VZCZCXYZ0000
OO RUEHWEB

DE RUEHBU #0056/01 0162045
ZNR UUUUU ZZH
O 162045Z JAN 09
FM AMEMBASSY BUENOS AIRES
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2876
INFO RUCNMER/MERCOSUR COLLECTIVE

UNCLAS BUENOS AIRES 000056 
 
SENSITIVE 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL PGOV KJUS ELAB SENV PHUM AR
SUBJECT: Argentina: Supreme Court gradually reasserts itself 
 
¶1. (SBU) SUMMARY.  Although Argentina's overall court system is 
still perceived as inordinately slow and ineffective, the Supreme 
Court gained considerable ground in 2008.  By rendering 
politically-sensitive judgments in leading cases or mandating 
executive branch action in some areas, Argentina's Supreme Court 
recovered some prestige and institutional influence this last year. 
It consolidated its standing as the head of a more independent 
judicial body.  Among its most notable rulings were a decision in 
favor of plural union representation and a mandate for environmental 
mitigation actions.  END SUMMARY. 
 
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Justices at Work 
------------------ 
 
¶2. (SBU) While the bulk of Argentina's judicial system remains 
hampered by inordinate delays, procedural logjams, changes of 
judges, inadequate administrative support, and general inefficiency, 
Argentina's Supreme Court of Justice was unusually active in 2008. 
Legal scholars and NGO representatives agree that the Court 
recovered a traditional institutional role in the checks and 
balances system that it had not been exercising properly for years. 
Adrian Ventura, who covers the judicial beat in newspaper of record 
"La Nacion," noted that while the overall court system still had low 
approval rating ratings in public opinion polls, the Supreme Court 
was the public institution that had gained the most ground in 2008. 
By rendering a number of politically-sensitive judgments and making 
recommendations to other branches of government (and seemingly 
reaching beyond its judicial purview to do so), the Supreme Court 
re-emerged as a political actor in domestic affairs. 
 
-------------------------- 
Independence as a Standard 
--------------------------- 
 
¶3. (SBU) The Supreme Court showed independence from the executive 
and legislative branches, and its decisions at times clashed with 
ruling-party expectations.  In the year's biggest political drama -- 
the March-July conflict between the Kirchner administration and the 
agricultural sector over increased export duties on soy and other 
products -- the Court induced the GOA to submit its decree to 
Congress for approval, leading to the dramatic July 17 tie-breaking 
vote by Vice President Cobos against the government proposal. 
 
¶4. (U) In April, the Court ruled against the Chamber of Deputies' 
decision not to admit Deputy-elect Luis Patti to the Chamber over 
allegations of "moral incapacity." At the time, there were ongoing 
legal investigations into Patti's purported participation in crimes 
against humanity during the military dictatorship (1976-1983), but 
the proceedings were at an early stage.  The Court determined that 
the Chamber of Deputies had acted unconstitutionally and violated 
its own rules by preventing an "innocent until proven guilty" 
deputy-elect from taking his seat. 
 
¶5. (U) A decision in July decreed the National Environmental 
Secretary and President of the Matanza-Riachuelo basin -- a highly 
contaminated area spreading out of Buenos Aires City and some 
districts of the Buenos Aires province -- to be personally liable 
for any delays in decontamination efforts in the area.  It also 
tasked respective authorities with specific duties and deadlines to 
address pollution. 
 
¶6. (SBU) A November decision on freedom of association was 
particularly sensitive, as it represented a threat to the 
monopolistic model of union representation in Argentina that has 
prevailed for more than 60 years and is the traditional support base 
for the Peronist movement.  The Court ruled for freedom of 
association, and declared Article 41 of the Trade Unions Law 
unconstitutional, upholding the right of workers' unions that lack 
official legal recognition to elect their own delegates.  The ruling 
caused deep concern among the main leaders of the recognized 
Workers' General Confederation (CGT), while it encouraged the 
non-official Argentine Workers' Central (CTA) to resume its fight 
for legal recognition. 
 
¶7. (SBU) In early December, the Supreme Court rejected the automatic 
release of 60 children detained in a Juvenile Detention Center, in 
part due to fears over their safety from corrupt police officers if 
released early.  Subsequent statements by some Justices explained 
that this decision sought to protect minors against police brutality 
and death or forced criminal activity had they been freed.  Although 
the Supreme Court acknowledged that Argentina's current juvenile 
criminal system did not comply with Argentina's commitments under 
several international conventions, it ratified the need for the 
legislative branch to amend the law and bring it in line with 
international standards providing greater protection for children. 
 
¶8. (SBU) Addressing dissatisfaction with the very limited progress 
regarding cases for human rights violations during the military 
dictatorship (in which courts have resolved only 12 out of almost 
800 cases, according to Supreme Court's statistics), the superior 
tribunal ordered federal courts to accelerate proceedings.  It urged 
the Council of Magistrates to speed up the selection of candidates 
to the judicial bench and to allocate more financial resources to 
the judiciary.  Likewise, the Court recommended the executive and 
legislative branches reform the criminal procedural laws to expedite 
complex cases and ease the judges' work.  The Supreme Court's 
decision followed an appellate court's release of several 
individuals accused of human rights violations.  The appellate court 
ruled that they had been in pre-trial detention for more than the 
maximum legal limit of two years.  After the President and human 
rights activists publicly criticized this decision, a prosecutor 
appealed the decision, and the two most notorious defendants, 
Alfredo Astiz and Jorge "Tigre" Acosta, remain incarcerated pending 
the appeal. 
 
------------------------ 
Actions, More than Words 
------------------------ 
 
¶9. (SBU) The Supreme Court also addressed issues of public interest 
by creating specialized offices. In an attempt to expand access to 
justice, the Supreme Court established the Office of Domestic 
Violence in September.  The office offers a multi-professional 
approach for victims of domestic violence, who can seek assistance 
and later file complaints, if necessary. The office, which reports 
directly to the superior tribunal, is intended to be available 24 
hours a day throughout the year, but as a pilot project it only 
assists victims in the Buenos Aires City. 
¶10. (SBU) In late December, when the Supreme Court addressed the 
issue of the slow pace in cases of crimes against humanity, it 
created a Superintendent's Office to monitor ongoing human rights 
cases, which could request information of judges and provide advice 
to speed up proceedings. Following this announcement, the President 
Pro-Tempore of the Senate indicated the Senate will be considering a 
bill to expedite human rights cases after the January recess. 
¶11. (SBU) As the judiciary in general is swamped by Argentina's high 
levels of litigation, the Supreme Court sent two notes to the 
Justice Minister in July and August requesting the creation of two 
new oral federal tribunals and the amendment of a law to limit 
appellate motions only to cases involving serious crimes.  Thus far, 
the executive branch has not responded to the Supreme Court's 
request. 
¶12. (SBU) To make judicial issues more easily accessible to the 
public, the Supreme Court re-designed its website to facilitate the 
search for cases and accessibility to statistics across the court 
system.  The Supreme Court also created a technical experts team to 
propose and implement measures to improve judicial management. The 
team was able to advance several initiatives aimed at reducing 
time-consuming administrative activities by replacing them with 
electronic summoning or the use of electronic communications by law 
enforcement agencies to testify in cases, as well as facilitating 
information-sharing between the Electoral Court and ordinary and 
federal civil, commercial, criminal, labor and social security 
courts. 
----------------------------------------- 
The New Year Brings Politically-Sensitive Cases 
----------------------------------------- 
 
¶13. (SBU) Following the January recess, the Court will analyze a 
number of politically-sensitive cases that threaten to raise 
tensions between the executive and the judicial branches: the 
legality of the 2006 legislative reform to the Council of 
Magistrates sponsored by President and then-Senator Cristina 
Fernandez de Kirchner; a determination of the limits on the 
president's authority to issue necessary and urgent decrees; the 
legality of the executive branch's so-called "superpowers;" and a 
decision on the decriminalization of drug possession. 
 
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Comment 
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¶14. (SBU) Legal scholars are generally in agreement in applauding 
the efforts of the Supreme Court during the year to establish a more 
robust institutional role after a long period of judicial passivity. 
 Supreme Court president Ricardo Lorenzetti deserves (and gets) much 
credit for his moderate and responsible leadership of the court. 
Ultimately, former president Nestor Kirchner also deserves much 
credit for the current Supreme Court constellation, a vast 
improvement over the line-up that was in place before he overhauled 
the Court in 2004. 
 
¶15. (SBU) Although the Supreme Court has made much progress, the 
rest of the judicial system remains slow and ineffective, in large 
part due to remnants of the inquisitorial criminal justice system 
used in federal and many provincial courts.  The Ministry of Justice 
is working on a proposal for penal reform.  Judges have broad 
discretion as to whether and how to pursue investigations, 
contributing to a public perception that many decisions were 
arbitrary.  There are more allegations of corruption and political 
influence in the judiciary in the provinces than in Buenos Aires. 
 
WAYNE