E/CN.4/2004/3/Add.3 page 9 22. Article 107 of the Code of Criminal Procedure applicable in the Autonomous City of Buenos Aires provides that detainees may choose a lawyer as soon as they are arrested, at the first opportunity and before they appear before a judge. Article 89 of the Code of Criminal Procedure of the province of Buenos Aires stipulates that the accused has the right to be defended by lawyers of his or her choosing from the Bar Association or by a lawyer assigned to him or her. The accused may propose a defence lawyer by any means or through any person, even if the accused is being held incommunicado. The criminal investigation phase, or pre-trial examination, is confidential and not open to third parties but only to the parties involved. Its aim is to prove that an offence was committed, determine the extent of the harm caused and identify the perpetrators. In the province of Buenos Aires, this is the responsibility of the Public Prosecutor’s Department. When prosecutors believe that they have sufficient evidence, they issue a written summons. The court then sets a date for the opening arguments. The hearing is an oral hearing that must be held in public on penalty of annulment, except in cases where publicity might affect the normal course of justice or public morality or the victim’s or witnesses’ right to privacy, or for reasons of security. 23. Judicial decisions may be challenged. The remedies available are appeals for reconsideration (of unsubstantiated decisions), appeals to higher courts, applications for judicial review (non-observance or erroneous application of a precept of law or precedent, or when new facts or evidence come to light), applications for review of final judgements, and extraordinary appeals on grounds that a law is unconstitutional, invalid or inapplicable. 24. The Argentine system of constitutional guarantees includes the remedy of habeas corpus for any act or omission that illegally or arbitrarily causes any kind of restriction or threat to personal freedom, as well as for any arbitrary aggravation of the conditions of legal detention. It is available without formalities and may be exercised by the person concerned or by third parties. The application may be made and should be resolved even if a state of siege is in force. A challenge to the administrative decision does not suspend the detention. The system also includes amparo proceedings for any act or omission that restricts, modifies or threatens, in a manifestly arbitrary or illegal manner, rights and guarantees recognized by the national Constitution, a treaty or a law. In any particular case, the judge may declare the rule on which the injurious act or omission is based to be unconstitutional (Constitution, art. 43). Judicial practice has established that it is only applicable to clear violations. It is not applicable to the expulsion of foreigners. 25. The Argentine criminal system allows a detainee to be held incommunicado for up to 48 hours on the basis of a reasoned decision by the prosecutor. This period may be extended by a further 24 hours or, in some provinces, 48 hours, on the basis of a reasoned decision by a judge at the request that the Public Prosecutor’s Department. Incommunicado detention may be ordered when it is feared that the detainee might conspire with third parties to hinder the investigation. A detainee who is held incommunicado may not be prevented from communicating with his or her defence lawyer immediately before beginning to make a statement or before any act requiring the detainee’s personal intervention. The maximum periods for incommunicado detention and its extension vary from one provincial system to another.