Jurisprudencia de la C.A.B.A.: El juicio abreviado no interrumpe la prescripción de la acción contravencional

SÍNTESIS.- En el caso, corresponde revocar la resolución de grado que no hizo lugar al pedido de prescripción de la acción contravencional y sobreseer al encausado por la contravención consistente en provocar ruidos molestos, atento que la acción se encuentra prescripta.
En efecto, el plazo de prescripción de la acción contravencional surgida del hecho investigado se cumplía 18 meses después de la fecha del suceso, conforme el artículo 42 del Código Contravencional.
El Magistrado de grado dictó sentencia condenatoria cinco días antes del vencimiento del plazo de prescripción; notificada a la Defensa Oficial esta resolución en virtud del artículo 279 del Código Procesal Penal –de aplicación supletoria por artículo 6 de la Ley de Procedimiento Contravencional-, esta última gozaba de un plazo de 10 días hábiles para interponer recurso de apelación contra la sentencia condenatoria.
Así las cosas, deviene evidente que el día en el cual se cumplió el plazo de prescripción de la acción contravencional entablada, la sentencia dictada en primera instancia no se encontraba firme.
La sentencia definitiva no produce efectos interruptivos, ya que para que se extinga el plazo de prescripción de la acción y comience a correr el plazo de prescripción de la pena, aquélla debe haber quedado firme, ello conforme lo dispone el artículo 43 del Código Contravencional.
Entender otra cosa implicaría, efectuar una interpretación «in malam partem» de la norma, violando el principio de» in dubio pro reo» establecido en el artículo 10 del Código Contravencional.
Ello así, si el plazo de prescripción de la acción dejase de ser computado al momento del dictado de la sentencia -sin requerir su firmeza-, nos encontraríamos con un espacio temporal durante el cual no correría aquél pero tampoco el plazo de prescripción de la sanción, lo que atentaría a todas luces contra el derecho de defensa resguardado por el artículo 18 de la Constitución Nacional.

En efecto, en el caso de autos no se dio ninguno de los supuestos de interrupción del plazo de prescripción (rebeldía o audiencia de juicio), con lo que aquél comenzó a correr a partir del último momento temporal en que se dio la figura contravencional que motivó la sanción.
La circunstancia relativa a que haya mediado un acuerdo de juicio abreviado no encuadra en ninguno de los supuestos que taxativamente enunciados el artículo 44 del Código Contravencional, por lo cual no puede tenerse esta circunstancia como un hito interruptivo del curso de la prescripción. (Causa N°0009589-01-00/14″ Av. Pueyrredón 170/180, PUESTO 3 s/ infracción Artículos 83 Usar indebidamente el espacio público c/ fines lucrativos (no autorizada)» rta el 23/11/2016 entre otras).
Se encuentra prohibido realizar una interpretación «in malam partem» de las normas que regulan la prescripción ya que es una garantía a favor del sometido a proceso que debe ser interpretada restrictivamente.
Ello asó, no surge de la normativa contravencional que el juicio abreviado tenga la virtualidad de interrumpir el plazo de la prescripción.

OSORIO, RODRIGO HERNAN, Cámara de Apelaciones Penal, Contravencional y de Faltas, 17/05/17

Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires

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