Causa n° 1723
Tribunal Oral en lo Criminal Federal
Victims / Plaintiffs in the first instance
Defendants / Respondents in the first instance
On March 10, 2010 the under age girl C.B. made a complaint to the Ombudsman of the city of Buenos Aires about her life condition at this city. She said at that time that from the moment she arrived at the country (Argentina) she was working in a vegetable-shop with journeys exceeding 18 hours per day, and then she had to continue working at the house of the defendants where she was subjected to mistreatment and had her personal documents held by them.
The division of human trafficking of the Argentinean Federal Police conducted an inspection at the vegetable-shop and confirmed the existence of other minors working in there.
The police and the District Attorney described the conduct of the defendants as constitutive of the offense of trafficking in persons, as defined in article 145 of the Criminal Code of the Nation, described as “capture, transport and harbour a child for labor exploitation purposes”, in this case aggravated because of the deception and threats, as well as three underage victims, being the defendants perpetrators since the girls were brought from Bolivia with the belief of a different job.
According to the prosecution the defendants had the purpose to exploit the victims by forcing them to work in their vegetable-shop.
Charges / Claims / Decisions
Article 145 Penal Code
Article 145 Penal Code
The Court ruled as follows:
In general terms, the Prosecutor held as true each of the circumstances described by the victims, from the time they started work by going to the market, the heavy burden when carrying the merchandise, the long hours shifts when attending at the vegetable-shops adding the household chores that were imposed after at home, lack of adequate food, the absence of a reasonable place for rest and time for this purpose, the threats made by the defendant, to the mistreatment and physical violence they suffered.
In this way, the Court must emphasize that it is undeniable that the testimony received from the alleged victims during instruction - which were incorporated by reading them with the Defense conformity, as expressly requested by the prosecutor because of the inability to get them to the hearing (Art. 391 of the CPP)- are prominent within the evidence frame on which the prosecution relied as many of the circumstances that we can describe as "controversial", as discussed below, are only supported in those versions.
This is not to put into question the veracity of these statements, but to value them in perspective, and bearing in mind that although its incorporation was consented by the defense, probably as part of a strategy that is irrelevant to qualify now, the fact is that there has been no opportunity to confront that part of that version or of interrogating witnesses.
Much has been discussed about the time in which the victims began their chores going in the truck driven by the defendant, to the market for the merchandise that was sold in the vegetable-shops. Thus, the feeling that the three alleged victims were waken up at 3 or 4 in the morning that purpose and that once on the market - that the defendant said was the one located in the town of Avellaneda – they loaded the boxes in the vehicle while the defendant did nothing, was set
On this point, the affirmations against the defendants, there is only the version of the victims – according to CBL it would have been at 5 in the morning, while adjusting to the sayings of DIAZ GARNICA and CRUZ FERNANDEZ (from Ombudsman Buenos Aires) it would have been at 3 – and despite having ordered intelligence work on the house of San Nicolás Street, no verification was done about it.
Moreover, during his testimony, the witness DOTTA, Deputy Inspector of the Trafficking in Persons Division of the Federal Police, when questioned on the subject, he admitted not having observed these morning movements and had not even gone to the Avellaneda market.
In short, one can say that the victims began working everyday at that time or, on the contrary, as held by the defendant in his statement that, it was not necessary to go to the market so early in the morning since the market is only fifteen minutes from their domicile, especially considering the opening time of vegetable-shops, and although he was sometimes accompanied by one the victims, it was only –conveniently for them- to avoid going bus the public transport to work, but the loading of the merchandise was done by a casual worker at the market.
Nor is it possible to state categorically that the working day was uninterrupted and as extensive as it is argued, that all the girls stayed in the shop from morning till night, not giving credit to the defendant’s statements that they alternated and made shifts.
In this sense, the lack of observations is decisive.
Here is important to remember that it is requirement that “...the true fact from which the presumption is derived, to be susceptible interpreted in one way; since it is inappropriate to admit the presumption, when the logical reasoning used allows us to reach more than one possible conclusion which are not similar.” (confr. C.N.Cont.Adm.Fed., Chamber I, “Ledesma, Amalia”, 26/9/2.000; in an analogous sense, Chamber IV, 6/8/92, “Confections Roley”).
The same can be argued for the threats and abuse claimed by the girls, as in this the denial of the defendants can not be challenged by these claims.
In the same line it has been claimed that the defendants deprived the victims of adequate food, because it is on the records of the girls’ testimonies that the only daily meal was received at night, sometimes this was even denied and in others was too insufficient.
It was not incorporated any medical report that proved a state of malnutrition or at least reflect the lack of food and rest to which reference was made, and the professionals who attended them after the rescue was done, did not showed no signs of having seen nothing startling about it.
In that sense, there is a clear lack of evidence that allow us to hold as certain some relevant sections of the victims versions.
Since it does not exist a sufficient correlation of facts, that according what has been previously developed here as proved and the typical requirements also addressed, this based on the insufficient evidence gathered, it corresponds to adopt a statement in favor of the defendants, not been able to challenge their status of innocence guaranteed by article 18 of the Constitution, article 26 of the American Declaration of the Rights and Duties of Man, article 11.1 of the Universal Declaration of Human Rights, article 8.2 of the American Convention on Human Rights, Pact of San Jose, Costa Rica, and article 14.2 of the International Convention on Civil and Political Rights.
Therefore, in accordance with the prescribed by sections 398 et seq. Code of Criminal Procedure, the Court DECIDES:
I. Acquit the defendants, the other personal conditions documents in the case, in order for them to be made regarding indictment, without costs.
Sources / Citations
Judgment - Causa n° 1723
Database of UFASE (Unidad Fiscal de Asistencia en Secuestros Extorsivos y Trata de Personas), Ministerio Publico Fiscal, Republica Argentina