presumed victims. They indicate, furthermore, that the facts
underpinning the present petition also constitute violations of other
individual rights such as the right to a fair trial; the right to equal
protection before the law; the right to judicial protection and to the
progressive development of economic, social and cultural rights, all of
which are subsumed in the precepts of the American Convention.
39.
In this regard, the Commission will consider whether,
under Article 1(1) and 26 of the American Convention, the State has a
positive obligation to provide antiretroviral treatment, as the petitioners
contend. Likewise, it will weigh whether the provision of medical
treatment and pharmaceuticals to the alleged victims by private entities
in fact relieves the State of the obligation to furnish them itself,
assuming the first question is answered in the affirmative.
40.
As to the alleged lack of effective judicial oversight, the
Commission considers that it might well constitute a violation of the
right enshrined in Article 25 of the American Convention if, upon
weighing the merits of the case, it finds proof of the facts adduced.
Regarding alleged violations of Article 8 of the American Convention, the
Commission finds that they have not been specifically substantiated by
the petitioners and thus refrains from taking a position on the matter.
41.
With regard to the alleged violation of article 5 of the
American Convention, the Commission considers that in the present
case, it is enshrined in article 4 of the American Convention, along with
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 ruled16, should be measured in function of the
16 U.N. Doc. E/1991/23, United Nations Committee on Economic, Social and Cultural
Rights, General Comment No. 3: The nature of States Parties obligations (paragraph 1
of article 2 of the Covenant), adopted at the Fifth Session, 1990, point 9.
13
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