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Rights Archives: Right to health

Tahirzade v. AMEC

Year: 2011 (Date of Decision: 15 July, 2011)

Forum, Country: Constitutional Court, Azerbaijan

Standards, Rights: Right to decent work; Right to health; Right to life

Summary Background: Mr Tahirzade initiated civil proceedings against the “AMEC Services Limited” company, claiming compensation for harm caused to his health in the performance of his employment. The assessment of this claim required an interpretation by the Constitutional Court of the expressions “employer, guilty (completely or partially)” and “through employer’s fault” contained in the text of article

1. The employer who is fully or partially responsible for unfortunate incidents or work related illness is to pay in full both compensation for losses or poor health of the employee, and his medical bills for curing himself, and also pay the costs of social security organizations which paid the employee pension and stipends. 2. The employee who has suffered health problems as a result of production accidents or work illnesses that were employer’s fault, or family members and other dependents of an employee who has died because of the same reasons are to be paid a lump sum amount, monthly payments, and other extra fees related to the unfortunate incident as specified by law.
of the Labour Code.

Holding: The Court addressed the right to work as enshrined in article

I. Labor is the basis of personal and public prosperity. II. Everyone has the right to choose independently, based on his/her abilities, kind of activity, profession, occupation and place of work. III. Nobody might be forced to work. IV. Labor agreements are concluded voluntarily. Nobody may be forced to conclude labor agreement. V. Based on decisions of the law court there might be cases of forced labor, terms and conditions being specified by legislation; forced labor is permissible due to orders of authorized persons during the term of army service, state of emergency or martial law. VI. Everyone has the right to work in safe and healthy conditions, to get remuneration for his/her work without any discrimination, not less than minimum wages rate established by the state. VII. Unemployed persons have the right to receive social allowances from the state.III. The state will do its best to liquidate unemployment.
of the Constitution. As per article 35.I, the right to work impacts on the welfare and development of individuals and families and plays a vital role in both personal and public wellbeing. The Court affirmed the right to fair payment of wages and safe working conditions. It reaffirmed the legal protection of the right to safe and healthy working conditions and to receive payment from employment at or above the minimum wage set, and free from discrimination (article 35.VI Azerbaijan Constitution.) The Court emphasized the link between this right and the rights to life and health.

With regard to financial liability and compensation for violation of labour safety regulations, an employer may only be held liable where their guilt is proven. The Court considered article 239 of the Labour Code and held that an employer will only be liable for harm suffered to an employee’s health due to violations of labour safety standards where the employer is at fault. Article 239 of the Code requires an employer guilty of occupational accident or illness to pay full compensation to the employee for damage resulting from the injury, as well as costs of treatment, benefits and other additional costs established by the Civil Code.

According to the text of article 239 of the Labour Code, regardless of the full or partial fault of an employer, where the conditions in article 191 of the Code are satisfied (a. detection of actual damage, b. the act/omission of the guilty party contradicts a law and c. causal link between act/omission and damage suffered), the employer bears full responsibility for providing redress to the employee.

Link to Full Case: http://www.codices.coe.int/NXT/gateway.dll/CODICES/precis/eng/eur/aze/aze-2012-2-002?f=templates&fn=default.htm&vid=

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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 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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Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors, W.P.(C) No. 8853 of 2008

Year: 2010 (Date of Decision: 6 April, 2010)

Forum, Country: High Court; India

Standards, Rights: Right to life; Right to health; Right to adequate food; Women; Children

Summary Background: This case addressed separate petitions dealing with the violation of the constitutional and reproductive rights of two women below the poverty line who were denied access to adequate maternal care, both during and immediately after their pregnancies. Lack of access to health services resulted in the death of one of the women.

Holding: The Court ruled that there had been a complete and systemic failure on the part of the Government to effectively implement the pre- and post-natal services available under State-sponsored schemes to reduce maternal and infant mortality. This severely affected not just the two women on whose behalf the petitions were brought, but also a large number of women and children placed in similar positions across the country [paras. 1, 2 and 40].

The Court underscored how the petition focused on two inalienable survival rights that form part of the right to life: the right to health (which would include the right to access and receive a minimum standard of treatment and care in public health facilities) and in particular the reproductive rights of the mother. The other right, calling for immediate protection and enforcement in the context of the poor, was the right to food [paras. 2 and 19]. Drawing on international human rights law and national jurisprudence, the Court illustrated how all these rights are interrelated and indivisible. The legal basis on which the Court determined this case and found violations of core constitutional rights was essentially the need to preserve, protect and enforce the different facets of the human right to life protected under article 21 of the Constitution [paras. 19-27].

The judgement considered that the onerous burden on the poor to prove their eligibility for health services, exemplified by the requirement to show a valid ration card to access services, constituted a major barrier for them to access services; and emphasized that the Government had an obligation to create easier access to these essential services and ensure coverage of as much of the target population as possible [para. 48].

The Court declared that: “when it comes to the question of public health, no woman, more so a pregnant woman should be denied the treatment at any stage irrespective of her social and economic background. This is where the inalienable right to health which is so inherent to the right to life gets enforced” [para. 48].

Additional to compensation for the claimants [paras. 55 and 56-61], the Court determined that maternal health schemes themselves needed reform; that access to health services should be available across the State; that clarification be made regarding overlapping provisions and gaps in the various schemes; and that the administration of these schemes be overhauled [para. 62 (i), (ii), (iii), (iv)].

Additional Comments: This case is particularly interesting in relation to the remedies and orders decided by the Court.

Link to Full Case: http://www.escr-net.org/sites/default/files/Mandal_Court_Decision.pdf

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South Fork Band Council and others v. United States Department of the Interior

Year: 2009 (Date of Decision: 3 December, 2009)

Forum, Country: Court of Appeals, United States of America

Standards, Rights: Right to free exercise of religion; Rights to water and sanitation; Right to adequate housing; Right to health; Indigenous people

Summary Background: The plaintiff appellants comprised the South Fork Band Council of Western Shoshone Nevada and other tribes and organizations (“the Tribes”). The Tribes sought an emergency injunction regarding the approval of a gold mining project by the US Department of Interior and its Bureau of Land Management (“BLM”) located in a sacred site. The project involved ten years of mining and up to three years of ore processing, and would allegedly create a “substantial burden to the exercise of religion.” Domestic law prohibits governmental entities from imposing such burdens unless the government can show that the practice is in furtherance of a “compelling governmental interest” and is the “least restrictive means” of furthering that interest (US Code §2000bb-1). The injunction was denied by the Federal District Court. The appellants alleged violations of the Federal Land Policy Management Act (“FLPMA”) and the National Environmental Policy Act (“NEPA”) and sought an injunction to be granted on appeal.

Holding: To be granted injunctive relief, the Court required that the appellants demonstrate they were likely to “suffer irreparable harm” if a preliminary injunction were denied, that the balance of equities tipped in their favour and that an injunction was in the public interest [para. 14]. In addition, it was necessary to show the BLM’s actions were either arbitrary and capricious or contrary to law [p. 15828].

While the Court declined to find that the appellants had demonstrated the likelihood of success for their FLPMA claims given the in-depth Environmental Impact Statement undertaken by the respondents in consultation with the Tribes and public over a two-year period, it did grant an injunction regarding the NEPA actions to allow a study that adequately considered the environmental impact of “millions of tons of refractory ore,” the adverse impact on local springs and streams, and the extent of fine particulate emissions [pp. 15828 and 15831-15840].

Additional Comments: This case is relevant to the broader framework of issues raised by international human rights bodies condemning the failure of US federal policy to protect Indian land rights and environmental law (see, for instance, the western Shoshone petition to the UN Committee on the Elimination of Racial Discrimination (2006) and the Inter-American Commission on Human Rights (2002).)

Link to Full Case: http://cdn.ca9.uscourts.gov/datastore/opinions/2009/12/03/09-15230.pdf

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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.

Link to Full Case: http://www.alcaldiabogota.gov.co/sisjur/norma s/Norma1.jsp?i=33490

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Mendoza Beatriz Silva et al v. State of Argentina et al, File M. 1569. XL

Year: 2008 (Date of Decision: 8 July, 2008)

Forum, Country: Supreme Court; Argentina

Standards, Rights: Right to life; Rights to water and sanitation; Right to health

Summary Background: This case was filed by residents of the Matanza/Riachuelo basin against the national Government of Argentina, the Province of Buenos Aires, the City of Buenos Aires and several private companies. The suit sought compensation and a remedy for the environmental damage stemming from pollution of the basin. The petitioners further demanded the halting of contaminating activities.

Holding: The Court decided in favour of the petitioners and ordered the Government respondents to take affirmative measures to improve the residents’ quality of life, remedy the environmental damage and prevent future damage.

In its decision, while the Court did not explicitly frame the analysis within human rights law, it focused on issues that have dramatic impact on and relevance for human rights, including the rights to life, health, water, sanitation and a healthy environment.

The Court established an action plan mandating the Government agency responsible for the Matanza/Riachuelo basin to undertake the following: facilitating better information flow to the public [para. 17. II]; containing and cleaning up industrial pollution [para. 17. III]; expanding water supply as well as sewer and drainage facilities [para. 17, VI-VIII]; creating an emergency health plan [para. 17, IX]; and adopting an international monitoring framework as a yardstick to assess compliance with the plan’s goals. The Court directed the goal should primarily be to improve the quality of life for residents [para. 17, I].

Additional Comments: Although the case did not adopt an explicit human rights approach, it clearly highlighted the State’s duty to respect, protect and fulfil rights. The remedies ordered are particularly comprehensive and a mechanism for monitoring compliance and enforcement is included.

Link to Full Case: Accessible at: http://www.escr-net.org/docs/i/1469153. English translation accessible at: http://www.escr-net.org/docs/i/1469150

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