It is a case – as the regional defender of Tarapacá, Gabriel Carrión, says – “very exceptional”, one of those rare occasions in which the Supreme Court decided to change the way a sentence is served and send a woman to house arrest, due to the terrible conditions in which she spent her pregnancy, inside the women’s section of the Iquique prison.
Carrión relates, as context, that “starting in 2022, the Iquique prison, which is a prison for women, convicted women and accused women, lactating or pregnant, is facing an overcrowding crisis due to a specific fact,” in reference to the modification of the Law on alternative penalties, which eliminates the possibility of changing a sentence for drug trafficking to the alternative penalty of expulsion from the country, in the case of foreigners.
As the lawyer says, “Tarapacá is one of the regions, and it is not the only one, in which the number of donkeys y burred -human beings who carry drugs, either in their body or in their viscera- is very high, and generally ends in convictions.” Because many of the burred They are foreigners, especially Bolivians who transport eggs or packages of drugs. After the legal change, violent overcrowding occurred in the Iquique prison, since these foreigners who were previously expelled now must serve their sentence in Chile, and then be placed in prison. border by the police. Thus, Carrión points out, a prison designed to house 200 women now had more than 420, among them Dayana Cuéllar, 25, who is serving a four-year sentence for drug trafficking, after she entered Chile with drugs hidden in their clothes.
At the end of last year, the prison defense team of the Public Criminal Defender’s Office (DPP) began to pay attention to her case, as she was in the final phase of a pregnancy and the DPP lawyers noticed a series of problems, both in transfers to the hospital, for the respective controls, as well as due to the overcrowding in which she was, along with the other pregnant women in the prison, “which is a consequence of the legal modification, in the face of a regional reality that no one questions.”
Carrión details that finally “the baby was born at dawn, around 3 or 4 in the morning, but we found out about the situation through messages from relatives of other inmates who are in the prison. We did not find out through the Gendarmerie and even less about the programs that work within the prison, in the context of assisting women.” After gathering the first information about how the baby was born and the hours before delivery, the DPP began to work closely with other organizations, such as the National Institute of Human Rights (INDH); the “My Lawyer” program, of the Judicial Assistance Corporation, and the Committee for the Prevention of Torture (CPT).
The protection
Based on all the information collected, it was decided to present an appeal for protection before the Court of Appeals of Iquique, which was filed by the prison defender Ingrid Yáñez. He points out that since January 29, Cuéllar had been experiencing prepartum pain and that, although he told the Gendarmerie staff, they only asked him “if he had thrown something away,” without informing the unit’s health personnel. penal.
The contractions began in the early morning of the 31st, when the other inmates asked the gendarmes for assistance, but the only one who showed up at the scene said that “they were not going to take her out because she could walk.” The delivery began and they did not even take her to the prison infirmary, but – finally – a paramedic arrived to assist her. However, as the protection states, he “did not dare to cut the umbilical cord because he did not have a delivery box, which is why he waited for the arrival of the SAMU, which took approximately 40 minutes to arrive at the prison.” .
The document states that “As things stand, my client’s daughter was born at 05:00 AM within the penal unit and without the necessary conditions to protect her life and integrity. It is for this reason that the infanta was born cyanotic, that is, she is born with blue skin because there is very little oxygen in her blood. Added to this is the obvious risk that the inmate and the infant could have suffered, since the conditions in which the birth took place were unhealthy, without suitable professional care and very poor.”
In fact, the report prepared in this regard by the Committee for the Prevention of Torture, which sent a team to Iquique, headed by its current president, Luis Vial, indicates that “at the time of the events there were only two officials on duty to the entire facility” and that the paramedic had never attended a birth nor had adequate equipment for it. In accordance with what was pointed out by Carrión, the CPT found that in its report that the maternal and child section of the Iquique prison “has exceeded the limit of its capacity. “It does not have enough custody and health personnel to provide timely care to pregnant women and women with infants.”
Thats not all. The place where the pregnant and lactating women are lacks ventilation, “which forces women and children to endure high temperatures,” it has poor lighting, it has a patio without a roof and, perhaps the worst: there was a plague of cheap ones in the place. (i.e. cockroaches).
Given all of this, the DPP requested in the appeal that a midwife, a gynecologist and a paramedical technician be permanently hired in the prison. Likewise, in said legal action she requested that the Gendarmerie invest in the modification of the spaces and, finally, that the convicted person be discharged. As Carrión explains, her effective sentence was “replaced for humanitarian reasons and in compliance with the norms of international treaties, not only linked to human rights in general, but also to treaties that regulate the rights of women deprived of liberty, agreements to which Chile has subscribed.”
In addition, the court was asked to determine if what happened allowed for the crime of torture, as established in article 150 letter A of the Penal Code.
A lukewarm sentence
Given all this, the court accepted the protection, but in the opinion of the defender it did so “in a very lukewarm manner”, without agreeing (not mentioning) the issue of substitution of the sentence. Given this, the DPP decided to appeal to the Supreme Court, which determined in its ruling that “the labor, delivery and delivery were unhealthy and in undignified conditions, typical of cruel, inhuman and degrading treatment.”
The sentence also determines that “the protected woman was in pain in the days before giving birth, without being attended to in response to said alert. At the time of delivery, she was only attended to by other inmates, who loudly asked for help from Chilean Gendarmerie officials, who lacked experience and without adequate equipment to provide help, without having a delivery care box, without having an emergency vehicle was available, which caused an inexcusable delay in cutting the umbilical cord given the lack of experience of the paramedic who attended. This lasted for several hours, and even prevented the newborn from receiving the first care that every newborn must receive in accordance with the parameters established by the Ministry of Health, delaying her transfer to a healthcare center and without taking into account the symptoms. symptoms that the newborn presented, appearing cyanotic.”
To this, the highest court said that “the circumstance must be added that the protected woman also did not have prenatal check-ups during the four weeks prior to childbirth. It was found that pregnant women do not receive information about pregnancy, their nutrition or the health agenda. After the birth, the trousseau that in all cases is provided by the State through the ‘Chile Crece Contigo’ program, which includes a crib, was also not provided. Given the above, the inmate must sleep next to her daughter in the same bed, with the risk that this entails.
All of the above, the magistrates reasoned, “obliges this court to adopt urgent measures, in order to comply with the international conventions to which the State subscribed and which, in the present case, is the suspension of effective compliance with the balance of sentence that the protected person is currently serving”, determining that she serves the remainder of her sentence (until 2026) under house arrest, under the supervision of the Gendarmerie.
In this regard, Carrión says that the ministers of the second room (Manuel Antonio Valderrama, Leopoldo Llanos, María Cristina Gajardo and the member lawyers Pía Tavolari and Eduardo Gandulfo) had in view all the reports that reveal that what happened “from one point From a human point of view, it is very complex,” as it details that when the birth was taking place, at 3 in the morning, the other inmates began to shout for the officials, but since there was no more personnel or means to transport her, they They say “to hold on” and that “there is evidence that the umbilical cord is only cut at 7 in the morning. And the girl receives or swallows a little amniotic fluid, along with having her eyes infected with the amniotic fluid,” which is why, in some way, he explains, “the form of compensation is to order early release from absolute deprivation of liberty.” in a complex dependent on the Gendarmerie and order compliance with the rest of the sentence under the modality of house arrest.”
It is worth mentioning that, once the girl was born, in a visit to the prison on February 15, the DPP confirmed that although there was a requested time to perform an ultrasound on the infant, the Gendarmerie missed the time and, therefore, Therefore, the girl was not examined by a doctor, also presenting – on that date – the already mentioned infection in her eyes.
The president of the CPT, Luis Vial, meanwhile, points out that “the penitentiary system in general is going through a critical moment, not only in terms of infrastructure, but also in terms of management, personnel, professionalization of the penitentiary function, programmatic offer, difficulties that have been highlighted by the government, especially with regard to infrastructure due to the explosive increase in the prison population.”
In this sense, the expert indicates that the public debate focuses on men’s prisons, in circumstances that “in the case of women, prisons are equally precarious and even worse, and the female population has not stopped increasing.”
In her opinion, this requires immediate attention from the State, understanding that “the deprivation of freedom of women requires a differentiated approach to address their rights and needs,” which must consider the particularities of different groups of women. Likewise, he pointed out that “the low standard of the majority of maternal and child sections in prisons is striking, where mothers remain with their nursing children in prisons and pregnant women, as well as the difficulties in having a high standard of health care.” , which is also required by the Convention on the Rights of the Child.”
Read the Supreme Court ruling