Inter-American Commission on Human Rights
The Inter-American Commission on Human Rights (IACHR) recently released its decision in a case concerning discriminatory treatment of two Mexican soldiers with HIV, after concluding that Mexico had complied with all its recommendations for remedying the violations. See IACHR, Report No. 80/15, Case 12.689, J.S.C.H and M.G.S. (Mexico), 28 October 2015. The complaint, brought on behalf of two former members of the National Defense Secretariat, alleged that Mexico violated the American Convention on Human Rights (American Convention) by requiring the victims to retire from their positions without benefits, pay, or pension based on their HIV status. The petitioners further alleged that they were denied the right to fair trial in the process of appealing the forced retirement. The Commission found Mexico in violation of its obligation to give domestic legal effects to the rights to non-discrimination, a hearing within a reasonable time before an impartial tribunal, privacy, and equal protection of the law without discrimination. It found no violation of Article 5.1 (humane treatment) of the American Convention, holding that Mexico’s dismissal of the victims and their subsequent lack of pay and benefits did not constitute inhumane treatment. See id. The decision was announced shortly after World AIDS Day, which was observed on December. [IACHR Press Release]
In its merits report, the Commission recommended that Mexico provide the victims with any comprehensive health services needed; make complete reparations to the victims, including financial, moral, and, if desired by the victims, reinstatement in the Armed Forces; and to bring the Mexican Armed Forces Social Security Law (MAFSS Law), which governs the conditions under which a person can be retired from service, into compliance with the non-discrimination, privacy, and equal protection provisions of the American Convention. See IACHR, J.S.C.H. and M.G.S. (Mexico), 28 October 2015. Following the IACHR’s confidential release of the decision to the State and petitioners, the parties executed an agreement on reparations that recognized the victims’ desire to be reinstated in the army, required a ceremonial acceptance of responsibility, ensured amendment and evaluation of the legislation to guarantee non-repetition, and required implementation of training in the armed services on non-discrimination against persons with HIV/AIDS. Id. at paras. 141-47.
The IACHR determined that Mexico “fully complied with the recommendations set forth in Merits Report 139/11, as well as with the additional components of the agreement entered into by the parties.” It found that no additional evaluation would be necessary. Id at para. 168.
The decision elaborates on the international jurisprudence requiring that any difference in treatment based on HIV status be reasonable, as well as suitable and strictly proportional to pursuing a legitimate purpose. See id. at para. 99 et seq. This is apparently the first time that the IACHR has published a detailed discussion of its analysis on this issue. , For example, a previous decision found that the treatment of a hospital patient with HIV, wherein he was provided with a drinking glass marked “XXX” that no other patient used, was “utterly unreasonable and demeaning,” but the IACHR did not explain the relevant standard or analysis. See IACHR, Report No. 27/09, Case 12,249, Jorge Odir Miranda Cortez, et al. (El Salvador), 20 March 2009, para. 74. Read more