PARTIALLY DISSENTING OPINION OF
JUDGE ALBERTO PÉREZ PÉREZ
CASE OF MOHAMED v. ARGENTINA
Judgment of November 23, 2012
(Preliminary Objection, Merits, Reparations and Costs)
1. Scope of the partially dissenting opinion. This dissenting opinion refers only to
operative paragraph 5 of the Judgment (“5. It does not consider it appropriate to
determine whether there was a violation of the principle of legality (freedom from ex
post facto laws), enshrined in Article 9 of the American Convention on Human Rights, in
relation to Article 1(1) thereof, to the detriment of Mr. Oscar Alberto Mohamed, under
the terms of paragraphs 130 to 139 of this Judgment”) and to the relevant legal
grounds, particularly paragraphs 136 to 139.
2. The text of Article 9 of the American Convention, the provision on which the Court
makes no ruling regarding an alleged violation, is the following:
ARTICLE 9
Freedom from Ex Post Facto Laws
No one shall be convicted of any act or omission that did not constitute a criminal offense, under
the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the
one that was applicable at the time the criminal offense was committed. If, subsequent to the
commission of the offense, the law provides for the imposition of a lighter punishment, the guilty
person shall benefit therefrom.
3.
Relevant part of the judgment challenged. The relevant part of the judgment
issued by the First Chamber of the National Chamber of Appeals of February 22, 1995
(hereinafter “the judgment of the Chamber”) states the following:
[Legal basis]
(...) [I] must state here that I endorse the sentence appealed only in that it has proved the
responsibility of the accused in striking the victim in this incident and that this collision caused
her death. I do not share the trial judge’s disqualification of the testimony of the eye-witness to
the accident (...) nor do I consider that testimony sufficient to substantiate whether the
defendant in this case, did or did not commit an imprudent action which, at the very least,
contributed to the socially improper outcome.
Indeed, to assess blame, the trial judge focused exclusively on whether the defendant or the
victim had the green light, as if that municipal authorization could absolve the defendant of all
responsibility and obviate the need to investigate the behavior that, contrary to the objective
duty of care, resulted in the punishable act, because in this case it is also clear that Mohamed
failed to observe the law that forbids passing another vehicle at an intersection, precisely to
ensure that drivers have the necessary visibility at all times and are therefore in control of their
actions.
(...)[T]he defendant’s own statements are sufficient evidence of an imprudent action, which was
a decisive cause of the reproachable outcome being analyzed.
Mohamed (...) stated that he stopped his bus at the bus stop located on Belgrano, between
Tacuarí and Piedras, behind a bus of line Nº 103, so that when the defendant started up his bus
he turned toward the left lane, into the third lane, because the bus of the 103 line was in the
lane to his right and passed half way by him when they arrived at the intersection of Belgrano
and Piedras, where the traffic light was green; he saw the 103 bus brake and saw a woman
running in front of him, so he also braked, but struck her with his bumper, making her stumble,
fall and strike her head on the ground.
I consider that this account suffices to demonstrate the defendant’s recklessness in driving the
vehicle for which he was responsible. Norms of care, as objective regulations for prevention, are
not at the disposal of individuals and therefore are not abrogated by lack of use. Among the
internationally accepted norms that apply to this case is the duty of one who creates a risk for
third parties to act with full control of that risk at all times, in order to prevent any damage to
others, which could result from possible and foreseeable circumstances; a related obligation is
for one who passes another vehicle to maintain sufficient visibility, and not to start passing at an
intersection, curve bridge or other dangerous place; and a third duty is to yield to pedestrians
on a pedestrian crossing, at all times in areas where there are no traffic lights, and as indicated
where there are traffic lights. In our legislation, such principles are established in Articles 37, 39,
and 40 of Decree Law N° 692/92, which regulates automobile traffic.