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1. The author of the
communication is Karen Noelia Llantoy Huamán, born in 1984, who claims to be
a victim of a violation by Peru of articles 2, 3, 6, 7, 17, 24 and 26 of the
International Covenant on Civil and Political Rights. She is represented by
the organizations DEMUS, CLADEM and Center for Reproductive Law and Policy.
The Optional Protocol entered into force for Peru on 3 October 1980.
FACTUAL BACKGROUND
2.1 The author became pregnant in March 2001, when she was aged 17. On 27
June 2001 she was given a scan at the Archbishop Loayza National Hospital in
Lima, part of the Ministry of Health. The scan showed that she was carrying
an anencephalic foetus.
2.2 On 3 July 2001, Dr. Ygor Pérez Solf, a gynaecologist and obstetrician in
the Archbishop Loayza National Hospital in Lima, informed the author of the
foetal abnormality and the risks to her life if the pregnancy continued. Dr.
Pérez said that she had two options: to continue the pregnancy or to
terminate it. He advised termination by means of uterine curettage. The
author decided to terminate the pregnancy, and the necessary clinical
studies were carried out, confirming the foetal abnormality.
2.3 On 19 July 2001, when the author reported to the hospital together with
her mother for admission preparatory to the operation, Dr. Pérez informed
her that she needed to obtain written authorization from the hospital
director. Since she was under age, her mother, Ms. Elena Huamán Lara,
requested the authorization. On 24 July 2001, Dr. Maximiliano Cárdenas Díaz,
the hospital director, replied in writing that the termination could not be
carried out as to do so would be unlawful, since under article 120 of the
Criminal Code, abortion was punishable by a prison term of no more than
three months when it was likely that at birth the child would suffer serious
physical or mental defects, while under article 119, therapeutic abortion
was permitted only when termination of the pregnancy was the only way of
saving the life of the pregnant woman or avoiding serious and permanent
damage to her health.
2.4 On 16 August 2001, Ms. Amanda Gayoso, a social worker and member of the
Peruvian association of social workers, carried out an assessment of the
case and concluded that medical intervention to terminate the pregnancy was
advisable "since its continuation would only prolong the distress and
emotional instability of Karen and her family". However, no intervention
took place owing to the refusal of the Health Ministry medical personnel.
2.5 On 20 August 2001, Dr. Marta B. Rondón, a psychiatrist and member of the
Peruvian Medical Association, drew up a psychiatric report on the author,
concluding that "the so-called principle of the welfare of the unborn child
has caused serious harm to the mother, since she has unnecessarily been made
to carry to term a pregnancy whose fatal outcome was known in advance, and
this has substantially contributed to triggering the symptoms of depression,
with its severe impact on the development of an adolescent and the patient's
future mental health".
2.6 On 13 January 2002, three weeks late with respect to the anticipated
date of birth, the author gave birth to an anencephalic baby girl, who
survived for four days, during which the mother had to breastfeed her.
Following her daughter's death, the author fell into a state of deep
depression. This was diagnosed by the psychiatrist Marta B. Rondón. The
author also states that she suffered from an inflammation of the vulva which
required medical treatment.
2.7 The author has submitted to the Committee a statement made by Dr.
Annibal Faúdes and Dr. Luis Tavara, who are specialists from the association
called Center for Reproductive Rights, and who on 17 January 2003 studied
the author's clinical dossier and stated that anencephaly is a condition
which is fatal to the foetus in all cases. Death immediately follows birth
in most cases. It also endangers the mother's life. In their opinion, in
refusing to terminate the pregnancy, the medical personnel took a decision
which was prejudicial to the author.
2.8 Regarding the exhaustion of domestic remedies, the author claims that
this requirement is waived when judicial remedies available domestically are
ineffective in the case in question, and she points out that the Committee
has laid down on several occasions that the author has no obligation to
exhaust a remedy which would prove ineffective. She adds that in Peru there
is no administrative remedy which would enable a pregnancy to be terminated
on therapeutic grounds, nor any judicial remedy functioning with the speed
and efficiency required to enable a woman to require the authorities to
guarantee her right to a lawful abortion within the limited period, by
virtue of the special circumstances obtaining in such cases. She also states
that her financial circumstances and those of her family prevented her from
obtaining legal advice.
2.9 The author states that the complaint is not being considered under any
other procedure of international settlement.
THE COMPLAINT
3.1 The author claims a violation of article 2 of the Covenant, since the
State party failed to comply with its obligation to guarantee the exercise
of a right. The State should have taken steps to respond to the systematic
reluctance of the medical community to comply with the legal provision
authorizing therapeutic abortion, and its restrictive interpretation
thereof. This restrictive interpretation was clear in the author's case, in
which a pregnancy involving an anencephalic foetus was considered not to
endanger her life and health. The State should have taken steps to ensure
that an exception could be made to the rule criminalizing abortion, so that,
in cases where the physical and mental health of the mother was at risk, she
could undergo an abortion in safety.
3.2 The author claims to have suffered discrimination in breach of article 3
of the Covenant, in the following forms:
(a) In access to the health services, since her different and special needs
were ignored because of her sex. In the view of the author, the fact that
the State lacked any means to prevent a violation of her right to a legal
abortion on therapeutic grounds, which is applicable only to women, together
with the arbitrary conduct of the medical personnel, resulted in a
discriminatory practice that violated her rights - a breach which was all
the more serious since the victim was a minor. (b) Discrimination in the
exercise of her rights, since although the author was entitled to a
therapeutic abortion, none was carried out because of social attitudes and
prejudices, thus preventing her from enjoying her right to life, to health,
to privacy and to freedom from cruel, inhuman and degrading treatment on an
equal footing with men.
(c) Discrimination in access to the courts, bearing in mind the prejudices
of officials in the health system and the judicial system where women are
concerned and the lack of appropriate legal means of enforcing respect for
the right to obtain a legal abortion when the temporal and other conditions
laid down in the law are met.
3.3 The author claims a violation of article 6 of the Covenant. She states
that her experience had a serious impact on her mental health from which she
has still not recovered. She points out that the Committee has stated that
the right to life cannot be interpreted in a restrictive manner, but
requires States to take positive steps to protect it, including the measures
necessary to ensure that women do not resort to clandestine abortions which
endanger their life and health, especially in the case of poor women. She
adds that the Committee has viewed lack of access for women to reproductive
health services, including abortion, as a violation of women's right to
life, and that this has been reiterated by other committees such as the
Committee on the Elimination of Discrimination against Women and the
Committee on Economic, Social and Cultural Rights. The author claims that in
the present case, the violation of the right to life lay in the fact that
Peru did not take steps to ensure that the author secured a safe termination
of pregnancy on the grounds that the foetus was not viable. She states that
the refusal to provide a legal abortion service left her with two options
which posed an equal risk to her health and safety: to seek clandestine (and
hence highly risky) abortion services, or to continue a dangerous and
traumatic pregnancy which put her life at risk.
3.4 The author claims a violation of article 7 of the Covenant. The fact
that she was obliged to continue with the pregnancy amounts to cruel and
inhuman treatment, in her view, since she had to endure the distress of
seeing her daughter's marked deformities and knowing that her life
expectancy was short. She states that this was an awful experience which
added further pain and distress to that which she had already borne during
the period when she was obliged to continue with the pregnancy, since she
was subjected to an "extended funeral" for her daughter, and sank into a
deep depression after her death.
3.5 The author points out that the Committee has stated that the prohibition
in article 7 of the Covenant relates not only to physical pain but also to
mental suffering, and that this protection is particularly important in the
case of minors. [FN1] She points out that, after considering Peru's report
in 1996, the Committee expressed the view that restrictive provisions on
abortion subjected women to inhumane treatment, in violation of article 7 of
the Covenant, and that in 2000, the Committee reminded the State party that
the criminalization of abortion was incompatible with articles 3, 6 and 7 of
the Covenant. [FN2]
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[FN1] Human Rights Committee, General Comment No. 20, 10 March 1992 (HRI/GEN/1/Rev.7),
paras. 2 and 5.
[FN2] Concluding observations of the Human Rights Committee: Peru, 15
November 2000 (CCPR/CO/70/PER), para. 20.
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3.6 The author claims a violation of article 17, arguing that this article
protects women from interference in decisions which affect their bodies and
their lives, and offers them the opportunity to exercise their right to make
independent decisions on their reproductive lives. The author points out
that the State party interfered arbitrarily in her private life, taking on
her behalf a decision relating to her life and reproductive health which
obliged her to carry a pregnancy to term, and thereby breaching her right to
privacy. She adds that the service was available, and that if it had not
been for the interference of State officials in her decision, which enjoyed
the protection of the law, she would have been able to terminate the
pregnancy. She reminds the Committee that children and young people enjoy
special protection by virtue of their status as minors, as recognized in
article 24 of the Covenant and in the Convention on the Rights of the Child.
3.7 The author claims a violation of article 24, since she did not receive
the special care she needed from the health authorities, as an adolescent
girl. Neither her welfare nor her state of health were objectives pursued by
the authorities which refused to carry out an abortion on her. The author
points out that the Committee laid down in its General Comment No. 17,
relating to article 24, that the State should also adopt economic, social
and cultural measures to safeguard this right. For example, every possible
economic and social measure should be taken to reduce infant mortality and
to prevent children from being subjected to acts of violence or cruel or
inhuman treatment, among other possible violations.
3.8 The author claims a violation of article 26, arguing that the Peruvian
authorities' position that hers was not a case of therapeutic abortion,
which is not punishable under the Criminal Code, left her in an unprotected
state incompatible with the assurance of the protection of the law set out
in article 26. The guarantee of the equal protection of the law implies that
special protection will be given to certain categories of situation in which
specific treatment is required. In the present case, as a result of a highly
restrictive interpretation of the criminal law, the health authorities
failed to protect the author and neglected the special protection which her
situation required.
3.9 The author claims that the administration of the health centre left her
without protection as a result of a restrictive interpretation of article
119 of the Criminal Code. She adds that the text of the law contains nothing
to indicate that the exception relating to therapeutic abortion should apply
only in cases of danger to physical health. But the hospital authorities had
drawn a distinction and divided up the concept of health, and had thus
violated the legal principle that no distinction should be drawn where there
is none in the law. She points out that health is "a state of complete
physical, mental and social well-being and not merely the absence of disease
or infirmity", so that when the Peruvian Criminal Code refers to health, it
does so in the broad and all-embracing sense, protecting both the physical
and the mental health of the mother.
STATE PARTY'S FAILURE TO COOPERATE UNDER ARTICLE 4 OF THE OPTIONAL PROTOCOL
4. On 23 July 2003, 15 March 2004 and 25 October 2004, reminders were sent
to the State party inviting it to submit information to the Committee
concerning the admissibility and the merits of the complaint. The Committee
notes that no such information has been received. It regrets that the State
party has not supplied any information concerning the admissibility or the
merits of the author's allegations. It points out that it is implicit in the
Optional Protocol that States parties make available to the Committee all
information at their disposal. In the absence of a reply from the State
party, due weight must be given to the author's allegations, to the extent
that these have been properly substantiated. [FN3]
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[FN3] See communication No. 760/1997, J. G. A. Diergaart et al. v. Namibia;
Views adopted on 25 July 2000, para. 10.2, and Communication No. 1117/2002,
Saodat Khomidova v. Tajikistan; Views adopted on 29 July 2004, para. 4.
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ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
5.1 In accordance with rule 93 of the rules of procedure, before examining
the claims made in a communication, the Human Rights Committee must decide
whether the communication is admissible under the Optional Protocol to the
Covenant.
5.2 The Committee notes that, according to the author, the same matter has
not been submitted under any other procedure of international investigation.
The Committee also takes note of her arguments to the effect that in Peru
there is no administrative remedy which would enable a pregnancy to be
terminated on therapeutic grounds, nor any judicial remedy functioning with
the speed and efficiency required to enable a woman to require the
authorities to guarantee her right to a lawful abortion within the limited
period, by virtue of the special circumstances obtaining in such cases. The
Committee recalls its jurisprudence to the effect that a remedy which had no
chance of being successful could not count as such and did not need to be
exhausted for the purposes of the Optional Protocol. [FN4] In the absence of
a reply from the State party, due weight must be given to the author's
allegations. Consequently, the Committee considers that the requirements of
article 5, paragraph 2 (a) and (b), have been met.
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[FN4] See Communication No. 701/1996, Cesáreo Gómez Vázquez v. Spain; Views
adopted on 20 July 2000, para. 6.2.
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5.3 The Committee considers that the author's claims of alleged violations
of articles 3 and 26 of the Covenant have not been properly substantiated,
since the author has not placed before the Committee any evidence relating
to the events which might confirm any type of discrimination under the
article in question. Consequently, the part of the complaint referring to
articles 3 and 26 is declared inadmissible under article 2 of the Optional
Protocol.
5.4 The Committee notes that the author has claimed a violation of article 2
of the Covenant. The Committee recalls its constant jurisprudence to the
effect that article 2 of the Covenant, which lays down general obligations
for States, is accessory in nature and cannot be invoked in isolation by
individuals under the Optional Protocol. FN5 Consequently, the complaint
under article 2 will be analysed together with the author's other
allegations.
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[FN5] See Communication No. 802/1998, Andrew Rogerson v. Australia; Views
adopted on 3 April 2002, para. 7.9.
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5.5 Concerning the allegations relating to articles 6, 7, 17 and 24 of the
Covenant, the Committee considers that they are adequately substantiated for
purposes of admissibility, and that they appear to raise issues in
connection with those provisions. Consequently, it turns to consideration of
the substance of the complaint.
CONSIDERATION OF THE MERITS
6.1 The Human Rights Committee has considered the present complaint in the
light of all the information received, in accordance with article 5,
paragraph 1, of the Optional Protocol.
6.2 The Committee notes that the author attached a doctor's statement
confirming that her pregnancy exposed her to a life-threatening risk. She
also suffered severe psychological consequences exacerbated by her status as
a minor, as the psychiatric report of 20 August 2001 confirmed. The
Committee notes that the State party has not provided any evidence to
challenge the above. It notes that the authorities were aware of the risk to
the author's life, since a gynaecologist and obstetrician in the same
hospital had advised her to terminate the pregnancy, with the operation to
be carried out in the same hospital. The subsequent refusal of the competent
medical authorities to provide the service may have endangered the author's
life. The author states that no effective remedy was available to her to
oppose that decision. In the absence of any information from the State
party, due weight must be given to the author's claims.
6.3 The author also claims that, owing to the refusal of the medical
authorities to carry out the therapeutic abortion, she had to endure the
distress of seeing her daughter's marked deformities and knowing that she
would die very soon. This was an experience which added further pain and
distress to that which she had already borne during the period when she was
obliged to continue with the pregnancy. The author attaches a psychiatric
certificate dated 20 August 2001, which confirms the state of deep
depression into which she fell and the severe consequences this caused,
taking her age into account. The Committee notes that this situation could
have been foreseen, since a hospital doctor had diagnosed anencephaly in the
foetus, yet the hospital director refused termination. The omission on the
part of the State in not enabling the author to benefit from a therapeutic
abortion was, in the Committee's view, the cause of the suffering she
experienced. The Committee has pointed out in its General Comment No. 20
that the right set out in article 7 of the Covenant relates not only to
physical pain but also to mental suffering, and that the protection is
particularly important in the case of minors. [FN6] In the absence of any
information from the State party in this regard, due weight must be given to
the author's complaints. Consequently, the Committee considers that the
facts before it reveal a violation of article 7 of the Covenant. In the
light of this finding the Committee does not consider it necessary in the
circumstances to made a finding on article 6 of the Covenant.
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[FN6] Human Rights Committee, General Comment No. 20: Prohibition of torture
and other cruel, inhuman or degrading treatment or punishment (art. 7), 10
March 1992 (HRI/GEN/1/Rev.7, paras. 2 and 5).
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6.4 The author states that the State party, in denying her the opportunity
to secure medical intervention to terminate the pregnancy, interfered
arbitrarily in her private life. The Committee notes that a public-sector
doctor told the author that she could either continue with the pregnancy or
terminate it in accordance with domestic legislation allowing abortions in
cases of risk to the life of the mother. In the absence of any information
from the State party, due weight must be given to the author's claim that at
the time of this information, the conditions for a lawful abortion as set
out in the law were present. In the circumstances of the case, the refusal
to act in accordance with the author's decision to terminate her pregnancy
was not justified and amounted to a violation of article 17 of the Covenant.
6.5 The author claims a violation of article 24 of the Covenant, since she
did not receive from the State party the special care she needed as a minor.
The Committee notes the special vulnerability of the author as a minor girl.
It further note that, in the absence of any information from the State
party, due weight must be given to the author's claim that she did not
receive, during and after her pregnancy, the medical and psychological
support necessary in the specific circumstances of her case. Consequently,
the Committee considers that the facts before it reveal a violation of
article 24 of the Covenant.
6.6 The author claims to have been a victim of violation of articles 2 of
the Covenant on the grounds that she lacked an adequate legal remedy. In the
absence of information from the State party, the Committee considers that
due weight must be given to the author's claims as regards lack of an
adequate legal remedy and consequently concludes that the facts before it
also reveal a violation of article 2 in conjunction with articles 7, 17 and
24. 7. The Human Rights Committee, acting under article 5, paragraph 4, of
the Optional Protocol to the Covenant, is of the view that the facts before
it disclose a violation of articles 2, 7, 17 and 24 of the Covenant.
8. In accordance with article 2, paragraph 3 (a), of the Covenant, the State
party is required to furnish the author with an effective remedy, including
compensation. The State party has an obligation to take steps to ensure that
similar violations do not occur in the future.
9. Bearing in mind that, as a party to the Optional Protocol, the State
party recognizes the competence of the Committee to determine whether there
has been a violation of the Covenant, and that, under article 2 of the
Covenant, the State party has undertaken to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the
Covenant and to offer an effective and enforceable remedy when a violation
is found to have occurred, the Committee wishes to receive from the State
party, within 90 days, information about the measures taken to give effect
to the present Views. The State party is also requested to publish the
Committee's Views.
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Adopted in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.
The text of an individual opinion signed by Committee member Mr. Hipólito
Solari-Yrigoyen is appended to the present document.
APPENDIX
DISSENTING OPINION BY COMMITTEE MEMBER HIPÓLITO SOLARI-YRIGOYEN
My dissenting opinion on this communication - the majority not considering
that article 6 of the Covenant was violated - is based on the following
grounds:
Consideration of the merits
The Committee notes that when the author was a minor, she and her mother
were informed by the obstetric gynaecologist at Lima National Hospital, whom
they had consulted because of the author's pregnancy, that the foetus
suffered from anencephaly which would inevitably cause its death at birth.
The doctor told the author that she had two options: (1) continue the
pregnancy, which would endanger her own life; or (2) terminate the pregnancy
by a therapeutic abortion. He recommended the second option. Given this
conclusive advice from the specialist who had told her of the risks to her
life if the pregnancy continued, the author decided to follow his
professional advice and accepted the second option. As a result, all the
clinical tests needed to confirm the doctor's statements about the risks to
the mother's life of continuing the pregnancy and the inevitable death of
the foetus at birth were performed.
The author substantiated with medical and psychological certificates all her
claims about the fatal risk she ran if the pregnancy continued. In spite of
the risk, the director of the public hospital would not authorize the
therapeutic abortion which the law of the State party allowed, arguing that
it would not be a therapeutic abortion but rather a voluntary and unfounded
abortion punishable under the Criminal Code. The hospital director did not
supply any legal ruling in support of his pronouncements outside his
professional field or challenging the medical attestations to the serious
risk to the mother's life. Furthermore, the Committee may note that the
State party has not submitted any evidence contradicting the statements and
evidence supplied by the author. Refusing a therapeutic abortion not only
endangered the author's life but had grave consequences which the author has
also substantiated to the Committee by means of valid supporting documents.
It is not only taking a person's life that violates article 6 of the
Covenant but also placing a person's life in grave danger, as in this case.
Consequently, I consider that the facts in the present case reveal a
violation of article 6 of the Covenant.
[Signed]: Hipólito Solari-Yrigoyen
Done in English, French and Spanish, the Spanish text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
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