its report that “[…] although access to treatment in hyperbaric chambers is essential, the care
of the patient does not end with the management of the emergency situation, since […]
despite specific treatment, the after-effects of decompression sickness are serious and the
role of rehabilitation services and productive alternatives is fundamental for the adequate
recovery of the affected divers.” 132 However, the State did not ensure rehabilitation treatment
or the reintegration of the victims who acquired disabilities. 133 Therefore, the State’s failure
to provide special medical care for the rehabilitation of the victims who survived diving
accidents and acquired a disability constituted a failure to ensure the right to health in
accordance with the principles of accessibility and quality of the health services.
96.
The Court also notes that the lack of access to a health system that offered preventive
or curative services for the accidents suffered, and for the disabilities that ensued as a result
of those accidents, constituted a violation of the victims’ right to social security. The State’s
total failure to guarantee access to said system constituted a breach of its obligations under
the principle of availability, inasmuch as there was a total absence of social security in La
Mosquitia region that would allow them to enjoy the benefits corresponding to the risks
related to dive fishing, and of accessibility, since the victims were not covered by the social
security system, because they were informal workers who did not have employment
contracts with the fishing companies. As mentioned previously, this occurred without the
State exercising any supervision or oversight to verify the victims’ working conditions, such
as whether they had work contracts and whether the employers complied with their social
security obligations. As a result, none of the victims had real access to the Honduran social
security system.
97. Therefore, this Court concludes that the State failed to comply with its obligation to
provide acceptable, available and quality medical care to the victims of diving accidents, as
well as its obligation to ensure access to the social security system for the survivors of such
accidents, particularly those who suffered a disability, in violation of the right to health and
social security contained in Article 26 of the Convention, in relation to Articles 1(1) and 2 of
the same instrument.
C.4. Equality and non-discrimination
98.
The Court has indicated that the notion of equality springs directly from the oneness
of the human family and is linked to the essential dignity of the individual. That principle
cannot be reconciled with the notion that a given group has the right to privileged treatment
because of its perceived superiority. It is equally irreconcilable with that notion to characterize
a group as inferior and treat it with hostility or otherwise subject it to discrimination in the
enjoyment of rights which are accorded to others not so classified. 134 Thus, the States must
refrain from carrying out any action that, in any way, directly or indirectly, is aimed at creating
132
Cf. Pan American Health Organization, Human Rights and Disability among Indigenous Peoples, 2004
(evidence file, folios 6365).
The Commission indicated that it has not been able to determine the exact number of victims who currently
have disabilities; therefore, the State must make a determination regarding those surviving victims who are in a
situation of disability (Merits Report, folio 78). However, based on the facts proven is appears that the following
persons may have acquired some type of disability: Flaviano Martinez López; Carcoth Padmoe Miller; Cooper
Cresencio Jems, Roberto Flores Esteban, Daniel Dereck Thomas, Amistero Bans Valeriano, Ralph Valderramos, Félix
Osorio Presby, Rolando Mónico Thomas.
133
Cf. Proposed Amendments of the Naturalization Provisions of the Constitution of Costa Rica. Advisory Opinion
OC-4/84 of January 19, 1984. Series A No. 4, para. 55, and Advisory Opinion OC-27/21, supra, para. 152.
134
34