Jurisprudencia de la CSJN: pensiones de guerra. Límites impuesto por el decreto 1357/2014

La Corte Suprema de Justicia de la Nación revocó un fallo de la Cámara Federal de la Seguridad Social que había dispuesto el dictado de un nuevo acto administrativo en favor de un ex capitán de fragata condenado por crímenes de lesa humanidad, a los efectos de rehabilitarle el beneficio contemplado por la ley 23.848 (pensión de guerra). Funda su decisión en lo dispuesto en el artículo 6° del decreto 1357/04, que prescribe que “Los veteranos de guerra que hubieran sido condenados, o resultaren condenados, por violación de los derechos humanos, por delitos de traición a la Patria, o por delitos contra el orden constitucional, la vida democrática u otros tipificados en los Títulos IX, Cap. I y X, Cap. I y II, del Código Penal, no podrán ser beneficiarios de las pensiones de guerra a que se refiere el presente decreto”.

Acosta, Jorge Eduardo c/ Est. Nac. – ANSES s/ amparos y sumarísimos, CSJN, 8/9/2015.

Fallo completo.

Buenos Aires, 8 de septiembre de 2015.

Vistos los autos: “Acosta, Jorge Eduardo c/ Est. Nac. ANSeS s/ Amparos y Sumarísimos”.

Considerando:

1°) Que contra la sentencia de la Sala 1 de la Cámara Federal de la Seguridad Social que revocó la decisión de la instancia anterior, que había rechazado la demanda de amparo, y ordenó que se dictara un nuevo acto administrativo que rehabilitara la pensión de guerra contemplada por la ley 23.848 y dispusiera el pago de las mensualidades devengadas desde la suspensión de la prestación, la Administración Nacional de la Seguridad Social dedujo el recurso extraordinario que fue concedido (fs. 79/82, 130/131 vta., 133/136 vta. y 153).

2°) Que existe cuestión federal suficiente para el tratamiento de los agravios del recurrente, toda vez que se encuentran en tela de juicio la inteligencia y aplicación de normas de naturaleza federal -la referida ley 23.848 Y decreto 1357/04- y la resolución impugnada ha sido contraria al derecho que el organismo previsional funda en ellas (artículo 14, inciso 3, de la ley 48) 3°) Que esta Corte ha resuelto reiteradamente que sus pronunciamientos deben ajustarse a las circunstancias exis~ tentes en el momento en que se dictan, aunque éstas sean sobrevinientes a la interposición del recurso extraordinario (Fallos: 318:373¡ 324:3948¡ 329:1715 y 331:1869, entre otros muchos).

4°) Que el artículo 6° del decreto 1357/04 prescribe que “Los veteranos de guerra que hubieran sido condenados, o resultaren condenados, por violación de los derechos humanos, por delitos de traición a la Patria, o por delitos contra el orden constitucional, la vida democrática u otros tipificados en los Títulos IX, Cap. I y X, Cap. I y II, del Código Penal, no podrán ser beneficiarios de las pensiones de guerra a que se refiere el presente decreto”.

5°) Que con fecha 12 de mayo de 2015 el Tribunal rechazó un recurso de queja deducido por el demandante en la causa CSJ 3871/2014/RH1 “Acosta, Jorge Ed~lardo y otros s/ privación ilegal de la libertad (art. 144 bis, inc. 1)”, relacionado con una condena penal por crímenes de lesa humanidad, decisión que lo incluye en el supuesto previsto por el artículo 6° del decreto 1357/04.

Por ello, y habiendo dictaminado la señora Procuradora General de la Nación, se declara procedente el recurso extraordinario, se revoca la sentencia apelada y se rechaza la demanda de amparo (artículo 16, segundo párrafo, ley 48). Con costas (artículo 14 de la le 16.986). Notifíquese y devuélvase.

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