3 9. Nothing justifies treating certain people with detriment to the fundamental principle of equality and non-discrimination, which also makes up the right to equality before the law, enshrined in Article 24 of the American Convention. This is a principle of the jus cogens, which cannot be ignored under any circumstance. I hope that the Court will soon recover the advanced line of its own recent jurisprudence, and recovers from the slip it has, in my opinion, incurred in regarding this matter in the instant Judgment. 10. Besides the operative paragraph missing, along with its corresponding assertion, on the violation of Article 24 (Right to Equal Protection) of the Convention in the present case, the Court also excluded the violation of Article 5 of the Convention (Right to Humane Treatment) en el cas d’espece. Paragraph 140 of the instant Judgment, through which the Court considered it lacked “sufficient evidence to issue a ruling regarding the violation of Article 5 of the Convention,” data venia, is not sustainable. 11. An arbitrary arrest (as established by the Court in the instant case), that lasts five years, five months, or five weeks, in the prison conditions that prevail in both the American and European continents,4 or in the other continents of the world (or “globalized” underworld of prisons), always causes traumas in those wrongfully imprisoned. “Substantial evidence” is not required to establish a violation to the right to humane treatment of the individual arbitrarily arrested. The Court was empowered to recur to an irrefutable presumption in this sense pursuant to its constant jurisprudence on this subject; this is how it should have proceeded, with the corresponding support of the operative paragraph that is missing. 12. In my Concurring Vote in the case of Tibi versus Ecuador (2004), I referred precisely to the effects of an arbitrary arrest and the prison conditions of those wrongfully imprisoned (paras. 2-7). In effect, the Law cannot stop coming to the complete rescue of those that have simply been forgotten in the underworld of prisons, in the houses of the dead so lucidly condemned in the XIX century by F. Dostoievski (Recuerdos de la Casa de los Muertos, 1862). In my opinion, the burden of proof is reversed on this occasion; if it is asserted or considered that the infringement of humane treatment is not proven ipso facto by a prolonged arbitrary imprisonment, the alleged non-infringement must be proven (onus probandi incumbit actori) … 4 As inferred from the practice of the European Commission for the Prevention of Torture and Inhuman or Humiliating Treatment or Sanctions (under the European Convention of 1987 for the Prevention of Torture). For an analysis, cf. A. Cassese, Inhuman States – Imprisonment, Detention, and Torture in Europe Today, Cambridge, Polity Press, 1996, pp. 125-126.