Lucia Salinas
08/26/2021 2:40 PM
Clarín.com
Politics
Updated 08/26/2021 2:40 PM
Alberto Fernández's strategy to calm down the scandal of his wife's birthday party in the Olivos farm during the hardest stretch of quarantine could run into a legal obstacle: although the president's lawyer announced the idea of making an economic repair In this case, the crime under investigation is not of a patrimonial nature nor is it culpable, which are the exceptions under which a judge could grant
conciliation for reparation.
But in addition, some specialists
question that this benefit can be granted to an official.
The case gained further momentum after the dissemination of Fabiola Yáñez's birthday photo. Days later, the Government decided to publish on Public Television and on an ultra K portal videos of that July 14, when a strict quarantine was in force in the country. The intention of the Casa Rosada was to
minimize the negative impact
that the President's image had already accumulated.
In this scenario, the first defense that Alberto Fernández tried was that
it was only a mistake
, for which he already apologized.
He also guaranteed that it will not happen again.
It happens that
justice does not investigate errors, but "violations of the laws, the penal code,"
explained a judicial source.
The record seeks to determine whether a violation of the regulations that the Head of State himself had signed was committed, and also whether there was an alleged breach of the duties of a public official.
The second argument made by the Government and made known by the Chief of Staff, Santiago Cafiero, is that since the spread of the Covid-19 virus had not been generated at the birthday party,
there would have been no crime.
The reply in the courts to this argument is legal: "The violation of article 205 of the Penal Code
is a crime of abstract danger
. For example, possession of explosives, crimes that do not require the result," agree two senior judicial officials consulted by this diary.
As a third option, the president's lawyer -Gregorio Dalbón- made it known that he will try to close the case with financial reparation, donating part of his salary.
The legal figure corresponding to this gesture is called
conciliation for reparation
, but regarding it there is a legal debate that can harm Alberto Fernández's strategy.
Before analyzing it, the first thing they reiterate in Comodoro Py is that the head of state cannot make any offer or raise if his legal advisor does not officially assume the defense with the corresponding presentation before the Justice.
Let's go back to the settlement for redress.
In November 2019, the Bicameral Commission for Monitoring and Implementation of the Federal Criminal Procedure Code, put into effect a set of articles, including number 34.
It maintains that conciliation
can be applied "in cases of crimes with patrimonial content
committed without serious violence against persons
or in culpable crimes if there were no very serious injuries
or the result of death."
That is,
in theft or reckless accidents, for example.
When analyzing the article, judicial sources explained that "at first glance, the law does not allow the President to make financial reparation because it is not a pecuniary crime, much less culpable, but rather
a malicious crime is being investigated
."
From another perspective, members of the Public Prosecutor's Office analyzed the situation and remarked that an economic repair could not be considered in this case, "because it does not meet the requirements that allow a prosecutor to advance in a conciliation agreement." The point that is also discussed is
whether the figure can be applied to an official
, or if a second interpretation can be made: in the facts investigated, he was not in office.
In addition, another point was emphasized: "The Federal Criminal Procedure Code refers to a conciliation agreement between the accused and the victim,
what happens when there is no victim?
", Explained a judge.
In this file, who would be the victim?
is the repeated question.
And if there is not, can the conciliation move forward?
Under this criterion, part of the library specialized in criminal offenses maintains that
the article that prohibits conciliation without a victim is number 30
.
But since that article is not current, the various interpretations that are made about it come into play.
In Comodoro Py, the antecedent is the case of the young man who forced 400 passengers from Colonia to be detained in the port of Buenos Aires after he informed the captain that in a rapid test to detect COVID-16 he had tested positive .
The prosecutor
Alejandra Mangano,
who was in charge of that case, signed a conciliation for reparation with the young man.