5
19.
The Commission also asked about the compatibility with various interAmerican provisions of legislative or other measures adopted by a State “that deny
those condemned to death access to a judicial remedy or any other effective remedy
to contest the punishment imposed, based on the delay or the conditions in which
the person is being detained.” On this point, the Inter-American Court invoked (tenth
preambular paragraph) the judgments in the Hilaire… cases, and in Fermín Ramírez
v. Guatemala. On those occasions, the Court had “ordered the State to abstain from
executing the death penalty, taking into account, among other matters, the prison
conditions which the victims were and are subjected to, which violate Article 5 (Right
to Humane Treatment) of the Convention.” There is, thus, an implicit recognition of
equity.
20.
Finally, the consultation of April 20 asked about the compatibility with the
inter-American norms of State measures “that deny those condemned to death
access to a judicial or any other effective remedy to contest the punishment
imposed, based on the fact that they have a proceeding pending before the interAmerican human rights system.” On this issue, the Court referred to its rulings on
provisional measures and to the judgment in the Hilaire... cases. With regard to
provisional measures, the Court has decided: “in order not to obstruct the processing
of a case before the inter-American system and to prevent irreparable damage, the
State may not execute” the death penalty. Incidentally, the International Court of
Justice ruled similarly in the LeGrand and Avena cases, also relating to proceedings
that had culminated in the application of the death penalty and that were in
question. In the judgment in the Hilaire… cases, the Inter-American Court “declared
the violation of Article 4 (Right to Life) of the Convention because the State executed
a victim during the international proceeding in violation of the orders of the Court in
its decisions on provisional measures.”
21.
In the latter cases, three points should be emphasized, in particular: (a) the
mandatory nature of provisional measures for State that are bound by the normative
system that provides the framework for their adoption; (b) the need for special
attention to be paid to compliance with such measures when failure to comply with
them may result in irreparable damage; a concept that arises from the very reason
for these precautionary instruments, and (c) the existence of a violation when the
measure is disregarded and, in consequence, the right being protected by the
measure is affected; in those cases, there was an arbitrary violation of that right.
C)
SCOPE OF ARTICLE 4 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS:
EXPANSION OF THE HYPOTHESIS AND SERIOUSNESS OF THE FACT
22.
We cannot ignore that, despite substantial advances on the path towards
abolition (to which I have alluded above), the authorization and application of the
death penalty still persists in some countries – none of them a party to the American
Convention – and on an isolated basis in others. It has not been possible to declare
that proscription of the death penalty is a principle of peremptory law; namely,
international jus cogens, which entails obligations erga omnes of the States, as is,
conversely – and paradoxically – the absolute and definitive exclusion of torture and
cruel, inhuman and degrading treatment (in this regard, see the judgments in the
Cantoral Benavides, ”Street Children” (Villagrán Morales et al.), Maritza Urrutia,
Gómez Paquiyauri Brothers, and Caesar cases), and even of certain punishments
that are still permitted – although rarely and censured by the Constitutions of the
countries that allow them – under some penal laws: punishments that entail torture
or treatment of that nature, as the Inter-American Court has indicated. An example
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