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Tandanor: ratify convictions and order the largest seizure in the history of the judiciary

2020-06-13T06:13:20.026Z


It was resolved by the Federal Chamber of Criminal Cassation, which declared inadmissible the extraordinary resources presented by those who were convicted of defrauding the State.


06/12/2020 - 18:36

  • Clarín.com
  • Politics

The Federal Chamber of Criminal Cassation ratified on Friday the convictions for fraudulent administration in the framework of the case for the privatization of Tandanor and ordered the return to the National State of a property that constitutes the largest seizure in the history of the Judiciary .

It was resolved by Chamber IV of the Federal Chamber of Criminal Cassation, composed of the judges Mariano Hernán Borinsky -as President-, Javier Carbajo and Gustavo M. Hornos, remotely and by electronic and digital signature, in the middle of the judicial fair extraordinary due to the coronavirus pandemic.

The judges unanimously declared inadmissible the extraordinary appeals filed against the three-year suspended prison terms imposed on Alejandro Arturo Bofill and Eduardo Andrés Tesoriere for the crime of fraud by fraudulent administration to the detriment of the State. The other convicted is Juan Andrés Vlastó, but his defense did not file an extraordinary federal appeal.

In the cassation ruling against which the extraordinary appeals were filed, last February, the magistrates rejected the statutes of limitation for criminal action made by the defenders of the convicted persons. In line with what was resolved in a previous intervention, in which the dismissal of the accused was revoked by the majority made up of Judge Hornos' vote, which was later validated by the Supreme Court of Justice of the Nation in 2013.

In the case, the fraud that the National State suffered as a result of the fraudulent sale maneuver of 90% of the shares of Talleres Navales Dársena Norte SACIyN (Tandanor SA) was judged  and that it caused a patrimonial damage to the public coffers for a higher amount at US $ 53,000,000.

The maneuver was developed between 1991 and 2001 and involved the intervention of public officials and individuals in actions prior to the award process (inclusion of Tandanor SA as a company to be privatized when it was not a deficit structure, adoption of measures that achieved the emptying of capital and productivity once intervened ); in others that occurred immediately after the tender was awarded and in those that aimed to make illusory the collection of the price agreed by the State at the time of the sale; to finally achieve the appropriation of Plant I of said company in order to carry out a real estate business.

Room IV declared inadmissible the criticisms made by the company Puerto Retiro SA against the seizure of the 8.5-hectare property that the Tandanor company owned in Puerto Madero (“Plant I”), in what is considered the most important seizure of the Argentine judicial history.

Also by majority, the extraordinary appeals filed by the plaintiffs (Tandanor SACIy N. and the Ministry of Defense-National State) and by the Public Prosecutor's Office were declared inadmissible, as soon as they questioned the statute of limitations for civil action -only the plaintiffs- , the restitution of the confiscated property to the National State -only the Tandanor company- and the acquittals of Donato, Samman, De Larminat (by prescription) and Calculli (by doubt) -all the accusers-; among other grievances formulated by said parties.

Judge Hornos, in dissent and with reference to his vote in the cassation ruling, held that it is appropriate to enable the extraordinary resources of the plaintiffs (Ministry of Defense-National State and the company TANDANOR SACIyN) and the Public Prosecutor's Office, while evaluated that these recurring parties sufficiently founded the reasons that enable the intervention of the Supreme Court of Justice of the Nation in the case.

In this regard, he recalled that the confiscated property ("Plant I") should have been returned to the victim of the fraud tried; that is, to the stock company with a majority state participation of 90%: TANDANOR SACIy N. This is so, in compliance with the regulations that regulate the matter in the Penal Code that orders as a priority the restitution of the victim of the property object of the crime.

In turn, Judge Hornos, in a minority, maintained that the civil action by which the compensation for the millionaires damages caused by the serious maneuver of fraud tried was not prescribed, contrary to what the oral court by -as judged by the magistrate- an arbitrary assessment of the circumstances of the case and the applicable regulations. In this regard, it was also concluded - in dissent - that the Supreme Court of Justice should review the judgment that was confirmed by the majority vote of its colleagues, and that the possibility of resolving this substantial claim presented by the complaining parties and the civil actor.

Likewise, also in dissent, Hornos proposed granting the extraordinary resources of the accusing parties as soon as they questioned the acquittals for prescription of the criminal action decreed with respect to Gerardo Norberto Donato, Nachat Samman and Miguel María De Larminat, and the acquittal for doubt dictated in relation Omar Calculli.

Regarding the validity of the criminal action, Dr. Hornos had resolved in the cassation ruling that the crime tried did not prescribe with respect to Donato, Samman and De Larminat, as long as he considered the respective period was interrupted by the substantial acts performed in the process. However, it also maintained that the crimes tried are imprescriptible for configuring a serious intentional crime against the State that entailed enrichment, as provided in Article 36 of the National Constitution. Thus, at the time, he had proposed to revoke the acquittals and condemn Donato, Samman, De Larminat and Calculli from the instance of cassation.

The decision was issued remotely and signed by digital and electronic signature thanks to the numerous decisions embodied in Agreements, resolutions and internal protocols, issued by the CFCP itself and by the Supreme Court of Justice of the Nation, through which they were adjusting its operation to the measures adopted by the National Executive Power, with the aim of continuing to guarantee the provision of justice service and comply with the social, preventive and mandatory isolation established by the National Executive Power.

Source: clarin

All news articles on 2020-06-13

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