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Right holders Archives: Children

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/

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Reyes Aguilera, Daniela v. Argentina

On 05/02/2013 in

Year: 2013 (Date of Decision: 5 February, 2013)

Forum, Country: Supreme Court; Argentina

Standards, Rights: Reasonableness; Proportionality; Nondiscrimination and equal protection of the law; Right to health; Right to social security; Right to an adequate standard of living; Children; Persons with Disabilities; Migrants

Summary Background:

The petitioners in the case asked for a court order compelling the Comisión Nacional de Pensiones Asistenciales (national agency in charge of welfare pensions) to grant a disability pension to Daniela Reyes Aguilera, a 12-year-old Bolivian girl with a severely disabling condition. On the basis of national constitutional law and international human rights law, the petition challenged a discriminatory regulation requiring immigrants to prove 20 years of residence in Argentina to become eligible for a disability pension.

Holding: The Court decided the case in favour of the petitioners and declared that Daniela was entitled to obtain benefits.

The Court affirmed that there is a cognizable human right to social security. The eligibility requirement of 20 years residency for immigrants to receive disability pension was found to be unconstitutional as it was not justified [pp. 8, 27, 34 and 41], was unreasonable (“irrazonable”) [p. 39] and was a disproportionate limitation to the right to social security. The decision also cited other grounds for unconstitutionality of the rule including breach of the right to non-discrimination on the basis of national origin [p. 2 and p. 36], as well as violation of the rights to life [pp. 15], equality before the law [p. 5, 19] and right to health and social security [p. 7].

Additional Comments: The strict scrutiny test was applied. It is also important to note that since the judgement applied only to the case brought before the Court, Daniela did receive a disability award as per the Court’s decision but the residency requirement rule for immigrants was not altered.

Link to Full Case: http://www.cels.org.ar/common/documentos/reyes_aguilera.pdf, summary in English at http://www.escr-net.org/docs/i/1091579

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Control of constitutionality – interlocutory action (Giudizio di legittimità costituzionale in via incidentale)

On 12/12/2011 in

Year: 2011 (Date of Decision: 12 December, 2011)

Forum, Country: Constitutional Court; Italy

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

Summary Background: Juveniles of non-European Union origin with disabilities and without a long-term resident permit, which can be acquired only after five years of permanent residency, and their families were excluded from the benefits of financial assistance (indennità di frequenza). The allowance aims at helping disabled juveniles and their families who face economic difficulties in covering the medical needs, as well as other special needs they may have, in the area of education and vocational training to promote their integration in society. The Genoa Court of Appeal referred the case to the Constitutional Court for the review of the constitutionality of this discrimination in the assignment of this social benefit (article 80.19 of Law no. 388 of 23 December 2000).

Holding: Pursuant to article 117.1 of the Constitution, which requires legislation to comply with international obligations, the Constitutional Court considered that the exclusion from the assistance scheme of non EU disabled juveniles and their families to be in breach of the right to non-discrimination as guaranteed under article 14 of the ECHR and of article 3 of the Constitution providing for equality of treatment [Considerato in diritto, para. 5]. The Court also found violations of article 32 of the Constitution, protecting the right to health; article 34, protecting the right to education; and article 38, protecting the right to social assistance [Considerato in diritto, para. 1].

Additional Comments: The Court makes an implicit distinction between documented and undocumented migrants. This decision is thus limited to the discrimination between citizens and documented migrants based on the long-term nature of the permit. The Court alludes to the possibility of a different outcome in respect of undocumented migrants, considering the existing ECtHR jurisprudence.

Link to Full Case: http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2011&numero=329

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Decision T-841

On 03/11/2011 in

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.

Link to Full Case: http://www.corteconstitucional.gov.co/relatoria/2011/t-841-11.htm

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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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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

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