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Video 2 — Transcript

by Centro Saez · 3,573 words · 596 segments · language en · Watch on YouTube

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0:00Good morning, good afternoon, and I
0:02wish you much success at this time, for
0:04this very important procedure. My name
0:07is Gabriel Díaz, and I am a family and
0:09domestic violence judge. I hope this
0:12conversation, this talk that we are
0:14going to have, is useful to you. From
0:17my position as a family judge, I would
0:19like to discuss some of the procedural
0:21principles that govern our legal
0:23proceedings. The principles of the
0:27family process that are contained, in
0:30addition to the civil and commercial
0:32code, are contained in our procedural
0:35code for family and domestic violence,
0:38which is a code that was enacted, a law
0:40that was enacted in 2018, and is
0:43numbered Law 9120. These principles of
0:48the family process are based on the
0:53characteristics that distinguish the
0:56family process from other conflicts
0:59that are brought to the attention and
1:02resolution of other types of judges:
1:05criminal justice, civil justice, and
1:08commercial justice. Here, in family
1:12justice, we try to resolve family
1:14conflicts that have particular
1:15characteristics, their own
1:17characteristics. The nature of the
1:21relationships that bind the people
1:24involved in these processes, which are
1:26of a family or kinship nature, changes
1:29the subject matter of this conflict; it
1:31gives this conflict very specific
1:34characteristics that must be carefully
1:36taken into account when the time comes
1:39to provide a solution for it. These
1:44characteristics imply that they stem
1:46from the fundamental factors underlying
1:49these conflicts, which are
1:54psychological, anthropological,
1:56sociological, and economic in nature,
1:58among others, that require a response
2:00which the justice system must provide,
2:02specifically a response that is of a
2:04legal type. That is why in our province
2:08we have had specialized family justice
2:10for a long time, a justice specialized
2:13in these types of family conflicts that
2:15required and made possible the creation
2:17of a specialized jurisdiction that is
2:20different from the civil and commercial
2:22jurisdictions, which is where these
2:24processes were previously processed.
2:29One of the most important
2:31characteristics of this conflict and
2:33the legal response provided by the
2:35courts is that the interests of the
2:37people involved exceed those of the
2:40technical parties. In any legal
2:44proceeding, we have a plaintiff who is
2:46filing a lawsuit and a defendant
2:48against whom a claim is being asserted.
2:51Well, in family conflicts, sometimes
2:54those people who benefit or are harmed,
2:58that is, who have interests, are not
3:00the plaintiff and the defendant, but
3:03rather other people, as happens, for
3:06example, in divorce proceedings, where
3:09obviously the parties are the spouses:
3:12the spouse suing and the spouse being
3:16sued. But we cannot deny that the
3:20interests that are being resolved in
3:23this type of procedure can also affect
3:26children, if they exist and who are not
3:29technically parties. That is why the
3:34family court judge plays a leading role
3:37that distinguishes the conflict that
3:39they resolve from judges in other types
3:41of jurisdictions, where judges are
3:44impartial arbitrators who stand in the
3:46balance between what is presented to
3:48them on one side and what they have to
3:51resolve. Here, given these types of
3:56interests at stake, judges assume a
3:58leading role by issuing urgent measures
4:01, protective measures, precautionary
4:04measures, etc., because the legal
4:06solution that these judges provide,
4:09that we, these judges provide, is a
4:11solution that is projected for the
4:14future. It is a solution that takes
4:19into account not only what the parties
4:21have experienced leading up to this
4:24conflict and this response that will be
4:26given to them, but it must also provide
4:29the basis for these people to
4:31reactivate their family dynamics, which
4:34can allow us to resolve not only the
4:36conflict, but also allow a better life
4:39as a family. Because in addition to
4:42this conflict or despite this conflict,
4:44these people continue to be and will
4:46continue to be family. That is why the
4:50characteristics are so different and
4:52although those involved try to win
4:55their battle, what we legal
4:57practitioners have to do is always help
4:59them find a solution that defuses this
5:02crisis, that manages to pacify the
5:04family and in which the intervention of
5:07justice, trying to pursue this purpose
5:10of pacifying the group and
5:12reestablishing the family balance that
5:14will impact the conflict, at least
5:18achieves a new balance, a new dynamic.
5:23This is quite far from the traditional
5:25antinomy that we see between the winner
5:28and the loser. This is a new model that
5:31takes into account these particular
5:33characteristics of the family process
5:35and that therefore distances itself,
5:37differs from the classic model, from
5:40the classic contentious model where one
5:42seeks to win and the other to lose. It
5:45is a model that, at the level of family
5:48conflict, does not diminish the
5:50conflict, but rather intensifies it;
5:52where everyone is harmed because, well,
5:55the courts are overworked with a high
5:58level of litigation, where the parties
6:00are involved in endless procedures with
6:03a very high cost, not only economic,
6:06but also emotional, where children
6:08appear as hostages in the struggle
6:10between adults and lawyers and legal
6:13assistants. They are becoming
6:15increasingly involved in tasks that are
6:18more numerous and complex. Therefore,
6:22this procedure, this process that
6:25governs family procedures, must allow
6:28access to justice in a uniform manner:
6:32with laws, with procedural principles
6:35that are not only found in procedural
6:39laws, but are also standardized at a
6:42national level. Let's see how in the
6:46Civil and Commercial Code, which is a
6:48national law, we do have them included.
6:52The starting point for understanding
6:54these characteristics are the
6:59principles of the family process, which
7:01are like guiding principles that will
7:03condition the work of the legislator
7:06who makes the law, who creates the
7:08codes for the design of procedural
7:10norms that are local, but also at the
7:12national level. At the same time, these
7:15principles of the family process
7:18function as rules of interpretation and
7:21application, allowing the judge, in his
7:24capacity as director of the process,
7:27and other legal practitioners to
7:29understand, apply, and interpret all
7:32these regulations. Well, I want to tell
7:36you that these principles of the family
7:38process are so important that they are
7:40in the Civil and Commercial Code, which
7:42is the national law, which is the law
7:43that governs everything in the entire
7:45country. Then we have the codes of
7:49procedures, our code, Law 9120, which
7:52is a provincial law. But anyway, in
7:55article 706 of our Civil and Commercial
7:57Code, we have the principles that
8:00govern family processes. What does it
8:03say? This regulation requires us to
8:07respect the principle of effective
8:09judicial protection, the principle of
8:11immediacy, and the principle of good
8:13faith and procedural loyalty in family
8:15proceedings. It also speaks of the
8:19principle of ex officio proceedings,
8:21orality, and limited access to the file
8:24. According to the Civil and Commercial
8:28Code, these family proceedings must be
8:31implemented in a way that facilitates
8:33access to justice, especially when it
8:36involves vulnerable people, children,
8:39victims, and senior citizens, and must
8:42always aim at the peaceful resolution
8:45of conflicts. The code also requires,
8:50the national code, that the judges
8:52before whom the cases are processed
8:54must be specialized in the subject of
8:56juvenile misdemeanors and family
8:58matters and must also have
9:00multidisciplinary support. The decision
9:05that judges must make, whenever
9:07children and adolescents are involved,
9:09must take into account the best
9:11interests of these people. Well, what
9:15can we extract from this article that
9:18we have been discussing? that there are
9:21several principles of the family
9:23process, that of effective judicial
9:26protection, that of immediacy, fair
9:28trial, the principle of ex officio and
9:30orality, and the principle of limited
9:33access to the file. The law establishes
9:39that these principles are enshrined in
9:42order to facilitate access to justice,
9:45so that no one is left out. People who
9:50have a family conflict can have
9:52channels, points of attention, ways of
9:55accessing justice. Here the State does
9:59not simply fulfill its role by not
10:02putting obstacles in the way of people
10:06going to court, but by taking positive
10:09actions that allow people to access
10:12justice. For example, by making legal
10:15proceedings before the family courts
10:17free of charge, especially when it
10:19involves vulnerable people. For example
10:23, think about what happens in family
10:25violence proceedings, victims of family
10:28violence who go to court to request a
10:30protection measure. In this way, the
10:34state arbitrates that in all family
10:37courts located in all departments of
10:40the province, they can access at any
10:43time between 7:30 in the morning and 7
10:46in the evening to file a complaint. Yes
10:49. And they will not be charged a court
10:52fee. Another of the purposes
10:56established by the law is to tend to
10:58the peaceful resolution of conflicts
11:00through what is also called
11:02accompanying justice and the need to
11:05promote less controversial attitudes.
11:11The Civil and Commercial Code, in this
11:13law that I am commenting on, clearly
11:16takes the lead, recognizes the
11:18revolution of living affections and the
11:20need to bring law closer to reality,
11:22and accepts the complexity and
11:24unpredictability of family
11:26relationships, implementing traditional
11:28structures, reformulating roles, moving
11:31towards processes of democratization
11:33and making the situation of vulnerable
11:35groups visible, as I was telling you.
11:39Good. I want to tell you that this
11:41principle of justice, forgiveness, and
11:43effective judicial protection is a very
11:45, very important principle. The
11:47fundamental aspect, the cornerstone on
11:50which all the argumentation of
11:52procedural principles is based, is
11:54effective judicial protection, which
11:57requires the possibility of accessing
11:59the sphere of justice; also protection
12:02during the development of the process
12:04and, later, at the time of executing
12:07this sentence, of complying with it;
12:09that it is not a mere statement. In
12:12other words, this principle requires or
12:15demands that there be a fair right,
12:18that one can be heard in this process,
12:21that one can give evidence, that
12:23sentences are said to be without undue
12:26delays, and that this sentence is
12:29complied with. This happens with what
12:32is called access to justice, as I was
12:34just mentioning, with the free access.
12:39Another of the characteristics that we
12:42are going to be able to see, or of the
12:44specific applications of this access to
12:47justice through effective judicial
12:49protection, is, for example, the law
12:51that provides for the carrying out of
12:54free sampling practices of genetic
12:56material for DNA testing in parentage
12:59processes. Another implementation of
13:03this principle is when precautionary
13:06measures in family proceedings do not
13:08require counter-security, which is a
13:11surety, a guarantee that is required of
13:13people who file these types of measures
13:16. In Mendoza, regarding this, we have
13:21two groups of professionals who assist,
13:24advise, and sponsor lawsuits for people
13:27with limited resources, such as the
13:30legal profession, ADOC, and the family
13:33defenders, etc. Well, I can also tell
13:36you that, within these procedural
13:39principles that have to do with
13:41effective judicial protection, is the
13:46principle of speed, which is the right
13:49that people have to obtain a judgment
13:52within a reasonable time, because
13:54prolonged delays in proceedings have a
13:57very negative impact on the
14:00expectations of those seeking justice,
14:02discouraging them, and also undermine
14:05legal certainty, while discrediting the
14:08work of judges and other operators.
14:12That is why the Civil and Commercial
14:15Code and our Family Procedure Code tend
14:19to have fast, expeditious procedures,
14:22so that there are no delays. For
14:26example, a very important rule that we
14:29will find in the Civil and Commercial
14:31Code establishes that with respect to
14:34the alimony process, right? The process
14:38will be processed through the shortest
14:40route established by local law and that
14:43it will not be accumulated to any other
14:46claim. This rule is very important, it
14:48is an example of when we talk about
14:50speed. We cannot process any other
14:53accessory process together with the
14:56alimony process. The Civil and
14:59Commercial Code also establishes that
15:02when a maintenance sentence is issued,
15:04if a person, if one of the parties
15:06appeals this sentence, this appeal will
15:09not suspend the course of this sentence
15:14. In other words, the sentences must be
15:17complied with in the same way, without
15:19prejudice to the fact that the
15:20procedure will be reviewed in the Court
15:22of Appeals. This also has to do with
15:25the speed that allows the processes to
15:28provide responses in a timely manner.
15:32This also has a lot to do with what is
15:35called differentiated guardianship.
15:39Differentiated guardianship implies the
15:42existence of simplifying mechanisms,
15:45excuse me, and even substitutes for the
15:48knowledge process, which what they do
15:50is set in motion some figures, some
15:53forms, some procedural institutes that
15:56guarantee differentiated guardianship
15:59with jurisdictional responses
16:01dispatched in a timely manner.
16:06Sometimes these tools do not
16:08definitively resolve the conflict, but
16:11they enable specific solutions that in
16:14a favorable time, excuse me, allow us
16:17to provide a solution or protect some
16:20type of rights. Excuse me. Thus, for
16:28example, uh, this differentiated
16:30judicial guardianship says the
16:32possibility that while we are
16:34processing a filiation process, for
16:36example, we see that a person is
16:41declared the parent of another person
16:43during that course of that process who
16:45has not yet been declared father or
16:48mother, an action for alimony can be
16:50filed. In other words, this is a
16:52process, a mechanism of jurisdictional
16:54guardianship or differentiated
16:56guardianship. Why? Because it allows us
16:59to initiate a filiation process without
17:02having a ruling or without having a
17:04proven legal bond yet. Another
17:08mechanism, another resolution that
17:10differentiates guardianship, for
17:12example, are the measures that we
17:14judges dictate when there are
17:16delinquent alimony debtors. For example
17:19, prohibiting a delinquent alimony
17:22debtor from leaving the country or
17:24registering people who do not comply
17:27with these obligations in the registry
17:30of those who hinder family ties or
17:33delinquent alimony debtors. For example
17:36, in some cases, a sentence can be
17:39suspended to the detriment of a person
17:41who has not complied with a ruling
17:43issued by other rulings. For example, a
17:47person who has been ordered to stay
17:49away from the family due to a
17:51protection measure against domestic
17:53violence and continues to violate this
17:55measure, continues to approach,
17:57continues to exercise violence; well,
17:59that person can have the process of
18:02their divorce, for example, or the
18:04liquidation of their community property
18:06suspended. In the Civil and Commercial
18:10Code, we will find many of these
18:13measures, these mechanisms that provide
18:18differentiated protection. For example,
18:22when the Civil and Commercial Code
18:24allows us that in the event of
18:26non-compliance with a court order, by
18:28an employing company, a person who has
18:31to withhold child support does not do
18:33so. Well, the code allows for the joint
18:38and several liability of this company
18:40to be decreed. It states that whoever
18:43does not comply with the court order to
18:45deposit the amount that should have
18:47been deducted from their dependent or
18:49any other creditor is jointly and
18:51severally liable for the payment of
18:53child support. Notice then how we have
18:56some mechanisms that achieve, in a
18:59different and differentiated way, this
19:05recognition and exercise of rights. I
19:11would also like to tell you about
19:13another principle that is very, very
19:15important for the family process, which
19:18is that of interdisciplinary
19:20cooperation, which has to do with
19:22addressing family conflict. Earlier I
19:26was telling you that this family
19:29conflict is influenced by various
19:32psychological, anthropological,
19:35sociological, and economic factors, and
19:38that the solution provided by the State
19:42is a legal solution. The ruling
19:47considers the legal solution, but it
19:49must consider all these factors. That
19:52is why it is necessary to approach the
19:55conflict from a transdisciplinary or
19:58interdisciplinary perspective and the
20:01cooperation of these other disciplines
20:04is required. In other words, the judge
20:07must have the support of professionals
20:09from other areas to help him or her
20:12unravel the characteristics of this
20:14conflict, and this will have a
20:16fundamental impact on the process and
20:18the way it is processed. Thus, the
20:22family court judge has organizations
20:25that cooperate with our way of
20:28responding legally. One of these
20:32organizations, one of the most
20:34important, is the interdisciplinary
20:35auxiliary body, the so-called CAI. The
20:39CAI is made up of three large sectors:
20:41the mental health sector, the social
20:43work sector, and the internal medicine
20:46sector. It is made up of medical
20:49professionals, psychologists, and
20:52psychiatrists, who, based on the expert
20:55reports or interviews conducted by the
20:58parties, allow the judge to unravel or
21:01understand this conflict. Another of
21:06these organizations is the mediation
21:08body, which is made up, of course, of
21:10mediators, the interdisciplinary
21:12adoption team that also works with the
21:14family judge in the scope of the
21:16provincial adoption registry. Here we
21:20have doctors, psychologists and social
21:22workers. The law, the Family Procedure
21:25Code, establishes or creates a team
21:28specialized in family violence. We have
21:31a body of accountants that works for
21:34the labor forum and that collaborates
21:37with the family justice system, the
21:39body, the forensic medical body, the
21:42genetic data laboratory, etc. All these
21:45organizations allow the judge to better
21:48understand family conflicts. Finally, I
21:53want to tell you that all these
21:55principles impact the way family and
21:58family violence processes are processed
22:01, which we have enshrined in our Family
22:04Procedure Code and Family Violence, Law
22:079120. This procedural code establishes
22:12mediation in its first title, mediation
22:16as an alternative way of resolving
22:18conflicts, an alternative to a judgment
22:22, to the adversarial, contentious way.
22:27It places great emphasis on mediation
22:29and establishes that some cases must
22:32even go before, obligatorily before,
22:35filing a lawsuit through mediation.
22:39What I want to highlight about this
22:41procedural code is that in the second
22:44part of this code we find the processes
22:47that govern family matters. These
22:49processes are ordinary, abbreviated,
22:53urgent and special. In other words,
22:56there are four types of processes in
22:58our procedural code in Mendoza. The
23:00ordinary process. There we will find
23:04the actions derived from marriage and
23:06cohabitation, actions to restore
23:08affiliation, and deprivation of
23:10parental responsibility. Then we have
23:14the abbreviated process, that's what
23:16it's called, abbreviated process, where
23:18we will find the actions derived from
23:21kinship, custody, guardianship, and
23:23affiliation. Here we will find the
23:26actions of the matrimonial property
23:28regime, the communication regime, and
23:30personal care. Within the urgent
23:34processes, which represent the third
23:39category of proceedings, we will find
23:41birth registrations, civil status
23:43actions, gender identity actions,
23:45matters that are derived from advanced
23:48medical directives, and finally, those
23:50procedures classified as urgent
23:52measures. And finally, we will find the
23:55special processes. The special
23:58processes that govern before the family
24:00justice system are: the restriction of
24:03capacity, which was previously called
24:06insanity or guardianship, is called the
24:09determination of legal capacity
24:11processes, supplementary authorization
24:14for acts of a patrimonial nature,
24:16adoption, family violence processes,
24:23alimony processes, both provisional and
24:27definitive, are special processes. The
24:32control of the legality of the
24:34exceptional measures adopted by the
24:36administrative bodies for the
24:38protection of rights, the ETI, enters
24:41the judicial control in the special
24:43processes, the processes for
24:45authorization to leave the country, the
24:48divorce process and the process for the
24:50international restitution of minors.
24:54All of these are special processes. All
24:57of these that I have just told you
25:00about are all matters in which a family
25:03judge intervenes and which are
25:06structured through these four main
25:09types of proceedings. The matters or
25:13actions that I have just listed enter
25:16and are processed through each of these
25:19procedural channels: ordinary,
25:21abbreviated, urgent or special. Our
25:26Family and Domestic Violence Procedural
25:30Code moves towards orality as a
25:32procedural type through a series of
25:35hearing processes that imply a very
25:38important change in the conduct of the
25:42actors, a change in all procedural
25:45actions, in how they are presented, in
25:48how these procedural acts are developed
25:51. Think about the way these acts are
25:55recorded. They are no longer written
25:57minutes, but rather video recordings.
26:01The way in which all these procedures
26:04are recorded also implies or generates
26:07the need for changes in the
26:09architectural infrastructure, the
26:12building of our courts to allow this
26:15access. where the axes through which
26:20this entire hearing process passes are
26:24immediacy, contradiction and
26:26concentration. Immediacy has to do with
26:30this direct personal close encounter of
26:34the decision-maker, that is, the judge,
26:37with the people who are going to be
26:40affected by his or her decision. This
26:44encounter is no longer mediated through
26:47a demand, a paper, or a procedure, but
26:50is direct. That is why it is called the
26:53principle of immediacy, the principle
26:56of contradiction, because it allows the
26:58meeting between the party making the
27:00demand and the party being sued and the
27:03process, the axis, as I was telling you
27:05, of concentration, in that same space
27:07and in that same setting. We are
27:11talking about the concentration of
27:13procedural acts, that is, at the same
27:16time, in the same hearing, it is
27:18possible to develop and carry out
27:20different procedural acts. This is very
27:25, very important because it also
27:27contributes to speed and procedural
27:29economy. Well, in a way, this is where
27:35we are heading in terms of, well, the
27:39processing of our procedures. I hope
27:45that we have been as clear as possible,
27:47that this brief introduction to the
27:49principles of the family process that
27:51is processed, that is contained, or
27:54rather, in our procedural code, which
27:56is called the Family and Domestic
27:58Violence Procedural Code, which is Law
28:049120, has been useful. Much success,
28:07thank you very much for your attention,
28:09and I will see you later.

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