Returning to work on Monday, President Mauricio Macri wasted no time in sparking controversy, announcing at a forcefully delivered press conference at the Casa Rosada he would sign an emergency presidential decree (DNU, in its Spanish acronym) creating a new judicial channel to seize assets obtained through criminal activity such as corruption or drugtrafficking.
With Congress remaining closed for the summer, the move sparked a s u b s t a n t i a l backlash from the opposition due to the unilateral nature of the measure, which allows the Executive Branch to sidestep Congress, amid contentions that it is unconstitutional.
The DNU, which was published in the Official Gazette on Tuesday, essentially reforms Argentina’s asset recovery legislation (“extinción de dominio” in Spanish), the illegally obtained “assets” being defined as anything of economic value. Its core proposal is to separate the criminal procedure from the illegal assets, making their confiscation an independent judicial and civil process, which is common practice in countries with such a system.
Once a judge has declared that the assets were obtained illegally — meaning that the defendant cannot prove that they had them before the date of the alleged crime — the asset recovery would be implemented through the civil courts, for which the DNU outlines a new Ombudsman’s Office for Asset Recovery.
In practice, this means that assets may be taken by the government without a firm criminal conviction having determined that the alleged perpetrator is guilty (the main crimes cited in the DNU are drug-trafficking and corruption). The DNU establishes a 20-year scope for asset recovery that may be applied retroactively, something which has been deemed controversial. However, should there be a firm acquittal of the defendant, the state is obligated to return whatever it confiscated or, should that be impossible, the equivalent monetary value.
Jurists and opposition politicians have pointed out that the implementation of asset recovery without a firm criminal conviction contradicts the tradition of ‘innocent until proven guilty,’ the defendant’s constitutional right of presumed innocence, as outlined in Article 18. Moreover, critics have questioned why the onus of proving that possessions were obtained legally should fall on defendants instead of prosecutors.
Many this week also characterised the use of the DNU itself as unconstitutional, contending that there is no national emergency to justify its implementation. According to Article 99 of the Argentine Constitution, a DNU may be used “only when exceptional circumstances make it impossible to follow ordinary procedures foreseen by this Constitution for passing laws.” This is a common criticism, as presidents are often accused of abusing the emergency mechanism. According to the Chequeado fact-checking website, Macri has implemented an average of 15 DNUs a year since taking office, presumably because Cambiemos does not hold a majority in either chamber.
Article 99 also outlines what areas of governance the DNU cannot be used for, and therein lies another reason critics argue this DNU to be unconstitutional: it explicitly states that the measure cannot be implemented to regulate criminal matters. The government has rebutted such criticisms by saying that the issue is technically a civil one under this reform, but within the DNU, asset recovery was not thoroughly dissociated from the criminal procedure.
Opposition Victory Front (FpV) lawmakers, led by Agustín Rossi, characterised the DNU this week as “more of a campaign policy than a governmental one,” in reference to this year’s presidential elections. Posting on Twitter, Rossi accused the government of political manoeuvring.
“Today the IMF predicted economic contraction for Argentina. [The government] tried to cover up the bad news with a monstrosity which violates the Constitution,” he wrote.
BILL IN CONGRESS
This is not the first time that asset recovery has come up under the Macri administration: a bill broaching the subject has been languishing in Congress since passing the Lower House in June, 2016 (just after the spectacular news images of Kirchnerite ex-official José López tossing money-bags over a convent wall broke). The Senate attempted to pass a new bill in late 2018 which ultimately failed due to lack of consensus. Macri alluded to this in his press conference on Monday to justify the use of a DNU, while driving home the need for fighting crime and recover what had been stolen.
“The mafia has taken money that belongs to all Argentines. Money we need to keep fighting insecurity, to build schools and gardens. We are doing [this reform] via [decree] because its approval is urgent and the bills have been stuck for years, we have already waited too long,” he declared.
There are existing judicial mechanisms to recover assets, although there are very few cases in which they have been implemented without a prior criminal conviction. However, Macri qualified them as “too slow,” saying that the new measure “is a step forward so that the judicial system can ... advance faster to recover those assets.”
“Criminals have to give back every last asset they obtained illegally. They should know that in Argentina today, you must face the consequences of your actions,” he continued.
Others in the government have taken a similar hard-line approach, such as Patricia Bullrich. The security minister, who flanked the president at the press conference along with Justice Minister Germán Garavano, emphasised the need to “hit [drug-traffickers’] logistics to stop them from rebuilding” in an interview with Radio La Red . “I’d like to see how many legislators are able to overturn the law,” she added.
However, following the backlash this week, Interior Minister Rogelio Frigerio hinted that the government might bring asset recovery to the floor in an extraordinary session: “If there is consensus to debate the law, we welcome it. The truth is we haven’t been able to reach that agreement so far.”
The extraordinary sessions are set to begin in February, with issues of crime and safety at the forefront of the agenda — defined by this DNU and other government proposals such as lowering the age of criminal responsibility. Should the government fail to present such a bill in Congress, the new law would fall through only if both chambers of the Bicameral Commission were to reject it — an outcome considered by most to be unlikely.