Jurisprudencia de la C.A.B.A.: Violencia doméstica – Improcedencia de la mediación del art. 204 del Código Procesal Penal local

SÍNTESIS.- En el caso, corresponde confirmar la resolución de grado en cuanto dispuso no hacer lugar a la pretensión de la Defensa en que se fije una audiencia de mediación.
En efecto, para fundar su oposición, el representante del Ministerio Público Fiscal se basó en dos motivos distintos. El primero de ellos consiste en que la Resolución FG N° 219/15 y la Ley N° 26.485 rechazan explícitamente los modelos que contemplan mediación o negociación y el segundo, en que la mediación, en los casos de violencia doméstica, no es recomendable.
Sentado lo expuesto, corresponde hacer notar, en primer lugar, que la referencia a la Ley N° 26.485 efectuadas por el Fiscal de grado no resulta suficiente en el presente para oponerse a la celebración de una audiencia de mediación, dado que aquélla impide su realización en supuestos de violencia de género y no se ha explicado por qué este caso cumpliría con ese requisito –máxime cuando el representante del Ministerio Público Fiscal, al requerir la elevación a juicio, describió un contexto de violencia doméstica.
Así las cosas, lo cierto es que violencia doméstica y violencia de género no son necesariamente situaciones equiparables. Si bien la primera de ellas es una de las modalidades mediante las que se puede ejercer la violencia de género, para que ello sea así es necesario que primero se cumpla con el requisito esencial de la segunda, esto es, que se trate de un supuesto de discriminación hacia la mujer. Es decir, que se ejerza violencia contra la mujer por el hecho de ser mujer, o cuando la afecte de una forma desproporcionada a como aquélla afectaría a un hombre.
Por lo tanto, la mera referencia a la Ley N° 26.485 no resulta suficiente para negar razonablemente la realización de una mediación si no se argumenta por qué el caso concreto configuraría un supuesto de violencia de género. Sin embargo, lo cierto es que en el presente ese no ha sido el único motivo esgrimido por el representante del Ministerio Público para oponerse al mecanismo establecido por el artículo 204, inciso 2°, del Código Procesal Penal de la Ciudad.
Ello así, de la requisitoria fiscal (sustentada en los informes elaborados por la Oficina de Violencia Doméstica de la CSJN y por la OFAVyT del Ministerio Público Fiscal) surge el estado de vulnerabilidad de la denunciante, su dependencia emocional y la situación de dominio que ejerce sobre ella el imputado. Todo ello, lógicamente, atenta contra la necesaria igualdad de posiciones que debe existir entre las partes para poder llevar adelante un proceso de mediación.

«Incidente de mediación en autos ‘J, L./infr. Art (s). 149 bis CP’”, Cámara de Apelaciones Penal, Contravencional y de Faltas, 07-10-2016

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

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