Not To Renew Employment Contract

After the acquittal of the accused by a Federal Court of the Province of San Luis, in order for the crime of smuggling, the Justice Department and the AFIP, as the complainant lodged an appeal, based on the fact that production had been rejected evidentiary measures, which had been considered settling for the resolution of the case by the trial court.

The Chamber III of the Court of Appeals decided to overturn the abolutoria, ordering the departure of the Federal Court and the realization of a new debate. The defense concluded
special appeal, with their subsequent complaint for denial, posing as a grievance that the nullity of the acquittal and order a new trial, it was a violation of ne bis in idem.

the Supreme Court by four votes to three, decided to annul the decision of the appeal, and ordered that court to try the wrong that had been raised by the defense, for the purpose for which the guarantee would ne bis in idem, the realization of a new trial, due to the commission annulled the acquittal.

So while the Court does not enter into the substance of the matter, ordering it to do so Cassation, introduces an approach that seems to advance what his position at the time of failure on the central issue of the case. Thus, in considering the appeal decision as "comparable to final" states that: This constitutional rule [Relative to the NBI] not only forbids the application of a second punishment for the same reasons but also "exposure to risk that this occurs" (...) so that the decision under appeal is comparable to the end, then in that respect the guarantee in question is intended to govern pre-judgment decisions final. Indeed, when the time of the final decision, despite being acquitted, it would be futile to consider the grievance raised by the defense, because by then the "risk" of being subjected to a new trial will have been finalized .

However, following this ruling of the Court, intervene in the case the Court of the Chamber of Cassation, which dictates a new bug and this time, of Cassation rejected the appeal filed by the fiscal first and complaints .

In dissent, Dr. Madu is the case as a possible violation of the guarantee of the accused to be tried within a reasonable time, concluding that the case had not been affected by his security. Regarding the ne bis in idem, says that " resources were brought against a decision appealed by those who were entitled to it, and under the powers under Arts. 456, 458 and 460 of the CPP, which determna rejection grievance in question. "

However, various arguments were mostly made by Drs. Rodriguez Basavilbaso and Catucci. By appointment failures such as "Mattei", as well as dissent from Petracchi in Acosta (323:929), expressed that "non-recognition the acquittal as a result of fiscal resource for the accused would risk a new trial who had passed successfully validated and can not be compelled to stand again whatever the nature of the errors that the State had committed in its earlier attempt to bring a conviction. "
added that" Both the progressive principle of estoppel as preclude the possibility of retrogression of the process and apply to the extent that, in addition to having observed the essential forms of the trial, declared invalid is not a consequence of an attributable to the defendant. "

Finally, they stated: "From the foundation material guarantee against multiple prosecution is not possible to allow the State, with all its resources and power, perform repeated efforts to convict an individual for an alleged offense, thereby subjecting inconvenience, expense and suffering, and forced to live in a constant state of anxiety and insecurity, and increase also the possibility that even though innocent, found guilty. "

" The state has no right to a retrial when he who creates these errors, because the situation is comparable to cases where it has failed to present the case . "
is

under these arguments that the Court of the National Chamber of Criminal Appeal overturned the earlier ruling that had overturned the acquittal, concluding that it had injured the defendant's right not to be tried twice for the same act, being that this guarantee is effective from the accused becomes entitled to that found him guilty or innocent of the act for which he was charged, provided they are observed the essential forms of trial and determine a new one cause he is not responsible.


But after Cassation expressed in this way, the Court has again issued in case of similar characteristics. (At least as far as I could determine, I will if you have any different information.) It would be great, in my view, that issue having been resolved by the Court of Cassation, the Court will delve more on the subject, get into the merits of the problematic issue for the reference and the ne bis in idem.

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While the intention was to summarize the case Kang, mail sent to yahoo, if someone likes to read, the Court ruling and the "Second Appeal."

M. Daniel Biau