HIGH COURTS AND ECONOMIC GOVERNANCE IN ARGENTINA AND BRAZIL Diana Kapiszewski January 2012 WEB APPENDICES Kapiszewski ~ High Courts and Economic Governance ~ Web Appendices Web Appendix 2.1 Argentine CSJN Annual Case Load Statistics, 1991-2010 Year Total % of Total Total % of Total Total % of Total Total % of Total Pre- Pre- Entered Entered Decided Decided in Course in Course at Existing Existing and/or Relating to Relating to at End End of Year Relating Relating to Pensions1 Reinitiated Pensions Pensions of Year2 to Pensions 1991 8,939 5,532 6,036 8,435 1992 8,435 6,546 5,804 9,177 1993 7,723 24,815 6,604 24,877 1994 24,900 36,723 5,393 56,329 1995 56,994 86% 16,910 63% 7,628 13% 66,875 89% 1996 66,875 89% 23,544 78% 9,443 33% 81,619 92% 1997 82,453 92% 9,811 43% 41,318 86% 55,626 88% 1998 55,638 88% 8,057 20% 54,043 89% 17,896 59% 1999 17,896 59% 13,818 16% 21,208 54% 15,842 24% 2000 17,488 47% 17,971 59% 15,544 57% 20,005 50% 2001 20,005 50% 14,631 48% 15,333 55% 19,373 44% 2002 19,373 44% 42,055 28% 36,526 22% 24,902 49% 2003 37,147 35% 31,470 55% 18,980 60% 49,637 37% 2004 46,109 40% 37,726 33% 20,963 62% 62,872 28% 2005 62,872 28% 36,354 14% 20,485 55% 78,741 15% 2006 63,905 15% 30,544 15% 12,934 27% 79,781 13% 2007 78,247 13% 28,093 10% 54,123 5% 46,696 23% 2008 46,505 23% 22,817 20% 22,900 17% 29,676 33% 2009 29,676 33% 14,306 25% 21,500 24% 16,533 27% 2010 16,886 27% 15,138 30% 13,637 26% 17,117 35% Source: Oficina de Estadísticas del Poder Judicial de la Nación. Estadísticas - Poder Judicial de la Nación (tomos anuales). Buenos Aires, Argentina. For 2003: http://www.pjn.gov.ar/estadisticas/Libros/Estadi_03/PJUDN_03.htm For 2004: http://www.pjn.gov.ar/estadisticas/Libros/Estadi_04/PJUDN_04.htm For 2005: http://www.pjn.gov.ar/estadisticas/Libros/Estadi_05/PJUDN_05.htm For 2006: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_06/CAPITULO%201.htm For 2007: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_07/CAPITULO%201.htm For 2008: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_08/CAPITULO%201.htm For 2009: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_09/Corte_09.htm For 2010: http://www.pjn.gov.ar/07_estadisticas/Libros/Estadi_10/Corte_10.htm Also, for 2006-2010: http://www.pjn.gov.ar/07_estadisticas/Trabajos_Especiales/Fallos/indicefallos.htm 1 These cases have to do with pensions and other retirement funds (social security). 2 Given the available data, it is impossible to determine why, for several years, (1) the “total in course at end of year” is not “total pre-existing” + “total entered/reinitiated” - “total decided” and (2) “total in course at end of year” does not match “total pre-existing” for the subsequent year. 1 Kapiszewski ~ High Courts and Economic Governance ~ Web Appendices Web Appendix 2.2 Most-Used Mechanisms to Reach the Argentine CSJN Notes: All are mechanisms of concrete judicial review; all decisions have “inter partes” effects. Mechanism Description Ordinary Appeal Generally represent the smallest category of appeals. Recurso ordinario Cases that fall within the CSJN’s ordinary appellate jurisdiction (i.e., those (RO) involving issues regulated by the constitution and the laws of the nation, treaties with foreign nations, maritime law; and cases in which the nation is a party and in which a foreign country or citizen is the defendant, per 1994 reform of Constitution, Articles 116 and 117) may be appealed to the Court using an RO. In the late 1990s and early 2000s the number of ROs ballooned when a special “RO previsional” was established. Extraordinary Used to appeal decisions on cases that seem to be outside the ordinary Appeal jurisdiction of the CSJN. Recurso REs proceed when there is a federal or constitutional question, specifically, extraordinario when the interpretation of a federal norm is at stake, or a contradiction is (RE) alleged between the constitution and another federal or provincial act or norm (personal correspondence, constitutional scholar, 03 April 2007). A potential appellant first presents an RE (explaining why his case is a federal or constitutional matter that should be considered by the CSJN) to the court that ruled against him for approval or denial. o If the federal appeals court (or provincial Supreme Court) grants his petition, his RE is raised to the CSJN and the previous court’s ruling is suspended until the CSJN decides the case; o If the federal appeals court (or provincial Supreme Court) denies his petition its own ruling is immediately executable; at that point the petitioner may file a direct appeal (see below) with the CSJN, requesting that it decide whether the previous court should have denied the petition. Direct Appeal Presented directly before the CSJN when an appeals court or provincial Recurso de queja Supreme Court denies a party’s request for an RE. (RQ) Most of the appeals that arrive to the CSJN are of this type, although 80% of (also called RQs are rejected (SC-03). Recurso de hecho More than 90% of RQs arrive to the CSJN oriented such that it can accept and [RH] and Recurso consider them in the category of sentencia arbitraria. directo) RQs are not a request that the CSJN resolve the case at hand, but rather a request that it make a decision on whether the previous court should have denied the RE. Filing an RQ with the CSJN does not suspend the previous court’s ruling (per the civil/commercial procedural code even after its 1990 reform [Law 23.774]). If the CSJN denies the petition, the previous court’s ruling stands. If the CSJN accepts the RQ: o It can rule that the previous court was correct in rejecting the RE (at which point the case is closed and the previous court’s ruling holds), or o It can overrule the previous court’s denial (i.e., rule that the previous court should not have rejected the RE) and accept the case; at this point the case is raised to the CSJN and the previous court’s ruling suspended. The CSJN’s acceptance of an RQ does not guarantee that it will, in the end, rule for the appellant. 2 Kapiszewski ~ High Courts and Economic Governance ~ Web Appendices Web Appendix 2.3 Most-Used Mechanisms to Reach the Brazilian STF Mechanism Description Concrete review (i.e. requires citation of or connection to a specific case or controversy) Extraordinary Analogue of the Argentine RE. Appeal Can be used to appeal practically any lower court ruling on constitutional Recurso grounds. extraordinario (RE) The court in the instance just prior to the STF acts as gatekeeper, admitting or denying the elevation of REs to the STF. Judicial reform in 2004 (Constitutional Amendment No. 45) mandated that the appealing party in an RE must demonstrate the broad importance (repercussão geral) of the case in order for the STF to consider admitting the appeal. Effects: Inter partes (for the case at hand). Direct Appeal Filed directly with STF (though acts as an appeal). Agravo de Analogue of the Argentine RQ. instrumento (AG) If the court just prior to the STF rules not to allow an appeal to the STF via RE, the losing party may file an AG directly with the STF. Judicial reform in 2004 (Constitutional Amendment No. 45) mandated that the appealing party in an AG must demonstrate the broad importance (repercussão geral) of the case in order for the STF to consider admitting the appeal. Effects: Inter partes (for the case at hand). Injunction Can come to the court in its original jurisdiction or on appeal. Mandado de Created in the 1934 Constitution. segurança (MS) Resembles the amparo in Mexico. A “summary remedy” to challenge rights abuses by administrative authorities. The 1988 Constitution created the mandado de segurança colectivo which enabled political parties represented in Congress, unions, business syndicates or associations in operation for more than a year to protect their collective rights. Effects: Inter partes (for the case at hand). Writ of Injunction Created in 1988 Constitution. Mandado de Can come to the Court in its original jurisdiction or on appeal. injunção (MI) Used to request that courts declare unconstitutional the failure of a public power to regulate, or implement a rule regulating, a constitutional precept when that failure prevents the full exercise of constitutional rights and liberties and the prerogatives inherent in nationality, sovereignty, and citizenship (Article 5, 1988 Constitution). Such a declaration of unconstitutionality for omission does not oblige the legislature to fill the gap, but rather simply guarantees the immediate application of the constitutional precept in question, thus halting the constitutional violation (Vilhena Vieira 2002: 130-31). Effect: Inter partes (for the case at hand). Abstract review (i.e. does not require citation of or connection to a specific case or controversy) Direct Act of Most commonly used abstract review mechanism. Unconstitutionality Renamed and standing expanded in 1988 Constitution. Ação direta de Filed directly with STF. inconstitucionalidade Per the 1988 Constitution (Article 103), the following can file an ADIn with the (ADIn) STF: the President; the Executive Committee of the Senate and Chamber of Deputies; State governors; Executive Committee of state legislatures; the Head 3 Kapiszewski ~ High Courts and Economic Governance ~ Web Appendices of the Public Prosecutor’s Office (Procurador Geral da República, PGR); the Federal Council of the Bar Association; political parties with representation in the Senate and/or Chamber of Deputies; nationwide trade unions or professional associations.