En Letra

37-61 (Vol. 2)

Authors: Pablo LARSEN

The discussion about the ways to follow in order to reduce the space that separates justice from the people opens numerous questions. One of them is related to the fact that many of the options that can be followed in order to accomplish that goal —like trials by jury— suppose a necessary contact between lawyers and people who do not have legal knowledge, and it generates the need of analyze the communication problems that can be generated. This paper takes that point in order to analyze, from a point of view that goes beyond the trial by jury, the problems that are generated by the excessive use of a technical language by lawyers, the causes of such use, and, additionally, approach to which may be the most effective ways to follow in order to solve those problems.

62-105 (Vol. 2)

Authors: Ezequiel JIMÉNEZ

Although the doctrine of jus cogens or non-derogable norms calls on every state to prosecute gross violations of human rights, a combination of power politics and lack of institutional capacity has denied the right of access to justice to countless victims, creating an impunity gap. Identified as one of the main challenges for the current international legal architecture protecting human rights, hybrid tribunals have been put forward as a novel approach narrowing the impunity gap in post-conflict states. Tasked with prosecuting atrocity crimes, hybrid tribunals also have the potential to re-build domestic judicial capacity. Indeed, hybrid tribunals and their premise of capacity building can be understood as a contributing factor creating conditions for sustainable human rights compliance. In this context, this essay analyzes how hybrid tribunals might contribute to narrowing the impunity gap through their capacity building premise. It asks what capacity building recommendations can be drawn from the Special Court for Sierra Leone, the ongoing trials in the Extraordinary Chambers in the Courts of Cambodia and the unique judicial set up in the Bosnian War Crimes Chamber. Understanding that closing the impunity gap must begin at the domestic level, the extent of capacity building mechanisms developed by these tribunals will be a key parameter to conceptualize how they might create a strong domestic human rights normative framework equipped to uphold jus cogens.

106-122 (Vol. 2)

Authors: Carlos A. GARAVENTA

This essay applies the genetic explanation method to study the facts that were probably the grounds for the execution of the Treaty establishing the European Coal and Steel Community, given that some of the participating countries were not constitutionally empowered to do so. In order to explain why in this case politic aspects prevailed over legal ones, making this treaty possible, we depart from the hypothesis that between 1870 and 945 European States were in a state of nature, and that the period from 1945 to 1951 involved the negotiation and execution of a social contract that constituted a new regional organization.

127-182 (Vol. 1)

Authors: Gonzalo PEREZ PEJCIC

The Argentine Civil and Commercial Code governs termination of an easement based on the “abuse of an easement and the judicially evidenced alteration of the substance of the right” (Sect. 2152(d)). The abuse of an easement is a classification that includes the judicially evidenced alteration of the substance of the right. In that sense, the exercise of easement in violation of the social and environmental aspects does also constitute an “abuse of an easement.”

168-190 (Vol. 2)

Authors: Pedro R. LUCIETTO PICCININI & Plínio SARAIVA MELGARÉ

O presente estudo tem por escopo demonstrar a correta fixação do termo inicial para a incidência dos juros moratórios nos casos de indenização extrapatrimonial. Esta temática é fundamental, visto que procura definir qual seria a correta fixação deste termo inicial, confrontando a aplicação da Súmula nº 54 do Superior Tribunal de Justiça como ocorreu no julgamento do Recurso Especial 903.258/RS sob a relatoria da Ministra Maria Isabel Gallotti. Para tanto, torna-se importante uma maior compreensão acerca de alguns institutos que tangenciam predominantemente o tema, a saber: responsabilidade civil, dano moral, mora e juros moratórios. Ao final, não obstante a aludida inovação jurisprudencial proporcionada pela Ministra, como resultado da pesquisa do posicionamento atual predominante, tanto na doutrina como nos tribunais pátrios, concluímos que os juros moratórios correrão a partir do evento danoso em se tratando de responsabilidade extracontratual, seguindo o entendimento Sumulado.

38-67 (Vol. 1)

Authors: Leandro Alberto Dias

The Argentine Penal Code draft bill establishes, among other modifications, a brand new regulation of the voluntary abandonment of the attempt. In this article I will explore this new set of rules through a comparative analysis and mainly taking into account the German Penal Code. I will try to prove that these new rules about abandonment, as established in the draft bill, are on the right track because of its generality. Nonetheless, I will argue that some specific aspects of the bill should be rethought, or even suppressed, during the legislative process.

83-112 (Vol. 1)

Authors: Carla Salvatori

The new Federal Code of Criminal Procedure provides the mechanism of the criminal action transformation: this system allows the private complainant, under certain circumstances, to change the public criminal action into a private one. Thereby, the criminal action will no longer be headed on the public prosecutor but exclusively on the private complainant. The following essay presents a critical analysis of this mechanism, the hypothesis in which it may be implemented and the consequences of its legislative incorporation.

93-109 (Vol. 2)

Authors: Iván Levy

This paper studies the concept of general principles of international law in order to determinate if the principle of pari passu can be considered as such.

113-140 (Vol. 1)

Authors: Cindi Bertola

In this article the author offers a comparative analysis on the legitimacy of the complainant in the current Federal Code of Criminal Procedure (also known as “Levene Code”), in the case law of the Supreme Court of Argentina and in the new Criminal Code (law 27.063). On that basis, the author also explores the most controversial issues regarding the new role of the complainant as an autonomous party in the procedure and invites the readers to reflect on the convenience of this kind of regulation in a society governed by the Rule of Law, respectful of the rights of the accused.

141-155 (Vol. 1)

Authors: Gisela Santangelo y Mauro Lopardo

In this article we will shed some light on the main characteristics of the application of remand imprisonment in the Argentine Republic, with particular emphasis on the punitive aspects of such procedural institute. In that sense, we will try to put into question the predominantly precautionary justification of this restriction to fundamental freedoms and point out its functions as an anticipatory punishment. Lastly, we will try to explain why the new Federal Code of Criminal Procedure cannot escape this critique but also to underline, as a positive feature of this code, the establishment of alternatives to incarceration.

156-176 (Vol. 1)

Authors: Patricio Nicolás Sabadini

The Federal Code of Criminal Procedure reform aims to modernize the criminal system by adopting an accusatorial design of the procedure in which investigative and prosecutorial faculties of the Public Prosecutor are clearly distinguished from the role of the judge, who only renders decisions and controls the legality of the process . This main goal of this article is to analyse the current regime of remand imprisonment as well as to propose the incorporation into the aforementioned reform of a new control system denominated “compliance”. This mechanism was originally conceived in the framework of corporate criminal law as a control system of risk prevention. With that in mind, the possibility of applying this mechanism and its method to the Argentinean model of remand imprisonment is also being evaluated with the aim of avoiding an overflow risk of the prison system or an abuse of Pre-Trial detentions.

177-194 (Vol. 1)

Authors: Aldana Lucía Coiazzet

In the Duarte case, the Supreme Court of Argentina established that the procedural institute of positive cassation violates the right to appeal in criminal matters. In this case, the Supreme Court considered that such violation occurs when a Court of Appeals overturns an acquittal after an appeal by the Public Prosecutor and then imposes a sentence on the alleged perpetrator. The aim of this article consists in determining whether the new Federal Code of Criminal Procedure continues the path established by the Supreme Court, or whether there are still obscure elements and, therefore, violations of the rights of the accused.

28-56

Authors: Pedraza, Virginia; Pedraza, Ignacio

This article seeks to delve into the validity and significance of a human rights approach, of essential application, when it comes to sexual and reproductive health rights. With a systemic perspective, it inquires about the complexity of its characteristics and the interrelationships that weaves it among other rights of equal hierarchy. It also highlights the value that such vision provides for the generation of public policies and the interpretation of the law, aiming to a fulfilled, dignified and integral human development.

82-100

Authors: Ríos, Belén

Tobacco consumption and secondhand smoke exposure are proven causes of illness and death. In Argentina 40,000 people die each year from smoking‐related diseases and it generates the need for the Federal Government to take measures to prevent these deaths, primarily to meet their obligations under the human right to health. The Argentine Republic has a tobacco control law that meets international standards in this area, such as smoke‐free environments, health warnings, tobacco advertising restrictions, among others. However, it has not yet adopted policies to increase cigarette prices, although that is the most effective measure to reduce cigarette consumption. In Argentina, tobacco is one of the cheapest in the world, facilitating its accessibility especially among young people. Low prices of cigarettes are a direct result of tax policies that, among other things, subsidize tobacco production, keeping very low costs. The contrast between tobacco control policies and tax measures, that encourage the production, implies some contradictions within the National State, first sanctioned tobacco control measures to cut consumption and, on the other hand, promotes the production maintaining low tobacco prices. This article seeks to analyze and these contradictions of the Argentine State, through the encouragement of production, violating international obligations and especially not effectively protecting the health of the population.

116-141

Authors: Ortega, José; Espósito, Santiago

The late twentieth century and the beginning of this one, show a dizzying array of social and economic changes that have affected the health systems. The integration of Information and Communication Technology ("ICT") in the health sector has generated expectations and tools for providing answers to this scenario, as well as new challenges. We will try to give a comprehensive view of ICT and health services, explaining in general and practical terms the problems, benefits and challenges that the application of ICT to the the health sector may imply, making suggestions as these questions arise.

164-175

Authors: Tamagnini, Carolina

The initiative for a Framework Convention on Global Health (FCGH) is on the agenda of several academics and the civil society specialized on the right to health. Based on the difficulties regarding the access to health services, the FCGH would legislate aspects related to the right to health in order to improve that situation. The aim of this paper is to make an approach to the opportunities and the limitations of the Framework Convention on Global Health, and it is accomplished by referring to its precedents, by exposing its key aspects, as well as the critics it suffered by the academic community.

69-90

Authors: Garaventa, Carlos, Hinojosa, Laura, Magneschi, Mauro, Mazza, Leandro, Pomar, Tomás

This essay, written by a study group devoted to investigate on the philosophy of punishment within different political ideas and State models, is related to the justification for punishing drug-related activities in the Argentine liberal government of laws –the basic principles of which are set forth in its Constitution. On the one side, we discuss how punishing drug-related activities have no philosophical grounds whatsoever in a government of laws; thus we may well consider it proper of a conservative government. On the other side, we propose a novel interpretation of section 19 of our Constitution to justify why we believe drug-related activities should be legalized.

111-141

Authors: Aizenberg, Marisa, Ciruzzi, María S.

Deconstructing the current individualized health care paradigm, the authors carefully examine the medical, socio-political and cultural facets of Western approaches to medicine arguing for openness to alternative methods. Bearing in mind new waves of migration from indigenous communities and other groups, health care personnel need to take into consideration how cultural factors can be accommodated in the care process to enhance a multi-ethnic approach to medicine while benefiting from cross-fertilization. By doing this, the paper concludes, we can move closer to the true objective of medicine.

162-180

Authors: Benente, Mauro, Ramallo, María, Unger, Juan

In October of 2013, the Supreme Court of Justice of the Republic of Argentina issued its decision on the constitutionality of the Audiovisual Communication Services Law. The majority vote declared the constitutionality of the articles in consideration, emphasizing in the importance of counting with a plurality of voices in the constitution of a democratic society. But, paradoxically, they separated and rejected discourses that proposed a very similar point of view that did not come from judicial organs or doctrinarian studies, silencing in this way that plurality: the voices of the civil society and political parties.

196-218

Authors: Jiménez, Ezequiel

The annexation of Crimea by the Russian Federation brings to the forefront concerns about the efficiency and validity of international law as a guarantor and structure for peaceful relations among States. Departing from the structuralist school of international relations, the paper seeks to explain why the semi-anarquic situation of Crimea could pose a real challenge to diplomatic and conflict resolution efforts in the future. Through the analysis of international norms violated by Russia in Crimea, the paper concludes that it is the role of the United Nations Security Council to protect and enforce international law to create order in the international system. However, the paper calls for a reformed Council that acts truly in accordance to the United Nations Charter.

47-78

Authors: Scotti, Luciana

In the current postmodern context, where the notion of family has changed radically, special mention deserves the recognition of assisted reproduction techniques and their legal effects. As recognized by the Hague Conference on Private International Law, surrogacy is a “global business”. Indeed, the diverse regulation into national law motivates that these agreements are concluded between persons in different countries, in practice, the most distant places of the world - generating what is called “procreative tourism”. The questions about surrogacy, both by homosexual and heterosexual couples, are increasing day by day and cases are made public which demonstrate the importance of attending to these situations that are already happening, and that project effects on our country. Hence, the importance of studying this delicate matter in the legislation and jurisprudence of Argentina.

115-147

Authors: Coto, Alejandro

This essay explains the case of an unincorporated non-profit association and a foundation such entity had organized, in which both attempted to demerger by means of a spin-off. Throughout Civil, Company and Agency Law, the author shows the inconsistencies of the Inspección General de Justicia1 in denying a registration that, otherwise, would have been a landmark case as far as non-profit entities is concerned.

159-177

Authors: Mollis, Santiago

Since its origins in the late 60’s, the criminal abolitionism movement has been taken from discussions about Criminal law and Criminology, despite being a doctrine based on large empirical support. In addition to delving into specific alternatives which constitute a breakthrough in regards to the early abolitionist concept which develops more abstract and general theories, this movement must be able to reply to the constant criticism it has been facing since its early days. This is the only way of achieving abolitionist ideas in the short run which can stand the test of time. Otherwise, we will only be dealing with individual impulses all over the world and with a long run abolition which will be very hard to achieve.

197-211

Authors: Minieri, Sofía

Article 12 of theConvention on the Rights of Persons with Disabilities, ratified by Argentina in 2008, recognizes people with disabilities’ right to enjoy legal capacity on an equal basis with others. However, the Argentine Civil Code allows judges to deprive people with intellectual and psychosocial disabilities of the full exercise of their legal capacity and appoint a guardian to them. In spite of the fact that the process of reform, actualization and unification of the National Civil and Commercial Code offers Argentina a unique opportunity to amend its domestic legal system in order to comply with the Convention, the draft submitted by the Comisión Bicameral para la Reforma, Actualización y Unificación de los Códigos Civil y Comercial de la Nación (Bilateral Commission for the Reform, Actualization and Unification of the National Civil and Commercial Code), which was approved by the Senate and will probably be passed by the Chamber of Deputies, infringes the rights enshrined by article 12 of the Convention on the Rights of Persons with Disabilities.