Argentina: Congress To Consider Initiative Regarding Certiorari Before Judgment

Last Updated: 5 November 2012
Article by María Lorena Schiariti and Gonzalo Santamaria

The bill was submitted by congressmen of the ruling party. It seeks to re-implement the petition called certiorari before judgment which had been originally created by the Supreme Court.

A bill which seeks to implement the certiorari before judgment to the Supreme Court in cases of imperative public importance subject to federal jurisdiction has been filed by senators from the ruling party (the "Bill"). The Bill, reproducing a previous bill filed by former Senator Ms. Fernández de Kirchner in 2004, provides for amendments to the Federal Code on Civil and Commercial Procedure (the "FCCCP"), by means of the incorporation of Sections 257 bis and 257 ter.

On October 23 the Bill was approved by the Committee of Constitutional Affairs. Pursuant to the Senate's agenda the Bill will be subject to the full Senate's deliberation on October 31.

Below is a brief summary of the main provisions of the Bill, in light of the Supreme Court case law which allegedly created the certiorari before judgment in Argentina and constitutional law scholars' opinion in connection thereof.

1. The Certiorari Before Judgment and the Provisions of the Bill

Bidart Campos has defined the certiorari before judgment as "a jump in the stage of the proceedings applicable to the hypothesis where the Supreme Court reviews a case which is in a lower court, jumping over one or more stages. One or more stages are dismissed and jumping over from a lower court the case is directly decided by the Supreme Court without the intervention of one or more intermediates stages" (Bidart Campos, Germán, "El per saltum", ED 138:598).

Pursuant to Section 117 of the Federal Constitution the Congress may prescribe the regulations and exceptions as regards the cases where the Supreme Court has appellate jurisdiction. Therefore, most of the constitutional law scholars have spoken out in support of the legislative implementation of the certiorari before judgment and conversely have resisted the petitions for certiorari before judgment in the absence of such a regulation.

In general terms, constitutional law scholars and the Supreme Court have outlined several requirements conditioning the petitions for certiorari before judgment. These requirements include: (i) federal case; (ii) decision from a lower court; (iii) petition filed by an interested party; (iv) imperative public importance; (v) require immediate determination of the Supreme Court; (vi) irreparable damage; and (vii) restrictive enforcement.

By means of the regulation established by the proposed Section 257 bis of FCCCP the Bill provides for the writ of certiorari before judgment without the higher court requirement, "in those federal cases where it would be shown that imperative public importance matters were involved, final and prompt solution necessary, being the certiorari the only effective remedy to protect the compromised federal law, and to prevent irreparable or difficult to repair damage".

The provision under analysis defines imperative public important matters as those "cases that exceed the private interest of the parties of the case, and further produce general and public effects, in a way that because of its importance, the basic institutions of the republican system or the principles and guarantees provided by the Federal Constitution and its International Treaties, were compromised".

The Bill provides that certiorari before judgment would be restrictively admitted. As regards the prior decision of a lower court requirement the Bill provides that "only final decisions or comparable decisions as regards its effects may be subject to the petition of certiorari before judgment". Criminal cases are excluded from the certiorari before judgment regime.

Pursuant to the proposed Section 257 ter of FCCCP the interested party would have a 10-day period as when a decision is notified to file the certiorari before judgment petition. The petition should be filed grounded directly to the Supreme Court.

Pursuant to the Bill the petition is decided by the Supreme Court without hearing the counterparty and if it is granted would suspend the effects of the lower's court decision. Therefore, granting a certiorari before judgment would have an outstanding effect vis-à-vis the general principle as regards certioraries. By means of the mere admission of the certiorari before judgment the Supreme Court would suspend the effects of the lower court's decision.

Once the Supreme Court decides to hear the case it would notify the petition of certiorari before judgment to the interested parties for a 5-day term. After the interested parties file their petitions in connection thereof or the abovementioned term expires the Supreme Court would decide to the case overruling or confirming the lower's court decision.

2. The certiorari before judgment in the Supreme Court case law

Before 2001 the certiorari before judgment was not regulated in Argentina. Notwithstanding, this procedural remedy was applied by the Supreme Court in different cases, specifically during the 1990s.

In the "Dromi, José Roberto" (Fallos 313:630;863) case the Supreme Court suspended and afterwards overturned a decision issued by a first instance federal judge which had ordered the Argentine Government that pursuant to the privatization of Aerolineas Argentinas, "adjust the corporation to be incorporated within the provisions of Section 6 of law 23,696".

The Supreme Court heard the case by virtue of the petition of certiorari before judgment filed by the former Minister of Public Works and Services against the first instance decision. Justices Levene, Cavagna Martinez, Petracchi and Barra granted the petition of certiorari before judgment in this case considering it as a federal case, where it was clearly shown that imperative public important matters were discussed and that it was also clearly shown that the writ of certiorari was the only effective means to protect the compromised federal law. Under these circumstances the higher court requirement was dismissed and the Supreme Court decided to hear the case.

Justices Nazareno and Moliné O' Connor reached the same conclusion as the "majority," approaching the case as a conflict grounded in the lack of jurisdiction of the first instance judge.

Even though Dromi is pointed out as the leading case as regards the creation of certiorari before judgment by the Supreme Court, it is important to highlight that is was a plural vote and not a majority decision, for which it is not technically-speaking a precedent.

Under the same composition that decided Dromi, the Supreme Court had the opportunity of deciding on several cases where the petition of certiorari before judgment was filed (e.g., Fallos 313:1247; 314:1030; 317:1690; 319:371; etc.). The writ of certiorari was granted in light of the clear evidence that situations of extreme public importance were under discussion and it was shown that the certiorari before judgment was the only available means to protect the compromised federal law.

3. Regulation of the certiorari before judgment

At the end of 2001 and because of Argentina's financial and economic crisis, Decree No. 1387/2001 created Section 195 bis of FCCCP which allowed the Argentine Government to appeal directly to the Supreme Court "when were granted precautionary measures that directly or indirectly affect, hinder, compromise or disrupt, the development of the activities carried out by public entities". The abovementioned decree also created a similar provision in Law No. 18,345 which regulates the labor procedure at a national level.

Later, Law No. 25,561 amended Section 195 bis of FCCCP providing that filing the certiorari before judgment would suspend the effects of the challenged decision. Finally, Law No. 25,587, published in the Official Gazette on April 26, 2002, repealed Section 195 bis of FCCCP.

The first regulation of the certiorari before judgment has been in force just over a year. During this brief period the Supreme Court granted petitions of certiorari before judgment in cases where Decree No. 1570/2001 —which provided for certain restrictions as regards cash withdrawals and wire transfers— was challenged (e.g., "Kiper", Fallos 324:4250 and "Smith", Fallos 325:28).

4. Conclusions

Apart from the concerns that the Bill may raise from a technical standpoint, in the event the Bill is passed, is to be expected that the Supreme Court will probably use this tool cautiously and only in the most exceptional cases.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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