49.
On February 22, 1995, the First Chamber of the National Chamber of Appeals for
Criminal and Correctional Matters issued a ruling in which it decided, inter alia: to revoke
operative point I of the appealed judgment (supra para. 44) and convict Mr. Mohamed
“for his criminal responsibility in the crime of manslaughter, and to sentence him to
three years in prison, suspended, and to disqualify him from driving any type of vehicle
for eight years (Arts. 26 and 84 of the Criminal Code)”, and to revoke operative point II
of the appealed judgment and order the offender to pay the costs of both court
proceedings.42
50.
In that ruling, the First Chamber stated, inter alia, that it did not share the
position of the lower court, which “to assess blame […], focused exclusively on whether
the defendant or the victim had the green light, as if such a municipal authorization
could absolve the accused of all responsibility and obviate the need to investigate the
behavior that, contrary to the objective duty of care, resulted in the punishable act”. The
Chamber then affirmed that Mr. Mohamed “violated the law that prohibits 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.” Similarly, the Chamber
held that “Mr. Mohamed’s account, when he rendered his preliminary statement,
demonstrates the defendant’s recklessness in driving the vehicle for which he was
responsible.” The Chamber described the defendant’s version of events as “virtually a
confession of reckless conduct.” It asserted that “[t]he standards of care, being objective
standards of prevention, are not at the disposal of individuals and therefore are not
abrogated by lack of use” and, regarding such norms, stated the following:
Among the internationally accepted norms applicable to this case, is the duty of one who creates
a risk for third parties to act in a manner so as to have 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 begin 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, these
principles are contained in Articles 37, 39 and 40 of Decree Law N°, 692/92, which regulates
43
automobile traffic.
Next, the Chamber found that “Mohamed, failing to exercise reasonable care to
guarantee third party assets, started up his bus in order to pass to the left of another
bus, so that when he was behind he voluntarily deprived himself of any possibility of
preventing a collision with the pedestrian who was still crossing on the crosswalk, unlike
the bus of line 103, which by maintaining the necessary field of view from his position,
avoided a collision.” The Chamber added that “in order to establish reproachable criminal
liability” it also took into account the testimony of an eye-witness, which the court had
assessed with caution, and referred to that evidence.44
42
Cf. Judgment issued on February 22, 1995 by the First Chamber of the National Chamber of Appeals
for Criminal and Correctional Matters, supra note 23, page 321.
As for the “suspended” prison sentence, the Court notes that Article 26 of the Criminal Code provides that “i]n
cases of a first sentence to prison that does not exceed three years, the courts shall have the authority to
suspend the sentence in the same ruling. This decision shall be duly justified […]. There shall not be conditional
sentencing for penalties of fines or disqualification.” Cf. Criminal Code of Argentina and Complementary
Legislation, Law 11.179 of October 29, 1921, supra note 29, page 67.
43
Cf. Judgment issued on February 22, 1995 by the First Chamber of the National Chamber of Appeals
for Criminal and Correctional Matters, supra note 23, pages 308 to 323.
44
Cf. Judgment issued on February 22,1995 by the First Chamber of the National Chamber of Appeals
for Criminal and Correctional Matters, supra note 23, pages 308 to 323.
16