13 ARGENTINA 1 I. General Information Argentina is a federal democratic republic composed of 24 autonomous provinces, including the Autonomous City of Buenos Aires, the seat of the federal government. The country covers an area of 2,780,403 km 2 and in 2006 had an estimated population of 38,970,611 inhabitants. 2 ECLAC reports that in 2005, 91.8% of the population resided in urban zones. 3 The same year, population age-group distribution was as follows: 32.6% between 15-34 years of age; 26.4% from 0-14 years; 17.6% between 35-49 years; 13.3% from 50-64 years of age and 10% over 65. 4 Preliminary data indicate that more than 400,000 Argentineans, or just over 1% of the total population, belong to an indigenous group or are first generation descendants. 5 In 2005, 26% of the urban population lived below the poverty line and 9.1% lived in extreme poverty, 42% and 56% lower, respectively, than in 2002. 6 The country ranked 36th in the 2006 Human Development Index, the highest ranking in Latin America. 7 Its Gini coefficient for 2005 was 0.524. 8 That same year unemployment stood at 11.5% 9 and illiteracy affected 2.8% of the population over 15 years of age. 10 In 2005 Argentina s GDP was U$173 billion and registered annual growth of 9%, which has remained constant since its 11% drop in 2002. 11 Per capita income was US$ 4,470. 12 II. Judicial System Highlights Creation of the Advisory Commission to Draft the Criminal Procedure Code Reform: Founded by the Ministry of Justice and Human Rights in February 2007, the objectives of this commission are to draft a bill of law for a new national Criminal Procedure Code, create judicial organization legislation that will enable the implementation of a new criminal trial system, and propose reforms to the Charter of the Public Ministry. Program to Strengthen the Accusatory System in Criminal Justice: This plan, the immediate aim of which is to introduce a new structure for oral case processing for in flagrante cases, has been under implementation in the Province of Buenos Aires. A pilot project was carried out under the program in Mar del Plata in 2006 and later was extended to the judicial districts of San Martín and Zárate-Campana. In 2007 the program is expected to reach all other judicial districts in this province. The budget of the National Judicial Branch grew an average of 14.27% per annum over the 2000-2007 period. Case Movement: In 2005 a total of 1,002,296 cases were filed before the National Judicial Branch, with more than half of these filed before the Ordinary Courts of Justice in the Federal Capital. More than 40% were heard by the criminal and correccional (less serious crimes) courts and chambers. 13 Public Prosecutor s Office (Ministerio Público Fiscal de la Nación): In 2006 a total of 124,372 cases were opened by this office; 4.41% were brought to trial and only 1.68% resulted in a conviction. 14 Judicial Council of the Nation: Law 26.080 passed February 22, 2006 modified the structure and operation of this entity, reducing the number of councilors from 20 to 13. Amicus curiae: The intervention of friends of the court was authorized for cases that involve matters of public interest. 15 1 The Report on Argentina was prepared using responses to the questionnaire submitted by the following institutions: the Judicial Council (Consejo de la Magistratura del Poder Judicial), the Attorney General s Office (Procuración General de la Nación), the Public Defender s Office (Ministerio Público de la Defensa), the Ministry of Education, Science and Technology, the Federation of Bar Associations of Argentina. Other sources of information include the CSOs Unidos por la Justicia and Argenjus, as well as documents of the Justice Studies Center of the Americas. Further sources consulted were the websites of public institutions, multilateral bodies, and international cooperation agencies.
14 Argentina III. Institutions 1. Overall Structure and Operation of the Judicial System Argentina has a representative, republic, and federal form of government. The 1853 Constitution establishes a federal government composed of the Executive, Legislative, and Judicial Branches and recognizes that provincial governments have all powers not expressly granted to the federal government. The provinces therefore became responsible for the administration of justice in some areas. As a result, Argentina has two justice systems: a national system that is administered by the National Judicial Branch, and provincial structures that are managed by each province. 16 Argentina s federal justice system consists of numerous institutions, including the National Judicial Branch (Poder Judicial de la Nación) and the National Judicial Council (Consejo de la Magistratura de la Nación). The system also includes the Public Ministry (Ministerio Público), which includes the Attorney General s Office (Procuración General de la Nación), the Public Prosecutor s Office (Ministerio Público Fiscal) and the Public Defender s Office (Ministerio Público de la Defensa). Other federal justice system institutions include the National Ministry of Justice and Human Rights, the Federal Penitentiary Service and the Federal Police. Argentina s provinces have a similar structure, with some local variations. For example, the Province of Buenos Aires justice system includes the provincial judicial branch, which is composed of the Public Ministry (with both prosecutors and public defenders), the provincial Judicial Council, the provincial Ministry of Justice and the Buenos Aires Provincial Police. 2. Judicial Branch of the Nation 17 2.1. Structure and Operation In Argentina, the National Judicial Branch includes both the ordinary and federal courts of the Federal Capital, because this was the original federal territory and is the seat of national government. The constitutional reform of 1994 recognized the Autonomous City of Buenos Aires as having an independent government with its own legislative powers and jurisdiction. As a result, the City of Buenos Aires adopted its Charter (Ley Fundamental) in 1996, in which it established its own Judicial Branch. This entity includes the Superior Court of Justice, the Judicial Council, and all other courts provided for by law, as well as the Public Ministry. The city s Judicial Branch Statutes established the structure of justice administration, with the Superior Court at its head, followed by the chambers of appeal and the lower courts; it also includes the Judicial Council (Consejo de la Magistratura) and the Public Ministry. 18 It was later established that the operation of the courts mentioned in this law would be governed by an agreement between the city and federal governments in order to grant the national courts of ordinary justice the powers and budget allocations of the local courts. 19 Thus, the only courts that operate under the purview of the city are the Superior Court and the courts that hear contentious, administrative, taxation, and misdemeanor matters. Matters of ordinary justice continue to be heard by the courts of the National Judicial Branch. Therefore, the division between federal and ordinary courts is based exclusively on the distribution of jurisdictions by subject matter or parties involved, and not on any inherent relation with the national or provincial branch. In summary, the National Judicial Branch is divided into three jurisdictions: 20 Federal, which includes all courts with jurisdiction over federal matters Federal jurisdiction of the Federal Capital, which includes courts empowered to hear federal matters there Ordinary jurisdiction of the Federal Capital, which includes courts empowered to hear common legal matters in that district 2.2. Government and Management The Supreme Court of Justice of the Nation (CSJN) has the powers inherent to any government branch to ensure its existence and preservation: its own resources and the powers needed to determine its internal organization. These implicit duties and powers are exercised through Supreme Court regulatory decrees (acordados) and resolutions, through which the Court has established regulations for its own operation and that of the federal courts. It also has ordered the modification, creation, and reorganization of offices, departments, and administrative and judicial areas in response to changing jurisdictional structures introduced by
15 Table 1 National Judicial Branch Courts Subject Matter First Instance Second Instance Courts Superior Court Courts Civil 110 1 Chamber with 13 courtrooms NO Criminal 115 1 National Chamber with 5 Court rooms 1 Cassation Chamber 1 Federal Chamber with 2 courtrooms divided into 4 courtrooms 21 Young Offenders 10 1 National Chamber with 5 courtrooms 1 divided into 4 Court rooms 22 Commercial 26 1 divided into 5 courtrooms NO Transit 23 NO NO NO Federal Contentious-Administrative 12 1 divided into 5 courtrooms NO Minors 24 NO NO NO Domestic Violence 25 NO NO NO Constitutional NO NO NO Land 26 NO NO NO Peace 27 NO NO NO Infractions and Misdemeanors 28 NO NO NO Environmental NO NO NO Bankruptcy 29 NO NO NO Economic Crime 12 1 divided into 2 courtrooms NO Taxation 3 NO NO Social Security 10 1 divided into 3 Courtrooms NO Federal Civil and Commercial 11 1 divided into 3 Courtrooms NO Labor 80 1 divided into 10 Courtrooms NO Electoral 1 1 NO Source: Table submitted by the Judicial Council of the Nation. different national laws and the increasing number of cases filed before this Court. 30 The CSJN General Administration, led by the Administrator General, handles all matters related to the planning, implementation, coordination, and control of the Court administration and fulfillment of superintendent duties that are delegated to it. Its functions include: proposing policies and strategies for the sound and economical distribution and use of resources; managing the court s finances, accounting, budget, and capital; gathering from its different offices the requirements for human and material resources and for services and presenting these to the court, taking these together with the needs indicated by the Judicial Council to build the proposed annual budget for this jurisdiction. This Administration is in charge of all pertinent institutional relations with entities in other government branches and must report these in a timely manner to the CSJN. It also is responsible for providing all logistical and technological support for the judicial services rendered by the CSJN, designing and planning building infrastructure, maintaining the internal audit system and fulfilling all other responsibilities delegated by the Court. 31 The constitutional reform of 1994 introduced two new entities in the Chapter on the organization and functioning of the Judicial Branch. The first is the Judicial Council (Consejo de la Magistratura), 32 which now manages the Judicial Branch, handles the selection of candidates to the lower courts (through public, merit based competitions) and initiates proceedings to remove, suspend or charge judges. The second entity is the Impeachment Jury (Jurado de Enjuiciamiento), established under
16 Argentina Article 115 of the Constitution and composed of federal legislators, judges, and attorneys. Its ruling, which may not be appealed, may only remove the judge in question from office, leaving him or her subject to further legal action, ruling, and sentencing in the ordinary justice system, where appropriate. The operation and composition of these entities 33 were reformed by Law 26.080, which reduces the number of committee members to include one representative of the country s attorneys, leaving two senators, two congressional deputies, two judges, and one attorney. 2.3. Transparency, Accountability, and Access to Information In order to increase the transparency of proceedings before the CSJN, the Court made public all records held by all of its clerk s offices. The regulatory decrees (Acordadas) issued on 1/ 04 and 2/04 introduce certain measures that enhance the principle of public access to government acts and enable citizens to exercise their right to oversee these acts. In Acordada 1/04, the Court mandated the publication of a full list of CSJN officials and staff; administrative acts related to staff; and invitations and adjudications of all public and private procurement processes, pricing comparisons, and direct purchases. The Court also publishes its annual budget, statistics each semester, and all decrees and resolutions with a general scope, those that involve spending, and others. Resolution 2/04 mandates that the rulings of this Court, which are available online, be preceded by a form containing the name of the case and information on the type of case. It also authorized the intervention of friends of the court (amicus curiae) in cases involving the public interest. Friends of the court must be individuals or legal entities not party to the case that have recognized expertise on the topic under discussion and demonstrate their unequivocal interest in the outcome of the case. The resolution also mandates the publication of cases pending that are suitable for intervention by the friends of the court on the Court s Website. 34 The Center for Judicial Information 35 was also created to coordinate the activities of the Office of Comparative Law and the Office of the Press, Ceremonies and Communications. The CSJN Website was expanded in order to provide better judicial information and enable access to institutional news and national and provincial case law. Argentina earned an overall score of 67.2% in JSCA s index of online access to information, moving from third among the 34 OAS countries in 2004 to second in 2006, after the United States, an overall improvement of 9.3%. Access to information from the courts in Argentina also improved, with the country moving from seventh to fourth place. Today, its rating is 64.9%. 36 Finally, the CSJN General Administration updates the list of sworn statements of assets and interest by judicial officials. 37 This data is published on the Website. 2.4. Legal Aid Although the Judicial Branch does not provide legal aid services, plaintiffs in criminal cases have access to associations and academic institutions that offer free legal aid services. These include: the Universidad de Buenos Aires (UBA) Law School Free Legal Clinic, the Universidad de Belgrano Legal Aid and Clinic, and the Free Legal Clinic of the Bar Association of the Federal Capital (Colegio Público de Abogados de la Capital Federal). In addition, the National Ministry of Justice operates the Legal Aid and Mediation Social Assistance Plan and the Ministry of Labor operates Programa Asistir, which also provides free legal aid. At the national level, the Public Defender s Office or Defensoría General de la Nación 38 also offers such services. 2.5. Reform Projects Underway Highlights of the reform projects carried out under the purview of the Judicial Branch include the following agreements: Technical Cooperation Agreement on the Judicial Reform between the CSJN and ARGENJUS, the Electronic Interjurisdictional Communication Agreement and the Argentina Justice Information System Agreement. 39 2.6. Budget The current budget of the National Judicial Branch is 142% higher than it was in 2000. Over the same period (2000-2007) the budget grew by an average annual rate of 14.27%. The variation from 2005 to 2006 (38%) was due to a rise in salaries, while that recorded for
17 the 2006-2007 period (29%) was the product of new internship positions. 40 The budget breaks down as follows: ordinary justice of the Federal Capital accounts for 31.86% of the budget, while the federal justice system (both the Capital and the rest of the country) consumes another 38.62%. The budgets of the SCJN and the Criminal Cassation Chamber account for 3% and 1.3% of the total, respectively, while the remaining 24% is used for administrative purposes. 41 2.7. Human Resources In 2005, close to 5% of the Judicial Branch staff was judges, which produced a ratio of 20 staff members per judge. 42 Permanent staff members of the CSJN numbered 1,756 in 2005, or approximately 10% of all employees working for the National Judicial Branch. In turn, more than 36% of all CSJN staff members worked in administration. 2.8. Case Movement In 1991 the Supreme Court created the Judicial Branch Office of Statistics. 43 After the Judicial Council was established, the Court transferred its administrative offices, including the Office of Statistics, to the Council. 44 The Annual Statistical Yearbook that is prepared by this office includes quantitative information on the main aspects of the judicial system, including data, indicators, and geographical and chronological comparisons. It also offers an overview of each instance and jurisdiction. Data are further broken down by Table 2 Judicial Branch Budget (Thousands of Argentine pesos and U.S. Dollars) 2007 2006 2005 2004 2003 2002 2001 2000 1,565,098,881 1,216,666,875 884,290,933 726,072,905 693,583,327 658,627,208 662,440,390 646,508,383 (US$ (US$ (US$ (US$ (US$ (US$ (US$ (US$ 521,699,627) 405,555,625) 285,255,139) 234,317,066) 223,736,557) 212,460,389) 662,440,390) 646,508,383) Source: Judicial Council and Ministry of the Economy. Table 3 Staff of the National Judicial Branch 2005 2004 2003 2002 2001 2000 Judges 883 834 820 826 806 810 Court staff 4,127 3,913 4,346 4,266 4,263 4,235 Other employees 13,288 12,946 14,079 13,713 13,647 13,483 Total 18,298 17,693 19,245 18,805 18,716 18,528 Source: Unidos por la Justicia and National Judicial Council (2005). Table 4 Human Resources of the Supreme Court of Argentina (2005) Social Work Investigative work Comparative Law Office and Library General Administration 130 541 66 643 Source: JSCA, based on information from the SCJN Administration, Department of Budget and Accounting.
18 Argentina type of entity and subject matter and used as input for research and specific works to identify current and future trends. 45 According to the 2005 Yearbook, 1,002,296 cases were filed before the courts that year. More than half went before the ordinary courts in the Federal Capital, and over 40% of these involved criminal and correccional (less serious criminal) matters. The court with the greatest variation from 2003 to 2005 was the Criminal Cassation Chamber, which saw a 90% rise in cases. The number of cases filed before the federal courts dropped 40% overall. The number of cases resolved in 2005 reached almost one million, the same level as in 2003. The Ordinary Courts of the Federal Capital had the highest case clearance rate (over 80%). The federal justice system overall, however, showed a low clearance rate (under 20% in 2005). Cases pending in that system, meanwhile, reached the highest level ever, over 400%. According to the World Bank, the average time needed to enforce a contract is 17 months and 10 days. The calculated cost, from the filing of suit until payment is received, is 15% of the value of the debt. 46 The total number of cases filed before the Judicial Branch in 2005 was around 5% lower than in 2003. The most notable variations over this period were in the Criminal Cassation ambit, where cases filed increased by more than 90%, and in the federal courts, where they decreased by 38%. The number of cases resolved in 2005 dropped by more than 13% over the year before. The number of cases pending remained stable between 2004 and 2005. However, the number of cases pending in 2005 was around 6.5% lower than in 2003. On average, cases pending dropped by 3.3% per year between 2003 and 2005. Between 2003 and 2005, the clearance rate of Argentina s National Judicial Branch rose by 5.5%. In turn, the number of cases pending dropped by 6% and the congestion rate by 2%. Between 2003 and 2005, the case disposal rate increased by 3.6%, while cases pending and congestion rates dropped by 1.7% and 0.5%, respectively. Table 5 Evolution of Cases Filed before the National Judicial Branch 2005 2004 2003 Supreme Court 36,202 37,559 31,290 Criminal Cassation Chamber 1,979 1,233 1,034 Courts of Ordinary Justice of the Federal Capital - total - 529,572 517,337 533,602 Appeals Courts - total 80,977 80,615 81,932 Federal District Court 439,030 426,987 442,628 Ordinary Criminal Courts 9,565 9,735 9,042 Federal Justice System - total 434,543 438,993 488,287 Federal Appeals Courts - total 45,725 60,323 74,513 Federal District Courts 105,151 96,112 118,037 Oral Criminal Courts in the Federal Capital 699 720 654 Oral Criminal Courts of the Interior 3,354 3,792 3,368 Federal Courts of the Interior: Appeals 32,755 42,401 44,439 Federal District Courts 246,859 235,645 247,276 Total 1,002,296 995,122 1,054,213 Source: JSCA, based on information from the Judicial Council of the Judicial Branch.
19 Table 6 Evolution of Cases Disposed by the Judicial Branch 2005 2004 2003 Supreme Court 20,485 20,963 18,980 Criminal Cassation Chamber 1,516 1,108 861 Ordinary Criminal Courts of the Federal Capital - total 482,297 469,955 485,597 Appeals Courts - 88,960 87,591 80,261 Federal District Court 382,981 373,267 396,710 Ordinary Oral Criminal Courts 10,356 9,097 8,626 Federal Justice System - total - 492,731 657,799 495,136 Federal Appeals Courts - total - 53,393 71,061 80,840 Federal District Courts 127,638 121,728 129,846 Oral Criminal Courts of the Federal Capital 784 638 596 Oral Criminal Courts of the Interior 3,167 3,269 2,718 Federal District Courts of the Interior: Appeals Courts 34,547 38,242 36,147 Federal District Courts 273,202 422,861 244,981 Total 997,029 1,149,825 1,000,574 Source: JSCA, using data from the Judicial Council of the Judicial Branch of Argentina. Table 7 Evolution of All Cases Pending Resolution before the Judicial Branch 2005 2004 2003 Supreme Court of Justice 78,741 92,872 49,367 Criminal Cassation Chamber 1,112 649 524 Ordinary Justice of the Federal Capital- total 890,294 880,843 892,251 Courts of Appeal - total 18,597 18,510 19,043 Federal District Courts of the Capital 859,759 850,300 862,445 Ordinary Oral Criminal Courts 11,938 12,033 10,763 Federal Justice System - total - 1,984,563 1,992,543 2,217,305 Federal Courts of Appeal - total 26,128 32,362 41,241 Federal District Courts 495,390 499,921 515,913 Oral Criminal Courts of the Federal Capital 968 958 827 Federal Oral Criminal Courts of the Interior 6,887 6,606 5,995 Federal District Courts of the Interior: Courts of Appeal 53,000 51,323 42,115 District Courts 1,402,190 1,401,373 1,611,214 Total 2,954,710 2,966,907 3,159,447 Source: JSCA, using information from the Judicial Council of the Judicial Branch of Argentina.
20 Argentina Table 8 Cases Disposed (%) 47 2005 2004 2003 Supreme Court of Justice 20.64 25.01 27.66 Criminal Cassation Chamber 57.69 63.06 62.17 Ordinary Justice of the Federal Capital- total 50.89 49.97 50.68 Courts of Appeal - total 82.71 82.55 80.92 Federal District Courts of the Capital 46.83 45.90 47.25 Ordinary Oral Criminal Courts 46.20 43.06 44.37 Federal Justice System - total - 19.85 24.82 18.26 Federal Courts of Appeal - total 68.38 69.97 66.21 Federal District Courts 20.51 19.52 20.14 Oral Criminal Courts of the Federal Capital 44.75 40.03 41.88 Federal Oral Criminal Courts of the Interior 31.46 33.06 31.14 Federal District Courts of the Interior: Courts of Appeal 39.46 42.70 46.19 District Courts 16.24 23.18 13.20 Total 28.23 31.28 26.76 Source: JSCA, using information from the Judicial Council of the Judicial Branch of Argentina. Table 9 Cases Pending (%) 48 2005 2004 2003 Supreme Court of Justice 384.38 443.03 260.10 Criminal Cassation Chamber 73.35 58.57 60.86 Ordinary Justice of the Federal Capital- total 184.59 187.43 183.74 Courts of Appeal - total 20.90 21.13 23.73 Federal District Courts of the Capital 224.49 227.80 217.40 Ordinary Oral Criminal Courts 115.28 132.27 124.77 Federal Justice System - total - 402.77 302.91 447.82 Federal Courts of Appeal - total 48.94 45.54 51.02 Federal District Courts 388.12 410.69 397.33 Oral Criminal Courts of the Federal Capital 123.47 150.16 138.76 Federal Oral Criminal Courts of the Interior 217.46 202.08 220.57 Federal District Courts of the Interior: Courts of Appeal 153.41 134.21 116.51 District Courts 513.24 331.40 657.69 Total 296.35 258.03 315.76 Source: JSCA, using data from the Judicial Council of the Judicial Branch of Argentina.
21 Table 10 Rate of Congestion 49 2005 2004 2003 Supreme Court of Justice 0.82 0.84 0.76 Criminal Cassation Chamber 0.51 0.41 0.45 Ordinary Justice of the Federal Capital - total 0.66 0.66 0.66 Courts of Appeal - total 0.11 0.12 0.21 Federal District Courts of the Capital 0.71 0.71 0.70 Ordinary Oral Criminal Courts 0.52 0.58 0.56 Federal Justice System - total - 0.80 0.73 0.82 Federal Courts of Appeal - total 0.26 0.23 0.30 Federal District Courts 0.79 0.80 0.80 Oral Criminal Courts of the Federal Capital 0.53 0.62 0.60 Federal Oral Criminal Courts of the Interior 0.69 0.69 0.71 Federal District Courts of the Interior: Courts of Appeal 0.60 0.59 0.58 District Courts 0.83 0.74 0.87 Total 0.75 0.71 0.76 Source: JSCA, using data from the Judicial Council of the Judicial Branch of Argentina. 3. Judicial Branch of the Province of Buenos Aires 50 The Buenos Aires Province Judicial Branch, which has a structure similar to that of provincial branches in the rest of the country, is described below. The highest authority of this institution is the provincial Supreme Court, which is headquartered in Ciudad de La Plata. This body makes final rulings on constitutional matters for the Province of Buenos Aires and is charged with the administration of the province s Judicial Branch. The last instance Criminal Cassation Tribunal is divided into three courts, and has its own Public Prosecutor s Office and Public Defender s Office. The Public Ministry is part of the Judicial Branch. The Attorney General of the Province is the highest official of this body, which combines the Public Prosecutor s Office, the Guardian s Office (Ministerio Pupilar) and the Public Defender s Office. The province also has its own Judicial Council, which drafts the shortlist of candidates to the bench and sends it to the Executive Branch for final selection. The ordinary first instance provincial courts are organized into judicial districts, and this province has 18 such departments or circunscripciones judiciales, 51 each with jurisdiction over a given number of municipalities or partidos. Each department Table 11 Judicial Branch Budget: Per Judge and Per Capita (In Argentine pesos) 2005 2004 2003 2002 2001 2000 Spending per Judge N/D $ 544,629 $ 496,893 $ 497,077 N/D $ 560,809 Spending per Inhabitant $ 44 $ 45 $ 41 $ 39 $ 41 $ 39 Source: Unidos por la Justicia.
22 Argentina includes first instance and appeals courts, as well as its own Public Prosecutor s and Public Defender s Offices. The following description of the San Martín Judicial Department provides an example of the structure of such entities. Its jurisdiction covers the partidos of General San Martín, Tres de Febrero, Malvinas Argentinas, San Miguel and José C. Paz. The department has a Civil and Commercial Appeals Chamber divided into two courts; a Criminal Appeals and Criminal Guarantee Chamber divided into three courts; a Public Prosecutor s Office; and a Public Defender s Office. It also has 12 first instance civil and commercial courts; two single instance family tribunals; seven criminal courts; four supervisory courts for preliminary proceedings (juzgados de garantía); five correccional courts; three transition courts; four youth courts; and five labor courts. The department also has an Office of Warrants and Notifications, an Investigative Department, a library, and technical and administrative offices Between 2000 and 2005, the per capita budget reported for this branch grew by 13%. 4. Public Prosecutor s Office 52 4.1. Institutional Structure Argentina s Ministerio Público was created through the Constitutional Reform of 1994 53 and is governed by Law 24.946, the Public Ministry Charter. 54 The Constitution establishes the Public Ministry as an independent institution with functional and financial autonomy that may not be subordinated to any other government entity or branch. This entity is composed of the Public Prosecutor s Office and the Public Defender s Office. 55 The Attorney General s Office directs and coordinates the work of all prosecutors, while the Defender General s Office does the same for the work of official public defenders. Prosecutors and defenders are attorneys who carry out their separate legal and procedural functions within the judicial system. The structure of the Public Prosecutor s Office, which has the mission of criminal prosecution and of representing and defending the public interest through prosecutors before the courts, is composed of: The National Attorney General District attorneys and assistant district attorneys before the country s collegiate courts, cassation chambers, courts of appeal, single instance courts, those working in the Attorney General s Office, and those in the Administrative Investigation department Prosecutors and assistant prosecutors before the first instance courts; prosecutors in the Attorney General s Office; and prosecutors working in Administrative Investigations. 4.2. Government and Management The Public Prosecutor s Office is led by the Attorney General, whose responsibilities include: Acting as prosecutor before the Supreme Court, issuing opinions and bringing legal action in cases referred to this Office. Serving as the highest authority of the federal prosecutor corps, directing and coordinating their actions and outlining the State s criminal policy. 4.2.1. Duties and Powers of the Public Ministry The Public Ministry s Charter 56 states that the agency is expected to: Promote justice to uphold the law and the general interests of society Represent and defend the public interest in all cases and matters as required by law Foster and exercise legal action for criminal and correccional cases (except for matters actionable by the plaintiff under the criminal code) Promote civil actions in cases as legally stipulated Intervene in proceedings of matrimonial annulment and divorce, paternity, and all matters related to civil status, names, judicial authorizations, and declarations of poverty Intervene in cases in which a party claims to have been denied justice Ensure the National Constitution and the laws of the Republic are upheld Ensure the effective fulfillment of due process Advance and intervene in any case or matter, and order any and all measures required, to protect minors, the disabled and incapacitated and their property, according to the law, where these lack assistance or legal counsel, where inaction of their legal counsel or representatives, relatives or guardians must be remedied, or where the management of these needs to be controlled.
23 Prosecutors represent and defend the public interest before the courts, bring legal action and appeals as required. In criminal matters, they are responsible for prosecuting crimes as established in Article 5 of the National Criminal Procedure Code. It is important to note that Prosecutors before the cassation chambers, courts of appeal, and the oral trial courts also may instruct prosecutors of lower rank under their supervision. In addition, prosecutors acting before the Supreme Court and the Attorney General meet at least once per year by invitation of the latter to unify criteria on the actions of the Public Ministry on topics under their purview, 57 among other tasks. 4.2.2. Divisions The Public Prosecutor s Office has several independents divisions, each of which has an office (Fiscalía General) that deals with cases before the Courts of Appeal and their respective first instance courts. These are also divided into federal and ordinary jurisdiction. 4.2.2.1. Ordinary Jurisdiction Ordinary jurisdiction covers common judicial matters in the Autonomous City of Buenos Aires and is composed of: The Prosecutor s Office to the National Court of Appeal for Civil Matters The Prosecutor s Office before the National Court of Appeal for Criminal Matters (including correccional crimes) The Prosecutor s Office to the National Court of Appeal for Economic Crime The Prosecutor s Office to the National Court of Appeal for Commercial Matters The Prosecutor s Office to the National Court of Appeal for Labor Matters. 4.2.2.2. Federal Jurisdiction At the federal level, some prosecutor s offices to the federal courts have jurisdiction in the City of Buenos Aires, while others cover other parts of Argentina. The Offices headquartered in the City of Buenos Aires are: The Public Prosecutor s Office before the Federal Criminal and Correccional Court The Public Prosecutor s Office before the Federal Civil and Commercial Court The Public Prosecutor s Office before the Federal Contentious-Administrative Court The Public Prosecutor s Office before the Federal Social Security Court The federal courts of appeal outside of the capital hear cases of all types. 4.2.3. Special Units In order to modernize and update its structure, in recent years the Public Ministry has increased its degree of specialization in treating highly complex offenses by creating special units. Among these are the Mobile Prosecutor s Unit to Investigate Kidnapping for Extortion 58 and the AMIA (Argentine-Israelite Mutual Association) Prosecutor s Unit. 59 4.2.4. Eligibility Requirements The Attorney General is appointed by the President with the agreement of two thirds of all members present in the Senate. The appointment is for life unless this official is removed for misconduct, and like all other members of the Public Prosecutor s Office he or she has functional immunity and a guaranteed salary (intangibilidad salarial). All other official attorneys in this institution are chosen through a public, merit-based competition organized by the Attorney General s Office. The Attorney General must then provide the Executive with a short list of three candidates, from which the President chooses one. This candidate must be ratified by the National Senate by a simple majority. As the Attorney General s Office itself has stated, the involvement of all three branches of government in the selection of state attorneys beginning in 1994 represents a great advance in the Judicial Career, especially in the professional level of State Attorneys and other officials in this Office. Decree 588/03 issued by the Executive Branch sought to ensure the public and transparent nature of appointments to fill vacant offices by adopting mechanisms to allow the submission of well-founded observations, perspectives and objections to such appointments by private citizens, professional bodies, associations working in judicial matters or human rights and other organizations with a stake in the matter.
24 Argentina 4.2.5. Internal Disciplinary Control Removal of either the Attorney General or Defender General from office requires an impeachment process carried out by the Congress in accordance with the Constitution 60 (where the Chamber of Deputies is the accuser and the Senate is the trial court); all other attorneys are judged by an Impeachment Tribunal. 61 Causes for removal are set out in the Constitution and include poor performance, committing criminal acts in the line of duty, and the commission of common crimes. After the Senate has been made aware of these it decides whether there is just cause by a vote of two thirds of all those present. To guarantee its impartiality, the Impeachment Tribunal 62 for officials of the Public Ministry is composed as follows: 3 members: who must meet the constitutional requirements to be members of the Supreme Court of Justice (CSJN), one appointed by each branch of government (Executive, Senate, and Supreme Court) 2 members: attorneys representing bar associations, who must meet the constitutional requirements for members of the Supreme Court bench. One shall be appointed by the Argentine Federation of Bar Associations and the other by the Public Bar Association of the Autonomous City of Buenos Aires 2 additional members selected by lottery: one from among the Supreme Court prosecutors and another from among the Public Defenders before the same court or from among the public defenders before the collegiate courts. The same number of alternates is chosen in case one or more sitting members is excused or cannot perform their duties. Members of the tribunal sit for three years and are considered public officials. The chair is selected by lottery and is rotated every six months. The tribunal hears the charges, which are brought by a prosecutor or public defender (depending on the defendant s origin) with a rank not below that of State Attorney or State Defender, appointed by the highest authority of these respective agencies. Public defense is duly guaranteed and must be exercised by an Official Defender before the cassation chambers, court of appeals or single instance courts, at the defendant s choice. This impeachment instance may only be convened by the decision of the Attorney General or Defender General, who may act on their own initiative or in response to a complaint. It is worth noting that although these two officials were empowered to act upon or dismiss such accusations with well-founded arguments, in mid- 2004 the Attorney General 63 decided to voluntarily limit his use of this power (the application of which could turn into a discretionary measure) by ordering, as needed, the establishment of an Evaluating Council composed of five state attorneys, who are charged with this task alone. Lastly, the Impeachment Tribunal hands down a ruling of guilty or not guilty, and any request for acquittal by the prosecutor is non-binding. Where a guilty verdict is returned, the official under impeachment shall be removed from office; where the findings indicate a crime has been committed, the information is sent to the respective criminal court. The sentence may be appealed by prosecutor or defendant within 30 days before the Federal Contentious- Administrative Chamber, in order to maintain the guarantee of appeal in accordance with international agreements in force in Argentina. To facilitate the agency s internal operation and functionality, in 1999 the Permanent Office of the Impeachment Tribunal was created under the Superintendent s Office. 64 On March 1st of each year the Attorney General presents the Annual Report 65 to Congress. This document describes institutional performance, highlighting achievements and the goals set for the coming period. It also contains an empirical analysis of the work of the Public Prosecutor s Office prepared by the Office of Criminal Policy Research and Statistics, based on quarterly reports submitted by each Prosecutor s Office. This analysis lays out the number of cases initiated in the period by division, the number of cases remanded to trial, number of convictions, shortened proceedings and conditional stays, and other relevant statistical information. The Annual Report contains the balance of accounts that each prosecuting attorney has rendered to the respective Court of Appeals and each prosecutor to the respective oral trial court, which also outline the problems of each jurisdiction. The Public Prosecutor s Office has an Operational Support and Control Unit that carries out operational audits as a form of internal administrative control. It also functions as a means of disciplinary control in response to complaints of irregularities. In 2007 general audits were carried out to measure the service s efficiency.
25 4.2.6. Recognized Deficiencies of the Public Prosecutor s Office The main deficiency identified is the delay in legislating a criminal procedure reform that would enable the introduction of an accusatory system. Added to this is the lack of financial autonomy, given the agency s lack of own resources and the unequal allocation it receives compared to the Judicial Branch, which causes concerns regarding building and infrastructure policies, which are being implemented partially with its own resources. The Public Prosecutor s Office claims that the quarterly allocations generally do not consider the amounts requested by the Financial- Administrative Service and in many cases are clearly insufficient. All of this leads to requests for reprogramming of the amounts allocated or increases in authorized levels of funding. 4.3. Transparency, Accountability, and Access to Information The Public Ethics Law 66 brought a system of sworn statements of assets by members of the Public Prosecutor s Office into line with the current legal framework. The system is governed completely by this law. 67 There has also been an increase in access to institutional information through the publication of all resolutions associated with the government and the criminal prosecution policy. This information is currently being shared in print version, but is also available online. The public may also access statistics from all prosecutors offices across the country in real time using special software designed by the staff of the Office of Criminal Policy Research and Statistics of the Attorney General s Office. To enhance the public nature of procurement decisions and increase transparency and public oversight in general, as of 2006 all acts of general interest have been made public and all procurement processes published on the institution s web page. Opinions and resolutions issued by the different members of the adjudication committee are also published therein. Argentina s Public Ministry ranks second among public prosecutor s offices in the JSCA Index of Online Access to Judicial Information, with a rating of 70.6%. This represents an increase of 16.2% over 2004, when it occupied third place. 68 4.4. Reform Projects Underway 69 As a federal agency, the Public Ministry is spread out across the country, with large distances between its offices. To counteract that situation, the Attorney General s Office has implemented coordination mechanisms to reduce the gaps and asymmetries that exist between offices in different areas of the country, which are replicated in each jurisdiction as well. 4.5. Budget The Budget of the Attorney General s Office, expressed in current amounts, grew by 104.87% from 2000 to 2006, with an average growth of 13.3% for 2000-2006. Table 12 Budget of the Public Prosecutor s Office Year In current pesos 70 In U.S. dollars 71 2006 204,753,787 68,251,262 2005 171,218,591 57,072,863 2004 138,635,142 46,211,714 2003 106,836,731 33,916,422 2002 100,373,481 100,373,481 2001 98,599,701 98,599,701 2000 99,940,514 99,940,514 Source: Attorney General s Office. 4.6. Human and Material Resources 4.6.1. Human Resources The law mandates a total of 337 prosecuting attorneys for the Attorney General s Office, but there are only 290 at present, as some offices do not have one or are in the process of appointing one. Almost 30% of active prosecuting attorneys are women. 4.6.2. Material Resources In 2006 a policy of technology updating was activated that included the distribution of 1,440 personal computers and printers and 310 scanners. These replaced old equipment used up to 2000, meaning that in general the Office s technological resources are currently less than
26 Argentina Table 13 Active Prosecuting Attorneys in the Attorney General s Office (2006) Description Female Male Total National Prosecuting Attorney in the Administrative Investigative Unit 1 1 Prosecuting Attorney before the Cassation Chamber 4 4 General Attorney 12 70 82 General Prosecutor of the Labor Unit 1 1 General Prosecutor of the Attorney General s Office 1 3 4 General Prosecutor of the Administrative Investigative Unit 2 2 Assistant General Prosecutor of the Attorney General s Office 4 8 12 Prosecutor before the First Instance Courts 56 106 162 Prosecutor of the Attorney General s Office 7 5 12 Prosecutor in the Administrative Investigations Unit 4 5 9 Assistant Prosecutor 1 1 Total 84 206 290 Source: Office of Technical Affairs, Discipline and Human Resources of the Attorney General s Office. Report prepared by Marcela Liliana Rodríguez, December 4, 2006. Table 14 Human Resources by Office Item 2006 2005 2004 Number of prosecutors 337 311 311 Number of male prosecutors 206 223 223 Number of other female staff members 1,464 1,759 1,759 Number of other male staff members 1,499 839 839 Total 3,300 2,909 2,909 Source: Attorney General s Office. Table 15 Officials of the Public Prosecutor s Office by Division, Jurisdiction, and Instance (2006) Position Quantity Attorney General 1 Prosecutor General to the Supreme Court 4 General Prosecutor to the National Criminal Cassation Chamber 4 National Prosecutor for Administrative Investigations 1 General Prosecutor for Administrative Investigations 2 Prosecutor for Administrative Investigations 8
27 Table 15 (continued) Prosecutors in the Attorney General s Office 12 General Prosecutors in the Attorney General s Office 4 Total 36 Source: Attorney General s Office. Table 16 Prosecutors to the Court of Criminal Appeal (2006) Position Quantity General Prosecutor to the National Criminal Court of Appeal 3 General Prosecutor to the Court of Appeal for Economic Crimes 1 General Prosecutor to the Federal Chamber of Appeal 1 Assistant Prosecutor to the Federal Chamber of Appeal 3 Total 8 Source: Attorney General s Office. Table 17 General Prosecutors to the Oral Criminal Courts of the National Judicial Branch (2006) Position Quantity Prosecutor to the Oral Criminal Court 30 Prosecutor to the Oral Federal Court 6 Prosecutor to the Oral Minors Court 3 Prosecutor to the Oral Economic Crimes Court 3 Total 42 Source: Attorney General s Office. Table 18 Prosecutors to the First Instance Criminal Jurisdiction of the Judicial Branch (2006) Position Quantity Prosecutor in investigative matters 48 Prosecutor in correccional maters 14 Prosecutor and corresponding Assistant Prosecutors to the Federal FI Courts 24 Prosecutor for minors matters 7 Prosecutor for economic crimes matters 8 Prosecutor for taxation matters 3 Total 104 Source: Attorney General s Office.
28 Argentina Table 19 Non-criminal Jurisdictions of the Judicial Branch (2006) Jurisdiction Position Quantity Federal Civil, Commercial and Contentious-Administrative Prosecutor 1 First Instance Prosecutor 5 Social Security Prosecutor 2 First Instance Prosecutor 2 Civil and Commercial Prosecutor 2 First Instance Prosecutor 4 Labor Labor General Prosecutor 1 Labor Prosecutors 8 Total 25 Source: Attorney General s Office. Table 20 Prosecutors Outside of Buenos Aires (2006) Position Quantity Prosecutors to the Federal Courts of Appeal 16 Prosecutors to the Oral Courts of the Interior 40 Prosecutors in the First Instance Courts 66 Total 122 Source: Attorney General s Office. five years old. Two initiatives are also in progress to acquire more equipment, including 180 personal computers and 100 laser printers, in order to meet rising needs and the requirements of new offices that are being set up. After successfully installing Internet access in all Public Ministry offices, software is now being updated to keep track of the work of the Office of Investigations with Unknown Perpetrators ( Office of NN ). This software module will enable all departments based in the Autonomous City of Buenos Aires to substantially increase their capacity for cross referencing information in the investigation of crimes with unknown perpetrators. This will make an important contribution to investigative work, providing such information as the geographic location of each crime, its main features, authors, victims, impacts and other aspects. These functions will enable the use of statistical and geographic investigative tools, such as the Crime Map. Table 21 Material Resources Item 2006 2005 2004 Number of computers in the Prosecutor s Office 72 3,905 2,365 2,055 Number of computers with Internet connectivity in the Office 73 600 600 600 Source: Attorney General s Office.
29 4.7. Case Movement Of the cases initiated by the Public Prosecutor s Office in 2006, 4.41% were sent to trial and only 1.68% resulted in a conviction. Though the number of cases opened rose by more than 28% since 2003, the number of cases that reach trial and conviction dropped by over than 23% and 19%, respectively. 5. Public Ministry of the Province of Buenos Aires 75 This provincial Public Ministry is governed by Article 189 of the Provincial Constitution and Provincial Law 12.061, and is part of the province s Judicial Branch. It is composed of the provincial Attorney General s Office (Procuracion General de la Provincia), the Public Prosecutor s Office (Ministerio Público Fiscal), the Office of the Public Guardian (Ministerio Publico Pupilar) and the Public Defender s Office (Ministerio de la Defensa). 5.1. Attorney General s Office The Provincial Attorney General (Procurador General) is in charge of this institution, which is divided into the General Secretariat and the Judicial Police Secretariat. The former is responsible for supervising, coordinating and Table 22 Crimes against Persons (2006) Crime Total Total sent Total initiated to trial convictions Murder 132 58 28 First degree murder 46 11 17 Involuntary Manslaughter 11 1 3 Manslaughter due to transit accident 6 28 18 Manslaughter due to medical malpractice 0 3 2 Manslaughter (other) 110 19 4 Attempted murder 4 8 4 Suspicious death 1,530 2 0 Simple abortion 44 0 0 Therapeutic abortion 1 0 0 Eugenic abortion 0 0 0 Abortion (other) 0 0 0 Intentional injury 7,029 283 43 Involuntary injury due to transit accident 2,231 255 33 Involuntary injury due to medical malpractice 30 2 0 Involuntary injury (other) 1,161 35 5 Aiding and abetting a suicide 805 0 0 Discharging a firearm 293 5 3 Abandonment 112 10 1 Other crimes against persons 65 7 2 Total 13,610 727 163 Source: Attorney General s Office.