By: Carlos González Guerra, Director of the Master's Program in Criminal Law of the Universidad Austral.
The criminal justice system and society share a very particular relationship, one that is reinforced from time to time by cases that, for one reason or another, acquire significant media attention. The trial for the murder of Fernando Báez Sosa, which reached its verdict last Monday, has undoubtedly been one of the most relevant in this regard in recent years.
That is why criminal cases of this nature have precisely two dimensions. On the one hand, there is the media coverage and the positions taken by society, in this case from the very early morning of the homicide. On the other hand, there is the judicial development of the case, with the collection and evaluation of evidence, which will determine the events that occurred and, subsequently, their technical-legal assessment to establish possible specific charges. In the case of Báez Sosa, the first dimension seems to have contaminated the second: in the sentence of the Oral Court there are logical leaps that bring to light doubts and questions about why the decision that the social climate demanded was finally made.
The first social and media dimension is pre-configured by what has been called “the identification of the social majority with the victim of the crime.” This identification is fostered by the slow but progressive shift in subjective criminal law and the State's power to judge and punish. From “the sword of the State against the helpless offender,” as a means of preventing state arbitrariness in the application of penalties, there has been a shift, in Argentina and many other places, to a diametrically opposed interpretation, one that emphasizes “the sword of society against the crime of the powerful.” In the case of Fernando Báez, we had, on the one hand, a humble young man, with aspirations, who had worked all year to travel to the coast; and, on the other, several boys from more affluent backgrounds, some of them players of a sport perceived as elitist.
Perhaps the most interesting point to discuss is what the State ultimately seeks to achieve by imposing punishment on people who commit crimes. This debate naturally entails analyzing the philosophical roots of the problem. One could discuss the communicative dimension of punishment at the moment of sentencing—televised live almost as a national broadcast, or Reality show, In this case—that is, the message that society as a whole receives from the penal system when it declares a person guilty of a crime, reaffirming the general idea that the law is in force and must be obeyed. One could also discuss its punitive dimension, which corresponds to the effective fulfillment of imposed sentences. By punitive dimension, I mean the necessary step, in some types of crimes, of the convicted person being effectively deprived of their liberty in prison. However, with the recently handed-down sentence and the technical-dogmatic discussion that arose from it, it is worthwhile to focus on a third aspect: the court's assessment of the evidence obtained in ultimately deciding the crime for which to convict.
The oral trial, or debate, a central part of any criminal process, was conducted in this case with seriousness, and each party was allowed to freely and responsibly exercise their rights and guarantees. Each party structured what we technically know as a "theory of the case," presenting the evidence they deemed necessary, asking and objecting to questions from both witnesses and experts, and evaluating the rest of the evidence accumulated during the three years between Fernando's death and the trial.
During closing arguments, the prosecution and the defense presented two very different technical positions. The prosecution argued that the eight defendants acted with treachery (Article 80, paragraph 1 of the Penal Code), that there was a prior agreement among them to kill—premeditated—(Article 80, paragraph 6), and that, in light of the theory of functional co-authorship—a theory developed by the German professor Roxin and also used in the Trial of the Juntas in 1985—there was a division of tasks among them that made it irrelevant which was the fatal blow, since the contribution of each of them was necessary to cause the death. This charge under Article 80 of the National Penal Code carries with it the imposition of an indivisible prison sentence, that is, the much-demanded life imprisonment, with which the Oral Court condemned five of the eight defendants, leaving the other three charged with the same crime, but with a reduction of the sentence for not considering them co-authors but secondary participants.
The defense for the eight defendants considered a much broader interpretation than that presented in the prosecution's theory of the case. They argued that their clients should be acquitted due to certain procedural flaws in the evidence, which are not relevant to discuss here. They further argued that—should the court find the facts proven—the charges should be entirely different from those brought by the public prosecutors and private plaintiffs. Naturally, the defense argued in favor of offenses with lighter penalties. First and foremost, they sought a conviction, if anything, for homicide in a brawl (Article 95 of the Penal Code), which carries a prison sentence of two to six years for cases in which a person dies during a fight or assault, and it cannot be determined who specifically caused the death. Secondly, he indicated that it could be a case of unintentional homicide (Article 81, paragraph 1.b), which establishes a prison sentence of 3 to 6 years when someone, with the purpose of causing injury, ends up causing death with a means employed that should not reasonably produce it. Only as a last resort was the possibility of a charge of simple homicide, but clearly with implied malice, which, according to Article 79 of the code, should lead the judges to determine a sentence between 8 and 25 years in prison and would require the court to determine a different sentence for each of the eight defendants in the case.
Faced with these two positions, the Oral Court sided with the prosecution's theory of the case and with the demands of the majority of society. It attempted to strike a Solomon-like decision by excluding three of the eight defendants from the life sentence, but it failed. It identified with the victim of the crime.
In its ruling, the court determined that the evidence presented during the oral proceedings proved that the eight defendants conspired to assault Fernando Báez Sosa outside the nightclub where the altercation had begun and from which they had been ejected by security personnel. The court also found it proven that the eight defendants organized a surprise attack from two different directions against Fernando, who was standing across the street from Le Brique, chatting with friends. The court further found that Viollaz, Cinalli, and Lucas Pertossi acted as secondary participants, preventing Fernando's friends from coming to his aid by assaulting them.
Now, even if the facts of the case are proven, as the court maintains, demonstrating that the eight acted in a premeditated manner to organize a surprise group attack against Fernando, a central point in the indictment remains: proof of intent to kill. Even accepting the premeditated intent to injure, the court makes a logical leap that is, at the very least, very difficult to understand. The ruling jumps from premeditated intent to injure—that is, the agreement of all eight to go and beat and injure Fernando—to direct intent to kill during the few seconds the attack lasted. And it is at that point, according to the court's opinion, that Fernando was immobilized, practically unconscious and at the mercy of his attackers, thus allowing the aggravating circumstance of treachery to be applied.
Let's review the events. They get into a fight inside Le Brique, security removes them, they end up in different places, and 10 minutes later, the eight attack Fernando's group, even taking advantage of the fact that the police had left: in other words, the attack was premeditated. Two hit him, he falls, three fight with Fernando's friends, and five kick and beat him until he dies.
Where does the intent to kill begin? Did they all premeditate the killing? Or does the intent to kill arise when he was already defenseless on the ground and the five continued hitting him? How is it proven that there was an agreement to kill? Does that agreement to kill establish co-authorship or does it establish aggravated homicide due to premeditated conspiracy? And finally, how does that intent extend to those who were fighting with Fernando's friends?
The Oral Court opted for a sentence—the life sentence demanded by society—attempted to reduce the severity of the punishment for three of the defendants, and finally sought the arguments to arrive at that conclusion (I want to do this, what tools do I have at hand to justify it). This does not seem to be the appropriate logical analysis. The path we have always been taught in legal doctrine is the analysis of the evidence, its evaluation, and its classification within the current criminal law. Perhaps it is by putting the cart before the horse that the ruling contains logical leaps that fail to fully explain why this is not a case of homicide in a fight (something is mentioned), of unintentional homicide (something less is mentioned), or, perhaps, what seems most likely, a simple homicide (no less serious for that), where there is only evidence, with respect to some of the defendants, to impute the "eventual intent" to kill.
In order to impose a life sentence, the court was forced to consider that there was a direct intent to kill—direct intent—in order to classify the act under the aggravating circumstances of premeditation and treachery. However, everything seemed to indicate that the killers were aware of the possibility of killing and continued beating, seemingly indifferent to it. This scenario is more consistent with a case of implied intent and therefore makes it impossible to support the aggravating circumstances. Even assuming that some of the aggressors acted with direct intent, it is very difficult to extend that subjective imputation to all of them, let alone consider the existence of the aggravating circumstances.
The conclusion today is that the vast majority of society is satisfied with the ruling, because they believe justice was served—each person received what they deserved—and the maximum sentence allowed by law was imposed. A very small segment of society—criminal law specialists who still believe that legal theory has a role to play in resolving cases—is, at the very least, concerned to see how this valuable technical-legal tool, which we have been studying for years, can lead to unexpected outcomes. Ultimately, though, for some, justice was done, while for others, legal theory was applied and debated, which is not the most common practice in court rulings in our country.
The communicative dimension of the sentence has been fulfilled; the validity of the law has been generally reaffirmed by declaring those responsible for the homicide guilty and showing each of us that one cannot kill without consequences. I only hope that its practical dimension, the concrete deprivation of liberty, is as painless as possible for those who must endure it. If that does not happen, we should repeatedly examine what we, as a democratic society, expect from the imposition of a prison sentence. This is especially true when, as in this case, those who must serve it are at the beginning of their adult lives and can and should be better reintegrated into society.
