6
is subject to a meticulous and comprehensive regime. The area of freedom is
drastically reduced in the hands of the State in charge of the institution and,
therefore, this applies to the lives of those who are “institutionalized.” Therefore, the
State, whose field of authority grows extraordinarily, must take upon itself the
responsibility for the consequences of said authority. By virtue of the above, it must
answer for many things that would normally be under the responsibility of the
interested person, as the master of his or her own behavior. For this reason, the
State has an extraordinary “duty of care,” which would not exist under other
circumstances.
24.
Thus, the State is the guarantor of the life, humane treatment and health,
among other legally protected interests and rights of the detainees. Restrictions
involved in the detention must not go beyond what is inherent to it, pursuant to its
nature. In my separate concurring Opinion in the Hilaire, Constantine, Benjamin et
al. vs. Trinidad and Tobago Case, June 21, 2002 Judgment, I stated that the role of
guarantor entails: “a) avoiding all that which may inflict further suffering on the
subject than is strictly necessary for the purposes of the detention or the fulfillment
of the sentence, on the one hand, and b) providing all that is relevant - pursuant to
the applicable law - to meet the aim of the imprisonment: security and social readaptation, regularly, on the other.”
25.
There is, therefore, a precise boundary between the legitimate action of the
State and illegitimate behavior of its agents. The State must inform, explain and
justify, in each specific case, the reduction of the rights of a person, and of course
the very loss of his or her legally protected interests, especially the right to life, if
this occurs while the State is exercising its role as guarantor, whether the injurious
effect is the consequence of an active conduct –or this involves, in and of itself, a
violation of international provisions-, or it is the result of an omissive behavior, which
is the relevant hypothetical situation, under the penal regime, with respect to
committing by omission. In any event, it would constitute an anomalous, undue or
illegal action during performance of public functions, entailing the respective demand
for accountability of those incurring in it: responsibility of the State and responsibility
of the individuals. That of the latter must be required in accordance with the duties
of criminal justice that constitute, as I have mentioned several times, a specific case
within the broader class of reparations.
26.
The instant Judgment mentions an important issue that procedural doctrine
has debated at length: abuse of procedural rights, as it has been called, or
procedural abuse, an issue that is in turn related to the principle of good faith and
integrity, which should govern the proceeding. In this regard, the Judgment includes
various expressions pertaining to abuse of rights in the instant case by the defense
counsel, an attitude that was not rejected in a timely and appropriate manner by
certain courts, which led to extraordinary delays in the proceeding. Thus, it was not
possible for the proceeding to move forward to its natural culmination, and this gave
way to a claim regarding extinguishment of the criminal action, a matter I will refer
to below (para. 29).
27.
I concur, of course, in the need for behavior in the proceeding to be in
accordance with its object and purpose. Otherwise, this juridical channel would be
subverted, altering its nature and compromising its intent. The process does not
fulfill its purpose “when its objective of ensuring ample debate in which the court can
provide a fair solution is obstructed, altered, or hindered. The telesis of the
proceeding is affected by the lack of good faith or integrity in actions,” which is
injurious to the guarantee of judicial protection of rights (“Relatorio geral latino-