The contributor of this section, Judge of the Civil and Commercial Court No. 4 of the Judicial Department Junín (Buenos Aires), ruled on the cause, "Meza, Jorge et al v. Municipality of Junín s / Amparo "dated June 24, 2003, in a process in which actors, for their right and on behalf of the interests of the citizens of Junín sought an order that the commune administrator and borrowing of local potable water service, to provide that information in accordance with the provisions of the National Food Code, for having found that it contained a quantity of arsenic above the permitted level, resulting it injurious to health.
The Court further considered viable defense because it was supported by the municipality that the tap water supplied was between 0.05 and 0.1 mg / l of arsenic and this is contrary to the provisions of the National Food Law and Provincial Law 11820, which determine the maximum allowable amount of 0.05 mg / l of arsenic, thus emerging the "illegality" of the drinking water supply. At the same time, had the ground that such a quantity of arsenic threatens the health of the population, meaning that the right to health has constitutional rank.
first sentence is analyzed in the collections of the viability of amparo, stressing that despite its exceptional nature, in the case under consideration the approach chosen was formally recognized as the game was on the right to health population, whose care does not support the slightest delay. To pretend that this process must be substantiated by means of ordinary knowledge would, in fact, a denial of justice whose consequences could be dire. So, is irrelevant, under the new constitution, which the plaintiff has not exhausted the administrative route and is ideal for the defense to discuss the issues that were disputed, the formal obstacle for its uniqueness, a priori conditions to the claims channeled by way of defense, was saved in the case.
to be considered under the action becomes necessary to be admissible to prove a violation, with arbitrariness and illegality, a right guaranteed by the Constitution. The manifest illegality or arbitrariness is required because of that, mindful of the limited cognitive framework the method chosen can not be treated in context issues that warrant a lavish presentation of evidence or debate; simply because both the one and the other is insusceptible to be carried out within the procedural structure of protection. But at the discretion of the employee in this section amply proven in the case arose, and was even recognized by the defendant, that the levels of arsenic in water supplied to the city of Junín often exceeds the amount of 0.05 mg / l , reaching in some cases to 0.1 mg / l.
was pointed out in his ruling that while the decree 6553/74, which sought to invoke the City ", referring to the chemical characteristics to be met by drinking water, establishing a limit for arsenic tolerable amount of 0.10 mg / l, the truth is that the Law 11,820, enacted much later, has set a tolerable limit the amount of 0.05 mg / l . Although that provision does not expressly repeal the decree determines the 6553/74, as indicated by the location, it is obvious that he does tacitly because they could hardly survive two standards addressing exactly the same point with different scopes. Case is fully applicable to the principle that the later legislation supersedes the previously issued. Moreover, "was highlighted in the sentence, the new standard is compatible with the National Food Code. So
things, drinking water supply network in the city of Junín, arranged by the party summoned, it is technically "illegal" and that illegality is manifest, which means you do not need a complex array of evidence to conclude . In fact, the site has supported throughout this process that the water supplied exceeds the amount of 0.05 mg / l of arsenic, a circumstance that confronted with the texts in force becomes "manifest" (for observable without a deep research) the deviation from the law, or illegal.
then specified in the statement that this is not enough for the action to succeed. Indeed, the action under a "constitutional" and is restricted by Article 43 of the Constitution for those cases where the illegality affecting the rights and guarantees recognized by it. It is also necessary that the injury occurs in a "current or imminent." Is now considered beyond doubt and that the municipality admitted that the ongoing supply of drinking water in some cases exceeds the amount of 0.05 mg / l, as I said is the maximum admissible both under national law as of the province. Remained determined, then, if there was an affectation of a right protected by the Constitution. The expert opinion produced in the case, details of which found no merit Peralta Dr. Marshal to depart, is that if you consume water that exceeds the amount of 0.05 mg / l permitted, it can cause chronic Arsenis. In addition, water that exceeds the cap is "contaminated" and "undrinkable." The consumption of water containing arsenic is a syndrome called chronic hidroarsenisismo. The water in these conditions, when ingested, is absorbed by the human body via the bloodstream and is distributed and deposited in various organs like lungs, liver, kidneys, skin, teeth, hair and nails. Of all the losses caused by arsenic are particularly noteworthy features the following conditions: Quedatodermia, leukoderma, epithelioma (cancer) of skin type Bowen, epithelioma (cancer) cell hawthorn, lung cancer and laryngeal cancer. Moreover, "the opinion continues," the International Agency for Research on Cancer arsenic placed in Group I of human cancers producing elements and the Environmental Protection Agency United States places the arsenic as the fourth of the fifty-first four elements with greater potency to cause cancer. Its clinical effects are neuropathy, peripheral vascular disorders, liver disease and renal disease. Demonstrations skin pass through four periods ranging from hyperhidrosis of the soles of the feet and hands to skin cancer. The overall impact reaches the lung and liver cancer. Thus, the ideal emphatically concluded that arsenic waters are highly dangerous and harmful to health. Sitting
therefore examined whether finding affected the health, is committed to a law with constitutional status. The above response was definitely yes, says so eloquently Supreme Court's Office. Analyzing various rulings of the Supreme Court of the Nation that have been addressed regarding the right to health, may draw the following conclusions:
a) The right to life is the first right of human beings and is thus recognized and guaranteed by the Constitution (Bugs: 302:1284 and 310:112);
b) that man is the axis and center of the entire legal system and as an end in itself, beyond its transcendent nature of his person is inviolable and fundamental values \u200b\u200bfor which the remaining values \u200b\u200bare always instrumental (Bug: 316 : 479);
c) the right to preservation of health, including within the right to life must be guaranteed as urgent by the public authority actions positive, without prejudice to the obligations to be assumed in compliance with local jurisdictions, social work or entities prepaid medical call (Bugs: 321:1684).
Since the case was cited by the interests of the community of Junin (legitimacy has been questioned not located and has direct policy under Article 43 of the Constitution, because obviously the drinking water supply within the parameters of the "user" and "consumer" referred to the Constitution) as well as those for the four applicants, and it was evident that in this city live large number of children, it should also put emphasis on the constitutional status rules that protect the interests of children are affected by the contaminated water that damages the right to health. Specifically, the Supreme Court said that the rights to life and health, when referring in particular to a child, are secured by specific provisions of international treaties with constitutional standing, as the American Declaration of the Rights and Duties of Man-item VII-, the Universal Declaration of Human Rights, Article 25, paragraph 2 -, the American Convention on Human Rights (Pact of San José de Costa Rica)-sections 4, item 1 and 19 - the International Covenant on Civil and Political Rights, Article 24 paragraph 1 - the International Covenant on Economic, Social and Cultural Rights, Article 10, paragraph 3 - and in particular the Convention on the Rights of the Child, which also includes the obligation of States to encourage and ensure that children with physical or mental disability effective access to health services and rehabilitation, to strive not to be deprived of such services and to achieve good performance on the entitlement to social security, to which must be taken into account national legislation, resources and situation of each child and persons responsible for their maintenance-Articles 23, 24 and 26 -. The national government has assumed, then, explicit international commitments to promote and facilitate health requiring minority and not validly be separated from those duties on the pretext of the inactivity of other public or private entities, especially when they involved the same system health and what is at stake is the interest of the child (in the species of the general population), which must be protected above all other considerations for government departments, whether local, provincial or municipal.
In short, if found in current form threatened with illegality states, the constitutional right to health of all people of Junín, so that upheld the writ of amparo filed. Consequently, it was determined that the Municipality of Junín must provide the water supply under the conditions defined by the National Food Law and Provincial Law 11820. In every aspect regulated. Thus, it was decided that the levels of nitrate and arsenic, to name only those who have been more debate in the process, not exceed in any case and under any circumstances or pretext, the amount of 45 mg / l 0.05 mg / l respectively
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