A tutela do direito à saúde perante a corte interamericana de direitos humanos: um aporte teórico acerca do caso Poblete Vilches vs. Chile

Abstract

This study has the goal to analyze the first decision concerning health right in an autonomous way in Interamerican Court of Human Rights, an organ with jurisdictional function in the Inter-American System. The recent decision has written a new chapter in the protection of social rights, considering that art. 62 of the American Convention on Human Rights (Pact San Rosé of Costa Rica) and art. 19. 6 of the Protocol of San Salvador, limit the direct analysis of economic, social and cultural rights before the Inter-American Court, with the exception of the right to education, freedom of association and union association. In this sense, the study proposes to explore the change in the interpretative paradigm about the theme in the decision of the Poblete Vilches Vs. Chile case, in view of the recognition of a direct violation of the victim's health, with legal basis in art. 25.1 of the Universal Declaration of Human Rights, art. 10 Protocol of San Salvador and the Federal Constitution of the State of Chile, a violating country. The sentence supports the thesis that the Inter-American Court is attentive to the new regional movement for the protection of human rights, promoting the end of the dichotomy between rights based on the indivisibility of human rights. From this angle, it is also intended to analyze the reflexes of the decision in Brazil based on the ideal of dialogue between courts and considering the Latin American ius commune for the progression of human rights.