Daniel Santoro
07/29/2020 - 18:12
- Clarín.com
- Politics
German Castelli, Leopoldo Bruglia and Juan Pablo Bertuzzi became the first three judges who ask the Council of the Magistracy to "stop and archive the constitutional abuse " initiated by the Government's proposal to review 38 transferred magistrates. In general, they consider that the K move "violates" the constitutional guarantees of the immobility of the judges, the acquired rights and the prohibition of applying retroactive criteria . Castelli is a judge of the Federal Oral Criminal Court No. 7 that judges Cristina Kirchner in the case of the Cuadernos de las Coimas, among other cases that concern the K. And Bruglia and Bertuzzi are those who confirmed the prosecution of the vice president in that emblematic cause.
In a 40-page letter to which Clarín agreed , Castelli - who was one of the judges who condemned the crimes of ESMA - harshly criticized the actions of the representative of the magistrates, Alberto Lugones , and has already appealed to the UN to defend his condition natural judge of TOF 7 for more than two years. In addition, he mentioned as a precedent transfers of judges from jurisdictions dictated by Cristina when she was president. Bruglia and Bertuzzi also presented their own writings with similar arguments.
His presentation is key in view of the fact that tomorrow the Selection Committee of the Magistracy, which will be chaired by the Lavagnista deputy Graciela Camano, will decide , after last week's controversy, whether to accept to review those transfers requested by the Government representative.
Castelli recalled that two years before assuming as federal judge, in June 2000, the Judicial Council approved, by resolution 155/2000, the first “Judges Transfer Regulations” . His recital 4 stipulates that it is necessary “the vacancy to which the transfer is requested corresponds to the same jurisdiction and has the same competence in matter and degree as the position that the judge occupies. This requirement will not be required when the interested party has obtained a previous agreement from the Senate of the Nation to perform the function to which he requests his pass ”.
Then in 2019, at the request of the judge, Alberto Lugones, the plenary of the Council amended the "Transfer of Judges Regulations", under resolution 270/19 . The new regulations required a qualified majority of 2/3 of the total of those present in the plenary of the council and, according to what is eventually interpreted, the agreement of the Senate.
In his career, Caselli won a contest and obtained the agreement of the Senate in 2002 as judge of the federal oral court of San Martín and in 2018, according to the first regulations of the Magistracy, his transfer to the TOF 7 was approved in the Magistracy .
However, that first regulation "legal and constitutional, suddenly mutated illegal and unconstitutional ", when the representative of the Executive Power, Gerónimo Ustarroz, affirmed that the transfer of Castelli was illegal. The Kirchner councilor put the case this way: "Castelli competed to be a federal judge in San Martín and does not have the agreement of the Senate to serve as a federal judge in the jurisdiction of the Federal Capital (Different jurisdiction)." Castelli mainly complained that Kirchnerism wants to apply a regulation that dates back to 2019 when he had already been working on the TOF 7 for a year .
In one of the competitions that Castelli presented, number 205, entered after taking exams to the short list of candidates, in second place, to fill one of the three vacancies then existing in the Federal Criminal Oral Courts No. 2, 3 and 5 from San Martín. In 2012, Castelli made his first request for transfer to a Federal Criminal Oral Court in the Federal Capital, which “found no objection from the Federal Criminal Cassation Chamber and led to the formation of File No. 110/2012 of the Selection Commission ”.
Castelli later drew a parallel between his case and that of member of Chamber I of the Federal Chamber Juan Pablo Bertuzzi, whom former President Cristina Kirchner, through decree 438/2010, authorized her move from an oral court in La Plata to one of the capital by Decree No. 2040 dated November 26, 2008.
In the recitals, Cristina says that the aforementioned petition was analyzed by the Judicial Council in its plenary session on March 18, 2010, within the framework of the "Transfer of Judges Regulations". Resolution No. 155 of June 28, 2000, issued by said constitutional body "considered the transfer referred to convenient to achieve a more effective provision of the justice service . " And, based on this, it was arranged: "Transfer, from April 1, 2010, from TOF 1 from La Plata to TOF 4 in the Federal Capital to Dr. Pablo Daniel Bertuzzi."
In his case, Castelli said that on July 5, 2018, he asked the then President of the Council to recommend to the National Executive Power "my transfer to the Federal Criminal Oral Court No. 7, once the appointment of Guillermo Yacobucci as vowel in the Federal Chamber of Criminal Cassation that was in the process of appointment ”.
The Council of the Magistracy of the Nation “acted in the same way despite the long period of time - 8 years - and, much more, when it is also seen that two governments of different political signs - Fernández de Kirchner and Macri-, acted in that long time in the same way; what makes it indisputable that after the publicity of the different administrative acts, the legal effects related to the natural judge would operate, in the new destination to which the informed citizenry could go for the resolution of their conflicts ”, Castelli highlighted.
Later, Castelli maintained that the agreed 4/2018 and 7/2018 of the Supreme Court of Justice of the Nation, "decisively support the legality of the transfer procedure of the undersigned."
The first of them concerned the creation of "a new federal criminal oral court fully integrated with magistrates who were duly appointed to serve in the ordinary criminal justice system, fulfilling institutionally different functions from those of federal jurisdiction", in reference to TOF 7 .
In this regard, there are several decisions of the Court in this regard. Castelli cited the precedent "Del Valle Puppo", which represented the case of a judge appointed, with the agreement of the Senate, to be a judge of the National Chamber of Labor Appeals and who, without actually taking office, was appointed by decree in the National Chamber of Civil and Commercial Appeals. This mechanism for the transfer of a federal judge, although exceptional, is not new in our constitutional functioning, and has been endorsed by the CSJN itself, before and after the 1994 reform.
Castelli or competed for the justice of San Martín and simultaneously, also competed to integrate the oral courts in the federal criminal of Capital Federal and was in fourth place.
Meanwhile, during that time Castelli was fulfilling functions in the Federal Criminal Oral Court No. 5 of the Autonomous City of Buenos Aires -where one of the vacancies happened to be-, making one of the emblematic trials of the Argentine judicial history: the so-called ESMA trial and for this he was decorated by the Senate.
He stunned, "the inclusion of my name in the list" of the 38, endorsed by Lugones "in the case of a magistrate, who has overlooked the general principles of law, such as the non-retroactivity of the law and respect for consolidated legal situations, or, in other words, the non-alteration of acquired rights ”.
He was struck by Lugones' position, “that he is helping to put in check nothing less than the fundamental principles of the judiciary, of which, let us not forget, the counselor (Lugones), who did not even require license in its jurisdictional functions to act in this abusive manner to the detriment of its peers ”.
“I am deeply ashamed to have received Lugones in my office, after the brutal incendiary attack against the Federal Oral Court No. 3 in San Martín , in full democracy, which occurred on October 13, 2016, which had not yet dropped suspects, despite the research and reward then offered by the Executive Branch to find their authors and material intellectuals, "he added. "Undoubtedly, the merit of the reform (de Lugones) of 2019 loses all value and importance in the face of the constitutional mischief , which, because it comes from the judges' establishment, favors a greater loss of prestige for the Judiciary," Castelli concluded.