How not to have your case thrown out by the Inter-American Commission

2013 Emily Hazlett 100x150Emily Hazlett

Imagine a hospital where the patients sleep on the floor or on dirty old mattress. Instead of getting adequate treatment for their illnesses, they run a high risk of contracting HIV and other infectious diseases. Patients are placed in segregation or restrained, their arms tied to the sides of wheelchairs. Physical and sexual abuse are rampant. There is no clean water and not enough to eat. Day after day women are kept locked inside their ward to protect them from being assaulted. Most of the patients could leave, but given a lack of services in the community, they have nowhere else to go.

These are the conditions at Federico Mora Psychiatric Hospital in Guatemala City. I’ve spent most of the last 3 months with Disability Rights International working on preparing the case of Federico Mora to be heard at the Inter-American Commission of Human Rights. In preparing the case, the biggest challenge we face is meeting the Commission’s admissibility requirements.

In all three regional human rights systems (American, European and African), applicants are required to show they they’ve exhausted the domestic remedies of their home country before the Court will hear their case. The rationale for the rule is essentially political. Regional human rights systems are subsidiary to state courts; the exhaustion rule allows national authorities the opportunity to respond to human rights violations at home before being condemned at the international level.

There are however exceptions to the exhaustion rule (or agotamiento de recursos domesticos, as I’ve slowly been learning to say). Unfortunately, finding jurisprudence to support the exception rule has proven difficult, since the Commission’s reasoning is always a very specific mix of the applicant’s circumstances, domestic law from across Latin America, and varying attempts at adequate and effective legal recourse. On top of that, the Inter-American system has issued very few decisions relating to disability, meaning they’ve yet to consider the uneven relationship between the necessity of exhausting legal remedies and the lack of legal capacity faced by many people with mental disabilities. The European Court recently ruled on the issue, leading the strange jurisprudential experience of a tiny group of Mexican lawyers being thrilled to learn of the failures of Bulgaria’s legal system.

In the case of Federico Mora we allege violations of rights to life, integrity, equality, liberty, legal capacity, fair hearing, judicial protection, social life, mobility, private life and health (imagine a Charter challenge with alleged violations of 12 separate sections of the Charter). In the Inter-American system, 70% of cases don’t meet the admissibility requirements because the applicant has failed to exhaust domestic remedies. And so our biggest challenge (beyond preparing arguments regarding 12 separate articles of the American Convention on Human Rights), is showing that Guatemala offers no possibility of recourse to patients unjustifiably detained in inhumane conditions.

Herod’s Law: Adventures in Mexican Corruption

2013 Emily Hazlett 100x150By Emily Hazlett

Despite all the work I’ve been doing with Disability Rights International and the endless things to see and do and eat in Mexico City, at some point I found myself in the back seat of a car with seven friends, racing along a cliff-side highway beside the Pacific. I had just arrived in Acapulco that morning when a friend invited us to squeeze into his car and go get some breakfast. Life was nothing but sun and ocean and the promise of huevos rancheros, until we were pulled over by a municipal police officer who threatened us with four hundred of dollars worth of fines for driving infractions.

Now I could probably accept that it’s illegal to be seven people in a car. You may even be able to convince me that seat belts are mandatory. But then apparently we had also run a red light – and we had almost killed an innocent pedestrian in the process. Our list of infractions was limited only by the cop’s imagination, which was running particularly creative on account of all the sunshine.

Eventually we were passed a colourful pamphlet on traffic infractions, published sometime in the 1980s. The pamphlet was provided, not as a legal basis for our infractions, but so that we may have a place to safely hide our pesos while handing them over. Given that my friend could not get his license back without paying the bribe, we ultimately negotiated a $150 ‘fine’ that we paid between the seven of us.

A few days later I was in a human rights working group meeting with representatives of the government (all well-dressed men) and representatives of NGOs (all inspiring young women). We were discussing strategies for improving conditions for persons deprived of liberty in state institutions. A noble mission, but I can’t help but wonder how much impact our efforts will have in a country where the police can easily extort citizens in broad daylight under the guise of law enforcement.

My experience was actually quite tame for the state of Guerrero, which has become one of the most dangerous in Mexico since drug cartels started moving in. Many communities are distrusting of the police, accusing them of conspiring with the cartels. These communities have established their own vigilante justice groups, but these groups don’t work under any official authority, and as a result have no monitoring or oversight.

Our crazed driver, Frank, enjoys the particularly nefarious career of the professional artist: http://franciscomunoz.tumblr.com/

Our crazed driver, Frank, enjoys the particularly nefarious career of the professional artist: http://franciscomunoz.tumblr.com/

And it’s not only Mexico’s legal institutions that are suffering; estimates put the price of bribery and corruption at around $50 billion a year, or 9% of the GDP. Known as mordidas (bites), a Mexican family might spend up to $100 a year on bribes, in a country with an average annual income below $10,000.

When I got home from Acapulco I looked up the driving laws in the state of Guerrero. Turns out that there’s nothing about maximum number of passengers in a car, and seat belts are only mandatory in the front seat.

There is something about studying law in Canada that presupposes an independent justice system, and that takes for granted the rule of law. For only $150 I was able to buy myself a reminder that this isn’t the case everywhere, and that Herod’s laws of corruption and arbitrary abuse of power are alive and well in Mexico.

“And children live there?” Abuse in a Guatemalan Psychiatric Hospital

2013 Emily Hazlett 100x150By Emily Hazlett

What to do with Guatemalan children and teens who are in need of emergency psychiatric services? This was the question that was put to me on my second day of work at Disability Rights International, in Mexico City.

My first day was spent reading about what currently happens to them. Children and teens who suffer some kind of acute mental health crisis are often placed in Federico Mora Psychiatric Hospital for adults in Guatemala City. Patients there can be tied up all day, put into isolation, receive little to no medical treatment, have no clean water and not enough food, and are abused physically and sexually by the guards. The women remain permanently locked up in a small ward to protect them from being assaulted. The hospital, which is already located in the most dangerous neighborhood in the city, is also next to the biggest jail in Guatemala. As such a number of criminals are also housed there, meaning that there are always armed guards on the premises. Staff who witness abuse are afraid of denouncing it, since a number of the perpetrators, who essentially run the hospital, have ties to Central American gangs.

And so Disability Rights International has been petitioning the Interamerican Commission on Human Rights to protect the patients in the hospital (Roger Bill chronicled the beginnings of that petition last summer on this very blog). The Interamerican Commission has now asked us for alternatives to hospitalization for children with acute psychiatric problems, a request that has thrown me into the very new world of urgent care child psychiatry.  I have been drafting a request that the children remain, as much as possible, within their families (a practice that is increasingly recognized as both cheaper and more effective in Canada and the USA).

www.disabilityrightsintl.org

While the subject matter of my work is often difficult, the atmosphere in DRI’s small office remains remarkably positive. My colleagues are always happy to recommend weekend trips, pretend to understand my Spanish, and offer tips for tackling the insanity that is a metro system serving 22-million people at rush hour.

I feel extremely fortunate to be working with DRI on this project to protect the over 300 people with disabilities arbitrarily and dangerously detained at Federico Mora Hospital in Guatemala City. At the same time, I’ve just learned that DRI will soon be acting as amicus curiae at the Mexican Supreme Court, defending a young man with Asperger’s Syndrome who has been placed under tutorship. The case will hopefully set a new precedent in Mexico that will help people with disabilities maintain their legal capacity as a rule rather than an exception. In short, it’s an exciting time to be working here, as there are a number of really important projects going on in the office, and lots of work to be done.

 

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