Usurpación. Sentencia condenatoria. Condena de ejecución condicional, existencia de condena anterior. Restitución del inmueble. Derecho de las personas con discapacidad.
En el caso, corresponde revocar la sentencia en cuanto suspende la ejecución de la pena de prisión, que deberá ser de cumplimiento efectivo. En efecto, la condena anterior que registra el imputado fue a una pena de efectivo cumplimiento, motivo por el cual no se aplica al caso la suspensión de la condena regulada en el artículo 27 del Código Penal. Queda determinar si dicha condena ha caducado conforme el artículo 51 inciso 2° del Código Penal. Ello así, surge del expediente que desde el momento de la anterior condena a la fecha de comisión del hecho investigado en la presente causa, no han transcurrido los diez años prescriptos por la norma. (Del voto de la Dra Manes).
En el caso, corresponde confirmar la resolución que rechazó la imposicion de la multa prevista por el artículo 22 bis del Código Penal. En efecto, el recurrente sostiene que la Jueza denegó su petición sobre la base de considerar que no se acreditó el ánimo de lucro que habría motivado la conducta del condenado, al usurpar el inmueble, más que la habitación del mismo en sí. Así la Fiscal refiere que se omitió considerar que el el acusado reconoció que vivía de las rentas de dos departamentos propios amén de trabajos de reparación de artículos electrónicos, beneficios que pudo obtener merced a la ocupación ilegítima del inmueble de marras, siendo esto lo que acredita, en sí, el ánimo económico del referido. Respecto a lo dispuesto por el artículo 22 bis del Código Penal, la doctrina afirma que “el ánimo de lucro del Art.22 bis no es otro que el del Art.125 o 126 del mismo cuerpo”, y surge de “la intención de obtener algún provecho o ganancia evaluables económicamente con la comisión del hecho ilícito” (…). “Lo relevante es que la ventaja obtenida haya estado en el ánimo al obrar. La Ley exige la existencia del ánimo de lucro, y no la existencia del lucro” (García Vitor, Enrique, comentario a los Arts.21/22 bis, en Zaffaroni, E.R. – Baigún, David (Dir.), Código Penal, Hammurabi, 1997, p. 285). Ello así, más allá de tratarse la usurpación de un delito contra la propiedad, y que la doctrina ha advertido que no siempre se encuentra presente el ánimo de lucro en este tipo de figuras, no se ha acreditado en el debate que el condenado haya querido extraer con su conducta algún beneficio económico extra respecto del inmueble de marras en el que habitaba, desde hace más de veinticinco años, situación que no fue controvertida. (Del voto de la Dra Manes).
Cámara de Apelaciones Penal, Contravencional y de Faltas. Causa Nro.: 0018773-01-00-11. Autos: LORDI, LEONARDO PEDRO Sala III. 09-06-2015.
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Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires. El contenido puede ser reproducido libremente, y no genera responsabilidad por ello, bajo condición de mencionar la fuente y esta advertencia.
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