6
decision was not subject to such an appeal. The petitioners note in this regard that in 1992 the
very same composition of the Supreme Court had accepted such a request in a similar case.
14.
The petitioners consider that Mr. Mohamed’s conviction violated Article 9 of the
American Convention, which prohibits the imposition of ex post facto laws. They contend that
the First Chamber of the National Chamber of Appeals based its conviction on violations of three
provisions of the transit regulations that were issued on April 27, 1992, subsequent to the
traffic accident that took place on March 16, 1992. They consider that the criminalization of
conduct at the time of sentencing, when it was not illegal at the time of the facts, violates
Article 9 of the American Convention.
15.
The petitioners note that, when the First Chamber of the Court of Appeals
rejected their special appeal, it admitted that it had made a “material error” in referring to the
1992 regulations, which had not been in force at the time of the accident. The Chamber went
on, however, to indicate that the penalty imposed had been based principally on an objective
duty of care under the Criminal Code. The petitioners maintain that no such crime exists under
the national legal order. The petitioners emphasize that Argentine law contains no express norm
indicating that a person who violates the “objective duty of care” shall be convicted and
penalized, and that the legal system does not permit the application of law by analogy or in
abstract.
16.
The petitioners maintain that the National Chamber of Appeals applied the
Criminal Code not based on a general principle, but by establishing violations of the transit
regulations of 1992. The abovementioned article 84 of the Criminal Code in force at the time of
the facts provided for a penalty ranging from six months to three years for any person who
“through imprudence, negligence or lack of expertise in his or her art or profession, or failure to
observe the regulations or duties under his or her responsibility, causes the death of another.”
17.
With respect to the State’s argument that the conviction was based on Article
84 of the Criminal Code and not on retroactive application of the regulations, the petitioners
argue that punishable conduct cannot be defined at the judges’ discretion, but only by
regulations that integrate the criminal law provision. They add that the definition of negligent
offences tends to be more or less loose, but this does not empower judges to make their own
definition of offenses, and these activities are therefore regulated. In this regard, they note that
the doctrine clearly distinguishes between negligent and intentional offenses. Intentional
offenses always imply the violation of a primary duty of the principal norm; e.g., in homicide, it
is the norm that prohibits killing. Negligent crimes, on the other hand, are the violation of
another different duty before the obligation not to kill; the law prohibits other actions besides
killing because they endanger the protected asset, which in this case is life. They are norms of
prudence, generally contained in police regulations and others that regulate daily life. This was
established in the Chamber’s judgment that cited Decree 692/92 to punish Mr. Mohamed’s
conduct. The petitioners argue that using Article 84 alone to establish the offense of failure to
exercise the “objective duty to care” violates the prohibition of retroactive laws established in
Article 9 of the American Convention.
18.
Concerning the State’s argument that Articles 37, 39, and 40 of Decree 692/92
impose the same obligations on drivers as Articles 41, 42, 47, and 49 of Decree 12.689/45,
which was superseded by Law 23.181/85, the petitioners say this is not true. They say that
even though some aspects may be similar, the overall legislation of both regulations is quite
different. The petitioners state that despite the similarities, this does not authorize the legislator
to apply them by analogy especially when this is not established in any of the judgments.1 In
01 The petitioners add that at the time of Decree 12.689 of 1945, there were no traffic lights in the city
of Buenos Aires, and there were no one-way streets, as is the case Belgrano St. (which was designated one-way
on December 29, 1967 and had traffic lights approved on December 10, 1996). Therefore, the principles of said