7
are provisions related to the protection of human rights and, therefore, to the main
and most essential issue of the Rule of Law. In this regard, it should further be
noted that the State ratified the American Convention and accepted the contentious
jurisdiction of the Court in 1991, i.e. many years after the enactment of the
Corporal Punishment Act (1953) and the Constitution (1976).
27.
In the instant case, the abovementioned clause entails an anticipated repeal
of the Constitution, which will not apply to situations governed by preexisting laws,
even though the major concerns safeguarding the individual —the citizen, for
whose benefit the State is designed— are enshrined in the new supreme law and
the old law persists in ideas that date back even further than the date of its
enactment. The sense of a new progressive law is precisely to create a new
plausible scenario. This is hampered by the savings clause, which has the past
prevail into the future. It makes a superior purpose —the safeguarding of human
rights— subservient to an inferior decision —the retention of a form of punishment
excluded by the Constitution itself.
28.
It is surprising how such clause may suspend the application of nothing less
than the provisions that constitute the cornerstone of the modern Rule of Law, the
very essence of the Constitution and the reason itself whereby political society
stands, that is the fundamental rights of the individual, recognized by a current
supreme provision but ignored —effectively ignored— by a secondary provision
petrified in the past, yet still operative —running counter to the Constitution
itself— at present intending to remain so forever, since it is effective sine die.
III.
REASONABLE TIME
29.
Non-compliance with the “reasonable time” to close a proceeding and
impose a sanction has been noted in the instant case, non-compliance that would
undermine due process of law. This problem has been analyzed from the point of
view of the proceeding itself, which ends with a court decision, as well as from the
point of view of the execution of the punishment for which such final decision is an
enforceable order. There has been no consideration by the Court of the procedural
nature the execution may have, or in a different light, the applicability to it of the
principles inherent in criminal due process.
30.
It is evident that the disregard of the reasonable time remains a crucial
problem for criminal justice, the reforms of which have been ineffective in
sufficiently and definitely addressing the need for a brief, diligent and expeditious
administration of justice. Now then, in the circumstances of the case sub judice it is
apparent that the Inter-American Court could not deem that punishment by
flogging, in itself unlawful, should have been administered without delay —in
accordance with the provisions of domestic law— in order to conform to due
process requirements. The punishment is flagrantly illegitimate, irrespective of the
delay and the date chosen to impose and inflict it. The delay contra legem does not
originate a violation; rather it exposes its existence and aggravates its
consequences.
IV.
CONDITIONS OF ARREST
31.
It is also notorious, in relation to the facts in the instant case, the
persistence of a major problem in the field of criminal justice, constantly observed
in a large number of cases submitted to the contentious jurisdiction of this Court
and even analyzed in some consultative opinions. I am referring to the conditions of
arrest existent in the vast majority of prisons —whether adult or juvenile
institutions— which are entirely incompatible with the American Convention and
with the so-called international “standards” on this matter, described in several
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents