After voting favor of Federal Judge Claudio Bonadio’s request to raid the properties belonging to former President Cristina Fernández de Kirchner, the Senate also approved a so-called “expired ownership” bill (ley de extinción de dominio). This legal figure aims at enabling the seizure of criminally-attained assets by the State. In fact, it was one of the main rallying cries in the march that took place on August 21, in addition to the call for the authorization of the raids to the former President’s properties.
The bill aims to dismantle corruption and illicit wealth in Argentina by targeting funds gained illegally through a catalog of crimes related to drug trafficking, terrorism, human trafficking, corruption, money laundering, and financing of terrorism. However, even though the bill was approved, government and opposition are clashing over certain key elements: whether it should be retroactive, the moment when the state could seize the assets, and what jurisdiction should take over the investigation.
In regards to the first aspect, the government argues it should be retroactive in order to be able to seize assets they believe former officials who are already being tried – particularly from the Kirchner administrations – could have acquired with funds embezzled during their time in office.
In contrast, the Partido Justicialista (PJ) caucus, along with other opposition parties, argue that the bill should only be start being applied from the moment is sanctioned on. This stance was supported by experts and jurists, who indicated that otherwise, the law would violate a principle of criminal law called nullum crime sine lege: i.e., the impossibility to charge someone using a law that did not exist when the crime was committed.
“If there is something Cambiemos is not willing to negotiate, is the speed of the process and the fact that the law should be retroactive,” said Cambiemos Senator Pamela Verasay during the debate yesterday. Several other Cambiemos lawmakers echoed the thought on Twitter.
La oposición aprobó en el Senado un proyecto de ley de #ExtinciónDeDominio que no permite #RecuperarLoRobado ya que no se podrá aplicar retrospectivamente. Ahora el proyecto regresa a Diputados y esperamos poder insistir con la sanción original para cumplir el verdadero objetivo. pic.twitter.com/7rZiOf3llZ
— Mario Raul Negri (@marioraulnegri) August 23, 2018
“The opposition passed in the Senate an expired ownership bill that would not be applied retroactively (he spelled it retrospectively and corrected his mistake in a posterior tweet). Now the bill goes back to the Lower House and we hope to insist on the sanction of the original one, to achieve the real goal,” reads the tweet published by the head of the Cambiemos caucus in the Lower House, Mario Negri.
As for the second aspect, Cambiemos senators call for the possibility to start the process as soon as a judge officially presses charges against a suspect. Their counterparts argue this should only happen when a first instance tribunal issues a sentence – which, however, is not definitive as it can be appealed.
Moreover, the Senate’s bill intends for the expired ownership to be a case adjacent to the main corruption one being investigated by a criminal judge. The one Cambiemos advocates for wants it to be an independent case, carried out by a civil judge. They argue this would be a quicker way to determine if the assets have illegal origins. Moreover, the bill would revert the burden of proof, forcing the suspect to demonstrate they acquired the assets in a legal manner.
Cambiemos passed its bill in the Lower House in 2016, but since the Senate modified it, it will now go back so deputies debate which version to approve. And here is when the legislative rulebook comes into play. In order to send the modified version to the Lower House as the first alternative, the bill should have garnered the support of two-thirds of the senators present in the session. However, it fell four votes short, as it received just 40 out of 66.
This means that if Cambiemos Deputies get a simple majority in the vote – a vote more than half the deputies present – they will pass their bill. If they fail, then the opposition will be able to vote its version and if they do manage to get the necessary votes, they will send it to President Mauricio Macri to be signed into law. The President has not said whether he would be willing to sign the opposition’s bill, or if he will veto it.