Slow Justice Is NO Justice! — Argentina’s Dysfunctional Judicial System

By Friederike Elias

4161 Days. That is 592 weeks, 137 months or 11 and 2/5 years.

Such is how long a legal proceeding against corruption in Argentina takes on average. Not infrequently, these procedures fizzle out in the statute of limitations.

Source: Pixabay

As a matter of fact, this means impunity in cases where a lot of money is involved and often wealthy representatives of the Argentine elite sit in the dock. More routine procedures, on the other hand, are quickly tried and convicted. While Europe and the US are grappling with the question of how to prevent corruption through more transparency, the problem in Argentina is more fundamental: what can be done to prevent offenses in the field of economic crime from being unpunished?

From a social science perspective, different starting points are considered:

From a political science point of view, the disadvantages of presidential system are revealed here: the judiciary is not independent of politics. The judges work as part of the political class, as each president builds his own court and appoints his own judges of the Supreme Court. The judges have no fixed positions and therefore try to protect their position and career by not attacking the government. Cases in which the government is involved will not be tried until the presidency has changed hand (one example is the case of José Francisco López, ex-State Secretary of the Administrations of both Néstor and Cristina Fernández de Kirchner, which did not take off until after the change of government in Argentina). The personal interests of the judges and the strict application of the laws come into conflict here.

In terms of considerations on the sociology of elites, one could argue that individual elites cooperate because of their common origin, their common course of education, and their common social circles. Judges, prosecutors and lawyers and even the defendants themselves are mostly hailing from long-established upper-class families, have known each other since college, are members of the same clubs and practice the same sports. They are part of the same social class and often meet at work and in private life. Delay strategies can be noticed at all stages of the legal proceeding and by all parties involved.

The prosecutors usually stick to the timetable for the opening of a trial – 24 hours are scheduled – if people were remanded in custody. Inquiries to the police, other judges and lawyers are usually formally made via written requests and telegrams rather than fast by personal conversation, fax or e-mail. It is often required to file the allegations in the form of a sworn declaration before the proceeding opens. Therefore, the mere opening of the proceeding may already cost several months. This period of time serves different strategies – to talk to relevant people or to wait for the case to land on the front pages of newspapers.

Source: Pixabay

Even in the initial, written part of the judicial process, the so-called opening procedure, judges and prosecutors strongly adhere to formalism and the investigations are more extensive than would actually be necessary. At this stage of the process, most delays occur and this is the main reason why the cases often never reach oral proceedings. In the López case, for instance, the Judge-in-Charge spent 8 years gathering the documents. Here the Judge-in-Charge had taken measures to keep the case open but not to bring it to an investigation.

Lawyers usually advise their clients, who are to be questioned as witnesses, not to observe the appointments set by the court. Instead, the lawyers ask the courts why their clients should be questioned and adjust for a new date for the testimony. In the course of this procedure, there is often a „bargained investigation“ in which the limits and the scope of the investigation, the witnesses and the evidence are verbally agreed in advance, before the investigation results are fixed in writing.

From a perspective of organizational sociology, an overloaded and dysfunctional bureaucracy and unwritten rules resulting from it could be cited. Investigations into corruption cases are conducted by 12 judges and 12 prosecutors at the Cámara Nacional en la Criminal y Correctional Federal. Each of them has a secretariat where the court records are kept. The judges themselves only work on the most important cases – cases in which social disasters occurred or prominent personalities were involved. Actually, the judges are in charge of directing the investigation, while the prosecutors should make sure that the judges, in the course of performing their duties, respect the laws. In reality, prosecutors conduct the investigation while asking judges for the order to take specific measures, such as interceptions or house searches. Staff of the secretariat design the investigation, conduct the witness questionnaire, and draft prosecutors‘ closing arguments or judges‘ verdicts. The collaboration of different people and employee groups leads to different rulings in similar cases.

From a criminal-sociological point of view, it can be said that the mixture of tasks entrusted to the judges of the Cámara Nacional en la Criminal and Correccional Federal has an unfavorable effect. These judges are responsible for all cases involving human trafficking, drug and economic crime at the federal level. If there are specific victims in cases, public attention will be more focused on these cases and they will be given priority. These include criminal acts during the Argentine military dictatorship, with which the judiciary is still heavily occupied. In contrast, victims are more abstract in corruption cases. The result is a social damage that is not individually attributable.

Whoever wants to attribute these facts, nonetheless, to developmental theory, shall be careful. Germany is also struggling with similar problems. The judicial process involving the offense of economic crimes also take an excessively long time, as the trial of Georg Funke, the former head of the scandal bank Hypo Real Estate (HRE) shows. The case was closed at the end of last year with a fine because the evidence was not collected quickly enough and limitation of actions impended. Just like Argentina, similar problems are also referred to here: Overburdened judges and prosecutors, lack of staff and delay strategies, as well as stronger financial resources of the defandant. So Argentina and Germany have more in common than you think at first glance.

 

Sources

Delgado, Federico, Catalina De Elía (2016): La cara injusta de la justicia. Por qué la justicia argentina es su propia enemiga, Ediciones Paidós.

FAZ (2017): Überforderte Justiz. Kommen Manager vor Gericht besser weg?, accessed on 12.01.2018.

FAZ (2017): Georg Funke: Prozess gegen ehemaligen HRE-Chef eingestellt, accessed on 12.01.2018.

Observatorio de Causas de Corrupción (oJ): Qué es Comodoro Py, accessed on 12.01.2018.

Oficina de Coordinación y Seguimiento en materia de Delitos contra la Administración Pública (OCDAP), Ascociación Civil por la Igualdad y la Justicia (ACIJ), Centro de Investigación y Prevención de la Criminalidad Económica (CIPCE) (2012): Los procesos judiciales en la materia de corrupción. Los tiempos de proceso. Estado de situación, accessed on 12.01.2018.