The Supreme Court of Justice rejected the proposals of the Government of Alberto Fernández, through which they had requested that the ministers of the highest court step aside from the case in which the co-participation corresponding to the City of Buenos Aires is discussed.
When the Court ordered the government to begin paying 2.95% of the co-participating funds to the administration of Horacio Rodríguez Larreta, and together with the non-compliance with that ruling, the Treasury Prosecutor, Carlos Zannini, presented a recusal of all the judges involved in this instance.
The day after Kirchnerism signed the accusatory ruling to initiate an impeachment trial of the members of the highest court, using as one of the alleged grounds the ruling in favor of the Buenos Aires government on the Federal Co-participation, the Court decided not to grant the government's claim.
Days after the Court ordered the federal government to transfer 2.95% of co-participating funds to the administration of Horacio Rodríguez Larreta last December, the Treasury Attorney General filed a recusal for the judges.
The National State maintained that the precautionary decision "anticipated definitions on the merits raised in the case, which should have been reserved for the opportunity to issue the final judgment."
It so happens that although the highest court granted the precautionary measure filed by the Attorney General of the City, in charge of Gabriel Astarloa, the substantive discussion still needs to be resolved: the Buenos Aires government claims that the percentage of 3.5% of co-participation and the return of more than 252,000 million pesos be returned for what they stopped receiving since September 2020 when Alberto Fernández reduced the percentage of these funds.
The Attorney General of the Treasury of the Nation asked the members of the tribunal to excuse themselves from continuing to intervene in the case, raising their recusal in the alternative; and, in addition, filed a revocation in order to annul the precautionary measure issued on December 21."
With the signature of Justices Horacio Rosatti, Carlos Rosenkrantz and Juan Carlos Maqueda, the Court reminded the National State on Thursday that "the power of excuse of judges, whether or not there is a legal cause for recusal, is alien to the procedural activity of the parties."
Expanding on this argument, the members of the highest court responded to the government that the challenges raised by Zannini "are manifestly inadmissible, they must be dismissed outright."
At the beginning of this year, the Treasury Attorney General expanded his request for recusal, specifically pointing to the role of the president of the Supreme Court for the "appearance of messages allegedly exchanged with Mr. Silvio Robles; that is to say, the same official of Dr. Rosatti's Office whose conduct gave rise to the previous recusal formulated in the record by the state representation." The ultra-K official referred to Robles' alleged chats with Buenos Aires Security Minister Marcelo D'Alessandro, which were illegally hacked.
This issue was central to the Accusation Commission, where Kirchnerism has a majority and which held weekly hearings throughout the year in which more than 60 witnesses paraded, to conclude in the signing of the accusatory opinion.
Faced with these accusations, where there was talk of a "well-founded fear of partiality," the Court pointed out that "any allegation of prejudgment motivated by the opinion that the Court has found it necessary to issue on points related to the matter in dispute is manifestly inadmissible, which occurs, among other cases, when deciding on the admission or rejection of precautionary measures."
Giving further support to this explanation, they indicated in their ruling that "those actions of the judges of the Court carried out in a previous proceeding proper to their functions do not matter as prejudgment or personal interest."
Regarding the recusal directed against Rosatti, the Court remarked that "it is based on facts that the recusant herself recognizes as uncertain and that, beyond their veracity or falsity and the licit or illicit nature of their origin, are not attributed to the magistrate but to one of his collaborators, without providing any evidence to demonstrate that the conduct denounced involves the recused judge."
A point that is not minor: Carlos Zannini had stated in his letter that he was beyond his control "any assessment of the origin of those 'chats', of who and under what circumstances obtained them, and of their probative value in relation to the alleged commission of offences of a criminal nature". It was not understood at the time how it is he himself who intends to use those chats for his accusation.
The Supreme Court recalled that Federal Judge Sebastián Ramos, continuing with the criterion adopted on the subject by prosecutor Carlos Stornelli, said that "evidence or testimony that has been obtained cannot be admitted under any circumstances as part of a trial respectful of due process, as can be seen at this point. through organized maneuvers based on illegal intelligence activities."
The case of Luis Juez
In addition, the Court on Thursday rejected the challenges presented to remove Justices Rosatti, Rosenkrantz and Maqueda in the case that analyzes the claim of Senator Luis Juez for the integration of the Council of the Magistracy of the Nation.
It should be recalled that Senators Juez and Humberto Schiavoni had presented a precautionary measure to prevent Senator Claudio Doñate from being sworn in as a member of the Council of the Magistracy for the period 2022-2026.
Graciana Peñafort, a lawyer representing the Senate, appeared in that file and challenged Rosatti on the grounds that, as president of the Council of the Magistracy, "his impartiality in deciding on the composition of that body was affected." He also included in his proposal the dissemination of alleged messages between an official of his office and an official of the City Government.
In February of this year, the recusal request was expanded to include Judges Rosenkrantz and Maqueda.
The Court reiterated its own jurisprudence and rejected the proposal: "in accordance with the traditional doctrine of this Court, which has remained unchanged throughout its history, when the challenges raised by the parties are manifestly inadmissible, they must be dismissed outright."
The Court remarked that the request for recusal must be supported by objectively verifiable circumstances, but in this case "the invoked personal interest of the judge is inferred and intended to be based exclusively on the fulfillment of a legal duty imposed by the performance of an institutional role."