"THE PEOPLE" OR JURY jurors? By JORGE Coussirat
Paper presented at the XXIII Congress LITIGATION NATIONAL
I. - INTRODUCTION
The issue of trial by jury or jury has regained momentum in recent years in Argentina constitutional procedural doctrine. Maybe this time the momentum is greater than at other times. Several circumstances contribute to it to be that way and only by way of example may include: insecurity, disbelief in justice, sense of impunity, increasing trend of direct community participation in various spheres of public activity. There is renewal of the legal entity is good trend analysis not only all the advantages that it advocates, but also the difficulties and disadvantages of the establishment of trial by jury may result. This statement is valid if it is agreed that criminal prosecution systems, as ultimately all the normative order are tools in the service of society for better development. Because only tools, they can not be taken as immutable dogmas, but as means to an end. And if this is so, it seems prudent to study the subject without enrolling in antinomies well known, that in the particular case results in strong opposition vs legal entity. antijuradistas. In other words, if the prosecution systems are mechanisms for prosecuting persons suspected of crime, the jury is only one of them and, although is true that the constitutional need is not a minor detail, the fact remains that it is possible to conclude, by hypothesis, that there are systems that can be made more operational and therefore the effective solution would be to modify the provisions of the Constitution that established. Therefore, this analysis of jury trial should be carried out without prejudice or immovable budgets because there is no dogma inevitably requiring the jury. And then the discussion can be made depending on several aspects. It is possible conventionally distinguish three levels and from each to try to clarify the issue. The three levels selected here are constitutional, procedural and experiential.
II. CONSTITUTIONAL ISSUES
There is no doubt about that since the dawn of the Argentine Constitution, the prosecution in criminal cases through the intervention of juries has been present as part of the normative order. Especially the Constitution of 1853 and the 1994 reform repeatedly indicate that prosecutions must be conducted with jurors. Ie, from a policy perspective, in Argentina there is an almost permanent constitutional mandate. The "almost" because the 1949 Constitution abolished the jury, reappearing at the time it ceased to have effect. Moreover, any doubt as to whether that mandate has been breached during the lifetime of the Constitutions of 1853 and 1994. It seems prudent then consider the reasons for this striking failure, which has led some (Sagüés among them) to talk about ".... Process against constitucionem desuetude" (1). Indeed, many authors have addressed the issue of violation of constitutional mandate and is not here, where should they be remembered. But, for one reason or another, a jury trial has not been established in the Republic. Unless I leave the experience of Cordoba, by all known and strictly speaking, has no full consensus on whether or not the system is constitutionally provided.
Given the above and subject Sagüés the view, at first glance it seems necessary to conclude that it is essential immediately establish a jury system, especially since the reform of 1994 that kept the school and then stressed the mandate.
However, with the certainty of the existence of the constitutional mandate and its disregard for a century and a half, there is another certainty: no reasons of urgency or immediate need to resolve the issue. Perhaps it is wise to consider the issue from his own base and a plurality seriously answer questions, prior determination of its establishment wing .. The time it will take while studying in depth the entire scope of a transformation of such importance deserves to be consumed to prevent the establishment of a system that is not operating or is not effective .. If an analogy can be worth three examples of the systems of criminal prosecution. The first: in the province of Cordoba is changed the old Criminal Procedure Code 1939, enacted on reform pithy after studies of the project, which took about five years. However, the effective entry into force of the rule had to suffer various delays that involved another six years. That time allowed to establish institutions and correct errors. Thus, the adversarial system implemented in Córdoba avoided many of the pitfalls even when The remaining problems are diverse. The second example that can be brought to bear is the province of Buenos Aires. The reform of the Criminal Procedure Code was made with far greater urgency and the consequences of its validity, known to all, were not expected. Thus, the urgency brought major challenges still remain.
Finally, in the province of Mendoza, the law was passed amending the Criminal Procedure Code with unusual speed, closed book and without accepting any suggestions or criticism. This led to various difficulties, including several law amendments (at least seven), which delayed the time of entry into force and therefore are put into effect six years after its passage, only a part of the first of the four districts in the province that is divided, not foreseeing the certain possibility of extending its implementation to the rest of the province. Improvisation and lack of rigor threaten to sterilize a modern, stumble by making mistakes in their implementation.
The examples given and turning now to the issue of the jury, allows a first statement, it is necessary to determine precisely what the budget, requirements and implications of the establishment of the jury system.
without delay but not ER is an indispensable prerequisite analyze these aspects, before advocating the enactment of its establishment. This is it taking into account the many existing bills in the National Congress, which means that in the bat, can any of them be punished. Entering the analysis, perhaps the first question is applicable to constituents why the jury system included in the Constitution?. The precise answer is not available from the discussions of the Convention, in which nothing is said in detail. But there are about two possible answers. Given by Joaquín V. Gonzalez noted that the jury is ".... The guarantee of freedom and the proper administration of justice." O given by Del Valle, stating that ".... The main goal was to attract Anglo immigration and thus provide prospective residents a legal institution similar to that governing in the countries of origin ...." Both authors remembered Sagüés (2). Depending on the conclusion that arrives, the constitutional demand will become more or less importance on the need for its persistence as such. But the truth is that the value of those reasons, the time they were given, is not that today may be granted.
however, accepted the existence of the constitutional mandate and with reference to budgets, constitutions require reflection and details, before making any possible jury systems. In this regard it is good to note that when we argue from the point mentioned constitutional articles 24, 75 inc. 12 and 118 of the Basic Law, the forecast is clear that the jury, in the next line states that the objective pursued justice is a participatory, transparent, credible and consistent with a democratic system. However, little is said about whether it is a "right people" to judge its members or if "an individual right" to be tried by their peers. This issue must be treated carefully because it's base is a fundamental consequence. If the solution is the first, all criminal trials must be processed before juries. If it's in exchange for the latter, then constraints can be set on various types of people and events that may lead to the intervention of juries. These constraints can be analyzed if only for serious crimes will be established (all the emerging issue of the constitutional reference to "criminal prosecutions" comes into play here.) In the above point can not overlook the fact that Article 118 of the Constitution seems to mark a clear direction: "ALL the ordinary criminal trials ... ... ..". All are "all" and it no doubt. Except to say that at the time of the adoption of the Constitution was common distinction between "crimes" and "crimes", what could be drawn that only those who today are called felonies are achieved by the constitutional requirement. There seems to be this a solution consistent with the vision of the jury as a body of democratic participation. For two reasons. Firstly because if the intervention of the people in criminal trials is a consequence or prerequisite of the system of participatory democracy, does not warn the reasons why only in some cases such participation is important, not so in others. And secondly term, even accepting this distinction, it is very difficult to establish in which cases themselves and in what cases. In fact, doctrine and existing projects is a noticeable difference in regard to crimes that deserve a jury and not warranted.
must also be remembered that one of the sources of the constituents Argentina is the Constitution of the United States. Originally it referred generically to the trial by jury. It is only with the Sixth Amendment to require the intervention of juries as a "right of the accused", which clarified the issue in American law. But that does not have similar results in our doctrine of interpretation because the Sixth Amendment may not be traspolada Argentine law and the Constitution, so that even today if it can be discussed to the extent that it has that Sixth Amendment.
essential point is to determine then if what is the constitutional provision requires the jury panel for all or only in certain cases and at the request of the accused. In the second case appears as a consequence the need to determine where and what should be the parameters to set them. Another issue to clarify and related constitutional issues ("reserved powers" and "delegated powers") is the one covering the scope of the rules that Congress established. If you have or do not reach national and, where, what and how will the powers reserved to the provinces in its regulation. Those predicted are some issues to clarify in advance of reaching the decision regarding the implementation of the jury. Therefore it seems prudent not to advocate the introduction of the jury and, in dry and in generic form, without prior discussion of the aforementioned aspects.
But I think what can not lose sight of is that the Constitution, even though the main rule is a tool for better development of society in Argentina. And as it was amended in 1860, or 1994, to bring it into line with the reality of the country, may well be reformed again if this is appropriate or necessary. Ultimately, the jury referred to the constitutional commands can not be considered intangible as a provision "stone" and from there to set it at all costs. Perhaps it is wise to consider, at least as additional working hypothesis, the possibility that a constitutional amendment to modify the existing texts, explaining the best way the constitutional commands. Or, again and reiterating what happened in 1949, was relieved of the duty of the jury if they appear as insurmountable barriers or if its effectiveness is not clear or if it appears finally, one or other legal tools are presented as an alternative way of criminal prosecution . This is because the modern doctrine of criminal procedure has generated a number of alternative methods of conflict resolution among which include the abbreviated trial, the principle and criteria of opportunity, the suspension of judgment-proof and even mediation in criminal matters, all of them incompatible with the legal systems. Only a comprehensive view of the issue will move forward without ED but without the risk of changes in the system dysfunctional penal system, recalling here the scope that the "penal system" gives Zaffaroni.
III .-
PROCEDURAL ASPECTS In this section the claim is to reflect on some of the statements made, with and without admitting dogmatic arguments, to argue in favor of trial by jury system. First, it is said that this form of participatory justice democratize the judiciary. In fact, the judiciary is one of the three branches of government and its integration of constitutional provisions governing principle in the dogmatic party (art. 1) referring to the Argentina Nation adopts for its representative form of government, republican and federal levels, as established by this Constitution. " Therefore, participation as a way of intervening the people in public affairs is not essential as long as the form of government is representative. That is, the jury system is not a necessary consequence of the democratic system and not at stake, beyond which may or may not be suitable or effective. If an analogy is valid, can not be said that the executive presidential system of more democratic than the parliamentary system, or that the bicameral system of legislature more democratic than the chamber. They're just different organizational systems and the transcendent power is the degree of effectiveness of each, depending on the demands of the society to govern. The same can be said of the prosecution system and by technical judges or juries. In short, the implementation of jury is required by the democratic system, beyond that today is it a requirement of the Constitution. Only as a reminder, and it does not entail sharing in all his statements Peñalva Pedraz said, referring to the jury as a means of popular participation "... ... does not seem to get spark a debate about the degree of legitimacy of the judge or the jury. " ... ... ... .... "In fact, the jury is a body of staff composition different time, which is not at all mean expression of the total society, just as it is not just the area should be close to the case." ... ... ... ... "No are admissible as statements like that ... ... the jury is an element of democratization of the judiciary "(3).
Second, is to assign exclusively to the legal systems of the oral benefits, advertising, conflict and immediacy. Strictly speaking none of them are inherent to the jury. Orality and its consequences (advertising, contradiction, concentration and immediacy) are principles that govern the adversarial system, whatever the integration of the trial court. In fact, in Argentina virtually all provinces have trial systems in which the whole stage is governed by those principles. This is this more Beyond questioning the heritage and practice generate deformations. These strains are not attributable to the prevailing system of prosecution, but socio-cultural aspects are those that give rise to distortions. Those cultural aspects that may well taint the legal systems in Argentina, as has happened in Spain and follows the report of the General Council of the Judiciary in 1998. Third states that the jury system of justice is less bureaucracy. In relation to this question two considerations are relevant. One, the bureaucracy is not a defect of justice only, and in particular how the courts, but of all state agencies. In Latin America in general, the bureaucratization of all state activity is a constant. Therefore, it is likely that the jury will equally bureaucratic. So much is this so often said Cafferata Nores, colloquially, that Argentina will be extremely difficult to detach from what he calls the "culture of record."
remaining reflection is that as the regulation is made of the procedures for the selection of jurors, this aspect of the court proceeding before a jury can be as or more burdensome than any system in place today. A good example is what happens in the United States, where the selection procedures members of the jury is cumbersome and time consuming and economic resources involved in developing the trial. And worth a digression here: the question of the selection method leads which must be considered carefully. This is so because the universe of choice may be comprised of the general standard of citizens. Or lists obtained by different procedures of this pattern. Or any other method. It follows that if the exclusion criteria are not careful it can happen that result is obtained by integration of the jury who are selected repeatedly, making this in their activity but usually not permanent. With thus running the risk of getting a jury "professional" composed of laymen. Fourth, there is a marked tendency to point between the benefits of obtaining a jury swift justice, accurate and "fair" in the sense of coinciding with popular sentiments and requirements. Well look the matter, the speed of criminal proceedings depends primarily a criminal investigation agile and effective school. And then an appropriate relationship between number of cases and number of bodies of prosecution. No bearing on the composition of the trial court. You can say further that if the relationship number of cases, many courts is adequate, probably more agile technical proceedings before a court, especially because it avoids the process of selecting jurors, the process of integration itself, the processing of instructions and the process after the verdict that the sentence was passed itself. Therefore, if the crisis of justice derives largely from the lack of efficacy, has little influence in improving the establishment of the jury. Point to the accurate and fair decision, which usually also predicated on the verdicts of the jury, only if we start from the premise of a reluctant judiciary and mediocrity or corrupt and compared with an aseptic jury, with members dedicated honest and upright can match and "a priori" that the jury will take further measure of justice. Strictly speaking, in these cases to argue for the thesis of the author, the comparison is made between the judiciary exists today from its worst exponents and a jury of ideal citizens. Neither one thing nor the other is objectively useful in an academic discussion about the virtues of legal systems. Otherwise, it would suffice to cite the examples of the case "OJSimpson" in the U.S. or the case "Otegui" in the Basque Country, as examples of critical failures, to give rise to endless and pointless discussion. Another aspect that should be reflected upon is related to the benefits it has to bring the implementation of the jury. It affirms dogmatically, which will improve the justice system, reducing the feeling of dissatisfaction and insecurity. As stated by Zaffaroni, the penal system includes not only the trial courts but also to the police, the bodies of preliminary investigation, criminal enforcement system, criminal law, criminal procedure law, including press . If so, operate on a single element of the system is not greatly modify the situation that this system generates. Therefore, if the criminal justice system today is because of widespread dissatisfaction, the establishment the jury not to change that situation well. In other words, we need a systematic and not partial. This is related to the major shortcoming of today is the criminal justice system that is procrastination and lack of effectiveness of the bodies responsible for criminal investigation school. In this regard, statistical studies consistently show delays in the investigative stage, thereby lengthening the coercive measures of deprivation of liberty. In addition to this delay by flaws in research methods is very low amount of processes that gather evidence to arrive at the plenary stage. With variations in detail, reach the trial stage around 5% of the processes that start. Consequently, if only five percent of cases reach the whole, serious failure occurs in the first stage and not involved in the body conducting the trial. In other words, while not operate on the criminal investigation school system, providing it with necessary means both quantity and quality, those feelings of dissatisfaction and insecurity are not going to change, or with jurors or with any other system integration the trial court. And they will not be changed because the criminal rates, generating those feelings come from other sources.
worth noting, moreover, if we adopt a jury system in which only certain crimes are tried before, that the above percentage has decreased sharply. Therefore it is not unreasonable to think that implemented the jury could be reached to establish a trial system in which only 1% or 2% of the processes are completed by jury. It is then the question: is essential: it is necessary, calls for urgent implementation of the jury?. And finally, that sense of dissatisfaction and disbelief that generates justice will vary because only one of every hundred cases are resolved by juries?. Related to the above
John Langbein, a professor at the University Yale has written about the United States concluded that only 4% of trials end up before juries. Further notes that the expensive and cumbersome jury system takes that individuals look "defined" to stop exercising their right to trial by jury and accept the alternative system of "plea bargaining" which thus passed to be not only an alternative method but the rule. Add to this that there are a situation of coercion to the defendants, issued by the prosecuting authority and the system itself, under which they were pressured to accept not being submitted to the jury. Then concludes that the right under the Sixth Amendment is really theory. A point Such is the vision which he called the study that examines the issue: "On the myth of written constitutions: the disappearance of criminal jury trial" (4). Coincident with this, it has begun to refer to the "flight of the jury." So, Gustavo Bruzzone says that in California, 97% of cases are concluded without the intervention of juries (5). In similar way (and in the same work in a work entitled "On popular participation in criminal justice", pg. 288), English teacher Pedraz Ernesto Peña said that several European states including France mentions , Italy, Germany, Austria, has produced a departure from pure or classic jury. And remember also the United States, with similar findings that Bruzzone. Amen to the above, scholars the issue has raised serious concerns as to how to reconcile the system of trial by jury, with various institutes proceedings, including the abbreviated trial, the verdict and sentence, with the justification for the decision; with recursive routes. On all these issues not only is there no agreement but not seen definite lines of thought that may facilitate the establishment of a legal system with legal consensus. Obviously, the posture adopted in each of these issues is to have significant influence on the response is given with regard to the jury.
IV. Swear EXPERIENCE
analysis is important from this plane because it enables them to appreciate were the results of the validity of the jury system in various jurisdictions and at different times. This must allow to make a comparative study with the situation in Argentina and to envision the possible consequences of its implementation. The characteristics of these lines exempt precision and detail, on the other hand, well known. Broadly speaking it can be argued that countries that established the classic jury for various reasons, have gone away from him. Germany, France, Italy. Portugal and the aforementioned U.S. I have neglected and have adopted alternative systems whether jurors of "plea bargaining" or similar. So much is this so that Pedraz Peñalva mented and states that "... the jury has turned into jurors ... ... ... and that remains as it plays a cameo as a mere ornament in truth ...." (6). In particular reference to Spain, this meant merely ornamental it out of the limited competition and objective response to their implementation by the forum and citizenship, according to the Report of the Supreme Judicial Council on 5 May 1999 on a request from the Parliament. Moreover, it is interesting to dwell on the experience of the province of Cordoba. There was implemented the system of trial by jury, establishing for certain serious offenses and request the technical integration of two public court. To be fair it was only a timid experience, especially since popular participation was at a distinct minority. However, it is interesting to note that during the term of the system, after more than five years, only a few cases (less than 40), were filed before the court with magistrates. This goes to show that, at least in Cordoba, there has been a "flight to the jury" but Quite the contrary. The lack of tradition and lack of interest have been marked. And until now it happens the same with the recent reform of Cordoba under the joint integration has invested in the situation and that citizens who compose it are eight, becoming most pronounced. Should be stated however, that at recent reform, no conclusions can be drawn regarding its reception and its virtues or defects. As to the reasons why there is this "crisis" of the jury, and the lack of tradition, one that deserves attention is related to the cumbersome procedure of selecting members and the other is referred to the cost economic. On the first point, can not forget the reality of our country. Perhaps in the Federal Capital would be less inconvenient to comply with the steps necessary to integrate the jury. But inside the country are becoming gigantic difficulties for various reasons. And as it pertains to the economic aspect, Gustavo Bruzzone (7) makes a pithy analysis and provides data showing the high costs of the system. Among them include building infrastructure, technical, administrative and maintenance costs. And also the issue of compensation for jurors. It is true that these aspects do not consider them insurmountable obstacle, but the fact remains that should be considered as a step prior to the eventual establishment of the jury in Argentina.
Finally, I should paraphrase Bruzzone who, in the conclusions of the work cited repeatedly says: "I try to make a contribution that allows us to reflect seriously about the institution that seeks to establish and, I repeat, we are aware of all the consequences involved to avoid failure "(8).
V. CONCLUSIONS
After superficial analysis about the jury in the previous paragraphs, I understand that prior to enthusiastically promote the implementation of the jury in Argentina, it is essential to ask (and answer) several questions:
1) Jury "" popular " or "lay judges"?
2) Jury when?
3) jury who?
4) Jury with what?
5) jury how?
To these questions I propose the following answers:
1) For the first antinomy believe that the "jury" or classic is not viable in the country. Its implementation through legislation would create a huge number of trips and would not provide the criminal prosecution system significant advantages. In regard to the setbacks, a radical transformation requires a whole cultural change difficult to generate in the short or medium term. Cultural transformation requires change civic character, of a legal, structural and economic. It is expected that they can be done today. That said it may be prudent to imagine the implementation of an integrated court jurors. This compromise may help resolve some of the most intractable problems facing the classic jury.
2) The second question is whether all criminal trials must be processed before juries, or only some of them. Established the jury understand its widespread competition impracticable. It only seems reasonable that in some cases be granted intervention. This results in the need to specify what should be. In this regard I understand that there should be intervention in cases of special features.
So, the challenge is to define what should be the criteria for selection. I do not think that the criterion of the severity of the applicable penalty will be useful, unless you supplement it with others. Nor do I believe effective selection determination based on the generic offenses. Should then look for additional criteria to be of assistance to the jury in cases that are paradigmatic for society. I
here except that as the conclusion reached in relation to these first two questions, it will require an amendment to the Constitution to suit the needs arising from the reality. That is so because the Constitution refers to the jury and the trial of all crimes by the court. While this is under discussion, the very existence of these demonstrate the need to resolve the matter.
3) Who will compose the jury is one of the questions. The first is the amount, that is, if they are to be seven, nine, twelve. This has implications for the development of the selection process and is not a minor issue if viewed from the standpoint of representativeness. Moreover, it is said that natives of the country must integrate o naturalizados. Pareciera a primera vista razonable y así lo regulan generalmente los proyectos de ley, aunque en un país de inmigración como Argentina, ello excluye inmediatamente a núcleos importantes de la población los que, en algunos lugares del territorio se constituyen en mayoría. Es este un tema a tener en cuenta también en relación a la representatividad. Ejemplificativamente y aún cuando no hay estadísticas o datos precisos, se estima que la población de la provincia de Mendoza está integrada por un número que excede largamente a los cien mil extranjeros, fundamentalmente bolivianos y chilenos. Teniendo en cuenta el padrón provincial (alrededor de quinientos mil ciudadanos), rápidamente se and warns that "a priori" at least one in five people would be disabled. In addition, the exclusion of social groups should be carefully analyzed. The exclusion of lawyers, common in the bills, it seems wise. But not the teachers, doctors, notaries, mediators or certain groups due to age, educational level, their employment status, regulated in some of the projects in dance.
This applies both to the jury as to the jurors classic. But in relation to the latter the integration raises another question to be solved is the question of the appropriate proportion between laymen and lawyers. It seems reasonable that the number of first exceeds that of the latter in significantly.
4) The question of "how" must resolve economists and managers of public finances. The first will quantify the cost impact of the jury in the gross domestic product or in relation to annual income per capita or many other parameters feasible to use. And the treasury officers will determine the funds available and their origin. But the lawyers noted that the requirements incumbent jury are many and varied, which for no known need to be detailed. Just to note, however, that without them the best system that can be implemented passes immediately be ineffective if not a dead letter.
5) The answer to "how" is to run the jury, should be obtained after the above. Specifically noticeable changes must occur both in law and in judicial organization and procedure. Also, if you established the system of trial by jury or jurors, the law must originate from a Nation so that, beyond the procedural differences of detail, it governs the country.
are not minor issues, among others, the determination of whether the integration of the jury has to be or not a public charge. If you have to be paid and if so how. If you have instructions and what. If you decide only questions of fact or of law also. If only render the verdict or sentence. If you will "break" the debate or will not. If necessary or desirable to provide means and ways to alienate jurors of any pressures or risks that may be subject. Just Once these questions, then you can take a clear idea about the possibility of trial by jury in Argentina. ------------------------------------------------
1) Sagüés, Nestor P. "The oral criminal trial and trial by jury in the Constitution", El Derecho, T ° 92, 1981 pg. 914.
2) Work cited, p.. 907.
3) Author said, "On popular participation in criminal justice." In "Trial by jury in criminal proceedings", edit. Ad Hoc, Buenos Aires, 2000, pp. 287 and following, especially 292/93.
4) In the magazine "New Criminal Doctrine", 1996 - A -.
5) Author said, "Myth and reality of citizen participation in the administration of criminal justice." In "Trial by jury in criminal proceedings", Ad Hoc, Buenos Aires, 2000, pg. 218.
6) Author and work cited, pg. 332.
7) Ibid., pg. 217 et seq.
8) Author and work cited, pg. 230.
Paper presented at the XXIII Congress LITIGATION NATIONAL
I. - INTRODUCTION
The issue of trial by jury or jury has regained momentum in recent years in Argentina constitutional procedural doctrine. Maybe this time the momentum is greater than at other times. Several circumstances contribute to it to be that way and only by way of example may include: insecurity, disbelief in justice, sense of impunity, increasing trend of direct community participation in various spheres of public activity. There is renewal of the legal entity is good trend analysis not only all the advantages that it advocates, but also the difficulties and disadvantages of the establishment of trial by jury may result. This statement is valid if it is agreed that criminal prosecution systems, as ultimately all the normative order are tools in the service of society for better development. Because only tools, they can not be taken as immutable dogmas, but as means to an end. And if this is so, it seems prudent to study the subject without enrolling in antinomies well known, that in the particular case results in strong opposition vs legal entity. antijuradistas. In other words, if the prosecution systems are mechanisms for prosecuting persons suspected of crime, the jury is only one of them and, although is true that the constitutional need is not a minor detail, the fact remains that it is possible to conclude, by hypothesis, that there are systems that can be made more operational and therefore the effective solution would be to modify the provisions of the Constitution that established. Therefore, this analysis of jury trial should be carried out without prejudice or immovable budgets because there is no dogma inevitably requiring the jury. And then the discussion can be made depending on several aspects. It is possible conventionally distinguish three levels and from each to try to clarify the issue. The three levels selected here are constitutional, procedural and experiential.
II. CONSTITUTIONAL ISSUES
There is no doubt about that since the dawn of the Argentine Constitution, the prosecution in criminal cases through the intervention of juries has been present as part of the normative order. Especially the Constitution of 1853 and the 1994 reform repeatedly indicate that prosecutions must be conducted with jurors. Ie, from a policy perspective, in Argentina there is an almost permanent constitutional mandate. The "almost" because the 1949 Constitution abolished the jury, reappearing at the time it ceased to have effect. Moreover, any doubt as to whether that mandate has been breached during the lifetime of the Constitutions of 1853 and 1994. It seems prudent then consider the reasons for this striking failure, which has led some (Sagüés among them) to talk about ".... Process against constitucionem desuetude" (1). Indeed, many authors have addressed the issue of violation of constitutional mandate and is not here, where should they be remembered. But, for one reason or another, a jury trial has not been established in the Republic. Unless I leave the experience of Cordoba, by all known and strictly speaking, has no full consensus on whether or not the system is constitutionally provided.
Given the above and subject Sagüés the view, at first glance it seems necessary to conclude that it is essential immediately establish a jury system, especially since the reform of 1994 that kept the school and then stressed the mandate.
However, with the certainty of the existence of the constitutional mandate and its disregard for a century and a half, there is another certainty: no reasons of urgency or immediate need to resolve the issue. Perhaps it is wise to consider the issue from his own base and a plurality seriously answer questions, prior determination of its establishment wing .. The time it will take while studying in depth the entire scope of a transformation of such importance deserves to be consumed to prevent the establishment of a system that is not operating or is not effective .. If an analogy can be worth three examples of the systems of criminal prosecution. The first: in the province of Cordoba is changed the old Criminal Procedure Code 1939, enacted on reform pithy after studies of the project, which took about five years. However, the effective entry into force of the rule had to suffer various delays that involved another six years. That time allowed to establish institutions and correct errors. Thus, the adversarial system implemented in Córdoba avoided many of the pitfalls even when The remaining problems are diverse. The second example that can be brought to bear is the province of Buenos Aires. The reform of the Criminal Procedure Code was made with far greater urgency and the consequences of its validity, known to all, were not expected. Thus, the urgency brought major challenges still remain.
Finally, in the province of Mendoza, the law was passed amending the Criminal Procedure Code with unusual speed, closed book and without accepting any suggestions or criticism. This led to various difficulties, including several law amendments (at least seven), which delayed the time of entry into force and therefore are put into effect six years after its passage, only a part of the first of the four districts in the province that is divided, not foreseeing the certain possibility of extending its implementation to the rest of the province. Improvisation and lack of rigor threaten to sterilize a modern, stumble by making mistakes in their implementation.
The examples given and turning now to the issue of the jury, allows a first statement, it is necessary to determine precisely what the budget, requirements and implications of the establishment of the jury system.
without delay but not ER is an indispensable prerequisite analyze these aspects, before advocating the enactment of its establishment. This is it taking into account the many existing bills in the National Congress, which means that in the bat, can any of them be punished. Entering the analysis, perhaps the first question is applicable to constituents why the jury system included in the Constitution?. The precise answer is not available from the discussions of the Convention, in which nothing is said in detail. But there are about two possible answers. Given by Joaquín V. Gonzalez noted that the jury is ".... The guarantee of freedom and the proper administration of justice." O given by Del Valle, stating that ".... The main goal was to attract Anglo immigration and thus provide prospective residents a legal institution similar to that governing in the countries of origin ...." Both authors remembered Sagüés (2). Depending on the conclusion that arrives, the constitutional demand will become more or less importance on the need for its persistence as such. But the truth is that the value of those reasons, the time they were given, is not that today may be granted.
however, accepted the existence of the constitutional mandate and with reference to budgets, constitutions require reflection and details, before making any possible jury systems. In this regard it is good to note that when we argue from the point mentioned constitutional articles 24, 75 inc. 12 and 118 of the Basic Law, the forecast is clear that the jury, in the next line states that the objective pursued justice is a participatory, transparent, credible and consistent with a democratic system. However, little is said about whether it is a "right people" to judge its members or if "an individual right" to be tried by their peers. This issue must be treated carefully because it's base is a fundamental consequence. If the solution is the first, all criminal trials must be processed before juries. If it's in exchange for the latter, then constraints can be set on various types of people and events that may lead to the intervention of juries. These constraints can be analyzed if only for serious crimes will be established (all the emerging issue of the constitutional reference to "criminal prosecutions" comes into play here.) In the above point can not overlook the fact that Article 118 of the Constitution seems to mark a clear direction: "ALL the ordinary criminal trials ... ... ..". All are "all" and it no doubt. Except to say that at the time of the adoption of the Constitution was common distinction between "crimes" and "crimes", what could be drawn that only those who today are called felonies are achieved by the constitutional requirement. There seems to be this a solution consistent with the vision of the jury as a body of democratic participation. For two reasons. Firstly because if the intervention of the people in criminal trials is a consequence or prerequisite of the system of participatory democracy, does not warn the reasons why only in some cases such participation is important, not so in others. And secondly term, even accepting this distinction, it is very difficult to establish in which cases themselves and in what cases. In fact, doctrine and existing projects is a noticeable difference in regard to crimes that deserve a jury and not warranted.
must also be remembered that one of the sources of the constituents Argentina is the Constitution of the United States. Originally it referred generically to the trial by jury. It is only with the Sixth Amendment to require the intervention of juries as a "right of the accused", which clarified the issue in American law. But that does not have similar results in our doctrine of interpretation because the Sixth Amendment may not be traspolada Argentine law and the Constitution, so that even today if it can be discussed to the extent that it has that Sixth Amendment.
essential point is to determine then if what is the constitutional provision requires the jury panel for all or only in certain cases and at the request of the accused. In the second case appears as a consequence the need to determine where and what should be the parameters to set them. Another issue to clarify and related constitutional issues ("reserved powers" and "delegated powers") is the one covering the scope of the rules that Congress established. If you have or do not reach national and, where, what and how will the powers reserved to the provinces in its regulation. Those predicted are some issues to clarify in advance of reaching the decision regarding the implementation of the jury. Therefore it seems prudent not to advocate the introduction of the jury and, in dry and in generic form, without prior discussion of the aforementioned aspects.
But I think what can not lose sight of is that the Constitution, even though the main rule is a tool for better development of society in Argentina. And as it was amended in 1860, or 1994, to bring it into line with the reality of the country, may well be reformed again if this is appropriate or necessary. Ultimately, the jury referred to the constitutional commands can not be considered intangible as a provision "stone" and from there to set it at all costs. Perhaps it is wise to consider, at least as additional working hypothesis, the possibility that a constitutional amendment to modify the existing texts, explaining the best way the constitutional commands. Or, again and reiterating what happened in 1949, was relieved of the duty of the jury if they appear as insurmountable barriers or if its effectiveness is not clear or if it appears finally, one or other legal tools are presented as an alternative way of criminal prosecution . This is because the modern doctrine of criminal procedure has generated a number of alternative methods of conflict resolution among which include the abbreviated trial, the principle and criteria of opportunity, the suspension of judgment-proof and even mediation in criminal matters, all of them incompatible with the legal systems. Only a comprehensive view of the issue will move forward without ED but without the risk of changes in the system dysfunctional penal system, recalling here the scope that the "penal system" gives Zaffaroni.
III .-
PROCEDURAL ASPECTS In this section the claim is to reflect on some of the statements made, with and without admitting dogmatic arguments, to argue in favor of trial by jury system. First, it is said that this form of participatory justice democratize the judiciary. In fact, the judiciary is one of the three branches of government and its integration of constitutional provisions governing principle in the dogmatic party (art. 1) referring to the Argentina Nation adopts for its representative form of government, republican and federal levels, as established by this Constitution. " Therefore, participation as a way of intervening the people in public affairs is not essential as long as the form of government is representative. That is, the jury system is not a necessary consequence of the democratic system and not at stake, beyond which may or may not be suitable or effective. If an analogy is valid, can not be said that the executive presidential system of more democratic than the parliamentary system, or that the bicameral system of legislature more democratic than the chamber. They're just different organizational systems and the transcendent power is the degree of effectiveness of each, depending on the demands of the society to govern. The same can be said of the prosecution system and by technical judges or juries. In short, the implementation of jury is required by the democratic system, beyond that today is it a requirement of the Constitution. Only as a reminder, and it does not entail sharing in all his statements Peñalva Pedraz said, referring to the jury as a means of popular participation "... ... does not seem to get spark a debate about the degree of legitimacy of the judge or the jury. " ... ... ... .... "In fact, the jury is a body of staff composition different time, which is not at all mean expression of the total society, just as it is not just the area should be close to the case." ... ... ... ... "No are admissible as statements like that ... ... the jury is an element of democratization of the judiciary "(3).
Second, is to assign exclusively to the legal systems of the oral benefits, advertising, conflict and immediacy. Strictly speaking none of them are inherent to the jury. Orality and its consequences (advertising, contradiction, concentration and immediacy) are principles that govern the adversarial system, whatever the integration of the trial court. In fact, in Argentina virtually all provinces have trial systems in which the whole stage is governed by those principles. This is this more Beyond questioning the heritage and practice generate deformations. These strains are not attributable to the prevailing system of prosecution, but socio-cultural aspects are those that give rise to distortions. Those cultural aspects that may well taint the legal systems in Argentina, as has happened in Spain and follows the report of the General Council of the Judiciary in 1998. Third states that the jury system of justice is less bureaucracy. In relation to this question two considerations are relevant. One, the bureaucracy is not a defect of justice only, and in particular how the courts, but of all state agencies. In Latin America in general, the bureaucratization of all state activity is a constant. Therefore, it is likely that the jury will equally bureaucratic. So much is this so often said Cafferata Nores, colloquially, that Argentina will be extremely difficult to detach from what he calls the "culture of record."
remaining reflection is that as the regulation is made of the procedures for the selection of jurors, this aspect of the court proceeding before a jury can be as or more burdensome than any system in place today. A good example is what happens in the United States, where the selection procedures members of the jury is cumbersome and time consuming and economic resources involved in developing the trial. And worth a digression here: the question of the selection method leads which must be considered carefully. This is so because the universe of choice may be comprised of the general standard of citizens. Or lists obtained by different procedures of this pattern. Or any other method. It follows that if the exclusion criteria are not careful it can happen that result is obtained by integration of the jury who are selected repeatedly, making this in their activity but usually not permanent. With thus running the risk of getting a jury "professional" composed of laymen. Fourth, there is a marked tendency to point between the benefits of obtaining a jury swift justice, accurate and "fair" in the sense of coinciding with popular sentiments and requirements. Well look the matter, the speed of criminal proceedings depends primarily a criminal investigation agile and effective school. And then an appropriate relationship between number of cases and number of bodies of prosecution. No bearing on the composition of the trial court. You can say further that if the relationship number of cases, many courts is adequate, probably more agile technical proceedings before a court, especially because it avoids the process of selecting jurors, the process of integration itself, the processing of instructions and the process after the verdict that the sentence was passed itself. Therefore, if the crisis of justice derives largely from the lack of efficacy, has little influence in improving the establishment of the jury. Point to the accurate and fair decision, which usually also predicated on the verdicts of the jury, only if we start from the premise of a reluctant judiciary and mediocrity or corrupt and compared with an aseptic jury, with members dedicated honest and upright can match and "a priori" that the jury will take further measure of justice. Strictly speaking, in these cases to argue for the thesis of the author, the comparison is made between the judiciary exists today from its worst exponents and a jury of ideal citizens. Neither one thing nor the other is objectively useful in an academic discussion about the virtues of legal systems. Otherwise, it would suffice to cite the examples of the case "OJSimpson" in the U.S. or the case "Otegui" in the Basque Country, as examples of critical failures, to give rise to endless and pointless discussion. Another aspect that should be reflected upon is related to the benefits it has to bring the implementation of the jury. It affirms dogmatically, which will improve the justice system, reducing the feeling of dissatisfaction and insecurity. As stated by Zaffaroni, the penal system includes not only the trial courts but also to the police, the bodies of preliminary investigation, criminal enforcement system, criminal law, criminal procedure law, including press . If so, operate on a single element of the system is not greatly modify the situation that this system generates. Therefore, if the criminal justice system today is because of widespread dissatisfaction, the establishment the jury not to change that situation well. In other words, we need a systematic and not partial. This is related to the major shortcoming of today is the criminal justice system that is procrastination and lack of effectiveness of the bodies responsible for criminal investigation school. In this regard, statistical studies consistently show delays in the investigative stage, thereby lengthening the coercive measures of deprivation of liberty. In addition to this delay by flaws in research methods is very low amount of processes that gather evidence to arrive at the plenary stage. With variations in detail, reach the trial stage around 5% of the processes that start. Consequently, if only five percent of cases reach the whole, serious failure occurs in the first stage and not involved in the body conducting the trial. In other words, while not operate on the criminal investigation school system, providing it with necessary means both quantity and quality, those feelings of dissatisfaction and insecurity are not going to change, or with jurors or with any other system integration the trial court. And they will not be changed because the criminal rates, generating those feelings come from other sources.
worth noting, moreover, if we adopt a jury system in which only certain crimes are tried before, that the above percentage has decreased sharply. Therefore it is not unreasonable to think that implemented the jury could be reached to establish a trial system in which only 1% or 2% of the processes are completed by jury. It is then the question: is essential: it is necessary, calls for urgent implementation of the jury?. And finally, that sense of dissatisfaction and disbelief that generates justice will vary because only one of every hundred cases are resolved by juries?. Related to the above
John Langbein, a professor at the University Yale has written about the United States concluded that only 4% of trials end up before juries. Further notes that the expensive and cumbersome jury system takes that individuals look "defined" to stop exercising their right to trial by jury and accept the alternative system of "plea bargaining" which thus passed to be not only an alternative method but the rule. Add to this that there are a situation of coercion to the defendants, issued by the prosecuting authority and the system itself, under which they were pressured to accept not being submitted to the jury. Then concludes that the right under the Sixth Amendment is really theory. A point Such is the vision which he called the study that examines the issue: "On the myth of written constitutions: the disappearance of criminal jury trial" (4). Coincident with this, it has begun to refer to the "flight of the jury." So, Gustavo Bruzzone says that in California, 97% of cases are concluded without the intervention of juries (5). In similar way (and in the same work in a work entitled "On popular participation in criminal justice", pg. 288), English teacher Pedraz Ernesto Peña said that several European states including France mentions , Italy, Germany, Austria, has produced a departure from pure or classic jury. And remember also the United States, with similar findings that Bruzzone. Amen to the above, scholars the issue has raised serious concerns as to how to reconcile the system of trial by jury, with various institutes proceedings, including the abbreviated trial, the verdict and sentence, with the justification for the decision; with recursive routes. On all these issues not only is there no agreement but not seen definite lines of thought that may facilitate the establishment of a legal system with legal consensus. Obviously, the posture adopted in each of these issues is to have significant influence on the response is given with regard to the jury.
IV. Swear EXPERIENCE
analysis is important from this plane because it enables them to appreciate were the results of the validity of the jury system in various jurisdictions and at different times. This must allow to make a comparative study with the situation in Argentina and to envision the possible consequences of its implementation. The characteristics of these lines exempt precision and detail, on the other hand, well known. Broadly speaking it can be argued that countries that established the classic jury for various reasons, have gone away from him. Germany, France, Italy. Portugal and the aforementioned U.S. I have neglected and have adopted alternative systems whether jurors of "plea bargaining" or similar. So much is this so that Pedraz Peñalva mented and states that "... the jury has turned into jurors ... ... ... and that remains as it plays a cameo as a mere ornament in truth ...." (6). In particular reference to Spain, this meant merely ornamental it out of the limited competition and objective response to their implementation by the forum and citizenship, according to the Report of the Supreme Judicial Council on 5 May 1999 on a request from the Parliament. Moreover, it is interesting to dwell on the experience of the province of Cordoba. There was implemented the system of trial by jury, establishing for certain serious offenses and request the technical integration of two public court. To be fair it was only a timid experience, especially since popular participation was at a distinct minority. However, it is interesting to note that during the term of the system, after more than five years, only a few cases (less than 40), were filed before the court with magistrates. This goes to show that, at least in Cordoba, there has been a "flight to the jury" but Quite the contrary. The lack of tradition and lack of interest have been marked. And until now it happens the same with the recent reform of Cordoba under the joint integration has invested in the situation and that citizens who compose it are eight, becoming most pronounced. Should be stated however, that at recent reform, no conclusions can be drawn regarding its reception and its virtues or defects. As to the reasons why there is this "crisis" of the jury, and the lack of tradition, one that deserves attention is related to the cumbersome procedure of selecting members and the other is referred to the cost economic. On the first point, can not forget the reality of our country. Perhaps in the Federal Capital would be less inconvenient to comply with the steps necessary to integrate the jury. But inside the country are becoming gigantic difficulties for various reasons. And as it pertains to the economic aspect, Gustavo Bruzzone (7) makes a pithy analysis and provides data showing the high costs of the system. Among them include building infrastructure, technical, administrative and maintenance costs. And also the issue of compensation for jurors. It is true that these aspects do not consider them insurmountable obstacle, but the fact remains that should be considered as a step prior to the eventual establishment of the jury in Argentina.
Finally, I should paraphrase Bruzzone who, in the conclusions of the work cited repeatedly says: "I try to make a contribution that allows us to reflect seriously about the institution that seeks to establish and, I repeat, we are aware of all the consequences involved to avoid failure "(8).
V. CONCLUSIONS
After superficial analysis about the jury in the previous paragraphs, I understand that prior to enthusiastically promote the implementation of the jury in Argentina, it is essential to ask (and answer) several questions:
1) Jury "" popular " or "lay judges"?
2) Jury when?
3) jury who?
4) Jury with what?
5) jury how?
To these questions I propose the following answers:
1) For the first antinomy believe that the "jury" or classic is not viable in the country. Its implementation through legislation would create a huge number of trips and would not provide the criminal prosecution system significant advantages. In regard to the setbacks, a radical transformation requires a whole cultural change difficult to generate in the short or medium term. Cultural transformation requires change civic character, of a legal, structural and economic. It is expected that they can be done today. That said it may be prudent to imagine the implementation of an integrated court jurors. This compromise may help resolve some of the most intractable problems facing the classic jury.
2) The second question is whether all criminal trials must be processed before juries, or only some of them. Established the jury understand its widespread competition impracticable. It only seems reasonable that in some cases be granted intervention. This results in the need to specify what should be. In this regard I understand that there should be intervention in cases of special features.
So, the challenge is to define what should be the criteria for selection. I do not think that the criterion of the severity of the applicable penalty will be useful, unless you supplement it with others. Nor do I believe effective selection determination based on the generic offenses. Should then look for additional criteria to be of assistance to the jury in cases that are paradigmatic for society. I
here except that as the conclusion reached in relation to these first two questions, it will require an amendment to the Constitution to suit the needs arising from the reality. That is so because the Constitution refers to the jury and the trial of all crimes by the court. While this is under discussion, the very existence of these demonstrate the need to resolve the matter.
3) Who will compose the jury is one of the questions. The first is the amount, that is, if they are to be seven, nine, twelve. This has implications for the development of the selection process and is not a minor issue if viewed from the standpoint of representativeness. Moreover, it is said that natives of the country must integrate o naturalizados. Pareciera a primera vista razonable y así lo regulan generalmente los proyectos de ley, aunque en un país de inmigración como Argentina, ello excluye inmediatamente a núcleos importantes de la población los que, en algunos lugares del territorio se constituyen en mayoría. Es este un tema a tener en cuenta también en relación a la representatividad. Ejemplificativamente y aún cuando no hay estadísticas o datos precisos, se estima que la población de la provincia de Mendoza está integrada por un número que excede largamente a los cien mil extranjeros, fundamentalmente bolivianos y chilenos. Teniendo en cuenta el padrón provincial (alrededor de quinientos mil ciudadanos), rápidamente se and warns that "a priori" at least one in five people would be disabled. In addition, the exclusion of social groups should be carefully analyzed. The exclusion of lawyers, common in the bills, it seems wise. But not the teachers, doctors, notaries, mediators or certain groups due to age, educational level, their employment status, regulated in some of the projects in dance.
This applies both to the jury as to the jurors classic. But in relation to the latter the integration raises another question to be solved is the question of the appropriate proportion between laymen and lawyers. It seems reasonable that the number of first exceeds that of the latter in significantly.
4) The question of "how" must resolve economists and managers of public finances. The first will quantify the cost impact of the jury in the gross domestic product or in relation to annual income per capita or many other parameters feasible to use. And the treasury officers will determine the funds available and their origin. But the lawyers noted that the requirements incumbent jury are many and varied, which for no known need to be detailed. Just to note, however, that without them the best system that can be implemented passes immediately be ineffective if not a dead letter.
5) The answer to "how" is to run the jury, should be obtained after the above. Specifically noticeable changes must occur both in law and in judicial organization and procedure. Also, if you established the system of trial by jury or jurors, the law must originate from a Nation so that, beyond the procedural differences of detail, it governs the country.
are not minor issues, among others, the determination of whether the integration of the jury has to be or not a public charge. If you have to be paid and if so how. If you have instructions and what. If you decide only questions of fact or of law also. If only render the verdict or sentence. If you will "break" the debate or will not. If necessary or desirable to provide means and ways to alienate jurors of any pressures or risks that may be subject. Just Once these questions, then you can take a clear idea about the possibility of trial by jury in Argentina. ------------------------------------------------
1) Sagüés, Nestor P. "The oral criminal trial and trial by jury in the Constitution", El Derecho, T ° 92, 1981 pg. 914.
2) Work cited, p.. 907.
3) Author said, "On popular participation in criminal justice." In "Trial by jury in criminal proceedings", edit. Ad Hoc, Buenos Aires, 2000, pp. 287 and following, especially 292/93.
4) In the magazine "New Criminal Doctrine", 1996 - A -.
5) Author said, "Myth and reality of citizen participation in the administration of criminal justice." In "Trial by jury in criminal proceedings", Ad Hoc, Buenos Aires, 2000, pg. 218.
6) Author and work cited, pg. 332.
7) Ibid., pg. 217 et seq.
8) Author and work cited, pg. 230.
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