2024-01-09 12:06:11
Each new political era in our country invites us to ask ourselves if this time will be the time to understand that the system of justicein all areas, goes through a deep crisis that has reached the point of annulling almost all possibility of there being a true reinsurance of citizen life in a republican model and in the Rule of law.
The dominant political class, almost the entire space of the hegemonic media, some sector of intellectual life, a good part of the so-called academy, have been prodigal in the development of mechanisms to conceal or relativize the problem.
For a sector of politics that exercises the power of the day, any attempt at criticism or judicial transformation has the vice of seeking impunity for those who are not in power and must be persecuted.
The curiosities of Milei’s omnibus law: black robe and gavel for judges and express divorces
For a good part of the intelligentsia, especially when there are risks of a power dominated by populist governments, simply observing critically the sector judicial It is nothing more than the tendency of this type of administrations to absolute power and must be alerted and severely questioned.
For the hegemonic media, particularly when those in power are not socially linked to the media companies, the proposal for paths of transformation must be emphatically criticized as attacking the sacred judicial independence.
For the Judges’ associations, no one should raise their voice with critical arguments if they wish to escape the accusation of immoral persecution of independent judges.
For the management bodies of law courses, both undergraduate and postgraduate, in public and private universities, given the glamorous coexistence of judges and prosecutors who teach with liberal lawyers who teach and with professional politicians who also teach, particularly In our country, it is always preferable to look the other way when the need arises to evaluate the degree of deterioration of the judicial system.
Judicial powers under threat
Of course, not everyone fares equally in the media ratings of judges and prosecutors. Depending on who exercises power, on the interests defended by the media dedicated to so-called journalism and on whether the unfortunate official swims for or once morest the current that must be installed and defended, the tenor of the warm praise or ruthless criticism that their behavior deserves.
There will be judges that they should be destroyed for publicly exposing their affiliation to an uncomfortable group or others whose “institutional bravery” will be emphasized by ostensibly collaborating with this type of organization but, of course, of different ideological tendencies.
In times of punitivism, the application of a criminal law constitutionally limited by the validity of basic guarantees and fundamental principles that leads to not applying punishment to a citizen will only garner requests for impeachment, but, in this type of historical transitions, if this limitation favors to a citizen who works as a police officer in an alleged trigger-happy case, will generate positive mentions, diplomas and benevolent notes in the most widely distributed written media. These are moments in which, contrary to all the evolution of the ideas of political philosophy on which we found our institutional culture and our community ethics, the guarantees are there but not to protect the citizen once morest official power but to empathize and guarantee impunity. who exercises state control.
The aforementioned idea of judicial independence It has also gone through a magical process of distortion: it must be preached in relation to the ordinary citizen. Regarding the centers of power, it seems that this autonomy is not so relevant.
Senator Luis Juez was sworn in as a representative on the Judicial Council
In the best inquisitorial style, the aesthetics, architecture, bureaucratic and procedural forms and even the language that surround the judges seem designed so that no normal man or woman can even get close to them, much less understand what it means to do justice. Lack of understanding is an excellent ally of the impossibility of criticism. It is very moving to observe how, on a daily basis, any ordinary person who intends to speak with the judge regarding the case that concerns him in his private life has to first overcome the indifference and then the surprise of the judicial employees with such a tortuous and formal as normally ineffective. For the powerful there is always the excuse and the elegant intimacy of fly fishing in the south of the country and then some opportune decision by a benchmate who will arrive in time to establish impunity in print. In short, these are the cases that demonstrate the importance of having taken the course of evidentiary prohibitions that before then seemed only destined to reward with favorable judicial decisions the defenders who planned these “chicanas” normally neglected.
This demonstrates the convenience of the judge who performs his duties 20 meters from the magistrate who must be tried for some “trifle” being the one who resolves the matter: at least at this point the coexistence of 12 co-workers is possible. .
You have to look closely for a case of conviction or even prosecution of a federal criminal and correctional judge with his office in Comodoro Py dictated by another judge with that jurisdiction and competence. This is the concept of judicial family. Nothing more, nothing less.
Agustín Rossi: “The Judiciary is colonized by the judicial party”
This state activity is one of the few that is almost absolutely exempt from any audit.
If someone, some technical organization of the United Nations, for example, took the trouble to measure respect for the regional guarantee that all citizens have that justice be done within a “reasonable period of time,” we would not only clearly see the enormous number of cases in which there are monumental delays (10 years and more), but the most immoral angle of these delays would emerge: the absolute discretion that judges and prosecutors have to go from exasperatingly slow mode to dizzying speed. This is not a causality and much less is it banal: in this way it is evident that times are not the product of ineffective management problems (of which there are many) but are a consequence of a discretionary power that has no control and is guided by interests that exceed the function of simply doing justice. In this sense, I propose to change our perspective: the duration of the process, at least in the justice sector where we focus our attention, is not an operational problem, but rather an enormous ethical problem..
If that same organization did a job of analyzing a universe of judicial rulings (50? 100?) on the structural and argumentative use of the principles of the regional and universal system of human rights and our National Constitution (principles of legality , guilt, defense in court, proportionality, principle of act, in dubio pro reo, etc, etc) we would reach the conclusion that this essential normative system is invoked little, not at all and poorly.
If on a clear day we decided to study in depth the actions and decisions of assignment and reassignment (for reasons of connection) of cases to judges, we would realize that the paths to decide that case “Y” falls to the judge “ X” are neither transparent, nor coherent, nor stable, nor predictable. The problem seems minor but it is not: it is regarding respect for the fundamental principle of the Natural Judge. The situation is so worrying that we lawyers talk with exasperating regularity regarding “forum shopping” (choosing the judge that suits “me”).
If in our study we decided to analyze how much the principle of equality before the law is respected, we might comparatively analyze similar cases and verify the judicial reactions that these matters would have deserved. I fear the results will be depressing: there is no such thing as a stable jurisprudence resistant to the seductions of the individual case. Of course, this is not obvious: the magistrates are effective in finding the details that make each case so unique and unrepeatable that it invites a novel and unconditional application of the law.
The opposite of equality before the law is the alarming selectivity that the judicial system displays: this is even visible where it should least happen, in access to the highest instance of control, the Supreme Court of Justice. It is a path full of darkness, curves and mystery that we must travel when it comes to discovering what criteria the Court uses to decide whether or not it should intervene in a court case.
The community observes this crisis without conditions. Without a doubt, a massive and serious survey would offer results that were not at all encouraging. It is enough to ask ourselves what the performance of the criminal justice in the few cases, socially transcendent, once morest which the civil society cries out for a prestigious reconstruction of the truth, of the historical fact. It is feasible to say that in cases where the community demand for clarification was to a greater extent, the failure has been more resounding.
This crisis What we once called, in a somewhat technocratic way, “multidimensional”, is also noted when measuring care, seriousness and neatness when legislative instruments of dubious morality such as the law of repentance are applied. Sometimes it seems that everything is done to avoid control rather than to favor it as is expected in a judicial system of the rule of law.
Community peace is achieved with the truth and the truth does not seem to be achieved by a justice in crisis cLike the one we just described. The problem does not lie in the absence of robes and hammers. We must not forget that the guardian of freedom is not a political party, much less a group of enthusiasts, but that this function resides in the judges of the Constitution.
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