204

CRISTAL TOVAR
(PETITIONER)
V.
DEMOCRATIC REPUBLIC OF EXCLUTIA
(RESPONDENT)

MEMORIAL FOR THE STATE

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TABLE OF CONTENT

INDEX OF AUTHORITIES...................................................................................................3

STATEMENT OF FACTS......................................................................................................5
2.1 Factual Background.........................................................................................................5
2.2 Petitioners Background and Arrival at La Casita........................................................6
2.3 La Casitas Purpose and Services...................................................................................7
2.4 Petitioner Declared Legally Incompetent and Subsequent Domestic Proceedings....8
2.5 Proceedings Before the Inter-American Human Rights System................................10

LEGAL ANALYSIS...............................................................................................................11

3.1

STATEMENT OF JURISDICTION.................................................................................11

3.2 PRELIMINARY OBJECTIONS......................................................................................11

3.2.1 Lack of Timeliness.......................................................................................................11
3.2.2 Lack of Exhaustion of Domestic Remedies...............................................................13
3.3 EXCLUTIA COMPLIED WITH ARTICLES 3, 5, 7 AND 11 IN CONJUNCTION
WITH ARTICLES 1.1 AND 2....................................................................................................15
3.3.1 Petitioners Right to Juridical Personality................................................................16
3.3.2 Petitioners Rights to Humane Treatment and Personal Liberty...........................19
3.3.3 Petitioners Right to Privacy......................................................................................23
3.4 EXCLUTIA COMPLIED WITH ARTICLES 8, 25 AND 24 IN CONJUNCTION
WITH ARTICLES 1.1 AND 2....................................................................................................26
3.4.1 Article 41 of Exclutias Civil Code Complied with Petitioners Rights to A Fair
Trial, Judicial Protection and Equal Protection of the Law................................................26
3.4.2 The Pending Draft of Article 41 Complies with International Standards.............29
3.5

PROVISIONAL MEASURES..........................................................................................32

CONCLUSION......................................................................................................................35

REQUEST FOR RELIEF.....................................................................................................35

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1

INDEX OF AUTHORITIES

International Instruments
American Convention on Human Rights
Articles 1.1, 2, 3, 5, 7, 8, 11, 24, 25, 46, 51, 61, 62

passim

Inter-American Commission on Human Rights, Rules of Procedure

Article 25, 32, 76.33, 34
Convention Against Torture, Article 1..20
United Nations Principles for the Protection of Persons with Mental Illness and for the
Improvement of Mental Health Care. www.un.org/documents/ga/res/46/a46r119.htm...19, 21, 22
World Health Organization, Constitution of the World Health Organization,
http://www.who.int/governance/eb/who_constitution_en.pdf..24
Legal Books and Articles
Laurence Burgorgue-Larsen. The Inter-American Court of Human Rights: Case Law and
Commentary. Oxford University Press 2011.....27
Jo M Pasqualucci. The Practice and Procedure of the Inter-American Court of Human
Rights. Cambridge University Press 2012.33
Janos Fiala-Butora, Disabling Torture: The Obligation to Investigate Ill-Treatment of Persons
with Disabilities, 45 COLUM. HUM. RTS. L. REV. 214 (2013)..21,
25
Lawrence Gostin, The Human Rights of Persons with Mental Disabilities: A Global Perspective
on the Application of Human Rights Principles to Mental Health, 63 MD. L. REV. 20
(2004).....19
Stephanie Ortoleva, Esq. & With Research Assistance from Alec Knight, Who's Missing?
Women with Disabilities in U.N. Security Council Resolution 1325 National Action Plans, 18
ILSA J. INT'L & COMP. L. 395 (2012)..
..17
Michael L. Perlin, "Abandoned Love": The Impact of Wyatt v. Stickney on the Intersection
Between International Human Rights and Domestic Mental Disability Law, 35 LAW & PSYCHOL.
REV. 121 (2011)..
.20, 21
Egan TM, Siegert RJ, Fairley NA. Use of hormonal contraceptives in an institutional setting:
reasons for use, consent and safety in women with psychiatric and intellectual disabilities. NEW
ZEALAND MEDICAL JOURNAL . August 1993. http://www.ncbi.nlm.nih.gov/pubmed/834147624

204

Legal Cases: Inter-American Court of Human Rights

-Albn Cornejo et al. v. Ecuador (Merits, Reparations and Costs), IACtHr, 22 Nov. 2007.24
-Artavia Murillo et al. (in vitro fertilizations) v. Costa Rica (Preliminary Objections, Merits,
Reparations and Costs), IACtHR, 28 November 201223, 24
-Atala Riffo and daughters v. Chile (Merits, Reparations and Costs), 24 February 2012.25
-Claude-Reyes et al. v. Chile (Merits, Reparations and Costs), IACtHR, 19 September 2006.27
-Garca Asto and Ramrez Rojas v. Peru (Monitoring Compliance with Judgment), IACtHR, 26
November 2013..29
-Genie-Lacayo v. Nicaragua (Merits, Reparations and Costs), IACtHR, 29 January 1997..26
-Ituango Massacres v. Colombia (Preliminary Objections, Merits, Reparations and Cost), 1 July
2006....26
-Juvenile Reeducation Institute v. Paraguay (Preliminary Objections, Merits, Reparations and
Costs), IACtHR, 2 September 2004.29, 30
-Las Palmeras v. Colombia (Merits), IACtHR, 6 December 2001.....26, 27
-Sawhoyamaxa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR,
29 March 2006...16, 18, 19
-Serrano-Cruz Sisters v. El Salvador (Merits, Reparations and Costs), IACtHR, 1 March 2005.14
-Tibi v. Ecuador (Preliminary Objections, Merits, Reparations and Costs), IACtHR, 7 September
2004....29
-Tiu Tojn v. Guatemala (Merits, Reparations and Costs), IACtHR, 26 September 200813
-Velsquez-Rodrguez v. Honduras (Merits), IACtHR, 29 July 1988ts, Reparations and Costs),
IACtHR, 26 September 2008.12
-Velsquez-Rodrguez v. Honduras (Preliminary Objections), IACtHR, 29 July 1987....12
-Ximenes-Lopes v. Brazil (Merits, Reparations and Costs), IACtHR, 4 July 2006.24, 28
-Ximenes-Lopes v. Brazil (Reasoned Opinion of Judge Sergio Garca-Ramrez), IACtHR, 4 July
200628
-Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR, 17
June 2005.26, 29
Legal Cases: European Court of Human Rights
-Bellet v. France, ECHR, 4 December 1995.....31
-Helle v. Finland, ECHR, 19 December 1997...32
-Herczegfalvy v. Austria, ECHR, 24 September 1992.....19, 21
-Munjaz v. United Kingdom, ECHR, 17 July 2012..21, 22
-Obermeier v. Austria, ECHR, 28 June 1990....32
-R.R. v. Poland, ECHR, 26 May 2011...25
-Schuler-Zgraggen v. Switzerland, ECHR, 24 June 1993.32
-Valainas v. Lithuania, ECHR, 24 July 2001...25
-Winterwerp v. the Netherlands, ECHR, 24 October 1979..28, 30
-Yankov v. Bulgaria, ECHR, 11 March 200425
Advisory Opinions

204
Habeas Corpus in Emergency Situations (Arts. 27(2) and 7(6) of the American Convention on
Human Rights) (Advisory Opinion), IACtHR, 30 January 1987.......14
Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) of the
ACHR (Advisory Opinion), IACtHR, 10 August 1990.15
Proposed Amendments to the Naturalization Provision of the Constitution of Costa
Rica (Advisory Opinion), IACtHR, 19 January 1984..28
Commission Reports
Victor Rosario Congo (Ecuador), IACHR, 13 April 1999......19, 21
Children Deprived of Liberty in the Complexo de Tatuap of FEBEM (Brazil), IACHR, 25
November 2008.33
Belfort Istriz (Venezuela), IACHR, 15 April 2010.34
Mara Eugenia Morales de Sierra (Guatemala), IACHR, 19 January 2001.....27
Committee Reports
Argentina, Committee on the Rights of Persons with Disabilities, 17-28 September 2012..31
El Salvador, Committee on the Rights of Persons with Disabilities, 2-13 September 2013.31
Paraguay, Committee on the Rights of Persons with Disabilities, 15-19 April 2013....31
Peru, Committee on the Rights of Persons with Disabilities, 16-20 April 2012...31
Recommendation 818 on the Situation of the Mentally Ill, Parliamentary Assembly of the Council
of Europe, 197731

STATEMENT OF FACTS
2.1

1.

Factual Background

The Democratic Republic of Exclutia (Exclutia) is a founding Member State of the

Organization of American States (OAS).1 Within the past ten years, Exclutia has demonstrated
a significant regard for providing legal protection to persons with disabilities.2 Exclutia ratified
1
2

Hypothetical Case (hereinafter HC) 6.

Id.

204
the Inter-American Convention on the Elimination of All Forms of Discrimination Against
Persons with Disabilities in October 2004 and the Convention on the Rights of Persons with
Disabilities in August 2008.3 Similarly, Exclutia passed a constitutional amendment in 2008
which gave human rights treaties the same status as constitutional provisions.4 In 2009, Exclutia
enacted the National Law for the Inclusion of Persons with Disabilities.5 The State also allocated
more resources to the National Council of Persons with Disabilities.6 Furthermore, Exclutia
funds and maintains shelters for persons with disabilities.7
2.
2,735,080 individuals with disabilities live in Exclutia.8 This accounts for more than 13%
of Exclutias total population.9 400 of these individuals reside at La Casita, a state-run
organization.10 Petitioner Cristal Tovar is one of La Casitas residents.11
2.2
3.

Petitioners Background and Arrival at La Casita

Petitioner is a thirty-three year old woman with mental and physical disabilities.12 She has

been permanently blind since she was fifteen years-old.13 After Petitioners mother passed away
in April 2006, Petitioner was evicted from her apartment for failing to pay rent.14 Petitioner
begged for money at a public square during the day and slept on a bench near a fountain during

Id.
Clarification Questions (hereinafter CQ) 21.
5
CQ 30.
6
Id.
7
CQ 8; HC 13.
8
HC 5.
9
Id.
10
HC 14; CQ 8.
11
HC 13.
12
HC 7, 19.
13
HC 7.
14
HC 9, 10.
4

204
the night.15 On August 3, 2006, a police officer, acting under Exclutias Sheltering our Poor
initiative, drove Petitioner to La Casita.16
4.
Upon her arrival, Petitioner met with a social worker who asked Petitioner questions
regarding her family and ability to take care of herself.17 Then, Petitioner was given a general
medical examination by an attending physician.18 She met with a psychiatrist who asked
Petitioner about her childhood and family.19 Petitioners responses, coupled with her symptoms
of insomnia, led the psychiatrist to conclude Petitioner suffered from major depression, a mental
disability.20 Given her blindness and her diagnosis of depression, Cristal was taken to the area of
the shelter that housed women with mental and intellectual disabilities.21
2.3
5.

La Casitas Purpose and Services

La Casita is a state-funded shelter that houses people with physical, mental, intellectual

and/or sensory disabilities and homeless people.22 The only requirement for admission is that the
individuals do not have any type of support to live in the community. 23 The shelter is organized
into seven areas, separating men, women and children based on their respective medical needs
and care.24 Each resident has his or her own bed.25 La Casita has common areas for residents to
eat in or watch television and park areas for residents to freely walk around.26 La Casita also
provides residents with food, medication and basic cleaning items for hygiene.27 There is an
15

HC 12.
Id.
17
HC 18.
18
HC 19.
19
Id.
20
Id.
21
HC 20, 14.
22
CQ 8; HC 13.
23
Id.
24
Id.
25
HC 15.
26
Id.
27
HC 16.
16

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emergency room with medical supplies and a support staff that provides daily physical therapy,
psychological services and training in daily life.28 Because some residents engage in sexual
activity, La Casita administers contraceptives to all adult female residents every three to four
months.29 Finally, residents who are in crisis and may potentially harm themselves, other
residents, or hospital staff are placed in isolation rooms for four to five hours.30
2.4
Petitioner Declared Legally Incompetent and Subsequent Domestic
Proceedings
6.

After three weeks of observing Petitioners stay at the shelter, La Casita Director, Dr. Lira

filed a request to declare Petitioner legally incompetent.31 Following the procedures and rules
governed by Article 41 of Exclutias Civil Code, a judge reviewed the evidence, declared
Petitioner legally incompetent and appointed Dr. Lira as Petitioners guardian, subject to yearly
review.32 Revoking a declaration of incompetency must be ordered by a judge.33
7.
In late 2007, Petitioner experienced several severe symptoms.34 Petitioner was sent to
Ral Cano National Hospital for treatment and observation.35 During this hospitalization,
Petitioner told a nurse she wanted to leave the shelter.36
8.
The nurse contacted Disability is not Inability (ODNEI), a disability rights
organization.37 On February 21, 2008, ODNEI filed a motion to vacate Petitioners declaration of
incompetency, a motion which may be filed against any court decision under the laws of
Exclutia.38 On September 18, 2008 the trial court judge ruled that the motion was inadmissible
28

HC 16; CQ 32.
HC 26.
30
HC 24.
31
HC 22.
32
HC 23, 6; CQ 24.
33
CQ 68.
34
HC 27-28.
35
HC 29.
36
HC 29-30.
37
HC 31.
38
HC 32; CQ 36.
29

204
because ODNEI lacked standing.39 On October 1, 2008, ODNEI appealed this decision.40 At the
hearing, Dr. Lira explained that La Casita provided healthcare and shelter for Petitioner.41 On
April 18, 2009 the appellate court decided the merits of the case in a replacement judgment and
ruled that there was no abuse on the part of Petitioners guardian.42 Instead, the appellate court
informed Petitioner and ODNEI that the appropriate remedy for challenging the declaration of
incompetency would be an unconstitutionality action.43
9.
Six months before the appellate courts decision, on November 2, 2008, ODNEI filed a
petition for a constitutional remedy, alleging the conditions at La Casita violated the rights of
the individuals with disabilities living in that shelter.44 On December 2, 2008, the Second
Constitutional Chamber exercised its concentrated, centralized control over the constitutionality
of the domestic laws and granted the petition on the basis that the infrastructure and the lack of
food and basic items constituted a violation.45 The next day, ODNEI received notice of the
judgment in Petitioners favor.46 Exclutian law provides habeas corpus relief for any interested
party; ODNEI did not file a writ for habeas corpus.47 Six months after this decision, Exclutia
allocated $200,000 to remodel the shelters infrastructure and improve its conditions.48 Using this
budget, Exclutia painted the shelter, bought new mattresses, bedding, and furniture for personal
use, hired a new food service provider, made repairs to the drainage system, and installed
lighting in the green spaces.49
39

Id.
HC 33.
41
Id.
42
Id.
43
Id.; CQ 15.
44
HC 34; CQ 20.
45
Id.; CQ 17.
46
CQ 19.
47
CQ 61.
48
HC 34.
49
CQ 16.
40

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2.5
10.

Proceedings Before the Inter-American Human Rights System

On September 2, 2009, ODNEI filed a petition before the Inter-American Commission on

Human Rights (IACHR), alleging that to Petitioners detriment, Exclutia violated Articles 3,
5, 7, 8 , 11, 24 and 25 of the American Convention, all in conjunction with Articles 1.1 and 2.50
The IACHR granted precautionary measures to La Casitas residents.51 The IACHR then
forwarded the pertinent parts to the State on December 22, 2009.52 Exclutia submitted its written
observations raising an objection based on Article 46.1(b) and denying the merits of the case
to the IACHR on March 29, 2010.53 The IACHR issued Admissibility Report No.55/11 on
October 21, 2011, declaring the alleged violations admissible, followed by the Parties submitting
additional observations on the merits.54 The IACHR approved Merits Report No. 12/13, finding
Exclutia violated the named rights and made recommendations with respect to the situation at La
Casita and measures of non-repetition.55 Exclutia and Petitioner received notice of Merits Report
No. 12/13 on March 14, 2013.56 Then, Exclutia amended Article 41 of its Civil Codecurrently
pending approval before the session of the Social Inclusion Committee of Congress.57 On June
14, 2013, Exclutia received a two-month extension to comply with the IACHRs
recommendations, waiving its rights to file later preliminary objections on the basis of Article
51.58 On August 14, 2013, the IACHR refused to grant Exclutias request for a second extension
and stated the amended bill did not comply with international standards.59
50

HC 35.
Id.
52
HC 35.
53
Id.
54
HC 36.
55
Id.
56
Id.
57
HC 37; CQ 38.
58
HC 38.
59
Id.
51

10

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11.

On April 6, 2014, Petitioner learned that one of her friends, a fellow La Casita resident,

died of a heart attack.60 Unable to calm down, Petitioner cried, screamed and physically pushed a
staff member.61 She was restrained, placed in an isolation room for four hours and returned to her
dormitory.62 On April 18, 2014, ODNEI asked the Court to grant provisional measures on her
behalf.63 These provisional measures only concern La Casitas use of isolation rooms.64
12.
The IACHR submitted the case to the Court for the present adjudication. 65

LEGAL ANALYSIS

3.1 STATEMENT OF JURISDICTION

13.

The Honorable Court has jurisdiction to hear this case. Exclutia is a founding Member

State of the OAS.66 In 1989, Exclutia ratified the American Convention on Human Rights
(ACHR) and accepted the binding jurisdiction of the Court.67 The Court is authorized to
adjudicate matters concerning application and interpretation of the ACHR pursuant to Articles 61
and 62.68

3.2 PRELIMINARY OBJECTIONS

3.2.1
14.

Lack of Timeliness

ODNEIs initial petition on behalf of Petitioner to the IACHR was inadmissible. More

than six months elapsed between the December 2, 2008 constitutional courts ruling and
60

HC 40.
Id.
62
Id.
63
HC 41.
64
CQ 43.
65
HC 42.
66
HC 6.
67
Id.
68
ACHR, Art. 61-62.
61

11

204
September 1, 2009 when ODNEI filed the initial petition.69 This means the Court should
dismiss Petitioners case.
15.
Exclutia waived its opportunity to raise any preliminary challenges on the basis of Article
51, which would require the IACHR to submit a case to this Court within three months of its
March 14, 2013 Merits Report No. 12/13 or be forced to surrender its ability to do so.70 However,
under Article 46(1)(b) of the ACHR and Article 32(1) of the Rules of Procedure, a petition must
be filed within six months after the alleged victim has been notified of a decision that exhausted
all available effective domestic remedies.71 Exclutia properly preserved its right to object to the
timeliness of the initial petition because the State promptly submitted its written observations
and objections for lack of timeliness to the IACHR by March 29, 2010. Exclutias request for an
extension to comply with the IACHRs recommendations did not cause the State to forfeit this
objection.72 The IACHR should not have found the initial petition to be admissible.
16.
Furthermore, the State does not directly raise a preliminary objection based upon the lack
of exhaustion of domestic remedies. Instead, it contends that ODNEI exhausted all effective
domestic remedies on December 2, 2008 when the Second Constitutional Chamber granted its
petition for a constitutional remedy.73 Following this decision, ODNEI should have filed a writ of
habeas corpus or submitted a petition to the IACHR within six months. ODNEI did neither.
17.
Although ODNEI was still pursuing domestic remedies within six months of its
September 1, 2009 petition, ODNEI sought the wrong remedies. The Court defines adequate
domestic remedies as those being suitable to address an infringement of a legal right.74 ODNEIs
motions to vacate in the trial court and its appeal were not proper domestic remedies because

69

HC 35.
ACHR, Art. 51.
71
ACHR, Art. 46(1)(b); IACHR Rules of Procedure, Art. 32(1).
72
HC 37.
73
HC 34.
74
Velsquez-Rodrguez v. Honduras (Preliminary Objections), IACtHR, 29 July 1987, 64.
70

12

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both were properly dismissed for a lack of standing and a finding of no abuse.75 Moreover, with
the adjudication on the merits, the appellate court correctly determined and informed ODNEI
that the appropriate remedy for Petitioner was an unconstitutionality action before the
constitutional court.76
18.
Because there is no diffuse or decentralized control over the constitutionality of
Exclutias national provisions, the trial court and appellate court were incapable of ordering
Petitioners release for reasons other than those provided in Article 41 of Exclutias Civil Code.77
ODNEIs motion to vacate was a remedy unavailable to the interested party due to a lack of
standing.78 Even on its merits, the motion to vacate was ineffective, because ODNEI failed to
prove abuse on the part of Petitioners guardian.79
3.2.2
19.

Lack of Exhaustion of Domestic Remedies

Even if the Court does not find the Second Constitutional Chambers ruling satisfactory,

it should alternatively dismiss this case on the basis that an effective, available domestic remedy
still remains to be exhaustedthe writ of habeas corpus.80
20.
It is the States burden to prove that the writ of habeas still remains and that if used, it
would be an effective remedy.81 In this unique case, where ODNEI won a declaration of
unconstitutionality, the writ of habeas is an enforcement mechanism of an already granted
judgment. This remedy does not require a separate preservation before adjudication on the merits
by the IACHR.
21.
If ODNEI was unsatisfied with the Second Constitutional Chambers decision and
wanted to secure the Petitioners immediate release, then ODNEI could have used the broad
75

HC 32-33.
HC 33.
77
CQ 17.
78
HC 32.
79
HC 33.
80
HC 34.
81
Velsquez-Rodrguez v. Honduras (Preliminary Objections), IACtHR, 29 July 1987, 64.
76

13

204
procedural institution known as amparoa simple, prompt remedy designed for the protection
of all of the rights recognized in the ACHR or in this case its more specific iteration, the writ
of habeas corpus.82 While amparo comprises a whole series of remedies, habeas is specifically
the amparo of freedom, the remedy most suited to effectuate Petitioners immediate release.83
22.
The writ of habeas is a judicial remedy designed to protect personal freedom and physical
integrity against arbitrary detentions by use of a judicial decree ordering the authorities to bring a
detained person before a judge so the lawfulness of ones detention may be determined and the
release of an inappropriately held detainee granted.84 Among its essential judicial guarantees,
habeas represents the appropriate means of guaranteeing liberty, controlling respect for a
persons life and integrityand protecting individuals from torture or other cruel, inhuman or
degrading punishment or treatment.85
23.
For these reasons, the State maintains that if the decision of the Second Constitutional
Chamber alone was not enough, then its ruling could have been used as the basis for habeas.
Hence, the Court should dismiss on the grounds of lack of exhaustion of domestic remedies. For
example, in a case concerning the allegedly illegal detainment of a merchant, the Court found the
petitioner did not exhaust all of his domestic remedies and dismissed because the petitioner
failed to make use of the writ of habeas. 86
24.
Moreover, in the present case, none of the usual exceptions to the lack of exhaustion of
domestic remedies apply. First, Exclutias domestic legislation affords any interested party the
ability to file a writ of habeas corpus.87 Second, there is no generalized fear in the legal

82

Habeas Corpus in Emergency Situations (Arts. 27(2) and 7(6) of the American Convention on Human
Rights), IACtHR, Advisory Opinion OC-8/87 of 30 January 30, 1987, Ser. A, No. 8, 32.
83
Id. at 34.
84
Id. at 33.
85
Serrano-Cruz Sisters v. El Salvador (Merits, Reparations and Costs), IACtHR, 1 March 2005, 79.
86
Tibi v. Ecuador (Preliminary Objections, Merits, Reparations and Costs), IACtHR, 7 September 2004, 3, 44.
87
CQ 61; ACHR, Art. 46(2)(a).

14

204
community that prevents ODNEI from acquiring legal representation.88 In this case, Petitioner
did in fact obtain legal representation and was not denied access to the remedy of habeas corpus,
but simply failed to make use of the Second Constitutional Chambers decision to file a writ in
the trial court or provide it to the appellate court when it adjudicated the matter on its merits.89
25.
Finally, there have been no unwarranted delays in rendering final judgments.90 All court
decisions were rendered under a year in time: the longest, the trial courts decision to dismiss the
motion to vacate, only took seven months, while the shortest, the decision of the Second
Constitutional Chamber, was rendered in a months time.91
26.
Because Petitioner neither used the decision of the Second Constitutional Court as the
basis for a writ of habeas nor filed a complaint to the IACHR within six months of its December
2, 2008 decision, the Court should dismiss the case either for its lack of timeliness or lack of
exhaustion of domestic remedies.

3.3

EXCLUTIA COMPLIED WITH ARTICLES 3, 5, 7 AND 11 IN CONJUNCTION

WITH ARTICLES 1.1 AND 2

27.

Exclutia did not violate Articles 3, 5, 7 or 11 in conjunction to Articles 1.1 and 2. Under

Article 1.1, all persons are ensured the free and full exercise of [ACHR] rights and freedoms,
without any discrimination for reasons of social condition.92 Article 2 states [w]here the
exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by
legislative or other provisions, the States Parties undertake to adopt measures as may be
necessary to give effect to those rights or freedoms.93

88

Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) of the American
Convention on Human Rights), IACtHR, Advisory Opinion OC-11/90 of 10 August 1990, Ser. A, No. 35.
89
ACHR, Art. 46(2)(b).
90
ACHR, Art. 46(2)(c).
91
HC 32-34.
92
ACHR, Art. 1.1.
93
ACHR, Art. 2.

15

204
28.

When the OAS adopted the Inter-American Convention on the Elimination of All Forms

of Discrimination Against Persons with Disabilities, this convention served as a guideline for
how states should eliminate all forms of discrimination against persons with disabilities and for
how states can make efforts toward completely integrating persons with disabilities into
society.94 The existence of La Casita and its services are not tools of exclusion and
discrimination. La Casita has only one admission requirement: the individual does not have any
type of support to live in the community. 95 The residents at La Casita are not forcefully or
discriminatorily segregated from the community. The residents live at La Casita because it is
their best option for support and healthcare. Exclutia did not discriminate against Petitioner for
reasons of her physical or mental disabilities. At all times, Exclutia provided Petitioner with legal
measures to effectuate her rights and freedoms.
3.3.1
29.

Petitioners Right to Juridical Personality

Under Article 3, [e]very person has the right to recognition as a person before the law.96

The Court defines this right as whether a person is entitled to any given rights and whether such
person can enforce such rights.97 It is the States duty to provide the means and legal conditions
in general, so that the right to personality before the law may be exercised by its holders.98
Exclutia met this duty.
30.
Within the past five years, Exclutia passed several social policies aimed at integrating
persons with disabilities into the community.99 Even before implementing these social policies,

94

Lawrence Gostin, The Human Rights of Persons with Mental Disabilities: A Global Perspective on the
Application of Human Rights Principles to Mental Health, 63 MD. L. REV. 20, 52 (2004).
95
HC 13.
96
ACHR, Art. 3.
97
Sawhoyamaxa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR, 29 March 2006,
188.
98
Id. at 189.
99
HC 5.

16

204
Exclutia demonstrated a significant regard for providing legal rights to persons with disabilities.
Exclutia ratified the Inter-American Convention on the Elimination of All Forms of
Discrimination Against Persons with Disabilities in October 2004 and the Convention on the
Rights of Persons with Disabilities in August 2008.100 In 2009, Exclutia enacted the National
Law for the Inclusion of Persons with Disabilities.101 The U.N. regards these national action
plans as opportunit[ies] to initiate strategic actions, outline priorities, identify the levels and
sources of fiscal and other resources necessary to implement the plan, determine and assign the
responsibilities for implementation, and establish realistic benchmarks and timeframes.102 The
State also financially supports the National Council of Persons with Disabilities.103
31.
Pursuant to Article 3, the State is bound to guarantee to those persons in situations of
vulnerability, exclusion and discrimination, the legal and administrative conditions that may
secure for them the exercise of such right, pursuant to the principle of equality under the law.104
Such guarantees are present in this case. Beginning with Petitioners declaration of
incompetency, Section 41 of Exclutias Civil Code permits individuals to legally challenge their
declarations of incompetency.105 Furthermore, as the appellate court indicated to Petitioner and
ODNEI, the appropriate remedy for challenging the declaration of incompetency would be an
unconstitutionality action before the Constitutional Court of Exclutia.106 This demonstrates that
Exclutia provides legal means for persons with disabilities to exercise their rights.

100

HC 6.
CQ 30.
102
Stephanie Ortoleva, Esq. & With Research Assistance from Alec Knight, Who's Missing? Women with
Disabilities in U.N. Security Council Resolution 1325 National Action Plans, 18 ILSA J. INT'L & COMP. L. 395, 398
(2012).
103
CQ, 30.
104
Sawhoyamaxa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR, 29 March 2006,
189.
105
HC 21, 37.
106
HC 34.
101

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32.

La Casita did not violate Petitioners right to juridical personality. Within the context of

state shelters and psychiatric care facilities, La Casitas actions and services complied with
Article 3. In Sawhoyamaxa Indigenous Community v. Paraguay, the Court evaluated an Article 3
violation in which the question concerned whether the petitioners existence and identities were
ever legally recognized.107 The Court focused its analysis on the lack of official documentation
of the existence of several members of the indigenous Sawhoyamaxa Community.108 The state
hospital did not have any birth or death records, nor any other document provided by the State
capable of evidencing [the petitioners] existence and identity.109
33.
In the present case, La Casita documented and provided records, recognizing Petitioners
existence and identity. When Petitioner first arrived at La Casita, a social worker interviewed her
and recorded her information.110 The attending physician and the psychiatrist both documented
Petitioners medical exam and diagnosis of major depression.111 The trial court reviewed these
files and records during Petitioners incompetency hearing.112 The domestic proceedings created
more records when the judge requested another psychiatrist perform an expert medical
examination of Petitioner.113
34.
Violating Article 3 implies an absolute denial of the possibility of being holder of such
rightsand renders individuals vulnerable to the non-observance of the same by the State.114
That is not the case here. In Sawhoyamaxa Indigenous Community, the Court ordered Paraguay
to implement mechanisms enabling all persons to register their births and get any other
identification documents, ensuring that these processes are, at all different levels, accessible both
107

Sawhoyamaxa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR, 29 March 2006,
192.
108
Id. at 190.
109
Id.
110
HC 18.
111
Id.
112
Id.
113
HC 22.
114
Id.

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legally and geographically, to render the right to personality before the law operative.115 Those
remedies are already present in this case. Exclutia and La Casita complied with Article 3,
documented her existence and identity, and provided legal and administrative means for
Petitioner to exercise her rights.
3.3.2
35.

Petitioners Rights to Humane Treatment and Personal Liberty

Article 5 states [e]very person has the right to have [her] physical, mental, and moral

integrity respected[n]o one shall be subjected to torture or to cruel, inhuman, or degrading

punishment or treatment. All persons deprived of their liberty shall be treated with respect for the
inherent dignity of the human person.116 As a resident at La Casita, Petitioner did not have an
absolute right to physical liberty. The crux of analyzing Articles 5 and 7 pertains to the
conditions and treatment received during detention, not its prima facie demonstration.117 For
example in Herzcegfalvy v. Austria, the European Court of Human Rights (ECHR) ruled that
the long-term detention of a man in prolonged physical restraints did not violate the European
Convention because such treatment was a form of medical necessity.118 La Casita acted in the
interests of the residents well-being.
36.
The IACHR states that Article 5 must be interpreted in light of the UN Principles for the
Protection of Persons with Mental Illness and for the Improvement of Mental Health Care119
(MI Principles). These principles are regarded as the most complete standards for protection
of the rights of persons with mental disability at the international levelserve as a guide to
States in the design and/or reform of mental health systems and are of utmost utility in evaluating
115

Sawhoyamaxa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR, 29 March 2006,
193.
116
ACHR, Art. 5.
117
Lawrence Gostin, The Human Rights of Persons with Mental Disabilities: A Global Perspective on the
Application of Human Rights Principles to Mental Health, 63 MD. L. REV. 20, 58 (2004).
118
Herczegfalvy v. Austria, ECHR, 24 September 1992, 140.
119
Victor Rosario Congo (Ecuador), IACHR, 13 April 1999, 54.

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the practices of existing systems.120 Exclutia complied with these MI Principles.
37.
La Casita is a state-funded shelter that houses people with physical, mental, intellectual
and/or sensory disabilities and homeless people.121 The only requirement for admission is that the
individuals do not have any type of support to live in the community. 122 The shelter is
organized into seven areas: separating men, women, and children based on their respective
medical needs and care.123 Each resident has his or her own bed.124 La Casita has common areas
for residents to eat in or watch television and park areas for residents to freely walk.125 La Casita
also provides residents with food, medication, and basic hygiene items.126 There is an emergency
room with medical supplies and a support staff that provides daily physical therapy,
psychological services, and training in daily life.127
38.
The conditions at La Casita are not conditions of torture. Article 1 of the Convention
Against Torture (CAT), defines torture as ...any act by which severe pain and suffering,
whether physical or mental, is intentionally inflicted on a person.128 As the ECHR established,
[f]or a practice to constitute torture, it must meet each of CATs four elements: (1) severe pain,
(2) intent, (3) purpose, and (4) an act or omission of a government authority.129 In the present
case, Petitioner failed to establish those elements.
39.

In Rosario Victor Congo v. Ecuador, the IACHR found that the State violated Article 5.

Congo, a detainee with a mental disability, died of malnutrition, hydro-electrolitic imbalance,

120

Michael L. Perlin, "Abandoned Love": The Impact of Wyatt v. Stickney on the Intersection Between
International Human Rights and Domestic Mental Disability Law, 35 LAW & PSYCHOL. REV. 121, 135 (2011).
121
CQ 8; HC 13.
122
HC 13.
123
HC 14.
124
HC 15.
125
Id.
126
HC 16.
127
Id.; CQ 32.
128
Convention Against Torture, Art. 1.
129
Herczegfalvy v. Austria, ECHR, 24 September 1992, 140.

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and heart and lung failure as a result of Ecuador's gross negligence and willful acts.130 While at
the rehabilitation center, a guard harassed and beat Congo with a club.131 The State deprived
Congo of any medical treatment and placed Congo in isolation where he was naked and cut off
from communication.132 Petitioners circumstances are clearly distinguishable. She received
medical treatment.133 She was never physically abused, never forced to be naked, and never cut
off from communication. Additionally, Petitioner had liberty to walk around the park or visit
the common areas. For example, a Czech Republic court found that the residents of a care
home for persons with physical disabilities were deprived of their right to personal liberty
because the residents were never allowed to leave their building.134 Exclutia complied with
Petitioners right to humane treatment.
40.

Furthermore, Petitioners four-hour stay in La Casitas isolation room did not violate her

rights to humane treatment and personal liberty. Petitioners limited time in the isolation room
does not qualify as arbitrary arrest or imprisonment under Article 7. In Munjaz v. The United
Kingdom Judgment, the ECHR applied the MI Principles to assess the alleged violations of
personal liberty.135 Principle 11 states that involuntary seclusion of a patient shall not be
employed except in accordance with the officially approved procedures of the mental health
facility and only when it is the only means available to prevent immediate or imminent harm to
the patient or others.136

130

Michael L. Perlin, "Abandoned Love": The Impact of Wyatt v. Stickney on the Intersection Between
International Human Rights and Domestic Mental Disability Law, 35 LAW & PSYCHOL. REV. 121, 135 (2011).
131
Victor Rosario Congo (Ecuador), IACHR, 13 April 1999, 9.
132
Id. at 10.
133
HC 25-28.
134
Janos Fiala-Butora, Disabling Torture: The Obligation to Investigate Ill-Treatment of Persons with Disabilities,
45 COLUM. HUM. RTS. L. REV. 214, 224-25 (2013).
135
Munjaz v. United Kingdom, ECHR, 17 July 2012, 38.
136
United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental
Health Care. http://www.un.org/documents/ga/res/46/a46r119.htm (emphasis added).

21

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41.

The isolation rooms are not a mechanism of punishment. They do not degrade or

dehumanize. The rationale and function of these rooms are grounded in concerns for resident and
hospital staff safety. Under La Casitas policies, only individuals in crisis are placed in these
rooms.137 Isolating individuals in crisis not only protects the individual from her own actions but
also protects the hospital staff and other residents from potential physical harm. Additionally,
without isolation, the actions of one emotionally and mentally unstable resident can trigger
similar or more dramatic breakdowns in other residents. Isolation is a better alternative than
using a taser gun or injecting residents with drugs to subdue them.
42.
Here, La Casita followed its own policies in its decision to place Petitioner in an isolation
room. Upon learning one of her friends died of a heart attack, Petitioner became hysterical and
physically pushed a staff member when he asked her to calm down.138 Before Petitioner could act
out further, staff members restrained and placed her in isolation for four hours.139 La Casita had a
legitimate justification: Petitioners actions indicated that she could have harmed herself, other
residents, or the staff. Petitioners four-hour stay was typical to stays La Casita gives other
individuals in crisis.140
43.

The right to personal liberty and security is not an absolute right. Article 7 states that an

individual may be deprived of her physical liberty for reasons and under the conditions
established by law.141 There is legal basis for Petitioners deprivation of physical liberty.
Article 41 of Exclutias Civil Code enumerates different grounds for regulating the legal
capacity of individuals, including persons with disabilities.142 The trial court determined

137

HC 24.
HC 40.
139
Id.
140
HC 24.
141
ACHR, Art. 7.2.
142
HC 21.
138

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Petitioner incompetent and appointed Dr. Lira as her guardian.143 Thus, Petitioner surrendered
certain rights; one of these rights being the ability to leave La Casita of her own volition.
44.

Even if the Court finds that Petitioners initial detention is separate from her subsequent

stay, she was not detained against her will. Petitioner did not resist or make any remarks when
the police officer drove her to La Casita.144 During her intake interview with the social worker
and her meetings with doctors, Petitioner voluntarily chose to answer their questions and remain
at the shelter.145 For the three weeks between her arrival and declaration of incompetency,
Petitioner was free to leave.146 She was not obligated to stay; she chose to stay.
3.3.3
45.

Petitioners Right to Privacy

Under Article 11, [e]veryone has the right to have [her] honor respected and [her]

dignity recognized. In Artavia Murillo v. Costa Rica, the Court stated that Article 11 requires
the State to protect individuals against the arbitrary actions of State institutions that affect their
private life.147 La Casita did not arbitrarily or abusively interfere with Petitioners privacy.
46.
La Casitas policy of injecting all adult female residents with contraceptives did not
violate Petitioners right to privacy.148 The Court holds that the decision of whether or not to
become a parent is part of the right to privacy.149 However, the Court also states that States are
responsible for regulating and overseeing the provision of health services to ensure effective
protection of the right to life.150 Health is a state of complete physical, mental and social well143

HC 23.
CQ 28.
145
HC 18-20.
146
HC 12, 22.
147
Artavia Murillo et al. (in vitro fertilizations) v. Costa Rica (Preliminary Objections, Merits, Reparations and
Costs), IACtHR, 28 November 2012, 142.
148
HC 26.
149
Artavia Murillo et al. (in vitro fertilizations) v. Costa Rica (Preliminary Objections, Merits, Reparations and
Costs), IACtHR, 28 November 2012, 143.
150
Ximenes-Lopes v. Brazil (Merits, Reparations and Costs), IACtHR, 4 July 2006, 99; Cornejo et al. v. Ecuador.
(Merits, reparations and costs), IACtHR, 22 November 2007, 121.
144

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being, not merely the absence of disease or infirmity.151 The decision to inject all adult female
residents with contraceptives was not arbitrary because it was made after staff became aware of
sexual activity among the residents.152 Neither was this decision abusive; it was made in the
interest of the residents health and safety. A study published by the New Zealand Medical
Journal reported less than half of female patients with mental and physical disabilities knew
how to protect themselves from sexually transmitted diseases and less than 10% regularly used
condoms.153 Instead of forbidding all sexual activity, La Casita provided contraceptives to
protect them from sexually-transmitted diseases and accidental pregnancies.154
47.
With respect to the conditions and services at La Casita, Exclutia complied with Article
11. The Court interprets the right to privacy broadly, holding the protection of private life
encompasses a series of factors associated with the dignity of the individual[and] aspects of
physical and social identity.155 Yet, within the context of state hospitals and shelters, patients and
residents do not have an absolute right.
48.
Although La Casitas actions affected Petitioners physical identity, they did not
disrespect or dishonor her identity. In Yankov v. Bulgaria, the ECHR held that the act of shaving
a detainees head violated the right to privacy because its motive had been to humiliate and
punish.156 Here, Petitioner received a haircut, however as La Casita staff explained, this was
done to all of the residents for purposes of hygiene.157 La Casita did not force its residents to
wear certain clothing with the intent of stripping away their dignity. This is distinguishable from
151

World Health Organization, Constitution of the World Health Organization,

http://www.who.int/governance/eb/who_constitution_en.pdf, p. 1.
152
HC 26.
153
Egan TM, Siegert RJ, Fairley NA. Use of hormonal contraceptives in an institutional setting: reasons for use,
consent and safety in women with psychiatric and intellectual disabilities. NEW ZEALAND MEDICAL JOURNAL.
August 1993. http://www.ncbi.nlm.nih.gov/pubmed/8341476.
154
Artavia Murillo et al. (in vitro fertilizations) v. Costa Rica (Preliminary Objections, Merits, Reparations and
Costs), IACtHR, 28 November 2012, 143.
155
Id.; see also R.R. v. Poland, ECHR, 26 May 2011, 197.
156
Yankov v. Bulgaria, ECHR, 11 March 2004, 120, 130.
157
HC 24.

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a 2004 Hungarian court decision where the court found that forcing residents of a care home for
mentally ill to wear pajamas during the day as a punishment for violating house rules
constituted a privacy violation.158 Here, La Casitas resources are limited; it provides whatever
clothing it can to its residents. The fact that the clothing is old or ill-fitting is not grounds for
a privacy violation.159
49.
The Court characterizes the private sphere as by being exempt from and immune to
abusive or arbitrary interference or attacks by third parties or by public authorities.160 In
Valainas v. Lithuania, the ECHR held that [o]bliging the [detainee] to strip nakedshowed a
clear lack of respect andleft him with feelings of anguish and inferiority capable of humiliating
and debasing him.161 However, none of La Casitas actions caused Petitioner to feel anguish and
inferiority. La Casitas purpose is to provide shelter to those who are helpless. Its services do not
humiliate or debase its residents. La Casita complied with Article 11.

3.4

EXCLUTIA COMPLIED WITH ARTICLES 8, 25 AND 24 IN CONJUNCTION

WITH ARTICLES 1.1 AND 2

50.

Exclutia complied with Articles 8, 25, and 24, in conjunction with Articles 1.1 and 2.

Exclutias proceeding for the declaration of incompetency afforded Petitioner a right to a fair
judicial trial and equal protection under the law.162 Both the original declaration of incompetency
and the appointment of Dr. Lira as Petitioners representative were the results of a fair trial
adjudicated promptly by a competent, independent, and impartial tribunal. 163

158

Janos Fiala-Butora, Disabling Torture: The Obligation to Investigate Ill-Treatment of Persons with Disabilities,
45 COLUM. HUM. RTS. L. REV. 214, 226-27 (2013)
159
HC 24.
160
See. e.g. Ituango Massacres v. Colombia (Preliminary Objections, Merits, Reparations and Cost), 1 July 2006,
194; Atala Riffo and daughters v. Chile (Merits, Reparations and Costs), 24 February 2012, 161.
161
Valainas v. Lithuania, ECHR, 24 July 2001, 385, 417.
162
HC 4.
163
IACHR, Arts. 8(1), 25(1).

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3.4.1
51.

Article 41 of Exclutias Civil Code Complied with Petitioners Rights to A Fair

Trial, Judicial Protection and Equal Protection of the Law

Article 8 ensures individuals the right to due process of law.164 In substance, due process

of law consists of the guaranteed right of every person to a hearing within a reasonable time by a
legally established competent, independent, and impartial tribunal.165 Further, Article 25
requires said procedures to be accessible and simple with the bodies in charge of them equipped
with the necessary technical and material conditions to provide a timely response to the
requests made within their framework.166
52.
For example, in the case of Genie-Lacayo v. Nicaragua, concerning the alleged murder of
a 16 year-old boy by Nicaraguan military personnel, the Court found a period of five years
exceeded the limits of reasonableness.167 Because litigation continued unresolved for more than
five years, the Court held that Nicaragua violated Article 8.168
53.
Moreover, it is not enough that such recourses exist formally: they must be effective in
giving results or responses to violations of the rights established in the ACHR.169 For instance, in
the case of Las Palmeras v. Colombia, the Court found that Colombias military tribunals lacked
the independence and impartiality required by Article 8 to adjudicate a matter rising from an
armed operation by the Colombian National Police and Army.170 The Court explained it was
self-evident that the relatives of the victims did not have an effective remedy. 171 As a result, the
Court held Colombia violated Article 25 by failing to provide effective judicial remedies to
victims of human rights violations.172
164

Genie-Lacayo v. Nicaragua (Merits, Reparations and Costs), IACtHR, 29 January 1997, 74.
Id.
166
Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR, 17 June 2005, 102.
167
Genie-Lacayo v. Nicaragua (Merits, Reparations and Costs), IACtHR, 29 January 1997, 81.
168
Id. at 81, 97.
169
Las Palmeras v. Colombia (Merits), IACtHR, 6 December 2001, 58.
170
Id. at 2, 53-54.
171
Id. at 2, 60-61.
172
Id.
165

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54.

Under Article 24, all persons are entitled, without discrimination, to equal protection of

the law.173 The right to equal protection of the law requires national legislation to accord its
protections without discrimination.174 Distinctions based on reasonable and objective criteria may
serve a legitimate state interest so long as such distinctions pursue a legitimate aim and employ
means which are proportional to the end sought.175
55.
Everyone affected by a diminution of physical or mental capacities is entitled to receive
special attention designed to help achieve the greatest possible development of personality.176
No discrimination exists if the difference in treatment has a legitimate purpose and it does not
lead to situations contrary to justice, to reason or to the nature of things.177
56.
States have a duty to supervise and guarantee that in all psychiatric institutions patients
receive worthy, humane, and professional treatment and that they are protected against
exploitation, abuse, and degradation.178 The State as guarantor must provide assistance to
individuals who are unable to take care of themselves or whose capacity to do so is seriously
impaired.179
57.
Finally, deference should be given to the state authorities determinations of mental
disability, because states have the best capacity to evaluate the evidence.180 Nonetheless,
decisions adopted by domestic bodies should be duly justified; otherwise, they are arbitrary
decisions.181 For instance, in Claude-Reyes et al v. Chile, the Court found an appellate courts
decision arbitrary, because it did not make even the least reference to the reasons why it was
173

ACHR, Art. 24.

Mara Eugenia Morales de Sierra (Guatemala), IACHR, 19 January 2001, 31.
175
Id.
176
Additional Protocol to the ACHR in the Area of Economic, Social and Cultural Rights, Art. 18.
177
Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica (Advisory Opinion),
IACtHR, 19 January 1984, No. 34; Laurence Burgorgue-Larsen. The Inter-American Court of Human Rights: Case
Law and Commentary. Oxford University Press 2011, p. 577.
178
Ximenes-Lopes v. Brazil (Merits, Reparations and Costs), IACtHR, 4 July 2006, 108.
179
Ximenes-Lopes v. Brazil (Reasoned Opinion of Judge Sergio Garca-Ramrez), IACtHR, 4 July 2006, 8.
180
Winterwerp v. the Netherlands, ECHR, 24 October 1979, 40.
181
Claude-Reyes et al. v. Chile (Merits, Reparations and Costs), IACtHR, 19 September 2006, 120.
174

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evident from the facts and background in the application that [the appeal] was clearly
without grounds.182
58.
In the present case, Petitioner was granted a prompt, fair trial before an independent and
impartial tribunal. The declaration of incompetency was filed and decided in less than two
months.183 The judge who declared Petitioner incompetent pursuant to Article 41 of the Civil
Code did so only after examining the documentation submitted, ordering an independent medical
examination of the petitioner, and learning that she had no relatives to care for her.184
59.
Additionally, under the current terms of Article 41 of the Civil Code, the extent and time
limit of Dr. Liras guardianship over Petitioner must be reviewed every year.185 Furthermore, at
any time, the Public Ministry or guardian may request the review and/or revocation of the
declaration of incompetency.186 Otherwise, in the event the judge finds that Petitioners clinical
symptoms improved during one of her yearly reviews, the judge may revoke the guardianship.187
60.
Finally, the decisions of both the trial court and appellate court are justified. Both clearly
stated the grounds upon which the motions to vacate were denied. Initially, the trial court on
September 18, 2008 denied ODNEIs initial motion to vacate based upon a lack of standing.188
Then, the appellate court denied the appeal on the grounds of no abuse on part of Petitioners
guardian.189 Thus, the Court should find that the current Article 41 of the Civil Code does not
violate Articles 8, 25, and 24 of the ACHR.
3.4.2

The Pending Draft of Article 41 Complies with International Standards

182

Id. at 135-136.
HC 22-23.
184
HC 22.
185
CQ 24.
186
HC 21.
187
CQ 68.
188
HC 32.
189
HC 24.
183

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61.

Conversely, in the event the Court finds the current Article 41 of the Civil Code to be

insufficient in safeguarding the rights enumerated in the ACHR, the Court should alternatively
find that Exclutia was acting in good faith under its obligation pursuant to Article 1.1 to respect
the rights and freedoms recognized in the ACHR by undertaking to adopt, in accordance with its
constitutional processes, legislation necessary to give effects to those rights or freedoms.
62.
The amended Article 41 of Exclutias Civil Code will ensure future proceedings for
declarations of incompetency comply with the rights found in Articles 8, 25, and 24. Article 2
obligates Party States to establish, in accordance with their Constitutional procedures,
legislative or other measures as may be necessary for effective exercise of the rights and
freedoms protected by the ACHR.190 The changes made to the Article 41 of the Civil Code are
effective in achieving the goal and purpose of the treaty, i.e., have effet utile.191
63.
Legislation alone is not enough to guarantee full effectiveness of the protected rights.192
States must comply with their obligations in good faithpacta sunt servandathey cannot
simply justify failure to perform on their own internal law.193 Thus, while mental illness may
entail restricting or modifying access to court, it may not justify the inopportunity to be heard
either in person or through representation.194 For example, in Tiu Tojn v. Guatemala, the Court
held that in order to guarantee the members of indigenous communities the right to a fair trial,
the State needed to ensure that they understand legal proceedingsoffering them interpreters or
other effective means.195
64.
Even if the current legislation is inadequate, Exclutia argues that Congress pending bill
to amend Article 41 of the Civil Code meets the international standards on human rights for
190

Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations and Costs), IACtHR, 17 June 2005, 100.
Juvenile Reeducation Institute v. Paraguay (Preliminary Objections, Merits, Reparations and Costs), IACtHR, 2
September 2004, 206.
192
Tiu Tojn v. Guatemala (Merits, Reparations and Costs), IACtHR, 26 September 2008, 99.
193
Garca Asto and Ramrez Rojas v. Peru (Monitoring Compliance with Judgment), IACtHR, 26 Nov. 2013, 4.
194
Winterwerp v. the Netherlands, ECHR, 24 October 1979, 60.
195
Tiu Tojn v. Guatemala (Merits, Reparations and Costs), IACtHR, 26 September 2008, 100.
191

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persons with disabilities.196 The draft legislation mirrors the 1977 Parliamentary Assembly of the
Council of Europe recommendations to states in establishing independent special mental welfare
tribunals or commissions which could by their own initiative discharge patients where
confinement is no longer necessary.197 The 1977 Parliamentary Assembly recommended
legislative changes to ensure court decisions are not based on medical reports only, but also
allow mental patients the right to be heard.198 The amended draft requires the judge to consider
the opinions of any interested parties by means of a public hearing.199
65.
Exclutia acknowledges that the draft does not fully incorporate the goals of the U. N.
Committee on the Rights of Persons with Disabilities. In its concluding observations, that
committee urged Peru, Argentina, Paraguay, and El Salvador to abolish the practice of judicial
interdiction and replace laws allowing for guardianship and trusteeship with substitute decisionmaking models that uphold the autonomy, wishes and preferences of the persons concerned.200
Although the present draft of Article 41 does not create a complete supported decision-making
model of trusteeship, the State reminds the Court that Article 41 is limited to only individuals
who cannot express their will by any means and need the assistance of another person, and is
governed by the principles of suitability, necessity, and proportionality.201
66.
At the same time, Exclutia argues that the writ of habeas is an alternative means of
satisfying its Article 1.1 and Article 2 obligations to effectuate Articles 8, 25 and 24. In
particular, the State relies upon the ECHRs reasoning that the right of access to a court must be

196

CQ 68.
Recommendation 818 on the Situation of the Mentally Ill, Parliamentary Assembly of the Council of Europe,
1977, 13(I)(ii).
198
Id.
199
HC 37.
200
16-20 April 2012 (Peru), 25; 17-28 September 2012 (Argentina), 19; 15-19 April 2013 (Paraguay), 30; 2-13
September 2013 (El Salvador), 28.
201
CQ 47; HC 37.
197

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practical and effective in that it offers an individual a clear, practical opportunity to challenge
an act that is an interference with his rights.202
67.
On the other hand, the ECHR recognizes that any shortcomings in the fairness of the
proceedings may be remedied at a later stage, either at the same level or by a higher court.203
Furthermore, it maintains that procedural flaws can be remedied if an independent judicial body
reviews the claim and examines the matter in light of the circumstances of the case.204
68.
Thus, the writ of habeas satisfies Exclutias obligations. Because Exclutia is a monist
state via the constitutional amendment passed in 2008 giving human right treaties the same status
as constitutional provisions, the constitutional courts can continue to challenge the validity of
Exclutias older domestic laws through the writ of habeas and prevent numerous potenial
violations from occurring.205

3.5 PROVISIONAL MEASURES

69.

The Court should deny the request for provisional measures on behalf of Petitioner and

lift the precautionary measures granted for two reasons. First, the State implemented the
connected precautionary measures effectively to the extent that the requested provisional
measures are neither pertinent nor necessary. Second, La Casitas previous conditions and
services did not violate the rights established in the ACHR.206
70.
The State contends that if the Court denies the request for provisional measures on behalf
of Petitioner, then the IACHR must lift its precautionary measures according to the IACHRs
updated Rules of Procedure.207 Previously, when considering provisional measures, the Court
only evaluated arguments directly related to the extreme gravity, urgency, and need to avoid
202

Bellet v. France, ECHR, 4 December 1995, 36.

Helle v. Finland, ECHR, 19 December 1997, 54; Schuler-Zgraggen v. Switzerland, ECHR, 24 June 1993, 52.
204
Obermeier v. Austria, ECHR, 28 June 1990, 70.
205
CQ 21.
206
IACHR Rules of Procedure, Art. 76(2).
207
HC 41.
203

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irreparable damages.208 The Court could not consider arguments on the merits of the matter.209
However, the IACHRs updated Rules of Procedure now permit the Court to evaluate the merits.
Articles 25(8), 76(1), and 25(13) implicitly vest the Court with the authority to review the
underlying claim giving rise to the granted precautionary measures.
71.
First, Article 25(8) clarifies that the IACHRs grant of precautionary measures and its
adoption by the State do not constitute a prejudgment on any of the rights protected by the
ACHR.210 Second, Article 76(1) permits the IACHR to request the Court adopt provisional
measures in cases of extreme seriousness and urgency, when it becomes necessary to avoid
irreparable damage to persons.211 Third, Article 25(13) explicitly prohibits the IACHR from
considering new requests for precautionary measures after the dismissal of provisional measures
by the Court, unless there are new facts justifying doing so.212 Thus, taken together with
Articles 25(8) and 76(1), Article 25(13) implies that the Court now has the power to evaluate
underlying claims and repeal precautionary measures granted by the IACHR. In this sense,
Article 25(13) is an exception that confirms the rule.
71.
Precautionary measures are granted only in serious and urgent situations. When they are
granted, they have an exceptional naturemaintained in force only so long as necessary.
Precautionary measures should be lifted when the underlying situation is determined to either no
longer exist or be found to have never existed.213 For the purposes of this test, serious refers to
grave impact, of a most intense or elevated degree, which actions or omissions could have on a
protected right.214 Similarly, urgent refers to a risk or threat that is imminent, requiring
208

Children Deprived of Liberty in the Complexo de Tatuap of FEBEM (Brazil), 25 November 2008, 4.
Id. at 13.
210
IACHR Rules of Procedure, Art. 25(8).
211
IACHR Rules of Procedure, Art. 76(1).
212
IACHR Rules of Procedure, Art. 25(13).
213
IACHR Rules of Procedure, Art. 25(1); Children Deprived of Liberty in the Complexo de Tatuap of FEBEM
(Brazil), 25 November 2008, 16.
214
IACHR Rules of Procedure, Art. 25(2)(a); Belfort Istriz (Venezuela), 15 April 2010, 8.
209

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immediate response, capable of materializing without preventive or protective action.215
Irreparable refers to injuries of such naturenot a question of goods or legal interestswhere
reparation, restoration, or compensation would be inadequate.216 These elements must be present
in every instance; Petitioner bears the burden of demonstrating their existence to the Court.217
72.
In the present case, Petitioner cannot establish the prima facie elements. The State has
effectively implemented the precautionary measures. Petitioners four-hour isolation was an
aberration committed in the interest of protecting the safety of others.218 There is no ongoing
serious and urgent situation presenting a risk of irreparable harm to her or to the other residents.
Alternatively, the previous practices never violated the rights contained within the ACHR and
should be permitted.
73.
As previously analyzed in section 3.3.2 concerning Articles 5 and 7, the practice of
placing individuals in crisis in the isolation rooms is not of grave impact. It does not impact a
protected right in a serious manner. Even if the Court disagrees, Petitioners four-hour isolation
on April 6, 2014 was the only incidence of breach. The threat of future detainment to her or the
other residents is not imminent because the practice is not arbitrary. Petitioner was placed into
isolation because she was in crisis she was a threat to herself and others.219
74.
Finally, the harm is not irreparable. Her detainment and the previous detainment of other
residents were limited in time. As discussed above, four to five hours of isolation does not
amount to an Article 5 or 7 violation if the isolation is justified.220 Whatever alleged harm she or
previous residents suffered by being placed in isolation, it was of such a nature that it could
adequately compensated by damages, restoration, or reparation.
215

IACHR Rules of Procedure, Art. 25(2)(b); Belfort Istriz (Venezuela), 15 April 2010, 8.
IACHR Rules of Procedure, Art. 25(2)(c); Belfort Istriz (Venezuela), 15 April 2010, 8.
217
Jo M Pasqualucci. The Practice and Procedure of the Inter-American Court of Human Rights. Cambridge;
Cambridge University Press 2012, p. 265.
218
HC 41.
219
HC 24, 40.
220
HC 24.
216

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75.

For these reasons, the Court should deny the request for provisional measures and lift the

precautionary measures placed upon La Casita.

CONCLUSION

76.

Exclutia did not discriminate against Petitioner on the basis of her disabilities. As a blind

woman with a severe mental disability, Petitioner needed resources and support. Exclutia
provided Petitioner with shelter, healthcare and support from a community of persons with
disabilities. Under Article 41 of Exclutias Civil Code, Exclutia provided Petitioner with the due
process of law, judicial protection, and equal protection of the law. Thus, Exclutia acted in
compliance with Articles 3, 5, 7, 8, 11, 24 and 25 in conjunction with Articles 1.1 and 2.

REQUEST FOR RELIEF

77.

Exclutia respectfully requests:

1.
2.
3.
4.
5.

The Court dismiss this case for lack of timeliness;

Alternatively, dismiss this case based upon the lack of exhaustion of domestic remedies;
On the merits, find the State in compliance with Articles 1.1, 2, 3, 5, 7, 8, 24, and 25;
Dismiss the request for provisional measures; and
Lift the precautionary measures granted by the IACHR.

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