For the prosecution and displacement of the judicial official, which occurred a little over two years ago, the Superior Court of Justice of Entre Ríos (STJER) accepted an “ad hoc prosecutor”, something not provided for in the legislation, with the argument that no one of the MPF would act impartially.
Goyeneche was prosecuted and removed, with judicial approval from the STJ. But that issue generated a claim by the former Deputy Attorney General before the Supreme Court of Justice of the Nation (CSJN) that has yet to be resolved. In that process, the Attorney General’s Office of the Nation has just issued a ruling.
In the document, the Attorney General of the Nation, Eduardo Casal, considered that the STJER must resolve again, that is, issue a new ruling on the matter, and argued that having displaced the Public Prosecutor’s Office (MPF) of the province as the accusing body in the jury, is grounds for the nullity of all the actions taken and a “serious violation of due process.”
The Attorney General of the Nation did not grant all of Goyeneche’s proposals. In fact, when analyzing the positions of the parties, he highlighted that “the court did not give rise to the claims regarding the fact that the HJE was integrated according to the design provided for by the provincial Constitution of 1933, thus omitting the incorporation of the members from the new category linked to ‘social organizations representing citizens’. He considered that, in addition to requiring a legislative regulation that would make the integration with nine members operational, the operation of the jury in accordance with the provisions of Law 9283 is not incompatible with the new constitutional design, in the terms of article 282 of the provincial Magna Carta. ”.
And he stressed that in his “view, the grievances formulated by the appellant on this point must be rejected, since they refer to the examination of local norms that are, by their nature, foreign to this federal procedure; and there is no evidence of a gross ignorance of the norms or that the alleged non-compliance with these precepts has generated an affectation of the due legal process of the entity that is required in these cases.”
However, he later considered: “On the contrary, I understand that the appellant’s grievances tending to demonstrate the arbitrariness of the ruling on the basis that the ‘accusing’ body was not properly formed as all the members of the committee had been displaced are admissible.” Public Prosecutor’s Office and appointed an ad hoc prosecutor from the list of co-judges formed for the purpose of serving in the Provincial Superior Court.”
And he added that “it should be noted that, despite the extensive arguments presented to justify the decision on this point, the ruling fails to adequately establish the reason why it considers that the departure of the Attorney General and the Public Prosecutor’s Office was legitimate in their totality, when the legislator expressly attributed to said body the function of accusing in the jury process processed before the HJE. Nor does it find any legal basis, in my view, for the praetorian creation of calling a registered lawyer to be part of the list of co-judges in the face of an alleged ‘regulatory vacuum’.”
“It is worth remembering that article 11 of Law 9283, in what is of interest here, establishes that ‘before the Jury, whoever acts as such before the Superior Court will act as Prosecutor; and he will be appointed at the time the complaint is filed. In turn, article 9 refers to the inhibitions and challenges of the jurors, the prosecutor and the secretary, providing that ‘for well-founded reasons they may be raised until the accusation is answered, except for supervening causes; and they will be processed and judged in accordance with the relevant regulations of the Code of Criminal Procedures of the Province and for the reasons referred to in Article 25 of this Law,’” he stated.
Casal refuted the STJ’s arguments regarding an alleged “legal loophole” or the existence of a “difficult case.” “Contrary to what was stated by the court, from the appreciation of the set of regulations outlined above, the existence of a ‘difficult case’ or a ‘legal loophole’ is not evident. Nor does it seem reasonable to deduce that, given the peculiar situation of the two highest authorities of the Public Ministry being denounced, a lawyer from the list of co-judges could be appointed in order to replace the accusing body before the HJE, but rather that this one – if found configured any of the foreseen grounds for departure – must be replaced by the corresponding official of the Public Prosecutor’s Office in accordance with the provisions of the rules applicable to the case, which cannot be ignored without producing a serious impairment of the constitutional guarantee of due process. .
He added that “it is also not valid to maintain that the objectivity and impartiality of the accusing body was compromised due to the rigid structure of the Public Prosecutor’s Office and the relationships of subordination that this would entail. In relation to this point, it should be noted that, although the operation of this body is governed by the principles of unity and coherence of action (articles 1 and 10 of Law 10,407) in order to coherently outline the criminal policy of the Public Prosecutor’s Office in its criminal prosecution function, the truth is that the official who replaces the Attorney General – due to his excuse or recusal – will act within the framework of a prosecution process with full autonomy and without receiving orders or instructions from a hierarchical superior, since he will be exercising the accusatory power before the HJE assigned to him by Article 11 of Law 9283, that is, on this occasion he will assume the role of prosecutor before the higher court, regardless of the position that corresponds to him within the structure of the Public Prosecutor’s Office.
And at the end of his opinion, he stated: “Therefore, the court’s argument is inadmissible according to which it was reasonable for the HJE to be afraid of the lack of objectivity and impartiality of the prosecuting body by virtue of the top-down structure of the Public Prosecutor’s Office. and the ‘media and corporate defense raised’ by its members in favor of the former prosecutor. This is so, since validating the flawed actions of the jury on the basis of a prediction that none of the subordinates will exercise the accusing function objectively would imply admitting that the dismissal of the officials of the Public Ministry is at the mercy of the appreciation of “make the judges about the probabilities of performing correctly that the person acting as prosecutor in the jury has.”
“Given this, the circumstances invoked by the a quo did not enable the HJE to deviate from what is specifically provided for by the applicable regulations, taking as ‘possible parameter of applicants taking into account their suitability and probity’ professionals outside the body that was supposed to exercise the accusation, nor does it arise from the ordinance – expressly or implicitly that they should summon those who were opportunely appointed with the objective of replacing the members of the highest court, since not even the probity and honorability that such an appointment means authorizes creating a praetorian solution with the pretext that a ‘clearly exceptionally serious situation’ has arisen,” he warned.
Consequently, he understood that “the appealed sentence, insofar as it validates the decision of the HJE to displace the legally established body to formulate the accusation against the former prosecutor, thus departing from the applicable norms, involves a serious violation of the guarantee of due process in the terms of art. 18 of the National Constitution, which authorizes it to be disqualified under the terms of the doctrine on arbitrariness of sentence.”
And he concluded: “In view of the solution that is advocated, I consider it unnecessary to deal with the remaining arguments brought to the attention of Your Excellency. I believe, for all of the above, that it is appropriate to give rise to the complaint, declare the extraordinary appeal filed admissible, leave without the appealed sentence will take effect and return the proceedings to the court of origin so that a new one can be issued in accordance with the law.”
