A blow for trial by jury
Justice of Cordoba declared unconstitutional the 9182 law that established the trial by juries in the province. The judges criticized the decision of the local legislature to implement the system. Considered exercised powers under the National Congress. The court held that the rule contradicts constitutional principles.
He solved the Second Chamber of the Crime of the city of Córdoba, composed of judges Eduardo Valdés, José Martínez Iraci and Roberto Torres, in the file titled "Monk, Jorge Gonzalo and other pss.aa. theft, violation of domicile, robbery, etc. "following the constitutional proposals of the 9182 Act made by lawyers Néstor Gutiérrez Vela, Carlos Alberto Morelli, Carlos Luis Hamity, and the House tax, Raul Gualda. Gutiérrez Vela, Alejandro Esteban defender Easter, argues that the eventual integration of the house with juries mind a violation of the right of the defendant to be tried by judges over the case (arts. 18 CN, 39 Provincial Constitution, 14. 1 ICCPR and ACHR 8) due process of law, entering into serious conflict with the provisions of art. 31 of the CN, as they disavow the normative supremacy. It also clarifies that if you follow the procedure of art. Act 57 of 9182 be submitted to the defendant to a tribunal appointed under a law that predates the fact he is accused, determining a violation of the rights of his client. It explains the art. 57 determines that the date to be taken into account to determine if the Criminal Appeals necessarily be integrated with juries, is the lifting of the case to trial. For his part, Carlos Alberto Morelli lawyer representing his client Diego Martin Pereyra, called the 9182 law unconstitutional on the grounds that it is not in accordance with the spirit of Article 162 of the Provincial Constitution. While Carlos Luis Hamity lawyer representing accused Monk, also calls for the application of Law no 9182 on the grounds that it violates Art. 162 of the Provincial Constitution "as it alters and distorts the will of the constituent power derivative, which will include judges was just so popular alternative." Meanwhile, the prosecutor Gualda, highlights that the implementation of the jury is a faculty of the National Congress. After analyzing the provisions of the 9182 Act and noted that it is regulated popular participation majority concludes that it has departed from the design by the Provincial Constitution. It also introduces new questions that, in his opinion, invalidate the jury classic considered to violate the republican system of government, the principle of impartiality, the judge, and the duty to establish and encourage the sentence logically and reasonably. In the same vein, Gualda maintains that the participation of lay judges contradict the provisions of art. 22 of the CN, which states that the people neither deliberate nor govern except through their representatives. A time point that juries do not meet the fitness requirements required by art. 157 paragraph 2 of the Provincial Constitution. The 9182 Act, which came into force in January 2005, established mandatory duty to integrate the Criminal jurisdiction cameras (and integrated with three technical judges) with no permanent juries, where they are doomed to the crimes within the criminal justice system economic, administrative corruption and the crimes of aggravated homicide against sexual integrity which result in the death of the person offended, kidnapping for ransom followed by death, murder or on the occasion of torture and murder by reason or occasion of theft. Jurors are integrated with eight members and four alternates, being limited its intervention to decide on matters relating to the existence of the crime, with discrimination on the circumstances and relevant legal participation of the accused. The court first agreed with the prosecutor's arguments regarding the regulation of the Juries Act was Congress' power. "The literal analysis of these provisions (NPP) that clearly emerges is facing a power that belongs to the National Congress for which no deadlines were set," the judges said. And added: "The rules established by Act of the Province of Córdoba 9182 has involved the exercise a power delegated by the province to the nation through the Constitution (art. 24 and 75 inc. 12) and therefore has violated the express prohibition in the art. 126 of the Constitution. " In addition, the court agreed with the prosecutor that "any regulation of trial by jury, can not be mandatory without more, but should be subject to the request of the defendant or at least be possible to be waived." "The Regulations Act 9182, providing for mandatory juries in an amount greater than the three technical judges, has departed from the design and limits of local constituent power, incurring a regulatory excess of art. Local 162 of the Constitution, thus breaching the security of Natural Justice (art. 39 CP and 18 of the Constitution). " Respect lack of suitability of juries, the court held that are not autonomous, because they presuppose as a necessary condition for treatment to validate the integration of the Chambers of the Crime of the Province juries in an amount greater than the number of technical judges these fields. "When you have rejected this possibility in the previous paragraphs of this resolution, are considered to have become so abstract that will not be subject to special treatment in this resolution," they said. Therefore, the court did place the charge of unconstitutionality, and therefore declared unconstitutional the law generally 9,182 to contradict Articles 24, 75 inc. 12 "in fine" and 126 of the Constitution. It also declared unconstitutional in particular Articles 2, 4, 29 and 44 of the 9182 Act, because they contradict the arts. 18 and 24 of the CN, art. 8 paragraphs 1 and 2 inc. h) of the American Convention on Human Rights, art. 14, paragraph 5 th International Covenant on Civil and Political Rights and art. 75 inc. 22 of the CN, and the arts. 39, 41, 155 and 162 of the Constitution of Cordoba. Interlocutory order
NUMBER:
Córdoba, 8 September, two thousand six .-
AND SEEN: This incident in the file titled "Monk, Jorge Gonzalez and other pss.aa. theft, address rape, robbery, etc. "deal was resolved to solve the constitutional proposals of the 9182 law made by Mr. Advisory Néstor Gutiérrez Vela, Dr. Carlos Alberto Morelli, Dr. Carlos Luis Hamity and Mr. Solicitor-Dr. Raul Gualda;
AND WHEREAS: I. - 1) That fs. 1 / 3 vlta., A work presentation by Mr. Nestor W. Counsel Vela Gutierrez on behalf of his client Esteban Alejandro Pascua, where he seeks the declaration of unconstitutionality of art. Provincial law 57 of 9182, making express reservation of an extraordinary appeal. Argues that the possible integration of the house with a mind juries violation of the right of the defendant to be tried by judges Natural cause (arts. 18 CN 39 Provincial Constitution, 14. 1 8 ICCPR and ACHR) due process of law, entering into serious conflict with the provisions of art. 31 of the CN, as they disavow the supremacy of law .- He added that proceeding as provided in Art. Act 57 of 9182 be submitted to the defendant to a Tribunal constituted under a law that predates the fact he is accused determining a violation of their rights. Specifies that the text of art. 57 determines that the date to be taken is to establish if the House of the crime must necessarily be integrated with juries, is the lifting of the cause trial, which believes violates the guarantee of Natural Justice established in the art. 18 of the CN, at art. 39 of the Provincial Constitution and the provisions of international treaties incorporated into our Constitution under Art. 75 inc.22 that recipient in the art. 14.1 ICCPR and art. 8 of ACHR. Quote to support your argument authoritative doctrine .-
2) A fs. 7/8vlta., Defense attorney Carlos Alberto Morelli on behalf of his client Diego Martin Pereyra, seeks the 9182 law unconstitutional on the grounds that it is not in accordance with the spirit of Article 162 of the Provincial Constitution. Analyzing the daily session of the constitutional convention 1987, T. I pags. 858 and following, holding that through art. 162 only authorized a subsidiary of justice intervention technique as a psychological and ethical contribution, without replacing the technical bench because she is uniquely qualified to inform and motivate their resolutions as required by art. 18 of the Constitution and Art. 155 "in fine" the local Constitution, which requires "legal and logical." He adds that the mere reading of the disputed law, it is noted that these principles are not guarded as well as due process, because the number of lay judges is eight by beating almost three times the number of technicians. Thus argues that the involvement of the laity no longer becomes a subsidiary and principal which contradicts the will of the constituent provinces. He adds that when lay jurors and judges to achieve most technicians are in the minority, the president will support the resolution, and that this means that the technician is forced to try to give legal form to a resolution coming through the intimate conviction. Ultimately considered to be like trying BUILT two links of a hose one square and one round, and do not work, but my goal is to transfer water anyway, I fix it with duct tape, water will flow but the union is going to sneak a lot of fluid. Ultimately concludes by arguing that it is a "social hope" that the intimate conviction can be magically transformed into healthy rational criticism ".- doctrinal source cites the work of authorship of Dr. Raúl Gualda published in the Legal Seminar No. 1481 of 28/10/2004 pags.557 and subsequent .-
3) A fs. 9 / 11 Dr. Carlos Luis Hamity on behalf of his client Jorge Gonzalo Monk, also requested not to apply the 9182 law on the grounds that it violates Art. 162 of the Provincial Constitution as altered and distorts the will of the constituent power derivative, whose will was only incorporated judges so popular alternative. It further argues that constitutes a constitutional obligation to justify his opinions so that should not be artificially put together by a judge technical reasons the desire to provide arguments to support the inner belief (mere opinion) of the jurors. He added that the profound convictions are impossible to refute and that the implementation of trial by jury means an illegitimate and irrational expansion of the state's punitive power pulling underground nature of the constitutional requirement to substantiate and justify the criminal sentence .-
4). A fs. 12 / 38 written work submitted by the Chief Prosecutor of the Court House Dr. Raul Gualda, who performs various questions the constitutionality of the 9182 Act local. First, after conducting a historical analysis of the material and formal sources of provisions which relate to the jury in the Constitution, concludes that its implementation is a faculty of the National Congress, for which no terms and that it originally intended as a safeguard against abuses of the royal prerogative to self-righteousness of absolute monarchy. In relation to art. 162 of the Provincial Constitution makes his historical interpretation, to which it refers to daily sessions of the Constitutional Convention of Conventional citing events informant. From these historical elements argues that the design of the local constitution deviates from the Anglo-Saxon jury that the intervention of technicians and lay people are on the same level and popular participation is secondary to the technicians, which presupposes laymen minority integration. After analyzing the provisions of the 9182 law and noted that popular participation has ruled the majority, concluded that the design has been set aside by the provincial constitution. It also introduces new questions which in his opinion, invalidate the jury it believes that violate classical republican system of government, the principle of impartiality, the judge's Natural, and the duty to establish and encourage the sentence logically and reasonably. As the first Republican representative says this is violated because the participation of lay judges contrary to the provisions of the CN art. 22 which states that the people neither deliberate nor govern except through their representatives, and they are not subject to any system of liability for acts performed. It also states that juries do not meet the fitness requirements required by art. 157 paragraph 2 of the Provincial Constitution .- In relation to the guarantee of impartiality, citing Bunge adds that the concept is wrong that a majority of people are reaching better true that a minority (Social Science Discussion ") argues that juries are not prepared to act in that way and more so when the jurors from a society fearful and embarrassed by insecurity to lack of knowledge of how the function operates Judicial .- The principle of Natural Justice argues that art. 2 of Act 9182 to provide "Provides that the Chambers in the Criminal jurisdiction necessarily be integrated with juries, when they are doomed to try crimes ....", is a designation of a special commission because it" ex post facto "and because it is done to judge certain crime. Recognizes that, while it integrates the technical Tribunal, with this integration alters the composition of the Trial Court, resulting in a different institution body that is created to judge a specific event and post-fact way. Add the arts. 2 and 3 of the 9182 Act to impose mandatory integration juries know the nature of individual guarantee matter jury trial in accordance with the provisions of art. 24 in fine of the CN, because its regulation has been omitted as an option of the accused or at least can be expected to withdraw their presentation, which in his view, reinforces the idea that it is facing a special committee imposed for the prosecution of certain crimes .- As regards the constitutional principle of motivating and reaching a decision, said that according to the provisions of the 9182 Act lay the Popular Jury to decide on the existence of fact, discrimination against legal circumstances relevant and the defendant's participation (art. 44, paragraph 1, according to 41 inc. 2 and 3) as to the guilt or innocence (art. 44 § 1 in fine). Considers that these powers are incompatible with the degree of fitness or suitability of the jury that considered not able to decide as the manner required by the Provincial Constitution in Art. 155 and art. 193 of the CPP, this is a logical and legal grounds. Add to juries to decide they do based on their intimate convictions and therefore the art. 44, Paragraph 2 provides that "should there be disagreement between judges and jurors, and they form a majority, the logic and legal reasoning of the majority decision is borne by the Speaker of the House.." Before this regulation was questioned the Solicitor-whether it is possible to reconcile the two systems of assessing evidence, drawing the conclusion that this is not legally or constitutionally feasible, so it states that it affects the guarantee of due logical reasons required by art. Local 155 of the Constitution and art. 18 of the CN-
II .- In order to come to consider the questions made to the trial system established by the 9182 law, it shall first describe the most important aspects of those rules, and then address the issue by the parties . The 9182 Act was enacted as Art. 1, with the explicit purpose of regulating the art. 162 of the Provincial Constitution, and did so by establishing mandatory duty to integrate them, with criminal jurisdiction, (and integrated with three technical judges) with no permanent juries, where they are doomed to the crimes within the criminal justice system economic administrative corruption and the crimes of aggravated homicide against the sexual integrity of which result in the death of the person offended, kidnapping for ransom followed by death, murder or on the occasion of torture and murder by reason or occasion of theft. (Conf. arts. 1 and 2 of the Act). The integration of juries is expected in a number of (8) eight members and four (4) alternates, being limited its intervention to decide on matters relating to the existence of the crime, with discrimination of the relevant legal circumstances and the involvement of accused (art.44 1st Conf. paragraph.) As regards the procedure for reaching a decision on these issues provides that vote, the eight juries and two technical judges and requires a simple majority. Then distinguish the case that mediate conflict between technical judges on one side and juries on the other, the latter forming the majority, which provides a third judge to be technical, he served as Chief Justice which is in charge of logic and legal reasoning of the majority decision. (Conf. arts. 43 and 44). As the presiding judge, art. 29 provides that in addition, lead the debate and participate in discussions without vote on matters relating to the existence of the crime and participation the accused, except in case of a tie and always vote to resolve preliminary matters that had been deferred, the legal qualification and sanctions such as restitution or compensation demanded (Conf arts. 23 and 41) .- From the above regulations stemming from the 9182 local law, and defining their own notes of what the legal culture is known as "trial by jury, whether in Anglo-Saxon form, or in the manner characteristic of continental Europe, this is the Jury jurors, namely: a) The integration of the Tribunal with a number of juries on a non-permanent, in an amount greater than the judges for technical or career, b) limitation of the intervention of juries to resolve the issues referred in fact, note characteristic of Anglo-Saxon model
III .- .- We first address the issue raised by the District Attorney of House as to who shall have the power regulation on the implementation of jury trials and to do start by analyzing the Constitution. Article 24 in fine, provides: "Congress shall promote .... The establishment of trial by jury" and the art today. 75, to establish the powers of the National Congress, where inc. 12 "in fine", you have to dictate "... especially for all the general laws Nation .... And that requires the establishment of trial by jury.. " Also art. 118 provides that: "All ordinary criminal trials, ... .. were completed by jurors, after the establishment of this institution in the Republic." Literal
the analysis of these provisions clearly emerges that is facing a power that belongs to the National Congress for which no set deadlines. The analysis of the provisions of the NPP to be completed by the provisions of art. 126 which reads: "The provinces do not exercise the power delegated to the Nation. ... They can not enact the Civil, Commercial, Criminal and Mining, after Congress had enacted them; ... "Even in its literal interpretation suggests that the provinces are prohibited from exercising powers delegated to the Federal Government and within the prohibition is, to dictate the Civil Code, Commercial, Criminal and Mining, authorizing only exceptional and temporary basis to do so until Congress had enacted. This express exception, does not include legislation to implement the trial by jury, so it is reasonable to interpret this legislative power has been within the prohibition of exercising powers delegated to the Nation. As for the temporary permit issued to the provinces fund codes, due to a historical reason, because the coding work entrusted to Congress on the projected time period in which some provinces continued to apply local law or dictated, as in the case of the Penal Code, one of their own. Paradigmatic example of this was known as the Weaver project, which was adopted until the Criminal Code penalizing the First National in 1921, eleven provinces (La Rioja, Buenos Aires, Entre Rios, San Juan, Corrientes, San Luis, Catamarca , Mendoza, Santa Fe, Salta and Tucumán. (see Zaffaroni, Eugenio Raúl, Alagia, Alejandro; Blocher, Alexander "Criminal Law, General Part 2nd Edition pags.248/250 Ediar Ed.). Simultaneously Provinces organized their judiciaries, dictated Organic Laws and Procedure Codes, deriving these powers not delegated and so did not instituted trial by jury, because after 1853 this was an express and exclusive power of the Congress of the Nation. This division of powers was recognized in the Constitution of the Province of Córdoba, 1870, by providing in the art then. 133, and then art. 134 that: "All ordinary criminal cases not arising from the right to impeach granted to the House of Representatives, and even those that are derived, whenever they deal with ordinary crimes, shall be determined by jury, after it was established by the Government the National Institution in the Republic ...".- This interpretation was upheld in a peaceful manner by the Supreme Court in the preceding "Loveira F155: 92," Democratic Platform "F: 208:21 and" Tiffember "F: 208:25, the first of the year 1911 and the other in 1941. In the first of the above dated December 7, 1911, questioning the technical competence of a court of Justice National Federal Capital to judge an act of slander, it is argued that it should be by a jury. The highest court said, "That as to the merits, Articles 24, 67 and 102 of the Constitution Congress has not imposed a duty to proceed immediately to the establishment ,...." jury trial and that "... the same Mexican Congress as the local legislature in the capital, and in exercise of powers similar to those they have in the provincial legislatures in the organization of their respective courts, have been authorized to regulate the freedom of the press and to hear their abuses to the jurisdiction of the courts of common law that exist in it and can not be confused with federal, limited competition and exceptional ....". The grounds given by the Highest Court shows the exclusive jurisdiction of the National Congress to legislate, without limits on jury trials for all the territory of the Nation, and the competence of the Provinces to organize their technical courts .-
In conclusion, the regulations established by the Act of the Province of Córdoba 9182 has involved the exercise a power delegated by the province to the nation through the Constitution (art. 24 and 75 inc. 12) and therefore has violated the express prohibition in art. 126 of the Constitution .- Even accepting as a mere hypothesis, which has been previously ruled that the province could resume powers delegated to the non-exercise of these by the National Congress, it can not validate the 9182 law because it in no time was cited as its purpose, the regular and now resumed delegated authority, has only been cited as the regulatory framework of art. Local 162 of the Constitution .-
IV .- The Attorney General questions the Art House. 2 of Act 9182 to establish the mandatory integration of the Houses of Crime with juries, it means that according to art. 24 of the CN "jurors" are a guarantee for the accused. Argues that to safeguard the security integration should be regulated so optional for the parties, or provided that the defendant is entitled to resign .- In this regard, it should be noted that this has been understood two of the current parliamentary state projects in the Senate of the Nation, one originated by the PEN (SEN Expte.: 0214-PE-04) and another initiative of Senator Jorge R. Yoma (SEN Expte: 2314-S-03). Both envisage, in two articles third, the same rule that governs the choice to favor the accused to waive trial by jury within summons. These projects have been echoed, in turn, has authorized the National Doctrine held that the location of the reference to jury trials, in the second chapter of the NC, entitled "New Rights and Guarantees" in their art. 24, authorized to interpret it as a guarantee for the accused. In this subject, there are Edward M. Jauch (Rights of the accused "Rubilzal Culzoni Ed, Ed 2002pags. 226/227), Joseph I. Cafferata Nores, "Current Issues on the criminal 3 rd ed. updated, Ed Del Puerto Buenos Aires 2000 P $ 117-193, quoted in turn in conjunction with Aida Tarditti work, commenting on the current art. 369 of the CCP (Code of Criminal Procedure of the Province of Córdoba Mediterranean Edition, Volume 2 page 159). And more recently also been given by the accused as being a guarantee of trial by jury, Edmund Samuel Hendler, in his work "The Meaning guarantor of trial by jury" in "Criminal Justice Studies Tribute to Professor Julio BJ Maier" Editors Bs Port As.2005 Págs.329-341. The authors cited have systematically reinforced its solid performance historical knowledge about the origin of the institute, going back and relating to the immediate antecedents of our Constitution to the present time the United States were still a British crown colony. Designated as the jury trial was, on the historical process of the people, a victory for the settlers to be judged by their peers, not by officials of the king .- arise as a result, reasons (systematic and historical) to interpret any regulation of trial by jury, can not be no more compulsory, but should be subject to the request of the defendant or at least be possible to be waived as they have picked up the ongoing projects of the National Senate.
V. - We now address the local charge of unconstitutionality, which is common to the District Attorney and defense counsel, as all relate what they consider the distortion of the system provided by art. Local 162 of the constitution and subsequently affecting the security of the legal and logical justification of the sentence required by Arts. 41 and 155 of the CP As to the constitutional design local judge, and to specify its defining features, because from these premises will be able to consider whether the 9182 law has exceeded the framework and therefore are from the questions made by the parties. Art. Local 162 of the Constitution provides that "The law may determine the cases in which the collegiate courts are also integrated by jury.." For a better understanding of the issues covered by the constitutional provision we believe should be interpreted in a systematic manner with the other provisions that define the characteristics of the Córdoba Judiciary. Thus the art. 158 sets as a condition for integration of a lawyer, with various antiques in the exercise according to the position, the art. 155 establishes the duty to resolve cases involving legal reasoning and logic and art. 154, provides as casual disregard removal law inexcusable. The systematic and harmonious interpretation of those provisions there is the creation of a technically based Justice, which provides the required framework that gives meaning and limit the terms used by the legislature constituent in the art. 162. This will include the art. 162 relates to a power of the Legislature that this may or may not exercise, but his refusal - as happened for a long time in the criminal justice system is maintained even in the present in relation to other tribunals, affecting the normal functioning of the courts colleges of the province. The power of the legislature is then limited to provide an integration of ancillary character juries, not necessary Courts subsidize schools in the province and integrated as necessary and main technical judges. The aforementioned systematic framework also allows to define the meaning of the term "jury" as used in art. 162, eliminating the possibility of being interpreted as a separate and independent court of how courts. Thus the term "jury" should not be interpreted as a collective noun, but as a way of naming, new and potential members of the collegiate courts, ie each of the lay judges or juries .- Results interpretation to have been reached by the use of systematic, are corroborated by consulting the daily session of the Constitutional Convention of 1987 (session 30 March to 1 April 1987 .. pp. 858/860). The conventional informant, Dr. Cafferata Nores, when discussing art. 162 said then to distinguish the technique justice composed of laymen "We thought, as stated above, the possibility of integrating these two systems have been considered antithetical on the basis of a total integration, which contrary to occurs in Anglo-Saxon system (in which the jury was the judge of fact and a finding of guilt and technical judge intervened only in the conduct of the proceedings and the determination of the penalty) where we intend to integrate technical and lay people are on the same level in order to their jurisdictional powers. Is thus clear that the institution we are proposing is closer to escabinato that is effective in many European countries, the jury of the Anglo-American style. However, we prefer the word jury and we used it well, believe it is more easily understood by common people. It is absolutely essential to do this we project that this solution assumes the official judge and technical functions and features which we adopted at that meeting. Popular participation as a subsidiary of thought because believe that only the right technician can perform the functions that the administration of justice requires the judge. Because the judge's task demands no less professional knowledge than any other, as would be the medicine or technology. In addition, the technical judge is usually isolated sectoral pressures and enjoy independence and tenure that put you in a better position to reject the influences that may try to divert his will. But we also believe that the intervention of individuals can be configured, in certain cases, an effective technical assistance for justice for that matter involving a psychological and ethical contribution to obtain a valuation the deduction made at trial and personality of the actors, as possible consistent with the views and feelings of people around safely and naturally within the limits of the law. ".-
It emerges clearly stated that to empower the Legislature to provide by law the integration of technical collegiate courts, juries also did not mean the adoption of Anglo-American jury nor the Escabino, that the designation of jurors does not refer to the possibility of establishing a new "court" but the power to increase the integration of bodies and created a technical basis, where the intervention of juries popular is complementary, accessory and temporary. Thus, by integrating the Houses of Crime eight juries, is, in a majority situation in relation to the three technical judges, is being created through legislative regulation possible unwanted by the constituent power, this is achieve the eight juries majority without the concurrence of the will of any technical judge, when their special training are those who are able to establish logically the sentence according to the provisions of art. 41 and 155 of the Provincial Constitution. We also understand that the wording of art. 162 can arrive at identical conclusion, but this time interpreting the scope of what is excluded and why. Of the text shows that have been excluded from juries integration with the single-judge courts. What must have been then the reason for this exclusion? The answer appears obvious, as has been planned integration with juries, would have required an amount of at least two, for a total of three members, would have been able to make decisions by majority and eliminate the possibility of a tie. Circumstances that would have created the possibility that with the agreement of the two juries, ie without requiring the vote of judge and technical their logical reasoning, could achieve a majority and decide the case, so the art itself. 162 excluded. Moreover, this has been the interpretation of this constitutional provision the Legislature made local on two previous occasions: a 8123 law imposes penalties on 12.05.1991 which is regulated by the new Criminal Procedure Code. On occasion in the art. 369 is provided for the integration of Criminal Appeals to order the part with two lay judges, in the case of crimes with sentences of 15 years or older. Similarly, with the passing of the 9122 Act (BO 27/10/2004) was added to the art. 369 compulsory integration for the Economic Chamber of the Criminal Penal with two jurors. In both cases always kept to juries with similar powers as technical judges and keeping these in most
.- From the foregoing, we conclude that the 9182 law regulating and requiring mandatory juries in greater quantity the three technical judges, has departed from the design and limits set by the local constituent power, incurring a regulatory excess of art. Local 162 of the Constitution, thus breaching the security of Natural Justice (art. 39 CP and 18 of the Constitution) .- The results of the grammatical interpretation, systematic and historical conducted in the local provisions of the Constitution, also allow rule out any contradiction or conflict between its rules and the Constitution, and thus an effective protection of the federal system of government. The local constituent power in designing the judiciary, Congress did not encroach on the powers of the nation as it did on the courts and judiciary based technique, admitting the introduction of juries in quantity always less than the number of judges that integrate technical and in doing so recognized and accepted as the limit of its powers (arts.121 and 122 of the Provincial Constitution) that the establishment of courts to integrate popular majority, it is an exclusive power of Congress National. (Conf Arts. 24, 75 and 126 inc.12 CN) .-
VI .- Notwithstanding the above conclusions above, will address the proposition made by the Defenders and the District Attorney in relation to the violation of the guarantee proper grounding logic of the statement, since the grievance has been raised to a necessary and inseparable link above. All have questioned the art. 44, 2nd paragraph of the 9182 law argue that it is constitutionally and legally impossible to perform the transformation or translation provided, it is logical way to express that to have been reached by the deep conviction. Dr. Carlos Alberto Morelli has been considered a "social illusion" believe that the intimate conviction can be transformed into healthy rational criticism and Dr. Carlos Luis Hamity has understood that this constitutes grounds for a judge artfully tailored technical reasons the desire to provide arguments supporting intimate convictions (mere opinion) of jurors, adding that the intimate convictions are impossible to refute and that the implementation of trial by jury means an illegitimate and irrational expansion of the state's punitive power .- The Court found the challenged regulation is new not only in national but also comparative law. Not found, in the background consulted on trial by jury, in law internal as compared, a system that seeks to reconcile two different systems of evaluation of evidence. (See the national history and comparative law cited in published work by the Parliamentary Information Division of the National Congress. Rf. Dip: The Dip Aut 047.01.8: AS). In the Anglo-Saxon jury deliberating juries separately from the technical and only judge issued his verdict by secret ballot, based on the intimate conviction. Jurors on the jury, in the French version, while judges deliberate together with technical then the vote in secret, including the technical judges (Conf. arts.353, 355, 356, 357 and 358 of the Code of Procedure France). Consequently, the involvement of juries in the majority in the known systems has meant that both juries and judges techniques (French jurors) assess the evidence in accordance with their deepest, not being forced to outsource or to other reasons, conviction being covered and protected by the secrecy of their vote.
In order to examine whether the translation or processing, provided logical way to express that to have been reached by the deep conviction is logically possible and to what extent it affects the guarantee of adequate justification for the decision are two aspects which must be analyzed: a hand the dimension of security for the accused and the second as functional duty imposed on judges. As a guarantee in favor of the defendant, arising from the Fourth Section entitled "Security" of the provincial constitution, where the art. 41 provides and requires, in relation to proof of the facts in the process, the decision is motivated. This requirement is closely linked to the right of defense and due process because the reasons on which he accepted as proven fact and the defendant's participation must be open to inspection by the defense in order to make possible the formulation and expression grievances, to articulate other constitutional guarantees, such as the right to appeal his conviction before a higher court. (Article 8 paragraph 2 inc. H of the American Convention, art. 14.5 ICCPR and art. 75 inc. 22 of the Constitution) .- From this point of view, the hypothesis challenged the art. Act 44 of 9182 is presented as a means or process that involves a logical forcing, as it is in very different ways of reaching a personal conviction, because the intimate conviction need not explain reasons and rational criticism if healthy. Such forcing is logical enough to cross without this procedure unconstitutional, but the Court finds that there were other aspects of regulation that deserve also objected to the constitutional order. In any event, it should be noted that the activity entrusted to the President of the Tribunal, it is logical way to express that to have been reached by the deep conviction, is presented as a task not without difficulty and therefore no stranger to the possibility of error, confusion, distortion or replacement of motivations. We are facing a task that, by its novelty, is not susceptible of regulation or by legal or technical rules to collect some experience, they tend to ensure at least an acceptable level desired results. To this must be added the problems of natural language interpretation used by juries to participate in the deliberation and the fact that, who should carry out "the Chief Justice, not in a position of neutrality in the decision made by the juries, as required by law to simultaneously participate in the deliberation and a conviction in order to be prepared to vote in the event of a tie. (Conf. Art. 23, Law 9182.) .- The novelty and difficulty of the task assigned to the Chief Justice is imperative to control submission of the parties, especially the defense of the accused whose ministry has constitutional guarantees. Analyzed the self-regulation of the 9182 Act can be seen that this has been prevented, as it has been expressly left the manifestations of juries, which contributed to form a majority or minority, regardless of how judges vote, "covered by the secrecy of the deliberation (conf art. 37). - One could argue in favor of the regulation of the 9182 law that jurors only intervene in matters of fact, not be reviewable through the appeal does not affect the right of defense. But this can not be sustained after the decision in the case of "Casal" by the Supreme Court, for in that resolution, it has become precisely the appeal and the recursive path suitable for ensuring the guarantee of double jeopardy. For this, the Court upheld the need to allow comprehensive control issues of fact and assessment of evidence by the broad interpretation of the causes that enable it and by application of the theory of maximum efficiency of the court. That precedent, as the Supreme Court ruling in "Benitez (03/16/1904 Sent. 8) have established for the purpose recursive close linkage of the resolutions required to substantiate the right of defense, and is specified that the proper foundation requires appropriate evidentiary material that underlie the conclusions and attempting to show their appreciation rational bond claims or denials are supported in the decision. (Art. 18 of the CN, and 155 of the Provincial Constitution) .-
In conclusion, in this context jurisprudential interpretation of the duty to support the statement in relation to matters of fact, the novel and difficult task assigned to the Chief Justice by local law without enable control 9182, necessarily lead to an intolerable limitation guarantee the right of defense .- As for the second dimension of the proper foundation, it is presented as a duty imposed on the technical judges that make up the judiciary. Art. 155 provides, first must resolve cases within the legal deadlines for fatal and then establish that this must be fulfilled in a particular way, with logic and legal reasoning. Thus, we interpret that the duty to give reasons for its decision is personal, functional and well presented attached and inseparable from the duty to resolve the cases brought to court and should intervene in all matters, both main and accessory and make it independent and impartial
.- The above is supported by a grammatical interpretation of the text of art. 155 of the CP, but also is consistent with the scope is now assigned to Judge Natural warranty explicitly enshrined in art. August 1 of the American Convention on Human Rights by saying: "Everyone is entitled to a hearing, with due guarantees and within a reasonable time by a court competent, independent and impartial ....". Interpreting the meaning of independence has said "The concept of independence matter that each judge individually and personally, with absolute disregard for the views of others, is guaranteed, and should thus practice, the allocation sovereign to solve each case with total independence of mind. "(conf Jauch, Edward M" Rights of the accused. "Rubinzal Ed Págs.207 Culzoni 2005 ff.) However, analyzing the art. Act 44 of 9182, the Court noted as a problem novel, that the "book to the President of the Court" as technical judge to fulfill the role of taking charge of the grounds legal logic and the decision of the jury, it was necessary first evading its duty to intervene to shape the decision of the Court, as provided in art. 29 of the Act. Both legal duties, one negative - to refrain from resolving issues of fact and law-and second positive-motivation logically and legally the decision of others, are in contradiction with the obligation to resolve constitutional status and directly affect the security independence of judges. The Article 29 and 44 of Law 9182, introduced a statutory exception to the constitutional duty to independently resolve the main issues of process, aspects in which the obligation to resolve is manifested most intensity, it is logical and legally possible for the judge is bound simultaneously to resolve and forced to not resolve to motivate the decision of others. This contradiction can be overcome by the application of the criteria for special or because their implementation assumes the duties and the exceptions arising from provisions of equal rank, which is absent in the analyzed situation. However, applying the hierarchical principle comes without much effort, which is preeminently the duty imposed by constitutional provisions, for the art. Local 155 of the Constitution and Art. 8.1 of the ACHR, and the invalidity of the duties imposed by ss. 29 and 44 of the Act 9812 .- In conclusion, the duties regulated in the arts. 29 and 44 of the 9182 Act to remove the president of the court of its responsibility to address the causes logically and legally establish the decision of the jury, undermines the independence of functional performance, which was established as a limited guarantee for the citizen only by the constitution and the law (the will to act) and the proof of the facts or the lack or inadequacy of it in the process; (Conf. Litigation Manual Cafferata Nores., Montero, Velez, Ferrer, Novillo Corvalan, Balcarce, Hairabedián, Frascaroli, Arocena, Publication of the Faculty of Law, UNC pags. 219.220) and in so doing also injured, Guarantee of Natural Justice (Article 8.1 of the ACHR, arts.18 and 75 inc. 22 of the CN and art. 39 of the Constitution of Cordoba) .- VII .-
Mr. Prosecutor House has questioned the lack suitability of juries to fulfill judicial functions as required by the local constitution, as well as temporary opportunity has been provided for the integration of the house with juries after Avoca and only in relation to certain crimes, because he understands this makes them a new body, ie a special commission appointed ex post-facto, and therefore violates the guarantee of Natural Justice. Also Mr. Nestor W. Counsel Gutierrez Vela has questioned the art. Act 57 of 9182, believing that his client would be subject to a Tribunal constituted under a law made no earlier than that is accused, in violation of Natural Justice warranty .- In this regard, then analyzed these poses, are cautioned not autonomous, because they presuppose as a necessary condition for treatment, validating the integration of the Chambers of the Crime of the Province juries in an amount greater than the number of judges how they cover. To have rejected this possibility in the previous paragraphs of this resolution, are considered to have become so abstract that will be processed in this particular .- Neither resolution will be addressed, the other questioning conducted by Mr. Solicitor-institute involving criticism of judges in general, which are unrelated to the issue to be resolved by the Court, which has been limited to analysis of the constitutionality both national and local, the particular regulation made by the 9182 law .- The foregoing is without prejudice to the National Congress in exercise of powers delegated by the provinces, to regulate trial by jury for the entire of the Nation, to expand the courts to integrate the security of Natural Justice, which undoubtedly will require changes in the organic laws and Procedural Codes of the provinces, too .- In relation to this possibility, we believe and are convinced beyond opinions and beliefs that members of the Tribunal have the institute trial by jury, which are not uniform, its establishment should be done with care and needed an assessment of the impact it has on other stages. Both the pre-trial stage, but fundamentally recursive stage that enables the second instance, now constitutional. Resources, their causes, and design of the "Superior Court" to be controlling the decisions of a "jury" are problems that must be addressed simultaneously with the establishment of the institution of juries in this country because the existing regulation is designed within the framework of technical justice, the source of legitimacy is different and therefore control modes have been directed exclusively to the performance of technical judges. Otherwise not only bring into crisis guarantees litigants, but will not contribute to improving the justice and enhancing respect for its decisions by the public.
VIII .- That the power and duty to conduct a review of the constitutionality of laws imposed on the judges, even ex officio, by the principle of constitutional supremacy enshrined by art. 31 of the Constitution and in art. Local 161 of the Constitution. Therefore, and synthesizing these reasons, to declare unconstitutional the law generally 9182, having served the Legislature of the Province powers delegated to the National Congress (arts. 75 inc. 12 and 126 of the Constitution). Also declare unconstitutional particularly questionable items, namely: a) art. 2, to establish a compulsory integration of juries, and not to provide integration at the request of a party or a clause allowing the defendant to give up their integration, thus violating the guarantee for the accused to Trial by jury is. (Art. 24 of the Constitution); b) art. 4, to establish the involvement of juries in an amount of eight and therefore greater than the number of three technical judges, when he was only constitutionally empowered to do is ancillary, subsidiary and therefore in a smaller number, constituting a regulatory excess of art. 162 of the Provincial Constitution and a way to violate the guarantee of Natural Justice (Article 18 of the CN and art. 39 of the Provincial Constitution), c) art. 44, by providing a novel, forced and difficult process of translation or transformation, to express in a logical way, that what is up in the intimate conviction, without regulations provide an effective opportunity to control the defense, which is considered contrary to the guarantees of due reasoning, the right of defense and its current articulation with twice as mandatory convictions (arts.39, 41, 155, of the Provincial Constitution, arts. 18, 75 inc. 22 of the CN, art. 8 paragraph 2 inc. h) of the American Convention and art. 14.5 ICCPR) and d) arts. 29 and 44 to put on Chief Justice head of the obligation to justify the decision logically and legally removing it from juries of their constitutional duty to resolve all major issues independently, which is considered contrary to the guarantee Juez Natural (art.18 de la C.N., art. 8.1 dela Convención Americana de Derechos Humanos, y art. 39 de la C.P.);
Por lo expuesto y las normas constitucionales citadas, SE RESUELVE: I- Hacer lugar al planteo de inconstitucionalidad formulado por el Sr. Fiscal de Cámara Dr. Raúl Gualda y los Abogados defensores Dr. Carlos Alberto Morelli y Carlos Luis Hamity en representación de sus asistidos y en consecuencia declarar la inconstitucionalidad en general de la ley 9182 por contradecir los arts.24, 75 inc. 12 “in fine” y 126 de la Constitución Nacional. II.- Declarar la inconstitucionalidad en particular de los artículos 2, 4, 29 y 44, de la ley 9182, por contradecir los arts. 18, y 24 de la C.N., art. 8 párrafos 1 and 2 inc. h) of the American Convention on Human Rights, art. 14, paragraph 5 th International Covenant on Civil and Political Rights and art. 75 inc. 22 of the CN, and the arts. 39, 41, 155 and 162 of the Constitution of Cordoba. (Art. 31 of the CN and art. 161 of the CPC-II. Stipulate that the main cause continue as its been doing the parties know that according to the crimes contained in the indictment and the resulting criminal scale, are entitled to request the establishment of lay judges in the terms of the provisions of art. 369 of the CPP-KNOW YOURSELF AND PROTOCOLÍCESE .-
He solved the Second Chamber of the Crime of the city of Córdoba, composed of judges Eduardo Valdés, José Martínez Iraci and Roberto Torres, in the file titled "Monk, Jorge Gonzalo and other pss.aa. theft, violation of domicile, robbery, etc. "following the constitutional proposals of the 9182 Act made by lawyers Néstor Gutiérrez Vela, Carlos Alberto Morelli, Carlos Luis Hamity, and the House tax, Raul Gualda. Gutiérrez Vela, Alejandro Esteban defender Easter, argues that the eventual integration of the house with juries mind a violation of the right of the defendant to be tried by judges over the case (arts. 18 CN, 39 Provincial Constitution, 14. 1 ICCPR and ACHR 8) due process of law, entering into serious conflict with the provisions of art. 31 of the CN, as they disavow the normative supremacy. It also clarifies that if you follow the procedure of art. Act 57 of 9182 be submitted to the defendant to a tribunal appointed under a law that predates the fact he is accused, determining a violation of the rights of his client. It explains the art. 57 determines that the date to be taken into account to determine if the Criminal Appeals necessarily be integrated with juries, is the lifting of the case to trial. For his part, Carlos Alberto Morelli lawyer representing his client Diego Martin Pereyra, called the 9182 law unconstitutional on the grounds that it is not in accordance with the spirit of Article 162 of the Provincial Constitution. While Carlos Luis Hamity lawyer representing accused Monk, also calls for the application of Law no 9182 on the grounds that it violates Art. 162 of the Provincial Constitution "as it alters and distorts the will of the constituent power derivative, which will include judges was just so popular alternative." Meanwhile, the prosecutor Gualda, highlights that the implementation of the jury is a faculty of the National Congress. After analyzing the provisions of the 9182 Act and noted that it is regulated popular participation majority concludes that it has departed from the design by the Provincial Constitution. It also introduces new questions that, in his opinion, invalidate the jury classic considered to violate the republican system of government, the principle of impartiality, the judge, and the duty to establish and encourage the sentence logically and reasonably. In the same vein, Gualda maintains that the participation of lay judges contradict the provisions of art. 22 of the CN, which states that the people neither deliberate nor govern except through their representatives. A time point that juries do not meet the fitness requirements required by art. 157 paragraph 2 of the Provincial Constitution. The 9182 Act, which came into force in January 2005, established mandatory duty to integrate the Criminal jurisdiction cameras (and integrated with three technical judges) with no permanent juries, where they are doomed to the crimes within the criminal justice system economic, administrative corruption and the crimes of aggravated homicide against sexual integrity which result in the death of the person offended, kidnapping for ransom followed by death, murder or on the occasion of torture and murder by reason or occasion of theft. Jurors are integrated with eight members and four alternates, being limited its intervention to decide on matters relating to the existence of the crime, with discrimination on the circumstances and relevant legal participation of the accused. The court first agreed with the prosecutor's arguments regarding the regulation of the Juries Act was Congress' power. "The literal analysis of these provisions (NPP) that clearly emerges is facing a power that belongs to the National Congress for which no deadlines were set," the judges said. And added: "The rules established by Act of the Province of Córdoba 9182 has involved the exercise a power delegated by the province to the nation through the Constitution (art. 24 and 75 inc. 12) and therefore has violated the express prohibition in the art. 126 of the Constitution. " In addition, the court agreed with the prosecutor that "any regulation of trial by jury, can not be mandatory without more, but should be subject to the request of the defendant or at least be possible to be waived." "The Regulations Act 9182, providing for mandatory juries in an amount greater than the three technical judges, has departed from the design and limits of local constituent power, incurring a regulatory excess of art. Local 162 of the Constitution, thus breaching the security of Natural Justice (art. 39 CP and 18 of the Constitution). " Respect lack of suitability of juries, the court held that are not autonomous, because they presuppose as a necessary condition for treatment to validate the integration of the Chambers of the Crime of the Province juries in an amount greater than the number of technical judges these fields. "When you have rejected this possibility in the previous paragraphs of this resolution, are considered to have become so abstract that will not be subject to special treatment in this resolution," they said. Therefore, the court did place the charge of unconstitutionality, and therefore declared unconstitutional the law generally 9,182 to contradict Articles 24, 75 inc. 12 "in fine" and 126 of the Constitution. It also declared unconstitutional in particular Articles 2, 4, 29 and 44 of the 9182 Act, because they contradict the arts. 18 and 24 of the CN, art. 8 paragraphs 1 and 2 inc. h) of the American Convention on Human Rights, art. 14, paragraph 5 th International Covenant on Civil and Political Rights and art. 75 inc. 22 of the CN, and the arts. 39, 41, 155 and 162 of the Constitution of Cordoba. Interlocutory order
NUMBER:
Córdoba, 8 September, two thousand six .-
AND SEEN: This incident in the file titled "Monk, Jorge Gonzalez and other pss.aa. theft, address rape, robbery, etc. "deal was resolved to solve the constitutional proposals of the 9182 law made by Mr. Advisory Néstor Gutiérrez Vela, Dr. Carlos Alberto Morelli, Dr. Carlos Luis Hamity and Mr. Solicitor-Dr. Raul Gualda;
AND WHEREAS: I. - 1) That fs. 1 / 3 vlta., A work presentation by Mr. Nestor W. Counsel Vela Gutierrez on behalf of his client Esteban Alejandro Pascua, where he seeks the declaration of unconstitutionality of art. Provincial law 57 of 9182, making express reservation of an extraordinary appeal. Argues that the possible integration of the house with a mind juries violation of the right of the defendant to be tried by judges Natural cause (arts. 18 CN 39 Provincial Constitution, 14. 1 8 ICCPR and ACHR) due process of law, entering into serious conflict with the provisions of art. 31 of the CN, as they disavow the supremacy of law .- He added that proceeding as provided in Art. Act 57 of 9182 be submitted to the defendant to a Tribunal constituted under a law that predates the fact he is accused determining a violation of their rights. Specifies that the text of art. 57 determines that the date to be taken is to establish if the House of the crime must necessarily be integrated with juries, is the lifting of the cause trial, which believes violates the guarantee of Natural Justice established in the art. 18 of the CN, at art. 39 of the Provincial Constitution and the provisions of international treaties incorporated into our Constitution under Art. 75 inc.22 that recipient in the art. 14.1 ICCPR and art. 8 of ACHR. Quote to support your argument authoritative doctrine .-
2) A fs. 7/8vlta., Defense attorney Carlos Alberto Morelli on behalf of his client Diego Martin Pereyra, seeks the 9182 law unconstitutional on the grounds that it is not in accordance with the spirit of Article 162 of the Provincial Constitution. Analyzing the daily session of the constitutional convention 1987, T. I pags. 858 and following, holding that through art. 162 only authorized a subsidiary of justice intervention technique as a psychological and ethical contribution, without replacing the technical bench because she is uniquely qualified to inform and motivate their resolutions as required by art. 18 of the Constitution and Art. 155 "in fine" the local Constitution, which requires "legal and logical." He adds that the mere reading of the disputed law, it is noted that these principles are not guarded as well as due process, because the number of lay judges is eight by beating almost three times the number of technicians. Thus argues that the involvement of the laity no longer becomes a subsidiary and principal which contradicts the will of the constituent provinces. He adds that when lay jurors and judges to achieve most technicians are in the minority, the president will support the resolution, and that this means that the technician is forced to try to give legal form to a resolution coming through the intimate conviction. Ultimately considered to be like trying BUILT two links of a hose one square and one round, and do not work, but my goal is to transfer water anyway, I fix it with duct tape, water will flow but the union is going to sneak a lot of fluid. Ultimately concludes by arguing that it is a "social hope" that the intimate conviction can be magically transformed into healthy rational criticism ".- doctrinal source cites the work of authorship of Dr. Raúl Gualda published in the Legal Seminar No. 1481 of 28/10/2004 pags.557 and subsequent .-
3) A fs. 9 / 11 Dr. Carlos Luis Hamity on behalf of his client Jorge Gonzalo Monk, also requested not to apply the 9182 law on the grounds that it violates Art. 162 of the Provincial Constitution as altered and distorts the will of the constituent power derivative, whose will was only incorporated judges so popular alternative. It further argues that constitutes a constitutional obligation to justify his opinions so that should not be artificially put together by a judge technical reasons the desire to provide arguments to support the inner belief (mere opinion) of the jurors. He added that the profound convictions are impossible to refute and that the implementation of trial by jury means an illegitimate and irrational expansion of the state's punitive power pulling underground nature of the constitutional requirement to substantiate and justify the criminal sentence .-
4). A fs. 12 / 38 written work submitted by the Chief Prosecutor of the Court House Dr. Raul Gualda, who performs various questions the constitutionality of the 9182 Act local. First, after conducting a historical analysis of the material and formal sources of provisions which relate to the jury in the Constitution, concludes that its implementation is a faculty of the National Congress, for which no terms and that it originally intended as a safeguard against abuses of the royal prerogative to self-righteousness of absolute monarchy. In relation to art. 162 of the Provincial Constitution makes his historical interpretation, to which it refers to daily sessions of the Constitutional Convention of Conventional citing events informant. From these historical elements argues that the design of the local constitution deviates from the Anglo-Saxon jury that the intervention of technicians and lay people are on the same level and popular participation is secondary to the technicians, which presupposes laymen minority integration. After analyzing the provisions of the 9182 law and noted that popular participation has ruled the majority, concluded that the design has been set aside by the provincial constitution. It also introduces new questions which in his opinion, invalidate the jury it believes that violate classical republican system of government, the principle of impartiality, the judge's Natural, and the duty to establish and encourage the sentence logically and reasonably. As the first Republican representative says this is violated because the participation of lay judges contrary to the provisions of the CN art. 22 which states that the people neither deliberate nor govern except through their representatives, and they are not subject to any system of liability for acts performed. It also states that juries do not meet the fitness requirements required by art. 157 paragraph 2 of the Provincial Constitution .- In relation to the guarantee of impartiality, citing Bunge adds that the concept is wrong that a majority of people are reaching better true that a minority (Social Science Discussion ") argues that juries are not prepared to act in that way and more so when the jurors from a society fearful and embarrassed by insecurity to lack of knowledge of how the function operates Judicial .- The principle of Natural Justice argues that art. 2 of Act 9182 to provide "Provides that the Chambers in the Criminal jurisdiction necessarily be integrated with juries, when they are doomed to try crimes ....", is a designation of a special commission because it" ex post facto "and because it is done to judge certain crime. Recognizes that, while it integrates the technical Tribunal, with this integration alters the composition of the Trial Court, resulting in a different institution body that is created to judge a specific event and post-fact way. Add the arts. 2 and 3 of the 9182 Act to impose mandatory integration juries know the nature of individual guarantee matter jury trial in accordance with the provisions of art. 24 in fine of the CN, because its regulation has been omitted as an option of the accused or at least can be expected to withdraw their presentation, which in his view, reinforces the idea that it is facing a special committee imposed for the prosecution of certain crimes .- As regards the constitutional principle of motivating and reaching a decision, said that according to the provisions of the 9182 Act lay the Popular Jury to decide on the existence of fact, discrimination against legal circumstances relevant and the defendant's participation (art. 44, paragraph 1, according to 41 inc. 2 and 3) as to the guilt or innocence (art. 44 § 1 in fine). Considers that these powers are incompatible with the degree of fitness or suitability of the jury that considered not able to decide as the manner required by the Provincial Constitution in Art. 155 and art. 193 of the CPP, this is a logical and legal grounds. Add to juries to decide they do based on their intimate convictions and therefore the art. 44, Paragraph 2 provides that "should there be disagreement between judges and jurors, and they form a majority, the logic and legal reasoning of the majority decision is borne by the Speaker of the House.." Before this regulation was questioned the Solicitor-whether it is possible to reconcile the two systems of assessing evidence, drawing the conclusion that this is not legally or constitutionally feasible, so it states that it affects the guarantee of due logical reasons required by art. Local 155 of the Constitution and art. 18 of the CN-
II .- In order to come to consider the questions made to the trial system established by the 9182 law, it shall first describe the most important aspects of those rules, and then address the issue by the parties . The 9182 Act was enacted as Art. 1, with the explicit purpose of regulating the art. 162 of the Provincial Constitution, and did so by establishing mandatory duty to integrate them, with criminal jurisdiction, (and integrated with three technical judges) with no permanent juries, where they are doomed to the crimes within the criminal justice system economic administrative corruption and the crimes of aggravated homicide against the sexual integrity of which result in the death of the person offended, kidnapping for ransom followed by death, murder or on the occasion of torture and murder by reason or occasion of theft. (Conf. arts. 1 and 2 of the Act). The integration of juries is expected in a number of (8) eight members and four (4) alternates, being limited its intervention to decide on matters relating to the existence of the crime, with discrimination of the relevant legal circumstances and the involvement of accused (art.44 1st Conf. paragraph.) As regards the procedure for reaching a decision on these issues provides that vote, the eight juries and two technical judges and requires a simple majority. Then distinguish the case that mediate conflict between technical judges on one side and juries on the other, the latter forming the majority, which provides a third judge to be technical, he served as Chief Justice which is in charge of logic and legal reasoning of the majority decision. (Conf. arts. 43 and 44). As the presiding judge, art. 29 provides that in addition, lead the debate and participate in discussions without vote on matters relating to the existence of the crime and participation the accused, except in case of a tie and always vote to resolve preliminary matters that had been deferred, the legal qualification and sanctions such as restitution or compensation demanded (Conf arts. 23 and 41) .- From the above regulations stemming from the 9182 local law, and defining their own notes of what the legal culture is known as "trial by jury, whether in Anglo-Saxon form, or in the manner characteristic of continental Europe, this is the Jury jurors, namely: a) The integration of the Tribunal with a number of juries on a non-permanent, in an amount greater than the judges for technical or career, b) limitation of the intervention of juries to resolve the issues referred in fact, note characteristic of Anglo-Saxon model
III .- .- We first address the issue raised by the District Attorney of House as to who shall have the power regulation on the implementation of jury trials and to do start by analyzing the Constitution. Article 24 in fine, provides: "Congress shall promote .... The establishment of trial by jury" and the art today. 75, to establish the powers of the National Congress, where inc. 12 "in fine", you have to dictate "... especially for all the general laws Nation .... And that requires the establishment of trial by jury.. " Also art. 118 provides that: "All ordinary criminal trials, ... .. were completed by jurors, after the establishment of this institution in the Republic." Literal
the analysis of these provisions clearly emerges that is facing a power that belongs to the National Congress for which no set deadlines. The analysis of the provisions of the NPP to be completed by the provisions of art. 126 which reads: "The provinces do not exercise the power delegated to the Nation. ... They can not enact the Civil, Commercial, Criminal and Mining, after Congress had enacted them; ... "Even in its literal interpretation suggests that the provinces are prohibited from exercising powers delegated to the Federal Government and within the prohibition is, to dictate the Civil Code, Commercial, Criminal and Mining, authorizing only exceptional and temporary basis to do so until Congress had enacted. This express exception, does not include legislation to implement the trial by jury, so it is reasonable to interpret this legislative power has been within the prohibition of exercising powers delegated to the Nation. As for the temporary permit issued to the provinces fund codes, due to a historical reason, because the coding work entrusted to Congress on the projected time period in which some provinces continued to apply local law or dictated, as in the case of the Penal Code, one of their own. Paradigmatic example of this was known as the Weaver project, which was adopted until the Criminal Code penalizing the First National in 1921, eleven provinces (La Rioja, Buenos Aires, Entre Rios, San Juan, Corrientes, San Luis, Catamarca , Mendoza, Santa Fe, Salta and Tucumán. (see Zaffaroni, Eugenio Raúl, Alagia, Alejandro; Blocher, Alexander "Criminal Law, General Part 2nd Edition pags.248/250 Ediar Ed.). Simultaneously Provinces organized their judiciaries, dictated Organic Laws and Procedure Codes, deriving these powers not delegated and so did not instituted trial by jury, because after 1853 this was an express and exclusive power of the Congress of the Nation. This division of powers was recognized in the Constitution of the Province of Córdoba, 1870, by providing in the art then. 133, and then art. 134 that: "All ordinary criminal cases not arising from the right to impeach granted to the House of Representatives, and even those that are derived, whenever they deal with ordinary crimes, shall be determined by jury, after it was established by the Government the National Institution in the Republic ...".- This interpretation was upheld in a peaceful manner by the Supreme Court in the preceding "Loveira F155: 92," Democratic Platform "F: 208:21 and" Tiffember "F: 208:25, the first of the year 1911 and the other in 1941. In the first of the above dated December 7, 1911, questioning the technical competence of a court of Justice National Federal Capital to judge an act of slander, it is argued that it should be by a jury. The highest court said, "That as to the merits, Articles 24, 67 and 102 of the Constitution Congress has not imposed a duty to proceed immediately to the establishment ,...." jury trial and that "... the same Mexican Congress as the local legislature in the capital, and in exercise of powers similar to those they have in the provincial legislatures in the organization of their respective courts, have been authorized to regulate the freedom of the press and to hear their abuses to the jurisdiction of the courts of common law that exist in it and can not be confused with federal, limited competition and exceptional ....". The grounds given by the Highest Court shows the exclusive jurisdiction of the National Congress to legislate, without limits on jury trials for all the territory of the Nation, and the competence of the Provinces to organize their technical courts .-
In conclusion, the regulations established by the Act of the Province of Córdoba 9182 has involved the exercise a power delegated by the province to the nation through the Constitution (art. 24 and 75 inc. 12) and therefore has violated the express prohibition in art. 126 of the Constitution .- Even accepting as a mere hypothesis, which has been previously ruled that the province could resume powers delegated to the non-exercise of these by the National Congress, it can not validate the 9182 law because it in no time was cited as its purpose, the regular and now resumed delegated authority, has only been cited as the regulatory framework of art. Local 162 of the Constitution .-
IV .- The Attorney General questions the Art House. 2 of Act 9182 to establish the mandatory integration of the Houses of Crime with juries, it means that according to art. 24 of the CN "jurors" are a guarantee for the accused. Argues that to safeguard the security integration should be regulated so optional for the parties, or provided that the defendant is entitled to resign .- In this regard, it should be noted that this has been understood two of the current parliamentary state projects in the Senate of the Nation, one originated by the PEN (SEN Expte.: 0214-PE-04) and another initiative of Senator Jorge R. Yoma (SEN Expte: 2314-S-03). Both envisage, in two articles third, the same rule that governs the choice to favor the accused to waive trial by jury within summons. These projects have been echoed, in turn, has authorized the National Doctrine held that the location of the reference to jury trials, in the second chapter of the NC, entitled "New Rights and Guarantees" in their art. 24, authorized to interpret it as a guarantee for the accused. In this subject, there are Edward M. Jauch (Rights of the accused "Rubilzal Culzoni Ed, Ed 2002pags. 226/227), Joseph I. Cafferata Nores, "Current Issues on the criminal 3 rd ed. updated, Ed Del Puerto Buenos Aires 2000 P $ 117-193, quoted in turn in conjunction with Aida Tarditti work, commenting on the current art. 369 of the CCP (Code of Criminal Procedure of the Province of Córdoba Mediterranean Edition, Volume 2 page 159). And more recently also been given by the accused as being a guarantee of trial by jury, Edmund Samuel Hendler, in his work "The Meaning guarantor of trial by jury" in "Criminal Justice Studies Tribute to Professor Julio BJ Maier" Editors Bs Port As.2005 Págs.329-341. The authors cited have systematically reinforced its solid performance historical knowledge about the origin of the institute, going back and relating to the immediate antecedents of our Constitution to the present time the United States were still a British crown colony. Designated as the jury trial was, on the historical process of the people, a victory for the settlers to be judged by their peers, not by officials of the king .- arise as a result, reasons (systematic and historical) to interpret any regulation of trial by jury, can not be no more compulsory, but should be subject to the request of the defendant or at least be possible to be waived as they have picked up the ongoing projects of the National Senate.
V. - We now address the local charge of unconstitutionality, which is common to the District Attorney and defense counsel, as all relate what they consider the distortion of the system provided by art. Local 162 of the constitution and subsequently affecting the security of the legal and logical justification of the sentence required by Arts. 41 and 155 of the CP As to the constitutional design local judge, and to specify its defining features, because from these premises will be able to consider whether the 9182 law has exceeded the framework and therefore are from the questions made by the parties. Art. Local 162 of the Constitution provides that "The law may determine the cases in which the collegiate courts are also integrated by jury.." For a better understanding of the issues covered by the constitutional provision we believe should be interpreted in a systematic manner with the other provisions that define the characteristics of the Córdoba Judiciary. Thus the art. 158 sets as a condition for integration of a lawyer, with various antiques in the exercise according to the position, the art. 155 establishes the duty to resolve cases involving legal reasoning and logic and art. 154, provides as casual disregard removal law inexcusable. The systematic and harmonious interpretation of those provisions there is the creation of a technically based Justice, which provides the required framework that gives meaning and limit the terms used by the legislature constituent in the art. 162. This will include the art. 162 relates to a power of the Legislature that this may or may not exercise, but his refusal - as happened for a long time in the criminal justice system is maintained even in the present in relation to other tribunals, affecting the normal functioning of the courts colleges of the province. The power of the legislature is then limited to provide an integration of ancillary character juries, not necessary Courts subsidize schools in the province and integrated as necessary and main technical judges. The aforementioned systematic framework also allows to define the meaning of the term "jury" as used in art. 162, eliminating the possibility of being interpreted as a separate and independent court of how courts. Thus the term "jury" should not be interpreted as a collective noun, but as a way of naming, new and potential members of the collegiate courts, ie each of the lay judges or juries .- Results interpretation to have been reached by the use of systematic, are corroborated by consulting the daily session of the Constitutional Convention of 1987 (session 30 March to 1 April 1987 .. pp. 858/860). The conventional informant, Dr. Cafferata Nores, when discussing art. 162 said then to distinguish the technique justice composed of laymen "We thought, as stated above, the possibility of integrating these two systems have been considered antithetical on the basis of a total integration, which contrary to occurs in Anglo-Saxon system (in which the jury was the judge of fact and a finding of guilt and technical judge intervened only in the conduct of the proceedings and the determination of the penalty) where we intend to integrate technical and lay people are on the same level in order to their jurisdictional powers. Is thus clear that the institution we are proposing is closer to escabinato that is effective in many European countries, the jury of the Anglo-American style. However, we prefer the word jury and we used it well, believe it is more easily understood by common people. It is absolutely essential to do this we project that this solution assumes the official judge and technical functions and features which we adopted at that meeting. Popular participation as a subsidiary of thought because believe that only the right technician can perform the functions that the administration of justice requires the judge. Because the judge's task demands no less professional knowledge than any other, as would be the medicine or technology. In addition, the technical judge is usually isolated sectoral pressures and enjoy independence and tenure that put you in a better position to reject the influences that may try to divert his will. But we also believe that the intervention of individuals can be configured, in certain cases, an effective technical assistance for justice for that matter involving a psychological and ethical contribution to obtain a valuation the deduction made at trial and personality of the actors, as possible consistent with the views and feelings of people around safely and naturally within the limits of the law. ".-
It emerges clearly stated that to empower the Legislature to provide by law the integration of technical collegiate courts, juries also did not mean the adoption of Anglo-American jury nor the Escabino, that the designation of jurors does not refer to the possibility of establishing a new "court" but the power to increase the integration of bodies and created a technical basis, where the intervention of juries popular is complementary, accessory and temporary. Thus, by integrating the Houses of Crime eight juries, is, in a majority situation in relation to the three technical judges, is being created through legislative regulation possible unwanted by the constituent power, this is achieve the eight juries majority without the concurrence of the will of any technical judge, when their special training are those who are able to establish logically the sentence according to the provisions of art. 41 and 155 of the Provincial Constitution. We also understand that the wording of art. 162 can arrive at identical conclusion, but this time interpreting the scope of what is excluded and why. Of the text shows that have been excluded from juries integration with the single-judge courts. What must have been then the reason for this exclusion? The answer appears obvious, as has been planned integration with juries, would have required an amount of at least two, for a total of three members, would have been able to make decisions by majority and eliminate the possibility of a tie. Circumstances that would have created the possibility that with the agreement of the two juries, ie without requiring the vote of judge and technical their logical reasoning, could achieve a majority and decide the case, so the art itself. 162 excluded. Moreover, this has been the interpretation of this constitutional provision the Legislature made local on two previous occasions: a 8123 law imposes penalties on 12.05.1991 which is regulated by the new Criminal Procedure Code. On occasion in the art. 369 is provided for the integration of Criminal Appeals to order the part with two lay judges, in the case of crimes with sentences of 15 years or older. Similarly, with the passing of the 9122 Act (BO 27/10/2004) was added to the art. 369 compulsory integration for the Economic Chamber of the Criminal Penal with two jurors. In both cases always kept to juries with similar powers as technical judges and keeping these in most
.- From the foregoing, we conclude that the 9182 law regulating and requiring mandatory juries in greater quantity the three technical judges, has departed from the design and limits set by the local constituent power, incurring a regulatory excess of art. Local 162 of the Constitution, thus breaching the security of Natural Justice (art. 39 CP and 18 of the Constitution) .- The results of the grammatical interpretation, systematic and historical conducted in the local provisions of the Constitution, also allow rule out any contradiction or conflict between its rules and the Constitution, and thus an effective protection of the federal system of government. The local constituent power in designing the judiciary, Congress did not encroach on the powers of the nation as it did on the courts and judiciary based technique, admitting the introduction of juries in quantity always less than the number of judges that integrate technical and in doing so recognized and accepted as the limit of its powers (arts.121 and 122 of the Provincial Constitution) that the establishment of courts to integrate popular majority, it is an exclusive power of Congress National. (Conf Arts. 24, 75 and 126 inc.12 CN) .-
VI .- Notwithstanding the above conclusions above, will address the proposition made by the Defenders and the District Attorney in relation to the violation of the guarantee proper grounding logic of the statement, since the grievance has been raised to a necessary and inseparable link above. All have questioned the art. 44, 2nd paragraph of the 9182 law argue that it is constitutionally and legally impossible to perform the transformation or translation provided, it is logical way to express that to have been reached by the deep conviction. Dr. Carlos Alberto Morelli has been considered a "social illusion" believe that the intimate conviction can be transformed into healthy rational criticism and Dr. Carlos Luis Hamity has understood that this constitutes grounds for a judge artfully tailored technical reasons the desire to provide arguments supporting intimate convictions (mere opinion) of jurors, adding that the intimate convictions are impossible to refute and that the implementation of trial by jury means an illegitimate and irrational expansion of the state's punitive power .- The Court found the challenged regulation is new not only in national but also comparative law. Not found, in the background consulted on trial by jury, in law internal as compared, a system that seeks to reconcile two different systems of evaluation of evidence. (See the national history and comparative law cited in published work by the Parliamentary Information Division of the National Congress. Rf. Dip: The Dip Aut 047.01.8: AS). In the Anglo-Saxon jury deliberating juries separately from the technical and only judge issued his verdict by secret ballot, based on the intimate conviction. Jurors on the jury, in the French version, while judges deliberate together with technical then the vote in secret, including the technical judges (Conf. arts.353, 355, 356, 357 and 358 of the Code of Procedure France). Consequently, the involvement of juries in the majority in the known systems has meant that both juries and judges techniques (French jurors) assess the evidence in accordance with their deepest, not being forced to outsource or to other reasons, conviction being covered and protected by the secrecy of their vote.
In order to examine whether the translation or processing, provided logical way to express that to have been reached by the deep conviction is logically possible and to what extent it affects the guarantee of adequate justification for the decision are two aspects which must be analyzed: a hand the dimension of security for the accused and the second as functional duty imposed on judges. As a guarantee in favor of the defendant, arising from the Fourth Section entitled "Security" of the provincial constitution, where the art. 41 provides and requires, in relation to proof of the facts in the process, the decision is motivated. This requirement is closely linked to the right of defense and due process because the reasons on which he accepted as proven fact and the defendant's participation must be open to inspection by the defense in order to make possible the formulation and expression grievances, to articulate other constitutional guarantees, such as the right to appeal his conviction before a higher court. (Article 8 paragraph 2 inc. H of the American Convention, art. 14.5 ICCPR and art. 75 inc. 22 of the Constitution) .- From this point of view, the hypothesis challenged the art. Act 44 of 9182 is presented as a means or process that involves a logical forcing, as it is in very different ways of reaching a personal conviction, because the intimate conviction need not explain reasons and rational criticism if healthy. Such forcing is logical enough to cross without this procedure unconstitutional, but the Court finds that there were other aspects of regulation that deserve also objected to the constitutional order. In any event, it should be noted that the activity entrusted to the President of the Tribunal, it is logical way to express that to have been reached by the deep conviction, is presented as a task not without difficulty and therefore no stranger to the possibility of error, confusion, distortion or replacement of motivations. We are facing a task that, by its novelty, is not susceptible of regulation or by legal or technical rules to collect some experience, they tend to ensure at least an acceptable level desired results. To this must be added the problems of natural language interpretation used by juries to participate in the deliberation and the fact that, who should carry out "the Chief Justice, not in a position of neutrality in the decision made by the juries, as required by law to simultaneously participate in the deliberation and a conviction in order to be prepared to vote in the event of a tie. (Conf. Art. 23, Law 9182.) .- The novelty and difficulty of the task assigned to the Chief Justice is imperative to control submission of the parties, especially the defense of the accused whose ministry has constitutional guarantees. Analyzed the self-regulation of the 9182 Act can be seen that this has been prevented, as it has been expressly left the manifestations of juries, which contributed to form a majority or minority, regardless of how judges vote, "covered by the secrecy of the deliberation (conf art. 37). - One could argue in favor of the regulation of the 9182 law that jurors only intervene in matters of fact, not be reviewable through the appeal does not affect the right of defense. But this can not be sustained after the decision in the case of "Casal" by the Supreme Court, for in that resolution, it has become precisely the appeal and the recursive path suitable for ensuring the guarantee of double jeopardy. For this, the Court upheld the need to allow comprehensive control issues of fact and assessment of evidence by the broad interpretation of the causes that enable it and by application of the theory of maximum efficiency of the court. That precedent, as the Supreme Court ruling in "Benitez (03/16/1904 Sent. 8) have established for the purpose recursive close linkage of the resolutions required to substantiate the right of defense, and is specified that the proper foundation requires appropriate evidentiary material that underlie the conclusions and attempting to show their appreciation rational bond claims or denials are supported in the decision. (Art. 18 of the CN, and 155 of the Provincial Constitution) .-
In conclusion, in this context jurisprudential interpretation of the duty to support the statement in relation to matters of fact, the novel and difficult task assigned to the Chief Justice by local law without enable control 9182, necessarily lead to an intolerable limitation guarantee the right of defense .- As for the second dimension of the proper foundation, it is presented as a duty imposed on the technical judges that make up the judiciary. Art. 155 provides, first must resolve cases within the legal deadlines for fatal and then establish that this must be fulfilled in a particular way, with logic and legal reasoning. Thus, we interpret that the duty to give reasons for its decision is personal, functional and well presented attached and inseparable from the duty to resolve the cases brought to court and should intervene in all matters, both main and accessory and make it independent and impartial
.- The above is supported by a grammatical interpretation of the text of art. 155 of the CP, but also is consistent with the scope is now assigned to Judge Natural warranty explicitly enshrined in art. August 1 of the American Convention on Human Rights by saying: "Everyone is entitled to a hearing, with due guarantees and within a reasonable time by a court competent, independent and impartial ....". Interpreting the meaning of independence has said "The concept of independence matter that each judge individually and personally, with absolute disregard for the views of others, is guaranteed, and should thus practice, the allocation sovereign to solve each case with total independence of mind. "(conf Jauch, Edward M" Rights of the accused. "Rubinzal Ed Págs.207 Culzoni 2005 ff.) However, analyzing the art. Act 44 of 9182, the Court noted as a problem novel, that the "book to the President of the Court" as technical judge to fulfill the role of taking charge of the grounds legal logic and the decision of the jury, it was necessary first evading its duty to intervene to shape the decision of the Court, as provided in art. 29 of the Act. Both legal duties, one negative - to refrain from resolving issues of fact and law-and second positive-motivation logically and legally the decision of others, are in contradiction with the obligation to resolve constitutional status and directly affect the security independence of judges. The Article 29 and 44 of Law 9182, introduced a statutory exception to the constitutional duty to independently resolve the main issues of process, aspects in which the obligation to resolve is manifested most intensity, it is logical and legally possible for the judge is bound simultaneously to resolve and forced to not resolve to motivate the decision of others. This contradiction can be overcome by the application of the criteria for special or because their implementation assumes the duties and the exceptions arising from provisions of equal rank, which is absent in the analyzed situation. However, applying the hierarchical principle comes without much effort, which is preeminently the duty imposed by constitutional provisions, for the art. Local 155 of the Constitution and Art. 8.1 of the ACHR, and the invalidity of the duties imposed by ss. 29 and 44 of the Act 9812 .- In conclusion, the duties regulated in the arts. 29 and 44 of the 9182 Act to remove the president of the court of its responsibility to address the causes logically and legally establish the decision of the jury, undermines the independence of functional performance, which was established as a limited guarantee for the citizen only by the constitution and the law (the will to act) and the proof of the facts or the lack or inadequacy of it in the process; (Conf. Litigation Manual Cafferata Nores., Montero, Velez, Ferrer, Novillo Corvalan, Balcarce, Hairabedián, Frascaroli, Arocena, Publication of the Faculty of Law, UNC pags. 219.220) and in so doing also injured, Guarantee of Natural Justice (Article 8.1 of the ACHR, arts.18 and 75 inc. 22 of the CN and art. 39 of the Constitution of Cordoba) .- VII .-
Mr. Prosecutor House has questioned the lack suitability of juries to fulfill judicial functions as required by the local constitution, as well as temporary opportunity has been provided for the integration of the house with juries after Avoca and only in relation to certain crimes, because he understands this makes them a new body, ie a special commission appointed ex post-facto, and therefore violates the guarantee of Natural Justice. Also Mr. Nestor W. Counsel Gutierrez Vela has questioned the art. Act 57 of 9182, believing that his client would be subject to a Tribunal constituted under a law made no earlier than that is accused, in violation of Natural Justice warranty .- In this regard, then analyzed these poses, are cautioned not autonomous, because they presuppose as a necessary condition for treatment, validating the integration of the Chambers of the Crime of the Province juries in an amount greater than the number of judges how they cover. To have rejected this possibility in the previous paragraphs of this resolution, are considered to have become so abstract that will be processed in this particular .- Neither resolution will be addressed, the other questioning conducted by Mr. Solicitor-institute involving criticism of judges in general, which are unrelated to the issue to be resolved by the Court, which has been limited to analysis of the constitutionality both national and local, the particular regulation made by the 9182 law .- The foregoing is without prejudice to the National Congress in exercise of powers delegated by the provinces, to regulate trial by jury for the entire of the Nation, to expand the courts to integrate the security of Natural Justice, which undoubtedly will require changes in the organic laws and Procedural Codes of the provinces, too .- In relation to this possibility, we believe and are convinced beyond opinions and beliefs that members of the Tribunal have the institute trial by jury, which are not uniform, its establishment should be done with care and needed an assessment of the impact it has on other stages. Both the pre-trial stage, but fundamentally recursive stage that enables the second instance, now constitutional. Resources, their causes, and design of the "Superior Court" to be controlling the decisions of a "jury" are problems that must be addressed simultaneously with the establishment of the institution of juries in this country because the existing regulation is designed within the framework of technical justice, the source of legitimacy is different and therefore control modes have been directed exclusively to the performance of technical judges. Otherwise not only bring into crisis guarantees litigants, but will not contribute to improving the justice and enhancing respect for its decisions by the public.
VIII .- That the power and duty to conduct a review of the constitutionality of laws imposed on the judges, even ex officio, by the principle of constitutional supremacy enshrined by art. 31 of the Constitution and in art. Local 161 of the Constitution. Therefore, and synthesizing these reasons, to declare unconstitutional the law generally 9182, having served the Legislature of the Province powers delegated to the National Congress (arts. 75 inc. 12 and 126 of the Constitution). Also declare unconstitutional particularly questionable items, namely: a) art. 2, to establish a compulsory integration of juries, and not to provide integration at the request of a party or a clause allowing the defendant to give up their integration, thus violating the guarantee for the accused to Trial by jury is. (Art. 24 of the Constitution); b) art. 4, to establish the involvement of juries in an amount of eight and therefore greater than the number of three technical judges, when he was only constitutionally empowered to do is ancillary, subsidiary and therefore in a smaller number, constituting a regulatory excess of art. 162 of the Provincial Constitution and a way to violate the guarantee of Natural Justice (Article 18 of the CN and art. 39 of the Provincial Constitution), c) art. 44, by providing a novel, forced and difficult process of translation or transformation, to express in a logical way, that what is up in the intimate conviction, without regulations provide an effective opportunity to control the defense, which is considered contrary to the guarantees of due reasoning, the right of defense and its current articulation with twice as mandatory convictions (arts.39, 41, 155, of the Provincial Constitution, arts. 18, 75 inc. 22 of the CN, art. 8 paragraph 2 inc. h) of the American Convention and art. 14.5 ICCPR) and d) arts. 29 and 44 to put on Chief Justice head of the obligation to justify the decision logically and legally removing it from juries of their constitutional duty to resolve all major issues independently, which is considered contrary to the guarantee Juez Natural (art.18 de la C.N., art. 8.1 dela Convención Americana de Derechos Humanos, y art. 39 de la C.P.);
Por lo expuesto y las normas constitucionales citadas, SE RESUELVE: I- Hacer lugar al planteo de inconstitucionalidad formulado por el Sr. Fiscal de Cámara Dr. Raúl Gualda y los Abogados defensores Dr. Carlos Alberto Morelli y Carlos Luis Hamity en representación de sus asistidos y en consecuencia declarar la inconstitucionalidad en general de la ley 9182 por contradecir los arts.24, 75 inc. 12 “in fine” y 126 de la Constitución Nacional. II.- Declarar la inconstitucionalidad en particular de los artículos 2, 4, 29 y 44, de la ley 9182, por contradecir los arts. 18, y 24 de la C.N., art. 8 párrafos 1 and 2 inc. h) of the American Convention on Human Rights, art. 14, paragraph 5 th International Covenant on Civil and Political Rights and art. 75 inc. 22 of the CN, and the arts. 39, 41, 155 and 162 of the Constitution of Cordoba. (Art. 31 of the CN and art. 161 of the CPC-II. Stipulate that the main cause continue as its been doing the parties know that according to the crimes contained in the indictment and the resulting criminal scale, are entitled to request the establishment of lay judges in the terms of the provisions of art. 369 of the CPP-KNOW YOURSELF AND PROTOCOLÍCESE .-
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