11
valid: in one sense, as a violation of the right to life according to the terms of the
principle contained in the right; and in another sense, as a due process violation,
as there was no due process in the processing of the claim: nor was there a
hearing, evidence or argumentation that opened even a minor possibility that the
request would be granted. It is from this that the Court deems, rightly in my
opinion, that there has been a multiple violation: of Articles 4(6) and 8 in relation
to 1(1).
18. Another issue, to which I would like now to refer, corresponds to the detention
system that in the circumstances of this case constitutes a violation of Article 5,
paragraphs 1 and 2, of the American Convention. In this framework it must be
noted that the State as guarantor of the rights of the detained, is directly and
wholly answerable for situation of its prisoners. 28 The position of guarantor, held
in this case by the State, is derived from the fact that prisoners detained, awaiting
execution or carrying out a sentence, are the subject of a carefully regulated
regime, applied and supervised by the State itself, in a manner that is likely more
rigorous than could otherwise be applied to any other category of persons.
In these cases, which correspond to the entire institution that is prison, the
condition of the State as guarantor originates in the duties contingent upon it in
respect of arrest orders - or its equivalents - and sentencing judgments. Both
authoritative acts imply the removal of the subject from the free environment in
which he has developed and his placement in a completely different environment
where his every act is subject to the control of the public authority. The title of
guarantor implies: a) avoiding all that which may inflict further suffering on the
subject than is strictly necessary for the purposes of the detention or the
fulfilment of the sentence, on the one hand, and b) providing all that is relevant pursuant to the applicable law - to meet the aim of the imprisonment: security
and social re-adaptation, regularly, on the other.
19. The is no lack of international material on the subject of the treatment of
prisoners, where detainment is legally foreseen; in this literature a line is drawn
between what is due and undue, between what is admissible and inadmissible.
These materials provide a starting point from which to delineate the space in
which the State acts and the features of its mission as guarantor. 29 A comparison
of what is foreseen in the literature and the reality of the prison system could
provide an understanding of the degree to which public duties have been fulfilled,
duties which may not be neglected simply because those who are detained have
seriously failed to comply with - and are thereby deserving of their sentence their societal obligations.
Indeed, imprisonment implies severe restrictions.
I do not question their
relevance. I leave this question outside the scope of my present considerations.
However, it is important to take into account that said restrictions have their
28
This has been affirmed by the Court in I/A Court H.R., Neira Alegría et al. Judgment of January 19,
1995. Series C, No. 20, para. 60, referred to in the judgment to which this Opinion is attached. Mention is
also made of the criteria of the United Nations Human Rights Committee, in Moriana Hernández Valenti de
Bazzano v. Uruguay, No. 5/1977 of August 15, 1979, paras. 9-10.
29
Therefore - and only referring to the best known instruments - I will mention the Standard
Minimum Rules for the Treatment of Prisoners (Geneva, 1955), approved by the United Nations Economic
and Social Council on July 31, 1957, and reformed on May 13, 1977 by the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations
General Assembly on December 9, 1988 (Res. 43/173), and the Basic Principles for the Treatment of
Prisoners, adopted by the United Nations General Assembly on December 14, 1990 (Res. 45/111).
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