Dromi s / certiorari in: E. Moses Fontela c. National state
Supreme Court's Office (CS)
1990/09/06
PARTIES: Dromi, Joseph R. s / certiorari in: Fontela, Moses E. c. National state
Buenos Aires, September 6, 1990.
Considering: 1) E. Moses Fontela, "by itself and as representative of the people", promoted an injunction to the effect that the national state is ordered that the corporate form to be taken by the company "Aerolineas Argentinas", as a result of the ongoing procurement process, frame is "within the prevailing rates as it says the art. 6 of Act 23,696." The Minister of Works and Utilities, to evacuate the required report, questioned the legitimacy of the actor and the consistency of their arguments. In turn, the national court of first instance in federal contentious - Court No. 2 -, felt entitled to the applicant on the basis of supporting the viability of "public actions or popular," and had resulted in demand, ordering the national state to "frame the company to be created within the provisions of art. 6 of Act 23,696. #
latter statement led the State to deduct appeal directly to this Court, which ruled suspend the effect of this ruling, according to the existence of federal question, given their importance, exhibited serious institutional, and come in a clear and manifest that the consequences of the decision appealed against could translate grievances subsequent repair impossible or insufficient.
Subsequently, he was rushed to the actor a shipment for 10 days, which was answered.
2) The circumstances set out above, relating to the mode with which this case has come before the court, require careful balancing. In fact, there was found in the game, first, the requirement of court that should come the ruling challenged by special action, ie the collection of superior court in the case pertains in that appeal.
In this sense, the rule in regard to the procedural regime of the federal courts, is expressed in art. Act 6 of 4055: "the supreme Court, finally, on appeal from final judgments rendered by federal appeals cameras ... as provided by art. 14 of Act 48 .. .. "
3) That the Act 4055, of January 11, 1902, resulted in major reforms in the organization of the federal courts to create courts of appeals. The reasons at the time by the legislature have been specially set the conditions necessary for the court to satisfy the high ministry that has been entrusted; purpose to which it contributes the existence of such courts "intermediate" is because before they could find the parts to repair the damage incurred in previous instances, without recourse to the Supreme Court, either because In order to check for this and certainly would be a more elaborate product (Failure t. 308, p. 490, Cons. 5 ° - Rev. Law, t. 1986-B, p. 476 -); "Diary of meetings of the Senate", the period of 1901, Congress, Buenos Aires, 1961).
4) What, precisely the purpose of the standard under consideration, a stable point that its rigorous implementation imposes a bit which is perceived to depend on it, but not limited to the smooth running of this high court. Then, as was pointed out about the special appeal connected with decisions from provincial courts, it should be reiterated for the scope of the federal courts, that the admissibility of that appeal is conditional on the statement that was intended to bring to trial the Court is not likely to be reviewed by a judicial body, or even the same as issued (Failure t. 308, p. 490, Cons. 4 °).
5) That, however, the same purposes and lay foundations that lead to the conclusion above, guarantee a level consistent with a similar exception to, but highly restricted. Indeed, the creation of the aforementioned federal chambers, as has been seen, has the explicit purpose of preserving the proper functioning of the court preventing the entry of causes, but by its nature would be within their competence, they could receive in settlement other federal agencies that the law established.
It follows from this that, when federal issues exhibit unmistakable and extraordinary circumstances of gravity, total evidence and demonstrate the need for their "final" expeditious solution is required for the effective and appropriate protection of general interest, the important reasons that underlie the superior court that requirement should be harmonized with the requirements set out above, that the regulatory framework that seeks the court's efficiency does not conspire against the efficiency of its administration of justice to that in rigor must pay taxes every procedural system.
opposite holding in mind the same rules designed to enhance the Court's judicial role, is the source that paralyzed his speech, precisely on the grounds that it might be required without delays and for cases that are more characteristic . Must be discarded, then, all intelligence, based on strict adherence to procedural forms, eventually produce the impotence of the judicial body itself as better and more just those work should serve (Bug doctrine t. 243, ps. 467, 476). Such harmonization
certainly difficult, is achievable by a hermeneutics that while jealously guard the designated purposes of the Act 4055, makes possible that, without diminishing it, do not be late - and thus, ineffective- - the court action.
In an effort to reconcile the irreconcilable, was Judge Benjamin N. Cardozo one of the most essential functions of the judiciary.
6) That, indeed, the jurisprudence of the tribunal no stranger to proposals of similar characteristics, not its admissibility refractory. Indeed, it has deeply rooted the doctrine that the existence of aspects of institutional gravity to justify the intervention of the Court surpassing apices of constitutional procedural frustratorios entrusted to it (Bug t. 197, p. 426, t. 244 ps. 203, 235, 245, t. 245, ps. 216, 311, 467, t. 248, ps. 189, 503, t. 263, p. 72, among many others - Rev. Law , v. 33, p. 146, t. 98, ps. 728, 700, t. 101, p. 835, t. 103, p. 22 -). It is, in fact, conditions relevant to the efficiency of constitutional control and the federal appeal that this Court should meet, as consideration has traditionally guided the interpretation of the rules governing the jurisdiction that has been agreed with the court by formal law of Congress, the arts. 14 of Act 48 and Act 6 of 4055. Moreover, it is a trend observed in the same way in the U.S. practice and that is reflected in the procedural rules issued by the Supreme Court of the United States "U.S. Supreme Court Digest", t. 17, p. 19 and Sigtes. (Failure t., 248 p. 189, consid. 3 ° - Rev. Law, Vol 101, p. Number 835 -).
Thus, it was explicitly argued that "Purely procedural aspects of the extraordinary remedy ... not necessarily preclude the granting of the appeal, in cases of existence in the case of institutional interest enough to effect" (Failure t. 262, p. 246 - Rev . Law, v. 120, p. 950, error 12843-S -).
In this sense, it is starkly eloquent extensive series of decisions handed down in various dates and various integrations of the court, which ruled that cases of serious or institutional interest, or similar circumstances, permitted to exceed certain precautions admissibility of the extraordinary appeal. Worth, as example, the following precedents relating to: a) introduction of the federal issue: Failure t. 248, p. 612; b) lack of specific grievances about the federal rules apply: Failure t. 262, p. 7 (Rev. La Ley, v. 120, p. 941, error 12787-S); c) procedural issues to be debated: Failure t. 197, p. 426; t. 243, p. 496; t. 250, p. 699, t. 251, p. 218, t. 253, p. 344, t. 256, ps. 62, 94 and 491, t. 257, p. 132, t. 261, p. 36, t. 262, p. 168, t. 264, p. 415, t. 292, p. 229 (t. 106, p. 256, t. 108, p. 680, t. 111, p. 268, t. 111, p. 765, t. 112, p. 8, t. 1976-B, p. 422, 33 411-S error) d) not final judgments: Judgments t. 167, p. 423; t. 176, p. 20, t. 182, p. 293; t. 185, p. 188, t. 188, p. 286, t. 194, p. 284, t. 216, p. 396, t. 248, p. 664; t. 260, p. 204; t. 265, p. 155 (Rev. La Ley, t. 14, p. 120, t. 16, p. 756, t. 20, p. 865, t. 29, p. 17, t. 105, p. 568, t. 118 , p. 919, 12 172-S fault, t. 21, p. 966), e) judgments of urgency and executives: Failure t. 247, p. 601; t. 256, p. 517; t. 266, p. 81, t. 286, p. 257; t. 295, p. 95, t. 296, p. 747 - Rev. Law, t. 112, p. 256; t. 126, p. 166, t. 151, p. 516 -), etc. Also endorsing this doctrine, but by decisions that rejected for lack of resources the exceptional situation referred to, block remember: 1) Failure t. 248, p. 232 - belated appeals -, t. 259, p. 169 - grievances inappropriately introduced -, t. 262, p. 246 - appeal insufficiently founded -, 2) Failure t. 228, ps. 539, 542; t. 238, p. 391; t. 242, p. 55, t. 244, ps. 235, 425; t. 248, ps. 503, 633, 638, 641; t. 249, p. 89, t. 250, p. 426; t. 268, ps. 503, 546; t. 271, p. 31; t. 290, p. 531 - procedural matters -, 3) Failure t. 250, p. 108; t. 288, p. 159 (Rev. La Ley, v. 120, p. 950, 12 843-S fault, t. 77, p. 33, t. 76, p. 307, t. 87, p. 968, t. 103, p . 22, t. 106, p. 255, t. 129, p. 221, t. 134, p. 1099, Judgement 20 448-S, t. 107, p. 253) - not final judgments - ;, and so on.
Súmase this, that evidence of a serious situation building in cases where irreparable admitted the grievance caused by the court ruling resulted in enabling this instance if the special appeal, notwithstanding the existence of obstacles formal "is the only effective means for the protection of federal law invoked" happy expression as stated in his time in court (Failure t. 210, p. 396). The need for "immediate consideration, timely and appropriate to the nature of law committed," in cases such as indicated above, authorizes the federal road (Failure t. 257, p. 132). There
cases, was featured in t. Failures 182, p. 293 (Rev. La Ley, t. 14, p. 120), which is "better to look ahead to the federal question."
7) That it should make it clear that the application of the doctrine enunciated in controversies like the "under consideration" does not involve the extension of the court's jurisdiction to cases not covered by the legislation regulating it. It is only from the time that must be exercised jurisdiction agreed unequivocally that under unimpeachable record also should be effective protection required by the federal law known (Failure t. 210, p. 396, para . 3 °).
8) That, in the United States, similar purposes which have been reported on the 4055 Act (consid. 3 °), were persecuted by the "Evart Act of 1891, creating the courts of appeals circuit in order to reduce the workload of the Supreme Court of that nation, through the establishment of such intermediate bodies would know of the resources previously raised to face it (Wright, Charles A., "The Law of Federal Courts, p. 725, 4 th ed., West Publishing Co., St. Paul - .-- Minn. 1983). And, let us remember that in such circumstances, the high court before the reform legislation of 1925 and, therefore, not authorized by express rule ordered the lifting of the case to its podium ("certiorari") to rule on litigation pending at the said circuit courts of appeal, so the case reached the Supreme Court "as if it had been brought directly from the district court" (ie, courts) (Robertson, R. and Kirkham, Francis R., "Jurisdiction of the Supreme Court of the United States", p. 204, 1936 belongs to the case quoting "The Three Friends, 166 U.S. 1, 49, to similar effect:" Forsyth v. Hammond, 166 U.S. 506). But the high court said in these rulings, it is a power that should not ordinarily be exercised.
should be added, on this last point, that even after the year 1925 remembered, at which this doctrine of the Court was received in express terms in the "Judicial Code" the U.S., the court ruled, and applied the aforementioned power with particular rigor, highlighting their exceptional, whose employment is justified only to matters of "urgent public importance" that should be resolved "immediately" (see "United States v. Bankers Trust Co., 294 U.S. 240," Railroad Retirement Board v. Alton R. Co. "295 U.S. 330; "Rickert Rice Mills v. Fontenot, 297 U.S. 110," Carter v. Carter Coal Co., 298 U.S. 238; "Ex parte Quirin, 317 U.S. 1," United States v. United Mine Workers, 330 U.S. 258; "Youngstown Co. v. Sawyer, 343 U.S. 579," United States v. Nixon, 418 U.S. 683, cf.: "Supreme Court Rules, The 1980 Revisions, Rule 18, the care of Stern and Greesman , Washington, 1980, ps. 49/50. Also: Wright, Charles A., op. cit., p. 732, Robertson, R. and Kirkham, FR, op. cit., ps. 204/206).
9) That this order of ideas is particularly strengthened by the reforms introduced to the art. 280 of the Code. Civil and Commercial Procedure, by law 23,774, since, as pointed out the message that accompanied the then draft of the executive branch, it involves an "innovation" that "is based on the draft amendments to Law 48 prepared by the Committee established by resolution of the Ministry of Education and Justice No. 772, of 09.04.1984 "(Message No. 771, penultimate paragraph), which therefore means" the incorporation of Argentine law 'writ of certiorari "of American law" (Explanatory memorandum of the draft amendments cit., VI, c, 2), a conclusion with regard to this institute, which corroborate the parliamentary debates.
10) What can be inferred from what has been stated that the exception to the superior court in the order of the federal courts can not but be highly restricted ranges and unique setting. Otherwise, it would compromise the rule that the legislature enacted in that art. 6 of the 4055 Act altering, without serious reasons that justify the regular course of the proceedings, and disrupting the function of the court by which Congress must ensure through their mandates, and the Supreme Court through a case in the spirit of them.
Then, just causes of federal jurisdiction in which to manifest evidence is demonstrated by the recurring issues involving institutional gravity - understood in the strongest sense that he acknowledged the history of the court - and in which, with the same degree of intensity, is credited to the special appeal is the only effective means for the protection of federal law committed, authorized to waive the collection of the superior court to the effect that this Court enable the instance promoted using that resource to review the decision in the contested measures.
11) That, in order to avoid delays, irreparable consequences of which has merit, the same reasons which support the study exception, also play on the venue for the extraordinary proceedings, the "under consideration" was deducted before this Court. Add to this that the dossier was submitted to the court immediately after pronouncement of the court ruling as the term for the deduction of this remedy went to find the cause in court.
12) That clarified the formal aspects of the appeal, it is for the study of grievances made it. In this sense, a citizen who wields the actor to infer that amparo is not suitable - at the federal level - to authorize the intervention of judges to exercise jurisdiction. This is because such a general nature that does not allow, in the case, have to set the specific interest, immediate and substantial leading to regard this as a "cause", "case" or "controversy" only case in which the mind works can be exerted. That is what is in a peaceful court jurisprudence developed in situations substantially similar to those of "under examination."
For example, in cars, "Baeza, Hannibal Roque c. National state "(Failure t. 306, p. 1125, of 08/28/1984 - Rev. Law, t. 1984-D, p. 108 -), was denied the right to challenge actor constitutionally dec. 2272/84, by which the National Executive held a referendum on the terms of settlement of the border with Chile in the Beagle Channel.
also in "Lawrence v. Constantino Nación Argentina "(Failure t. 307, p. 2384, of 12/12/1985) rejected the claim to challenge the approval of the Treaty of Peace and Friendship signed with the Republic of Chile and the validity of two national secrets, which the petitioner had established its right to defend its institutions and the integrity of the Nation. Also
"Zaratiegui, Horacio et al v. National State s / invalid legislative act" (Z.27.XXII., Of 12.6.1988 - Rev. Law, t. 1989-B, p. 267 -), the Court adopted this position in relation to the order of unconstitutionality of the law approving the said treaty, that the actors had been based on the interest that every citizen had to keep the Argentinian territorial sovereignty.
the delimitation of its own sphere of national justice that emerges from those decisions was the ratification of a line of doctrine that began to be developed from the very beginning of the operation of this court.
13) That, likewise, does not confer legitimacy to Fontela, his claimed "representation of the people" based on the quality of national deputy invests. This is because the exercise of that constitutional representation has its pivot in the legislative branch for integration as one of its chambers was elected, and in the field of the powers given to that branch and its components by the Constitution and regulations of the National Congress. Nor
parliamentary quality mentioned him standing to act on "guard of the division of powers" to a possible conflict between rules issued by the Executive Branch and legislation passed by Congress since, irrespective of the latter body has that attribute or not procedural, it is clear that the plaintiff not represented in court.
14) That decision impacted by the lower court, undoubtedly, the policy framework which is chosen by the legislature and executive. Then, only the invocation of the erosion of rights or guarantees made by those who have been entitled to require the court amparo, could authorize the intervention of judges. Hence, the recognition by the lower court's legitimacy does not exist in the person of the petitioner, a prerequisite for the welcome he gave to their grievances, was an unwarranted and unjustified expansion of the powers of the judiciary. In this case, the excess has resulted in an unprovoked interference in the running of public affairs of obvious political importance and economic impact, which, according to numerous legal precedents that have been recalled, creates a serious case of institutional and also generated, by the time that it took place, offenses that would be impossible without further compensation or under an early and definitive care, possible only via the special appeal directly brought before this court.
15) That the Constitution has placed the government of the nation in the hands of three branches: legislative, executive and judicial. Within the scope of its powers, each of them meets the aforementioned function of governing the nation. It is up to the Supreme Court, in that order of segregation of duties, conduct the administration of justice under the laws that regulate it, guided in all costs, to the north route in the Constitution, ie "ensure justice" .
16) That one of the central aspects of the governmental function resides in the handling of procedures within the court routed to the causes that put in play at the National Constitution, the order of the emerging powers it and the rights and individual rights, since such issues are precisely those that inform his ministry more genuine, as the final interpreter Cut it and their ultimate custodian.
17) That the special appeal because the instrument par excellence for the exercise of this mission, it is clear that decisions relating to their technique are in agreement with the authority the Constitution conferred on the Court, real decisions of government whose validity derives from their adjustment to the Basic Law and the rules that Congress issued accordingly. Its success will result from the wisdom and skill that have been adopted.
18) That, of course, it is the government which is typical of the Judiciary, and prudence and wisdom and applied in this area, since it should be noted in this cause, connected with the government, prudence and wisdom relating to the administration of public finances and assets, and the design of the respective policies is proper matter and the other branches. Only a matter for the court, point to the acts adopted in such matters, to decide, in court cases, about its legality, not its accuracy, timeliness and convenience. And so, in what regards the procedural arrangements in accordance with the rules enacted for that purpose by Congress, but with full consciousness the deeper meaning and purpose than those enclosing.
As surely as one of the most delicate tasks of the Judiciary is to know to stay in the area of \u200b\u200btheir duties, they attributed to invading the other departments (Failure t. 155, p. 248, among others), is to affirm that in the area that is exclusive, its powers must be exercised with depth and energy that best meet the mandates of the Constitution and laws, and trust that the people lay on this power.
Then, this court considers it as its responsibility to intervene in this cause, as the political powers on the economic destinies of the nation and its people. Not, indeed, that of the courtroom, where they should be discussed and judged the goodness, wisdom, or timeliness of such policy decisions on public affairs. Our Constitution has wisely provided for this purpose, other forums and instruments. Such platforms, and this Court as head of the judiciary, set itself the causes of its competition, the place intended to ensure that all right, and even to prevent wrong, whatever the authority or power that seeks to ignore.
therefore annulling the ruling by federal judge intervening, with coasts on the charm. - Ricardo Levene (h). - Mariano A. Cavagna Martínez. - Charles S. Fayt (dissenting) .-- Henry S. Petracchi. - Rodolfo C. Barra. - Julio S. Nazareno (depending on your vote.) - Eduardo Moline O'Connor (depending on your vote.) Vote
Nazarene doctors and Moline O'Connor:
1) that following the presentation by the Ministry of Works and Utilities, taking into account the special circumstances and in order to preserve the public interest committed to the cause, this Court decided to suspend the effects of the ruling by the judge in the Federal Court of First Instance Federal contentious as No. 2, as he had admitted the suit filed by a legislator in order to challenge the process of allocation of the Company "Aerolineas Argentinas". That verdict, based on the dec. 1024/90 Executive Branch, to provide for the transformation of that company in a "corporation with minority state participation, type of company it considered not covered by the types or legal forms covered by existing legislation, the judge ordered the defendant (national state) "that qualifies the Company to be created within the stipulations of the art. 6 of Law 23,696, which contains that requirement.
2) That, however, the report was required, the head of the Ministry of Works and Utilities, questioning, among other things, the legitimacy of the applicant, objected in an implicit but clear the magistrate's jurisdiction to intervene in the question that had been proposed, which, in his view, should be brought within the legislative body to which the actor. The judge ruled on the first point, arguing about the need to provide legal protection to so-called collective or diffuse interests who played involved in "sub lite", but said nothing about the second point by referring directly to the merits. In doing so, failed to consider an approach that called into question the validity of the procedure, since the question articulated by the owner of the distribution of ministerial attacked the very scope of its jurisdiction in the case on the basis that lacked it against the attempt to use a road inidónea shaping of litigation to an issue that concerns the entire relationship the other powers that the Constitution statue, this is the Legislative and the Executive.
3) That given the nature of this latter issue, the court could not address the subject of the claim which had been submitted as an order of protection, without this implying dispense with a collection essential to enable intervention. Actions submitted to this court - which also required the applicant requesting the court activity abandonment of appeal - the consideration of these circumstances allowed to comment on this, any time you have questioned the scope and existence externalized it of the duties by the federal judge intervening. While the issue appears not configured as a contest of which, under normal conditions, it is for this Court to decide in exercise of the powers conferred by art. 24, inc. 7, the Legislative dec. 1285/58, the truth is that, as has been raised, involves, in the reality of the facts, a conflict based on the virtual lack of jurisdiction of a magistrate. With this perspective, without prejudice to the consequences involved in the solution has been to arrive ultimately not necessary to examine whether the conditions own special appeal, since this is not the way in which this Court takes its intervention in the case. Moreover, to pass a serious institutional question the existence of which would authorize the court to overcome, exceptionally, collections process (eg, failures t. 246, p. 237 - Rev. Law, vol 98, p. 506 -), including that application, as noted by the majority vote and that does not exist in the present case, she does not reside here in the nature of the matter but on the intervention of a judge of the Judiciary of the Nation in open apart from your competition, has altered the balance of functions inherent in the republican form of government.
4) That as this court, exercising a prerogative that is inherent implied as the supreme body of the legal system and final interpreter of the Constitution, has intervened to avert impairments to the judicial authorities or to prevent potential and exceptional developments in other national powers (Conf failures t. 201, p. 245, t. 237, p. 29, t. 241, p. 50, t. 246, p. 237 and others - Rev. Law, vol 38, p. 53, t. 89, p. 666, t. 91, p. 152, t. 99, p. 182 -), so he has, as part of its duty to draw the precise boundaries that have exercised those powers, without consideration of where and how the point it was proposed, to establish whether the matter in question is beyond judicial authority, which can not be extended by agreement of the parties, rather than they bring to the judges any dispute, the decision not theirs and they welcome it and speak out about it through a Case (conf failures t. 215, p. 492, t. 229, p. 460 - Rev. Law, v. 77, p. 474 -).
5) That with regard to the matter to which reference has been made in the preceding paragraphs, it should be noted that the "under consideration", the actor specifically invoked its legislative capacity (national representative) and, as such, claim to represent the people of the nation to petition as it did. In such conditions, the quality enables him to act invoked inside the body to which it belongs, where you can call the specific remedies that the Constitution provides for the realization of the Comptroller of the Congress on acts of the executive (eg. arts. 45, 52, 63, 67, incs. 7 and 16). In addition, it is only said body as a whole which has the representation of the people (art. 37, Constitution), not its members individually. Moreover, in matters, which the comptroller has been entrusted by the Constitution and the laws to other branches or specific organisms, that is, the Congress itself and the entities in which he, in turn, has delegated aspects of particularized such functions (eg. the General Inspectorate of Justice, the Comptroller General of Public Enterprises, the National Prosecuting Authority for Administrative Investigations, the Court of Auditors and even the Public Prosecutor), the question that ignoring such instances, we try to bring to the courtroom is, in principle and by nature alien to them, it is not permissible for judges exorbitant the limits of their powers and ac- , Tuen replacing those parliamentary mechanisms or forward on the features that have been assigned primarily to specialized agencies of intra or inter organic comptroller.
Otherwise, the judicial activity could be used to interfere with the results generated under the will of parliamentary majorities where the Constitution ensures dominance in the regular order of their operation; which is not possible to accept, without failure of the constitutional order that this Court should preserve, especially when - as in this case - administrative and judicial remedies are likely to correct errors that are reported as if in rigor not harmonize with the existing rules.
6) That the solution does not change because it marked the deduction of an "amparo" and that, under settled law of the court, this type of action does not involve altering existing institutions or justify the extension of legal and constitutional jurisdiction of the judges of the Nation (conf failures t. 259, p. 11, t. 263, p. 15 and many others ­­Rev. La Ley, t. 121, p. 239­­).
7) Que, en las circunstancias del caso, tampoco constituye argumento idóneo que justifique tal exceso, la invocación de los denominados intereses colectivos o difusos. Es claro que, en un sentido lato, ellos se encuentran involucrados en cada acto de gobierno y en gran parte de la actividad administrativa, pero esta circunstancia no confiere de por sí a los jueces la potestad de juzgar, sin más, sobre aquellos actos o de interferir en dicha actividad. En primer lugar, sólo pueden actuar los tribunales a instancia de quien invoque una legitimación adecuada al objeto de la acción que intenta promover y siempre en la medida en question of justiciability issue, namely that judges are able to decide not assume specific responsibilities of the other branches of government. In addition, the claim should have a residual character, ie that judicial protection of diffuse interests - except when based on a regulation that establishes and defines its scope - can only be eligible once they have exhausted the administrative or the mechanisms of the organs whose specific expertise is to meet the requirements supraindividual concerned. If otherwise be understood, the jurisdiction of the courts could be extended unlimited under the single invocation of this category of interest, contrary to the letter and spirit of the Constitution, based on the republican principle of separation of powers.
8) That, in these proceedings, the existence of "other means at its disposal" to give effect to the Comptroller of the Executive Branch actions at issue - which preclude the admissibility of express statutory mandate under (conf art. 2 °, inc. a, Law 16,986) - has been expressly recognized by the actor fs. 66, but sought to justify the courts chosen by the "urgency" which he attributed to the question. Opinion also the holder of the General Inspectorate of Justice to work on fs. 6 / 10, shows that in the area of \u200b\u200bjurisdiction of that body must carry out the comptroller prior to the registration of the new corporate entity in question and whose criminality raises the objections of the actor (see arts. 3 ° 4, incs. cyd, 6 and 7, Law 22 315). Any decision in this regard could be taken, would then have sufficient judicial review to the relevant law provides (Art. 16 to 19, Act). So that if, even disregarding the aforementioned circumstances, the order sought to be interpreted as a massed accessible route attempted judicial, resolution issued by the magistrates involved would also have the implied meaning of a denial on the demurrer articulated by the owner of the distribution of ministerial and would have frustrated the normal work early a question of jurisdiction would also unique spring of this Court defined (art. 24, inc. 7, dec.-Law 1285/58, cited above), since it is the discretion of the court that considerations of judicial economy to settle with an immediate delivery and dispensing of any defects approach to such issues (conf doctrine Trouble t. 298, p. 721, t. 302, p. 672, t. 307, p. 1842, etc.). All this, of course, subject to parliamentary mechanisms that the actor is entitled to call on the body part.
9) That, under these circumstances, we conclude that the intervener magistrate has no power to hear the question that has been made. His decision, issued without addressing the proposition made by the body prior ministerial beyond the "nomen iuris", denouncing the lack of matter jurisdiction over the case, disability is affected, as it has solved the Court in cases like (see Fault doctrine t. 294, p. 25 - Rev. Law, t. 1976-B, p. 367 -; t. 305, p. 1502, and appointments to t. 307, p. 1779).
therefore annulling the ruling by federal judge intervening, with coasts on the charm. - Julio S. Nazarene. - Eduardo Moline O'Connor. Dissent
Dr. Fayt:
1) That Moses E. Fontela, national deputy, initiated amparo proceedings before national courts in the contentious, originating cause "Fontela, Moses E. c. national state s / amparo" (later admitted to this Court "and added" to the cause D. 104 - , 1990).
The impetrante, in essence, sought to amend the dec. 1024-1090 Executive Branch and to suspend the bidding process related to him, concerning the Company Aerolineas Argentinas.
2) The trial judge admitted the action. Had, for its decision, especially in regard to the arguments made by the director of the General Inspectorate of Justice, in the opinion that he was required by a bicameral committee of the National Congress at the time of the enactment of Law 23,696, regulatory framework which is part of the bidding process questioned. In that it was held that the typicality of the companies has its crux in the legislative provision, as are those who can not depart from the rates set by the legislature. It was also stated that the principle of criminality has been adopted by law societies and public order, consisting of the adequacy of the establishment of them in respect of social types or legal frameworks preset by the same law. Consequently, he said, or are facing a typical company, or conversely, there is an irregular company with all consequences that this entails and that surely were not targets of the bidding process.
resolved that in the case defendant was not void of dec. 1024, amending the bidding documents called before, but the change of corporate structure to be adopted by the new company to be created by what order the defendant ordered that compose the society to be created within the provisions in the art. 6 of Law 23,696.
3) That prior to the decision of the judge, was presented directly to this Court by the Minister of Public Works and Services and asked for certiorari of the Court, prior to the issuance of any decision on the case by the judge. He quoted the alleged existence of a conflict of powers of the federal state originated in the magistrate's action, which would lead to a situation of institutional gravity. Understood based their claim on the interpretation made by the art. 280 of the Code. Procedure, and stated that the consequences of any decision in the case could become impossible to translate into grievances of further repair.
4) That by resolution of 07.12.1990 signed by one of its judges, the court requested to send the case to the judge. They arrived, and they worked in the ruling referred to above, issued on 07/13/1990. The Court then decided to stay the purposes of that (decision of the July 13).
5) That the judge's ruling against the Minister of Works and Public Service's Office appealed, reiterating the request for certiorari to this court to the cause. Added to the reasons put forward to justify the procedure as described como una errónea interpretación de la legislación de las sociedades comerciales y empresas públicas, como así también del régimen jurídico que rige las sociedades irregulares. Solicitó la revocación del pronunciamiento apelado y la suspensión de todos sus efectos jurídicos.
6) Que la Constitución Nacional ha conferido a esta Corte el carácter de tribunal supremo de la República (art. 94), y le ha asignado distintas atribuciones. Algunas de ellas se diferencian nítidamente de sus funciones judiciales principales y exclusivas, tal el caso de las reglamentarias contempladas en el art. 99. Otras acrecen su esencial cometido, así su elevada responsabilidad de dirimir las quejas interprovinciales (Art. 109). But focusing the review in its primary judicial functions, as well as definitively established cases of original jurisdiction, the constituents were strict in that they must be "on appeal by the rules and exceptions prescribed by Congress."
7) that congressional legislation is clear in other terms, in cases such as this, the matter should be resolved by an Appeals Chamber prior to the intervention of the Supreme Court. In this sense, the rule in regard to the procedural regime of the federal courts, is expressed in art. Act 6 of 4055: "the supreme Court, Finally, on appeal from final judgments rendered by federal appeals chambers ... as provided by art. 14 Law 48 ...".
8) That the Act of January 11, 1902, produced important reforms in the organization of the federal courts to create courts of appeals. The reasons at the time by the legislature have been specially set the conditions necessary for the court to satisfy the high ministry has been entrusted; purpose to which it contributes the existence of such courts "intermediate", or because before they could find parts repair for damages incurred in previous instances, without recourse to the Supreme Court, either because the object to check for this and certainly would be a more elaborate product (Failure t. 308, p. 490, Cons. 5; "Journal of the House Session Senate "period of 1901, Congress, Buenos Aires, 1961 - Rev. Law, t. 1986-B, p. 476 -).
9) What, precisely the purpose of the standard under consideration, the Panel noted that imposes rigorous application as soon as one note that it depends, but not limited to the smooth running of this high court. Then, as was pointed out about the special appeal connected with decisions from provincial courts, "it should be reiterated for the scope of the federal courts, the admissibility of that appeal is conditional on the statement that was intended to bring the Court's opinion is not likely to be revised by another court, or even the same as issued (Failure t. 308, p. 490, Cons. 4 °).
10) That "lege data" can not be drawn from the 4055 law no exceptions for what should be the court which handed down the sentence can be challenged by an extraordinary appeal with this Court. Do not allow either the text of the law, nor the debates that preceded its passage, nor the interpretation which has received for nearly 100 years of operation. However, the issue is clarified further if repairs on the history of "per saltum" in comparative law, especially law and jurisprudence of the United States, whose constitution is the exclusive source of our arts. 100 and 101.
11) That in continental European law can find examples of removing scale process, but always set to "formal law", so the art. 1688 of the English Civil Procedure Act, para. 566 German ZPO, Art. 360 of the Code. Italian Civil Procedure, rules that otherwise such failure condition to the agreement of the parties.
12) That in the United States, similar purposes which have been reported on the 4055 Act (consid. 5 °), were persecuted by the "Evart Act of 1891, creating the circuit courts of appeal in order to lessen the burden work of the Supreme Court of this nation, through the establishment of such intermediate bodies would know of resources to previously proposed for the former (Wright, Charles A., "The Law of Federal Courts, p. 725, ed. 4 th , West Publishing Co., St. Paul - Minn. - 1983).
13) That while the U.S. law of 1891 is the above history of 4055, in it there is a provision does not appear in Argentina. Thus, in the United States admitted the by-pass intermediate courts but from an express decision by Congress incorporated into the law of 1891 that literally stated:
"In any case previously set to be concluded in the Circuit Court of Appeals, the Supreme Court shall have jurisdiction to require, by certiorari or otherwise, that such cases are certified by the Supreme Court for review and decision with the same power and authority in the case as if it had been brought by appeal or writ of error "(" In Any Such case as is hereinbefore made final in the Circuit Court of Appeals It Shall Be Competent for the Supreme Court to require, by certiorari or Otherwise, Any Such case to Be certified to the Supreme Court for review and determination STI with the Same Power and Authority in the case as if it Had Been Carried by appeal or writ of error to the Supreme Court ").
14) That despite the ambiguity of the phrase" In any of the above cases to be concluded in the Circuit Court of Appeals ("In Any Such case as is hereinbefore made final in the Circuit Court of Appeals ") was interpreted by the Supreme Court of that country in the sense that the" bypass "was possible (148 U.S. 372, 385 (1893), 166 U.S. 506, 513 (1897).
Other terms, the U.S. Court had an explicit text that could interpret and tie his doctrine permissible "per saltum." That condition can not exist in the 4055 Act or any other passed by Congress.
15) That in the north country the theme analyzed had an interesting evolution. The call Judges'Bill, enacted on February 13, 1925, meant that Congress direct intervention of the Supreme Court ruled, sixty-five years, the institute explicit rules "- Certiorari Before Judgement in the Courts of Appeals or certiorari to bypass intermediate Those Courts - "the Supreme Court setting the groundwork, the framework and jurisdictional boundaries in the field today.
was a committee of judges of the Supreme Court, under the direction of Judge Van Devant, which prepared the draft of the Judges' Bill, in order to reduce the number of cases of compulsory jurisdiction to the Court admitted that it should solve. The judges of the Court not only prepared the draft law, but gave testimony before Congressional committees and were actively involved in seeking its passage. The United States Congress became convinced that justice and equality were guaranteed by the intervention in the proceedings, two courts, one district and one circuit, reducing the activity jurisdiction of the Court, both the appellate jurisdiction as it saw fit, establishing procedural formalities aimed at achieving the purpose and outcome.
16) That in terms of certiorari before the sentence of the courts of appeals, the Act conferred jurisdiction to the Supreme Court to review, by this way, any case pending before the Circuit Court of Appeals, whatever the state their procedures. The rule of certiorari before the sentence was reviewed, and so Rule 18 read: "A petition for certiorari to review a case pending in a federal appeals court, before sentence is pronounced by that court, may be granted only if it is shown that the case is of such imperative public importance as to justify deviation from the normal appeal and require the immediate knowledge of this Court. See 28 USC § 2101 (e), see also United States v. Bankers Trust Co., 294 U.S. 240 (1935), Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935); Rickert Rice Mills v. Fontenor, 297 U.S. 110 (1936), Carter v. Carter Coal Co., 298 U.S. 238 (1936), Ex parte Quirin, 317 U.S. 1 (1942) United States v. Mine Workers, 330 U.S. 258 (1947), Youngstown Sheet Tube Co. v. ° Sawyer, 343 U.S. 579 (1952), Wilson v. Girard, 354 U.S. 524 (1957) United States v. Nixon, 418 U. S. 683 (1974)" "A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is given in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appelate practice and to reguire inmediate settlement in this court. See 28 U. S. C. # 2101 (e); see also, United States v. Bankers Trust Co., 294 U. S. 240 (1935); Railroad Retirement Board v. Alton R. Co., 295 U. S. 330 (1935); Rickert Rice Mills v. Fontenor, 297 U. S. 110 (1936); Carter v. Carter Coal Co., 298 U. S. 238 (1936); Ex parte Quirin, 317 U. S. 1 (1942); United States v. Mine Workers, 330 U. S. 258 (1947); Youngstown Sheet ° Tube Co. v. Sawyer, 343 U.S. 579 (1952), Wilson v. Girard, 354 U.S. 524 (1957) United States v. Nixon, 418 U.S. 683 (1974). "That is, the certiorari in the Supreme Court recognized a single category of cases - those of imperative public importance - and that the authorizing rule cited, to the 1 / 1 / 90, nine famous cases. Four led to the declaration of unconstitutionality of the New Deal, two related national strikes in basic industries during the war, one for the case of Nazi saboteurs (Ex parte Quirin), the penultimate over Japan's right to prosecute an American citizen's death of a Japanese woman and the last, which led to the resignation of President Nixon. These cases, including exceptional role models seem to have been selected from the book "Jurisdiction of the Supreme Court of the United States" in Robertson and Kirkham.
17) That the final point of this evolution is in the "rules" of the U.S. Supreme Court currently existing and revised in 1990. There he planned to treat the call-back and play the text of the earlier Rule 18 without mention of the nine cases. In fact says the "Rule" 11: "A petition for certiorari to review a case pending in a federal appeals court before the sentence is handed down by the court, may be granted only if it is shown that the case is of such public importance as to justify deviation from the normal appeal and require the immediate knowledge of this Court, 28 USC 2101 "(" A petition for a writ of certiorari to review a case pending in a United States court of appeals, Before Judgement That is Given in court, Will Be Granted only upon a Showing That the case is of public Importance Such imperative as to justify deviation from an Appellate normal practice and to require immediate settlement in this court 28 USC 2101).
In short, one can say that in all that time the Court of the United States warned that it was a power that should not ordinarily be exercised (166 U.S. 1.49, 166 U.S. 506). That tried and applied the aforementioned faculty with particular rigor, highlighting their exceptional, whose use is justified only to matters of "imperative public importance" that should be resolved "immediately." So it is argued that drastically reduces the duration of a cause, to high ("by passing") to the circuit court of appeals, it is certain that allows direct access to the Supreme Court, with all constitutional and legal consequences it means and that relate to due process, the judge, the superior court in the case, among others. That even the acceleration of the procedure in cases in which time could be a crucial element to the Supreme Court brings problems of varied nature. Precipitation, increased margin of error in the decision, the real impossibility to review important issues in terms distressing, as recognized by the Court in O'Brien v. Brown "(409 U.S. I, 1972). In "New York Times v. United States" (403 U.S. 713, 1971), the judges did dissent left explicit evidence of having lacked adequate time to consider the case (conf: Lindgren, James Marshall, William P. "The Supreme Court power to grant certiorari extraordinary Before Judgement in the Courts of appeals", Ed University of Chicago - ps. 259 to 279. Wright, Charles Alan, "The Law of Federal Courts," p. 732 and Sigtes., Ed. St. Paul, Minn., West Publishing Co., 1983 -).
18) mentioned that all development has to date had not received any in our country, whether by formal laws of Congress governing the "appellate jurisdiction" in this court or by the jurisprudence of the Court. Quite the contrary, recent judicial precedents, but especially legislative, indicate that the Argentine law on the subject has gone a very different path to the American.
19) That, in fact, the Argentine legislature did not agree on such a possibility to skip court stages in the processing of cases. Rather, under consideration in 1987 a bill which allowed for a similar institution, he was not approved. And - which seems conclusive - 23,774 law not included.
20) That it will undoubtedly adversely "per saltum" the legislator of the recently enacted Law 23,774. This is because not only admitted the school despite taking as a fundamental antecedent a bill that it did, but it is unthinkable that has not taken specific account of poor data pronouncements of this Court that he had been rejected. "
21) What about those precedents, a landmark case because it was the "Competition No. 199.XXI.," Investigation of the events of 13.12.1976 in the town of Margarita Belén (Chaco) during the confrontation occurred between legal forces and elements subversive, Judgement of 01.09.1988. It was a negative race locked competition between the Federal Court of Appeals of Resistance and the Court of Appeals in Federal Criminal. In such case the court raised the Whether it could address the growing and merits.
22) That, if you will, from the point of view of the exercise of "appellate jurisdiction" edges had cited the case even more serious than this. This is so because of having resolved the merits in this case, plainly been exercised original jurisdiction in a scenario not covered by art. 101 of the Constitution. It is known that "it is not given to any person or any power, expand or extend the cases in which the Court exercises exclusive original jurisdiction respect the mandate of the Constitution" (Failure t. 32, p. 120, where "Sojo" , whose doctrine is applied to this Court on numerous occasions).
23) That, however, the precedent that has been alluding important statements were made directly applicable to the "sub lite. "Thus it was noted that one could not" ignore the ways that determine the arts. 100 and 101 of the Constitution, or the rules and exceptions prescribed by Congress for the exercise of appellate jurisdiction "(vote of doctors Knight and Fayt). It was also stated that" the need to solve the serious problems involve cases such as this "no" to justify the lack of fundamental principles of our rule of law, as is that of 'due process' "because" ... as it is forbidden to the intervention of judges, under color of inconvenience , error or injustice where public authorities exercising powers conferred on them ... Nor is given to the courts validate the acts committed in violation of the Constitution, because of the order sought by those who met ... "(Bugs t. 198, p. 78 - Rev. The law, t . 33, p. 613 -) (vote Bacqué doctor).
24) That the constitutional guarantee of "due process", in fact, highlights a crucial point for the solution of "sub lite" . The art. 18 of the Basic Law condemns someone to be "judged by special commissions or removed from the judges appointed by law before the offense was committed." This provision, without direct equivalent in the United States Constitution, reflects a peculiar reality of Argentina.
is obvious experience of this court, and those who have had links with the legal life of the country, the zeal with which litigants and judges monitor strict compliance with the rules governing the jurisdiction of the courts, where rules largely rests on confidence in the impartial work of judicial institutions.
25) That this regard, typical of Argentine law, is based on the negative historical experience of the "special commissions" in the constitutional requirement of prior law to the facts of the case "in the division of powers in national jurisdictions provincial, and in general the distrust of the possibility that we can, somehow, to choose a judge to the detriment of a party, or behind the cause of his "natural judge."
26) that the essential requirement of "appeal" contained in art. 101 of the Constitution is a sign that our Supreme Law also requires regular travel a recursive way as a normal requirement for the service of justice, at least, as this Court is concerned, where it can not be the subject vanal scales of such a path.
27) That is not free then we conclude that between the judicial power of the nation needs to function properly respect for the laws of Congress governing the procedure of resources not as a purely instrumental track accessory, but as a claim that is based on the rules adopted by the Constituent Assembly to the peaceful and orderly society living in Argentina.
28) It is clear that skipping regular procedural steps established by law is a serious issue, which does not fit the spirit of our Constitution and meritorious in comparative law is not allowed without prior legislative decision, a decision that is not has occurred in the Argentine law.
29) That, however, the Supreme Court has found cases that enable its judicial activity, regardless of original jurisdiction, without recourse, and without a conflict of competence (Failures t. 246, p. 237 - Rev. Law, t. 98, p. 506 -). He did so on the understanding that as the function that the Constitution itself directly assigned, the Court should draw the limits to the powers attributed it to recognize, organize and distribute in different areas - in the case, a national , other provincial -. The Court was thus in very special circumstances of this case, apart from a jurisdictional and a resource, support a "tertium genus" to enable their performance, because, otherwise, "would have violated the Basic Law, the it represents in itself, a deep and lasting injury. "
30) That none of these scenarios include the exceptional case. On the contrary, his own description shows that the" deep and lasting damage "would emanate from him importance has not, then altering the normal order of the institutions - to the detriment of confidence in the judiciary in general and the Supreme Court in particular - that the republican regime requires preserving the whole event. And all without benefit, ultimately, to the interests of the nation state, exposed to the apparent protection coverage only artificial.
31) For these reasons, in conjunction with the doctrine of institutional gravity developed by this Court, confirmed the orientation of the above arguments. The institutional gravity favors the defense of national interests of society as a whole, and its legal organization considered as a whole, who heads the National Constitution above partisan considerations obstacles born of that system.
If interest is much larger and enduring, for the reasons stated, ensure the normal functioning of legal institutions, thereby strengthening public confidence in them, and the solid defense of state interests - that requires a clear determination of their rights - that unlock forward to a situational difficulty of the administrative authority, the solution within the existing legislation does not in any way envisions impossible.
32) That, as such, if the issue is to avoid late and ineffective decision of the court, since the printed proceedings in this cause would be "the only effective means for the protection of federal law invoked" testitura that is susceptible to serious criticisms.
33) That, in the first place, if they wanted to avoid was an excess which resulted in an unprovoked judicial interference in progress clearly important public affairs and political-economic impact, the appeal by the defendant was not the only effective means. Indeed, the reprieve willing to fs. 84 by this Court would have been the logical corollary of appeal filed before the Chamber (Art. 15, Law 16,986), then if the simple "injunction issued by this Court fs. 84 prevented those improper purposes, the identical result of normal appeal also had. Second, because even with the formal deficiencies attributable to the filing of the plaintiff, by its means the courts have had occasion to meet in aspects related to the adequacy of the company in question to a previously established legal rate. And apparently concluded the unique facets of this process is the main unresolved problem of law, that is, the adequacy or otherwise of the new company to that definition and, more importantly, the extent of state responsibility - full or limited - for his role in it, as resolved in the future if it is part of a corporation or an irregular.
34) That as the above conclusion that this Court can not be supported by direct submission made by the Minister of Works and Services Public and consider further appeal, also made to his courtroom.
therefore rejecting direct submission. - Charles S. Fayt.
