President Alberto Fernández was unable to close the case due to the birthday party of his partner, Fabiola Yañez, due to the absence of a crime. The federal judge of San Isidro Lino Mirabelli rejected the request for “lack of action” that the president had raised, as his own lawyer. He maintained that the decree that he himself had signed in the midst of preventive and mandatory social isolation had not been violated to prevent the spread of the coronavirus pandemic.
In line with the prosecutor Fernando Domínguez, Mirabelli stated that “in light of the reported fact that is relevant to this incident and the applicable regulations, I conclude that it is appropriate to reject the exception for lack of action deduced by Dr. Alberto Ángel Fernández, to which the defenses of Stefanía Domínguez, Carolina Marafiotti, Rocío Fernández Peruilh, Florencia Fernández Peruilh and Severina Sofía Elizabeth Pacchi joined ”.
The judge’s decision can be appealed to the Federal Chamber of San Martín. And there remains one more proposal from Alberto Fernández. The head of state had asked that if his dismissal was not accepted, the case be closed with a criminal conciliation for which he offered to donate his salary for four months to the Malbrán Institute.
Last August, Alberto Fernández argued that what happened that night in the Olivos farm was not a crime and requested that the criminal action be declared extinct and its dismissal be decreed: “As a consequence of the above, the exception of lack of action for manifest atypicality and, as a consequence of this, the termination of the undersigned is issued ”.
The prosecutor Domínguez asked that the proposal be rejected. “The national doctrine is the answer when stating that the exception for lack of action based on the absence of a crime is only viable when the typical lack of adequacy of the incriminated act appears manifestly,” the prosecutor had said in his opinion in which added that “the facts investigated in no way can be labeled as obvious and / or evidently atypical.”
Judge Lino Mirabelli
Now Judge Mirabelli decided. The magistrate upheld the lack of action of a case (its closure) “only proceeds when in a preliminary way the non-existence of the fact or the atypicality or the extinction of the criminal action is clearly noticed, without the need for any investigation.” And that when the criterion is not so obvious, the request must be rejected for the file to advance. For the judge that happens in this case.
Mirabelli explained that there are test measures that are being carried out and that there are proposals from other parties to resolve, including in the Federal Chamber of San Martín. “All of this denotes a jurisdictional activity, not only necessary and incompatible with the standards of a manifest and obvious atypicality such as the one invoked, but, furthermore, alien to the nature of the proposed exception, as is even shown by the same discussion regarding the eventual legal repercussion of the facts in each case ”, he pointed out.
“In short, the summary is still in a preliminary stage in which elements are collected to clarify the materiality of the facts and their possible legal repercussions, without the manifest and evident nature that is necessary for the origin of the exception due to atypicality, a temperament that is equally applicable to all adhesions made by the defenses ”, the judge closed.
On July 14 of last year, Yáñez celebrated his birthday in the fifth of Olivos. President Fernández was there with nine friends of the first lady. It was during the strictest forty due to the coronavirus pandemic and when a Fernández decree prohibited social gatherings throughout the country. The photo first and then some videos of the birthday were known this year, which led to a criminal case that was first processed in the courts of Comodoro Py and then went to the federal justice of San Isidro, where it is currently located.
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