Petition alleging failure to supply HIV drugs. Violation of right to equality, judicial protection and social rights. Request for precautionary measures to guarantee immediate supply. Competence of the IACHR to hear cases of violations of right to health as included in Article 26 of American Convention on Human Rights.
On January 24, 2000, a petition was filed against the State of El Salvador before the Inter-American Commission on Human Rights (IACHR) alleging violation of the rights to life, health and full development of personality of a group of persons living with HIV. The case was grounded on the State’s failure to provide them with the triple therapy medication needed to prevent them from dying and to improve their quality of life. The petitioners also claimed that the situation of the said persons constituted an instance of cruel, inhumane and degrading treatment. The IACHR requested the State to adopt urgent precautionary measures in respect of the alleged victims in this case so that they could receive relevant medical services and antiretroviral medication. Consequently, the Supreme Court of San Salvador issued a resolution ordering the supply of the drugs to the petitioners starting in December 2000. The IACHR declared the case admissible in respect of alleged violations to the rights of equal protection and judicial protection, as well as right to health under Article 26 of the American Convention on Human Rights. In 2004, the IACHR issued its (confidential) report on the merits of the case, confirming the violations and issuing recommendations. The parties are currently trying to reach an agreement on how to comply with the recommendations.
Keywords: Jorge Odir Miranda Cortéz. Caso Nº 12.249. Informe de admisibilidad Nº 29/01, HIV/AIDS
The precautionary measures initially requested in the case benefited only the persons mentioned in the case, including 27 persons. The State of San Salvador has now adopted a medical services policy for persons living with HIV/AIDS. However, in late 2005 there were reports that some persons (approximately 3,000 were mentioned in the reports) had not had access to the CD4 test that helps to check the effectiveness of the treatment. (Source: Centro por la Justicia y el Derecho Internacional, CEJIL)
In a most valuable interpretation, the IACHR understood that the right to health is protected by the American Convention in its Article 26 and, consequently, it is empowered to hear individual cases of violations. The same criterion could be applied to the other social rights referred to in Article 26. It is worth noting that Article 26 does not explicitly acknowledge social rights, but refers to education, science and culture standards in the Organization of American States’ Charter. In a similar case against Guatemala, the IACHR issued an admissibility report in which it reversed its decision and did not argue that the right to health is protected by Article 26 of the American Convention.
Petitioners: Jorge Odir Miranda Cortéz, represented by Fundación de Estudios para la Aplicación del Derechos(FESPAD)
and
Centro por la Justicia y el Derecho Internacional(CEJIL).
