Why are the Judiciary and Kirchnerism at odds?
4:30
(
CNN Spanish) -
Vice President Cristina Fernández de Kirchner ends the year with a positive balance of her judicial situation.
So far in 2021, different courts have ordered his dismissal in three cases in which he had to face an oral and public trial.
However, the former president still has two other cases pending in federal court.
The main one is the cause known as the notebooks of the alleged corruption in public works, whose trial is still pending.
In the midst of this process, the tension between the Executive and the Judiciary does not diminish.
This Thursday a Supreme Court ruling added a new chapter.
The highest court of the country declared the unconstitutionality of the integration system, quorum and majorities that currently governs the operation of the Council of the Magistracy of the Nation, a central body in this conflict of powers, which is in charge of the selection of national judges and federal laws and their control and sanction.
The Supreme Court decision reversed a law that had promoted Kirchnerism in 2006 and that had modified the composition of this council by reducing its number of members from 20 to 13.
The four judges of the court understood that the current composition does not guarantee the balance of forces and power between the political members (legislators of the ruling party and the opposition) and those who represent other sectors in the election and control of judges: the judges themselves, the federally licensed attorneys and academics.
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The ruling also requires Congress to pass a new law;
establishes that the directors have 120 calendar days to appoint seven new members of the body;
and that the president of the Court, Horacio Rosatti, will preside over the new council - as established by the Constitution - until the legislators vote on the regulations.
In this context of bidding for the functioning of the Judicial Power and the role of politics, the ruling party maintains that the progress of the cases against Fernández de Kirchner and former officials of his two governments (2007-2015) were motivated by an alleged political persecution for favor the arrival of Mauricio Macri to power, in December 2015.
On the other hand, the leadership of the Magistrates' Association and members of the political opposition assure that the ruling party would seek to "domesticate" and "weaken" the judges to prevent the advance of these causes of alleged corruption.
What underlies the permanent tension between these two powers and why cannot it be overcome?
In his last speech, on December 10, Fernández de Kirchner again referred to the alleged political persecution and compared a judicial and media sector with military dictatorships.
He did it in front of a crowd gathered in front of the Casa Rosada, the seat of the Government, for the commemoration of the Day of Democracy and Human Rights and the two years of government of the Frente de Todos.
"It is judged in the media and the seal of justice is put on it," said the vice president.
"There are judges here who reviled us," he said.
The former president of Brazil, Luiz Inácio Lula da Silva, was another of the speakers on that same stage.
"There was a persecution that took me to jail" and "there was a persecution" against Fernández de Kirchner, said the former Brazilian president.
Since his inauguration, in December 2019, President Alberto Fernández has also criticized sectors of the Judiciary on different occasions.
In July 2020, during the presentation of the judicial reform project, the president spoke of "undue persecution and arbitrary detentions induced by those who governed - in reference to the outgoing Macri government - and silenced by a certain media complacency."
"One of the reasons for this permanent tension is something that is characteristic of Argentine democracy, but that is repeated in other Latin American democracies: the models of hyper-presidential democracies, with concentration of power and great strength of the Executive Power," explained Joaquín Caprarulo , coordinator of the Access to Justice and Opening of the Judiciary program of the Civil Association for Equality and Justice (ACIJ).
"In these types of models an institutional culture remains in which generally the political powers try to condition the actions of the judicial powers in various ways," said the lawyer. "Over the last decades, we have seen that other interests of the private sector and public sector groups, such as the intelligence services, also play in this conditioning, something that has become evident in Argentina in recent years."
Caprarulo affirmed that the Judiciary also plays a role in this tense relationship. "Argentina is characterized by a Judicial Branch that has behaved many times in a corporate manner, with a highly endogamous composition, which does not allow the democratic entry of its personnel and which reproduces family and power ties," said the ACIJ lawyer. "Many times, it is the Judicial Power itself that, based on an incentive system, demonstrates that it has interests that go beyond the protection of legality, constitutional guarantees and human rights."
Judge Marcelo Gallo Tagle chairs the Association of Magistrates, the main representative of judges in the country.
In dialogue with CNN, he said that the reforms promoted by the ruling party in Congress —which so far did not obtain enough votes to be sanctioned— “are measures that are proposed under the title of an improvement of the justice system, but it is clearly in view of the fact that they tend to invade the independence of the Judicial Power and reduce the citizen's guarantees against the powerful ”.
"What motivates them is the domestication of the Judiciary, which would no longer be an independent power of the State but something that responds to the designs of the Executive Power, as is happening in other Latin American countries," said Gallo Tagle.
The association chaired by Gallo Tagle is part of the Latin American Federation of Magistrates.
The judge assures that the problem is replicated with increasing force in other countries, regardless of the political sign of the different governments that currently exist in the region.
In addition, the judge stated that the problem is not exclusive to the current administration.
"The Macri government has also had attitudes of invasion of the Judicial Power, but the level of aggressiveness in the speech has been in crescendo in the last two years," he said.
The system
In 2020, the ruling party promoted two reforms of the judicial system that did not achieve political consensus in Parliament and that, after the defeat in the November legislative elections and the advance of the opposition in the chambers of deputies and senators, would not come to fruition either. in the next two years.
A first project, which obtained half a sanction in August, tries to increase from 12 to 46 the number of courts of the Federal Criminal Justice of the city of Buenos Aires, where complaints of alleged corruption against the central power are investigated.
It also creates new positions in the Federal Appeals courts in the provinces.
But the initiative was only approved in the Senate and was stagnant in Deputies.
A second bill, also with the approval of the Senate, seeks to reform the Organic Law of the Public Prosecutor's Office and reduce the constitutional requirements for the appointment and removal of the Attorney General of the Nation, the country's chief prosecutor. It also got stuck in the lower house for lack of support from the opposition.
However, a previous reform that did obtain parliamentary agreement in 2014 has not yet been implemented at the national level. The accusatory system entered into force at the end of 2018. In the last three years it was hardly implemented in the federal Justice of the provinces of Salta and Jujuy and the application began to be dealt with in the city of Rosario, province of Santa Fe, and the province of Mendoza. In the rest of the country, the federal Justice continues to operate with a system in which judges have the power to investigate and occupy the role of prosecutors and judge at the same time.
“The Judicial Power suffers a very great discrediting in society, it is its weakest point. The Court, as the highest court, does not appear to be dealing with this. They themselves have to defend the prestige of the Judiciary, express a reaction, try to promote an area to dialogue and improve, ”said Deputy Margarita Stolbizer (GEN-Together for Change), author of two of the most resounding complaints against Fernández de Kirchner: the Hotesur and Los Sauces cases.
"There are judges who do their job very well, but there are many others who dance to the beat of the power of the day," said the deputy. "This has always happened, with all governments," he added, but, like Gallo Tagle, he remarked: "What is unprecedented in the democratic process is the level of confrontation that Kirchnerism has established with the Judiciary." "The strategy of this government from the beginning was impunity for crimes that were committed in the past." author of two of the most resounding complaints against Fernández de Kirchner: the Hotesur and Los Sauces cases.
Lawyer Graciana Peñafort has represented different former officials of the Fernández de Kirchner governments in cases of alleged corruption, including former Vice President Amado Boudou. He assures that “one of the axes of the conflict is that no changes have been generated in the justice system. We have an opportunity because Alberto (Fernández) -he affirmed- understands the Judicial Power but, at the same time, the confrontation itself prevents progress ”. "If the policy does not agree, it will be very difficult to resolve this problem," added the lawyer.
On Tuesday, December 7, the Supreme Court received for the first time the Minister of Justice, Martín Soria, who took office at the beginning of the year. The meeting, lasting around 30 minutes, reissued the focus of the conflict when the official criticized the members of the Court on his Twitter account. “I had a meeting with the Supreme Court of Justice of the Nation. I expressed my concern about the institutional gravity to which the Justice reached in the last 5 years, a direct consequence of the Judicial Table that the previous government formed to pressure judges ”.
In the Supreme Court, head of the Judicial Branch, the judges do not usually respond to criticism from the political power or from the lawyers.
When asked by CNN, a source from the highest court replied that the main concern of the Court is the number of vacant positions in courts and tribunals in different parts of the country, a problem whose solution depends - the source highlights - on political power - both the ruling party and the opposition, which must reach agreements to activate public competitions, agree on the shortlist of candidates to occupy the courts and tribunals with the representatives of judges, lawyers and academics.
30% of the positions in the federal oral courts of the country are vacant, according to this source of the Supreme Court.
Time
Currently, Peñafort serves as general director of Legal Affairs of the Senate, a body chaired by Vice President Fernández de Kirchner.
“The conflict between the two powers is also due to a long tradition of the Judicial Power of gradually adapting to the political needs of the moment.
It is not strange that government officials are prosecuted when they leave power and that this persecution stops when they return to power ”.
The lawyer maintains that "the judicial persecution of Kirchnerism leaders during the government of Mauricio Macri was fierce" and maintains that "it was reflected in the preventive incarceration, the media overexposure of the accused, the espionage of political opponents and their lawyers, and the judicial persecution of their relatives ”.
In the federal criminal courts of the City of Buenos Aires there are 1,138 open cases of alleged corruption, according to the Observatory of Causes of Corruption of the Civil Association for Equality and Justice (ACIJ), which processed official data from the Judicial Power until June 6 from December.
Only 199 cases were brought to trial courts.
Between 2013 and 2021, the year with the highest number of cases initiated was 2016, with 292 files and well above the previous year (128) and the year after (239 cases).
That peak occurred after the departure of Fernández de Kirchner from power and the arrival to the Presidency of his main opponent, Mauricio Macri, according to the ACIJ observatory.
"The judicial persecution for political reasons was always bad but certain rules were maintained that functioned as a kind of 'protection' for former officials," such as the guarantee of passing the judicial process in freedom. "From 2016 to 2019, the persecution lost all those rules because it was organized from politics," said Peñafort.
In Together for Change, the space that Macri led, they reject the accusations. "They speak of a judicial war despite the enormous amount of evidence against them," replied Deputy Graciela Ocaña, a member of the Lower House Justice Commission. "We all agree on the diagnosis that Justice does not work, but we have not been able to agree on the reforms to change it, and to this is added that trials for corruption cases are not carried out," he added. “The lawfare does not exist. They are judicial processes ”.
Given the progress of legal cases for alleged crimes of corruption and alleged illegal espionage, former President Macri also speaks of "political persecution" now far from the Casa Rosada.
"They attack the opposition and invent legal cases every day," Macri said in an interview with CNN in October.
The former president was indicted in November for alleged abuse of authority and illegal spying on relatives of the crew members of the submarine Ara San Juan, accusations he has denied.
Former president Macri was prosecuted for alleged espionage 3:56
In April, the Federal Court of Cassation, the country's highest criminal court, dismissed the vice president and the rest of the defendants, including the governor of the province of Buenos Aires, Axel Kicillof, in the case of the Future Dollar.
The case had begun at the end of 2015, shortly before the departure of Fernández de Kirchner from power, and had to reach an oral trial for alleged fraudulent administration to the detriment of the public administration, but it was archived before the start of the process due to the absence of a crime. .
Six months later, the Federal Oral Court number 8, issued the dismissal of Fernández de Kirchner and the rest of the defendants by signing the memorandum with Iran, a file that had to be analyzed in an oral and public trial for alleged cover-up of the attack to the AMIA Jewish mutual in July 1994.
The case began with the complaint of the late prosecutor Alberto Nisman in January 2015, the last year of the Fernández de Kirchner government. It was dismissed by Judge Daniel Rafecas that same year and filed in different instances for non-existence of a crime. Then, in 2016, a complaint prompted a new complaint for the same event and that file went to trial, annulled in October.
On November 26, the vice president;
his children, Máximo and Florencia;
and the rest of the defendants, among whom are the contractors of public works Lázaro Báez and Cristóbal López, were dismissed before the oral and public trial for alleged money laundering maneuvers of corruption through hotel businesses (Hotesur ) and real estate (Los Sauces) of the Kirchner family, and the alleged crimes of illicit association and incompatible negotiations.
All charges that Fernández de Kirchner and the rest of the dismissed have denied.
The prosecutor for the trial, Diego Velazco, requested this Monday that the ruling in favor of the former president be reversed.
The higher courts must also consider whether these three trials should be reactivated.
Fernández de Kirchner still has to face two lawsuits: the Roads case for alleged corruption in public works during his governments;
and the case of notebooks.
The first started in 2019 and is still in the testimonial stage.
The second has no start date yet.
His lawyer, Carlos Beraldi, has already announced that he will seek annulment.