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.