A judicialização da saúde na Corte Interamericana de Direitos Humanos e no Tribunal Europeu de Direitos Humanos : mapeamento dos critérios interpretativos e dos standards protetivos e sua inter-relação com os grupos em situação de vulnerabilidade.

Abstract

The present study focuses on the judicialization of the right to health before the Inter American Court of Human Rights (IACtHR) and the European Court of Human Rights (ECtHR), as well as on the mapping of interpretative criteria and protective standards concerning the right to health of groups in situations of vulnerability. The objective is to analyze, based on decisions related to the judicialization of health before the IACtHR (cases adjudicated between 2018 and 2024, taking into account the leading case Poblete Vilches et al. v. Chile of 2018) and before the ECtHR (cases adjudicated between 2018 and 2024), the interpretative criteria and protective standards established concerning the right to health and their interrelation with vulnerable groups. The main research question to be addressed is as follows: Is there an interrelation between the interpretative criteria and the protective standards established by the IACtHR (cases adjudicated between 2018 and 2024, considering the leading case Poblete Vilches et al. v. Chile of 2018) and by the ECtHR (cases adjudicated between 2018 and 2024) with the protection of the right to health of groups in situations of vulnerability? Considering that this is a bibliographical study, the methodological approach to be adopted is the hermeneutical one. As for the procedural method, in relation to the analysis of the jurisprudence of the IACtHR and the ECtHR, the analytical method will be used. Regarding research techniques, indirect documentation will be employed, with consultation of both primary and secondary bibliographical sources, such as specialized academic journals, books, IACtHR Jurisprudence Notebooks, ECtHR thematic factsheets, among others. The research aligns with the line of inquiry on Contemporary Constitutionalism, insofar as it investigates the legal consolidation of constitutional guarantees—specifically, the right to health—as well as with the research focus of the advisor, Prof. Dr. Rosana Helena Maas, and her current research project titled “The Judicialization of Health before the IACtHR: Mapping of Interpretative Criteria and Protective Standards and their Interrelation with Groups in Situations of Vulnerability.” The project encompasses the human, fundamental, and social right to health and its direct judicialization before the IACtHR—as an autonomous right interpreted under Article 26 of the American Convention on Human Rights—and before the ECtHR, as a right protected derivatively through civil and political rights, as well as its interrelation with groups in situations of vulnerability. As a conclusion and result, the study finds a clear interrelation between the interpretative criteria and protective standards established by the IACtHR and the ECtHR and the protection of the right to health of groups in situations of vulnerability. In all cases decided by the San José Court and analyzed in this research, the protection of at least one vulnerable group was identified, with decisions—such as Residents of La Oroya v. Peru (2023), for instance—protecting multiple groups simultaneously. In the ECtHR decisions examined, although the protection of at least one vulnerable group was not identified in every judgment, four cases expressly mention the need for special protection of groups considered to be in situations of social disadvantage.