1

I INTERPOSE HOUSE ARREST.-

Mr. Execution Judge:

AUGUSTO RICARDO CORONEL , lawyer
(To. 34 Fo. 424 CPACF.) email: 20-14171604-3, defender of Hugo Cesar
PEÑA, maintaining the procedural address established at Lavalle 1567, 9th
floor apartment "901" of this City, in case No. 142,822 of the Execution
Court No. 4, to VS I respectfully say:
In a timely manner, I file the incorporation into
the institute of HOUSE PRISON promoted with respect to Hugo Cesar
PEÑA, motivated by the delicate health situation that he is going through,
and which has as an example the presentation of January 20, 2016, in
which it is detailed the health problems you are going through.
This defense considers that the conditions are in
place to hold a new Medical Board to issue a ruling on the granting of this
institute.
In which as a starting point it must be assessed
that Mr. Peña spontaneously showed up to serve the sentence imposed on
him in the criminal investigation, that is, he is a citizen who complies with
the impositions of the law.

I pay attention to the latest events where I have

requested urgent medical attention from my client, since for three days he
has had a fever and pus secreted from his penis, a stain on his underwear.
He also has cold spells, a lot of fever (Chuchemia), weakness, and the need
to sleep all day.
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Furthermore, he does not have any

medication to be able to carry out his health situation.And in the unit you
have been informed that there are no doctors or nurses for fifteen days,
added to the new medical expertise that is accompanied, carried out by the
expert witness Dr. Roberto Agarie, this defense considers that all the
conditions are met objective reasons to request house arrest.

The SPF medical assistance did NOT provide

continuous and adequate medical care to PEÑA.
That having carried out a thorough study of the
medical reports in the records, it clearly emerges that the state of health of
the inmate Peña is not controlled by the professionals of the penitentiary
establishment so that what is provided for in the first extreme provided for
in the law occurs. 26,472 inasmuch as the deprivation of his liberty
prevents recovery and/or adequate treatment of his illness.
This defense is sure that his health would
improve if the inmate obtained the house arrest regime, especially when
what he ultimately requires is a periodic control that is not dispensed at his
place of accommodation.

It is not in the interest of the defense to criticize

the penitentiary service, but we know the treatment given to inmates within
the Penitentiary Complexes, in prisons the lack of attention that
unfortunately floods the prisons of our country is known.
That what is happening now to the detainee has as
a precedent what happened last year in which PEÑA was not treated within
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the SPF by specialists for the ailments he suffered (Traumatology due to

the Achilles tendon, Nephrology, Urology, Phlebology, etc.), but by a
clinical doctor who works within the Unit and a nurse who can assist him
in the face of his constant absences. Consequently, taking into account the
shortcomings that occur in the Federal Penitentiary Service for the
provision of care and medication, as well as the various transfers delayed
due to administrative problems (lack of mobility) in order to be evaluated
by the professional who has the medical history in his primary hospital, my
pupil had to wait many days to be assisted by doctors trained to treat his
ailments.
That on one occasion he has suffered different
vicissitudes, from lack of care to delay in hospitalization, all of this appears
in his medical history file.
Peña when you need quick transfer and treatment
in case of emergency. Neither the SPF nor the Marcos Paz Hospital are
trained or qualified to care for him, given that neither of the two
establishments have specialists in his ailments. It is impossible to take
"shifts" in a hospital outside the walls when there is an emergency (as the a
quo suggests in the appealed resolution).
The La Merced clinic in Martín Coronado is the
closest place where you can be treated, and is located 50 km from the SPF
Nº2 in Marcos Paz. This implies a trip of an hour and a half if a truck or
ambulance is available to transport him. This delay time, in the event of an
emergency, can cause irreparable damage to Peña's state of health. It must
also be considered that it was his family - through his medical coverage -
who found a place to assist him with the necessary facilities, it was not the
Penitentiary Service or the court.
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We consider that this last emergency situation

DID aggravate his state of health, since if he had been attended to in time,
his health would most likely not have reached such a serious state, such as
acute renal failure.
If Peña had been under house arrest, care would
not have taken more than a few hours, and he would have received the
appropriate medical assistance, and not that of his fellow inmates.
Regardless of this, Peña's recovery in the place
where he is held captive seems impossible, since the overcrowding of the
defendants in the prison units and the lack of hygiene, among other aspects,
do not allow the inmates to progressively move towards the guiding
principle. of socialization.
It is notorious that the suffering that my pupil
suffers requires us to recognize the contradiction of his prison confinement
with the generic guarantee of respect for life, the physical, mental and
moral integrity of every person, as well as the constitutional recognition of
the individual. who is deprived of his freedom, the principle of humanity in
penitentiary treatment, demanding in this stage of exercise of the state's
punitive power respect for the inherent dignity of the human being and the
prohibition of any form of cruel, inhuman or degrading treatment.
I don't want to be repetitive but Peña has
requested that he be treated many times at the SPF and they have ignored
their claims. The 24-hour care proposed by the doctor has never been met,
ignoring the Complex, not only to the doctor but also to the judge's
requirement that he be assisted with that frequency.
The resocialization purpose (special preventive) must
guide the execution of the sentence imposed in the present case, and even
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any other reason for general prevention that could be alleged must be
satisfied in a way that does not imply harm to the health of my ward. since
there can be no resocialization where the person deteriorates due to prison
confinement. So, compliance with the purposes of the imposed sentence
must take confinement to its limits of reasonableness, and that is the reason
that has inspired the legislative reform that Law 26,472 introduced in the
Fundamental Code.
The aggravation of his state of health had already
been sustained with the degree of intensity that the legislator wanted to
protect, and following the sound doctrine established in article 32 and its
concordants of law 24660., that degree of intensity has been increasing.
Peña continues to suffer from CHRONIC
KIDNEY FAILURE and already Chamber IV of the National Chamber of
Criminal Cassation – case no. 11,581 “Rodríguez Menández, José Emilio
s/appeal of cassation, rta. 4/29/2010- has maintained that: “…in contexts of
chronic and progressive diseases, the physical and social environment in
which the sufferer is found, not only does not help their medical stability
but also increases the risk of its worsening. Consequently, the mitigation
measure requested by the defense tends to counteract these circumstances
and favor emotional care that is of vital importance for their improvement.
This, since the appellant's family environment would provide greater
possibilities of controlling the physical ailments that plague him. We must
not ignore that the reform of Law 24,660 knew how to articulate among its
foundations: “... that the possibility that in these cases the execution of the
sentence continues in house arrest is essentially based on humanitarian
reasons. That the purpose of execution established in article 1 of law
24,660 must yield in the cases provided for in article 33 to inalienable
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humanitarian imperatives. That in these cases, the permanence of those

convicted in a prison facility could constitute a violation of the provisions
of Article 18 of the National Constitution; Article XXV, in fine, of the
American Declaration of the Rights and Duties of Man; article 5 of the
Universal Declaration of Human Rights; articles 7 and 10.1 of the
International Covenant on Civil and Political Rights; article 5º.2 of the
American Convention on Human Rights, Pact of San José de Costa Rica
and article 9 of law 24,660..." (Adla, XLVI-B, 1107; XLIV-B, 1250)”. In
this sense, I understand that, although the illnesses that Rodríguez
Menéndez suffers cannot be classified as terminal, the complications that
can arise - of which there is already proof - cannot fail to receive a
particular treatment at the time of evaluating the requests submitted...".
Also the same Chamber, in case No. 12.233 “Kleiman, Manuel Horacio on
cassation appeal” rta. 6/23/2010, has indicated that: “…the pertinent
question turns out to be whether the environment of a private home would
provide greater possibilities of controlling the physical ailments that plague
the accused or, in other words, if the permanence in the unit of detention
would not result in an affliction outside of that inherent in the punishment
itself (...) Humanitarian reasons lead to a reading of the alleged regulations
under the axioms of natural law that translate into the principles "pro
homine", "pro libertatis ", principle of minimum intervention or "ultima
ratio" and principle of humanity of punishment, among many others. The
fact of having been convicted of committing a crime does not allow us to
ignore in any way the basic rights that must be guaranteed to every
individual, at the risk of incurring our country in international
responsibility. Thus, arts. 11 DADDH, 25-1 UDHR, 12.1 PIDESyC, among
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others, guarantee the right to health for all men, without any distinction for
the purposes of its realization…”
For this defense, the condition that Peña is over
70 years of age is a determining condition to be included in the institute of
house arrest.
There are countless rulings by the Most Excellent
Court of Cassation in which this type of detention has been granted based
solely on age. Without prejudice to the jurisprudence that I could cite, to
avoid abundance, I will content myself with quoting what has been
expressed by some doctrinaires: Dr. Eugenio Zaffaroni clarifies the issue
when he refers to the meaning that in criminal exegesis must be given to
the norms that grant a benefit to the accused using the verb “may”, as in art.
13 of the Penal Code and art. 33 of law 24,660. When the requirements for
granting are met (in the event that the beneficiary is over seventy years of
age), “he has the right to claim it and the court has the duty to agree to it.”
The opposite – he adds – would imply taking away the benefit. from the
scope of judicial acts and refer it to the category of a political act, that is,
the use of an almost arbitrary power of the court, which would assimilate
its nature to that of grace or forgiveness” (Eugenio Raúl Zaffaroni: “Treaty
of Law Criminal”, General Part, Volume V, Ediar, Bs.As., 1983, page 182.
Similar reflections are formulated by the same author in the
aforementioned work “Criminal Law – General Part”, written with the
collaboration of Alejandro Alagia and Alejandro Slokar, pp. 908/910).-
The legislator did not set this age limit arbitrarily
but rather took into account the constitutional and conventional guidelines
and the international rules regarding old age and the vulnerability that it
entails. Let's see:
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The National Constitution in its art. 75 section 23,

orders Congress to protect the elderly. It expressly says that: “(Equal
opportunities) Legislate and promote positive action measures that
guarantee real equality of opportunities and treatment, and the full
enjoyment and exercise of the rights recognized by this Constitution and by
current international treaties on human rights. , in particular with respect to
children, women, the elderly and people with disabilities.”
Thus, house arrest fulfills the constitutional
mandate of ensuring real equality of opportunity and treatment of elderly
prisoners with respect to other prisoners who are in better conditions to
withstand the inevitable rigors of prison confinement, widely recognized by
doctrine and jurisprudence. current.
Regarding the enjoyment of the rights referred to
in inc. 23 of art. 75 of the CN and the real opportunity to make them
effective, it should not be forgotten that the Supreme Court of Justice of the
Nation in the precedents "Dessy Gustavo G." (rta. on 10/19/95) and
“Romero Cacharane, Hugo Alberto on criminal execution” (rta. on
03/09/04); established that the prison sentence only restricts freedom of
movement, and that detainees retain all the other rights and guarantees of
the human person whose effective enjoyment, considering the special
limitations of the elderly, is intended to be facilitated by house arrest.
In this sense, what was stated by Dr. Gustavo
Hornos in case No. 14,800 “Musa Azar” of Chamber IV takes on
applicability, in which he stated that “…since the age requirement… is
independent of the requirements that refer to the health of the accused... I
warn that it does not seem reasonable to deny house arrest to someone who
is over 70 years old for the mere fact that he does not prove serious health
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problems... Therefore, since the judges of the oral court rejected house
arrest requested by the defense on the exclusive basis that there was no
serious risk to the health and life of his assistant, I understand that the
resolution is not reasonable (in accordance with the provisions of article 1
of the CN).”
Now, Peña, I insist, in addition to everything
expressed regarding his health problems that endanger his life imminently,
these limitations, combined with the age issue, reinforce my conviction that
the requested house arrest be granted. . For this reason, and considering that
house arrest is nothing more than a form of detention and not a liberatory
benefit, and also taking into account the “pro homine” principle that must
be present in each jurisdictional pronouncement, understanding that
PEÑA's situation falls within the assumption of article 10, paragraph d) of
the Penal Code, according to the wording of law 26,472.
The granting of house arrest should not be
interpreted as a discretionary power of the Judge, but as a right of people in
conflict with the criminal law who find themselves in the cases described
by the law. On the other hand, although Law 26,472 has enumerated the
aforementioned six cases of replacement of prison confinement with house
arrest, we should not understand that said enumeration constitutes numerus
clausus. On the contrary, in the event of a case that is not provided for in
the text of the law, but does fit into its “spirit” because it involves people
with a high level of vulnerability, a broad interpretation should be
promoted, in accordance with the principles of National Constitution and
the international human rights treaties incorporated into it.
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For all that has been said, I understand that

the detention of PEÑA at home would comply with the constitutional
mandate: he would not be subjected to unnecessary mortification,
which the law prohibits and which the security of the process in this
case does not require.
There is a study by Dr. Roberto Agarie that
clearly states in its conclusions that his condition " makes it necessary to
facilitate care that gives less room to a ghost such as pulmonary
embolism."
Added to that in his analysis he says that it is
necessary to safeguard the idea of care for bodily harm and that a care and
control mechanism is necessary that reduces any possibility of harm to the
person.-

Finally, I clarify that Peña appeared before the

court every time his presence was required, which demonstrates his lack of
danger and flight.
It is then necessary to convene a new Medical
Board and study Peña's situation to grant him the right to house arrest.
The address has the necessary conditions for
perimeter security measures, as analyzed at the time, it is located on Av.
Los Olivos n°1800, Abedules Lot 28, is a gated community in the town of
Pablo Nogues, Malvinas Argentinas District, Province of Buenos Aires.
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At that home he will be cared for by his partner

Mrs. Sandra Aracelis Esteves, ID:16497292, who will be in charge of all
his care. It is clear that this lady already lives in the place.

For all of the above, I request that Hugo Cesar

PEÑA be granted house arrest, based on what is regulated by arts. 10 inc.
a) of the Penal Code, art. 33 of law 24660 and art. 32 of Law 24672, both
of criminal execution, as well as the numerous international human rights
treaties with constitutional hierarchy incorporated in art. 75 inc. 22 of our
Magna Carta.
S-

Keep in mind the above and provide in

accordance with
IT WILL BE JUSTICE.
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CARS AND SIGHTS:

To resolve the situation of the convicted Hugo Cesar Peña (of
Argentine nationality, born on February 9, 1944, identified with ID number
4,603,520 and currently housed in the Federal Penitentiary Complex II of
Marcos Paz) in this file no. 142822 of the registry of the Sole Secretariat of
this National Criminal Execution Court no. 4.
RESULT:
That the named person was convicted by final judgment dated
August 3, 2010 in case no. 2293 of the Oral Criminal Court no. 17 of this
city, to eight years in prison (according to pages. 2/64), for being a co-
author criminally responsible for the crime of promoting prostitution of a
minor under eighteen years of age, whose exhaustion will take effect on
March 16, 2022.
What to fs. 527/32 the private defense requested that Peña be
incorporated into the house arrest regime. He based his claim on his
delicate health situation, that he does not have any medication and that he
was not provided with continuous and adequate medical care by the
professionals of the penitentiary establishment, so that the case
contemplated in Law 26,472 would occur, as the Deprivation of liberty
prevents recovery and/or adequate treatment of your illness.
That in such a way, the suffering that Peña suffers forces us to
recognize the inconvenience of his prison confinement with the generic
guarantee of respect for life, the physical, mental and moral integrity of
every person, as well as the constitutional recognition of the individual who
is found deprived of their liberty, the principle of humanity in penitentiary
treatment, demanding in this stage of exercise of the state's punitive power
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respect for the inherent dignity of the human being and the prohibition of
any form of cruel, inhuman or degrading treatment.
On the other hand, he highlighted that the age of his assistant is a
determining condition for being included in the institute of house arrest,
given that without prejudice to the fact that his health problems put his life
in imminent danger, said limitations, combining them with the issue age
reinforce this conviction and taking into account the “pro homine”
principle, his situation falls within the assumption of article 10, paragraph
d) of the Penal Code, according to the wording of law 26,472.
Finally, he made reference to the study by Dr. Roberto Agarie, a
party expert, who in his conclusions stated that his state of health “merits
providing care that gives less room to a ghost such as pulmonary
embolism,” added to the fact that it is It is necessary to safeguard the idea
of care for bodily harm and that a care and control mechanism is necessary
that reduces any possibility of harm to the person, advising home detention
for adequate recovery.
That in order to take advantage of the requested benefit, he proposed
as a reference Ms. Araceli Estebes, with address at Humahuaca Street
n°378, 1st floor, apartment. B of this city.
That the corresponding reports were produced and added, they were
sent to the Criminal Execution Fiscal Unit, which through the opinion of
pages. 637/8 opposed the requested incorporation. He warned that on
pages. 39/40, the resolution of the court of origin is added in which the
denial of the identical request to the one that concerns us already appears.
41/3, the rejection of Chamber III of the Federal Chamber of Criminal
Cassation, to the appeal attempted in this regard; that at fs. 331/5 contains
the resolution of this Court in which house arrest is once again denied, an
 14

order that was confirmed by Chamber II of the National Chamber of

Cassation in Criminal and Correctional Matters on pages. 459/61.
That indicated that in this new opportunity the defense once again
bases its request on the provisions of article 32, paragraphs a) and d) of law
24,660, for which it indicated that in relation to the automatic application
of the institute for the mere observance of the requirement age, Chamber II
of the CNCCC has dealt with and sealed the issue and with regard to
subsection a), the health situation that occurs in the present incident is not
different from that existing in the previous incident.
In this sense, he pointed out that the reports prepared by the Forensic
Medical Corps show that the named person, beyond the pathologies he
suffers from, is in good general health, suggesting that he continue with the
treatment provided and with strict control. multidisciplinary periodic doctor
with prompt access to a highly complex health center in case of emergency.
That in this sense he reiterated what was stated in the opinion issued
in the previous incident "(...) beyond the health problems stated, added to
the situation of confinement, in the case the pathology he suffers does not
constitute a factor of aggravation of his state of health with the degree of
intensity that the legislator wanted to protect through the alternative of
house arrest and, therefore, his situation does not fit within the provisions
of art. 32, inc. a) and d) of Law 24,660” and in this way maintained the
negative position regarding the requested house arrest.
He also stated that his assistant continues to suffer from health
problems and that the condition of the detainee who is over 70 years of age
is decisive for being included in the house arrest institute.
That from everything expressed, that party understood that the
detention of Peña at home would comply with the constitutional mandate
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because he was not being subjected to unnecessary mortification, which the

law prohibits and which the security of the process in this case does not
require.
That he then transcribed the considerations made by the Social
Assistance Division of Residential Unit No. 1 of the Federal Penitentiary
Complex No. II, the conclusions made by the doctors of the Forensic
Medical Corps and the ruling by the Criminal Execution Fiscal Unit, to
conclude that Peña's current situation deserves his incorporation into the
program of people under electronic surveillance created by resolution No.
1379 of the Ministry of Justice and Human Rights of June 26, 2015 and
expanded on March 23, 2016, since the circumstances of the case are
expressly and objectively compatible and in accordance with the budgets,
foundations and intended purpose.
Finally, he requested that the victim of the crime be summoned to
provide his opinion on the granting of the institute.
That the parties having been heard, the present incident has been able
to be resolved, in accordance with the provisions of article 491 of the
National Criminal Procedure Code.
AND CONSIDERING:
That in this sense it is appropriate to make reference to the new
reports prepared by the Social Assistance Division, from whose review it
appears that if incorporated into the requested regime, the deceased would
reside together with Ms. Sandra Aracelis Estebes in an apartment located at
3870 Humahuaca Street, 1st floor B of this city. That in terms of the bond
he maintains with the referent, it differs in the length of time they have
been as a couple, since the latter stated that they have had a relationship for
approximately 3 years, unlike the inmate who stated that it dates back 10
 16

years. That if the request is granted, care will continue at the Trinidad
Sanatorium located in San Isidro. That the family group is maintained with
Ms. Estebes' income from the sale of crafts and the retirement of her
mother, added to the collaboration that her children could provide.
That in conclusion, Lic. Yanina P. Suarez (social worker) pointed out
that “it is highlighted that on the part of both the inmate and the referent
there is little critical reflection and denial of assuming responsibility for
the type of crime with which he is accused, placing himself in mere
compliance with the sentence imposed, without subjectively involving
themselves in the treatment.”
That from the examination carried out by the forensic doctor Dr.
Carlos A. Baistrocchi Forensic Medicine, with the participation of Dr.
Roberto Agaire, emerges that “taking into account the personal history
mentioned, the age conditions of the expert and the positive data of the
present physical examination, it is suggested to continue with the current
treatment, with strict periodic multidisciplinary medical control and their
eventual prompt access to highly complex health centers in the event of an
emergency arising from the pathology described above.”
That since the records under study show, contrary to what was
maintained once again by the defense, that the inmate has received in a
timely manner the necessary medical attention to control his illnesses,
proof of this is the certificates signed by the treating doctors who arise from
fs. 712, 716, 717, 720 and 730, in which the common denominator turns
out to be that at the time of the examination he was in good general
condition walking around on his own, which denotes effective compliance
by the Medical Assistance Division in matters of the care of the named
person, therefore it is necessary to discard the first extreme provided for in
 17

Law 26,472 since the deprivation of his freedom does not prevent the
recovery and/or the adequate treatment of his illness.
That in this sense, the efforts carried out by the Medical Assistance
Service cannot fail to be noted in order to achieve efficient attention to the
problems that the inmate needs, which, on the other hand, from the records
in the case does not appear to have suffered aggravation, infection or lack
of relevant hygiene elements. It is not observed in the case how said health
situation would improve if he obtained the regime of house arrest,
especially when what he ultimately requires is a periodic control that is
dispensed at his place of accommodation.
That the defense mistakes the terms in that the assisted person has
not been provided with 24-hour care, since if so he should have medical
criteria for hospitalization and be treated in a hospital, a situation neither
accredited nor requested. by the expert witness and ruled out by the doctors
who examined him, meaning his situation would not fit within the
parameters of section a) article 1 of law 26,472.
That it could not be demonstrated whether the conditions of
confinement, beyond the statements made by the party, of absence of
medical care, are those that imply that the treatment given to Peña is
undignified, inhuman and/or cruel.
That likewise, it has been demonstrated, as stated in the previous
similar incident, that this is not a patient suffering from an incurable
disease in the terminal period, and that although it is necessary for him to
have specialized care in relation to his ailments, the defense did not prove
Because the doctors belonging to the Marcos Paz Hospital are not trained
or qualified to care for you.
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Regarding the criticism regarding obtaining medical appointments, it

should be noted that the right to obtain timely and comprehensive medical
assistance has been guaranteed at all times in accordance with the
provisions of art. 143 of Law 24,660, with which any decision that implies
management different from that offered by the State will in no way be
prohibited, especially when said situation is specifically provided for in art.
148 of the aforementioned law.
That in this way, in this new opportunity, the defense did not prove
how the medical and psychological situation of the accused has been
aggravated nor whether any damage or injury to his rights occurred, since
at all times his rights have been respected. physical, mental and moral
integrity.
That in relation to the defense request, focused on the application of
art. 32, subsection d) of Law 24,660, I will have to adopt a criterion similar
to that used in the previous incident, since it has not incorporated new
arguments that must be treated to analyze the present case, to which must
be added what was expressed by the appeal in the present file while it
indicated that "(...) the request that attempts to moderate the conditions of
detention of the convicted Peña, does not fit into any of the extremes
provided for in the norm, a situation that exempts from continuing with the
study about whether, in the case , house arrest is peacefully combined with
the objectives outlined in article 1 of the criminal execution law.”
That now, without prejudice to the fact that house arrest will not be
granted, the Director of the Federal Penitentiary Complex No. II of Marcos
Paz will be ordered to order all measures conducive to maintaining and
promoting the continuous and progressive maintenance of the state of
psychophysical health. , promote the appropriate diet, medications and
 19

treatment recommended by the professionals of the establishment and the

private clinic. Likewise, a report on the state of health will be required to
be sent to this Execution Court on a biweekly basis and to manage transfers
to the Hospital outside the walls.
For all this, and in accordance with what was ruled by the Prosecutor
and with the provisions of art. 491 of the CPPN, art. 32 and 33 of Law
24,660 and corresponding regulations.
RESOLVED:
I. DO NOT MAKE PLACE for the incorporation into the
institute of HOUSE PRISON promoted with respect to
HUGO CESAR PEÑA
II. ORDER the Director of the Marcos Paz Federal Penitentiary
Complex No. professionals from the establishment and the
private clinic. Likewise, a detailed report on the state of health
will be required to be sent to this Execution Court on a
biweekly basis and to manage transfers to the Hospital outside
the walls.
III. Communicate and be notified by means of a card to be filled
out on the day.