“For the better of some and for the worse of others.” Judge Jonathan Pachérrez Lumbre had to acquit the four private security agents who, on September 14, 2021, caused the death of the citizen Alex Gensollen Vera Tudelainside the Oechsle store in the Real Plaza Primavera shopping center,inSan Borjaof the crime of simple homicide in co-authorship.
The ruling recognizes that the acquittal is the product of manifest inaction by the prosecution, by formulating a deficient accusation without evidence for an intentional crime that could not be proven.
Furthermore, it points out the responsibility of the judge of the preparatory investigation “for not having carried out due control over the imputation (tax accusation).”
In this sense, although it acquits the security agents of malicious crime Snayder Wilfredo Quezada Contreras, Darwin Kenit Sánchez Uvaqui, Luis Jimmy Carbonel Sánchez and Alexis Joel Melgarejo Cullancoconcludes “that there was an excessive use of force that causally contributed to the death of citizen Alex Gensollen Vera Tudela.”
Therefore, the head of the 30th Unipersonal Court of Lima imposed on them the payment of civil compensation of 326,320 soles, for moral damage, consequential damage and loss of profits, which The four guards must pay Alex Vera’s parentsfrom the moment the sentence is approved.
The Republic learned that during the trial, prosecutor María Rosario Ortiz Artega initially intervened, who had to be replaced, at the request of the aggrieved party and the guards’ lawyers, as she was unable to support the case, by prosecutor Walter Veliz Espinoza.
Both had lawyer Tracy Carolina Vélez Huiza as their support prosecutor. All of them from the provincial criminal prosecutor’s office of San Isidro, Surquillo and San Borja.
On September 30, 2022, the National Institute for the Defense of Competition and the Protection of Intellectual Property (Indecopi), through theConsumer Protection Commission, imposed a fine of 237,820 soles on the shopping centerRoyal Plazanow to the storeOechsle for the improper actions of the security agents and putting all the customers of the Shopping Center at risk.
An explanation to the victim’s mother and the public
Given the unfairness of the verdict, the judge expressly addresses the victim’s mother to explain, in simple language, the legal reasons and facts recognized in the trial that led him to acquit the guards at the Oechsle store.
“First, for reasons of humanity, it is necessary that, on behalf of the State, this judge expresses his deep regret for the death of his son, the citizenAlex Gensollen Vera Tudela.The deep pain he feels was, throughout the process, even with the frivolity that the virtuality of the hearings entails, totally palpable. Faced with this, my condolences,” the judge begins his argument.
“It is necessary that,” she continues, “as a citizen, she knows that thejusticewithin the framework of a civilized society gathered in a Constitutional State of Law, can only berationally achievedwith the app“strict of the law”.
“You must understand that the case is not based on what is eventually shown in the media or what you yourself can generate as an idea in your head. The court case“It is formed from what is acted upon within the file, specifically, what is acted upon in court.”
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“For the better of some and for the worse of others, this value (rule of law)is only achievedwhenallthe parties concerned comply with therules of the gamecompletely. That is, that the Prosecutor’s Office complies with investigating and accusing correctly, that the defenses duly exercise restraint on said accusation and that the judge judges in accordance with the facts and the sources of law,” he stressed.
In another paragraph he specifies that it is necessary that Alex Vera’s mother “understand rationallythat what the Public Ministry postulates as a claimIt’s really important.”
In this sense, it indicates that “these are not mere descriptions or minor disaggregations. It is not a question of indicating whether “X person grabbed a part of the body”, or “Some other person grabbed such another part”, but rather that Criminal LawIt requires the precision of the actions that each citizen is accused of.This is called the principle of necessary imputation.”
Thus, he explained that the prosecution accused the vigilantes of having committed an intentional crime, that is, they had the will and agreed to kill Alex Gensollen Vera but he did not present sufficient evidence, the necessary testimonies to demonstrate that hypothesis. The evidence only described that the officers held the victim’s legs and that one put his foot on his head. There was no more.
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What is evident from the testimonies presented by the prosecutor, the judge emphasizes, is that there was excessive use of force, which was not part of the accusation.
“It might be too formal for your taste, but living in a civilized society, structured according to the law,so demands itlike it or not.This judge is fully aware that in this specific caseexistsa death, but the search for justice cannot be given by ignoringall guaranteesthat they also affect you as a citizen,” the judge tells the victim’s mother.
The proven facts
The judge specifies that the facts that were proven at trial were that Alex Gensollen Vera ran into the Real Plaza Primavera Shopping Center on September 15, 2021, that he was chased by security agents, that the chase continued inside the Oeschle store. and that in the area of women’s footwear, it was learned by the defendants.
Then, Snayder Quesada accepted that he reduced the victim, along with another companion, and held him by the feet.. Darwing Sánchez noted that once reduced, he grabbed him by the waist. Alexis Melgarejo also held his feet. Luis Carbonel, being reduced, holds him by the waist and puts his foot on his neck.
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Meanwhile, the medical-legal expertise established that the victim died from “cerebral and pulmonary edema.” The legal doctor Angy Villón Valenzuela explained in the trial that “the first thing that occurred in this person for him to die was cervical compression, there was something that pressed on this person’s neck.”
“As a result of this cervical compression, he concluded, mechanical asphyxiation occurred, which means that there was an absence of air and blood passage to the target organs that finally produced cerebral pulmonary edema, causing the lung to fill with water. and causes death.”
When formulating the accusation, the prosecution did not specify how the action of one of the security guards or the set of acts they carried out caused the compression in the area of the neck that caused the edema. The prosecution also did not postulate that there was a concert of will to kill the victim.
Although the action “of putting the foot on the head” of the victim “can be classified as an objectively homicidal act”, it is not proven that this was the intention, the judge concluded.
