Cuscul Pivaral and Others vs. Guatemala
In a case concerning 49 people diagnosed with HIV between 1992 and 2003, the Court found Guatemala had violated the rights to health, life, personal integrity, judicial process, and non-discrimination of the victims, and the right to personal integrity of several family members.
This case was presented by 49 victims—15 of whom had died while the case was being examined—and their family members, all of whom shared intersecting characteristics that made them more vulnerable to harm, such as living in poverty. The Court noted that Guatemala is the Central American country with the highest number of people living with HIV, approximately 52,000 people in 2018. The Guatemalan government attempted to address this crisis through legislation and public policy, including the availability of anti-retroviral therapy starting in 1999, but its response was inadequate. Because of the possibilities of transmission and the rapid rate of mutation of the virus, care is effective only if it is consistent and available both to treat and prevent infection.
In 2001 and 2002, several of the victims, along with supportive organizations, wrote two letters to the minister of health and the president, showing that the anti-retroviral therapy available was inadequate. Neither letter was answered. Subsequently, a group of victims made a claim before the Constitutional Court, alleging that the president was violating their constitutional rights to life, to health, and to petition the government, and that the state had an obligation to provide necessary treatment to all people living with HIV/AIDS. The president claimed the case was unfounded but approved a special fund to treat a limited number of people. In turn, the Constitutional Court held that the fund was sufficient to cease the cause of action brought by the victims. The victims then petitioned the Inter-American Commission. The Court ruled Guatemala had violated the victims’ right to health; to personal integrity; to life; and to judicial protection as persons living with HIV, and the right to personal integrity of their family members.
The Court reaffirmed that the right to health is an autonomous right derived from Article 26 of the American Convention. To further the right to health, a state must provide permanent and quality medical treatment, with a holistic approach that includes diagnostic services, preventative care, medical treatment, and sufficient legal regulation to support the right. States must implement this and other economic, social, and cultural rights derived from Article 26 in a way that ensures their progressive realization, which entails certain immediate obligations as well as duties to adopt measures to advance the realization of these rights.
The Court found Guatemala had violated several duties in connection with the right to health. First, the Court held that Guatemala had violated its duty to provide available, accessible, and quality healthcare to the victims, since 48 of them had no received treatment prior to 2004, and one had only received irregular care and antiretrovirals. With respect to post-2004, the Court analyzed the situation of each victim, finding numerous violations due to irregular, non-existent, or inadequate access to healthcare; reasons for lack of access were individualized, such as the Court’s examination of how five impoverished petitioners who lived far away from a place of care effectively lacked access. The Court also found violations of the state duty of non-discrimination, noting that HIV+ status was one of the “other social conditions” covered by the American Convention on Human Rights’ equality guarantee, and observing that women, particularly pregnant women, had suffered specific intersectional harms. Finally, regarding the duty of progressivity and the right to health, the Court found that the state had failed to meet this obligation with respect to the period prior to 2004 due to its “inaction” concerning persons living with HIV during that time.
Regarding other rights, the Court found that there was sufficient causal nexus to show that the lack of medical attention violated the right to life and personal integrity of a number of victims, as well as the right to personal integrity of some of their family members. In terms of judicial guarantees, it found that the Constitutional Court's response to the letters was insufficient because it did not address the central motive of the claim, discuss the adequacy of the president's fund as a remedy, or provide reasoning for the decision; it was also not issued in a reasonable time frame considering the gravity of the harm.
In terms of reparation, the Inter-American Court ordered adequate medical attention—including free administration of anti-retroviral medication—for the victims and family members, as well as the following non-repetition measures: 1) better supervision of public hospitals to guarantee compliance with HIV/AIDS public policy; 2) a mechanism to guarantee accessibility of quality anti-retroviral medications; 3) better training for health officials; 4) guaranteed testing of pregnant women for HIV; and 5) a national education campaign about HIV/AIDS.
This decision reaffirms the Court's determination, made for the first time in 2018, that the right to health is an autonomous right that is enforceable via litigation in the inter-American system. In this case, the Court also outlined in detail how the progressive realization principle applies to all economic, social, and cultural rights that derive from Article 26. Even accounting for a state’s resources, the duty of progressivity requires steps be undertaken, as Guatemala’s inaction in this case contravened its duty to progressively realize the right to health. The Court’s decision is also remarkable for its intersectional analyses concerning HIV+ status, gender, socioeconomic condition, and other factors.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.