They highlight the fact that a high percentage of the ill are denied their
rights allegedly due to lack of financial resources.7 That circumstance, in
the judgment of the petitioners, results from the fact that the State
spends US$10,000 per year for each of these 27 patients because it
buys brand pharmaceuticals at high cost rather than purchasing generic
drugs, which would broaden coverage.8
19.
Finally, petitioners argue that domestic legislation does not
provide resources to ensure the effective implementation of laws which
offer them protection, such as the HIV/AIDS Law which establishes that
the Ministry of Public Health and Social Welfare shall be responsible for
guaranteeing the provision of medical services to carriers of the virus
through counseling, support, and up-to-date medical treatment. In that
same vein, they add that:
the lack of an effective remedy against violations of the
rights recognized by the Convention constitutes an
infringement of the same by the State Party where that
circumstance may prevail. For such a remedy to exist, it
must be stressed that constitutional or legislative recognition
of it, or its formal admissibility, are not enough: rather, the
remedy must really be designed to establish whether a
violation of human rights has taken place and to provide the
necessary means of remedy.9
20.
The petitioners argue that the State’s failure to protect the health
of people who are carriers of the AIDS virus represents a step
backwards in its commitment to ensure progressive development. To
wit, petitioners point to the lack of any governmental policy with regard
to HIV/AIDS and the dearth of positive advances to correct the
situation; they note that by subscribing to various international
conventions, the State has assumed a contractual obligation to respect
and protect the right to health of its citizens.
21. In their response to observations submitted by the State, the
petitioners affirmed that of the 39 persons afflicted by the disease who
were covered by the precautionary measures, three--Reina López
Mújica, Facundo Gómez Reyes and Petrona López González—had died;
7 Doctor Mario Bolaños, Minister of Public Health, affirms that the Ministry could only
extend coverage to 27 persons living with HIV/AIDS due to the lack of financial
resources. Communication provided by the petitioners on August 26, 2003.
8 In Brazil and Cuba, generic antiretroviral drugs are manufactured at a cost of $340
per patient per year. Communication provided by the petitioners on August 26 2003.
9 I/A Court H.R., Ivcher Bronstein case, February 6, 2001 Resolution, para. 135.
7
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