4
14.
The solution to the problems arising from life in prison —life against nature,
full of paradoxes and threatened by the demolishing criticism of new currents on
social control— is neither easy nor immediate as a matter of course; this solution
calls for the concurrence of several instruments —as varied as legal and financial
resources— gathered and administered by a strong will. At the hearing held in
Brasilia on the Mendoza Prisons, an inquiry was made on the means to solve —once
and for all— the problem affecting these confinement centers. What is said about
them may be said about many others, in either central or federal countries:
energetic, coordinated, immediate and sustained action. Quick-fix actions will never
suffice. Absence of coordination —which cannot be justified in any case, not even
under federal organizational schemes, as governments have constitutional and
institutional means to establish common fronts in this field, as in others— puts many
obstacles on the way and leaves big empty spaces which are filled with violence. The
deferral of measures and a recess in progress lead to dreadful results: multiplication
of violations.
15.
At the hearing held a year ago in the city of Asunción, the participants signed
a productive agreement. Certainly, the rights accruing to some and the duties
imposed on the others do not arise from that agreement, executed in good faith, at
the initiative of the Inter-American Court. Those rights and duties arise from
domestic constitutional law and provisions of international law on human rights,
which have been made part of the Order of the Court on provisional measures, and
which cannot be waived by agreement between the parties. However, I deem it
pertinent —on a personal note— to highlight the importance of this agreement as it
showed the positive juridical willingness and encouraged communication between
those with colliding interests. Mutual understanding contributes to the efficacy of the
law, it achieves more, much more on certain occasions, than the solemn directive of
a rule or judicial judgment. Therefore, I would like to revive the spirit of that
agreement, its moral and juridical component, its intrinsic value. Keeping it will
contribute to resolving the conflict, disregarding it will not be a contribution
whatsoever. I believe we should continue building new stages of this solution on the
foundations still given by commitment and good will.
16.
At the hearing held in Brasilia, which led to the order of the provisional
measures to which I attach this Opinion, reference was made to the need of
examining and implementing measures of different nature, some of them being
highly complex and obviously relevant, calling for constitutional reforms, review of
the structure of procedures, and considerable expenditure. Of course, I do not deny
the convenience of analyzing everything worth being analyzed and reforming
everything that needs reforming in order to improve administration of justice and
execution of judicial decisions. May that be done. However, I insist on the need to
distinguish between what can be postponed —as part of conscientious actions, that
is— and what cannot be delayed. Withdrawing attention from critical problems until
structural questions and other great-scale issues are solved would mean jeopardizing
the immediate protection of valuable rights —that is, inmates’ life and integrity.
17.
During the hearing held in Brasilia, I allowed myself to resort to certain old
experiences that criminal institutions in my country, Mexico, had been through.
When the Federal Constitution was discussed back and forth, between 1856 and
1857, at a constitutional assembly, the representatives had to deal with the issue of
punishment, in a panorama of crime and public security, which was certainly serious
in those years of the XIX century. During the debate, the supporters of capital
punishment crashed —energetically, I must admit— against the proclaimers of
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