Changes for "permatourists"

[ghost]

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

Thanks, in one of your statements you said "Face to Face". I was told once by a relative that under the Argentine legal code in matters of criminal law that a person could be investigated, accused, tried and sentensed by a judge without having ever been present in the court room or before a judge [in fact, completely absent from the process]. I find this very hard to believe. Is this true?

 

[darmanad]

Excuse me if I add more clarification mixed with opinion.
1. Bajo, you answered ghost by saying:
" 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."

As pointed out, the US Constitution 5th amendment provides a person cannot be compelled to testify against himself. That appears to be the analog to Arg Constitution art. 18, but please don't tell me witnesses in Arg judicial proceedings are free to make stuff up. I assume that "falso testimonio" by a non-accused in a criminal (or civil) proceeding is a crime whether or not witnesses are administered oaths.
I would be amazed if "falso testimonio" were not a crime. Allowing a witness, any witness, to lie with impunity during a judicial proceeding strikes me as unjust and unwise. All witnesses in US judicial proceedings take an oath to tell the truth. Lying under oath in and out of court (to be distinguished from unintentionally telling an untruth) is perjury which is a felony punishable with imprisonment. The point is to take the sport out of the quest for truth and justice.

2. Bajo, you wrote:
" Stare decisis is inconstitutional because of a matter of judges Independence. According to check and balance politic system (http://es.wikipedia.org/wiki/Separaci%C3%B3n_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."

While the entire system may be designed for rights protection against the state, if I understand you correctly, it seems to be a horribly inefficient sytem subject to manipulation and ultimately making the law less protective. It is important for judges to be independent from the executive and legislative branches, but it makes no sense for them to be independent of each other and consequently free to rule in a haphazard manner in all types of judicial proceedings. Such built-in independence will not only result in a very counter-productive lack of predictability, but will breed corruption, favoritism, judge shopping and influence peddling of all kinds. (I now begin to have some insight into the the bizarre judicial maneuverings I read about in the BA Herald.)

In most US state and federal jurisdictions there are 3 levels of courts: initial trial court, intermediate appellate and highest appellate often aka Supreme Court. Many intermediate court and all Sup. Ct decisions are published in the official records of the court. They are widely available in daily legal journals, legal libraires and on line. Stare decisis requires all trial court and intermediate court judges, consistent with their oath of office, to adjudicate in accordance with and to follow higher court rulings/precedents/decisions. That is analogous to the binding effect of the "plenario" decisions which you mention. By the way, many US intermediate appellate courts have the same kind of multi-judge hearings on unique or important cases. They are known as en banc decisions and are usually made by 9 or 11 judges sitting in judgment instead of the normal 3 who sit on intermediate appellate panels.

Judges who consistently err or depart from precedent in bad faith may find themselves on the wrong end of an impeachment proceeding. Even Sup Ct judges are loathe to depart from their own earlier decisions, but will do so as social conditions and sound reasoning warrant. This allows the law to develop, to progress in order to reflect the social mores of the time.
This system also affords lawyers and judges alike the ability to make consistent rulings. Judge A will rule the same way as Judge B unless the facts of the case present some novel question or a new law has been implemented and it is still subject to some interpretation. WIthout meaning to sound jingoistic, I believe Arg society would be better served if the system of judical internal independence were revised.

What's the general opinion of the Arg lawyers on this subject?

 

[Bajo_cero2]

Thanks, in one of your statements you said "Face to Face". I was told once by a relative that under the Argentine legal code in matters of criminal law that a person could be investigated, accused, tried and sentensed by a judge without having ever been present in the court room or before a judge [in fact, completely absent from the process]. I find this very hard to believe. Is this true?

No, this in not true.
The preliminary investigation usually is written. This is a federal country so there are as many procedure code as provincias. During the preliminary investigation there must be an indagatoria, where you go to the court and the prosecutor tell you that you are under investigation, he must describe the fact and evidence that they have against you. You decide to talk or not. Sometimes this is in presence of the prosecutor or the judge, depends on the procedure code. The trial is like the american one but with three judges instead of a jury. In some states there is a jury for some cases like Córdoba.
The assert you mention could be true in Sta Fe where they have the most primitive procedure code in the country.
Regards

 

[Bajo_cero2]

Excuse me if I add more clarification mixed with opinion.
1. Bajo, you answered ghost by saying:
" 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."

As pointed out, the US Constitution 5th amendment provides a person cannot be compelled to testify against himself. That appears to be the analog to Arg Constitution art. 18, but please don't tell me witnesses in Arg judicial proceedings are free to make stuff up. I assume that "falso testimonio" by a non-accused in a criminal (or civil) proceeding is a crime whether or not witnesses are administered oaths.
I would be amazed if "falso testimonio" were not a crime. Allowing a witness, any witness, to lie with impunity during a judicial proceeding strikes me as unjust and unwise. All witnesses in US judicial proceedings take an oath to tell the truth. Lying under oath in and out of court (to be distinguished from unintentionally telling an untruth) is perjury which is a felony punishable with imprisonment. The point is to take the sport out of the quest for truth and justice.

There is a misunderstanding. To force to declare against himself. If you declare about anything else it is a crime to lie. You can`t be forced to confess.

2. Bajo, you wrote:
" Stare decisis is inconstitutional because of a matter of judges Independence. According to check and balance politic system (http://es.wikipedia.org/wiki/Separaci%C3%B3n_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."

While the entire system may be designed for rights protection against the state, if I understand you correctly, it seems to be a horribly inefficient sytem subject to manipulation and ultimately making the law less protective. It is important for judges to be independent from the executive and legislative branches, but it makes no sense for them to be independent of each other and consequently free to rule in a haphazard manner in all types of judicial proceedings. Such built-in independence will not only result in a very counter-productive lack of predictability, but will breed corruption, favoritism, judge shopping and influence peddling of all kinds. (I now begin to have some insight into the the bizarre judicial maneuverings I read about in the BA Herald.)

Well, this is an opinion.

My experience is that every time they try to use something like stare decisis in this country was to restrict illegally rights.

However, the internal independence I was talking about come from international human right Pacts.

Stare Decisis is the most easy way to control the judges and in my opinion is typical from a conservative society.

On the other hand stare desicis is a way to legislate by the judges, this is not aceptable for us, consensus is the only way to create pacific jurisprudence.

However, this is a cultural matter instead of if something is better or not.

I believe Arg society would be better served if the system of judical internal independence were revised.

What's the general opinion of the Arg lawyers on this subject?

In fact, we believe the main problem is the lack of enough of internal independence.

Regards

 

[steveinbsas]

In fact, I believe that some of the perma-tourists may have overstayed their visas just reading this thread.

 

[ghost]

The assert you mention could be true in Sta Fe where they have the most primitive procedure code in the country.
Regards

Sounds liike Louisiana.

In fact, we believe the main problem is the lack of enough of internal independence.

Regards

What is preventing "independence"?

 

[Bajo_cero2]

What is preventing "independence"?

Internal, not preventing. Internal independence is related to the Independence of a judge from any other judge, all judges have the same status. A case here, the final decision about it is enforceable only in this case. Another judge might have a different opinion in another case with similar facts. It is the opposite of stare desicis.

Regards

 

[John.St]

The irony of this is a little strange as viewed by "permatourists" because most here from Europe, Canada, the States and similar are adding to the economy and paying 21% IVA on monthly spending somewhat greater than the avg AR salary. Plus they generally carry their own health care insurance and do not further burden the free medical infrastructure.

I think that's an argument that falls on deaf ears now. Permatourists are paying IVA on the money they spend here just like taxpaying Argentines, but they are not paying taxes on their income.

To get the calculation right, you have to add the much needed foreign currency, the permatourists add to the Argentinian economy. This has the same value as a net income from exports.

While it is impossible to know how many permatourists there are, a reasonable estimate is around 50,000 persons transferring some 50,000 pesos each, which amounts to a loss of some 2.5 billion pesos in foreign currency a year.

 

[steveinbsas]

To get the calculation right, you have to add the much needed foreign currency, the permatourists add to the Argentinian economy. This has the same value as a net income from exports.

While it is impossible to know how many permatourists there are, a reasonable estimate is around 50,000 persons transferring some 50,000 pesos each, which amounts to a loss of some 2.5 billion pesos in foreign currency a year.

With the new income requirement for the visa rentista and the need to be "in country" for 180 days in a 12 month period to renew, it looks like AFIP may have an new target for taxation...and may be able to collect some of the "losses" in tax revenue if the permatourists actually/eventually leave.

 

[Davidglen77]

I have had several discussions with a person I know who is well versed in all issued related to immigration.

If you are here on an expired tourist visa, or any other visa or do not have documents that state when and how you were admitted to the country, THIS IS NOT ILLEGAL.

There is no such thing as illegal immigrant in Argentina. You have an irregular immigration status and they can require that you present yourself to immigration to regularize your migratory status. This is not the restrictive USA where you are technically commiting a crime if you are in the country without formal permission. Deportations here are few and far between and my good friend in migraciones told me in the 14 years he has worked there, he's never heard of a person from the americas either north or south being deported from Argentina.