13
by a strong feeling of human solidarity, without which little can the Law progress." 34
That explains the relevance of the formal and non-formal education on human rights;
regarding to that, the release and a better knowledge of the jurisprudence of
protection of human beings rights of the Inter-American Court become essential, the
direct applicability of which is imposed in the domestic law of the States Party.
VI.
The Need to Enlarge the Material Content of the Jus Cogens.
38.
In this Judgment in the case of Ximenes-Lopes v. Brasil, the Inter-American
Court noticed that the right to personal integrity, consecrated in the American
Convention, has as “main purpose” the “imperative prohibition of torture and
penalties or cruel, inhuman or degrading treatment," not admitting, therefore, any
suspension under “any circumstances” (para. 126). The Court had already noticed it
in its Judgment dated August 18, 2000, in the case of Cantoral Benavides v. Peru
(paras. 95-96). In other words, the above mentioned prohibition falls in the scope of
the jus cogens.
39.
The fact that the direct victim in this case was a mentally disabled person
(the first case of this nature before the Court) characterizes the case with an
aggravating circumstance. In this Judgment, the Court recognizes the “special
protection” required by particularly vulnerable people, bearers of a mental disability,
-as in the case of Damião Ximenes-Lopes, a fatal victim in the cas d'espèce (paras.
103-105), - and states that:
"(...) The inherent vulnerability of mentally disabled people is aggravated by
the high degree of intimacy which characterizes the treatment of psychiatric diseases,
which cause that those people become more susceptible to abusive treatment when they
are hospitalized" (para. 106).
40.
The protection obligations, - and even more in situation like this, where the
victim had a high degree of vulnerability,- are characterized by their erga omnes
aspect (para. 85), also encompassing interindividual relationships, taking into
account the obligation of prevention and due diligence of the State, mainly regarding
to people under its care. Public health is a public asset, not a merchandise. In my
many papers and Opinions in the core of this Court, I have expressed for so many
years my understanding in the sense that all conventional obligations of protection
have an erga omnes feature. It is particularly hard for me to escape the impression
that overwhelms me when I think that during all this time I might have been writing
and continue to write for the birds….
41.
I would have appreciated it if the Court had done its best when supporting its
own obiter dicta regarding the matter, but there was no time for such a thing due
to the almost unnecessarily frantic rhythm that lately it has imposed upon itself against my opinion - for making decisions in record time. As I have repeatedly
expressed to the majority of the Court, I am against sacrificing the complete grounds
of its judgments in the name of productivity. I herein repeat my understanding that I
do not consider myself a “production agent” (nor a “human resource”), and I cannot
accept that the highest value of a Court is its productivity, due to the chronic
deficiencies of the American States Organization (ASO) in the allocation of its
resources to the Inter-American Human Rights Court and Commission.
34
.
Ibid., p. 94.