In 2016, “Justice 2020” program was created within the scope of the Ministry of Justice and Human Rights, by Germán Garavano. It is a space for institutional and citizen dialogue that seeks to build a close, modern, transparent and independent justice.
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A commission formed by different experts within the framework of this program (within the civil axis and the team “Procedural changes for a better justice service”) worked on the drafting of a preliminary draft that regulates the process of the actions that are aimed at issues of collective affectation.
And is that our constitutional order provides for the existence of a collective procedural protection of rights of collective incidence since the 1994 reform, but no specific law was developed so far. So far, the provisions of the jurisprudence have been applied, fundamentally for what the Supreme Court established in the Halabi ruling of 2009, where it created a new procedural path for the protection of this type of rights, by accepting the figure for the first time of the “class action”.
In this ruling, the Court referred to the lack of regulation in the area of collective actions, characterizing it as a default of the legislator. However, this lack was replaced in practice by the Courts of the country, which have long been admitting the origin of these actions, and in respect of which it has been litigated (and is still litigated) without uniform and clear rules.
The preliminary draft that was presented in mid-May on the portal of the Justice 2020 Program arises, then, with the aim of giving uniformity and clarity to collective processes.
However, together with numerous social organizations, we express our concern for the content of this draft and we ask Minister Garavano to refrain from pushing the bill before the National Congress.
If successful, this project would limit collective actions and affect its operation. Collective actions are indispensable for the recognition and protection of fundamental human rights of a collective nature. A restrictive and delaying regulation of collective actions, such as the one that emerges from the draft, could hinder the advance of this type of claims, and would imply a serious setback in relation to the current situation.
Among the aspects that concern the preliminary draft, we highlight the following:
Interference in procedural matters: the regulation of local procedural matter is exclusively provincial competence.
Excessive rigor for the determination of “adequate representation”: the requirements are excessive, because they impose on the affected parties, organizations and their lawyers a series of extremely strict requirements that will mean a limit for the presentation of collective actions .
Limitation of precautionary measures: the draft regulates the issuance of precautionary measures in such a way that it frustrates its operation, since it foresees that the recipient will be transferred, detailed substantiation is required and the resolutions that deny them can not be appealed.
Ordinarization of collective processes
Establishment of long and cumbersome procedures for registration and consolidation of the class, including various secondary processes within the main process,
Restriction on the participation of third parties
Regulation of competition
Lack of gratuity
Express exemptions of procedural rules of a collective nature that have a higher level of protection of collective rights. Art. 54 of Law 24,240 (Consumer Defense Law); and the first paragraph of art. 32 of Law 26,675 (General Environmental Law), replacing them by more restrictive regulations.
We consider that this proposal for the regulation of collective actions implies a setback in relation to current regulations and practices to ensure access to justice for individuals and groups in vulnerable situations.
A process must be initiated to discuss the difficulties for access to justice faced by organizations and users of collective actions, so that future proposals for regulation effectively allow for greater use and effectiveness of these actions.