On March 3, 2020, the Supreme Court of Justice of the Nation reversed a ruling of Chamber B of the Federal Court of Appeals of Córdoba, which had declared the unconstitutionality of article 1, in fine, of Law 26,944 (Law of State Responsibility) for understanding that the rule intended to leave the National State unpunished and citizens unprotected, deprived the judicial processes of efficacy and prevented the Judicial Power from exercising its power of imperium.
The controversy began in the context of a default action against the National State (Ministry of Defense). Through this action, the plaintiff requested that an order be issued soon for judicial clearance in order to obtain a response to a claim initiated on June 30, 2009.
The Federal Court of Río Cuarto made the request and ordered the National State to resolve the claim raised within 20 days. After the deadline, the defendant did not comply with the court order.
Faced with this breach, the magistrate filed a new notice so that, within 10 days, it would be issued, with the warning of applying astreintes. Nuevamente, la demandada incumplió con la intimación judicial.
Faced with this new breach, the a quem formulated a new notice to comply with what was ordered within 5 days. Likewise, it established that, once this period expired, the astreintes would be effective. The National State also failed to comply with this new notice.
Atento a esta reticencia a cumplir con la manda judicial, el juez ordenó dar traslado a la contraria de la planilla de liquidación de astreintes. Aware of this reluctance to comply with the court order, the judge ordered the transfer of the astreintes liquidation form to the opposite. Against said providence, the National State filed an appeal for revocation with a subsidy appeal. The revocation was rejected and the appeal was granted. La Alzada rejected the appeal and confirmed the order.
Then, when replying to the transfer of the updated astreint liquidation form, the National State expressed that the notice was abstract since the Law of State Responsibility, in its article 1, had left such dissuasive means without effect.
The judge of degree rejected the petition on the grounds that the retroactive application of Law 26,944 did not correspond. Against said resolution, the State filed a revocation with appeal in subsidy. The a quem rejected the revocation and granted the appeal.
Chamber B of the Federal Court of Appeals of Córdoba confirmed, by majority, the application to the case of the Law of State Responsibility and the unconstitutionality of its art. 1, in fine, insofar as it provides that the dissuasive pecuniary sanctions are inappropriate against the State, its agents and officials.
To reach this temperament, the Alzada examined the parliamentary debate of both houses of the National Congress. From this analysis, he noted that the terms “dissuasive pecuniary sanction” and “astreintes” were used interchangeably. Because of this, he understood that the aforementioned law had suppressed the attacks against the State, its agents and officials. Specifically noted that:
““Such a rule was intended to leave the National State unpunished and citizens unprotected, deprived the judicial processes of efficacy and prevented the Judicial Power from exercising its imperium power.” ”.
The defendant filed an extraordinary federal appeal against this ruling. The action was admitted by the Court.
n this sense, the Court determined that the question should be framed in discerning whether art. 1, in fine, of the State Responsibility Law includes, or does not include, the penalties that are binding or astrein imposed by the judges in exercise of their imperium power to enforce their sentences.
In order to arrive at an answer, the Court used its hermeneutic rules. In the first place, he maintained that the laws must be interpreted in accordance with the proper meaning of the words, computing that the terms used are not superfluous but have been used for some purpose, whether to expand, limit or correct precepts. Of this, the Court pointed out that the article says nothing in relation to the impossibility of applying astreintes; it is only limited to the application of dissuasive pecuniary sanctions.
Secondly, the Court said that it did not emerge from the parliamentary debate that the inappropriateness of the application of dissuasive pecuniary sanctions included the astreintes. In this regard, he recalled that:
“Although it is true that the words or concepts exposed within Congress during the discussion of the law are, in general, simple manifestations of individual opinion of the people who pronounce them (Judgments: 77: 319), they cannot The same can be said of the explanations or clarifications made by the informant members of the projects, since such explanations or reports constitute, according to doctrine and jurisprudence, a proper source of interpretation (Rulings: 33: 228; 100: 51; 114: 298 ; 141: 254; 32”.
In this regard, the Court pointed out that the informing member of the bill, Senator Gonzalez, had made a distinction between dissuasive pecuniary sanctions and astreintes. Regarding the former, the senator argued that civil fines are imposed within the framework of a contractual relationship in the event of a breach by one of the parties. For example, the fine provided for by Section 52 of the Consumer Defense Law.
Regarding the latter, he clarified that they consist of a charge imposed by a judge against the breach of a judicial obligation.
He also indicated that at the meeting of the Constitutional Affairs Committee of the Senate, the informant member, Dr. Sanmartino, expressed in similar terms the differences between the dissuasive pecuniary sanction and the astreintes.
By virtue of the foregoing, the Court declared that it was unnecessary to declare unconstitutionality, since such provision was not applicable to the imposition of astreintes.
Finally, it should be noted that the Court also held that“this decision does not imply a judgment on the constitutional validity of Section 1, last paragraph, of the Law of State Responsibility, insofar as it prohibits the courts from applying to the State and its organs the dissuasive pecuniary sanctions and/or punitive damages that have already been analyzed”.
We understand that the ruling is relevant because it is the first opportunity in which the Supreme Court had to resolve a claim in relation to the “new” State Liability Law (enacted on August 7, 2014). In this regard, it is worth noting that, faced with this first approach to the provisions of the law by means of which the State’s immunities were intended to be extended, the Supreme Court ruled definitively on such possibility.
However, it should not be overlooked that, in this case, the Court’s protection was in relation to another constitutional power, i.e., the sanctioning powers of the judiciary within the framework of a judicial proceeding.
In this regard, it is perhaps of greater importance the final disquisition referred to the fact that the decision taken on this occasion does not imply a judgment of legitimacy regarding the inappropriateness of dissuasive pecuniary sanctions against the State, its agents and officials.
It will be necessary to wait until eventually, after having gone through and exhausted the tumultuous administrative channels, some of the parties involved may go to the courts, file the corresponding claim of unconstitutionality and exhaust the judicial instances to finally elucidate whether the Court is as inclined to defend the rights granted by the normative plexus to the parties involved to enforce a contractual relationship with the State as it is of the powers of the judiciary.
Case: Bernardes, Jorge Alberto v. ENA – Ministry of Defense s/ amparo due to administrative default (FCB 52020002/2012/CS1 – CA1).
