Judicial Rulings with Prospective Effect in Argentina

Abstract

This report discusses the issue of judicial rulings with prospective effects, in the framework of the Argentinian legal system. It must be mentioned that it reflects the vision of those who understood the law as a dynamic process through the various courts’ interpretations. This essay is a reflection on the connections between judiciary review and judicial decisions with prospective effects. In this sense, the topic is very significant to understand on the one hand the value of the precedent as a stable decision and on the other hand, the need for overruling under special circumstances in a particular case. Indeed, the force of judicial precedent depends upon the extent to which each judicial system is willing to subordinate the necessity of modification of legal rules in accordance with social and economic changes to enhance certainty and predictability in the law. The debate gives room for a systematic study of these bonds in different judicial system which is the topic that brings us together in this publication.

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Introduction

This report discusses the issue of judicial rulings with prospective effects,¹ in the framework of the Argentine legal system.

By way of introduction I will refer to the institutional organization under the Argentine Constitution.

The Argentine Constitution was enacted in 1853, and our Founding Fathers drafted it essentially along the lines of the U.S. Constitution, responding to the Argentine traditions and needs, and in the frame of a Civilian legal system.

Like the U.S. model the Argentine Constitution (hereinafter the “Constitution”) provides for a strict separation of powers among the three branches of government, the Executive, Congress and the Judiciary. In the matter at stake it vests the legislative power of the Nation in a bicameral Congress, while it grants to the Judiciary, formed by a Supreme Court and any lower courts as Congress may establish, the power to “to hear and decide all cases arising under the Constitution and the laws of the Nation”.² Based on this clause, it has been held that courts are not allowed to render any decision or opinion outside the boundaries of a particular case.³

The adoption of the federal system of government implies that the exercise of sovereign power rests with the federal government, and the autonomous power retain by the provinces, within their respective authorities. According to this system of government there is a distribution of political power between a central government and local governments, with a coordinated and harmonious interaction within a common territorial environment. In their capacity of being preexisting entities of the Nation, endowed with political autonomy and economic autarky, the Argentine provinces retain all original attributes not delegated to the federal government.

The provinces have legislative powers which are exercised by the provincial legislatures, and jurisdictional powers done so through the local judicial power. It should also be noted that our system of judicial review is diffuse, which means that any national or provincial judge may declare the unconstitutionality of a law, as long as it opposite to the Constitution.

According to the Constitution, the Argentine Supreme Court has limited original jurisdiction in cases involving the Provinces, foreign ministers and other diplomats, while its appellate jurisdiction is regulated by law within the constitutional boundaries of federal jurisdiction.

Since its inception in 1862, the Argentine Supreme Court, following U.S. Supreme Court Justice John Marshall’s reasoning in Marbury v. Madison, has adopted the American model of judicial review, according to which all courts, federal or provincial and of all levels, have the power to strike down an act of Congress, or an action of the Executive, as unconstitutional, and therefore making it inapplicable for the particular case.⁴ One of the oldest acts still in effect, Law No. 48 enacted in 1863 sets down the requirements for access to Supreme Court’s review. A more recent reform to the National Procedural Code in 1990 grants the Supreme Court ultimate discretionary decision as to whether to hear or not a case.⁵

Based on a system of division of power, essential aspects of Argentine Constitution are as follows:

• 1. The executive power is vested in a President would be elected directly by the people by a system of majority run-off election with a threshold of absolute majority. Once elected, the president would last 4 years in office and could be reelected for one period.

• 2. The Legislative power is vested in a Congress, based on a bicameral structure: the Senate that holds the representation of the Provinces, and the Lower House, represents the people and keep legislative initiative in its hands, except in federal issues.

• 3. The Judiciary is vested in a Supreme Court and inferior courts of justice. Justices are nominee by the President with consent of the Senate, but requiring publicity of the sessions. Federal judges could be removed by impeachment.

As part of the system of division of powers, judicial independence is an essential feature.

Regarding the federal structure, provinces are able to sign international treaties, form economic regions, and acquire the right to exploit natural resources.

The Argentine Supreme Court (the “Supreme Court”) is authorized to review final judgments rendered by superior provincial courts. For an appeal to be admissible by the Supreme Court, the superior provincial court’s judgment must have resolved a federal question.⁶

• 1. Could you give a brief description of how the precedent operates in your legal system? -In particular, are there any established rules of precedent? Are they rules of practice or legal/constitutional rules?

All systems of law recognize the necessity for some adherence to judicial precedent.

The force of judicial precedent depends upon the extent to which each judicial system is willing to subordinate the necessity of modification of legal rules in accordance with social and economic changes to the desiderata of certainty and predictability in the law.

The term “precedent” has several different meanings.

First, the term describes a body of significant earlier rulings. The term can also be used to describe the results of a specific decision [rendered in a particular case] which is deemed of certain significance. Finally, the term can be used to refer to a rule that is broader than the decision that may be rendered in a particular case. The analysis of the structure of precedent will focus in these two former meanings.

Our analysis starts from the concept of precedent as the decision rendered in a case by a court that is deemed to set an example for an identical or similar later case. In this case the precedent arises from an express decision rendered by a court but there are also sub silentio precedents, which arise from a practice that is uniform, silent and uninterrupted but that is not based on a legal decision.

Finally, there is a Supreme Court that is the final interpreter of the Constitution and which establishes the valid precedents that will be applied by legislators and courts. It is also the Supreme Court the one that shall control abidance by its own precedents before other legislative bodies or courts that fail to follow the example set thereby.

Scholar Juan V. Sola argues that it is a usual mistake to believe that since the precedent system results from the fact that the origin of judicial review systems from the United States, a common law legal system, thus the precedent system would not be fully applicable in Civilian legal systems such as the Argentine one.⁷

The above presumption has some problems, the first one being that federal law in the United States is fully statute law and not common law; common law being exclusively applied in the States and not in all of their legal systems. The second mistake is that the binding nature of precedents arises from the need of abiding by the Constitution above the rest of the legal system. If this were not the case, each appellant would have a different Constitution according to the different legal approach adopted by the court randomly hearing the case. Therefore if a distinction is to be drawn between common law and statute law such distinction does not extend to constitutional precedents.

The common law system, with its experience on this matter, has exerted a great influence in the interpretation of constitutional precedents. Common law lawyers and common law courts are more trained in the use of rulings as creators of law and such skill is easily transposed to the interpretation of the Constitution through jurisprudence.

The development of the study of constitutional precedents received the influence of the ideas of Jeremy Bentham, who was critical of the power of the courts. This doctrine had a considerable influence in the United Kingdom and later in the United States, in two ways, first the positivism doctrines of precedent developed a system that resulted stricter than stare decisis; additionally a larger academic concern arouse as regards the rules that created precedents and as to the issues that were really binding which led to re-examine the notion of ratio decidendi. ⁸

An argument in favor of the binding force of precedents concerns fundamental constitutional values and therefore, although the Argentine judicial system has no written express rules on the matter, court practices lead to the application of precedent for the sake of consistency of the system and to the extent that such precedents set an example and provide stability they even result a more efficient mechanism of dispute resolution.

Additionally, the reasoning of a Supreme Court decision must be based on the arguments raised by the parties during the constitutional debate, Attorney General legal opinion, and if the case may be, on the briefs filed by amicus curiae.

The fact that courts maintain the uniformity of the law and its interpretation and application on a case-by-case basis contributes to ensure the Rule of Law, which involves affording equal treatment to all in the sense of formal equality under the law.⁹

Hereinbelow we highlight the following Argentine Supreme Court cases which acknowledge the validity of precedents:

In the case Pastorini c/ Rouillon of June 23, 1883, rendered by Mr. Gorostiaga and Mr. Laspiur –both framers of the Argentine Constitution- precedents are described as a source of law.¹⁰

The same approach was adopted in re Juan Carlos Milberg c/ Lopez Agrelo of 1940,¹¹ and Banco Hipotecario c/ Desiderio Quiroga of 1941.¹²

In the case Baretta c/ Provincia de Córdoba of May 15, 1939, the Supreme Court based its opinion on U.S. constitutional doctrine citing both Cooley and Willoughby. The Supreme Court may not depart from its own precedents, except on sufficiently serious grounds that make a change of criterion unavoidable.

And although the above does not mean that the authority of precedents is decisive in all cases, or that the doctrine of stare decisis can be applied in constitutional matters without due reservations, it is also true that whenever the circumstances of the case to be adjudicated do not clearly reveal an error or the inconvenience of earlier decisions on the subject matter of the case, the solution of the case must be sought in the doctrine of the referred precedents.

In “Sara Pereyra Iraola c/ Provincia de Córdoba”¹³ the Supreme Court held that actual departure from Supreme Court opinions, which loyal application is essential to ensure public peace and stable institutions, involves a serious breach of constitutional order.

In the case Cesar Aníbal Balbuena of 1981 the Supreme Court held that:

A court decision which departs from a Supreme Court’s earlier decision without providing any new arguments supporting departure from the categorical position adopted by the Supreme Court in its role as supreme interpreter of the Argentine Constitution and the laws thereunder, fails to provide due reasoning. Thus, in order to change the interpretation of applicable federal laws, the lower court should have specified the significant incurred by the Supreme Court upon setting the interpretation to be given to such laws, thus, it would not suffice for such lower court to state that it “simply and respectfully” disagrees with the Supreme Court’s doctrine.

In re “Moltedo” the Supreme Court established the so-called “moral abidance” (acatamiento moral) doctrine and justified stare decisis on efficiency grounds.

Lower courts must morally abide by the doctrine laid down by Supreme Court decisions whereby conflicts of jurisdictions tend to protect litigants in order to ensure the efficiency and celerity of court decisions, and if in order to do it would become necessary to remove any obstacles that courts may find upon performance of their duties, any interpretations that would involve making means prevail over such goal must be disregarded.

In re “Lucero”, it was held that the Supreme Court must follow its own precedents, such rule being of the essence of the Supreme Court’s operation.

And although adhesion to its own precedents is not decisive in the adjudication of all cases that may arise, it is convenient in light that the purpose thereof is to ensure the permanence and certainty of Supreme Court decisions, particularly when called to decide similar claims on similar cases.

The case “Cerámica San Lorenzo” stands for the factual binding force of precedents by holding that “Despite the fact that the Supreme Court only decides actual particular cases brought before it and that its decision is not binding for analogous cases, lower courts are under the duty of adjusting their judgments to Supreme Court decisions. Lower court judgments that depart from Supreme Court decisions without providing new arguments supporting a change of the position adopted by the Supreme Court, in its role as supreme interpreter of the Argentine Constitution and laws enacted thereunder, are lacking due reasoning, especially in those cases where the appellant has expressly raised such position.”

Scholar Alberto Bianchi notes that the Supreme Court has not formally announced the use of the stare decisis, yet it became a practice since its implementation in the case “Cerámica San Lorenzo.” In his view, this function is limited to cases where a legal rule is established within the area of jurisdiction of the Court as final interpreter of the Constitution.¹⁴

In the final analysis, as a practical matter the rule of judicial precedent ultimately may set the path to the stare decisis.

• 2. What is the status of judge-made law in your legal system? Are they any theories of judicial decisions such as, or similar to, the so-called ‘declaratory theory’? What is the nature of the joint operation of statute and precedents as sources of law?

‘The common law’s attachment to what is often termed ‘retrospective overruling’ was premised in large part on the theoretical proposition that courts simply “declare” what the law is. According to this declaratory theory of the law, courts never actually make law when promulgating new rules or principles; rather they draw our attention to the state of legal affairs which has existed unnoticed for some time.

The diffuse judicial review approach adopted by Argentina pre-supposes the existence of a written and supreme Constitution enforced by all the courts who exercise control of constitutional effectiveness over the rest of the legal system.

The role vested upon the courts as regards constitutional legal provisions is not merely declaratory, courts do not merely formulate the existing law, they reinterpret it. Both upon establishing the elements of the constitutional rule to the specific case and upon imposing the sanction thereof, judicial decisions have a constitutive nature. Although a court decision enforces a pre-existing rule that relates certain consequence to certain conditions, the truth is that the existence of the particular specific conditions, in relation to the particular specific consequence, is primarily established in each case by the court’s decision.

From this perspective, the judicial decision represents the necessary individualization and application of the general and abstract rule to the case in question.

Thus, all judgments “create” law by establishing an individual rule applicable to the particular case, such individual rule being the product of the transformation that the court makes of the general hypothetical rule specifically for the case brought before it.

Such control is exercised equally over statutory law as well as over case law, so that we may say, to a certain extent, that they are both sources of law.’¹⁵

Case law goes beyond the classic meaning attached to the term under the common law, generally associated to case law in contracts, land law, torts and criminal law, which is to a certain extent a rule originated exclusively from judicial decisions and doctrines associated thereto. The fact that the law is enacted in the form of statute law, as is the case of most codes of Civilian-Continental jurisdictions, or of the U.S. federal law, does not mean that once the statute law has been passed by way of codes or federal statutes such statute law will not be subsequently subject to judicial interpretation in the form of case law or precedents. Therefore, the analysis of the economic consequences of judicial rulings and their efficiency applies to both systems.¹⁶

• 3. In your legal system, what are the jurisprudential problems raised by case law generally and by the rules of precedent in particular (e.g courts as legislators?) which have not be dealt with under the previous rubrics?

From a theoretical standpoint, in Argentina some legal scholars believe that the application of a constitutional legal provision by the Supreme Court or by any other court involves after the interpretation thereof, the creation of an individual rule. Thus, the judicial role as well as the legislative role involves both creation and enforcement of the law. Given that all Supreme Court decisions must be duly supported by reasoning, such reasoning is the basis of a future precedent, i.e. a constitutional rule created by judicial decisions.¹⁷

The process whereby law is constantly creating itself goes from the general and abstract to the individual and specific involves an ever growing individualization and specification dynamic.

From such standpoint, a constitutional legal provision, which is general per se, connects specific events to specific consequences which have been determined in an abstract manner. In some cases such consequences are not specifically provided for under the Constitution itself, thus it is necessary to determine in each case if the conditions provided in abstract by the general provision itself, specifically exist in the given case in order that the sanction established by the general rule may be ordered and enforced in the specific case, giving way to an individual rule.¹⁸

Other legal scholars argue that courts create law only in those exceptional cases in which there is a gap or “laguna” in the law. Furthermore according to this position, the judicial creation of law arises both in the case of legal gaps as well as in the case of conflicts of legal provisions. The technique usually applied by courts consists in placing the legal provisions within a hierarchical priority order and then, discarding the legal provision that is placed lower in the hierarchical order, this operation involves the total or partial invalidation of the legal provision in the particular case.¹⁹

The jurisprudential experience showed the last few years Argentina Supreme Court decisions have intended to include some matters in the legislative agenda or, in other cases, to point out the constitutional path Congress should take regarding certain affairs. Moreover, in some decisions it has changed the clear legislative intent, in order to -through judicial interpretation- square the law with the Court’s interpretation of the Constitution.²⁰

These measures are shown in different areas of the law:

• (i) Back in 2004, in the cases Castillo ²¹ and Aquino, ²² the Supreme Court declared the unconstitutionality of the Labor Risks Law, law 24.557 as regards its procedural contents (a matter constitutionally reserved to provincial legislation) and the limits of indemnification for labor injuries, considering its provisions deny workers their right to a complete restitution. These cases, by invalidating the system created by law, even though with inter partes effects, implied a de facto annulment of the challenged legislation. In addition, the Court’s rulings demanded congressional action in order to modify the system in accordance with court-established guidelines.

• (ii) In Vizzoti, ²³ the Supreme Court ruled that the limits to the base salary used to calculate termination compensation provided for in the Employment Law were unreasonable, in light of the constitutional obligation to protect workers against unjustified firings.²⁴ The Court then provided Congress with guidelines as to valid limits, indicating that “the Court’s decision does not entail undue interference with congressional powers, nor a violation of the separation of powers, being only the duly exercise of the constitutionally-mandated judicial review over laws and governmental action”.

• (iii) In Rosza, decided in 2007,²⁵ the Supreme Court, in declaring the unconstitutionality of the regime concerning the appointment of interim federal judges, urged Congress to enact a new “constitutionally valid” regime, providing the guidelines that said new regime should follow, and granting Congress 1 year to implement the new system.

• (iv) The Constitution provides that Supreme Court’s appellate jurisdiction be exercised in accordance with the rules and exceptions provided for by Congress.²⁶ Following such rule, Congress has enacted legislation providing that all cases ordering the government to pay social security benefits must be appealed to the Supreme Court, which appeals actually delays payment to elderly people. In Itzcovich, ²⁷ the Court declared that the appeal procedure has become unconstitutional; affecting petitioner’s right to a speedy trial, emphasizing that reasonableness requires that a law continues to be coherent with the constitution throughout the period of its enforcement:

  When a rule frustrates or detracts the purposes of the law in which it is inserted, so as to conflict with constitutional principles, it is the justices’ duty to desist from such rule and stop its enforcement in order to guarantee the Constitution’s supremacy, as this is the moderating function of the Judiciary Power and one of the main guarantees against potential abuse by the government.

Shortly after the ruling, Law 26.025 was passed and modifications were introduced to the system to comply with the decision.

In other group of cases, the Supreme Court resorted to an “integrationist” interpretation in order to reconcile local legislation with Human Rights’ treaties.

In 1992, in Ekmekdjián c. Sofovich, ²⁸ the Supreme Court recognized that international treaties have precedence over internal legislation. The constitutional amendment of 1994 ratified this principle and even gave to a series of enumerated international documents “constitutional hierarchy”.²⁹ Since then the Court has held that constitutional review includes as well confronting internal laws and regulations with international conventions, having the power to declare such laws “unconventional”.³⁰

Among those documents, the Constitution gave constitutional status to the American Convention on Human Rights which, among other rights, establishes the right of any person accused of a criminal offense, to appeal the judgment to a higher court.³¹

The Argentine criminal legal system provided, for those cases tried before a three-judge panel in oral proceedings, only a limited review of the judgment before the Corte Nacional de Casación Penal. In Casal, ³² decided in 2005, the Supreme Court held that the only way to square the requirement established in the American Convention with the Argentine criminal legal system, was to interpret Sec. 456 of the Criminal Procedural Code as permitting an ample review of the prior ruling.

In other set of cases, the Supreme Court ruling did not only invalidate legislation, but replaced the unconstitutional rule with a different one.

The Argentine Constitution recognizes the right to marriage. In regulating such right, Congress established that divorce did not entail the right to a new marriage, a clause whose constitutionality was upheld several times. However, in 1986, the Supreme Court applied a “dynamic” –living constitution– approach and in Sejean ³³ it considered that changes to societal perception requires giving a new scope to the right to human dignity, which led to the unconstitutionality of the statute that had been in force for almost a century. This decision was the prelude to a reform of the law of civil marriage, which new law, following the Supreme Court decision, admitted the possibility of a subsequent marriage.³⁴

In Portillo, ³⁵ decided 3 years later, the Court was required to rule on the constitutionality of mandatory military service. Petitioner claimed that to the extent military service might require the killing of other individuals, it affected petitioner’s deep religious beliefs in violation of the free exercise of religion clause of the Constitution. The Court held that in peace times, compliance with military service as established by Congress violated such clause, but notwithstanding, it required petitioner to serve his time doing alternative civil service, redefining the concept of “national defense” and despite the fact that Congress did not provide for such an alternative.

The Supreme Court has as well reinterpreted political will when it needed to square the law with new realities.

In Petric, ³⁶ decided in 1998, it reinterpreted the scope of the right to reply recognized by the American Convention of Human Rights. Despite the Convention recognized such right against statements made through a “legally regulated medium of communication”, the Court expanded its scope to statements made through printed press (which in Argentina is not, and cannot be legally regulated).

The Supreme Court, through its decisions, has also lessened the effects of certain legislative political choices that, in the Court’s opinion, alter fundamental rights.³⁷ In Milone, ³⁸ the Court mitigated the effects of a law concerning labor accidents that allowed labor insurance companies to pay the indemnification in monthly installments throughout the life of the individual. By declaring the mechanism unconstitutional, it obliged the insurance company to pay the indemnification in single, lump-sum payment.

The Court’s ruling in the Badaro cases, concerning automatic adjustment of pensions ratifies this criterion. The Constitution provides for “mobile” pensions.³⁹ In Badaro, ⁴⁰ the Court considered that Congress’ inaction as regards the increase of pensions, in light of them having been seriously reduced due to high inflation, was a violation of the constitutional mandate, and therefore it urged Congress to pass legislation within a reasonable time to solve that problem.

The Court emphasized that it is not only a power but a duty of Congress to give effect to the constitutional guarantee of pension mobility, for which it must legislate and adopt measures to guarantee the full enjoyment of the right.

In view of the lack of action by Congress, in Badaro II, ⁴¹ the Court, while re-urging Congress to enact legislation, resolved to grant petitioner’s request and adopted a criteria for readjusting pensions until Congress decides to act.

The financial crisis of the last months of 2001 gave occasion to numerous active rulings, first Bustos ⁴² and then Massa.⁴³ In such cases, petitioners sought the unconstitutionality of Executive Emergency Decrees 1570/01 and 214/02 which required the conversion of all dollar-denominated debts into peso ones, establishing an inflation adjustment mechanism. In Massa, probable the most significant one, the Court in upholding the constitutionality of the Decrees, provided for an additional interest in favor of petitioner, not envisaged by Congress.

The Court’s activist approach is shown as well in matters concerning the environment. In Mendoza, ⁴⁴ the Supreme Court, in exercise of its original jurisdiction, received a complaint filed by a group of neighbors of a settlement known as Villa Inflamable, located in the outskirts of Buenos Aires, against the National Government, the province of Buenos Aires, the government of the City of Buenos Aires and 44 private companies, alleging damages caused by multiple diseases that their children and themselves had suffered as a result of the pollution of the hydrologic basin “Matanza-Riachuelo”. In two landmark rulings the first in 2006 and the other in 2008, the Court ordered the defendants to present an environmental recovery program, entrusted the Matanza-Riachuelo Basin Authority its implementation and established detailed court-monitored guidelines as regards compliance in order to avoid inter-provincial conflicts, all of them matters traditionally within the realm of legislatures and the executive of both federal and provincial levels.

In our opinion, when a judge decides a case, the decision, by confronting the action being judged with the law gives some room for the judicial creation of –at least– rules of individual application by means of construction or by filling the gaps in the statute being considered.

It should be pointed out that in our country, judicial decisions, in principle, only have inter parte effects, since no constitutionally mandated stare decisis principle formally exist.

However, Argentine courts, in deciding cases, tend to follow the reasoning of other tribunals (even of their same level) in similar cases, and particularly those decisions of the Supreme Court, as a support tool –not as a mandatory rule– together with other sources of law, for interpretation of legal and constitutional provisions. Nowadays, it is almost impossible to find a judicial decision in our country which does not cite other cases in support of its ruling.

Notwithstanding the lack of binding effect of judicial decisions over other cases, the Argentine Supreme Court, since its early decisions has leaned towards establishing a de facto stare decisis rule as regards its interpretation of the Constitution and of federal laws, aiming to provide litigants with some degree of certainty as to how the law will be interpreted, a requirement the Court finds embedded in the due process clause of our Constitution. In García Aguilera, a case decided in 1870, barely 8 years after the Court’s establishment, the Supreme Court held in a since then often repeated statement, that “lower courts are required to adjust their proceedings and decisions to those of the Supreme Court in similar cases”.

Moreover, the Supreme Court frequently denies its discretionary review (equivalent to the US denial of certiorari) in those cases that deal with long established matters, unless petitioner raises new arguments; while it revokes –considering them to be without sufficient basis– those decisions that contradict prior Supreme Court rulings without giving new reasons to distinguish the ruling. It should be pointed out, however, that the Supreme Court has not considered itself obligated to this principle, and has not hesitated in overruling its prior precedent without giving much reasons, and solely because of a change in the Court’s majorities.

By this power, the Argentine Supreme Court, through its original and appellate jurisdiction -both ordinary and extraordinary-, has risen to become the final interpreter of the Constitution in all cases that come for its review. Although the Argentine Supreme Court powers are formally different from that of European constitutional courts, as one of the most prominent Argentine Constitutional Law scholars has said: “the Supreme Court is frequently called ‘Court of Constitutional Guaranties’ since it has been granted the power to defend the Constitution in its entirety, but essentially in those parts where it touches the intimate essence of the human dignity, of its freedom, of its rights”.

Since the mid-twentieth century, and particularly after the return to democracy in 1983, in most matters the Argentine Supreme Court has adopted an activist role. The increase of the judicial review power over matters previously considered to be political questions; the judicial recognition of certain constitutionally guaranteed procedural safeguards in the absence of implementing legislation; the expansion of the standing to sue on constitutional matters (which expansion was helped by the Constitutional reform of 1994); and a “living constitution” approach to constitutional interpretation, particularly in light of the international treaties on human rights, among other issues, have made the judiciary, and specifically the Supreme Court, a key player in the political arena, not only through the declaration of unconstitutionality of laws and executive actions, but prompting or restraining the enactment of legislation in several matters, and indicating the path Congress should take regarding the regulation of certain affairs. Moreover, in recent years, the Supreme Court has strengthened its powers by accepting sua sponte constitutional review and by pretending to expand the effect of its decisions beyond the scope of the case being decided.⁴⁵

Building on the separation-of-powers doctrine, it is a long established Supreme Court that to declare a law unconstitutional trough the judicial review should be the last resort and applicable only if the case cannot be solved on other grounds.

Chief Justice Ricardo L. Lorenzetti, in his concurring opinion in “Itzcovich”,⁴⁶ in dictum, provided some guidelines as to when a law will be declared unconstitutional, in order to “contribute to judicial certainty”: “It is necessary to differentiate among three different possibilities: “constitutional interpretation” (interpretación adaptativa), “subsequent unconstitutionality” (inconstitucionalidad sobreviniente) and the disqualification of the law as a result of its effects”. He explained that to the extent constitutional interpretation consists in ascribing a meaning to a rule, when it comes to indefinite legal concepts, there are ways to interpret the rule considering the historical and social condition, without having to expel the rule from the legal system, indicating that only exceptionally the Court should declare the law unconstitutional.

Moreover, in a recent decision in which some aspects of the judicial reform enacted by Congress where discussed, in re “Rizzo”, the Supreme Court provides a list of the latest cases in which the Supreme Court exercised its judicial review powers exhaustively.

“The Supreme Court declared the unconstitutionality of the following laws: the so-called Due Obedience and Full Stop laws (Obediencia Debida y de Punto Final) that barred trials involving serious human rights violations perpetrated during the Argentine military dictatorship (in Simón, Fallos: 328:2056); the Law of Civil Marriage which by forbiding the re-marriage of divorcees imposed a restraint on individual freedom (in Sejean, Fallos: 308:2268); Rules of Criminal Procedural of Argentina insofar they failed to acknowledge the accusation powers and autonomy of the Attorney General’s Office (in Quiroga, Fallos: 327: 5863); criminal law which by punishing drug possession for personal consumption involved a violation of personal freedom (Bazterrica and Arriola cases, Fallos: 308:1392 y 332: 1963); the law that by allowing, without sufficient grounds, the interception of personal communications and the gathering of personal data, involved a violation of the right to privacy (in re Halabi, Fallos: 332: 111); the Employment Contract Law provisions that failed to acknowledge employees’ rights to full protection by fixing a cap on statutory severance payments (in re Vizzoti, Fallos: 327: 3677) and denied luncheon tickets their nature as salary compensation (in re Pérez, Fallos: 332: 2043); Employment Risks Law insofar it prevented employees injured at work from recovering immediate full redress and compensation as results of the accident (in re Aquino, Fallos: 327: 3753) and not subject to a periodical payment schedule (in re Milone, Fallos: 327:4607); the Law of Union Associations insofar it provided union protection exclusively to representatives or officers of unions that held union legal personality (in re Rossi, Fallos: 332:2715) and afforded privileges to certain unions to the detriment of others that were merely registered unions (in re Asociación de Trabajadores del Estado, Fallos: 331: 2499).

The Supreme Court also struck down a social security law that barred pensioners access to court by unnecessary prolonging the court recognition of their subsistence payment rights (in re Itzcovich, Fallos: 328:566) and breached the pension adjustment mandate established by Article 14 bis of the Argentine Constitution (in re Badaro, Fallos: 330:4866).”⁴⁷

• 4. In your jurisdiction has the retrospective effect of judicial decisions been criticised? Since when? By whom? Did this lead (such in France, for example) to the set up of working groups aimed at discussing possible limits to the retrospective effect of judicial decisions?

Historically, rules of law announced in judicial decisions were applied retroactively that is, to conduct or events that had occurred prior to the dates of those decisions. Today, the retroactive application of judicial decisions remains the norm. A problem often arises, though, when a court considers the application of a rule of law that seems “new” in some significant way,⁴⁸ this will be discussed later in this paper.

Recognizing this problem, courts and legal scholars have considered whether and to what extent “new” rules of law should be applied only prospectively, that is, “only to events transpiring after the date of the precedent-setting decision (often termed pure prospectively) or only to such future occurrences and to the parties in the precedent-setting case itself (often termed modified or selective prospectively).”⁴⁹

Regarding this subject matter, the issue at stake is not universal, nor is it perceived as having an equal approach by all the respective national judicial systems.

I consider this to be a matter that is dealt by, with its own national peculiarities and having both, a judicial as well as a technical dimension. In this context I am not aware that the retrospective effect of judicial decision has been criticized lately, at least not to my knowledge from a particular and narrow judicial aspect.⁵⁰

• 5. Has the technique known as ‘prospective overruling’ been used by the courts in your country? By which courts? On what grounds? To what degree? Was it done implicitly and/or explicitly? More generally, could you define ‘prospective overruling’ from the point of view of your jurisdiction and tell what situations it covers.

In order to answer these questions, the status of this technique may be illustrated by explaining cases –mainly criminal cases- in which the Supreme Court has applied it and demarcated the scope of retroactivity.

By examining the following precedents an outline of the Supreme Court’s development of modern retroactivity/prospectivity doctrine can be found.

On April 8, 1986 the Supreme Court rendered its decision in the “Strada” case.⁵¹

In cases as the one referred above, the Supreme Court’s decisions held, generally, that the superior court of the case was the Court of Appeals (Cámara). However, if in addition to the federal appeal any of the parties had also filed an appeal with the provincial court, the Supreme Court usually suspended the hearing of the federal appeal (recurso de queja) until the superior provincial court would resolve the pending provincial appeal.

By means of a long decision, the Supreme Court changed the position it held in its own earlier decisions and resolved that the superior court of the case, for the purpose of Article 14 of Law No. 48, “is the judicial court vested as superior by the provincial constitution, unless such court would lack jurisdiction in the case….”

Scholar Alberto Garay refers that the core issue in the “Strada” case involved whether such allocation, i.e. such division of tasks, made by provincial constitutions and laws was valid in light of Article 48 and the Argentine Constitution (the “Constitution”).⁵²

On April 15, 1986, 7 days after rendering its decision in the Strada case, the Supreme Court decided the “Maria Esther Tellez v. Bagala S.A.” case.⁵³

If the Supreme Court resolved the “Tellez” case on the basis of the new principles laid down 7 days earlier in the “Strada” case, the appeal lodged in the “Tellez” case would have been denied as inadmissible.

However, the Supreme Court decided otherwise. Thus the Supreme Court decided not to apply, in the case, the new approach it had adopted a week earlier.

The Supreme Court decided that “the new approach contained in re Strada would only be applied as regards the federal (so-called) extraordinary appeal (recurso extraordinario) taken from judgments notified subsequent to the Strada precedent”.

Additionally, the Supreme Court stated, in a general manner, that the “new approach” arising from such decision (i.e. Strada) would be applicable to all those cases where the judgment under appeal would have been notified subsequent to the date of the decision rendered in the Strada case (April 8, 1986).

The Supreme Court provided the following express grounds for such holding, that “the immediate application of such approach would prevent the availability of Supreme Court review (by way of recurso extraodinario), at a stage when access to provincial courts would be unavailable due to the fact that the relevant prior procedural stage was already closed”.

According to Garay this appears as the decisive reason underlying the Supreme Court’s decision not to apply the doctrine arising from the “Strada” precedent to the instant case.⁵⁴

In fact, Garay argued that in both “Strada” and “Tellez” cases the Supreme Court had to decide –for the sake of the formal admissibility of the federal extraordinary appeal (recurso extraordinario)- which was the provincial court that was deemed to be the superior court which judgment could be appealed to the Supreme Court. However, the Supreme Court made a distinction between both cases, highlighting a significance difference. In fact in the Strada case the appellant had taken such appeal both from Appellate Court judgment and from the provincial Court judgment. Conversely, in the Tellez case the federal appeal had been taken, solely, from the judgment of a single instance court. No appeal had been taken to the provincial Supreme Court.

Now I will refer to the other cases that were resolved by the Supreme Court applying the doctrine laid down in the Tellez case.

In the “Giroldi”⁵⁵ case, adjudicated 9 years after Tellez, the Supreme Court declared Article 459 item 2° of CPPN⁵⁶ unconstitutional on the grounds that it barred the chance that a superior court would review a judgment ordering a monetary payment below a certain amount.

Supreme Court held as follows are regards the constitutional issue:

That the above determines that the most adequate manner to ensure the double instance guarantee in criminal cases provided under the American Convention on Human Rights (Article 8, item 2 paragraph h) is to declare the constitutional invalidity of the limitation established in Article 459, item 2 of CPPN, insofar it bars the admissibility of the cassation appeal from the judgment passed by criminal courts on the grounds of the amount of the penalty.

As a consequence of the above holding, the Supreme Court remanded the case to the Cassation Court to render a new judgment, through the relevant Panel. The prospective effect of the Giroldi case is as showed.

Shortly after deciding the Giroldi case, the Supreme Court was called upon to decide a series of cases which one of the main features was that in all of them the extraordinary appeal (recurso extraordinario) had been taken from judgments rendered by oral courts.

The “Andrada” case is the first example of this kind. Upon deciding this case, the Supreme Court held:

That although this Supreme Court declared in the Giroldi case on April 7, 1995 the unconstitutionality of the limitation established in the legal provision mentioned above, on the grounds stated in the precedent published in Decisions -Fallos: 308:552, Tellez- it must be pointed out that the institutional authority of the approach adopted in the decision as regards the requirement related to the superior court of the case, in the frame of the federal courts, shall become effective for extraordinary federal appeals taken from judgments notified after the aforementioned decision [Emphasis added].

The emphasis in the justification of the unconstitutionality declared therein had been placed in the frustration of the double instance.

The Strada-Tellez doctrine was cited and applied in several cases.

What is interesting of these new precedents is that in them the Supreme Court seems to reformulate the holding or ratio decidendi in Tellez, restricting it to the material facts or features, for example, a restriction in non-criminal matters can be found in “Sanchez”.⁵⁷

• 6. In your jurisdiction, have the courts ever indicated the circumstances/ contexts (this may be under the form of guidelines) in which it might be appropriate to use or not to use this technique (e.g. in the latter case, to prevent a person from claiming a violation of his human rights)? Have they also stated the moment at which and the terms on which overruling should take effect?

The comments of this matter are consistent with the results of the cases described above under the case by case decisions. In “Tellez”, for example, the Supreme Court has adopted Judge Cardozo’s concern as regards where to draw the division line that separates the old from the new case law. Such task, as was expressly stated, was to be supported on “grounds of convenience, utility and deep justice feelings”. It was based on the need of determining the time as from when the new changes would become operative and resolved, as reflected in the above transcribed paragraph, that the principles established in the Strada case would be applicable to extraordinary appeals notified after July 8, 1986, date when such case was decided.⁵⁸

In a recent case in re “De Martino, Antonio Conrado s/ su presentación” the Supreme Court revised a resolution of the Attorney General’s Office designating an Interim State Attorney.⁵⁹ Notwithstanding the foregoing, and similarly to what has been held by this Supreme Court on the grounds of elementary legal certainty in similar cases (see cases Barry cited in Fallos 319:2151, Itszovich cited in Fallos 328:566 and Rosza in Fallos 330:2361) the actions and steps taken by such officer up to the date hereof are held valid and effective.⁶⁰

• 7. What are the advantages and disadvantages of prospective overruling that have been identified in your jurisdiction?

The cases examined cover a set of situations, but do not cover all those that may arise as results of a change in the position adopted by Supreme Court decisions.

One of the most significant features of the use of this technique elaborated by the Supreme Court, as the Supreme Court itself points out, was to protect those appellants who had adjusted their conduct to the prior law in force. As to other situations, in principle, the general rule in favor of retroactivity continued to be in force.

The resolution of the question whether judicial decisions should be applied retroactively, or may, in certain circumstances, be applied only prospective, involves a balancing of a number of different considerations. Ultimately, the question comes down to whether the net benefits of one approach outweigh the net benefits of the alternatives.

And the Supreme Court acted, accordingly, in this manner. Since, finally, we cannot forget that the general rule still in place is the retroactive effect, the prospective effect being the exception.

• 8. Has it ever been argued in your jurisdiction that prospective overruling should not be used when a decision turns purely on the construction of a statute?

As legal scholar Martinez Ruiz pointed out, in “Tellez” case the Supreme Court has created a rule. Or, more precisely, it has created two rules. No (statutory) law establishes (a) the prospective effect of the Supreme Court precedents that change its earlier precedents in effect up to such date or (b) the prospective effect admitted, the time as from which such principles will become effective.⁶¹

No (statutory) law provides either, that the rule and principles arising from a precedent must always be applied retroactively. This has been and is, unquestionably, the traditional judicial practice. But nothing prevents the possibility that, in certain cases, such traditional practice may be revised and changed, provided there are good reasons for doing so.

Indeed, in “Sanchez” case, Ramón Sanchez had sued his employer for an occupational accident. Both the trial and appellate courts ruled for the plaintiff, but the Provincial Supreme Court reversed the judgment and remanded the case for a new judgment to be rendered in view of the new precedent adopted by such Provincial Supreme Court as to the statute of limitations. In its appeal the appellant, based on Tellez, objected to the retroactive application of the new judicial approach adopted as regards the statute of limitations.

However the Supreme Court agreed with the Attorney General’s criteria.

In this matter, I find that there is no constitutional grievance in the fact that the Court from which judgment appeal is taken would have considered –in a case such as the one commenced by the plaintiff, where no judgment making res judicata has been yet rendered- case law on the statute of limitations is applicable to cases such as the instant case on the basis of a precedent issued after the commencement of this action. Actually, the appellant has no vested right to court decisions being maintained throughout the stages of the lawsuit, because this would actually involve obliging the courts to keep their approaches unchanged, this being inadmissible. Accordingly, Your Honor has stated that the claims supported in the change of the case law do not trigger the possibility of filing the extraordinary appeal provided under Article 14 of Law No. 48 (Court Decisions (Fallos):302:785 and 305:2073, among others).⁶²

• 9. In the same vein, is there any issue that prospective overruling turns judges into ‘undisguised legislators’?

I consider it may be useful to address this issue by review decisions with prospective effects, such as the “Rosza” case, and the “Itzcovich” case [referred in question 3 above].

In the Rosza case, the Supreme Court was called to decide a very delicate matter. As results of the delay of the authorities in charge of handling the contest procedures to fill in court vacancies, from the selection of three candidates and the forwarding thereof to the Senate, there was a large number of federal Court offices that remained vacant, both in trial courts and in appellate courts. For Carlos Alberto Rozsa judges appointed surrogates, established the new regime and determined the scope of the declaration of unconstitutionality.

The Supreme Court, by a majority vote, resolved to declare the unconstitutionality of the Regime of Interim Replacements (Subrogancias) approved by resolution 76/2004 of the Judicature Council. In Rosza the Supreme Court had to resolve a conflict that was neither similar to the previous one nor involved a change in the Supreme Court’s own earlier decisions. The Supreme Court had to decide the constitutional validity or invalidity of the procedural steps taken by the interim substitute judge hearing this case.

In “Itzcovich” case, given that the legal provision allowing an ordinary appeal was declared unconstitutional, the Government could not take an extraordinary appeal because the time deadline had expired. Therefore, the Supreme Court had to face a problem involving the retroactivity or prospective effects of such declaration.

If the Supreme Court would decide for the retroactivity, the ordinary appeal had to be simply denied in spite that, at the time it had been filed, it was supported by legislation in force. If it deemed that this result was “very unfair” it could consider the alternative of acknowledging a merely prospective effect to the judgment. Finally, although with some dissenting votes, the majority opted for the latter solution. The Supreme Court held:

That the institutional authority of this decision shall not affect the treatment of this case and that of other ordinary appeals that to date are ready to be lodged with this Court, given that already complied with procedural steps cannot be deprived of validity and that actions taken under laws in force cannot be rendered without effect (see doctrine of Decisions: 319:2151 in the Barry case and footnotes thereof). This being so, given that the application of the new criteria throughout time must be presided by a special prudence for the sake that traced goals are not destroyed along the way. By virtue thereof, a dividing line has to be drawn for the operation of the new approach taken by this Supreme Court decisions, on the grounds of convenience, utility and in the most deep feelings of justice, need that also calls for fixing the precise moment in which such change will become effective (see Tellez case) (Fallos: 308:552).

The Supreme Court decided to confer full prospective effects to the decision. That is to say that in spite of considering that the mechanism devised by the statute law was unconstitutional, the Supreme Court resolved the case as if such declaration would have never been formulated, basing the decision on the unconstitutional statute law.⁶³

Conclusion

It has been pointed out that “All systems of law recognize the necessity of adherence to judicial precedent. A clash occurs only with respect to the weight to be accorded the authority of the decided case. The force of judicial precedent depends upon the extent to which each judicial system is willing to subordinate the necessity of modification of legal rules in accordance with social and economic changes to the desiderata of certainty and predictability in the law.”⁶⁴

In general terms, three different theories obtain as to the force of judicial precedent.⁶⁵

Under the English rule of stare decisis, a prior case directly in point has the same force and effect upon the court which decided it and on all inferior tribunals as a statute, unless and until overruled by a higher court. If -the prior case was decided by the House of Lords, the point decided becomes the law of England, which can only be overturned legislatively by an act of Parliament. Judicial precedent, even of the single case, is law de jure which all inferior courts are obliged to follow, and which cannot be overruled even by the court which originally announced the rule.

The continental concept of judicial precedent presents the other view. Case precedent was given little weight in France following the great codifications. Under the then accepted theory, cases were to be decided only under the code provisions and analogical extensions thereof. It was then felt that there was little need of case law. While in more recent years judicial precedent has played an increasingly important role, it is still regarded as possessing persuasive rather than authoritative force.⁶⁶

The doctrine of stare decisis as applied generally by American courts occupies mean criteria between these two positions. While the great majority of the United States formally adopted the common law, yet in America the institution of unwritten law did not gain such rigid adherence as in England.

On the other hand, under the doctrine of jurisprudence constant, the jurisprudence will be followed, not because of any compelling or binding force, but under the theory that the jurisprudence thus established and applied is usually accepted as correct.⁶⁷

Within a judicial review system, Argentina is still closer to the continental concept of judicial precedent, with its allowance for flexibility in legal thought and possibilities for a dynamic evolution of the law.

The Supreme Court appears to be examining for a workable compromise between the competiting objectives of jurisprudential development and the need for stability of its judicial decisions.