4
11.
As a result of this, the convict becomes a victim of the State whose role in
punishing criminal behavior has gone astray from its purpose and overstepped its
mark. Certainly, the need — and the public duty — to decisively fight crime and
punish offenders is undeniable. What is objectionable is that this punitive role, in
itself lawful, be carried out in such a manner and by such means as to render it
grievous to human dignity and that conflict with the ethical standards that must be
the hallmark of the democratic State in the exercise of all of its powers, including the
power to punish. As I have stated in the past, it is in the punitive order, perhaps
more than in others, that the political convictions and moral design of a State
become apparent.
12.
The foregoing is applicable regardless of whether the individual involved be, in
turn, a victimizer in the commission of a punishable offense. If his criminal liability is
established, the individual must be punished. It seems unnecessary to 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
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