Juan Alberto Fantini Albarenque, federal judge of First Instance of Social Security No. 6 of the Federal Capital, details in a dialogue with Customs News the situation of Justice in times of quarantine and the perspective of one of the most important areas of the State.
You have argued that The justice service is essential and even in quarantine it cannot close its doors, even if they have to be replaced by computer access windows. Is Justice currently closed? Has the opening by digital means, using the current computer system provided for by agreement 36/16, been considered?
There has been a lot of talk in these times of pandemic about what is, or is not, essential for our lives. We all believe that our activity is important. In addition, it may involve having access to generate a minimum income, something that is in itself quite difficult in this time with a legal framework of restrictions.
In the case of the justice service and the exercise of one of the powers of the State, it is indisputable. The justice service is essential for human coexistence, especially in times of limitations or restrictions on the use and enjoyment of rights, and this must be administered by the head of the Judicial Branch of the Nation, as recognized by the PEN itself when issuing decree 297/20, in its article 6, paragraph 3.
I do not agree that Justice is closed. The doors or windows of Justice are open and accessible, obviously in a context of extraordinary fair with all that this implies. This is added to the state in which the courts were, for example, the social security courts, where we were overwhelmed before the establishment of preventive and mandatory social isolation, which today, as of Decree 520/2020, coexists with a scenario of preventive and mandatory social distancing.
The Supreme Court of Justice, following the issuance of decisions 4 and 6, later replicated and expanded by decisions 8, 9, 10, 11, 12, 13, 14, 18 and related decisions, has opted for a digital/electronic route based on an experience such as the Historic Repair in pension matters, Law 27.260, which involved in our jurisdiction the processing of the first digital file in the field of national justice.
Dr. Juan Alberto Fantini Albarenque
Entering any Court is enough to observe that the paper file is still very superior to any computer scheme. Do you think that we are far from achieving a mostly digital Justice system?
If you visit the Social Security Court of First Instance, you can see the number of files that saturate the archives and occupy most of the common areas, such as hallways and internal walls of the premises. The paper file is not dead yet: we continue with hybrid actions (paper/digital/electronic). I cannot tell you how far or close we are to 20% digital actions. I can tell you that we are closer than before March 3 of this year and that this is essential. More than two years ago, we raised before the Court of First Instance the need to digitalize the actions in progress and from there process them exclusively by that means. That decision was not taken at the outset, but the process that the Supreme Court of First Instance had already started with the 15/100 resolution was accentuated. Much progress has been made in a short time, beyond an initial setback that represented for the Court to join the Lex XNUMX system, when it already had its own system.
Does digitizing processes limit or increase the guarantee of defense in court?
I think it is both circumstances at the same time and that is what explains the hybrid reality we live in. Access to digitalization is an economic, social and cultural challenge; there will be people who will be able to access justice through this means when they could not before and others who will not. For example, in our jurisdiction, the Historical Reparation made it clear that our elderly need technological assistance, in addition to the legal assistance that a professional can provide. On the other hand, for the lawyers themselves it has become a professional challenge. In a scenario of technological illiteracy or insufficient resources (PCs, notebooks, tablets, internet bandwidth, Wi-Fi quality, electricity supply), added to the need for the necessary knowledge to optimize their use, it would be easy to say that the right to defense in court could be affected. But this, at the same time, coexists with greater accessibility, democratization of information, shortening of physical and cultural distances, such as, for example, to reach the figure of the judge. In conclusion, despite the complexity of your question, I would like to say that, in my opinion, digitalisation increases the possibilities of exercising rights, including the right to a defence in court.
Do you see the need to modify procedural rules based on the effects of this pandemic or to establish extraordinary mechanisms to deal with situations such as the current one?
A mechanism such as the closure of the Justice system is not an option. We have already experienced the suspension of the initiation of lawsuits in our jurisdiction and this only leads to more serious situations when the deadlines and possibilities of legal action are reestablished. What is retained and accumulated in a moment is unleashed or explodes sooner rather than later and never happens on the best terms.
We Argentines always think of the law as a salvation or necessity and not as a regulatory guideline for conduct. In procedural matters, any rule immediately becomes outdated and if this involves issues related to computer tools, even more so. I believe that the Supreme Court of Justice has been able to interpret this and has always given the Chambers and the judges, in general, broad powers and minimum provisions to carry out good management in contexts such as the current one. In fact, the laws that implement the digital file and the digital signature, to name just two, are not at all extensive or comprehensive. To this, we must add substantive provisions such as the first articles of the Civil and Commercial Code of the Nation in which the guidelines of international law, the duty to justify judicial decisions, to act in good faith on the part of the interested parties, are sufficient in my opinion to meet the demands of society, as long as it is also understood that the responses cannot be immediate in all cases.
In this extraordinary fair, after an initial stage of traditional fair authorities, the Chamber decided, based on CSJN resolution no. 9, to establish that all First Instance Judges of the Social Security Court also act as fair judges, which led us to classify the requests as VERY URGENT, URGENT and NON-URGENT. This implied (now that it is in force to talk about health issues) that the First Instance Courts act in the same way as what happens in a hospital emergency room, considering that all those who attend have rights and needs, but not all of them can be treated at the same time. In our field, this reinforces the idea of process.
How do you imagine Justice after the pandemic?
Much has been written about the new normal, the return to normality. The truth is that people and societies, once they go through a crisis, do not go back to what they were before, they are not the same, they are redefined. Some characteristics, values and principles are maintained, revalued, abandoned, mutated and/or modified. I think there will be more digitalization, less physical attendance in the courts, it will be a great challenge for those of us who administer justice, I do not say this only at the level of magistrates and officials, but for all of us who have the honor and fortune of working in justice. We have to modernize, become more flexible, so that an institution as traditional as the Judiciary, in which uses and customs have their own meaning associated with what has happened or what has already happened, can manage the three variables of time in unison, because past, present and future are lived here and now.
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