REPORT No. 107/18
CASE 13.039
MERITS
MARTINA REBECA VERA ROJAS
CHILE1
DATE

I.

SUMMARY

1.
On November 4, 2011, the Inter-American Commission on Human Rights (hereinafter "the
Inter-American Commission," "the Commission," or "the IACHR") received a petition lodged by Karinna
Fernández Neira, Boris Paredes Bustos, Carolina Andrea del Pilar Rojas Farías, and Ramiro Álvaro Vera Luza
(hereinafter "the petitioners")2 alleging the international responsibility of the Republic of Chile (hereinafter
"the Chilean State," "the State," or "Chile") to the detriment of Martina Rebeca Vera Rojas; her mother, Carolina
Andrea del Pilar Rojas Faría; and her father, Ramiro Álvaro Vera Luza.
2.
On November 4, 2016, the Commission adopted Report on Admissibility No. 44/16. 3 On
November 7, 2016, the Commission notified the parties of that report and placed itself at their disposal with a
view to reaching a friendly settlement. The parties were afforded the regulation time limits to present
additional observations as to merits. All information received was duly relayed between the parties.4
3.
The petitioners alleged that the State failed to fulfill its international obligations with regard
to the life and integrity of Martina—a child diagnosed with the Leigh’s syndrome—by allowing and judicially
validating the unilateral and arbitrary termination of the in-home care (hospitalización domiciliaria) regime by
her health insurer, a service that is essential for the survival of people with this syndrome. They indicated that
the Supreme Court of Justice (hereinafter "the CSJ") ruled in favor of the health care provider without taking
into account its special position of guarantor with respect to the rights of children and persons with disabilities
or the social rights of the alleged victim. They also alleged that the facts are framed by a context of lack of
regulation in matters of health care that is incompatible with the American Convention.
4.
The State argues that it is bears no responsibility for the aforementioned violations, given that
the harm to the life and integrity of the alleged victim was caused by her degenerative illness and not by a State
agent. It indicated that health insurers are regulated and supervised by the State in a way that guaranteed the
access of the girl Martina to the appropriate treatment. It said that despite the negative judgment issued by the
CSJ, the Superintendency of Health ordered the health insurer to maintain the in-home care, so that life,
integrity, and health were safeguarded in keeping with its position as special guarantor of the rights of the child,
as well as ensuring the right to judicial protection.
5.
Based on the findings of fact and law, the Inter-American Commission concluded that the State
is responsible for the violation of Articles 4(1) (right to life), 5(1) (right to humane treatment), 19 (rights of the
child) ), 26 (economic, social, and cultural rights); and 8(1) and 25(1) (rights to a fair trial and judicial
protection) of the American Convention on Human Rights (hereinafter "the American Convention" or "the
Convention"), in relation to the obligations established in Articles 1(1) and 2 of the same instrument. The
Commission made appropriate recommendations.
II.
SUBMISSIONS OF THE PARTIES
1.
Pursuant to Article 17(2) of the Rules of Procedure of the IACHR, Commissioner Antonia Urrejola Noguera, a Chilean national,
did not participate in the discussion or decision in the present case.
2.
On April 14, 2017, the petitioner Fernández resigned her representation of the case. On the same day, lawyer Magdalena
Garcés was designated as petitioner.
3.
IACHR, Report No. 44/16, Case 13.039, Martina Rebecca Vera Rojas (Chile), November 11, 2016. The petition was declared
admissible in relation to Articles 4, 5, 8, 19, 25, and 26 of the American Convention. In addition, the Commission declared the petition
inadmissible with regard to Articles 11 and 17 of the same instrument.
4.
The petitioners initiated the processing of a precautionary measure (PM 390-11) on October 14, 2011. The State submitted its
reply and indicated the judicial processes available to the alleged victim in special arbitration proceedings. The processing of the
precautionary measure was closed on April 2, 2013.
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