SÍNTESIS.- En el caso, corresponde revocar la resolución de grado y, en consecuencia, ordenar el allanamiento del inmueble conforme lo establecido en el artículo 335, último párrafo, del Código Procesal Penal de la Ciudad.
La A-Quo, para así resolver, entendió que la intimación al hecho (art. 161 CPP CABA) resultaría ser una exigencia insalvable para ingresar al tratamiento de la cuestión planteada por la fiscalía (restitución del inmueble presuntamente usurpado) y en el caso que nos ocupa, ello no habría ocurrido respecto de los imputados.
Sin embargo, el artículo 335 del Código Procesal Penal local no contiene como exigencia procesal ni la intimación de los hechos, como medida previa a la restitución, como así tampoco la previa notificación de la defensa, resultando tal extremo una potestad sujeta a la discrecionalidad del órgano jurisdiccional.
En efecto, la falta de realización de audiencia en los términos del artículo 161 del Código Procesal Penal de la Ciudad no representa un obstáculo para ordenar la restitución del inmueble, pues no resulta éste un requisito previo normativamente establecido. Por lo demás, el Tribunal Superior de Justicia de la Ciudad ya ha resuelto la cuestión en el precedente “Gómez” (Expte. n.º 8142/11, 25/02/13): “[L]a interpretación con arreglo a la cual la ‘convocatoria’ a ‘indagatoria’ constituye un requisito previo para hacer cesar la conducta que se estima delictual, o sus efectos, no sólo no surge del texto de la ley, sino que pone al art. 335 en oposición a lo previsto en el art. 23 del CP; conclusión a la que, existiendo otras posibles, no le es dable arribar a los magistrados” (del voto de los jueces Conde y Lozano considerando 6.4.), a lo que agregaron: “[N]o son pocos los supuestos en que el requisito de ‘convocar’ a indagatoria (o ‘intimar del hecho’, cf. el art. 161 del CPPCABA) constituiría, en los hechos, un impedimento para hacer cesar la conducta prohibida, o sus secuelas […] Bastaría con que se dejara ingresar al inmueble a alguna persona que no ha sido citada a indagatoria de manera sucesiva para que no pu[diera] hacerse cesar lo que se entiende constituye una usurpación, o sus efectos”.
NN s/ art. 181, Cámara de Apelaciones Penal, Contravencional y de Faltas, 29/05/17
Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires
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