The Buenos Aires Federal Chamber
annulled
this Tuesday a ruling by federal judge Marcelo Martínez de Giorgi and
entrusted the magistrate with giving the prosecutor Carlos Stornelli and the complaint access to the content of the cell phone of the former deputy administrator of the AFIP and leader of La Cámpora Fabián “Conu” Rodríguez , in the case of illegal espionage against judges and prosecutors.
In a ruling voted unanimously by the members of Chamber II of the Court of Appeals Roberto Boico, Martín Irurzun and Eduardo Farah, Judge Martínez de Giorgi was entrusted, who was in a tough fight with Stornelli to investigate the contents of the leader's cell phone. which responds to Máximo Kirchner,
a series of guidelines on how the team will open.
“Conu” Rodríguez gave orders and paid with funds from the AFIP and the government of Axel Kicillof to the retired police officer and inorganic spy
, Ariel Zanchetta,
to carry out operations like the one suffered by the former Minister of Social Development, Victoria Tolosa Paz. .
For that reason, he is accused in the case along with ultra K deputy Rodolfo Tailhade.
Zanchetta and the missionary hacker Ariel Ezequiel Nuñes Pinheiro are in preventive detention.
For the prosecution, it was a parallel organization that acted on dozens of magistrates who investigated former president Cristina Kirchner.
The chamber's guidelines order "the control of the prosecution (through its exhibition, if necessary) and the complaint, so that the judge determines what course of action is adopted in relation to
each specific folder or document
" linked to the case and not to the privacy of the former official.
The judge may do so "either by excluding it from the investigation - because it is manifestly unrelated to its purpose - or
by incorporating it into it, thus giving full access to the parties for its proper certification
(or even proceeding in some other way required by law, if applicable). ”.
“The previous instance will be entrusted with the “processing” of the information – to which the magistrate alluded in the resolution –
to be carried out with its presence, that of the defense and that of the accusing parties, in a joint hearing
(held in in such a way that it allows a subsequent control) where the secrecy imposed by law will govern (art. 204, CPPN)", he added. In that hearing, "all the
elements
downloaded from the devices (once specified) will be made available disposition of the director of the process so that, in the face of their compulsiveness, he requires the opinion of the defense (which has already made a list referring to the belonging and content of the devices) and the control of the prosecution (through its exhibition, if necessary) and the complaint,” the chamber added.
In January, the judge had decided to only make available to the accusers what “is relevant and useful for this investigation…in order to protect
the constitutional right to privacy of Rodríguez and his family
.”
But today the chamber said that “based on the premises (factual and legal) indicated, it turns out that the limitation now ordered
is unjustified compared to the panorama explained in the
previous paragraphs of the ruling.
Chamber II argued that “the solution to the issue will be the product of
the joint assessment
of the following factors: First, the extremes revealed by this specific case, which have a special tenor.
In particular, at the time, the judge had authorized the participation of the Public Prosecutor's Office – whose representation in the case was exercised by another agent (Gerardo Pollicita) – in the very act of extracting data from the devices, when there was already a opposition of the defense (the very one that was invoked now).”
Then “different unique sequences occurred with the relationship to the prosecutor's intervention in the case and his level of access to evidence;
that the novel (but under the same circumstances) limitation on the knowledge of the seized elements
cannot be examined
regardless of that background.”
Last week, the prosecutor before the Federal Chamber of Buenos Aires, José Luis Agüero Iturbe, supported the request of his colleague Carlos Stornelli to have full access to the telephone communications of the former deputy director general of Taxpayer Services of the Federal Administration of Public Revenue (AFIP). and leader of La Cámpora, Néstor Fabián “Conu” Rodríguez.
In a controversial measure, Judge Marcelo Martínez de Giorgi had refused to give the entire content of an expert report on the “Conu” cell phone to Stornelli, with whom he has had a series of strong disagreements.
The judge maintained that “information that is relevant and useful for this investigation will be made available to the parties.
This, in order to protect the constitutional right to privacy of Rodríguez and his family.”
The expertise of the “Conu” cell phone is key because it requested and paid with AFIP funds in 2022 to the inorganic spy Ariel Zanchetta – imprisoned and prosecuted in the case for spying on judges and prosecutors – for reports on the former Minister of Development Social Victoria Tolosa Paz who was in conflict with La Cámpora.
And the investigative statement to which it will be subjected depends on its content.
The case is investigating an organization in which Zanchetta, “Conu” Rodríguez and ultra-K deputy Rodolfo Tailhade would participate to spy on judges and prosecutors who are investigating former president Cristina Kirchner for corruption, such as the Roads case.
Now the final decision rests with Chamber II of the Federal Chamber of Buenos Aires.
In a resolution, Agüero Iturbe maintained that the “access that corresponds to this Public Ministry to the case and to the evidence – which is complete – is not available to the parties and neither is it available to the judge, even if he is the director of the process, since this does not enable him to issue praetorian resolutions that are totally removed from the legal norms that must govern all criminal proceedings.”
“Much less arbitrary or those that curtail and limit the intervention of the Prosecutor's Office in the process, as an obligated party that it is and violating the right of defense that also protects the Public Ministry,” he added.
He then considered the judge's ruling "lack of basis" "since after the use of a justification it only apparently prevents the representative of the Public Ministry from exercising the role that by legal imperative corresponds to him in the process."
And “it is that without any reason today access to the evidence previously agreed is prevented without an act, fact or circumstance that allows the criterion of the decree of December 15, 2023 to be varied” which did allow access to the prosecutor.
“Thus, the appealed act only finds support in the mere will of the magistrate.
"The result puts in doubt the powers of the Public Prosecutor's Office by making it impossible to access the evidence in order to fulfill its specific function," added the prosecutor before the federal chamber.
In December, the Buenos Aires Federal Chamber declared the "nullity" of Martínez De Giorgi's ruling that removed federal prosecutor Stornelli from this case that investigates illegal espionage on magistrates and judicial officials.
In a single decision, chambermaid Martín Irurzun declared the "nullity" of the decision made two days ago, on December 12, by the judge in the case Marcelo Martínez De Giorgi and which had been appealed by Stornelli.