The Federal Chamber of Buenos Aires ordered this Tuesday the non-existence of crime and the file of the complaint of the actress Florencia Peña against two deputies from Together for Change, Waldo Wolff and Fernando Iglesias, for some controversial tweets about visits to the president Alberto Fernandez and the party at Quinta de Olivos during the quarantine due to the pandemic.
The ruling was voted by majority by judges Martín Irurzun and Eduardo Farah, with the dissent of the chamberlain and former lawyer of Cristina KirchnerRoberto Boyco.
In the case, Florencia Peña with the support of the media K denounced Wolff and Iglesias for the comments through Twitter, in which the last one expressed: “For me, the lady was going to help him find the knob that turns on the economy to put Argentina on its feet.”
To which the first would have replied: “But she on her knees, right?”
The actress’s complaint attributed to the tweets sexual connotation that violated commitments assumed by the Argentine State for the eradication of gender violence.
That conduct of the legislators, according to the complaint and the prosecution, would configure the crime of breach of the duties of a public official (Article 248 of the Penal Code).
Wolff’s attorney, Tomás Farini Duggan, celebrated the chamber’s ruling because “there was no crime but there was a maneuver to cover up the scandal of the party with this case birthday of the first lady in Olivos”.
In statements to ClarionFarini Duggan maintained that “the complaint was to try to victimize to some of those accused of the party in Olivos, with unprecedented media coverage and overreaction”.
In the case, which is instructed by federal judge Marcelo Martínez de Giorgi, a statement was taken from the government adviser and former model Sofía Pacchi, who confirmed having felt “harmed” for the content of the messages disclosed by both deputies on the social network Twitter.
In their majority vote, the chamberlains Irurzun and Farah said: “Whatever the understanding and scope that is granted to the duties that the accusers invoke, what was discussed here it is limited to the possible operation of two crimes of public action: those foreseen in articles 248 and/or 249 of the CP”.
They recalled that those articles state as an inescapable requirement “that the official acts as such, since for the type the abusive act merely juxtaposed to the quality of official is not enough”.
Thus, they said that “the official who, annoyed because a group of young people makes noise in front of his house, forbids him to stop in front of it, acting as a simple individual, does not commit the typical abuse, despite his status as an official.”
“All the elements of the cause lead a rule out the occurrence of that conditionsince it is not possible, even hypothetically, to frame the facts –due to their characteristics of commission- in said objective requirement”, they added.
The information on the case, they stressed, “demonstrates that the contested statements – it is worth noting: in a tenor certainly questionabledue to the way in which they referred to part of the people they alluded to- had a connection with the contingencies inherent to the participation of those involved -National Deputies- in party politics, and were linked to their individual vision of events produced in the fifth Presidential of Olivos”.
“Exists a noticeable and obvious difference between that scenario of action (the tweets) and the one strictly required by the criminal law in arts. 248 and 249, CP (see citations)”, they continued.
In this way, for Irurzun and Farah in the form “it manifests what was denounced does not fit in any of the crimes of public action that were brought up -nor in others of that nature- and this implies that the procedure followed up to this point is not applicable; to that extent the exception is partially appropriate”.
Instead, in his dissenting vote, chamberlain Boico recalled that “opinion immunity of legislators is provided for by the Constitution as a safeguard for the exercise of the function that Parliament has in our democratic system”.
Pursuant to this principle, “national jurisprudence has granted preeminence against alleged violations of general rights inherent to any citizen, such as honor.”
This case presents “a situation different from those dealt with in those precedents. Here the application of article 68 is invoked, in the face of a hypothesis of acts committed by national deputies that, according to the accusers, would configure discriminatory treatment of female victims, to the detriment of their rights and obligations to which –with a constitutional dimension- the National State has committed itself before the international community”.
For example, Boico said, “the rules that establish rights of equality and non-discrimination for women (and I add LGTBI), within the framework of international human rights law, as well as those that promote the eradication of all forms of violence of gender, constitute norms of the highest hierarchy in our local positive law”.
Boico argued that having said what precedes, “then, the immunity of opinion of article 68 is not constitutionally acceptable as a neutralizer or obstacle to the development of a criminal investigation, as long as what is spread constitutes – hypothetically – a statement that expresses a case of violence. of genre”.
“Here, for the moment, both accusers support that hypothesis, so I will apply such a decision criterion” that the investigation continues. Surely, the lawsuit will appeal this ruling to the Cassation Chamber and continue the debate.