22 Pages Posted: 19 Jun 2017
Date Written: June 16, 2017
In 2004, the Argentine Province of Córdoba implemented lay participation in criminal decisions by means of Law 9182. It adopted a mixed tribunal with a lay majority for criminal trials in which aberrant crimes and corruption are alleged. The tribunal, composed of eight lay jurors and three professional judges, deliberates and decides jointly by majority vote.
The law was passed in a context of national debate concerning efficient measures to fight against insecurity and crime. These debates were inspired by a social movement which demanded harsher penalties and judicial reform as means to improve urban safety. The movement understood citizen participation in criminal justice decisions as a tool to adjust punishment levels to social demands and as a way to correct the guarantee-based approach generally held by magistrates, which was considered to be too benign.
However, the arguments considered in the provincial legislature when the initiative was presented were quite different. During the parliamentary debate, it was evident that one of the principal aims of the law was to restore the judiciary’s prestige.
After more than a decade of lay participation in criminal trials, it is interesting to analyze whether the institution of mixed tribunals has fulfilled the expectations held by those who promoted this innovation.
This review of the Córdoba experience of mixed tribunals summarizes the main findings of a research program initiated in 2008. It is focused on three issues: (1) the differences between jury and judge decisions, and the actual levels of lay participation obtained when judges and juries sit and deliberate together, (2) the tensions between the judges’ guarantee-based approach and the social demand for penal harshness connected to fear of crime, and (3) the contribution of lay participation in the courts toward legitimizing the judiciary, a key issue in a society where trust in justice is chronically low.
Data sources are varied, and include a set of 279 sentences decided between 2005 and 2014, as well as interviews to lawyers, magistrates and common citizens who served as jurors. Data obtained in two public opinion studies, conducted in 1993 and 2011 were also used to discuss the effects of lay participation on the legitimacy of the judiciary.
Keywords: Lay Participation, Mixed Tribunals, Legitimacy of the Judiciary, Penal Harshness
Suggested Citation: Suggested Citation
Bergoglio, Maria Ines, Ten Years of Mixed Tribunals in Argentina (June 16, 2017). Available at SSRN: https://ssrn.com/abstract=2987942