A Research Guide to the Argentine Legal System
By Dr.Gisela Monge Roffarello, Emilse Monge Roffarello,
Dr. Ezequiel Trajtenberg and Prof. Eng. Julio O. Trajtenberg
Dr. Gisela Monge Roffarello is a lawyer in Cordoba, Argentina. Emilse Monge Roffarello is enrolled in the Law and Social Science School, at the Catholic University of Cordoba, Argentina.Dr. Ezequiel Trajtenberg is a professor of law and philosophy at the Catholic University of Córdoba, Argentina. Professor Engineer Julio Trajtenberg is senior Adviser in computer sciences and digital signature at the I.R.S. of Argentina (AFIP -Administracion Federal de Ingresos Publicos); he had been Adviser in computer sciences at the Justice Department of Argentina.
Published January 2006
Table of Contents
Argentina's Form of Government
Executive Power
Legislative Power
Chamber of Deputies
Senate
Judicial Power
Jurisdictions
Civil Jurisdiction
Commercial jurisdiction
Contentious-administrative jurisdiction
Labor jurisdiction
Criminal jurisdiction
The value of jurisprudence
Trial by Jury
Other State Institutions
General Auditing Office of the Nation
The Ombudsman
Argentine Tax System
Environmental Legal Framework in Argentina
International Treaties
Sources of Primary and Secondary Materials
Human Rights web sites
Legislation, Jurisprudence and Doctrine web sites
Provincial Judicial Power
Legal bookstores
Other legal sites
Argentina's Form of Government
The Argentine nation adopts for its democratic government the Representative, Republican and Federal form. It is representative because the country is governed by representatives of the people. It is republican because people elect their representatives through vote, because the country is governed by a tripartite system made up of an Executive Power, a Legislative Power, and a Judicial Power, and because Argentina adopts a written Constitution. Finally, it is federal because the provincial governments keep their self-rule despite responding to a common government (The National government). The nation adopts this form of government as established by the National Constitution[1], passed on 1853.
This text was modified in 1860 when the province of Buenos Aires is included, since it was not part of the Argentine Confederation in 1953.
Then, in 1949, a constitutional convention replaced the 1853/1860 text for a new one which was rendered null and void by the provincial government through the April 27, 1956 proclamation that replaced the previous text. The National Convention approved the constitutional reforms on August 22, 1994 which became effective on August 24, 1994.
These reforms refer, fundamentally, to the organic part of the Constitution.
The ArgentineRepublic comprises 23 provinces and the city of Buenos Aires. The provinces are Buenos Aires, Catamarca, Corrientes, Córdoba, Chaco, Chubut, Entre Ríos, Formosa, Jujuy, La Pampa, La Rioja, Mendoza, Misiones, Neuquén, Río Negro, Salta, San Juan, San Luis, Santa Cruz, Santa Fe, Santiago del Estero, Tucumán, and Tierra del Fuego.
Each province has its own constitution which must state its administration of justice and municipal autonomy, and the scope and content of its institutional, political, administrative and financial orders.
Each province also elects its own authorities: Governor, Legislators and other provincial officers. They dictate their regional legislation through local institutions and are entitled to enter into international agreements as long as they abide by the national foreign policy and do not affect the Federal government faculties or the National public credit. Likewise, they are allowed to enter into partial treaties supported by the Federal government for the purposes of justice administration, economic interests and public interest works.
Provinces shall not execute partial treaties on political matters, enact commercial, interior or exterior navigation laws, set up provincial customs, mint currency, set up banks with bill issuance power without the Federal government authorization, dictate the Civil, Commercial, Criminal and Mining codes after being approved by the Congress, pass laws related to citizenship and naturalization, bankruptcy, currency forgery or state documents, establish tonnage rights or set up warship, neither shall they appoint or receive foreign agents.
The constitutional legal code established for the Argentine nation, since 1853, the above mentioned form of government, divided into the executive, legislative and judicial powers.
Executive Power
The Executive power is vested in the President who is in charge of the general administration of the country and the compliance with the NationalState interests.
The President and Vice President are elected directly through vote in general elections on a single electoral district basis. The Constitutional reform of 1994 introduced the two round system (or second ballot) in which, if the most voted formula achieves 45% of the votes or 40% with an advantage of more than 10% over the second formula, its candidates will be proclaimed President and Vice-President. Otherwise, there must be a second round between the two most voted formulas during the first round, and again, the candidates who obtain the majority of votes will be proclaimed President and Vice-President.
When the two round system was introduced in 2003, Carlos Saúl Menem (winner in the first round) had to step aside since Néstor Kirchner achieved the majority with over 22% of the votes obtained in the first round and was proclaimed President.
The President is the supreme head of the nation, controls the general administration of the country, and is the Commander-in-Chief of all the Armed Forces.
The Cabinet chief, appointed by the President, conducts the general administration of the country and together with the other Ministers endorses and authenticates with his/her signature presidential actions that would not be effective otherwise.
Official web page of the Presidency
Legislative Power
The Argentine Republic Legislative Power is conducted by the National Congress, made up of two chambers: the Chamber of Deputies and the Senate.
Chamber of Deputies
Deputies are elected by people and represent them.
The number of Deputies depends on the number of inhabitants. Currently, the Chamber of Deputies has 257 members. For election purposes, the country is divided into districts and each one elects its members roughly proportional to their population.
Each province is considered an electoral district and elects its Deputies by proportional representation using the D'Hondt method.
Five more Deputies are added to the number of Deputies elected in order for less populated provinces, which would otherwise be limited to one or two representatives, to have a greater representation.
Deputies are elected for a four-year term, with half of the seats renewed every two years and are eligible for re-election.
This Chamber has exclusive rights as regards levying taxes, sending troops and prosecuting the President of the Republic, State Ministers and members of the Supreme Court before the Argentine Senate.
See the Chamber of Deputies official web page.
The Senate
It is a provincial representation chamber made up of 72 Senators, 3 for each province and 3 for the Autonomous City of Buenos Aires. Senators are elected for a six-year term and can be re-elected indefinitely, with the party with the most votes being awarded two of the province's senate seats and the second-place party receiving the third seat.
The Senate renews one-third of the electoral districts (provinces) every two years. The Senate is presided over by the Vice-President of the Republic, who has the casting vote in the event of ties.
Elections of October 14, 2001 set up the definite mechanism that establishes the National Constitution after the 1994 reform. In fact, since this reform and until the before mentioned election, the constitutional text determined a temporary election system that ended with the term of office of all Senators on December 9, 2001 and established the beginning of a new period with some innovations, including the term of office duration (6 years) and the partial renewal of the Chamber (every 2 years).
It is particularly important how Senators are appointed.
Since the last election, members of the Honorable Senate are designated by popular vote, changing in that way the system that conferred this legal authority to local legislative bodies.
Once the partial renewal of the body was constitutionally determined, this first Senate in its new stage decided that legislators are chosen for two, four and six year periods. In this way, all Senators belonging to the same district would finish their term at the same time.
This is the only way two members can be elected for the majority and one for the first minority.
Finally, it should be stated that Senators may be re-elected indefinitely and that in the same election for a permanent position, a substitute is also chosen.
See the official web page of the Senate.
Judicial Power
The Judicial Power of the Nation shall be vested in a Supreme Court and in such lower courts as Congress may constitute in the territory of the Nation (section 108 NC). In no case the President of the Nation shall exercise judicial functions, assume jurisdiction over pending cases, or reopen those already adjudged (section 109 NC).
Until the adoption of the reforms, judges were appointed by the Executive Power with the consent of the Senate. In accordance with the new constitutional text, the Council of Magistracy shall be in charge of the selection of the judges (section 114 NC).
The Council shall be periodically constituted so as to achieve the balance among the representation of the political bodies arising from popular election, of the judges of all instances, and of the lawyers with federal registration. It shall likewise be composed of such other scholars and scientists as indicated by law in number and form.
The Justices of the Supreme Court and the judges of the lower courts of the Nation shall hold their offices during good behavior (section 110 NC).
The judges of the lower courts of the Nation shall be removed by a special jury composed of legislators, judges, and lawyers with federal registration (section 115 NC). In such cases of misconduct or crimes committed in the fulfillment of their duties; or for ordinary crimes (section 53 NC).
The Supreme Court and the lower courts of the nation are empowered to hear and decide all cases arising under the Constitution and the laws of the nation and under the treaties signed with foreign nations.
The Supreme Court exercises its appellate jurisdiction as per regulations and exceptions prescribed by Congress.
Notwithstanding the foregoing, the Supreme Court of Justice exercises original and exclusive jurisdiction over all cases concerning ambassadors, public ministers and foreign consuls; cases related to admiralty and maritime jurisdiction; matters in which the Nation shall be a party; actions arising between two or more provinces, between one province and the inhabitants of another province, between the inhabitants of different provinces, and between one province or the inhabitants thereof against a foreign state or citizen.
In the Argentine judicial regime, the administration of justice is a concurrent power of the nation and the provinces. Sections 5 and 123 of the National Constitution establish that each province shall enact its own Constitution in accordance with the principles, declarations and guarantees of the National Constitution "ensuring its administration of justice".
They elect their governors, legislators, and other provincial officers, without intervention of the federal government (section 122 NC).
Section 31 of the National Constitution states that the Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation, and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions.
It is the responsibility of each province for the enforcement of ordinary justice within the provincial territory, and also for applying the codes mentioned in section 75, subsection 12º - the Civil, Commercial, Criminal, Mining, Labor and Social Security Codes, depending on the respective jurisdictions for persons or things.
As regards the national justice, section 116 of the National Constitution establishes that The Supreme Court and the lower courts of the Nation are empowered to hear and decide all cases arising under the Constitution and the laws of the Nation, except for matters under provincial jurisdictions. In such cases, according to section 117, the Supreme Court shall have appellate jurisdiction.
See the official web page of the Judicial Power of the Nation.
Jurisdictions
Civil Jurisdiction
The Civil Courts have jurisdiction over civil law matters.
Civil code:
Jurisprudence:
Doctrine:
Commercial jurisdiction
Commercial judges have competence in all matters arising under commercial laws.
Commercial code:
mercio/CodigodeComercio.html
Jurisprudence:
Commercial doctrine:
Contentious-administrative jurisdiction
Contentious-administrative Courts have competence in all matters arising from administrative contracts in connection with Customs General Administration, the AFIP (Federal Administration of Public Revenue), fiscal executions, etc.
Jurisprudence:
Doctrine:
Labor jurisdiction
The Labor Justice shall have competence over contentious causes in individual conflicts arising from lawsuits related to labor contracts or collective Labor Agreements, and causes between employers and employees in relation with labor contracts, such as dismissals, notice of dismissal, compensation, accidents at work, etc.
Employmentcontractlaw:
Jurisprudence:
Doctrine:
Criminal jurisdiction
Criminal Courts have competence over all matters arising under the Criminal Code.
Criminal Code:
Jurisprudence:
Doctrine:
The value of jurisprudence
The Common Law has solved the problem of certainty of law in accordance with the stare decisis principle that states the moral obligation of jurisprudence drawn up by the Superior Courts, even when it is not a strict obligation but allows evolution as long as judges, once they move away from said precedents, refer to the inconvenience of its application.
The task of solving the theoretical aspects of a case, at Common Law Courts, is mostly based upon finding the right precedent. The advantage of precedent over the law is its singular decision nature that solves a specific matter and adjusts the underlying principle margin in that decision.
The Supreme Court of the United States has stated that "The stare decisis comprehends an important social policy. It represents the element of legal continuity and has its roots in the psychological need of fulfilling reasonable expectations".
Within the Common Law system, judges have the possibility of empirically examining the results of previous decisions or criteria, and when any inconvenience is shown in particular cases, they may step aside. Besides, the specific nature given to the principle content extracted from a case allows courts to have a wide range of variants to assess different details, and even consider the precedent non applicable.
In Argentina, codification of law has not allowed jurisprudence to reach the same significance.
Precedents carefully prepared for decades are sometimes made useless in a day by a Congress law that states the opposite, and that legal provision, as long as judges do not believe that it breaches the National Constitution, is considered mandatory.
The tradition of codification and regulation minimized the importance of jurisprudence, consigned to fill in legislative empty spaces.
But even within the restricted scope of jurisprudence, our Supreme Court set up regulations that state the compliance with its judgment.
Lower Courts can step aside the Court doctrine, even when judging similar cases, without placement of constitutional burden by virtue of its criteria autonomy, except when not knowing the judgment of a similar case, breaching the principle that states judicial decisions are mandatory.
However, the withdrawal shall not be arbitrary or groundless since judges only decide in specific processes assigned to them, and since the Supreme Court judgments are not mandatory for similar cases, lower judges must decide consequently. "As a consequence of this doctrine, it will be groundless all the judgments from lower courts that step aside the precedents of Court without providing new arguments which justify changing what the Court already decided, as supreme interpreter of the National Constitution and laws arising thereof."
The Supreme Court doctrine of judgments, also in Argentina, has moral authority that justifies the obligation, for lower courts, to support its judgments when not agreeing with the Supreme Court decisions; but, at the same time, it does not completely ban said disagreement. In this way, an organized growth of jurisprudence is allowed, without turning the Supreme Court into a new legislator, as later occurred when the Chambers' faculty of giving plenary judgments to unify jurisprudence was introduced.
Trial by Jury