ARGENTINA: Toppling the Wall Blocking the Poor from Justice

By Marcela Valente Reprint | | Print |

Marcela Valente

BUENOS AIRES, Dec 13 2005 (IPS) - Access to justice is a human right guaranteed by Argentine law. But lack of money or time often prevents the poor and most vulnerable from taking their complaints to the courts.

“This is a serious problem in Argentina. The poor do not have the time or the money to hire lawyers, and they are left out of the system,” lawyer Ezequiel Nino, of the Civil Association for Equality and Justice (ACIJ), pointed out to IPS.

The Constitution enshrines the right of all the country’s inhabitants to petition the authorities, and also guarantees “due process” – that is, the right to be heard by an impartial judge and to be defended by a lawyer.

However, a public defender is only assigned to a person who stands accused of a crime. If someone means to file a case or sue, court fees must be paid – although exceptions can be made – and the accuser must hire a lawyer.

The fee for justice is 70 pesos (about 25 dollars), or 1,000 pesos (333 dollars) for appealing a sentence before the Supreme Court.

“The State should provide legal aid for everyone, just as it provides services in hospitals and schools. However, it offers very limited assistance in the form of public defenders for the poor, absentees and minors (the under-age),” said Nino.

Forty percent of Argentina’s population of more than 37 million lives below the poverty line. Given the magnitude of the problem, the country’s few public defenders have turned almost completely to representing minors or absentees. “There is no state system of legal aid for the poor,” the lawyer maintained.

To compensate in part for this gap in services, various social organisations provide free legal advice and representation. However, as lawyer Daniela Lovisolo of ACIJ explained to IPS, these organisations are concentrated in the country’s capital.

Groups working in the area of public interest law, churches, women’s organisations, public universities and bar associations offer these services voluntarily, but access is limited to their zones of influence.

Lovisolo coordinates ACIJ’s Community Legal Support Centre (CALC) in Moreno, a district on the west side of Buenos Aires with a population of 500,000, half of whom are living in poverty or extreme poverty. Only one-third have drinking water, and a mere 12 percent have sewage services.

The closest courts are six km away, which means the opening of the legal centre, which operates in conjunction with other non-governmental organisations, was welcomed by the local residents with open arms.

The centre has successfully brought a large number of complaints and demands to a satisfactory resolution, not through lawsuits but simply through administrative procedures demanding that basic rights, such as education, be respected and upheld.

In November, for example, the centre backed a neighbourhood petition for the city council to pave the access roads and build sidewalks, and to provide street lighting for Rural School Number 5 “El Vergel” (“The Flower Garden”), which is attended by some 300 children.

The petition, which was fulfilled by the city council, was based on the fact that on rainy days the unpaved roads in the area are impassable and 70 percent of the students cannot get to the school.

However, in other cases the organisations go beyond requests and claims, and bring actual lawsuits to demand respect for rights granted under the national constitution and the law but which are violated daily.

After a four-year-long suit, a federal judge finally upheld a demand by ACIJ to “cease discriminatory treatment” of users of the Sarmiento train line, which runs between Moreno and Buenos Aires.

The railway concessionaire is Trenes de Buenos Aires (TBA), which also runs the Mitre branch line, joining the Argentine capital to the north of the metropolitan area. Commuters pay the same fare, but the quality of service is very different.

Passengers on the Sarmiento line, which runs through the poorest districts on the outskirts of Buenos Aires, are crowded into old carriages with broken seats and windows and no air conditioning. Trains stop frequently due to breakdowns and there are many cancellations.

In contrast, the Mitre line, which serves a picturesque well-heeled suburban area, offers clean carriages, proper seats, air conditioning, facilities for disabled passengers and hygienic toilets.

“You have to push to get on the trains and if you fall over you are trampled,” said a bank employee who has used the Sarmiento line to commute back and forth to work every weekday for 35 years. “Even animals travel in better conditions than we do.”

A nurse travelling on the same train told IPS that it is not unusual for women to have to crawl in through the windows. “Men are strong enough to push their way on, but we women have to either get in through the windows or be left behind” on the platform, she said.

“The inequality and bad treatment to which Sarmiento line passengers are subjected in contrast to Mitre line passengers demonstrates inferior and discriminatory treatment of poorer passengers,” the judge pronounced in his verdict.

TBA and the State organisations in charge of supervising transport services appealed the verdict. But Nino is confident that the case will reach the Supreme Court of Justice in the medium term, and that it will set a precedent.

“If discrimination is confirmed, it will be the first time in Latin America that a class action for discrimination based on socioeconomic status reaches the highest court, and that justice is done for the poorest and most vulnerable,” he stated.

Nino maintained that it is much easier for states to respond to claims for civil and political rights than for economic and social rights, because “the former do not depend on budget allocations, but the latter do.”

Collective legal action, which is relatively new in Argentina, may now begin to topple the wall that excludes those who are most in need of justice.

Should this case prosper, ACIJ has other cases of unequal treatment already in hand, concerning rubbish collection in wealthy and poor neighbourhoods of Buenos Aires, and others to do with water, gas and electricity services.