6
21.
The Inter-American Court has forcefully gone a long way in this direction. It
has affirmed the duty to provide decent living conditions. It has highlighted the
positive duties of the State, and not only its negative obligations. By doing so, it has
broadened the horizons of human rights under the aegis of the American Convention.
This has been the doctrine firmly upheld by the Court in each and every one of its
most recent decisions. The foundations of such doctrine is discussed at length in
each of them. A very recent example of this has been the decision rendered in the
case of Indigenous Community Yakye Axa v. Paraguay, in which, following the same
line of thought, the Court has upheld the positive duties concerning the right to life
and the legal consequences of the failure by the State to fulfill them.
22.
In the case of Yakye Axa, the Court addressed the violation of the right
recognized by Article 4 of the Convention. However, the Court found, by a majority,
that there was not enough evidence to hold the State liable for the death of several
people. A respectable decision —as respectable as the dissenting opinion—, that did
not absolve, but rather halted at the fence a judge must honestly heed in each case:
evidence. In the instant case, however, the Court is unanimously satisfied that all
the weight of evidence necessary and sufficient to find, once judicial conviction is
formed, that the circumstances in which the victims were caused their death; that
for each and every fact quoted in the judgment there is enough proof —beyond a
reasonable doubt— to establish that the ill health of the victims was the result of the
situation they were enduring; that this, in turn, was the direct consequence of the
living conditions imposed by the dwelling and marginalization problems they
suffered, the final, inequivocal and direct outcome of which was their demise; that
such circumstances were particularly severe for minors, who were —or should have
been— protected in a special, more strict way; that the resulting deaths are
attributable to the State, not because of the action taken by its agents as in other
cases, but rather as a result of its omission —which is just as disapprovable, since it
implies the failure to perform strict duties— to foresee such outcome, perfectly
foreseeable, and to take the necessary steps to prevent it —something the State was
in a position to do; and that it is not reasonable to blame the victims for such
outcome, because the State had, as has been said, the means to foresee and
prevent them, and it was under a duty to do so.
23.
In sum, the judgment to which I join this Opinion has confirmed the essential
criteria upheld in the cases of the “Street Children” (Villagrán Morales et al.), Gómez
Paquiyauri Brothers, Juvenile Reeducation Institute and Yakye Axa. The Court has
once again reaffirmed its progressive construction of the scope of the right to life
under Article 4 of the American Convention on Human Rights, has insisted in the
positive duties —rather than just the duties to refrain from acting— the State has a
derivation of such scope, and it has highlighted the ethical relationship —as opposed
to the political relationship of power and subordination— between the State and the
citizen, and it has based its decision on the consideration of the facts, the application
of the law and the weighing of the evidence, which a court must subject to the
unbiased scrutiny of its reason and its conscience, with the care required to issue a
condemnatory judgment.
IV.
Recognition of juridical personality
24.
In this judgment, the Court has considered certain facts that give rise to novel
considerations regarding an issue that the Court had initially explored in past cases
such as Case of Bámaca Velásquez v. Guatemala and Case of the Girls Yean and