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Supreme Court reaches new tension peak with government

Top justices bypass intermediate courts to accept case against the government

By | [email protected] | October 8, 2020 1:14pm


Only eight months into his term, Alberto Fernández’s government has reached its peak of tension with the Supreme Court.

The government was caught by surprise when the country’s highest tribunal took the extraordinarily rare step of accepting a request brought forward by three federal judges in conflict with the administration, bypassing intermediate courts through a per saltum admission, which only had one precedent in Argentina’s history, back in 2013 when the Supreme Court ruled against Cristina Fernández de Kirchner’s judicial reform attempt.

The move came a few weeks after Alberto Fernández’s own judicial reform bill was presented, and comes as some Kirchnerites within the ruling coalition are talking of going as far as trying to impeach Chief Justice Carlos Rosenkrantz.

A fight over three judges

The Supreme Court decided that it will deal with the claims of federal judges Leopoldo Bruglia, Pablo Bertuzzi and Germán Castelli, whom Fernández’s administration seeks to remove from the key posts they were transferred to during the Mauricio Macri era, arguing that such jurisdictional transfers couldn’t be done without prior Senate approval.

Bruglia and Bertuzzi were transferred in 2018 from a federal oral court to the influential Federal Court of Appeals of the City of Buenos Aires, which, for example, reviews all ongoing investigations in corruption, drug trafficking and crimes against humanity cases.

As an example, they were the ones who validated investigations against Kirchnerite officials in the past two years, including the so-called corruption notebooks — which now seem to be floundering in the country’s highest criminal court due to a lack of evidence incriminating Fernández de Kirchner. Castelli, for his part, was transferred from an oral court in the city of San Martín, in Buenos Aires province, to the oral court that should try Fernández de Kirchner in the case of the notebooks. And cases against Macri’s government, which gained pace after the election, have also been going through these judges.

In July, the Magistrates Council, the body charged with the selection and removal of judges, held that ten judges who were transferred to other courts during Macri’s government should go through the Senate to be confirmed in their posts, just like with new judges. Three of them opposed this procedure and filed requests with the administrative courts and a per saltum request to reach the Supreme Court more quickly.

On 29 September, the Supreme Court unanimously agreed to deal with the per saltum request filed by Bruglia, Bertuzzi and Castelli, although they have not yet examined the substance of the case and have not issued a ruling.

Mutual distrust in the court

The government was taken by surprise when the five justices voted in agreement, as the rivalries within the highest court are well known.

Chief Justice Rosenkrantz was most explicit in his support for the trio. The head of the Supreme Court, seen as an ally of Macri, maintains an old rivalry with his predecessor Ricardo Lorenzetti, who during Macri’s time was part of what was known as the “Peronist majority” along with Justices Horacio Rosatti and Juan Carlos Maqueda.

Lorenzetti plans to regain the helm of the Supreme Court next year, which he lost during Macri’s time, but the position is also being sought by Rosatti.

The only of the five justices who has so far shown to be closer in tune with President Fernández is Elena Highton de Nolasco. She was the only Supreme Court member to attend Fernández’s presentation of his Judicial Reform bill, which was poorly received at the country’s top tribunal. But even they have had their skirmishes. A few days ago, Fernández criticized the Court for not complying with mandatory gender sensitivity training sessions, and was quickly rebutted in a communiqué authored by Highton.

Impeachment attempt?

On Saturday, it looked like the conflict was about to escalate even further when it became known that a congresswoman of the ruling Frente de Todos coalition, Vanesa Siley, had filed a request to impeach Rosenkrantz.

Siley, who is part of the part of the Kirchnerite youth organization La Cámpora, led by Máximo Kirchner, accuses Rosenkrantz for his votes in matters of crimes against humanity, saying they are contrary to existing national law and international human rights law. The lawmaker maintains that Rosenkrantz “shelved” a case in which the powerful owner of the Ledesma sugar mill, Carlos Pedro Tadeo Blaquier, was linked with kidnappings and disappearances in 1976. Her presentation also argues that Rosenkrantz has been reluctant to convene the commission in charge of analyzing the progress of the trials for crimes committed during the dictatorship.

Siley’s filing, however, was made on September 25, four days before the Court decided to accept the judges’ per saltum request, so it’s not clear that it was made in response to the ruling. Fernández’s government also played down the request for impeachment as a personal initiative of Siley, although she is an important political player in the coalition’s judicial matters in the Magistrates Council. A move like that would also be unlikely to prosper given that it would need two thirds of the vote in both congressional chambers, and it doesn’t even seem to have the support from many within the ruling Frente de Todos coalition.

The head of the Court issued a statement in isolation, rejecting the accusations and saying he was the victim of a smear campaign. None of Rosenkrantz’s colleagues in the highest court came out publicly on the matter.

A short-lived honeymoon

The relationship between the government and the Court began to be strained when Fernández announced the creation of an expert advisory council which, before December, is to submit to him a series of suggestions for progressing with reforms in key bodies of justice including the Supreme Court, the Magistrates Council and the Attorney General’s Office.

Fernández has not yet invited the members of the highest court to present their views on the deficiencies they themselves see in the Supreme Court. The justices fear that behind the advisory council there may be a strategy to expand the number of members of the highest court, which would inevitably lead to a loss of power for each of the five.

Beyond a ruling on pre-trial detention at the end of the year, the Court has so far failed to rule on cases that may be of interest to the government. Always with the change of administration, the courts tend, at least for a few months, not to confront the new government. This time, honeymoon between the executive and the courts was short-lived, especially after the government reduced  judges’ pensions during the summer.

Kirchnerite corruption, Cambiemos’ espionage

What happens in the Federal Appeals Court, where Bruglia and Bertuzzi still hold a seat, is fundamental, not so much because of the investigations against Kirchnerite officials that have already been sent to trial, but because of those who have Macri or his officials as defendants.

In at least two cases, the Appeals Court favoured Macri’s officials, which infuriated Fernández de Kirchner, who took to Twitter to criticize their decisions, and seems looking to get even for the years she spent fighting accusations.

If in Macri’s government the investigations were focused on the alleged corruption of Kirchnerite officials, in Fernández’s government the investigations seem to be centred on espionage scandals that allegedly took place during Macri’s time. It remains to be seen how far the courts will be willing to go in investigating the sides.