Jurisprudencia de la C.A.B.A.: amenazas – violencia doméstica – rechazo de la excepción por atipicidad

SÍNTESIS.- La Cámara de Apelaciones en lo Penal, Contravencional y Faltas confirmó por mayoría la sentencia de grado en cuanto dispuso no hacer lugar a la excepción de manifiesto defecto en la pretensión por atipicidad.
En efecto, se le atribuye al encartado el haber mantenido una discusión con su ex pareja en la vía pública y de haberle expresado a esta: «“después de dos años sin ver a los chicos no tengo nada que perder”, hecho que fue calificado como amenazas simples.
Ahora bien, en cuanto a la alegada atipicidad de la acción por considerar que la frase no amedrentó a la ex pareja del imputado, cabe recordar que la ley pena la amenaza en sí misma, prescindiendo de todo resultado, para lo cual se requiere que tenga idoneidad suficiente para actuar sobre el ánimo y la voluntad de la víctima.
Al respecto, se ha dicho que “la característica del tipo penal en estudio está en que la amenaza a otra persona debe serlo con la finalidad de “alarmar o amedrentar a una o más personas”. Ello implica que la intención debe estar dirigida a infundir miedo o atemorizar al sujeto pasivo de la amenaza” (Donna, Edgardo Alberto “Derecho Penal”, parte especial, tomo II-A, Editorial Rubinzal-Culzoni, Editores, 2003, pág. 247), no requiriéndose que éste se produzca efectivamente.
Ello así, en el caso, y teniendo en cuenta las circunstancias, las características de la víctima y la relación entre ambos, cabe afirmar que la frase esgrimida por el encausado en el contexto en que fue proferida resultó idónea para infundir temor en la denunciante por lo que no proceden los planteos defensistas en este punto pues la conducta resulta subsumible tanto objetiva como subjetivamente en la norma en cuestión.

Z., J. A., Cámara de Apelaciones Penal, Contravencional y de Faltas, 9/05/2016

Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires

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