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Countries-ESCR litigation Archives: Colombia

Decision T-841

Year: 2011 (Date of Decision: 3 November, 2011)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Right to health; Children; Women

Summary Background: An injunction was filed in this case to safeguard a juvenile’s human right to health, in particular, her mental health. The girl’s doctor had ascertained that her pregnancy posed a risk to her mental health, which qualifies as one of the circumstances under which a legal abortion can be performed in Colombia. However, a particular health administrator that was part of the Colombian social insurance system was said to have unreasonably created so many administrative obstacles that the girl was compelled to continue her pregnancy even thought this was detrimentalto her health.

Holding: The Court, citing applicable international human rights instruments including the ICESCR, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, strongly affirmed women’s rights to reproductive autonomy and access to health services without discrimination [para. 22], especially in cases where the reproductive rights of juveniles are at stake.

The Court emphasized that the health administrators operating as part of the social insurance system have an obligation to provide adequate and timely access to health services including abortion [paras. 17. III and 35]. In this case, the administrator ignored this obligation and posed a grave risk to the child’s health, on the basis of a mere technicality [para. 21].

The Court ordered the health administrator in question to pay appropriate compensation and prohibited the imposition of additional conditions that unreasonably delay access to abortion services in future cases, for example requiring a waiting period or requiring necessary certification from only an affiliated doctor.

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Decision of T-051/11 Julio David Perez v. Mayor’s Office of Monteria. File T-2650185

Year: 2011 (Date of Decision: 4 February, 2011)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Right to education; Persons with disabilities

Summary Background: Issue at stake in this case: whether the right to education was violated by denial of availability of a sign interpreter in College due to less than ten hearing impaired students in class. The complainant was a student with hearing disabilities who was adversely affected by the aforementioned denial.

Holding: Referencing elements of the UN and regional human rights law framework (including General Comment 5 by the Committee on Economic, Social and Cultural Rights, the Inter-American Convention of Elimination of all forms of Discrimination Against Person with Disabilities, article

1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. 2. States Parties recognize the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child. 3. Recognizing the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child’s achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development. 4. States Parties shall promote, in the spirit of international cooperation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.
of the Convention on the Right of the Child) [para. IV. 4.2.] as well as articles of the Colombian Constitution [para. IV. 4.1.] and national case law [para. IV. 4.4.], the Constitutional Court held that the complainant’s right to education had been violated.

In addition, the Court concluded that the law that decreed appointing sign language interpreters only in the case of minimum enrolment of hearing-impaired students was unconstitutional, as the mandated requirements were discriminatory and served to deepen the stigmatization and exclusion of students with hearing disabilities [para. V].

The Court required Monteria to make appropriate amendments to the budgets, planning, curricula and organization of its educational institutions to effectively realize the right to education for people with hearing disabilities [para. V]

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Decision T-974/10

Year: 2010 (Date of Decision: 30 November, 2010)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Human dignity; Right to health; Right to education; Children; Persons with disabilities

Summary Background: This case was filed by a mother, on behalf of her intellectually disabled daughter, against EPS Coomeva, a State health care provider in Colombia. The child required an integrated program of therapy and special education and the mother asserted that EPS Coomeva violated her daughter’s fundamental rights to health, development, and bodily integrity in denying a disabled child the comprehensive care she needed. EPS Coomeva argued that it was the State’s obligation to provide educational services, that special education is not a health service but an educational one and that the applicant was required to pay in accordance with her means.

Holding: The holding of the Court was that EPS Coomeva has violated the child’s right to health by refusing to provide comprehensive treatment and was obligated to provide the child with the treatment she needed. The court thus ordered EPS Coomeva to coordinate with local education agencies to attain a comprehensive medical assessment of the minor, as well as to ascertain the medical and educational services required for her disability [paras. 6.4 and 7].

The Court cited Colombia’s obligations under the ICESCR and the Convention on the Rights of Persons with Disabilities, requiring the State to ensure that persons with disabilities are not denied educational opportunities on the basis of disability, as well as the obligation to ensure reasonable accommodation based on each individual’s requirements [paras. 5.6.1. and]. On the issue of State’s obligation to provide education, the Court affirmed that the local governments have to guarantee availability, access, permanence, and quality while providing education [para. 5.5]. The Court held that education for people with disabilities should preferably be inclusive and special education should be a last resort, but necessary if the same level of education cannot be provided at regular institutions [para.].

The Court also highlighted that children are subject to a special constitutional protection and that this is particularly enhanced with regards to children with disabilities [para. 5.3]. For vulnerable populations, such as persons with disabilities, health providers needed to provide comprehensive care comprising services not included in the State’s mandatory plans. The existence of specialized educational institutions should not be an excuse to deny access to comprehensive medical treatment for children with intellectual disabilities.

As per the Court’s analysis, in the case of a person with intellectual disabilities, State obligations related to health and education must be analyzed in a holistic manner to ensure dignity and equality. The Court observed that there were gaps in the cooperation between health and education agencies as regards protection of disabled people. Therefore, the Court ordered the Ministry of Education and the Ministry of Social Protection to collaborate and in the process thereof, invite the participation of civil society, so as to define their areas of work, create better synergy and plan appropriate mechanisms to meet the needs of the population with disabilities [paras. 6 and 7].

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Decision C-376/10 of the Colombian Constitutional Court

Year: 2009 (Date of Decision: 1 November, 2009)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Core content; Right to education; Children

Summary Background: The plaintiffs filed a constitutional claim challenging the imposition of fees for public primary education.

Holding: The Court ruled that charging tuition for public primary school was a violation of the Constitution and ordered that all such schools in the nation must cease charging students tuition fees [para. VII].

The Court also referenced the Constitutional National Assembly discussions and found that the authors of the Colombian Constitution intended that primary education in the country would be free [para. VI 8.1]. This approach was seen to be in conformity with Colombia’s obligations under international human rights treaties, which constitute a basis for the Constitution.

Additionally, the Court expressed concern that the levy of fees for primary education could pose an obstacle to accessing the education system and realizing the right to education [para. VI 6].

Citing a wide array of international human rights law instruments, the Court concluded that the State has a clear, immediate obligation to guarantee free primary education, while in the case of secondary and higher-level education, the obligation is of a progressive nature [paras. VI.3].

Additional Comments: This case addresses the State duty to respect the human right to education.

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Decision T-291/09

Year: 2009 (Date of Decision: 29 April, 2009)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Right to decent work; Right to life; Right to an adequate standard of living

Summary Background: A group of waste pickers from the City of Cali filed an appeal of legal protection against several municipal entities which had allegedly violated their rights to work and a decent life through the closure of Navarro waste dump. At the Navarro site, the waste pickers had developed over the course of 30 years the economic activity of recycling to provide a livelihood for themselves and their families.

Traditionally recycling activities in Colombia have been undertaken by extremely poor and marginalized sectors of society. But gradually, as recycling became more profitable, a privatization trend set in with waste management companies dominating the scene. In 2008, Colombia enacted legislation penalizing activities associated with informal waste pickers’ work activities. When the City of Cali privatized its waste management system, at the time of the public bidding process, it disregarded prior orders from the Constitutional Court that public agencies take affirmative actions to guarantee the participation of informal recyclers in the privatization process. It was at this time that the Navarro Landfill in Cali was closed. More than 1000 families that worked in that landfill were not permitted to work in the new landfill that replaced the Navarro Landfill. Although they were assured a social reintegration plan that included opportunities of employment, capacity-building programs, health and education, these commitments were never honoured.

Holding: The Court held that municipal authorities had violated the Navarro waste pickers’ fundamental right to a decent life in connection with the right to work [para. III.9.1.1].

The Court also made clear that the defendant entities established discriminatory laws and policies, which had adversely affected the petitioners [para. III.2].

The Court’s ruling decision

  1. developed the precedent established in earlier cases regarding the rights of informal recyclers during the privatization of waste collection,
  2. suspended the bidding process,
  3. ordered the State to adopt all the necessary measures to assure effective implementation of recyclers’ right to health, education and food,
  4. ordered the State to ensure recyclers’ access to education as well as to other social services,
  5. included recyclers in State Solid Waste Disposal Programs of collection, and recognized them as autonomous solidarity-based entrepreneurs,
  6. created a committee to reform the municipal waste management policy of Cali and integrate the informal recyclers into the formal economy of waste management,
  7. ordered emergency measures to be taken to address the Navarro recyclers’ survival needs and
  8. suspended legal and administrative provisions that were adverse to waste pickers’ trade in Cali [para. IV].

The case emphasized the positive measures the State must undertake towards overcoming the material inequality between groups. The Court stated that “Equality is one of the pillars upon which is based the Colombian State. The Constitution recognizes equality as a principle, a value and as a fundamental right that goes beyond the classical equality formula before the law, used to build a postulate that points towards the realization of conditions of material equality. In that perspective, a central objective in the equality clause is the protection of traditionally discriminated or marginalized groups: on one side, as an abstention mandate or interdiction of discriminatory treatment and, on the other side, as an intervention mandate, through which the State is obliged to carry out actions oriented towards the overcoming of the material inequality faced by such groups” [para. III.3].

Additional Comments: The case explores the State’s duty to respect, protect and fulfil.

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Decision T-760 of 2008

Year: 2008 (Date of Decision: 31 July, 2008)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Core content; Right to health;

Summary Background: The judgement came as the culmination of litigation efforts to enforce implementation of the right to health in circumstances that disregarded the constitutional right to health in Colombia.

Holding: In examining Colombia’s international legal obligations, the Court reaffirmed the right to health as constituting a fundamental right [para. II.3.2]. It ordered a dramatic restructuring of the country’s health system to correct structural failures in the Colombian public health sys- tem [para. III.16].

The Court demonstrated its commitment to the minimum core approach by giving very specific content to the right to health, as a right immediately enforceable for certain categories (which it defined in detail) of plaintiffs even though they are unable to afford health care [para. II.3]. For these categories, the Court ordered the provision of a wide range of goods and services, including viral load tests for HIV/AIDS as well as anti-retrovirals, costly cancer medications, and even the financing of treatment of patients abroad when appropriate treatment was unavailable in Colombia, all of which are considerably resource intensive measures. The Court distinguished an essential minimum core of the right to health based on the POS (mandatory health plan)/POSS (subsidized mandatory health plan), which was to be immediately enforceable [para. II.3.2.3.], and other elements that are subject to progressive realization taking into account resource constraints.

The Court’s decision explicitly adopted the right to health framework set out by the CESCR [para. II.3.4]. In keeping with the Committee’s interpretation of the right to health, the Court:

  1. expanded on the multiple dimensions of State obligations that flow from the right to health, and how oversight is essential to protecting the right to health as well as to accountability;
  2. repeated that the State is responsible for adopting deliberate measures to achieve progressive realization of the right to health and that retrogression (backsliding) is generally impermissible; and
  3. declared that the right to health calls for transparency and access to information, as well as for evidence-based planning and coverage decisions based on participatory processes.

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