Is Héctor Timerman’s Detention Constitutional? Let’s Take a Look


Published on The Bubble

In the last six months, we’ve seen a never-ending list of former Kirchnerite officials and leaders placed under pre-trial arrest, also known as preventive custody, as investigations of alleged corrupt behavior during the Fernández de Kirchner administration move forward.

Former Foreign Minister Hector Timerman’s case was particularly controversial due to his poor health condition and prompted many to wonder whether these arrests were justified or merely part of a systematic plan to put former political figures in jail.

Why is Timerman accused?

Ex Foreign Minister Héctor Timerman is accused, along with Cristina Fernández de Kirchner, of being part of a cover-up in the investigation of the AMIA bombing in 1994, in which 85 people were killed and 300 more were wounded. Federal judge Claudio Bonadio decided to indict and arrest him, although he was granted house arrest due to his poor health. (For the last couple of years, Timerman has been battling cancer.)

Wait, back up. Who is Héctor Timerman again?

Héctor Timerman was Argentina’s Foreign Minister from 2010-2015, serving under the Fernández de Kirchner administration. Formerly a journalist and son of renowned political journalist Jacobo Timerman, he was known for his confrontational and aggressive approach to both domestic and international affairs, particularly when it involved the United States. He was also a heavy Twitter user and could be seen engaging in very public fights on the platform, to such an extent that many nicknamed him “Twitterman.” (He eventually deleted his account due to his never-ending spats.)

Now in one sentence, explain the 1994 AMIA bombing to me? Just to refresh my memory.

Sure. On July 18, 1994, a bomb exploded outside the AMIA Jewish community center, located in the Buenos Aires neighborhood of Once. As I mentioned before, 85 people died in the attack and hundreds were injured. After 24 years, the investigation remains stuck and mired in controversy. Today, the unsolved case is a symbol of Argentina’s long struggle with impunity: those responsible for the attack have never been identified.

That was three sentences, but thanks. So, how is Timerman connected and why has he been placed under house arrest?

Well, grab a coffee and get ready. This case is a mess and there are four main theories as to who was behind the attack. The official version – meaning, the lead currently followed and pursued by the government – says it was a car bomb attack planned and executed by Iran. Others say that it was Syria trying to hit back at then-President Carlos Menem. Some people say there was a “local connection” and blame the Buenos Aires Province police. And finally, some who say that the explosives had been placed inside the building. See? Told you. Total mess.

Now, do you remember prosecutor Alberto Nisman? (Yes, that Nisman.) Before he was found dead in his apartment in January of 2015, Nisman, who was then acting as the lead investigator in the case against Iran, shocked the world when he announced that Cristina Kirchner, along with a few accomplices, was planning to cover up Iran’s alleged responsibility in the attack. Among those accomplices was her Foreign Minister, Héctor Timerman. In short, Nisman accused both Cristina and Timerman of treason.

After Nisman’s death, and many refusing to handle such a hot court case, Bonadio decided to take it and move forward with the investigation to find out whether the highest echelons of government had indeed engaged in treason to the country.

Phew. What a mess. OK, so the treason investigation is still ongoing and awaiting trial. Why is Timerman under arrest then?

Judge Bonadio argued that the former minister could “obstruct the investigation” and decided to place him under arrest. So just to be clear, he is in prison in a case that investigates whether there was an attempt to cover up Iran’s responsibility or not. (And that case itself has nothing to do with the case investigating the AMIA attack in 1994. If you want to learn more about what’s happening with that case, then read here.)

What was Timerman’s reaction to his arrest? Isn’t he sick?

Well, first Timerman (along with Cristina Kirchner) has always maintained his innocence, assuring that the only way to find out what happened in 1994 was through working with Iran to question the suspects – currently on Iranian soil – through the so-called and highly controversial Memorandum of Understanding. Timerman also insists that his arrest is political. To such an extent that wrote an op-ed on the New York Times titled “I am a political prisoner in Argentina.”

Among with other detained high-profile Kirchnerite personalities, he says that the Cambiemos coalition, currently in power and led by President Mauricio Macri, is trying to get rid of opposition leaders.

Some criminal law specialist has been saying that his detention is unconstitutional. Others, however, don’t see a problem with it. Why is that?

This situation is particularly controversial, because, since he was under house arrest, he was not allowed to leave the country and travel to the US to pursue treatment for his illness. In fact, the US canceled his visa due to his arrest back in December, and Macri had to intervene and ask the US government to grant him the authorization to fly to New York.

Besides the moral and humane issues that this case arose, the big question on many people’s minds was when – and why – is preventive custody (also known as “pre-trial arrest”) legitimately justified?

Indeed. I read a lot of Kirchnerite leaders were put in preventive custody recently as they await their trials.   

Right, Timerman’s case is not the first one. It is particularly controversial and newsworthy because of his poor health condition, but preventive custodies have been happening a lot since Macri took office in 2015.

The Comodoro Py Federal Court has recently seen an endless parade of former Kirchnerite politicians and business leaders who go in as free citizens and leave in handcuffs, including powerful figures like former Planning Minister Julio De Vido and business tycoon Lázaro Báez, iconic for his shady deals with the Kirchners. Names like Carlos Zanini, Luis D’Elía, former Vice President Amado Boudou (imprisoned and then released in February), José López, and Milagro Sala are just some examples.

So far, the only one that has been found guilty and is currently serving his sentence is former Transportation Secretary Ricardo Jaime. The rest are awaiting trial and remain in preventive custody.

Can you explain the concept of preventive custody? When, why and, above all, how does it apply?

The first and most important goal of preventive custody is to protect the course of the investigation. However, a few requirements need to a apply before a judge can order it.

The International Covenant on Civil and Political Rights, which was added to the Argentine Constitution during the reform of 1994 states that preventive custody “cannot be a general rule.”

In fact, since 1853, the Argentine Constitution states that “no resident can be punished without a trial based on previous law to the act judged.”

Well, but preventive custody is an actual legal figure, right?

Correct! It is included, in fact, on the 316th article of the Criminal Code, which says that “preventive custody is recognized by criminal local law and international treaties, but the idea is that it cannot imply guilt: presumption of innocence remains even when the judge dictates preventive detention”, Ezequiel Spector, an UBA lawyer and Ph.D in Philosophy of Law (UTDT) tells me.

And Spector also told me that there are two scenarios in which a judge can resort to preventive custody: when it is believed that the suspect is a flight risk or can obstruct the investigation. (The second scenario is what prompted Judge Bonadio to place Timerman under house arrest).

And how can someone obstruct an investigation?

Well, there are three different types of obstruction and they mainly involve destroying evidence or intimidating witnesses.

  1. The suspect has to do something to obstruct the case and there has to be clear evidence of this so it can be proven.
  2. Any behavior that suggests that the suspect can obstruct the case is enough to apply preventive custody, even if it’s a behavior that happened in the past and bears no relation to the current investigation. For example, if the suspect helped a friend destroy evidence during a trial, that’s enough to send the suspect to prison.
  3. Irurzun Doctrine: This is the one that a judge applied against former Vice-President Amado Boduou and is highly controversial. It says that if the person under investigation “has been a part of a power structure and still keeps bonds with powerful people,” that is enough to apply preventive custody.

This is frowned upon, because it implies that anyone that has ever held public office could fall for preventive custody, as these relationships occur within a power structure.

Wow, that sounds like a little bit too much…

Indeed it does. Spector says “it violates the right to freedom” and that “with this criteria, any politician under investigation should be in jail. Even if they belong to the Macri administration.”

The problem with this interpretation is that it also does not match with the Constitution, or at least with the Constitution’s spirit, which is to protect basic human rights.

Spector says that the Irurzun doctrine “is an unconstitutional interpretation of what the word ‘obstruction’ implies.”

Damn. Not constitutional, that can never be good.

And there’s another problem. The language in the Irurzun Doctrine is very unclear. Spector says that “something that the media has failed to cover is that this doctrine, as it is, is ambiguous. Because it can be seen as if there has to be evidence that the person is using their relationships to obstruct the case. While at the same time, there is no need of evidence at all. The relationship itself is proof enough to suspect obstruction.”

And this is where the problem lies.

Spector says that “the Irurzun Doctrine, interpreted as a requirement of evidence of obstruction is not unconstitutional. But to suppose that only by the existence of contacts in a power structure there is enough reason to order a preventive custody is of unconstitutional: I can have a relationship with those contacts, but that doesn’t mean i’m going to use them, but that doesn’t mean that I’m going to use them”, Spector argues.

Ok, so how does all of this fit into Timerman’s case?

The former Foreign Minister’s case is, as said, one of a kind. Because he has cancer, Claudio Bonadio gave him the benefit of house arrest, on the condition that he ask for permission to go to the doctor for routine check-ups.

Criminal Procedure Code gives some assumptions for the preventive detention figure to be at home. If the person is pregnant or has other health problems, for example.

But his detention is, according to Professor Spector, at least odd: “Timerman’s house arrest is strange, because if the judge requires a case obstruction situation, and also says that home detention applies, you can guess that if he’s dying there is no danger of the obstruction of the case, because he cannot do anything.”

According to him, both assumptions are contradictory. “I don’t think Timerman’s situation fits [the conditions for] house arrest,” he adds.

What about his health problem, then? Could Timerman travel to treat his illness?

Regarding his health problem, Spector thinks that “it is clear that preventive detention implies a rights cutback, this includes going out, receiving treatment, and other things. So a humanitarian decision that would have contemplated this should not have given him preventive detention. How much can a man in Timerman’s situation obstruct a case?”

“What makes the difference is not the right to treat himself in Argentina or another country, it is how much can the involved obstruct or stain the procedure,” Spector concludes.

The way he sees it, “preventive detention has to be well understood.” Otherwise, “odd” cases can arise.

What’s Timerman’s situation now?

Macri’s administration intervene, through Jorge Faurie, the foreign minister, to reactivate Timerman’s visa.

Timerman’s lawyer has said that, due to the trip to United States, his health has deteriorated.

Cristina Kirchner’s former foreign minister is now treating his cancer overseas.

Original article, on The Bubble

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