30
97.
The States have the duty to respect the rights recognized in the Convention
and to organize their power so as to guarantee the free and full exercise of human
rights to the individuals under the jurisdiction thereof, 30 such duty encompassing all
government levels, as well as other institutions to which the States delegate their
authority.
98.
Pursuant to Article 2 of the Convention, the States must create an appropriate
legal framework to establish the standards of treatment and hospitalization to be
complied with by health care institutions. The States must establish and adopt in
their respective legal systems all such measures as may be necessary so that the
provisions of the Convention may be met and enforced, 31 and legislation does not
become a mere formality drifted apart from reality.
99.
In view of the foregoing, the Court considers that the States are responsible
for regulating and supervising at all times the rendering of services and the
implementation of the national programs regarding the performance of public quality
health care services so that they may deter any threat to the right to life and the
physical integrity of the individuals undergoing medical treatment. They must, inter
alia, create the proper mechanisms to carry out inspections at psychiatric institutions,
submit, investigate, and solve complaints and take the appropriate disciplinary or
judicial actions regarding cases of professional misconduct or the violation of the
patients´rights.32
100. In the instant case, the Casa de Reposo Guararapes (Guararapes Rest Home),
where Damião Ximenes-Lopes died, was a private health institution engaged by the
State to render mental health services under the coverage of Brazil´s Single Health
System and operating as a public health institution on behalf of the State (infra para.
112(55)). Therefore, the State is liable for the conduct of the staff of the Casa de
Reposo Guararapes, which exercised the state authority in rendering public health
services under Brazil´s Single Health System.
c)
THE SPECIAL CARE DUE TO PERSONS WITH MENTAL DISABILITIES BY REASON
OF THEIR SPECIAL VULNERABILITY
101. To the purposes of the instant case, the alleged victim of which, Mr. Damião
Ximenes-Lopes, was mentally ill and died while he was under treatment in a mental
health institution, the Court must go on record to emphasize the special attention the
States must give to the persons with mental disabilities for they are particularly
vulnerable.
102. In this regard, the European Court has stated that,
“Regarding to persons in need of psychiatric treatment in particular, the Court observes that the State
is under an obligation to secure to its citizens their right to physical integrity under Article 8 of the
30
Cf. Case of the Sawhoyamaxa Indigenous Community, supra note 4, para. 142; Case of the
Indigenous Community Yakye Axa. Judgment of June 17, 2005. Series C No. 125, para. 153; and Case of
Juan Humberto Sánchez. Judgment of June 7, 2003. Series C No. 99, para. 142.
31
Cf. Case of the Sawhoyamaxa Indigenous Community, supra note 4, para. 110; Case of GómezPalomino, supra note 21, paras. 90 and 91; and Case of Palamara Iribarne. Judgment of November 22,
2005. Series C No. 135, para. 89.
32
Cf. Principles for the Protection of Persons with Mental Illness and the Improvement of Mental
Health Care, UN General Assembly Resolution 46/119.46, p.189, UN Document A/46/49 (1991), principle
22.