4
say —though perhaps suitable to insist on making the point once more—that in
human rights violation proceedings the perpetration of this kind of violations is only
and exclusively on trial and not the criminal liability of the individual, which must be
established by the appropriate domestic courts in accordance with domestic law,
and punished in a lawful manner, i.e. compatible with the provisions of the relevant
domestic Constitution and with international provisions embraced by the State by
way of conventions, or imperative provisions within the framework of jus cogens.
Once again, it should be noted that a lawful purpose must be attained through
equally lawful means.
13.
The survival of measures, such as flagellation of an individual, exposes once
again the existence, in the midst of the XXI century, of parallel chapters in the
histories of crime and the justice system developed to fight against it on behalf of
society and the State. It is, of course, a strange and dreadful parallelism, the
chronicle of which is beyond the scope of this Separate Opinion, accompanying a
judgment. The existence of a clear and exact borderline between crime and criminal
justice —which must separate the unfair use of violence displayed by the criminal
from the sanctioning role performed by the State— has not always been the case.
This role should be justified, as mentioned earlier, on the ethical quality of its
grounds, its means and its purposes. Criminal “justice” has frequently overstepped
such mark. In this order, the Inter-American Court has joined the European Court
in its eloquent reflection in the case of Tyrer v. United Kingdom, regarding corporal
punishment: it is but institutionalized violence, an “assault” on a person’s dignity
and physical integrity. Hence, it violates jus cogens and, for that very reason, it is
deemed completely unacceptable. Rejection is absolute, beyond all historical,
sociological or disciplinary reasons that may be used to support such punishment.
14.
The obstinate presence of these forms of punishment, which constitute
reminiscences of old oppressive practices, prompts a review of the purposes of the
punishment imposed by the State on the offender. I do not deny the retributive
nature the criminal sanction formally has and that has occasionally contributed to
limit the display of violence, grading the punishment according to the weight of the
offense committed. Nor do I oppose at this time its efficacy —more notional than
real— as a way to deter (general deterrence) the commission of offenses. However,
I believe it is convenient to retain for the moment, and in the absence of a better
safeguard option, the project of social readaptation, reintegration or rehabilitation
which has been ascribed to the penal consequences of crime and that is laid down
extensively in many domestic and international documents, particularly in those
concerning imprisonment, which, in the history of punishment has replaced capital
punishment and corporal punishment.
15.
Certainly, relevant criticisms have been made regarding this project
associated with punishment. More often than not, these are reasonable remarks it
is possible to share. However, we still lack —in real, effective terms rather than
notional or conceptual— proper substitutes to replace it immediately, effectively
and advantageously. Behind the decline of the rehabilitative theory of punishment
await the eliminative and afflictive options, such as capital punishment and corporal
punishment —e.g. mutilation, branding or flogging— respectively. That is why
readaptation continues to be, in spite of its weaknesses and contradictions, a
reasonable check on the absolute penal power of the State, which would otherwise
know no limits.
16.
The rehabilitative intention is to be found in Article 6(5) of the American
Convention, which ascribes to punishment consisting of deprivation of liberty the
“essential aim” of promoting “the reform and social readaptation of the prisoners.”
If this is the purpose of such punishment —its teleological mission, which provides
the basic sense to the “positive” action of the State towards convicts— the limit to
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