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.