A Research Guide to the Argentine Legal System
By Dr.Gisela Monge Roffarello, Emilse Monge Roffarello,
Dr. Ezequiel Trajtenberg and Prof. Eng. Julio O. Trajtenberg
Dr. Gisela Monge Roffarello is a lawyer in Cordoba, Argentina. Emilse Monge Roffarello is enrolled in the Law and Social Science School, at the Catholic University of Cordoba, Argentina. Dr. Ezequiel Trajtenberg is a professor of law and philosophy at the Catholic University of Córdoba, Argentina. Professor Engineer Julio Trajtenberg is senior Adviser in computer sciences and digital signature at the I.R.S. of Argentina (AFIP -Administracion Federal de Ingresos Publicos); he had been Adviser in computer sciences at the Justice Department of Argentina.
Published January 2006
Table of Contents
The Argentine nation adopts for its democratic government the Representative, Republican and Federal form. It is representative because the country is governed by representatives of the people. It is republican because people elect their representatives through vote, because the country is governed by a tripartite system made up of an Executive Power, a Legislative Power, and a Judicial Power, and because Argentina adopts a written Constitution. Finally, it is federal because the provincial governments keep their self-rule despite responding to a common government (The National government). The nation adopts this form of government as established by the National Constitution, passed on 1853.
This text was modified in 1860 when the province of Buenos Aires is included, since it was not part of the Argentine Confederation in 1953.
Then, in 1949, a constitutional convention replaced the 1853/1860 text for a new one which was rendered null and void by the provincial government through the April 27, 1956 proclamation that replaced the previous text. The National Convention approved the constitutional reforms on August 22, 1994 which became effective on August 24, 1994.
These reforms refer, fundamentally, to the organic part of the Constitution.
The Argentine Republic comprises 23 provinces and the city of Buenos Aires. The provinces are Buenos Aires, Catamarca, Corrientes, Córdoba, Chaco, Chubut, Entre Ríos, Formosa, Jujuy, La Pampa, La Rioja, Mendoza, Misiones, Neuquén, Río Negro, Salta, San Juan, San Luis, Santa Cruz, Santa Fe, Santiago del Estero, Tucumán, and Tierra del Fuego.
Each province has its own constitution which must state its administration of justice and municipal autonomy, and the scope and content of its institutional, political, administrative and financial orders.
Each province also elects its own authorities: Governor, Legislators and other provincial officers. They dictate their regional legislation through local institutions and are entitled to enter into international agreements as long as they abide by the national foreign policy and do not affect the Federal government faculties or the National public credit. Likewise, they are allowed to enter into partial treaties supported by the Federal government for the purposes of justice administration, economic interests and public interest works.
Provinces shall not execute partial treaties on political matters, enact commercial, interior or exterior navigation laws, set up provincial customs, mint currency, set up banks with bill issuance power without the Federal government authorization, dictate the Civil, Commercial, Criminal and Mining codes after being approved by the Congress, pass laws related to citizenship and naturalization, bankruptcy, currency forgery or state documents, establish tonnage rights or set up warship, neither shall they appoint or receive foreign agents.
The constitutional legal code established for the Argentine nation, since 1853, the above mentioned form of government, divided into the executive, legislative and judicial powers.
The Executive power is vested in the President who is in charge of the general administration of the country and the compliance with the National State interests.
The President and Vice President are elected directly through vote in general elections on a single electoral district basis. The Constitutional reform of 1994 introduced the two round system (or second ballot) in which, if the most voted formula achieves 45% of the votes or 40% with an advantage of more than 10% over the second formula, its candidates will be proclaimed President and Vice-President. Otherwise, there must be a second round between the two most voted formulas during the first round, and again, the candidates who obtain the majority of votes will be proclaimed President and Vice-President.
When the two round system was introduced in 2003, Carlos Saúl Menem (winner in the first round) had to step aside since Néstor Kirchner achieved the majority with over 22% of the votes obtained in the first round and was proclaimed President.
The President is the supreme head of the nation, controls the general administration of the country, and is the Commander-in-Chief of all the Armed Forces.
The Cabinet chief, appointed by the President, conducts the general administration of the country and together with the other Ministers endorses and authenticates with his/her signature presidential actions that would not be effective otherwise.
The Argentine Republic Legislative Power is conducted by the National Congress, made up of two chambers: the Chamber of Deputies and the Senate.
Deputies are elected by people and represent them.
The number of Deputies depends on the number of inhabitants. Currently, the Chamber of Deputies has 257 members. For election purposes, the country is divided into districts and each one elects its members roughly proportional to their population.
Each province is considered an electoral district and elects its Deputies by proportional representation using the D'Hondt method.
Five more Deputies are added to the number of Deputies elected in order for less populated provinces, which would otherwise be limited to one or two representatives, to have a greater representation.
Deputies are elected for a four-year term, with half of the seats renewed every two years and are eligible for re-election.
This Chamber has exclusive rights as regards levying taxes, sending troops and prosecuting the President of the Republic, State Ministers and members of the Supreme Court before the Argentine Senate.
It is a provincial representation chamber made up of 72 Senators, 3 for each province and 3 for the Autonomous City of Buenos Aires. Senators are elected for a six-year term and can be re-elected indefinitely, with the party with the most votes being awarded two of the province's senate seats and the second-place party receiving the third seat.
The Senate renews one-third of the electoral districts (provinces) every two years. The Senate is presided over by the Vice-President of the Republic, who has the casting vote in the event of ties.
Elections of October 14, 2001 set up the definite mechanism that establishes the National Constitution after the 1994 reform. In fact, since this reform and until the before mentioned election, the constitutional text determined a temporary election system that ended with the term of office of all Senators on December 9, 2001 and established the beginning of a new period with some innovations, including the term of office duration (6 years) and the partial renewal of the Chamber (every 2 years).
It is particularly important how Senators are appointed.
Since the last election, members of the Honorable Senate are designated by popular vote, changing in that way the system that conferred this legal authority to local legislative bodies.
Once the partial renewal of the body was constitutionally determined, this first Senate in its new stage decided that legislators are chosen for two, four and six year periods. In this way, all Senators belonging to the same district would finish their term at the same time.
This is the only way two members can be elected for the majority and one for the first minority.
Finally, it should be stated that Senators may be re-elected indefinitely and that in the same election for a permanent position, a substitute is also chosen.
See the official web page of the Senate.
The Judicial Power of the Nation shall be vested in a Supreme Court and in such lower courts as Congress may constitute in the territory of the Nation (section 108 NC). In no case the President of the Nation shall exercise judicial functions, assume jurisdiction over pending cases, or reopen those already adjudged (section 109 NC).
Until the adoption of the reforms, judges were appointed by the Executive Power with the consent of the Senate. In accordance with the new constitutional text, the Council of Magistracy shall be in charge of the selection of the judges (section 114 NC).
The Council shall be periodically constituted so as to achieve the balance among the representation of the political bodies arising from popular election, of the judges of all instances, and of the lawyers with federal registration. It shall likewise be composed of such other scholars and scientists as indicated by law in number and form.
The Justices of the Supreme Court and the judges of the lower courts of the Nation shall hold their offices during good behavior (section 110 NC).
The judges of the lower courts of the Nation shall be removed by a special jury composed of legislators, judges, and lawyers with federal registration (section 115 NC). In such cases of misconduct or crimes committed in the fulfillment of their duties; or for ordinary crimes (section 53 NC).
The Supreme Court and the lower courts of the nation are empowered to hear and decide all cases arising under the Constitution and the laws of the nation and under the treaties signed with foreign nations.
The Supreme Court exercises its appellate jurisdiction as per regulations and exceptions prescribed by Congress.
Notwithstanding the foregoing, the Supreme Court of Justice exercises original and exclusive jurisdiction over all cases concerning ambassadors, public ministers and foreign consuls; cases related to admiralty and maritime jurisdiction; matters in which the Nation shall be a party; actions arising between two or more provinces, between one province and the inhabitants of another province, between the inhabitants of different provinces, and between one province or the inhabitants thereof against a foreign state or citizen.
In the Argentine judicial regime, the administration of justice is a concurrent power of the nation and the provinces. Sections 5 and 123 of the National Constitution establish that each province shall enact its own Constitution in accordance with the principles, declarations and guarantees of the National Constitution "ensuring its administration of justice".
They elect their governors, legislators, and other provincial officers, without intervention of the federal government (section 122 NC).
Section 31 of the National Constitution states that the Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation, and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions.
It is the responsibility of each province for the enforcement of ordinary justice within the provincial territory, and also for applying the codes mentioned in section 75, subsection 12º - the Civil, Commercial, Criminal, Mining, Labor and Social Security Codes, depending on the respective jurisdictions for persons or things.
As regards the national justice, section 116 of the National Constitution establishes that The Supreme Court and the lower courts of the Nation are empowered to hear and decide all cases arising under the Constitution and the laws of the Nation, except for matters under provincial jurisdictions. In such cases, according to section 117, the Supreme Court shall have appellate jurisdiction.
The Civil Courts have jurisdiction over civil law matters.
· Civil code:
Commercial judges have competence in all matters arising under commercial laws.
· Commercial code:
· Commercial doctrine:
Contentious-administrative Courts have competence in all matters arising from administrative contracts in connection with Customs General Administration, the AFIP (Federal Administration of Public Revenue), fiscal executions, etc.
The Labor Justice shall have competence over contentious causes in individual conflicts arising from lawsuits related to labor contracts or collective Labor Agreements, and causes between employers and employees in relation with labor contracts, such as dismissals, notice of dismissal, compensation, accidents at work, etc.
· Employment contract law:
Criminal Courts have competence over all matters arising under the Criminal Code.
· Criminal Code:
The Common Law has solved the problem of certainty of law in accordance with the stare decisis principle that states the moral obligation of jurisprudence drawn up by the Superior Courts, even when it is not a strict obligation but allows evolution as long as judges, once they move away from said precedents, refer to the inconvenience of its application.
The task of solving the theoretical aspects of a case, at Common Law Courts, is mostly based upon finding the right precedent. The advantage of precedent over the law is its singular decision nature that solves a specific matter and adjusts the underlying principle margin in that decision.
The Supreme Court of the United States has stated that "The stare decisis comprehends an important social policy. It represents the element of legal continuity and has its roots in the psychological need of fulfilling reasonable expectations".
Within the Common Law system, judges have the possibility of empirically examining the results of previous decisions or criteria, and when any inconvenience is shown in particular cases, they may step aside. Besides, the specific nature given to the principle content extracted from a case allows courts to have a wide range of variants to assess different details, and even consider the precedent non applicable.
In Argentina, codification of law has not allowed jurisprudence to reach the same significance.
Precedents carefully prepared for decades are sometimes made useless in a day by a Congress law that states the opposite, and that legal provision, as long as judges do not believe that it breaches the National Constitution, is considered mandatory.
The tradition of codification and regulation minimized the importance of jurisprudence, consigned to fill in legislative empty spaces.
But even within the restricted scope of jurisprudence, our Supreme Court set up regulations that state the compliance with its judgment.
Lower Courts can step aside the Court doctrine, even when judging similar cases, without placement of constitutional burden by virtue of its criteria autonomy, except when not knowing the judgment of a similar case, breaching the principle that states judicial decisions are mandatory.
However, the withdrawal shall not be arbitrary or groundless since judges only decide in specific processes assigned to them, and since the Supreme Court judgments are not mandatory for similar cases, lower judges must decide consequently. "As a consequence of this doctrine, it will be groundless all the judgments from lower courts that step aside the precedents of Court without providing new arguments which justify changing what the Court already decided, as supreme interpreter of the National Constitution and laws arising thereof."
The Supreme Court doctrine of judgments, also in Argentina, has moral authority that justifies the obligation, for lower courts, to support its judgments when not agreeing with the Supreme Court decisions; but, at the same time, it does not completely ban said disagreement. In this way, an organized growth of jurisprudence is allowed, without turning the Supreme Court into a new legislator, as later occurred when the Chambers’ faculty of giving plenary judgments to unify jurisprudence was introduced.
The National Constitution establishes the trial by jury in three sections:
- Section 24: "Congress shall promote the reform of the present legislation in all its branches, and the establishment of trial by jury".
- Section 75, subsection 12: "Congress shall... enact (the laws) that may be required to establish trial by jury".
- Section 118: "The trial of all ordinary criminal cases not arising from the right to impeach granted to the House of Deputies shall be decided by jury once this institution is established in the Nation. The trial shall be held in the province where the crime has been committed; but when committed outside the territory of the Nation against public international law, the trial shall be held at such place as Congress may determine by a special law".
It is the intention of the constituent to carry out criminal trials in the Argentine Republic through this mechanism. However, and not knowing why, the doctrine arduously debates about these postulates validity or their common repeal. These questions generate uncertainty since it is difficult to understand how it is possible for a fundamental regulation of a Rule of Law to lose validity just because political powers do not comply with it. Our constituents, since the National Constitution establishment and until its last reform in 1994, have stated, and implicitly confirmed, their intention.
In case the National Congress does not secure the establishment, in the short term, of this institution in the Argentine Republic, it implies open violation and disregard of constitutional regulations.
This trial methodology has recently started to be applied at the provincial level, and the first verdict took place in August, 2005 in a trial by jury. The first trial by popular jury occurred in the Bureau of crime in the city of San Francisco, province of Córdoba, when Victor Fernando Luna was sentenced on charges of "perpetrator and responsible of aggravated murder: death in possession of a weapon". Trial by jury is established to judge certain specific crimes: aggravated murder, kidnapping with extortion, murder with torture, murder with robbery, and sexual harassment crimes.
Trial by jury links:
The General Auditing Bureau is the advisory body of Congress with functional autonomy which controls the Executive Power management of the national civil service as regards its estates and its economic, financial and operative aspects, controls public accounts and analyses the administration of financial interests. Controls but does not co-administer the public area: assesses facts, acts and documents once the organizations to be audited finish their accounting exercises.
The revision and opinion of the Legislative Power about the performance and the general situation of the national civil service are to be based on the reports of the General Auditing Office of the Nation, which shall include comments, conclusions and advice.
The main objective of the General Auditing Office of the Nation is to take part in the approval or rejection of the revenue and investment accounts of public funds.
See also the official web page.
The Ombudsman is an independent body created within the sphere of the National Congress that operates with full autonomy without receiving instructions from any authority. The mission of the Ombudsman is the defense and protection of human rights and other rights, guarantees and interests sheltered under the Constitution and the laws, in the face of deeds, acts or omissions of the administration; as well as the control of public administrative functions. He shall hold office for the term of five years and may only be re-appointed on one occasion. He is appointed and removed by Congress with the vote of two-thirds of the members present of each House.
See also the official web page.
As established by the National Constitution, Argentina adopts a representative, republican and federal form of government. There are three levels of government: national, provincial and municipal. The distribution of power among them arises from a generic distribution also established in the National Constitution by which provinces keep all the power not granted to the Nation.
The Nation is entitled to:
- Establish internal indirect taxes (VAT, internal taxes, etc) and external or customs taxes (foreign trade rights).
- Levy direct contributions, as an exception for a particular period, which are originally of provincial competence (Income taxes, tax on personal property, etc.).
Federal tax participation regime
The National Constitution established the federal participation of taxes between the Nation, the provinces and the city of Buenos Aires (in relation to services and competences that each of them assume).
Types of taxes
The Argentine tax system is mainly organized on the taxes on incomes, property and value added taxes.
Listing of the main taxes at different governmental levels:
Taxes: Income tax, tax on presumed minimum income, tax on personal property, real property transfer tax, tax on financial transactions, value added tax, internal taxes, tax on liquid fuels and natural gas, social security regimens, customs rights and others.
Taxes: services compensation rates and specific rights.
The National Government is entitled to sanction the minimum budget for environmental protection without affecting local and provincial jurisdictions.
The National Congress has the faculty of legislating on environmental matters through the civil, commercial, criminal, mining, labor and social security codes it is entitled to sanction. Local courts are in charge of applying said sanctions to things or people under their jurisdictions.
The reform of 1994 establishes that all inhabitants are entitled to the right to a healthy and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations, and shall have the duty to preserve it.
- States that environmental damage shall bring about the obligation to repair it according to law. The authorities shall provide for the protection of this right, the rational use of natural resources, the preservation of the natural and cultural heritage and of the biological diversity, and shall also provide for environmental information and education.
- Forbids the entry into the national territory of presently or potentially dangerous wastes, and of radioactive ones.
- Recognizes summary proceedings filed by the damaged party, the ombudsman and the associations which foster such ends registered according to a law determining their requirements and organization forms. This action shall be carried out provided there is no other legal remedy, against any act or omission of the public authorities or individuals which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws.
The Argentine Republic has signed, among others, the following agreements and treaties:
- The Focal Point for United Nations Framework Convention on Climate Change (UNFCCC). Act No. 24.295. Argentina presented for COP 3 the greenhouse effect fumes inventory.
- The National Congress ratified Kyoto Protocol in June, 2001, despite the fact that Argentina, as a developing country, is not obligated to decrease its emission levels.
- Convention on Biological Diversity (CBD). Act No. 24.375. As a consequence of this act, regulations were sanctioned at national and provincial levels.
- The production, utilization, trade and export of transgenic seeds is one of the main topics for Argentine governors and agricultural producers, especially since the Cartagena Protocol on Biosafety was signed.
- The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) was signed on March 3, 1973. Nowadays, eighty seven countries are part of the treaty. Argentina is one of those countries and the treaty was ratified by Act Nº22.344.
- The Basel Convention regulates the control of trans-boundary movements of hazardous wastes (Act No 23.922).
- The Montreal Protocol was signed in 1987 in order to complement the Vienna Convention and to obtain an important decrease of substances that deplete the ozone layer.
- The Argentine Republic legally reflected the Helsinki, London and Copenhagen amendments.
- Treaty of “Cuenca del Plata”, signed in 1969 by government representatives of Argentina, Bolivia, Brazil, Paraguay and Uruguay, was intended to "Promote the harmonic development and integration of Cuenca del Plata and its areas of direct influence".
The international treaties hierarchy is stated under section 31 and 27 of the National Constitution. The first one refers to the regulations appeal priority establishing that "This Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation..." and then determines that each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions. Section 27, establishes that "The Federal Government is under the obligation to strengthen its relationships of peace and trade with foreign powers, by means of treaties in accordance with the principles of public law laid down by this Constitution". The amendments that arose from the 1994 convention state in the constitutional text an evolution that is also observed in jurisprudence. The priority order of regulations is changed, as well as the current reality of government structures aimed at creating large supranational spaces through integration of nations:
Regulations appeal priority
The Argentine legal pyramid changed with the 1994 reform since it changes the hierarchy of international treaties. This change is reflected in the texts of two subsections of section 75 devoted to the Legislative Power scope. In fact, a first prescription establishes the general principle in this matter when states that "Treaties and concordats have a higher hierarchy than laws".
Special hierarchy reserved for certain treaties on human rights
The constituent has followed a tendency observed in compared constitutional rights aimed at the internationalization of human rights. Section 75, subsection 22 continues with a list of two declarations and nine international conventions, all of them related to human rights. Among others, we find The American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, the International Pact on Economic, Social and Cultural Rights, etc. All of them have "Constitutional hierarchy".
These treaties shall only be denounced through a particular procedure. The same subsection states that "They shall only be denounced, in such event, by the National Executive Power after the approval of two-thirds of all the members of each House". Also, the constituent establishes the possibility for other treaties on human rights to acquire the same constitutional level as the ones enumerated. Consequently, it is decided that, in order to "attain constitutional hierarchy", the other treaties and conventions on human rights shall require the vote of two-thirds of all the members of each House, "after their approval by Congress". In this way, in 1997 the Forced Displacement of People Treaty was given constitutional hierarchy and was added to the mentioned list under section 75, subsection 22.
Delegation of competences to supranational organizations through treaties of integration
Section 75, subsection 24 establishes the Congress approval of "treaties of integration which delegate powers and jurisdiction to supranational organizations under reciprocal and equal conditions, and which respect the democratic order and human rights. The rules derived there from have a higher hierarchy than laws". This disposition considers the world evolution as regards integration in large economy spaces. In our particular case, it tries to encourage Mercosur.
The second part of the above mentioned subsection refers to the approval and denouncement regime of this kind of treaties. Regarding the approval, it distinguishes the treaties signed with Latin American States from the ones signed with other nations. For the first case, approval "shall require the absolute majority of all the members of each House". For the second case, "the National Congress, with the absolute majority of the members present of each House, shall declare the advisability of the approval of the treaty which shall only be approved with the vote of the absolute majority of all the members of each House, one hundred and twenty days after said declaration of advisability".
Beyond the validity of the herein stated casuistry, it is believed that the second type of treaty produces uncertainty over those signed among countries from the first and second areas. The entry of Argentina into NAFTA reflects this particular case since the organization includes countries from both geographical areas.
Finally, it is required for the denouncement of this kind of treaties "the prior approval of the absolute majority of all the members of each House". This is a logical demand since it perfectly complies with the approval system for this kind of international agreements.
Compatibility of the regulations of the organic and the "old" dogmatic parts
1 - The National Constitution and human rights treaties in section 75, subsection 22 and the ones to be added according to the special procedure thereunder. Regarding this category, it shall be established whether it is about the Constitution itself or they have the same hierarchy but are not included within its sections. It shall be considered, they make up the internal law "in their validity conditions". It means that it shall be taken into account the evolution of the normative in the international sphere.
Moreover, the constituent declares that these conventions "do no repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein".
2 - Treaties and agreements in the first part of section 75, subsection 22, as well as treaties of integration and the regulations arising thereof with the scope jurisprudence establishes for them.
3 - National Legislation
Until now, it has been stated the hierarchy of federal regulations. The reform clarifies the situation of the relation between international treaties - law.
Now it is clear that section 75 arranges section 31 interpretations by deciding a higher appeal level of treaties over laws, establishing at the same time that certain treaties are positioned at the same level of the fundamental law.
4 - The constitutions, international treaties signed by provinces and provincial laws.
Constitutional legislation and treaties web sites:
The Official Gazette (Boletin Oficial ) can be accessed online. The daily issues are free but the previous ones are fee-based.
The most important sources of jurisprudence and doctrine can be found at Zeus On-Line, a combination of free and fee-based services.
Infoleg is a free site belonging to the Ministry of Economy and one of the most complete in legal information regarding national law, provincial law, Mercosur, jurisprudence, doctrine and standards of public national administration. There you can also find all national codes, civil, commercial, penal, etc.
- Código Civil - Civil Code Update – New
- Código de Comercio - Code of Commerce Update – New
- Código Penal – Penal Code Update – New
- Código Procesal Civil y Comercial – Civil and Commerce Code Update – New
- Código Procesal Penal – Penal Process Code Update – New
- Código de Justicia Militar - Military Justice Code Update - New
- Código Aduanero – Customs Code - Update - New
- Código Aeronáutico – Aeronautics Code -Update - New
- Código de Mineria - Mining Code - Update - New
- Código Alimentario Argentino - Argentinan Food Code
- Código de Ética Pública – Public Ethics Codes
- Código Electoral Nacional - National Electoral Code
Proyecto de Código Civil unificado con el Código de Comercio y sus fundamentos 1998 (Decreto. 685/95) - Project of the Civil Code approved by the Chamber of Deputies – 1998.
Another important site, Sistema Agentino de Informatica Juridica (SAIJ) belongs to the Argentine Ministry of Justice. It is partially free, and very complete through paid access.
Among private and fee-based databases you can find ARGIA devoted to search of legal juridical information. This site performs research jobs, analyzing, finding and organizing jurisprudence and doctrine of the matter studied.
We also can mention A.De.P. - the Association of Law Studies, Derecho, a private publication of a wide range of juridical information, DVA Derecho Virtual Argentino- Virtual Argentine Law, and LegisLaw - Argentine Juridical Standards Bank.
The most well-known editorial houses of legal publications and codes are:
Another good source is UBP Biblioteca/ / Bases de datos, portales y revistas electrónicas / Temática Derecho -- the University Library.