Two young men fight inside a nightclub and are expelled by security personnel. Once outside, one of them meets with his friends and several of them attack the other. They give him a vicious beating and kill him. The Justice determines that there are eight aggressors and that it corresponds to condemn five as co-perpetrators of qualified homicide and another three as secondary participants in that crime.
The sentences are distributed: life imprisonment for the former; 15 years in prison for the others. According to the judges, those responsible acted with premeditation and treachery, but a dispassionate reading of the sentence allows one to question the wisdom of this solution.
The case
The brutal crime of Fernando Báez Sosa has attracted the attention of the country since it happened in January 2020. Possibly, the characteristics of the people involved have contributed: on the one hand, a victim recently admitted to university, the only child of a struggling family and very loved by all; on the other, middle-class boys, rugby players, with a reputation for being angry and arrogant, who liked to settle their differences with the pineapples or, rather, create the conflict to hold on to the pineapples.
This summer, the Báez Sosa case attracted public attention like few others. It coincided with the unusual celebration of the oral trial in the middle of January, with a cast that ensured spectacularity and a script not exempt from some imperfections, such as the desperate declaration of the defendants regarding the ending, with their naive apologies to the parents of the dead young man. and an inexplicable joint defense of subjects who might aspire to different fates.
The debate in courts was joined by as many others as television programs were broadcast, of any genre and at all times. Lawyers, psychologists, criminologists, sign language experts and people willing to issue apodictic judgments on issues over which their competence, in many cases, was uncertain, attended there.
The most relevant legal discussion took place in relation to the punishment that would be given to the murderers, condemned in advance and without any chance of obtaining an acquittal: perpetual or temporary sentence?
The supporters of the first maintained a homicide classified as treachery and with the premeditated participation of two or more people. The plaintiff’s lawyer, Fernando Burlando, showed videos and argued in detail on these points, to show that the idea of killing the young man was born inside the nightclub (premeditation), while they also took advantage of the defenseless state (treachery ) when the victim was already hors de combat.
The chorus of the second favored either simple homicide (without aggravating circumstances), preterintentional (the perpetrator had the intention of injuring, but caused the death with a means that should not reasonably have caused it) or in aggression or in a fight (a fight in which two or more people take part and there is no record of who caused the death).
The decision
Finally, a few days ago, the Dolores judges handed down a sentence and gave the act the most severe qualification. According to them, there was a premeditated competition between two or more people and treachery, assuming the position of the complainant as their own. On the first issue, the court says that it does not require a lengthy common decision; it is enough that it took place in previous moments. But it does not support this conclusion with any evidence, nor does it explain how and when this decision was made or how the attacking subjects were assigned roles.
On the contrary, the whole dynamic of the event indicates a spontaneous attack by a mob that pounces on the victim with the intention of hitting her, which is not compatible with that premeditation that, in any case, must be proven beyond a doubt.
Of course, those blows were suitable to cause death and, for this reason, even if they did not want to cause it directly (direct intent), it must be attributed to the defendants for eventual intent (they did not care if the other, as a consequence from blows, died or not).
Regarding treachery, the court makes an unacceptable interpretation of the law. This qualifier is only possible if the author has preordered death in a situation that does not represent a danger to him; either by the reaction of the victim herself or of third parties. If the victim is rendered unconscious by the perpetrators’ blows and in that state they finish her off, this is not only treachery, because if they intended to kill her, that defenselessness is nothing more than a stage of the initial homicidal action.
An example can clarify the issue: the one who stabs another to kill him and kills him, it might not be said that following the second or third stabbing the homicide becomes treacherous, even when the passive subject has been left without any possibility of repel the attack. Nor does it seem that treachery is possible in the context of the event reported in the judgment, which occurred on public roads when there were third parties who even struggled to intervene in defense of Báez Sosa.
From my point of view, it was a simple homicide, a qualification that does not detract from the seriousness or drama of the event; one of many that often happen in many parts of the country without the big media taking care of them.
* Criminal lawyer
