5
immediate and absolute abolitionism. Although the conviction that capital
punishment should be suppressed prevailed amongst the members of Congress, they
always feared to abolish it, as the republic did not have any other substitute devise
to rely on —they were just witnessing the beginnings of the penitentiary system.
18.
Somehow as a compromise, the congressmen decided to adopt capital
punishment and to entrust the Executive with creating a penitentiary system with a
view to abolishing capital punishment as desired by all. Consequently, Article 23 of
the newly-created Constitution was careful to state only that “[I]n order to abolish
capital punishment, the administrative branch shall be responsible for creating the
penitentiary system as soon as practicable.” Capital punishment was eventually
abrogated from the Constitution in 2005 —one hundred and fifty years after the
congress debate of 1857. It has always seemed regrettable to me to condition the
implementation of necessary, warranted and accessible measures on the attainment
of goals that are nearer or further in time, thus deferring fulfillment of certain duties
that cannot be postponed.
19.
This should not happen in cases of prisons the population of which —now
desperately— awaits that the State will ensure protection of their most valuable
rights, effective immediately. However, this is not only inmates’ expectations; it is
the expectation of a greater part of —a now upset— society. How could anyone
argue that a constitution must first be amended so that the obligation of the
Federation will be in alignment with the duties inherent in its provinces, or that
before all, certain principles of the accusatory procedure must be reviewed to
encourage diligence in proceedings, or that before avoiding the entry of weapons to
prisons, or reasonably classifying prison population or establishing order in prison
life, a fiscal reform must first take place so as to generate greater resources with
which to modernize prisons?
20.
I am in favor of debates on constitutional guidelines of the Law and of
criminal procedure. In fact, a major debate on this topic has been unleashed
throughout Latin-America. Nonetheless, no debate however relevant or intense it
may be, no deliberation however important and necessary it may be, nor measure
for penitentiary changes —either in work places, education, segregation, health care,
etc.— however indispensable they may be deemed, should halt not even for a
second the adoption of serious and adequate measures to ensure life and integrity of
inmates. If provisional measures have been ordered, the rationale behind this legal
devise and the demands of a subverted reality, above all, call for these measures to
be devoid of conditions or preambles, notwithstanding any refection or the
immediate implementation of any other measure that could lead to a great-scale
penitentiary reform.
21.
This is why I should once again argue for the stance I took in Opinion on the
provisional measures adopted by the Inter-American Court in connection with the
Urso Branco prisons, Rondônia, Brazil, on July 7, 2004, which I restated in my
Opinion on the measures for the Mendoza Prisons, on June 18, 2005: “Whether a
penitentiary reform takes place, new legislation is passed on the topic, segregation
of inmates is implemented, penitentiary institutions are modernized, officials in
charge of custody and execution of sentences are carefully recruited, adequate
substitutes for the imprisonment are provided for, obstacles are cleared for visitation
of prisoners under dignifying conditions, medical assistance is available for the
preservation of inmates’ health conditions, educational centers, workshops and units
are established, all this, and even more, is absolutely indispensable, because it
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