Cuscul Pivaral and Others v. Guatemala, judgment of 23 August 2018 (Series C, no. 359).
The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).
Subsequently, the Inter-American Commission on Human Rights referred the applicant's complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica). The complaint was then communicated to Guatemala.
The case successfully examined a complaint about the obligations of the state in relation to the rights to health, life, security of person, a fair trial, judicial protection, non-discrimination and the progressive development of economic, social, cultural and environmental rights.
State obligations in relation to the rights to health, life, personal integrity, fair trial, judicial protection, non-discrimination and progressive development of economic, social, cultural and environmental rights (hereinafter - ESCEP).
THE CIRCUMSTANCES OF THE CASE
The facts of this case concern 34 people living with HIV in Guatemala, 15 people who had this disease and died from it, as well as their relatives. The applicants submitted a case to the Inter-American Court of Human Rights (hereinafter - the Inter-American Court), arguing that the lack of adequate medical assistance from the state to the specified group of persons, as well as the lack of adequate judicial protection, constitute violations of the rights to health, security of person, life, fair trial. proceedings and judicial protection. The Inter-American Court considered the case in terms of three elements: (i) the legislation and policies implemented in Guatemala for the treatment of people living with HIV; (ii) specific facts concerning each of the 49 victims in the case and their relatives; and (iii) an appeal and complaint filed by 13 alleged victims with the Constitutional Court of Guatemala, in which they asked the authorities to procure and distribute antiretroviral treatment in Guatemala for people living with HIV.
The essence of the complaint. Article 26 (progressive development), article 5, paragraph 1 (right to security of person), article 4, paragraph 1 (right to life) in conjunction with article 1, paragraph 1 of the American Convention on Human Rights (ACHR). The Inter-American Court of Justice clarified that the literal, systematic and teleological interpretation of the ACHR suggests that its Article 26 protects the ESCEP that flow from the economic, social and educational, scientific and cultural norms contained in the Charter of the Organization of American States, and that violations of these rights may be subject to international supervision in accordance with Articles 62 and 63 ACHR. In connection with this analysis, the Inter-American Court has concluded that (i) the right to health is protected by Article 26 of the ACHR; (ii) protecting this right requires the state to guarantee timely and appropriate medical care in accordance with the principles of availability, accessibility, acceptability and quality; (iii) the state should pay special attention to the provision of health care to vulnerable and marginalized groups; (iv) the protection of this right should be implemented gradually, taking into account available resources and in accordance with applicable domestic law.
The Inter-American Court found that the Guatemalan authorities had failed to comply with their obligation to provide adequate medical care to 49 victims in this case. The inaction of the authorities resulted in the victims developing "opportunistic infections" that caused physical and psychological suffering and ultimately resulted in the death of 15 of them. The Inter-American Court also found that two victims were pregnant at the time of the HIV diagnosis or became pregnant after the diagnosis, and their situation had not been adequately addressed given their particular vulnerability. The Inter-American Court ruled that the failure to provide health care to these women constituted an act of gender discrimination, as it had a differentiated impact on victims and put them at risk of HIV transmission to their children. For these reasons, the Inter-American Court of Justice found that the Guatemalan authorities had failed to fulfill their obligation to guarantee the rights to health, security of person and the right to life for 49 victims.
For the first time in its practice, the Inter-American Court ruled that the state had violated the obligation to progressively develop ESCEP under Article 26 ACHR. He acknowledged that the progressive development of ESCEP will not be achieved in a short period of time, but the obligation to gradually realize these rights prohibits the state's inaction in fulfilling its task of taking action to effectively protect them. This is especially true in those areas where the complete lack of protection from the state puts people in front of inevitable harm to their lives or their personal integrity. A similar situation applies to people living with HIV when they do not receive adequate medical care. In view of the above, the Inter-American Court has concluded that the failure of the Guatemalan authorities to protect the right to health constitutes a violation of the principle of progressive development protected by Article 26 of the ACHR.
RESOLUTION
The case violated the ACHR requirements (adopted by four votes in favor, with one against).
Articles 8 (due process) and 25 (right to a remedy) in conjunction with article 1, paragraph 1 of the ACHR. The Inter-American Court also examined whether the amparo complaint lodged by 13 victims with the Constitutional Court of Guatemala met the compliance and effectiveness requirements of Articles 8 and 25 of the ACHR and was delivered within a reasonable time. The Inter-American Court noted that the Constitutional Court's decision did not address the central issue that led to the amparo complaint, namely, the consideration of the risk that the victims' rights to health and life were at risk due to lack of access to adequate treatment. The Inter-American Court also found that the delay in adjudicating the complaint constituted a violation of the reasonable time requirement.
RESOLUTION
The case violated the ACHR requirements (adopted by four votes in favor, with one against).
Compensation. The Inter-American Court found that this judgment was itself a form of compensation and ordered the State authorities to: (i) provide free medical and psychological assistance to victims and their families; (ii) publish this regulation in full; (iii) perform a public act of acknowledgment of responsibility; (iv) provide scholarships for the children of victims; (v) develop mechanisms for monitoring and overseeing health services; (vi) develop a mechanism to improve accessibility, availability and quality of health care services for people living with HIV; (vii) introduce a training program for health officials; (viii) provide adequate treatment for pregnant women living with HIV; (ix) conduct a national campaign to raise awareness of the rights of people living with HIV; (x) pay the sums of money set forth in this Regulation as compensation for pecuniary damage, non-pecuniary damage, and legal costs and expenses.