Argentina: Supreme Court gradually reasserts itself

UNCLAS BUENOS AIRES 000056

SENSITIVE

SIPDIS

E.O. 12958: N/A
TAGS: PREL PGOV KJUS ELAB SENV PHUM AR
SUBJECT: Argentina: Supreme Court gradually reasserts itself


1. (SBU) SUMMARY. Although Argentina's overall court system is
still perceived as inordinately slow and ineffective, the Supreme
Court gained considerable ground in 2008. By rendering
politically-sensitive judgments in leading cases or mandating
executive branch action in some areas, Argentina's Supreme Court
recovered some prestige and institutional influence this last year.
It consolidated its standing as the head of a more independent
judicial body. Among its most notable rulings were a decision in
favor of plural union representation and a mandate for environmental
mitigation actions. END SUMMARY.

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Justices at Work
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2. (SBU) While the bulk of Argentina's judicial system remains
hampered by inordinate delays, procedural logjams, changes of
judges, inadequate administrative support, and general inefficiency,
Argentina's Supreme Court of Justice was unusually active in 2008.
Legal scholars and NGO representatives agree that the Court
recovered a traditional institutional role in the checks and
balances system that it had not been exercising properly for years.
Adrian Ventura, who covers the judicial beat in newspaper of record
"La Nacion," noted that while the overall court system still had low
approval rating ratings in public opinion polls, the Supreme Court
was the public institution that had gained the most ground in 2008.
By rendering a number of politically-sensitive judgments and making
recommendations to other branches of government (and seemingly
reaching beyond its judicial purview to do so),the Supreme Court
re-emerged as a political actor in domestic affairs.

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Independence as a Standard
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3. (SBU) The Supreme Court showed independence from the executive
and legislative branches, and its decisions at times clashed with
ruling-party expectations. In the year's biggest political drama --
the March-July conflict between the Kirchner administration and the
agricultural sector over increased export duties on soy and other
products -- the Court induced the GOA to submit its decree to
Congress for approval, leading to the dramatic July 17 tie-breaking
vote by Vice President Cobos against the government proposal.


4. (U) In April, the Court ruled against the Chamber of Deputies'
decision not to admit Deputy-elect Luis Patti to the Chamber over
allegations of "moral incapacity." At the time, there were ongoing
legal investigations into Patti's purported participation in crimes
against humanity during the military dictatorship (1976-1983),but
the proceedings were at an early stage. The Court determined that
the Chamber of Deputies had acted unconstitutionally and violated
its own rules by preventing an "innocent until proven guilty"
deputy-elect from taking his seat.


5. (U) A decision in July decreed the National Environmental
Secretary and President of the Matanza-Riachuelo basin -- a highly
contaminated area spreading out of Buenos Aires City and some
districts of the Buenos Aires province -- to be personally liable
for any delays in decontamination efforts in the area. It also
tasked respective authorities with specific duties and deadlines to
address pollution.


6. (SBU) A November decision on freedom of association was
particularly sensitive, as it represented a threat to the
monopolistic model of union representation in Argentina that has
prevailed for more than 60 years and is the traditional support base
for the Peronist movement. The Court ruled for freedom of
association, and declared Article 41 of the Trade Unions Law
unconstitutional, upholding the right of workers' unions that lack
official legal recognition to elect their own delegates. The ruling
caused deep concern among the main leaders of the recognized
Workers' General Confederation (CGT),while it encouraged the
non-official Argentine Workers' Central (CTA) to resume its fight
for legal recognition.


7. (SBU) In early December, the Supreme Court rejected the automatic
release of 60 children detained in a Juvenile Detention Center, in
part due to fears over their safety from corrupt police officers if
released early. Subsequent statements by some Justices explained
that this decision sought to protect minors against police brutality
and death or forced criminal activity had they been freed. Although
the Supreme Court acknowledged that Argentina's current juvenile
criminal system did not comply with Argentina's commitments under
several international conventions, it ratified the need for the
legislative branch to amend the law and bring it in line with
international standards providing greater protection for children.


8. (SBU) Addressing dissatisfaction with the very limited progress
regarding cases for human rights violations during the military
dictatorship (in which courts have resolved only 12 out of almost
800 cases, according to Supreme Court's statistics),the superior
tribunal ordered federal courts to accelerate proceedings. It urged
the Council of Magistrates to speed up the selection of candidates
to the judicial bench and to allocate more financial resources to
the judiciary. Likewise, the Court recommended the executive and
legislative branches reform the criminal procedural laws to expedite
complex cases and ease the judges' work. The Supreme Court's
decision followed an appellate court's release of several
individuals accused of human rights violations. The appellate court
ruled that they had been in pre-trial detention for more than the
maximum legal limit of two years. After the President and human
rights activists publicly criticized this decision, a prosecutor
appealed the decision, and the two most notorious defendants,
Alfredo Astiz and Jorge "Tigre" Acosta, remain incarcerated pending
the appeal.

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Actions, More than Words
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9. (SBU) The Supreme Court also addressed issues of public interest
by creating specialized offices. In an attempt to expand access to
justice, the Supreme Court established the Office of Domestic
Violence in September. The office offers a multi-professional
approach for victims of domestic violence, who can seek assistance
and later file complaints, if necessary. The office, which reports
directly to the superior tribunal, is intended to be available 24
hours a day throughout the year, but as a pilot project it only
assists victims in the Buenos Aires City.

10. (SBU) In late December, when the Supreme Court addressed the
issue of the slow pace in cases of crimes against humanity, it
created a Superintendent's Office to monitor ongoing human rights
cases, which could request information of judges and provide advice
to speed up proceedings. Following this announcement, the President
Pro-Tempore of the Senate indicated the Senate will be considering a
bill to expedite human rights cases after the January recess.

11. (SBU) As the judiciary in general is swamped by Argentina's high
levels of litigation, the Supreme Court sent two notes to the
Justice Minister in July and August requesting the creation of two
new oral federal tribunals and the amendment of a law to limit
appellate motions only to cases involving serious crimes. Thus far,
the executive branch has not responded to the Supreme Court's
request.

12. (SBU) To make judicial issues more easily accessible to the
public, the Supreme Court re-designed its website to facilitate the
search for cases and accessibility to statistics across the court
system. The Supreme Court also created a technical experts team to
propose and implement measures to improve judicial management. The
team was able to advance several initiatives aimed at reducing
time-consuming administrative activities by replacing them with
electronic summoning or the use of electronic communications by law
enforcement agencies to testify in cases, as well as facilitating
information-sharing between the Electoral Court and ordinary and
federal civil, commercial, criminal, labor and social security
courts.
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The New Year Brings Politically-Sensitive Cases
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13. (SBU) Following the January recess, the Court will analyze a
number of politically-sensitive cases that threaten to raise
tensions between the executive and the judicial branches: the
legality of the 2006 legislative reform to the Council of
Magistrates sponsored by President and then-Senator Cristina
Fernandez de Kirchner; a determination of the limits on the
president's authority to issue necessary and urgent decrees; the
legality of the executive branch's so-called "superpowers;" and a
decision on the decriminalization of drug possession.

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Comment
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14. (SBU) Legal scholars are generally in agreement in applauding
the efforts of the Supreme Court during the year to establish a more
robust institutional role after a long period of judicial passivity.
Supreme Court president Ricardo Lorenzetti deserves (and gets) much
credit for his moderate and responsible leadership of the court.
Ultimately, former president Nestor Kirchner also deserves much
credit for the current Supreme Court constellation, a vast
improvement over the line-up that was in place before he overhauled
the Court in 2004.


15. (SBU) Although the Supreme Court has made much progress, the
rest of the judicial system remains slow and ineffective, in large
part due to remnants of the inquisitorial criminal justice system
used in federal and many provincial courts. The Ministry of Justice
is working on a proposal for penal reform. Judges have broad
discretion as to whether and how to pursue investigations,
contributing to a public perception that many decisions were
arbitrary. There are more allegations of corruption and political
influence in the judiciary in the provinces than in Buenos Aires.

WAYNE