ARGENTINIAN CIVIL SOCIETY EXPRESSES ITS STRONG REJECTION OF THE PROPOSED LAW FOR COLLECTIVE PROCESSES

23.08.2018

Human rights and consumer organizations demanded the Ministry of Justice and Human Rights to refrain from promoting a preliminary bill that restricts the possibility of suing the State and companies in defence of collective rights.

Twenty-nine civil society organizations, including FARN, made a presentation to Minister Germán Garavano to express their deep concern about the content of the draft bill on collective actions, published by the Government on the “Justice 2020 Program” website, and they requested the draft bill not to be considered by the National Congress. Collective actions are a recognized legal tool in Argentine Constitution which allows jointly defending groups of people affected by illegal actions of the State or companies.

The draft, was not accompanied by a statement of reasons or preceded by an adequate diagnosis. It not only does not solve or reduce the current serious problems in access to justice that affect people, and particularly the most disadvantaged groups, but it deepens them, seriously limiting the use and effectiveness of collective actions. The preliminary draft contains unconstitutional provisions that are a huge setback both in relation to current legislation and jurisprudence. In practice it means a cut of all rights constitutionally consecrated, which add new obstacles to people’s protection in the courts, and deprives groups in vulnerable situations of a fundamental tool.

Collective actions have been key to the recognition and protection of fundamental rights in our country, guaranteeing access to justice for these groups.

With a regulation such as the one currently proposed, several historical judicial decisions would not have been possible. This includes ones that protected the right to life, health, equality, education, the environment, and the rights of users and consumers, such as the right to access treatment and medicines for people with HIV. Other decisions were pollution of the Matanza-Riachuelo basin, the right to dignified conditions in prisons in the province of Buenos Aires, privacy in the use of the internet and telephone services, the right not to suffer discrimination from those who are users of the Sarmiento railway line, the right of women not to suffer discrimination by companies, the right to secular education in Salta, and the nullity of gas rates increase established without a public hearing.

Among some of the most worrying shortcomings of this draft, which violates the Constitution by regulating local procedural matter-exclusive provincial competence, it is observed that:

– It limits who can promote collective actions. It imposes on the affected parties, organizations and their lawyers an unlimited series of demands that violate the broad legitimacy recognized in the Constitution, and give absolute discretion to judges to reject them based on extremely vague and imprecise criteria. The active legitimization of the organizations is expressly contemplated in our National Constitution, and for years it has been a key tool to guarantee human rights.

– It unconstitutionally denatures the institute of precautionary measures, which are intended to avoid the imminent or irreparable damage that could be suffered by the party requesting them during the time it takes the judicial recognition of their right.

– It dilutes processes, creating long, cumbersome and repetitive procedures for the registration and consolidation of the class, without which the discussion on the rights at stake cannot be started.

– It imposes the obligation to litigate in the City of Buenos Aires in all cases in which the National State is sued.

– It places on plaintiffs the burden of publicity, notification and dissemination of collective proceedings, as well as costs, instead of establishing their gratuity, as established by the law on consumer protection.

– The draft modifies existing regulations by replacing them with more restrictive rules of collective rights, repealing the law of defence of users and consumers and the general law of the environment, which are replaced by more restrictive guidelines of collective rights.

The drafting committee gave no opportunity for the participation of civil society organizations, or public bodies regarding the defence of rights or ombudsmen. It is necessary to start a discussion process tending to generate agreements on the best way to regulate collective actions, a project that tends to expand its use and effectiveness, and not to restrict them. This process of discussion must include the necessary participation of human rights organizations, representatives of users and consumers, and all those who defend the interests of collectives in a particularly vulnerable situation, as well as those affected who have been or are part of the collectives represented by these actions, since it is a key tool to ensure their rights.

The unconstitutionalities, shortcomings, inconsistencies and setbacks of the draft project in relation to current regulations and practices are very serious and impact so decisively the use of collective actions as a tool to ensure access to justice for individuals and groups in situation of vulnerability. That should be sufficient for its immediate rejection.

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