Tribunal: Sup Court
Date: 21/03/2006
Parties: Duke Salazar, Francisco J.
Posted: 14/6/2006 SJA. JA 2006-II-459.
EXTRADITION - Procedure - Judgement - Rejection of the extradition request - Extension of the effects other required
OPINION OF THE ATTORNEY ATTORNEY .- Recital: Francisco J. Duque Salazar, whose extradition to the United States was granted by a final sentence and expressly consented to withdraw from the ordinary forms of appeal filed, makes a direct filing with VE being the extension request on his behalf for the purposes of the court's ruling that were borne on Dina G. Derco in revoking the federal judge, rejected the international order on the grounds that affected the security of delivery that prevents double jeopardy for the same fact.
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The public defender payment of the arguments presented directly at the memorial of fs. 235/237.
In my view, the application may not be welcome because the intention is avocamiento court in a case defunct, and on top by a writing that seeks to directly drive their jurisdiction. Within the system
procedural law anticipated 24767 for extradition proceedings, and speed-favoring direct the Court's immediate intervention in the path recursively, in order to best safeguard the fulfillment of international commitments binding on the Republic - no other form of intervention provided for the high court other than that exercised in the appellate jurisdiction.
Thus despite the delicate matter at issue in the extradition process which should be unique application and interpretation of treaties signed by our country with other powers and take judicial decisions that could affect the good treatment among nations, has been reserved only certiorari to the court mediating action of the parties, that is, the extraditable and defense, the Public Prosecutor and, eventually, the foreign state itself.
why, and beyond any factual and legal similarities in the procedural status of Duque Salazar and Derco-identity, on the other hand, the defense merely relies on a generic and does not show- it is far from being the itinerary fit for a response to the claim of those who, taking advantage of the speculum seen the best of luck in his co-offender and belatedly tries to roll back the cause precluded stages in which decisions taken at that time considered more profitable.
not be ignored that the court, the only suitable procedural opportunity for the exercise of its jurisdiction-that is, when it decided the appeal by Derco, did not extend the purposes of sentencing to the situation of Duque Salazar; solution have been possible outside or against their will pave the delivery (individual decision they play very personal aspects inherent to the best estimates for procedural luck) would have necessarily deserved weight to the existence of a real similarity between the two cases, which is impossible without the proposed equalization.
Regarding the alleged coercion Duque Salazar suffered and would have led to its raid on the sentence given to the clouding his free will in the record that has been take notice to the federal judge to take appropriate measures against the possible commission a crime against public order (pages 9), a situation which, if established, other possibilities open process.
But even though it is a last-observation primarily it impossible for this presentation is addressed.
It is known that the extradition process can move along three stages: the middle, which is the court, where guard outweighs individual rights and the protection of strict compliance with the law and treaties, mainly the light of art. CN 18., The first and last, of an administrative nature, where the executive branch exercises its policies, originally as to the advisability of pursuing the request enabling or not the courts, and finally doing or not extraditable granted by the judiciary.
Well, in this case the third and last of these stages has been completed, and if you like, perfect, exhausted, his letter dated 21/1/2005 of the Ministry of Foreign Affairs, International Trade and Worship led to the Embassy requesting power, which reports that "the Foreign Ministry has granted extradition Francisco J. Duque Salazar, his transfer is being deferred until the appointed time for the meeting with his conviction in the country "(see fs profession. 596 of the principal).
Therefore, not only has deceased the court in the extradition process for Duque Salazar-which may even be permissible in the precise circumstances in the case does not notice, the reopening of the "trial" extraditorio-but also administrative where the executive branch by ruling by the granting of extradition and so let them know the United States of America, has taken on behalf of Argentina a compromise is inevitable within the mutual respect that is the deal with friendly countries.
the foregoing I consider that VE should reject the submission .- Luis S. Gonzalez Warcalde.
Buenos Aires, March 21, 2006 .- Considering: 1) Francisco J. Duque Salazar in his presentation of fs. 1 / 8, funded by the public defender to fs. 295/297, requests will be extended to her about the effects of the decision of the Sup Court, the 16/11/2004, in the case D.1924.XXXVIII, "Duque Salazar, Francisco J. and others s / his extradition" to reject the extradition of Dina G. Derco United States of America.
relates that his legal situation, both abroad and extradition in the criminal proceedings in Argentina, is identical to that of the named Derco, that ordinary appellate appealed to this court under similar circumstances (pages 262/263) that it was founded by his then counsel of confidence (pages 265/273) and attempted abandoned road (pages 278/279) for professional advice and given the approach taken in the case " Arla Pita "(Failure 325:2777). He also described the special context in which the withdrawal took place.
The public defender asks that under the circumstances set out, will rescind the extradition granted for Francisco J. Duque Salazar, having mediated defect in the consent and application of the doctrine of failures 307:2236 ("Lanci"), 308:733 (Rayford) and 315:2680. Also, the extent of these effects is declared by the court under the provisions of art. CPP 441.
2) that, by applying the principle of international law under which, given the silence of the parties, the form of acts is governed by the place of them, is the lex fori which should govern the conduct of the extradition request, as well as the proposition made here.
3) That this court did merit, previous decisions, the legal vacuum that existed under the term of the former Code of Criminal Procedure (Act 2372) regarding the procedure of the regular resources of appeal filed in criminal cases, because the succession of laws for the organization of courts and reform of procedures that left no express provision these resources (316:1853 Faults and appointments).
is why you filled that gap by providing that the application be processed in accordance with the provisions governing appeals similar or exercising the powers granted by Art. 18 Act 48 (Failure 217:20; 220:130, 286:198 and 310:1510).
4) The aforementioned solution currently holds since, as recently pointed out the Supreme Court nor the enactment of Law 24767 on the International Criminal Cooperation or the Code of Criminal Procedure of the Nation (art. 22 Law 23 984) or 24050 Law on Organization and Criminal Jurisdiction (art. 6), made up for that lake (Sent. of 30/8/2005, in the case A.585. XXXIX, "Ayala, Ceber s / Cause 2040", consids. 2 and 3 .)
5) That, consequently, given the silence of the Code of Civil and Commercial Procedure regarding the issue raised by the appellant, as requested be extended to its effects on the action brought by Dina G. correquerida Derco, it is going to the rules of the Code of Criminal Procedure of the Nation on the subject.
6) That the petitioner bases his request in the art. CPP 441., Inserted as a general provision of the criminal appeals (Book IV, chap. I), which is clear enough to devote that time to a process there are multiple defendants, actions brought by one of them favor the others provided the reasons that they are based not purely personal.
This legal provision is to prevent the existence of foundation failures contradictory to the same or similar situations in order to maintain equality before the law and the proper administration of justice. A point that this effect has been widely acknowledged even to consider that had reached the accused abandoned the appeal (conf Leone, Giovanni, "Criminal Procedure Law Treaty", t. III, 1963, Europe-America Legal Ed ps. 109 and 128).
7) That this Court has held that the principles governing the extradition proceedings relating to the universal desirability of prosecution and punishment of all crimes and the interests and security of human societies can not lead to the conclusion that no subject required is covered by the constitutional guarantee of legal defense and due process (Bug 261:94, 311:1925, esp. consid. 10).
8) That, therefore, appropriate to apply the rule of art. CPP 441. and extending to Francisco J. Salazar Duque the solution for Dina G. Derco to resolve the court's rejection of the extradition request made in their regard (conf sent. Of 16/11/2004, in the case D.1924. XXXVIII, "Duque Salazar, Francisco J. and others s / his extradition" .)
This is so whenever proceedings identity that hold both required to suggest that they were not purely personal reasons "as required by legal precept" which sustained the ruling of 16/11/2004 to which reference may be made by reason of brevity.
Indeed, Duque Salazar and Derco were required to be submitted in a foreign jurisdiction in order to the very fact that gave support to the same indictment and were tried in the jurisdiction of Argentina for similar facts and based on the same legal classification.
9) That the basic principle of fairness that informs the foregoing approach is not alien to the jurisprudence of the Supreme Court, as reflected in the record of failures 306:435, 314:1881, 316:1328, 319:1496 because , this solution is not followed, would lead to the unacceptable result that although there both required for the same seat allocation in foreign and national headquarters, only to be repaired the violation of the principle forbidding double jeopardy for one of them.
10) That is no obstacle to the solution here is taken, the objections highlighted by the prosecutor of the Nation, has deceased referred to the judicial and administrative information regarding Francis J. Duque Salazar. Indeed, finding the name still under the jurisdiction of Argentina, the application of art. CPP 441. the process of extradition proceedings situation dates back to when the court decided to reject the extradition of Dina G. Derco, making extend the solution adopted here. Thus deprived of regulatory support to the intervention had the executive power in the art support. 36 Law 24767. For all these reasons, after hearing the prosecutor's Office, the court finds: I) To extend the resolution of fs. 479/483 of the main cars Francisco J. Duque Salazar and reject the extradition request by United States concerning them; II) To inform the Ministry of Foreign Affairs, International Trade and Worship so here solved so that in the exercise of the powers responsibilities under arts. 36 et seq. Law 24767 and 99 inc. 11 CN., Arbitrate the necessary steps to implement it here resolved. Notifíquese. Added to the main car and return to Federal Court for Criminal and Correctional 2 of Lomas de Zamora, Enrique S. effects .- Petracchi .- Elena I. Highton de Nolasco .- Carlos S. Fayt .- John C. .- E. Maqueda Ricardo L. .- Raúl Zaffaroni Lorenzetti. In dissent, Carmen M. Argibay. Dissent
DR. Argibay genocidal .- Considering: That this Court shares and endorses the rationale and conclusions of the opinion of the prosecutor, whose terms is referred because of brevity.
Therefore, the court decides: to reject the request for extension of effects made by Francisco J. Duque Salazar. Notified, take right and filed upon return of major orders.
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