Report No. 146 (2021) IACHR. Petition No. 292-15 (Paraguay)

• Year: 2021
• Case Type: Admissibility
• Respondent State: Paraguay
• Court: Inter-American Comission of Human Rights

REPORT No. 146/21

PETITION 292-15

REPORT ON ADMISSIBILITY

ALAN ROBERT MARTÍNEZ MARTÍNEZ

PARAGUAY

OEA/Ser.L/V/II.

D.. 154

8 July 2021

Original: Spanish

Approved by the Commission electronically on J.8., 2021.

Cite as: IACHR, R. No. 145/20, Petition 292-15. A.. Alan Robert Martinez. Paraguay. J.8., 2021.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Edgar Quintana
:	Alan Roberto M. Martinez
Respondent S.:	Paraguay
Rights invoked:	Articles 5 (humane treatment), 8 (fair trial), 11 (right to privacy), 17 (rights of the family), 19 (rights of the child), 24 (equality before the law) and 25 (judicial protection) of the American Convention on Human Rights1 in relation to its article 1.1 (obligation to respect rights) and 2 (obligation to abide by domestic legal effects) thereof

II. PROCEEDINGS BEFORE THE IACHR2

Filing of the petition:	J. 31, 2015
Additional information received at the stage of initial review:	November 30, 2018
N. of the petition to the S.:	August 12, 2019
S.’s first response:	November 27, 2020
Additional observations from the petitioner:	J. 11, 2021

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (instrument of accession deposited on August 24, 1989)

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	Articles 5 (humane treatment), 8 (fair trial), 11 (right to privacy), 17 (rights of the family), 19 (rights of the child), 24 (equality before the law), 25 (judicial protection) and 26 (progressive development) of the American Convention, in relation to its articles 1.1 (obligation to respect rights) and 2 (obligation to abide by domestic legal effects)
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 claims that the S. violated the rights of Mr. M., by retiring him from the Armed Forces in a discriminatory manner and without due process, after contracting the Human Immunodeficiency Virus (hereinafter, HIV) as a consequence of his functions in said institution.

2. The petitioner narrates that on August 14, 2003 the alleged victim started to provide services in the Armed Forces of the Nation, as Sub-Official with the rank of First Lance Sergeant of Infantry. He explains that between 2004 and 2007 the military personnel were performing garbage disposal duties with no protection equipment; for which reason, in 2007, while M.M. was performing said duties he suffered stings and cuts on his hand. After not feeling well, he holds that the alleged victim attended a medical center, where he was told, after the performance of an exam, that he was a carrier of HIV in phase of acquired immunodeficiency syndrome (AIDS).

3. He argues that because the clinical chart of Mr. M. was accessible to anyone, the cited results were divulged within all of the Armed Forces, which caused the alleged victim to suffer different situations of discrimination. On this matter, the J.D. of the referred institution at the time, specifies that he ordered that M.M. not be allowed to have water from the drinker; and that “he was accused of being homosexual”, which is why he had to live with that stereotype even after his departure from the Armed Forces.

4. U. this, the alleged victim filed a request at administrative level so it would be declared that he had contracted said disease in acts of service and he be recognized an indemnity and a special pension. On April 13, 2009 the Prevention Court of the Command of the Military Forces accepted said request and declared that M.M. had contracted HIV in acts of service. B. on this, he holds that on April 29, 2009 the Medical Recognition Board of the Armed Forces of the Nation recommended that the alleged victim resorts to the benefits foreseen in article 124 of the of the Military Personnel Statute 3.

5. In spite of this, on J. 16, 2009 the National Defense Ministry, by means of Executive Power Decree № 2254, passed the alleged victim to a Temporary Situation of Retirement from the Armed Forces, by virtue of articles 120, subsection A, and 125 of the Military Personnel Statute4, that, in essence, establish that the personnel of the Armed Forces must have flawless moral conditions so as to be promoted and that whomever does not make promotion twice either consecutively or alternately is to be discharged. It specifies that the referred rule stated as a foundation, among its considerations, a resolution from the Board of Assessment for Sub-officials Service of the Command-in-Chief of the Armed Forces of the Nation (hereinafter “Board of Assessment”), adopted on November 27, 2009 on its session № 20.

6. The petitioner claims that the cited decision, actually, responded to a scheme of corruption within said institution, and that deep down the aim was to discharge Mr. M. for being carrier of HIV. A. these lines, petitioner holds that there is no document signed by all the members of the abovementioned Board of Assessment, which would prove that there was no such decision. In addition, claims that although said decree cited norms which provide that member of the Armed Forces shall be discharged after twice missing promotion either consecutively or alternately, there is no documentation either that supports the application of said articles. On this matter, he holds that in 2007 the alleged victim was allowed to postpone his promotion reviews, while in 2008 he did not undergo the review for being sick, situation of which authorities were aware due to the divulgation of his health condition. Finally, claims that Mr. M. was never notified of said decree, so he would properly exercise his right to defense.

7. U. this, the alleged victim initiated a contentious administrative proceeding against Executive Power Decree № 2254, claiming that said decision affects the benefits he was to be granted pursuant to article 124 of the Military Personnel Statute, for having contracted HIV in acts of service. N., on December 31, 2012, the Second Chamber of the Court of Auditors rejected the claim in considering that the claimant should have directly contested the decision of the Board of Assessment and that said decision abided by the legislation in force. The defense of Mr. M. filed an appeal against said decision, but on August 1, 2014 the Criminal Chamber of the Supreme Court of Justice declared said remedy inadmissible, arguing that the documentation required by the applicable norm was not attached in order to analyze its admissibility. In this regard, the petitioner holds that the alleged victim did not attach said documents, since the copies of the first instance proceedings were not duly notified to him.

8. In parallel, the petitioner claims that on J. 14, 2011 Mr. M. filed an ordinary lawsuit for damages for extracontractual responsibility against the Command-in-Chief of the Armed Forces, claiming he contracted HIV due to the negligence of said institution. H., on M. 19, 2014 the First Instance Civil and Commercial Judge declared itself incompetent to hear such remedy in considering that the allegations raised had to be heard via the contentious administrative path, which is exclusive of the Court of Auditors, pursuant to article 39 of the Judicial Organization Code.

9. In short, the petitioner denounces that the S. violated the rights of the alleged victim by removing him from the Armed Forces after contracting HIV in acts of service and not granting him the benefits set forth in the domestic legislation. Although said domestic legislation protects the persons who live with HIV in the workplace5, Executive Power Decree № 2254 had been based on inexistent reports and had wrongfully applied the provisions of the Military Personnel Statute. Finally, argues that all that occurred is the result of the corruption which operates inside the Armed Forces.

10. The S., on its part, replies that the petition is inadmissible, since the reported facts do not characterize attributable human rights violations. It argues that the Board of Assessment decided to request the temporary retirement of Mr. M. before the Prevention Court of the Command of the Military Forces declared that the alleged victim contracted HIV in acts of service, for which reason it was not motivated in this last situation. On the contrary, it holds that the documentation provided proves that the alleged victim failed the promotion reviews in two consecutive years (2007 and 2008), for which reason according to the domestic norm he was supposed be retired. It adds that M.M. did not contest the resolved by said board and preferred to use other judicial paths. T., it stresses that the cited decision only complied with domestic law and was not based on any discriminatory criterion.

11. Finally, it holds that M.M. had access to proper and effective judicial remedies, which were solved by competent authorities with duly motivated decisions. C., the fact that his demands were not met does not mean that his rights were breached. For such reasons, requests that the petition be declared...