As is known by rejecting the extraordinary appeal, the Suppressa Court decided to extend beyond the formal and make a minimal argument to publicly hold his decision to leave Cristina Fernández de Kirchner firm in the road cause.
Among the few paragraphs that served as a foundations, the court judges barely stopped to discard the criticisms of the defenses to the behaviors of judges and prosecutors who sowed doubts- among the defendants and even far beyond them- about their impartiality in the case, and even of independence in the exercise of their positions.
Now, what the Court said about these issues. Fundamentally that corresponds to the defenses to demonstrate how the improper behaviors of the magistrates affected their rights and guarantees. It is their duty to indicate the concrete circumstances that allow inferring that those inconnducts effectively compromised the impartiality of the judges. Then, on the principles of Bangalore of the United Nations on full judicial conduct, the Court says that its breach has not been demonstrated, although it then lets these guidelines do not have a binding character.
On the possibility of being able to demonstrate how the alleged incoonducts could affect the independence of the magistrates, the Court raises a difficult requirement to meet. What he asks is that the “fear” on the impartiality of the judges must be accredited. In addition, such circumstance, always subjective and subject to interpretation, should have correlate in concrete decisions, clearly harmful and arbitrary.
In this regard, it should be noted that in the road case, the contested judges not only failed every time against the claims of the defenses, but also ratified the actions of other magistrates also questioned by alleged incoanducts. Thus it ended up forming a circuit that was validated in its practices- within and outside the file- and whose behavior the court refused to analyze with a minimum depth.
In this way, the possibility of demonstrating how rights or guarantees were affected seems a fiction, a circumstance of impossible compliance. It does not seem reasonable for the Court to refuse to deal with these issues before the sentence, arguing that that was not the procedural stage. Even less when- finally- the challenges dispatched without processing.
On the ethical offenses committed outside the stages, the Court is positioned in an extremely delicate place. The duty to behave in a way that avoids fears of partiality, as undoubtedly happened in this case, deeply affects the legitimacy of the failure in particular and the administration system in general.
Therefore, the treatment that the Supreme Court gives to the principles of Bangalore on judicial conduct is extremely delicate. We talk about rules of behavior approved in the UN field that, in many countries, not ours, are accompanied by public policies aimed at its implementation. Let’s look at some of these principles.
The first establishes that “LJudicial independence is a prerequisite of the principle of legality and a fundamental guarantee of the existence of a fair trial. Consequently, a judge must defend and exemplify judicial independence both in its individual and institutional aspects. ” The second principle says the following: “LImpartiality is essential for the correct performance of jurisdictional functions. Impartiality refers not only to the decision itself, but also to the process by which that decision is made. ”
If the judge who carries out the investigation is linked to an economic and media group with an audience in the result of the trial, Clarín, through a trip and a stay never explained in a luxury hotel. Or if the prosecutor who accuses in the trial, and a judge who resolves accordingly, concur to participate in sports activities to a property of – by then president of the nation -Mauricio Macri, also interested in condemning one of the main accused. Or if two of the intervening cassation judges in the road case made periodic visits to the same former president in the Fifth of Olivos, to do sports or to share reserved social activities. Then we can see with Palmaria evidence as the principles of Bangalore were breached by the bulk of the judges and prosecutors intervening in the road case.
The tension between what should be the judicial action, and what was the conduct of those who accused, judged and condemned in the road cause. As evident as, for anyone, a clear fear regarding the independence and impartiality of the decision makers would be configured.
The disdain at the time of analyzing the facts that came to their knowledge, left the low interest of the court to take in his hands the issues related to the ethical behavior of the magistrates. With this decision he reiterated the institutional position – more or less explicit over time – of not becoming a promoter of judicial integrity, either within the framework of a particular case, or in general, as the head of a state power.
The position is not novel. If we had to mark an initial point, we would have to refer to the first business day after the Judicial Fair of the year 2000. There the Supreme Court, in the time of Julio Nazareno as president of the Court, signed the agreed 1/2000. In it, the self -examination of the National Public Ethics Commission created by Law 25,188 was arranged. Actually, with the argument of affecting its independence, the Court decided to enable the almost complete breach of this standard of great relevance for the public function.
During the following 25 years a principle was consolidated that we could call like this: “No one controls me, not even myself”. The status of situation is as follows: there is no full publicity or control of the judgment of the judges of the judges, but there is also no surveillance and treatment regime of the possible conflicts of interest. There are no policies that guarantee access to public information from the Judiciary, nor a regime of gifts or travel. And, of course, there is no initiative against nepotism.
The dangerous consequences of the message
In the judicial system those messages that came out from the Court fell deep. The consequences of the lack of controls are perhaps reaching its highest point, although you never know. As already stated, trips paid by companies were made public without consequences and improper relations (in the form of sports or social activities) were naturalized. As patrimonial evolutions are not analyzed, every so often we find out a magistrate who cannot explain his lifestyle. At this point the casuistry has been expanding in a worrying way.
In Mendoza, he was dismissed former federal judge Walter Bento, who faces these days a trial where he is accused of leading a band dedicated to requesting bribes in exchange for improving the procedural situation of those who arrived at his court accused for very serious crimes, including smuggling and drug trafficking.
In Salta the former federal judge of Oran, Raúl Reynoso was sentenced to 13 years in prison for favoring drug traffickers in exchange for money.
In Córdoba, a former federal prosecutor of San Francisco, Luis Viaut, was sentenced to 5 years in prison After a trial where it was found that he demanded millionaire bribes to draw research on very serious facts, for example, sexual abuse.
In Corrientes, the former federal judge Carlos Soto Dávila is currently serving a 5 -year prison sentence for acts of corruption, After last year a court found him guilty of receiving gifts from drug traffickers.
A few days ago, the former federal judge of Rosario, Marcelo Bailaque resigned. This magistrate has been accused by half a dozen prosecutors for their links with criminal organizations dedicated to drug trafficking.
The sample is not taxative, there are more cases both nationally and from the provinces. Analyzed in isolation, with the morbidity placed in its protagonists, the facts say little and nothing. Examined together, on the contrary, they highlight common patterns and, this is central, a socially problematized diagnosis: the existence of a system that can be captured by criminal organizations or power groups.
In the current context, The risks of not having state policies to promote judicial integrity are becoming increasingly evident. The position of the Supreme Court regarding the conduct of the judges and prosecutors who intervened in the road case constitutes a really dangerous message from the tip of the organizational pyramid of justice.
If the message did not reach beyond this concrete cause it would be extremely serious, given its political transcendence. However, it is part of an organizational culture formed over the years and this becomes still much more dangerous. No doubt more chapters await us in this story.
By Luis Villanueva
