The witness stated that Sabag Montiel tried to reload the gun after firing the first shot

The witness stated that Sabag Montiel tried to reload the gun after firing the first shot

The witness stated that Sabag Montiel tried to reload the gun after firing the first shot

The militant next to him told the police; He tried to chamber a bullet and fire again, but the pistol hit him and fell to the floor, guarding against an improper attempt.

In this picture taken from a video released by Argentina's public television, a man is seen pointing a gun at Vice President Cristina Fernandez in front of her home in the Recoleta district of Buenos Aires on Thursday, September 1, 2022.  (Public TV Argentina, via AP. )
In this picture taken from a video released by Argentina’s public television, a man is seen pointing a gun at Vice President Cristina Fernandez in front of her home in the Recoleta district of Buenos Aires on Thursday, September 1, 2022. (Public TV Argentina, via AP. )

Brazil’s Fernando Sabag Montiel tried to finish what he couldn’t finish on his first try: When he shot Christina Kirchner inches from the face and the bullet missed, he manipulated the slide of the pistol, pulled back, and lodged the bullet. chamber and shot again, this time to kill the Vice President.

But he was unable to complete the maneuver because protesters saw him with a gun pointed at Christina Kirchner, forced him, the gun fell to the ground and he ran away.

One of the militants stepped on the gun to steady it under his feet so that it would not be lost, the others ran to Sabag Montiel, put a pineapple in his eye, left him black and neutralized him until he fell into his hands. The police, who did not realize that they had tried to kill the vice president.

Bersa. 32 guns
Bersa. 32 guns

The story about Sabag Montiel trying to shoot Christina Kirchner again, after the first shot missed, was done by Kirchner’s gunman, who was by the attacker’s side.

This testimony could be very important for the prosecution to negate Sabag Montiel’s possible defense strategy: to argue that he cannot be convicted of attempting an impossible crime. In legal doctrine, it’s technically called an improper attempt, meaning that no matter how hard the killer pulled the trigger, many times, without a bullet in the chamber, the bullet would never have fired.

The militant who made the statement reported to the airport security police and said that he first heard the click of Sabag Montiel’s gun, and then saw him maneuvering as if trying to correct a mistake. This story is not in court yet.

Bersa brand Lusber 84 model 32 auto caliber single action semi-automatic pistol had five bullets in the magazine. The bullets and the gun were for firing. But there was no bullet in the chamber. It is a manual task that the shooter must perform to move the slide back so the bullet is ready to fire. But not Sabag Montiel.

seized weapon
seized weapon

The detainee has refused to testify at this time, but if in the future, for example, he indicates that he never intended to kill, but only to scare the vice president, and therefore did not install a bullet in the chamber. , he could try this defense against inappropriate attempts.

The last paragraph of Article 44 of the Criminal Code states that “if the crime is impossible, the punishment is halved and may be reduced to the legal minimum or exempted from it, depending on the degree of danger shown by the offender.” “

This point started a debate where the doctrine is divided by conflicting decisions. The judge can reduce the sentence to a minimum or leave him without a sentence, which does not mean declaring him innocent.

On the one hand, it is placed in the judge’s head to decide the danger of the accused and the action taken. This is controversial because the law punishes behaviour, not people as they are, the court advised.

Some argue that it is always a crime that occurs, it may not be punishable by a judge, depending on how dangerous the subject is. Others point out that inappropriate attempts are unconstitutional because these acts should never be punished because there is no harm, no possible crime that could have been committed. Although this is quite a minority position.

Although this issue of improper attempt is different from that of an impossible crime

The former judge of the court, Eugenio Zafaroni, argues that the most important thing is not to determine whether there was a danger, but that it would not be possible to initiate execution in an impossible crime, given that for this author, the initiation of the death penalty should be useful. Or not.. this can be considered as the beginning of self-execution. In the case of an impossible crime, enforcement would be useless because nothing relevant has been initiated, because the conduct shown, which has ex ante inconsistency, could never lead to the type of termination sought, according to Karen Calafatich.

and notes that “the most frequent logic in our courts leads to sentences that exempt the author of the improper attempt based on the constitutional principle of harm, on the basis that the legal right has never been effectively threatened by environmental inadequacy.” Or the object was presented ex ante, that is, a mistake was made in the plan from its inception, that the subject would never be able to complete the proposed act, and the danger of the author – mental more. Above all, it’s very difficult to demonstrate, especially when the subject doesn’t have any kind of background.”

The judge of the Chamber of Cassation, Alejandro Slocar, for example, claims that “these are cases of impossible crimes where the ex ante remedy was suitable and there was a danger, but ex post a) a very inappropriate way of remedy was given. b) a very serious defect, c) object breakdown or d) early neutralization of the threat; The absolute impossibility of its implementation was determined.”

Some examples of cases where the criminal was convicted and released from punishment are for example the bicycle thief who was surprised by the police when he broke the car window to steal the car, but could not remove it from the bicycle shop because it did not happen. Go through the hole in the fence.

Or the example of a person who throws away the idea of ​​killing someone who is already dead. Or the jealous husband or wife who shoots their partner dead in bed, not realizing that it’s actually pillows under the covers.

The discrepancy can be the object, as in this case the weapon, or the victim, in the example of killing the deceased. or subject.

Avoiding sanctions are cases where there was no harm or danger, which is questionable here because a man with a loaded gun at a demonstration is potentially dangerous.

It wouldn’t be delirium to raise that defense, court officials agree, though they note the time is not ripe for the process. Sabag Montiel will find it difficult to analyze this resource in the first instance or in the chamber, although it is likely that in time, when a different mood prevails and with full oral reasoning, he will be able to test the idea.

Source: La Nacion