The 7th Shift Execution Judge, Verónica Pena, determined that Dona Samer Fleitas, a 40-year-old woman with four dependent children, should not go to prison for having tried to bring 56 grams of marijuana into the prison at the request of her boyfriend who is secluded.
The Urgent Consideration Law (LUC) increased the sentence to between four and 20 years for this crime (which was considered aggravated for having been in a prison establishment) and she was sentenced to the minimum. But although the norm establishes in principle the incarceration of this crime, Judge Pena understood that this case was an exception. “This headquarters especially values the situation in which Mrs. Fleitas finds herself”he said at the ruling hearing, as recorded in the audio he accessed The Observer.
The children of the woman involved are between 3 and 16 years old, and she is the only responsible adult, so they are even housed in a center of the Ministry of Social Development (Mides). For this reason, the best interests of the child and the double separation that they would suffer if they had been referred to centers of the Institute for Children and Adolescents of Uruguay (INAU) were highlighted: both from their mother and from their siblings, since being from different ages and genders, would have been sent to different centers.
In addition, in the case of Fleitas something else happened that is not usual: a formal agreement between a civil association and two State agencies. The agreementto which he agreed The Observerestablishes that the ministry is obliged to provide a “housing solution” within its 24-hour centers for her and her children. The INAU “is committed to giving place and priority within the framework of the Family Foster Care Program that will carry out the necessary accompaniment and procedures to support the daily life of their children” and the Gurises Unidos association will be in charge of maintaining “the socio-educational accompaniment” of the minors while house arrest lasts.
“This headquarters especially appreciates the situation in which Mrs. Fleitas finds herselfall the support she is having from Mides, INAU, Gurises Unidos, the commitment that these institutions have had with her situation. It is especially valued that he is a person who does not have a criminal record with his aptitude and with all the proposals that have been proposed by these institutions,” said Judge Pena.
In this sense, he stated that if he failed otherwise, he would be going against international norms such as the Convention on the Rights of the Child, the Bangkok rules, the Brasilia rules and the Human Rights Convention. The support that he will have from Mides, INAU and Gurises Unidos was considered “especially”.
As well was covered by articles 228 and 304 of the Code of Criminal Procedurewhich determine that When deciding on the substitution of the prison, it is necessary “to attend to family or special circumstances of the accused that would make his immediate imprisonment evidently detrimental”.
The representative of the Prosecutor’s Office, Laura Alonso – who, although she has the responsibility to prosecute the crime, also has the obligation to do so objectively – argued in favor of the woman. Alonso considered that sending her to prison “would violate so many rules of law, articles of the Constitution, that it would be an important legal complexity” and asked to assess the position of the four children.
“The penalty is served in a different way to comply with the rights of children and the right of Mrs. Fleitas, beyond being sentenced, to fulfill her role as a mother in front of her children,” she stressed.
How did you avoid the LUC?
The spirit of the LUC is that in these cases the person goes to jail, two experts in procedural law pointed out this Wednesday to The Observer. The criminal expert Martín Fernández shared the affirmation, but developed that this particular case presents “extremely special” circumstances. His colleague, the teacher and secretary of the Association of Criminal Lawyers, Laura Robatto, shared the statement and explained that it is a kind of “humanitarian standard”.
For this crime, legislated in the article 74 of the LUCI know withdraws the possibility of serving the sentence in the form of probation. On the other hand, the law in general eliminates the possibility of accessing a conditional suspension of the process, and these cases used to be settled in these two ways prior to the law.
But this, Fernández pointed out, is similar to when there is a sentence for a very especially aggravated homicide –which is usually served in prison– but their health does not allow it. Despite the seriousness of the crime, you can access a house arrest. The public defender Virginia de los Santos considered it a leading case.
In this case, there were no violent circumstances and the judge focused on the rights of the children who would be violated if their mother were imprisoned. In addition, through different witnesses it was shown that she is a busy mother of her children, that she did not interrupt her schooling and that she is the only one who takes care of them. “Judges are obliged to apply the laws but also international regulations (…) and apply a sanction within the framework of rationality“Fernández described in dialogue with The Observer.
According to the opinion of the hearing, the woman will be under the supervision of the Office of Supervision of Assisted Liberty (OSLA) who will provide her with an ankle brace. If they are not available, the police will go in different shifts to verify that she is in the Mides center so that she will register her address as her.
Colorado senator Carmen Sanguinetti said months ago in easy to deviate that after the referendum it will seek to “remove” this article that increases the penalties for micro-trafficking.
“People want blood, in this case they want that much blood?”
“There is a wind chill among judicial operators that the sentence is unrelated. When it is rude… You have intentional homicide that has a minimum sentence of two years. That’s part of what’s happening today: criminal dosimetry was lost. There is no reason to be one thing for the other. It is highly questioned in all areas, it is not that the prosecutors do not want to impose a sentence, but when they lose proportionality and you are caught normatively as in this case, because you have no way out, you start looking for other forms of fair retributionRobato said.
He recalled that the intention of criminal punishment is rehabilitation and not punishment. Beyond that, he wondered: “People want blood, in this case they want that much blood?”
