Aunque la norma alude al Ministerio Público, en Córdoba corresponde a los Asesores Letrados la representación de los menores de edad y de las personas incapaces.
El Tribunal Superior de Justicia (TSJ) estableció que, en el ámbito del Poder Judicial de Córdoba, cuando el artículo 103 del Código Civil y Comercial de la Nación alude al “Ministerio Público” se debe entender que hace referencia a los “Asesores Letrados”, que son los funcionarios encargados de la defensa de las personas. Esto sin perjuicio de que el Fiscal General, dentro del ámbito de sus atribuciones, disponga la intervención de los fiscales en los procesos aludidos por la norma. Esta aclaración hermenéutica fue establecida por el TSJ en su rol de “custodio del buen servicio de justicia”, por medio del Acuerdo Reglamentario Nº 1305, Serie “A”, del 1° de setiembre de 2015, que contó con la intervención del Fiscal General.
El Alto Cuerpo y la Fiscalía General debieron efectuar este ajuste hermenéutico, porque el mencionado artículo 103 alude a la actuación del Ministerio Público respecto de las personas menores de edad, incapaces y con capacidad restringida. Destacaron que, para alcanzar “la mayor armonía necesaria para cumplir el espíritu del Código Civil y Comercial”, deben respetarse las normas legales atributivas de funciones, teniendo en cuenta las competencias propias de las provincias, conforme a un esquema federal de gobierno. Con más razón cuando, como acontece en Córdoba, “la especificidad y especialidad de tales ordenamientos satisface plenamente la finalidad tuitiva del nuevo Código Civil y Comercial, así como el derecho de defensa y la tutela judicial efectiva (art. 18 de la Constitución Nacional)”.
Remarcaron que, a nivel provincial, han sido los Asesores Letrados a quienes “la legislación les ha asignado específicamente el rol de tutela y representación de los intereses de las personas con padecimientos mentales”. Por ende, “no corresponde dar intervención obligada a una parte más en representación del Estado, en un proceso que debe ser expeditivo en función del principio de duración razonable de los procesos que fluye de la máxima de tutela judicial efectiva”, como lo prevé la Convención Americana sobre Derechos Humanos (artículos 8 y 25), que tiene jerarquía constitucional en la Argentina.
De todos modos, se puntualiza que la Ley del Ministerio Público Fiscal otorga a dicho organismo “trascendentales competencias en aras a la defensa del interés público”, razón por la cual “sería posible su participación conforme lo dispongan las instrucciones y demás disposiciones normativas de la Fiscalía General de la Provincia”.
• Descargar: Acuerdo Reglamentario 1305 – Asesores Letrados – Art. 103 del Código Civil y Comercial.
Fuente: www.justiciacordoba.gob.ar
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