An assessment of the case JMIL s / inf. art. 111 CC I. Introducción
This letter has as main objective to express an opinion on a legal case Mayorga Jara Luciano Israel, which has transcended in numerous media including the official website of the Metropolitan Police ( http://www.metropolitana.gov.ar/noticia_59.html ).
To achieve the proposed objective text organized in five sections the first of an introduction and explanation of the purpose of writing. The following is a critique of the interpretation of such misdemeanors. In third grade, a question the use of control test drug vial. Fourth analysis to the decision of the judge and finally an assessment of the publicity given by certain media and especially by the Metropolitan Police.
II. misdemeanor type
As regards the analysis conducted by the judge in misdemeanor type that has been framed JMIL conduct which states:
Article 111 - Driving much of the permitted blood alcohol or under the influence of drugs. Anyone who drives a vehicle beyond the limits permitted blood alcohol or under the action of other substances that diminish the ability to do so is punished / a two hundred ($ 200) to two thousand ($ 2000) dollars fine or one (1) a ten (10) days of arrest.
is estimated that such criticism misses the second part of the analysis of the type target for the hermeneutic approach utilizado1. Because the interpretive key used is concentrated in the presence of "substances" and not whether there is actually a deteriorating effect on the ability for management. And the latter must be the guiding criterion in reading legal text. Otherwise punishing the consumer would not generate a clear danger to others. Already in the rule of law 2,148 in its second paragraph states that this guideline:
5.4.1 General rule: ... is considered impaired fitness to drive when there is drowsiness, fatigue, impaired motor coordination; attention, sensory perception or critical thinking, changing thinking, ideation and common reasoning.
III. Traffic controls test less reliable or as accurate.
Second question the acceptance as evidence to test traffic controls such as binocular and saliva. In a thorough investigation on the drug traffic controls in saliva sample conducted by the Monitoring of Public Policies on Addiction's office Congresswoman Diana Maffia, call into serious question the veracity of these devices and more if you want it take their results as evidence.
In Argentina when in 2010 it was reported that the bid was made for $ 120,000 .- for the acquisition of a "Pupilometer Laptop for drug control through the eyes, bound for the General Directorate of Road Safety ... Knowing this, several doctors protested noting that there is a range of fairly common medicines that cause pupillary without in any way handling capabilities, so that the chosen method would fail to give false positives ... " http://dianamaffia.com .ar / files / Over-the-traffic-control-de-drogas_final.pdf
Moreover, the report highlights the dearth of pilot testing; "The drug traffic controls, but are relevant for Argentina law while the alcohol-year 2008 - were never implemented. Nor were conducted thorough tests emphasized pilot or awareness campaigns on the issue, ignorance, surprise, and the debate expressed by the inhabitants of the BAC and the media to know the advent of the controls, shows how little effort and investment that both government national and local levels have been campaigning and prevention ". Http://dianamaffia.com.ar/archivos/Sobre-el-control-vial-de-drogas_final.pdf
IV. A look criminalizadota aforementioned protective versus a look
As the judge set the sentence arrest a day suspended, and that " for a period of three months to comply with the rules of conduct consisting of: 1) take up residence and inform the court of this change, 2) comply with subpoenas or requests that the Attorney or caused her to court, and 3) take the course which gives the Traffic School and Traffic of the Government of the City of Buenos Aires ".
At the request of the prosecutor three days of arrest, the judge responded with a day of suspense. Yet we can see that survives a look criminalization on the issue; at no point mentions the statement referred to to the completion of treatment or attendance at certain center regarding addictions. Therefore it is necessary to emphasize that in matters where it comes into play the issue of addiction, should be considered a protective nature spirit and comprehensive.
V. Advertising stigmatizing
Finally it is extremely reprehensible and outrageous stigmatizing advertising has been done with the situation and the person of the accused, through numbers that the media and especially on the official website the Metropolitan has been released. First rather the clarification of their data and the assertion of what happened, being that the sentence is not final under which has been appealed; grossly affected the presumption of innocence guaranteed by the National Constitutional Bloc and in the Code of Criminal.
both Article 18 of the Constitutional Nacional2 and international treaties with constitutional hierarchy embodied in Article 75 inc. 22 of the Constitution 3 guard the principle of innocence. For its part, the Code of Criminal Procedure of the Nation following the same line of higher order states that
Article 1 - No one shall be tried by courts other than those designated in accordance with the Constitution and jurisdiction under its laws and regulations, or punished without trial based on law preceding the process and substantiated in accordance the provisions of this Act, or considered guilty until a final decision not rebut the presumption of innocence that every accused person has, or criminally prosecuted more than once for the same offense.
Moreover, the Inter-American Court of Human Rights in the case of Jose Guillermo Maqueda made in this respect that " This first builds a presumption in favor of the accused of a crime, according to which he is considered innocent until his criminal responsibility is established by a final decision. The content of the presumption of innocence requires that the conviction and, therefore, the application of a penalty can only be founded on the certainty of the court ruling on the existence of an unlawful act attributable to the accused "http : / / es.scribd.com/doc/35939488/Demanda-ante-la-Corte-IDH-Caso-Maqueda
This will leave the course for achieving the due process respect for the presumption of innocence an order of democratic rule of law is essential. Pilar totally unknown by the Metropolitan Police as can be seen in the institutional website of this institution.
Second, the emphasis and constant redialing of his Peruvian nationality, which is part of a meta xenophobic and criminalizing immigration as well as their connection to drug trafficking.
As a corollary of this promotion stigmatizing the person is used as "war trophy" by the institutional page Metropolitan Police to demonstrate the supposed success of the new drug traffic control. Suffices to terrible humiliation and violation of Israel Jara range searching on the internet your name, where complaints appear related to the mentioned throughout the text.
Notes 1. To be more clear about the target rate has two parts. The first beat to driving a vehicle on the subject. The second part is divided into two conditions (a) with the highest amount of alcohol in blood allowed and (b) under the action of other substances that diminish the ability to do so. Unlike the circumstance (a) the silver in (b) lacks an indication of a permissible level, but this is without prejudice and here the difference with the interpretation made by the judge, which admits that the mere presence of substances results in a deterioration, it is known that certain substances can be metabolized or several days after legal drugs are producing the same effect on traffic controls devices.
2. Article 18 - No inhabitant of the Nation may be punished without previous trial based on law preceding the process, nor tried by special commissions, or removed from the judges appointed by law before the fact of the case. No one can be compelled to testify against himself, nor be arrested except by written order of competent authority. The defense in opinion of the person and rights ...
3. Universal Declaration of Human law Every person accused of crime has the right to be presumed innocent until proved guilty according to law on trial public in which he has had all the guarantees necessary for his defense. (Art.11 Inc.1) International Covenant on Civil and Political Rights : Every person accused of a crime is entitled to presumed innocent until proved guilty according to law. (Art.14 inc.2) Pact of San José de Costa Rica: Every person accused of crime has the right to be presumed innocent until his guilt. (Art.8 inc. 2)
