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Why Argentina's Kirchner Is Poised for a Comeback – Despite Corruption Charges

The former president could be the latest to benefit from an inefficient and politicized judicial system.
CFK
EITAN ABRAMOVICH/AFP/Getty Images

If Cristina Fernández de Kirchner wins a senate seat in Sunday’s mid-term elections, as she is poised to do, her comeback would be significant: The former president is under investigation in at least eight separate corruption cases.

Part of the explanation for why these investigations have not sunk Fernández’s senate bid may lie with Argentina’s notoriously slow justice system, and its history of politicization. Her supporters cite the system’s lack of transparency and independence for their skepticism regarding the charges against her; this ambivalence has given Fernández the space to launch her return to the national political stage.

As she battled the charges, which she denies, she referred openly and often to this distrust and misuse of justice, as in October 2016, when she testified on charges of fraud in Buenos Aires' emblematic Comodoro Py court building.

“It’s a formidable maneuver of political persecution,” Fernández told reporters gathered outside. “It’s obviously a maneuver by the current government to try to cover up the economic and social disaster that Argentina is going through because of its decisions.”

Nearby, her supporters held signs bearing messages like “No more revengeful, obsequious, mercenary judges!” and “Stop the persecution and harassment of our leaders, respect our democracy!”

Fernández stands to gain from this stance. A senate seat would grant her parliamentary immunity for the next six years, protecting her from penalties that could stem from the investigations against her.

The mistrust of Argentina’s justice system isn’t unique to Fernández’s supporters, however. According to a recent poll conducted by Management & Fit, a consultancy, 75.6 percent of the population says it has little to no trust in the justice system, making it the least trusted of the three government branches.

An analysis of the justice system shows two main problems, said Renzo Lavin, lawyer and co-director of the non-profit Civil Association for Equality and Justice (ACIJ).

The first is institutional weakness and an outdated criminal procedure code, which doesn’t allow for specialized prosecutors for complex crimes like corruption, and requires all processes to be written, not oral. There are also only 12 judges that handle corruption investigations.

Corruption investigations in Argentina last an average of 14 years, taking an average of 10 years to get to court, according to data gathered by the Observatory of Corruption Cases, a platform launched by ACIJ in 2016.

Taken together, these factors hamper and slow down cases, Lavin said.

But the bigger issue is a lack of independence and transparency in the justice system, which has led to generalized impunity in corruption cases, he said.

Of the 68 most prominent corruption cases in the country, only five have reached a final court ruling. Information about these cases has also been historically hard to access. Until a month ago, the justice system was not subject to Argentina’s Access to Public Information Law.

The inner workings of the court system – including the designation, promotion, and penalizing of judges – are non-transparent and politically determined, Lavin said.

“This opens the door to a lot of discretion,” said Lavin.

Judges may suffer pressure when they’re in charge of an investigation that bothers the politically powerful. The reverse is also true: Judges can use their power to pressure politicians into giving them advantages, such as promotions, Lavin said.

The politicizing of the justice system goes back decades in Argentina. A well-known example was the famous case of the “napkin judges” in the 1990s, in which ministers of then-President Carlos Menem would write down on napkins the names of judges who answered directly to the executive power.

These were judges who were designated through illegitimate methods; many of them had held public office under Menem, and did not have a judicial background, said Natalia Volosin, a lawyer and expert on corruption issues. This was concerning then – and still is, she said.

“Many of them are still federal judges and prosecutors who have served all the governments since,” she said.

It is one of these prosecutors, Carlos Stornelli, who was assigned the investigation for a case in which Menem was accused of illegally trading weapons to Ecuador and Croatia during his presidency. The investigation began in March of 1995, and is still ongoing, more than 22 years later.

On Sunday, Menem will be running for his third term as senator of La Rioja. If he wins, by the time he ends his tenure, he will be old enough to be granted house arrest if the case reaches a final ruling against him.

While many believe Fernández is seeking a similar delay in her corruption cases, Volosin thinks that Fernández’s investigations will be resolved much faster. Social pressure is pushing the justice system to be faster and more responsive. This could bode well for Argentina if it is carefully handled, she said.

“Federal judges and prosecutors are beginning to understand that our society won’t tolerate impunity anymore,” said Volosin. “But we have to be cautious. If investigations accelerate because we’re abiding by the law and there’s going to be structural change, then that’s fantastic. But if the investigations accelerate due to political reasons, then that’s no longer something to celebrate.”

An important reform to the criminal procedure code that would ensure structural change to the justice system was approved back in 2014, but its implementation has been delayed indefinitely by Congress. To Lavin, what’s at stake with these reforms is greater than the justice system.

The belief that the law does not apply equally to all has a pervasive and corrosive effect on Argentina’s confidence in its institutions, said Lavin.

“What’s at stake is the quality of our democracy, our rule of law.”

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He is an Argentine journalist who works on the Strengthening of Democratic Institutions team at the Civil Association for Equality and Justice.

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Any opinions expressed in this piece do not necessarily reflect those of Americas Quarterly or its publishers.
Tags: Argentina, Cristina Kirchner, Elections

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