Pardo, Héctor Paulino et al. v. Di Césare, Luis Alberto et al.

P. 24. XLVI
Download Judgment: Spanish
Country: Argentina
Region: Americas
Year: 2011
Court: Supreme Court of Justice [Corte Suprema de Justicia de la Nación Argentina]
Health Topics: Child and adolescent health, Disabilities, Health systems and financing, Hospitals, Poverty
Human Rights: Right to due process/fair trial, Right to health, Right to life
Tags: Disabilities, Remedies, Right to Effective Remedy, Right to Health

The plaintiffs, in representation of their daughter, filed an anticipatory protection against the insurance company to cover for the medical treatment and medical instruments that their daughter needed because she suffered a car accident. The plaintiff’s daughter was riding a bicycle that got crushed by a car which dragged her and created many injuries and damages that left her in a  vegetative state. They based the anticipated protection on lack of economic resources and the presumption of responsibility of article 1113 Civil Code, in the Court’s jurisprudence, in constitutional norms that protect the right to health and to life as well as international instruments that safeguard the rights of minors and disabled.

The First Instance Civil Court admitted the demand and ordered the insurance company to pay for the amounts requested. The respondent brought the case to the Courts of Appeal which revoked the case because to be able to obtain the anticipatory protection they should prove with “almost certainty” that they had a right that must be protected. The plaintiffs filed an extraordinary appeal with Supreme Court of Justice which was dismissed and then filed a complain.

The Supreme Court of Justice found that although anticipatory protections can't be revised by the extraordinary appeal for not being a definitive ruling, the judgement can be revised when the omission to solve the case entails a damage to the constitutional rights alleged. The purpose of the anticipatory protection is the protection of fundamental right that should be protected before the final judgment given the urgent circumstances. To deny this protection based on a strict level of "certainty" of the right is not compatible with the Supreme Court's rulings. Judges should grant an effective protection specially in cases where rights the rights involved are those guaranteed by the American Convention of Human Rights and the Convention of Rights of Persons with Disabilities. The Supreme Court admitted the complain and revoked the Courts of Appeals judgement.

"Que ello es así pues una moderna concepción del proceso exige poner el acento en el valor “eficacia” de la función jurisdiccional y en el carácter instrumental de las normas procesales, en el sentido de que su finalidad radica en hacer efectivos los derechos sustanciales cuya protección se requiere, y en ese marco de actuación las medidas de la naturaleza de la solicitada se presentan como una de las vías aptas, durante el trámite del juicio, para asegurar el adecuado servicio de justicia y evitar el riesgo de una sentencia favorable pero ineficaz por tardía." Paragraph 12

"A modern conception of the procedure demands to place emphasis in the efficiency of the jurisdictional function and in the instrumental character of procedure norms, in the sense that its purpose lies in to give effect to substantive rights which protection is required and in that context the nature of the measures requested are presented as a suitable measure, during the trial, to guarantee the service of justice and avoiding the risk of a favorable judgement but ineffective for being late." Paragraph 12