of a system of urgent medical care in cases that endanger health,93 even within detention
centers. In these situations, the creation of protocols and actions for imparting justice are
of vital importance, especially for vulnerable groups, such as persons with disabilities, whose
cases require exceptional diligence on the part of the authorities. 94
77.
In sum, the right to health of persons deprived of liberty – with or without a disability
- is a right that can (and should) be autonomously enforceable by this Court through a
systematic and evolving interpretation of Article 26 of the American Convention, 95 in relation
to Articles 1, 2 and 29 thereof,96 also taking into account in this specific case that Guatemala
recognizes that right in Articles 93 and 94 of its Constitution. 97 This vision would have
afforded an opportunity to establish clearer standards regarding accessibility, reasonable
accommodation and protection of the right to health of persons with disabilities deprived of
their liberty.
78.
I am firmly convinced that a step forward in that direction —which I trust will occur
very soon—, would allow us to establish and configure specific obligations for the States,
arising from the very nature of this right. By guaranteeing the right to health of persons
deprived of liberty, the Court would prevent, in other similar cases, the progressive
deterioration of health from illnesses that, ultimately, could result in the death of persons
who are serving a custodial sentence in our region.
Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest
Attainable Standard of Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights),
(Twenty-second Session, 2000), U.N. Doc. E/C.12/2000/4 (2000), para. 16.
93
For example, the Supreme Court of Justice of Mexico has promulgated Action Protocols for those who
impart justice in cases involving the rights of persons with disabilities. Cf. SCJN, Protocolo de Actuación para
quienes imparten justicia en casos que involucren derechos de personas con discapacidad, Mexico, 2014. Available
at: https://www.scjn.gob.mx/libreria/paginas/Protocols.aspx
94
As we have held on other occasions, the Inter-American Court has full jurisdiction to examine violations
of all rights recognized in the American Convention, including those derived from Article 26, which would imply a
systematic interpretation of particular importance with Article 19(6) of the San Salvador Protocol. See this possible
interpretation in our concurring opinion in the Case of Suárez Peralta v. Ecuador (2013), especially in paras. 1-72.
95
In this regard, the Court has indicated that human rights treaties are living instruments, whose
interpretation must accompany the evolution of the times and current living conditions. It has also held that these
evolving interpretations are consistent with the general rules of treaty interpretation established in Article 29 of
the American Convention, and in the Vienna Convention on the Law of Treaties. Cf. The right to information on
consular assistance in the context of the guarantees of due process. Advisory Opinion OC-16/99 of October 1,
1999. Series A No. 16, para.114. Also, see Case of the Mapiripán Massacre v. Colombia. Judgment of September
15, 2005. Series C No. 134, para. 188.
96
“Article 93. Right to Health. The enjoyment of health is a fundamental right of the human being, without
discrimination.”
97
“Article 94. Obligations of the State, regarding health and social assistance. The State shall safeguard the
health and social assistance of all inhabitants. Through its institutions, it shall implement actions of prevention,
promotion, recovery, rehabilitation, coordination and other pertinent complementary actions, in order to ensure
the most complete physical, mental and social well-being.”
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