Features - Guide to the Argentine Executive, Legislative and Judicial System

Dr. Ernesto Nicolás Kozameh, Prof. Eng. Julio O. Trajtenberg, C.P. Nicolás Kozameh Jr., Ezequiel Trajtenberg

Ernesto Nicolás Kozameh is the President of the Superior Court of Justice of the Province of Santiago del Estero and Vice-President of the Federal Meeting Board of Courts of Justice of the R. Argentina. 

Professor Engineer Julio Trajtenberg is the Adviser in computer sciences of the Superior Court of Justice of Santiago del Estero, Computer Adviser of the Federal Meeting Board of Courts of Justice of the Argentina and Executive Coordinator of the National Juridical agreement of electronic communications.

C.P. Nicolás Kozameh is a distinguished professional of the economic sciences finishing his Law Science studies.

Ezequiel Trajtenberg is a prominent student of Law Sciences at the Catholic University of Córdoba.


Table of Contents

Basic Structure of the Argentine Legal System
Government Structure
Types of Legislation
The Court System
Civil Forum
Criminal Forum
Labor Forum
Commercial and Administrative Issues
Justice in the Federal Capital
Appointment of Judges
Tendencies in Justice Administration
Legislation, Jurisprudence and Doctrine Web Sites
Provinces Judicial Powers
Miscellaneous Legal Web Sites

Basic Structure of the Argentine Legal System

The Republic of Argentina (República Argentina) is ruled by a National Constitution (Constitución de la Nación Argentina). This Constitution states that Argentina is a federal country with three levels of state – federal, provincial and local -- and it is based on the republican doctrine of the division of powers into three different areas: executive, legislative and judicial.

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Government Structure

The federal state is ruled by a presidential system (Presidencia de la Nación), in which the President (Mr. Fernando De La Rúa, until 2003) is the head of both the state and the federal government. The President is elected by direct universal suffrage every four years (amendment to the Constitution, passed by Congress in 1994). The President appoints his ministers and the Chief of Staff, and is involved in all administrative issues, in addition to being politically responsible for the government.1

A Congress controls the Legislative Power, which is in charge of passing the laws. It consists of a Senate and a House of Representatives (Cámara de Diputados). On the other hand, the President has the right to veto the laws passed by Congress unless it insists with a special majority.2

The legislative power is complemented by two special bodies, or offices, with specific powers: the Auditor General, which has the power to control the financial statements and decisions of the government, and the Ombudsman (the people’s defendant), in charge of protecting and defending human rights and other rights recognized by the Constitution.

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Types of Legislation

A strict hierarchy of norms rules Argentina. The highest one is the National Constitution, which is divided into two parts, preceded by a declaration of purposes and goals called Preamble. The first part includes the declaration of civil, social and political rights and guaranties whereas the second one deals with the organization the federal government. On a lower level of hierarchy are international agreements and the federal laws, with and internal hierarchy according to the issue they rule.

Bills in it process: web sites

  • Proyectos de leyes en trámite: Cámara de Diputados
  • Proyectos de leyes en trámite: Cámara de Senadores

Besides, the Executive Branch has the right to enact orders or regulations called decrees (when issued by the President) and resolutions (when issued by other members of the executive branch).

Under the National Constitution, each province has its own legislation, including provincial constitutions, laws and resolutions. However, although these issues are reserved to the Provinces, the local legislation cannot violate any of the individual rights protected by the National Constitution.

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The Court System

Due to the federal system of government, there are two bodies for the administration of justice: the National Judicial Power and the judicial powers of the provinces. It should be noticed than the singular is used in the first case while the plural applies to the latter, for there are as many provincial judicial powers as there are provinces in the country. The territory of each province is the jurisdiction of each provincial judicial power, while the National Judicial Power has jurisdiction over the entire territory of the Argentine Republic and the Federal Capital. Further details about this district will be provided later, given its brand new organization. A first conclusion can be drawn from the preceding paragraphs: From the territorial point of view, the Provincial and the Federal Justice overlap in each province.

This issue suggests the immediate need to state precisely the competence and jurisdiction of each judicial system. Due to space restrictions, only the relevant aspects will be discussed in this paper in order to provide only a minimal orientation to the subject. The federal order is the exception. This is the reason why such a denomination (exception jurisdiction) is widely used in the procedural environment, and is designed to take care of all those cases involving the National Government or any of its agencies, or conflicts between neighboring provinces, as a general principle. In special cases, it handles those situations where the law has attributed this exceptional jurisdiction, such as crimes related to drugs and narcotics. With the federal order thus defined as an exception, the provincial judicial powers are therefore competent in all other matters or conflicts occurring within each respective provincial territory, whose instances and jurisdictions are discussed below.

Depending on the people and the issues involved in a given case, either a federal or an ordinary court may act. For instance, matters involving foreign people or companies are dealt with in a federal court.

Both federal and ordinary courts are organized following a strict hierarchy.

Both orders recognize a tribunal that is common and superior, the Supreme Court of Justice, consisting of nine members (“ministers”), appointed by the Nation’s President and approved by the Senate. Its ministers elect a President of the Supreme Court periodically. Although the Judicial Power of the Nation is vested in the Supreme Court, which is, under extraordinary circumstances, the ultimate tribunal or instance with regards to provincial justice, because the provinces are autonomous, the administrative head and ultimate instance in each province is the corresponding provincial Superior Tribunal or Supreme Court.

In addition to dealing with those exceptional matters falling under its original competence (such as international conflicts or conflicts involving two or more provinces), and being the ultimate or supreme instance of Federal Justice, through the so-called extraordinary recourse, the Nation’s Supreme Court controls legality, even in those matters which are dealt with by provincial justice, when, in the final instance of the matter, certain exceptional conditions are met which are stated by law as constituting a “federal case”, when any point of the National Constitution has been affected during the process or by questionable decision.

In the federal order, the Attorney General and the Official Defender are the heads of the Public Ministry. Under their authority are the respective prosecutors and defenders who work on the lower instances and are also in charge of controlling legality. Their main responsibility of the Attorney General is to act as the plaintiff of the Federal State and defender of its interests, while that of the Official Defender is to guaranty, with his presence, the right of every citizen to his/her defense, and to assume effectively the defense when the law so states (e.g., minors or handicapped) or when a citizen so requests.

Under the Supreme Court, there are specialized courts depending on the nature of the issue, constituting groups called forums (“fueros”). The most representative of them are the civil forum and the criminal forum, and also the labor forum, administrative forum, family forum, commercial forum, etc. These courts are distributed all along the country, and each court has it own area of jurisdiction if the case corresponds to the federal justice.

The Civil Forum deals with civil issues. A civil trial is carried out in the presence of a judge, who is the first to make a decision on the matter. If any of the parties (or even both of them) disagrees with the decision, he/she can appeal to a second-level court, called a Cámara. These Cámaras are made up of three judges who have to analyze the first decision and come to a conclusion by majority, which can be the same or different from the first one. A verdict given by the Cámara is almost definitive, except under particular situations that allow a party to appeal to the Supreme Court for a revision.

On the other hand, criminal matters are decided in the Criminal Forum, which is divided into two stages. In the first one, called the instructional stage, a single judge decides whether there are enough reasons and evidence so that the Criminal Cámara can judge a person. If he decides so, the most important part of the trial begins, and the three members of this Cámara (three judges, as in the Civil Forum) have to decide whether the defendant is guilty or not guilty of the charges. Trials in the Criminal Forum are mostly oral, giving importance to a fast and fair decision.

Based on the fact that the provinces are autonomous, each provincial state has organized its own judicial system, generally similar in both structure and procedure, which is described bellow. In each province there is a Supreme Court or a Superior Tribunal of Justice, head of the provincial Judicial Power, which is a collegiate tribunal consisting of three to nine members, depending on the province. In each court there is a prosecutor, who, in some provinces, has achieved certain degree of functional autonomy in comparison with the rest of the Judicial Power. In those cases, the judicial police is under his authority. In today’s Argentine legal system there is a trend to provide the Public Ministry with certain autonomy and to have some areas of the police under the authority of the Judicial Power. The judicial police is thus constituted.

Three forums or courts are generally found in the provinces: civil, criminal, and labor. The major features of each type are described below.

Civil Forum

Each province has several first-instance judges, mostly headquartered in the provincial capital, and some in the major cities. In some provinces there is a specialization of the civil forum, which results in special judges, such as family, succession, commerce, minors, bankruptcy, etc., each taking care of his/her respective area. The rulings of the civil judges can be appealed to the Civil Courts of Appeal (Cámaras Civiles de Apelación), collegiate tribunals generally following the written system, like the majority of the civil forum. The decisions of these courts can only be appealed to the Provincial Supreme Court or Superior Tribunal, through an extraordinary recourse known as casación (revocation). Such procedure does nor constitute a third instance but a control of legality, and it is only allowed exceptionally when the forms have been violated or affected, or when there has been flagrant.

Civil Web Sites

Argentine Civil Code

Consumers' Rights

Family and Divorce Rights

Patents

Criminal Forum

It usually exhibits a similar structure, with first-instance judges, known as criminal or instruction judges, most of whom have their headquarters in the province’s capital, and some in other cities. The prosecutor is particularly relevant in this forum, especially in those provinces where he is no longer an assistant to the judge conducting the investigation but the actual instructor of the case. The judge has then become the director of the criminal process and a guaranty judge. In almost all provinces, either the judge or the prosecutor, or both carry out the criminal instruction, and the trial – oral and public -- takes place before a collegiate tribunal. Such tribunals, called Criminal Courts (Cámaras del Crimen), have a Court Prosecutor (Fiscal de Cámara) in charge of maintaining the accusations coming from the Instruction Judge or the Criminal Judge. Usually, the decisions of the Criminal Courts can only be appealed to the Provincial Supreme Court or Superior Tribunal through the process of casación or revocation.

Web Sites

Labor Forum

This court deals with matters related to working relationships. In trying to protect the worker, the Argentine legal system not only has created a special court to take care of labor conflicts but also a guaranty system with presumptions in favor of the worker. A previous conciliatory stage is generally followed in the provinces, before a judge, who is also in charge of conducting the process and receiving the evidence should the conciliation fail. Most labor forums have adopted the oral trial system, with collegiate or non-collegiate tribunals in charge of dictating the sentence after the oral process. As in the preceding case, its decisions can be appealed, through casación, to the Provincial Supreme Court or Superior Tribunal of Justice. It should be pointed out that in each provincial jurisdiction, official defendants or legal advisors are provided free of charge to guarantee legal assistance to minors, handicapped, or people without financial resources.

Web Sites

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Commercial and Administrative Issues

Web Sites

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Justice in the Federal Capital

The population density and the special nature of the Federal Capital, headquarters of the National Government, as well as the importance of that district in the social, cultural, institutional, and economic life of the country, has caused a significant change. Buenos Aires is no longer considered the mere seat of the Federal Government, with its mayor dependent upon and appointed by the Nation’s President. When the National Constitution was amended in 1994, the Constitution of the Autonomous Government of the City of Buenos Aires was established, whereby the Federal Capital acquired the status of an autonomous state, similar to that of the provinces, and the citizens of Buenos Aires gained the right to elect its authorities (“Chief of Government” and legislators) by direct suffrage. As such, it enjoys a judicial system similar to those described for the provinces, with a Superior Tribunal of Justice as the maximum authority. The ordinary (nonfederal) justice dealing with common or ordinary (nonfederal) matters occurring within the territory of the Federal Capital, under the Nation’s Judicial Power, is currently being transferred to the domain of the Federal Capital’s judicial system.

Web Sites

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Appointment of Judges

Depending on their hierarchy, judges are appointed by different mechanisms.

The President has the right to appoint the members of the Supreme Court of Justice when there is a vacancy. Nevertheless, the Senate has to agree with his decision. The executive and the legislative branches take part in the appointment of the third one.

On the other hand, judges of lower courts are proposed to the Senate by a specific body called the Council of Judges (“Consejo de la Magistratura”) in a kind of nomination of three candidates. This Council, created by the Constitution, is made up of members of Congress, the Supreme Court, and professional organizations.

The Council evaluates applicants to the courts so that it can make the proposal to the Senate with an objective basis.

The existence of such a multilateral body, involving the representation of different sectors, with representatives of the Judicial Power, legislators, and lawyers elected by their peers in the respective jurisdiction, plus an objective method of evaluation, provides a guaranty of justice in the appointments, which logically ensures independence when judging.

Judges last in their positions until they decide to resign, any authority cannot remove them. However, under certain circumstances, stated by the Constitution, they can be removed from office. For instance, after committing a strong fault in their duty, or committing any crime. In that case, they are judged by special courts: the whole Senate, in case of impeachment of a member of the Supreme Court, or an special jury, in case of simple judges or members of a Cámara-. This process ensures their right to defense. If the Senate or the Jury decides that the judge is guilty, he/she is removed from his/her position and can be judged as an ordinary citizen by the ordinary or federal courts. Otherwise, if he/she is found not guilty, he remains in his/her position.

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Tendencies in Justice Administration

Argentina statistics have always shown a high level of litigation, which means that legal matters tend to be finally solved in court. That characteristic implies a slow (usually late) solution of problems, involving higher costs than planned.

However, the situation has begun to change in the last three or four years. As a matter of fact, there is a federal law called “mediation law”, which requires the parties involved to undergo a stage of negotiation before taking the case to court.

Therefore, individual arrangements are often reached, resulting in lower legal costs and better use of resources.

Others Websites

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Legislation, Jurisprudence and Doctrine Web Sites

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Provinces Judicial Powers

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Miscellaneous Legal Sites

Law Libraries

Human Rights

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Footnotes

1 http://www.georgetown.edu/pdba/Executive/Argentina/links.html  <back to text>
2 http://www.gobiernoelectronico.ar/sitio/poderes/poder_legislativo/poder_legislativo.html; http://www.presidenciahcdn.gov.ar/rafaelpascual/legnac.htm  <back to text>