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| Justices Kogan, Soria, Torres and Genoud |
In a ground-breaking opinion, the Supreme Court of the Province of Buenos Aires (SCBA) reinstated a jury verdict of acquittal which had been overturned by a lower appeal court (CA), unequivocally holding that the appeal of a not-guilty verdict violates the principle of double jeopardy (ne bis in idem).
While respect for the finality of jury verdicts of not guilty may seem fundamental in the United States and other jury systems, the Pitman ruling will be a landmark in Argentine trial by jury and double jeopardy jurisprudence.
The per curiam opinion, moreover, came from Argentina's second most influential court and the court issued the ruling in a highly publicized case popularly referred to as the “Camping El Durazno” case.
The opinion was authored by Justice Hilda Kogan and joined by J. Luis Genoud and Sergio Torres with a concurrence by J. Carlos Soria who offered additional grounds for the ruling.
The message of the Court is very clear: a not guilty verdict of the jury is final, because the Constitution protects the defendant against double jeopardy.
The importance of the Pitman opinion extends beyond respect for a jury verdict of not guilty. The opinion consolidates numerous constitutional rights including the right to trial by jury, protection from double jeopardy, and the defendant's right to appeal a guilty verdict.
Notably, even the Attorney General of the Province, Julio Conte Grand, argued for the defendant's appeal to be upheld in a brief which appears to have been fundamental to the Court’s ruling. Conte Grand strongly condemned the decision made by the Court of Appeals describing it as "arbitrary" and "a blatant deviation from law"(see).
"The jury's determination to withhold political authorization for the exercise of punitive power remains unalterable, and I contend that this does not introduce an imbalance between the involved parties in the proceedings, as the situations of the accused and the complainant are not equivalent," asserted the Attorney General in one of the most noteworthy passages of his brief.
Conte Grand’s position reflects the profound and widespread commitment within the most influential legal circles to the logic and spirit of jury trials.
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Attorney General Julio Conte Grand
and J. Hilda Kogan |
DOWNLOAD THE RULING
(HERE)
As we have emphasized time and time again in this space, consolidating a jury trial system requires constant vigilance by higher courts. In this ruling, the Supreme Court of Justice of Buenos Aires recognized and exceeded this standard in a case which could have fundamentally undermined the logic and spirit of the jury trial system in Argentina. It is, by far, one of the most significant rulings that the SCBA wrote in its long history.
The amicus curiae petition reflected the importance of the decision:
"The present case stands at a crossroads for jury trials in Argentina. Its outcome will determine whether we uphold our globally esteemed jury system -a source of national pride, lauded worldwide- or if we veer off course, either directly or indirectly through nullification, thereby compromising one of its timeless, universally recognized tenets: the unwavering nature of its acquittal verdicts".
The SCBA’s support of the finality of jury verdicts has been total, direct, precise and unambiguous. It cleared up all the questions regarding double jeopardy clause, the appeal against acquittals and the spurious use of technical procedural errors against the defendant, as Argentine jurisprudence on juries had never done before.
Historically, Argentine law -like almost every civil law countries- allowed for reversal of convictions or acquittals (resulting from bench trials) based on technical procedural errors. In this case, the lower court of appeal applied that doctrine to reverse (“nullilfy”) an acquittal because the court-appointed legal representative of the complaining witness, who was a minor, was not present during testimony. The lower court of appeal reasoned that the defender’s presence was technically required and therefore the acquittal could be reversed on this technical procedural ground.
As Alberto Binder poignantly asserts, we must never forget that the Inquisition isn't a norm to be simply undone by legislation or a revised Code. It's a cultural legacy deeply ingrained in our justice system -an ever-evolving Hydra with myriad heads, persistently challenging the seamless operation of the oral, public, adversarial, and jury trial system envisaged by our Constitution.
In sharp contrast, this decision marks a crucial turning point, setting a new direction and strengthening the adversarial system with juries based on fundamental principles, without taking any shortcuts or veering off course.
Some unforgettable passages for posterity are as follows:
“Challenging the not guilty verdict from a jury trial is a constitutional violation.”
"No person shall be prosecuted twice for the same offense (BA State Constitution, Article 29).”
"In cases where the jury holds jurisdiction, the prosecution lacks the legal power to appeal."
"This categorical directive precludes any subsequent review of the jury's acquittal."
"Thus, the double jeopardy clause crystallizes into the unequivocal impossibility of overturning the jury's not guilty verdict."
"If a defendant is acquitted at the end of the trial, the prosecution is precluded from challenging."
"This reinforces the notion of appeal as a constitutional guarantee exclusive to the defendant, inherent in the classic jury model.”
“The remand for a new trial after the acquittal based on a technical legal error violates the guarantee against double jeopardy."
"Once the jury is assembled and sworn in, the guarantee against double jeopardy begins to apply, and once issued, the jury's acquittal verdict is inviolable and cannot be revisited (Green vs. US 1957 ruling).
"The jury bill enacted by the Buenos Aires Legislature protects the defendant against double jeopardy by forestalling any challenge to the jury's not guilty verdict."
"Guarantees must be respected, especially double jeopardy, given the pivotal role of oral debate in the jury system.”
"The ruling is set aside and the jury's not guilty verdict is resinstated.”
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| J. Hilda Kogan |
THE FACTS OF THE CASE
In 2021, the jury acquitted all three defendants in a case involving allegations of sexual abuse against a teenage (here). While the prosecution accepted the decision due to protection against double jeopardy, private complainant Maximiliano Orsini raised constitutional concerns over the law's prohibition on appealing acquittals. Additionally, he argued that cases involving sexual offenses should be bench trials, tried by judges rather than juries, quoting provisions within the Convention of Belem do Pará and the CEDAW.
The matter had already been addressed and decided numerous times by the court of appeal and also by the SCBA against the claims of the complainant. For this reason, circuit judge Fabián Riquert rejected their appeal, and they lodged a complaint with the lower appeal court.
Yet, in an unusual ruling that defied all previous judgments of the lower appeal courts, Judges Violini and Borinsky overturned the verdict of not guilty. They referenced a controversial technical procedural error, particularly emphasizing the absence of the Advisor for Minors and Incapacitated during the minor's testimony before the jury
In other words, they avoided addressing the complainant´s standing to appeal (which would have required them to declare the unconstitutionality of the jury law), but they ruled that the alleged technical legal error justified a new trial. This procedural move is the typical favorite maneuver of the inquisitorial culture, using legal errors to overturn acquittals (see).
Defense lawyers Noelia Agüero and Martín Bernat filed a grievance with the Supreme Court of Buenos Aires when the lower court of appeal refused to grant them the appeal. The SCBA acknowledged the grievance in favor of the defense and ruled on the matter.
In August 2023, notable organizations, advocacy groups for victims, esteemed legal professionals, and universities across the country collaborated to submit two impactful amicus curiae briefs to the SCBA. Their united objective was to convince the SCBA to overrule the CA´s decision which was egregiously wrong. (see amicus curiae).
Subsequently, a groundswell of support emerged as numerous individuals and institutions, including the Public Defender's Office of Buenos Aires province, rallied behind these submissions. Notably, the voices of the esteemed judges from the landmark 1985 Trial of the Military Juntas rang out prominently among them.
León Carlos Arslanian, Jorge Valerga Aráoz, Guillermo Ledesma, and Ricardo Gil Lavedra, the judges from the world-famous Trial of the Military Juntas in 1985, decided to support the amicus curiae filed in the Camping del Durazno case with notable arguments (see amicus curiae Judges Military Juntas) and questioned the holding of a new trial after the jury's acquittal verdict.
The momentum towards an anticipated ruling from the SCBA in favor of these appeals surged following a pivotal resolution on December 21, 2023. In this resolution, the court granted official recognition to these associations, individuals, and organizations as friends of the court -amicus curiae- solidifying their role in the judicial process.
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Justices Guillermo Ledesma, Ricardo Gil Lavedra,
León Arslanian and Jorge Valerga Aráoz |
THE COURT JUDGMENT
Argentina's "Green" ruling
The value of the "Pitman" ruling, therefore, is manifold and extends in numerous directions. We're keen on highlighting five aspects: 1) the double jeopardy clause, 2) the use of technical procedural errors against the defendant to overturn an acquittal, 3) the role of the Minor's Counsel in a criminal trial, 4) the conventional status of the right to appeal exclusively for the convicted person, and 5) the limits of the doctrine of fraudulent res judicata.
Let's delve into each of these aspects here, within the confines of these pages.
But first, something crucial: this case will forever be remembered as the "Green ruling of Argentina", paying homage to that celebrated US Supreme Court precedent of 1957 (frequently quoted by the Argentina´s Federal Supreme Court of Justice -CSJN- and now here by the SCBA) which is the leading global case on double jeopardy. That is, on the finality of not guilty verdicts, which do not allow any kind of appeal from the prosecution, whether by the public or the complainant, for any kind of offense.
Nor can we overlook what, to us, is the heart of the ruling. What might seem like a typical routine of appellate courts, such as the debate on the standing to appeal, became the crux of the matter.
The SCBA took a definitive stance regarding the complainant´s standing to appeal a not guilty verdict, asserting he has no right whatsoever to appeal due to:
a) Provisions within the Criminal Procedure Code, which bar appeals by prosecutors, serve to safeguard and govern the constitutional and treaty-based assurance of the double jeopardy protection.
In any appeal , a court always asks two questions: 1) Does the party appealing the case have standing to appeal? 2) What decision should be rendered?
The SCBA dismantled the maneuver by the lower court of appeal (CA) in three paragraphs. The CA's tactic involved sidestepping the first question altogether and delving straight into the second.
To answer the second question, CA judges Violini and Borinsky would have first needed to say that the complainant has standig to appeal. However, to do so, they would have had no choice but to declare unconstitutional the three provisions of the procedural code which ban the prosecutor and the complainant from appealing the jury's acquittal.
But they didn't dare to take such a step, and therefore, they introduced ex novo a technical procedural error to quash the entire process, including the acquittal of the jury, and order a new trial (violating the protection against double jeopardy). A very convenient shortcut that, as we've already mentioned, is one of the favorite tricks of the inquisitorial culture, as pointed out by the amicus curiae.
The SCJPBA swiftly quashed this stratagem with two paragraphs that will go down in history:
"However, none of this was carried out or explained in the ruling under analysis here. Although multiple norms were cited in the core part of the decision, none of them correlate with what was actually ruled, especially considering that the objection was to a verdict of not guilty rendered by a jury that arrived at the lower court of appeal because the circuit judge - naturally - did not grant the appeal due to the lack of power of prosecutors and complainants to appeal a verdict of the jury (see sections 371 quater inc. 7, 452, and 453, Criminal Procedure Code)."
"The lower court of appeal sidestepped any consideration in this regard - without it being possible to consider it implicitly resolved - while disregarding this Court's recent precedent on the matter (see what was decided in "Bray Paredes" case No. 130,555, August 11, 2020, where we dismissed a similar claim saying that challenging the not guilty verdict from a jury trial is a violation of the Constitution)."
Let's recall two fundamental passages from the Bray Paredes ruling (SCBA 2020), in which the Court reproached the lower court of appeal for expressly disregarding:
# There is no constitutional right to appeal for the prosecution, whether public or private.
# The right to appeal is only conventionally recognized against a conviction and only in favor of the defendant in a criminal case..
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Defense attorneys Noelia Agüero
y Martín Bernat |
FROM POPULAR SOVEREIGNITY TO DOUBLE JEOPARDY
The remarkable legal doctrine on double jeopardy, as enshrined by the SCBA in the Pitman ruling, represents the culmination of a significant jurisprudential evolution that commenced in 2016 and reached its apex here.
The initial rulings of the lower courts of appeals, and even the pivotal Bray Paredes ruling of the SCBA, affirmed the constitutionality of section 371 quater inc. 7° of the Criminal Procedure Code -which expressly states that an acquittal by the jury is unappealable- against the initial onslaughts of prosecutors and complainants who cried out for "its unconstitutionality".
While these rulings rightly upheld the law, they did so without directly invoking double jeopardy -a topic traditionally considered almost taboo within the civil law tradition.
The central argument of this early jurisprudence focused then on the identity of the fact finder: judge or jury. The jury represents the People, a distinction starkly evident compared to bench judges, who are part of the Government. Consequently, it stands to reason that an acquittal rendered by twelve representatives of the People cannot be appealed, as there exists no higher authority above the People's will (see the Bray Paredes ruling) (see the SCJBA´s ruling on Bray paredes) (see the López ruling) (and see the recent Cervín ruling Entre Ríos).
Therefore, an appeal for the prosecution would still be tolerable in a juryless trial, due to the lack of standing that judges have always been recognized as having compared to the jury.
Hence, while the argument of sovereignty holds partial validity, it skirts around the crucial issue previously addressed -albeit reluctantly- by our CSJN in the Alvarado/Sandoval (1998) and Mattei (1968) precedents: double jeopardy.
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| Alberto Binder |
Binder highlights that the jurisprudence of our CSJN concerning double jeopardy is characterized by ambiguity and vacillation. While it accurately articulates the principle, when confronted with specific high profile cases and their implications, it notably retreats or resorts to tangential arguments to sidestep the ramifications of its own precedents.
However, in the Pitman ruling, the SCBA decisively put an end to all speculations and, for the first time, firmly linked the finality of the jury's verdict to protection against double jeopardy.
With this decision, any subsequent rulings or new legislation will be bound by these celebrated affirmations of the SCBA. Herein lies the invaluable significance of this historic precedent for Argentine law:
"Thus, the notion of appeal as a constitutional right of the defendant, inherent in the classic jury system, is reinforced."
"In this way, the double jeopardy clause is upheld through the clear impossibility of overturning the jury's verdict of not guilty."
"Challenging the not guilty verdict of the jury trial is a constitutional violation."
"The system implemented by the provincial legislature of Buenos Aires safeguards double jeopardy by precluding any challenge against the jury's not guilty verdict."
In addition to the spectacular passages cited above, the SCBA provided an extensive overview of the guarantee against double jeopardy, its constitutional and conventional consecration, and its broad interpretation (not limited to conviction, but to a new criminal prosecution for the same act):
“This means that Argentina´s Federal Supreme Court has given the clause under examination a broad interpretation, based on Anglo-Saxon law, and its American counterpart, interpreting that the protection to the citizen not only encompasses the impossibility of being convicted more than once for the same offense, but also of being exposed to a double risk of it happening".
Not only that, but it also established the moment in which such protection against double jeopardy begins to apply. As if the spirit of Blackstone had descended upon La Plata, the Pitman ruling delivered another of the most beautiful passages for Argentine jurisprudence and, masterfully, established that the double jeopardy protection starts when the jury is sworn in at the beginning of the trial. If the verdict is an acquittal, any criminal prosecution against the defendant for the same offense is prohibited.
The SCJPBA cited as authoritative support the most famous rulings on double jeopardy and the prohibition of appealing acquittals from the Supreme Court of Justice of the United States.
Thus, the decision in "Green v. United States," 355 U.S. 184 (1957), later applied as binding for all states in "Crist v. Bretz," 437 U.S. 28 (1978), establishes that once delivered, a jury's verdict of acquittal is sacrosanct. It cannot be revisited, even if it may be suspected of being erroneous ("Fong Foo v. United States," 369 U.S. 141 (1962)). This principle was recently reiterated by the U.S. Supreme Court, affirming that "the jury possesses an irreversible authority to pronounce a verdict of not guilty, even for reasons that are not admissible" ("McElrath v. Georgia," 601 U.S. (2024)) (see)
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| The jury is sworn in |
DE LEGE FERENDA
"It is so evident that this limitations represents a departure from the longstanding tradition of bilateral appeals, inherited from continental European inquisitorial systems, and that it also modifies the increasing powers recognized for victims in criminal procedures, particularly on sensitive issues such as those in the present case. So, therefore, it is acceptable that all this may understandably prompt discussion de lege ferenda in appropriate forums (universities and legislative, with the involvement of relevant social actors, see my vote in case P. 130.555").
The message conveyed by the Court in the Pitman ruling requires careful scrutiny. It reflects a stance that is both prudent and respectful of the separation of powers, yet resolute in its defense of the institutional integrity of the jury system. Let's delve deeper.
The disruption of the tradition of bilateral appeals, a characteristic feature of inquisitorial systems, and a violation of the double jeopardy clause was not created by the jury bill of Buenos Aires (Law 14.543). Rather, it was ordered by the International Human Rights Treaties in 1969, without differentiation as to whether the acquittal is delivered by a jury or by judge.
According to that conventional law, the accused is the sole holder of the right to appeal. Granting the opposing party the power to appeal an acquittal would force the accused to be put twice in jeopardy. Common law has always protected this sacred individual guarantee, essential for the Due Process of Law.
The enactment of Law 14.543, which incorporates a provision honoring the longstanding tradition of the finality of the jury´s verdict aligns Buenos Aires criminal procedure for the very first time with section 8° (2) "h" of the American Convention on Human Rights and section 14°(5) of the International Covenant on Civil and Political Rights, both of which forbid prosecutors from appealing acquittals, thus protecting the defendant against double jeopardy..
The problem is that the current BA procedural code has not yet repealed the traditional power of the prosecutor and the complainant to appeal acquittals rendered by judge. A very strong cultural vestige of the French inquisitorial tradition endures.
Julio Maier, Alberto Binder, Edmundo Hendler, Andrés Harfuch, Ángela Ledesma, Alberto Bovino, and many other scholars argue that these provisions are absolutely unconstitutional for violating double jeopardy and the right of appeal under the conventional human rights system, which belongs exclusively to the person found guilty.
The subtle message from the SCJPBA is that, "de lege ferenda", the discussion on whether to finally repeal once and forever the appeal against acquittals by judge (doctrina Alvarado/Sandoval y Mattei de la CSJN) should take place in universities, conferencies or Congress, but it is not for the Court to act as a legislator and rectify a sensitive issue that requires extensive debate.
However, in the case of jury trials, the Buenos Aires legislature has been decisive and made the clear decision to align the appeal system with juries with the International Human Rights Covenants and therefore to deny any kind of appeal to the prosecutor against acquittal in real respect for protection against double jeopardy.
There's no turning back from there, in the interest of the Human Rights principle of progressive realization. The amicus curiae were very clear on this point and demonstrated thoroughly that all common law countries with juries -like the Argentine jury- are signatories to the International Covenants, the CEDAW, and the Convention on the Rights of the Child, and have never been criticized for preventing appeals against acquittals.
The message is clear: the Court will not venture into the issue of double jeopardy in juryless trials. While it could do so, it has opted for the legislature to address it, eventhough the language of the Treaties is unequivocal.
However, once the Legislature decided through legislation to grant the jury irrevocable power over acquittals with the force of res judicata, it falls upon the Court to interpret and safeguard the guarantee.
What the SCJPBA has done in the Pitman ruling is to assert that there will be no turning back on the matter of jury acquittal and double jeopardy. This is because the solution provided by the Buenos Aires legislature, prohibiting appeal for the prosecutor, is constitutional, appropriate, and protects the acquitted defendant from double jeopardy (Section 29 of the Constitution of the Province of Buenos Aires).
The Court's exact words:
"On the contrary, it is unacceptable for a judicial decision to undermine a criminal guarantee of the accused, disregarding the authority of a legal norm - which has not been deemed invalid - under current law (s. 371 quater inc. 7, CPP)."
Furthermore, in another notable passage, it is emphasized that courts must uphold the Constitution and the laws. In this case, they endorse the irrevocability of the acquittal verdict. This point is underscored with a quote from the legal philosopher Andrés Rosler:
""It should be remembered that courts are not laboratories for legal experimentation, but institutions whose duty is to understand and adhere to the authority of the Constitution and the provisions enacted by the Legislature" (see Rosler, Andrés, "The Law is the Law", Buenos Aires, Katz, 2016)."
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| Legal philosopher Andrés Rosler |
TECHNICAL LEGAL ERRORS AGAINST THE ACCUSED
Having considered all the preceding points, the Court found no necessity to supplement its stance. Nevertheless, judges´ frequent use of technical procedural errors to overturn acquittals, thus compromising constitutional guarantees, compelled the SCBA to establish a boundary.
The Court designed this limit on two levels: a formal one (whether the Minor's Counsel was present at the trial and a concrete explanation of the prejudice) and a substantive one (what is the appropriate method for admitting a technical procedural error).
Let's start with the formal limit.
The Court dedicated a few lines to talk about this alleged "technical procedural error" -that circuit judge Fabián Riquert prevented the intervention of the Minor's Counsel during the testimony of the teenage- which the CA used as the main argument to overturn the jury's not guilty verdict.
The Attorney General, Conte Grand, had already dismantled that maneuver. By simply watching the video of the trial, he argued that "the minor's counsel did in fact participate in the debate and was present at the time of the alleged victim's testimony".
The Court also viewed the video and confirmed the presence of the Minor's Counsel. Not only that, but it noted that the teenager chose to testify alongside her personal psychologist, which is why the judge designated the Minor's Counsel as an "observer," a role she expressly accepted. But she was always present at the trial: "...it is not correct that the Minor's Counsel Silvia Fernández was denied participation in the trial..."
In the end, the minor testified orally accompanied by the prosecutor, her own attorney, her personal psychologist, and the Legal Advisor for Minors.
So, what is the justification for quashing an entire trial that ended in a not guilty verdict?
There is none, said the Court. In one of the harshest passages of the Pitman ruling, it stated that the decision "... completely lacked adequate motivation; there was a failure to describe the specific harm; there is an absence of reasoned arguments regarding the invoked norms," etc.
The Court concludes unequivocally regarding the formal aspect:
"To sum it up, the solitary citation of norms disconnected from what happened in the case, in addition to having overlooked the explicit validation of the Legal Advisor, and the absence of an explanation of any actual harm suffered by J.A. during her testimony, demonstrates the inconsistency of the decision. Consequently, it can be concluded - regardless of what was said in point V - that the alleged , moreover, lacked reasonable grounds.".
Let's now examine the underlying argument regarding this groundless technical procedural error, which serves as a manual on how to correctly utilize them in an accusatory system.
Here is another stellar passage from the ruling, citing Alberto Binder´s renowned book "El incumplimiento de las formas procesales (2009). This is particularly noteworthy for its conceptual clarity in a country with a deeply ingrained inquisitorial tradition that has turned criminal proceedings into a "tournament of technical legal errors," where entire trials can be overturned without any justifications.
The use of technical legal errors must always be reasoned from the perspective of constitutional guarantees, says the Court. Before introducing ex novo a technical procedural error that protects the victim, it is essential to verify whether such a measure is not encroaching upon a guarantee of the accused protected by the same form, in this case, double jeopardy.
In a system that upholds constitutional guarantees, it's paramount to first identify the specific guarantee being safeguarded and to ensure procedural integrity. If a procedural formality is breached, the subsequent step is to evaluate how this procedural flaw has adversely affected the concerned party. It's imperative to discern the identity of this party, recognizing the distinction between the accused and the victim. For the accused, rectification or repair is the appropriate recourse to address a flawed action that harms them. Conversely, for the victim, validation is the pathway forward.
Quoting Binder directly from the ruling:
In Binder's words: "The judge who must address a flawed procedural act affecting the victim's interest must first analyze whether it has been validated, meaning if the harm has not been remedied by parallel action from the prosecutor or if the victim herself, through express or tacit action, has consented to the effects of the invalid act.
If not, the judge must still consider if there's a conflict with a principle protecting the accused that is guaranteed by the same form. If such a conflict exists, the judge must disregard the legal error affecting the victim due to the superior value of the principles protecting the accused. Only after this does room remain, firstly, for rectification (repair) and ultimately for nullification of the act" (Binder, Alberto M.; El incumplimiento de las formas procesales, Buenos Aires, Ad Hoc, 2009, p. 130).
The lower court of appeal failed to undertake this task. Indeed, it did not analyze whether the intervention of the Minor's Counsel in the role assigned by the circuit judge (which would be the "flawed" procedural activity) was validated by her own conduct, by that of the prosecution, or even if the latter consented to its effects.
Similarly, the potential conflict with a principle protecting the accused was not verified (in this case, protection against double jeoaprdy, given the centrality of the oral debate in the jury system).
Justice Carlos Soria was direct to the point in his vote: "From the challenged ruling and the case records, it does not appear that such supposed deficit implied a violation of access to justice, effective judicial protection, the best interests of the child, or due process for the minor."
ROLE OF THE LEGAL ADVISOR FOR MINORS AND INCAPACITATED PERSONS
The harmful consequence of the ruling by the CA was that it erroneously stimulated similar claims, whatever the merits. In every case of sexual abuse of minors, the Legal Advisor for Minors must intervene in person at the oral trial. Otherwise, it would be as if the trial hadn’t occurred. The SCBA in the Pitman ruling set things straight once again.
To engage the Legal Advisor for Minors organically in the process is one matter, but to have them autonomously participate in the trial as a party, alongside the prosecutor and/or complainant, without defining their role, is quite another.
Furthermore, the Court also warns that "the problems that can arise from the redefinition of their role due to modifications and/or the incorporation of both norms and actors that can participate in these procedures - complainant, child's attorney - are well known".
Not to mention that in this case the minor was represented not only by the prosecutor but also by her own private attorney as the complainant.
LIMITS TO FRAUDULENT RES JUDICATA
The Pitman ruling concludes with a detailed discussion of the exceptional circumstances in which an appeal against a jury's acquittal may be permitted (the Court lists them all), a concept enshrined in legislation across most provinces and a longstanding tradition in common law jurisdictions. These circumstances, known as "fraudulent res judicata," involve cases where the acquittal arises from corrupt or unlawful misconduct of the defendant and/or the defense attorney, such as bribery, coercion or threats of jurors or witnesses, or other serious misconducts.
In those cases, the appeal by the prosecutor is tolerated because there was never any "risk" to the accused. The double jeopardy in these cases of corruption is a fiction; it does not exist at all.
A digression is necessary at this point, masterfully exposed by Alberto Binder in Volume VI of his Treatise on Criminal Procedural Law (pages 665 et seq). It is true that the IACHR has admitted, with great caution, certain strict exceptions to the double jeopardy clause that would allow an appeal by the prosecutor, yet prevent the paralyzing action of double jeopardy in the face of a new accusation.
These are cases in which conditions of corruption or gross judge misconduct, either provoked by bribes or blatant pressures from Government, corprorations or other powers, show that the verdict has not been the result of a fair trial, but that these bribes and pressures have been the true cause of the decision. There has been no impartiality but rather the management of interests and, therefore, a mockery of the minimum conditions of effective judicial protection, also constitutionally protected, albeit in a different way than the rights of the accused.
The IACHR itself was born in response to the massive and tremendous violations of human rights in Latin America that took place in the 1970s, including missing people (desaparecidos), torture, kidnappings, imprisonment of opponents and executions of migrants, workers, peasants, and students. Unfortunately, several countries in Central America are still plagued by this situation, where the Constitution is suspended. Fair trial is there a vacuum, a scheme. The Rule of Law does not exist, and the Judiciary is completely manipulated.
A very good example of that is the self-amnesty bestowed upon Argentina's Military Junta via decree in 1983, omly few months prior to ceding power to Raúl Alfonsín's constitutional government. Their intent was clear: to exonerate and shield from punishment the egregious crimes committed during the period spanning 1976 to 1983. It is precisely for such cases that the Inter-American Court of Human Rights (IACHR) exercises utmost caution in its considerations of the principle of double jeopardy within the Latin American context.
From there arises in recent years the doctrine and jurisprudence about fraudulent res judicata as a condition to solve this problem and a demand for the effectiveness of judicial protection. This is a topic that requires serious and sensitive analysis, to avoid becoming dangerous, particularly if a broad doctrine is established that would allow the revision of res judicata every time it is alleged that it is an unfair acquittal.
Argentina, like Uruguay, Chile, Paraguay, and many other countries in the region, has fortunately overcome this situation of systematic human rights violations. Even with all its problems regarding the performance of the Judiciary, these countries have managed to establish accusatory, oral, and public systems and to maintain the Rule of Law. That is why there is no longer any room to encroach on the double jeopardy clause and, as natural result, to undercut the finality of verdicts.
Therefore, we must specify the limits of fraudulent res judicata. A broad application is not tolerated in criminal justice. In criminal proceedings, the binding force of a not guilty verdict, although not absolute, can be overcome by extremely exceptional reasons. Therefore, it cannot be said that the Supreme Court or the Inter-American Court (IACHR) have encroached on the protection against double jeopardy, because this is an excessive formulation for a small set of precedents based on exceptional facts.
The Pitman ruling once again succeeds remarkably on this delicate point and links it with the principles of preclusion and progressiveness that the CSJN used in 1968 in the leading case Mattei to explain why double jeopardy prevents the prosecutor from appealing the acquittal.
"It is evident that -as Justice Kogan points out- really extreme cases are regulated, which, even though they are not legally recognized in the Buenos Aires Jury Law, if an incident occurs involving criminal conduct in the jury's exculpatory decision (e.g. bribery or coercion, intimidation, threats), the doctrine of fraudulent res judicata could fill that legal gap."
THE END
It is worth noting that the Pitman ruling resulted in the wake of a mountain Argentine jurisprudence and actual experience that offered strong support for the jury system, whose design represents a cultural rupture against our current inquisitorial system. Months earlier, the Supreme Court of Chaco also firmly announced support for potection against double jeopardy and the constitutionality of the norm that prevents any kind of appeal against the jury's acquittal (see). The same was done by the Supreme Court of Entre Ríos, in the extraordinary Cervín ruling (see) and prior to those decisions, there were strong judgments from the High Court of Appeals of Buenos Aires and Entre Ríos (see) (see).
This clear and unequivocal support is one of the most auspicious events for the consolidation in Argentina of the trial by jury system so dear to our Framers.
-Suprema Corte de Justicia de la provincia de Buenos Aires (SCBA), causa P. 137.668- Q, ""Pitman, Lucas Leonel s/ queja en causa n° 113.577 del Tribunal de Casación Penal, Sala III" y su acumulada P. 137.671-Q,"Jaime, Tomás Agustín y Villalba, Juan Cruz s/ queja en causa n° 113.577 del Tribunal de Casación Penal, Sala III",", 21/03/24 [see]
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22/03/24- Noticias y protagonistas: "Ne bis inidem" (ver)
21/03/24. La Nación: "“No culpables”. La Corte revocó un fallo de Casación y ratificó la absolución de los acusados de abusar de una chica en un camping" (ver)
3/4/24- INFOBAE: "La Corte bonaerense ratificó que no se puede apelar la absolución que dicta un jurado popular" (ver)
3/4/24- Ámbito Financiero: "La Corte Suprema bonaerense ratificó que no se pueden apelar los fallos de los juicios por jurados" (ver)
