Changes for "permatourists"

[Bajo_cero2]

Thank you. And where would I go if I don't live in the city of Buenos Aires?

I am living in Punta Alta near Bahia Blanca.

CÁMARA FEDERAL de APELACIONES de BAHÍA BLANCA
Mitre 60/62 Bahía Blanca (8000) – Buenos Aires Telediscado 0291 - Teléfonos: 4522713 / 4523285.-


Regards

 

[Bajo_cero2]

The case I posted about the Supreme Court was precisely about an immigrant who was illegally in Argentina.

To lie isn´t illegal when you use it to defend yourself. Typical mistake from common law legal system (US, UK and common wealth countries).

This is very interesting. Are you saying that under Argentine law perjury is not a crime as we view it in US/UK law? [I am not an attorney, but this makes sense] because we expect people to self incriminate which has always seemed useless to me.

Exactly, only when you are a witness you give oak of truth. If you lie being a witness you commit falso testimonio. Other wise you are protected by art. 18 of Constitución Nacional. "Nobody might be forced to declare against him self", this is the defense right.

Regards

 

[esllou]

here is my situation: I am the classic permatourist. Arrived in Jan '09,
have been over to colonia every three months. I'm now in europe having
left 3 weeks ago and will be back in BA in a few days...with nearly two
years' worth of entry/exit stamps in my passport.

I don't think I'll have any problems coming back in via Ezeiza, but I see
problems further down the line once I start the colonia run again (first
trip over due in november)

I live off savings in a UK account so what is the best option for me? It's
not really "earnings", just savings. If necessary, I could try and open an
account in argentina and put money in there...would that help??

I'm with an argentine girl and we've spoken about the possibility of
marriage next year to solve these legal problems...would union civil give
me residency rights too?

basically, once I'm back in BA next week, which of these three options
would be better?

a) go to colonia in november, march, june, etc. Sounds like immigration at
colonia will start getting stricter though I've been reading exactly the
same thing on this forum for two years and it's NEVER happened.

b) stay in BA and keep my head down. The next time I leave the country is
likely to be my last time...but maybe not! If I leave after staying on a
tourist visa for a year, am I likely to be banned from argentina forever?


c) try and legalise my position. With someone living here on savings in a
foreign account, what is my best path to legality or semi-legality?

thanks very much in advance

 

[Bajo_cero2]

I'll try to develop later but one of the reasons might be the differences in-between juridic systems, one of them being the powers of the judge :
- In the "anglo saxon" countries (I don't like too much the word since it is a bit outdated now), the procedure is "accusatory" which gives a preeminent place to lawyers, under the impartial authority of a judge who acts more as a referee.
To be noted too, if I recall, that the "accused" needs to plead guilty or not guilty.

- In Latin America and in most -if not all- of continental Europa, procedure is "inquisitory" and the role of the judge is much more active. Apart of the elements the lawyers will bring to him, the judge will be able to seek further elements by himself to make an opinion.

Big difference from the "accusatory" system : even if the "accused" recognizes he is guilty, this is just one proof amongst others.

---

I can see another big difference as well between both systems :
- Anglo Saxon countries : mix of common law and written laws
- Latin America and continental Europa : written laws bear a much more important role

---

And of course, a Constitutional right is much more important to anything else due to the hierarchy of norms, but this we all know.

The difference you mention is related to the criminal procedure. However, in some states like Buenos Aires and Cordoba, the procedure is accusative with a preliminary written investigation (IPP) and a trial face to face.
The Federal code is inquisite during the preliminary investigation and accusative during the trial.

In civil cases the procedure is something alike the accusative you describe but written with some audiences.

And there are some procedures were you ask for something to the judge with no opponent (citizenship for example).

But the point is that everything is written, that´s why appeals are so important and unrestricted. To arrive to Supreme Court is much more difficult because you need a controversy about the interpretation of the Constitution.

Regards

 

[Bajo_cero2]

Another simple example since bajo cero mentionned it earlier :

There has been here a debate about having small quantities of marijuana. It was and it still is prohibited but last year the Supreme Court finally decided that considering art.19 of the Constitution (private life respect), a person being charged with such a delito is in fact
infridged in his Constitutional rights.
Still, as of now, if such a person gets caught he would probably be detained for a few hours, could lose at first (first degrees of jurisdiction) but ultimately would win going to the Supreme Court.

I think it's about the same story ?

Touché! He will win at the chamber for sure. But he will spend the night at jail.
Regards

 

[Bajo_cero2]

As a retired US lawyer, I am curious why the concept of stare decisis is not adopted in Arg. My impression (and it is just that) is that results are not nearly as predictable in the Arg justice system as they are in systems utilizing stare decisis. Lack of predictability is very inefficient and often results in injustice.
p.s. Last time I read it the Arg Constitution provided that the President of the nation must be a Catholic. Is that still true?

There is something alike stare decisis but based in consensus. When there is a lot of controversy between the judges, for example, the 11 federal judges I mentioned before, they call to plenario (It means, all togheter will debate about this subject). And they vote. This decision, called "plenario" is obligatory in this jurisdiction and make law more predictable. However, if this interpretation affects your rights, you might argue this is against CN and of course you will lose in first jurisdiction and at the chamber, but you might win at Supreme Court because plenarios are against Constitution.

Stare decisis is inconstitutional because of a matter of judges Independence. According to check and balance politic system (http://es.wikipedia.org/wiki/Separación_de_poderes) judges are independent from the executive and legislative powers (External independence). But they have independence from other judges too (internal independence). Even Supreme Court cases aren´t obligatory. A judge may disagree if he has new arguments.
This is because the entire system is designed for rights protection against the State. Argentina has signed some Human Right treaties that are all about it, limits to the state power protecting inhabitants. I wrote a paper about this, if you like send me a PM with your mail and I will email it to you.
Regards

 

[Bajo_cero2]

Stare decisis is mostly specific to anglo saxon countries, but applies to a lesser extent to other countries (jurisprudence).

The SC of Louisiana, still influenced by the Napoleonian Code, defined the difference between stare decisis and constant jurisprudence ( http://www.lasc.org/opinions/2005/04c0473.opn.pdfWillis-Knighton ).
Only one decision could establish a rule in stare decisis, while many would be needed for constant jurisprudence (sorry for the poor translation).

The lack of predictability could be discussed : a sudden new & revolutionnary decision in the stare decisis system could change the deal from la A hasta la Z, or not ?

This is an excellent explanation. We call it "pacific jurisprudence" when all the judges agree in one subject. The main difference is that consensus is needed. For this reason, every year there are congress at Universities where judges, paper authors and professors debates about what the interpretation should be.
Regards

 

[Bajo_cero2]

I'm with an argentine girl and we've spoken about the possibility of
marriage next year to solve these legal problems...would union civil give
me residency rights too?

I think so, but there was no case before, it means that it will be rejected and you will need to sue for it.

a) go to colonia in november, march, june, etc. Sounds like immigration at
colonia will start getting stricter though I've been reading exactly the
same thing on this forum for two years and it's NEVER happened.

My opinion is that going to Colonia is a bad idea because as soon as you had beed 2 years living continuously in Argentina with no exist, you can ask for your citizenship at Court. And if you are planning to marry, then there is no problem. When you marry you regularizes your situation. You don´t need to be legal to marry.

b) stay in BA and keep my head down. The next time I leave the country is
likely to be my last time...but maybe not! If I leave after staying on a
tourist visa for a year, am I likely to be banned from argentina forever?

Not for ever. You need like 6 month before you come back. But, if there is a deportation order (the risk of going to colonia), things change a lot. You should double check at decreto 616-2010 but it is like a 5 years banned (I have to leave now, I don´t have the time to double check it).

c) try and legalise my position. With someone living here on savings in a
foreign account, what is my best path to legality or semi-legality?

Then you qualifies for rentista visa, if you have at least 24.000 u$s.
Read the thread about changes in rentista visa.
Regards

 

[ghost]

Exactly, only when you are a witness you give oak of truth. If you lie being a witness you commit falso testimonio. Other wise you are protected by art. 18 of Constitución Nacional. "Nobody might be forced to declare against him self", this is the defense right.

Regards

Thank you for the clairification. As things become clear the differences begin to fade. Your art. 18 seems very similar to our 5th ammendment in the US constitution. Where by you are not obligated to incriminate yourself.


The Fifth Amendment (Amendment V) to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215. For instance, grand juries and the phrase "due process" both trace their origin to the Magna Carta.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]

 

[Bajo_cero2]

Thank you for the clairification. As things become clear the differences begin to fade. Your art. 18 seems very similar to our 5th ammendment in the US constitution. Where by you are not obligated to incriminate yourself.


The Fifth Amendment (Amendment V) to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215. For instance, grand juries and the phrase "due process" both trace their origin to the Magna Carta.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[1]

The difference is subtle. In both you have the right to remain silent. If you decide to talk voluntary the situation changes. In Argentina you can talk with no duty of saying true and no consequences if you lie. In the common law system if you talk you must say the true. On the other hand, the right I was describing is related to the whole juridic system, not only some specific cases like the list you describes. After the last modification of the army justice code, even the military has this right.
If you wnt to read more:
http://www.hchr.org.co/publicaciones/libros/publicaciones.php3
Download the O`Donell book, part 2.Derecho internacional de los derechos humanos Autor: Daniel O'Donnell Publicado por: Oficina en Colombia del Alto Comisionado de las Naciones Unidas para los Derechos Humanos Edición N° 1 Año: 2004 Tomos: I N° de Páginas: 1025 páginas Disponibilidad: Contactar al Área de Difusión o descárguelo en línea Resumen Ejecutivo Disponible (Reseña)
Regards