By Andrés Harfuch[1]and Juan Sebastián Lloret[2]
Trial by jury was guaranteed in Argentina since 1853, when three different sections of our country’s constitution established jury trial not only for criminal trials but also for other branches of the law. As with every Constitution of the Latin American countries during the XIX century, it was strongly inspired by the USA Constitution of 1787 and the ideals of the French Revolution, where trial by jury was a main feature of the Judicial Power.
Unfortunately, trial by jury laid dormant in Argentina for more than a century. But after 160 long years of non-compliance with the Argentine Constitution`s triple trial by jury mandate, since 2011 several provinces, including the largest one, Buenos Aires, have successfully introduced jury trials for criminal cases and that number has been growing.
This cultural challenge was mainly possible thanks to two renowned nongovernmental organizations, to which we belong. The Institute of Comparative Studies in Criminal and Social Sciences (INECIP) and the Argentine Association of Trial by Jury (AAJJ), were formed by prestigious legal scholars, judges, attorneys, law professors and students. They have led the transformation of the Judiciary -not only in Argentina, but also in all of Latin America- from inquisitorial to adversarial approaches and to public trials.
INECIP and AAJJ´s historical roots can be found in the resurgence of Latin American democracy in the 1980´s, after decades of bloody military dictatorships and their aftermath of thousands of deaths and disappearances. It was a distressing period for Latin America and a time of uncertainty. At the political level, the new democracies were extremely fragile, beset by serious economic problems, unresolved social tensions, and governments shadowed by still powerful former dictators. At the judicial level, inquisitorial procedures remained fully in place. All Latin American judicial systems – heirs to the medieval culture of civil law in Spain, France and Portugal – were characterized by secrecy, written procedures, obstructionist formalities, lack of transparency, no public trials, endless delays, and an unchecked concentration of power in the judge.
In the 20th century, the judicial systems of Latin America functioned as in the feudal era, threatening the development of the nascent republican democracies. In this context, INECIP and AAJJ embarked on a mission to radically transform Latin American judicial systems, starting with criminal justice. Their aim was to consolidate a democratic judiciary that respects the rights of defendants and the public through oral and public trials and the implementation of an adversarial and accusatory system.
Eradicating the inquisitorial approach from the legal systems of Argentina and Latin America was (and still is) an enormous enterprise. It is important to recognize how dramatic this change has been and how much effort has been invested to make the abstract idea a reality. The most outstanding development that INECIP and AAJJ were able to foster in the reform process has occurred in Argentina: the development of trial by jury in criminal matters, embedded in a newly constructed adversary system with a democratic judiciary. Against the backdrop of an initially hostile legal culture, jury trials for criminal cases today flourish in Argentina and are attracting attention even the US. Prestigious American professors, like Valerie Hans, Shari Diamond, John Gastil and Paula Hannaford-Agor have come multiple times and are conducting empirical research on Argentine juries.
Argentina was able to consolidate the trial by jury of its Constitution with almost all the characteristics of common law: twelve jurors, voir dire with peremptories, legal instructions from the judge, a unanimous verdict in many jurisdictions, a final verdict and a hung jury. But it also established Argentina’s own unique characteristics for the jury: gender parity (every Argentine jury has equal numbers of men and women) and the requirement of indigenous participation in the panel of twelve jurors.
Currently, nine provinces have jury trials for criminal cases. Buenos Aires, Neuquén, Chaco, Río Negro, and Mendoza are operating jury systems while Entre Ríos, San Juan, and Chubut will implement them this year. Likewise, in the provinces of Santa Fe, Jujuy and Santa Cruz, jury bills are being debated in the local legislatures.
Thanks to the resounding success of the criminal jury in the country, INECIP and AAJJ started phase two of the judicial reform: the civil jury. We have always envisioned the civil jury – at least for some important cases like class actions, collective consumers’ rights, and some tort cases – as the only proceeding that could guarantee a fair and public trial for civil matters.
As in every civil law country (even in continental Europe), civil proceedings have no hearings whatsoever. There has never been a public civil trial in Argentina, with opening and closing statements, direct and cross examination of witnesses and experts, and the presence of public in the courtroom. The whole process is by writing and conducted solely by a bench judge with overwhelming powers.
There was a remarkable development in Mendoza in April. Governor Rodolfo Suárez gave his first public address before a joint session of the Mendoza Legislature. There he announced that he plans to implement trial by jury in civil cases with the aim of expanding citizen participation, starting with the acts of corruption due to the extinction of the civil domain. So cases such as a plaintiff suing corrupt ex-public officials for irregularities in the delivery of social housing could be decided by a twelve person, unanimous civil jury.
It is an extraordinary innovation that deserves full support and that will put Mendoza and Argentina at the forefront of Latin America. If we do succeed, it is going to be a major cultural change: a real turning point for civil procedure. Despite all obstacles and against all odds, Argentina is closer than ever to achieve the civil jury trials our Framers dreamt of so many years ago.
***
Contact: www.juicioporjurados.org; email (aajj@juicioporjurados.org)
[1] PhD, Prof. Law School, University of Buenos Aires; Dir. INECIP´s Jury Center; AAJJ´s VP.
[2] Prof. Law School, University of Salta; INECIP.