based on the need for it to affordable so as to avoid infringements of her rights to health, social security, humane
treatment and to facilitate an independent life for her by enabling her to grow in her family environment as a
child with a disability.
89.
Likewise, in the case of both decisions, the IACHR does not find any clear reasoning in relation
to the determination of Martina's illness as chronic. Moreover, the IACHR considers that there are serious
doubts and contradictions in relation to the specialists and the Isapre’s interpretation of them which were not
clarified in the rulings, especially the last one in which it was determined that Martina’s illness was chronic.
However, even if chronic, the Commission considers that this criterion for suspending RHD should have been
analyzed in the light of the American Convention, in order to determine whether in this specific case its direct
application violated Martina's human rights, especially considering the existence of important medical
indications—accredited in this report—that the best thing for her fragile life and health was RHD and that her
surroundings by her family environment.
90.
Based on the foregoing, the Commission concludes that the State of Chile is responsible for
violation of the rights to a fair trial and judicial protection and the rights of the child with disability recognized
in Articles 8(1), 25(1), and 19 of the American Convention, taken in conjunction with the obligations to respect
and ensure rights established in Articles 1(1) and 2 of the same instrument, to the detriment of Martina Vera
Rojas.
E.
The right to humane treatment (Article 5[1]) of Mr. Vera and Ms. Rojas, taken in
conjunction with Article 1(1) of the American Convention
91.
The Commission and the Inter-American Court have indicated that the next-of-kin of victims
of certain human rights violations may, in turn, be considered victims.119 In that regard, the Court has ruled
that their right to mental and moral integrity [may be] violated based on the particular circumstances of the
violations perpetrated against their loved ones and owing to the subsequent acts or omissions of the State
authorities in relation to the facts.120
92.
Specifically with regard to the analysis of the State's international responsibility for violation
of the right to humane treatment of family members arising from infringements of the victims' right to health,
the Court has established that this type of violation must be proven. 121 In that regard, the petitioners
documented that the mother and father suffer with post-traumatic stress arising from the suffering caused by
the uncertainty of access to the treatment that keeps their daughter alive. In this way, the expert psychological
opinion said that "after feeling that their daughter was not protected by the State, the sensation took root in
both of being unable to ensure the necessary care for their daughter" and that the psychological consequences
were feelings of uncertainty, helplessness, distrust, hypervigilance and hyper-alertness, humiliation, anger, and
avoidance. The opinion concluded that it was a case of chronic post-traumatic stress disorder.122 In addition,
as already proven in this report, the highly litigious relationship between the Isapre and Martina’s parents due
to the unilateral changes in access to the proper treatment, in itself caused Martina's parents suffering due to
the lack of adequate regulation of RHD withdrawal. Based on the foregoing, the Commission finds that there is
a causal link between the suffering experienced by Mr. Vera and Ms. Rojas and the facts analyzed in this case.
93.
In addition to the above, the Inter-American Court has indicated that the right to humane
treatment of the next-of-kin can be affected by the close family relationship and the efforts made to obtain
119 IACHR, Report No. 11/10. Case 12.488, Merits, Barrios Family, Venezuela, March 16, 2010, par. 91. IACHR, Report on Terrorism and
Human Rights. par. 227; I/A Court H.R., Case of Poblete Vilches et al. v. Chile, Merits, Reparations, and Costs, Judgment of March 8, 2018,
Series C. No. 349, par. 201; I/A Court H.R., Case of Cantoral Huamaní and García Santa Cruz v. Peru, Preliminary Objection, Merits,
Reparations and Costs. Judgment of July 10, 2007. Series C. No. 167, par. 112; and Case of Bueno-Alves v. Argentina, Merits, Reparations,
and Costs, Judgment of May 11, 2007. Series C No. 164, par. 102.
120 I/A Court H.R., Case of Cantoral Huamaní and García Santa Cruz v. Peru, Preliminary Objection, Merits, Reparations and Costs.
Judgment of July 10, 2007. Series C. No. 167, par. 112; and Case of Vargas-Areco v. Paraguay, Judgment of September 26, 2006. Series C.
No. 155, par. 96.
121 I/A Court H.R., Case of Poblete Vilches et al. v. Chile, Merits, Reparations, and Costs, Judgment of March 8, 2018, Series C. No. 349, par.
203.
122 Annex X, Psychological report of clinical psychologist Carola Fernández of March 3, 2016. Appended to the petitioners’ brief of March
6, 2017.
20