The complaint by Lucas Jorge Benvenuto (30) for child sexual abuse against Juan Martín Rago, known as
Jey Mammon
(46), makes visible the lack of protection of the rights of the child by the prosecutor's office that urged the prescription.
The big question that arises is:
could the Public Prosecutor's Office have acted differently?
The answer to which several criminal law experts interviewed by
Clarín
arrive is a
resounding yes
.
First, it must be made clear that "by our Penal Code the limitation period for the action is counted from the last act and in the case of sexual crimes the
maximum period is 12 years
", clarifies the lawyer Nadia Rivas, representative of three victims of the former medical director of the ORT school, Alberto Cirulnik.
Benvenuto denounced Jey Mammon in 2020. The judicial process lasted less than a year and the National Criminal and Correctional Court No. 3 acquitted the driver in March 2021 because the crime denounced had prescribed in 2019. A striking point is that
the own prosecutor's office urged the prescription
.
Despite the fact that the abuses denounced were committed from when Benvenuto was 14 to 17 years old (from 2007 to 2010) and there were no laws that extended the limitation periods (such as those issued in 2011 and 2015), at that time the Convention was in force. on the Rights of the Child.
That could have been the key to avoiding the prescription.
"Since 1994, the Convention on the Rights of the Child began to have
a constitutional hierarchy
, that is to say that Argentina had (and has) the obligation to ensure access to justice for children and adolescents, to protect them against all forms of abuse and violence, and to watch over their best interest", says prosecutor María Piqué, in charge of the Fiscal Assistance Unit.
Piqué and Mauricio Viera, attorney general before the National Criminal and Correctional Appeals Chamber, relied on this international treaty and the Belém do Pará Convention to appeal
dismissals issued due to the statute of limitations
in cases of sexual abuse in childhood.
Lucas Benvenuto, the young man who denounced Jey Mammon for child sexual abuse.
"From 1921 to 2011, child sexual abuse had the same statute of limitations as other crimes: the term ran from midnight when the crime was committed. This is incompatible
with the possibility of an abused child who must report quickly
, " maintains the prosecutor.
And he clarifies: "This limitation period did not take into account all the time it takes for a person to report. Added to the fact that they are often abused by their legal representatives, which makes it impossible to report until the child leaves the family home as an
adult
" .
Congress amended the problem of the statute of limitations in this type of case in 2011 by issuing Law 26,705 that provides that this term
begins to run from the time the abused person reaches 18 years of age
.
As they had fallen a little short with the term, in 2015 Law 27,206 was sanctioned.
The current regulation establishes that the statute of limitations is suspended while the victim is a minor and until, having reached the age of 18, the person denounces or ratifies the complaint made by their legal representatives when they were a minor.
"
Abuses committed before 2011 are in a problem
because the regime at that time was incompatible with the Convention on the Rights of the Child and the Belém do Pará Convention. Therefore, we propose that it
is unconstitutional to apply the regime prior to 2011
," he details. The fiscal.
For the former expert of the Inter-American Court of Human Rights "there are few prosecutors who request the prescription in these cases", since the majority adheres to Viera's position.
Along the same lines, the lawyer Alfredo Vitale -he represented one of the victims of the "illustrious citizen" of Gualeguaychú, Gustavo Rivas- maintains that the position of the prosecution may be due to two issues.
"They are unaware of the
validity of international treaties
or it is easier to apply the prescription because it is
less work
," he reflects.
The lawyer appealed Rivas' 8-year sentence based on the Convention on the Rights of the Child and the Vienna Treaty, which prioritize the best interests of the child.
In this way he managed to get him sentenced to
23 years in prison for child sexual abuse
.
Here another question arises:
there is no instruction
from the interim Attorney General of the Nation, Eduardo Casal, so that prosecutors do not request the prescription in this type of cause.
Although Piqué clarifies: "We prosecutors have instructions from different attorneys.
We must interpret the law and the statute of limitations in favor of the victims
."
Exactly what was not fulfilled in the case of Benvenuto against Mammon.
Furthermore, since Benvenuto did not appear with a lawyer,
he did not appeal the statute of limitations
.
"When these types of decisions are appealed, a prosecutor acting before the Chamber can disallow the prosecutor who requested the prescription and also request the trial for the right to the truth," Piqué maintains.
"The prosecution could have asked that the investigation be continued, and that the trial for the truth be reached, at least," agrees Rivas.
And it emphasizes that "at the date of the events denounced by Benvenuto, human rights treaties
were in force
, signed by our country, which require the investigation of crimes against the sexual integrity of children and adolescents."
However, Piqué acknowledges that "trials for the right to the truth are not regulated in the country, so
they do not advance in practice
."
As the action prescribed, the Criminal Procedure Code could not be applied, for example, so that the accused appears by force.
international treaties
The myriad of international standards that protect crime victims seem to have been forgotten when the prosecutor in the Jey Mammon case asked for the statute of limitations.
"Some treaties were recognized as early as 1948, the year in which the victim was not even born, when the Universal Declaration of Human Rights was promulgated, which in its article 8 states that 'everyone has the right to an effective remedy before the competent
national
courts
, that protects her against acts that violate her fundamental rights recognized by the constitution or by law,'" says Rivas.
In addition, there are many other useful instruments for a good understanding of cases of child sexual abuse, such as the American Convention on Human Rights, the 100 Basic Rules for Access to Justice for Vulnerable Persons, and the International Covenant on Civil and Political Rights. .
The lawyer highlights article 15.2 of this last agreement, which establishes that "the principle of non-retroactivity of the law does not preclude the trial or conviction of a person for acts or omissions that, at the time they were committed, were criminal." according to the principles of law recognized by the international community".
ACE
look too
Accusation of abuse of Jey Mammon: the whistleblower considers asking for a "truth trial"
Jey Mammon: how was the case for child sexual abuse in which he was dismissed
