Luis Rolando Cuscul Pivaral, et al. (Persons Living with HIV/AIDS) v. Guatemala

Cuscul v. Guat., Case 642/03, Inter-Am. Comm’n H.R., Report No. 32/05, OEA/Ser.L/V/II.124, doc. 5 (2005).
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Petitioners, Luis Rolando Cuscul Pivaral and 38 others living with HIV/AIDS, alleged violations of Articles 4 (life), 8 (fair trial), 24 (equal protection), 25 (judicial protection), 26 (progressive development of economic, social and cultural rights) in conjunction with rights referred to in Article 1(1) of the American Convention on Human Rights because the State failed to provide antiretroviral pharmaceuticals.

The petitioners argued that antiretroviral drugs were the ideal treatment for preventing the advance of HIV/AIDS and helped prevent opportunistic infections as well as other general symptoms of HIV/AIDS. Therefore, they alleged the existing standards of medical care were inadequate and represented an imminent threat to their lives, heightening the State’s responsibility.

The State expressed its concern that some AIDS patients were unable to access treatment and reiterated that it provided free treatment within the limits of its ability to do so. In addition, the government supported civil society initiatives oriented towards establishing a budget to ensure implementation of State policies related to the law in force.

The Commission declared the the circumstances presented admissible as a potential violation of the right to life and effective judicial protection. It considered that the claims made under the right of physical integrity and economic, social and cultural rights (including the right to health) were all contained under the right to life.

"42. Regarding the alleged violation of article 26 of the American Convention, the Commission considers that since the present case involves the right to health, there is an obligation to provide the general population with a progressive fulfillment in both preventive and curative medical care. In that sense, the Commission agrees with what the Court has stated: 'Economic, social and cultural rights have both an individual and a collective dimension. This Court considers that their progressive development, about which the United Nations Committee on Economic, Social and Cultural Rights has already ruled, should be measured in function of the growing coverage of economic, social and cultural rights in general, and of the right to social security and to a pension in particular, of the entire population, bearing in mind the imperatives of social equity, and not in function of the circumstances of a very limited group of pensioners, who do not necessarily represent the prevailing situation.'"

"43. These thoughts also apply to the right to health. Independently of what was said earlier with respect to the progressive character of the right to health, there exist at least two situations that demand immediate attention. The first is that of non-discrimination, in the sense that the State cannot guarantee the right to health in a discriminatory manner. In the present case, the petitioners did not claim a discriminatory practice in this sense. In effect, the petitioners did not prove that the presumed victims had been denied medical attention or medication that had been given to other persons in the same situation. Nor did they present arguments or proof to show that the HIV/AIDS patients receive different treatment, without a rational justification, before persons that suffer from other illnesses. Therefore, the Commission must declare the inadmissibility with respect to Article 24 of the American Convention."

44. The second situation that must be addressed is the one concerning the cases where there is a serious or imminent risk of death. Regarding this last situation, the Commission observes that the facts described can characterize a violation of the right to life enshrined in Article 4 of the American Convention. In light of this, the Commission considers that, in the circumstances of the present case, with respect to admissibility, the allegations of the petitioners concerning the right to health are contained within the guidelines established in Articles 1(1) and 4 of the American Convention concerning the right to life, and not under Article 26.

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