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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.
84.
Would the rights of a member of an indigenous community or an “ejidal”
[community-owned land] group, who are not owners, strictly speaking, but who are
entitled to certain rights over the land granted to the community or to the “ejido”, and to
the products obtained from the land, be excluded from protection of Article 21? Certainly
not. This was the opinion of the Court in the Mayagna Awas Tingni case. Would the rights
of an individual in regards to a commercial company which, in turn, owned a certain
property, be excluded from said protection? They would not either. This was the position
of the Court in the Ivcher case. The same can be said of lawful possession, which is, in
fact, the way in which many people, in our countries, exercise certain rights over realty
and personalty. In the Case of Tibi, the Court has kept in mind the unequivocal fact of
unchallenged possession, which in itself would merit the protection offered by the
Convention to the human person’s right to property, as well as the claim to property by
the one in possession of the goods, and in any case the court order to deliver them. It
would be a different matter if, by other means, it were possible to challenge lawful
possession of goods or the perfection of the legal act from which the property right
derived.
XVII.
Protection of the family and life plan
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