If a prisoner circulates around a prison with substances of this nature, in sufficient quantity, for personal consumption, or even in that same quantity, he is caught possessing it in his cell, it can NOT be framed as an act of criminality, according to a recent court ruling.
REPORT:
The Supreme Court declared unconstitutional the criminalization of the possession of narcotics for personal consumption in prisons
The decision is based on the "Arriola" precedent and highlights that it is an action carried out in the private sphere without prejudice to third parties that is protected by article 19 of the National Constitution.
The Supreme Court of Justice of the Nation annulled a judgment of Cassation and recognized that the criminalization of the possession of narcotic drugs for personal consumption in prisons constitutes an intrusion on privacy by the State that is protected by article 19 of the National Constitution.
The decision is based on a vote adopted by Carlos Rosenkrantz in September 2021, where -in dissent and based on the "Arriola" ruling- he considered that criminal punishment was unconstitutional for those who, within a prison institution, possessed narcotics for personal consumption in a small amount in an inconspicuous or conspicuous way.
In the case, the Federal Court No. 1 of Paraná in charge of Pablo Andrés Seró, had sentenced Marcelo Daniel Selvini to two months in prison for possession of narcotics for personal consumption, after he was found eight (8) marijuana cigarettes in a search while he was housed in Penal Unit No. 7 of the city of Gualeguay.
This sentence was appealed before the Federal Chamber of Criminal Cassation, which, with the votes of judges Liliana Catucci and Eduardo Rafael Riggi -and dissent from Juan Carlos Gemignani- rejected the appeal, considering that "the prison environment where it was seized allows affirming that Salvini's conduct has transcended the private sphere protected by article 19 of the fundamental law”.
When the case arrived at the Court, with the integration of Deputy Judge Guillermo Antelo -judge of the National Chamber of Federal Civil and Commercial Appeals- and the votes of Carlos Rosenkrantz and Ricardo Lorenzetti, the Court revoked the cassation resolution and sent the case at first instance to dictate a new sentence. To do this, he referred to the dissidence made by Carlos Rosenkrantz in the ruling "Rodríguez, Héctor Ismael", adopted in September 2021.
In that decision, the magistrate cited different parts of Judge Petracchi's vote in the well-known "Bazterrica" ruling, as well as the majority vote in "Arriola" and concluded that:
“…the criminal punishment of possession of narcotic drugs for personal consumption, when it comes to drugs in small quantities and the possession or consumption is not visible or ostensible, is unconstitutional because it constitutes an interference by the State in the field of privacy. protected by art. 19 of the National Constitution without there being a reasonable justification that shows that this is necessary to protect the legal assets that the criminal norm can legitimately aim to preserve.
In this regard, the magistrate had also stressed that the presumed interests that the rule is called to protect - public health or safety, or the fight against drug trafficking - were not affected, while no one warned if the accused consumed narcotics or if they knew that he had .
In addition, it was highlighted that the fact that the conduct took place in the public or private sphere is not relevant, since in "Bazterrica" the narcotics were found during a search of the defendant's home, while in "Arriola" they were seized when The defendants were walking on the street. In both decisions, the Court maintained the same doctrine.
Likewise, Rosenkrantz clarified that people deprived of their liberty "do not lose all their rights by the fact of having been deprived of their liberty", which is why they can demand that their privacy be respected in the same way as any other citizen. /a.
Finally, he concluded that "this Court cannot justify in this case the criminalization of the imputed conduct for the mere fact that it occurred within a prison establishment."
Thus, Rosenkrantz's opinion concluded that the criminal punishment established in art. 14 of Law 23,737 to whom, within a penitentiary institution, possesses narcotics for personal consumption in a small quantity in a non-visible or ostensible way, was "constitutionally invalid".
For his part, Judge Lorenzetti did the same and adhered to the same arguments that the magistrate had made in the “Rodríguez” ruling, which in turn referred to his vote in the “Arriola” ruling.
In this way, rat