5 19. The Commission also asked about the compatibility with various interAmerican provisions of legislative or other measures adopted by a State “that deny those condemned to death access to a judicial remedy or any other effective remedy to contest the punishment imposed, based on the delay or the conditions in which the person is being detained.” On this point, the Inter-American Court invoked (tenth preambular paragraph) the judgments in the Hilaire… cases, and in Fermín Ramírez v. Guatemala. On those occasions, the Court had “ordered the State to abstain from executing the death penalty, taking into account, among other matters, the prison conditions which the victims were and are subjected to, which violate Article 5 (Right to Humane Treatment) of the Convention.” There is, thus, an implicit recognition of equity. 20. Finally, the consultation of April 20 asked about the compatibility with the inter-American norms of State measures “that deny those condemned to death access to a judicial or any other effective remedy to contest the punishment imposed, based on the fact that they have a proceeding pending before the interAmerican human rights system.” On this issue, the Court referred to its rulings on provisional measures and to the judgment in the Hilaire... cases. With regard to provisional measures, the Court has decided: “in order not to obstruct the processing of a case before the inter-American system and to prevent irreparable damage, the State may not execute” the death penalty. Incidentally, the International Court of Justice ruled similarly in the LeGrand and Avena cases, also relating to proceedings that had culminated in the application of the death penalty and that were in question. In the judgment in the Hilaire… cases, the Inter-American Court “declared the violation of Article 4 (Right to Life) of the Convention because the State executed a victim during the international proceeding in violation of the orders of the Court in its decisions on provisional measures.” 21. In the latter cases, three points should be emphasized, in particular: (a) the mandatory nature of provisional measures for State that are bound by the normative system that provides the framework for their adoption; (b) the need for special attention to be paid to compliance with such measures when failure to comply with them may result in irreparable damage; a concept that arises from the very reason for these precautionary instruments, and (c) the existence of a violation when the measure is disregarded and, in consequence, the right being protected by the measure is affected; in those cases, there was an arbitrary violation of that right. C) SCOPE OF ARTICLE 4 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS: EXPANSION OF THE HYPOTHESIS AND SERIOUSNESS OF THE FACT 22. We cannot ignore that, despite substantial advances on the path towards abolition (to which I have alluded above), the authorization and application of the death penalty still persists in some countries – none of them a party to the American Convention – and on an isolated basis in others. It has not been possible to declare that proscription of the death penalty is a principle of peremptory law; namely, international jus cogens, which entails obligations erga omnes of the States, as is, conversely – and paradoxically – the absolute and definitive exclusion of torture and cruel, inhuman and degrading treatment (in this regard, see the judgments in the Cantoral Benavides, ”Street Children” (Villagrán Morales et al.), Maritza Urrutia, Gómez Paquiyauri Brothers, and Caesar cases), and even of certain punishments that are still permitted – although rarely and censured by the Constitutions of the countries that allow them – under some penal laws: punishments that entail torture or treatment of that nature, as the Inter-American Court has indicated. An example