D. T., JC
Buenos Aires, December 22, 1998. - Having regard to the present: Action actually deducted by the defense of D. T., JC in the case D. T., JC s / habeas corpus, causing 550 - to determine their origin.
Whereas: 1 May against the decision room IV of the National Chamber of Criminal Cassation declared bad granted the constitutional complaint deducted as a result of the dismissal of habeas corpus, the defender of the T. JCD filed an extraordinary appeal, whose dismissal led to the direct presentation.
2 nd May as it pertains to the court from which the contested decision must come through the use of federal special reference should be made as decided by this Court in L.195.XXXII, Lara, María Verónica s / habeas corpus, determined in date.
3 ° That, notwithstanding this, by application of the doctrine of Failure: 308:552, have the appropriate valid brought-in what the condition of the superior court deducted the extraordinary writ in the case.
4 That the December 3, 1996 Dr. HVG concluded habeas corpus on behalf of the T. Uruguayan citizen JCD following the detention ordered by the National Directorate of Migration, which was dismissed on the basis of the illegality of the action has been established that the Supervisor declared illegal stay in the country named and ordered his expulsion from the country , having ordered his arrest precautionary purpose (resolution 1187/82).
The federal remedy counsel stated that the expulsion became effective December 3rd day during the hours of midnight.
5 That is the doctrine of this Court that if the defendant has no actual object, the decision is inofficious and therefore is not for no decision when the circumstances supervening have become useless to the relevant resolution, which occurs when the charge has disappeared made, and that judgments in habeas corpus must adhere to the circumstances prevailing at the time of its adoption, so that the restriction on liberty that is invoked is current, ie, contemporaneous with the judicial decision of the case ( Bugs: 312:579).
also stressed that the existence of the conditions judicial office is verifiable and that its disappearance matter can be judged (Bugs: 318:625).
6 º That having finalized the expulsion of the protected, no purpose for the Court to rule on the merits of habeas corpus, since there is no actual offense to justify the exercise of jurisdiction by the Tribunal.
Therefore, the abstract states to the Court in the case. Let it be known, the principal record devuélvanse and filed the complaint. - Eduardo Moline O'Connor. - Julio S. Nazarene. - Charles S. Fayt (dissenting). - Augusto Cesar Belluscio (depending on your vote.) - Henry S. Petracchi (dissenting). - Antonio Boggiano (Dissenting). - Guillermo Lopez AF (depending on your vote.) - Gustavo A. Bossert (dissenting). - Adolfo Roberto Vazquez (depending on your vote.)
VOTE OF MINISTERS Augusto Cesar Belluscio DOCTORS DON AND DON GUILLERMO LóPEZ AF. - Considering: That the undersigned agree with the vote of the judges of Nazareth and Moline O'Connor, excluding consids. 2 and 3.
Therefore, the abstract states to the Court in the case. Let it be known, the principal record devuélvanse and filed the complaint. - Augusto Cesar Belluscio. - Guillermo López AF.
VOTE MINISTER DOCTOR DON ADOLFO Roberto Vazquez. - Considering: The undersigned agrees with the consids. 4 º to 6 º including the vote of the judges of Nazareth and Moline O'Connor.
1 That the December 3, 1996, two lawyers deducted habeas corpus on behalf of the T. JCD Uruguayan citizen, who informed them that he was detained at the police station 12 of the Federal Police, prior to deportation, which would take place on the evening of that day. Both professionals raised the unconstitutionality of the law 22,439 [Edla, 1991-263] and its implementing decree (1023-1094), who outfitted the expulsion of a foreigner without any intervention by a judge to review the legitimacy of this measure and does not allow legal representation for the purpose of ensuring the defense at trial, the possibility to offer exculpatory evidence or judicial appeal of administrative decision.
2 º That given the special nature of the institution of habeas corpus, just a quick and efficient judicial activity can achieve its intended purpose, which is none other than the safeguard and protect the freedom of movement immediately.
3 º, in pursuit of this objective, the Court determined that in this matter is not for extreme formal requirements for the origin of the extraordinary appeal (Bug: 307:1039).
4 That this determines to the extent that a camera has addressed and resolved the merits, the Court must find the resources that are filed against those decisions, so that the flexibility of the formal requirement of the superior court order to attend finishing taken in looking through the legislature to create this Constitutional protection.
Therefore, the abstract states to the Court in the case. Let it be known, the principal record devuélvanse and filed the complaint. - Adolfo Roberto Vazquez.
Dissent of the Ministers DOCTORS DON CARLOS S. FAYT, ENRIQUE ANTONIO SANTIAGO Petracchi and BOGGIANO. - Recital: 1 That the December 3, 1996, two lawyers deducted habeas corpus on behalf of the T. JCD Uruguayan citizen, who informed them that he was detained at the police station 12 of the Federal Police, prior to his expulsion from the country, which would be carried out in hours pm that same day. Both professionals raised the unconstitutionality of the law and its regulatory Decree 22,439 (1023-1094), who outfitted the expulsion of a foreigner without any intervention by a judge to review the legitimacy of such action and does not allow legal representation, to order to ensure the defense at trial, the possibility to offer exculpatory evidence or judicial appeal of administrative decision.
2 º ratify the presentation, the judge decided to proceed with the writ of habeas corpus (pages 4) and ordered that the clerk contact police unit for the purpose of verifying the arrest of D. T. and their transfer to the Oriental Republic of Uruguay. According to the report obrante to fs. 4, was referred to the Court a copy of the fax received at police headquarters from the National Immigration Office, which provided for the transfer of the Uruguayan national day 4 at 0.30, heading to the city of Colonia, República Oriental del Uruguay .
3 º that in those circumstances the judge asked the National Immigration Department file 115.617/74 in order to learn about the provisions. After receiving the judge ordered such actions by strings and add them issued a resolution dismissing the complaint without further proceedings, as not framed in terms of art. 3, inc. Act 1 of the 23,098 [Edla. 1984-98], without costs, and elevated cars in consultation with the camera for the implementation of the provisions of art. 10 of that Code. For well resolved, the judge took into account that the resolution 1187/82, issued in that case had issued an act of administrative authority, under the law providing for the arrest of 22,439 person whose deportation had been ordered by resolution founded the National Immigration Department as a precautionary measure that is implemented by an administrative act of the agency under the Ministry of Interior. To which he added that if it was not within the legal term used in the resolution calling for the expulsion of the foreigners was not for review by way of habeas corpus from arrest on the basis of the regulations of the Immigration Act, which Once I had that same kind in respect of the guarantee contained in Art. 14 of the Constitution to enter, stay and leave the Argentine territory, and whose non forbade the full exercise of those rights.
4 That the appellate court upheld that decision is consistent with law and the evidence of the cause, when D. T. had been expelled. The result was that the complainants filed the constitutional complaint under Art. 474 of Ref. criminal proceedings was granted. In resolving this procedural remedy, the appeals chamber ruled that it was inadmissible because of the extraordinary remedy which had claimed knowledge of that enabled the court had been deducted by the complainants to invoke his defense lawyers T. JCD ... condition that the car does not arise at this stage of the procedure injunction to preclude the admission of the remedy sought. Thus, has upheld the Supreme Court of the Nation who leaves the arrest of benefiting from the action of habeas corpus following his estrangement, the promoter under no personality to question the legitimacy of the expulsion ordered by the Executive Branch Once all the conditions pointed ends his statement without prejudice to the person concerned from initiating any actions it deems necessary, granting the relevant powers to defend their interests (Bugs: 305:319). 5 That
against this decision the complainants filed an extraordinary appeal under art. 14 of Act 48, on the grounds that both the removal procedure as judgments of first instance and those of both houses, had violated the right to due process contained in art. 18 of the Constitution, for lack of sufficient judicial control, since this requirement was absent in the 22,439 law and regulation, which imported its incurable nullity. They argued that the procedure carried out based on the above rules was also contrary to bypass this security rights to be heard and brought promptly before a judge in the case of detention under various international human rights covenants signed by the State Argentina, to which was added to insult the right of defense at trial by failing to consider the aforementioned regulations, assistance counsel and the opportunity to present exculpatory evidence.
addition, aggrieved that the trial judge had not suspended the expulsion order to allow sufficient judicial oversight and in acting as he did, this behavior found that the beneficiary of habeas corpus was never heard.
Finally, note that the fact of estrangement tax does not render the case, since they consider that the hypothesis of cars falls in those cases, as in the previous Ríos (Bugs: 310:819), must be resolved because if not every time there is a similar case will become abstract.
6 th that while issues involving articulated pose procedural in nature, which as a rule are outside the body under art. 14 of Act 48, the species appropriate to consider such grievances since what is at stake is the safeguarding of freedom of movement through the institution of habeas corpus, as a way of ensuring the effective recognition of the right accorded to that effect by our Constitution, which makes it necessary to verify the correctness of ritual considerations that impede judicial protection (Fault: 300:1148). Note that in cases like the present deficiencies that might vitiate the appeal does not prevent appreciate the substance of the grievances, especially when in these extreme cases does not match the formal collections the merits of the federal appeal (Bug: 199:177, 246:179, 251:469, 252:148).
7 th That in principle for this Court noted irregularities in the processing form to the cause. Indeed, the trial judge, before checking the existence of an order of an administrative official authorizing the detention and expulsion of D. T. -Adopted under a statute and its regulations challenged as unconstitutional, and as a result of a case in which no defense was given the opportunity and took the said resolution to establish protected against resolved, however, rejected the complaint in limine without considering the proposition unconstitutional, which was necessary to determine the legitimacy of the order and the jurisdiction of the court. But also, and fundamentally, the decree of fs. 4 was for a writ of habeas corpus true in terms of art. 11 of Law 23,098, so the procedure could not roll back the state of the art. 10, more so, to admit the invalidity of the rules that gave birth to the deportation proceedings, the case had been framed by the provisions of art. 3, inc. 1, of the Act and therefore would have been inadmissible preliminary rejection. This error led to truncate all the activity that the legislature intended to protect personal liberty because it prevented the audience of art. 14 and the resulting opportunity to clarify, with the accuracy required if the protected status who also was deprived of representation that the law imposes on the public defender (conf doctrine Bugs: 307:1039) character as such they were not recognized to complainants.
8 th May the Court of Appeals validated this procedure by simply declaring the application inadmissible for formal reasons, which excluded any possibility of treating the grounds of unconstitutionality alleged from the outset by the complainants. Indeed, that relating to the inability of those in use in the habeas corpus-and defenders were not ideal is not an argument for such purposes, as this Court has recognized that when the protected conduct was not heard by counsel or official or private (conf failure supra cit.) and as for the survival of tax, it still persists in so far as freedom of movement of D. T. is severely restricted by the inability to re-enter the country and the threat that if he did he would impose the sanctions provided in Art. 26 of Law 22,439, as evidenced in the art. 2 of resolution 1187/82.
9 th May, in such conditions, the defects denatured to an extent that the procedures have become totally irrelevant the institution of habeas corpus in the case. This is because although it has followed a different procedure under the Act, using a strange way to state proceedings and without involvement of any of the stakeholders, was cut short the processing of amparo, as to circumvent the constitutional treatment of proposal on the grounds of lack of character defense of the appellants, has circumscribed the scope of the challenge that could only try the complainant, because the Covered had no opportunity to intervene in the case, either by itself or by the Ombudsman Officer, as would have occurred have been observed procedure. It should be noted in this connection the first device that prevails in the area and the summary nature of the process can not be used to the detriment of the security of defense in the trial of stakeholders (acc. Daily Record of the Senate of March 7, 1984, p. . 811) (acc. failure cit.).
10. That, finally, it should be noted that the jurisprudence of this Court has recognized on many occasions that the way of habeas corpus is the appropriate procedural remedy to ensure judicial review of an expulsion (Bugs: 164:344, 204:571, 218: 769, among many others) and that while international law does not provide for a form that should be of the proceedings before the local courts, a widely recognized way of habeas corpus as fit to guarantee all kinds of restrictions on freedom of movement (art. 7, inc. 6 of the American Convention on Human Rights, 9, inc. 4, the International Covenant on Civil and Political, 8 of the Universal Declaration of Human Rights, XVIII and XXV, 3rd. para., of the American Declaration of the Rights and Duties of Man, 5, inc. 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms).
11. That the foregoing, this Court can not validate the decision of the lower court to the extent that the expulsion of a foreigner without any guarantee the possibility of access to a court, could not only be contrary to law but also international law, which can not be ignored by the Argentine courts. Moreover, this Court has recognized that an arbitrary expulsion may lead to a diplomatic claim (Bugs: 164:344, esp. Pg. 383).
the foregoing, it is to the complaint, is admissible extraordinary appeal and annulling the contested decision. Return the case to the court of origin, for whom it may concern, issues a new order in which to consider the grievances raised. Let it be known, the principal and Accumulate refunded. - Charles S. Fayt. - Henry S. Petracchi. - Antonio Boggiano. Dissent
THE MINISTER DOCTOR DON GUSTAVO A. BOSSERT. - Considering: That I agree with consids. 2 to 5 ° inclusive, the dissent of judges Fayt, Petracchi and Boggiano.
1 That the December 3, 1996, two lawyers deducted habeas corpus on behalf of the T. JCD Uruguayan citizen, who informed them that he was detained at the police station 12 of the Federal Police, prior to deportation, which would take place on the evening of that day. Both professionals raised the unconstitutionality of the law and its regulatory Decree 22,439 (1023-1094), who outfitted the expulsion an alien without any intervention of a judge to review the legitimacy of such action and does not allow legal representation for the purpose of ensuring the defense at trial, nor the possibility to offer exculpatory evidence. They also report that the T. JCD was living in the country since 1974, and their four children and his father are from Argentina. It also appears from
Expte. 115.617/74 administrative Ministry of the Interior since 1974 D. T. requested its establishment in Argentina and obtained a residence permit precarious that enabled him to perform paid work, which eventually was repealed.
2 nd That the sub lite federal question exists because it is sufficient to verify whether through ritual assertions has misrepresented the purpose of the Institute of habeas corpus that protects the freedom of movement, like the scope of the guarantees of defense at trial and due process (art. 18 , CN).
Note that in cases like the present deficiencies that might vitiate the appeal does not prevent appreciate the substance of the grievances, especially when in these extreme cases does not match the revenues formal appeal the merits of the federal (Bug: 199: 177: 246:179, 251:469, 252:148).
3 º The object of this writ of habeas corpus as recorded on fs. 1, no merely personal attack detention ordered by the National Directorate of Immigration, but more importantly it prevents the expulsion remain in the territory of Argentina, where he has lived for twenty years, and where they were born four children and his father. Therefore, although it has rescinded the arrest and expulsion has been realized, the present case has not become abstract, because the restriction has not stopped the right to roam on Argentine soil, affected by an administrative process which is said to be unconstitutional but the realization of the expulsion forces him to await the outcome of the action out of this country (of Judge doctr. Boggero Boffi in Bugs: 247:469).
4 That it be noted that the restriction on personal freedom that matters the prohibition of entry into national territory has been considered by the Court proper matter of habeas corpus (Bugs: 305:269, consid. 4 th) and ... the fact that [the beneficiary of the action] ... is currently at liberty abroad does not deprive him of legitimate interest to request a ruling on your situation, since the forced import a restriction on freedom of movement while preventing him to enter and stay in the Argentine territory ... (Consid. 5 º).
5 That in regard to the claim of a quo that car did not arise in the nature of defense counsel for the complainants, in principle it should be noted that depending on the constitutional values \u200b\u200bprotected, the Court has said that should not be extreme formal requirements (Bugs: 199:177, 251: 469; 252:148, among others). This guideline of interpretation has led the Court to admit the appeal brought by a beneficiary complainant of habeas corpus, against the order which dismissed the action, arguing that the action could only usefully be filed by the complainant is not beneficial, as yet had been given assistance under either the public defender (Bugs: 307:1039). Also expressed that the plaintiff is entitled to bring the resource in question, in cases where the covered not present (Bug: 310:1002). 6 th May
also case law that coincides with the generous spirit of the law printed 23,098 at the beginning of bilateralism, especially third-party intervention in the writ of habeas corpus, because although the art. 19 of the 23,098 law restricts the ability of the complainant to appeal, this limit applies to cases in which it intends to appeal the ruling issued after the case has, it is assumed that the conduct of habeas corpus in the presence resulted in corpus Covered by unnecessary role of the complainant (Foundations of Law Project of Habeas Corpus, 23 rd session of the Senate of the Nation). By negative implication, when the habeas corpus is dismissed in limine, the protection is not called to intervene, and meanwhile the 23,098 law provides no restriction to be the petitioner was to appeal the order refusing habeas corpus in limit. The sub
examine the action was dismissed in limine, never held the hearing provided for in art. 13 of Law 23,098, so that D. T. unable to exercise the right under the same rule, which states: The covered may appoint counsel or to exercise self defense provided that this does not affect their effectiveness, in which case the public defender be appointed.
7 th May, consequently, the species exists in current tax and third complainants are entitled to exhaust recursive, this conclusion is without prejudice to the appointment that makes the lower court's precedent of this Court issued on Bugs: 305:319, because that case was settled based on the interpretation of a rule has been repealed by Act 23,098.
8 th May in the sub lite is not subject to debate state's power to expel foreigners and appropriate action to safeguard order and public peace, but whether the restriction by the state of freedom of movement can be legitimate when the grounds determine that they are not objectively verifiable. Already in the last century the Institute of International Law at its session in Geneva in 1892, emphasized the importance of verifying the legitimacy of the expulsion of foreigners, through the establishment of an appeal to an independent power which is executive- who ordered the measure in order to be verified if it is contrary to law or an international treaty (Annuaire de lInstitut de Droit International Justitia et Pace -1892/94-).
9 th international treaties also governed the issue, in fact, art. 13 of the Covenant on Civil and Political Rights states: An alien lawfully in the territory of a State Party to the present Covenant may be expelled pursuant to a decision reached in accordance with law and shall, unless compelling reasons of national security otherwise require, be allowed to submit the reasons that it attend against his expulsion and to have his case reviewed by the competent authority or with the person or persons especially designated by the competent authority, and be represented for this purpose with them (see also arts. 13 of the Universal Declaration Rights of Man, 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, and 22, inc. 5 of the Convention American Human Rights).
10. That while international law does not, of course, the way it should be of the proceedings before the local courts, recognizes in general the way of habeas corpus as fit for any kind of constraint ensure the security of ambulatory (art. 7, inc. 6 of the American Convention on Human Rights, 9, inc. 4, of the Covenant on Civil and Political Rights, 8, of the Universal Declaration of Human Rights, XVIII and XXV, para. 3, of the American Declaration of Rights and Duties of Man, 5, inc. 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms).
11. That, in turn, this Court has not only admitted longstanding judicial review of deportation ordered by the Executive, noting that even before the exercise of the power of expulsion by PEN, the constitutional guarantees to cover still rule in all his empire, the rights that illegal or arbitrary action of the authority may have violated (Bugs: 203:256), but has also devoted to the way of habeas corpus as the appropriate procedural remedy to ensure judicial control expulsion (Bugs: 164:344, 204:571, 218:769, etc.).
12. Than a cursory analysis of the procedure carried out in this habeas corpus, it appears that the judges of the case have frustrated the purpose of the action by opting for an interpretation of the exact opposite of the essential characteristics that shape the writ of habeas corpus, not ritualistic, direct communication between the judge and the protected, and bilateral, that the species resulted in a direct and immediate involvement to a fair legal defense and due process protected (art. 18, Constitution).
13. That this is so clearly through formal devices, omissions foundation and dogmatic assertions, it was progressively truncated judicial review of administrative procedure unconstitutional by the complainants, frustrate the purpose of the action. Indeed, once initiated the judicial complaint, D. T. was never taken in the presence of the judge although he issued the decree of fs. 4 that was a real writ of habeas corpus and subsequently forced him to bring itself under (doctrine of Failure: 307:1039), in other words, the order of fs. 4 was reduced to a habeas corpus without corpus. This not only contradicts the principle of immediacy under the rule, as it kept D. T. stand before the judge and defend himself, but that state of helplessness was worse because no third party complainants were heard in the case. In fact, though wielded serious constitutional grievances for D. T., these issues were never considered by the judges of the first and second instances, and not by the Court of Appeals, who, through assertions dogmatic-out in paragraphs 5 and 6 - directory will not recognize the legitimacy of the applicants to represent the interests of D. T., thereby rejecting the constitutional challenge, aimed at reversing the merits serious omissions occurred in the processing of habeas corpus.
14. That this hermeneutic contrary to the purposes and essential characteristics of habeas corpus by the judge of first instance, with the acquiescence of the other courts involved, has prevented the slightest verification of legitimacy of the expulsion and its compatibility with the Constitution and various international conventions.
15. That also should bear in mind that this Court has recognized that an arbitrary expulsion may lead to a diplomatic claim (Bugs: 164:344, esp. Pg. 383), and the exercise of jurisdiction "in cases like the present the proper way to prevent serious consequences that ensue for the state itself when it takes a measure of this nature against a foreigner without reasonable cause, as the state that owns the injured could resort to reprisals.
16. Finally be recalled that the Court has held that in trials of habeas corpus, by its close association with severe constitutional and basic rights of individuals, appears inexcusable the obligation of judges to base their decisions so that citizens tried to feel better, to help maintain the prestige of the judiciary and, from a technical standpoint, so it is documented that the decision is reasoned derivation of existing law in light of the evidence of the cause and not product individual will of the judge (Bugs: 302:964).
It is exposed to the complaint, declared admissible the extraordinary remedy and is left effect the decision contested. Return the case to the court of origin, for whom it may concern, issues a new order in which the grievances raised are considered. Let it be known, the principal and Accumulate refunded. - Gustavo A. Bossert.
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