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Principles and standards Archives: Human dignity

Judgement of the Federal Constitutional Court, 1 BvL 10/10

On 03/09/2014 in

Year: 2012 (Date of Decision: 18 July, 2012)

Forum, Country: Constitutional Court; Germany

Standards, Rights: Core content; Human dignity; Welfare State; Right to an adequate standard of living; Right to social security; Migrants

Summary Background: The issue at stake was whether the amount of cash benefits for asylum seekers was compatible with the fundamental right to a minimum level of existence as emerging from the right to human dignity (article 1.1 of the Basic Law) read in conjunction with the principle of a social welfare State (article 20.1 of the Basic Law).

Holding: The Court held that the provisions governing the cash benefits in question violate the fundamental right to the guarantee of a dignified minimum existence protected under the German Basic Law [paras. 1 and C.I.1]. This right is universal and applies to both nationals and foreign citizens [para. C.I.1.a]. It includes “…both humans’ physical existence, that is food, clothing, household items, housing, heating, hygiene and health, and guarantees the possibility to maintain interpersonal relationships and a minimal degree of participation in social, cultural and political life, since a human as a person necessarily exists in social context.” [para. C.I.1.b]. The benefits in question were just not enough to live a dignified standard of life.

The Court found that the benefits had not been altered since 1993, despite significant price increases in Germany and stated that adequate benefits have to be established in the particular context of circumstances in Germany. The Basic Law does not allow that needs for a dignified life be calculated at a lower level by referring to the existence levels in the country of origin or in other countries [para. C.I.1.d].

The Court was clear that political considerations must not undermine the principle of existenzminimum, stating that “Migration-policy considerations of keeping benefits paid to asylum seekers and refugees low to avoid incentives for migration…may generally not justify any reduction of benefits below the physical and socio-cultural existential minimum existence… Human dignity…may not be modified in light of migration-policy considerations” [para. C.II.2.c]. Further, the Constitution did not allow for differentiation among recipients of basic social benefits in accordance to their residence status; the legislature must always be guided by the concrete needs to secure a person’s existence [para. C.I.1.dd].

In addition the Court indicated that it was not clear that a realistic, needs-oriented calculation had been made in determining the amount of benefits. The decision mandates that it must be possible to calculate the amounts in a transparent manner that responds to actual and current needs [para. C.I.1.f].

In conclusion, the Court ordered the legislature to immediately enact new provisions in relation to cash benefits for asylum seekers that would secure them a dignified minimum existence. As an interim measure, the Court also put into place a transitional arrangement for the payment of increased cash benefits [paras. D.1 and 2].

Additional Comments: The decision also refers to the margin of appreciation principle in holding that the State enjoys such a margin in determining the form in which the benefits are given (in cash, kind or services) and the amount of the benefits to secure a minimum existence [para. C.I.1.d].

Link to Full Case: https://www.bundesverfassungsgericht.de/en/decisions/ls20120718_1bvl001010en.html

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Patricias Asero Ochieng and 2 others v. the Attorney-general & Anotherke

On 03/09/2014 in

Year: 2012 (Date of decision: 20 April, 2012)

Forum, Country: High Court; Kenya

Standards, Rights: Human dignity; Right to health; Right to life

Summary Background: Case centres on a challenge to the constitutionality of the Anti-Counterfeit Act 2008, due to the negative impact of the Act on access to generic HIV/AIDS medication. Sections of the Act appeared to inappropriately conflate generic drugs with counterfeit medicine. The application of these sections would result in civil and criminal penalties for generic medicine manufacturers and thus harshly restrict access to affordable medicine in Kenya. This lack of access in turn would impair the right to life, health and human dignity.

Holding: The Court, in agreement with the impact assessment of the Act as outlined by the petitioner, held that the sections in question were unconstitutional and concluded that it is incumbent on the state to reconsider the provisions of section 2 of the Anti-Counterfeit Act [paras. 87 (b)(v) and 88].

The Court held that the right to life, human dignity and health as protected by the Constitution encompasses access to affordable and essential drugs and medicines including generic drugs and medicines [para. 87(a)].

It further held that fundamental rights (for instance the rights to life, human dignity and health) take precedence over intellectual property rights [para. 86].

The Court in its decision referenced the ICESCR as well as General Comment No. 14 on the Right to Health and stipulated that the State’s failure to put in place conditions in which its citizens can lead a healthy life means that it has violated, or is likely to violate, their right to health [paras. 58-59 and 61-63].

Additional Comments: This case examines State’s obligations in the context of ESC rights, particularly the duty to respect and protect.

Link to Full Case: http://donttradeourlivesaway.files.wordpress.com/2012/04/kenya-judgment-petition-no-409-of-2009.pdf

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Decision T-974/10

On 30/11/2010 in

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 5.6.2.2.2]. 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. 5.6.2.2].

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].

Link to Full Case: http://www.corteconstitucional.gov.co/relatoria/2010/t-974-10.htm

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Western Cape Forum for Intellectual Disability v. Government of the Republic of South Africa, Government of the Province of Western Cape, Case no: 18678/2007

On 11/11/2010 in

Year: 2010 (Date of Decision: 11 November, 2010)

Forum, Country: High Court; South Africa

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

SummaryBackground: This case concerned the rights of severely and profoundly intellectually disabled children in the Western Cape and allegations that their educational needs were not being adequately met by the South African national and Western Cape Governments. Children with such disabilities were unable to receive care except at limited places in centres run by NGOs, which were insufficient in number. Children who could not obtain access to these centres received no education at all. It was contended that State educational provisions made for these children were very much reduced as compared to other children and any provisions made were inadequate to cater to the educational needs of the affected children.

Holding: The Court held that the respondents (the South African and West Cape Governments) had failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the rights of children to a basic education, protection from neglect or degradation, equality, human dignity [para. 52 (1)].

On the right to education, the Court found that the State had violated this right, both in respect of the positive dimension of the right, by failing to provide the affected children with a basic education and also in respect of the negative dimension of the right, by not admitting the children concerned to special or other schools [para. 45]. The Court found no justification for this violation. The State failed to establish that their policies were reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom [para. 42].

The Court additionally held that the children’s rights to dignity had been violated as the discrimination they have faced had in effect caused them to be marginalized and ignored [para. 46]. The failure to provide the children with education placed them at the risk of neglect, as it meant that they often had to be educated by parents who did not have the skills to do so and are already under strain. The inability of the children to develop to their own potential, however limited that may be, is a form of degradation. This unjustifiably violated their right of protection from neglect and degradation [paras. 46 and 47].

In light of these findings, the judgement required the State to take reasonable measures (including interim steps) to ensure access to education for every child in the Western Cape who was severely and profoundly intellectually disabled, provide necessary funds for special care centres and transportation of the children to these centres and to develop a plan of action to remedy the aforementioned violations [para. 52].

Additional Comments: The national Government chose not to appeal this decision.

Link to Full Case: http://www.saflii.org/za/cases/ZAWCHC/2010/544.html

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Joseph v. City of Johannesburg, Case CCT 43/09

On 09/10/2009 in

Year: 2009 (Date of Decision: 9 October, 2009)

Forum, Country: Constitutional Court; South Africa

Standards, Rights: Procedural fairness; Human dignity; Right to adequate housing

Summary Background: In this case, the applicants sought a declaration regarding their entitlement to notice before municipal agencies terminated their power supply. Although the applicants who were tenants had regularly paid the owner of their building their electricity bills as part of the rent, the owner had run up arrears, due to which the City of Johannesburg’s electricity service provider, City Power, discontinued supply, giving notice to the owner, but not the tenants with whom City Power has no contractual relationship. The applicants lived without electricity for around one year, as they could not afford to move.

Holding: In this case, violation of human dignity was argued as the termination of electricity supply constituted a retrogressive measure violating the negative obligation to respect the right to adequate housing protected under the Constitution; however the case was primarily decided on the basis of the procedural fairness principle [paras. 2 and 32].

The Court held that electricity is one of the most important basic municipal services and that municipalities have constitutional and statutory obligations to provide electricity to the residents in their area as a matter of public duty [paras. 34-40]. The Court thus affirmed that the applicants were entitled to receive this service as a public law right [para. 40].

The Court further held that the government was required to act in a manner that is responsive, respectful and in conformity with procedural fairness when fulfilling its constitutional and statutory obligations [para. 46]. The Court outlined the importance of procedural fairness in the following terms: “Procedural fairness … is concerned with giving people an opportunity to participate in dignity and worth of the participants, but is also likely to improve the quality and rationality of administrative decision-making and to enhance its legitimacy” [para. 42]. Accordingly, the Court decided that in depriving the tenants of a service they were receiving as a matter of right, City Power was obliged to afford them procedural fairness before taking a decision which would materially and adversely affect that right [para. 47]. The Court found that procedural fairness in this case included adequate notice (containing all relevant information) at least 14 days before disconnection [para. 61]. Implied in the affording of such notice is that users of the municipal service may approach the City, within the notice period, to challenge the proposed termination or to tender arrangements to pay off arrears [para. 63]. The order also declared that, to the extent the electricity by-laws permit the termination of electricity supply “without notice”, these by-laws are unconstitutional.

In addition the discontinuation of electricity supply to the applicant’s residence was found to be unlawful and the City was ordered to reconnect the building immediately [para. 78].

Additional Comments: This case addresses the State’s duty to respect ESC rights.

Link to Full Case: http://www.saflii.org/za/cases/ZACC/2009/30.html

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Diau v. Botswana Building Society

On 19/12/2003 in

Year: 2003 (Date of Decision: 19 December, 2003)

Forum, Country: Industrial/Labour Courts; Botswana

Standards, Rights: Non-discrimination and equal protection of the law; Reasonableness; Human dignity; Right to decent work

Summary Background: The applicant employee challenged the lawfulness and constitutionality of the respondent employer’s termination of her employment contract. The applicant contended that her refusal to undergo an HIV/AIDS test was “unreasonable” and in violation of sections 3, 7(1), 9(1) and 15(2) of the Botswana Constitution, and that the six month imposed probationary period of work exceeded the requisite three months permitted for “unskilled workers” as per section 20(1) of the Employment Act. The Court determined the applicant had in fact been an “unskilled worker” and affirmed the unlawfulness of the termination of the contract past the three-month probationary period. The imposition of the HIV test and subsequent termination was held to be in violation of the right to dignity and liberty.

Holding: The Court addressed the issue of whether the respondent’s termination of the employment contract shortly after the employee’s refusal to take an HIV test amounted to unfair discrimination, violation of privacy, dignity and liberty. While the reasons for termination were not expressly confirmed by the respondent, the Court took the view that the applicant’s dismissal without valid reason was clearly linked to her refusal to submit to an HIV test.

The Court noted that while Botswana does not provide binding legislation governing issues of HIV/AIDS and the workplace, the National AIDS Policy is consistent with the World Health Organization, SADC Code of Good Practice on HIV/AIDS and Employment (1997), HIV/AIDS and Human Rights: International Guidelines, United Nations (1998) and ILO guidelines on HIV/AIDS in the workplace, which encourage voluntary testing and denounce compulsory employment testing in determining one’s fitness to work [p. 12, para. D].

The Court acknowledged the stigmatization perpetuated by such mandatory measures and the “grossly unreasonable and unjust” consequences of employment terminated following a finding of an HIV positive result. The Court recalled the South African case of Hoffman v. South African Airways (2002), in which an individual successfully completed a four stage interview process and medical examination for a cabin attendant position, yet whose report was marked “unsuitable ” following an HIV positive test result [p. 13, para. D].

The Court went on to assess the specific violations of constitutional rights alleged by the applicant.

The right to privacy

Section 9(1) of the Constitution – Prohibits unauthorized search of the person, yet in this case no actual invasion took place as the applicant refused to submit to a test. Thus the right to privacy was not violated.

The right to non-discrimination

Section 15 of the Constitution – The Court referred to the contention that the applicant’s refusal to submit to an HIV test was due to a suspicion that she was likely to be HIV positive. While it could thus be inferred that the respondent terminated the contract on the “suspicion or perceived HIV positive status of the applicant,” there is no evidence to support that the applicant was in fact suspected to be HIV/AIDS positive. The respondent’s conduct thus could not be discriminatory, as no evidence demonstrated dismissal on the grounds of this suspicion.

Notably, the Court affirmed that the list of unconstitutional grounds of discrimination is not exhaustive, and that the ground of HIV status or perceived HIV status would be considered to be an unlisted ground under section 15(3) of the Botswana Constitution. Additionally, the Court noted that the principle of equality does not prohibit treating people differently, but rather “people in the same position should be treated the same,” free from irrational or unjustifiable discrimination [p. 18 at para. D].

The right to dignity

Section 7(1) of the Constitution – Quoting Ngcobo J in Hoffman v. South African Airways (2002), the Court noted that “Society’s response to (people living with HIV) has forced many of them not to reveal their HIV status for fear of prejudice. This has in turn deprived them of the help they would otherwise have received. People who are living with AIDS are one of the most vulnerable groups in society (and) the impact of discrimination on HIV positive people is devastating.” [p. 18 para. E].

The Court concluded the respondent’s conduct was inhumane and degrading, as he imposed upon the applicant the choice between protecting her employment by undergoing the test and simultaneously violating her right to privacy and bodily integrity, or insisting upon this right and losing her employment. This infringement of the right to dignity was found to be “demeaning, undignified, degrading and disrespectful to the intrinsic worth of human beings.” [p. 18 para. H].

The right to liberty

Section 3(a) of the Constitution- ‘Liberty’ was understood by the Court to include the right of individuals to make inherently private choices, free from irrational and unjustified interference by others. These involve those inherently personal matters that “go to the core of what it means to enjoy individual dignity and independence” [p. 20, para. A]. On the facts, the Court deemed that the choice to take an HIV test was fundamentally personal and relating to individual autonomy, and thus the respond ent’s imposition of an HIV/AIDS test coupled with the employee’s dismissal infringed the applicant’s right to liberty.

Additional Comments: The Court noted that “even the remotest suspicion of being HIV/AIDS positive can breed intense prejudice, ostracization and stigmatization” [p.18, para. H], highlighting the necessity to analyse such cases with particular scrutiny.

Link to Full Case: Diau v. Botswana Building Society, 2003 (2) BLR 409(IC), Industrial Court, Gaborone, Case No. IC No 50 of 2003, available at http://compendium.itcilo.org/en/compendium-decisions/industrial-court-of-botswana-sarah-diau-v.-botswana-building-society-19-december-2003-no.-ic-50-2003

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