Mr. X v. Argentina

Communication No. 8/2012
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This case involves a claimant that repeatedly requested house arrest due to disability, but was denied house arrest and held in a prison he claims lacks the infrastructure necessary to maintain his right to health and dignity.

Claimant was being held in pretrial detention at a prison complex. With authorization of the court, he underwent spinal surgery to replace a cervical disc on January 27, 2010. The claimant alleges the plate was incorrectly inserted during surgery. On January 28, 2010, he suffered a stroke which resulted in homonymous hemianopsia, a sensory balance disorder, a cognitive disorder and impaired visuospatial orientation.

After surgery, he was transferred to the FLENI Institute to begin his rehabilitation program. The claimant applied for house arrest on grounds that the distance between his detention center and rehabilitation hospital impeded his treatment, and he needed a living space adapted to his disability. In April 2010, the FLENI Institute informed the Federal Criminal Court that the author was fit to continue day-patient rehabilitation. Claimant’s request for house arrest was denied, and he was transferred to Buenos Aires Federal Penitentiary Complex, from where he would undergo the prescribed rehabilitation therapy.

The Department of Forensic Medicine examined him, and notified the Federal Criminal Court that a clinical neurological assessment was urgently needed and the prison hospital lacked the infrastructure to perform it, after which the claimant was transferred to the FLENI Institute, where he carried out his rehabilitation until he was against transferred to the central prison hospital of the Ezeiza Federal Penitentiary Complex No. 1 (the Ezeiza Prison) by order of the Federal Criminal Court.

The claimant continued to make requests for house arrest, and appealed the decision of the Federal Criminal Court. He claimed that the hospital did not have the required infrastructure to carry out his rehabilitation in an appropriate manner, or provide the day-to-day care he required due to his disability. The Federal Chamber found that the Federal Criminal Court had given due consideration to the author’s health issues before rejecting his application, finding that there was no evidence that he could be transported safely or that adverse effects of travel would be eliminated if he were granted house arrest, and that he could not use his refusal of rehabilitation services provided by the prison or his partial cooperation with physical examinations to oblige the Court to grant his request for house arrest.

The clamant alleged he is the victim of violations by Argentina of articles 9; 10; 13; 14, paragraph 2; 15, paragraph 2; 17; 25; and 26 of the Convention on the Rights of Persons with Disabilities. He claimed the determination of whether he should be held in a prison should account for his disability, state of health, and the lack of medical services, care and infrastructure available to the prison hospital. He claimed the inadequacy of infrastructure for persons with his disability and the substandard conditions of detention and health care at the Ezeiza Prison hospital constitute both an affront to his dignity and inhuman treatment, for reasons including limited or restricted access to shower and toilet, lack of timely contact with medical professionals, occurrence of bedsores and lack of proper rehabilitation treatment recommended for his disability.

The Committee, acting under article 5 of the Optional Protocol to the Convention found that the State party has failed to fulfill its obligations under article 9, paragraphs 1(a) and (b), article 14, paragraph 2, and article 17 of the Convention.

The Committee found State party has failed to fulfill its obligations under article 9, paragraphs 1(a) and (b), and article 14, paragraph 2, of the Convention. Under the Convention, persons with disabilities have the right to provision of reasonable accommodation. Under the general principles of the Convention, this also applies to those who are deprived of their liberty. The State party is under an obligation to ensure that prisons afford accessibility to all persons with disabilities who are deprived of their liberty, meaning they must take steps to identify and remove barriers to access. The State party failed to show that the accommodations of the prison are sufficient to allow the claimant to maintain access and reasonable accommodation.

The Committee found that the State party violated article 17 of the Convention. Article 17 is implicated by the lack of accessibility and reasonable accommodation, because claimant was placed in substandard conditions.

The Committee did not find that there has been a violation of article 15, paragraph 2, of the Convention. Failure to adopt relevant measures and to provide sufficient reasonable accommodation when persons with disabilities who have been deprived of their liberty require them may constitute a breach of this provision, and the Committee does not find sufficient evidence to conclude that a breach has occurred.

The Committee did not find that violations of articles 25 and 26 of the Convention occurred. Under article 25 of the Convention, persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination, and State parties must take measures to ensure access to health. Article 26 says State parties must take steps to see that persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life. Because the complainant refused rehabilitation services despite them being available to them, the Committee does not find that the State party breached the duty to provide access to these services.

The Committee finds the State party must make accommodations in the prison to ensure his access to prison facilities and services on an equal basis with other prisoner, as well as reimburse him for legal costs and ensure that he has timely access to health acre and suitable rehabilitation therapy on a regular basis. The State party is under an obligation to take steps to prevent similar violations in future, including adopting measures to ensure accessibility, reasonable accommodation, and training for officers.

“The State party is under an obligation to ensure that prisons afford accessibility to all persons with disabilities who are deprived of their liberty. Accordingly, States parties must take all relevant measures, including the identification and removal of obstacles and barriers to access, so that persons with disabilities who are deprived of their liberty may live independently and participate fully in all aspects of daily life in their place of detention; such measures include ensuring their access, on an equal basis with others, to the various areas and services, such as bathrooms, yards, libraries, study areas, workshops and medical, psychological, social and legal services.” (Paragraph 8.5)

“Under article 25 of the Convention, persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination and that States parties shall take all appropriate measures to ensure access for persons with disabilities to health services, including rehabilitation. Furthermore, article 26 stipulates that States parties shall take effective and appropriate measures to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life, through comprehensive habilitation and rehabilitation services and programmes in such a way that they begin at the earliest possible stage and are based on the multidisciplinary assessment of individual needs and strengths.” (Paragraph 8.9)

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