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“All persons under any form of detention or imprisonment shall be treated in a
humane manner and in regards for the inherent dignity of the human person.”
80.
Precautionary and penal deprivation of liberty affect multiple rights of the
inmates, and even the rights of third parties not involved in the crime, linked to the
inmate by love or dependence. This is inevitable, as long as there are prisons. But it
would be necessary to review penitentiary doctrine and provisions, and to ensure that
the negative effects in both situations are minimal insofar as possible. However, in
many cases the conditions under which incarceration is ordered and practiced are far
from fostering this “minimization” of the negative effects, which would be a natural
and reasonable consequence of restricted use of the penal system. Excessive
severity and unwarranted restrictions may improve the lot of those in charge of the
investigation or custody of the accused. This opens the panorama of corruption in
the prosecution of crimes. There are jails where everything has a price –exactly like
in Howard’s chronologically remote time, actually very near- and the inmate must
find ways to survive.
81.
Having seen the prisons through the Case of Tibi, which is only one
observatory among thousands, not an exceptional, uncommon case, we must inquire
about the “reasons” –allow me this expression- for prison, which is a complete
confinement, under perfectly controlled or at least controllable conditions, to
paradoxically entail the greatest insecurity for the inmates, always at risk of losing
their lives or of suffering severe detriment to their physical safety –as shown by the
reports on Urso Branco-; or the loss of their health, as happened in this case; or the
absolute lack of working conditions, despite what has always and everywhere been
said about the therapeutic, redeeming, adaptive virtues of work. Are these three
aspects –safety, health, and work- not part of the sought-after image of the modern
prison?
XVII. Protection of possession
82.
The judgment in the Case of Tibi moves forward in the interpretation of Article
21 of the American Convention, which –in combination with Article 1(2) of this same
instrument- refers to the property of natural persons, that is, individuals. This is the
scope of subjective protection of American Convention. Now, this protection of an
individual right may be exercised immediately and directly, regarding the person’s
ownership of rights that he or she owns exclusively, or in a mediate and indirect
manner, regarding his or her participation in collective property, which absorbs –but
in no way eliminates- his or her right over goods or assets, even if this right is
exercised in a way that is also indirect. This can be seen in various cases decided by
the Inter-American Court, each of them with its own characteristics and in its specific
context: Mayagna (Sumo) Awas Tigni Community, regarding the collective rights of
indigenous communities, whose property, constituted and governed by an ancestral
and specific legal order, involves rights for natural persons subject to protection
under the American Convention, and Ivcher, regarding the rights of an individual,
whose property rights follow the path of the commercial corporate legal system.
83.
In light of a case that requires an interpretation of Article 21, the Court now
deems that this Article protects real rights and legitimate forms of control over goods
included in the broad scope of the person’s property. It is not possible to disregard –
instead, it is necessary to acknowledge- the heterogeneous composition of said
individual property, which includes not only the real property right over goods legally
subject to it, but also those that were once called “detachments of property” -use,
usufruct, right of habitation- and other expressions of legitimate possession that
ordinary law protects in a manner similar to property.
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