Report No. 6 (2021) IACHR. Petition No. 1345-11 (Peru)

• Year: 2021
• Case Type: Inadmissibility
• Court: Inter-American Comission of Human Rights

REPORT No. 6/21

PETITION 1345-11

REPORT ON INADMISSIBILITY

NELLY SOCORRO FLORENCIA PAREDES HUERTA

PERU

OEA/Ser.L/V/II

Doc. 6

19 January 2021

Original: Spanish

Approved electronically by the Commission on January 19, 2021.

Cite as: IACHR, Report No. 6/21, Petition 1345-11. I.. N.S.F.P.H.. P.. January 19, 2021.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Nelly Socorro Florencia Paredes Huerta
:	Nelly Socorro Florencia Paredes Huerta
Respondent S.:	P.
Rights invoked:	Articles 4 (life), 5 (humane treatment), 8 (fair trial) and 25 (judicial protection) of the American Convention on Human Rights1

II. PROCEEDINGS BEFORE THE IACHR2

Filing of the petition:	September 30, 2011
Additional information received at the stage of initial review:	February 12, 2013, August 2, 2014 and J. 15, 2016
N. of the petition to the S.:	J. 23, 2016
S.’s first response:	September 23, 2016
Additional observations from the petitioner:	February 26, 2018
Additional observations from the S.:	O. 4, 2019

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (deposit of the instrument of ratification made on J. 28, 1978)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	None
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., in the terms of section VI
Timeliness of the petition:	Y., in the terms of section VI

V. FACTS ALLEGED

1. The petitioner manifests that the Social Security of P., known as EsSalud, had ceased social security services, among these, access to medical and pharmaceutical service, because of the divorce between her and her husband on August 28, 2008. She points out that she always dedicated to her home and that during forty years she benefitted from the services provided by EsSalud. She states that she filed several judicial remedies, concluding with a Constitutional remedy which was dismissed by the Constitutional Court. The alleged victim also claims that at no time she was notified that her medical attention would be definitively suspended; and that due to such suspension of these services by EsSalud and of the sentence issued by that higher court, her rights to a fair trial, judicial protection, humane treatment, property, life, health and nondiscrimination were infringed.

2. The petitioner specifies that on J.8., 2009 she filed a request for defence against EsSalud, requesting the continuity of the benefit of medical assistance, by considering herself rightful beneficiary of her ex-husband, since she received medical assistance from such entity for more than forty years. By means of sentence of J. 5, 2010 the J. of the Fourth Civil Court of Arequipa declared the defence request founded, acknowledging that the alleged victim had right to social security as a fundamental right, recognizing her rights to medical assistance services from EsSalud. H., in second instance, by sentence (49-2011-SMV) of the M. 11, 2011, the Vacation Chamber of the Higher Court declared the demand unfounded by considering that the condition which entitled the alleged victim to such right became expired with the divorce.

3. C. to this sentence of M. 11, 2011, the petitioner filed a Constitutional remedy before the Constitutional Court, which, by means of sentence of J. 13, 2011 of it First Chamber, decided to declare the Constitutional remedy inadmissible, concluding that no breach to the alleged victim’s right to social security had been credited, and reaffirming that such invoked right had expired due to the divorce between her and her ex-spouse, since he was the actual rightsholder, and she was his dependent.

4. On its part, the S. claims that the IACHR lacks competence in virtue of the matter regarding such alleged violations of her right to health, since the topics related to the right to health are beyond its jurisdiction. As for the exhaustion of domestic remedies, it claims that the petition is inadmissible, since the suitable domestic jurisdiction’s remedies to safeguard the access to health and the right to equality were not exhausted. P. points out that the petitioner should have exhausted the contentious-administrative path to challenge the decisions that she considered contrary to her purposes, prior to her request for defence. Also, that several of the rights invoked by the petitioner, were not questioned in the domestically filed remedies.

5. F., the S. points out that the proceeding that affected the alleged victim was conducted according to applicable legal and Constitutional regulations, and in full compliance with fair trial and due process. It requests that the petition be declared inadmissible based on article 47(b) of the American Convention, since, in its view, the facts claimed by the petitioner do not conform violations to the rights to life, humane treatment, equality before the law and nondiscrimination, fair trial, judicial protection, property and non-regression of rights.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

6. On the instant case, the Commission observes that the petitioner resorted to the request for defence in order to restore her access to social security, specifically, medical and pharmaceutical attention. In this sense, she turned to existing instances in civil jurisdiction, exhausting this path by means of a request for defence which was dismissed on 8 J.8., 2009 and, finally, via a Constitutional remedy, dismissed on J. 13, 2011. The S. on its part claims that the petitioner could have chosen to file other available remedies from the domestic legislation such as, the administrative remedy.

7. That being said, in regard to the raised by the S., the Commission insists on its permanent position that has established that the requisite of having exhausted domestic remedies does not mean that the alleged victims have necessarily the obligation to exhaust all domestic remedies. Consequentially, if the alleged victim approached the matter through any of the appropriate alternatives, as in the case of this petition, and the S. had the chance to solve the situation, the purpose of the norm is fulfilled3. In the present case it is observed that none of the three courts which ruled regarding her complaint informed the petitioner that the suitable way to address it was the contentious-administrative jurisdiction, instead, they heard her complaint and decided on it considering its merits. In first instance the alleged victim received a favorable decision to her interests and in the other two higher instances, negative decisions, yet in all of them there were judicial sentences regarding the subject matter.

8. In light of these considerations, the Commission concludes that the present petition meets the requirement of exhausting domestic remedies set forth in article 46.1.a) of the American Convention. L., considering that the final decision was issued on J. 13, 2011, and the petition was filed on September 30, 2011, the IACHR concludes that it meets the requirement set forth in article 46.1.b) of the Convention.

VII. ANALYSIS OF COLORABLE CLAIM

9. The Commission observes that the current petition includes allegations related, mainly, to the presumed irregular suspension of the social security system of the petitioner after divorce. A., notes that the internal justice bodies resolved this issue and determined that there was no violation of rights, since the referred restriction was carried out on the based on the rules established by the domestic legislation and under reasonable parameters.

10. In this regard, the Commission...