Argentina

From Criminal Defense Wiki
Jump to: navigation, search
Globe3.png English  • español • français


Additional Resources

Background

The Argentine Republic is divided into 23 provinces and its capitol is located at Buenos Aires. [1] In 1816, Argentina along with Uruguay, Paraguay, and Bolivia declared independence from the Spanish Empire. From independence until the mid-20th century, Argentina enjoyed a relatively peaceful period characterized by Péronist populism and steady immigration. However, in 1976 democracy fell to a military dictatorship that retained power through the use of political violence, kidnappings, and other oppressive tactics. After democracy returned in 1983, Argentina continued to suffer economic decline and hyperinflation well into the early 2000s. 97% of the Argentine population is of Italian or Spanish descent, with 92% of the population identifying as Roman Catholic. [2]

Type of System

The legal system in Argentina is a mixed system of US and French law. The sources of all Argentine laws stem from the rules of criminal procedures which are compiled in the Code of Criminal Procedure. This code is used by the national criminal courts in Buenos Aires when prosecuting both non-federal and federal criminal offenses. According to the Argentine Constitution, state courts have the final say on all interpretations of state codes of criminal procedure. [3]

Sources of Defendants' Rights

The Argentine National Constitution defends the rights of the individual from actions taken by either federal or provincial governments. However, these constitutional rights that constrain the police are subject to rulings made by the Supreme Court, which may make decisions with a large degree of authority. Additionally, Argentina has ratified the American Convention on Human Rights, a convention that has become significant in establishing standards of due process.[4]

Pre-Trial Phase

In Article 18, the National Constitution states that “no one should be arrested except upon a written order issued by a competent authority”. [5] Whereas the Constitution provides strong protection against arbitrary arrests, the rules of criminal procedure state that the police have the authority to stop, detain, or arrest anyone without a written order as long as that person is exhibiting guilty behavior. Additionally, Article 18 states that private residences, personal communications, and other private documents cannot be searched, seized, or violated without a statute that details when violations should be permitted. [6] The same article guarantees that nobody should be made to testify against themselves. [7]

Court Procedures

In Argentina, every investigation is the responsibility of the investigative magistrate who can assign the responsibility to a prosecutor.[8] The detention of the accused begins the process of arraignment and a judicial interrogation takes place in order to discern the accused person’s version of the event. [9] The Code of Criminal Procedure also states that the accused/detained must be informed of his right to legal counsel before the interrogation begins. Only the prosecutor and the defense counsel may attend the hearing at which the accused is interrogated. At no time can the accused be physically made to speak and at no time is he under oath.[10] In the event that the accused is kept in incommunicado detention by the police, the detention cannot exceed six hours and the accused must be submitted for a medical evaluation after the detention ends. If the investigative magistrate authorizes the detention, the detention may last forty-eight hours with a possible twenty-four hour extension.[11] Once the judicial interrogation has taken place, the investigative magistrate has ten days to decide whether there is sufficient evidence that a crime has been committed and whether the accused participated in the crime. If the evidence is insufficient enough to implicate the defendant, he must be released.[12] In Argentine courts, the granting of bail depends not on the evidence against the defendant, but on the seriousness of the crime committed. However, the granting of bail does not change the course of the investigation or trial in any way.[13]

In the event that a trial severely departs from Argentine criminal procedure (such as an investigative magistrate forcing a defendant to testify under oath), any party may request that the offending act be held null and void and stricken from the record.[14] In terms of discovery, all parties are given the right to access police files and reports as soon as the judicial interrogation has finished. However, Argentine procedural code also dictates that the investigative magistrate may declare that pre-trial proceedings may not be disclosed during the first ten days of the investigation.[15]

Through the adoption of the Code of Criminal Procedure in 1993, Argentina introduced the practice of concentrated and oral trial conducted by a panel of three judges. Before the introduction of this reform, the federal criminal proceedings in Argentina consisted mainly of written motions and intermittent interlocutory decisions. The nature of Argentine trials remains largely inquisitive in the sense that the trial courts have the ability to request additional evidence if that evidence will serve to further clarify the case.[16]

The defendant is not required to speak under oath and his refusal to speak may not be commented on at trial. The defendant may not be charged with perjury for lying during interrogation; however, the defendant’s dishonesty may be used to impeach his character, which can affect the final judgment. The defendant also has the right to call any witnesses to his defense and to cross-examine that witness.[17]

The Argentine Constitution entitles every defendant the right to legal representation of their choice, and if a defendant is not able to acquire representation, the State will assign them a public defender. Prosecutors in Argentina are not adversarial in nature, but instead act similarly to the judiciary. In this sense, they serve more as neutral decision makers.[18]

At both the pre-trial and trial stages, expert witnesses are selected from a list of official expert witnesses. The prosecutor, defendant, or the victim may hire their own expert witness, but the witness must be paid for by the appointing party.[19]

The victim of a crime has the right under the Argentine Constitution to retain an attorney in order to prosecute an accused person. In this situation, there will be a “victim prosecutor” and a prosecutor, in which case the prosecutor will have technical responsibility for the case but the victim prosecutor will lead the actual prosecution. The victim may also seek compensation or awards for damages, thus making the victim a “civil party” within the criminal proceedings.[20]

Both state and federal level judges are non-elected officials who must serve for life. These judges are appointed by the Argentine executive branch and are approved by either the Senate or the state legislature, depending on whether they are state or federal level judges. A panel of three judges presides over each trial and there is no jury. Both the Argentine Constitution and the 1994 amendment to the Code of Criminal Procedure state that trial by jury is ideal and desirable. However, the Argentine Congress has yet to enforce this amendment.[21]

The defendant is able to appeal a ruling of the investigative magistrate, but only against those that are indicated by law (such as rulings of dismissals). Appeals that are made against rulings of an investigative magistrate must be brought before an intermediate court of appeals within three days, while appeals against a trial court must be brought before the Criminal Court of Cassation within ten days. [22] Finally, Argentine Criminal Code specifies that a defendant is only permitted to appeal a conviction if the sentence exceeds three years, if there is a suspension of practicing a certain profession for more than five years, or if a fine exceeding a certain amount is involved.[23]

References

  1. CIA World Factbook, available at www.cia.gov/library/publications/the-world-factboook
  2. CIA World Factbook, available at www.cia.gov/library/publications/the-world-factboook
  3. Craig M. Bradley, Criminal Procedure A Worldwide Study 3 ( 2d ed., Carolina Academic Press 2007)
  4. Craig M. Bradley, Criminal Procedure A Worldwide Study 4, 7 ( 2d ed., Carolina Academic Press 2007)
  5. Craig M. Bradley, Criminal Procedure A Worldwide Study 7 ( 2d ed., Carolina Academic Press 2007)
  6. Craig M. Bradley, Criminal Procedure A Worldwide Study 11 ( 2d ed., Carolina Academic Press 2007)
  7. Craig M. Bradley, Criminal Procedure A Worldwide Study 27 ( 2d ed., Carolina Academic Press 2007)
  8. Craig M. Bradley, Criminal Procedure A Worldwide Study 34 ( 2d ed., Carolina Academic Press 2007)
  9. Craig M. Bradley, Criminal Procedure A Worldwide Study 35 ( 2d ed., Carolina Academic Press 2007)
  10. Craig M. Bradley, Criminal Procedure A Worldwide Study 36 ( 2d ed., Carolina Academic Press 2007)
  11. Craig M. Bradley, Criminal Procedure A Worldwide Study 37 ( 2d ed., Carolina Academic Press 2007)
  12. Craig M. Bradley, Criminal Procedure A Worldwide Study 40 ( 2d ed., Carolina Academic Press 2007)
  13. Craig M. Bradley, Criminal Procedure A Worldwide Study 41 ( 2d ed., Carolina Academic Press 2007)
  14. Craig M. Bradley, Criminal Procedure A Worldwide Study 42 ( 2d ed., Carolina Academic Press 2007)
  15. Craig M. Bradley, Criminal Procedure A Worldwide Study 43 ( 2d ed., Carolina Academic Press 2007)
  16. Craig M. Bradley, Criminal Procedure A Worldwide Study 45 ( 2d ed., Carolina Academic Press 2007)
  17. Craig M. Bradley, Criminal Procedure A Worldwide Study 46-47 ( 2d ed., Carolina Academic Press 2007)
  18. Craig M. Bradley, Criminal Procedure A Worldwide Study 47-48 ( 2d ed., Carolina Academic Press 2007)
  19. Craig M. Bradley, Criminal Procedure A Worldwide Study 48 ( 2d ed., Carolina Academic Press 2007)
  20. Craig M. Bradley, Criminal Procedure A Worldwide Study 49-50 ( 2d ed., Carolina Academic Press 2007)
  21. Craig M. Bradley, Criminal Procedure A Worldwide Study 48 ( 2d ed., Carolina Academic Press 2007)
  22. Craig M. Bradley, Criminal Procedure A Worldwide Study 50-15 ( 2d ed., Carolina Academic Press 2007)
  23. Craig M. Bradley, Criminal Procedure A Worldwide Study 52 ( 2d ed., Carolina Academic Press 2007)


QUICK FACTS

  • The total prison population of Argentina is 72 693( not including 4,305 held in police comisarias) with 167 per every 100,000 people in prison
  • Approximately 50.1% of the Argentine prison population is made up of pre-trial detainees and 7.9% is comprised of juvenile prisoners
  • Argentina currently has 285 institutions with an official capacity of 67 300 prisoners. The current occupancy level of Argentine prisons is 106.2%

( in 2015)

Globe3.png English  • español • français



See Criminal Justice Systems Around the World