The last days of the year have been busy for former President Cristina Fernández de Kirchner. At least when it comes to her legal problems: A Federal Court of Appeals recently confirmed her indictment in the so-called “notebooks scandal” case, and a Federal Prosecutor requested she be sent to trial in the “Hotesur” case. Both are very high-profile cases that have been covered ad nauseam by the local media, including us.
The courts’ decisions on high-profile corruption cases always make the headlines, and the public conversation revolves around them for days or even weeks. But truth is, at least during 2019, the former President will not be facing any jail time.
As you probably know by now, court cases in Argentina take years – even decades – to be fully investigated, especially the ones Kirchner and other former – and current – public officials are involved in. And, since in this country those accused are only considered actually guilty when their cases have reached the highest court possible, the reality is that most of them continue to live their lives normally until a court rules what we know as a “firm sentence”. If it ever does.
True, in the past years we have seen some cases in which former Kirchnerite officials were put behind bars before a firm sentence was reached. This has been the case for former Planning Minister Julio De Vido and former Economy Minister Amado Boudou, for example. But most of them were released precisely because there is no firm sentence against them, and pre-trial arrest can only be justified when a court believes that the accused can: a) tamper with the investigation or b) flee from justice.
Whatever the case may be, Cristina Kirchner is probably not worried. Because even though both Judge Claudio Bonadio (and the Court of Appeals overseeing his investigation) have ordered Kirchner’s pre-trial arrest, she remains protected by the congressional immunity that comes from her Senate seat.
Most senators in the Upper House (especially those who are not members of President Macri’s Cambiemos coalition party) have repeated time and time again that they would only vote in favor of such request if there is a firm sentence against her. And trust us, that is far from happening. Moreover, the precedent of former President Carlos Menem, who was not sentenced to prison for selling arms to Croatia and Ecuador while in office – despite a Supreme Court ruling that determined he was guilty – 23 years after being accused, is quite illustrative regarding the times of the judiciary.
That’s why, even though Senator Federico Pinedo said that Cambiemos would once again introduce a motion for Kirchner to be effectively stripped from her immunity, the caucus will not garner enough support, and everything will end up being just for optics.
Nonetheless, the cases against Cristina Kirchner continue to move forward.
If the judge investigating the “Hotesur” case, Julián Ercolini, upholds Prosecutor Pollicita’s request, he will send the case to trial, in which a tribunal will issue a ruling. Both Ercolini and Pollicita have already determined there is enough evidence to conclude they the ex president took part in a money laundering scheme where they used the family hotel – called Alto Calafate – as a front to launder previously embezzled assets during Fernández’s tenure as president.
Throughout the investigation, experts in the case demonstrated how several companies owned by Lázaro Báez, an infamous businessman associated to the Kirchner family, transferred around AR $6 million per year to accounts belonging to Hotesur — which manages Alto Calafate — between 2009 and 2013. The contract was abruptly terminated in 2013 when the previously unknown relationship between Báez and the Kirchner family was uncovered by the media.
A previous probe also revealed that Báez’s payments to Hotesur accounted for 50 percent of the Alto Calafate hotel’s billing. With this information, the prosecutor will try to prove that the money paid by Báez to rent the hotel’s rooms and ballrooms for his companies’ staff had an ulterior motive: providing kickbacks for the overinflated public work contracts his flagship company, Austral Construcciones, was granted by the Kirchner administration during their time in office.
In fact, Báez has been in pre-trial arrest since April 2016 as a result of his alleged involvement in the case.
If sent to trial, the court would have to hear all witnesses, as well as the parties involved, and make a decision based on that. The losing party will then be able to take the case before a Court of Appeals, a Cassation Court and even go all the way up to the Supreme Court.
As for the “Notebooks Scandal,” the Appeals Court confirmed the judge’s decision to indict the former President and order her pre-trial arrest. In his ruling, Bonadio had assured that both Kirchner and the other officials indicted “still have ties with media outlets and business leaders, and therefore could tamper with the investigation.”
In his ruling, Bonadio conceded that there is still no evidence to prove that the former President took bribes herself, but argued that it does not exempt her. “[Kirchner] always knew about the system and, as the main authority in the Executive Branch, was responsible of leading the illicit association.”
Now that the Court has confirmed the indictments, the prosecutors in the case will decide whether to request the case be sent to trial. They will.
So far, the former President has been indicted in seven different cases. One of them, in which she stands accused of illegally benefiting Lázaro Báez with government contracts in the Santa Cruz Province in exchange for kickbacks -which were then allegedly laundered through Hotesur – has aready been sent to trial. Its starting date is February 26.
Besides Hotesur, which is on its way to trial, the former President has been indicted in five others. Among them are the so-called “AMIA cover-up” case, where she stands accused Iran’s role in the 1994 AMIA Jewish Center bombing in exchange for trade deals, and the “Notebooks Scandal.”
However, while Kirchner will likely spend as much time going to courthouses as will be involved in next year’s presidential elections next year – we can’t say she will run because she has not confirmed it – reality is that you will not be seeing her behind bars anytime soon.