Nilda Garré 20211217
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Can a public official be held responsible for the damages that he has caused, through his own fault or intentionally, while exercising that function? Can you claim to pay compensation to whoever suffered those damages?

The affirmative answer to both questions seems obvious –and it is- but the cases where this responsibility becomes effective are so infrequent that, when it happens, we are surprised.

We are referring to the recent ruling handed down by Chamber IV of the Federal Administrative Litigation Chamber that condemns the former Minister of National Security, Nilda Garré, to pay AGEA -Grupo Clarín company- an amount higher, at current values, than the twenty million pesosas compensation for damages caused by not having complied with a court order.

A very brief summary of the background of the sentence is in order. At the end of 2010, after various blockades of their plants by union and political militants, who prevented their entry and exit and their normal activity, The company went to court asking for a precautionary measure to be issued to prevent the repetition of such situations. The intervening Judge granted the measure and ordered the then Minister of Security to adopt the necessary measures to avoid new blockades.

According to the judgment already mentioned, it is proven that Garré did not comply with the judicial order, that is, it did not take any appropriate measure to prevent the blockades, which continued to occur. It is necessary to clarify that he is not accused of not having been able to avoid them but, specifically, of not having ordered measures that would serve those purposes, thus failing to comply with what the Judge had ordered.

In this context, based on a well-founded analysis of the legal framework and the damages caused to AGEA, basically the cost of producing and printing the newspapers that the company was unable to distribute or sell and the profit that it failed to receive as a result, the ruling obliges the former Minister to take charge of the payment of those damages.

Now, to analyze the issue, it is good to put aside who the people involved in the trial are, since the conclusions should be the same if, to put it in very graphic terms, the Minister had been Patricia Bullrich and the publisher was the one that publishes Page 12. It is evident that the interpretation of the Law is –or, at least, should be- identical, regardless of who is the protagonist of the facts judged.

Let us remember that the full validity of the Rule of Law and the guarantees of each person depend, to a large extent, on public officials fulfilling their duties, whose objective is the common good of the population. The function should be conceived as a service to the community that, moreover, can only be carried out in strict compliance with the laws that regulate it. They require dedication, effort, efficiency and ethics in management, a transparent action that informs society about what has been done and is accountable for it. The Constitution establishes as an essential requirement to appoint and be appointed an official, suitability, which means that whoever holds a position must be able to perform it.

Nilda Garré, the former montonera that Cristina “kicked out” of the Executive

We know how far the reality is from these obvious guidelines, which are not moral or optional but legal and mandatory. It is not only about the very serious phenomenon of corruption and its consequences; beyond this scourge we have suffered, for decades, a management of the public that does not assume its essence and manages the social patrimony, what belongs to “everyone”, with negligence, laziness or, simply in its own interest, be it political or economic.

If anything contributes to this, it is the impunity enjoyed by those who fail to comply with their obligations and, especially, public officials. By the way, it is not about the lack of laws that establish their responsibility, to control what they do or to judge them when they violate them. The rules exist and are sufficient -although they can always be perfected- but, simply, they are not applied. We can also affirm that they are not known on a massive level, which is not accidental either; it is essential and urgent to disseminate them, that we know as a society what is required in order to demand that they be fulfilled.

As the ruling against the former Minister establishespublic officials are responsible, in their personal capacity, when they act with negligence or fraud -that is, intention to harm or benefit- in management, regardless of whether or not they have committed a crime. As a logical consequence, must indemnify -depending on who the victim is, the State or individuals- for the damages they have caused. There is something important to add: the responsibility of officials and, especially, that of those who hold high-ranking positions, is not the same as that of any other person, but rather much greater, to such an extent that, in legal terms, it is classified as as an aggravated liability.

Why is the judgment we are discussing important?

Because if those who exercise power -or those who benefit from it- thought that they could be forced to compensate for the damages caused when they act in violation of the laws, either because they were guilty or intentionally, they would undoubtedly be much more careful and public management would improve substantially. Of course, as previously stated, this responsibility not only corresponds to damages caused to individuals but, above all, to those caused to the State, that is, to the whole of society.

It is no coincidence that these issues are not on the agenda of governments, regardless of their political persuasion. Neither is reporting transparently and continuously about their accountable for what they do on behalf of society, activate and strengthen control agencies so that they act constantly and independently.

It is good to reiterate, these are decisive issues for democracy to work and they cannot be dealt with from the biased view of partisan or personal interests. There should be no “crack” in this, the interests to defend are the common ones, those of the whole society. That is why the sentence, again, regardless of who was sentenced or benefited in the specific case, is a step forward in the right direction.

Human beings have a predisposition to abuse power, evidenced throughout history. It would be naive and absurd to assume that the solution is to supplant a “political class” when the rest of society shows very similar characteristics.. The only viable alternative -and in accordance with the democratic life system- is to demand and achieve compliance with the law, in the first place by those who hold public office and that each one take charge of the damages caused when they violate it.

* Lawyer, specialist in public ethics.

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