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Summaries of Jurisprudence Health and Reproductive SUMMARIES OF JURISPRUDENCE Health and Reproductive Rights Centro por la Justicia y el Derecho Internacional Center for Justice and International Law Centro pela Justiça e o Direito Internacional Pemonton Kowantok Wacüpe Yuwanin Pataset Summaries of Jurisprudence / Health and Reproductive Rights Compiled by Liliana Tojo Center for Justice and International Law - CEJIL, 2012. 216 p.; 24 x 17 cm. The commercialization of this publication is prohibited. Reproduction of the contents is authorized, provided that the source is quoted. Compilation: Liliana Tojo Compilation Assistant: Pilar Elizalde Federico Taboada Translation Team (spanish edition): Ludmila Novotny (intern) María Pía Rebussone (intern) Edition, editorial and cover design: Folio Uno S.A. CEJIL´s Board of Directors: José Miguel Vivanco (President) Alejandro Garro (Vice-president) Helen Mack (Secretary) Mariclaire Acosta Urquidi Gastón Chillier Benjamín Cuellar Gustavo Gallón Sofía Macher Julieta Montaño SUMMARIES OF JURISPRUDENCE Health and Reproductive Rights CEJIL´S WORK IS POSSIBLE THANKS TO THE GENEROUS CONTRIBUTION OF THE FOLLOWING SUPPORTERS: Dan Church Aid Diakonia/European Union EED Embassy of Canada in Argentina Foundation to Promote Open Society (FOSI) HIVOS Loyola University MISEREOR National Endowment for Democracy Norwegian Ministry of Foreign Affairs Royal Embassy of Norway in Argentina The Ford Foundation The John D. and Catherine MacArthur Foundation The Netherlands Embassy in Costa Rica The Oak Foundation The Sigrid Rausing Trust UNHCR United Nations Voluntary Fund for Victims of Torture (UNVFVT) And individual and private donors who wish to remain anonymous. We are especially grateful to the Royal Norwegian Embassy in Argentina for the support they provided in the production of this book. IV PRESENTATION CEJIL is proud to present a new addition to the series: Tools for the Protection of Human Rights: Summaries of Jurisprudence. The focus of the present publication is Health and Reproductive Rights. Access to health services, including those pertaining to reproductive health, is recognized as a basic right by international bodies dedicated to the protection of human rights. In- deed, according to the recommendations made by the Committee on the Elimination of Discrimination Against Women (CEDAW), States must guarantee that all health services are “consistent with the human rights of women, including the rights to autonomy, privacy, confidentiality, informed consent and choice” (General Recommendation Nº 24, Paragraph 31.e) The rulings included in this volume have been selected as examples that illustrate the sys- temic inadequacies affecting the effective possession of these rights. Furthermore, they demonstrate how this directly affects the rights of women to make choices regarding maternity, to access relevant health information and to ensure respect for their [physical] autonomy and privacy. This publication aims to cast light on the scope of relevant jurisprudence in relation to health and reproductive rights. The following pages contain a selection of rulings and sentences dictated by the Inter-American Commission and Inter-American Court on Hu- man Rights as well as the European Court of Human Rights, the Committee on the Elimi- nation of Discrimination against Women (CEDAW) and the Human Rights Committee. They have been selected for their explicit or implicit reference to discussions or judicial interpretations which contribute to the defense of the aforementioned. In addition to the included thematic index, whose purpose is to facilitate the location of information through keyword searches, a supplementary annex has been included. This document contains extracts from various relevant instruments which prove to be useful when approaching the issues of health and reproductive rights. We hope that this book represents a valuable tool in their defence and protection. Finally, we would like to offer our sincere thanks for the invaluable contributions of all those who have made the publication of this book possible: Martine Lemmens, who saw V the project through its initial stages; Louis Robertson, Marisa Díaz and Valerie Gobeil, who collaborated in the selection and editing of the texts during the months they spent as interns at CEJIL Buenos Aires; and Ludmila Novotny and María Pía Rebussone, students at the I.E.S en Lenguas Vivas “Juan Ramón Fernández” in Buenos Aires (Argentina), whose practicum experiences in translation were carried out as part of the established programme of internships between CEJIL and this institution. Viviana Krsticevic Executive Director VI Table of Contents Summaries of Jurisprudence on Health and Reproductive Rights TABLE OF CONTENTS: SUMMARIES OF JURISPRUDENCE ON HEALTH AND REPRODUCTIVE RIGHTS I) JUDGMENTS OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS De La Cruz-Flores v. Peru - Merits, Reparations and Costs November 18, 2004 1 The Xákmok Kásek Indigenous Community v. Paraguay - Merits, Reparations and Costs - August 24, 2010 13 Gelman v. Uruguay - Merits and Reparations February 24, 2011 23 II) DECISIONS OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Baby Boy v. United States of America Case 2141 – Resolution 23/81 - March 6, 1981 31 III) JUDGMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS Open Door and Dublin Well Woman v. Ireland Application Nº 14234/88 and 14235/88 – Judgment of October 29, 1992 39 Tysiąc v. Poland Application Nº 5410/03 - Judgment of March 20, 2007 47 Evans v. The United Kingdom Application Nº 6339/05 – Judgment of April 10, 2007 59 Women on Waves and others vs. Portugal Application Nº 31276/05 – Judgment of February 3, 2009 73 VIII K. H. and others v. Slovakia Application Nº 32881/04 – Judgment of April 28, 2009 79 A, B and C v. Ireland Application Nº 25579/05 – Judgment of Decembre 16, 2010 89 R. R. v. Poland Application Nº 27617/04 – Judgment of May 26, 2011 111 IV) DECISIONS OF THE COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN (CEDAW/UN) A. S. v. Hungary Communication Nº 4/2004 - Views adopted on August 14, 2006 135 Alyne da Silva Pimentel Teixeira (deceased) v. Brazil Communication Nº 17/2008 - Views adopted on July 25, 2011 143 L. C. v. Peru Communication Nº 22/2009 - Views adopted on October 17, 2011 153 V) DECISIONS OF THE HUMAN RIGHTS COMMITTEE (CHR/UN) K. L. v. Peru Communication Nº 1153/2003 - Views adopted on October 24, 2005 165 L. M. R. v. Argentine Communication Nº 1608/2007 - Views adopted on March 29, 2011 173 IX VI) ANNEX Committee on the Elimination of Discrimination against Women (CEDAW/UN) General Recommendation Nº 24 “Article 12 of the CEDAW: Women and health” Adopted on 20th session period, 1999 181 Committee on Economic, Social and Cultural Rights (CESCR/UN) General Comment Nº 14 “The right to the highest attainable standard of health (article 12 of the International Covenant on Economic, Social and Cultural Rights) Adopted on May 12, 2000 187 Inter-American Commission on Human Rights Paulina del Carmen Ramírez Jacinto v. Mexico - Petition 161-02, Report Nº 21/07 Friendly Settlement on March 9, 2007 Public Acknowledgment of Responsability 197 X Index of Topics Summaries of Jurisprudence on Health and Reproductive Rights INDEX OF TOPICS ABORTION: ACCESS A, B and C p. 89 ABORTION: ARTICLE 4 OF THE AMERICAN CONVENTION OF HUMAN RIGHTS Baby Boy p. 31 ACCESS TO MEDICAL INFORMATION K. H. and others p. 79 R. R. p. 111 FREEDOM OF EXPRESSION Women on Waves and others p. 73 FORCED STERILIZATION A. S. p. 135 INDIGENOUS COMMUNITY The Xákmok Kásek Indigenous Community p. 13 IN VITRO FERTILIZATION: REVOCATION OF APPROVAL OF THE IMPLANT Evans p. 59 LEGAL ABORTION: REGULATION AND PROCEDURE Tysiąc p. 47 R. R. p. 111 L. C. p. 153 L. M. R. p. 173 MATERNAL MORTALITY The Xákmok Kásek Indigenous Community p. 13 Alyne da Silva Pimentel Teixeira p. 143 XII MEDICAL SECRECY De La Cruz Flores p. 1 RIGHT TO INFORMATION Open Door and Dublin Well Woman p. 39 STATE OF PREGNANCY: INSTRUMENTALIZATION OF WOMEN’S BODIES Gelman p. 23 STATE OF PREGNANCY AND PRIVATE LIFE Tysiąc p. 47 THERAPEUTIC ABORTION Tysiąc p. 47 L. C. p. 153 K. L. p. 165 XIII Inter-American Court of Human Rights De La Cruz Flores v. Peru Merits, Reparations and Costs Judgment of November 18, 2004 […] I. INTRODUCTION OF THE CASE 1. On June 11, 2003, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) filed before the Court an ap- plication against the State of Peru (hereinafter “the State” or “Peru”) originating from petition No. 12,138, received by the Secretariat of the Commission on September 1, 1998. […] 3. According to the Commission, María Teresa De La Cruz Flores, a physician by pro- fession; was detained by police agents on March 27, 1996, after she had completed her shift as a pediatrician with the Peruvian Social Security Institute. She was charged with terrorism, processed under file No. 113-95 and, after she had been detained, was notified of a warrant for her arrest in file No. 723-93 for the crime of terrorism, a file which, according to the Commission, had been reported to be mislaid at that time. The alleged victim was prosecuted by a court composed of a “faceless” judge, which sentenced her on November 21, 1996, for the crime of terrorism to 20 years’ imprison- ment, under the provisions of Decree Law No. 25,475. This sentence was confirmed by the judgment of the Special Criminal Chamber of the Supreme Court of Justice on June 8, 1998. The Commission also stated that, on January 3, 2003, the Constitutional Health and Reproductive Rights Health and Reproductive Court of Peru had delivered a judgment in which it declared the unconstitutionality of several provisions of Decree Laws Nos. 25,475 and 25,659; although it did not issue any special ruling in relation to Article 2 of Decree Law 25,475, which defined the crime of terrorism. Following that decision, the Government issued Legislative Decrees Nos.
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