1. The author of the
communication dated 13 December 1998 is Jaime Castro Ortíz, a Colombian
citizen born in 1961, who alleges that he is a victim of violations by
Colombia of articles 2, 3, 5, 14, paragraph 1, 17 and 26 of the Covenant.
The Optional Protocol entered into force for the State party on 23 March
1976. The author is represented by counsel, Germán Humberto Rincón Perfetti.
THE FACTS AS SUBMITTED BY THE AUTHOR
2.1 On 1 December 1989 the author began working in the information systems
division of Banco del Comercio, now Banco de Bogotá. On 24 July 1991 he was
diagnosed as carrying the human immunodeficiency virus (HIV), and
accordingly as from that date attended the HIV/AIDS Programme of the Social
Security Institute (ISS).
2.2 On 11 November 1997 the author's attending physician, Dr. Luis Paulino
Pineda, who was attached to ISS, wrote out a series of written
recommendations for the author aimed at ensuring that his treatment was
successful; these included maintaining a regular schedule of rest, meals and
medication. The author maintains that at that time his working hours were
irregular and unpredictable, as he might be assigned to a day shift or a
night shift without knowing which shift he would have the next month.
2.3 On 25 November 1997 the author met with Ms. María del Carmen Centena,
the administrator in the production area of Banco de Comercio, to whom he
gave the list of recommendations prepared by the ISS physician. Ms. Centena
said that the list was intended only for the author and that he should
obtain a letter from the ISS Department of Occupational Health addressed to
Banco de Bogotá.
2.4 On 20 March 1998 the ISS Department of Occupational Health addressed a
letter to the bank in which it noted that "[the author's] illness could be
aggravated by his current working conditions" and made a series of
recommendations. On the basis of this letter, the author wrote to Banco de
Bogotá on 8 April 1998 requesting that he should be given a permanent shift
assignment, preferably to a day shift. On 14 April 1998 Mr. Gonzalo Urbina
Jiménez, head of personnel of Banco de Bogotá, replied to the author in
writing that the entity responsible for determining the measures to be taken
in his case was the insurance company Aseguradora de Riesgos Profesionales
Seguros de Vida Alfa S.A., which was affiliated with the bank, and not ISS.
In the same letter the author was informed that he had an appointment with
the insurance company's physicians on 20 April 1998.
2.5 The author alleges that before he went to the appointment, María del
Carmen Centena, the administrator in the production area, told him that
Banco de Bogotá was unable to reassign him and tried to convince him to
resign, to which end she was prepared to negotiate a settlement. The author
replied that he could not accept her offer because he was young and wished
to continue working at the bank.
2.6 The author attended his medical appointment with the insurance company
physician, whom he told that he was HIV-positive, adding that he did not
want the bank to know. The doctor said that he agreed with the
recommendations of ISS but that he would have to reveal the author's
diagnosis to the bank so that his shift could be changed.
2.7 In a letter dated 25 April 1998 the head of the production management
department of Banco de Bogotá informed the author that the bank had
unilaterally decided to terminate the author's contract of employment
"without just cause", in accordance with the provisions of article 6 of Act
No. 50 of 1990, with effect from that day.
2.8 The author filed a complaint (acción de tutela) with civil circuit court
No. 23, claiming compensation and alleging a violation of his right to work,
to privacy, to equality and to human dignity. On 14 May 1992 the judge
rejected the complaint, ruling that no violation had occurred.
2.9 The author appealed the civil court's decision in the Civil Division of
the Superior District Court of Santa Fé de Bogotá, which upheld the decision
of the court of first instance on 2 July 1998.
2.10 The author affirms that the matter is not being examined under another
procedure of international investigation.
3.1 The author alleges that the State party violated article 2 of the
Covenant because it did not honour its undertaking to ensure the rights
recognized in the Covenant without distinction of any kind. He maintains
that the Ministry of Health has stated that HIV is not a priority issue and
that the Banking Supervisory Authority did not take steps to prevent
3.2 The author alleges a violation of article 3 of the Covenant, arguing
that the State party allowed a public entity to dismiss an individual solely
because he was HIV-positive.
3.3 The author considers that article 5 of the Covenant was also violated
because the State party was aware of the circumstances of the case and yet
authorized acts aimed at the destruction of the author's rights.
3.4 The author maintains that the State party violated article 14, paragraph
1, of the Covenant because the judges did not order the entity in question
to restore the victim's violated rights and that in a situation very similar
to his own the Constitutional Court had granted the remedy of amparo, which
had not happened in his own case.
3.5 The author alleges a violation of article 17, claiming that the State
party allowed confidential information about him to be made public, which
resulted in his dismissal from employment.
3.6 The author maintains that the State party violated article 26 because it
did not provide equal and effective protection against the discrimination he
suffered as a result of his diagnosis.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND THE MERITS
4.1 In a letter dated 28 January 2005 the State party maintains that the
communication must be declared inadmissible under article 5, paragraph 2
(b), of the Optional Protocol because the author has not yet availed himself
of the ordinary labour courts, from which he might have obtained a decision
in his favour and compensation for the harm he suffered. The State party
adds that both the Colombian Government and the Constitutional Court have
established numerous mechanisms to protect the human rights of persons with
HIV with a view to ensuring that they are not marginalized. It notes further
that there have been Constitutional Court decisions that protect the rights
of persons with AIDS from any kind of discrimination, but that they are not
applicable in the present case. An employee may not be dismissed solely
because he or she is HIV-positive. However, a sick person may be dismissed
when the grounds have nothing to do with the person's health status, as in
the case of the author.
4.2 The State party recalls that the requirement of exhaustion of domestic
remedies is based on the notion of the subsidiary nature of international
human rights protection, with its implicit acknowledgement that every State
must be able to offer a judicial system capable of settling the matters
brought before it. It points out that the author still has recourse to the
ordinary labour courts and that he must determine that they are not
effective in his case. The fact that the decision relating to the author's
acción de tutela did not have the outcome he sought was due to a series of
considerations related to the case having to do with the judge's assessment
of the information presented during the proceedings, and not to a denial of
access to justice. The State party notes that one must not assume that a
judicial mechanism will be ineffective, since its assessment must be made in
accordance with the facts and circumstances of each case; thus it is
impossible to say that a particular mechanism is always ineffective, as that
would mean that recourse to domestic law had become the exception or that it
was for individuals to decide who had jurisdiction to hear cases of presumed
violations of international norms. According to the State party, the author
is attempting to make the Committee a fourth instance.
4.3 The State party further alleges that the present complaint must be found
inadmissible under article 2 of the Optional Protocol as it is
insufficiently substantiated. It notes that the author was not dismissed
because he was HIV-positive, since while he was employed at Banco de Bogotá
the bank did not know that he was carrying the virus until it learned of the
acción de tutela brought by the author. Moreover, while it was true that the
author had submitted various medical certificates justifying his inability
to work, none of them contained any mention of his diagnosis; in fact, his
file was reviewed, and no document of any kind from which his health status
might have been inferred was found. The State party maintains that,
according to Banco de Bogotá, the author did have different work schedules,
but that they all conformed to the law and that he was informed of changes
of schedule in advance, so that the author's allegations are untrue.
4.4 The State party says that the body authorized to recommend a job
reassignment was the insurance company Aseguradora de Riesgos Profesionales
Seguros de Vida Alfa S.A., which was affiliated with Banco de Bogotá, as the
author was told. It adds that the report issued by the insurance company
merely stated that the author was suffering from an illness of "common
origin", without specifying what it was, and that it did not recommend a job
reassignment. Moreover, the report was submitted in May 1998, when the
author had already left the bank.
4.5 The State party notes that, as the bank itself reported, Banco de Bogotá
terminated the author's contract of employment without just cause on 25
April 1998, but it did so on the basis of article 6 of Act No. 50 of 1990 of
the Substantive Labour Code in force at the time, and the dismissal occurred
without compensation, pursuant to the court's decision in respect of the
acción de tutela. The State party goes on to say that, as the bank noted,
the author's dismissal was occasioned by his conduct at work and the many
mistakes he made on the job; this was the bank's objective motive for
wanting to get rid of him, a motive very different from discrimination based
on his positive HIV status. The State party insists that the author was
denied the remedy of amparo because the judges considered that that remedy
bore no relation to his dismissal or to his positive HIV status. There was
no indication that the bank was aware of the author's condition when it
terminated his contract of employment, which leads to the conclusion that
his dismissal was due to reasons that had absolutely nothing to do with his
health status. Accordingly, the State party considers that there has been no
violation of articles 2, 3, 5, 14, paragraph 1, 17 or 26 of the Covenant.
AUTHORS' COMMENTS ON THE STATE PARTY'S OBSERVATIONS
5.1 In a letter dated 15 June 2005 the author states that it is not true
that Banco de Bogotá only learned of his health problems when he filed his
acción de tutela, since on 8 April 1998 he had submitted a request to be
assigned to the day shift on account of the fact that for approximately one
year now he had been having health problems that required "ongoing medical
treatment, and he had attached copies of medical certificates to the letter.
In addition, the note from ISS dated 9 March 1998 stated that the author was
HIV-positive, and the medical certificates attesting to the author's
inability to work that were submitted to the bank, and which the bank
acknowledges having received, contained the code for the medical condition
in question, as it would have been impossible to justify his inability to
work without it.
5.2 The author insists that he requested a change of schedule because Banco
de Bogotá did not respect legal work schedules, and that the Constitutional
Court had found in its judgement No. 256/96 of 30 May 1996 that no one may
have his or her contract of employment terminated without an explanation. In
the author's case, the courts accepted the termination of his contract
without taking the jurisprudence of the Constitutional Court into account.
5.3 The author maintains that it is not true that the State party had set up
programmes to combat discrimination against persons living with HIV and to
increase public awareness of misconceptions about HIV and AIDS, since there
was not even an office that dealt with HIV-related issues.
5.4 As to the exhaustion of domestic remedies, the author maintains that
similar cases in which persons were dismissed from their jobs because they
were HIV-positive were dealt with by the constitutional courts through the
remedy of tutela, a remedy that he himself had tried, thereby exhausting
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
6.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether the complaint is admissible under the Optional Protocol to
6.2 The Committee has ascertained that the same matter is not being examined
under another procedure of international investigation or settlement for the
purposes of article 5, paragraph 2 (a), of the Optional Protocol.
6.3 The Committee takes note of the State party's allegations that the
communication must be declared inadmissible under article 2 and article 5,
paragraph 2 (b), of the Optional Protocol because the author did not exhaust
the remedies available to him in the ordinary labour courts and that the
complaints have not been sufficiently substantiated. The Committee observes
that the author merely states that he has exhausted valid domestic remedies
because he filed an acción de tutela before the constitutional court. He
does not, however, deny that judicial remedies offered in the ordinary
labour courts were available to him, nor does he explain why such a remedy
would have been ineffective in his case. These doubts about the
effectiveness of judicial remedies do not absolve an author from exhausting
them. In the light of the foregoing, the Committee finds the communication
inadmissible under article 5, paragraph 2 (b), of the Optional Protocol
because the author has not exhausted domestic remedies. The Committee
therefore regards the consideration of the State party's remaining arguments
7. The Human Rights Committee therefore decides:
(a) That the communication is inadmissible under article 5, paragraph 2 (b),
of the Optional Protocol;
(b) That this decision shall be communicated to the State party, to the
author of the communication and to his counsel.
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.
Pursuant to rule 90 of the Committee's rules of procedure, Committee member
Mr. Rafael Rivas Posada did not participate in the adoption of the