Court lawsuit: Kirchnerism wanted access to phone communications without court order

The ruling party knows it doesn’t have the votes to impeach anyone, let alone now that five wayward senators have created a separate ranch. What’s more: there isn’t even anything the lower house accuses in the Senate. But he still insists on the show. There impeachment committee of deputies, led by Carolina Gaillard with her own Frente de Todos majority, is collect evidence to accuse courtiers. Or, rather, bring an accusatory opinion to the plenary session of the place and, well, lose.

Judges, politicians and magistrates have already begun to parade in this setting. But Kirchnerism, which always gives its all in this type of entertainment, wants more. What do you want? THE call logs of Silvio Robles (Ladero by Horacio Rosatti) and Marcelo D’Alessandro (Minister of Justice and Security of Buenos Aires, on leave) from 2020 to 2022. Not among them, huh. All records. And that the holders of the lines with whom they communicated and the ten subscribers with whom each spoke before and after having spoken to each other be identified.

Last week, the ruling party managed to approve this test request as submitted. Gaillard was going to request the information from the Department of Mutual Legal Assistance in Complex Crime and Organized Crime (DAJuDeCO), the famous listening desk of the former SIDE which passed to the Public Prosecutor’s Office in the time of Cristina Kirchner and which Mauricio Macri handed over to the Court. This is what MP Rodolfo Tailhade demanded when he offered evidence. Direct letter to DAJuDeCO.

The opposition put the cry to the sky. He said that only a judge can request this type of data. Deputy Leopoldo Moreau, who is a member of the impeachment committee and also chairs the bicameral commission for the oversight and control of intelligence organizations, replied that Congress had an agreement with DAJuDeCO to exchange information. Gaillard agreed with him: “This Chamber has a resolution (he may have meant an agreement) with the DAJuDeCO to collaborate and bring the necessary information to the investigation.” But, in the end, during the second encounter He backed up in his flip flops and said he was going to ask for the court order.

What does it mean? Will they access conversations? No. These are the lists of incoming and outgoing calls for each; records with date, time, call duration, etc. Does DAJuDeCO have any? No. Mobile phone companies have them. In fact, the predecessor of this body was the famous Directorate of Judicial Observations (known as Ojota by the acronym OJ) which, until the privatization of the 1990s, worked in the public company Entel. The DAJuDeCO You can act as a mediator by requesting the files from the companies, but your intervention is not compulsory.

With a simple operation in Excel, the records can be cross-referenced to obtain relevant data on the frequency of communications (they spoke “n” times a week), the direction (who is calling whom), the timing (can coincide with events relevant), etc. Nothing else? Yes, because all Robles and D’Alessandro communications were requested (not just inbound and outbound between them), lawmakers they will be able to see all the subscribers they have called or have been called by within the established period.

But who can request these recordings from the telephone companies? Just a judge or a judge. There is only one exception: for obvious reasons, in cases where a deprivation of liberty or kidnapping for extortion is under investigation, prosecutors can, if there is a danger in the delay, order telephone tapping or request telephone records, although the judge must always validate the measure within a maximum period of 24 hours.

This has been expressly stated in Article 236 of the National Code of Criminal Procedure since 2003 and, although for years there has been discussion as to whether prosecutors could request recordings (without wiretapping) without a court order in other types of business, the position that they don’t do it in order to avoid cancellations and in 2009 the discussion was finally settled.

What happened? That year, in the “Halabi” judgment, the Supreme Court declared that “the use of the recording of telephone communications for the purposes of a criminal investigation requires that it be issued by a competent judge by an order reasoned, so that the people are subject in this area to restrictions similar to those which exist in matters of intervention on the content of written or telephone communications”. Castilian? The constitutional right to privacy and private life of individuals protects not only from interference in the correspondence and communications themselves (what we talk about with others), but the very existence of the exchanges (with whom we talk).

The Chairman of the Political Judgment Commission intended to request Robles and D’Alessandro’s phone records with a single signature. It appears to have been reported later. Maybe they passed, I don’t know, the written test of Juan Maria Ramos Padille (judge of the Criminal and Oral Correctional Court No. 29 of the City of Buenos Aires and father of the magistrate also Alejo, who testified this week in Congress) in the contest No. 70 of the attorney general of the nation to cover a post of prosecutor of the room in 2010.

Ramos Padilla’s father was one of the main promoters of the political trial at the Court and organized the famous march in early 2022 in which Kirchnerism called for the resignation of courtiers. In this competition for the post of prosecutor, he corrected him as a guest lawyer no more and no less than Raul Eugenio Zaffaroni. It was very bad for him. He was the last. But the answer he gave was correct. The file that the candidates had to solve precisely raised the question of whether a prosecutor can order telephone records without a warrant. And what did the judge and prosecutor candidate say? Well no.

In the words of Zaffaroni, Ramos Padilla “explains that art. 236 of the CPPN authorizes the judge and not the prosecutor to request the recording of the accused’s communications”, “explains that the request to intervene and the overlapping of the telephone calls violate the privacy of both the accused and third parties” and “is to maintain that under no circumstances may the prosecutor demand the recording of calls from anyone, whether the accused or third parties; and no alleged argument to ensure the success of the investigation can impede this position”.

Clear, right? You don’t have to go to law school to conclude that, if a prosecutor cannot request telephone records without a court order, even less can a parliamentary committee do so. Otherwise, Congress could send the police to search a house or even arrest people. If necessary, article 12, paragraph c) of the internal regulations of the Indictment Committee expressly says so (the corresponding judge may be asked to intercept telephone communications) and refers to “what is prescribed by the Code of Criminal Procedure”, whose rules are those we have already seen: without a judge there is no paradise.

And what about the agreement commented on by Leopoldo Moreau? Nah, another joke. This is an agreement that the Court reached in 2016 for Congress to carry out control and monitoring tasks of DAJuDeCO guarantee its impartiality and transparency. As the deputy Juan Manuel López said: audit. Nothing more. The agreement is posted on the Court Information Center page for anyone who wants to see it.

There’s no kind of decent legal argument that would allow a legislative committee to access phone records without a judge’s order. It now remains to be seen whether Kirchnerism finds a good Samaritan to lay its hands on it, and that, it seems to me, may be easier. You have seen how these things are. For this reason, as the modern philosopher He-Man said, remember my friends: it is not the laws that matter, but who enforces them.

Continue reading: