Judicial Table: The Federal Chamber confirmed that the expertise on tweets and likes of opponents is not valid as evidence

The Federal Chamber today ratified the decision to exclude from the case of the so-called “Judicial Board” of macrismo a report that had been prepared by the Directorate of Judicial Assistance in Complex Crimes (DAJUDECO), at the request of the prosecutor Franco Picardi and which had been branded as “cyber patrolling” by the defendants and opposition referents.

“The measure of proof thus ordered already appears to be limitless and invasive of vital rights of the democratic system, such as freedom of expression (art. 14 CN), which are specially protected by our constitution and deserve particular attention, precaution and protection,” said the ruling granted by Infobae.

The case on the “judicial table” investigates whether Mauricio Macri and former government officials pressured judges to make judgments in their favor or “punish” those who did not had drawn resolutions related to those official interests. With the delegated investigation, Picardi asked DAJUDECO, an agency under the Supreme Court, to draw up a “mapping” of public statements by macrista officials about former prosecutor Alejandra Gils Carbó and Cassation Judge Ana María Figueroa.

The report sought to reveal “all those direct demonstrations of a public nature - whether through interviews, conferences or other events, social networks, etc. - of officials or those close to the management of government led by the National Executive Branch between 10/12/2015 and 9/12/2019, whose contents are related to expressions of critical, negative, pejorative and/or disqualifying connotations, in professional and/or personal terms, towards the persons allegedly affected” in this investigation.

DAJUDECO detailed tweets, likes and opinions on social networks and in the media of different people linked to the area of Justice of Macrismo. When the results of that report were known, both Attorney Eduardo Casal and the Supreme Court of Justice asked for details, and those involved, such as former Justice Minister Germán Garavano or today Senator Together for Change José Torello, challenged the incorporation of the report. Outside the case, the former deputy and reference of the Civic Coalition, Elisa Carrió, also denounced the DAJUDECO report.

Judge Maria Eugenia Capuchetti, who had delegated the investigation to prosecutor Picardi, decided to annul that report as evidence. Both Picardi and his superior, Deputy Prosecutor José Luis Agüero Iturbe, defended the measure and asked the Federal Chamber to incorporate it.

According to Picardi, the measure sought to “corroborate or discredit the victims' statements, in order to carry out a comprehensive analysis of all the evidence collected so far and henceforth, with the aim of also determining or ruling out criminal hypotheses linked to media and/or public coercion or harassment in an organized manner, intentional and directed, by certain officials and/or political relatives, against magistrates of our country, in direct connection, with the private, institutional and personal pressures that they also claim to have suffered and on which other evidentiary measures have been carried out”.

The appeal insisted that “the release of public opinions constitutes an appropriate, valid, legitimate and respectful means of knowledge of the fundamental rights of the accused parties and other persons who were included who were not part of this investigation” and the measure of proof complied “with the principle of freedom evidence that matters that within the criminal process everything can be proven by any means, since one of the principles that govern it is that of comprehensive investigation”.

And Agüero Iturbi stressed that the report did not seek to “incriminate an opinion expressed through networks, however recalcitrant it may be, but rather to prove a complex criminal action leading to undermining autonomy in the exercise of the function of magistrates.”

But in a ruling signed on Monday, to which Infobae agreed, judges Mariano Llorens, Leopoldo Bruglia and Pablo Bertuzzi ratified Capuchetti's decision and argued that the report requested by the prosecution “prompts a concrete threat to all individuals to express - in freedom - what they think, contrary to the fundamental principles that should govern a rule of law, implicitly exporting a dangerously censoring message to society at large in view of the possibility that their manifestations may be subject to the control and punishment of state punitive power.”

In the opinion of the court, “if this scenario is formed and presumed the possible commission of an offence through some public expression, an evidentiary measure such as the one carried out in the proceedings would not be admissible either, characterized by its indiscriminate magnitude in terms of the length of time it deals with, the numerous persons involved and the unusual breadth of the records it includes for analysis, also exceeding the limits reasonably permitted by the object imposed by the prosecuting party. This is the case, as long as its incorporation into the process covered by these particularities, would violate the clauses and guarantees of constitutional hierarchy, which require that the evidence ordered in criminal proceedings comply with guidelines of necessity, reasonableness and proportionality”.

“Any order to obtain evidence that may affect the warranties in question must be specific and strictly limited, qualities that are not noticed in the diligence in analysis. Particularly noteworthy in this regard is the indiscriminate way in which the measure is opened to a global analysis of generically qualified forms of expression and in which, in particular, the adjective 'critical' stands out. The affliction to an unknown number of people, which includes even an indeterminable and non-specific subdivision of “relatives” - over those already specified at the moment - also gives the measure an unusual extension that forces it to be disqualified”, it was resolved

That diligence, the House said, “affects not only the essential freedoms of the accused, but also those of unlimited people outside the process, with the consequent social pointing and stigmatization. This combination of possible violation of fundamental constitutionally protected rights, in an open measure, obliges the judge to take the necessary steps to remedy the excess and thus avoid, in addition to injury, the intimidation caused by the general population, who use social networks or externalize their opinions in any medium”. This scenario “added to its extreme breadth, vagueness and lack of due motivation regarding the purpose it promotes, imposes its abolition from the process,” added the Federal Chamber.

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