Juridical Action for the Protection of Collective Rights and its Legal Impact: A Case Study

The “amparo” suit is an original Mexican institution with no exact equivalent in the common law tradition. The word “amparo” literally means favor, aid, protection, or shelter. Legally the word encompasses elements of several legal actions of the common law tradition: writ of habeas corpus, injunction, error, mandamus, and certiorari.

The Mexican Legal System, 2d ed. (Littleton, Colorado: F.B. Rothman, 2000), available at <http://www.law.arizona.edu/library/internet/library_publications/mexican_legal_sys.htm>. The Mexican amparo, which is the oldest and more complex Latin American institution, is described by the Lawyers Committee for Human Rights as the “legal remedy for State actions that violate fundamental constitutional rights.” Lawyers Committee for Human Rights and Miguel Agustín Pro Juárez Human Rights Center, Legalized Injustice: Mexican Criminal Procedure and Human Rights (New York: Lawyers Committee for Human Rights, 2001), available at <http://www.lchr.org/pubs/descriptions/leg_ex_sum.pdf>. Other more extensive descriptions present it as “a special type of legal procedure that allows an individual to challenge an action of an authority, such as an arrest or a court ruling, on the grounds that it violated his or her constitutional rights” (Tribunal Returns Case to Lower Court, Amnesty International USA (May 9, 2001), at <http://www.amnestyusa.org/justearth/updates/mexico_052001.html>); or “constitutional action that arises from an act or omission by any authority, officer or person that injures or threatens other rights recognized in the constitution” ( Alfaro C.E. , “Regulatory Issues Affecting Internet Access,” Digital Dilemmas: The Divide in Latin American (February 2, 2001), available at <http://www.columbia.edu/cu/ilas/events/alfaroPresentation.html>). ACCSI (Acción Cuidadana Contra el SIDA) has frequently used the definition “constitutional appeal of protection.” Single terms or concepts also used are injunction action, constitutional complaint, and constitutional appeal. Some others are directly related to a more literal translation of amparo: Action of relief, amparo remedy, extraordinary constitutional remedy.

Ley Organica de Amparo Sobre Derechos y Garantias Constitucionales, Official Gazette N° 33891 (January 22, 1988). Constitucion de la Republics de Venezuela, Official Gazette N° 662 (Extra) January 23, 1961). Article 49: “The Courts will protect all inhabitants of the Republic in the enjoyment and exercise of their constitutional rights and guarantees, according to the law. The proceedings will be brief and expedite, and the competent judge will have the power to immediately restore the infringed juridical situation.” It is interesting to point out that even if the 1961 Constitution established the right to amparo constitucional, it was not until 1988 that the legislature passed the law of amparo. This meant that for almost three decades the development of related doctrine was left for judges to set. This is a rather awkward situation under civil law, more so given the absence in Venezuela of a high constitutional court that could standardize doctrine on the procedures and effects of amparo decisions.

Decision of the Administrative Law Court of the Supreme Court of Justice (June 8, 1987). See Villegas J.L. , La Protection jurisdictional de los Intereses Difusos y Colectivos (Caracas: Editorial Juridica Venezolana, 1999): at 85.

Impuesto del Valor Agregado (IVA) , decision of the Administrative Law Court of the Supreme Court of Justice (January 7, 1994). See Villegas , supra note 3, at 86.

Decision of the Civil Law Court of the Supreme Court of Justice (December 5, 1995), in Tapia O.P. , Jurisprudencia de la Corte Suprema de Justicia, vol. 12 (Caracas: Pierre Tapia, 1995): at 74. See Villegas , supra note 3, at 87.

See Villegas , supra note 3, at 41–61. See also decision of the Constitutional Court of the Supreme Tribunal of Justice (September 20, 2000).

Viguri A. , “La Defensa de los Intereses Colectivos en el Ambito del Medio Ambiente,” in Gonzalez F. and Viveros F. , eds., Defensa Juridica del Interes Publico (Santiago de Chile: Escuela de Derecho, Universidad Diego Portales, 1999): at 154.

This section has been prepared following, among other studies, a paper by Carrasco E. , “Derechos Humanos y el Acceso a Antirretrovirales en America Latina y el Caribe,” in Politicas Publicas y Prevention del VIH/SIDA en America Latina y el Caribe. Forum 2000 (Mexico: Fundacion Mexicana para la Salud, 2001): at 241–71.

Law 9313 (November 13, 1996) establishes the contents of the right to health for those with HIV/AIDS, including free integral health care and access to treatment.

See, for instance, XXX v. Instituto de Seguros Sociales (ISS), Sentence T-271/95, Exp. 62714, of the Seventh Court of Revision of the Constitutional Court (June 23, 1995).

Decree N° 1543 (1997).

William Garcia v. Caja de Salud , Decision 5934–97 of the Constitutional Hall of the Supreme Court of Justice (September 23, 1997). The court ordered the Social Security Office “to immediately provide access to complete antiretroviral treatment to the plaintiff, according to his health condition.”

Jose Luis Castro v. Instituto Mexicano del Seguro Social , Amparo Decision 2231/97 of the Plenary Court of the Supreme Court of Justice (April 2000). See Medina A. , “Historico Fallo de la Suprema Corte de Justicia,” La Jornada (Mexico), April 6, 2000, available at <http://www.jornada.unam.mx/2000/abr00/000406/ls-fallo.html>. The court established that the right to health of the plaintiffs demands “the provision of the best therapy alternative” in order to achieve the best possible life conditions, and it ordered the authorities to “guarantee the permanent stock and provision of the essential drugs that the health of the population demands.”

The Supreme Court of Justice ruled on June 1, 2000, on the final appeal by the Ministry of Health. Although it led to budget assignment and general access to treatment during 2001, by the end of the year the National AIDS Plan had almost stopped delivering the drugs to those with HIV; this led to another legal action with precautionary measures, and a new decision of the Civil Federal Court on April 26, 2002, ordering the ministry to resume access to treatment. Bianco M. , Human Rights and Access to Treatment for HIV/AIDS in Argenina (Buenos Aires: FEIM/LACCASO, 1999), available at <http://www.laccaso.org/pdfs/argeng.pdf>. For a complete analysis of Argentinian legal dispositions, see CELAS, Informe Sobre la Siuación de los Derechos Humanos en Argentina 2000 (Buenos Aires: Eudeba/CELS, 2000).

Resolution of April 3, 1999, Junta Directiva de la Caja del Seguro Social, Panama.

Inter-American Commission on Human Rights, Communication from the IACHR to the Salvadoran State on Feb. 29, 2000, quoted in Report N° 29/01, Case 12.249, Jorge Odir Miranda Cortez et al. v. El Salvador (March 7, 2001). The request for precautionary measures stated: “Without prejudice to other actions that your Government deems necessary, the Commission holds the view that urgent measures should be adopted in order to provide the medical care capable of safeguarding the life and health of Jorge Odir Miranda Cortez and the other personas listed above. In particular, the IACHR asks that your government provide the anti-retroviral treatment and medications necessary to avoid the death of the aforementioned persons, as well as the hospital, pharmacological, and nutritional care needed to strengthen their immune systems and to prevent the development of diseases and infections.”

For jurisprudence under the 1999 Constitution, see section “Access to treatment and collective interests under the new constitutional order,” below. Articles referring directly to the right to health under both Constitutions can be found in Figure 1.

Ministry of Health and Social Development, Report of the Epidemiological Unit of the National AIDS Plan (December 1999); UNAIDS, “Table of Country-Specific HIV/AIDS Estimates and Dates,” Report on the Global HIV/AIDS Epidemic (June 2000), available at <http://www.unaids.org/epidemic_update/report/Table_E.htm>.

Carrasco E. , Access to Treatment as a Right to Life, Health and Science and Technology, Venezuelan presentation at the XIII International AIDS Conference, Durban, July 2000, available at <http://www.laccaso.org/indexeng.html>.

For more information about ACCSI, see <http://www.internet.ve/accsi/>.

International Council of AIDS Service Organizations (ICASO), HIV/AIDS and Human Rights: Stories from the Frontline (Toronto: ICASO, 1999): at 4, available at <http://www.icaso.org>.

The case studies from this section are reviewed in Mejia L. , “Venezuela,” in Los Derechos Economicos, Sociales y Culturales: Un Desafio Impostergable (San José de Costa Rica: InterAmerican Human Rights Education Institute, 1999): at 353–59. For English literature, see Torres M.A. , “The Human Right to Health, National Courts, and Access to HIV/AIDS Treatment: A Case Study from Venezuela,” Chicago Journal of International Law, 3, no. 1 (2002): 105–15, at 105; Torres M.A. , Access to Treatment as a Human Right: A Discussion of the Aspects of the Right to Health under National and International Law in Venezuela, Master in Law thesis, University of Toronto (2000). See also Elliot R. , “Access to Treatment and the Human Right to Health: Recent Developments and Future Strategies,” in Global Treatment Access: Legal Development and Strategies, a collection of papers prepared for Putting Third First: Vaccines, Access to Treatment & the Law, a satellite meeting of the XIV International AIDS Conference, Barcelona, July 5, 2002, at 16–41, available at <http://www.aidslaw.ca/barcelona2002/treatmentpapers.pdf>. The author provides a deep insight into the human rights perspective to HIV/AIDS issues.

Right to life: Article 3 of the Universal Declaration of Human Rights (UDHR); Article 6 of the International Covenant on Civil and Political Rights; Article 58 of the 1961 Constitution of the Republic of Venezuela. Right to an adequate standard of health: Article 25 of the UDHR; Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); Article 76 of the 1961 Constitution. Right to social security: Article 22 of the UDHR; Article 9 of the ICESCR; Article 94 of the 1961 Constitution. Right to benefit from the advancements of science and technology: Article 15 of the ICESCR. Additionally, Article 50 of the 1961 Constitution included what is called an open clause: “The list of rights and guarantees contained in this Constitution must not be understood as a denial of any other rights which, being inherent to the human person, are not expressly recognized.” The new 1999 Constitution also includes this clause (Article 22), and extends the protection of amparo actions to the set of rights inherent to the human person — regardless of their domestic or international recognition (Article 27).

Institute Venezolano de Seguros Sociales (IVSS) , decision of the First Administrative Law Court (December 18, 1997). See also ACCSI, IV Informe Anual VIH/SIDA y Derechos Humanos 1999 (Caracas: ACCSI, 2000): at 63.

JRB et al. v. Ministry of Defense , Decision 14000 of the Administrative Law Court of the Supreme Court of Justice (January 20, 1998).

NA et al. v. Ministry of Health (MSAS) , Decision 916 of the Administrative Law Court of the Supreme Court of Justice (August 14, 1998).

The progressive nature of the economic, social, and cultural rights — which are enshrined in Article 12 of the ICESCR, among other instruments — has been frequently used as an argument to justify the absence of measures toward its fulfillment. However, when referring to the nature of the obligations under the covenant, the International Committee on Economic, Social and Cultural Rights has written that “the fact that realization … is foreseen under the Covenant should not be interpreted as depriving the obligation of all meaningful content.” Indeed, progressive realization imposes “an obligation to move as expeditiously and effectively as possible towards that goal.” International Committee on Economic, Social and Cultural Rights, General Comment 3. The Nature of States Parties Obligations (December 3, 1998): at para. 9, available at <http://www1.umn.edu/humanrts/gencomm/epcomm3.htm#star>.

Hospital Universitario de los Andes, decision of the Administrative Law Court of the Supreme Court of Justice (May 11, 1992), in Revista de Derecho Publico, no. 52 (Caracas: Editorial Juridica Venezolana, 1992): at 188. See Villegas , supra note 3, at 89.

Decisión Ciudadana v. Consejo Nacional Electoral, decision of the Administrative Law Court of the Supreme Court of Justice (December 2, 1992). See Villegas , supra note 3, at 90.

See Villegas , supra note 3, at 88.

Id. at 90–92.

The first two amparos against the MSAS had a total of 138 petitioners, whereas the third action had 172. The increasing number of petitioners came as a result of progressive networking and awareness among those with HIV/AIDS, and was also part of the strategy toward the recognition of collective interests.

Bermúdez v. Ministerio de Salud y Asistencia Social (MSAS) , Decision 916 of the Administrative Law Court of the Supreme Court of Justice, Case No. 15.789 (July 15, 1999). An interesting aspect of this decision is that, when analyzing the documentation presented by the petitioners, it refers not only to international human rights law, but also to a declarative instrument of a foreign country (The United Kingdom Declaration of the Rights of People with HIV and AIDS, 1990).

Il Gatopardo , a nineteenth century Italian novel by Tomasso di Lampedusa, includes a frequently quoted phrase, which reads: “everything must change so that nothing changes.” As will be seen, the underlying idea behind this decision stands as exactly the opposite: to not affect the settled doctrine, but to change its nature all the same. The decision establishes orders that involve collective interests, but at the same time avoids developing explicit jurisprudence. However inconsistent this may sound, it also gives a relevant clue to the progressive nature of jurisprudence and its permeability before human rights demands, to the benefit of justice.

See supra note 33.

See id.

Gonzalez E. , “The Right to Health,” in Circle of Rights — Economic, Social & Cultural Rights Activism: A Training Resource (Washington, D.C.: International Human Rights Internship Program/Forum-Asia, 2000): at 281, available at <http://www.hrusa.org/hrmaterials/IHRIP/circle/toc.htm>.

RVG+ and Ministry of Health (MSDS), “LIS — Proyecto Levantamiento de Informacion de Seropositives en Venezuela,” in Venezuela. Country Report before the AIDS UNGASS (Caracas: MSDS, June 2001): at para. 4.2.3.

See ACCSI, supra note 24, at 58–60; Programa Venezolano de Educación-Accion en Derechos Humanos (Provea), Informe Anual Sobre la Situation de los Derechos Humanos en Venezuela. 1999–2000 (Caracas: Provea, 2000): at 190.

Cecodap v. Hospital J. M. de los Ríos , decision of the Superior Civil and Administrative Court of the Capital Region (August 20, 1999). See ACCSI, supra note 24, at 61.

Constitution of the Bolivarian Republic of Venezuela (December, 17, 1999) (Article 26: “Every person is entitled to the right to access the justice administration organisms, in order to defend their rights and interests, even the collective or diffuse interests, and to their effective protection.”). The Constitution also entitles the newly created Ombudsperson Office to represent the collective and diffuse interests of the population before the courts (Article 281.2).

Supra note 24.

López et al. v. IVSS , decision on appeal no. 487 of the Constitutional Court of the Supreme Tribunal of Justice, Exp. 00-1343 (April 6, 2001), available at <http://www.tsj.gov.ve/decisiones/scon/Abril/487-060401-00-1343.htm>.