B Vs. El Salvador
El Salvador, Inter-American Court of Human Rights

B Vs. El Salvador

DATE 29-05-2013DOWNLOAD LEGAL DECISION

Judges:

Alberto Pérez Pérez 
Alberto Pérez Pérez

Alberto Pérez Pérez Alberto Pérez Pérez

Diego García-Sayán

Diego García-Sayán

Eduardo Ferrer Mac-Gregor Poisot
Eduardo Ferrer Mac-Gregor Poisot

Eduardo Ferrer Mac-Gregor Poisot Eduardo Ferrer Mac-Gregor Poisot

Eduardo Vio Grossi

Eduardo Vio Grossi

Humberto Antonio Sierra Porto

Humberto Antonio Sierra Porto

Manuel E Ventura Robles

Manuel E Ventura Robles

Pablo Saavedra Alessandri

Pablo Saavedra Alessandri

 Roberto Figueiredo Caldas

Roberto Figueiredo Caldas

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Topics:

AbortionMaternal Health

Related standards:

American Convention on Human Rights, Pact of San José, Costa Rica. Article 4. Right to life.

RELATED STANDARDS

American Convention on Human Rights, Pact of San José, Costa Rica. Article 4. Right to life.

1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. 2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply. 3. The death penalty shall not be reestablished in states that have abolished it. 4. In no case shall capital punishment be inflicted for political offenses or related common crimes. 5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women. 6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.
American Convention on Human Rights, Pact of San José, Costa Rica. Article 5. Right to Humane Treatment

RELATED STANDARDS

American Convention on Human Rights, Pact of San José, Costa Rica. Article 5. Right to Humane Treatment

1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No 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. 3. Punishment shall not be extended to any person other than the criminal. 4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons. 5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
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RELATED STANDARDS

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WHY IT MATTERS:

In the Inter-American human rights system, there are two types of urgent measures: (i) precautionary measures, which are issued by the Inter-American Commission on Human Rights in accordance with Article 25 of the Commission’s Rules of Procedure; and (ii) provisional measures, which are granted by the Inter-American Court of Human Rights in accordance with Article 27 of its Rules of Procedure.

Provisional measures may be adopted if the requirements of extreme gravity, urgency, and need to avoid irreparable damage to persons are met.

 The provisional measures adopted by the IACHR Court in this case set an important precedent for the sexual and reproductive rights of women. In its decision, the Court emphasized pregnant women’s rights to life, personal integrity, and health. The ruling is particularly important in the context of criminalization of abortion in El Salvador, which places the lives and health of women and girls at risk, as shown by the instant case.

The Inter-American Court of Human Rights adopted provisional measures with regard to El Salvador in the matter of “B” in May 2013. “B” was a 22-year-old woman suffering from serious health problems who was pregnant with an anencephalic fetus (without a brain), an anomaly incompatible with life outside the uterus. Because of her illness, the pregnancy placed her life and health at serious risk, so termination of pregnancy was indicated. Despite her diagnosis, under Salvadoran law, she could not abort, because abortion is a crime in all cases in El Salvador. The Inter-American Court adopted provisional measures to protect the life, personal integrity, and health of B., ordering El Salvador to ensure that the medical procedures necessary to protect her rights were carried out.

On April, 18, 2013, the Inter-American Commission on Human Rights was informed of violations of the human rights of “B.” in El Salvador. On April 29, 2013, the Commission asked the State Party to adopt precautionary measures to protect the life, personal integrity, and health of B., noting that despite the fact that medical professionals had recommended a termination of pregnancy due to the serious risk the pregnancy posed to her life and health, the procedure had not been performed. It further noted the absence of a prompt ruling by the Supreme Court of Justice on the application for amparo filed on April 11, 2013, requesting authorization for a termination of pregnancy, which placed B. at increased risk with each passing day.

On May 24, 2013, the Commission submitted a request to the Court for provisional measures on behalf of B., because El Salvador had not complied with the Commission’s precautionary measures, and B. was in the 24th week of a high-risk pregnancy.

The Inter-American Court of Human Rights started its analysis by considering whether the three conditions required by Article 63(2) of the Convention for the Court to be able to order provisional measures were present.

These elements are (i) extreme gravity, meaning gravity at its highest or most intense level; (ii) urgency, meaning that the risk or threat involved must be imminent and require an immediate response; and (iii) a reasonable probability that damage will occur, and it should not relate to legal interests or rights that can be repaired.

The Court found that B.’s health condition was indeed extremely grave and that her pregnancy could lead to multiple complications and possibly death. The extreme gravity of the matter was therefore proved prima facie. Turning to the question of urgency, the Court noted that B. was undergoing a series of “physiological changes inherent in pregnancy, added to the natural history of the underlying disease,” and that it could not be predicted when a potentially fatal medical emergency could occur. It was therefore necessary and urgent to take measures to protect her rights to life, health, and personal integrity.

Regarding the alleged irreparable damage that could be produced if the necessary measures were not taken, the Court underscored that B.’s treating physicians concluded that her disease, added to the fact that she was pregnant with a fetus with anencephaly (absence of a brain), could entail risks to her physical and mental health. In addition, it indicated that “the emotional situation of the individual examined is also affected by her belief that she could be faced with a prison sentence” if she had an abortion, since abortion was a crime in El Salvador. The Court therefore determined that risk of irreparable damage to the life and physical and mental integrity of B. had been proved.

Based on all the above, the Inter-American Court considered that all the requirements were met to adopt provisional measures in favor of B. The Court therefore decided to require the State Party to adopt and guarantee, urgently, all the necessary and effective measures so that the medical team who was treating B. could take, without any interference, the medical measures they consider opportune and desirable to ensure due protection of the rights established in Articles 4 and 5 of the American Convention on Human Rights and, in this way, avoid any damage that could be irreparable to B.’s rights to life, personal integrity, and health.

The Inter-American Court ruled as follows:

1. To require the State Party to adopt and guarantee, urgently, all the necessary and effective measures so that the medical team who was treating B. could take, without any interference, the medical measures they consider opportune and desirable to ensure due protection of the rights established in Articles 4 and 5 of the American Convention on Human Rights and, in this way, avoid any damage that could be irreparable to B.’s rights to life, personal integrity, and health, as indicated in considering paragraphs 11 to 17 of its Order.

2. To require the State Party to provide information to the Inter-American Court, by June 7, 2013, with regard to the decision in the first operative paragraph of the Order.

3. To require the representatives and the Inter-American Commission to present to the Inter-American Court any observations they considered pertinent about the report mentioned in the second operative paragraph of the Order within two weeks.

4. To require the State to provide information to the Inter-American Court every two weeks, starting on June 7, 2013, about the provisional measures adopted in compliance with the decision.

5. To ask the representatives and the Inter-American Commission to present their observations within one week of notification of the State’s reports indicated in the fourth operative paragraph.

6. To require the Secretariat to notify the State and the Inter-American Commission of the Order and, through the latter, to notify the representatives of the beneficiary.

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