Saturday March 25, 2023 | 5:00 a.m.
For almost two years -a total of 707 days- a young man accused of sexual abuse was detained, who was released last Thursday after the Criminal Appeals Chamber of Posadas annulled the proceedings of the Investigating Judge One of Oberá, Pedro Piriz, for lack of foundation.
Likewise, the Chamber considered that the right to due process was violated when the prosecutor’s office in charge of Elías Bys changed the date on which the event would have occurred, contradicting the victim herself.
Consequently, the First Investigating Court had to review its actions and ordered the extraordinary release of the defendant, who in any case will continue to be subject to the file that is directed to the lack of merit.
Fernando G. (28) was arrested on April 15, 2021 for an alleged sexual abuse registered thirteen months earlier, on March 1, 2020, while the complaint was filed only in July of the same year.
From the beginning of the process, the defendant denied any relationship with the incident and his defense provided a dozen witnesses, photos and telephone records that disassociate him from the rape of a 30-year-old woman.
Meanwhile, last August the report of the expertise carried out on the cell phone of the alleged victim was incorporated into the file, evidence that located her in the town of Panambí on the day and time of the event, not in Oberá, where she stated that she was recorded the abuse.
With this evidence, the defense requested extraordinary release, but contrary to this, prosecutor Bys changed the date on which the event would have occurred.
Finally, on Thursday Fernando G. was notified of the release and left Penal Unit VIII of Cerro Azul.
Evidence in favor
Among other evidence, the defendant’s defense provided a dozen witnesses who testified that they had been with the defendant between the night of February 29 and the morning of March 1, 2020, WhatsApp messages, and photos that would corroborate their statements.
The Secretariat of Support for Complex Investigations (Saic) examined the cell phone of the accused, where it would be verified that he was not where the alleged victim said.
Even Fernando G. “was investigated before knowing the evidence against him because he has nothing to hide,” stressed the private defender, Sebastián Flosi.
Regarding the accusation against him, the person involved indicated that on the night of February 2020 he met with his parents, brothers and sisters-in-law to eat a barbecue, on which occasion they took several selfies that appear in the file.
One of the photos shows that at 2:30 on March 1, he was still with his family, when a witness of the complainant declared that at 2:00 he saw him enter a pub on Córdoba de Oberá street, that is, half an hour before what is in the data of the selfie.
Always according to Fernando G.’s statement, after having dinner with his family he went to an events room on Provincial Route 5. Among the witnesses summoned by his defense was a person who provided a photo taken at the place at 4:46 p.m. March 1st.
This would also mean that at 2 o’clock he was already in the pub on Córdoba street.
He was in the hall of route 5 until almost 6 o’clock on March 1, after which he went with a friend to the center of Oberá, bought beer and hung around until 9 o’clock, when he went home.
“The boy he was with until 9 o’clock showed up to testify and provided photos that were taken at that time,” Flosi said.
The complaint
In return, the complainant declared that between the night of February 29 and the early morning of March 1, 2020, they visited three bars with her brother, in the last of which they met Fernando G.
At 5 the three left together in the suspect’s car, who told them he was a taxi driver. The file shows that on said date the defendant did not have a car and worked as a salesman, of which evidence was presented.
In the subsequent statements of the alleged victim and his brother there were several marked contradictions. It was also stated that both were drunk.
In July 2020, four months after the alleged abuse, the complainant Mariana V. declared that around 2:30 on March 1 they met in the pub on Córdoba street “with a group of my brother’s friends. Among them was Fernando G., with whom I have no relationship but I know him because he went to high school with my brother. At 5 he offered to take us to my house. We arrived, I got out, went into the house, changed and went to sleep, and my brother stayed in the car with Fernando.
And he continued: “I was asleep and I woke up because I felt that someone was in bed with me, that they lowered my pants, my panties and began to penetrate me. I got scared and what occurred to me to say was ‘I went out because I’m screaming and calling my brother’, at that moment he got up and when I opened my bedroom door, I could see that it was Fernando G. by the light in the hallway that was on. who was coming out It was he who broke into my house and accessed me without my consent.
The role of the brother
Regarding where her brother was when the alleged abuse was recorded, the woman replied “I don’t know where he was, because when the defendant brought us I got out of the car and he stayed with my brother talking inside the car. I don’t know if my brother went in with Fernando or if Fernando went into the house alone. I don’t know how he managed to get in. I asked my brother and he doesn’t answer anything. He doesn’t tell me if he let him in or if there were other people”.
For his part, in court the complainant’s brother declared that “that night with my sister we went to the Beer Store, had dinner and drank; then we went to Clock to have other drinks, and since Isidoro is nearby we went and continued consuming alcoholic beverages”.
“The two of us were alone when Fernando G. arrived, whom he had not seen for eight years. He was my classmate from elementary school. He told me that he was a taxi driver, but I don’t know if he was in the service. Throughout the night we were just the three of us. He would ask me if my sister was alone, if there were people at home. At all times he was interested in her, ”he added.
Then he acknowledged that “at one point in the night I got very sick. He was dizzy, sick. I even threw up in the bathroom. I told my sister to go. Fernando came out together and told us that he was going to take us. That was repeating all night in the bar. When we got home I had no more money, she paid my sister and I got out and entered the house as best I could, and went straight to my room”.
“Mariana paid her and she went in behind me and closed the front door. I only see that she went into the bathroom and I don’t remember anything else because I fell asleep. My sister always leaves the back door open for the dogs and I think Fernando could have entered through there. Almost a month later she told me that Fernando raped her, ”she concluded.
Questioning of the defense to the role of the prosecutor
Sebastián Flosi described the accusation against his client as “terrifying madness, since the alleged victim and his main witness, his brother, gave two totally different statements.”
“The girl said that in the Isidoro pub they were in a group, but the brother declared that it was only the three of them. He says that they got to the house and he got out because he was sick, so his sister paid for the trip; but she says that he got out first and that her brother stayed in the car with Fernando. It is reading both statements to realize that it is something implausible, ”said the lawyer.
He also questioned the actions of prosecutor Elías Bys, since “he is prejudging and at all costs he wants my client to be found guilty.”
In this sense, the prosecutor’s office timely advanced in the change of date on which the event would have occurred, which was inappropriate.
“By her own hypothesis that contradicts the complainant, who on two occasions stated that it was March 1, the prosecutor says that it was actually a day before, February 29. In other words, since all the evidence is in favor of my client, it occurred to prosecutor Bys to change the date. It’s crazy,” Flosi stressed.
