17
the items provided by the adjudicatory cases and the advisory opinions.
These
supplement the efforts made by the domestic constitutional courts, which belatedly
sought to apply to prisons, prisoners and guards the constitutional review that should
apply to all public functions and agents of the State; and the still isolated, fragmentary,
and insufficient efforts of the enforcement courts, which incorporate the principle of
lawfulness in this generally obscure field, in which those in charge of execution controlled
lives and property, and those subject to that enforcement were “objects of the
administration.”
73.
Just regarding recent months, and even for the session in which the judgment on
the Case of Tibi was issued, we should mention, as I did above, the provisional measures
ordered in regards to the Urso Branco prison, where dozens of inmates have lost their
lives under very violent circumstances, or study the situations in which children and
youths lived and died in the “Juvenile Reeducation Institute”. The situations described by
Howard and those in other accounts of prison conditions can hardly reveal more violent
and censurable events than those in said “institutions,” nominally geared toward social
adjustment –such is the motto- of the inmates. If that is the situation in the prisons –of
course, I am not saying that this is the case in all prisons-, the time has come, or rather,
it came long ago, to carry out the task that this demands: immediate, in-depth,
constant, rigorous reform, until the time –seemingly distant- when prisons, once
welcomed hopefully, yield to other more rational and fruitful measures.
74.
We need not to go very far to collect evidence of the violations that occur more
and more often in prisons. Obviously, it is not merely in certain prison in a given
country. This happens, clearly, in various countries –obviously not only of our
hemisphere- and in many jails, which have contributed to the disrepute of preventive
detention, debatable in itself, as we have said, and of sentences involving deprivation of
liberty, which is nevertheless the most frequently invoked, foreseen and applied penal
reaction in some places. Too much is expected of the latter, with no grounds for said
expectations.
75.
Reality of prisons –we must insist on the abyss that separates that reality from
the ideal embodied in domestic and international standards- is far from what it would be
if the States rigorously fulfilled their role as set forth in the judgment of the European
Court, for example, in the Kudla v. Poland case, quoted in the judgment to which I
attach this Opinion: “the State must ensure that a person is detained in conditions which
are compatible in regards for his human dignity, that the manner and method of the
execution of the measure do not subject him to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention and that, given the
practical demands of imprisonment, his health and well-being are adequately secured by,
among other things, providing him with the requisite medical assistance.”
76.
Growing acceptance of preventive detention, on the one hand, and excessive use
of punitive incarceration, on the other, have led to overpopulation in the prisons which,
in turn, is another source of violations. There, one of the basic, constantly proclaimed
rules of prison classification flounders: the separation of indictees –“presumed innocent”
and convicts –“found guilty”. This problem is evident in the case we are now discussing,
as in some others there continues to be promiscuity between adults and minors, contrary
to all recommendations and rules. An expert witness who reported to the Court on this
case argued –in a description applicable to many prisons in more than a few countries of
our continent- that “protracted criminalization prior to sentencing is currently the most
serious problem of the criminal justice system” in the State.
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