September 17, 2014
Appeals Court declares unconstitutional deal with Iran on AMIA attack probe
The Federal Criminal Appeals Court yesterday declared the Memorandum of Understanding signed between President Cristina Fernández de Kirchner’s administration and the Iranian government unconstitutional, revoking last years’ ruling issued by Judge Rodolfo Canicoba Corral.
The judicial decision was immediately seen as a harsh blow for the government, which promoted the creation of a truth commission to investigate the July 18, 1994 terrorist bombing against the Jewish Community Centre (AMIA) that caused 85 deaths.
“The commission was only a part of the memorandum,” Justice Minister Julio Alak said yesterday minutes after the ruling was released. Alak informed that the Kirchnerite administration will file an appeal to the Supreme Court, which will have the final say about the constitutionality of the agreement.
The City’s Criminal Appeals Court No. 1 also issued an injunction to prevent the Memorandum agreed to last year from coming into force, even though it was approved by Congress amid strong opposition.
Although the agreement led to stiff opposition inside the country, its implementation has been delayed in large part due to Iran’s reluctance to move forward with the deal.
The decision by the appeals court yesterday came after Jewish community groups AMIA and DAIA filed a complaint last year denouncing the “truth commission” deal with Iran, saying it was a diplomatic victory for Tehran that offered no benefit for Argentina nor for the victims of the attack.
The DAIA quickly praised the ruling yesterday although the organization’s vice-president, Waldo Wolff, said that “we would have preferred to have the memorandum repealed.”
Foreign Minister Héctor Timerman, however, said at a news conference alongside Alak last night that the ones who would really be celebrating were the Iranian defendants “because two judges are preventing the judge from going to Tehran to question them.”
Yesterday’s resolution was issued by Judges Eduardo Farah and Jorge Ballestero, who agreed that the Memorandum of Understanding has to be declared unconstitutional and urged the Kirchnerite administration to remind the Iranian government of the five extradition requests against the suspects in Tehran.
The judges said the national government was violating separation of powers principles by creating a truth commission aimed at investigating the 1994 bombing when there is a judicial probe in progress. Violating separation of powers is exactly what Minister Alak accused the judges of doing, saying they were interfering with work that had been approved by both the Executive and Legislative branches of government.
The Memorandum orders the creation of a truth commission, which allegedly had to be formed by five commissioners and two members appointed by each country. There seemed to be some discrepancy in translations, according to yesterday’s ruling. The English-language version, for example, says the president of the commission would have to be decided jointly by Argentine and Iranian authorities.
According to Judge Farah, the commission overlaps with the role the judiciary should be playing even though part of the agreement included the authorization for Judge Canicoba Corral to travel to Iran to question suspects.
Farah went on to say that a truth commission should not be necessary in this case as the Argentine Judiciary can carry out its own investigation and he also complained because the commission did not seek to hear the victims, who mainly opposed to agreement sealed last year.
For his part, Ballestero said that the commission which had to be created was not a traditional one. For example, the member of the Criminal Appeals Court considered that the National Commission on the Forced Disappearance of Persons (CONADEP — created on December 15, 1983 by late former president Raúl Alfonsín) had a leading role in the transition to democracy and was a useful tool to take the leaders of the last dictatorship to court.
“Truth commissions do not necessarily replace the judicial role,” Ballestero affirmed but he also agreed that this deal was sealed in democracy with an Argentine rule of law in force.
A judge in Iran?
In December of last year, Canicoba Corral rejected the injunction request filed by the Jewish community organizations and agreed that as the pact was not in force they could not claim to be affected. Prosecutor Alberto Nisman opposed that decision and said the Executive had overstepped into areas reserved for the Judiciary.
“If the commission seeks to gather and examine information included in the AMIA bombing judicial investigation, how can its historic role be considered different from the judicial?” Ballestero wondered.
Opposition leaders also celebrated the ruling and what they considered the government’s defeat in an agreement many had long opposed while those allied with the Fernández de Kirchner administration largely remained silent.
“The government owes society an explanation,” Renewal Front leader Sergio Massa told news portal Infobae minutes after the decision was known. “We knew from the beginning this would happen.”
“We won!! The Iran pact was deemed unconstitutional,” UNEN-Broad Front leader Elisa Carrió tweeted last night along with a picture of her smiling for the cameras.
“Justice has been served,” PRO national lawmaker Laura Alonso said.
Herald with DyN, Télam, Reuters