An emergency decree signed by President Mauricio Macri this week effectively bypasses Congress to articulate the “domain extinction” law which allows the Judiciary to seize assets in cases involving the likes of corruption and drug-trafficking, well before the criminal court system reaches a final conviction. Many were angered by this, claiming the government was acting unconstitutionally as it sought to gain political momentum ahead of this year’s presidential election, yet few people question the need for this type of a mechanism. The decree, put together by Justice Minister Germán Garavano’s team, is most definitely politically timed, but it also hits another ethical nerve: it would allow what is clearly an untrustworthy judiciary the possibility of pursuing the assets of those under investigation for corruption, with particular emphasis on Cristina Fernández de Kirchner and those linked to her. No-one will cry for Lázaro Báez or Cristobal López, but it is difficult to separate the actual need for a much-delayed legal element to target ill-gotten assets from an opportunistic decree that will deliver concrete results as the electoral season gets underway.
Corruption is rampant in Argentina. It is probably the main culprit behind the country’s sustained decadence. Not only is it a structural problem, it is also a consequence of weak institutions that haven’t been modernised in order to effectively tackle the underlying problem. As things stand, a drug-baron’s assets cannot be confiscated until a “firm” conviction weighs on his head, meaning a federal judge has found him guilty, an appellate’s court has confirmed the conviction, and the Supreme Court either agreed or decided not to take the case. This process, according to Justice Ministry officials, takes approximately 10 years. While the courts generally embargo assets in these situations, defendants rely on bank guarantees and therefore still have access to their cash, with which they finance their defence and/or continue their illicit activity. This is how drug cartels like ‘Los Monos’ in Rosario can continue to operate despite the jailing of their bosses. Cristina, for example, has a total lien of nearly 15 billion pesos (some US$400 million at today’s exchange rate) in five different cases against her, three of which are being investigated by judge Claudio Bonadio.
The ‘domain extinction’ decree was originally proposed by Elisa ‘Lilita’ Carrió, picked up by the Security Ministry, along with the Cabinet Chief’s office, and sent to Congress in 2016, when it passed the Lower House. Peronist Miguel Ángel Pichetto joined forces with Kirchnerite Senators to render the bill toothless, then sent it back to the Chamber of Deputies where it died. Macri decided to rely on a controversial emergency decree, unveiling it as surveys show confidence in his government at an all-time low and the economy continues its descent into the worst recession since the 2001-2002 implosion. The attorney general has 60 days to start working and the first implementations are expected before June. One rumur indicated Cristobal López’s Grupo Indalo could be an early target.
The decree calls for the formation of a Prosecutor’s Office for asset recovery that will pursue civil cases tied to criminal cases where a federal judge has already acted on assets suspected of being tied to grave crimes. Therefore, the burden of proof has been inverted, meaning an individual accused of a crime will have to prove his assets were legally acquired. Fernández de Kirchner, for example, would have to demonstrate she legally purchased all those homes and works of art, and her daughter Florencia would have to present documents backing her claim that the US$9 million she had in a safety deposit box in cash came from her inheritance, and that her father Néstor procured them legally, or they could be confiscated and auctioned off. If they were found to be innocent, the state would have to pay them back, of course. The Security Ministry worked closely with its Colombian counterparts and the Italian equivalent of our Anti-Corruption Office.
Leaving aside the obvious electoral use of this announcement, there’s something uncomfortable about giving an opportunistic judiciary a mandate to liquidate the assets of those being investigated for corruption tied to the previous administration during an electoral year. The use of extraordinary means to an end appear justified when put in the hands of someone who has earned society’s trust. When then-federal judge Sergio Moro used preventive prison to reach plea bargains in Brazil’s transcendental Lava Jato (Operation “Car Wash”), a large portion of Brazilian society supported him. Not only had they lost faith in the government and its institutions, but they also found in Moro someone who was morally beyond reproach. To a certain extent, Moro was a Nietzschean übermensch or superman who was allowed to overstep ethical boundaries as his mission was “superior.” In similar fashion, large portions of society tolerated the use of controversial tactics by police and security forces as they battled the mob in the 1920s and 1930s in the United States, or during both George Bush and Barack Obama’s wars on terror, illegal torturing and drone strikes included. When certain thresholds of illicit activity or danger are broken, societies, egged on by the mainstream media, find themselves in support of slippery slope situations that allow them to suspend their ethical judgments.
No matter how much we try, though, it is impossible to feel confident in the impartiality of justice in Argentina. This is not to excuse corrupt politicians and businessmen who became enormously rich at the expense of everyone else, but the political timing of the situation coupled with the reputation of judges in this country, as an unpopular Macri faces off with Cristina, is disturbing.