viernes, 22 de septiembre de 2017

BUENOS AIRES’ HIGH COURT OF APPEALS CONFIRMED THE CONSTITUTIONALITY OF THE RULE THAT FORBIDS THE PRIVATE PROSECUTOR FROM APPEALING A NOT GUILTY VERDICT

Buenos Aires High Court of Appeals

In yet another remarkable decision, the Buenos Aires High Court of Appeals ruled against the appeal of a private prosecutor, who requested that the section of the jury trial law -that forbids both the private or public prosecutor from appealing a not guilty verdict rendered by a jury- should be deemed as unconstitutional.

The extraordinary leading vote belongs to Justice Jorge Celesia, with Judge Martín Ordoqui concurring. Due to its solidity, the Bray-Paredes case is an unparalleled precedent. It is undoubtedly destined to make history in Argentina´s jurisprudence on trial by jury, because of its conclusions regarding double jeopardy clause and, above all, because it establishes precisely the rights granted to victims by the international covenants signed by our country.

Judge Jorge Celesia

As any other civil law country, Argentina has developed a strong tradition of giving the prosecutors extensive rights to appeal an acquittal. Trial by jury is the first milestone that prevents the prosecution from doing so. At the same time, the civil law countries have developed another powerful institution: the private prosecutor, the victim´s attorney, that can try the case along with the public prosecutor.
In this case, the private prosecutor claimed that, because of not being part of the State, he deserves a different approach on the matter.

We have said it many times before: a good part of the success of any trial by jury system relies mostly on the decisions made by the trial judge and the appellate court, to promote a normal and proper functioning of the system, preserving it from the alteration of any of its essential features.

Bray-Paredes is within this fundamental body of BA High Court’s rulings that are making history in the civil law and being admired in common law countries. Allowing an appeal against an acquittal –even arguing that it is on behalf of the victim and therefore a matter that should be decided by a court- is a renewal of the inquisitive philosophy, besides being also a way of undermining the jury system.

Judge Martín Ordoqui


The appeal was introduced by Graciela Cortázar, Public Defender of Bahia Blanca and a member of the AAJJ. In this case, she was acting as the private prosecutor for the victim. Her argument was that Argentina -in compliance with section 25 of the American Convention on Human Rights- is required to provide a judicial remedy for the victim.

The Buenos Aires High Court of Appeal, relying on the opinion of the Inter-American Commission on Human Rights from 1987 held that “the simple and prompt appeal” mentioned in section 25 of the American Convention on Human Rights is “a quick remedy for legal protection (amparo) or habeas corpus”. We can’t confuse access to justice and protection of the victim with the right to appeal a verdict. Those are different matters which are regulated differently and independently by the international treaties.

Bray-Paredes is the first precedent in Argentina that expressly settles the matter of whether there are any differences between the private and public prosecutor when appealing a not guilty verdict rendered by a jury. The question, in other words, is whether the private prosecutor has a special status –as the representative of the victim- that justifies the deviation from the long standing double jeopardy clause.

The conclusion of the Bray-Paredes case was divided into two different paths. Given its clarity and brilliance, we proceed to quote:

a) The right of the prosecutor –public or private- to appeal the acquittal of the defendant has no constitutional standing, and;

b) the sovereign nature of the jury decision, which is the raison d’etre of the lack of appeal against its verdict,  has been peacefully recognized for ages in the most solid western democracies of the common law.

The Bray-Paredes case is, in essence, in line with the growing tendency of global jurisprudence to protect the immutability of a not guilty verdict once it has been reached at the end of a fair public trial.

Let’s take a look at the most remarkable paragraphs of the ruling:

# there is no constitutional right for the public or private prosecution appeal of a not guilty verdict

# the right to appeal, is constitutionally granted only against a guilty verdict and only in favor of the defendant.

 # the fact that the new trial by jury system, created by the Law 14.543 in Buenos Aires has established a non-impeachable jury verdict is not at odds with a rule that opposes to the rights to access to justice and judicial protection recognized in the international covenants signed by the Argentinian government, nor with its manifestation to the due process of law established in our Constitution. Our National Supreme Court has repeatedly held that due process requires the defendant to be heard under the legal formalities and it does not depend on the number of courts that the procedural law establishes according to the nature of the matters, e.g: trial courts. appellate courts, etc. (National Supreme Court, Cases: 126:214; 127:167; 223:430, among others).

# The compatibility with international covenants and our constitution of the rules that regulates the appeal in a case decided by jury in the province of Buenos Aires is confirmed if we take into account that the non-impeachable nature of the jury verdict is not only mandatory for the victim or any particular party, but is a proper characteristic of the decision itself founded in the sovereign nature of the body that renders that decision and that has been regulated this way during ages by democratic countries that established this system of justice, countries that are also signatories of these same international treaties, and where the compatibility of these rights and guarantees has never been doubted.

# The jury verdict is a judicial and political decision rendered straight by the Sovereign, which is the reason for the legislative body to consider it as non-impeachable, as it is stated in the trial by jury law, article 371 quarter section 7 “the jury´s verdict is final”.


# the rights of access to justice and judicial protection are recognized by international covenants, under the scope and limits that were already explained. These rights have been fully exercised by the private prosecutor during the course of this procedure.
The non-impeachable nature of the jury verdict does not undermine these constitutionally and conventionally recognized rights.  


Read the full decision:

- Cámara de Casación Penal de la Provincia de Buenos Aires, Sala V, causa Nº 78.302, “BRAY JUAN PABLO Y PAREDES JAVIER MAXIMILIANO S/ RECURSO DE QUEJA (ART. 433 CPP) INTERPUESTO POR EL PARTICULAR DAMNIFICADO”. 12/09/17 [access to the full ruling in Spanish]