Rights Archives: Right to life

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

Cases No. 19003-2011-00638-Of.1a; No. 19003-2011-00639-Of.2a; No. 19003- 2011-00637-Of.3a; No. 19003-2011- 00641-Of.1

On 03/04/2013 in

Year: 2013 (Date of Decisions (in the order cited above): 3 April 2013; 12 April 2013; 10 May 2013; 31 May 2013)

Forum, Country: Children’s and Juvenile Court; Guatemala

Standards, Rights: Best interests of the child; Core content; Right to adequate food; Right to life; Right to an adequate standard of living; Right to health; Right to housing; Children

Summary Background: The poverty level in the municipality of Camotán in the Guatemalan Department of Chiquimula has chronically been very high and was worsened in 2001 and 2002 as a result of a food crisis, caused by a drought and the effects of a drop in the international price of coffee on the rural economy. The production of coffee was the single most important base for subsistence of the local population. The food crisis generated severe malnutrition and increased child mortality, especially affecting children under 5. Despite the existence of some local government policies to eradicate the famine in the region, the overall situation remained unchanged, which left children of the municipality vulnerable. In November 2011, this led the parents of the girls, Dina Marilú, Mavélita Lucila Interiano Amador and Mayra Amador Raymundo; and the boys Brayan René, Espino Ramírez and Leonel Amador García, supported by the civil society Guatemala Without Hunger Campaign, to file a case in accordance with article 104 of the Law for Integral Protection of Children and Adolescents, which seeks to examine and settle complaints arising from situations that threaten or violate the rights of children and adolescents. The legal proceedings initiated against the State of Guatemala alleged that the State violated through omission the right to food, the rights to life, health, education, and an adequate standard of living and housing, of the children suffering from acute malnutrition in the municipality.

Holding: The Department of Zacapa Court for the Protection of Children and Adolescents and for adolescents in conflict with the criminal law based its legal analysis on national and international law. In particular, the analysis focused on the principle of the best interests of the child as a person with full legal personality, and on the obligation of the State to implement measures and mechanisms to ensure the effective fulfilment of ESC rights.

The Court contemplated the facts in the light of the State’s duties under international instruments, including the ICESCR and the ICRC, to which the State is a party and that guarantee the right to be free from hunger, and the right to adequate food as a fundamental basis for the enjoyment of other human rights [para. C, Análisis de las disposiciones legales correspondientes].

Based on the facts and arguments described above, the Court for Children and Adolescents and the Court for Adolescents in Conflict with Criminal Law of the Department of Zacapa found a violation of the rights to food, life, an adequate standard of living, health and housing of the children parties to the cases and the responsibility of the State of Guatemala for such violations through omission, as it failed to provide effective programs, policies, actions and measures to address the children’s poor health caused by the chronic and acute undernourishment and the lack of adequate food [para. C, Parte resolutiva, I].

In addition, the Court ordered the enforcement of various measures for a comprehensive reparation for the physical, social and psychological damages suffered by the children. These short and longer-term measures included the implementation of policies that guarantee the enjoyment of the right to food, health and adequate housing for the whole family. In particular, the Ministry of Agriculture, Livestock, and Food must deliver food aid to the families of the affected children; and provide seeds and necessary technical support to allow the families to grow adequate food.

In addition, the Court ordered the implementation of various programs such as in the area of health, psychological care and education, which shall enable the development of children in their family environment [para. C, Parte resolutiva, II]

Additional Comments: The expert opinions and reports especially from medical specialists working on child malnutrition, as well as the active support of civil society organizations and a broader social mobilization played a determining role in achieving the decision based on international human rights law standards.

Link to Full Case: https://www.icj.org/guatemala-condenado-porviolaciones-a-derechos-economicos-sociales-yculturales/

Tahirzade v. AMEC

On 15/07/2011 in

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=

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

On 06/04/2010 in

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

Decision T-291/09

On 29/04/2009 in

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

developed the precedent established in earlier cases regarding the rights of informal recyclers during the privatization of waste collection,
suspended the bidding process,
ordered the State to adopt all the necessary measures to assure effective implementation of recyclers’ right to health, education and food,
ordered the State to ensure recyclers’ access to education as well as to other social services,
included recyclers in State Solid Waste Disposal Programs of collection, and recognized them as autonomous solidarity-based entrepreneurs,
created a committee to reform the municipal waste management policy of Cali and integrate the informal recyclers into the formal economy of waste management,
ordered emergency measures to be taken to address the Navarro recyclers’ survival needs and
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.

Link to Full Case: http://www.corteconstitucional.gov.co/relatoria/2009/t-291-09.htm. English translation accessible at: http://www.scribd.com/doc/31696786/04-4-English-Judgement-T-291-09-of-the-Constitutional-Court-of-Colombia

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

On 08/07/2008 in

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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