Da loucura à dignidade: o caso Damião Ximenes e a mudança de perspectiva no tratamento dispensado ao deficiente mental

This study aims to analyze the change of perspective in the treatment of the mental disabled by the Brazilian State, having as a temporal landmark the condemnation of Brazil by the Inter-American Court of Human Rights in the Damiao Ximenes case. This case was paradigmatic for recognizing the need for public policies that help the mental disabled, pointing to a possibility, albeit a political one, of changing Brazil's stance on complying with the decisions of the international courts to protect human rights. The aim is to demonstrate the challenges of the country's own legislation in relation to the recognition of international treaties on human rights as a rule of immediate and fundamental effectiveness, especially in view of the introduction of constitutional amendment 45/2004, in particular with regard to paragraph 3 of article 5 of the Federal Constitution, which reinforced this difficulty. Moreover, this study also aims to bring to light the visibility that the case Damiao Ximenes lent to the treatment given by the state to the mental disabled, based on a major legislative reformulation on the subject. To this end, the normative hierarchy of international human rights treaties is brought to the analysis, with the necessary criticism of the current understanding of the Federal Supreme Court. Then, Damiao Ximenes case is analyzed and its impact on the country law, especially its influence on the legislative changes in the public health treatment to the mental disabled, focusing on the most relevant changes that could have been implemented from adoption of precepts contained in the international human rights treaties to which Brazil is a signatory, if those treaties were recognized as a norm of constitutional status, regardless of the legislative process and special vote determined by constitutional amendment 45/2004.