43.
The dispute in this second moment or phase related to the impairment of the victim’s
rights, is framed in two ways: on the one hand, poor accessibility within the COF in terms
of movement inside her cell and around the prison area and, on the other, the lack of
reasonable accommodation for her transfer to hospital to attend medical appointments,
which was further exacerbated by Mrs. Chinchilla’s diabetes.
44.
This Court has considered in previous cases that persons with disabilities are often
subject to discrimination because of their condition; therefore, States must adopt legal,
social, labor and any other type of measures to eliminate all forms of discrimination
associated with disabilities, and to promote the full integration of such persons into society.54
45.
It is important to note that any person in a vulnerable situation is entitled to special
protection, given that the State has a special duty to satisfy the general obligations to
respect and guarantee human rights. Thus, it is not sufficient for States to refrain from
violating rights; it is also imperative that they adopt affirmative measures, to be determined
according to the particular protection needs of the subject of rights, whether on account of
his personal condition or specific circumstances, such as disability. Moreover, States have
an obligation to promote the inclusion of persons with disabilities through equality of
conditions, opportunities and participation in all spheres of society to ensure that the
limitations described are removed.55
46.
In this sense, the Judgment issued by the Inter-American Court has determined that
the obligation to adopt affirmative measures in favor of persons with disabilities is also
applicable in the context of prisons and to persons with disabilities deprived of their liberty.
Indeed, given the State’s special role as guarantor of the rights of persons subject to its
custody, this obligation to adopt affirmative measures is reinforced. In this regard, the social
model based on human rights must also have an impact on persons who are physically
confined within prisons; therefore, the facilities and their functionality within those detention
centers should be designed and planned based on an approach to disability that ensures
accessibility and the possibility of providing reasonable accommodation, as positive
measures to guarantee the rights of persons with disabilities who are serving a custodial
sentence.
47.
In relation to the right to health of persons with disabilities, the CRPD requires States
Parties to recognize that disabled persons have the right to the highest attainable standard
of health without discrimination for reasons of disability. In this sense, the States must
adopt the pertinent measures to ensure that persons with disabilities have access to health
services, taking into account issues of gender, including health rehabilitation programs.
Furthermore, they must provide those health services needed by persons with disabilities,
specifically because of their disabilities, including early identification and intervention as
appropriate, and services designed to minimize and prevent further disabilities, including
among children and older persons.56 As to the rights of persons with disabilities who are
Case of Ximenes Lopes v. Brazil. Judgment of July 4, 2006. Series C No. 149, para. 105 and Case of
Furlan and Family v. Argentina. Preliminary objections, merits, reparations and costs. Judgment of August 31,
2012. Series C No. 246, para. 135.
54
Case of Furlan and Family v. Argentina. Preliminary objections, merits, reparations and costs. Judgment
of August 31, 2012. Series C No. 246, para. 134
55
56
Convention on the Rights of Persons with Disabilities, Article 25 and 25.b).
17