Supreme Court of Argentina (Credit: Telam)
(CNN Spanish) -
The Supreme Court of Justice of Argentina ruled this Tuesday in the case of two of the federal judges who have a legal dispute with the government of Alberto Fernández and the ruling party in the Senate, according to the brief accessed by CNN.
The ruling declared unconstitutional the government resolution that had removed the magistrates from their current positions in September and restored them to their functions, although only temporarily until judges elected in new competitions with the agreement of the Senate are appointed.
Both judges, Leopoldo Bruglia and Pablo Bertuzzi, will be able to appear to compete for the positions they currently hold.
The decision is seen as a legal defeat for the magistrates, who intervene in cases of alleged corruption and seek to remain in their current positions permanently.
The ruling party considers that they should be displaced because they were not appointed to those specific positions but transferred from other courts during the government of Mauricio Macri, a common practice in the country.
Although the Court had endorsed the transfers of judges in 2018 through two agreed, in this new ruling it established that there is no legal norm that allows affirming that a transfer is final and that those cases where this occurred are due to "unconstitutional customs."
The majority vote in the highest court held that the Constitution only admits appointing judges by competitions and not by permanent transfers, because this practice can affect the independence of the Judiciary, says the ruling.
In addition, the Court urged Congress to review all transfers of judges and to enact a law to regulate them.
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The Court also declared the unconstitutionality of the current Regulations for the Transfer of Judges of the Council of the Magistracy of the Judicial Power of the Nation, a decision with potential political and judicial impact throughout the country.
In addition, the Court ordered the Council of the Magistracy, which elects and controls judges, to promote and activate the holding of competitions for vacant positions and to restrict the promotion of new transfers as much as possible.
"The transfer is a practice that has been established, even legally, but it is not something wanted or desired by the Constitution," explained to CNN Roberto Gargarella, constitutionalist and principal investigator of the National Council for Scientific and Technical Research (Conicet).
"It was developed by all governments from an anomaly that is the difficulty found in appointing new judges.
With the excuse that the appointments are postponed, they are filling the vacancies with judges that they consider friendlier, ”said the expert.
The ruling had been expected for weeks and carries a political impact amid a tense relationship between the judges of the Court and the ruling party for the bill to reform federal justice (multiplying the number of judges and prosecutors) and a public confrontation between Vice President Cristina Fernández de Kirchner and a sector of the Judiciary for the progress of the investigations against her.
Fernández de Kirchner always denied those charges and was emphatic in attributing the progress of these judicial processes to a "political persecution" of the previous government in alleged collusion with a group of judicial officials.
In this context, there are tensions between the members of the highest court and an official request for impeachment against the president of the Court, Carlos Rosenkrantz, who denies the accusations and voted in dissent with most of his colleagues, according to the ruling .
Unlike Horacio Rosatti, Juan Carlos Maqueda, Elena Highton de Nolasco and Ricardo Lorenzetti, the president of the court affirmed that the transferred judges are not substitute judges or commission judges.
That is why, he said, their transfers are final.
The two transferred magistrates intervened -among other cases- in legal cases against Fernández de Kirchner.
The Court must also rule in the coming days or weeks on the situation of a third judge, Germán Castelli, who is part of the court that should try her in the future for the case of the alleged corruption notebooks.
Judge Bruglia told CNN that the ruling party's decision to have them displaced in September "is a violation of legal security," and that "the transfers requested by the judges were always permanent."
Currently, the three judges are on leave.
Background
In 2018, the two judges had been transferred - with their consent - to fill vacancies in the Federal Chamber of the City of Buenos Aires.
Before the transfers ordered by former President Macri, Bruglia was in Federal Oral Court 4 of the Comodoro Py and Bertuzzi courts, in Federal Oral Court 1 of La Plata.
The transfers were requested by the judges, approved by the Council of the Magistracy (the body that elects and controls the judges), the Judiciary and the Executive itself, then in charge of Macri.
Bruglia and Bertuzzi went on to occupy key positions in federal justice.
The Appeals Chamber is the court that reviews the decisions of the judges of first instance who investigate the central power in cases of alleged corruption, among others.
In these positions, both judges confirmed several prosecutions against the current vice president.
Since then, the transfers of both judges have been the subject of political discussion due to the relevance of the positions in question and the decisions that were taken from there in key files for the ruling party, which was then the opposition and criticized the decisions of the Macri government.
"If I wanted to manipulate justice, as they say, I would have been distracted and brought federal judges that I like from the interior (of the country) to fill vacancies in federal courts in the City and in Buenos Aires," said President Fernández in an interview with radio Metro.
The head of state maintained that his objective is "for justice to be reformed so that it works better."
The ruling party maintains that those transfers in 2018 were "unconstitutional."
Gerónimo Ustarroz, representative of the Executive in the Council of the Magistracy, the body that elects and controls judges, told CNN that they reviewed more than 30 transfers of magistrates made in recent years and that, in many cases, the movements did not comply. with the transfer regulations, but that, in addition, according to the ruling party, there were 10 cases that involved “constitutional” issues, among which would be Bruglia and Bertuzzi.
The punctual discussion underlies the fine print of the rules.
Ustarroz explained that these transfers altered basic principles of the regulation: same competence, same degree.
The official maintains that, in case of not meeting these central requirements, the transfers should also be dealt with in the Senate, something that did not happen in 2018.
The judges in the midst of the controversy contradict this position.
Bruglia told CNN that oral court judges have the same category or grade as the Court of Appeals judges (they are all chambermaids);
and that, although in his case and in Bertuzzi's case the oral courts have only criminal jurisdiction (more serious crimes) and they went on to occupy a criminal and correctional court (less serious crimes are added, up to three years in prison), jurisprudence shows that in both positions they have fulfilled the same functions.
There was another central point in the confrontation.
When the issue reached the Senate, Bruglia and Bertuzzi did not appear to defend their transfers, since they maintain that they were always final and that they had never needed the endorsement of the upper house, as Bruglia explained to CNN.
Not having appeared before the Senate this year was another letter from the ruling party to displace them from the positions they occupy.
The transfers
In 2019, the Judicial Council itself admitted that the transfers of judges do not usually comply with the regulations.
The agency highlighted in a document that this rule had been breached in "numerous resolutions."
The ruling generated conflicting positions.
"In 2018, the Court already ruled on the transfer of judges and approved them when it comes to transfers between equivalent positions", for example, between federal courts, such as these three cases, explained the constitutionalist Adelina Loianno before the CNN query .
For this reason, he argued, "there was no need for a new ruling by the Senate" in 2018, adding that the upper house "should never have intervened in this", referring to the treatment that was given this year.
Ustarroz states the opposite: "These specific cases should have passed through the Senate again because the differences in competence and grade are central and because of the importance of the positions in dispute."
“The case of the three judges, at one point, is anecdotal with respect to what is at stake: the main institutional control that the government can find is the Court and with this case it will position itself against a government.
We are all waiting for the decision to read it in code, ”Gargarella said before the ruling was released.
"The Court also has a political nose," he concluded.
In turn, "when the political power touches the rules of the game and does so in its favor, the government must give an extraordinary reason why it is doing it," he concluded.
"If it doesn't, in constitutional terms it would be invalid."
The ruling party awaited the Court's ruling to activate a contest to fill the positions of Bruglia and Bertuzzi as soon as possible, confirmed Ustarroz.
In this way, they could proceed with the appointment of new titular judges for the strategic National Chamber of Federal Criminal and Correctional Appeals, based in the Federal Capital.
Something that requires the votes in the Senate and with which the Macri government did not have in 2018 and 2019. However, that scenario has now changed: zero contests must be started and judges Bruglia and Bertuzzi must be allowed to participate.
Other background to the decision
The former Minister of Justice of the Macri government, Germán Garavano, told CNN that the transfers in 2018 were made in accordance with the regulations and those agreed by the Supreme Court itself.
"They were made to fill vacancies and, later, the judges themselves asked the Council of the Magistracy to stay in those courts permanently."
The former official said that “the Council established in 2018 that the definitive transfers complied with the regulations.
Then he consulted the Executive and the latter consulted the Supreme Court ”.
At that time, the highest court responded to the Executive that these transfers did not need a new Senate agreement, since they were federal charges.
“If they had been transferred from national to federal courts, then, according to the Court, they should have gone through the Senate.
These are not the cases.
The three judges were already federal magistrates and already have an agreement from the Senate, which at the time intervened in their appointments, ”added Garavano.
Judges Bruglia, Bertuzzi and Castelli defend their transfers of 2018, based on the approval that the Supreme Court itself made at the time, which authorized the Executive to do so.
For this reason, they asked the highest court in August to decide urgently on the ruling party's decision, as the judges themselves confirmed to CNN.
Loianno, like other constitutionalists, has also pointed out that "this is an institutional issue" on the division of powers and that the Court has "delayed" its ruling, even when it already had a position taken on the matter, according to its 2018 agreements. The highest court has not made public statements on this case.
He refers to his sentence.
On September 29, the Court temporarily suspended their transfers.
It remained to resolve on the merits of the question: if the decision of the ruling party to transfer them back to their original positions is constitutional or not.
The ruling party's decision
"One of the most visible and strongest projects that have been promoted this year by the Government is to act on the board of the Judiciary," says Gargarella, "whether in the appointment of judges, the reorganization of the Supreme Court and the federal courts, the intention to appoint a new Attorney General (chief prosecutor), among other decisions, "added the expert consulted.
"This project - in addition - cannot be explained without taking into account the context of the cases opened against officials and former officials of the ruling party," says Gargarella.
On September 16, the ruling majority discussed the transfer issue in the Senate.
The ruling party decided that the three judges should return to their original positions, because the Macri government had not requested the agreement of the upper house in 2018, as according to them the Constitution indicates.
After the vote of the ruling majority in the Senate, on September 17, President Fernández ordered by decree that the three judges be transferred to the positions they held before 2018, as published in the Official Gazette.
The presidential decree also revealed an extra piece of information: the president not only annulled the transfers of 2018, but also, in order for Judge Bertuzzi to return to his original position, he also had to revoke a previous transfer made by the government of the then President Fernández de Kirchner, in 2010, which had been implemented in the same terms as during Macri's administration, as stated in the decree.
On that occasion, Bertuzzi went from a federal court in the province of Buenos Aires to another in the city of Buenos Aires.
Already in 2018, it passed to a court of the Federal Chamber.
Alberto Fernandez