eds) Fair Reflection of Society in Judicial Systems - A Comparative Study. Ius Comparatum - Global Studies in Comparative Law, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-18485-2_2
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