corresponding procedural rules. In doing so, the Judiciary should not only take into account
the treaty, but also its interpretation by the Inter-American Court, which is the ultimate
interpreter of the American Convention.339
243.
With regard to this case, and in relation to the powers of the enforcement judges,
it is clear that they were required to rule on any motions filed during the enforcement of the
sentence, being responsible for monitoring its implementation, overseeing its legality “and
everything related thereto,” as well as protecting the rights of prisoners “from abuses by the
administration” and “monitoring appropriate compliance by the prison system.” In particular,
among other tasks, they ruled on motions concerning execution of the sentence, early release
and “any other important actions deemed necessary by the judge,” “always taking into account
the rights of prisoners.” Thus, there is no doubt that, in the exercise of conventionality control,
and in the absence of mechanisms for external supervision and monitoring of the health
services specifically in the COF, 340 within the context of their powers (supra para. 239) and
given the information received through the aforementioned motions for early release, the
judge of enforcement was in a position - and had the obligation - to ensure judicial protection
with due guarantees to the alleged victim, in relation to the deterioration of her health and
her disability, and particularly the failings in the medical treatment that was and could be
provided at the COF.
244.
Having regard to the aforementioned criteria for the protection of the rights to life
and personal integrity of persons deprived of liberty, the Court considers that in response to
such petitions, judges must weigh up the interest of the State in ensuring the enforcement of
a validly imposed criminal penalty, with the need to assess the viability of continuing to
incarcerate convicted persons who suffer from certain serious illnesses. In other words, when
the health pathology is incompatible with deprivation of liberty, or when incarceration cannot
provide an appropriate mechanism for the exercise of basic human rights, it is necessary to
try to ensure that prison reduces and mitigates the harm caused to the person and provides
the most humane treatment possible according to international standards. Thus, if there is
any danger to life or personal integrity and incarceration does not permit an individual to
exercise his basic rights, according to the circumstances of the case, the judges must consider
what other alternative or substitute measures for imprisonment are available, 341 without this
Cf. Case of Almonacid Arellano et al. v. Chile. Preliminary objections, merits, reparations and costs. Judgment
of September 26, 2006. Series C No. 154, para. 124; Case of Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil,
supra, para. 176, and Case of Cabrera García and Montiel Flores v. Mexico. Preliminary objection, merits, reparations
and costs. Judgment of November 26, 2010. Series C No. 220, para. 225. Also see Case of Gelman v. Uruguay. Merits
and reparations. Judgment of February 24, 2011 Series C No. 221, para. 193; Case of the Santo Domingo Massacre
v. Colombia, supra, para. 144; and Case of Expelled Dominicans and Haitians v. Dominican Republic, supra, para.
311.
339
In response to a question of the Judges, the State explained that “a specific external mechanism for the
supervision or monitoring of the health service did not exist. However, at the time of the facts, the body charged
with supervising prison services was the Central Prisons Board, as established in the Remission of Sentences Law in
force at the time.” With regard to the last incidental motion filed, in April 2004, the Court notes that the judge of
the First Criminal Enforcement Court sent a communication to the Second Enforcement Judge informing him that
“the Central Prison Board ha[d] been disbanded since 2002 on account of the duplication of functions between the
Judge of the First Criminal Enforcement Court and the President of the Board,” for which reason “it [was] not
possible to issue a ruling on the motion filed for early release through remission of sentences.”
340
See the United Nations Standard Minimum Rules for the Treatment of Prisoners, (Nelson Mandela Rules)
approved by the United Nations General Assembly on December 17, 2015. Explanatory note: “Recalling resolution
69/172, of December 18, 2014, entitled “Human Rights in the Administration of Justice,” which recognized the
importance of the principle that, except for those lawful limitations that are demonstrably necessitated by the fact of
incarceration, persons deprived of their liberty shall retain their non-derogable human rights and all other human
rights and fundamental freedoms, and recalled that the social rehabilitation and reintegration of persons deprived of
their liberty shall be among the essential aims of the criminal justice system, ensuring, as far as possible, that
offenders are able to lead a law-abiding and self-supporting life upon their return to society, and took notes of, inter
alia, General Comment No. 21, on the humane treatment of persons deprived of their liberty, adopted by the Human
341
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