endemic, occupational and other illnesses.46 The prevention of illness, or preventing its
aggravation during a term of imprisonment, is of special importance, because it helps in
great measure to avoid situations such as the one encountered by the Inter-American Court
in the instant case. That is, it guarantees the right to health as a public good, whether or
not persons are deprived of liberty, together with adequate treatment of their illnesses. This
is an essential component for those groups who, owing to their circumstances, are already
in a situation of clear disadvantage. In this regard, the Inter-American Court stated the
following in the case of Mrs. Chinchilla:
188. The Court considers that the need to protect [the right to] health, as part of the State’s
obligation to ensure the rights to personal integrity and to life, increases in respect of a person
who suffers serious or chronic illnesses, where their health can deteriorate progressively. […] this
obligation acquires particular importance in relation to persons deprived of liberty. This obligation
may also be conditioned, accentuated or specified, according to the type of disease, particularly
if it is of a terminal nature or, even if it is not terminal per se, if it can be complicated or
aggravated either by the individual’s own circumstances, by the conditions of incarceration or by
the capacity of the prison establishment or of the authorities responsible to provide health care.
This obligation rests with the prison authorities and, ultimately and indirectly, with the judicial
authorities who, ex officio or at the request of the interested party, must exercise judicial control
over the guarantees due to persons deprived of liberty.47
39.
On the topic of disability caused by illness, the Inter-American Court of Human Rights
has been of the opinion that persons with certain illnesses may face social and attitudinal
barriers to the enjoyment of equal access to all their rights.48 The relationship between this
type of barrier and a person’s health status justifies the use of the social model of disability
as a relevant approach to assess the scope of some of the rights involved in this case. Thus,
this Court has considered that as part of the evolution of the concept of disability, the social
model of disability understands disability as the result of the interaction between the
functional characteristics of a person and the barriers in his or her surroundings. Therefore,
disability is not defined exclusively by the presence of a physical, mental, intellectual or
sensory impairment, but also interacts with social barriers or limitations that prevent
persons from exercising their rights effectively.49
40.
Thus, living with diabetes, as in the case of Mrs. Chinchilla at the COF, is not per se
a situation of disability.50 However, the absence of records on her health condition and on
the treatment provided since her admission to the COF, the lack of guarantees to adequately
Additional Protocol to the American Convention on Economic, Social and Cultural Rights, Article 10.2.d
and International Covenant on Economic, Social and Cultural Rights Article 12.2.c.
46
Cf. Case of Chinchilla Sandoval v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of February 29, 2016, Series C No. 312, para. 188.
47
Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits, reparations and costs. Judgment
of September 1, 2015. Series C No. 298, para. 236.
48
Case Gonzales Lluy et al. V. Ecuador. Preliminary objections, Merits, Reparations and Costs. Judgment of
September 1, 2015. Series C No. 298, para. 237.
49
Recently, in the Case of Gonzales Lluy the Court considered that a girl living with HIV does not per se
constitute a situation of disability. Case of Gonzales Lluy et al. v. Ecuador. Preliminary objections, merits,
reparations and costs. Judgment of September 1, 2015. Series C No. 298, para. 238.
50
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