Thursday , January 21 2021

Domain disappearance: what are the differences between the DNU signed by Macri and the projects approved by Congress

"Not as Senate, or as many as Members". Thus, a member of the Government Judicial Office defines a decree on the need and urgency of recovering assets mainly from corruption and drug smuggling, which was announced today by Mauricio Macri, for both versions sanctioned by significant differences. None of them had government approval and – according to the information they process officially no progress was made in the second chamber, the executive director decided to move forward with a decree of necessity and urgency, even knowing that its constitutionality could be called into question.

The decree will be essentially similar to the version approved by the Senate with no less than property confiscation obtained from crimes such as drug trafficking, corruption, terrorism, human trafficking or child pornography, t This will be done entirely in civil jurisdiction, from open criminal proceedings, but through a separate band.

This last point is the same as that provided for in the text approved by the Members of the Members Federal civil and commercial lawthat is competition in Buenos Aires. "They are low-profile judges who are very technical, giving a guarantee for treatment that is not contaminated by politics," said German Minister of Justice Germans Garavano. Infobae. This means that the domain extinction processes leave the federal criminal jurisdiction of the Comodoro Py judges orbit, to which the government is trying to reduce them.

The significant difference between DNUs and the proposal approved by the Chamber of Deputies – and to some extent reminiscent of the Senate – is l.where confiscation can be initiated: The new DNU provides from the moment the criminal judge asks for the detention of the defendant's assets or organizes some precautionary measures, such as company proceedings..

In that case, one will be enabled new domain extinction office – the creation of which also requires DNU-intervene in the federal jurisdiction of civil and commercial law to initiate a criminal investigation that leads to a demand for funds in civilian housing. "The idea is that so many accused people are irrelevant as an asset that the state can recover in this other process of civilization," Garavano said.

The decree provides that the process of transfer of state property may be submitted illegally acquired goods in the last 20 years.

The Minister also stressed that DNU would join Amendments to the Federal Code of Civil and Commercial Procedure "to speed up the process of confiscation" and allow "summary of asset recovery", something was not discussed in the parliamentary initiatives.

Knowing that there will be questions about the constitutionality of the DNU, the Ministry of Justice stressed that "Criminal proceedings are not modified, but a new civilian tool is created".

The legislative path was stuck

At the expense of domain extinction in history, the Congress has been going on for almost three years and so far has failed.

At the end of August last year, and in a growing social demand for the detection of the causes of bribe notes, the Senate finally gave half the sanction to the norm. Two years after the adoption of the bill in June 2016, in the midst of an outrage about José López's bag of $ 9 million in the General Rodríguez Monastery was stopped in the upper house.

But the texts that got half the sanctions in both houses of Congress are significant differences. The regulation states that Members may request an initial draft or approve a new version of the Senate. Due to the lack of agreement, neither one nor the other happened. And this initiative was again a parliamentarian.

In the ruling party and thinking that the peronism, which ultimately determined its version in the Senate, was not planned to be included in treatment during emergency sessions, the initiative would lose its parliamentary status.

Project approved for Members

The text approved by Members in 2016 determined that the process of extinction of the domain will be initiated in civil and commercial matters, the prosecutor against the accused in criminal proceedings. I could do it if there is sufficient suspicion that complex crimes might be active. That is, just enough calculation.

This could lead to confiscation of assetsbefore the criminal charge for the defendant. In addition, it considered the start of the process with retroactive effect so that the figure could be applied to facts related to corruption that occurred before the normal sanction.

The idea that a criminal sentence was segregated from the fate of the goods that were found to have been investigated or discovered was attempting to speed up their recovery without waiting for a firm conviction. Thus, while defendants face criminal proceedings, they would be actively involved in a civil case, which could quicker determine whether they come from illegal activities and could therefore be confiscated by the state.

This happens, for example, in other countries, such as Colombia, which was used as an example, such as Macri DNU, as well as in the United States or Mexico.

The project was already connected with the project before the certainty you could change the burden of proof, which forces the defendant to justify his assets instead of accepting his innocence until proven otherwise.

Text of sanctions Senate

In the Upper House, after he has dismissed MEPs' average sanction for their "constitutionality" regarding advance payments for the property of the accused, three more projects were discussed: one presented by the ruling party, the other by Peronism and the other by victory.

Finally, the PJ text, promoted by Rodolfo Urtubia and Miguel Pichetto, was punished by a vote of 40 senators. It allowed a civil claim to be confiscated, but in a criminal jurisdiction where the "mother" process is justified.

The other important difference is that represented by the House of Representatives confiscation can only happen when there has been a strong prosecution approved by the Chamber. As a result, asset recovery could take place before conviction with a sentence.

In addition, it was found that the Treasury Prosecutor's Office, which is responsible for taking action to facilitate the disappearance of ownership, did not envisage retrospective application and therefore could not be applied to crimes before the adoption of the law.

The government bill, drafted by Federico Pinedo and Humberto Schiavoni, similarly to MEPs, stated that civil action should take place separately from criminal proceedings and that the impetus for action would be in the hands of the prosecutor's office. As regards the disappearance of the domain under civil jurisdiction, it also decided that the Court should approve the prosecution.

DNU Congress

Now, the need and urgency signed by Macri must now be analyzed in the Standing Two-Layer Commission of the Legislative Process. It consists of 16 members and consists of seven members of the ruling coalition, the Salta senator associated with Governor Juan Manuel Urtubey, María Cristina Viñuales, and the second of the Neuquén (Miriam Boyadjian), while the rest are from PJ or Frente Para Victoria (FPV). ). The president is Marcos Cleri, a member of Santa Fe, from the FPV, who has a double voice if she is a tie and his vice-radical Luis Naidenoff.

The Executive Director shall immediately send the DNU to this dual chamber as soon as it is published in the Official Journal. This institution will have ten working days to address it – the debate will take place in February and will give an opinion. If a majority opinion supports rejection, both chambers of law. Until this happens, the decree is still in force.

In practice, the conversion of this DNU process into a congress supported by Néstor Kirchner and defended by Cristina as a senator means that this is not possible. "It is difficult to reach these figures to reject it in both chambers, and justice is trapped because PJ defended the Senate project and one of the vice-votes in the lower house was Graciela Camaño, Front Renovador, entrusts Cambiemosa's legislative sword.

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