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necessary and if it is disproportionate in regards to the unlawful act: capital punishment
or life sentence for trifling crimes, an excess widely documented in historical experience
and not unknown in current experience.
This radical moderation of the violence
exercised by the State must be reflected in the conditions of compliance with procedural
precautions and execution of punishment. The Court has asserted this several times.
68.
This moderation –strictly speaking, rationality- in the use of force involved in
measures regarding the individual’s liberty encompasses provisional measures, such as
those set forth in the September 13, 1996 ruling, in the Loayza Tamayo case. The
description given then continues to reflect the conditions of the detainees in many
prisons. In that case, the accused –stated the ruling- “is subjected to a regime of
inhuman and degrading treatment caused by incommunicado detention and by being
enclosed for 23 1/2 hours a day in a damp, cold cell measuring approximately 2 meters
by 3 meters, without direct ventilation, containing cement bunks, a latrine and a handbasin... The cell has no direct lighting and is only dimly and indirectly lit from the
fluorescent tubes in the corridors. She is not allowed neither a radio, newspapers nor
magazines. She is allowed into the sunlight for only 20 to 30 minutes a day.”
69.
Of course, moderation encompasses the whole process of incarceration, including
acts that may have as their objective the prevention or punishment of unlawful behavior
or reduction of resistance to authority. Regarding the latter type of situation, the
judgments of the Court in the Neira Alegría and Durán and Ugarte cases are very
significant, in regards to containment of a prisoners’ riot through a massively destructive
use of explosives, which caused the death of dozens of inmates.
70.
At this time of assessment of the situation of human rights in the Americas, fiftyfive years after the American Declaration of the Rights and Duties of Man, thirty-five
after the signing of the American Convention, and twenty-five since the establishment of
the Inter-American Court, we must take note of the horrors that persist in many prisons,
flagrantly violating the most basic rights of inmates. In this regard, the condition of
helplessness, exposition, vulnerability that I referred to above when I mentioned the
crucial role of the “guarantor” State in this field, is especially noteworthy and evident.
We have only advanced a short distance from Howard’s complaints, which continue to be
valid two centuries and many years after the English philanthropist documented them in
a couple of admirable works.
71.
In several rulings of the Inter-American Court -both provisional measures and
judgments on the merits and reparations- the true state of the prisons has been shown
quite clearly, together with absolutely abusive treatment of the inmates, the irrational
nature of punishment inflicted inside the prison walls, lack of training and extreme
cruelty of the guards, impunity of the guilty ones. This is proven. The respondent
parties are found responsible. And nothing happens, or very little. This situation not only
breaches the commitments undertaken by signing the respective international
instruments and the obligations to suppress obstacles and to adopt domestic legal
measures –normative ones, yes, but also practical and effective ones in accordance with
the former-, pursuant to Articles 1(1) and 2 of the American Convention, but also
constitutes a source of very grave problems. Prisons are “time bombs,” as has been
said, and they can explode at any moment. These explosions are becoming more and
more frequent or visible.
72.
Those who study the criminal system and the jurisprudence of the Inter-American
Court, those who resort to it seeking to examine violations, prepare a diagnosis and
undertake corrective measures, may take a complete census of prison wrongs based on
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