“Judicial Guarantees for the Protection of the Rights of Persons in a Condition of Vulnerability in a State of Sanitary Emergency” by the Hon. Teresa Cárdenas Puente

The spread of COVID-19 worldwide, not only led the World Health Organization (WHO) to declare an international health emergency but also that all countries worldwide take measures against the health crisis caused by the emergence and expansion of this, already considered a pandemic, which caught the world off guard, generating different responses. But most agreed to declare a state of emergency, and the adoption of restrictive measures to transit, including the closure of air, land and sea borders in some cases, and compulsory social isolation (quarantine), among other measures which imply the restriction of some fundamental rights recognized by the States in their respective Constitution. It is precisely in this context in which people in vulnerable conditions are affected, especially disabled people and older adults from this group, which is why it is necessary that the judicial systems adopt the indispensable guarantees for the protection of the rights of these people with greater risk, constituting a judicial guarantee the Appointment of Support and safeguards resource.

The State of Emergency, the Inter-American Human Rights System

The American Convention on Human Rights, whose greatest virtue is the conventional nature of protecting human rights, in addition to recognizing them, in its article 27.1 establishes the conditions for the declaration of a state of emergency, establishing tactical assumptions of extraordinary situations, also establishes limits or restrictions of that declarative power that the States have, which suspends the conventional obligations contracted for the respect of the rights that are recognized in it, pointing out the following: “In case of war, public danger or other emergencies that threatens the independence or security of the State party, it may adopt provisions that, to the extent and for the time strictly limited to the requirements of the situation, suspend the obligations contracted under this Convention, provided that such provisions are not incompatible with the other obligations imposed by international law and does not enter ñen any discrimination based on race, color, sex, language, religion or social origin ”; Provision, which sometimes leads the Inter-American Court to interpret that the adoption of this measure is exceptional and that it must be tailored to the needs of the situation that is reasonably faced, without exceeding the measure that is strictly necessary. In short, what it requires is that it be proportional and temporary, in order to avoid extensions in time, disproportionality, deviation or abuse of power, since the arbitrary use of that power results in the affectation of democracy and limitations of human rights established in the American Declaration of the Rights and Duties of Man.

Contextualization of Judicial Guarantees

Judicial guarantees have an instrumental nature since they have the purpose of effective protection of human rights of a substantive and adjective nature, this because the States do not limit themselves to recognizing the rights of citizens through their inclusion in higher-ranking norms that govern its constitution and organization, essential in the political system. They are also obliged to design and establish indispensable mechanisms and guarantees for the effective protection of recognized rights, and in the specific case with special attention to judicial guarantees, under the understanding that it is through the judicial system that the citizen’s rights, which implies ensuring access to the human right to justice, the adequate and due process that results in fair decisions.

It is common to understand judicial guarantees as those that develop a set of concrete guarantees for the protection of human rights, generally referring to constitutional guarantees, such as the institution of Amparo, Tutela or constitutional protection, all of which make up the called “constitutional justice”. However, this conceptualization corresponds to generic or traditional judicial guarantees, since the Inter-American Court in Advisory Opinion OC-8/87 established a very specific approach to the notion of “guarantee” from its end, establishing that: The guarantees serve to protect, secure or assert the ownership or exercise of a right. As the States Parties have the obligation to recognize and respect the rights and freedoms of the person, they also have the obligation to protect and ensure their exercise through the respective guarantees (article 1.1), that is, by the appropriate means for the rights and freedoms are effective in all circumstances. The same Court later indicates that its extension includes any effective remedy before the courts of justice that fulfill the same purpose, in this case, to effectively guarantee the rights of citizens, as established in Advisory Opinion OC-9/87. of October 6, 1987, on Judicial Guarantees in States of Emergency (arts. 27.2, 25 and 8 American Convention on Human Rights) must be considered as indispensable judicial guarantees not subject to suspension, any other effective remedy before the competent judges or courts (art. 25.), aimed at guaranteeing respect for the rights and freedoms whose suspension is not authorized by the Convention itself. So we can also consider as judicial guarantees those ordinary resources that the judicial systems have, as well as an effective remedy before the judges or suitable means so that the rights and freedoms are effective in all circumstances.

Indispensable Judicial Rights and Guarantees Not Suspended

Although the Convention itself admits that in the face of certain exceptional situations, States have the power to declare a state of emergency, it also specifies specifically those rights that are not susceptible to being suspended in these contexts, because they include, so to speak, the hardcore for an adequate standard of living, under the perspective of dignity and equality as human conditions, thus in article 27. 2 states the following; “… Does not authorize the suspension of the rights determined in the following articles: 3 (Right to the Recognition of Legal Personality); 4 (Right to Life); 5 (Right to Personal Integrity); 6 (Prohibition of Slavery and Servitude); 9 (Principle of Legality and Retroactivity); 12 (Freedom of Conscience and Religion); 17 (Protection of the Family); 18 (Right to a Name); 19 (Rights of the Child); 20 (Right to Nationality), and 23 (Political Rights), nor of the judicial guarantees indispensable for the protection of such rights ”. The provision that in its last part indicates that the suspension of judicial guarantees essential to protect the rights not suspended during states of emergency is also not authorized because the assumption of absolute powers is prohibited in a democratic society.

People in a Vulnerable Condition in a State of a Health Emergency

The World Health Organization, on January 30, 2020, declared the international health emergency due to the coronavirus, due to the increase in cases worldwide, currently reaching 200 countries, more than 688,921 confirmed infections and 30,000 deaths to end of March 2020, this because the infection constitutes a global medical risk. The accelerated advance of this pandemic caught the world off guard, raised the alert level to the maximum, and caused a sequence of events. Responses to the health crisis caused by its emergence and expansion have followed different patterns, but most countries coincided in declaring a state of emergency, and the implementation of various restrictive traffic measures, which include the closure of area, land and sea borders in some cases, and mandatory social isolation (quarantine), implying the restriction of some fundamental rights that the Constitution recognizes as the right to work, commerce, among others, dictated under the common denominator of weak health systems, thus, in this context of sanitary measures dictated, it is populations in vulnerable conditions that are most affected, and within this group with much greater intensity, the ELDERLY adults and people with DISCAPACITY, due to multiple pre-existing risk factors generated by this pandemic, such as: i) Greater vulnerability to contagion due to the presence or predisposition to diseases, ii) Physical and / or sensory limitations, iii) Dependence on other people, iv) Abandonment, among others; people who in most cases subsist on pensions or other social assistance benefits provided by governments. These are people who, due to their disability, face transportation, and displacement difficulties, exposing themselves and their families to a serious risk of contagion when they must mobilize to collect their pensions, insurance procedures, health services, judicial attention, situations those that the Justice System cannot be a passive receiver.

Essential Judicial Guarantees for the Protection of Vulnerable Groups Especially Affected by the Health Emergency

The elderly and disabled adults are those who are especially vulnerable in this state of health emergency. In this perspective, it is necessary that the Judiciary (Judicial Power) provide a response to this population in dramatic conditions of vulnerability through judicial provisions that guarantee the immediate attention of their demands, which must be considered urgent, in addition to attending to procedures and measures to overcome this social contingency in equal conditions and above all guaranteeing urgent rights such as the right to food, which in many cases implies their own survival and the right to health, assistance and others linked to the right to life.
Thus, in these emerging contexts, judicial guarantees in favor of vulnerable people have to be activated, which the States have committed themselves to in the various international instruments for the protection of their rights, so that in the face of these health contingencies that affect this type of population crudely, it is necessary to adapt the protection mechanisms not only to attend cases of violations of fundamental rights but also to guarantee the effective enjoyment of urgent rights in restrictive contexts, such as the current state of international emergency, which constitute new challenges for the justice system, within the framework of the assumption of international obligations to ensure and promote the full exercise of the human rights and fundamental freedoms of persons with disabilities without any discrimination on the basis of disability, assumed by the States as provided in Article 4 of the C International Convention for Persons with Disabilities; “Adopt all the legislative, administrative and other measures that are pertinent to give effect to the rights recognized in this Convention …”; As well as the provisions of Article 3 of the Inter-American Convention on the Protection of the Human Rights of the Elderly. ” They will adopt and strengthen all legislative, administrative, judicial, budgetary, and other measures, including adequate access to justice in order to guarantee the elderly a differentiated and preferential treatment in all areas.”
In this case, with special attention to people with disabilities and the elderly, it is essential to implement adequate measures that allow immediate access to the justice service in order to meet urgent demands aimed at guaranteeing and protecting their rights in this state of emergency. Given the very limitations that these people have and those that arise from this exceptional state, so as to allow them to exercise their rights on equal terms, in this case, we especially refer to the demand and/or request for; “Designation of support and safeguards”, through which the designation of people considered as Support of these others who have limitations, a much higher risk of contagion, greater difficulties in transportation and transportation to exercise their priority rights inherent in their own subsistence, becoming an effective resource for the protection of rights by which, in attention to the advisory opinions indicated, we must consider it as an indispensable judicial guarantee.
Thus, the indispensable judicial guarantees for this group of vulnerable people must be accompanied by a set of provisions that allow access to justice and effective protection of their rights, measures that include; Digital access to the justice service to receive these types of claims, and to provide effective protection; the adaptation of the process as it is of an urgent nature, so that it concludes with the response by the justice system through its jurisdictional bodies to the specific case, this through the use of a set of tools for the development of procedural acts, which imply the implementation of telework in the management of the judicial office, given by the use of technological tools in the jurisdictional activity of easy access and availability, without the need for investment in software, resources and programs, but to dispose of those that already exist, such as the use of email and telephone lines for notification of resolutions, the use of smartphone messaging applications such as whatsapp or sky, the management of Google’s online agendas, the use of Google’s Hangout Meetings for development of the hearings in which the interaction and interview by the Judge to the applicant can be carried out and verify the manifestation of will, with the possibility of recording said diligence, in addition to the use of the “cloud” that allows information and files to be shared. The adaptation of digital access and teleworking to this type of process is made very easy and immediate since the process of designating supports and safeguards is processed through the non-contentious process called in comparative law as voluntary jurisdiction, which is characterized by the non-requirement of the defendant, but is a relationship between the applicant and the State, this because there is no controversy of interest, its purpose being to eliminate uncertainty in legal relationships, in this case, the “designation of a support” that guarantees the rights of the person in a condition of vulnerability and respect for its autonomy and legal capacity, which makes it easier and more expeditious.
Finally, in this context that has arisen worldwide, it is necessary to specify that the handling of the judicial process of people in vulnerable conditions, in general, should have a special focus on human rights in its processing and resolution. Likewise, with the phenomenon of globalization and the confirmation of the existence of world problems that go beyond the individual and the State, a new scenario is shown for the strengthening of the new generation of human rights in the international order, rights whose owner it is the community, as is the case of the human rights to development, peace, and solidarity. The latter as a principle of humanity that pushes us to a more just society.

Información del Diario “El País de España”, al 29 de marzo del 2020 disponible en: https://elpais.com/sociedad/2020/03/16/actualidad/1584379038_891570.html

This blog post was prepared by Judge Teresa Cárdenas Puente, IAWJ member. The views presented in this article are those of the author and do not necessarily represent the views of the IAWJ.