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. 1

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