Amid the controversies surrounding former President Cristina Fernández de Kirchner’s alleged involvement in the so-called “K Money Trail” and future dollar contract cases, The Bubble spoke to the City of Buenos Aires’ General Prosecutor, Luis Cevasco, to find out if she could actually end up in prison, and if so, how things would have to unravel for her to get into actual legal trouble.
To start off, let’s quickly recap what these two cases are about: On the one hand, Cristina’s been indicted in the case that investigates alleged irregularities in the sale of future dollar contracts by the Central Bank (BCRA) last year. She presented a written statement to Judge Claudio Bonadio today.
She is also accused of being involved in a money laundering scheme known as the K Money Trail, a case that is being presided over by Judge Sebastián Casanello. Prosecutor Guillermo Marijuán formally accused her last week of being involved after suspect Leonardo Fariña, now the whistleblower in the case, stated that she and former President Néstor Kirchner “looted” State coffers during their years in office.
I asked Cevasco to walk us through a regular criminal case to fully understand every part of the process and its significance.
Cevasco explained that a criminal case begins when a prosecutor formally requests a judge to open an investigation, as he or she believes there’s enough evidence to suspect someone committed a crime: “In the money laundering case, for example, Prosecutor Marijuán requested to have Cristina indicted by saying, ‘Look, not only do we have to open an investigation, but we have to call her in for questioning.’”
He went on to explain that it’s not the prosecutor who makes the call to indict someone, but the judge. “The prosecutor makes a request and the judge can uphold it or not. We have to see if the judge believes there’s evidence to suspect she may have committed a crime.”
If the judge in charge of the case decides to indict Cristina and consequently calls her into questioning, he then has 10 days to follow one of these three legal paths depending on the conclusions he arrives to:
- Prosecute her: He believes there’s enough evidence to move on with the investigation.
- Rule there’s a lack of evidence: The judge believes there’s not enough evidence to prosecute her but does not close the case, since there’s still reason to suspect she may be guilty. The investigation remains open so more proof can be acquired to determine whether she should be prosecuted or absolved.
- Absolve her: He believes she is not guilty of the crime she’s being accused of.
Cevasco also explained why charged individuals, such as former Transport Minister Ricardo Jaime and the main state contractor under the Kirchner administration, Lázaro Báez, can be arrested even though they have only been suspected of committing the crimes they’re being accused of and are not guilty.
“The judge can place different injunctions if he believes the accused can somehow endanger the investigation. In this case, Judges Casanello (investigating Báez) and Ercolini (investigating Jaime) decided to have them preemptively arrested because they thought there was a chance they might try to escape,” said Cevasco. He clarified, however, that a possible escape was not the only criteria that allows a judge to arrest a suspect: “It’s necessary for the judge to partially prove the person has committed the crime he or she is being accused of. Lázaro Báez was arrested because the judge thought he could’ve been attempting to avoid justice when he boarded a plane that had no concrete flight plan.”
So far, Judge Bonadio, who is presiding over the future dollars case, has not determined that there’s enough evidence to suggest Cristina might try to avoid facing the judiciary, and since Judge Casanello has yet to decide whether to indict her or not in the K Money Trail case, he hasn’t even taken this issues into consideration.
If Judge Casanello determines there’s enough proof to carry out an investigation into Cristina’s alleged involvement in the K Money Trail, he will prosecute Cristina within 10 days of her testimony.
“Anyone mentioned by someone in a case as the possible author of a crime can be indicted. The call to testify takes it up a notch, because it means the judge shares the suspicion,” Cevasco said.
He then explained that the prosecutor, rather than the judge, decides to send the case to trial or not. “This is because the prosecutor is the one who accused the suspect in the first place.”
When it comes to Cristina’s money laundering case, it would seem quite strange that Prosecutor Marijuán would request to have the investigation dismissed, since he’s the one who accused her in the first place. However, Cevasco said there are different reasons why a prosecutor could change his or her stance when the time came: “There could be enough evidence to prove the accused was innocent in the first place, or maybe the prosecutor realizes there’s not enough proof to go to trial. The prosecutor can also analyze the evidence and state that his or her suspicion had no grounds,” he finished.
In order to move a case forward, two things have to be proved:
- That those accused actually did whatever they’ve been accused of.
- That what they did has legal consequences.
“If you have those two, the case moves on. Otherwise, you’ve got nothing.”
If the case goes to trial, Cevasco explained, the case goes to a criminal court composed of three judges, to whom the prosecution and defense present the documentation they believe make their cases. “Both parties present their evidence. Once they do, the court conducts the trial and issues the sentence.”
Even though the word “sentence” makes it sound like things would be over after this, the City prosecutor told me that whoever loses still has one chance to get his or her way: “They can appeal the ruling to the Cassation Court, which is the highest instance in criminal justice in the country.”
What about the Supreme Court? I asked.
“This is usually not possible. Only federal cases can be taken to the Supreme Court, and a case is considered “federal” when a law is thought to be unconstitutional or when the sentence is arbitrary — meaning it doesn’t have anything to do with the case. In Cristina’s case, the first case already can’t happen, and the second is highly unlikely. The Cassation Court would be the last instance.”
The Sentence: Could Cristina Go To Prison?
Cevasco explained that people in Argentina go to prison when they’re sentenced to at least three years of jail time. Cristina’s crimes “have a maximum sentence that exceeds three years in prison, but the minimum doesn’t, meaning that it will be up to the court to decide if she has to spend time behind bars or not. However, if it’s proven that Cristina led an organization to embezzle State money, she can be accused of ‘unlawful association.’ In this case, the head of the organization gets a minimum of four years in prison, meaning that if she is found guilty, she would go to prison no matter how grave the sentence.”
Could She Go To Prison Soon?
According to Cevasco, the answer is no: “They’re all crimes that are extremely hard to investigate. Regarding the money laundering scheme, the following would have to be provem:
- That the public works (contracted to Lázaro Báez)were actually rigged to favor someone (Lázaro Báez)
- That the public works were overpriced, not conducted or not finished, and that money was actually embezzled
- That the alleged embezzled money was the money that was actually laundered
“These are complex cases, a lot of accounting-related probes have to be conducted. This wouldn’t be quick,” he finished.
In conclusion, there might be a lot of media hype around Cristina’s alleged involvement in these cases, but the actual truth is that a lot still has to happen for us to even start considering the possibility of her getting fitted for an orange jumpsuit. So, if the cases are taking up the better part of your thoughts, I suggest you have a seat, fix yourself a cauldron of tea and get started on a new TV show(I heard Mozart in the Jungle is quite good) since these things usually take a while. And when I say a while, I mean years.