REPORT 02/09
PETITIONS 302-04 AND 386-04
ADMISSIBILITY
J.S.C.H AND M.G.S.
MEXICO
February 4, 2009
I.
SUMMARY
1. The
Inter-American Commission on Human Rights (hereinafter “the Commission”,
“the Inter-American Commission” or “the IACHR”) received two petitions
lodged by Pedro Isabel Morales Ache, Ricardo González Gutiérrez, and
Cynthia Paola Lepe González (hereinafter “the petitioners”): one on April
9, 2004,
on behalf of J.S.C.H., a former driver with the rank of Second Lieutenant
in the Secretariat of National Defense; and the other on April 21, 2004,
on behalf of M.G.S., a former infantry corporal in the Secretariat of
National Defense, (hereinafter the “alleged victims”). The petitions were
lodged against the United Mexican States (hereinafter “the State” or “the
Mexican State” or “Mexico”), for
alleged discrimination against the alleged victims because they were
discharged from the Mexican Army because they have the human
immunodeficiency virus (hereinafter “HIV”), as well as for alleged
violation of their
rights to a fair trial and judicial protection.
2.
The petitioners argue
that the Mexican State is responsible for violation of the rights
enshrined in Articles
4(1), 5(1), 8(1), 9,
11(2), 11(3), 24, 25(1), and 26 of the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”), in connection
with the general obligation contained in Article 1(1) of said
international instrument. The petitioners also assert violation of
Articles 3, 6(1), 9(1), 9(2), 10(1), and 10(2) of the Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social
and Cultural Rights (hereinafter “the Protocol of San Salvador”).
The petitioners hold that they exhausted domestic remedies in keeping with
the provisions of Article 46 of the American Convention and that the
discharge of the alleged victims by the Mexican Army because they have HIV
is part of a policy of discrimination, which was confirmed by the
administrative and judicial authorities that acted in the various domestic
proceedings.
3.
As regards
admissibility requirements, the State has not contested the arguments of
the petitioners with respect to exhaustion of domestic remedies. However,
it maintains that the petitions should be found inadmissible because they
do not state facts that tend to establish a violation of human rights. It
adds, in this connection, that remedies provided by domestic law produced
unfavorable results for the alleged victims, which does not mean that
their human rights were violated. It also holds that in both cases the
six-month deadline established in Article 46(1)(b) of the American
Convention was not met.
4.
In keeping with
Article 29(d) of the Rules of Procedure of the Inter-American Commission
on Human Rights
(hereinafter “the Rules of Procedure of the IACHR”),
petitions
302-04 and 386-04 were joined because they address similar facts.
5.
Without prejudging
the merits of the matter, the Commission concludes in this report that the
petitions are admissible under Articles 46 and 47 of the American
Convention. Accordingly, the Inter-American Commission decides to notify
the parties of the decision and continue with its analysis of merits with
regard to alleged violations of Articles 2, 5(1), 8(1), 11, and 24 of the
American Convention, in conjunction with the general obligation to observe
and ensure rights provided at Article 1(1) of said international
instrument. The Commission also decides to publish this report and include
it in its Annual Report to the OAS General Assembly.
II. PROCESSING
BY THE COMMISSION
1. Petition
302-04 (J.S.C.H.)
6.
On April 9, 2004 the
Commission received the petition by electronic mail. It was stamped on
April 13, 2004 and assigned case number 302-04. The petition requested
precautionary measures in favor of Mr. J.S.C.H.
7.
On April 21,
2005, the IACHR transmitted the pertinent portions of the petition to the
Mexican State and requested it to submit its reply within two months, in
accordance with Article 30(2) of the Rules of Procedure of the IACHR. The
state’s reply was received on July 22, 2005.
8.
The IACHR also received information from the petitioners on the following
dates: June 17, 2004 and September 27, 2004.
Said communications
were duly relayed to the State.
9.
Furthermore, the IACHR received comments from the State on the following
dates: July 26, 2004,
June 21, 2005, and
August 29, 2005.
Said communications were duly transmitted to the petitioners.
10.
On October 3
2008 and date it was decided to join petitions 302-04 and 386-04.
2.
Petition 386-04 (M.G.S.)
11. On
April 21, 2004 the Commission received the petition by electronic mail. It
was stamped on April 23, 2004 and assigned case number
386-04. The
petition requested precautionary measures in favor of Mr. M.G.S.
12.
On May 4,
2005, the IACHR transmitted the pertinent portions of the petition to the
Mexican State and requested it to submit its reply within two months, in
accordance with Article 30(2) of the Rules of Procedure of the IACHR. The
state’s reply was received on August 5, 2005.
13.
The IACHR also received information from the petitioners on the following
dates: June 17, 2004 and September 27, 2004.
Said communications
were duly relayed to the State.
14.
Furthermore, the IACHR received comments from the State on the following
dates: July 15, 2004, July 26, 2004,
July 5, 2005,
August 5, 2005,
September 9, 2005, and August 26, 2008. Said communications were
duly transmitted to the petitioners.
15.
On October 3
2008 and date it was decided to join petitions 302-04 and 386-04.
III.
POSITIONS OF THE PARTIES
A.
Background
16.
The dispute
in this matter concerns the fact that the alleged victims were dismissed
from the Mexican Army because they have HIV.
17.
In both
cases, the alleged victims instituted administrative proceedings as
provided in the Mexican Armed Forces Social Security Law (hereinafter the
“ISSFAM Law”) and then continued to press their claims in the judicial
venue.
18.
In view of
the fact that there is no dispute between the parties over domestic
proceedings, before it moves onto the positions of the parties, the
Inter-American Commission will briefly summarize the administrative
proceedings and the lawsuits brought before the judicial authorities by
the alleged victims. To that end, it is necessary to bear in mind a
number of provisions contained in the ISSFAM Law of June 29, 1976, which
was in force at the time that the alleged victims were discharged from the
Mexican Army:
Paragraph 117 of the
Appended Tables to the ISSFAM Law recognizes as grounds for unfitness:
Susceptibility to
recurring infections attributable to untreatable conditions of cellular or
humoral immunodeficiency of the organism.
Article 22: The
following are cause for retirement:
To reach the age
limit set in Article 23 of this law;
To be rendered unfit
in action or as a result of injuries sustained therein;
To be rendered unfit
in other acts in the line of duty or as a consequence thereof;
To be rendered unfit
in acts outside the line of duty;
To be prevented from
performing military duties by illness that lasts more than six months, in
which case, the Secretary of National Defense or, as appropriate, of the
Navy, may extend this period by up to three months, subject to the opinion
of two active military physicians indicating the possibility of recovery
within that time
Article 197: Based on
the evidence collected, the Secretariat concerned shall issue a notice of
approval of retirement should it deem that the military status of the
interested party is proven, they are in active service, and one or more
grounds for retirement are shown. Otherwise, the Secretariat shall issue a
notice of disapproval of retirement, which shall be based on appropriate
grounds and causes.
These notices shall
be communicated to the serviceman, who will be informed, as appropriate,
of the calculation of his length of service and the rank at which he shall
retire, so that within 15 days he might express his assent therewith or
challenge it and state his objections, which may only refer to the
propriety or impropriety of his retirement, the military rank at which the
interested party should retire, and the calculation of his length of
service.
Should he consider it
appropriate, he may offer evidence in the challenge brief, which shall be
received within 15 days after the foregoing deadline.
1.
Proceedings in the case of J.S.C.H.
19. According
to information provided by the parties, on September 19, 1998, J.S.C.H.,
who was a driver with the rank of Second Lieutenant attached to the
Seventh Section of the Staff of the Secretariat of National Defense, with
19 years of service on his record, was informed by official letter
AD-1-115420 XIII/III issued by the Secretariat of National Defense of: a)
the notice of approval of retirement by reason of unfitness as a result of
acts outside the line of duty (Official Letter SGB-V-32386 of September 4,
1998, signed by the Bureau of Military Justice), and; b) the request for
the issue of a retirement approval notice (Official letter SGB-V-33561 of
September 14, 1998 issued by the Bureau of Military Justice [Dirección
General de Justicia Militar]).
20.
On October 2, 1998,
Mr. J.S.C.H. challenged the retirement approval notice to the Bureau of
Military Justice under Article 197 of the ISSFAM Law then in force. The
alleged victim received notice of final approval of his retirement by
official letter SGB-V-40209 of October 22, 1998, signed by the Bureau of
Military Justice and enclosed in an official letter dated October 27,
1998.
- First
Amparo Application
21.
In response to
official letter SGB-V-40209, on November 25, 1998, Mr. J.S.C.H., filed
amparo action 624/98 with the Second District Court for Administrative
Matters in the Federal District (hereinafter the “Second District Court”),
asserting the unconstitutionality of Article 183 of the Mexican Armed
Forces Social Security Law and of the contents of official letter
SGB-V-40209 of October 22, 1998, and its consequences.
22.
In that proceeding,
he was granted a precautionary measure so that he might continue to
receive medical care and the drugs essential for adequate HIV treatment.
23.
The judgment of
February 9, 1999, issued by the Second District Judge for Administrative
Matters in the Federal District, dismissed the amparo action on the
grounds that: i) final approval of retirement is not an act that
terminates administrative proceedings; and, ii) the amparo suit
should have been filed against the first official letter that contained
the retirement approval notice (SGB-V-33561 of September 14, 1998, served
on September 19, 1998).
24.
Disagreeing with the foregoing judgment, J.S.C.H.
filed a motion to review with the District Court, which decided, on
November 25, 1999, to refer the matter to the Supreme Court of Justice of
the Nation.
The motion to review moved that: i) the appealed judgment violated
Article 151 of the Amparo Law because when the constitutional
hearing was held a decision was omitted on admission of expert testimony
on drugs offered in due time and manner by J.S.C.H.; ii) the appealed
judgment violated the Amparo Law as a result of the failure to
apply Articles 197, 202 and 205 of the ISSFAM Law in view of the Court’s
improper weighing of the complained of acts; iii) Article 183 of the
ISSFAM Law was unconstitutional; and, iv) the discontinuation of medical
assistance to Mr. J.S.C.H. violated Article 4 of the Federal Constitution.
25.
The Supreme Court of
Justice of the Nation settled the first alleged tort by declaring it
impracticable due to the fact that Article 78 of the Amparo Law
provided that “in judgments on amparo the complained of act shall
be weighed precisely as it appears proven to the competent authority and
no evidence that was not presented to said authority shall be or admitted
or considered.” As to the second alleged tort, the Supreme Court deemed
it appropriate to reject the considerations of the Second District Judge
in the amparo action and found that the amparo application
was correctly brought against the final retirement notice issued after the
challenge provided by law had been presented. With respect to the third
alleged injury, the Supreme Court determined that Article 183 of the
ISSFAM Law was constitutional. Finally, in relation to the supposed
violation of Article 4 of the Federal Constitution, the Supreme Court
considered it unviable because the retirement approval notice mentioned
nothing about ceasing to provide medical assistance or supply drugs to Mr.
J.S.C.H.
26.
The Supreme Court
determined that the Collegiate Tribunal for Administrative Matters had
jurisdiction to decide on the legality of retirement approval notices. On
November 22, 2002, the Ninth Collegiate Tribunal for Administrative
Matters of the First Circuit (hereinafter the “Ninth Collegiate
Tribunal”), granted amparo because the authorities that issued
official letter SGB-V-40209 (signed by the Bureau of Military Justice on
October 22, 1998), which contains the notice of final approval of
retirement, lacked jurisdiction and the power to do so.
- Second
Amparo Application
27.
Mr. J.S.C.H. filed a
second Amparo Application with the Sixth District Court for
Administrative Matters in the Federal District (Case 395/99), in which he
asserted the unconstitutionality of: i) Article 209 of the ISSFAM Law;
ii) official letter 308-A1.1.1./10772 of November 30, 1998 (official
letter from the Office for Civilian and Military Security to the ISSFAM
which indicates the retirement pay amount); iii) official letter
AD-1-56325 XIII/III of April 15, 1999, from the Military Transport Bureau
to the Commander of the First Military Region (official letter informing
the Commander of the First Military Region of the retirement of J.S.C.H.;
iv) the execution of the official letters mentioned in the preceding
paragraphs; and, v) any act that might be an effect or consequence of the
official letters mentioned in the preceding paragraphs.
28.
On October 11, 1999,
the amparo application was granted only in respect of official
letter AD-1-56325 XIII/III of April 15, 1999, because said official letter
was not signed. On November 3, 1999, the alleged victim entered a motion
to review the aforesaid judgment with the Fourth Collegiate Tribunal for
Administrative Matters of the First Circuit. In this action, Mr. J.S.C.H.
was granted a precautionary measure so that he might continue to receive
the medical care and drugs that he needed for HIV treatment. The Fourth
Collegiate Tribunal for Administrative Matters of the First Circuit
granted the amparo because it found that official letter of
discharge AD-1-56325 XIII/III of April 15, 1999 was unconstitutional due
to the fact that it did not state grounds and cause and lacked an original
signature.
29.
On February 12, 2001, the Military Attorney General’s
Office, sent official letter J-AMPS-1-4761 to the Office of the Director
General of the ISSFAM which issued a final retirement approval notice on
the grounds that “J.S.C.H. still has the disease, which is cause enough
for the retirement procedure to continue” and it was decided that Mr.
J.S.C.H. was apt for “discharge from active duty and retirement, effective
retroactively as of October 22, 1998.”
On that same date, Mr. J.S.C.H. was notified of official letter
J-AMPS-1-4761 by official letter AMP-II-4755/432.
- Third
Amparo Application
30.
On March 14, 2001,
J.S.C.H. lodged amparo application with the Fifth Court of District
A for Administrative Matters in the Federal District (Case 173/2001), in
which he challenged: i) Articles 22(IV) and 197 of the ISSFAM Law; ii)
official letter J-AMPS-1-4761 of February 12, 2001, which contained the
final retirement approval notice; iii) the execution of official letter
J-AMPS-1-4761 of February 12, 2001; iv) any act that might be a
consequence of official letter J-AMPS-1-4761 of February 12, 2001; v)
official letter J-AMPS-1-4761 of February 12, 2001 in which it was decided
that J.S.C.H. was apt for discharge from active duty and retirement; and,
vi) any act that might be an effect or consequence of official letter
AMP-II-4755/432 of February 12, 2001.
31.
In this proceeding,
precautionary measures were granted to enable Mr. J.S.C.H. to receive
medical treatment and the necessary drugs. In a judgment of March 22,
2002, the Fifth District Court accepted the amparo application on
the grounds that HIV is treatable and, therefore, not consistent with the
grounds for unfitness for duty provided in paragraph 117 of the first
category of tables appended to the ISSFAM Law.
32.
Against this judgment, the Secretariat of National
Defense filed a motion to review with the Ninth Collegiate Tribunal for
Administrative Matters of the First Circuit which was admitted for
processing on May 10, 2002. On June 27, 2002, the Ninth Collegiate
Tribunal for Administrative Matters of the First Circuit (Case
141/2002-1797) overturned the appealed judgment and, based on the
particular characteristics of the case, ordered an expert examination and
a new trial, “given the significance of the individual guarantee involved
in this case, namely the right to health of the citizen, coupled with the
fact that this determination does not affect the principle of egalite
des armes of the parties in the proceeding, since such evidence could
benefit one party as much as the other.
33.
The expert examinations ordered by the Ninth
Collegiate Tribunal for Administrative Matters of the First Circuit were
carried out and a new proceeding on constitutional guarantees was held
before the Fifth Court of District A for Administrative Matters in the
Federal District. The Fifth District Judge for Administrative Matters in
the Federal District rejected the amparo application because it
found that the expert opinions “were not conclusive” and that HIV
treatment “is a palliative, whose object is not to restore the health of
the patient and, therefore, the physical and mental capacities necessary
to deal with their normal activities in the workplace.”
Mr. J.S.C.H. filed a motion to review on June 11, 2003, with the District
Courts for Administrative Matters in the Federal District, which fell to
the Ninth Collegiate Tribunal for Administrative Matters of the First
Circuit. In a decision of September 3, 2003, the Ninth Collegiate Tribunal
for Administrative Matters upheld the appealed judgment. On October 7,
2003, the Fifth District Judge ruled that amparo action 173/2001
was a fully concluded matter. J.S.C.H. was informed of that decision on
October 9, 2003.
2.
Proceedings in the case of M.G.S.
34.
By official letter
SGB-III-37787 of December 7, 2001, the Bureau of Military Justice informed
M.G.S., who held the rank of Infantry Corporal in the Secretariat of
National Defense with 12 years of service on his record, of the decision
of the Secretary General of National Defense notifying approval of his
retirement by reason of unfitness because of acts outside the line of
duty. On December 27, 2001, based on Article 197 of the ISSFAM Law then
in force, M.G.S. expressed his dissent with the “notice of approval of
retirement by reason of unfitness because of acts outside the line of
duty” to the Secretary General of National Defense. Specifically, M.G.S.
requested medical care and that he be provided with the necessary drugs,
as well as the possibility that it be considered a retirement benefit.
35.
By official letter
SAMT-7573 of June 29, 2002, sent by the Administrative Infantry Office to
the Commander of the First Military Region, and served to M.G.S. on July
10, 2002, his discharge was ordered from the Armed Forces on June 30, 2002
and his retirement as of July 1, 2002.
36.
In response to
official letter SAMT-7573 of June 29, 2002, on July 31, 2002, M.G.S. filed
an amparo action (1042/2002-IV) with the Ninth District Court for
Administrative Matters in the Federal District, in which he challenged: i)
the constitutionality of Article 22(IV) of the ISSFAM Law; ii) official
letter SAMT-7573 of June 29, 2002, which notified the discharge from
active duty and retirement of M.G.S.; iii) any act that might be an effect
or consequence of official letter SAMT-7573 of June 29, 2002; iv) official
letter 308-A.1.1.1./5509/02 of May 28, 2002, from the Office for Civilian
and Military Security to the ISSFAM which indicates the amount of
retirement pay due to M.G.S., and other related official letters. He was
also granted a precautionary measure so that he might continue to receive
medical care and the drugs essential for adequate HIV treatment.
37.
In a judgment of
April 9, 2003, the Ninth District Court for Administrative Matters decided
to dismiss the amparo action on the ground that M.G.S. did not
contest the first decision in which the ISSFAM Law was applied, tacitly
consenting to the decision by not lodging an amparo application
within 15 business days after he was notified of official letter
SGB-III-37787 of December 7, 2001, the first document that approved his
retirement. M.G.S. entered a motion to review the aforementioned judgment,
which was assigned to the Ninth Collegiate Tribunal for Administrative
Matters on June 11, 2003. The Ninth Collegiate Tribunal for Administrative
Matters of the First Circuit, in a judgment of September 19, 2003 (Case
R.A. 292/2003-3708), upheld the lower court's judgment.
38.
The Tribunal also
considered that, having filed an administrative objection as provided in
Article 197 of the ISSFAM Law, he should have brought an action for
annulment before the Federal Court of Fiscal and Administrative Justice
pursuant to Article 11(V) of the organic law of the Tribunal. On October
22, 2003, the Ninth District Court, in keeping with Article 113 of the
Amparo Law, set the case aside as a concluded matter. M.G.S. was
informed of that ruling in a decision of October 22, 2003, which was
published on that district court’s list on October 23, 2003.
B. The
petitioners
39. The
petitioners allege that Messrs. J.S.C.H. and M.G.S. were discharged from
the Mexican Army because they have HIV. In this respect, they hold that
discharge from the Mexican army held grave consequences for the alleged
victims: inter alia, cessation of payment of their salaries as servicemen,
loss of the right to receive a pension in accordance with military laws,
and loss of the rights, as members of the armed forces, to receive medical
care and drugs that are essential for adequate treatment of HIV.
40.
The petitioners
allege that the state administrative and judicial authorities acted
inappropriately because through their decisions they validated the
discharge notices issued by the Mexican army to the detriment of the
alleged victims.
41.
As regards Mr. J.S.C.H., who served in the position
of Second Lieutenant Conductor attached to the Seventh Section of the
Staff of the Secretariat of National Defense, with 19 years of service on
his record, the petitioners say that he was diagnosed with HIV on June 16,
1998. They claim that the health care service of the Secretariat for
Family Protection failed to observe the appropriate confidentiality with
respect to the health of Mr. J.S.C.H. and distributed copies of the
medical results to various military authorities, naming Mr. J.S.C.H. as an
HIV carrier. On June 20, 1998, J.S.C.H. was made, without prior, informed
consent, to undergo a compulsory Western Blot test to screen for HIV
antibodies.
42.
The petitioners note that on September 19, 1998,
J.S.C.H. was apprised of the “notice of approval of retirement by reason
of unfitness as a result of acts outside the line of duty.”
In their arguments they describe in detail the process mentioned in the
preceding section of this report and say that the last decision in this
process was issued on October 7, 2003. The alleged victim says that he
was notified of this last decision on October 9, 2003.
43.
As regards Mr. M.G.S., who held the position of
Infantry Corporal in the Secretariat of National Defense, with 12 years of
service on his record, the petitioners note that he was diagnosed with HIV
on July 18, 2001. They claim that the health service of the Secretariat
for Family Protection failed to observe the appropriate discretion with
respect to the health of Mr. M.G.S. and distributed copies of the medical
results to various military authorities, naming Mr. M.G.S. as an HIV
carrier. They hold that on July 28, 2001, Mr. M.G.S. was made, without
prior, informed consent, to undergo a compulsory Western Blot test to
screen for HIV antibodies.
44.
The petitioners say
that the notice of approval of retirement of M.G.S. by reason of unfitness
as a result of acts outside the line of duty was issued on December 7,
2001. In their arguments they describe in detail the process mentioned in
the preceding section of this report and say that the last decision in
this process was issued on October 22, 2003, and published on the district
court’s list on October 23, 2003.
45.
The petitioners argue
that the facts denounced in the petition affected the rights to life,
physical integrity, and health of the alleged victims given that the
precautionary measures which they enjoyed at a number of stages of the
domestic proceedings became inoperable when the decision went against
their claims. According to the petitioners, this meant that they ceased
to be provided with the drugs and medical treatment that people infected
with HIV need, at a time when they lacked the means to support themselves
and their families financially. The petitioners also add that on the
occasions when they were permitted to request that they be supplied with
drugs, in several instances the army medical services failed to provide
them with the drugs they needed on time, citing a supply shortage.
46.
The petitioners say
that the State’s affirmation that steps are taken to prevent persons with
HIV/AIDS from being separated from their jobs is untrue since there is a
"systematic practice" in the Mexican Armed Forces of discharging any
serviceman or woman living with HIV, improperly invoking paragraph 117 of
the first category of tables appended to the ISFAMM Law (published on June
29, 1976), which establishes as a cause of unfitness, “susceptibility to
recurring infections attributable to untreatable conditions of cellular or
humoral immunodeficiency of the organism.”
47.
They argue that at
the time the alleged victims were discharged, Mexican law did not
recognize HIV infection as a cause for retirement from the Army. However,
they say that the ISSFAM Law of 1976 was repealed by the Mexican Armed
Forces Social Security Law published on July 9, 2003, Article 226,
Category One, Paragraph 83 of which provides as a cause for discharge “for
unfitness” from the Mexican Armed Forces to test positive for human
immunodeficiency virus antibodies, confirmed with supplementary tests in
addition to infection with opportunistic germs and/or malignant neoplasia.
In other words, the foregoing proves that the State has continued a
policy of discrimination against servicemen infected with HIV.
48.
As regards
admissibility requirements, they maintain that domestic remedies were
exhausted in accordance with the provisions contained in Article 46 of the
American Convention, and that the discharge of the alleged victims from
the Mexican Army because they have HIV is part of the application of a
policy of
discrimination, which was confirmed by the administrative and judicial
authorities that acted in the various domestic proceedings.
C. The State
1.
J.S.C.H.
49. The
State holds that from July 13 to 17,1998, J.S.C.H. was admitted to the
infectious diseases unit of the Central Military Hospital, where he was
diagnosed positive in an ELISA test for human immunodeficiency virus
antibodies, which diagnosis was confirmed by a Western Blot test. Upon
being diagnosed with HIV, a medical certificate of unfitness was sent to
the Bureau of Military Justice, which proceeded to initiate the retirement
procedure. The State adds that the medical results for the retirement
procedure were transmitted with the appropriate secrecy and protection
used for all military documents in order to avoid an information leak.
50.
The State says that
on September 4, 1998, he was notified of the approval of his retirement
due to unfitness because he had HIV, an ailment covered by paragraph 117
of the first category of tables appended to the Mexican Armed Forces
Social Security Law. The State claims that the notice was communicated to
J.S.C.H. and he was told that he had 15 days to express his assent or
challenge it. That State says that in response to the challenge presented
by the alleged victim on October 2, 1998, the Bureau of Military Justice
found that the alleged victim’s “objections [were] inadmissible” and, on
October 22, 1998, issued the notice of final approval of retirement [due
to unfitness resulting from] acts outside the line of duty.
51.
The State argues that
on November 11, 1998, the Executive Board of the ISSFAM awarded J.S.C.H. a
lump-sum compensation payment of 76,849.44 Mexican pesos. The Secretariat
of Finance and Public Credit adopted a resolution on November 13, 1998, in
which it informed the ISSFAM of the decision.
52.
The Mexican State
says that the notice of final approval of his retirement makes no
reference to discontinuation of medical care or the supply of drugs; on
the contrary, it says that he would retire with all the rights recognized
by the law. During the time that the amparo actions filed by the
alleged victim were being heard, he continued to receive medical care and
drugs from the Secretariat of National Defense, and at present continues
to receive said care as a dependent of his wife, who serves in the Army
and Air Force.
53.
The State holds that
if the Inter-American Commission were to declare this petition admissible
it would be acting as a court of fourth instance, since the facts on which
the petitioners found their complaint have already been decided in the
domestic jurisdiction, even if the outcome was adverse to the alleged
victim’s interests.
54.
Accordingly, the State requests that the petition
under analysis be declared inadmissible in accordance with Articles 47(b)
and 47(c) of the American Convention and Articles 34(a) and 34(b) of the
Rules of Procedure because the provisions contained in Articles 8 and 25
of the Convention have not been violated. The State also considers that
the decisions of the various federal authorities were in accordance to law
and that the judicial authorities did not stray from reason or the law in
their interpretation thereof.
55.
The Mexican State also argues that the petition under
analysis should be declared inadmissible for failure to meet the six-month
deadline set forth in Article 46(1)(b) of the Convention, given that the
final decision of the Fifth Court for Administrative Matters was made on
October 7, 2003, and the petition was lodged with the Inter-American
Commission on September 4, 2004.
2. M.G.S.
56. The
State holds that on July 23 and 24, 2001, M.G.S. voluntarily consented to
laboratory studies to detect human immunodeficiency virus antibodies. On
July 28, 2001, two specialists attached to the Central Military Hospital
certified that M.G.S. was unfit (First Category) because he had tested
positive in an Elisa test to detect HIV antibodies, which was confirmed by
any Western Blot test. The State says that said ailment is covered by
paragraph 117 of the table of diseases appended to the Mexican Armed
Forces Social Security Law in force.
57.
The State notes that
on August 2, 2001, the medical certificate of unfitness was sent to the
Bureau of Military Justice, which proceeded to initiate the retirement
procedure. On December 7, 2001, the Bureau of Military Justice issued the
notice of approval of retirement by reason of unfitness (First Category)
as a result of acts outside the line of duty. The notice was communicated
to M.G.S. and he was told that he had 15 days to express his assent or
challenge it.
58.
The State claims that
M.G.S. challenged the notice on December 27, 2001, and requested only that
he and his dependent be granted medical care. On March 8, 2002, the
Bureau of Military Justice informed M.G.S. that it was out of order to
grant the benefit that he requested since, under Article 197 of the
Mexican Armed Forces Social Security Law, challenges are only admitted
against the propriety or impropriety of retirement, calculation of length
of service, and the rank at which he would retire. Accordingly, the
Bureau continued with the retirement procedure.
59.
On March 8, 2002, the
Bureau of Military Justice confirmed the retirement notice and made it
final. On April 10, 2002, the Executive Board of the ISSFAM, granted
M.G.S. a lump-sum compensation payment of 38,751.57 Mexican pesos. The
State argues that M.G.S. did not receive his final discharge from the
Secretariat of National Defense because he did not extinguish his right to
claim the economic benefit generated by his services in the Armed Forces.
60.
The State holds that
from the moment he enlisted in the Armed Forces, M.G.S. has had access to
the necessary medical services sufficient for the treatment of HIV/AIDS.
The State points out that HIV is an untreatable humoral immunodeficiency;
it is an incurable infection and the care that patients receive is
“palliative, through control of opportunistic infections and delay in the
untreatable deterioration of the immune system, for which there is no
cure.”
61.
The State requests
that the petition under analysis be declared inadmissible in accordance
with Articles 47(b) and 47(c) of the American Convention and Articles
34(a) and 34(b) of the Rules of Procedure because the provisions contained
in Articles 8 and 25 of the Convention have not been violated. The State
also maintains that the fact that the outcomes of the remedies provided by
domestic law were unfavorable does not mean that his human rights had been
violated. The State holds that if the Inter-American Commission were to
declare this petition admissible it would be acting as a court of fourth
instance, since the facts on which the petitioners found their complaint
have already been decided in the domestic jurisdiction, even if the
outcome was adverse to the alleged victim’s interests. The State says that
none of the federal authorities that decided the amparo
applications violated any procedural rules, nor did they stray from
generally recognized principles for the appraisal of evidence.
62.
The Mexican State also argues that the petition under
analysis should be declared inadmissible for failure to meet the six-month
deadline set forth in Article 46(1)(b) of the Convention, since Mr. M.G.S.
was made aware of the final decision of the Ninth District Court on
October 23, 2003, and the petition was lodged with the Inter-American
Commission outside the deadline.
3.
Response of the State with respect to HIV in both cases
63. The
State holds that when they voluntarily enlisted in the Army and the Air
Force, Messrs. J.S.C.H and M.G.S. agreed to abide by military laws and
regulations. Furthermore, the Mexican Armed Forces Social Security Law
sets out the causes and diseases that legally bar military personnel from
continued active military service and, should a serviceman or woman
contract any of the diseases listed in the Disease Tables, that
circumstance is grounds to initiate the retirement for unfitness
procedure.
64.
The State also notes
that under Article 187 of the ISSFAM Law, it is mandatory for the
Secretariats of National Defense and the Navy to carry out medical tests
on all military personnel in the first few months of each year. It was
precisely on the basis of the results of those tests that the retirement
procedures of Mr. J.S.C.H. and Mr. M.G.S. were initiated, by reason of
unfitness for causes outside the line of duty, due to their infection with
HIV/AIDS.
65.
The State maintains
that the plight of the alleged victims is not an act of discrimination but
of enforcement of the law. It also adds that they have not substantiated
a practice of discrimination during the time that their ailments were
known in the Armed Forces, nor did they demonstrate as much during their
retirement procedure.
66.
The State mentions
that the alleged victims had access to all of the remedies provided by
domestic law; however, the decisions under those remedies were unfavorable
to them, which does not mean that their human rights have been violated.
Throughout the administrative procedure for retirement and the amparo
proceedings there was observance of the rights to a hearing, defense,
present evidence, and challenge decisions, in accordance with the
principle of legality and due process, and in keeping with the guarantees
recognized by the Mexican system of laws as well as the American
Convention.
67.
As regards HIV, the
Mexican State says that in both cases the Government adopted the following
measures: First, it made contact with the representative of the
petitioners as soon as the petitions were brought to its attention. As a
result, the need to supply the alleged victims with the care and drugs
that they urgently need was established. Second, it was determined that
the Federal Government should immediately take charge of providing said
care and control the HIV/AIDS, in particular with the necessary treatments
and drugs. Finally, arrangements were made for the Secretariat of Health
and National Defense to enter into agreement by which to ensure that
persons discharged from the Mexican Army do not go without the drugs and
treatment that HIV/AIDS requires.
68.
The State adds that in keeping with the Constitution
and the General Health Law, the National Health System, through the
Secretariat of Health, created the National Center for HIV/AIDS Prevention
and Control (CENSIDA – formerly CONASIDA). The institution has all the
necessary medical infrastructure for treatment of this disease. There is
also a Mexican Official Standard (NOM-010-SSA2-1993), which requires all
health facilities to provide emergency medical care to HIV/AIDS patients,
which must be delivered with responsibility, dignity, and respect.
The State says that it has a free distribution policy on antiretroviral
drugs for anyone who needs them, in keeping with the Antiretroviral
Management Guidelines for persons with HIV/AIDS, regardless of their
insurance status. The State says that in 2003, Mexico achieved universal
supply coverage for all persons who needed antiretroviral drugs.
69.
The Mexican Government says that it has placed the
Condesa and Flora Specialized Clinics in the Federal District at the
disposal of the alleged victims, so that they can go there to receive such
immediate care and treatment as their condition requires. Furthermore,
after obtaining the necessary consent from the representatives of the
petitioners, the Ministry of Foreign Affairs undertook to accompany
J.S.C.H. and M.G.S. to their first appointment to the above-mentioned
clinics, in order to ensure that they receive the appropriate service and
so as to be able to supply information first-hand to the Inter-American
Commission.
IV. ANALYSIS
A. Competence
of the Commission
ratione personæ,
ratione loci, ratione temporis,
and
ratione materiæ
70. The
petitioners have standing under Article 44 of the American Convention to
lodge petitions with the Commission. The petition names as alleged victims
two individuals on whose behalf the Mexican State undertook to observe and
ensure the rights enshrined in the American Convention. Mexico has been a
state party to the American Convention since March 24, 1981, when it
deposited its instrument of ratification. Thus, the Commission has
ratione personae competence to examine the petition.
71.
The Commission is
competent ratione loci to examine the petition because it alleges
violations of rights protected in the American Convention that are
purported to have occurred within the jurisdiction of a state party. The
Commission is competent ratione temporis to examine the complaint
because the obligation to observe and ensure the rights protected in the
American Convention was already binding upon the State at the time the
events described in the petition are alleged to have occurred.
Finally, the
Commission has ratione materiae competence because the petition
alleges violations of human rights protected by the American Convention.
72.
The IACHR is not
competent ratione materiae under its individual petitions system to
make a decision with respect to the petitioners’ allegations with respect
to violation of Articles 3, 6(1), 9(1), 9(2), 10(1), and 10(2) of the
Protocol of San Salvador. Having said that, pursuant to Articles 26 and
29 of the American Convention, the IACHR may consider the provisions
contained in said Protocol in the interpretation of other applicable
provisions of the American Convention and other treaties over which it
does have ratione materiae competence.
Accordingly, the Inter-American Commission shall rely on the articles of
the Protocol of San Salvador to the extent relevant for its interpretation
of the American Convention.
B. Other
admissibility requirements
1. Exhaustion
of domestic remedies
73. Article
46(1)(a) of the American Convention provides that admission of petitions
lodged with the Inter-American Commission in keeping with Article 44 of
the Convention shall be subject to the requirement that the remedies under
domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law. This rule is designed to
allow national authorities to examine alleged violations of protected
rights and, as appropriate, to resolve them before they are taken up in an
international proceeding.
74.
In the instant case, the petitioners and the State
concur that the alleged victims have exhausted all domestic remedies
available in the Mexican State to resolve their situation. The petitioners
hold that the alleged victims invoked and exhausted the remedies under
domestic law. The State, for its part, says that the alleged victims had
access to all the remedies provided by domestic law but that the decisions
under said remedies were unfavorable.
75.
With respect to the
nature of domestic remedies that should be exhausted, the Inter-American
Court has ruled:
Adequate domestic
remedies are those which are suitable to address an infringement of a
legal right. A number of remedies exist in the legal system of every
country, but not all are applicable in every circumstance. If a remedy is
not adequate in a specific case, it obviously need not be exhausted.
76.
The Commission finds,
based on the information in the record, that domestic remedies have been
exhausted. The alleged victims pursued administrative channels to demand
their rights in accordance with Article 197 of the Mexican Armed Forces
Social Security Law then in force, first through the presentation of a
challenge of the decision and later, when their claims were denied, by
filing for a writ of amparo.
77.
The IACHR also notes
that an amparo application may be brought against final decisions.
Article 114 (II) of the Amparo Law of Mexico provides that
amparo shall be sought before the district judge:
II.-
Against decisions not issued by judicial, administrative, or labor
tribunals;
In such
cases, when the complained of act emanates from a proceeding conducted in
the form of a trial, amparo may only be invoked against the final
decision for violations committed in said decision or in the course of the
proceeding, if, as a result of said violations, the complainant was left
without a defense or deprived of the rights that the law in such matters
grants them, unless the amparo action is brought by a person alien
to the dispute.
78.
The Commission notes
that the Supreme Court of Justice of the Nation, in reviewing the
amparo action in the case of J.S.C.H. (No. 494/99), held that the
final notice of mandatory retirement from the Armed Forces concluded the
administrative process and, therefore, it was appropriate to invoke
amparo:
The mandatory retirement of the appellant from active service in the Army
because it was found that he activated a cause for unfitness as result of
acts outside the line of duty constitutes a final decision that may not be
changed by the authorities that issued it. Accordingly, the admissibility
requirement for the amparo action is met..
79.
Indeed, three
amparo and amparo review applications were submitted in the
case of J.S.C.H.; of those, the decisions in the first two concerned
questions of form. The ruling on the third amparo action brought
before the Fifth District Court addressed the merits of the matter and
rejected any violation of the alleged victim’s rights. Said ruling was
upheld by the decision on motion to review R.A. 314/2003-3973 adopted by
the Ninth Collegiate Tribunal for Administrative Matters of the First
Circuit. Thus, on October 7, 2003, the Fifth District Court found that
the aforementioned amparo action was a fully concluded matter.
Under Mexican law that ruling, which was communicated to the alleged
victim on October 9, 2003, was final because it was not subject to
judicial appeal.
80.
However, in the case
of M.G.S., the Commission notes that faced with a situation that dealt
with the same facts, the competent authority, which in this instance was
the Ninth Collegiate Tribunal, adopted a different verdict. The Ninth
Collegiate Tribunal decided to dismiss the case on the grounds that the
alleged victims should have filed the amparo application against
the notice contained in official letter SGB-III-37787 of December 7, 2001,
the first document that mentioned the decision to discharge him from the
Armed Forces, not against the final decision adopted after the challenge
was presented.
81.
Furthermore, the
IACHR finds that in the case of Mr. M.G.S. the final decision adopted by
the Ninth District Court which set the case aside was issued on October
22, 2003, and communicated to the alleged victim on October 23, 2003, by
means of its publication on said district court’s list.
82.
Accordingly, the
Commission finds that M.G.S.’s exhaustion of domestic remedies was in
keeping with Mexico's laws and the case law of the Supreme Court of
Justice, which has held that the final notice of mandatory retirement from
the Armed Forces, following the presentation of the challenge provided by
law, concludes the administrative process. Consequently, the Commission
finds that domestic remedies were suitably exhausted as far as this
analysis of admissibility is concerned.
83.
Therefore, the
Inter-American Commission finds that the remedies provided by Mexican law
have been exhausted and that the petition meets the requirement set forth
at Article 46(1)(a) of the Convention.
2. Filing
period
84. Article
46(1)(b) of the Convention provides that for a petition to be admitted it
must have been lodged within a period of six months following the date on
which the complainant was notified of the final judgment at the national
level.
85.
In the case of J.S.C.H., the Mexican State requests
that the petition be declared inadmissible because in its opinion it was
lodged after the deadline, given that the final decision of the Fifth
Court for Administrative Matters was made on October 7, 2003, and the
petition was lodged with the Inter-American Commission on September 4,
2004.
Accordingly, the State argues that the petitioners failed to comply with
the six-month rule contained in Article 46(1)(b) of the American
Convention.
86.
In this respect, it should be noted that the date on
which the petition was lodged with the Commission was April 9, 2004, and
that the alleged victim was notified of the final decision in the domestic
jurisdiction on October 9, 2003. Therefore, the Commission concludes that
the six-month rule has been met in the instant case.
87.
In the case of M.G.S.,
the Mexican State requests that the petition be declared inadmissible
because it failed to meet the six-month deadline for its presentation. The
State asserts that M.G.S. became aware of the final decision on the
amparo action on October 23, 2003, and his petition was presented
after the deadline provided in Article 46(1)(b) of the American
Convention.
88.
In this regard, the
Commission finds that the decision that exhausted the domestic
jurisdiction was the last ruling communicated to the alleged victim on
October 23, 2003, which was issued by the Ninth District Court, and that
the petition was lodged with the Commission on April 21, 2004; in other
words, within the time limit set by Article 46(1)(b) of the Convention.
89.
Accordingly, the Commission concludes that the
six-month rule has been met in the instant case.
3.
Duplication of international proceedings and res judicata
90. The
petitioners have stated -and there is nothing in the record to suggest
otherwise- that the subject matter of the petition is not pending in
another international proceeding for settlement (Article 46(1)(c) of the
American Convention), or that it is substantially the same as one
previously studied by the Commission or by another international
organization (Article 47(d) of the Convention). Consequently, the
commission finds that both of these requirements set out in the aforesaid
instrument have been met.
4. Colorable
claim
91. The
State holds in the instant case that the petitions should be declared
inadmissible because they do
not describe facts
that disclose a violation of human rights. For their part, the
petitioners argue that the discharge of the alleged victims from the
Mexican army because they have HIV is part of a policy of
discrimination, which was confirmed by the administrative and judicial
authorities that acted in the various domestic proceedings.
92. In
this connection, the Commission considers that it is not appropriate for
it at this stage of the proceedings to determine whether or not the
alleged violations of the victims’ right to a fair trial and the principle
of legality did indeed occur. For the purposes of admissibility, the IACHR
at this time must only decide, pursuant to Article 47(b) of the American
Convention, whether facts have been put forward that, should they be
proven, would constitute violations of same, and, pursuant to paragraph c
of the same article, whether the petition is “manifestly groundless” or
“obviously out of order.”
93.
The standard by which to assess these extremes is
different from the one needed to decide the merits of a petition. The
IACHR must perform a prima facie evaluation and determine if the
complaint provides grounds for an apparent or potential violation of a
right guaranteed by the American Convention, although not whether the
violation has in fact occurred.
At the present stage what is appropriate is to make a concise analysis
that does not entail a prejudgment or the advance of an opinion on the
merits. The Inter-American Commission’s Rules of Procedure, in
establishing one stage for admissibility and another one for merits,
reflects this distinction between the evaluation that the Inter-American
Commission must carry out to declare a petition admissible, and the one
required to establish whether a violation imputable to the State has been
committed.
94.
The Commission finds
that there is nothing in this case to suggest that the petition is
unfounded or out of order. Furthermore, it notes that, prima facie,
if proven, the facts concerning the purported discriminatory treatment of
the alleged victims due to their status as carriers of the HIV virus,
and their resulting discharge from the Mexican Army by the administrative
authorities, decisions which were subsequently confirmed by the judicial
authorities, could constitute a violation of the rights enshrined at
Articles 24 and 8 of the American Convention, in connection with the
obligations set forth in Article 1(1) of that instrument.
95.
The Commission finds
that if a direct causal link is established between “the discharge from
active duty and retirement” of J.S.C.H. and M.G.S., and the alleged
suspension of timely and adequate medical treatment, then it would amount
to a violation of the right to physical integrity recognized in Article
5(1) of the American Convention in connection with Article 1(1) of said
instrument.
96.
As to the allegations
of the petitioners regarding the disclosure by state agents of the alleged
victims’ health condition without observing the necessary confidentiality,
the IACHR finds that, if proven, they could constitute a violation of
Article 11 of the American Convention in connection with Article 1(1)
thereof.
97.
Furthermore, although
the petitioners have not invoked Article 2 of the American Convention, by
virtue of the principle of iura novit curia the Commission will
examine arguments concerning alleged violations of that Article.
98.
The IACHR finds that
the information presented does not disclose a colorable claim of violation
of the rights protected in Articles 4(1), 9, 25(1), and 26 of the American
Convention.
V.
CONCLUSIONS
99. The
Inter-American Commission concludes that it is competent to examine the
merits of this case and that the petition is admissible pursuant to
Articles 46 and 47 of the American Convention. Furthermore, the Commission
has decided to continue its analysis of merits in relation to alleged
violations of Articles 2, 5(1), 8(1), 11, and 24 of the American
Convention, all in connection with the general obligations to observe and
ensure rights provided at Article 1(1) of said international instrument.
In addition, although it is not competent to establish violations of
Articles 3, 6(1), 9(1), 9(2), 10(1), and 10(2) of the Protocol of San
Salvador, the IACHR will give consideration to the provisions that refer
to these rights in its analysis of merits in this case, in keeping with
Article 29 of the American Convention.
100.
Based on the factual
and legal arguments given above,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1. To
declare the instant petition admissible in relation to alleged violations
of rights recognized in Articles 2, 5(1), 8(1), 11, and 24 of the American
Convention in connection with Article 1(1) of said instrument.
2.
To declare
the instant petition inadmissible as regards alleged violations of rights
recognized in Articles 4(1), 9, 25(1), and 26 of the American Convention.
3.
To notify the
parties of this decision.
4.
To publish
this decision and include it in its Annual Report to the OAS General
Assembly.
Approved by the
Inter-American Commission on Human Rights on February 4, 2009.
————————————
RESOLUTION 01/09
MARCH 20, 2009
CASE
12.689
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
HAVING SEEN:
1.
That on
February 4, 2009, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”), without prejudging the
merits of the case, concluded that petitions 302-04 and 386-04 were
admissible, in light of Articles 46 and 47 of the American Convention on
Human Rights, and adopted Admissibility Report No. 02/09;
2.
That on
March 17, 2009, the Commission received a note from the petitioners
requesting that the identity of the alleged victims be protected when
Admissibility Report No. 02/09 “is published by the IACHR, in accordance
with Article 57.1(f) of the Rules of Procedure of the IACHR, out of
respect for their right to privacy, recognized in Article 11 of the
American Convention on Human Rights”;
CONSIDERING:
3. That there is a substantiated request by the petitioners to
protect the identity of the alleged victims when Admissibility Report
No. 02/09 is published,
IN
VIEW OF THE FOREGOING, THE IACHR RESOLVES:
1. At the
time of publication of Admissibility Report No. 02/09, adopted on
February 4, 2009, to protect the identity of the alleged victims and to
replace their names by their initials, with the addition of a footnote
indicating that the identity of the alleged victims is being protected
at the petitioners’ request.
2. To
notify the petitioners and the Mexican State of this resolution.
Done and signed in
the city of Washington, D.C., on the 20th day of March, 2009.
(Signed): Felipe González, Second Vice President; Sir Clare K. Roberts,
Paulo Sérgio Pinheiro, Florentín Meléndez, and Paolo Carozza, members of
the Commission.
The Supreme Court of Justice is competent to take up the motion to
review under Article 107(VIII)(a) of the Constitution, Article
84(I)(a) of the Amparo Law, and Article 10(II)(a) of the
Organic Law of the Federal Judiciary because the motion is brought
against a decision adopted by a district judge in a constitutional
hearing on an amparo action that challenges the
constitutionality of Article 183 of the ISSFAM Law.
See IACHR, Report 44/04, Inadmissibility, Laura Tena Colunga et al.,
Mexico, October 13, 2004. IACHR, Annual Report 2000, Jorge Odir
Miranda Cortez et al., El Salvador, Case 12.249, Report 29/01, OEA/Ser.L/V/II.111
Doc. 20 rev., 284, para. 36.
|