Report No. 2 (2009) IACHR. Petition No. 302-04 Y 386-04 (México)

• Petition Number: 302-04 Y 386-04
• Year: 2009
• Report Number: 2
• Respondent State: México
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility
• Alleged Victim: J.Sc.H. y M.G.S.

REPORT 02/09 PETITIONS 302-04 AND 386-04 ADMISSIBILITY J.S.C.H AND M.G.S. MEXICO February 4, 2009 I. SUMMARY 1. The Inter-American Commission on Human Rights (hereinafter “the Commission”, “the Inter-American Commission” or “the IACHR”) received two petitions lodged by Pedro Isabel Morales Ache, Ricardo González Gutiérrez, and Cynthia Paola Lepe González (hereinafter “the petitioners”): one on April 9, 2004, on behalf of J.S.C.H., a former driver with the rank of Second Lieutenant in the Secretariat of National Defense; and the other on April 21, 2004, on behalf of M.G.S., a former infantry corporal in the Secretariat of National Defense, (hereinafter the “alleged victims”). The petitions were lodged against the United Mexican States (hereinafter “the State” or “the Mexican State” or “Mexico”), for alleged discrimination against the alleged victims because they were discharged from the Mexican Army because they have the human immunodeficiency virus (hereinafter “HIV”), as well as for alleged violation of their rights to a fair trial and judicial protection. 2. The petitioners argue that the Mexican State is responsible for violation of the rights enshrined in Articles 4(1), 5(1), 8(1), 9 11(2), 11(3), 24, 25(1), and 26 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), in connection with the general obligation contained in Article 1(1) of said international instrument. The petitioners also assert violation of Articles 3, 6(1), 9(1), 9(2), 10(1), and 10(2) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (hereinafter “the Protocol of San Salvador”) The petitioners hold that they exhausted domestic remedies in keeping with the provisions of Article 46 of the American Convention and that the discharge of the alleged victims by the Mexican Army because they have HIV is part of a policy of discrimination, which was confirmed by the administrative and judicial authorities that acted in the various domestic proceedings. 3. As regards admissibility requirements, the State has not contested the arguments of the petitioners with respect to exhaustion of domestic remedies. However it maintains that the petitions should be found inadmissible because they do not state facts that tend to establish a violation of human rights. It adds, in this connection, that remedies provided by domestic law produced unfavorable results for the alleged victims, which does not mean that their human rights were violated. It also holds that in both cases the six-month deadline established in Article 46(1)(b) of the American Convention was not met. 4. In keeping with Article 29(d) of the Rules of Procedure of the Inter-American Commission on Human Rights (hereinafter “the Rules of Procedure of the IACHR”) petitions 302-04 and 386-04 were joined because they address similar facts. 5. Without prejudging the merits of the matter, the Commission concludes in this report that the petitions are admissible under Articles 46 and 47 of the American Convention. Accordingly, the Inter-American Commission decides to notify the parties of the decision and continue with its analysis of merits with regard to alleged violations of Articles 2, 5(1), 8(1), 11, and 24 of the American Convention, in conjunction with the general obligation to observe and ensure rights provided at Article 1(1) of said international instrument. The Commission also decides to publish this report and include it in its Annual Report to the OAS General Assembly. II. PROCESSING BY THE COMMISSION 1. Petition 302-04 (J.S.C.H.) 6. On April 9, 2004 the Commission received the petition by electronic mail. It was stamped on April 13, 2004 and assigned case number 302-04. The petition requested precautionary measures in favor of Mr. J.S.C.H. 7. On April 21, 2005, the IACHR transmitted the pertinent portions of the petition to the Mexican State and requested it to submit its reply within two months, in accordance with Article 30(2) of the Rules of Procedure of the IACHR. The state’s reply was received on July 22, 2005. 8. The IACHR also received information from the petitioners on the following dates: June 17, 2004 and September 27, 2004. Said communications were duly relayed to the State. 9. Furthermore, the IACHR received comments from the State on the following dates: July 26, 2004, June 21, 2005, and August 29, 2005. Said communications were duly transmitted to the petitioners. 10. On October 3 2008 and date it was decided to join petitions 302-04 and 386-04. 2. Petition 386-04 (M.G.S.) 11. On April 21, 2004 the Commission received the petition by electronic mail. It was stamped on April 23, 2004 and assigned case number 386-04. The petition requested precautionary measures in favor of Mr. M.G.S. 12. On May 4, 2005, the IACHR transmitted the pertinent portions of the petition to the Mexican State and requested it to submit its reply within two months, in accordance with Article 30(2) of the Rules of Procedure of the IACHR. The state’s reply was received on August 5, 2005. 13. The IACHR also received information from the petitioners on the following dates: June 17, 2004 and September 27, 2004. Said communications were duly relayed to the State. 14. Furthermore, the IACHR received comments from the State on the following dates: July 15, 2004, July 26, 2004, July 5, 2005, August 5, 2005, September 9, 2005, and August 26, 2008. Said communications were duly transmitted to the petitioners. 15. On October 3 2008 and date it was decided to join petitions 302-04 and 386-04.; III. POSITIONS OF THE PARTIES A. Background 16. The dispute in this matter concerns the fact that the alleged victims were dismissed from the Mexican Army because they have HIV. 17. In both cases, the alleged victims instituted administrative proceedings as provided in the Mexican Armed Forces Social Security Law (hereinafter the “ISSFAM Law”) and then continued to press their claims in the judicial venue. 18. In view of the fact that there is no dispute between the parties over domestic proceedings, before it moves onto the positions of the parties, the Inter-American Commission will briefly summarize the administrative proceedings and the lawsuits brought before the judicial authorities by the alleged victims. To that end, it is necessary to bear in mind a number of provisions contained in the ISSFAM Law of June 29, 1976, which was in force at the time that the alleged victims were discharged from the Mexican Army: Paragraph 117 of the Appended Tables to the ISSFAM Law recognizes as grounds for unfitness: Susceptibility to recurring infections attributable to untreatable conditions of cellular or humoral immunodeficiency of the organism. Article 22: The following are cause for retirement: To reach the age limit set in Article 23 of this law; To be rendered unfit in action or as a result of injuries sustained therein; To be rendered unfit in other acts in the line of duty or as a consequence thereof; To be rendered unfit in acts outside the line of duty; To be prevented from performing military duties by illness that lasts more than six months, in which case, the Secretary of National Defense or, as appropriate, of the Navy, may extend this period by up to three months, subject to the opinion of two active military physicians indicating the possibility of recovery within that time Article 197: Based on the evidence collected, the Secretariat concerned shall issue a notice of approval of retirement should it deem that the military status of the interested party is proven, they are in active service, and one or more grounds for retirement are shown. Otherwise, the Secretariat shall issue a notice of disapproval of retirement, which shall be based on appropriate grounds and causes. These notices shall be communicated to the serviceman, who will be informed, as appropriate, of the calculation of his length of service and the rank at which he shall retire, so that within 15 days he might express his assent therewith or challenge it and state his objections, which may only refer to the propriety or impropriety of his retirement, the military rank at which the interested party should retire, and the calculation of his length of service. Should he consider it appropriate, he may offer evidence in the challenge brief, which shall be received within 15 days after the foregoing deadline. 1. Proceedings in the case of J.S.C.H. 19. According to information provided by the parties, on September 19, 1998, J.S.C.H who was a driver with the rank of Second Lieutenant attached to the Seventh Section of the Staff of the Secretariat of National Defense, with 19 years of service on his record, was informed by official letter AD-1-115420 XIII/III issued by the Secretariat of National Defense of: a) the notice of approval of retirement by reason of unfitness as a result of acts outside the line of duty (Official Letter SGB-V-32386 of September 4 1998, signed by the Bureau of Military Justice), and; b) the request for the issue of a retirement approval notice (Official letter SGB-V-33561 of September 14, 1998 issued by the Bureau of Military Justice [Dirección General de Justicia Militar]). 20. On October 2, 1998, Mr. J.S.C.H. challenged the retirement approval notice to the Bureau of Military Justice under Article 197 of the ISSFAM Law then in force. The alleged victim received notice of final approval of his retirement by official letter SGB-V-40209 of October 22, 1998, signed by the Bureau of Military Justice

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