ministerio público fiscal | ministerio público fiscal - general … · 2012. 8. 2. · v....

GENERAL BRIEF ABOUT ARGENTINEAN JUSTICE SYSTEM

AND THE FISCAL PUBLIC MINISTRY

Secretary of Institutional Coordination

Office of the Attorney General

Presentation

I. Argentina Republic: General Information and kinds of government. II. System of Justice

II.1. Operators of the Argentinean Justice System II.2. Judicial Argentinean organization II.3. Budget of Argentinean Justice System

III. Structure and Function of Attorney General’s Office III.1. Lines and main authorities III.2. Prosecutor’s Office of Administrative Investigation III.3. Prosecutor’s Offices III.4. Mechanisms of selection and magistrates’ removal

IV. Brief Description of the Criminal Procedure at the Federal Level IV.1. Preparatory Stage IV.2. Beginning of the Instruction Process IV.3. Trials IV.3.1. Common trial: preliminary acts IV.3.2. Common trial: debate IV.3.3. Special Trials IV.4. Objection Means IV.4.1. Recourse to annul a judgment in order to return a case to its original state IV.4.2. Appeal Recourse IV.4.3. Cassation Recourse IV.4.4. Unconstitutional Recourse IV.4.5 Complaint Recourse IV.4.6. Revision Recourse IV.5. Enforcement steps or procedures V. Numerical Composition of the Justice Department

Directory of the Attorney’s General Office Directory of Specialized Prosecution Units of the Justice Department Historical List of Attorney General

IndexPáginas

05

07

08

15

31

39

P. 08

P. 16

P. 31P. 32P. 33

P. 45P. 47

P. 48

P. 24P. 25P. 29

P. 10P. 13

P. 36

P. 39

P. 33

P. 37

P. 37P. 37P. 38P. 38

P. 34P. 36

P. 38

GENERAL BRIEF ABOUT ARGENTINEAN JUSTICE SYSTEM AND THE FISCAL PUBLIC MINISTRY

:: PRESENTATION :: 5

GENERAL BRIEF ABOUT ARGENTINEAN JUSTICE SYSTEM AND THE FISCAL PUBLIC MINISTRY

:: PRESENTATION :: 5

Presentation

During the 80́ s, in most Latin American countries, the transition process toward democracy started. During this first democratic wave, the governmentś relation State-civil society would acquire new forms of articulation and the prevalence of the law would re gain a substantive sense. Along those lines, the legitimate pretension that the different state actors are to act according to the legal standdards and the position they fill, within a transparent framework, rendering accounts and showing utmost responsibility, would become a recurrent demand.

As the first pitfalls were solved for the regime strengthening and analysis, the concept of access to public information gained importance and was considered an indispensable requirement for a full social participation in the government dynamics and, in sum, as one of the clues for the strengthening of young democracies.

Within the plurality of agencies and actors that make up the state structure, the legal system plays a crucial role in connection with the perfect operation of the democratic regime. Its main goal consists in the regulation of the social conflicts by means of the application of symbolic mediation mechanisms or with the legitimate use of force, always without exceeding the limits the laws forth for an equitable administration of justice. Likewise, it is the final surety of fundamental rights through the control of the power of the State and the protection of citizens.

Apart from undertaking such a transparent mission, for our people, the main query and confusion concentrates on how, in what way and in which agencies the legal system can materialize to fulfill such mission. And at that point the Argentine legal system tends to be seen as a complex institutional network, crowded with innumerable agencies and functions that are not easy to outline which, in most cases, seem to overlap and in others lack internal coherence. The same complexity is generated in the cases of colleagues from other nations, who, with the purpose to attain an approximation to our system must generally resort to varied sources of information.

This confusion is mainly due to the specific characteristics of the system of government and of organization of the Argentine State which have determined certain specific features. Let us remember that the Argentine Republic has adopted a republican, representative and federal form of government. The latter characteristic determines the coexistence of a dual system: on the one had, a federal system of justice, and on the other hand, an ordinary or common justice organized by each one of the local jurisdictions. Likewise, in each one of the existing jurisdictions (those of federal jurisdiction, on the one hand, and those of local jurisdiction on the other) the judiciary functions are integrated with their pertaining Justice Departments.

So as to overcome the difficulties mentioned, this document has as its specific goal to set forth the basis, in a unified and brief way, of the main aspects to allow us understand the morphology and operation of the

:: PRESENTATION ::6

GENERAL BRIEF ABOUT ARGENTINEAN JUSTICE SYSTEM AND THE FISCAL PUBLIC MINISTRY GENERAL BRIEF ABOUT ARGENTINEAN JUSTICE SYSTEM AND THE FISCAL PUBLIC MINISTRY

:: Argentina Republic: General Information and kinds of government :: 7

Argentine legal system as a whole, but emphasizing the facts within our organization, the National Justice Department.

We believe it is important to stress that within the framework of a democracy of participation, to hold and know the appropriate information, constitutes a right that the State has the duty to warrantee, because only those who know it can fully participate. Now, within this process not only should the suitable publicity of government acts and decisions be duly publicized, but also the magnitude and real scope of the functions that specifically pertain to the main operators of any system, since whenever this last component is absent, the governmental activities shall not probably be understood and interpreted. It is our intention that the pages that follow be the starting point to fulfill such expectations.

It is necessary to thank the Secretary of the National Attorney General, Dr. Adrián Marchisio, in charge of Institutional Coordination Secretary’s Office, who has undertaken the arduous task of making possible the preparation of this document – in Spanish – with the participation of all his team: Dra. Ma. Elena Godoy, Dr. Alejandro Kiss, Lic. Leila Giani, Dr. Matías Castagneto, Mr. Eduardo Vega, M. Daniela Gallo and Mr. Gastón Rodríguez. To propagate and circulate this valuable material also in Anglo-Saxon countries, it has been substantial the collaboration of Lic. Haydée Di Giacomo – in the translation to English – with the appreciated participation of Dra.Teresita Karin Mercante.

Dr. Esteban Righi Attorney General

:: PRESENTATION ::6


:: Argentina Republic: General Information and kinds of government :: 7

I. Argentina Republic: General information and kinds of government

Argentina is a country which occupies a continental surface area of 3.761.274 km 2 and it’s divided into twenty-three provinces and the autonomous city commonly known as the “capital federal” but officially called “Ciudad Autónoma de Buenos Aires”. This one is the capital of Argentina and its largest city, seat of federal government’s authorities.

Concerning its government form, as the first article of the National Constitution establishes, “The Argentine Nation adopts the federal republican representative form of government”1. That’s why the government of the democratic republic in Argentina has the notes and the characteristics that emanate from the National Constitution, and the Federal State is designed by the relationship established in the Primary Law and its following reforms.

Argentina’s political framework is a federal presidential representative democratic republic, in which the president is both head of State and head of government complemented by a pluriform multiparty system.

When referring succinctly to the three attributes that constitute our form of government, we can see that, although the system designed is representative, since the constitutional reform has been made in 1994, some forms of semi-direct democracy have been incorporated by the article 39 – popular initiative to project laws - and the article 40, with two modalities of popular consultation: linking and not linking one. In this respect, it could be sustained that, the representative system stays effective but it has been attenuated.

In second term, the establishment in the republican form refers basically to a political system of division and control of power. According to the National Constitution, the separation of powers is expressed by three different ways: a) according the tripartite classic division: among the three powers: executive, legislative and judicial; b) the federal division that it recognizes two territorial orbits of power, one represented by the central, federal and national power, an another for the local or provincial one; c) the division between the constituent power and the constituted powers. These separations of power pursue the purpose of avoiding the risks that could raise an excessive centralization in the taking of public decisions introducing a system of relationships of power with reciprocal controls, called “checks and balances”

1 In this sense, the Supreme Court has declared that the representative system and the political parties have reached to be synonymous (Cfr. “Ríos Antonio Jesús”, Consid. 15. Fallos 310:819 (1987), El Derecho, 123-231). On the other hand, the Tribunal has elaborated several principles about the relationship between the representative system, the political parties, the electoral system and the electoral college. They are sustained spite of the changes made by the modifications of the Constitution in 1994 in which the last one was eliminated. (Cfr. “UCR, CFI-Partido Federal y Frejupo”, C.S., noviembre 16 de 1989. El Derecho, 136-349).

:: Siytem of Justice ::8


:: Siytem of Justice :: 9

In third term, the concept of federalism mentions to the existence of a state that supposes the presence of different territorial centres with normative capacity in which are balanced the unit of a single state with the plurality and autonomy of many others.

However in the Argentinean Constitution this system has own profiles that differentiate it from its North American model and it establishes three types of relationships in the federal structure: a) subordination relationship of the local states (provinces) to the federal state; b) participation relationship whose more precise example is the composition of the Senate that represents the balance between the small states and the big ones, and collaborating in the legislative government of the Nation; c) and the coordination relationships, linked to the distribution of exclusive, delegated and reserved jurisdictions.

II. System of Justice

The System of Justice is composed by the Judicial Power of the Nation, the Judicial Provincial Powers2 and of the Autonomous City of Buenos Aires, Fiscal Public Ministry, Ministry of the Defence and the Ministry of Justice and Human Rights of the Nation. Next, a brief description of the functions commended to each organism will be made.

II. 1 - Operators of the Argentinean Justice System

Judicial National Power: It is conformed by the Supreme Court of Justice of the Nation, the Council of the Magistracy of the Nation, the Jury of Prosecution, the Tribunals of First Instance and the Cameras of Appeals. Their specific mission is the one of solving, by taking decisions, sentencing or following other procedures established by the law. The superior instance inside the Judicial Power is the Supreme Court of Justice of the Nation, which is composed by 9 members: one president and 8 ministers. It exercises their jurisdiction for appeal in all those points governed by the Constitution and the laws of the Nation, and it possesses exclusivity in all the matters that concern ambassadors, ministers and foreign consuls, and in those that some county was part. Also, jointly with the Council of the Magistracy, it has in charge the administration of the Judicial Power.

Judicial Power of the Autonomous City of Buenos Aires is composed by the Superior Tribunal of Justice, the Council of the Magistracy, the tribunals settled down by the law and Public Ministry. Nevertheless, as the ordinary jurisdictions of the Judicial National Power -located in the city - have still not been transferred, they cohabit today. This way, the procedure of the causes in civil matter, for example, corresponds to the National Justice and not to the Justice of the City.

2 In order to avoid a redundant description, the functions of Provincial Judicial Powers will be develop in the next section.




Ministry of Justice and Human Rights works inside the orbit of the Executive Power and it attends the President having opinion in all the matters related with legal topics or human rights, as well as it advises him in the coordination of the activity of the State in this area. In the same way, this Ministry helps the President in the relationships with the Judicial Power and in the legislative upgrades. It elaborates and it executes plans, programs and politics related with the defence of the human rights and the fight against the corruption in the public sector. It is responsible for the organization, administration and supervision of the penal federal institutions, and it organizes and executes projects of judicial reformation together with international institutions.

In what concerns the Ministry of the Attorney General (called “Ministerio Público Fiscal”), it can be sustained that after the constitutional reformation of the year 1994 (after different norms3), it has acquired a protagonist role among the operators of the system of justice. Public Ministry has become an independent body with functional autonomy and financial autarchy (art.120 of the National Constitution). In this way, becoming, considered by a part of the doctrine, like a “fourth power”, and for other, as an “extra-power” organ with a clear command of urging the penal public action and representing the general interests of the society.

In this sense it is important to keep in mind that, although Public Ministry existed a long time ago - even before the constitutional reformation of the year 1994, - on one hand its functions were dispersed in different norms, and on the other hand its institutional location was discussed

3 Ley 1893; 4055; 15.464; 17.516; 18.345; 19.539 y 23.183 entre otras.

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among the ones that located it in the Executive Power and those that included it in the Judicial Power4.

Public Ministry is a bicephalous organ constituted by the Ministry of the Attorney General and the Ministry of the Defence. The first one coordinates the action of the District Attorneys and the second one, the Public Official Defenders.

Public Ministry of the Defence is responsible for the representation and defence of poor people, providing them public defence and any type of required legal attendance, not only to people of low resources, but also to those that refuse to have a lawyer. In this case, the Federal Government has the obligation of providing the guarantee of possessing an appropriate defence.

Ministry of the Attorney General has the function of acting before the judges during the whole judicial procedure, outlining pertinent actions and the resources. In penal matters, it is responsible for urging the public penal action conforming to the article 5 of the Procedural Penal Code.

II. 2 -Judicial Argentinian organization

In order to get a clear exhibition, it is important to make some generic considerations of the judicial Argentinean organization to understand the role conferred to the Ministry of the Attorney General. In this sense, it should be kept in mind that, due to the federal political organization expressed in the National Constitution, Argentinean State possesses a Federal Justice with jurisdiction in the whole country and it may try cases about narcotics, smuggling, tax evasion, money laundry, and other crimes that affect the security of the Nation.

Simultaneously, there is a Provincial Justice which has in charge the treatment of the common crimes (also called ordinary justice) whose procedural legislation and the organization of the judicial organs are constitutionally reserved to the government of each one of the 23 counties (articles 5, 121, 123 of the National Constitution).

4 Those who located in the Executive Power are: Alsina, Hugo: Tratado Teórico Práctico de Derecho Procesal Civil y Comercia, Ediar, Buenos Aires, 1957, T. II, p. 329; Jofre, Tomás: Manual de Procedimiento Civil y Penal, Buenos Aires, 1924, T. I, p. 228; Oderigo, Mario: Derecho Procesal Penal, Buenos Aires, 1973, p. 218, n. 205. Referring to those who prefer the institutional location of the Pubilc Ministry inside the Judicial Power we can mention: Vanossi, Jorge: “El Ministerio de Justicia y el Poder Judicial”, Separata de la Revista Jurídica de Buenos Aires, 1965-I/II, p. 85; y también en “Otra vez sobre el Ministerio Público”, El Derecho 101-528; Palacio, Lino: Derecho Procesal Civil, Abeledo Perrot, Buenos Aires, 1979, T. II, p. 594; Rubianes, Carlos: Manual de Derecho Procesal Penal, Buenos Aires, 1977, T. II, p. 31; Bianchi, Alberto B.: “La Conveniencia de que el Ministerio Público sea un órgano del Poder Judicial”, El Derecho 106-845 y “Cese de Funciones de Agentes del Ministerio Público Dispuesto por Decreto del Poder Ejecutivo Nacional”, El Derecho 119-947.




Graphic 1 – Federal Justice System (all the jurisdiction

Fuente: Unidos por la Justicia, Información y justicia II. Datos sobre la justicia argentina.

p y ( j )Supreme Court of

Justice of the Nation

Ordinary Justice of

Buenos Aires City

Federal Justice of Buenos

Aires City

Federal Justice of Provincial

Jurisdictions

National Court of Criminal Cassation

LaborJurisdiction

Criminal and CorreccionalJurisdiction

Oral Courts

Jurisdiction

Civil Jurisdiction

Criminal Economic

Jurisdiction

Criminal ProsecutionJurisdiction

Federal Oral Courts of Buenos

Aires City

Criminal and Correctional Federal

Jurisdiction

Federal Administrative Litigation Jurisdiction

Social Security

Jurisdiction

Civil and Commercial Federal

Jurisdiction

Public Ministry of the Nation

Defender General’s

Office

Attorney General’s

Office




In consequence, according to the following square, at federal level there are a judicial system and a penal national procedural code with their corresponding Judicial Power and Ministry of the Attorney General which coexists with other 23 judicial systems and procedural provincial classifications with their respective organs that require in judgement. Some counties are independent organs or extra powers similar to the national one and other counties are constituted in integral organ of the Judicial Power.

The exception of this outline, it is constituted by Buenos Aires City, where the treatment of the common crimes corresponds to the federal government, and it is divided in the following jurisdictions:

Graphic 2 - Organizational chart of Justice in criminal matters

However, it is necessary to emphasize that, because of the inter-jurisdiction modality and sophistication acquired by diverse modalities of complex delinquency, (such as kidnappings, computer crimes, interbank frauds, etc.) the established territorial political divisions are constituted in an obstacle to fix ways of acting for the whole country.

National Criminal Procedural Code

NationalJustice

Federal

Justice

Criminal Jurisdiction

Correctional

Jurisdiction

Juvenile Courts

Jurisdiction

Criminal Economic Matters

Jurisdiction

Criminal Prosecution

MattersJurisdiction

Federal Jurisdiction

Crimes with penalties: more

than 3 years

Crimes with penalties: less than 3 years

Defendants

younger than

18 years old

Economic Crimes,

Smuggling, etc.

Tax

Evasion

Narcotics, crimes against the Nation, etc.




In order to surpass this difficulty, the Procuración General de la Nación (Ministry of the Federal Attorney General), has taken the initiative for the creation of the Federal Council of Criminal Policy, for coordinating and articulating the policies of penal persecution and the performance of the Ministries Public in all the territory of the country.

II. 3- Budget of Argentinean Justice System

Evolution of the budgets related with Ministry of the Attorney General (MPF), Ministry of the Defense (DGN) and Judicial Power of the Nation (PJN)5

Next, it’s showed up a graph that consigns an average of the distribution of the expense in justice taking like reference the period between 2000 and 2007.

Graphic 3. Evolution of the budget

Year 2000 2001 2002 2003 2004 2005 2006 2007

PGN 101.530.514 100.513.004 98.599.701 105.974.604 110.966.000 131.847.000 204.562.387 265.296.850

DGN 46.188.983 47.633.000 46.874.000 48.737.135 51.444.000 62.239.000 86.426.263 117.760.965

PJN 646.508.383 662.440.390 658.627.208 693.583.327 726.072.905 884.290.933 1.216.666.875 1.565.098.881

5 Initial credit determined by the budget law for each organism.



:: Structure and Function of Attorney General ś Office :: 15

As it can be observed, the Judicial Power of the Nation possesses a decisive influence on the budgetary allotment because the judicial power handles a very superior budget in comparison with the other agencies of justice, which is explained based on two reasons.

According to the law 23.853 (Law of Autarchy), the Judicial Power of the Nation has a double financing: on one hand, the resources contributed by the National Treasure and, on the other one, the own resources. This financing source arises from the collection of the rate of justice and from 3,5% of the tributary resources corresponding in automatic form of the Nation (besides the resources customs officers and other resources national tributary out of the co-partnership). On the contrary, Public Ministry only receives the contributions of the National Treasure that are transferred periodically by the Ministry of Economy.

In second place, Public Ministry is not who defines its own budget because the Executive Power, by means of ordinance 300/98, it vetoed the third paragraph of the article 22 of the Organic Law of Ministry, where it was settled down that the Executive Power was forced to incorporate without modifications to the project of general budget, the prelimnary design sent by the Attorney General and the General Defender, only being able to make observations.

Beyond the lack of equality in the budgetary distribution, it’s important to consider that de 99% of the budget of the Fiscal Public Ministry is used to pays and ordinary expenses of operation, what allows a reduced possibility for the allocation of financial resources in other operative questions, investments or initiatives to improve the service of justice administration.

Graphic 4. Distribution of the spending in justice




III. Structure and Function of Attorney General’s Office

Grafic 5. Organizational chart of the General Power of Attorney of the Nation

ATTORNEY GENERAL OF

THE NATION

Judicial Area Specialized Prosecution Units Administration Area

Prosecuting

Attorney before CSJN

Attorney General

CNCP

Prosecution Unit for the Investigation of

Kidnappings for Ransom

Prosecution Unit AMIA

Attorney General before

Appeal Court


Prosecution Crimes and Smuggling


Crimes related to Social Security

Prosecution Unit for the Investigation of crimes committed in the area the Nacional

Institute of Social Services for retired people

Prosecution Unit for the Investigation of Complex crimes in Drug and organized crimes

matters


crimes related to fire weapons

Institucional Coordination

Secretary’s Office

Technical Discipline and Human Resources Secretary’s Office

General Administration

Board

General Attorney’s Office of

Formation, Training and

High Studies

General Attorney’s Office of

Criminal Policy

Legal Counseling

Attorney General before

Oral Court

Internal Auditing

Prosecution Unit for the Investigation of Environmental Crimes

Prosecution Unit for the Investigation of crimes related to Money laundering and

terrorism financing

Prosecutors before Courts

Prosecutor’s Office of Administrative Investigations

Assistance Unit for the

Violation or Human Rights

during State Terrorism

Prosecution Unit or Coordination and follow-up for the violation of Human

Rights

Prosecution Unit for the Investigation of Crime against Sexual Integrity

:: Structure and Function of Attorney General ś Office ::16



III. 1 – Lines and main authorities

The Fiscal Public Ministry is presided over by the Attorney General of the Nation, who acts in a double function. On one hand, this maximum authority is the Fiscal Attorney before the Supreme Court ruling in the judicial causes which arrive to that instance, and on the other hand, he is the maximum boss of all the District attorneys, coordinating their way of acting and settling down, among other commanding, the criminal politics’ rules and the penal persecution of Public Ministry.

Continuing in hierarchy order, in the Judicial Area, there are four Procuradores Fiscales whose functions are defined in diverse norms of the Organic Law of Fiscal Ministry. They collaborate highly with the Attorney General in the judicial function. Also, they are dedicated to the cases in which the Attorney General decides not to rule personally. They are followed by The General District Attorneys of the Attorney General’s Office, The General District attorneys before the Camera of Penal Cassation, the General District attorneys before the different Cameras of Appeals, the General District attorneys before the Oral Tribunals and the District attorneys of First Instance.

The development of the Fiscal Public Ministry is based on an organization of pyramidal type that acts with: hierarchy principles, unit of action and institutional coherence. These principles are closely linked to such a point that each one of them makes to the essence of the other one, and all together have a direct reason of being in the specific mission that Fiscal Public Ministry possesses in the environment of the penal process and in the particular attribution of being constituted in policy maker of coherent criminal politics and penal persecution.

However, it is important to clarify that, although Ministry of the Attorney General constitutes a hierarchical organ, as the result of the specificity of functions of the public prosecutors, the unit of acting imposed to the inferior magistrates does not constitute any damage to their autonomy. In this way, although the public prosecutors can act based on their own judgments and criteria, the Attorney General conserves the power to distribute instructions to establish the general lineament for the intervention of the Public Ministry.

It’s important to point that, during the last years, the Fiscal Public Ministry - in order to modernize its structure for crimes great complexity – has demonstrated an increasing tendency to specialization. The institutional crystallization of these policies has been the creation of diverse functional units. At the present time, the Special Units are:

a. Unidad Fiscal Móvil para la Investigación de Secuestros Extorsivos –UFASE – (the Fiscal Mobile Unit for the Investigation of Kidnappings).

It was created by the Resolution PGN 60/03. Among its main functions, UFASE must coordinate tasks of qualification and training with




the security forces to face these crimes. Also, it has the responsibility of elaborating a data base which reflects the diverse variables of this kind of problematic. This Unit is led to collaborate with the intervening public prosecutors in the causes of kidnapping which ask for its support.

b. Unidad Fiscal Amia (the Fiscal Unit Amia).

It was created by Resolution PGN 84/04 to act, in combined or alternative way, with the public prosecutors who are intervening in the cause that investigates the attack against the headquarters of A.M.I.A. (in transaction in the National Tribunal in the Criminal thing and Federal Reformatory Nº 6).

c. Unidad Fiscal de Investigaciones de Delitos Tributarios y Contrabando -Fiscal Unit of Investigations of Tributary Crimes and Smuggling- (UFITCO).

It was created, by Resolution PGN 23/00 as the result of an

agreement taken place with the Federal Administration of Public Revenues (AFIP).

Its main functions are: a) to receive accusations made by particular or public agents that are related with its subject; b) to assume the previous investigation of the facts related with the art. 26th, 2nd part of the law 24.946 (this Unit will be able to impulse the investigation without the order of another state authority); and c) to denounce the facts that (as consequence of practiced investigations) could constitute crimes.

Accessorily, it possesses the ability to suggest the collaboration for programs of prevention of the tributary crime and the smuggling; to advice on political and preventive programs; to propose to AFIP different ways of prioritizing in the development of the preventive investigations; to coordinate activities of qualification and specialization for officials and employees; and to be in control of up-to-dated information of the procedural advance of the cases denounced by the Unit.

d. the Fiscal Unit for the Investigation of relative Crimes to the Social security (UFISES).

It was created by Resolution PGN 33/02, as the result of an agreement taken place with the National Administration of the Social Security (ANSES).

Its main function is cooperating, attending and collaborating with the Federal District Attorneys of all the country in all those investigations related with illicit acts in which participate, in passive way, the ANSES, and to help this organism in the determination and legal configuration of those illicit facts.

Also, this Unit can suggest the elaboration of programs of prevention of relative crimes to the resources of the social security, to advise to the




organisms of the State to implement political or preventive programs, and to coordinate activities of qualification and specialization.

e. la Unidad Fiscal para la Investigación de delitos cometidos en el ámbito de actuación del Instituto Nacional de Servicios Sociales para jubilados y pensionados, y su programa de Atención Médica Integral (UFI –PAMI).

It was created by Resolution PGN 164/04 after an agreement signed with the National Institute of Social Services for retired people and pensioners.

This Unit is in charge of initiating all the preliminary investigations that are conducive for the determination of those illicit actions or omissions in the performance of INSSJP-PAMI, especially the ones related with economic crimes and the mentioned entity has passive participation on them. Also it has the responsibility of presenting the penal accusations related with those causes, collaborating with the federal district attorneys in the pursuit of the accusations.

Additionally, it advises INSSJP-PAMI in the implementation of preventive programs of illicit facts, and it coordinates with the corresponding authorities some activities of qualification and specialization for officials and employees.

f. Unidad de Apoyo Fiscal para la investigación de delitos complejos en material de drogas y crimen organizado. (UFIDRO): Unit of Fiscal Support for the investigation of complex crimes as regards Drugs and Organized crime

It was created by Resolution PGN19/05, by an agreement with the Ministry of the Interior of the Nation. It’s in charge of denouncing before the competent judges or attorneys the facts that can constitute crimes linked to their persecution object, and of procuring objective data coming from the different prosecutor’s office, public organisms and of security as regards offer and demand of drugs. This Unit is also responsible for the conformation of a map of crimes that crosses and establishes parameters centralized in this matter.

Also, it is authorized to collaborate in the elaboration of programs of prevention, and/or national or international agreements, advising to the organisms of the State for the implementation of public political coordinated between different institutions, as well as to make proposals to the Security Forces about the order of importance in the investigative tasks, and kinds of fortification of technical of complex investigation that improve the efficiency in the system of Administration of Justice.

g. Unidad Fiscal para la investigación de delitos relativos a las Armas de Fuego (UFI-RENAR) - the Fiscal Unit for the investigation of relative crimes to the Firearms.




It was created by Resolution PGN 1/05, with an agreement that has taken place with the National Registration of Weapons (RENAR), in order to the incidence that possesses the control of the illegal flow of weapons and ammunition in the persecution of violent facts.

Its main function consists on impelling all the preliminary investigations that are conducive for the determination of those actions or omissions that constitute crime in the jurisdiction of RENAR - law Nº 20.049, 25.938 and its complementary norms - and presenting the penal accusations that are pertinent, as well as collaborating with the district attorneys in the pursuit of the penal accusations started from its action.

Additionally, this Unit advises RENAR in the subjects that are concerning to the implementation of political or preventive programs of facts that can constitute illicit acts and it coordinates with the corresponding authorities the activities of qualification and specialization of officials and employees.

h. Unidad de Asistencia por violaciones a los Derechos Humanos durante el Terrorismo de Estado- the Unit of Attendance for violations to the human rights during the Terrorism of State.

It was created by Resolution PGN 163/04.This unit constitutes an independent organism exclusively dedicated

to the representation of the Fiscal Public Ministry in the processes an judicial instances in which is taking part (or it will) in relation with the violations to the human rights perpetuated during the period of dictatorial government. (Res. PGN 163/04, 72/06 and 139/06).

i. Unidad Fiscal de Coordinación y Seguimiento por violación a los Derechos Humanos – Unit of Coordination and pursuit for violation to the human rights.

It was created by Resolution PGN 14/2007. It has the objective of carrying out a control and a constant pursuit of the causes in which all the facts referred to the violation to the human rights during the last dictatorial government are investigated, whatever is its procedural state; of maintaining updated a pertinent data base, for making this, this Unit could solicit the collaboration of the district attorneys who are participating in the different causes, in the terms disposed in the Resolutions 61/06 and 68/06; coordinating with the district attorneys of all the jurisdictions the strategies of investigation an persecution to make possible the opening and achievement of the judgments in the briefest period; collaborating with the competent powers of the State for the protection of the witnesses in the terms disposed in the Resolution PGN 143/06 and being related with other institutions to make easier the procedural advance of these processes, to achieve an institutional answer after a reasonable period of time, and to get the material and human recourses necessary for each jurisdiction.




j. Unidad Fiscal para la investigación de delitos ambientales (UFIMA) – Unit for the investigation of environmental crimes.

It was created by Resolution PGN 123/06, with the Agreement of Cooperation between the Public Ministry and the Secretary of Environment an Sustainable Development.

The mission of this Unit is generated preliminary investigations and to support the investigations related with environment crimes and the causes about infractions to the law of dangerous remainders (law 24.051), infractions to the law 22.421 of the protection and conservation of the wild fauna, as well as those crimes related with this subject.

Also, this Unit has among its functions the acquirement of the necessary data to develop a map of the different penal causes which are being transacted in the National Justice of all the country and the control of the doctrine and jurisprudence referring to environmental crimes in order to elaborate diagnoses of the existing problematics and to propose solutions that can be impelled from the MPF.

k. Unidad Fiscal para la Investigación de Delitos de Lavado de Dinero y financiamiento del Terrorismo.

It was created by Resolution PGN 130/06Its functions are: a) to receive and to register the files sent by the

unit of Financier Information (art. 18 y 28 Law 25.246); b) to continue in those cases with preliminary investigation to determine if it corresponds to exert the criminal public action, in a period of 60 days, and in an affirmative case, to exercise it; c) to collaborate, when solicited, with the magistrates of the MPF in the proceeding of the causes and to offer technical support in the inherent thing to the existence treaties, agreements and sentences of the Court referred to this subject; d) to take part in all proceeding in which the Unit of financial information goes to the MPF; e) to collaborate with the elaboration of national and international programs of prevention advising to the organism of the State to implement political public in this matter and to coordinate the activities of qualification and specialization of employees; f) to take a control of updated statistical information and procedural advance of the cases relative to its specialty; g) to inform each trimester to the Attorney General an updated report about the procedural advance of the cases; h) to ask to the public and private organisms all the information that is considered necessary.

l. Unidad Fiscal para la investigación de delitos contra la integridad sexual, trata de personas y prostitución infantil.

It was created by Resolution PGN 63/05 with an Complementary Agreement of Cooperation between the MPF and the Government of Buenos Aires City.




It has the responsibility of a) impelling the preliminary conducive investigations for the determination of actions that constitute crime against sexual integrity, deals with people and infantile prostitution in Buenos Aires City and presenting penal denunciations; b) making a quantitative control in the different offices of Buenos Aires City and to develop a criminal map that allows to coordinate and to collaborate with the investigation of the facts in which the Unit participates; c) collaborating whit the magistrates of the MPF in the pursuit of the penal denunciations that are embodied from the intervention of the Unit; d) requiring to the Attorney General the constitution as helping public prosecutor of the members of the Unit in all those penal causes in where this one considers it advisable; d) collaborating with the elaboration of national and international programs of prevention advising to the organisms of the State for implementing public political and coordinating activities of qualification and specialization of the employees.




The Procuración General, like maximum organ of the MPF, has an administrative Area destined to offer strategy, management solutions, planning and qualification. The agencies in charge of these tasks are:

1) Institutional Coordination SECRETARY’S OFFICE: It has the responsibility of diverse tasks of coordination with the forces of security, the elaboration of projects of law and the coordination of some special units of investigation. Also, It works as a nexus of the Federal Offices of Attorneys of the interior of the country and like a coordinating mechanism of the regional relations and the Federal Council of Criminal Policy of the Public Ministry. Within its structure are included: Formal Registration

Attorney General of

the Nation

Administrative

Area

Institucional Coordination Secretary’s

Office

General Attorney’s Office of Formation, Training and High

Studies

Legal

Counseling

General Administration

Board

Internal

AuditingAttorney General’s

Office of Criminal

Policy

Statistics and

Criminal Political

Investigations Office

Investigations

General Board with

unknown author

Support and

Functional Control

Unit

Formal Registration

and Notices Office

Permanent Secretary’s Office of

bankruptcy

Library

School and

Training

Institutional

Communication

Area of

Criminal Policy

Area of Integral

Assistance to the

crime victim

Administration

Information Technology

Assistant manager’s Office

Architecture

Department

Digitalization Office of Complex Cases and digital

file

Entry Desk

Technical,Discipline and

Human ResourcesSecretary’s

Office




and Notices Office; Investigations General Board with Unknown Author; Support and Functional Control Unit, and Statistics and Criminal Political Investigations Office. This last office is in charge of the elaboration of the annual report that the organism displays before the Senate, of the compilation of statistics, the criminal investigations and the systematization of the resolutions and instructions dictated by the Attorney General of the Nation.

2) General Attorney’s Office of Formation, Training and High Studies: this office offers, by courses and the school of qualification, update qualification to magistrates, officials and employees of the Public Ministry. Additionally, it manages with the Secretary of Contests the procedure of the selection of new prosecutors, the conduction of the library, and the institutional communication of the MPF by designing and maintenance of the institutional page web and the magazine of the MPF.

3) Legal Counselling Office understands in the study of the legal subjects that the Attorney General entrusts to it, having to inform the results or conclusions obtained.

4) Administration’s Office is in charge of the administration of the organism, of the provision and operation of computer parts, of the architecture of the diverse leases of the MPF, and the Reception Desk of Administrative Files.

5) Internal Audit carries out the analysis and revision of the control systems, with the purpose of assuring the continuous optimization of the levels of administrative economy, efficiency and effectiveness.

6) General Office of the criminal policy; Human Rights and Communitarian services advises to the attorney General in the formulation of the criminal policy of the MPF and the strategies of relation with the community in general and its intermediate associations. Also, it attends the Attorney General of the Nation in relation to the strategies and services that it must execute an to fulfil the area of Integral Attendance to the Victim of Crime.

7) Technical, Disciplinary and of the Human Resources Secretary acts as supervisor on the magistrates who integrate the MPF. In this sense, it transmits the general instructions distributed by the Attorney General, it controls the fulfilment of the own obligations of the exercise of the functions of the members of the MPF, and it takes part in the disciplinary summaries instructed against the magistrates of the organism. Also, this Secretary takes care of the diverse aspects related to the optimization of the human and technical resources available, and it maintains the relations with the prevision, social, fiscal and labour organisms.




III.2 – Prosecutor’s Office of Administrative Investigations. Fiscalía de Investigaciones Administrativas (FIA)

The Prosecutor’s office of Administrative Investigations is presided over by the National District Attorney of Administrative Investigations, and it is the organ in charge of “promoting the investigation of the administrative behaviour of the agents of the national Administration centralized and decentralized, and of the companies, societies and all other entity in that the State has participation” as well as to either make investigations in all institution or association in which the main source of resources comes from the state contribution, in case of reasonable suspicion about irregularities in the investment given to the mentioned resources” (Art. 45 incs. a) and b) Law 24.946).

At the end of the year 2003, and as consequence of the selection of a new holder of the organism, Dr. Carlos Manuel Garrido, important modifications has been started in order to modernize the management of the organism. This way, during a first period, it was prioritized a real knowledge of the operation, situation and possibilities of reformation of the FIA. On the other hand, diverse organizations of the civil society were asked in order to optimize and to reveal the necessary changes in the management of the organism.

The diagnosis activity had the purpose of placing to the Prosecutor’s office of Administrative Investigations as the specialized, independent and enabled organ of Public Ministry for the investigation of crimes made by public officials, particularly those that configure the phenomenon of the corruption. This way, FIA constitutes one of the principle organisms of the National State who helps in the achievement and execution of the commitment assumed when signing the Convention of the United Nations against the Corruption in December of 2003. This agreement establishes in its article 36th that “Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies or persons specialized in combating corruption through law enforcement. Such body or bodies or persons shall be granted the necessary independence, in accordance with the fundamental principles of the legal system of the State Party, to be able to carry out their functions effectively and without any undue influence. Such persons or staff of such body or bodies should have the appropriate training and resources to carry out their tasks.”

Project of decentralization of Fiscal Public Ministry: District Offices

The proposal of territorial decentralization of Fiscal Federal Public Ministry constitutes a process that concerns only to the City of Buenos Aires. That’s why, contrasting what happens in the 15 remaining federal jurisdictions of the interior of the country where the number of magistrates who evolve in the first instance is little (in several cases only there are two or three public prosecutors in each province), in Buenos Aires City an




important concentration of public prosecutors in a same area is registered, this situation generates the frame adapted for the possible operation of the district offices of the public prosecutor.

As we can see in the creation laws, the main object of this project consists in getting the judicial operators, and especially those in charge of exercising the penal action, to familiarize with the type of crime and the characteristics of a certain district, as well as with the forces of security that work in the place, in a such way of producing an approach to the problems of that community.

At this moment there are in operation three Prosecutor’s office of District, located in Saavedra and Núñez (law 25.748), La Boca (law 25.749) and Pompeya (Res. PGN 47/03 and 74/03).

III. 3. Procurator’s Offices

In order to the federal organization referred in a previous paragraph, this country is divided in 16 jurisdictions (Bahía Blanca, Capital Federal, Comodoro Rivadavia, Córdoba, Corrientes, General Roca, La Plata, Mar del Plata, Mendoza, Paraná, Posadas, Resistencia, Rosario, San Martin, Santa Fe, San Martín and Tucumán).

Each one of them is headed by a General Prosecutor’s Office before the Camera of Appeals which, besides the characteristic functions of tribunal before the Federal Tribunals, it possesses superintendence functions. At the same time, each one of these cameras possesses some Federal Prosecutor’s Office that acts in the preliminary investigation before the Federal Tribunals and General Prosecutor’s Office that sustain the accusation before the Oral Tribunals of each county.

However, contrary to the design projected for Buenos Aires City and for its periphery, the jurisdiction of the Cameras and federal tribunals of First Instance are usually universal in the provinces of the country (non-penal, penal and electoral jurisdiction). Consequently, the same occurs in the Procurator’s Offices. So, when not existing Cameras in the 23 counties of the country this function of tribunal reviewer, it should be covered by the Oral Tribunals. Tribunals with this double function are: Catamarca, Formosa, Jujuy, La Rioja, Neuquén, San Juan, San Luis, Santa Cruz, La Pampa, Santiago del Estero and Tierra del Fuego.




Federal jurisdictions of the Argentina Republic

Graphic 7. Map of federal jurisdictions of the Argentina Republic

1. Bahía Blanca2. Comodoro Rivadavia3. Córdoba4. General Roca5. Mar del Plata6. La Plata7. Mendoza8. Paraná9. Posadas10. Resistencia11. Corrientes12. Rosario13. San Martín14. Salta15. Tucumán16. Capital Federal




National Courts of Attorney’s Offices, Oral Courts and First Instance Attorney’s Offices of Provincial Jurisdictions

Graphic 8. Provincial Jurisdiction

s

COMODORO RIVADAVIA

TRIBUNAL ORAL

COMODORO

RIVADAVIA

TRIBUNAL ORAL RIO

GALLEGOS (sin habilitar)

FISCALIA DECAMARA

TRIBUNAL ORAL

USHUAIA

Fiscalía Comodoro Rivadavia

Fiscalía Rawson

Fiscalía Río Grande

Fiscalía Ushuaia

Fiscalía Río Gallegos

BAHIA BLANCA

TRIBUNAL ORAL BAHIA BLANCA

FISCALIA DE CAMARA

TRIBUNAL ORAL SANTA ROSA

Fiscalía nº1 Bahía Blanca

Fiscalía nº2 Bahía Blanca

Fiscalía Santa Rosa

Fiscalía Gral Pico (sin habilitar)

CORDOBA

TRIBUNAL ORAL

Nº1 CORDOBA

FISCALIA DE

CAMARA

TRIBUNAL ORAL Nº2 CORDOBA

TRIBUNAL ORAL LA

RIOJA

Fiscalía nº1 Córdoba



Fiscalía San Francisco (sin

habilitar)

Fiscalía Villa María (sin habilitar)

Fiscalía Río Cuarto

Fiscalía Bell Ville

Fiscalía La Rioja

CORRIENTES

FISCALIA DE CAMARA

Fiscalía CorrientesFiscalía Paso de Los

Libres

TRIBUNAL ORAL CORRIENTES

GENERAL ROCA

TRIBUNAL ORAL GRAL ROCA

FISCALIA CAMARA

TRIBUNAL ORAL NEUQUEN

Fiscalía Neuquén Fiscalía Gral Roca Fiscalía ViedmaFiscalía

BarilocheFiscalía Zapala

LA PLATA

TRIBUNAL ORAL Nº1 LA

PLATAFISCALIA DE CAMARA

TRIBUNAL ORAL Nº2 LA

PLATA

Fiscalía nº1 Lomas de Zamora

Fiscalía nº2 Lomas de Zamora

Fiscalía Quilmes Fisc. Junín

Fiscalía nº1 La Plata



MAR DEL PLATA

FISCALIA DE CAMARA

TRIB. ORAL MAR DEL PLATA

Fiscalía Necochea

Fiscalía Tandil (sin habilitar) Fiscalía Azul

Fiscalía Dolores

Fiscalía nº1 Mar del Plata

Fiscalía nº2 Mar del Plata




PARANA

TRIBUNAL ORAL PARANA

FISCALIA DE CAMARA

Fiscalía Paraná Fiscalía Concep. del UruguayFiscalía Victoria

(sin habilitar)

POSADAS

TRIBUNAL ORAL

POSADAS

Fiscalía El Dorado

Fiscalía Posadas (Penal)

Fiscalía Posadas (Civil)

FISCALIA DE CAMARA

ROSARIO

TRIBUNAL ORAL SANTA

FEFISCALIA DE CAMARA

TRIBUNAL ORAL Nº1 ROSARIO

TRIBUNAL ORAL

Nº2 ROSARIO

Fiscalía nº1 Rosario



Fiscalía San Nicolás (Bs

As)

Fiscalía nº1 Santa Fe

Fiscalía nº2 Santa Fe

SALTA

TRIBUNAL ORAL SALTA

FISCALIA CAMARA TRIBUNAL ORAL JUJUY

Fiscalía nº1 Salta Fiscalía nº2 Salta Fiscalía OranFiscalía nº1

JujuyFiscalía nº2

Jujuy

Fiscalía Gral San Martin (sin habilitar)

SAN MARTIN

TOCF 1 TOCF 2 TOCF 3FISCALIA DE

CAMARATOCF 4 TOCF 5

Fiscalía San Isidron nº 1

Fiscalía San Isidro nº2

Fiscalía Morón nº1

Fiscalía Morón nº2

Fiscalía Campana

Fiscalía Mercedes Fiscalía San Martín

Fiscalía 3 de Febrero

TUCUMÁN

TRIBUNAL ORAL CATAMARCA

FISCALIA DE CAMARA

TRIBUNAL ORAL CATAMARCA

TRIBUNAL ORAL TUCUMAN

TRIB. ORAL STGO. DEL ESTERO

Fiscalía nº1 Tucumán

Fiscalía nº2 Tucumán

Fiscalía Stgo del Estero Fiscalía Catamarca

MENDOZA

TRIBUINAL ORAL Nº1 MENDOZA

TRIBUNAL ORAL Nº2 MENDOZA

FISCALIA DE CAMARA

TRIBUNAL ORAL SAN LUIS

TRIBUNAL ORAL SAN JUAN

Fiscalía nº1 Mendoza Fiscalía nº2 Mendoza Fiscalía San Juan Fiscalía San Rafael Fiscalía San Luis

RESISTENCIA

FISCALIA DE CAMARA

TRIBUNAL ORAL

FORMOSA

Fiscalía Resistencia Fiscalía Roque Saenz Peña Fiscalía ReconquistaFiscalía nº1

Formosa Fiscalía nº2 Formosa

TRIBUNAL ORAL RESISTENCIA




III. 4- Mechanisms of selection and magistrates’ removal

The constitutional reform made in 1994 has established a complex system with the intervention of three powers (Executive Power, Legislative Power and Public Ministry) for selecting the magistrates of the Public Ministry who act before the first and the second instance.

This way, the attorneys are selected by a public exam which is organized by the Procuración General de la Nación. Depending on the result of the exam, the Attorney General sends to the Executive Power a group of three candidates and the President chooses one of them who must obtain the agreement of the majority of the National Senate. The exception to this system of selection and designation is constituted by the maximum authorities of the Public Ministry: the Attorney General and the General Defender of the Nation. In these cases, the assignation has a political character. Both of them are chosen by the President of the Nation and then, they should obtain the agreement of the 2/3 part of the members of the Senate. Their appointment will be sustained until their good behaviour lasts. As the rest of the magistrates of Fiscal Public Ministry, they have functional immunity and their salary only can be modified by themselves.

Graphic 9. Mechanism of selection and designation of Public prosecutors

In relation with the influence of the Executive Power in the assignation of magistrates of MPF, it is important to mention that, in order to get a more transparent process, the President of the Nation in 2003 limited himself his faculties for choosing one of the three candidates by publicizing previously

DESIGNATIÓN OF PROSECUTORS

PUBLICCONTEST:ATTORNEYGENERAL CHOOSES A

GROUP OF TRHEE PUBLIC MINISTRY

PPRREESSIIDDEENNTT CCHHOOOOSSEESSOONNEE OOFF TTHHEEMM EXECUTIVE POWER

SSEENNAATTEE AAGGRREEEESS LEGISLATIVE POWER



:: Brief Desription of the Criminal Procedure at the Federal Level :: 31

the nominations and the curriculum vitae of those candidates who postulate to the vacant position.

Thus some mechanisms were adopted in order to know the justified observations and different points of view of professional colleges, judicial associations and other organizations that could be interested in this matter.

Considering the impact of this system of selection, evidently, it redounded in an important advance in the hierarchical organization of the judicial Career, and especially in the qualification of the magistrates and officials.

As far as the destitution of these magistrates, according to what is disposed in the article 18th of the Organic Law, as much in the case of the Attorney General like the Defender General, it is required of a political trial to be developed in the Congress of the Nation (articles 53rd and 59th of the National Constitution (the House of Representatives like accusing part and the Senate like a judgment court).

The causes for the removal are enunciated in the National Constitution and consist in: badly performance, execution of crimes, in the exercise of their functions or execution of common crimes, after Senate takes knowledge and declares to make place to the formation of cause by most of 2/3 parts of the present members.

The rest of magistrates of the Public Ministry, according to what is established in the article 19th of the Organic Law, is judged by the Court of Judgment of the Public Ministry. The main causes of destitution are: badly performance, serious negligence and execution of intentional crimes.

The Court of Judgment, in order to guarantee his impartiality, consists in a plural sectional integration and it is conformed by:

• 3 members who must fulfill the requirements constitutionally demanded to be members of the Supreme Court of Justice of the Nation (CSJN). One of these vowels is designated by the Executive Power, another one by the Senate and the last one by the Supreme Court (a vowel by each power);

• 2 members, represented lawyers of the College of Lawyers, who must fulfill with the requirements constitutionally demanded to be members of the CSJN. One of them is chosen by the Argentinean Federation of Colleges of Lawyers and the other one by the Public College of Lawyers of the Buenos Aires City.

• 2 members designated by drawing: one of them is chosen among the Fiscal Prosecutors before the Supreme Court of Justice or General Prosecutors, and another one among the Defenders before the Court of Public Defenders before Courts.

Also, a same number of members is chosen to act as substitute ones in case of impediment of some of the members of the Tribunal and, presidency is designated by drawing and it changes each six months. Each member of the Tribunal of Judgment lasts three years in its function. Until the first half of the year 2004 these two magistrates possessed the faculty to continue the action or to misestimate the denunciations, but in the case




of the MPF, the Attorney General decided to limit himself in the use of this attribution by creating a Council integrated by five General Prosecutors.

In the judgment process, the accusation is maintained by a prosecutor or public defender (according to the property of the imputation) with equal or higher hierarchy to Prosecutor or General Defender, designated by the maximum authorities of its respective organisms. On the other hand, the public defence is guaranteed properly and it is exerted by an Official Defender before the college courts of Abrogation, second instance or of unique instance, optionally for the imputed magistrate.

Finally, the sentence of the Court has condemnatory or absolving character, and the request of exoneration of the public prosecutor is not linked to the Tribunal.

If the sentence is condemnatory, the exoneration of the magistrate is disposed, and if the facts constitute crime the actions are sent to the competent justice. The sentence can be resorted by the Prosecutor and the imputed person during the following 30 days, before the Federal Administrative Contentious Camera, preserving the guarantee of double instance that anticipate the international pacts.

IV. Brief Description of the Criminal Procedure at the Federal Level

The criminal procedure regulated in the National Criminal Procedural Code6 (NCPC) follows in general, a mixed model or formal incriminating or accusatory process (a written proceeding in charge of an “instruction judge”, an intermediary procedure and a public oral and contested trial by jury). The Code has been in force as of September 5, 1992 and approved as act Nº 23,984. This act set aside the fully inquisitive process which regulated the so called “Obarrio Code” (act Nº 2372)7 and incorporated the public trial by jury at the federal level.

IV.1 – Preparatory Stage

Section 193 sets forth the general goals of the procedural stage in charge of the “instruction judge or federal judge, depending on the case”. Such goals do not differ from the general ones of the process which, basically, tend to obtain the relevant evidence for the determination of the facts. Our “mixed system” combines inquisitive aspects – a criminal public persecution in charge of the pre established body, fully investigative, confidential and written – with characteristics that are inherent to the accusatory system – trial by jury, continuous, with the presence of both parties to the action, public, with evidentiary immediacy and before a court composed of several judges without the possibility to appeal -. The NCPC

6 In future referred to as “NCPC”.7 Maier Julio, “Derecho Procesal Penal” Book I, Fundamentos Editores del Pueblo, Buenos Aires 1996, pages 454 and 462.

:: Brief Desription of the Criminal Procedure at the Federal Level ::32



follows basically, for the ordinary proceeding, the traditional method of the so-called “formal proceeding in charge of the Instruction Judge.

Nevertheless, several operative ideas of a preliminary investigation in charge of the Justice Department have been received. Through section 196, judges were granted the discretionary authority to delegate the preliminary investigation management to the prosecutors granting them some investigation powers. In the year 1997, as a result of the sanctioning of act Nº 24,826, the “summary proceeding” was incorporated which granted the Justice Department the right to investigate all those flagrant cases in which it is not necessary to pronounce a preventive custody. This process has the distinctive characteristic of an “accelerated procedure”. With the sanctioning of the organic act of the Justice Department – Act Nº 24,946 – in the year 1988, this body was granted the authority to start preliminary investigations – section 26 LOMP (Justice Department Organic Act) -. In the year 2001, act Nº 25,409, granted the accusing body the right to investigate all the summary proceedings with unknown origin. Finally, act 25,760 was passed which grants prosecutors the right to investigate directly the essential facts of the criminal types of “kidnapping for ransom” and “illegitimate deprivation of freedom”.

In this way it is clear that, in spite of the fact that the procedural system follows a mixed model, where the instruction judge is at the head of the investigation, more recognition was gradually granted to the Attorney’s General Office.

IV.2 – Beginning of the Instruction Process

The preparatory investigation stage starts by the prosecutor’s requirement, by the police prevention or by certain remissions set forth by some legal body. The notice of the crime may reach the above mentioned bodies through an accusation, which as a rule is facultative (section 174).

In our criminal judicial system there is no principle of opportunity. Therefore, in the face of a crime submitted by the judge without request of either party, the prosecutor shall set forth the procedure before the judge having jurisdiction (sections 189 to 188).

In spite of the fact that the direction and the decision with respect to the process correspond to the instruction judge, the representative of the Justice Department is empowered to propose procedures and help in the investigation – he is authorized to summon witnesses, request reports and other acts that lead to the investigation of the facts (section 212)

Among the most relevant procedural acts, there is the deposition of the accused, which must be always heard by the instruction judge. The accused may abstain from making the deposition but he must be identified, informed of his rights, of the facts he is accused of and of the evidence against him.

At the instruction stage, there will be no debates. However, the defense may give counsel and assist the accused in his/her personal acts, as well as examine the proceedings and records, propose measures,




file motions for exceptions, prevent the accused from going to prison or request his/her release, and challenge resolutions in the cases foreseen. The evidence discovery is included under the title “Means of Proof,” in Title III of the NCPC.

One of the most relevant acts in the instruction stage is the “court order of procedure.” Such order becomes relevant when there is enough suspicion about the participation of the accused in the event under investigation.

Later on, when the examining magistrate or instruction judge considers that the instruction stage has been completed, he or she shall inform the accusing parties (the Justice Department and plaintiff) so that they may give their opinion on the relevant matters. (Section 347).

Regarding the duration of the instruction stage, it is set forth in the section 207 that it should be done within four months after the magistrate’s first examination of the accused. If more time were required, the trial judge should apply for the pertaining authorization before the Court of Appeal, which could grant a two-month extra period or, exceptionally and on the basis of some justified reasons, grant even more time.

Sections 346 to 353, under the title of “closing of the instruction stage” and “the submission before a court for a trial”, regulate the objection stage as to the procedure or instruction. At this stage, the examining magistrate or instruction judge gives information about the cause so that the parties may request new proceedings (section 348), set forth the discontinuance of the proceedings (section 347, subsection 2º), or ask to take the case to court. (section 347)

IV.3 – Trials

In Book III, trails are regulated under two titles: common trials (sections 354 to 404) and special trials – misdemeanors (sections 405 to 409), trials involving minors (sections 410 to 414) and criminal trials for felonies of private action (articles 415 to 431). The so-called “common trial” is the basic type upon which all the other categories are developed. The other types present certain modifications or peculiarities.

IV.3.1. Common Trial: preliminary acts

As a stage of the criminal proceeding, the common trial has two phases: the preliminary acts (sections 354 to 362) and debate (sections 363 to 393).

The preliminary acts are those activities which allow the trial itself to take place. Their aim is to enable the parties to: a) examine the documentation and the detained or seized objects related to the case; b) offer evidence (section 355); c) file the challenges that may pertain (section 60); d) raise the nullities set forth in section 170, subsections 1º and 2º.

Unless the proof offered is evidently irrelevant or overabundant (section 356, second part), the offer is binding for the court8. As for the




rest, the President of the Court can arrange to receive some pertinent and useful evidence that had not been submitted during the instruction stage by any of the parties, whether it had been for omission or for lack of interest.

He or she can also order the anticipated submission of any evidence which may have been rejected during the instruction period or was impossible to fulfill during the hearing when such evidence appears to be utterly necessary. The stage in which these actions must take place, occurs before the debate, and is known as supplementary instruction.

When there is new evidence which justify the absence of responsibility of the accused, he or she may be acquitted at sua sponte or upon request of one of the parties. The discontinuance of the case may also be pronounced when there exists or supervenes an extinguishing cause of the criminal action, as long as a debate is not necessary to proof such situation.

IV.3.2. Common Trial: Debate

The most important characteristic of the NCPC as far as the trial itself is concerned is that it states, in section 363, that it shall be an oral and public proceeding: “The debate shall be oral and public, under penalty of nullity” and as a general rule, it is presided over by a court composed of several judges, three professional ones in this case, except for the misdemeanor cases which are presided by a single federal court judge or judge of misdemeanors.

The main idea behind this principle of orality is that the litigants as well as the means of evidence, witnesses, experts and so on, must express themselves orally in this part of the proceeding. The Code takes into consideration certain exceptions which must be interpreted restrictively. Proximity in time between the hearings is a necessary requirement, (if there are several), in which evidence is presented, and between these, the hearings in which the allegations take place and the ones in which a sentence is determined. This is a consequence of the principles of arrangements, set forth in section 365 which states: “The debate shall continue during all the necessary consecutive hearings until their termination”.

It should be noted that the debate is the procedural moment in which the principle of contradiction is materialized. This is inferred from the following rules: assistance and representation of the defendant in the debate (section 366; section 167, subsection 3º); the possibility of the defendant to give a statement (sections 378 and 380), the right to have complete knowledge of the enlargement of the accusation (section 381); the right to examine witnesses, experts and interpreters through the counsel for the defense in the confrontation of witnesses or defendants

8 Clariá Olmedo, Jorge A., Derecho Procesal Penal (Procedural Criminal Law), Lemer, Book II, 1987, p. 177; what does not bind to the Court is the evidence submitted subsequently- page 179.




(section 389), and the mandatory assistance of the counsel for the defense and the Justice Department during the debate (section 368); grant the parties the right of controlling the evidence (section 389), to submit new evidence (section 388), to participate in the realization of evidential acts (sections 385, 386 and 387), and to submit new evidence in the case of the amendment of the accusation (section 381, second part), the authority to oppose the submission of new evidence that is thought to be illegitimate (section 170 subsection 3º) and the restraint to the ends of nullification of a court decision made by the highest courts of the nation (section 456, subsection 2º).

The debate will be directed by the Chief Justice. After the opening of the debate, and once the preliminary matters are solved, the Chief Justice shall receive the statement of the accused. The subject of the debate (the object of the trial) is the fact required by the district attorney in the requirement to be taken to court. Nevertheless it can be re elaborated, because new facts which are part of the continuous series of events that lead to the crime or aggravating circumstances of legal classification may arise from the statement of the defendant or from the debate itself.

After the questioning, the court shall receive the evidence supporting or discrediting the alleged crime and the one referred to the civil claim (section 382, first part). The order of presentation shall be as follows: experts and interpreters, witnesses, detained elements to convict, examination of domiciles, legal inspections, readings of testimonies, and reading of documents and written records. As a result of the principle of real truth, pursuant to section 388, the court may order at sua sponte or upon request of one of the parties, to receive new means of evidence during the debate.

After the presentation of the evidence, we enter the most critical part of the debate, in which each one of the parties start a discussion about the object of the trial. The President shall grant them the right to speak in the following order (section 393): the plaintiff (who requests the civil remedy only), the accuser, the Justice Department, the counsel for the defense of the accused and the defendant of civil matters, so that they may formulate their accusations and defenses.

After both parties have made their statements, the President shall ask the defendant if he or she has anything to say, then he or she shall call for both parties to the session for the reading of judgment and shall close the debate.

As it is set forth in section 397, if the court should consider it absolutely necessary to receive new evidence or to expand on the one already presented, the debate could be re-opened to this end and the discussion would be limited to that new evidence.

The Code sets forth that the court must solve all the issues: those incidentals which had been transferred, the ones relating the existence of the crime, the participation or involvement of the defendant, the legal classification that may pertain, the punishment to apply, the restitution, repair or indemnification and legal costs.




IV.3.2. Special Trials

As mentioned above, there exist in the NCPC a series of Special Trials which follow the same basic structure as the one of a common trial, yet with certain differences.

There follows a short summary:• Correctional Trials (Misdemeanors) It is a kind of trial for those crimes with a penalty which does not

include imprisonment and for those crimes with a penalty which includes a maximum of three years of imprisonment (section 27, subsections 1º and 2º, and section 33, subsection 2º)NCPC- and are investigated in the provinces by a provincial (federal) judge and in the Self Governed City by a correctional judge.

• Trials involving minors.It applies to those crimes committed by people who were under 18

years old at the time of the offense, even though they have become of age at the time of the trial. Those under 16 years old are included in the criminal liability system, except for those measures of a guardianship nature that may pertain for that purpose.

The procedure is presided over by a juvenile court judge in the instruction stage and in the actual trial, the court is presided over three professional judges.

• Criminal Trials for felonies of a private action. This is a type of regulated procedure for the following crimes: 1. Libel

and slander; 2. Secrets revelation; 3. Illegal competition; 4. Non-fulfillment of the duties of family support, in cases where the victim is the spouse and is about a process started through a criminal complaint where the Justice Department does not intervene, but instead is a process started by the party where conciliation is possible.

• Abridged Trials.Contemplated for cases in which the Justice Department puts

forward a punishment including imprisonment for a time shorter than six years or else one not including imprisonment. The request must have been accepted by the accused, with the aid of his counsel, who must acquiesce on the existence of the fact, his or her participation in the crime with its legal classification. If the court does not reject the request on the bases of the need of a better knowledge of the facts or its discrepancy grounded on the admitted legal grading, it shall subpoena records for a sentence which shall be passed in term not exceeding ten (10) days. If the trial court rejects the agreement to an abridged trial, an ordinary trial shall take place. If the request is accepted, the court shall pass a sentence.

IV. 4. Objection Means

The NCPC contemplates six types of objections: three ordinary ones - annulling a judgment to return a case to its original state, appeal and complaint – and three extraordinary ones – nullification of a court decision made, unconstitutionality and revision.




IV. 4.1. Recourse to annul a judgment in order to return a case to its original state

Its goal is to remove the errors from the steps of the process or formal non-compliance or formal non-compliance verified in definite or temporal decisions. The contestable resolutions through this procedural path must have been passed without any sustenance or support, that is, without the participation, hearing or opportunity to describe the facts by the parties affected. The goal pursued is its revocation by a rule to the contrary.

IV.4.2. Appeal Recourse

It is the most important impugnation or objection means of the instruction stage solved by the integrated Courts of Appeal in courts made up of three professional judges. It is applied with respect to the following decisions taken by the jurisdictional bodies: acquittals, interlocutories, declared resolutions that can be appealed and resolutions that that provoke irreparable charges. Once the recourse is granted, the submission to the court of Appeal is ordered and the interested parties are summoned to appear in person therein to ratify the appeal. It is not necessary to state the legal bases of the appeal, it is enough with the mere indication of the motives or reasons that have caused the offense set forth (section 450 NCPC).

IV. 4.3. Recourse of Nullification of acourt decision made by the highest court of the nation. (Cassation Recourse)

This recourse is regulated in sections 456 to 473 of the Criminal Procedural Code and it enables to challenge the defects of the procedural activity or the defects in the interpretation of the substantive laws. As it is an extraordinary recourse it does not allow an integral revision of the resolution subject of the crisis but it merely reaches the non-compliance or erroneous application of a legal rule, made by a lower court. Such vicissitude could have generated a procedural defect or an incorrect subsuming of the facts stipulated by the merit judge, that the recourse has the aim to modify or eliminate.

The merit judge is the one in charge of setting forth those acts in the NCPC and, a

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