Argentina's President Mauricio Macri announces a presidential decree at the government house in Buenos Aires, Argentina, Monday, Jan. 21, 2019. 

© 2019 AP Photo/Natacha Pisarenko
(Washington, DC) – The Argentine government’s request to investigate a judge who is looking into allegations of surveillance and extortion that could implicate government allies undermines judicial independence, Human Rights Watch said today.

On March 13, 2019, federal investigative Judge Alejo Ramos Padilla testified before a Congressional commission about an ongoing investigation into allegations that intelligence agents carried out illegal operations. Two days later, Justice Minister Germán Garavano asked the Judiciary Council to open an investigation into Ramos Padilla’s performance, contending that he had carried out his investigation in a “political and journalistic way” and “failed to comply with his duties regarding impartiality and secrecy” of the investigation.

“Any judge can be investigated with good cause, but the government has not provided any convincing reason to investigate Ramos Padilla,” said José Miguel Vivanco, Americas director at Human Rights Watch. “Instead, it appears to be retaliating against a judge who is pursuing an uncomfortable investigation.”

The 19-member Judiciary Council investigates judges’ performance and has the authority to remove them from office for “poor performance” or if they commit a crime. Under Argentine law, “poor performance” includes “gross negligence,” “openly arbitrary acts,” or repeated failure “to respect the Constitution or the law,” among other actions.

During the Congressional hearing, Ramos Padilla cited the evidence he had reviewed in a criminal investigation opened in January against an individual named Marcelo D’Alessio who was allegedly involved in extortion.

During the course of the investigation, the judge said, he found that D’Alessio had carried out “intelligence operations” to force people to confess to crimes or implicate others. As one example, he said, D’Alessio used “hidden cameras” or information from people’s private life or planted evidence against them for extortion purposes, the judge said.

These confessions, Ramos Padilla said, were later used by judges and prosecutors to bring criminal charges. According to an analysis of the evidence the judge read during the hearing, D’Alessio’s intercepted communications suggest that Patricia Bullrich, the security minister, “had links” and “gave instructions” to D’Alessio. The judge also presented evidence suggesting that D’Alessio had provided information to lawmakers who appear to be government supporters. On February 25, Ramos Padilla indicted D’Alessio for his alleged role in “extorting” the man who filed the criminal complaint against him.

The Justice Ministry, in making the request for an investigation of Ramos Padilla, said that the judge had violated Argentina’s Code of Criminal Procedure by disclosing evidence to the public during his hearing in Congress. Yet the bulk of the evidence the judge presented had already been disclosed when, on February 25, the website of the judicial branch posted online the indictment against D’Alessio. The site often posts indictments in cases of public interest.

Investigative judges routinely provide information to the public on ongoing investigations, but the Argentine authorities have rarely voiced similar concerns in other cases, suggesting a worrying double standard, Human Rights Watch said.

The government also contended that the judge lacked “equanimity” because, during the hearing, he “said, categorically, that some facts were true, although, according to his own words, these had yet to be proved.” Human Rights Watch listened to the hearing and could not identify such statements.

Ramos Padilla repeatedly clarified that his words should not be interpreted as a “assessment on the merits” of the evidence. He only presented available evidence, as well as the analysis of the evidence made by the Provincial Commission for Memory – a government body of the province of Buenos Aires – following a request by the judge. In several cases, Ramos Padilla clarified that the evidence could be interpreted in several ways or that the defendant could have fabricated the evidence and that the Provincial Commission’s analysis was not conclusive for the investigation.

Argentina is party to several human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights, that require it to safeguard the independence and impartiality of its judiciary.

A range of standards – including the UN Basic Principles on the Independence of the Judiciary, the Universal Charter of the Judge, and the Statute of the Ibero-American Judge – set forth key components of an independent and impartial judiciary. These criteria include that judges should be free from undue pressure or interference by other branches of government. Judges may only be suspended or removed “for reasons of incapacity or behaviour that renders them unfit to discharge their duties.”

During the hearing, Ramos Padilla said that D’Alessio also appeared to have spied on some journalists and to have leaked information to other journalists in furtherance of the scheme to extort people. The judge is also looking into whether any of these journalists bear responsibility for participating in the extorsion plots.

“Whatever the result of these investigations, no journalist should be prosecuted merely for publishing damaging information,” Vivanco said.