The Federal Court of Criminal Cassation annulled by majority the resolution that had confirmed the prosecution of former president Alberto Fernández in the case that investigates alleged irregularities in the contracting of state insurance. The highest federal criminal court also annulled the seizure of assets issued against him, which amounted to more than 14,634 million pesos.
The decision was adopted by room IV of the court. The judges Mariano Borinsky and Javier Carbajo voted in favor of the annulment, while the judge Gustavo Hornos He did it in dissent.
The central argument: the prosecution and defense agreed
The underlying reason that led the majority to annul the ruling lies in a procedural contradiction. The prosecutor before the Federal Chamber of Buenos Aires, José Luis Aguero Iturbehad maintained in a previous hearing that there was insufficient evidence to maintain the prosecution and expressly requested that it be revoked and the lack of merit. That position coincided with that of the former president’s defense.
However, the room II of the Federal Chamber —the intermediate appeals court— confirmed the prosecution anyway, deviating from what was requested by the prosecutor’s office acting in that instance. Given this, Fernández’s defense appealed to Cassation arguing a “affectation of the accusatory principle and due process”.
Judge Borinsky noted in his opinion that “there was no controversy between the parties – defense and the Public Prosecutor’s Office acting before the Chamber – regarding the temperament to be adopted with respect to their procedural situation”. Based on this reasoning, to which Carbajo adhered, they concluded that the Federal Chamber deviated from the position unanimously requested by the prosecution and defense. They then ordered that a new resolution be issued, and indicated that new statements are already being taken from the witnesses proposed by the defense.
The dissidence of Hornos
The judge Ovens He maintained that the appeal should be declared inadmissible, which would have made the prosecution final. His argument was based on the opinion of the Attorney General before Cassation, Raúl Pleéwho expressed his rejection of the former president’s defense proposal and based his position on the unity of action of the Public Prosecutor’s Office and the need to investigate crimes of state corruption. For Hornos, that opinion was the one that should be taken into account, and not that of the prosecutor of the previous instance.
Hornos also maintained that the prosecution issued—without preventive detention—and confirmed by the Court of Appeals was “sufficiently founded on law and the evidence of the case”in relation to the facts investigated, which pointed to an alleged irregular routing scheme in the contracting of state insurance.
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