"If it is not perpetual, it is not justice."
The legend is on the posters, on social networks and in the comments surrounding the trial for the crime of Fernando Báez Sosa (18).
The photo, his enormous smile, accompanies a request that, once the testing stage is over, opens a path of uncertainty: is perpetual justice?
The decision will be in the hands of judges María Claudia Castro, Christian Rabaia and Emiliano Lazzari who, after the arguments, would announce their decision on January 31, although the date was not announced.
Maximum Thomsen (23);
Luciano Pertossi (21);
Ciro Pertossi (22);
Lucas Pertossi (23);
Ayrton Viollaz (23);
Enzo Comelli (22);
Matías Benicelli (23) and Blas Cinalli (21) came to trial accused of doubly aggravated homicide, for having been committed with treachery and premeditation.
The hypothesis that prosecutors Juan Manuel Dávila and Gustavo García tried to prove.
The individual victim, in this case Fernando's parents, were represented by Fernando Burlando, Fabián and Facundo Améndola and Germán Facio.
The accusing party anticipated in the opening arguments that the objective would be
to prove that the eight defendants had a coordinated plan with a division of tasks.
But, after 13 hearings, and with all the evidence exposed, a range of possibilities opens up that would define the fate of the young people.
Trial for the crime of Fernando Báez Sosa.
The eight accused rugbiers, in the courtroom.
Photo: Maxi Failla
The arguments of each of the parties will be known next Wednesday and Thursday, when they present the allegations.
Then, the members of the Oral Criminal Court No. 1 of Dolores will announce their decision.
The possibilities established by law enable different scenarios and different sentences for the eight defendants, several of them members of a Zárate rugby team.
Doubly Aggravated Manslaughter
The defendants arrive with this legal qualification that also earned them three years of preventive detention.
The penalty for the crime for which they are tried is so serious that they reached this stage in detention.
Treachery is "marked by the advantage of whoever kills."
When the attacker uses "means, forms and ways that directly tend" to ensure the crime "without risk", that is, without being in danger during the aggression, the code establishes.
The brutal beating, the kicks to the head once he was lying on the ground put him in a defenseless place, in addition to the fact that the attackers prevented his friends from being able to help him: Fernando was vulnerable, he could not defend himself.
Those elements would fit into this legal figure or at least that is what the accusing party maintains.
Fernando Burlando spoke after each hearing and the victim's parents also spoke.
For them, there is only one option: perpetual for all.
Photo: Lucía Merle/Special Envoy
But why is premeditation important?
Fernando's friends spoke of an "ambush" in his statements.
And Burlando referred to "a plan."
The planning of the homicide, the attack and the beating that ended his life Fernando refers to a "coordination" between the eight young people: they all agreed, they fulfilled pre-agreed roles and they would be equally responsible for the crime.
In this scenario,
the eight defendants would be responsible and considered co-authors of the crime.
The penalty, perpetual for all.
"The treachery is to play it safe, I'm not going to take any risk. Because of how they hit him, it could be understood that way," explained criminal lawyer Valeria Carreras.
If the judges agree on the arguments of the prosecution and the victim, with the elements presented during the trial, they could all receive the maximum sentence, which in Argentina is 35 years.
The defendants have been in prison for three years and, although there will be appeals until the sentence is final, it is most likely that they will return to prison.
This is the worst possible scenario for the defendants, not only because due to their age they would spend more time in prison than in freedom, but also because they
would go to a maximum security prison.
There it would be more difficult for them to have the benefit of staying together and isolated from the rest of the prison population.
secondary participation
If the judges understand that there are no elements to prove that there was a prior and coordinated plan, the aggravating circumstance of treachery enables, in any case, the possibility that the maximum penalty will be applied.
But it opens a new path: secondary participation.
With this figure, the eight would no longer be understood as co-perpetrators, but
some would be considered responsible for the crime and others, accomplices.
The accusers tried to prove with videos and the accounts of the witnesses that all those involved were responsible, for beating Fernando or for preventing his friends from being able to help him.
Prosecutors Dávila and García arriving at the Courts of Dolores.
They will claim first shift, on Wednesday.
Photo: Lucia Merle/Special Envoy
The blows, the marks of Máximo Thomsen's shoe, the DNA of Blas Cinalli on Fernando's finger and the location of those responsible could be interpreted to centralize the accusation: those who gave the blows that caused the death are responsible for the homicide .
According to the autopsy report, Fernando Báez Sosa "died traumatically, the product of
traumatic cardiac arrest due to neurogenic shock produced by multiple head injuries
that generated massive intracranial hemorrhage without bone fracture."
Although the report, later questioned by the defense expert, establishes that Fernando died from blows to the head, it was not just one that caused his death.
Fernando was hit in turns.
In this scenario, those who participated in the aggression but it could not be proven that they had, in fact, hit the victim, could be considered secondary participants.
"It is considered that they provided the necessary help to commit the crime, in this case the homicide," exemplifies a prosecutor from the western suburbs.
"They will be punished with the penalty corresponding to the crime reduced from one third to one half," that is, if the judges consider that some of the members of the group were responsible for the homicide and the others acted
as secondary participants
and not as co-authors,
they could receive a sentence of ten to 15 years.
Or from 15 to 20 years
if the sentence for the rest is life imprisonment.
Simple or intentional homicide
Another of the possible alternatives, although perhaps the most improbable, is that the court finds no aggravating circumstances in the homicide due to treachery or premeditation.
In that case, the prison sentence
of 8 to 25 years would correspond.
The figure of eventual fraud, with the same penalty, would be -within the worst scenarios- the mildest alternative for the defendants: this legal qualification is applied when for justice the person had to "have represented that, when carrying out a certain action, It could kill someone."
In this case, for example, kicking a defenseless person in the head.
According to the criminal code, despite knowing the damage that the defendant could cause "continued with his actions" and did nothing to prevent it.
homicide in brawl
The spontaneous statements by Thomsen, Ciro, Luciano and Lucas Pertossi, and by Blas Cinalli were along the same lines: they did not answer questions about the rest of the accused, they agreed that they "did not know" what had happened and that they did not "participate of a plan to kill no one".
Thus, the defense strategy aims to eliminate the aggravating factor of premeditation and
is committed to the judges interpreting the death of Fernando Báez Sosa in the context of a "quarrel" or a fight
: "The first thing I do is defend myself by kicking. But never in life with the intention of killing someone," said Máximo Thomsen.
Hugo Tomei, defense attorney for the eight defendants, will have his moment on Thursday.
He would go with "argument homicide" as the scene of the act.
Photo: Lucia Merle/Special Envoy
At the last hearing, Lucas Pertossi declared: "I never hit Fernando Báez Sosa, I did not touch him, I did not participate in the murder plan to kill someone: I was only on vacation."
Sources consulted by
Clarín
explained: "The homicide in a fight occurs when two or more people act in two groups but it is not identified who is responsible for the death. The entire group is responsible because the person who delivered the fatal blow cannot be identified In these cases, all those who exerted violence on the person, in this case, deceased, are taken as perpetrators."
Everything would indicate that Hugo Tomei's strategy would go along that line, something that he will have to argue in the allegations next week.
The penalty for this type of crime is
2 to 6 years in prison.
Those accused of the crime have already been detained for three years, so - if convicted by this legal figure - they could be released sooner rather than later.
Nullity or acquittal
In the defense guidelines, Tomei insisted on the nullity of the investigation, considering that there were technical errors in the investigative statements, something that was rejected by the judge who intervened in the case and who is on appeal in the Chamber of Cassation of the province of Buenos Aires.
The truth is that with the statement of the defendants who recognized themselves at the scene, in the videos, and with the evidence presented in the file,
both the annulment and the request for acquittal would be practically out of the question.
Except that the court considers that, after 13 hearings, there are not enough elements to locate any of the defendants in the actions that led to the death of Fernando Báez Sosa, something improbable due to the amount of evidence and direct testimony.
GL
