Table 7: TB and the Right to a Fair Trial

Examples of Human Rights Violations

  • Individuals with TB are detained without adequate justification that it is the least restrictive alternative, strictly necessary or a measure of last resort.
Human Rights Standards Treaty Body Interpretation
ICCPR 14(1) All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law… (3) In the determination of any criminal charge against him, everyone shall be entitled to… minimum guarantees, in full equality… None.

Other Interpretations 

Joint Statement on compulsory drug detention and rehabilitation centres (ILO et al., 2012):

Compulsory drug detention and rehabilitation centres raise human rights issues and threaten the health of detainees, including through increased vulnerability to HIV and [TB] infection…. [S]uch detention often takes place without the benefit of sufficient due process, legal safeguards or judicial review. The deprivation of liberty without due process is an unacceptable violation of internationally recognised human rights standards.

WHO Guidance on ethics of tuberculosis prevention, care and control (WHO, 2010):

Involuntary isolation and detention as last-resort measures. In order to make sure that these principles are followed, countries should review their public health laws to ensure that they carefully limit the scope of government authority and provide due process protections for individuals whose liberty may be restricted. In addition, in order to minimize the danger of arbitrary enforcement, countries and TB programmes should develop clear criteria and procedures for the use of non-voluntary measures, with involvement from TB patients and civil society.

WHO Guidance on human rights and involuntary detention for XDR-TB control (WHO, 2007):

… [I]nterference with freedom of movement when instituting quarantine or isolation for a communicable disease such as MDR-TB and XDR-TB may be necessary for the public good, and could be considered legitimate under international human rights law. This must be viewed as a last resort, and justified only after all voluntary measures to isolate such a patient have failed. A key factor in determining if the necessary protections exist when rights are restricted is that each one of the five criteria of the Siracusa Principles must be met, but should be of a limited duration and subject to review and appeal.

Patients’ Charter for Tuberculosis Care (World Care Council, 2006):

Justice. The right to make a complaint through channels provided for this purpose by the health authority and to have any complaint dealt with promptly and fairly. The right to appeal to a higher authority if the above is not respected and to be informed in writing of the outcome.

Siracusa Principles (UN Economic and Social Rights Council, 1985):

Article 25. Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.

Article 26. Due regard shall be had to the international health regulations of the World Health Organization.

Article 39. A state party may take measures derogating from its obligations under [ICCPR Art. 4] only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation….

Article 70. Although protections against arbitrary arrest and detention (Art. 9) and the right to a fair and public hearing in the determination of a criminal charge (Art. 14) may be subject to legitimate limitations if strictly required by the exigencies of an emergency situation, the denial of certain rights fundamental to human dignity can never be strictly necessary in any conceivable emergency. E/CN.4/1985/4 (1985).