BA HIGH COURT OF APPEALS: THE JURY IS THE RULE; BENCH TRIAL THE EXCEPTION

The jury system received weeks ago a tremendous and remarkable endorsement. The Buenos Aires High Court of Appeals has declared unconstitutional article 22 bis in fine of the Provincial Criminal Procedure Code to the extent that it provides that, in the case of a multiple defendants, the jury trial waiver of one defendant operates as a waiver for the rest.

This decision corrected an unavoidable problem in the drafting of that rule, which deprives a person of the “natural judge of the facts (or trier of facts),” which is the jury, through the waiver of that guarantee by a third party.

The ruling, authored by Judge Mario Kohan with Judge Carlos Natiello concurring, has the virtue of going straight to the point and ending the serious problem of infringing on the guarantees of trial by jury and “natural judge” (a concept in Argentina’s Constitution which provides that the law must establish iudges before the act to be judged occurs) that arises from the strict application of the wording of the law.

In addition, the decision reiterates that the constitutional clauses that establish the jury trial have been fully operational in the Province since the enactment of bill N° 14,543 of Judgment by Jurors, and it indicates that a process of progressive implementation has begun and will lead to the expansion of the jury system.

Here are some excerpts from the ruling:

J. Mario Kohan

"... the jury trial is a constitutional mandate that has just begun to be regulated in different jurisdictions. In fact, both the first section of the preceding paragraph of the National Constitution (Article 24) and the second (Article 75, paragraph 12 and Article 118) establish this premise. This last Article, which was taken from Article III, Section 2, subsection 3 of the Constitution of the United States of America, provides that all ordinary criminal proceedings that do not derive from the right of prosecution granted to the House of Representatives will be decided by a jury verdict".

Article 118 of our Constitution clearly establishes an opportunity to be left to the consideration of the legislators of each of the provinces that compose the Republic by stating that:  "All ordinary criminal trials, which do not derive from the right of prosecution granted to the House of Representatives, shall be decided by jury, after this institution is established in the Republic ... " Well, in our province, that moment arrived with the passing of bill N°  14.543, with which the constitutional order has become fully operative in the Province of Buenos Aires. Consequently, the starting point of all analysis must begin with the full validity of the provisions referred to above."

J. Carlos Natiello

"... among the principles contained in Article 1 of the CPP are those of the" natural judge" and the "jury trial," which means that in the cases provided for by the new law there will be a kind of division of labor of judging some criminal offenses that are presided over by a "Natural Judge" and a "Natural Jury", each with differentiated functions, but each with an acknowledgment in the constitutional text "

"... almost all the guarantees contained in our National Constitution are capable of being established through the laws that regulate their exercise. However, there is one that has been expressly regulated in the text of the Constitution and this is none other than that of the Natural Judge in the case of criminal trials, which will be none other than the jury of citizens, with the scope that the local legislature decides.

With what I have said I mean that in matters of criminal prosecution there is a Natural Judge who is the professional judge appointed by law to ensure due process - another guarantee contained in Article 18 of the C.N. - who coexists with the other judge whose intervention becomes necessary in this type of proceeding. This other judge is the jury. That is to say, at this point I can affirm, if I may be permitted, that there is a Judge who is more "natural" than other judges, which is none other than the jury of the people, since their existence no longer depends on a law that recognizes it as such, but its reason for being and its presence is ordered by the National Constitution itself. This seems to be the spirit that has been enshrined in the Magna Carta since its inception in 1853.

"In summary, once the constitutional clause that provides for the implementation of criminal prosecution through juries has been made operative, in the optional system that implements the Buenos Aires procedure, no citizen can be deprived of being tried by that ‘most Natural among the natural Judges, which is the jury of their peers’"

After the declaration of unconstitutionality, the ruling goes further and suggests one of the possible avenues that can be taken, with the current procedural wording, to handle situations such as those of the case at hand: the separate trials provision found in art. 340 CPP:

"Although it is not the ideal solution when it comes to preserving the judicial economy, it is the one that today is most respectful of the different interests in conflict,.in view of the constitutional guarantees at stake and of the progress in the implementation of the institution of jury trial with jury waiver established in the implementing statute, since the objections embody principles of inferior hierarchy than the National Constitution itself. "

But he adds a suggestion to the legislators on the point: "Based on the grounds previously stated, in understanding that in criminal matters the guarantee of the Natural Judge is regulated by the National Constitution itself and not by a lower law, taking into account now the procedural economy that must be ensured in the process, the dilemma related to the coexistence of several accused persons with conflicting interests as to whether they are tried by juries or professional judges must be resolved in favor of the first of the systems, making prevail the intention of the constituent over any other that derives from the local laws"

It should be clarified that the ruling reversed, thus, the erroneous decision of the majority of the Court of Appeals of Mercedes, siding instead with the dissenting vote of Judge Luis Gil Juliani.