In a controversial decision, the Criminal Court 2 of Corrientes ordered the
prescription of the criminal action
against the gynecologist Gerardo Dahse, who was prosecuted for having
sexually abused a teenager in his office
in February 2008. The plaintiff lawyer announced that she will appeal the ruling before Cassation to reverse the ruling.
The decision of judges Román Facundo Esquivel, Ariel Héctor Gustavo Azcona and Juan José Cochia, goes against the resolution that the Court of Appeals issued in April of last year, rejecting the prescription claim that the doctor's defenders alleged at the time. .
In the foundations of the resolution that reverses the criminal process initiated against Dahse in 2022, Judge Esquivel maintained that the prescription “is a guarantee in favor of the accused of a constitutional nature through which a brake is imposed on the State to continue the persecution” of a crime.
In that sense, he explained that "the criminal action
will prescribe after the maximum duration of the sentence indicated for the crime has elapsed
, if it involves acts repressed with prison, and the term may not, in any case, exceed twelve years or be less than of two years.”
And that in the case of the gynecologist, he indicated that "the act would have been committed in a period of time included during the month of
February 2008
" and that "the first call made to Gerardo Alejandro Dahse in order to receive an investigative statement from him The crime in question took place on
April 1, 2022
, it can easily be verified that the 12 years established as a maximum for the prescription of the action to take place have more than elapsed.”
In another paragraph, the magistrate maintained that "it cannot fail to draw the attention of the Court that, in the previous instance but also in its appeal, the issue was addressed establishing that
the declaration of prescription was not appropriate" because the victim was a minor.
at the time of suffering the sexual attack.
He recalled that "the cause for suspension of the prescription in question was only included in the Penal Code in 2011 and, by virtue of the principle of legality, it should not apply retroactively." In other words, it should not have been applied in the Dahse case.
But the central argument to overthrow the process against the questioned gynecologist was based on the fact that the victim had already turned 18 at the time of the rape in the office.
“Going now into the crux of the issue, it is necessary to analyze
whether the victim in the case should be considered a child
at the time the allegedly criminal act occurred. This, in order to determine whether the stipulations contained in the Convention on the Rights of the Child are applicable to him, which, as already stated, together with other supra-legal regulations, would justify the existence of a cause for suspension of the prescription that may be used against the rights of the defendant in the proceedings,” Esquivel argued.
He recalled that said convention "a child is understood to be any human being under eighteen years of age, unless, by virtue of the law applicable to him, he has reached the age of majority earlier" and that in the case that involves the doctor " Under no circumstances does it imply that (the victim) can be considered a girl.”
He added that "since the postulates of the Convention on the Rights of the Child are not applicable and the jurisprudential interpretation that has been upheld in the different instances does not adjust to the facts observed in the present case, it is appropriate to rule out the existence of a cause for suspension of the prescription in the terms that may be put forward from time to time.”
For the Corrientes judge “it is understandable - and even auspicious - that within the scope of Criminal Law those
postulates that until recently seemed immutable
are being subjected to examination . That the advances achieved in other branches of knowledge can influence our subject so that it adapts to the times we live in and their specific and prevailing needs. What cannot be considered comprehensible - much less healthy, especially for the litigants - is
to go beyond the assumptions regulated by the law, the Constitution and international regulations
and even more so if it is a jurisprudential interpretation that, at all In the light, it is exceptional and, therefore, viable only if the cases examined are based on the same factual and legal circumstances. The above, under the pretext of incurring manifest arbitrariness.”
In another paragraph he said that the Court's ruling allows for “correcting the vices, defects and errors of previous stages” of the process; and that if a sentence were passed on Dahse in this case “it would not be confirmed by the Nation's Highest Court of Justice.”
The doctor
already has a conviction for having sexually abused another patient.
The Criminal Court 1 of Corrientes imposed a seven-year prison sentence on him, which he must serve once the ruling is final.
Missions. Correspondent
MG