Our country continues to be indebted to the long-awaited criminal procedure reform, with an adversarial adversarial system. Although it is true that the Federal Criminal Procedure Code has been implemented in some provinces (such as Salta and Jujuy), the reality is that in the majority of the country the implementation of said reform at the federal level is still pending.
Currently, we have a mixed system (Code of Criminal Procedure of the Nation), which in itself is an anachronistic system, extremely harmful to the system of law and to the defense of constitutional guarantees, where there is an investigating judge who collects evidence and who no one really controls it.
Time passes and we continue with justice from the last century. Unacceptable for our Republic.
By way of background, in the 1990s the “mixed” French model was adopted at the federal level, with the National Criminal Procedure Code, in force since September 5, 1992, prepared by Clariá Olmedo, Levene (h ) and Torres Bas, which is why it was called “Levene Code”. This meant subscribing to the application of the mixed procedural system, with a written instruction, by the investigating judge and with a debate by an oral court, whose sentences are reviewed by the Criminal Cassation. Procedures more compatible with the adversarial system were progressively incorporated, such as, by delegation, the prosecutor can investigate, but which have little or nothing accusatory.
This process culminated in December 2014 with the sanction of a new National Criminal Procedure Code, suspended in force by a Decree of Necessity and Urgency No. 257/2015 and later modified by Law 27,482/2019, which gives it the name of the Federal Criminal Procedure Code (CPPF).
As we already said, this procedure came into force in the provinces of Salta and Jujuy in June 2019, despite the fact that some regulations govern in the country, such as the so-called coercive measures, which play in parallel with the Code of Criminal Procedure of the Nation that is still in force.
Several years have passed and we are still waiting to see. There is no reason for political power to continue delaying the implementation of the Federal Criminal Procedure Code.
The incoming government must establish a deadline to finally fulfill the constitutional mandate of implementing the adversarial system throughout the country. I am confident that it will be so.
¿What benefits would the adversarial system bring to federal justice and to the rights of people involved in criminal proceedings?
As criminal law litigants, we know that our procedural system is ineffective and that the weakest in society have great difficulty accessing justice. Therefore, there is an urgent need to improve the levels of legitimacy and effectiveness of this justice system.
It is feasible to highlight in this accusatory procedure the virtues that orality has to reduce case resolution times and the possibility of providing quality solutions to conflicts.
Likewise, and taking into account the reform, the virtues of contradiction, concentration, immediacy, speed and deformalization are highlighted. And this is very important because currently we have a system where the judges practically do not know the parties, they judge facts that are written in a file, but they are not aware of the real conflict in which those are involved and where the time in which it lasts a process doesn’t seem to matter to them either.
For a more equitable society, Argentina needs the urgent implementation of the Federal Criminal Procedure Code throughout the country.
This Code, in addition to introducing a notable advance towards debureaucratization and paperless procedures, recognizes simplicity as one of the principles that the process must observe. This happens in most Latin American countries.
What difficulties or resistance have been encountered in implementing the new Code throughout the country?
Beyond the political issues raised by this Federal Procedural Code, the truth is that this procedure takes away power from the investigating judge, who would become a judge of guarantees. In my view, it is an extremely positive change, although many courts do not see it that way.
The power to which I refer would pass into the hands of the investigating Prosecutor. This prosecutor in the current code is often ignored by the investigating judges, when they discretionally take away the investigation that they themselves delegated to him.
There is currently a lot of resistance from those judges who believe they are owners of power, which in reality they never had. These types of judges should leave office immediately, since justice is going through one of the worst moments in Argentine history and this radical change will bring predictability and legal security, which both natural and legal persons need.
In reality, the old investigating judge (turned into one of guarantees) will never lose power, quite the opposite. He will win it because the most important decisions of the criminal process, such as the freedom of the accused, telephone interventions, raids, referrals to trial, etc. etc., the judge will take them. And it is the prosecutor who will lead the investigation where he will send the evidence collected to the judge to move forward in a certain direction.
Let us hope that the incoming government becomes aware that for society to advance (not only on a legal level) it must urgently implement, once and for all, the adversarial accusatory system for criminal justice throughout the country.
Text: Dr. Federico Lucio Godino
by CEDOC
