In December, Cristina Kirchner was sentenced to six years in prison with permanent disqualification from holding public office.
Unanimously, this was determined by the Federal Oral Court 2 (TOF 2).
But the votes showed a disagreement when evaluating the accusation by prosecutor Diego Luciani according to which the vice president behaved as the
head of an illegal association that dedicated itself to defrauding the State.
Two of the judges understood that
there were no elements for said accusation
, however
the prosecutor's office will appeal and insist
that the Federal Chamber of Criminal Cassation be attributed to said crime as well.
The accusation that sent the thirteen defendants to trial and finally sentenced nine of them maintained that the Kirchner government and various "state agencies linked to public works" set up a functional structure aimed at the theft of public funds through the discretionary allocation (almost 80%) of the road works awarded in Santa Cruz", which represented the contracting of the State "in favor of Lázaro Báez" for more than 46,000 million pesos".
The trial prosecutors, Diego Luciani and Sergio Mola, broke down at this point the elements that must be met to validate an illegal association.
"This structure had
regularity, permanence and organization
", they highlight the agreement between two, three or more people as established by the Criminal Code, and underlined the
"consensus of wills of the accused for the theft of millionaire public funds".
Judges Jorge Gorini and Rodrigo Giménez Uriburu considered that there were not enough elements to hold Cristina Kirchner responsible for the crime of illicit association as head.
Judge Andrés Basso ruled with dissimilar criteria.
Both considered that "the accusatory premise regarding this criminal figure is based on an erroneous hypothesis." In addition, they understood that there are two elements that must be met for the existence of an illegal association to be considered, which "in our view, have not managed to be verified through the evidentiary platform built throughout the oral trial.”
They refer to the plurality of indeterminate criminal plans and the number of people who would have integrated the organization.
Always from his point of view, this criminal type requires a specific intent (will to commit crime) that consists of
knowing that an association is part of and what its objectives are.
The Criminal Code also requires that the association be made up of at least three members -even if they do not know each other- and that its purpose is to commit indeterminate crimes.
This corroborates the desire to join the illicit association and to remain in it.
Judges Gorini and Rodríguez Uriburu agree with Luciani's accusation regarding the group of people they found responsible for the fraudulent maneuver.
"Its prolonged permanence over time and its well-oiled level of organization (
hierarchical and logistical) are verified without much effort
, as well as -a priori- the requirement relative to the number of members", they indicated.
But both consider that the plurality of crimes
required by the illicit association
is not met in the tax accusation .
On this aspect, the Public Prosecutor's Office had maintained that the criminal plurality of the organization occurred, to begin with, in its intervention in the fraud to the detriment of State funds through the 51 routes granted to the Báez Group.
Secondly, due to the
recycling of part of these funds in favor of the Kirchner family
through an infinity of commercial contracts that linked the former presidents -and their children- with the public works contractor (actions that, to a great extent, part, are being investigated in another related criminal proceeding).
In response to this framework, Gorini and Giménez Uriburu pointed out that
it is not correct "to project this criminal plurality in each of the road works
tendered and awarded to Lázaro Báez", but that the systematic and irregular awarding of all these contracts are not multiple facts
but yourself
.
They cannot be estimated as 51 isolated fraudulent acts "but that he always promoted the action from the configuration of a single maneuver, that is, from the existence of a single criminal will."
In this regard, and moving away from the idea that the 51 bidding processes are individual events to qualify them as a plurality of crimes, the magistrates maintained that when accusing the vice president and the other defendants as part of a fraudulent structure, the existence "of a maneuver that exhibits a homogeneity in the
modus operandi
among various actions and omissions of people linked to each other, personally or institutionally, in execution of a preconceived plan."
With regard to the plurality of crimes through the maneuvers investigated in the Hotesur and Los Sauces cases, the majority vote indicated that it is not enough "
with the mere allusion to other judicial files
, but to take as configured the objective typicity of illicit association is required to prove that the organization in question
had in view, from its origin, the commission of other unspecified crimes
”.
They do not evaluate in this aspect, the crimes investigated in those two files that are under analysis by the Federal Chamber of Cassation.
They point out that if those laundering maneuvers are corroborated,
everything would constitute “a single criminal project
made up of typical independent behaviors established in advance.
Nothing is further from a plurality of indeterminate criminal plans ”, as required by the illicit association.
But they also make another distinction.
If the people accused in Hotesur and Los Sauces in the Vialidad case are considered, the only people who coincide are
Cristina Kirchner and Lázaro Báez
, "it is discordant to maintain -on the one hand- that an association of three or more individuals planned a plurality of crimes indeterminate, and then, when specifically determining which were those devised and consummated crimes, verify that
the defendants in one and the other make up different groups in terms of their composition
”.
Thus it was that they discussed that
the organizations would be different with respect to their constitution
, and that also "the number of members that converge from both does not reach the minimum of three required" by the Penal Code to attribute the crime of illicit association.
As a last aspect, the judges explained that it was not possible to prove, as required by a crime such as illicit association, that its members have associated "for and to commit crimes as the sole and exclusive purpose."
Rather, in this case, they are
officials who were part of the national State as provincial
between 2003 and 2015 "with the central objective of carrying out a prolonged and legitimate government activity (which does not exclude that in the execution of their policies they do not may have infringed criminal laws)”.
dissent
Judge
Andrés Basso did confirm the existence of an illegal association.
He explained that "each of the individual contributions that were identified around the fraudulent maneuver by Cristina Fernández de Kirchner and, in turn, those with which she demonstrated the economic ultimateness of that fact and prove the will to sustain
in the time the criminal agreement
initially entered into”.
He argued that there was an illegal association that "was set up for the purpose of illegitimately appropriating public funds and
not of the methods implemented
- the one that interests and the plenary session of the court has considered proven with apodictic certainty - was through road work financed with funds from the National Treasury and carried out in the province of Santa Cruz”.
Judicial sources told
Clarín
that the
prosecution will insist on the accusation for illicit association
, understanding "that it is before three or more people, that there is an organization with well-defined roles, its permanence over time, and a marked criminal plurality".
look too
Cristina convicted: in the Highway case, for the judges "an act of state corruption of enormous damage" was proven
look too
Road Cause: for the judges, the relationship between Cristina Kirchner and Lázaro Báez had "promiscuous ties"