author’s allegations. It points out that it is implicit in
the Optional Protocol that States parties make
available to the Committee all information at their
disposal. In the absence of a reply from the State
party, due weight must be given to the author’s
allegations, to the extent that these have been
properly substantiated.3
down general obligations for States, is accessory in
nature and cannot be invoked in isolation by
individuals under the Optional Protocol. 5
Consequently, the complaint under article 2 will be
analysed together with the author’s other allegations.
5.5 Concerning the allegations relating to articles
6, 7, 17 and 24 of the Covenant, the Committee
considers that they are adequately substantiated for
purposes of admissibility, and that they appear to
raise issues in connection with those provisions.
Consequently, it turns to consideration of the
substance of the complaint.
Issues and proceedings before the Committee
Consideration of admissibility
5.1 In accordance with rule 93 of the rules of
procedure, before examining the claims made in a
communication, the Human Rights Committee must
decide whether the communication is admissible
under the Optional Protocol to the Covenant.
Consideration of the merits
6.1 The Human Rights Committee has considered
the present complaint in the light of all the
information received, in accordance with article 5,
paragraph 1, of the Optional Protocol.
5.2 The Committee notes that, according to the
author, the same matter has not been submitted
under any other procedure of international
investigation. The Committee also takes note of her
arguments to the effect that in Peru there is no
administrative remedy which would enable a
pregnancy to be terminated on therapeutic grounds,
nor any judicial remedy functioning with the speed
and efficiency required to enable a woman to require
the authorities to guarantee her right to a lawful
abortion within the limited period, by virtue of the
special circumstances obtaining in such cases. The
Committee recalls its jurisprudence to the effect that
a remedy which had no chance of being successful
could not count as such and did not need to be
exhausted for the purposes of the Optional Protocol.4
In the absence of a reply from the State party, due
weight must be given to the author’s allegations.
Consequently, the Committee considers that the
requirements of article 5, paragraph 2 (a) and (b),
have been met.
6.2 The Committee notes that the author attached
a doctor’s statement confirming that her pregnancy
exposed her to a life-threatening risk. She also
suffered severe psychological consequences
exacerbated by her status as a minor, as the
psychiatric report of 20 August 2001 confirmed. The
Committee notes that the State party has not
provided any evidence to challenge the above. It
notes that the authorities were aware of the risk to
the author’s life, since a gynaecologist and
obstetrician in the same hospital had advised her to
terminate the pregnancy, with the operation to be
carried out in the same hospital. The subsequent
refusal of the competent medical authorities to
provide the service may have endangered the
author’s life. The author states that no effective
remedy was available to her to oppose that decision.
In the absence of any information from the State
party, due weight must be given to the author’s
claims.
5.3 The Committee considers that the author’s
claims of alleged violations of articles 3 and 26 of
the Covenant have not been properly substantiated,
since the author has not placed before the Committee
any evidence relating to the events which might
confirm any type of discrimination under the article
in question. Consequently, the part of the complaint
referring to articles 3 and 26 is declared inadmissible
under article 2 of the Optional Protocol.
6.3 The author also claims that, owing to the
refusal of the medical authorities to carry out the
therapeutic abortion, she had to endure the distress
of seeing her daughter’s marked deformities and
knowing that she would die very soon. This was an
experience which added further pain and distress to
that which she had already borne during the period
when she was obliged to continue with the
pregnancy. The author attaches a psychiatric
certificate dated 20 August 2001, which confirms the
state of deep depression into which she fell and the
severe consequences this caused, taking her age into
account. The Committee notes that this situation
could have been foreseen, since a hospital doctor had
diagnosed anencephaly in the foetus, yet the hospital
director refused termination. The omission on the
part of the State in not enabling the author to benefit
5.4 The Committee notes that the author has
claimed a violation of article 2 of the Covenant. The
Committee recalls its constant jurisprudence to the
effect that article 2 of the Covenant, which lays
3
See communication No. 760/1997, J. G. A. Diergaart et
al. v. Namibia; Views adopted on 25 July 2000, para.
10.2, and communication No. 1117/2002, Saodat
Khomidova v. Tajikistan; Views adopted on 29 July 2004,
para. 4.
4
See communication No. 701/1996, Cesáreo Gómez
Vázquez v. Spain; Views adopted on 20 July 2000, para.
6.2.
5
See communication No. 802/1998, Andrew Rogerson v.
Australia; Views adopted on 3 April 2002, para. 7.9.
111
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