I/A Court H.R., Case of Gonzales Lluy et al. v. Ecuador. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 1, 2015. Series C No. 298.

Non official brief

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

Facts – The applicants were Talía Gabriela Gonzales Lluy, her mother and her brother, all Ecuadorian nationals. In 1998, when Talía was three years old, she was infected with the HIV virus while receiving a blood transfusion on which the respective sero-logical tests were not done. The blood was obtained from a blood bank of the Red Cross of the province of Azuay and the transfusion was done in a private clinic in Ecuador. At the time of the events, the Ecuadorian Red Cross had exclusive authority to manage blood banks. After Talía was infected, her mother filed several criminal and civil actions seeking that those responsible for her infection were punished, as well as payment of damages. However, the criminal proceedings ended with the tolling of the statute of limitations of the action, given that the defendant did not appear in the proceedings and was not captured. Likewise, the civil proceedings did not progress because, according to the First Chamber of the Superior Court of Justice of Cuenca, civil compensation arising from a criminal offence could not be claimed while there was no enforceable criminal conviction.

 

When Talía was five years old, she was enrolled in a public primary school which she attended for two months until the principal informed her mother that Talía would not be accepted any longer. This decision was taken after a teacher told him that Talía was a person living with HIV. On 8 February 2000 Talía's mother filed a writ of amparo against the Ministry of Education and Culture, the school principal and the teacher, alleging a deprivation of Talía's right to education, and requested her reintegration into school, as well as the payment of damages. However, the domestic court determined that “there was a conflict of interest between Talía's individual rights and the interests of a student conglomerate, and this collision caused social or collective rights to prevail, as it is the right to life vis-à-vis the right to education”. Moreover, the domestic court maintained that Talía could exercise her right to education through special education and distance learning.

 

According to the statements by Talía and her family, they were forced to move multiple times due to the exclusion and rejection they were subjected to because of Talía's condition.

 

Law

 

(a)     Preliminary objection – The State raised two preliminary objections: (i) partial lack of juris- diction of the Inter-American Court to decide on facts not part of the factual framework of the case and on alleged violations of rights that were not established by the Inter-American Commission on Human Rights in its merits report, and (ii) non- exhaustion of domestic remedies.

 

The first point was deemed not to be a preliminary objection. The Inter-American Court further found that the facts presented by the representatives were contained in the factual framework of the case, so that they could argue points of law based on those facts.

The Court rejected the second preliminary objection on two grounds. Firstly, it deemed some of the arguments to be time-barred. Secondly, it found that the remedies invoked by the State were not adequate or effective in light of the facts of the case.

 

(b)     Article 4(1) (right to life) and 5 (right to personal integrity) in relation to Article 1(1) (obligation to respect and ensure rights) of the American Convention on Human Rights (ACHR) – The Inter-American Court recalled that the State bears a duty of supervision and control of health services, even if offered by a private entity. It found that the blood bank that provided the blood that was transfused to Talía was insufficiently monitored and inspected by the State. This had allowed the blood bank to continue providing services under irregular conditions. This serious omission by the State had allowed blood which had not been subjected to the most basic security tests, such as HIV tests, to be delivered to Talía's family for transfusion, resulting in her infection and consequent permanent damage to her health (citing the ECHR judgment in Oyal v. Turkey, 4864/05, 23 March 2010, Information Note 128).

 

The Court came to the conclusion that, because of the severity of the disease and the risk involved at various times to the applicant´s life, the damage to Talía's health constituted a violation of the right to life, given the danger of death she had faced at various times and could face in the future because of her illness. Ecuador had violated the negative obligation not to affect the life of Talía Gonzales Lluy by means of blood contamination, which had occurred while she was in the care of a private entity. This had caused, in moments of deterioration of her defences associated with a lack of access to antiretroviral drugs, threats to her life and a possible risk of death that could re-emerge in the future. The Court therefore found that, as the negligence that had led Talía to contract HIV was attributable to the State, Ecuador was responsible for the violation of the duty to inspect and supervise the provision of health services arising from the right to personal integrity and the obligation not to expose life to risk enshrined in Articles 5 and 4 of the ACHR.

 

It also determined that the Lluy family had suffered stigmatisation as a result of Talia’s condition as a person living with HIV. It noted the constant situation of vulnerability in which the applicant´s mother and brother found themselves because they were subjected to discrimination, ostracised from society and living in precarious economic conditions; in addition they had to devote great physical, material and financial efforts to ensure Talia’s survival and a dignified life for her. The Court established that there were many differences in the treatment of Talía and her family in respect of housing, work and education as a result of her status as a person living with HIV. The State had not taken the necessary measures to ensure Talía and her family access to their rights without discrimination, so that the State’s acts and omissions constituted discriminatory treatment against them. Consequently, the Court concluded that the State was responsible for the violation of the right to personal integrity of Talía's mother and brother, protected under Article 5(1) of the ACHR.

 

Conclusion: violation of Articles 4 and 5, in relation to Article 1(1) of the ACHR, and violation of Article 5(1), in relation to Article 1(1) of the ACHR (unanimously).

 

(c)      Article 13 of the Protocol of San Salvador (right to education) in relation to Article 1(1) and Article 19 (rights of the child) of the ACHR – The Inter- American Court recalled that the right to education was contained in Article 13 of the Protocol of San Salvador. The Inter-American Court has juris- diction to decide on this right in contentious cases under Article 19(6) of the Protocol of San Salvador.

 

The Inter-American Court stressed that the right to education epitomises the indivisibility and interdependence of all human rights. On the basis of standards set forth by the UN Committee on Economic, Social and Cultural Rights, the Court held that in order to ensure the right to education, four essential and interrelated characteristics should be fulfilled in all educational levels: (i) availability, (ii) accessibility, (iii) acceptability and (iv) adapt- ability. In this regard, it concluded that there are three obligations inherent in the right to education of people living with HIV/AIDS: (i) the right to receive timely and unprejudiced information on HIV/AIDS; (ii) a prohibition on banning access to educational centres to people with HIV/AIDS, and (iii) the right that the education promote their inclusion and non-discrimination within the social environment. The Court cited the ECHtR judgment in Kiyutin v. Russia, 2700/10, 10 March 2011, Information Note 139).

 

Regarding Talía's expulsion from school when she was five years old, the Court concluded that the real and significant risk of contagion that would put the health of Talía's classmates at risk was extremely low. It highlighted that under a test reviewing the necessity and strict proportionality of the measure, the means chosen by the domestic authorities constituted the most damaging and disproportionate alternative available in order to protect the integrity of other pupils. Such treatment also evidenced that there was no adaptability of the educational environment to Talía's situation through biosecurity or other similar measures that must exist in any educational establishment for the general prevention of disease transmission.

 

In Talía's case, multiple vulnerabilities and the risk of discrimination had converged intersectionally. The discrimination that Talía suffered was not only caused by multiple factors, but had led to a specific form of discrimination that resulted from the intersection of these factors. In that regard, the Court concluded that Talía had suffered discrimination resulting from her status as a female child living in poverty and with HIV.

 

Conclusion: violation of Article 13 of the Protocol of San Salvador, in relation to Articles 1(1) and 19 of the ACHR (unanimously).

 

(d)     Articles 8(1) (right to a fair trial) and 25(1) (right to judicial protection) in relation to Articles 1(1) and 19 of the ACHR – Having regard to the ECHR´s case-law (among others, X. v. France, 18020/91, 31 March 1992, and F.E. v. France, 38212/97, 30 October 1998), the Inter-American Court found that there was a special obligation to act with due diligence under the particular circumstances of the instant case and Talía's situation in view of (i) the fact that Talia’s integrity was at stake; (ii) the consequent urgency due to her status as a child with HIV, and (iii) the crucial importance of concluding the proceedings so that Talía and her family could gain access to compensation for damages. The Court concluded that this obligation had not been fulfilled by the State.

 

After analysing the four elements to determine the reasonableness of the length of criminal proceedings, and considering that there was a duty to act with exceptional due diligence, the Court concluded that Ecuador had violated the judicial guarantee of a determination of responsibilities within a reasonable time.

 

Regarding the civil proceedings, it held that the evidence before it was insufficient to conclude that their duration had violated the guarantees of due diligence and a determination of rights within a reasonable time. It also deemed that there was insufficient evidence to conclude that the existence of incidental proceedings (prejudicialidad) in Ecuadorian legislation constituted, in itself, a violation of judicial guarantees. Lastly, the Court concluded that the State had not infringed the right to judicial protection in relation to the amparo proceedings, or the criminal and civil proceedings.

 

Conclusion: violation of the guarantee of a reasonable time, established in Article 8(1) in relation to Articles 1(1) and 19 of the ACHR, with respect to the criminal proceedings and no violation in relation to the civil proceedings; no violation of the right to judicial protection recognised in Article 25(1) in relation to Article 1(1) of the ACHR (unanimously).

 

(e)     Reparations – The Inter-American Court established that the judgment constituted per se a form of reparation and ordered that the State: (i) provide, in a timely manner, free medical and psychological or psychiatric treatment to Talía Gabriela Gonzales Lluy, as well as any medicines she required; (ii) publish the judgment and its official summary; (iii) carry out a public act of recognition of international responsibility; (iv) grant a scholarship to Talía that was not subject to obtaining qualifications that make her deserving of a scholarship of excellence, so that she may continue her university studies; (v) grant a scholarship to Talía so that she may pursue postgraduate studies, that was not conditional on her academic performance while studying; (vi) provide Talía with decent housing; (vii) conduct a programme to train health staff on best practices and the rights of HIV patients; and (viii) pay the amount stipulated in the judgment as compensation for pecuniary and non-pecuniary damage and the reimbursement of costs and expenses.