16
II.
THE STATE’S POSITION AS GUARANTOR OF THE RIGHTS OF PERSONS
DEPRIVED OF LIBERTY
46.
As the basis of the international obligations assumed by the States
parties, the American Convention on Human Rights establishes in its Article 1(1) that the
States “undertake to respect the rights and freedoms recognized herein and to ensure to
all persons subject to their jurisdiction” without any discrimination whatsoever. These
general obligations to respect and ensure, binding on the State with respect to any person,
imply a greater commitment by the State when dealing with persons in a situation of risk or
vulnerability.
47.
The respect for human rights – based on the recognition of the dignity
inherent to the human being – constitutes a limit on State activity, which applies to any
branch or official who exercises power over the individual. The obligation to guarantee
implies that the state must adopt all “necessary measures” to make certain that every
person under their jurisdiction can effectively enjoy his or her rights. 66 This obligation
entails that the States must prevent, investigate, punish, and make reparation for any
violation of human rights.
48.
In this regard, the Inter‐American Court has established that “from the
general obligations to respect and guarantee rights, derive special duties, which can be
ascertained based on the particular needs of protection of the legal person, considering the
personal condition or the specific situation of the person.” 67 Such is the case of persons
deprived of liberty, who, for the duration of their detention or imprisonment, are subject
to the effective control of the State.
49.
In effect, the principal element that defines the deprivation of liberty is
the individual’s dependence on the decisions made by the personnel of the establishment
where he or she is being held. 68 In other words, the State authorities exercise complete
control over the person who is under their custody. 69 This particular context of
subordination of the prisoner to the State – which constitutes a legal relationship of public
law – fits within the category of ius administrativista known as a special relationship of
subordination, by virtue of which the State, by depriving a person of liberty, becomes the
66
I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies (Articles 46(1), 46(2)(a) and
46(2)(b) American Convention on Human Rights. Advisory Opinion OC‐11/90 of August 10, 1990. Series A No. 11,
para. 34.
67
I/A Court H.R., Case of Vélez Loor V. Panama. Preliminary Objections, Merits, Reparations and Costs.
Judgment of November 23, 2010. Series C. No. 218, para. 98; I/A Court H.R., Case of the Massacre of Pueblo Bello
V. Colombia. Judgment of January 31, 2006. Series C No. 140, para. 111; I/A Court H.R., Case of González et al.
(“Cotton Field”) V. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 16,
2009. Series C No. 205, para. 243.
68
United Nations, Working Group on Arbitrary Detention, Report submitted to the Human Rights
Council, A/HRC/10/21, adopted on February 16, 2009. Ch. III: Thematic considerations, para. 46.
69
I/A Court H.R., Provisional Measures in the matter of María Lourdes Afiuni, Venezuela, Order of the
President of the Inter‐American Court of Human Rights, December 10, 2010, Considering paragraph 11; I/A Court
H.R., Case of Bulacio V. Argentina. Judgment of September 18, 2003. Series C No. 100, para. 126.
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