Judicial Immunity: A South American Approach

This chapter applies a comparative perspective to the question of judicial immunity for crimes committed in office by South American judges. It first describes the explicit provisions that South American law sets down in relation to the criminal responsibility of judges, demonstrating the existence of a tradition of providing procedural safeguards that limit the effects on judicial independence of politically motivated or opportunistic prosecution. The chapter, however, goes on to show that in contrast with this wide-ranging tradition of providing procedural safeguards, substantive provisions or doctrines of immunity are unknown in South American legal systems. Although some constitutions and statutes contain vague declarations that could be interpreted as providing grounds for constructing a judicial immunity doctrine, the article shows that such arguments are alien to the law in action and are unlikely to be given practical effect. Notwithstanding, the chapter shows that despite this absence of a doctrine of reinforced immunity, the proper exercise of jurisdiction provides obvious grounds for a justification defense when judging cases of judicial murder. If the actus reus relates to a judicial act that was lawfully performed, the act is considered obviously justified and cannot give ground to criminal liability. Finally, the chapter discusses criteria for evaluating the lawful exercise of jurisdiction defense.