Ricardo Sáenz: “There is no dimension of what the attacks on the Court imply for the institutionality”

Sáenz, in addition to being a prosecutor, writes fictional stories.  His latest book is a topical essay.
Sáenz, in addition to being a prosecutor, writes fictional stories. His latest book is a topical essay.

Ricardo Sáenz is attorney general before the National Chamber of Criminal and Correctional Appeals of the City of Buenos Aires since 1993. Professor of Criminal Law at the Universities of Buenos Aires and Católica Argentina, specializing in computer crime. Between 2005 and 2010, he was president of the Association of Prosecutors and Officials of the Nation (AFFUN), and between 2015 and 2018, vice president, representing the Prosecutors in the Association of Magistrates and Officials of the National Justice (AMFJN).

He was one of the main judicial officials who led the claim for the clarification of the death of his colleague Alberto Nisman, in January 2015, which gave him great public visibility. And in fact, it was the first in court that linked the alleged crime to the complaint against Cristina Kirchner. Since then he has maintained a high profile on the subject, and remains active in the networks and in the media with opinions on current politics. In parallel, he also began to write fiction stories and last year he published more than a dozen of those stories in the book Much to tell, edited by The Never ending tale.

In December he published a second book with the same label, but pure and hot today, with a completely different tone: Quarantine. Abusive exercise of power during the pandemic. He sums it up as “an investigation into the facts decided and carried out by the Power and the consequences that they brought along during the quarantine arranged in 2020”. In an intertwining of political and judicial events during the quarantine, tries to show that many of them “constitute abuses of power”, in a country “paralyzed by fear” in the face of the pandemic. And holds that “Unfortunately, the Government has not achieved, not even close, the expected health results.”

Cover of the book that Sáenz just published in December, from the label The Never ending tale.
Cover of the book that Sáenz just published in December, from the label The Never ending tale.

You say in the book that the isolation and quarantine imposed by the Government by the pandemic generated tension between two rights: freedom and the preservation of health. How do you think that tension was resolved?

-I think it was legitimate if those measures were approved in Congress, not by decree, and if they were limited in time and were reasonable. And I think all this did not happen. We cannot speak of a limitation in time when we had an eight-month quarantine, the only one in the world, and we ended up having the same results that were said to occur if this measure was not available.

-What led you to think about the “abuse of power” from the quarantine?

-The idea for the book was born from an invitation to give a conference in May, and I began to list a series of measures that, I realized, were being taken taking advantage of the situation of the pandemic. And that I think was the abusive thing. There are 43 examples given in the book of abuse of power situations.

-Can you give some examples?

-The release of (former Vice President Amado Boudou), that collective habeas corpus that released more than 1,000 detainees in the Province, the OA abandoning being a plaintiff in judicial corruption cases involving former Kirchner officials or close associates of Cristina Kirchner, judicial reform, the nationalization of Vicentin, the new form of election of the attorney and the composition of the jury of prosecutors, the arrest and deaths of people at the hands of the police.

– Why do you say that there was a “use” of society’s fear of the pandemic?

-Measures have been taken while society was on something else, concerned about the advance of the pandemic. That is the clear use from the power that I see, in the midst of the situation we were going through. How to propose a judicial reform when people are concerned about their health, about security, about the economy. That proposal was totally out of context and had other interests.

-You maintain that some decisions taken by the three powers in the framework of the pandemic were in violation of constitutional norms …

-Yes, for example, when some governors banned their citizens from entering their provinces. That is clearly unconstitutional. The extension of the quarantine could also be considered unconstitutional, although it would be necessary to see what the offense is, the conflict between freedom and the State’s obligation to preserve health. There are many things that were clearly illegal.

-As which?

-The collective habeas corpus issued by a single judge (Víctor Violini, the only member of the Criminal Cassation Chamber that is a member) and which in April allowed the release of more than a thousand detainees in the Province of Buenos Aires seems to me one of the most serious that passed in a long time.

-The argument was that it was a population at risk in prisons …

-But it had to be proven in each case. They took a list from the Ministry of Justice of the Province. So much so, that when the scandal broke out, the provincial court met in plenary session and revoked it. But afterwards it was difficult to return to jail for those who had been granted domiciliary.

-The abuses were not only by the Executive Branch, but also by police forces …

-The power turns a blind eye, including the Judiciary. Because for every death at the hands of police forces a file is opened. In a pandemic context, one should expect otherwise but policing and enforcement were relaxed. In the book, I tell that the Minister of Security (Sabina Frederic) acknowledged in a report that if the disappearance of (Facundo) Astudillo Castro passed in the government of (Mauricio) Macri, it would have been a scandal. In other words, it is ideological.

-In the book he also mentions the attitude of the Government regarding the episodes of land seizures, and which he defines as “zigzagging” and “ambiguous” …

-These situations ended up solving the Justice, but it took time to do it. Justice acts with timing politician. And from the Government, for example, they did not remove two officials who were inside the capture of the Etchevehere field. The take has a very clear ideological component and Grabois (social leader Juan) explains it every time they put a microphone in front of him. And in the Province of Buenos Aires, although the provincial government did not encourage them, it ended up tolerating them.

Sáenz in one of the marches to clarify the death of prosecutor Nisman (NA)
Sáenz in one of the marches to clarify the death of prosecutor Nisman (NA)

-How do you evaluate the reform of the Public Prosecutor’s Office approved in the Senate at the request of Kirchnerism?

– I believe that this reform is unconstitutional. When the National Constitution creates the Public Ministry, it does not say precisely what the majority should be. That was well interpreted by the first law and the same line was followed with the second, the current one, which establishes the two-thirds of the Senate so that there would really be a political consensus to appoint an official of this magnitude. Lowering that requirement to a simple majority means that a party with a circumstantial majority in the Senate can appoint its own attorney. That is the serious thing. And this is what a sector of the government wants to do, which is the sector that obeys Cristina Kirchner. Because it does not seem to be the intention of President Alberto Fernández.

-The paradox arose that the ruling bloc itself did not advance yet in approving the President’s candidate for attorney, being that it would have the support of a sector of Together for Change …

-The election of the attorney, luckily, was delayed, because it confronts us with the situation that the President negotiates to obtain two-thirds and the All Front bloc told him that it was not going to give him the votes. Because they were due to a law that changed the way it was named. Alberto Fernández sent (Daniel) Rafecas’s statement to the Senate, he played all his chips for him, but the ruling party did not treat him and he was left in limbo. The approved reform of the Public Ministry also includes the issue of prosecuting prosecutors, which is very serious. Current law, on seven members, requires five to remove a prosecutor. The project says it is enough with four.

-Why do you think that the Government – and Kirchnerism in particular – put so much emphasis on removing Eduardo Casal, the acting attorney? Why is that position so important?

-First they want the empty chair to name someone who is more inclined to them. There is an idea that having an attorney who is a supporter is going to cause that attorney to request the annulment of records before the Court and the Court makes room for it. And I don’t know if any attorney would do it. And also, it is not so easy, there are other previous instances. An example is the conviction of Boudou that reached the Court, and the Highest Court gave it a 280 (for the number of the article of the Civil and Commercial Procedure Code of the Nation to refuse to consider the case), and it is no longer reviewable. He has twice the amount of his sentence. Now Julio De Vido seeks to go with an appeal to the Court to question the validity of the testimony of the repentants, and the Court cannot get involved in an ongoing criminal case. He is going to issue 280. First, because it is not a final sentence and, furthermore, it cannot be put in the finite of the criminal process. That is another of the things that the Government wanted to modify, that the Court could intervene in intermediate stages. It’s crazy.

-Do you think that is why Cristina Kirchner was so critical of the Court in her last letter?

-I am very concerned about the attacks on the Court. In the 40 years that I have been in court, I do not recall ever seeing a president or vice president address the Court the way they do. And I am referring not only to Cristina Kirchner’s letter, but also to what they say in their public speeches. That the Court has to explain this or that thing, for example. It is a very disruptive way from the head of one power to address another power. Because the other power cannot answer him. The president of the Court cannot go out to answer the vice president and tell her that she is wrong in what she is saying. Can not do nothing. And this is an abuse of power, there is no other way to put it. And this is prohibited by the National Constitution.

-Is it naturalized as part of a political discourse without taking on the dimension of what it implies?

– Exactly, of what it implies in terms of the institutionality.

-Do you think that the quarantine and the pandemic exacerbated the crack instead of uniting the Argentines in this adverse situation?

-Yes, it was accentuated. And the flags are the proof. There is a sector of society that felt what I tell in the book, that abuses were being committed. It started with Vicentin, and then before the freedom of those accused of corruption, people took to the streets to express their dissatisfaction. There are 40% who are against measures of this type. People are waiting for measures regarding their health, their safety, the economy, and it turns out that politics comes out with the judicial reform, the nationalization of Vicentin, the reform of the election of the attorney, the transfers of judges, it does not pursue a fact of police violence. Politics has a different agenda than society.

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