Colombia, Constitutional Court, 18 April 2022, T-128/2022
Case overview
Country
Case ID
Decision date
Deciding body (English)
Deciding body (Original)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Vulnerability groups
- Elderly
- Historically marginalized groups
Outcome of the decision
Link to the full text of the decision
General Summary
Two organizations of ancestral afro-Colombian midwives, and an NGO filed a protective action, tutela, against the local and national government alleging a violation of their fundamental rights to equality, non-discrimination, cultural diversity, work, and health. The Plaintiffs argued that they are part of marginalized groups that have been profoundly affected by the armed conflict. Furthermore, they alleged that the COVID-19 pandemic had hampered their work as midwives and impoverished them. They argued that the National Executive order that recognized economic compensation for healthcare workers did not apply to them although, they claimed, they had the right to it. Likewise, they had not been prioritized in the National Vaccination Plan against the virus, nor had they received medical equipment nor formal training to face it.
The lower Court denied every claim. The Plaintiffs appealed, and a higher Court granted the protection regarding the medical equipment and the prioritization in the National Vaccination Plan. The Constitutional Court reviewed this decision and granted the protection in every aspect claimed by the Plaintiffs, confirming in part the decision of the higher Court but revoking it regarding the claims it denied. For the Court, authorities violated the principle of equality and non-discrimination as midwives provided healthcare services during the COVID-19 pandemic, even to sick people, and had to be considered healthcare staff for these purposes. For the Court, their exclusion from these benefits was arbitrary as they had a high risk of exposure to the virus. Finally, it highlighted their historic marginalization as a community, which required authorities to take special measures to protect them, their culture, and their ancestral knowledge, and to integrate them with the National Healthcare System by supporting them.
Facts of the case
- The Plaintiffs are organizations of midwives with ancestral knowledge, who are elderly and afro-Colombian. They help impoverished communities to give birth where there are no other healthcare services available, especially in areas affected by armed conflict.
- On March 20, 2020, Colombia declared a national emergency due to the COVID-19 pandemic, authorizing a general lockdown. During this time, the Plaintiffs had to continue providing healthcare services to the communities.
- Due to the pandemic, these organizations suffered economic hardships and sanitary risks, having to end their services in many areas.
- The Plaintiffs were not considered healthcare staff for the purposes of receiving a monetary compensation which had been authorized for healthcare workers through Executive Order 538 of 2020) and were not prioritized within the National Vaccination Plan against COVID-19 nor trained to face the pandemic in their territories. They were also not provided facemasks nor other medical equipment.
- On February 22, 2021, they filed a protective action requesting the Constitutional judge to declare that their fundamental rights had been violated, and to order public authorities to grant them these benefits.
- On April 5, 2021, the lower court denied the protection. The Plaintiffs appealed.
- On May 10, 2021, the higher court partially revoked the decision, granting the protection regarding the medical equipment and the prioritization in the National Vaccination Plan.
- On April 18, 2022, the Constitutional Court granted all of the Plaintiffs' claims.
Type of measure challenged
Measures, actions, remedies claimed
- The Plaintiffs requested the Constitutional Court to declare their rights to equality, non-discrimination, cultural diversity, work, and health violated by public authorities.
- Likewise, they requested the Court to order authorities to recognize them as healthcare staff for the purposes of receiving a monetary compensation
- being prioritized within the National Vaccination Plan against COVID-19; being trained to face the pandemic in their territories; and to be provided facemasks and other medical equipment
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
The Court reasoned that those authorities violated the principle of equality and non-discrimination as midwives provided healthcare services during the COVID-19 pandemic, even to sick people, and had to be considered healthcare staff for these purposes. For the Court, their exclusion from the benefits was arbitrary as they had a high risk of exposure to the virus. Finally, the Court highlighted their historic marginalization as a community, which required authorities to take special measures to protect them, their culture, and their ancestral knowledge, and to integrate them with the National Healthcare System by supporting them.
Conclusions of the deciding body
The Court concluded that the Plaintiffs’ fundamental rights were violated by public authorities and ordered them to grant midwives these healthcare staff benefits.
Fundamental Right(s) involved
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to equal protection and non-discrimination, cultural diversity, work
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- The state must recognize cultural diversity, Art. 7, Colombian Constitution
- Right to equal treatment and non-discrimination, Art. 13, Colombian Constitution
- Right to health, Art. 49, Colombian Constitution
- Right to work, Art. 53, Colombian Constitution
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
General principle applied
- Equality
- Non-discrimination
Balancing techniques and principles (proportionality, reasonableness, others)
Equality/Non-discrimination: The Court analyzed whether excluding midwives from the benefits received by healthcare staff during the COVID-19 pandemic violated the principle of equality and non-discrimination. For the Court, this exclusion was arbitrary and unjustified, considering that midwives provided healthcare services to marginalized communities during the pandemic and were exposed to the risk of contagion, disease and death as much as other healthcare workers. Hence, in this case, authorities treated unequally a group of people that should have been treated equally.
Furthermore, the Court highlighted the marginalized condition of these afro-Colombian midwives, stating that authorities should take special measures (differential treatment) to support them in their work.
