justiciable economic, social and cultural rights that are derived from Article 26 of the American
Convention, in relation to the general obligations of Article 1(1) of the Pact of San José.
V. CONCLUSIONS
69.
The case of Mrs. María Inés Chinchilla is, in many aspects, important for the
development of the case law of the Inter-American Court, being the first occasion on which
this Court develops the concept of accessibility of a disabled person, alluding to reasonable
accommodation for persons with disabilities.89 Furthermore, notwithstanding its vast case
law on prison conditions and the obligations of prevention, this is also the first time that the
Inter-American Court has had to rule on such conditions in relation to a person with
disabilities. However, as I have stated in the introduction to this opinion, the absent topic and the one that is undoubtedly the source of the violations in this case - has been the issue
related to the lack of adequate medical care provided to the victim, before and after she
had her leg amputated, and until her death in 2004.
70.
While I concur with the view held by the Inter-American Court in previous cases, that
the right to life and to personal integrity are both directly and immediately associated with
human health care, I consider that it is not appropriate to continue subsuming a right that
is of vital importance in the region, such as the “right to health.” Although the Judgment
does not explicitly use the expression right to health90 (see supra. para. 7 of this opinion),
health care is one of the facets of this right which, notwithstanding an express enunciation,
constitutes an autonomous violation. This is particularly true, if we consider that this is not
the first time that this Court examines a case directly related to the right to health and in
which it has ruled—indirectly— on this right.91 In the case at hand, the analysis of the “right
to health” as an autonomous right would have allowed for a more in-depth exploration of
issues related to the conditions in which medical services should be provided when a person
is deprived of liberty, especially a person with disabilities.
It is not surprising, then, that the greatest development in case law on the accessibility of the right to
health for persons with disabilities is based, in great measure, on the old medical model and not on the human
rights model, as established by the CRPD. For example, in its case law, the European Court of Human Rights
initially considered the severity of the disability and the negation of facilities adapted to the special needs of persons
with disabilities deprived of their liberty, instead of the right to accessibility and the provision of reasonable
accommodation to determine the existence of poor treatment. However, in a recent decision the European Court
invoked the CRPD as an interpretative source and expressly found a violation of personal dignity based on the
inaccessibility of the facilities and the negation of reasonable adjustments. The emergence of the CRPD in the
universal sphere has, to a large extent, ensured that persons with disabilities go from being subjects of assistance
to being subjects of internationally protected rights with a human rights focus. In this regard see: the clinical model
based on the severity of the disability: ECHR, Case Price v. United Kingdom, No. 33394/94, Judgment of June 10,
2001, para. 7 and 8. On the new concept of the human rights model adopted by the ECHR see Case of Semikhostov
v. Russia, No. 2689/12, Judgment of February 6, 2014, para. 83. On the application of the CRPD human rights
model for persons with disabilities deprived of liberty: Case X v. Argentina, No. 8/2012, UN, Doc.
CRPD/C/11/D/8/2012, April 11, 2014.
89
As has occurred in other recent cases, such as Suárez Peralta (2013) and González Lluy (2015), I consider
that the failure to mention the “right to health” in this Judgment is a backward step in its case law.
90
In relation to economic, social, cultural and environmental rights, the specific case law on the “right to
health” is the one that has had the strongest presence in nearly 37 years of jurisdictional action by the InterAmerican Court. The fact that the “right to health” is not expressly mentioned in the present Judgment, contrasts
with recent cases, such as Suárez Peralta v. Ecuador (2013) and Gonzales Lluy v. Ecuador (2015).
91
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