According to the facts stated in the initial brief, Mr. G. imputed to his wife two extramarital affairs occurred in the 2005/2006 period, subsumed in the cause of serious injuries. ”
“The primary means of proof given by the husband tending to prove the first of romantic relationships that would have kept the defendant with third parties, the affidavit added to fs. 5 and round., Where the acting clerk put on record some messages text sent and received from the mobile phone of Mrs. P. As recognized by Mr. G. at the time of interrogation freely by the undersigned at the hearing of view because, I have credibility in that gripped the phone mentioned without prior permission from his wife. Even a negative response to my question about whether there was agreement, express or implied, through which each will be set up to review the correspondence or e-mail accounts. ”
“Thus, it is possible to begin the assessment of the documentary evidence without first examining the legality of the acquisition mode of the SMS content in the phone, given the implications of the seizure by the husband on the guarantee of the inviolability of telecommunications correspondence of Mrs. P. ”
“Actually, to properly address this delicate point, it should be noted that art. 18 of the Constitution guarantees the inviolability of correspondence and private papers, while the art. 19 reserved for God and the authority disclaims of the judges’ private actions of men which in no way offend public order or morality, or injure others. “”
“On the other hand, the Constitution guarantees the province of Chubut in the art. 53 that” private papers, correspondence letters, telephones, communications of any kind, data storage systems and elements configures a secret Professional protected by law, are inviolable. Examination, interception or intervention can only be established by court order under the responsibility of the magistrate who ordered it. It can never be supplied by compliance of the affected “.”
“In turn, the right to privacy is also recognized by the international treaties of the constitutional members, as provided by art. 75 inc. 22 of the Constitution. The Universal Declaration of Human Rights, in article . 12, states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone is entitled to the protection of the law against such interference or attacks. “Meanwhile, the International Covenant on Civil and Political Rights recognized in the art. 17 that” no one shall be subjected to arbitrary or unlawful interference with his privacy, your family, home or correspondence, nor to unlawful attacks on his honor and reputation. “Finally, the American Convention on Human Rights Art. 11, incs. 2 and 3, provides that” no one shall be subjected to arbitrary interference or abusive in his private life, his family, his home or correspondence, nor to unlawful attacks on his honor or reputation “and that” everyone is entitled to the protection of the law against such interference or attacks. “Consistent with this, Article 1071 bis of Civil Code provides that” whoever entrometiere arbitrarily in the lives of others by posting pictures, broadcasting correspondence, mortifying another in their habits or feelings, or disturbing in any way your privacy and the fact was not a criminal offense, be compelled to cease such activities, unless they have ceased, and to pay a compensation judge shall equitably, according to the circumstances …”.”
“In relation to the text messages that are broadcast and received via a cell phone, note that the National Telecommunications Law 19,798, article 18, provides for the inviolability of communications and requires only Save The Marriage possible interception by a request the competent court, while Article 19 stipulates that “the inviolability of correspondence telecommunications banning open mind, remove, intercept, interfere with, change your text, divert your course, publish, use, try to know or facilitate another person other than the recipient aware of the existence or content of any communication entrusted to service providers and the opportunity to commit such acts. “Similarly, the art. 25,520 5 of the Act provides that” the telephone, postal, telegraph, facsimile or other delivery system objects or transmission of images, voice or data packets, as well as any information, files, records and / or private documents or entry or unauthorized reading or not accessible the public are inviolable in the whole area of Argentina, except when mediare order or judicial waiver to the contrary “.”
“Clearly, then, that text messages sent and received from a mobile telecommunications correspondence are inviolable in light of the precise legal context, so the principle of conjugated legality of evidence leads me to exclude the record fs notarized. 5 admissible as evidence, in response to the procedure used by Mr. G. to incorporate SMS to court documents. is that complies with the art. 46 of the Constitution of the Province of Chubut , acts that violate the guarantees provided by the National and Provincial Constitutions lack any probative value, a penalty that extends to all those tests, under the circumstances, “could not have been obtained without the violation and were the result needed it. “At the same time, the art. 378 of the CPCC provides that” the evidence must be produced by the means specifically provided by law and where the judge has, at the request of a party or ex officio, they do not affect morality, personal freedom of the litigants or third parties, or not explicitly prohibited in the case …”.”
“Consequently, the reaction of Mr. G. to review the phone from his wife, after hearing a suspicious conversation – if that be true mechanics of the events narrated at the time of the hearing of view cause – is an insult for her but not seriously, given that distrust could be founded. But it is another matter incorporated into the judicial process of communication content exchanged by P. with third parties outside of the rules on admissibility of the media evidence already reviewed. ”
“It is in this sense is found then that just as in the sub discussio, any irregularity in access to information, their effectiveness must be rejected as evidence. For it is clear that the fact of marriage does not mean that husbands resign their individuality and independence. Your right to privacy against the state exists, third, and also with respect to the other spouse can not erect the inherent rights, matrimonial duties in a ground of justification for violating the right to privacy (Fama, Maria Victoria, “Right to privacy and new technologies in the divorce process,” in “family law. Interdisciplinary Journal doctrine and jurisprudence”, No. 41, pg. 197 et seq.). ”
“Therefore, the actor can not take in this divorce case the product of faulty behavior being unacceptable that the trial court valued the irregularly acquired simultaneously without compromising the proper administration of justice (conf. Supreme Court, “Montenegro”, Faults 303:1938). ”
“On the other hand and according to my view expressed in paragraph II.C, the duty of fidelity is extinguished after the separation of fact, why not attribute blame to a counterclaim by the tacit assent to formulate at the expression on his counsel sponsor before described. And as for the pre-cessation of cohabitation, does not work any item of evidence point to a husband’s infidelity. ”
“On the other hand, that Mr. G. violent proceeding falls within a broader context handling his wife, since it was not an isolated incident. Indeed, by referring to the facts at the end of the month of June 2006 discussed in paragraph II.C., the conduct of Mr. G. to spy, and shot his wife when they were separated in fact for some months, it emerged as an attempt to maintain control that originated in Mrs. P. confusional state and depression that led her to sue counseling (see fs expertise. 187 rec.). So, Ms. P. made it perfectly clear that the husband was justified in that “needed to see”, which added the idea of photographing the scene, led her to conclude that it was an attempt to maintain control. These behaviors husband must fall as violence against women on the basis of the provisions of art. 1 of the Convention on the Prevention , Punishment and Eradication of Violence against Women, ratified by Law 24,632, which includes “any act or conduct, based on gender, which causes death or physical, sexual or psychological women in both the public and in private. “In this regard, it is useful to specify that art. 7 of the Convention undertakes to ensure that the authorities, their officials, agents, and institutions to refrain from any action or practice of violence against women (inc . a), to exercise due diligence to prevent, investigate and punish violence against women (inc. b) to include in their domestic law not only civil and criminal laws, but also administrative, besides taking administrative measures appropriate to be the case (inc. c), and in particular to establish the necessary legal and administrative mechanisms to ensure that women subjected to violence have effective access to restitution, reparations or other just and effective compensation (inc . g). ”
“In sum, it is up to the counter to make room deducted, also ordered that the divorce by the grounds of serious injuries of the husband (art. 202 inc. 4 of the Code. Civil, art. 7 inc. 24 632 g of the law).”
“This is so because if the convictions on the divorce of both parties are based on different facts – female infidelity, husband psychological violence – each must answer for the moral damage caused by the harmful event committed to be independent events and faults (Belluscio, Augusto, “Damages resulting from divorce and annulment of marriage,” pg. 37, quoted by Sambrizzi, Eduardo, op. cit., T. II, p.. 49 / 50; conf. Medina, Graciela, “Damages in Family Law”, 1st. Edition, pg. 82). ”
“In this interpretation, it should be noted further that the granting of a remedy in moral damages to the spouse who has been damaged by the other’s behavior is based on the application of the rules of tort liability (arts. 901, 1066 , 1078 and 1109 of the Code. Civil), since marriage is a contract where the failure originates contractual liability. “