CONCURRING OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
I have concurred with my vote for the adoption, by the InterAmerican Court of Human Rights, of the instant Judgment in the
case of Acosta Calderón versus Ecuador, since I agreed with its
operative paragraphs and with that stated by the Court in the
considerations that motivated it. What I am not satisfied with is
that the Court did not issue a ruling regarding other matters set
forth in the instant case, which, to my understanding, should have
served as the bases for another two operative paragraphs in the
instant Judgment. Thus my decision to present to the Court this
Concurring Vote, in which I am obliged to inform of my reasoning,
clearly different to that of the Court, regarding the matters
ignored by it.
2.
In the case of Suárez Rosero versus Ecuador (1997), the
Inter-American Court declared the violation of Article 2 of the
American Convention on Human Rights since Article 114 bis, in
fine, of the Ecuadorian Criminal Code, in force at that time,
robbed “a part of the prison population of a fundamental right on
the basis of the crime of which it is accused,” and, hence,
intrinsically injures “everyone in that category” (para. 98). The
Court understood that the application of that legal stipulation
had caused an “undue harm to the victim, and observed that, this
law violates per se Article 2 of the American Convention, whether
or not is was enforced” (para. 98). The mentioned stipulation of
the Ecuadorian Criminal Code (Article 114 bis) was a violation to
Article
2
of
the
Convention
precisely
because
of
its
discriminatory nature, and specifically because it treated those
accused of crimes related to drug trafficking (sanctioned by the
Law on Narcotic and Psychotropic Substances) unequally before the
law.
3.
Despite not having been declared in that case, decided in
1997, a violation to Article 24 of the Convention, subsequently,
in its historic Advisory Opinion No. 18 on the Juridical Condition
and Rights of Undocumented Migrants (2003), the Court developed
its jurisprudence with regard to discrimination and inequality
before the law, having declared that
“the principle of equality before the law, equal protection
before the law and non-discrimination belongs to jus cogens,
because
the
whole
legal
structure
of
national
and
international public order rests on it and it is a
fundamental principle that permeates all laws. Nowadays, no
legal act that is in conflict with this fundamental principle
is acceptable, and discriminatory treatment of any person,
owing to gender, race, color, language, religion or belief,
political or other opinion, national, ethnic or social
origin, nationality, age, economic situation, property, civil
status, birth or any other status is unacceptable. This