sábado, 29 de julio de 2017

BUENOS AIRES HIGH COURT OF APPEALS: our constitutional jury model consists of a twelve person jury with a unanimous and final verdict.

BA High Court ofAppeals
The High Court of Appeals of the Province of Buenos Aires has rendered a decision that will most certainly be a topic of discussion for a long time. Some judicial decisions have achieved an enduring fame due to the influence they have had in the courts, law schools, and other academic areas. We could not have foreseen the outcome of this recent case, but it is now indisputable that “Ruppel” has the potential to become a milestone in Argentina’s trial by jury jurisprudence.

Following the tradition of the Supreme Courts of the anglosaxon world and the European Court of Human Rights, “Ruppel” possesses the immeasurable value of precisely articulating the content of the constitutional guarantee of trial by jury and the constitutional elements that compose it.  The decision—with leading vote by J. Daniel Carral and Ricardo Maidana concurring—has hightened significance as it was rendered by one of the highest criminal courts in the country.

J. Daniel Carral

Trial by jury, according to the Ruppel case, is not just any kind of procedure with citizen participation. The components of trial by jury appear in the leading constitutions of the world, which are the product of centuries of evolution during the English Medieval Age and the American Modern Age, and were thus transferred into the Latin American Constitutions of the XIX century. It consists of a jury of 12 people, with legal instructions given by the judge, a unanimous verdict, a new trial if unanimity is not reached and a final verdict that may only be challenged on appeal by the convicted person.

These are the same words that the Supreme Court of Justice of the United States used back in 1930, in their famous “Patton vs. United States” decision (281 U.S. 276), which is the essential basis of “Ruppel”.

The difference is that the U.S. had an ancient jury tradition when “Patton” was decided, whereas Argentina only began to implement its jury trial system in 2014, after a 164-year delay in its establishment.

J, Ricardo Maidana

These elements of the right to trial by jury (articles 24 and 118 of our Constitution) are so important that the BA High Court of Appeals reminds us that the justices of the U.S. Supreme Court asserted that it was beyond the court’s power to alter them, as that would involve modifying the Constitution itself.

That is the important political message that “Ruppel” sends to Argentina and Latin America’s courts. Given that trial by jury is a constitutional guarantee that protects individuals, the essential elements that compose it are nothing less than a panel of 12 jurors, with legal instructions given by the judge, a voir dire hearing to select an impartial jury, a unanimous verdict with a new trial in the event unanimity is not reached and a final acquittal verdict, unable to be challenged by the prosecution.

This alone would be enough to make this case famous: its virtue of clearly defining the direction in which Argentina’s jury trial legislation must head. This gives “Ruppel” great importance in the days and years to come. However, the “Ruppel” decision presented an opportunity to reiterate another resounding political message: with regards to the jury, there is no turning back.

The BA High Court had already used this joyful expression in “Mazzón” back in 2015. Only that, this time, like any good decision that reflects the times, it recognizes the successful performance of more than 150 jury trials in the Province of Buenos Aires and the enormous national impact that the verdict of  the “Farré” case had: “What has been even more important to our society is the increase in trust in the jury system and the sensation –this time, shared by all- that we have embarked on a path towards the strengthening of justice” says the BA High Court.


Highlighted quotes of “Ruppel


1)     Having established the constitutional guarantee of trial by jury, this progress – aimed at satisfying an old Constitutional obligation – has gained such resolve that, within the rule of law, it is inconceivable to think about going back.

2)     Just as our constitutional model pointed towards a system of popular participation inspired by the jury tradition of the common law, especially by the model arising out of the United States of America´s Constitution, the solidification of our system of fundamental rights seeks to clarify the fundamental cornerstones of its strength which, regarding trial by jury, rests on these unbreakable premises: (i) that the jury should consist of twelve persons, six women and six men, no more no less; (ii) that the trial should be in the presence of and under the supervision of a judge with the power to instruct the jurors on the constitutional framework, the application of the law, and the rules of evidence  (iii) a final verdict with the option to appeal only for the defendant, and (iv) although only partially regulated by the court, the aspiration of a unanimous verdict.

3) That was the line, from the important precedent “Patton vs. United States” (281 U.S.276 del 14-04-1930) that definitively marked the history of practically the last century regarding the model that we in Argentina used as our constitutional source and that in our recent experience, appears as a minimum standard for providing the best development of this right to trial by jury.

4) This is not a matter of random procedural elements that could be easily replaced by others. These are elements that were developed and perfected after centuries of evolution that included the English Middle Age and the Modern Age of England and the United States. Since then, these elements have been crystallized in constitutional norms as the key components of the guarantee of trial by jury, so much so that the Patton Supreme Court justices affirmed that altering them was beyond their power, as that would involve modifying the Constitution.

5) In that way, the trial by jury was developed in articles 24 and 118 of our Constitution. Just like every constitutional guarantee possesses its own dogmatic and essential elements that compose it (Cfr. Maier, Julio;  Derecho Procesal Penal, Tomo I, Fundamentos, Capítulo II, § 6to, Editores Del Puerto, 2da edición, Bs.As., 2004) the key components of the guarantee of the jury trial in our Constitution are the twelve jurors, the legal instructions and supervision of the judge presiding over the trial, the unanimous verdict with the possibility of a new trial if unanimity is not reached and the finality of the acquittal verdict.

6) As this system has just begun operating, it is logical that the content of this criminal procedural guarantee has still not been widely developed. This, and many other cases ahead, will be the ones that, with the backing of the jurisprudence of countries with a long tradition in this area, will start to trace its path.

Read the complete decision (in Spanish):

- Cámara de Casación Penal de la Provincia de Buenos Aires, Sala I, Causa N° 81504 ("RUPPEL, Néstor Fabián s/ recurso de casación"), 11/07/17 [ver]