The ruling of the Inter-American Court of Human Rights of September 1, 2015 in the case of Gonzales Lluy and Others v. Ecuador (Series C, No. 298).
The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. Then the complaint was communicated to Peru.
In the case, the complaint on the observance of the right to life, personal integrity, education and non-discrimination of an HIV-infected child was successfully considered.
The rights to life, personal integrity, education and non-discrimination of an HIV-infected child.
Circumstances of the case
The applicants in the case were Talia Gabriela González Lew, her mother and brother, all citizens of Ecuador. In 1998, when Talia was three years old, she was infected with the human immunodeficiency virus during a blood transfusion that did not pass the appropriate serological analysis. Blood was obtained from the Red Cross blood bank in the province of Aswai, and the transfusion was done in a private clinic in Ecuador. At the time of the events, the Red Cross of Ecuador had exclusive authority over the management of blood banks. After Thalia was infected, her mother filed a number of criminal cases and civil lawsuits, asking them to punish those responsible for the infection and compensate for the harm. However, the criminal proceedings were terminated with the suspension of the statute of limitations, given that the accused did not participate in the proceedings and was not detained. Similarly, civil proceedings did not advance, since the First Chamber of the Cuenca High Court of Justice ruled that civil compensation arising from the crime could not be claimed in the absence of a sentence being enforced.
When Talia was five years old, she was admitted to a public elementary school, which she attended for two months, until the principal informed her mother that Talia would no longer be admitted to school. This decision was made after the teacher informed him that Thalia was HIV-infected. On February 8, 2000, Talia’s mother filed an amparo complaint against the Ministry of Education and Culture, the school principal and teacher, citing Talia’s deprivation of the right to education, and asked for her re-enrollment in school, as well as compensation for harm. However, the court ruled that "there was a conflict of interest between the individual rights of Talia and the interests of the conglomerate of students, and public or collective rights took precedence in this clash, since it was a right to life compared to the right to education." In addition, the domestic court indicated that Talia could exercise her right to education through special education and distance learning.
The amparo procedure (Spanish: recurso de amparo, juicio de amparo) is a means to protect constitutional rights that is characteristic of a number of legal systems. In some legal systems, mainly in the Spanish-speaking world, amparo is an effective and inexpensive tool to protect individual rights. The amparo procedure, as a rule, is carried out by the supreme or constitutional court and fulfills a double protective goal: it protects the citizen and his basic guarantees, and also protects the constitution itself, ensuring that its principles are not violated by acts or actions of the state that undermine the fundamental rights proclaimed her.
According to the testimony of Talia and her family, they were forced to move several times due to isolation and rejection, which they were subjected to because of Talia's condition.
QUESTIONS OF LAW
(a) Preliminary objection. The State raised two preliminary objections: (i) the partial lack of jurisdiction of the Inter-American court to decide on facts not included in the factual basis of the case and on alleged violations of rights that were not established by the Inter-American Commission on Human Rights in its substantive report, and ( ii) non-exhaustion of domestic remedies.
The first paragraph was not recognized as a preliminary objection. The Inter-American Court also ruled that the facts as provided by the representatives were contained in the factual basis of the case, in connection with which they could put forward legal arguments based on these facts.
The Inter-American Court dismissed the second preliminary objection for two reasons. Firstly, he considered some of the arguments presented with a deadline. Secondly, it held that the remedies relied on by the respondent Government were not adequate or effective in the light of the facts of the case.
(b) Section 4, paragraph 1 (right to life) and Section 5 (right to security of person) in connection with Section 1, paragraph 1 (obligation to respect and enforce rights) of the American Convention on Human Rights (hereinafter - ACHR). The Inter-American Court recalled that the state has a responsibility to oversee and control medical services, even if they are offered by a private organization. He ruled that the blood bank that provided the blood transfused with Talia was not adequately controlled and monitored by the state. This allowed the blood bank to continue providing services on inappropriate conditions. This serious omission of the state allowed the Talia family to receive blood for transfusion, which was not subjected to the most basic safety tests, such as HIV tests, which caused her infection and subsequent permanent harm to her health (referring to the Oyal v. European Court judgment Turkey "(Oyal v. Turkey) of March 23, 2010, application N 4864/05," Newsletter on the case-law of the European Court of Human Rights "N 128).
The Inter-American Court concluded that due to the severity of the disease and the threat to which the applicant’s life had been repeatedly exposed, Talya’s health was a violation of her right to life, given the threat of death that she had been subjected to repeatedly and could have suffered in the future due to her illness. Ecuador violated a negative obligation not to harm the life of Talia Gonzalez Lew through blood poisoning that occurred in a private institution. This gave rise to a threat to her life and a possible threat of death, which could again arise in the future, at the time of a decrease in the defenses of her body associated with a lack of access to antiretroviral drugs. The Inter-American Court thus ruled that since the negligence that caused the infection of Waist HIV was attributed to the state, the Ecuadorian authorities were responsible for violating the obligation to verify and control the provision of medical services under the right to security of person and the obligation not to endanger life, which follows from articles 5 and 4 of the ACHR.
He also found that the Lew family suffered stigmatization as a result of Thalia’s condition as an HIV-infected person. He noted the constant situation of vulnerability in which the applicant’s mother and brother found themselves, as they were discriminated against, rejected by society and lived in unsatisfactory economic conditions. In addition, they were forced to make great physical, material and financial efforts to ensure the survival of Talia and a decent life for her. The Inter-American Court found that there were many differences in the treatment of Talia and her family in terms of housing, work and education as a result of her HIV status. The state did not take the necessary measures to ensure that Talia and her family had access to their rights without discrimination, as a result of which the actions and omissions of the state constituted discriminatory treatment against them. Accordingly, the Inter-American Court concluded that the state was responsible for violating the right to personal integrity of Talia’s mother and brother, protected by Article 5 § 1 of the ACCHR.
The case has violated the requirements of Articles 4 and 5 in connection with paragraph 1 of Article 1 of the ACHR and a violation of paragraph 1 of Article 5 in connection with paragraph 1 of Article 1 of the ACHR (adopted unanimously).
(c) Article 13 (right to education) of the San Salvador Protocol in connection with article 1, paragraph 1, and article 19 (child rights) of the ACHR. The Inter-American Court recalled that the right to education was provided for in article 13 of the San Salvador Protocol. The Inter-American Court has jurisdiction to resolve issues related to this right in controversial cases, based on paragraph 6 of Article 19 of the San Salvador Protocol.
The Inter-American Court emphasized that the right to education represents the indivisibility and interdependence of all human rights. Based on the standards established by the UN Committee on Economic, Social and Cultural Rights, the Inter-American Court held that in order to ensure the right to education at all educational levels, four essential and interrelated characteristics must be ensured: (i) availability, (ii) accessibility, (iii) acceptability and (iv) adaptability. In this regard, he concluded that there are three obligations related to the right to education of people living with HIV / AIDS: (i) the right to receive timely and unbiased information about HIV / AIDS, (ii) a ban on the exclusion of access to educational centers for people with HIV / AIDS, and (iii) the right to education to promote their inclusion in the social environment and non-discrimination. The Inter-American Court referred to the Kiyutin v. Russia judgment of 10 March 2011, complaint No. 2700/10, “The European Court of Human Rights Court's case-law” No. 139).
Regarding Talia’s expulsion from school when she was five years old, the Inter-American Court concluded that the real and significant risk of infection, which would jeopardize the health of Talia’s fellow practitioners, was extremely low. He emphasized that, in accordance with a test aimed at verifying the necessity and strict proportionality of the measure, the means chosen by the authorities of the country constituted the most harmful and disproportionate alternative of all the other pupils available to protect the integrity. A similar appeal also indicated that the educational environment was not adapted to the situation of Talia through biosafety measures or other similar measures that should exist in any educational institution for the general prevention of the spread of diseases.
In Thalia's case, vulnerabilities of various kinds and the threat of discrimination cross-matched. The discrimination that Thalia suffered was not only due to many factors, but also led to the specific form of discrimination that was generated by the intersection of these factors. In this regard, the Inter-American Court concluded that Talia was discriminated against because of her status as a female child living in poverty and infected with HIV.
The case has violated the requirements of Article 13 of the San Salvador Protocol in connection with paragraph 1 of Article 1 and Article 19 of the ACHR (adopted unanimously).
(d) Section 8, paragraph 1 (right to a fair trial) and Section 25, paragraph 1 (right to a judicial defense) in connection with paragraph 1 of section 1 and section 19 of the ACCHR. Having regard to the case-law of the European Court of Justice (among others, “X. v. France” (X. v. France) dated March 31, 1992, complaint No. 18020/91, and “FE v. France” (FE v. France) dated 30 October 1998, grievance N 38212/97), the Inter-American Court ruled that there was a special obligation to act with due diligence in the specific circumstances of the present case and the situation of Talia, given (i) the fact that the case concerned Talia's inviolability, (ii) the corresponding urgency in connection with her status as an HIV-infected child, and (iii) the critical importance of completing the proceedings so that Thalia and her family can access compensation for harm. The Inter-American Court concluded that this obligation was not fulfilled by the state. After analyzing the four elements in order to determine the reasonableness of the length of the criminal proceedings and considering that there was an obligation to act with utmost care, the court concluded that Ecuador violated the judicial guarantee of liability within a reasonable time.
As regards the civil proceedings, he ruled that the evidence presented to him was insufficient to conclude that the length of the proceedings violated the guarantees of thoroughness and the resolution of the issue of rights within a reasonable time. He also considered that there was not sufficient evidence to conclude that the existence of prejudicialidad proceedings in Ecuadorian law itself constituted a violation of judicial guarantees. Finally, the Inter-American Court concluded that the state had not violated the right to judicial protection in connection with the amparo procedure or the criminal or civil proceedings.
The case has violated the reasonable warranty provided for in paragraph 1 of Article 8 in connection with paragraph 1 of Article 1 and Article 19 of the ACHR with regard to criminal proceedings, and there is no violation with regard to proceedings in civil proceedings, there is no violation of the right to judicial protection, recognized paragraph 1 of Article 25 in connection with paragraph 1 of Article 1 of the ACHR (adopted unanimously).
(e) Compensation. The Inter-American Court found that this ruling is in itself a form of compensation, and obliged the state to take the following actions: (i) provide without delay medical, psychological or psychiatric treatment for Talia Gabriela Gonzalez Lew, as well as the provision of any medications she needs; (ii) publish the decree and an official extract from it; (iii) implement a public act of recognition of international responsibility; (iv) provide Thalia with a scholarship whose payment is not dependent on the fulfillment of conditions that make her worthy of a scholarship for her special achievements so that she can continue her university studies; (v) provide Thalia with a scholarship so that she can undergo postgraduate studies, the payment of which does not depend on her academic performance during training; (vi) provide Talia with decent housing; (vii) conduct a training program for medical personnel on the best practices and rights of HIV patients; (viii) pay the amount provided for by the judgment as compensation for pecuniary and non-pecuniary damage and reimbursement of legal expenses and expenses.