Jorge Odir Miranda Cortez v. El Salvador

Report No. 27/09, Case 12.249, March 20, 2009; OEA/Ser.L/V/II., Doc. 51, corr. 1, 30 December 2009
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This report addresses allegations that El Salvador failed to fulfill its obligations under the American Convention on Human Rights (the Convention), including protection of the right to health and the right life.

Petitioner, Jorge Odir Miranda Cortez, filed a petition on behalf of himself and 26 other people living with HIV against the State of El Salvador alleging violation of the Convention for failing to provide free antiretroviral (ARV) drugs essential for the treatment of HIV/AIDS and to improve their quality of life. Petitioner maintained that the State’s negligence constitutes cruel, inhumane, and degrading treatment. He further alleged that the Salvadorian Social Security Institute (ISSS) discriminated against him and the other petitioners because they were “carriers of HIV/AIDS.”

Petitioner claimed violations of the articles 4 (right to life), 5 (right to humane treatment), 24 (right to equal protection), 25 (right to judicial protection), and 26 (progressive realization) of the Convention, article 10 of the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights (Protocol of San Salvador), and “other provisions consistent with the American Declaration on the Rights and Duties of Man and other human rights instruments.”

The Commission first examined whether El Salvador violated the right to health in failing to provide ARV treatment free of charge. The Commission determined that El Salvador did not violate article 26 of the Convention pertaining to the progressive realization of the right to health.

El Salvador demonstrated to the satisfaction of the Commission that it took what steps it reasonably could to provide medical treatment to the persons included in the petition. The Commission mentioned that economic, social, and cultural rights have both individual and collective dimensions and stated that it could not speak to any direct violation of the right to health of Mr. Cortez or the other 26 persons included in the petition. This would not have been the case, however, if it were shown that El Salvador refused to provide care to any of them. The Commission mentioned that during the processing of the petition the Salvadoran health services progressively broadened free coverage persons living with HIV/AIDS. Furthermore, it noted that petitioners did not allege any backtracking by El Salvador or suspension of benefits that patients were already receiving.

The Commission next examined whether El Salvador violated the right to equal protection of the law. The Commission found that El Salvador did violate Mr. Cortez’s right to equal protection of the law by, inter alia, forcing him to use a drinking glass with a label displaying a row of three X’s used to indicate the glass belonged to a HIV patient.  However, with respect to the other 26 persons included in the petition, El Salvador used legitimate means, similar to those used for other infectious diseases, of preventing the propagation of the virus and thus did not violate their right to equal protection of the law.

The Commission noted that the principle of nondiscrimination was part of the very essence of the Inter-American system of human rights. Concerning people living with HIV it declared:

Generally speaking, it should be mentioned that persons living with HIV/AIDS very often suffer discrimination in a variety of forms. This circumstance magnifies the negative impact of the disease on their lives and leads to other problems, such as restrictions on access to employment, housing, health care, and social support systems. There can be no doubt that the principle of nondiscrimination must be very strictly observed to ensure the human rights of persons affected by HIV/AIDS. Public health considerations must also be taken into account since the stigmatization of, or discrimination against, a person who carries the virus can lead to reluctance to go for medical controls, which creates difficulties for preventing infection.

The Commission then looked into whether El Salvador violated the right to life or the right to humane treatment. The Commission, however, did not issue an opinion as to the allegations regarding articles 4 (right to life) and 5 (right to humane treatment) of the Convention citing the “subsidiary nature of the arguments.”

Finally, the Commission considered what remedies ought to be available. The Commission issued interim precautionary measures that recommended ARV therapy and any necessary hospital, pharmaceutical and nutritional attention should be provided by El Salvador to Mr. Cortez and the 26 others.

The Supreme Court of El Salvador, prompted by the Commission’s report, ordered the State to provide ARV therapy to the petitioners. The Legislative Assembly also passed the Law on the Prevention and Control of the Infection caused by the Human Immunodeficiency Virus. The law addressed many of the Commission's concerns.

“The Inter-American Commission finds that, in the instant case, the effectiveness of the remedy is inextricably linked to promptness, given the nature of the petition presented to the Salvadoran Supreme Court of Justice. Indeed, it concerned a decision on the provision of drugs that could determine the survival of Mr. Jorge Odir Miranda Cortez and --if diffuse control were acceded to-- everyone with the HIV/AIDS virus in that country. The IACHR considers that the arguments of the petitioners in this matter are full justified with respect to the urgency of the case brought before the supreme judicial organ of El Salvador. The Commission finds that the State of El Salvador did not submit convincing pleadings against those arguments to justify the length of time taken to process the amparo petition. On the contrary, the State not only expressly recognizes, but also underscores in its observations on merits, that the amparo proceeding was “extremely long” due to the legal structure of the remedy in said country.” Para. 48.

“Generally speaking, it should be mentioned that persons living with HIV/AIDS very often suffer discrimination in a variety of forms. This circumstance magnifies the negative impact of the disease on their lives and leads to other problems, such as restrictions on access to employment, housing, health care, and social support systems. There can be no doubt that the principle of nondiscrimination must be very strictly observed to ensure the human rights of persons affected by HIV/AIDS. Public health considerations must also be taken into account since the stigmatization of, or discrimination against, a person who carries the virus can lead to reluctance to go for medical controls, which creates difficulties for preventing infection.” Para. 70.

“In the instant case, the State demonstrated --to the satisfaction of the InterAmerican Commission-- that it took what steps it reasonably could to provide medical treatment to the persons included in the record. The IACHR finds that, in the circumstances, the measures of the State were sufficiently expeditious to accomplish that aim effectively. It is not possible, therefore, to speak of any direct violation of the right to health of Jorge Odir Miranda Cortez or the other 26 persons identified in Case 12.249, as would have been thecase if, for instance, it were shown that the State refused to provide care to any of them. Moreover, during the processing of the instant case the Salvadoran health services progressively broadened free coverage to other persons infected with HIV/AIDS, subject to medical screening. Furthermore, the petitioners have not alleged any backtracking in the sense of suspension of benefits that any of them were already receiving.” Para. 108.

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