Memorandum with Iran: the complete ruling on the dismissal of Cristina Kirchner | The basics of judges | Page 12

I agree

to

principle or system

legalist, also called specificity or

restrictiveness, the nullity of a flawed or irregular procedural act can only be declared when it is expressly provided for that act in the law. The national criminal procedure system receives this principle in art. 166 when providing "The procedural acts will be void only when the provisions expressly prescribed under penalty of nullity have not been observed." As an example of acts of this nature, the one regulated in art. 242 of the CPPN "They may not testify against the accused, under penalty of nullity, his spouse, ascendant...".

However, they coexist with this class of specific or exhaustive annulments, those of a general or generic order, that is, "totally open clauses that try to catch defects scattered throughout the criminal procedural law and, even, coming from other laws, according to particular rules". (see "Criminal Procedural Law" III. General Part, Procedural acts of Julio Maier, Editores del Puerto, Buenos Aires, 2011, 1st edition, p.37). That is why these annulments, as explained by Clariá Olmedo, can be systematized or gathered in a certain place of the code because they capture any act of the process, sanctioned or not singularly with annulment, that somehow contains a requirement considered by said generic norm. , or if it does not contain it, this same norm imposes it for the regular development of the entire process (see "Treatise on Criminal Procedure Law", Volume IV, procedural activity, Ed. Rubinzal-Culzoni, 2008, p.207). The rule that contains annulments of a general nature is provided for in art. 167 of the CPPN "The observance of the relevant provisions shall always be understood to be prescribed under penalty of invalidity:

1) The appointment, capacity and constitution of the judge, court or representative of the public prosecutor's office.

2) To the intervention of the judge, public prosecutor and plaintiff in the process and to his

participation in acts in which it is mandatory.

3) To the intervention, assistance and representation of the accused, in the cases and forms established by law.

It is important to note here that the first paragraph of this legal provision includes all the regulations regarding the regularity of the actions of the judge or court in terms of the office itself and those who personify it in relation to each process. That is to say, it includes the observance of the norms concerning the competence of the court and the maintenance of the impartiality of its members, all in relation to the cause in which they act.

But these general annulments may not be systematized or gathered in one place, but capture a series of acts corresponding to a moment of the process to a common type of procedural activity, which even, as Maier pointed out above, can derive also from other legal bodies.

Continuing with Clariá's schematization, an example of this class of annulments foreseen in a decentralized manner can be mentioned the observance of the rules that determine the jurisdiction of criminal judges, which are contained both in the procedural code and in the laws organic branches of the Judiciary (see op. cit. p. 209).

In the midst of these specific and generic annulments, there are, as a kind of tertium genus, the so-called virtual or implicit annulments that have the particularity that without express compulsion of the law and without the possibility of being framed as general annulments, they present conflict situations in the process that can only be overcome through the declaration of nullity; Paradigmatic examples of these cases are violations of prohibitions contained in constitutional norms, or non-compliance with strict requirements contained

in them, with evident prejudice to the regularity of the process and, therefore, clearly demonstrative of the inadmissibility of the procedure (see. Creus, op. cit. p. 46).

Now, this classification is superimposed on the one that distinguishes between absolute and relative annulments, which although they are not expressly consigned with that denomination in the procedural codes, the truth is that they arise as a consequence of the characteristics that they assign to one and another case in the different aspects of its operation. Thus, in absolute nullity the defect that affects the procedural act is more serious, therefore, its ineffectiveness is greater, correlatively, in relative nullity the defect of the act is less, consequently, so is its ineffectiveness.

Based on this difference, we can describe the characteristics of one nullity and the other at the same time, so while absolute nullity must be declared ex officio by the judge, although the parties can denounce them, in the case of relative nullity it can only be do it if there has been an excitement foreign to him, that is, that one of the parties involved in the process notices it and requests his statement; This entails that absolute nullity can be declared in any state and degree of the process, without taking into account the procedural moment in which it occurred, while relative nullity must be opposed in a timely manner, that is, within the terms peremptorily established by law for these purposes. At the same time, in the case of absolute nullity, any of the parties can denounce it regardless of whether or not the person doing so caused the null act or has or does not have an interest in the observance of the affected legal norms; The opposite happens with the relative nullity since it can only be opposed by those who have that interest since they have been harmed by that flawed act.

Finally, the procedural act affected by a

cause of absolute nullity, in principle, it is not susceptible to validation, that is, it cannot be corrected, unlike the flawed relative nullity that can be validated, therefore, correcting the defect by its express or tacit acceptance.

On the basis of this comparative table, it will be possible to notice in the articles of the CPPN, those provisions referring to both types of annulments. Thus, due to its text, it is inferred that in the second paragraph of art. 168 refers to absolute nullity: "Only the annulments provided for in the previous article (those of a general order) that imply a violation of constitutional norms, or when so established, must be declared ex officio, in any state and degree of the process expressly".

At the same time, arts. 169 and 170 do the same with the relative nullity by defining who can oppose it, at what procedural moment and in what way. This invalidity, as it is susceptible to correction, art.

171 refers to the ways to achieve this already described above.

It remains then, now, in the event that the irregularity is not validated or corrected, to determine what effects the declaration of nullity of the defective act produces. Art is responsible for this. 172 of the CPPN, by prescribing "...will nullify all consecutive acts that depend on it." This extension of the invalidity of the act declared void, in some cases occurs ope legis and in others it will require an express declaration of the court that has declared that nullity, with the consequent setback of the process up to the null act.

Now, as has been said, we are faced with two positions or interpretations of the new facts invoked and proven, which constitute a matter of grievance for the defenses and

They are, on the one hand, that of the Public Prosecutor's Office who postulated that there is no dangerous relationship in terms of judicial independence and impartiality, between the facts described (visits) and the procedural acts questioned. In his opinion, he deals with each of the circumstances to which the defenses alluded and breaks them down individually to later conclude, in essence, that it is not possible to know what the judges and the President of the Republic discussed in those numerous meetings.

In a diametrically opposed way, the defenses offer the Court an interpretation of the visits on which they base their grievance, referring to what they have described as a kind of "judicial persecution", which even exceeded the framework of these actions, but that in what interests us here was definitively sealed with the resolution of December 29, 2016. That decision was adopted according to this perspective, by judges who were not independent or impartial. But ultimately, from the knowledge acquired today of circumstances that took place at that time, in parallel to the moment in which the defenses presented their challenges, it is only possible to agree with them, since the fear of partiality that comes suffering and raising in the cause from that larval moment, mainly based on the suspicion of the existence of some kind of influence or interference of the National Executive Power, exercised at that moment by Mauricio Macri, on some members of the Judicial Power, in relation to causes criminal proceedings involving political rivals of the former.

For the

distinguished

representative

of

Public Ministry

Prosecutor, the

ignorance

what

we suffer about what happened in those meetings, results in a lack of certainty that, in his opinion, is enough to dismiss the fears of

bias alleged by the Defense. Thus, he considers the stage clear to be able to move towards the instance of oral debate.

Now, for the undersigned, the impartiality of the judge and the triangular shape of the procedural relationship, determines that it is essential to guarantee "...the alienation of the judge to the two conflicting interests: that of protection against crimes, represented by the accusation, and that of protection against arbitrary punishments, represented by the defense, which also correspond to the two purposes, perfectly compatible in the abstract, but always conflicting in the concrete which, as has been seen, justify criminal law..." (Ferrajoli, op cit. p. 581).

This impartiality of the judge regarding the purposes pursued by the parties must be both personal and institutional. Ferrajoli says: "First of all, it is necessary that the judge not have any private or personal interest in the outcome of the case: no one should be a judge or arbitrator in their own case and therefore -these are the words of Hobbes- no one should be arbitrator if for him there is apparently a greater benefit, material or spiritual, from the victory of one party than from the other" (Ferraloli, op. cit. p. 581).

In summary: the meetings existed; They were preceded by meetings held by one of the complaints with the then President Macri in order to talk specifically about this cause; The latter, in turn, had expressed in public that he welcomed the reopening of the file; That reopening was what motivated said meeting or meeting that took place on Friday, June 24; On Monday the 27th, the Chief Magistrate received for the first time one of the judges in whose hands the aforementioned cause was; and shortly after, issues of enormous procedural significance were sealed, all of which

presents a panorama that, even though it could be mere coincidences, logically and understandably undermined the trust that citizens must place in the justice system to which they submit, in such a way that “…they not only do not have, but do not even harbor the fear of having an enemy judge or in any way not impartial”. (Ferrajoli, op. cit. p. 582). These doubts, which this Court can only recognize, have legal consequences when what is at stake is not only the independence and impartiality of the judges as a guarantee, but also the general confidence that the decisions emanating from them are fair. .

The reasonableness of the fear of partiality that the defenses have alleged is not disconnected from the way in which these facts are interrelated, because even though all of them can be explained, following the Prosecutor's thesis, as a set of coincidences, and even though the solo analysis of each of the circumstances discussed herein, per se, probably does not constitute an affront to constitutional guarantees, however, the number, opportunity, and procedural events that occurred in said visits give rise to doubts and it blurs the necessary appearance of objectivity.

The Supreme Court of Justice of the Nation has said that impartiality is an implicit guarantee (art. 33 of the National Constitution) that derives from the republican form of government, from the accusatory principle, from the guarantees of due process and defense in court established by article 18 of the national Constitution, which is expressly enshrined in the international agreements that are part of the federal constitutional bloc by virtue of the express incorporation made by article 75 paragraph 22 of the national Constitution. Therefore, the guarantee of an impartial judge is a derivation and a complement to the principle of the natural judge (Treaty of

Criminal Procedure Law, Volume I, (Almeyra-Baez, directors; Tellas Coordinator, Thompson Reuters, Ed. La Ley, (2015) Chapter 1, items 1.6 to 1.8, inclusive).

Similarly, the right to be tried by an independent judge is a guarantee derived from and also complementary to the principle of a natural and impartial judge who, in a rule of law, imposes a limit on the State that it must obligatorily allow the judges to work freely and, consequently, it cannot interfere in their work. It is accepted that the natural, competent and impartial judge must be independent from all kinds of power, political pressure (from the State), judicial (from his superiors), social or public. The International Pacts establish the right to be heard by an independent court as the center of all judicial guarantees. Thus, article 10 of the Universal Declaration of Human Rights; the art.

14.1 of the International Covenant on Civil and Political Rights; and Article 8.1 of the Pact of San José, Costa Rica. Our Constitution imposes very specific rules in relation to the effective guarantee of the principle, when it says that in no case can the President of the Nation exercise judicial functions, arrogate knowledge of pending cases or restore the deceased (article 109 CN).

The European Court of Human Rights, as taught by the judge and professor Luis García3, declared that "in order to establish whether the court can be considered "independent", one must especially consider the manner of appointment, the duration of the mandate of its members, the existence of a protection against external pressures and the question of whether or not there are appearances of independence”. Whether a court is independent depends not only on the existence of separation of powers within the framework

3 Op. Cit., p. 274 et seq.

constitutional law of each country, but also other factors, such as the possibility of untimely removal, the payment conditions of judges, the possibility of other branches issuing instructions to judges, threats of transfer to other positions in the event that their decisions do not meet the expectations, instructions, and the possibilities of judges to issue binding decisions and enforce them.

In the words of Ferrajoli: “in order to guarantee the impartiality of the judge, it is necessary that he does not even have a public or institutional interest in the case. In particular, it is necessary that it does not have an accusatory interest, and for this reason it does not simultaneously exercise the functions of accusation, as, on the contrary, occurs in the inquisitive process and, albeit ambiguously, also in the mixed one. ” (op. cit. p. 582, the emphasis in bold is my own). From this perspective, it is not a minor fact that the intervention of the aforementioned magistrates was key in the reopening of a deceased case, for a reason that, according to some, would have the particularity of generating material res judicata (absence of crime ), when the process had also been deprived of fiscal impulse, that is, of official impulse.

We are aware that this issue is highly debated among experts. The effects caused by the dismissal for non-existence of crime has been the subject of different doctrinal and jurisprudential positions that have also been evidenced in the framework of these proceedings.

Thus, the Federal Court of Appeals -Room I- in the framework of case 777/2015, on September 27, 2016 when it approved the decision of Judge Daniel Rafecas not to reopen that investigation, it did so with the understanding that that what

that it had already been resolved about the non-existence of crime was firm.

There Judge Freiler referred to the issue and adopted the position according to which the dismissal of the complaint for non-existence of crime - provided for in article 195 of the Code of Criminal Procedure of the Nation did not make material res judicata, for which reason admitted the possibility of restating the case, as long as "his story is completed, trying to cover previous failures of adequacy" (CFCP, Room I, case no. 3956, reg. no. 5061, decision 5/27/02). Even from this perspective, he said that what could not be admitted was the sine die reiteration of attempts to "reopen" a case - which, as was happening according to that magistrate, had been archived after a meticulous and conscientious analysis of the denounced facts- , without incorporating into the new claim any new element of judgment that may reasonably arise.

The Prosecutor before the Federal Chamber of Cassation Javier De Luca in his opinion presented on April 20 in the framework of case 777/2015 withdrew from the appeal filed by his colleague in the previous stage given that in his opinion what was intended to investigate were conducts that did not constitute any crime.

Based on this, it affirmed that “a resolution that dismisses a complaint or that rejects a prosecutor's request for investigation is comparable to a final sentence, because it implies that the same facts denounced, under the same assumptions, They cannot be investigated by whoever intends to do so. Thus, he said that, although the rejection of a complaint does not have the same procedural nature as res judicata, the effects it produces from the point of view mentioned in this case are similar, because the line of argument for its rejection consists in the fact that the facts denounced They do not constitute a crime. There I cite the precedent CFCP, Chamber III, case No. 5994

"Fernández, María Beatriz and Inda, Tomás Juan A. s/ cassation appeal" complaint resolved on February 15, 2006, record no. 43/2006. The decision in the background is from 6/2/2007, registration 44/07.3.

Among the various authors who have dealt with the subject, Solimine, among others, after analyzing the oscillating jurisprudence in relation to this issue, concludes that the "dismissal for non-existence of crime does not have the value of material res judicata but rather formal which implies that they could be reopened if new factual elements appear or are introduced that allow a re-examination of the typicity of the denounced facts" (conf. Solimine Marcelo, "Dismissal for non-existence of crime in the nation's criminal procedure code, does it do something judged material?, in Tribute Studies to Dr. Francisco J. D'Albora, Ed. Lexis Nexis, 2005, page 484 and ss).

However, there are contrary positions, since another part of the doctrine maintains that, exceptionally, some cases of provisional dismissal relapsed in a criminal case can also be equated to a final sentence, particularly in those cases in which the facts denounced do not constitute crimes (conf. Carrió, Alejandro D. Constitutional Guarantees in criminal proceedings. Ed. Hammurabi, 2012, p. 52 and ss).

In effect, in precedents such as “Arisnavarreta” (Rulings 306: 344) and “Zadoff” (307:784), the CSJN already deviates from the general rule according to which provisional dismissals do not constitute a final judgment under the terms of the art. 14 of Law 48 when what is involved is facts that, analyzed legally, do not constitute crimes and this definitively seals the fate of the appellant (complaint in both cases).

The indication that is made in “bold” has particular relevance, in our sub-examine,

because the facts themselves (the signing of an MOU with the Republic of Iran, its clauses, especially the controversial art.7, etc.), are neither questioned nor denied. Its existence is, one could say, a "public and notorious" fact, which would even make it possible to dispense with the production of evidence in this regard. What has been part of the discussions, throughout the case over and over again, at different times, is precisely the legal analysis of these facts, in the terms of the precedents "Arisnavarreta" and "Zadoff" cited above.

Returning to the previous argumentative path, the prosecutor in his speech made reference to the reasons according to which we would not be facing a case in which the doctrine established by the highest court in the "Llerena" ruling, which He has also been cited (although in the opposite sense) by the defenses in support of his position.

We have to differ with the position of the Public Prosecutor's Office on this point for the reasons that will be explained below.

It should be recalled preliminarily that what was discussed in that precedent was the fear of partiality felt by the defendant by virtue of the fact that the challenged judge had already issued resolutions against him to advance in the process in the preliminary investigation stage and in the exercise of those functions, their alienation to the case could be objectively affected.

The Court clarifies that the underlying idea in a challenge of these characteristics is not that the judge is actually biased, but that it could be suspected that he would be, due to the accumulation of investigative and decision functions.

For this Court, what is at stake is an objective guarantee that can be violated without

need to enter the field of the personal conditions of the questioned magistrates.

In this context, having reintroduced the criminal action in some way, in the absence of a prosecutor, implied the exercise of “an accusatory interest” since it entailed the exercise of the accusation functions. Therefore, the subsequent intervention of the magistrates, now in their seat as judges of Chamber IV of the Federal Chamber of Criminal Cassation, places the problem in terms that are reasonably analogous to those of the well-known "Llerena" ruling of the Court Supreme Court of Justice of the Nation, with the legal consequences that must naturally derive from there.

In this regard, we can only share that "the power to remove judges suspected of partiality should not be confused with an attack on the honor or honesty of judges...the fear of impartiality is an objective defect in the procedure and not a subjective or personal bad quality of the judge" (opinion of the Attorney General of the Nation in re "Zenzerovich", Rulings: 322:1941).

From the ruling cited by the Public Prosecutor's Office, it also emerges that the guarantee of impartiality, in addition to not being a very personal attribute of the magistrate, is not an absolute, but an "attempt to approach it in practical life, which is protected with a series of forecasts, always historically contingent, therefore, relative to a historical time and a determined system, whose content is linked to the attempt to approach that ideal or to deviate from it".

This was the purpose of revealing the context in which the questioned decisions were made, since it is not a guarantee that can be analyzed in the abstract. At this point, it is where it makes sense, for example, the interest of the National Executive Branch of

at that time in certain matters of the judiciary

-which reached the ears of the special rapporteur of the United Nations Organization and expressed his concern in this regard- and of this cause in particular. This context, without a doubt, supports the fear of partiality that the visits themselves already represent.

What we are interested in pointing out here as an additional argument to those already exposed is that, due to the scope and content of the resolution of December 29, 2016, the claim of the Defenses is plausible referring to the fact that those judges, if they wished to attend such visits, would have refrained from issuing it or, at least, once it was issued, from continuing to intervene a posteriori, in order to avoid a situation that, further analysis, could be seen as analogous to the accumulation of functions that the "Llerena case" tells us about, when the Court alludes to the suspicion or prejudice that the person who acted in the preliminary investigation might have regarding the matter to be decided, since it promoted the process to reach the trial, which in a case like the one analyzed here, was verified since the decision of December 29 was the one that relaunched this case, which at that time was dead, since it had been struck down by the non-existence of the crime object of the complaint, and also, lacked momentum from the Public Prosecutor's Office.

The fear of partiality that defenses claim today results, in short, from the fear of having been treated unfairly. It cannot be ignored, in the development of this analysis, and directly related to the topics mentioned in the previous paragraph, what was the context at the time when the reopening of case 777/2015 was decided. A series of circumstances, all of them referring to various actions carried out by the government of President Macri on different sectors of the Judiciary,

had given rise to a formal complaint by a group of defense attorneys before international organizations.

These complaints, far from being dismissed, were accepted, and gave rise to a strong document issued by the United Nations Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán, in the detailed report he sent to the national government on November 1, 2019, which this Court cannot ignore.

In said report, concern was expressed regarding certain information received qualified as "sufficiently reliable", regarding the alleged existence of a "systematic and structural plan to intimidate the Judiciary of the Argentine Republic through a series of concatenated acts of intimidation and pressure”. These acts would have undermined the independence of the various bodies that make up the Argentine judicial system (the Judiciary, the Public Ministry and the Magistracy Council) and hindered the possibility of impartial action in decisions that affected the interests of the Executive Branch, as well as " disciplining" magistrates who have issued resolutions contrary to the will of the Executive.

The cases to which the Special Rapporteur drew the attention of the Argentine State are the following:

a. the use of the Council of the Magistracy, especially the Commission for Discipline and Accusation, to persecute magistrates who dictate resolutions against the interests of the Executive Power, as well as the use of the Commission for the Selection of Magistrates for the selection of certain judges, through the stoppage of contests that are won by applicants not related to the government and the transfer of magistrates linked or close to the ruling party, without respecting the requirements established in the legislation.

At this point, it requested information from the Argentine State regarding the subrogation of magistrates that did not comply with the legislation, alleging that they affected the guarantees of immobility, intangibility and independence of the magistrates.

b. The appointment of two judges to the Supreme Court of Justice of the Nation by decree: Mr. García Sayán expressed his concern about the appointment of judges Carlos Rosenkrantz and Horacio Rosatti to the Supreme Court of Justice of the Nation, resolved on December 2015 by Decree no. 83/2015. Said appointments were made without respecting the process for the selection and appointment of Supreme Court judges established in the legislation, such as public hearings, the participation of civil society, or the approval of the National Senate. As stated in the report, such appointments, because they were made in "precarious conditions of legality" could suggest that said magistrates were not free of political connections or influence.

c. The attack on the Attorney General of the Nation: The Special Rapporteur requested information from the Argentine State on the allegations that the government of Mauricio Macri and other actors had repeatedly requested the resignation of Alejandra Gils Carbó and tried to remove her using various strategies that They included attempts to reform the Organic Law of the Public Prosecutor's Office and statements about the intention to carry out institutional reforms by Decree of Necessity and Urgency, among others. All this was framed in an intense media campaign aimed at

discredit the Prosecutor, in the

that, according to

it

that is stated in the report, would have

participated

the

Grupo Clarín and La Nación.

d. The appointment of Judge Culotta in the Electoral Competition of the province of Buenos Aires:

The report calls attention to the appointment of magistrate Culotta, Federal Judge of Tres de Febrero to cover a subrogation in the electoral competition of the Province of Buenos Aires. This decision of the Council of the Magistracy, which is questioned as arbitrary and discretionary, gave the appointed judge competence in electoral matters in the entirety of the most important electoral district in the country at the time of the national elections in 2017. According to the information posted As revealed by the Special Rapporteur, Judge Culotta had friendly ties with President Macri, with his personal lawyer and with the legal and technical secretary, Pablo Clusellas. The rapporteur highlighted that, once the national elections and the recount of votes were carried out, Judge Culotta requested that said subrogation not be renewed.

e. The appointment of Judge Mahiques in the Federal Chamber of Criminal Cassation: The report mentions the particularities and, above all, the speed of the transfer of Judge Mahiques to the Federal Chamber of Criminal Cassation decided by the Commission for the Selection of Magistrates of the Council of the Magistracy and endorsed by the Executive Power. The links that would exist between Judge Mahiques and the provincial and national government of that time are also revealed.

f. The appointment of judge Bruglia in the Federal Criminal and Correctional Appeals Chamber: the federal oral court judge Leopoldo Bruglia was appointed to cover a subrogation in the Federal Chamber without specifying the reasons for his selection, nor carried out the constitutional procedures, laws and jurisdictions that endorse it. Some time later, the Council of the Magistracy approved his definitive transfer without meeting the requirements established in the legislation related to the procedure of

appointment of judges, such as Senate approval, validation of their knowledge, and holding a public background check.

g. The attack on labor court judges and lawyers: The report mentions a "systematic attack" against labor court judges who issue sentences contrary to government interests, as well as against those who litigated there. These attacks were associated with others from the main media, who also have interests in other areas of the economy and, therefore, would identify labor law and the judges of said jurisdiction as an obstacle to their interests.

h. The manipulation of prosecutors in the case "Correo Argentino SA s/concurso preventivo": The report refers to the untimely replacement of the prosecutor who was investigating the mentioned cause, in which former President Macri is accused, by a close prosecutor to Mauricio Macri. Also, to the attempts to discredit prosecutor Boquín in the media.

i. The context of interference in the Judiciary: The report draws attention to the public intimidation suffered by several magistrates who issued decisions that questioned and/or suspended the execution of measures adopted by the government.

j. The attack on the federal judge Dolores Alejo Ramos Padilla: The Special Rapporteur also questioned the Argentine State by virtue of the reaction of the government of Mauricio Macri, which would have sought to discredit the magistrate and reduce his institutional support by virtue of the decisions adopted in the case in which that an alleged network of illegal espionage and extortion is being investigated, with possible connections with public officials -prosecutors, federal and provincial judges, and executive branch officials- and

journalists. In addition, it was mentioned that the request for impeachment against Judge Ramos Padilla would have involved an attempt to influence and obstruct a relevant judicial case, since there would be no argument to justify "poor performance", "gross negligence", "manifest arbitrariness” or “repeated breaches of the Constitution” that would lead to dismissal, as required by law.

The Special Rapporteur, in addition to expressing his concern about the points made, communicated that it was his obligation to try to clarify those allegations and requested the cooperation of the Argentine State in order for it to provide information on the allegations contained in the report and adopt all measures necessary to protect the rights and freedoms of the aforementioned persons and to investigate, prosecute and impose appropriate sanctions on any person responsible for the alleged violations of judicial independence.

As can be seen, beyond what everyone might think, there were suspicions of interference by the Executive Branch in the Judiciary as of the date of these events, which were collected in international instances. Nor can this Tribunal fail to note that, as a result of the facts discussed in these hearings, and in light of the evidence that has been discussed here, Dr. Colombo took a step of great institutional significance, such as having filed a criminal complaint against Judge Borinsky in order to investigate whether any of these facts constituted or could constitute a crime of public action. The track record and background of Prosecutor Colombo, whose professional seriousness is out of the question, do not allow this information to be taken lightly.

As Ferrajoli once again points out “…the two parties in the case must contend in a position of

equality so that the impartiality of the judge is not even psychologically compromised by his imbalance of power and ambiguous solidarities, interferences, or confusions between prosecution functions and prosecution functions are not created” (p.583). The nature of the intervention adopted on

December 29, 2016, in the context that surrounded it, it was at least incompatible with the subsequent actions of those same judges, generating a reasonable fear of partiality that the defendants express, here today, in the form of a grievance.

Now, based on these premises, it can be concluded that a judicial act in a criminal proceeding that incurs the infringement of a constitutional norm, constituting in turn a guarantee -in case the independence and impartiality of the magistrate-, and/ or in the violation of an explicit prohibition contained in a norm of the same hierarchy -for example, allowing the interference of political power in judicial cases-, without a doubt, puts us before the hypothesis of a nullity assumption of a generic order, of a absolute and, at the same time, of virtual or implicit nullity, which will inexorably lead to its ineffectiveness and inability to produce the desired effects at the time of its issuance, extending this invalidity to all consecutive acts that depend on it (arts. 167 subsection 1° , 168, second paragraph and

172 of the CPPN).

In the words of Julio Maier "...the fact that the entire procedure consists, at least to a good extent, in a legislative regulation of constitutionally provided guarantees -or in international treaties, today with constitutional hierarchy between us- ( express condition of the absolute nature that is awarded to the effect and the corresponding annulment of the act) have led to determine judicially as a rule the absolute nullity, declarable ex officio -when according to the system, it is the exception- and the return of the procedure until the

faulty act." (see ob. cit. p.44). This, in the present case, means that the Defender Dr. Lucila Larrandart is right when, finishing her speech, she maintained that "...for this the cause must go back to May 2015, return to the archive and never come out again ”.

colleagues.

Conclusions. My adherence to the votes of the

In conclusion, I understand that it is not

it is necessary to delve into the technical legal issues that, according to the hypothesis of the complaint opportunely filed by the Prosecutor Alberto Nisman, postulate the existence of a link between the present proceedings, based on the signing of a Memorandum between the Argentine Republic and the Islamic Republic of Iran in January 2013, and the attack on the AMIA headquarters, which occurred on July 18, 1994, since it does not constitute the object of this resolution, but it is enough to understand that the consequences of the AMIA case, that has been recognized as the "most complex in the judicial history of the country" (Rulings 332:1210) have been projected in innumerable files that, for different reasons, have not achieved -in general terms- a minimum standard of efficiency in what makes his investigation and judgment. What's more, all this judicial framework has undermined society's confidence in the institutions that make up our system of government, but particularly in those of us who are called to impart Justice. From this line, one of the purposes of criminal proceedings, in the words of Claus Roxin, is the restoration of legal peace that, more than a quarter of a century after the attack, does not seem to have been achieved.

The institutional significance of these failures exceeds the interest of the parties (relatives of the victims, whether they are complainants or not) and has provoked in society as a whole, a genuine and

reasonable disagreement with the judiciary, as a result of the impunity they perceive around those responsible for that blasting, but also because of the events of unparalleled institutional gravity aired in the different cases created around such a crime. We must stop here.

The first of the milestones is undoubtedly the sentence of the Federal Oral Court no. 3 in extenso of October 29, 2004, in which the annulment of all proceedings from the order that was issued on May 31, 1995, which ordered the investigation of the so-called “Brigades” case, was declared null and void. The invalidity of all proceedings was based on the violation of the guarantee of impartiality with the understanding that “the pseudo-investigation carried out by the magistrate judge, accompanied by national and provincial officials of Buenos Aires, only sought to give credibility and legality to an architecturally armed hypothesis” (see p. 2943 et seq. of the sentence handed down in case no. 487/00 “Telleldín, Carlos Alberto and others s/homicide qualified - attack on the A.M.I.A." and its accumulated numbers 496/00, 501/01 and 502/03). These irregularities, in the opinion of that Oral Court, were consented to and guided by the judge in the case, among which it is worth mentioning the investigative statement of July 5, 1996 provided by Telleldín in exchange for money (see p. 3060 of the judgment already cited). This nullifying temperament was later confirmed by Chamber II of the Criminal Cassation Chamber and by the CSJN in a partial way, since it left the section of the investigation safe from the exclusion rule, prior to the moment from which it had been considered that the cause was null.

A simple reading of what was the first relevant ruling on the issue alerts us to extraordinary situations that put into question the performance of its main judicial and governmental actors.

The matter does not end there. As a consequence of that sentence of the Federal Oral Court no. 3 a new cause was formed to investigate the irregularities there noted. After three years of oral and public trial, on September 28, 2019, the Federal Oral Court no. 2 described the facts that were the object of this process as constituting serious violations of Human Rights (arts. 31 and 75 inc. 22 of the National Constitution, 1 and 25 of the American Convention on Human Rights, I , II and IV of the "Convention on the Imprescriptibility of War Crimes and Crimes against Humanity", according to laws 24,584 and 25,778) and sentenced a judge for the crimes of embezzlement, prevarication, concealment for personal favor and rape means of evidence and two prosecutors for breach of the duties of the public official. It is not minor or indifferent data that in said case a former president of the Nation, in exercise of functions at the time of the bombing of the AMIA headquarters, who had also been accused, has been prosecuted (and finally acquitted). And that, furthermore, the federal judge who had been, at that time, the natural judge of the case, was sentenced to a severe custodial sentence. The institutional gravity is plain to see.

Finally, as a consequence of the decision of that Federal Oral Court no. 3 another event of institutional significance occurred: the creation of the UFIAMIA whose purpose was to assist in the processing of the case of the National Federal Criminal and Correctional Court 6 and in all others, which were related to that fact, as well as those related to the concealment or obstruction of the action of justice from which evidence leading to the same objective could emerge (see resolution PGN 84/04). On that occasion, two Prosecutors were appointed to lead that unit, one of

they are the late doctor Alberto Nisman, whose complaint gave rise to one of the causes that make up these actions.

The investigation into the attack that occurred in 1994, which is currently being processed, is delegated there. As a result of the decision adopted by the Supreme Court of Justice when it left the section of that investigation safe, which gave rise to the case followed by the delivery of the famous white van, whose debate culminated in December 2020, with the acquittal of Carlos Telleldín.

The seriousness of the issues discussed transcended the local sphere and brought as a consequence, under the presidency of the then President of the Nation, Néstor Carlos Kirchner, the acceptance of international responsibility before the Inter-American Commission on Human Rights by the Argentine State and the recognition, in what is relevant here, of the existence of a concealment of the facts and a serious and deliberate breach of the function of adequate investigation of the crime (see record of dated March 4, 2005, signed at the hearing held within the framework of the 122nd regular session of the Inter-American Commission on Human Rights, in petition No. 12,204 from the registry of said Commission and PEN Decree No. 812/2005).

What has been stated so far demonstrates the instability of the judicial path that has characterized, in general, any case directly or indirectly linked to the attack on the A.M.I.A headquarters, while at the same time making visible the responsibility that weighs on this Court in the face of what that you are called upon to solve. Nor does it escape the undersigned that an attempt has been made to draw a line or hypothesis between the complaint that gave rise to case 777/2015 and the death of prosecutor Nisman. Thus, in the resolution issued by the Hon. Federal Chamber, in the vote of judges Martin Irurzun and Leopoldo Bruglia, it was said: "The moment in

that the crime was committed, the degree of organization evidenced and the breadth of coverage place the development of the event in a reasonable functional perspective, since all of them are presented as evidence of sufficient entity to seriously support the hypothesis that the fate of Natalio Alberto Nisman, who worked as Prosecutor of the Fiscal Unit for the Investigation of the Terrorist Attack perpetrated against the AMIA headquarters, was decided as a result of the nature, seriousness and scope of the complaint that he presented a few days before. (Considering IV).

In point VII. 5. a) of said resolution it can be read: “It cannot be overlooked that the murder of Dr. Nisman occurred four days after having made the aforementioned complaint and hours before going to expose it before the National Congress, a circumstance that logically obliges us to delve into the investigation in the probable understanding that the death of the Prosecutor occurred as a direct consequence of the specific action he adopted in the framework of his function, as head of the Prosecutor Investigation Unit of the terrorist attack perpetrated against the AMIA headquarters.

The background described, in short, the enormous seriousness of the many hypotheses that have been woven on the occasion of the MOU, cannot be omitted in the analysis that must be carried out by this Court regarding the motions for annulment filed by the parties, especially those that again involve judicial action, the interference of the National Executive Power in a judicial investigation and the independence and impartiality of the magistrates at key moments of this investigation

Experience indicates that holding another debate of the span of the one that should be held in in which more than three hundred witnesses have been admitted witnesses, without clearing the

presentations filed, would once again generate an expectation that would certainly be frustrated if its result, after another extensive and exhausting oral and public trial, were a new annulment not dealt with, despite being notified to the Court before the start of the debate. In addition, it would imply unnecessary and avoidable suffering for the people who are accused.

But there's more. As rightly pointed out in the vote of the Compelled judge, Interpol canceled the notifications in 2005 as a result of the declaration of nullity of the AMIA case decreed by the Federal Oral Court no. 3, since Interpol considered that the legal validity of the criminal procedure had been affected, which would be the enabling budget for the publication of red notices under the terms of art. 81 of the Regulation of said entity. Consequently, there being substantive reasons to resolve the fate of this case, I consider it risky that it be decided on the basis of the annulment motion introduced by the parties, as the bound judge rightly points out "not for lack of entity of that one", but in order to avoid any risk for said "red notices", in a case in which a cover-up action is accused, precisely referring to the 1994 attack in which the Iranians object of such alerts are still accused and investigated. .

This was also the spirit of what was resolved on June 18 when, given the tenor of the proposals, the institutional inconvenience of advancing without previously resolving them was repaired. There, the moment in which the annulments had been filed was considered, that is, the prelude to the debate and the need for them to be dealt with "without delay, exhaustively, self-sufficiently and definitively".

Throughout these hearings, other issues (substantive) have been addressed and in relation to which this Court has been requested to

Review in advance of any further decision to move to an oral and public trial. On them, my colleagues have poured medulous and extensive votes, to which I will refer, to share them in substance, as well as the solution they propose, without prejudice to the clarifications and emphasis on some points that are detailed below.

Summarizing, I adhere to the votes of my colleagues, first of all Judge Daniel Obligado, in particular points III and IV of his presentation, to which I add, highlighting, what the current Ambassador expressed in these hearings Argentine in Moscow, Dr. Eduardo Zuaín, when he said: "(all of this) has affected and affects the image of the Argentine Republic (...) how calmly is a foreign diplomat going to sit down to talk with an Argentine diplomat knowing that that conversation can be horrible proof of the crime of treason, which is what happened and what happened to me; Personally, I was part of a diplomatic delegation that had two conversations with the Iranian counterpart, but they were not hidden, it was with the day, time, place and published with press releases before and after both meetings, official releases from the Foreign Ministry. Well, those meetings were put up as blatant tangible proof of treason. How calmly would a foreign diplomat sit then, thinking "I can't talk to you because at any moment I'll end up in an Argentine criminal court" and it also caused damage, an impact on the daily work of Argentine diplomats, because today will say, thanks to this process, the phrase "I do not want to go through Comodoro Py" is installed, so the telephone is preferred to the mail and the personal mail is preferred to the official mail and the official means is preferred to an official communication that can be the cables from an embassy or a memo. It is avoided by all possible means to use the officiality, the means that the career gives us, because

They are afraid that this will happen to them, because they saw the official communiqués from the Foreign Ministry in the country's most widely circulated newspapers (published), but they also saw the official email from the Vice Foreign Minister as irrefutable proof of "treason against the homeland." With what force can we ask those who are beginning their diplomatic career to risk an opinion or to start a diplomatic conversation with another country if it can end calmly and quickly as I have just described, in an oral trial, prosecuted (...) that has also done enormous damage to the race."

It is imperative, I believe, that legal peace be reestablished quickly, in all instances that have to intervene, and with absolute clarity, once and for all, in this case.

I also adhere and endorse the reasons stated by Judge Michilini in his vote, especially those referring to the application of art. 361 CPPN; to the approval of the Memorandum in accordance with the internal provisions and applicable international law; unilateral acts of the contracting states; and everything that he has developed from his analysis of subsequent political acts.

Likewise, and in reinforcement of the arguments expressed by both referring to the relevance of issuing ourselves in advance, I want to expressly state my position -which does not disagree at all with that of my colleagues- regarding the requirements, which I consider fulfilled, for treat as a Court the different proposals brought by the Defenses as exceptions of lack of action.

In this sense, it should be remembered that the article

361 of the CPPN –in what is relevant here- alludes to the following supervening circumstance: the existence of new evidence by which it is evident that the accused acted in a state of non-imputability, or there exists or supervenes an extinctive cause of the criminal action and to verify it debate is not necessary (highlighting belongs to me), situations in which

it corresponds to dictate the dismissal.

Regarding the processing of this case, I must first refer to the repeated reports sent by Interpol in 2020 to this Court and to the Prosecutor in the case, from whose reading it can be extracted that its Secretary General Jürgen Stock , definitively sealed the possibility that both Ronald Noble and Joel Sollier would testify as witnesses in a possible debate.

This decision of the body, which is based on its interpretation of the duty of neutrality contained in art. 3 of its Statute is relevant, for the purposes that are of interest here, not only because of its content, which in a way was already included in the case since long ago, but because it implies that the possibility of receiving testimonial statements from Joel Sollier and Ronald Noble. Neither now, nor in anticipation of the trial, nor in a conjectural debate, taking into account the terms used: "The General Secretariat wishes to recall, as it has done in previous requests, that both INTERPOL and its staff enjoy privileges and immunities, among which are included the inviolability of official files and documents, as well as immunity from jurisdiction for acts carried out in the exercise of their official functions. Likewise, the General Secretariat wishes to reiterate that the organization will not intervene in judicial instances related to this case. This position is constant, as the Argentine authorities have been reminded on numerous occasions”, and refers to the communication sent to this Tribunal. So that holding it, in the future, will yield little in this regard, since the statements that are added as informative evidence will have to be valued, now and/or in the future, for their current and immanent content. These reports also settled another core issue in this case and that is that the red alerts opportunely imposed continue to be in force without a doubt, since

The current Secretary General of INTERPOL told us: “The General Secretariat would like to take this opportunity to assure you of the status of the red notices published in this case after the decision of the General Assembly at its 76th session (Marrakech , 2007) remains unchanged. Therefore, Red Notices remain registered in INTERPOL's databases and are visible to all member states."

To clear up any doubt, it is worth considering the forcefulness of these new elements, especially the letter sent to the Public Prosecutor's Office:

There is also a second new and supervening element: the dismissal that Judge Martínez de Giorgi issued to Ronald Noble on October 14, 2020.

Yes, as they have been postulating at least the

claims, Ronald Noble must be seen as a central cog in the hypothetical cover-up, so his dismissal has a direct relevance in this case; It is a new probative element, which took place during the term of the supplementary instruction (which is not yet exhausted), and must be valued in the terms recently expressed by Chamber I of the CFCP in the case popularly called "Future Dollar ”, given that what was decided there affects the manifest atypicality of the facts that are the subject of this case.

In another order of ideas and always in light of the procedural norm that is cited here, all the disquisitions that can be made regarding the objectives, the legal nature and the effects of the MOU, as an instrument of international law; the legal nature of the "Truth Commissions"; the binding or merely recommendatory nature of their opinions, are all matters of pure law. In this way, the holding of oral and public debate can offer nothing in this regard, which enables us, of course, to assess them in advance.

The same occurs with the accusation related to the crime of "treason against the homeland" that even today is still sustaining one of the complaints, at its request. I think that in this case it is explained in the most obvious way that the feasibility of enabling the instance of art. 361 CPPN, to clear up the claim that the conducts charged under the heading of "treason" are manifestly atypical; if there was a conflagration; if it was about acts of aid to the "enemy", in the extravagant terms supported by the late judge Bonadío, especially if we note that in the corresponding offer of evidence, the accusing party that maintains this legal qualification, did not offer any evidence that seems designed to prove such a serious accusation.

Therefore, even though the proposals for annulment of all proceedings filed by the Defenses are pertinent (directed against the decision issued on December 29, 2016 in case no. 777/2015 by which the CFCP, Chamber I, annulled the dismissal of the complaint that gave rise to the process (January 2015), and that ordered the referral of the case to a new magistrate for its continuation, and of all the proceedings in case No. 14305/2015 and its accumulated number 14383/2015, from its inception and up to the

May 30, 2017, the date on which the unified procedure for both was ordered, was null and void; and everything that has been done as of May 30, 2017; for having violated the guarantee of an impartial judge that derives from the implicit rights of art. 33 of the National Constitution, due process and defense in court (art. 18 of the National Constitution, expressly enshrined in articles: 26 of the American Declaration of the Rights and Duties of Man, 14.1 of the International Covenant on Civil and Political Rights , 8.1 of the American Convention on Human Rights, 10 of the Universal Declaration of Human Rights), I agree with my colleagues that, first and foremost, the examination of the issues of prior and special pronouncement, of substance, that have been brought to consideration, to which I refer in honor of brevity and for which, in essence, we arrived at the following unanimous conviction: the Memorandum of Understanding with Iran, regardless of whether it is considered a success or political mistake, it did not constitute a crime.

In short, on one side or the other, I agree with my colleagues that a dismissal should be declared with respect to all the accused persons, expressly mentioning that the formation of this case did not affect the case in any way. his good name and honor (art. 336, sub.3, and final paragraph, C.P.P.N.), this last mention, which I consider should reach the former Chancellor of the Argentine Republic,

Héctor Timerman, as expressly requested, and notwithstanding the opportunely decreed extinction of the criminal action due to death. This is so, because his personal career deserves it, and especially because of the particular nature of the processing of this case, especially the unfair and unnecessary preventive detention that was ordered, which had a more infamous purpose than procedural. Such is my vote.

Judge Daniel Horacio Obligado said:

I. Introduction to the problem raised

On September 2, 2004, in the framework of case No. 487/00, titled “Telleldín, Carlos Alberto and another s/ homicide”, the Federal Criminal Oral Court No. 3 of this Federal Capital , decided to declare the annulment of all the proceedings in the trial that was carried out to determine criminal responsibility for the attack suffered by the Argentine Israeli Mutual Association (AMIA) in Buenos Aires, on July 18, 1994, which caused the death of 85 people and left more than

150 wounded. As a consequence of that decision, the Court was forced to dismiss certain defendants who were part of what was called the “local connection” that would have participated in the perpetration of the attack against the AMIA headquarters.

The annulment and the consequent dismissal decreed against the Argentine defendants brought as a consequence the interruption, by Interpol, of the notifications of international capture that weighed in the case against the rest of the foreign defendants –mostly of nationality Iranian – who were not legally affected by the annulment and, therefore, their arrest warrants remained in force and they remained at large.

Reassigned the investigation of the case already under No. 8566/1996 to the National Court in

Federal Criminal and Correctional No. 6 of the Federal Capital –after dismissing judges Juan José Galeano and Claudio Bonadío–, Judge Rodolfo Canicoba Corral summoned eight defendants of Iranian nationality and one Lebanese nationality: Ali Akbar Hashemi Bahramaie Rafsanjani –President of the Islamic Republic of Iran at the time of the attack on the AMIA headquarters–, Ali Fallahijian –Minister of the Interior, Security and Intelligence at the time of the attack–, Ali Akbar Velayati –Minister of Foreign Affairs–, Mohsen Rezai –Head of the Revolutionary Guard of the Islamic Republic of Iran–, Ahmad Vahidi –Head of the Al Quds Force and Iranian Defense Minister, currently Minister of the Interior of that country–, Mohsen Rabbani –Cultural Attaché of the Iranian Embassy in Argentina–, Hadi Soleimanpour – Iranian ambassador in Argentina–, Admad Reza Asghari – third secretary of the Iranian embassy in Argentina– and Imad Fawaz Moughnieh – a Lebanese citizen and head of Hezbollah's Foreign Service at the time of the attack against the headquarters of the AMIA-. Not having appeared before the Argentine courts, and after declaring the attack on the AMIA headquarters a crime against humanity, on November 9, 2006, the Argentine magistrate ordered the national and international capture of those named in order to impose the charges against them. against him – an act impossible to do without according to Argentine procedural laws – for eighty-five aggravated homicides and more than one hundred and fifty cases of minor and serious injuries, as well as aggravated damages. To this end, the authorities of the Islamic Republic of Iran were urged to facilitate the detention for the purpose of extradition of those named and, as regards the present case, the Interpol Department of the Argentine Federal Police to urge the international police cooperation for his capture. As a consequence, the Buenos Aires National Central Office

Aires de Interpol proceeded to request the issuance of

"red notices" against those required.

The process of processing international arrests led to a new intervention by Interpol, beginning a long contentious administrative process before the entity, between the Argentine Republic and the Islamic Republic of Iran, because the latter country refused to extradite to its citizens required by Argentine justice. After intense efforts by the Argentine government and the Prosecutor in charge of UFI-AMIA, Alberto Nisman, on January 22, 2007, the Executive Committee of Interpol endorsed the publication request of the OCN Buenos Aires. This decision, which was appealed by Iran, ended up being confirmed on November 7 by the General Assembly of the body that ordered the registration of their arrest requests, although only in relation to five of the nine required. In this way, the arrest warrants were incorporated into Interpol's I-24/7 system, which were registered as a "red notice" in relation to Fallahijian, Rezai, Vahidi, Rabbani, Asghari and Moughnieh. This meant that priority was given to the search for citizens in any part of the world, thus perfecting the international capture procedure ordered by the Argentine justice system.

Despite the validity and publicity of the international arrests, until now it has not been possible to summon the foreign defendants and, regardless of the assessments that may fit regarding their degree of progress, the investigation into the AMIA case has not it could be brought to trial as a result of the non-appearance of the foreign defendants and the impossibility of investigating them.

On January 27, 2013, the Argentine and Iranian authorities announced the signing of a bilateral agreement signed by the Foreign Ministers of both countries in the city of Addis Ababa, Federal Democratic Republic of Ethiopia, in order to

facilitate the judicial cooperation of the government of Iran in the AMIA case that would allow the questioning in Tehran of the suspects sought by the Argentine justice system, thus giving rise to the so-called "Memorandum of Understanding between the Government of the Argentine Republic and the Government of the Islamic Republic of Iran on issues related to the terrorist attack on the AMIA headquarters in Buenos Aires on July 18, 1994” –hereinafter “Memorandum” or “Memorandum of Understanding”–. Said instrument had to be approved by both countries through the bodies constitutionally empowered to do so.

Despite prompt approval by the Argentine Congress, the Memorandum of Understanding was prosecuted in our country by the Argentine Israelite Mutual Association (AMIA) and the Argentine Israelite Mutual Delegation (DAIA). As a consequence of this, on May 15, 2014, revoking the first instance decision, Chamber I of the Federal Criminal and Correctional Chamber of the Federal Capital admitted the deducted amparo action and declared the unconstitutionality of the international treaty.

In order to decide, the Chamber considered, in substance, that with the signing and approval of the Memorandum of Understanding, the Executive Power and the National Congress exceeded their constitutional powers assuming specific commitments and obligations on the AMIA case whose exclusive jurisdiction corresponds to the natural judges of the case, pointing out that the action of the so-called "truth commission" provided for in the bilateral agreement, on the one hand, constituted an undue interference in the sphere of action of the Judiciary within the framework of an already existing process and, on the other, it violated the right to the truth provided for in the American Convention on Human Rights by excluding the victims and family members of the AMIA attack from participation (cf.: case CFP 3184/2013/CA1, titled " AMIA s/ Amparo-Law 16.986”,

judge Farah's vote (Consid.: Fourth, point “I”, and Sixth, point “I”); id vote of judge Ballestero (Consids.: XIII to XVI); available at (https://www.cij.gov.ar/nota–13397–La–C–mara–Federal– declar––la–inconstitutionalidad–del–Memor–ndum–con–Ir– n–.html at 29 /09/21). The decision, which was initially appealed by the National State, was subsequently withdrawn by the State's lawyers and became final on December 22, 2015.

On January 14, 2015, the Prosecutor in charge of UFI AMIA, Alberto Nisman, criminally denounced the existence of a complex “criminal plan” to cover up by the Argentine authorities against the Iranian citizens accused of the attack on the headquarters of the AMIA giving rise to case No. 777/2015, pending before the federal criminal and correctional courts of this city. The representative of the Public Ministry affirmed that the true purpose of the Memorandum of Understanding would not have been to create an opening channel to clarify the attack on the AMIA, but to provide an impunity mechanism to divert the investigation, erase the responsibility of the accused Iranian citizens and bring down the international arrest warrants against them.

The investigation of the denounced cover-up was initially in charge of the Federal Investigating Judge, Daniel Rafecas who, despite mediating an investigation request from the Public Prosecutor's Office, on February 26, 2015, dismissed in limine , due to the absence of a crime, the complaint of the UFI-AMIA holder, under the terms of art. 180 CPPN. The decision was confirmed on March 26 of that same year by Room I of the Federal Chamber of this city and, despite the appeal for Cassation deducted by the Prosecutor before the Federal Chamber, the appeal ended up being withdrawn by Mr. Cassation Prosecutor, Javier Augusto de Luca.

On December 21, 2015, two new denunciations of cover-up were filed regarding the Memorandum, by Messrs. Santiago Nicolás Dupuy de Lome –made orally before the Federal Chamber of this Capital– and José Lucas Magioncalda, respectively giving rise to case file No. 14,305/2015 and file No. 14,383/2015, which were processed before Federal Court No. 11 in charge of Judge Claudio Bonadío and which were framed by the complainants in the crime of treason.

Having been firm the declaration of unconstitutionality of the Memorandum, on August 2, 2016 the Delegation of Argentine Israeli Associations (DAIA) presented itself through its then president, Mr. Ariel Cohen Saban, as complainant in the original cause started by him

Prosecutor Nisman

(pages 3403/3419 of records) and requested

the

reopening of

the investigation, with the argument

of

there are two new facts that would not have been present in the original investigation. On the one hand, a recording was provided of a telephone conversation that would have taken place between the then Argentine Foreign Minister, Amb. Héctor Timerman and the President of the AMIA, Mr. Guillermo Borger and, on the other, the firmness of the declaration of unconstitutionality of the Memorandum by the Argentine justice was informed. The presentation did not change the criteria of Judge Rafecas who, on August 5, 2016, ratified the non-existence of a crime in the case and, in this way, dismissed the claim (see, fs. 3415/3425) and, also, certified public at: (https://www.cij.gov.ar/nota– 22621–El–juez–Rafecas–no–hizo–lugar–a–un–pedido–de–la–DAIA–para–que–se– reopen–the–investigation–by–the–complaint–presented–by–the–prosecutorNisman.html to 09/29/21). The ruling was again confirmed, by majority, on September 26, 2016 by Chamber I of the Federal Chamber (the ruling can be verified at: (http://www.saij.gob.ar/confirman-rechazo-reapertura- causa -tax-complaint at 09/29/21).

The case was brought before the Federal Court of Criminal Cassation, this time by the DAIA as complainant and despite the new withdrawal of the Public Prosecutor's Office before that instance (see, fs. 3597/3607) on December 29, In 2016, Chamber I of the Federal Criminal Cassation Chamber decided to revoke the decision and, after accepting the DAIA as complainant, ordered the reopening of the investigation initiated by Prosecutor Alberto Nisman and removed all the magistrates involved in the case.

By decision of the Presidency of the Federal Chamber of the Federal Capital, the case ended unified in file No. 14.305/2015 whose investigation was in charge of Judge Claudio Bonadío. Once the investigation was resumed by the aforementioned magistrate, the list of defendants was expanded and Cristina Elisabet Fernández de Kirchner, Héctor Timerman, Carlos Zannini, Oscar Parrilli, Eduardo Zuain, Juan Martín Mena, Angelina Abbona, Andrés Larroque, Luis D'Elía, Fernando Esteche, Jorge Khalil and Ramón Héctor Alan Bogado, who ended up being prosecuted as perpetrators of the crimes of treason, aggravated concealment and functional hindrance, a decision that was partially confirmed, on December 21, 2017, by Chamber II of the Federal Chamber, which suppressed the charge of treason and incorporated the figure of abuse of authority (see pages 9152/9174).

On March 5, 2018, the case was partially brought to trial in relation to the twelve defendants already mentioned, under the accusation of concealment aggravated by the preceding act and

–in the corresponding cases– due to the status of public officials of the perpetrators, hindrance of a functional act and abuse of authority, crimes that concur ideally (articles 54, 277, subsection 1 “a” and 3 “a ”, “d”; 241, paragraph 2 and

248 of the Code. Penal). At the same time, the magistrate

reserved a part of the investigation to continue its investigation in relation to other defendants.

Now, based on the factual platform described, and considering the arguments of the respective defenses whose treatment summons us, reasons of logic advise starting the treatment of the case by examining the nullifying argument to, where appropriate, continue the study of the cause addressing the treatment of the exceptions of lack of action due to the absence of crime.

In the understanding described, it will be necessary to remember that the judges are not obliged to treat each and every one of the arguments of the parties, but only those that they deem pertinent for the resolution of the case (cf.: CSJN, Rulings: 329 :3373; 329:1951; 327:3157; 326:475; 325:1922; 324:3421;

324:2460; 322:270; 307:951; 303:135; 302:1191;

301:602; 301:970; 300:1163; 300:522; among many

others).

II. On the possible nullity

Thus, opportunely the defenses of Andrés Larroque, Oscar Parrilli and Cristina Fernández de Kirchner, each by their own presentations, requested the declaration of nullity of the decision issued on December 29, 2016, by Chamber I of the Federal Criminal Cassation Chamber and all the actions taken accordingly, I submit that it had the support of the rest of the defendants. On the one hand, they denounced that the two judges who were subrogating the Chamber at that time had held regular meetings with the then head of the National Executive Power, President Mauricio Macri, both in the Government House and in the presidential residence in Olivos, some of which they would have taken place even a few days before the pronouncement in crisis. Based on a journalistic report, it was also indicated that one of the two questioned magistrates would have provided legal advice to one of the lawsuits in order to articulate the presentation that culminated in the

decision to reopen the case, violating in both cases the guarantees of impartiality and judicial independence that automatically entailed the annulment of the decision and all the actions taken as a consequence.

According to the criteria of the defenses, the visits or meetings held between two of the three Cassation judges who signed the reopening of this case and the then President of the Nation constitute a violation of the guarantee of impartiality, either by the sole influence that could have been exercised in said meetings over the judges to decide on the case or, even when this had not taken place, due to the mere fear of partiality that it generates towards the defendants herein.

In the conditions in which it has been deduced, the nullifying proposal is upheld against the very constitution of the court that had to hear in the appeal which led to the decision of December 29, 2016 (art. 167, inc. 1 CPPN).

Now, we must keep in mind that annulment is an instrument to protect the right of defense. For this reason, “[i]nly when some vice, defect or omission arises that has deprived the person who invokes it of the exercise of some power, affecting the guarantee in question, there is a configurative defenselessness of nullity (...) Its origin is limited by the degree of affectation of that guarantee.” (cf.: Francisco J. D'Albora, "Criminal Procedure Code", Ed. Abeledo-Perrot, 8th ed., Bs.As., 2009, p. 249). The Supreme Court of Justice of the Nation has said that in terms of procedural annulments a restrictive interpretation criterion should prevail and proceedings can only be annulled when the vice causes irreparable damage that has transcendence on the guarantee of the defense in court or is translated to the detriment of some other right to prevent the annulment from becoming an empty formalism in

detriment to the idea of ​​justice and the prompt termination of the processes, where the interest of public order is also combined (CSJN, Rulings: 342:624 – 2019–; 342:1125 –2019–; 339:480 – 2019–;334:1081–

2011–; 325:1404 –2002– and 323:929 –2000–, among others).

As a consequence of this, the need to apply these precepts prudently becomes imperative, since the circumstance of admitting removal of magistrates with an excessively broad criteria could lead to the disintegration of the courts established by the Constitution as natural judges of the cause, thus blocking the proper functioning of the Judiciary, by removing from the hearing of the case those who are, in principle, the natural judges, that is, those "appointed by law before the fact of the cause" (art. 18 National Constitution). For this reason, the principles of conservation and transcendence place the relevance of the flawed act as the central guideline to verify the existence of a grievance directly linked to due process (CSJN, Rulings: 342:624 –2019–).

We are very aware that the right to be heard by an independent and impartial court constitutes a basic nucleus of fundamental rights, inseparable from due process, and without which the guarantee of defense in court, recognized by article 18 of the National Constitution, it would be a purely nominal right.

In addition to being protected by articles 18 and 33 of the Fundamental Law, the guarantee of impartiality has become a provision explicitly accepted within the block of federal constitutionality, showing special relevance among the International Human Rights Treaties that, since 1994, have constitutional hierarchy in our country (art. 75, sub. 22, National Constitution). Thus, faithful testimony of this is provided by Article XXVI of the American Declaration of the Rights and Duties of Man, when

provides that: “[t]he person accused of a crime has the right to an impartial and public hearing; Article 10 of the Universal Declaration of Human Rights, by stipulating that: "[e]very person has the right, in conditions of full equality, to be heard publicly and fairly by an independent and impartial tribunal, for the determination of their rights and obligations or for the examination of any accusation against it in criminal matters.”; Article 14.1 of the International Covenant on Civil and Political Rights, insofar as it provides that: "[e]very person shall have the right to a public hearing and with due guarantees by a competent, independent and impartial tribunal, established by law, in the substantiation of any accusation of a criminal nature made against her or for the determination of her rights or obligations of a civil nature” and, in turn, Article 8.1 of the American Convention on Human Rights, insofar as it stipulates that: “[a]ll The person has the right to be heard, with due guarantees and within a reasonable time, by a competent, independent and impartial judge or court, previously established by law, in the substantiation of any criminal accusation”.

The Supreme Court of Justice of the Nation held: "That the guarantee of impartiality of the judge is one of the pillars on which our trial system rests, since it is a direct manifestation of the accusatory principle and the defense guarantees in trial and due process, in its connection with the judicial organization guidelines of the State” (CSJN, Rulings: 328:1491, cons.9).

Fairness is one of the pillars of due process because, as the British courts have stated, “it is of fundamental importance not only to do justice, but to show that justice is done, manifestly and impartially.” (cfr. Court of King's Bench, in re "The King v. Sussex Justices, ex parte McCarthy", 9/11/1923, opinion of Lord Hewart, Law

Reports, King's Bench Division, 1924, Vol. 1, p. 256, see especially p. 259, (available at: (https://www.iclr.co.uk/wpcontent/uploads/media/vote/1 915–1945/McCarthy_kb1924–1–256.pdfal at 09/29/21).

It is that, although it is true that the judge should not necessarily pursue the consensus of the majority "he must, however, have the confidence of the specific subjects he judges, so that they not only do not have, but even harbor the fear of having an enemy judge or in any way not impartial.” (CSJN, in re “Llerena”, Judgments: 328:1491 – 2005–, Consideration 24).

Thus, taking into account arguments that serve as a platform for the present case, the Supreme Court of Brazil has indicated on March 23, 2021, that "judicial impartiality is enshrined as one of the bases to guarantee the due legal process” and, at the same time, “it is essential to consider defense arguments, since in a situation where the judge has previously adhered to the accusation, there is no possibility of an effective defense”. He added there that "the personal interest that the magistrate reveals in a certain prosecution procedure, adopting measures that go beyond the orthodoxy of the means that the positive system makes available to the public powers, transforms the activity of the magistrate into an activity of real criminal prosecution” (Supreme Federal Court of Brazil, “Habeas Corpus presented in favor of Luis Inacio Lula Da Silva”, case No. HC 164493, opinion of Judge Gilmar Mendes to which Judges Ricardo Lewandowski and Cármen Lúcia adhered, available at ( https://jurisprudencia.stf.jus.br/pages/search/sjur44 7799/false al 09/29/21)).

For this reason, "[t]he guarantee of objectivity of the jurisdiction is a procedural principle of the rule of law that, currently, is elevated to the rank of Fundamental Law and whose observance is judged by legal convictions

dominants in an especially severe way.” (CSJN, in re “Llerena”, op. cit., Consideration 19).

The impartiality of the judge can be defined as the "absence of prejudices or interests of the latter in the case that must be decided, both in relation to the parties and the matter." (Idem, Consideration 10).

Following the guidelines of the European Court of Human Rights, which in this matter have been assumed by both the Inter-American Court of Human Rights and the Supreme Court of Justice of the Nation, “[i]f impartiality is ordinarily defined by the absence of prejudice or partiality, its existence can be appreciated (...) in various ways.” In this way, “it is possible to distinguish between a subjective aspect, which tries to ascertain the personal conviction of a specific judge in a specific case, and an objective aspect, which refers to whether he offers sufficient guarantees to exclude any reasonable doubt in this regard. ” (European Court of Human Rights, case “Piersack v. Belgium”, judgment of October 1, 1982, para. 30, available at (http://hudoc.echr.coe.int/eng?i=001–16517 3 09/29/21)).

The impartiality of the court implies that its members do not have a direct interest, a position taken, a preference for any of the parties and that they are not involved in the controversy. This, since the judge must appear to be acting without being subject to direct or indirect influence, encouragement, pressure, threat or interference (cf.: Principle 2 of the Basic Principles of the United Nations, relative to the Independence of the Judiciary ).

From the objective aspect, impartiality implies the verification of elements that, although they do not necessarily prove indubitably the lack of impartiality of the judge, "authorize to harbor

doubts” regarding it, “regardless of what he thought internally” (doctrine replicated by the Supreme Court of Justice of the Nation in “Quiroga”, Rulings: 327:5863 –2004– Consideration 27; ID “Alonso”, Rulings: 330: 1457 –2007–).

Preliminarily, although I must say that I share the arguments of the Attorney General regarding the denounced and proven meetings do not constitute evidence that automatically leads to the removal of the judges who led them and the consequent nullity of the decisions adopted as a consequence, I understand, however, that, in the context that surrounded the case, they could count on the entity to generate a fear of partiality. Since although a President of the Nation is not a subject technically interested in the process under the terms of art. 56 CPPN, such a circumstance does not constitute an obstacle to constitute itself as an element susceptible to nullity attack if the influence that it can exert is proven. In this way, when there is an adequate reason to justify the distrust of his impartiality, the judge can be removed from the case without the need to prove an indubitable partiality, it being enough "with the fact that the suspicion of it can be introduced according to a reasonable assessment" (CSJN, in re “Llerena”, Judgments: 328:1491 –2005–, Consideration 22).

Even though by hypothesis the inhibition of the magistrates to act in a case should adhere to the concept of interested party, contained in article 56 of the ritual, it should be noted that the nullifying statement was placed not only on the lack of impartiality, but also, in the absence of independence. Thus, the respective defenses understood that the meetings of the two magistrates with the then head of the National Executive Power could have violated the guarantee of judicial independence, also protected by the aforementioned conventional norms and by an express constitutional provision that prohibits the Power

Executive “assume knowledge of pending cases” as well as “reestablish the expired ones” (art. 109 CN).

It is therefore appropriate to explain, as the Inter-American Court of Human Rights has observed, that even when the guarantees of independence and impartiality are related, each of them has its own legal content.

Thus, judicial independence constitutes one of the main objectives of the separation of powers whose purpose is "to prevent the judicial system in general and its members in particular from being subjected to possible undue restrictions in the exercise of their function by of bodies outside the Judiciary or even by those magistrates who exercise review or appeal functions” (Inter-American Court of Human Rights – hereinafter I/A Court HR–, case “Apitz Barbera et al.

-“First Court of Administrative Litigation”- v. Venezuela. Preliminary Objection, Merits, Reparations and Costs”, Judgment of August 5, 2008, Series C, no. 182, para. 55; id case "Reveron Trujillo v. Venezuela. Preliminary Objection, Merits, Reparations and Costs”, Judgment of June 30, 2009, Series C, no. 197, para. 67; case “Chocrón Chocrón v. Venezuela. Preliminary Objection, Merits, Reparations and Costs”, Judgment of July 1, 2011, Series C, no. 227, para. 97; case “Atala Riffo and Girls v. Chili. Merits, Reparations and Costs”, Judgment of February 24, 2012, Series C, no. 239, para. 186 and

“case of

Court

Constitutional -Camba Campos and

others- v.

Ecuador.

Preliminary Objections, Merits,

Reparations and Costs”, Judgment of August 28, 2013, Series C, no. 268, para. 188).

Among the guarantees that arise from judicial independence, in addition to an adequate appointment process and tenure in office, is "the guarantee against external pressure" (I/A Court HR, "Reverón Trujillo v. Venezuela" cases, ob .cit.,

para. 70, “Chocrón Chocrón v. Venezuela”, op. cit., para. 98, “case of the Supreme Court of Justice

-Quintana Coello and others- v. Ecuador, Exception

Foreword, Background,

Reparations and Costs”,

Sentence

August 23,

2013, Series C, no. 266,

para. 144

and case “López Lone et al. v. Honduras. Preliminary Objection, Merits, Reparations and Costs”, Judgment of October 5, 2015, Series C, no. 302, paras. 191 and 195). In addition to reinforcing the independence of the magistrates and the justice system, it is a guarantee specifically aimed at the "appearance of independence vis-à-vis the defendant and society".

In this way, judges must resolve the matters submitted to them based on the facts and in accordance with the law, without any restriction and without influence, encouragement, pressure, threats or undue interference, whether direct or indirectly, from any sector or for any reason (I/A Court HR, “Reverón Trujillo v. Venezuela” case, op. cit., para. 80; “Chocrón Chocrón

v. Venezuela”, op. cit., para.100; case “Atala Riffo and Girls v. Chile”, op. cit., para. 186; “Case of the Supreme Court of Justice v. Ecuador”, op. cit., para. 146; “Case of the Constitutional Court v. Ecuador”, op. cit., para. 190).

As a consequence of the foregoing, although articles 55 and 56 of the CPPN have stipulated the operational framework of the guarantee of impartiality, by means of which the respective reasons for inhibition of the magistrates involved in criminal proceedings must be made effective, the Treatment of the case cannot also take place outside the guarantee of judicial independence and that, although there is no direct procedural provision for its protection, it has a profile independent of the guarantee of impartiality and has a constitutional and conventional mandate that grants automatic operability. In addition, the old doctrine of the "Siri" case with which the Supreme Court of

National Justice launched the amparo action. He then argued that immediate verification is enough for a violated constitutional guarantee to be restored by the judges in its entirety "without the inexistence of a law that regulates it being able to be argued to the contrary", since "individual guarantees exist and protect individuals by the mere fact of being established by the Constitution and regardless of the regulatory laws” (CSJN, Rulings: 239: 459 –1957–p. 463).

In this context, it is not a disputed fact that between December 22, 2015 and September 22, 2019, the two Cassation magistrates who decided the resolution whose annulment is requested would have attended twenty-five times to meet with the then head of the National Executive Power (see table "Accredited visits by Drs. Hornos and Borinsky to the Casa Rosada and the Olivos Residence and resolutions questioned in cases Nos. 777/2015 and 14,305/2015", authored by the Public Ministry, exhibited by the Attorney General in "Cristina Fernández de Kirchner and others s/ incident of nullity", 4th hearing of August 18, 2021, available at:

(https://www.youtube.com/watchv=t3VfBELaJbI, see specifically, 1:31:38 to 09/29/21).

On the other hand, we cannot ignore that it was the Attorney General himself in the case file, who granted credibility to one of the two founding facts of the nullifying proposal when, under the terms of art.

174 CPPN, requested that a criminal investigation be granted to determine if there was legal advice in this same case towards one of the complaints in the proceedings, by one of the magistrates of the Court of Cassation who decided to reopen of these proceedings, on December 29, 2016. The complaint gave rise to case No. 5046/2021, titled “Borinsky, Mariano s/ abuse of authority and violation of official duties

public (art. 248 CP) complainant: Attorney General No.

8 before the TOF" that is currently being processed before the Criminal and Correctional Court No.

7 of this jurisdiction, in charge of Judge Sebastián Casanello, Prosecutor's Office No. 1, temporarily in charge of Prosecutor Ramiro González. For their part, the visits between the judges and the former President of the Nation are also the subject of a judicial investigation in case No. 1000/2021, titled “Macri, Mauricio and another (Horns, Gustavo) s / investigation of crime, plaintiff: Soria, Martín (Tailahade and others)” currently in process before the Criminal and Correctional Court No. 8, secretariat No. 15 of this jurisdiction. In this case, when formulating the instruction requirement provided for in art. 180 CPPN, the representative of the Public Prosecutor's Office maintained that "[t]hese meetings between the former President of the Nation and the Chamber Judge were the occasion for undue influence on the part of the former for the resolution of judicial cases." ”.

Thus then and in the conditions described, the facts denounced are revealed as potentially suitable for, at least, studying in due depth and in the appropriate procedural framework, the impact that such conduct could have had -if it did – in relation to the present case. Which, moreover, is already happening in federal investigative courts in this city.

However, although it is not possible to ignore the suspicions that could have implied in the eyes of the defendants the behaviors of the characteristics of those described, since, if they had known about them at the time, perhaps they would have allowed them to raise the recusal of the magistrates mentioned before the unorthodox conduct of visits to who then exercised the first magistracy of the Nation; however, it should be taken into account that there are two judicial investigations in process that, eventually, make it possible to determine whether there has been

any conduct and/or undue influence on the part of or towards any of the two magistrates questioned by the defenses, ruling in this instance would be, moreover, inopportune and useless.

This is all the more so, as we will see, when I will have to propose to my colleagues an analysis on the scope of the typical conformation of the behaviors assumed here as criminal hypotheses.

From this perspective and once the nullifying proposal has been overcome to resolve the case, not due to its lack of entity, but rather, and because in my opinion it is appropriate to analyze in depth the unsustainability of the factual typicity, in light of the body of evidence collected in the case to date, we will have to enter the treatment of the defenses regarding the possible lack of action.

III. Regarding the possible lack of action

With the exception of the extinctive causes of the criminal action, the investigation stage constitutes as a rule the natural procedural opportunity to pronounce the total or partial dismissal , ex officio or at the request of a party (art. 334 CPPN) in the event that some of the circumstances provided for in article 336 CPPN take place, that is, when the judge notices that the criminal action has been extinguished (art. 336, inc. 1), that the fact investigated was not committed (art. 336, sub. 2) or that it does not fit into a legal figure (art. 336, sub. 3), that the crime was not committed by the accused (art. 336 , sub. 4) or when there is a cause of justification, non-imputation or an acquittal excuse (art. 336, sub. 5).

Once the trial stage has begun, as established in article 361 of the ritual, the dismissal may take place when the analysis of the evidence clearly proves the

non-imputability of the accused, when an extinctive cause of the criminal action is noticed whose accreditation can be made without the need to go to trial, when the accused is exempt from punishment by virtue of a more benign criminal law; or when criminal action is no longer instituted in private instance crimes or when any of the grounds for exoneration provided for in article 185, inc. 1 of the Code. Penal.

As can be inferred, art. 361 of the Code. Criminal Procedure establishes a way of extinction of the process during the preliminary stage, before the debate, which, due to its evidence, leaves no room for doubt to reverse the need to carry out the oral debate, while the continuation of the process would imply an unjustified jurisdictional expense.

In this way, it has been observed that when verifying the atypicality of the fact object of imputation and enshrining art. 361 of the CPPN the possibility of dismissal when extinctive causes of the criminal action make the debate unnecessary, the accused must be dismissed under the terms of art. 336 inc., 3 from the CPPN. (Oral Economic Criminal Court No. 3, case CPE 443/2012/TO1/6/CFC1, cited in "Gallicchio, Sebastián s/appeal", 11/26/2018).

The criteria is consistent with what has been held by various Courts of Appeal. With regard to Chamber I of that court –referred to in the case file–, although in previous composition, it maintained that a restrictive interpretation of the grounds established by our legal system can be given to support the issuance of a dismissal that resolves accordingly. Definitely the situation of the accused in the intermediate stage, since said cases are exhaustively provided for in article 361 of the aforementioned legal body (CFCP, Room 1, case CFP 27/2010/TO1/3/CFC4, labeled "Sáenz Carmona, Carmen s / cassation appeal", reg. No. 237/17, of

6/4/2017), this Court has been endorsing dismissals ordered in that instance by Federal Oral Courts when supervening circumstances determined the atypicality of the fact investigated (cfr.: CFCP, Room I, causes FMZ 10732/2013/TO1/1/CFC1, "Senarega, Nelson Mario s/appeal", 2/5/2021; CPE 1488/2012/TO1/4/CFC2, "Oribe, Ignacio s/appeal" , 12/17/2020; FPO 8110/2015/PL1/CFC1 "Suárez, Juan Ramón and another s/appeal", 11/15/2019; CPE 443/2012/TO1/6/CFC1, "Gallicchio, Sebastián s/appeal" 11/26/2018; FPO 7115/2013/TO1/CFC1 "Bergese, Dante Fabricio and other s/appeal", 7/12/2019; FSA 32000587/2012/TO1/CFC1, titled : "Vilca Rueda, Ivar s/infraction Law 22,415", 6/25/2019; FSM 16900/2013/TO1/CFC1, "Procupetz, Víctor Bernardo s/appeal", 2/21/2019; FRO 7490/2014 /TO1/CFC1 "Martinelli, José Ángel and Lemme, Mario s/ cassation appeal", 11/26/2018; CPE 990000146/2010/TO1/8/RH2, López - Elías - Seta s/ complaint appeal, 22/ 11/2018; FMZ 91003126/2012/TO1/1/CFC1 “García Rosales, Manuel Ángel Alejandro s/ appeal of cassation”, 11/12/2018; FTU 401130/2002/TO1/6/CFC1 “Altamiranda, Gabriel Marcelo and others s/appeal”, 11/8/2018; FCT 4958/2015/TO1/CFC1 “Alassia, Adalberto Raúl and another on appeal”, 11/8/2018 and FSM 57760/2016/TO1/CFC1, “Vitale, Matías Roque on appeal”, 2 /11/2018).

The above is strengthened by a recent precedent of that Chamber, where it explained that “[d]e the analysis of [article 361 CPPN], in light of the principle of procedural economy and the corresponding right of the accused, to obtain a pronouncement that puts an end to the situation of uncertainty and undeniable restriction that criminal prosecution entails, as quickly as possible, it follows that the cases covered by

the rule in question does not constitute a closed formula and that the dismissal will proceed whenever, as said, an "evident" reason is verified that has arisen from "new evidence" produced in the stage of supplementary instruction and that makes the debate unnecessary.” (Cfr.: Cause no. CFP 12152/2015/TO1/55/CFC7, titled "Vanoli Long Biocca, Alejandro and others s/ cassation appeal", reg. 480/21, of 4/13/2021).

The criterion indicated is the one followed by the Federal Criminal Oral Court No. 5 of the Federal Capital, which I naturally integrate. In it we had the opportunity to point out that although the Court is not unaware that the institute of dismissal is basically contemplated for the investigative stage (articles 334, 336 and concordant CPPN), in the preliminary phase of the trial its use is also foreseen in limited cases (article 361 of the CPPN), and nothing prevents expanding these assumptions when it is the court itself that understands it applicable to the case, based on factual circumstances that the debate cannot modify and give a definitive answer to the procedural situation of the accused (cfr .: Federal Criminal Oral Court No. 5 of the Federal Capital, case No. 1585, CFP 9226/2014/TO1, "Jaimovich, Silvia Inés", issued on 12/23/2016, id case No. 1764 , “He, Fengqing”, issued on 8/30/2016, CFP 941/2013/TO1/1, case No. 2094, “Socolovsky, Julián”, CFP 4649/2009/TO1/6, issued on 23/ 9/2015, case No. 1914, “Rubino, Nicolás Mauro”, court on 5/15/2014, CFP 6398/2013/TO1, case No. 1363, “Di Francesco, Alejandro Alfredo”, court. on 8/18/2010; cause no. 1377, “Gomez, Maximiliano Ezequiel”, rta. on 8/4/2010; cause no. 1332, “Kleer, Carlos Ariel”, rta. on 6/16/2010 and cause no. 1364, "Beautiful, Jorge", rta. on 5/20/2010, among others).

To the considerations exposed, it should be added that it is not possible to disconnect the treatment of the case from the right of all accused to judicial protection

effective that imposes the obligation to define, in good time and without jurisdictional waste, their procedural situation, an aspect that constitutes the right to obtain a quick and effective decision as a reasoned derivation of the guarantee of due process.

Interpreting the “Speedy trial” clause contained in the VI Amendment of the United States Constitution. The Supreme Court of that country held that a speedy process without delay "is one of the most basic rights preserved by the Constitution" (in re, "Klopfer v. North Carolina", 386 U.S. 213 – 1967–, available at: ( https://tile.loc.gov/storageservices/service/ll/usrep

/usrep386/usrep386213/usrep386213.pdf as of 09/29/21), as it constitutes “an important safeguard” not only to prevent wrongful incarceration prior to trial, but also “to minimize anxiety and worry accompanying a public accusation” (in re, “United States v. Ewell”, 383 U.S. 116 –1966–, p. 120, available at: (https://tile.loc.gov/storage//services/service /ll/usr ep/usrep383/usrep383116/usrep383116.pdf; id “Barker v. Wingo” 407 U.S. 514 –1972– to 09/29/21).

It is doctrine of the Supreme Court of Justice of the Nation that one of the essential contents of the constitutional guarantee of defense in court is the right of all defendants to obtain a pronouncement that, defining their position before the law and the society, put an end to the situation of uncertainty and restriction of freedom that criminal prosecution entails in the shortest possible way.

This is the criterion inaugurated in 1968 with the precedent “Mattei” (CSJN, Rulings: 272:188) and inveterately replicated since then in the cases “Pileckas” (Rulings: 297:486 –1977–), “Klosowsky” ,

Rulings: 298:312 –1977–, “Mozzatti” (Rulings: 300:1102 –

1978–), “Baliarda” (Rulings: 303:917 –1981–),

“Fiscal Oil Fields” (Rulings: 306:1688

–1984–), “Frades” (Rulings: 312:2434 –1989–), “Morales,

María Soledad” (Judgments: 315:1553 –1992–),

“National Customs Administration” (Rulings: 316:2063

–1993–), “Artigué” (Rulings: 316:2705 –1993–),

“Paniagua” (Rulings: 320:1342 –1997–), “Moneta”

(Faults: 322:3071 –1999–), “Arrastia” (Faults:

326:4650 –2003–), “Bar” (Judgments: 327:327 –2004–),

“Simón” (Rulings: 328:2056 –2005–) and “Espíndola”

(Judgments: 342:584 –2019–).

He added there that when taking into account the values ​​at stake in the criminal trial, it is “imperative to satisfy an inherent requirement with the respect due to the dignity of man, which is the recognition of the right that every person has to free themselves from the state of suspicion that the accusation of having committed a crime matters, by means of a sentence that establishes, once and for all, their situation before the criminal law” (Rulings: 272:188, Consid. 10; doctrine replicated in the cases “Bartra ”, 305:913 –1983–, “González, Heriberto”, Judgments:

318:665, Consider. 5° –1995–, “Kipperband”, Failures:

322:360 –1999–, “Amadeo de Roth”, Judgments: 323:982 –

2000–, “Verbeke”, Judgments: 326:1149 –2003–, “Barra”,

Rulings: 327:327 –2004– and “Farina”, Rulings: 342:2344 –

2019–, among others).

And, with even greater precision, it maintained that “the constitutional guarantee of defense in court and of due process is not exhausted in formal compliance with the procedures provided for in the procedural laws, but rather extends to the need to obtain a quick and effective judicial decision that puts an end to conflicts and situations of uncertainty, avoiding, within the limits of reason and according to the circumstances of each case, wasteful and possibly useless judicial activity; This is what is required, moreover, by the purpose of “strengthening justice” stated in the Preamble of the National Constitution.” (doctrine of the case "San Martín de Tours Foundation", Judgments: 302:299 –1980–, Consideration 8°).

So then, it has been rightly observed that the reasonable duration of the process, according to the nature of the claim, requires that the conclusive sentence be reached in a timely manner, being capable of rendering usefulness and effectiveness for the defendant ( Cfr.: Germán J. Bidart Campos, "Elemental Treaty of Argentine Constitutional Law", 1st Reprint, Ed. Ediar, Bs. As., 2009, T. II-A, No. 78, pp. 54/55) , since the timeliness of the resolution, in the sense of a decision handed down in good time, constitutes one of the primary manifestations of substantive due process (cf.: Horacio Rosatti, "Treatise on Constitutional Law", Ed. Rubinzal-Culzoni, 2 ° ed., Santa Fe, 2017, T. I, p. 732).

In doctrine, Gozaíni, when answering the question of what procedural law is for, affirms that: to organize the trial system, justice and its composition, and to consecrate in its link with the Constitution, a unique guarantee that ensures with the process, respect for other guarantees, since the constitutional guarantees that preserve the effectiveness and fulfillment of rights depend on the instruments established to make the promised protection effective. This instrumental mechanism is the process, observed on this plane, as the only possible guarantee. Therefore, the process is a method of debate between people and a guarantee granted by the State so that this dialectic is resolved with justice and equity. The link between the law and the process is the common source of all jurisdictional work, one serves the other, reciprocally; Available at: (https://gozaini.com>Elementos-de-DPC-Ediar pdf at 09/29/21).

In short, it is well known that procedural law is instrumental, in the sense of realizing material rights (criminal law) and, especially, constitutional and conventional law, in such a way that it always seeks to

concrete the realization of those within the framework of validity of the guarantees.

With the constitutional guidelines described, in view of the evidence produced and whose appreciation unequivocally claims the need for a dismissal that advises resolving the dispute without having to go to the oral debate, the planned solution could become operative in article 361 of the CPPN.

For this reason, in the case of evidence recently produced, provided or warned during the supplementary investigation due to an unfounded refusal in the instruction to do so in that instance and which, in turn, has a ruling entity –at the discretion of the parties– In order to separate the defendants from the process, the assessment of that evidence must be made at the first possible procedural opportunity, resulting in the postponement to the debate stage being an undue and unjustified delay.

Because, as explained by the Federal Chamber of Criminal Cassation, it is the obligation of the Judiciary to know in useful time in disputes that have been maintained over time, producing uncertainty among the litigants and creating confusion among the legal community, when before the eventual atypicality of a reported crime, it persists in continuing to prosecute people with the imposition of precautionary measures that damage their life, property and honor (cfr.: case "Vanoli Long Biocca, Alejandro and others s/ appeal of cassation", ob cit., Opinion of Judge Ana María Figueroa, considers.

4.3 in fine and 7).

With the conceptual framework indicated, although we are not unaware that, with a partially different integration, this Court had rejected previous claims of lack of action on the grounds that there are controversial facts (cf.: records of August 22 and

September 7, 2018), contrary to what

expressed by the Representative of the Public Prosecutor's Office (cfr.: hearing response of the Attorney General, Marcelo Colombo, in "Cristina Fernández de Kirchner and others s/ incident of annulment", 6th hearing of the 1st of September 2021, available at (https://www.youtube.com/watchv=t3VfBELaJbI, see punctually 09:31 to 31:53), we understand that there are evidentiary elements incorporated or known during the supplementary investigation after said resolutions with a sufficient probative effectiveness to be considered as novel -those that will be individualized throughout the present argumentation- and, thus, with entity to enable the treatment of the exceptions raised at this stage.

Under such conditions, deferring the analysis of the respective proposals to the holding of the oral and public debate in the event that, as the defendants argue, the evidence included is sufficient to unequivocally reveal the solution of the case, would contradict the principle of procedural economy, would undermine the correct administration of justice and violate the guarantee of the defendants to be tried within a reasonable time.

Once the procedural limits enabling the study of the case in this intermediate stage of the process have been clarified, it is appropriate, without further ado, to enter the substantive study of the defense requested.

IV. On the development of the question of

substances

1. The scope of responsibility of this Court is inevitably limited to the verification of the criminal hypothesis embodied in the respective accusatory requirements that, as a starting point for the verification of an alleged illegal act,

could achieve the enabling quality of the jurisdictional instance.

Thus, according to the delimitation of the procedural object made by the respective requests for submission to trial of the Prosecutor's Office and the two complaints, the National Executive Power, headed by Cristina Elisabet Fernández de Kirchner, abandoned the political will to persecute the Iranian fugitives accused of the bombing of the AMIA headquarters (cfr.: request for trial by the Public Prosecutor's Office, fs. 9495 vta.) devising an instrument that ends their decriminalization of the cause, canceling, on the one hand , the international notifications of capture that weighed on the required Iranians and disassociating them from the AMIA case, on the other, by introducing a criminal hypothesis unrelated to their participation in the act. The Memorandum of Understanding, instead of a judicial cooperation agreement to unblock the investigation of the AMIA case, would have been, thus, a screen to provide impunity to fugitive Iranian citizens in exchange for commercial agreements that would benefit Argentina (Idem , fs. 9501) thus pretending to simulate an appearance of legality:

The accusation of this representation of the Public Prosecutor's Office is part of the development and implementation of a criminal plan with sufficient entity so that the Iranian citizens accused of being responsible for the bombing of the AMIA headquarters [can] escape from the actions of the Argentine justice system –by granting Interpol sufficient tools so that the red notices issued about them lose their validity– and to free them from all criminal responsibility for such facts – through the creation of a “Truth Commission” and through this, to introduce an alternative hypothesis– (cf.: request for elevation to trial of the Public Prosecutor's Office, fs. 9472).

In this way,

“it was proven that the defendants, without having participated in the predicate offense that is being investigated in case No. 8566/1996, through the distribution of tasks and exercising a specific role according to their functions in some cases and their ties with representatives of the government of Iran in others, they developed and implemented a suitable maneuver tending to help the Iranian defendants in the framework of the AMIA case –in fugitive condition– to evade the judicial investigation, as well as to evade the actions of the justice” (Idem, fs. 9587 row.).

According to the platform described, we can deduce that the cover-up plan would be made up of two criminal hypotheses: 1) the abduction of the Iranian defendants due to the actions of the Argentine justice, making Interpol stop the red notices of capture that weighed against those; 2) the elimination of all criminal responsibility of those required through the creation of a "Truth Commission" stipulated in the Memorandum of Understanding that introduces an alternative hypothesis to the one reported by the court and, in this way, ends up decriminating the accused. In this way, according to the accusatory hypothesis described, the Public Prosecutor's Office then held:

“[T]he governments of Argentina and Iran, through their respective Foreign Ministers, agreed to the Memorandum of Understanding in order to help those accused of the attack so that they can avoid the international arrests that weighed on them, as well as to endow them with impunity, through their definitive separation from the cause.

These objectives were intended to be achieved basically through two specially regulated paths between different articles of the instrument. First of all, the operative clause provided for in article 7 was aimed at reducing and/or eliminating the effectiveness of red notices.

with respect to the Iranian fugitives, while article 5 established the creation of a Truth Commission that, assuming jurisdictional functions, allowed for the incorporation of an alternative hypothesis for the solution of the AMIA case that decriminalized the Iranian defendants.” (Idem, fs. 9516, the emphasis does not correspond to the original).

In a similar sense, the

complaint:

“The signing of the “Memorandum…”, far from producing progress in the investigation of the attack against the AMIA (reason publicly offered by the defendants to justify it) had the purpose of: a) the lifting –and/or affectation of its effectiveness– of interpol red alerts, through the presentation of the clause 7 note, and b) the questioning of the evidence obtained and the imposition of alternative hypotheses that would separate Iran and its accused officials from the investigation of the attack against the AMIA (...), through the "Truth Commission" (...) whose final objective was to divert the accusation of the [I]ranian officials, towards alternative hypotheses that would separate them from the investigation" (cfr. : request for submission to trial formulated by the complaint of Messrs. Luis Czyzewski and Mario Aberbuch, pages 9375 and 9376).

In this way, the defendants would have covered up the search for the truth, thereby favoring the Iranian accused of the attack on the AMIA headquarters, hindering the work of those in charge of the investigation of the AMIA case, to the time that exceeded the attributions of their functions through the issuance of normative instruments markedly in violation of the Constitution and the laws.

As a consequence of the procedure described, the criminal cover-up plan would have been orchestrated and put into operation by the then President of the Argentine Republic, Cristina Fernández de Kirchner, her Minister of Foreign Affairs and Worship

–currently deceased– Héctor Timerman, the then

Vice Chancellor Eduardo Zuain, the Legal and Technical Secretary of the Presidency of the Nation, Dr. Carlos Alberto Zannini, the Secretary General of the Presidency, Dr. Oscar Parrilli, the National Deputy Andrés Larroque, the Treasury Attorney of the Nation , Dr. Angelina Abbona, and the Chief of Staff and Undersecretary for Criminal Policy of the Ministry of Justice and Human Rights of the Nation, Dr. Juan Martín Mena. In order to carry out the maneuver, the accused were forced to implement parallel channels of diplomatic dialogue between the Argentine Republic and the Iranian government, a task that, on behalf of the Argentine government, was carried out by the accused Luis D'Elía and Ramón Héctor Alan Bogado. , and Fernando Esteche and Jorge Alejandro Khalil on behalf of the Iranian government.

According to the accusation, each defendant was involved making a specific contribution in the plot described marked by the participation of a closed group that knew the details of the maneuver, guided by concealment, secrecy and omission of channels performance regulations.

In her capacity as President of the Argentine Nation at the time of the events, Cristina Elisabet Fernández de Kirchner was accused of being the top planner of how to carry out the aforementioned maneuver. In this way, she is accused of being responsible for the change in foreign policy of the Argentine government with respect to the Islamic Republic of Iran in the AMIA case starting in 2010 and accepting the Iranian proposal to seek a political solution to the cause to achieve the deincrimination of the Iranian state and defendants. In turn, he is blamed for having personally supervised the implementation of the agreement, directly issuing orders to the accused –mainly Héctor Timerman– for its implementation.

In his capacity as Minister of Foreign Affairs of the Argentine Republic, between the 22nd of

June 2010 and December 10, 2015, Héctor Timerman is accused of having helped the Islamic Republic of Iran to evade its international responsibility for the attack on the AMIA headquarters. From the key position he held, he signed the Memorandum together with the Iranian foreign minister and participated in the negotiations and drafting of the agreement as well as in its implementation, trying to influence the validity of the red notices that weighed on the Iranian defendants at Interpol. .

As Vice Foreign Minister at the time of the events and a trusted person of Héctor Timerman, Eduardo Zuain would have actively participated in the diplomatic negotiations for the preparation of the Memorandum, carrying out formal contact with the second lines of Iranian diplomacy and organizing the bilateral meetings for the preparation of the agreement (for example: the Zurich meeting of November 27, 2012).

In his capacity as Secretary General of the Presidency of the Nation, between 2003 and 2014 and his public and notorious closeness to the then President of the Nation, Cristina Fernández de Kirchner, Oscar Parrilli would have directly assisted the head of the National Executive Power, thus taking part in the maneuver, transmitting instructions to the Argentine intermediaries in the parallel diplomacy channel formed.

As Legal and Technical Secretary of the Presidency of the Nation, and person of close confidence of Cristina Fernández de Kirchner, Carlos Zannini would have had an active participation in the entire process of preparation and implementation of the Memorandum, participating both in its preparation as well as providing legal assistance and evaluating legal and technical aspects of the document.

Although, as National Treasury Attorney, she lacked the professional skills to undertake diplomatic negotiations related to the

AMIA cause, in her capacity as a trusted person of Cristina Fernández de Kirchner, Angelina Abbona provided legal assistance for the implementation of the Memorandum of Understanding and headed the Argentine delegations that attended the diplomatic work meetings on October 30 , November 27 and 28, 2012 in Zurich, in order to keep secret and monitor the negotiations to achieve the true objective pursued with the instrumentation of the agreement.

As Undersecretary of Criminal Policy of the Ministry of Justice and Human Rights of the Nation, Juan Martín Mena participated in the talks and negotiations for the preparation of the Memorandum, attending diplomatic work meetings where he provided legal assistance in criminal procedural matters for the instrument making. Once the agreement was signed, he and Zannini provided legal assistance to Chancellor Timerman for the defense of the Memorandum before Congress.

In his capacity as Secretary General of the organization "La Cámpora" and trusted person of former president Cristina Fernández de Kirchner, National Deputy Andrés Larroque officiated, through D'Elía, as "liaison" with the representatives of Iran, Jorge Khalil –reference of the Iranian community in Argentina– and Fernando Esteche, within the framework of a clandestine communication apparatus that, according to the instruction, acted as true operators of Iran in the country and the transmitters of Cristina's intentions Fernández de Kirchner and Carlos Zannini, information that had to be made known to them for the development of the maneuver carried out and that could not be communicated through official diplomatic channels.

Due to his political affinity with Iran and his referents, Fernando Esteche was the one who would have brought Khalil closer to Argentine officials and would have provided an "essential" collaboration to advance in the

normalization plan in relations between Iran and the Argentine Republic, also being aware of the negotiations and of the interests that the signing of the Memorandum masked.

Finally, Allan Bogado would have formed part of that clandestine communication channel acting as a link between the Argentine political authorities and local Iranian representatives, helping with his contacts to advance the illegal plan.

This is, in essence and according to the account of the accusers, the criminal plan, its operating mechanism and the background that preceded the case and that provide the factual platform to address the treatment of the defenses deduced by the accused.

Following the guidelines provided by the Federal Chamber, the Public Prosecutor's Office and the complaints, they described the actions outlined as constituting the crimes of concealment for personal favor, hindrance of a functional act and abuse of authority.

Now, it has been rightly observed that "[f]or unlawful conduct constitutes a crime it must be criminally typical, that is, it must fit one of the figures of the crime provided for" (cfr.: Santiago Mir Puig, "Criminal Law. General Part", Ed. Euros, 9th ed. Bs.As., 2012, p. 155).

The function of the types is the individualization of human behaviors that are criminally prohibited. The criminal legal type is the set of all material presuppositions, excluding procedural ones that condition the application of a sentence (cf.: Gonzalo Rodríguez Mourullo, "Criminal Law. General Part", Ed.Civitas, Madrid, 1978, p. 239). In other words, the law describes certain types of illegal acts that are violations of the norm as a closed vital process

and sanctions it under penalty (cf.: Maurach, Gössel and Zipf, "Criminal Law. General Part", Ed. Astrea, Bs.As., 1995, par. 19).

The doctrine distinguishes between a guarantee type and a systematic type, and thus we speak of a guarantee type, which designates the principle of legality in criminal matters. In turn, it refers to type of unfair to connote the typicality of unlawful conduct. On the other hand, we find the denomination type of crime in relation to the conceptions of the crime in which it is wanted to include with the type almost all the characters. Also, type of guilt, which is understood as the guilt must respond to the typical behavior. Permissive type that for Zaffaroni is the one that arises from the permissive precept (cause of justification). For those who use the expression type in various senses, the type as Zaffaroni understands it and characterizes it is called the systematic type.

Like all the basic concepts of criminal law, the concept of type introduced by Beling, also refers to various meanings. However, the essential distinctions for criminal law can be reduced to the three tasks that the type must fulfill: it has a systematic function, a dogmatic function and a political-criminal function.

In a systematic sense, the type encompasses “the compendium or set of elements that result in knowing what crime it is typically about. By naming the set of these elements a type (Tatbestand, literally “supposed to be a fact”), Beling obtained a new category for the theory of crime, which could be introduced between the concepts of action and illegality. Before, most of the authors had defined the crime as an unlawful action, guilty and threatened with punishment. Typicality was then hidden in the expression threatened with grief; Beling rightly characterized, says Roxin, that formulation as "fuzzy," because it does not

allows us to recognize what qualities an action must have to be threatened with penalty. Against this, the new category of the type offered the possibility of assigning a firm systematic position to numerous "errant elements here and there" previously without a fixed place in the general theory of crime, such as "theories of the result of action, of causality, the object of the act, the content of the crimes of omission, etc. (Cfr.: Roxin, Claus "Criminal Law. General Part" T. I, Ed. Civitas, Madrid, 1997, p. 277).

Precisely, along with its systematic meaning is the criminal-political meaning of the type, which lies in its function of guarantee.

Only a criminal law in which the prohibited conduct is accurately described by types fully conforms to the nullum crimen sine lege principle. Finally, an autonomous dogmatic function of the type and unrelated to its general systematic function consists of describing the elements whose ignorance excludes fraud. That mission is entrusted to him (for German law) by the law itself, by saying in para. 16 II: “Whoever in the commission of the act is not aware of a circumstance belonging to the legal type does not act maliciously”. The prohibition, which only optionally excludes guilt, belongs, according to current law, to the basic foundations of criminal legal dogmatics (cf.: Roxin, Claus, "Derecho Penal. Parte General", ob.cit., ps. 277/278).

When studying the foundation of the concept of penal type in Argentine dogmatics, Bacigalupo points out that the concept of criminal type was introduced into Spanish-speaking criminal dogmatics by Jiménez de Asúa, following the guidelines drawn up by Beling. For this author, the development followed by Argentine dogmatics is completely independent of the evolution that occurred in Germany. Indeed, the distancing of Beling's orientation is perceived

already in the first formulation that is made among us in the theory of criminal type (cfr.: Bacigalupo, Enrique "Type and error", 2nd. edc., Ed. Hammurabi, Bs.As., 2002, p. 17 et seq.). Thus, in Núñez's conception, the function of the criminal type derives from the requirements of the principle nullun crimen nulla poena sine lege and, specifically, from the discontinuous nature of the criminal offense that is a consequence of the prohibition of analogy that said principle imposes (cf. .: Núñez, Ricardo C., "The criminal act in the National Constitution and in the Code", separate from the "Journal of Psychiatry and Criminology", Bs.As., 1939, No. 19).

According to Bacigalupo, the following conclusions can be drawn regarding the concept of criminal type: 1) that it is limited exclusively to the realization of the principle of legality; 2) it only refers to the external adequacy of the conduct with the prescriptions of the criminal law, being excluded from the concept of type thus elaborated, fraud, guilt, and even guilt; 3) in principle, the validity in Argentine law of the problem on the basis of which Beling developed the theory of criminal offenses is rejected; 4) the objective conditions of criminal liability are admitted, within the criminal figure (Soler) or outside of it (Núñez, Fontán Balestra); 5) it is unanimously admitted that the objective conditions of punishability do not need to be achieved by fraud;

6) the penal type is given a purely descriptive function with the exception of the first formulations by Núñez and that of Fontán Balestra which, however, is not consistently followed by its author; 7) the descriptive function of the type is essentially characterized by being exhaustive.

In truth, the divergence that is pointed out regarding the type of guarantee elaborated by the Argentine dogmatics is not a consequence of the scope of the principle of legality, but of the adequacy of the concept of type through which it is attempted to carry out such

beginning. The explanation for this lack of coincidence between the principle from which the guarantee type is deduced and the concept of a deduced type is found in the mistaken belief that the Beling type is a guarantee type that exhausts all possible type concepts. Indeed, the concept elaborated by Beling is not that of a guarantee type, but rather, a systematic type and tending to solve error problems. The fact that the concept of criminality, as a general nature of the crime, only has the possibility of realization in a criminal law that is expressed in the strict classification of actions, does not indicate that the type thus deduced tends to guarantee the principle of legality. .

In other words, just because modern criminal law is strictly criminalized, criminality can be a general characteristic of the crime. For Bacigalupo, the Argentine dogmatics did not take these considerations into account and despite proposing a departure from Beling, it actually took the concept of the latter that, because it was not oriented to the type of guarantee, could and should exclude fraud and the conditions of criminal offenses. guy. He then proposes the following as conclusions: a) the expression type criminal denotes more than one concept, including at least those of guarantee type, type of error and systematic type; b) the guarantee-type concept is the only one derived from the principle nullun crimen nulla poena sine lege and includes absolutely all the assumptions for the application of a penalty, including fraud and negligence, guilt, and also, the objective conditions of punishment ; c) the type of error defines the object of the fraud and coincides, in part, with the objective type (external aspect of the systematic type); d) the type of error does not include the absence of justifying objective circumstances (negative elements of the type), nor the special elements of illegality (including the

elements of authorship), nor the objective conditions of punishability; e) the systematic type, that is, the type of typical adequacy that is the general element of the crime, includes both the objective type and the subjective type (intent and subjective elements). In its objective aspect, it has, or may have, greater breadth than the type of error, since it is integrated with elements that are unrelated to fraud (eg: the character of an official).

It is well known that it was Beling, in 1906, who founded the criminal type theory. Prior to him, there was a certain agreement in penal science, in conforming to the idea of ​​an unlawful action to which it was threatened with certain punishment. This included the action itself, the lack of grounds for justification and guilt.

For Beling, on the other hand, the type is a part of the crime and, at the same time, it is a kind of guide typification that the legislator creates free of any element of illegality. But also, as he considered it, it was totally objective, without any consideration for subjective elements. However, Nagler in 1911 and Hegler, supported the importance of the subjective elements of justification and later, Mezger, distinguished between subjective elements of illegality and elements of the type. All this added to the conception of crimes of purpose, tendency and expression.

In such a way, the path to the complex theory of the type was cleared, which would make it possible to distinguish the objective type from the subjective type and, in the latter, locate the consideration of fraud and guilt.

Beling's type is characterized, then, preferably by two notes: that it is objective and that it is free of value (but not for that reason evaluative). Objectivity means the exclusion of the type of all subjective, intranymic processes, which are assigned in their entirety to guilt. Also by non-evaluative character it must be understood that the type

criminal does not contain any legal assessment that alludes to the illegality of the typical action. Thus, for Beling, the type is clean of all moments of illegality, and in it a legal meaning is not recognizable. The theory of the objectivity of the type, affirms Roxin, was soon shaken since Fischer, Hegler, Mayer and Mezger, discovered that in many cases, not guilt, but the unfairness of the act depends on the direction of the author's will. , or subjective moments intranimicos. In this way, the theory of the subjective elements of the type was imposed around 1930, despite multiple discussions on specific points. The fact that shortly after the final theory of the action included in the subjective part of the type the deceit aimed at carrying out the objective circumstances of the fact was only one more step in that direction (cf.: Roxin, op.cit., p.280).

Similar luck has also run the conception of the non-evaluative character of the type. The reason for revising Beling's theory on this point was given by the discovery of normative elements of the Max Ernest Mayer type. Indeed, Mayer himself continued starting, in principle, from the non-evaluative character of the type, since according to him the realization of the type is certainly an indication of unlawfulness, but one is related to the other like the one between smoke and fire, thus, smoke is not fire nor does it contain fire, but it allows the conclusion that there is fire, unless proven otherwise.

According to Mayer, the type is only ratio cognoscendi, that is, a denoted indication of illegality, but it is not a component of it. For him, the non-evaluative character of the type is ensured by the fact that the elements of the type are "descriptive", that is to say that they contain descriptions accessible to sensory perception but no longer contain their evaluation, which only occurs

through the category of illegality. However, the situation is different in the "normative elements" (evaluative) of the type, such as the foreignness of the thing in the crime of theft, which do not describe objectives and therefore are not causally related to the author's action. , but they contain an assessment that, in part, prejudges the illegality.

The development of the normative elements of the type was quickly imposed, revealing that the number of normative elements was much greater than what had initially been supposed (cfr.: Roxin, ob.cit., p.281) .

Type should not be confused with typicality. The type is the formula that belongs to the law, while the typicality belongs to the conduct. The criminality is the characteristic that a conduct has by reason of being appropriate to a criminal type, that is, individualized as prohibited by a criminal type.

Typical is the conduct that presents the specific characteristic of typicality, which in turn is the adequacy of the conduct to a type, which is the legal formula that allows determining the typicality of the conduct.

From the perspective of imputing the conduct to the objective type, we must specify that this presupposes referring to the realization of a danger created by the perpetrator and not covered by a risk allowed within the scope of the type (cf.: Chiara Díaz/ Grisetti/ Obligado, "Criminal Law. General Part", Ed. La Ley, Bs.As., 2011, p.252). On the contrary, if the creation of a risk is missing when, for example, the causal course is modified in such a way that the already existing danger for the victim is lessened or diminished and therefore the situation of the object of the action improves, this excludes the imputation. In the same way, if the creation of the danger is directly missing, then the imputation to the objective type will have to be rejected when the author

certainly, the risk of injury to a legal right has not decreased, but it has not increased it in a legally significant way either. The principle of imputation of the creation or increase of risk coincides, in substance, with the theory of adequacy and with the principle of objective claimability of Larenz and Honig. A conduct that does not significantly endanger a legally protected right can only bring about the result by chance, so it cannot finally be caused in this way (cf.: Chiara Díaz/ Grisetti/ Obligado, "op. cit.", p. 253).

Picardi and Seghezzo remind us that the theory of objective imputation, promoted by Roxin, deepened the outlines devised by Larenz and later by Honig in Germany. The same, in essence, establishes a series of guidelines or requirements that allow to identify that voluntary human action that falls within an objective criminal type, trying that these postulates allow solving the imputable problems in all the typical ways (cf.: Franco Picardi , Bárbara Seghezzo, “Objective imputation” (available at:

http://www.saij.gob.ar/doctrina/dacf140151-picardiimputacion_objetiva.htm at 09/29/21).

The development of the objective imputation, starts from a pre-legal analysis of the conduct, pondered the same as an event of nature, through the theory of typical relevance, which operates as a minimum basis to limit the responsibility of the author, to then enter the legal or regulatory analysis of that conduct.

In my case law precedents I have followed the line of objective imputation theory (see, TOF No. 5 Cap. Fed., cause No. 1270, “Donda, Adolfo Miguel s/inf. art. 144 ter, para. . 1st CP, Law 14,616"; case ESMA IV (case No. 1891 titled "Cabral, Raúl Armando s/illegitimate deprivation of aggravated liberty and torment"; case No. 1955

titled “Ferrari, Horacio, Castelví, Carlos María; Count, Michael; Carrillo, Carlos Nestor; Iturri, Jose Angel; Ocaranza, Jorge Luis Maria; Zanabria, Ramón Roque on aggravated illegitimate deprivation of liberty and torture”; and case No. 1891 “Vallejos, Claudio s/aggravated illegitimate deprivation of liberty”; also, TOF No. 5, Ch. Fed., (one-person integration of the undersigned), Case No. 2019, “Schweizer, Guillermo y ots. s/inf. art. 281 in contest ideal art. 248 PC”.

Now, at this stage of the screening analysis of the theory of crime, in order for a result harmful to the legal order to be objectively attributed to a voluntary conduct, it must be established that: a) the action has created a legal risk or danger not allowed; b) the result produced implies the realization of that legally disapproved risk or danger.

Regarding the concept of permitted risk, it is undeniable that social coexistence implies the interaction of the individuals that integrate it, as factors that generate danger. And, moreover, the different elements that are the product of human civilization also generate their own risks that are assumed, within certain parameters, as allowed.

From Welzel's formulations, it is noted that human behaviors should be considered from a social perspective, distinguishing actions that are socially disapproved for constituting attacks on protected legal rights (typical) from those that are socially appropriate and accepted by the group and, therefore, , not harmful to legal assets (atypical).

In this context, the law intervenes in this risk relationship trying to restrict to a minimum the behaviors that activate risk factors for those cases in which the carrying out of that activity is authorized; this tolerance threshold requires regulation, where

the guidelines for performance are established and that make a risky activity legally accepted; while, exceeding these limits, the formulation of imputation for creation or increase of the disapproved danger is authorized.

Among the imputation factors, we find the creation or increase of the disapproved risk, by whose general principle it can be affirmed that the result of the subsumption of a conduct in a certain criminal type will be imputed to the person who with his act has created or increased an unauthorized risk with respect to a legal asset.

In effect, for greater expository clarity, it is not enough to reproduce the maxim indicated by Stratenwerth, since "responsibility for the result is given by responsibility for the danger on which it is based".

The determination of the creation or increase of the disapproved danger requires making an "ex ante" judgment of the author's conduct, that is, at the moment the risky action begins and, from this perspective, we are going to ponder the endilgative judgments.

Now, in the case that brings us here, the actions or conduct that the accusers intend to constitute as criminal hypotheses in no way implied the creation of any risk or increased danger with respect to the legal assets involved. All of which we will have to demonstrate in the subsequent evidentiary analysis.

For this reason, as prior to everything, it is necessary to scrutinize whether or not the maneuver for which the defendants were required to stand trial materializes the elements of the objective type of the attributed figures. This requires a conceptual demarcation of the three types of criminal offenses that –in the opinion of the prosecution– govern the case.

Concealment is a crime that harms the administration of justice as long as it interferes with police or judicial action in an attempt to verify the

existence of a crime and the responsibility and punishment of its perpetrators and participants (National Chamber of Criminal Cassation, Room IV, “Aldera, Yamil s/rec. de casación”, 09/30/2002, Law 2003-A , p. 100), or the recovery of the objects linked to it.

In its modality of personal favoring (art. 277, sub. 1, ap. “a”, Penal Code) it is the help given to a human person to evade or evade the action of justice. As the teacher Carrara explains, “any help given to the perpetrator or to any of the accomplices after its consummation to evade justice or to ensure criminal profit, but without prior agreement and without leading to subsequent consequences of the crime” (cf. : Francesco Carrara, “Criminal Law Program”, Ed. Rodamillans, Bs.As., 2010, T. V, § 2829, pp. 397 and 398). The crime thus has a double purpose: to benefit the favored party and to hinder the action of justice (cf.: Alberto S. Millán, "El delicto de encumbrimiento", Ed. Abeledo-Perrot, Bs.As., 1970, p.

105) and its configuration requires the following elements:

a) Aid, collaboration, assistance or facilitation must be provided, by itself or by third parties, through a positive action, not necessarily violent, to evade the action of justice.

b) It assumes the existence of a crime prior to the one that occurs and that is independent of it (National Chamber of Criminal Cassation, Room III, “Puche, Néstor R.”, 10/27/1999, Law 2000-B , p. 771; id. CNCrim.Corr., Room VI, "Maldonado, Pablo O.", 04/29/1999, Law 2000-B, p. 635; CNFed.Crim.Corr., Room II, " Vargas and others”, 09/06/1989, La Ley Online) and in which, although a judicial declaration on its existence is not necessary (CNCP, room I, “Orentrajch, Pedro and another s/ cassation appeal”, 03/21/2006, The Law Online, TOC No. 20 of the Federal Capital, "Genovese, Cayetano A.", 04/12/1999, The Law 1999-

E, p. 371) cannot be presumed by simple inference (cf.: TOC No. 14 of the Federal Capital, “Álvarez, Rubén N. y otros”, 04/16/2003, La Ley Online; CNCrim.Corr., Room VII, "Moreno, Manuel E.", 09/04/1992, Law 1995-A, page 492;

id “Oviedo, José A. and another”, 03/05/1991, La Ley Online, among others) and whose authorship cannot correspond to the concealer (CNPE, Room B, “Arriete, Fernando and others”, 11/10/2005 , Law 2006-C, page 33, ID TOC No. 23 of the Federal Capital, "Valles, Mario", 11/09/2005, JA 2005-IV,

p. 726, among others).

c) The action of helping translates into a subtraction or avoidance. The first assumption involves avoiding arrest, whether the arrest has been ordered or not yet. The second is help to avoid the necessary investigations regarding the authorship and responsibility of a person in the commission of a crime, whether the investigation is ongoing or about to begin. Both behaviors can be temporary or permanent and do not include aid provided for strictly humanitarian purposes.

d) The theft or evasion is carried out in relation to an authority, that is, the Judiciary, its auxiliaries –vgr. the police – or any other body with legal investigative powers.

e) The aid must be provided to a human person, excluding people of ideal existence. On the other hand, it is not necessary that the recipient is a convicted criminal; It can be a defendant with an arrest warrant, a witness with a summons, a rebellious defendant, a suspect and, in general, any person who is required by an authority to appear (cfr.: Alberto S. Millán, “The crime of concealment ”, (op. cit.), p. 95) without even being individualized as long as the preceding offense existed. Neither it is

It is necessary that the requirement be current, and it could be in the future, as is the case of someone who helps to hide a murderer whose justice has not yet been informed of the commission of the act but it is known that once has proceeded to the formation of cause, it will be required.

f) In all its modalities, it is an instantaneous crime (cfr.: Federal Criminal Oral Court No. 2, “Micelli, Felisa Josefina”, 02/06/2013, La Ley Online), therefore that is configured with the single help.

g) It is enough that the action is suitable to help, whether it ends up being carried out or, failing that, has been frustrated (cfr.: TSJ Córdoba, Criminal Chamber, “Hernández, Walter D. and others s/rec Cassation", 12/18/2003, LLC 2004 -June-, p. 473; id. Carlos Fontán Balestra and Guillermo A.C. Ledesma, "Criminal Law Treaty", Ed. La Ley, Bs.As., 2013, T. IV, page 412). Favoring belongs to the category of so-called “formal crimes” and, as such, the help provided does not have to be effective. It is enough that it is adequate, even if in the given case it does not produce the desired result.

h) From the subjective aspect of the type, the crime does not admit more than its intentional commission - there is no place in it in any culpable way - and consists of the help given knowingly to evade or withdraw from the action of justice. The configuration of fraud requires that knowledge and will be effective and current (CNCrimCorr., Room V, "Bernotas, Ricardo H.", 04/25/1994, La Ley 1995-E, p. 117) and encompasses all components of the objective type (cf.: Criminal Court No.

2 from Bahía Blanca, “A., P. A. y otra”, 08/29/2005, La Ley Buenos Aires, 2006 –March–, p. 228), so the concealer must be aware that the help action is aimed at

to evade the action of justice and that is provided in favor of a person who has intervened in an illegal act (CNCrimCorr., Room V, “D. S. C., W. W.”, 04/04/2002, La Ley Online, among others), that is, to know that the favored party is the person accused -as the author or participant- of a crime or, even if he is not accused, he must know that he is and that he is helping him to evade the investigation of the authority or to escape from your action.

The hindrance of a functional act (art. 241, sub. 2 Penal Code), for its part, constitutes an attenuated modality of the attack on authority. The main difference with this last figure is that in the nuisance the author is not the recipient of any order nor does he resist compliance with something that has been arranged for him. It is not proposed to replace the will of the official in charge of doing something improper with his own, but only to "prevent or hinder [him]" in the fulfillment of an act proper to his duties through a characteristic element: cunning or deceit (cf.: Carlos Fontán Balestra and Guillermo A.C. Ledesma, op. cit., T. IV, page 171; Omar Breglia Arias and Omar R. Gauna, "Criminal Code and complementary laws", 6th ed., Ed. Astrea, Bs.As ., 2007, T. 2, p. 664). It is a form of resistance, but without force or violence (cfr.: Jorge Alberto Diegues, "Resistance to authority", La Ley, Diario del 3/15/2019, p. 8, see especially summary No. 10) and, Unlike the attack against authority, it is a crime of result (Idem, p. 172), so it is not enough to pursue the end but rather requires conduct with an objective entity to hinder. This figure admits the attempt in cases where the realization process is frustrated by issues beyond the control of the author.

In its simple figure, abuse of authority (art. 248 Penal Code), a charge that weighs on seven of the eleven defendants, presents the following characteristics:

a) The active subject of the crime can only be a public official (arts. 248 and 77 Penal Code) for acts of their own or related to their function (cf.: Carlos Fontán Balestra and Guillermo A. C. Ledesma, op. cit. , T. IV, p. 219).

b) Its main characteristic is that it does not require any damage or benefit, just the typical action or omission.

c) The crime is committed by action or omission.

d) It offers three typical forms of materialization: a) issuing resolutions or orders contrary to the Constitution and national or provincial laws; b) execute resolutions or orders contrary to the Constitution and the laws, national or provincial and c) not execute the laws whose compliance is incumbent on them.

In the present case, the creation of the "Truth Commission" is identified as conduct constituting abuse of authority, implemented in the Memorandum of Understanding by members of the National Executive Power through which they interfered " fraudulently and unduly in the sphere of action of the Argentine federal justice in the framework of a pending criminal proceeding, thus violating the Constitution and national laws (cfr.: prosecutor's indictment, fs. 9592 and vta).

Now, although in any of its modalities the configurative behaviors of the three types foisted admit the attempt, they require suitability for their production. In this sense, Millán observes in relation to the crime of favoring that "[t]he aid must be suitable, that is, it must present characteristics and modalities that confer, even potentially, fitness for the purpose proposed in the given case." . If the medium is manifestly unsuitable, there will be no favoring.” (Cfr.: Alberto S. Millán, "The crime of concealment", op. cit., p. 102, the italics correspond to the original; id. Francesco Carrara, ob.

cit., T.V, § 2833, p. 400). The same occurs with nuisance crimes such as abuse of authority whose criminal types require consummative suitability.

In this way, despite the particular typical modalities in relation to each of the criminal figures under study, since all of them admit the attempt, there are two basic factual circumstances in the structure of the criminal typicity that condition the adequacy typical of any behavior.

It has been rightly observed that in a rule of law there is a formula of balance between freedom and authority; Hence, in a democratic society "the state's punitive power can only be exercised to the extent strictly necessary to protect fundamental legal rights from attacks that damage or endanger them" (cf.: I/A Court HR, case "Acosta Martínez et al. v. Argentina. Merits, Reparations and Costs", Judgment of August 31, 2020, Series C, No. 410, paragraph 87; id. case "Kimel v. Argentina. Merits, Reparations and Costs", Judgment of 2 May 2008, Series C, No. 177, paragraph 76). Thus, the use of criminal proceedings must correspond to the need to protect fundamental legal rights against behaviors that imply serious injuries to those, while also being related to the magnitude of the damage inflicted (I/A Court HR, case "Kimel v. Argentina ”, op. cit., para. 77). As a consequence of this, the cases in which the perpetrator has not caused harm to third parties are, as a rule, subtracted from the state's punitive power, with the exception of those conducts that, due to their magnitude, the legislator demands their punishment as an advance of punishability. (Cfr.: Esteban Righi, "Criminal Law. General Part", 2nd ed., 4th reprint, Ed. Abeledo-Perrot, Bs.As., 2019, p. 517).

In a state of law, thoughts belong to the constitutive sphere of the person and cannot be reached by typicality; given that

controlling them is equivalent to destroying the free person (cfr.: Günther Jakobs, “Criminal Law. General Part. Fundamentals and theory of imputation”, 2nd ed. in Spanish by Joaquín Cuello Contreras and José Luis Serrano González de Murillo, Ed Marcial Pons, Madrid, 1997, page 853, ID Eugenio Raúl Zaffaroni, "Treatise on Criminal Law. General Part", 1st ed., 5th reprint, Buenos Aires, Ediar, 2014, T. IV, P. 410, Hans Welzel, "Criminal Law. General Part", Spanish translation by Carlos Fontán Balestra, Ed. Depalma, Bs.As., 1956, pp.

189 and 190, Esteban Righi, op. cit., p. 517, among others). This criterion is rooted in one of the oldest principles of Roman law expressed by Ulpiano, according to which "no one can be punished for his thoughts" ("cogitationis poenam nemo patitur", Digest, 49.19.18).

Tributed to this conception, the Argentine Constitution protects this idea by affirming in its article 19 "private actions that in no way harm a third party" thus preventing the State from interfering in the internal sphere of each individual. This entails, as an unavoidable consequence, the need to set limits to the anticipation of punishability.

Every crime is preceded by a series of concatenated behaviors in which the perpetrator directs his conduct to the realization of his purpose. This process, which takes place between the moment the criminal idea is born and its exhaustion, constitutes the so-called iter criminis.

The iter criminis presents two distinct stages. The first, which can be called "internal", houses all the thoughts grouped in the ideation of the criminal plan which do not transcend the plane of thought. The idea of ​​committing the crime, the feasibility test and the decision to continue or abandon the criminal plan are contained here.

When the criminal plan transcends mere thought and begins to manifest itself in actions, the iter criminis enters a new stage: the “external”, whose content, in turn, is made up of four stages: the acts that are carried out at a preliminary moment to the realization of the criminal purpose (preparatory acts) such as the purchase of a weapon in a murder plan or the preparation of the plan of the place where a theft is intended to be carried out; those who, without completing all the requirements of the type, have such an entity as to reveal an act of execution or a concrete manifestation of will to commit the crime (acts of execution equivalent to the attempt); those that manage to complete the entirety of the type (consummation) and, finally, those that, having reached consummation, prolong their effects beyond it, causing further damage sought from the outset by the author (exhaustion).

Within each of the stages described, the punitive consequences are not the same. Thus, in addition to the ideation of the criminal plan, a part of those acts that transcend mere thought and are materialized in actions are not reached by the State punitive action when, even though they imply an externalization of an action, they do not reveal “unequivocally” the existence of a criminal plan. These are erratic behaviors whose purpose admits several possible explanations; although linked to the fact investigated, by themselves they are insufficient to effectively endanger a specific legal right as well as insufficient to show a link with the purpose of executing the crime (cfr.: Sebastián Soler, “Derecho Penal Argentino”, 4° Updated ed by Manuel Bayala Basombrio, Ed. TEA, Bs.As., 1989, T. 2, p. 246) and that, in the best of cases for the hypothesis of punishability, can configure a remote danger in the execution of the crime

Criminal law reserves the ius puniendi for acts of typical relevance with an intention aimed without a doubt at committing the crime (CSJN, concurring opinion of judges Caballero and Fayt in "CINEPA S.A.", Rulings: 311: 372) , which are capable of being qualified once they begin to be executed. In this way, the action of buying a weapon for someone who is preparing to commit a homicide, although it is clear that it transcends mere thought, is not enough to direct some form of imputation towards the homicide that was never carried out to the extent that the homicidal purpose of the acquisition is not unequivocally proven, that is, that it was purchased with that same intention and not for other purposes such as collection, resale, hunting, gift, or for the actor himself but without being able to determine precisely . On the contrary, whoever devised a homicide and missed the shot, from the moment he pulled the trigger he objectified a concrete manifestation of criminal will (cfr.: National Chamber of Criminal and Correctional Cassation, Room I, "G., N. R. and others s/ cassation appeal", of 10/30/2018, RDP 2019-6, p. 1174). This is, in essence, the scheme of the attempted crime in this situation.

Different from what happens between the executory acts (the attempt) and the consummation, the separation between those and the preparatory acts offers important theoretical difficulties, being this question rightly qualified as the most arduous problem of the attempt and one of the most complex criminal dogmatics (cf.: Eugenio Raúl Zaffaroni, op. cit., T. IV, p. 444). Even so, it is an inalienable exercise for the judge because, in an act criminal law, it is what divides the border between punishment and impunity.

The described dogmatics finds express reception in the Argentine Penal Code which, in its article 42, prescribes that there can only be an attempt

in whom "with the purpose of committing a specific crime, its execution begins". As a consequence of this, the attempt does not consist only of the intention or purpose of committing a crime, but, mainly, of the beginning of its execution, with a view to that end (cf.: concurring opinion of Judge Enrique Santiago Petracchi in " CINEPA S.A.”, Judgments: 311: 372, Consider.

7 in fine) and that could not be consummated due to circumstances beyond the control of the author (art. 42 Penal Code).

The consequence that the described dogmatics inevitably brings us is that, unlike the “acts of execution” that make up the attempt, neither the “ideation acts” nor the “preparatory acts” are subject to punishment, being sheltered under the orbit of article 19 of the National Constitution (CSJN, Rulings: 331: 2728 –2008–among others).

With the described doctrinal framework, it is appropriate to scrutinize whether the facts presented find a typical adequacy in any of the proposed criminal figures starting with the first of the two criminal hypotheses.

According to the imputation terms embodied in the respective requisitions:

“[F]irstly, it can be inferred that the operative clause set forth in article 7 of the document, the joint letter signed by Foreign Minister Timerman and his Iranian counterpart, and the consequent registration of the legend in the I24 system /7 of INTERPOL – whose content made known the fact that Argentina and Iran had agreed to resolve the AMIA case bilaterally through diplomatic channels – were the pertinent channels to moderate the status of the red notices of the Iranian fugitives and prevent them from international captures ordered by the head of the Federal Court

6 were immediately executed.” (Cfr.: Fiscal requisition, fs. 9588 and vta.).

In a similar sense, the complaint refers to the participation of State authorities

Argentine in the implementation of the Memorandum of Understanding

“He also sought impunity for the citizens of Iranian nationality accused of the attack on the headquarters of the A.M.I.A. by giving autonomous operation to the survey of international catches that weighed on those responsible in clause 7 of the Memorandum, by separating it from the approval process of the rest of the instrument.” (requirement formulated by the complaint of Messrs. Luis Czyzewski and Mario Aberbuch, fs. 9370 vta.).

In this way, “the purpose of the criminal plan was to neutralize the function of red alerts, and for this it was not necessary to expressly lift them. And this criminal plan was consummated: [t]here it has been possible to establish, throughout the process, that the signing of the understanding treaty with Iran, produced its incorporation into the screens that Interpol uses to record red alerts. This necessarily alters its function.” (Idem, fs. 9378 row.).

To support this hypothesis, the accusation refers to the fact that the Memorandum of Understanding had two different principles of execution. On the one hand, the one corresponding to all the clauses of the agreement – ​​with the exception of one – which required the approval of both States and the reciprocal exchange of notes verbales informing such event for the entry into force of the instrument. On the other, the one stipulated in the seventh clause, whose operability was born with the mere signing of the instrument and the subsequent communication to Interpol. It also understands that, in accordance with previous practices of the international police organization, the maintenance of arrest notifications did not depend on the judge in the AMIA case, but that those could be directly annulled by Interpol in light of a political agreement communicated by both countries.

Described in the terms outlined, the contrasting of the accusatory hypothesis requires the examination of four aspects related to the case: a)

what is the legal status of the Memorandum of Understanding, b) what legal possibilities exist for an early entry into force; c) which is the body with the final decision to resolve the maintenance of red notices and, where appropriate, c) what suitability does the international instrument have to put the survival of notifications in crisis.

In international law, treaties can take on various names depending on the specifications they contain. Whatever its nomen iuris -a matter that is not relevant to go into the case file-, the same legal transaction is defined as covered under the category of international treaty (cf.: Guillermo R. Moncayo, Raúl Vinuesa and Hortensia Gutiérrez Posse, "International Law Public", Ed. Zavalía, Bs.As., 2001, T. I, p. 96). Conceptually, a treaty imports an agreement of wills between two or more subjects of international law that tends to create, modify or extinguish rights of this order (Idem, op. cit., T. I, pp. 96 and 97). More precisely, the two Vienna Conventions applicable to the matter, from 1969 and 1986, define the treaty as "an international agreement entered into in writing between the States and governed by international law, whether it is contained in a single instrument or in two or more related instruments and whatever their particular denomination" (art. 2, sub. 1, app. "a" Vienna Convention on the Law of Treaties of 1969 and art. 2, sub. I, app. "a" Convention on the Law of Treaties between States and International Organizations or between International Organizations of 1986). Under such conditions, the

Memorandum of Understanding

between Argentina

and Iran is

an international treaty

of character

bilateral

concluded between States and,

as such, it is

subject in

its regulations to the provisions of the Vienna Convention on the Law of Treaties of the year 1969, approved by our country through law 19,865 and in

Valid since January 27, 1980 (the 1986 Vienna Convention was approved in 1990 by Argentina through Law 23,782 but has not yet entered into force according to the provisions of Article 85).

As a consequence of this, articles 11 to 17 of the Convention contemplate four modalities of being bound by a treaty as a form of manifestation of consent: with the mere signing of the instrument (art. 12), with the exchange of the same ( art. 13), with the exchange or deposit of the instruments of ratification, acceptance or adhesion to the treaty (arts. 14, 15 and 16), or through any other mechanism agreed by the parties (art. 11).

Now, as established in the sixth clause of the text in Spanish – which agrees with its original in English – of the Memorandum:

“6. Entry into force. This agreement will be submitted to the relevant bodies of each country, be they Congress, Parliament or other bodies, for their ratification or approval in accordance with their laws.

This agreement will enter into force after the exchange of the last verbal note informing that the internal requirements for its approval or ratification have been fulfilled.”

For its part, clause 7 provides:

“7. Interpol. This agreement, after being signed, will be submitted jointly by both foreign ministers to the Secretary General of Interpol in compliance with the requirements demanded by Interpol in relation to this case."

Examination of the transcribed clauses reveals that, as is usual in international treaties, the Memorandum of Understanding stipulated its own requirements for its entry into force, which was conditioned by two circumstances: 1) approval by the organs constitutional provisions authorized by each of

the contracting States –Argentina and Iran– and; 2) a subsequent exchange between the two informing through reciprocal notes verbales the fulfillment of the internal law requirements for its approval.

The formation of an international treaty is a process that, with more or less conceptual distinctions, is grouped into four stages: a) negotiation, b) signing, c) approval, and d) ratification (cf.: Germán J. Bidart Campos, "Elemental Treaty of Argentine Constitutional Law", op. cit., T. II-A, p. 353).

Regarding the Argentine legal system, the negotiation, subscription and ratification of the instrument are the responsibility of the National Executive Branch as head of the Nation's foreign relations (art. 99, sub. 11 CN). However, the approval requires the concurrence of the will of both houses of Congress (art. 75, subsections 22 and 24 CN) with a variable level of majorities depending on the matter regulated by the respective instruments. There is also a common fund requirement for all treaties that emanates from Article 27 of the National Constitution, according to which none of these instruments may contravene "the principles of public law established in [the] Constitution."

Following the described procedure, the Memorandum of Understanding was negotiated and subsequently signed on behalf of the Argentine State by the then Foreign Minister Héctor Timerman, on January 27, 2013, and obtained approval by the National Congress exactly one month later , through the enactment of Law 26,843 (B.O. 3/1/2013) thus enabling the internal law path of the Argentine State.

As regards the other signatory State, the internal validity requirements are stipulated in the Constitution of the Islamic Republic of Iran approved by the Constituent Assembly of that country on November 15, 1979 and

ratified via referendum on December 2 and 3 of that year, with the reforms of 1989 (a complete version in Spanish of the Iranian Constitution can be verified in Alberto Gache's translation of the Italian version, translated in turn from Farsi by Professor Giorgio Vercellin, cfr.: Annals of the National Academy of Moral and Political Sciences, Volume IX, Year 1980, pp. 513 to 532, available at: (https://www.ancmyp.org.ar/user /CONTINUATIONANALES/34_ VOLUME%20IX.PDF to 09/29/21)).

Although it is a theocratic State or “Islamic Republic” (principle 2 of the Constitution of the Islamic Republic of Iran) that places the highest authority in a supreme leader or “Ayatollah”, the Iranian constitutional regime presents in many aspects similarities with a good part of the western constitutional systems. There is a division of the functions of power into three large departments such as the legislative, the executive and the judicial, the latter expressly designated as an independent body (principle 156) from the others. Regarding the present case, the Islamic Constitution conditions the validity of an international treaty in that country to the approval of its Parliament (principles

77 and 125), which is unicameral (principles 62 and 63). However, it requires a further step by submitting Parliament's decisions to the endorsement of the "Council of Supervisors" who, as the body expressly entrusted with interpreting the Constitution (principle 98), performs an ex ante "compatibility" examination of any norm approved by that “for the purposes of its conformity with the principles of Islam and the Constitution” (principle 94). In a sense analogous to the Argentine Constitution, the Iranian Constitution also subjects the validity of international treaties to a substantive requirement: the prohibition of incorporating into domestic law any international instrument that stipulates a "preponderance of other countries" over "natural resources, the economy, or the

army or that in any way undermines the dignity of the country” (principle 153).

In accordance with the constitutional bases described, it is not a disputed fact that although the Argentine Republic complied with its commitment to approve the instrument, it did not proceed to its ratification, which, in the present case, consisted of the exchange verbal notice with the Iranian state. There is also no controversy –or, at least, there is no evidence provided in the case file to deny it– regarding the fact that the Memorandum did not complete the internal approval procedures in the Islamic Republic of Iran. Although the then President Mahmoud Ahmadinejad signed the instrument on May 19, 2013, it never reached parliamentary approval in that country (cfr.: "What does the memorandum between Argentina and Iran consist of?", in the newspaper "El País", on January 20, 2015, available at: (https://elpais.com/internacional/2015/01/20/actualidad/1421761447_821346.html al 09/29/21)). As a logical consequence of the foregoing, the bilateral exchange of notes verbales provided for in the sixth clause of the instrument did not take place either.

It is up to us to explore now, despite the lack of entry into force, if the treaty contained some mechanism of early validity that –as the accusation postulates– allows to give life to any of its provisions from the very moment of its signing. More specifically, if the obligation of the parties to communicate the agreement to Interpol stipulated in the seventh clause could be presented as a mechanism of partial and early entry into force

of the Memorandum and, as such, likely to begin to produce partial effects, among which could be the cessation of Interpol's intervention and, as a consequence, the fall of the red notices in force.

According to the regime of the Vienna Convention, the general rule is that a treaty enters into force when the instrument itself indicates so (art. 24). In bilateral treaties that require internal approval, the obligation arises when the States exchange the respective international instruments of ratification (cf.: Guillermo R. Moncayo, Raúl Vinuesa and Hortensia Gutiérrez Posse, op. cit., T. I, pp. 111 and 112). There is, however, an exceptional possibility that, without prejudice to the actually agreed entry into force, the international instrument may begin to have a provisional application, that is, produce effects previously in all or in some of its parts. In order for a treaty to have a provisional application, Article 25 of the Convention stipulates that the instrument itself must provide for it or that the negotiating States have agreed otherwise. It is an exceptional, punctual modality and with a limited time window that runs from the moment of signing until the expected date of entry into force and is intended to overcome the slowness of the internal process of formation of the will of the signatory subjects. (Cfr.: Ricardo Arredondo, "Course on Public International Law", Ed. Ad-Hoc, Bs.As., 2020, p. 57). In all cases, when a provisional application is agreed, international practice requires an express stipulation.

Before its approval, that is, once the consent to be bound has been expressed, but prior to its ratification, the only obligation that weighs on the signatory States is that established in Article 18 of the Convention to refrain from performing acts that "frustrate the object and purpose of the treaty."

Outside this assumption, it is the date of deposit of the international instrument that translates the consent to be bound (cf.: Guillermo R. Moncayo, Raúl Vinuesa and Hortensia Gutiérrez Posse, op. cit., T. I, p. 112), unless the treaty provides for a specific modality of entry into force which, as in the present case, is subject to the exchange of notes verbales between both States informing their internal approval.

As soon as the Memorandum of Understanding is examined, only one effective provision can be identified: the already explained sixth clause. Apart from it, we do not find in the instrument any provision that provides for its provisional application in the terms of Article 25 of the Vienna Convention, considering that none of its provisions contemplates, either expressly or even implicitly, something similar. Added to this is that none of the nine clauses that comprise it present a wording similar to one of the provisional application clauses contained in the project of model clauses for the provisional application of treaties prepared by the United Nations International Law Commission that puts us in the presence of a treaty with provisional application (cfr.: 1.-United Nations, "Report of the International Law Commission", 71st period of sessions, April 29 to June 7 and July 8 to August 2019, New York, 2019, Doc. A/74/10, Annex A, pp. 388 to 392, available at (https://undocs.org/es/A/74/10 to 09/29/21 ); 2.-United Nations, General Assembly, International Law Commission, "Provisional application of treaties. Comments and observations received from Governments and international organizations", New York, 2019, Doc. A/CN.4/737, available in (https://undocs.org/pdf? symbol=es/A/CN.4/737 as of 09/29/21).

In the presence of the arguments presented, we are facing a second conclusion: the Memorandum

Discarded then the possibility of an early validity of the treaty, in the absence of an express stipulation, it corresponds to investigate what was the purpose of the communication to Interpol contained in the seventh clause of the instrument itself and, fundamentally, if this provision would have power to initiate an administrative process before the aforementioned international entity likely to end the validity of the red notices published against the five citizens required by the Argentine justice system.

While the defenses identify the judge in the AMIA case as the only magistrate capable of ordering the cessation of the red notices, both the complaint and the Prosecutor's Office highlight that Interpol had regulatory powers to drop the notifications without an order from the judge of the cause.

Explained by Interpol itself in its meaning and scope, the notifications are international notices used by the police to transmit information to their colleagues around the world about crimes, criminals and threats. They are disseminated by Interpol to all member countries at the request of a country or an authorized international entity. The information disseminated through them is

refers to people wanted for having committed serious crimes, missing persons, corpses to be identified, potential dangers, prisoner escapes and criminal modus operandi offering great visibility for crimes or serious incidents.

Based on their internal organization, notifications are coded into seven categories or colors: red, yellow, blue, black, green, orange, and purple; to which is added a new model which is called: "special notification from Interpol and the UN Security Council".

Red notices constitute a request for preventive detention for the purpose of extradition communicated by one of the Interpol Central Bureaus in a country or an international entity with competence in matters of criminal investigation and prosecution (article 82 of the Interpol Regulations on the Data treatment). As expressly indicated by the entity itself, "the legal basis for red notices is the arrest warrant or court order issued or issued by the judicial authorities of the country concerned" (cfr.: www.interpol.int, more specifically: (https ://www.interpol.int/es/Comotrabajamos/Notificaci ones/Acerca–de–las–notificaciones al 09/29/21) They are valid for five years and can be renewed indefinitely (cfr.: Interpol Report, OCN Buenos Aires, dated February 6, 2017, page 4269. Through them, Interpol provides valuable assistance to the police entities of the member countries in making themselves aware of the provisions of the competent authority of a sovereign country. .

Now, article 5th. of the Interpol Regulation on Data Processing (cfr.: (https://www.interpol.int/es/Quienessomos/Marcojuridic o/Documentos–juridicos al 09/29/21)) stipulates that “international police cooperation shall be will be carried out within the framework of the general rules that govern the operation of the Organization, in particular its

Statute”. For its part, the Statute provides in its article 3. that “[t]he Organization is strictly prohibited from any activity or intervention in

issues or character issues

political,

military,

religious or racial.” (cf.:

Statute

of the

International Organization for

Police

Criminal

Interpol, approved by the General Assembly of the Organization, at its 25th meeting, in Vienna in 1956, with the modifications of 1962, 1964, 1977, 1984, 1997,

2008 and 2017, available at (https://www.interpol.int/es/Quienes–somos/Que–es– INTERPOL at 09/29/21), the highlighting belongs to me).

In turn, the status of notifications is regulated in a common way for all its categories by article 81 of the regulation on data processing whose text in Spanish is pertinent to transcribe:

“Article 81: Suspension or withdrawal or annulment of a notification.

1.Both the National Central Office and the international entity that has requested the publication of a notification may suspend its request for cooperation or its alert for a period not exceeding six months. It will indicate the reasons for said suspension to the General Secretariat, which will proceed to suspend the notification.

2. The National Central Office or the international entity that has requested the publication of a notification will be obliged to withdraw its requestfor cooperation or its alert and request the General Secretariat to proceed immediately to the destruction of the notice provided that:

a) the request or alert has achieved its purpose; either

b) the request or alert is linked to other successful requests or alerts without which the alert cannot be maintained

c) don't want to keep notification; or

d) the notification no longer meets the minimum conditions for publication.

3. The General Secretariat will cancel a notification provided that:

a) the request for cooperation or the alert following which the notification has been published has achieved its purpose, and this information has been confirmed by the National Central Bureau or the international entity that requested the publication of the notification; either

b) the request or alert is linked to other requests or alerts that have achieved their purpose without which it cannot be maintained; either

c)the notice no longer meets the minimum conditions for publication; or

d) the National Central Office or the international entity that has requested its publication has received the necessary data to carry out the required actions, but has not taken any action in this regard and, after being consulted, has not provided sufficient explanations about this inaction." (Emphasis does not correspond to the original).

According to the transcribed text, it is inferred that Interpol notifications are subject to three interruptive mechanisms during their validity: a) suspension, which takes place for a period not exceeding six months (art. 81, sub. 1 ); b) withdrawal, which can become operational in cases where the alert request fulfilled its purpose –vgr. when the requested party managed to be detained– or when it is linked to other notifications that have fulfilled their purpose, when the requesting Central Office does not wish to maintain it or, finally, when the notification loses the minimum conditions for its publication (art. 81, sub. 2 ); and c) the annulment that, as in cases of withdrawal, can take place when the notification fulfilled its purpose or is linked to another notification that fulfilled it, when it loses the minimum conditions for its publication and, additionally, when the Office Central or international entity that requested the notification does not take any action in relation to the requested despite having the data to do so (art. 81, sub. 3).

In the three cases described, the body that orders the expiration of notifications is the General Secretariat of Interpol. In the case of its suspension or withdrawal, it is done at the initiative of the Central Office or the international entity that requested the notification; In cases of annulment, the General Secretariat proceeds directly without any requirement from any party.

To complement this examination, in what concerns the case at hand, article 83 of the Data Processing Regulations establishes the minimum conditions that a red notice must meet for its publication: a) the crimes that justify the search must be serious; b) with a maximum penalty of at least two years in prison or, in the case of an arrest warrant for serving a sentence, with a term of more than six months for effective compliance; c) it must be a case of interest for international cooperation; d) the notification must comply with the identification data and a photograph of the person requested;

e) must contain a brief description of the criminal acts; f) the legal qualification of the facts; g) the citation of the legal norms that penalize them; h) the maximum penalty applicable to the crime, the amount of the sentence to be served or that remains to be served, as the case may be; and, finally, i) a copy or reference of the valid arrest warrant or equivalent resolution.

The survey carried out indicates that the Interpol General Secretariat is the assigned agency, in its capacity as "international center for the fight against common law crime" and "technical and information center" (art. 26, incs. "b" and "c" Interpol Statute), which acts as the comptroller of legality of the normative provisions of Interpol in relation to the treatment of published data. It is precisely as a consequence of this control function that, as the OCN Buenos Aires explains to us, the General Secretariat prepares a

directory of practices applied in relation to the so-called “neutrality clause”, contained in article 3 of the Statute. Based on various guidelines issued both by the General Assembly and by the new provisions of international law, the General Secretariat stipulates the application criteria of the different notifications taking as parameters the different types of crimes, the charges and the facts charged, the condition of the persons concerned, the identity of the source of the data, the opinion of another National Central Office other than the one requesting the publication, the obligations of international law, the repercussions on the neutrality of the organization and the general context of the case (cf. .: Interpol report, OCN Buenos Aires, dated

February 6, 2017, fs. 4269).

The applicable regulatory framework answers the third question: as evidenced by articles 5 and 81 of the Data Processing Regulations, and without prejudice to the reviewing powers that the Executive Committee or the General Assembly have over the decision, the The body with the final decision to decide the validity of the red notices is not the judge of the AMIA case, but the General Secretariat of Interpol. At this point, as postulated by one of the two complaints (cf.: response in voce of Dr.

Tomas Farini

Duggan,

in “Christina

Fernandez

of

Kirchner and

others s/

incident of

nullity”,

6th grade

audience, ob. cit., see specifically 48:10 to 55:10) it is imperative to distinguish between the arrest warrants against the required Iranians, whose authority rests with the judge in the case, and the publication of red notices, whose subsistence, as we have seen, rests in the General Secretariat of Interpol, with the intervention, where appropriate, of the National Offices. It is precisely the intelligence described, compared with the documentation contained in the Interpol report, produced on June 22, 2020, which

allows us to legally explain how on October 3, 2004, the General Secretariat of Interpol informed the OCN Buenos Aires that it would suspend the dissemination of arrest notices against Iranian citizens and their subsequent discharge the following year by decision of the Committee Executive, despite the express opposition of the Argentine authorities.

Being linked then, the permanence of the notifications to the decision of Interpol, it is appropriate to investigate what is the suitability attributed by the international criminal police entity to the Memorandum of Understanding, to put in crisis the subsistence of the red notices. We find evidence in the case file that explicitly provides a conclusive answer.

According to testimony in the record, Roberto García Moritán, in a meeting held in 2007 between the then Secretary General of Interpol, Ronald Noble, and Iranian diplomatic authorities, of which meeting he took part in his capacity as Argentine Vice Foreign Minister, "the Iranian delegation concentrated He drew attention to the lifting of the red notices and asked the Director General of Interpol, Mr. Ronald Noble, what could be the possible mechanisms for this to happen. Director [N]oble replied that there were two ways. One by request of the judge of the AMIA case and another by means of an agreement of the parties. The Iranian delegation insisted on the meaning of the agreement of the parties and Director Noble told them that this implied a political agreement between the two governments that would be notified to INTERPOL, and that this could also be an element for the lifting of the red circulars”. In this way, once the Memorandum was known, adds the witness, “I linked Iran's concern at the INTERPOL meeting with point seven of the [M]orandum. This is because it was an unprecedented situation in public international law, in which there was an instrument that had two different mechanisms for

its entry into force. One was the parliamentary ratification for eight of the nine points, while for the entry into force of the seventh point, only the simple signing of the document was enough. As I said, such a unique mechanism in the history of international law reminded me of what was discussed at the meeting in France” (cf.: witness statement of Roberto García Moritán, fs. 6993/4; the emphasis does not correspond to the original). With this interpretation, according to the accusatory hypothesis, the requirement contained in the seventh clause of the Memorandum to communicate its subscription to Interpol would find its raison d'être in order, in this way, to enable it to interpret that both countries reached a bilateral agreement that no longer made the subsistence of the notifications is necessary (cf.: requisition of the Public Prosecutor's Office, fs. 9484 and vta.).

It should be noted that voluminous evidence was produced during the investigation, including several reports from the criminal police entity Interpol, among which the one on fs. 7400/7448). However, on June 22, 2020, a new Interpol report arrived at the case, which had a significant impact on that investigation, by providing new evidence that I find decisive for the processing of the case and, unlike what was sustained by the representative of the Public Ministry, are likely to be considered as new evidence under the terms of article 361 CPPN.

Among the chronology of the actions carried out by Interpol regarding the internal processing of the Memorandum between the end of 2012 and the end of 2013 outlined on fs. 7443 by the original report accompanied during the investigation, it can be seen that there is no record between October 3, 2012 and December 4, 2013. On the contrary, as noted by Zannini's defense attorney (cf.: rejoinder in voice of Dr. Mariano Fragueiro in “Cristina

Fernández de Kirchner and others regarding the nullity incident”, 6th hearing, ob. cit., see specifically: 1:54:20 to 1:59:47), a letter dated February 15, 2013 addressed to the Secretary General of Interpol by the then Argentine Foreign Minister appears in the new report of June 22, 2020. Héctor Timerman –received by Interpol on the same date– in which, in compliance with the provisions of the seventh clause, he announces the execution of the Memorandum of Understanding.

As far as this case is concerned, what is expressed in the second paragraph of said letter acquires importance, in which Timerman states that “according to the applicable regulations, any change in the international capture requirements duly formulated to INTERPOL from Argentina in relation to the serious crimes investigated in the AMIA case, can only be carried out by the Argentine judge with jurisdiction in said case, Dr. Rodolfo Canicoba Corral, in charge of the [National Court in Federal Criminal and Correctional N° 6 of this city. In other words, the signing of the Memorandum of Understanding, its eventual approval by the relevant bodies of both States and its future entry into force, do not produce any change in the applicable criminal procedure, nor in the status of the requirements of international capture referred to above.” (Cfr.: Interpol report of June 22, 2020; highlighting does not correspond to the original).

The transcribed letter unequivocally reveals the Argentine government's intention that the Memorandum of Understanding does not produce any effect in relation to current catches. But it allows, in turn, to infer the same spirit in relation to the notifications, as declared in the case file by the Deputy Director General of the Foreign Ministry's International Legal Counsel, Dr. Holger Martinsen, who expressly stated that he had attended the meeting with Interpol on the days 14 and 15

of March 2013, with the express order of Foreign Minister Timerman to “procure an unequivocal and written statement from INTERPOL, acknowledging that the signing of the Memorandum does not affect the red alerts issued in relation to the AMIA case, in the sense in which he had expressed it in his letter to the Noble Director, dated February 15, 201[3]” (cfr.: download of fs. 7292/7339, see specifically fs. 7317 vta./7318 vta.).

But if the need to distinguish between the effects of the captures and the subsistence of the red notices persists, the response provided by Interpol to Timerman's letter is also eloquent, a document that, as with the previous letter, I consider that it has sufficient entity to seal the fate of the accusatory hypothesis under study.

Once the signing of the Memorandum was communicated, as evidenced by the transcribed note, on March 15, 2013, the Legal Counsel of Interpol, Joël Sollier, acknowledged receipt of the communication from Chancellor Timerman and, as regards the case concerned, undoubtedly in the name of Interpol, provided the following response: "The Office of Legal Affairs of the INTERPOL General Secretariat states that this agreement does not imply any type of change in the status of the red notices published in relation to to the crimes investigated in the AMIA case", adding that "[i]n this sense, the Office of Legal Affairs considers that the aforementioned agreement is a positive development in the clarification of the case" (cfr.: report of Interpol of June 22, 2020; the highlighting does not correspond to the original).

The official nature of the response

–considering the Interpol letterhead on the paper and the accredited functional competence of the issuer–, coupled with the verified validity, uninterrupted throughout all these years, of the

red notices (their current validity can be checked by anyone visiting the Interpol website https://www.interpol.int and, more specifically, at

(https://www.interpol.int/es/Comotrabajamos/Notificaci ones/Ver–las–notificaciones–rojas al 09/29/21), stating the surname and first name of each one of those required in the section "Filter Criteria" inserted in the middle part of the left side of the cited page), does not leave the slightest loophole in doubt, not only regarding the novelty of this test, which would justify by this single document the authorization of the treatment of the defenses raised, but rather, in INTERPOL's opinion, the Memorandum of Understanding between the Argentine Republic and the Islamic Republic of Iran was not an appropriate instrument to influence the validity of red notices.

Although it is true, as explained above, that Interpol canceled in 2005 the notifications that weighed so much with respect to the former Iranian ambassador in Argentina at the time of the AMIA attack, Mr. Hadi Soleimanpour, as well as to the rest of the required, the context diametrically opposed to that of the case file in which this took place cannot be ignored. In the case of the diplomat, captured in Great Britain at the request of the Argentine justice, the British justice understood – at least preliminarily – that there was no criminal merit for his case. Regarding the rest of the defendants, the cessation of notifications was a necessary consequence of the declaration of nullity of the AMIA case decreed by the Federal Oral Criminal Court No. 3 of Capital Federal. Both events led Interpol to judge that the legal validity of the criminal procedure that served as an enabling budget for the publication of red notices had been affected and, thus, that the "minimum conditions" for the subsistence of the notifications required by the art. 81 of the Regulation of said entity. In

In contrast to what happened in those years, it was proven in the case at hand, that Interpol ruled regarding the Memorandum of Understanding that it lacked such aptitude.

There is still something else to explore.

In compliance with the seventh clause of the treaty, in addition to the note signed by Foreign Minister Timerman, on February 15, 2013, the same day Foreign Ministers Timerman and Salehi also addressed a joint note to the Secretary General of Interpol, Mr. Ronald Noble, notifying the signing of the Memorandum of Understanding in the following terms:

“Ronald K. Noble Secretary General of INTERPOL Lyon, France

Dear Mr. Noble:

A copy of the MOU [Memorandum of Understanding] entered into between the Islamic Republic of Iran and the Argentine Republic on the attack on the AMIA in Buenos Aires in 1994 is attached, which is sent by virtue of Article 7 of the document .

We take this opportunity to thank you for your efforts on various occasions in past years aimed at bringing the delegations of our countries closer together to resolve their differences in your organization with mutual understanding and respect.

Similarly, we are pleased to inform you that both countries have agreed that the issues between them regarding the AMIA case will be resolved through bilateral cooperation.

[Signature] On behalf of the Islamic Republic of Iran: Ali Akbar SALEHI. Chancellor.

[Signature] On behalf of the Argentine Republic: Héctor TIMERMAN. Chancellor." (cfr.: text in Spanish in the Annex to the Legal Department Directorate –DICOL–, Folder II, folio 28 and the

original in English without

number between the

folio

24 and 26).