19
58.
The Commission considers that the exercise by the State of its position as
guarantor of the rights of persons deprived of liberty entails a complex task in which the
competences of different State institutions come together. These range from the executive
and legislative branches, entrusted with determining prison policies and legislating the
legal order necessary for the implementation of those polices, to administrative entities
and authorities who perform their functions directly in the jails. 75 The judiciary, in addition
to hearing criminal cases, is entrusted with reviewing the legality of the act of detention;
judicial protection of the conditions of confinement; and judicial oversight of enforcement
of the penalty entailing deprivation of liberty. In this regard, the IACHR has found that the
shortcomings of the judicial institutions have a direct impact on both the individual
situation of the persons deprived of liberty and the general situation of the prison
systems. 76
59.
In relation to this point, the analysis by the United Nations Rapporteur on
Torture in the report on his visit to Uruguay is particularly enlightening. He concluded that
“in many, if not all, of the problems faced by the penitentiary system and the juvenile
justice system are a direct result of the lack of a comprehensive criminal justice policy.” 77 In
addition, the Working Group on Arbitrary Detention observed after its mission to Ecuador:
The absence of a genuine administration in the judiciary, the lack of funds
and the general perception of a lack of independence, of politicization
and of corruption in the judiciary, the police and the prison system have
had a real impact on the enjoyment of human rights, mainly affecting the
most destitute people, who account for the large majority of the prison
population. 78
75
For example, the IACHR, in its recent report Access to Justice and Social Inclusion: The Road Towards
Strengthening Democracy in Bolivia, after analyzing the various challenges the Bolivian State faces in terms of its
prison administration, concluded:
The prison situation observed in Bolivia and the resulting problems are complex, and call for
official responses developed through dialogue and coordination among the three branches
of government, some of which should be implemented immediately while others could be
carried out in the medium and long term. The Commission therefore urges the executive,
judicial and legislative branches of Bolivia to encourage interagency dialogue and debate
with a view to remedying the situation of human rights of persons deprived of liberty,
taking a comprehensive view and applying solutions that carry the agreement of all sectors
involved. IACHR, Country Report on Bolivia: Access to Justice and Social Inclusion: The Road
Towards Strengthening Democracy in Bolivia, OEA/Ser.L/V/II. Doc. 34, adopted on June 28,
2007, Ch. III, para. 214.
76
In this respect see, IACHR, Fifth Report on the Situation of Human Rights in Guatemala, Ch. VIII, para.
2; IACHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96. Doc. 10 rev. 1, adopted on April
24, 1997. (hereinafter “Report on the Situation of Human Rights in Ecuador”), Ch. VI.
77
United Nations, Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, Report of the Mission to Uruguay, A/HRC/13/39/Add.2, adopted on December 21, 2009. Ch. IV:
Administration of criminal justice: underlying causes for collapsing administration of justice and penitentiary
systems, para. 77. The problems that the United Nations Rapporteur identified in Uruguay, such as the
sluggishness of the judicial system, the routine use of pretrial detention, and the application of a punitive
penitentiary policy are common in many countries of the region.
78
United Nations, Working Group on Arbitrary Detention, Report on Mission to Ecuador,
A/HRC/4/40/Add.2, adopted on October 26, 2006, para. 98.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents