There is no doubt that this ruling will be a landmark in Argentine jury trial jurisprudence. It is not just another ruling: the STJER’s support of the finality of jury verdicts, one of the essential characteristics of the jury system, has been absolute and unanimous.
In addition, the ruling recognizes that in Argentina there is "an overwhelming, democratic and republican, pro-jury wave” that grows year after year in the provinces. The following is an exact excerpt from the ruling:
""It should be noted here that the laws establishing juries in the provinces of Chaco, Buenos Aires, San Juan, Mendoza, Neuquén, Río Negro and Chubut have rules similar to those of our Article 89. Thus, the arguments made by the appellants that this is a flaw in the jury system of countries with an Anglo-Saxon tradition -which they remarkably, and wrongly, consider to be antiquated and unwilling to subscribe to norms in accordance with human rights- fall flat in the face of the reality of our country, in which every year, overwhelmingly, more federal territories are incorporated into the democratic and republican jury system. These provinces, I repeat, have rules of appeal similar to ours.”".
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| The Drafters of the Constitution |
This "Cervín" decision by the STJER represents a cultural achievement, as it breaks with the tradition of bilateral appeals, typical of French doctrine and mixed inquisitorial systems before professional judges. Some courts have resisted abandoning the traditional of bilateral appeals, despite the incipient legal doctrine (El precedente Alvarado/Sandoval CSJN)and as mandated by international human rights treaties.
The jury, here and throughout the world, enshrines and protects the finality of the acquittal verdicts rendered by the People. Judge Daniel Carubia, in one of the most prominent paragraphs of his opinion, highlights this "core norm of the jury system" which, slowly but surely, is being established in Argentina thanks to the gradual implementation of the jury trial.
The jury trial and the adversarial system in criminal cases that our Framers dreamed of in 1853, came 170 years later. That delay had very serious consequences for the justice system in our country, which are only now beginning to be remedied. The STJER’s ruling is part of this necessary change.
For example, it took a lot of effort to implement the unanimity rule in a judicial branch that for centuries decided everything by majority verdicts, including capital punishment. In a traditional civil law court of three bench judges, two votes are enough to sentence a person to life imprisonment or acquit someone of a very serious crime.
Now, in Argentina, we accept that the unanimous vote of the twelve-person jury is required to acquit or to convict. Today, no one disputes the immense benefits that unanimity has brought for the legitimacy of verdicts, since data shows that jurors achieve unanimity in 96% of cases.
It was even more difficult to get our legal culture to accept the finality of verdicts, but the jury has managed (at last!) to open this much-needed debate in our legal system. As in all other countries that originally adopted an inquisitorial system, Argentine prosecutors were always granted unlimited powers of appeal to obtain a conviction. This system prolonged cases for decades and made defendants live in a constant state of anxiety and insecurity.
Argentina’s top scholars Julio Maier (cited in this ruling) and Alberto Binder fought for decades for Argentina’s acceptance of this essential feature of the jury that distinguishes the adversarial systems of the most advanced nations.
The universal tradition of the jury views appeal as the defendant’s exclusive right. The double jeopardy clause has been included in the every international human rights treaties (ACHR, art. 8.2.h). Therefore, it has been established for centuries that juries’ not guilty verdicts put an end to the criminal process and are not appealable.
This has been established in all of Argentina’s classic jury laws. But the tension with centuries of inquisitive practice, which turns double jeopardy and the right of appeal into an incomplete right, was bound to emerge at some point in Entre Ríos, and that's what happened.
The "Cervín" judgment begins forcefully, recognizing that trial by jury, in the 1853 Constitution, intended to eradicate practices that are contrary to the adversarial system. Thus begins Judge Carubia’s opinion:
“"The lack of a reasoned verdict, the rule of secrecy and the scope of appeal in classic jury systems, are some of the great issues that generate tension in Argentine legal debate."
"Indeed, as the hour of the definitive implementation of the classic jury in our country approaches, the cultural and political inadequacies of the prevailing justice system that the jury was intended to eradicate, have been sharpened”
The only jurisdiction in which prosecutors and victims challenged the finality of acquittal by a jury was in the Province of Buenos Aires at the beginning of the implementation of the system (2016). Also in Buenos Aires, which was the birthplace of this cultural shift, the Court of Appeals and the Supreme Court of Justice upheld the absolute constitutionality of the rule that prevents prosecutors or assistant prosecutors from appealing against a jury verdict of not guilty. But they did so in cases of crimes of institutional violence (see the Bray paredes ruling) (see the SCJPBA´s ruling on Bray paredes)and in common crimes of homicide (see the López ruling).
The novelty of this very important ruling of Entre Ríos is that it is the first that correctly resolves this issue in the sensitive context of gender-based violence. That gives it added value, because the basis of the prosecutor’s claim was an alleged lack of gender perspective in the ruling.
The appeal generally agrees with the basic principle of the finality of jury verdicts of acquittal, but states that, due to the enhanced due diligence ordered by international treaties on the matter, the principle should yield in cases of gender-based violence.
The prosecutor and victim should, therefore, be able to appeal the acquittal. In other words, appeal should be available for crimes of gender-based violence, but not for other crimes. As if the genuine advance of feminism meant repealing or devaluing basic constitutional guarantees of the accused or evading the rule of law. None of the three judges of the STJER were fooled by this argument, which, under a veil of pseudo-progressivism, intended to hide the fact that the investigation in the case was flawed.
The defense attorneys and judges Carubia and Mizawak were merciless with the appellants on this point.
In his excellent argument, defense attorney Rubén Pagliotto said, in unequivocal terms:
:"The prosecutor´s appeal ultimately exposes the investigative flaws. This case was ineptly investigated. It was not the fault of the jury that the prosecutor failed to present absolutely conclusive evidence. This is a disrespectful way of asking for a constitutional ruling—the jury’s finding of insufficient evidence—to be overruled.
No wonder the prosecution has resorted to masking its absolute incompetence in the investigation of the case, in its construction of an evidence-supported legal theory for the case, and in its inability to convince even one of the members of the jury.
It is not about blaming Article 89 of the Law and otherwise misconstruing the law, such as the prosecutors’ interpretation of Article 64 of the Provincial Constitution.
If the prosecutor who investigated was inept, he should not try to remedy his faults by trying to force the Provincial Constitution to say what it does not say, or what the Law of Trial by Jury does not say.
When the "second hearing rule" was established in section 64, it was with the accused in mind; it is a protection that has its raison d’être in serving as a shield against the impetuous punitive power exercised by the State; that is why guarantees exist."
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Rubén "Rubito" Pagliotto,
renowned defense attorney |
Judge Claudia Mizawak, a renowned feminist, went so far as to say that the prosecutor in this case "did not seriously investigate" the incident and held him directly responsible for the outcome of the trial:
"The Prosecutor’s Office (MPF) submits that the appeal should be heard and dealt with as required by the enhanced duty of due diligence.
The IACHR has recognized the duty of the States to prevent "and seriously investigate" these crimes. The enhanced duty of due diligence is uniquely relevant to the MPF -as the body in charge of criminal prosecution- since it imposes an even greater burden on it, especially during the Preparatory Criminal Investigation and the oral trial.
It is not possible to ignore the shortcomings pointed out by the defense regarding investigative failures and the inadequacy of the evidence presented during the debate.
I think it is necessary to mention that the IACHR has established that the investigation phase in cases of sexual violence is of fundamental importance.
Failures at this stage become a barrier that can be insurmountable in the subsequent identification, prosecution and punishment of those responsible for these acts."
THE FACTS, APPEAL AND DEFENSE’S ARGUMENT
The case reached the Court because prosecutors Uriburu and Lombardi raised the unconstitutionality of Article 89 of Law 10.746, which prevented them from appealing the jury’s acquittal verdict. The law, which has received praise from other countries (ver), reads as follows:
Article 89°: Acquittal. Finality. The verdict of not guilty by the jury shall be binding on the presiding judge and will become res judicata, definitively and irrevocably concluding the proceedings and the criminal prosecution against the accused.
No appeal shall be allowed against a not guilty verdict and the corresponding acquittal, except in cases where the prosecutor fully demonstrates that the verdict of not guilty was the result of bribery, coercion, extortion by kidnapping or other forms of intimidation that exercised on the juror(s), and which were decisive for the acquittal verdict. An appeal of any kind against an acquittal by a judge in a hung jury case will not be allowed.
The prosecutors argued, by order of General Instruction No. 2/2020 of the Entre Ríos Attorney General’s Office, that their inability to appeal such verdicts violated the effective judicial protection of victims of gender-based violence and the Convention of Belem do Pará.
They also argued that Article 64 of the Entre Ríos Constitution established that the guarantee of a "second hearing” also applied to them.
Article 64°: The Legislature shall ensure the right to a second hearing in criminal proceedings, respecting the principles of adversarial, oral and public proceedings in the adversarial system.
The Concordia Court of Appeals issued a memorable ruling rejecting this claim in its entirety, which we reported on this page (see judgement).The prosecutors insisted and appealed to the STJER.
Giordano Boggian’s defense team then added one of Entre Ríos' best lawyers, Rubén Pagliotto. The opinion they defended in the public hearing before the STJER is an anthology and we reproduce it here.
They practically exhausted the discussion on non bis in idem, double jeopardy, the finality of the acquittal, the sole hearing, the IACHR’s Mohamed decision, international treaty law and its relationship with enhanced due diligence in cases of gender-based violence.
BRIEF FOR DEFENDANT-APPELLE
(download)
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| Giordano Boggian and Rubén Pagliotto |
SUPREME COURT´S RULING
Judge Daniel Carubia wrote the lead opinion. He did so with remarkable precision, as he reviewed the arguments presented to him by the prosecution from the perspective of the idiosyncrasies of the jury system. In this way, he complied with the IACHR (in re RVP v. Nicaragua, 2018) and the ECtHR (in re Taxquet v. Belgium, 2010), both of which order respect for the inherent characteristics of jury procedure.
These two precedents recognize that in the West there are two models of criminal prosecution: trial by jury and bench trial. Both are standard, but have different characteristics that must be respected both in the original decision and in the appeal.
Thus, there should be no attempt to graft onto one system specific characteristics of the other, such as requiring a jury to justify its verdict or requiring a judge to issue judgments out of personal conviction. The same is true of the finality of the jury’s verdict of acquittal, which is inherent to this form of trial and follows Article 8(2)(h) of the ACHR.
In short, the judges of the STJER did what the IACHR clearly states: when reviewing the verdict of a jury, the essential characteristics that define the jury system, which Statute 10.746 recognized so well, must be respected - and not altered.
Excerpt from the decision: "The advantages and disadvantages of one system or another are distributed equally, taking into account the nature of each trial system"
Carubia's opinion was based on four points that shaped his decision. The first is formal. He argued that the prosecution came up with the idea of raising the unconstitutionality of Article 89 of the Law when it lost the case. Before that, it had said nothing and accepted the rules of the game, only questioning them after failing. If they had wanted to try this route, Carubia said, they should have challenged the constitutionality of the jury system from the outset, as the most basic doctrine of constitutional law requires.
"This Office filed an appeal only ‘for having lost': it allowed a trial to proceed in its entirety with the jury system’s rules, to which the parties had submitted. Only when the result of the trial was an acquittal, did the prosecution challenge the constitutionality of a core rule of the system to which, without objection, they had submitted."
He strongly rejected the Attorney General's Instruction 2/2020 as "unknown" and unrelated to the process.
But the lead opinion did not leave it there. The second point went directly to the substance of the matter, with an irrefutable argument in defense of the constitutionality of Article 89 of the Law. One caveat needs to be made here. It is common knowledge that Judge Carubia’s position is that the prosecution could never have the same scope of appeal as the defendants.
In his ruling, he confirmed this position and reminded prosecutors that Article 89 in no way deprives them of the chance to appeal, but limits them in an absolutely reasonable way to the only two cases recognized worldwide (even in common law systems with juries) that are called “fraudulent res judicata."
In other words, corrupt activity by the accused or his defense that leads to a flawed acquittal (bribery, coercion, extortion of jurors or witnesses, serious misconduct, etc.). In these scenarios, the prosecutor’s appeal is tolerated because there was never any "risk" for the accused. "Double jeopardy" in these corruption cases is a fiction; it does not exist.
"The Entre Ríos Legislature does not prohibit the prosecution’s access to the "double hearing", but only limits it to cases of not guilty verdicts in which the prosecutor "irrefutably demonstrates that the acquittal verdict was the result of bribery, coercion, extortion by kidnapping or other serious intimidation that exerted coercion on the juror(s), and which were decisive for the not guilty verdict."
"Contrary to what the prosecution emphatically argues, the constitutional rule of the double hearing in Art. 65 of the Constitution of Entre Ríos is not violated, since with absolutely reasonable limits that are part of the core of the jury trial system, it grants both parties the possibility of appealing. It is not true that the prosecution is prevented from this option in the current system: in the event of an acquittal verdict, it will have the right to appeal that is recognized in the same Art. 89 that it challenges."
"With the introduction of the trial by juries, the local legislature decided to limit the grounds for appealing an acquittal. It is, therefore, a legislative decision, keeping with the very nature of the jury trial. The jury’s verdict of acquittal is the expression of the sovereignty of the people, and their will may only be revoked to the extent authorized by the legislature."
The third point unambiguously supports the precedents that Concordia Court of Appeals used to reject the prosecutor’s appeal. As we mentioned before, Concordia was a superlative ruling (see holding). The STJER agreed with it in all respects and stated that the rulings cited there, Green v. United States (U.S. Supreme Court, 1957), Alvarado/Sandoval (CSJN, 1998, 2005), Mattei (CSJN, 1968), and the judgments of the Court of Appeals of the Province of Buenos Aires and the SCJPBA, cited above, among others, sealed the issue.
"The precedents invoked carried out a thorough analysis not only of the norms of our National Constitution, but of the entire international framework, establishing the full validity of the rule limiting the possibility to appeal, as long as it does not contradict the international human rights system. In other words, all the international rules invoked by the appellants in support of their claim were duly analyzed by the Buenos Aires judgments cited by the Court of Appeals, and their considerations are fully applicable to the case at hand.”
The fourth and final point is perhaps the most important one and has to do with enhanced due diligence in matters of gender-based violence. This was the prosecution’s central argument and the most original part of this ruling for Argentine jurisprudence because it defines what is meant by enhanced due diligence in a jury system: it in no way implies giving the prosecutor or the victim the right of appeal against acquittal.
Defense attorneys Boggian and Pagliotto repeatedly insisted that all the country’s victims’ laws clearly state what is meant by “effective judicial protection” and “access to justice.” These laws grant broad powers to victims, including access to the case file and the possibility of appealing in cases where the judge does not send the case to a jury. But none of them state the right to appeal acquittals. This is logical, since such a rule would repudiate the strict letter of international human rights treaties, which establish the right to appeal as an exclusive guarantee of the convicted person.
Here the lead opinion did not hold back. The Jury Act does not deprive the victim of remedies against acquittal, but limits them to exactly the same two cases mentioned above for the prosecution and which are "absolutely compatible" with the essence of the jury system.
"The duty of enhanced due diligence has been guaranteed and respected by the judiciary from the moment the victim was granted unrestricted access to justice. In fact, she was heard, she took part in various stages of the proceeding, her right to testify without the presence of the accused Cervín was respected; she was been given the opportunity to be an assistant prosecutor, -of which she opted out- and she had a trial that included a jury made up of twelve people carefully selected by the parties, with absolute gender parity, six women and six men, which rules out any violation, even the slightest, of the due diligence required.”
"With the introduction of trial by jury, the local legislature decided to limit the grounds for appealing an acquittal. It is therefore a legislative decision, keeping with the nature of the jury trial. The jury, politically, is nothing more than the requirement-in order to make state coercion possible- to obtain the acquiescence of a minimum and unanimous number of citizens, which symbolizes, in the best possible way in our mass society, politically, and not statistically, popular opinion (cf.: Maier, Julio B. J.; "Criminal Procedural Law", vol. I, 1st ed, p. 787, Ed Bs.As., 2004); for this reason, acquittal by the jury prevents the use of the appeal, regardless of the assessment of the verdict: fair or unfair before the law (cf.: Maier, op. cit., p. 634).
"Thus, the acquittal of the jury is the expression of the sovereignty of the people and its will can only be revoked in the cases authorized by the legislator. In this sense, and as the Federal Court stated: "... the guarantee of the right to appeal was established only for the benefit of the accused. It may be concluded, then, that since the Public Prosecutor’s Office is part of the State, it is not the recipient of this benefit, and is therefore not protected by the constitutional norm..."
"The fact that the victim has not been constituted as an assistant prosecutor would not change the limitations on appeal provided for by law, since the assistant prosecutor, according to our legislation, enjoys the same rights as the Public Prosecutor’s Office and may appeal to the courts only in the same cases and under the same conditions. In short, there is no indication of any violation of the rights of the appellant, the victim in the case.”
THE MIZAWAK VOTE
Judge Claudia Mizawak was responsible for supporting Judge Carubia's last point that Article 89 of Law 10.746 does not violate enhanced due diligence by limiting the prosecutor's and victim's ability to appeal a verdict of acquittal.
She thoughtfully argued that enhanced due diligence is for the MPF to "seriously investigate" and obtain evidence at the early stage of the Preparatory Criminal Investigation for crimes of sexual and gender-based violence. After that, it’s too late.
She also added that the Federal Supreme Court’s well-known legal doctrine that, to declare a law unconstitutional, it must be manifestly and flagrantly contrary to the Magna Carta. In close cases, this type of challenge must always be rejected. She concludes that Article 89 of Statute 10.746 is constitutional. It should be remembered that this law was unanimously approved by the Senate and the House of Representatives and all political parties in 2018. (see here)
"The appellants' request to declare Article 89 of Law No. 10,746 unconstitutional intends - purely and simply - to modify the current legal regime; which would mean the judiciary is exceeding its power at the expense of the legislature, violating the separation of powers principle, a basic principle of our republican system."
- Superior Court of Entre Ríos (STJER) (STJER) "CERVIN, CARLOS JOSÉ - Attempted Manslaughter - Acquittal - Trial by Jury S/EXTRAORDINARY APPEAL", File No. 5344 of 9/11/23 [ver]
Read more news here:
- Diario Judicial (10/11/23): "What the jury says may not be questioned" (ver)
- El Diario (10/11/23): "Juries: acquittals cannot be appealed" (ver)
-El Entre Ríos (10/11/23): "The STJ ruled that an acquittal by a jury is not subject to appeal"" (ver)
