Exhibiciones obscenas. Delitos contra la integridad sexual. Métodos alternativos de solución de conflictos. Mediación penal. Improcedencia. Declaración de inconstitucionalidad. Tribunal Superior de Justicia.
En el caso, corresponde confirmar la resolución que dispuso no hacer lugar al pedido de mediación solicitado por la Defensa y en virtud de ello, declarar abstractos los planteos de inconstitucionalidad del artículo 204 inciso 2, segundo párrafo del Código Procesal Penal.
En efecto, la Sala tuvo oportunidad de pronunciarse al respecto en el precedente “Domínguez, Luis Emilio s/ infr. art. 184, inc. 5º, CP” (causa nº 11917-00- CC/2009), declarando la inconstitucionalidad de la referida norma procesal, en sentido coincidente con las restantes Salas que integran la Cámara en lo Penal, Contravencional y de Faltas.
No obstante ello, el Tribunal Superior de Justicia, a partir del caso “Del Tronco, Nicolás s/art. 184, inc 5º CP”, ha dejado sin efecto las declaraciones de inconstitucionalidad pronunciadas por la Alzada.
Sin perjuicio de dejar a salvo la opinión de los suscriptos en lo que a tal tópico se refiere, lo cierto es que en atención a las particularidades de este caso puntual, la forma en que se resolverá la cuestión nos releva de examinar los fundamentos que emanan del fallo antes citado del máximo tribunal local en lo que hace a la compatibilización del art. 204 inc. 2º mencionado con las normas constitucionales federales y locales.
Ello así, la disposición en cuestión es clara en su redacción, al disponer, en la parte que aquí interesa, que: “…No procederá la mediación cuando se trate de causas dolosas relativas a los delitos previstos en el Libro II del Código Penal, Título III (Delitos contra la integridad Sexual)…”.
En definitiva, la conducta enrostrada al imputado, encuadrada «prima facie» en el delito previsto en el artículo 129, primer párrafo del Código Penal “… el que ejecutare o hiciese ejecutar por otros actos de exhibiciones obscenas expuestas a ser vistas involuntariamente por terceros…” y, en función de la prohibición que emerge de la norma procesal examinada, no es la mediación la vía para solucionar el conflicto bajo análisis.
Cámara de Apelaciones Penal, Contravencional y de Faltas. Causa Nro.: 12072-01-00-14. Autos: G., R. E. Sala II. Del voto de Dra. Marcela De Langhe, Dr. Fernando Bosch, Dr. Pablo Bacigalupo. 10-07-2015.
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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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