On September 12, the Province of Santa Fe, Argentina, enacted its new Constitution following a two-month deliberative process. The text represents a landmark in the provincial legal framework by expressly enshrining rights connected to trial by jury for every matter of law, digital environments, personal data protection, and artificial intelligence.
With the swearing-in of the Constitution, the new Magna Carta of Santa Fe province came into effect. It establishes for posterity the adversarial and accusatory system, full orality, and trial by jury for criminal, civil and all jurisdictions.
The section on rights and individual guarantees was drafted as follows:
ARTICLE 14: In criminal matters, the accusatory, oral and public process is established. The law determines the criminal cases that must be tried by juries in its classic form; and promotes the progressive implementation of trial by jury and orality in every other matters of law, under the same conditions as the criminal jury.
This is a step of immense institutional significance for Argentine constitutional law. For the first time, it is expressly established in an Argentine Constitution what should be understood as trial by jury in the three sections of the Federal Constitution of 1853. No other than the adversarial system with a classic jury, which has reigned for centuries in common law and has been adopted by Argentine provinces since 2011.
What we mean by "classic jury" is the Anglo-Saxon "trial by jury", as opposed to the continental European mixed court. That´s to say, a court of twelve citizens presided over by a judge who will instruct them on the law, a voir dire with peremptories and a general, unanimous, final verdict, which allows only one new trial if the jury hangs.
What is most striking is that the new Constitution of Santa Fe went beyond the criminal jurisdiction and extended the classic jury trial with full orality to every matter of law, including civil, labor, commercial and administrative matters: “under the same conditions as the criminal jury.”
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Justices of the State Supreme Court Jorge Baclini
y Daniel Erbetta, who championed the jury in Santa Fe |
The decisive push came from the Supreme Court of Justice of Santa Fe. Justices Daniel Erbetta and Jorge Baclini were summoned by the Convention and repeatedly insisted on giving trial by jury in its classic form a strong constitutional protection, in the same way as the leading case "
Canales" of the Federal Supreme Court
(see) and the 5th, 6th and 7th Amendments of the US Constitution.
This is a major triumph for democracy, individual freedoms and the Republic, one that would make the great scholars of all time proud: Carrara, Beccaria, Montesquieu, Filangieri, Mittermaier, Blackstone, Madison, Jefferson, Hamilton and Livingston.
With this decision, Santa Fe concludes a process of transformation in only 15 years that took it from being the province with the worst inquisitorial procedure in Latin America to become the emblem of modern republican constitutionalism in Argentina. The new Constitution crowns that odyssey: it grants unbeatable constitutional protection to the classic trial by jury, the accusatory and adversarial system and full orality in all jurisdictions.
Given the enormous weight of the province of Santa Fe—one of Argentina’s four major provinces and the cradle of the National Constitution of 1853 — it is historic that it has buried forever the written inquisitorial system and the mixed jury.
Argentina is leaving behind the hybrid model inherited from Spain and France that sought to perpetuate inquisitorial written procedures with no juries nor public hearings.
The mixed court and the dossier are on their way to become relics fit for the Museum of the Inquisition. The only constitutional model is the adversary and trial by jury. This marks the beginning of the end for written proceedings in civil and commercial matters.
What better way to welcome the upcoming International Conference on the Civil Jury, to be held October 8–9 at the Bar Association of Buenos Aires, organized by the AAJJ and the prestigious U.S. institution American Board of Trial Advocates (ABOTA).
The AAJJ warmly congratulates the Province of Santa Fe for this exceptional achievement, which will elevate the jury system to even greater dimensions in Argentina and Latin America.
