The problem with judicial reform in Argentina

December 14, 2017

Latin News

“We all have a body in the wardrobe,” is how two former officials from Argentina’s federal justice system describe the difficulties in implementing anti-corruption reforms. Metaphorical corpses hidden by various functionaries across the national powers have created a stand-off about how to deal with the perpetual question of reforming Argentina’s judiciary.

In their 2016 book Acá No Pasa Nada (Nothing Happens) – the corruption of the Argentine judicial system told from the inside – former federal judge Mariano Bergés, who worked for the judiciary for over 25 years and lawyer Adriana Galafassi claimed that “not one government in the last thirty years has tried to improve the justice system. On the contrary, they have all tried to colonise it, the current one is no exception,” they wrote, referencing the current administration of President Mauricio Macri.

The key word in the above quote, however, is “tried”. Observing the machinations of the nation’s legal system, one could be forgiven for jumping to the conclusion that the judiciary is being held hostage by the executive. But this is not necessarily the case.

The issue is so extensive that it must be boiled down for digestion. One place which could serve as a symbol for nation’s legal system as a whole is the federal criminal court Comodoro Py, located in Buenos Aires City. This drab nine-story building in the central district of Retiro nestled between the Puerto Madero port and the Villa 31 slum is “the most ruthless manifestation of how justice is administered in the country”, said Hugo Alaconda Mon, in an investigative report for local daily La Nación published on 19 December.

Here in the building, corruption cases are delayed by an average of 14 years, according to Natalia Volosin, an anti-corruption specialist and JSD candidate at Yale Law School. A study by fact-checking website Chequeado appears to support Volosin’s premise. It analysed 59 corruption cases involving government officials who served from 1995 to 2016 and revealed that under 60% had been indicted or sentenced.

Since Macri first came to power in 2015, officials from the previous administration have found themselves passing regularly through the doors of the Comodoro Py. This recently culminated in Comodoro Py judge Claudio Bonadio’s indictment of Cristina Fernández (2007-2015) for treason and attempted cover up. These accusations stem from a deal her government made with Iran that was allegedly used to cover-up the Muslim country’s involvement in the bombing of the AMIA Jewish centre in exchange for favourable trade deals – one of many cases levelled against the former president.

However, Fernández’s position as a senator grants her legal immunity under Argentine law, which can only be removed by the senate. The same cannot be said for Fernández’s former foreign minister Héctor Tinerman (2010-2015) and Bonadio has sentenced him to house arrest.

Senate to vote on Fernández trial

Judge Claudio Bonadio asked the senate to strip Fernández of her legal immunity to face charges of treason. This would require a two-thirds vote in the higher chamber. But Fernández still has plenty of allies in congress so this looks unlikely.

A change of power

Fernández says “this is persecution”. She argues the cases against her and her allies are politically motivated and designed to undermine her party. But Volosin disagrees. “They have a good basis (for the accusations). The question is why they haven’t moved ahead before. For six or seven years the case was effectively dead,” Volosin told LatinNews.

Fernández and Rousseff rail against the judiciary

On 9 December, former president Cristina Fernández (2007-2015) received her Brazilian counterpart, former president Dilma Rousseff (2011-2016) to speak out against the ongoing judicial investigations in their respective countries targeting both of them. The duo claim to be the victims of “lawfare” (which they define as the act of using legal charges as weapons) and “political persecution”.

The same goes for many members of Fernández’s administration. What we have seen, rather than a green light for prosecution, is a stop sign for immunity. “No one investigates an official while they are in power,” said journalist for La Nación Alconada Mon. “On the contrary, they guarantee impunity. But they pass that over as soon as they leave public office.... A prosecutor can bury an investigation for years, but once he perceives that the official has lost power, he calls a journalist to announce that he has requested the investigation of the, until that moment, protected individual.”

The system is so centralised that it creates its own rules, leading judges to act almost independently from the law. “They do so because they lack institutional incentives to act otherwise,” Volosin said. “The way judges and prosecutors are appointed, the way they’re removed from their posts, the lack of control – none of this encourages them to investigate powerful politicians and business leaders.”

Crucially, the corruption specialist revealed that political pressures can influence the judiciary’s decisions: “Judges don’t have the motivation to investigate anyone in power because of political pressure and fear of complaints made against them. There is also pressure from the intelligence services,” Volosin said.

The judges moving against Kirchnerite officials have so far justified the use of pre-trial detention, arguing that defendants can manipulate the corruption investigations to wield political influence. However, that same reasoning could also apply to current government officials.

This year, a money-laundering investigation into Macri derived from the Panama Papers revelations has been discontinued by the federal court of Buenos Aires city. But he is still under investigation for tax evasion by the Economic Criminal Justice court. Another case against Macri’s friend, the head of the Federal Intelligence Agency (AFI) Gustavo Arribas, was shelved after he was cited in anti-corruption investigation ‘Operation Car Wash’ for allegedly receiving US$600,000 from Odebrecht, the Brazilian company which last year admitted to paying bribes across the Latin American region. Energy Minister Juan José Aranguren – who accumulated over 50 lawsuits as head of oil firm Shell Argentina during the Kirchner years – has been cleared of conflict of interest charges, among others.

Questions have been raised over the durability of these cases against officials from the current government, even from voices within the ruling coalition. Deputy Elisa Carrió, a Macri-ally, said “it is not that there is negligence by the judiciary in investigating corruption, but what happens in Argentina is much more serious. The judges use the criminal justice system as insurance for their own corruption to go unpunished. They are part of the phenomenon.”

Reform optimism

Argentina is “seriously non-compliant” with key articles in the Organisation for Economic Co-Operation and Development (OECD)’s Anti-Bribery Convention, according to the OECD’s latest report published on 24 March 2017.

The organisation said it was “gravely concerned” about the country’s commitment to fighting foreign bribery and how little progress the country had made. But the report did say that Macri’s plan to overhaul the justice system and update local anti-bribery regulations could improve the situation. The new Corporate Criminal Liability law, that was approved by congress and enacted by the government this month, overhauls how the criminal code interprets national and international bribery. Most importantly it recasts the jurisdiction of Argentina’s federal courts to prosecute bribery of foreign officials by Argentine nationals who are not public servants and enables the confiscation of illicit gains. The OECD’s evaluation team said the bill “contains the requisite elements of an effective corporate compliance program to prevent corruption”.

Argentina strengthens anti-bribery legislation

But the OECD did say that legislative reforms such as the corporate liability bill, which was approved in November, could improve matters and bring Argentina’s regulations into line with international standards. The new law addresses flaws in the previous anti-corruption system by making it clear that businesses may be liable for actions committed by their employees. It also closes some legal loopholes by clarifying that companies are liable for foreign bribery and that the Argentine judiciary may prosecute citizens abroad.

Under the banner “Justice 2020”, Macri’s justice minister Germán Garavano is heading a reform programme launched in May 2016 that aims to make fundamental changes to the judiciary through a series of measures and bills. Freshly fortified by the strong showing of the ruling centre-right Cambiemos coalition in the October mid-term elections, Macri is aiming to get his judicial reforms approved by congress. These include: the creation of new specialised courts, and the modernisation and digitisation of judicial procedures among others.

In Macri's own words, the programme “incorporates a social aspect concerning law administration and includes measures related to the prevention of crime, accessibility, the inclusion of minorities and vulnerable populations to build an inclusive and comprehensive approach”. Other issues under discussion are the reform and de-politicisation of the selection Magistrate’s Council, the body in charge of the selection and removal of federal judges.

Presently, however, “the removal of judges by magistrates doesn’t exist”, says Volosin. How do you choose to remove judges? The magistrates are meant to do this but it is really political. They post friends as judges and pressure their enemies.”

Money for nothing

Argentina’s judiciary is frequently lambasted as being ineffectual, while just next door, Brazil has an effective judiciary in a high-graft environment and law courts have been handing down sentences to a string of officials and businessmen involved in the sprawling corruption cases tied to state-owned oil company Petrobras and private construction firm Odebrecht, among others.

Based on their experience from anti-corruption investigation ‘Operation Car Wash’, Brazilian prosecutors have proposed certain measures to strengthen the administration of Justice and combat corruption. They recommend strengthening prevention and transparency, increasing the sentences, shortening processing times and making budgetary resources more efficient, among other things.

The Brazilian law courts make good use of plea bargaining agreements in corruption cases which allows the prosecutor to offer a more lenient sentence in exchange for information about corruption. Argentina recently followed suit in November 2016 by passing the Ley del Arrepentido (Law of the Repentant), which allowed the judiciary to expand its use of plea bargaining agreements.

But there is no quick fix solution. “Cases that use this law are still delayed and impeded,” said Volosin, “a bad lawyer would tell his client to use this law as the lawyer is still able to perpetually delay the case – it can’t help corruption cases without deep reforms in the judicial process.”

Following Brazil’s lead, there is still some hope for the government’s anti-corruption plan, said Volosin. “Is this government the same as the previous one?” asks journalist Mon. “It is still an open question. Time will tell. Current officials and eventual scandals will force the (presidency) to define which path it wants to follow: accept the consequences of a true systemic reform of the judiciary, or opt for a situation where change is more apparent than real.”

The authors of Acá No Pasa Nada, Bergés and Galafassi, are more pessimistic: “It’s already too late; the government has settled in, and it has also learned that it is better not to make waves in the federal justice system. It isn’t whether some cases are dropped or a new one starts, it’s because ‘we all have a body in the wardrobe’.”

Contributor Biography

Latin American Newsletters (LatinNews) was founded in London in 1967 to provide expert political, economic, and security analysis on Latin America and the Caribbean. For nearly 50 years, it has been acknowledged as the foremost authority on the region.

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