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2021ArtículosExecutive-Judiciary Tension surrounding Criminal Investigations of alleged past Corruption

marzo 22, 2021
Corporate Compliance, Internal Investigations and Business Crime

The decision in “Baez” was taken in the context of increased claims from prominent Government officials that ongoing criminal investigations against Vice-President Fernández de Kirchner must be closed, under the argument that they constitute a so-called “lawfare”.

Ms. Fernandez de Kirchner continues defending herself against criminal charges in multiple proceedings, amplifying institutional tensions with the Judiciary and within the Executive. In early March she addressed the Federal Cassation Chamber from the Office of the Vice-President, at the National Senate, in a hearing that was broadcasted throughout the country, where she “accused” the Chamber’s judges of prosecuting her illegally, claiming that all proceedings against her are instances of “lawfare”, and making the Judiciary responsible for enabling former President Macri to become President back in 2015.

This happens after a succession of recent judicial decisions against former Kirchners’ Governments officials, i.e.:

  • The Supreme Court’s decision to confirm former Vice-President, Amado Boudou’s conviction to 5 years and 10 months in prison for passive bribery and incompatible negotiations with the public office in the “Ciccone Case”.
  • The Supreme Court’s decision to confirm the convictions of more than twenty defendants, including both businesspersons and public officers (e.g., former Minister of Federal Planning Julio De Vido, and former Secretary of Transportation Juan Pablo Schiavi), in the criminal investigation of the so-called “Once Tragedy” -a 2012 railway accident that resulted in 52 deaths and hundreds of injured, and was soon depicted as an evidence of the impact of corruption in daily life;
  • The Federal Chamber of Cassation’s ruling upholding the Notebook’s Scandal investigation after hearing appeals challenging, among other things, the constitutionality of the Repentant Law and the validity of the collaborators declarations in spite of the fact that they had not been adequately registered and were allegedly received through coercion.

The tension between the Judiciary and the Executive also grew after the Presidential address to the Legislative Assembly at the opening of the year’s legislative sessions, where he requested the National Congress to “undertake its control function over the Judiciary”. This expression was soon translated into a project to create a Bicameral Committee to oversee the Judiciary. The Ministry of Justice, Marcela Losardo, rapidly referred to such project stating that the Congressional Committee could just assess the Judiciary’s performance but never sanction judges or intrude in the courts’ powers. Days after the Minister’s statement, the President announced that Ms. Losardo would resign as Justice Minister as soon as he finds her a replacement, because “a different attitude” is required.  After one week of uncertainty in relation to who would succeed Losardo, the President confirmed that Martín Soria would became the new Justice Minister. A Congressman from the Province of Río Negro, Soria filed criminal complaints against former officials of the Macri Administration for dealing with judicial affairs, and against the President of the Federal Criminal Cassation Tribunal for visiting former President Macri at the Government House while Cristina Fernández de Kirchner was under criminal prosecution. Having denounced Macri’s Government officials and judges for what he claims is a political prosecution; he is portrayed by the specialized media as a new, firmer Government voice against the so-called lawfare.

The Government also promoted a number of legislative projects oriented to reforming the Judiciary:

  • A bill reorganizing the federal criminal jurisdiction (where corruption offenses are heard) that was passed by the Senate –mainly controlled by the Government- but has still not made progress at the Lower House –where political competition is much higher.
  • A project to reform the Federal Prosecutor’s Office organizational structure, including the selection of the Attorney General and the Jury with powers to sanction and remove prosecutors, which were depicted by the Prosecutors Association as the creation of a “firing squad”.

The President announced that other reform projects will be sent to Congress during 2021, including:

  • proposals in relation to the Supreme Court’s appellate jurisdiction,
  • the creation of a new intermediate court below the Supreme Court to review “arbitrary decisions”, and;
  • new organizational reforms to the Judicial Council (“Consejo de la Magistratura”), the body in charge of selecting, sanctioning, and accusing judges.

Opposition leaders and some judges have depicted these projects as attempts to control the Judiciary, particularly in what respects to the prosecution and judgment of corruption cases, in the midst of the several criminal cases ongoing against Vice-President Fernández de Kirchner, but also of a number of investigations involving former President Macri and former members of his Cabinet (e.g. in relation to the re-negotiation of tolls concessions of highways, and to the purchase and sell of companies managing Eolic Energy Parks that were contracted by Macri’s Government).

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