by the American Convention; (ii) that these factors interact or concur with each other, giving
rise to a particular type of discrimination, and (iii) that this truly affects the victims in the
specific case. In other words, it is not sufficient to argue that different elements exist that
coalesce in an individual, but rather it should be proved that the combination of these
elements resulted in a new increased form of discrimination with specific characteristics.
34.
The judgment is particularly relevant on this issue, because it gives visibility to the
confrontation between gender and maternity, factors that are usually concealed by the
condition of a person living with HIV. The majority considered that a new type of increased
discrimination existed based on the interaction of the said circumstances, recognizing that
the State needed to provide a differentiated protection on the basis of the particular needs
faced by pregnant women living with HIV. This approach has dual merits: on the one hand,
it gives visibility to a group that has historically been discriminated against and establishes
legal consequences for the State for failing to provide protection with a differentiated
approach83 and, on the other hand, it opens the way for the State to adopt measures in the
future that provide a more effective and much more specific protection for the right to health
of pregnant women living with HIV. Thus, the judgment — in both its analysis of the merits,
and with regard to reparations – adheres to what has already been defined by UNAIDS
concerning the need to promote a supportive and enabling environment for women,
addressing the underlying prejudices and inequalities that lead to this vulnerability.84
III. THE MEASURES OF REPARATION ORDERD IN THIS CASE
35.
In the judgment, the Court also established a series of measures aimed at redressing
the violations suffered by the victims in the case and to avoid their repetition in the future,
as it has in its consistent case law on reparations. First, the Court ordered the State to
provide medical and psychological or psychiatric treatment for the victims of violations of the
right to health through its public institutions and in keeping with standards of medical care
for people living with HIV.
36.
This treatment should include crucial elements such as the free and lifelong provision
of the drugs required to combat HIV and opportunistic infections, diagnostic tests, social
support including aspects such as nutritional and psychological assistance, and access to
technologies to prevent infection.85 All these aspects have a causal nexus with the type of
treatment that the State failed to provide to the victims and which is necessary for the
medical treatment of people living with HIV according to the standards defined in the
For example, in Colombia, this approach has been understood as: “[The one that] expresses the State’s
recognition and actions to counteract or minimize the different way, which is even disproportionate at times, in
which violence and threats affect certain social groups in relation to their specific characteristics of age, gender,
ethnicity, health, disabilities or sexual orientation. These differences, determined culturally, socially and historically,
are decisive in the application of all the prevention and protection mechanisms […] and in the way in which the
entities must establish their treatment of the said sectors in order to avoid increasing the discrimination and the
harm caused.” Ministry of the Interior and Justice, Decree 1737 of May 19, 2010, amending the Victims’ and
Witnesses’ Protection Program of Law 975 of 2005, created by Decree 3570 of 2007, art. 4. Similarly, Guideline for
comprehensive care for the displaced population with a differentiated gender perspective, Office of the Presidential
Adviser on Equality for Women/UNHCR, Colombia. Available at: http://www.acnur.org/fileadmin/Documentos/BDL/
2010/7394.pdf.
83
Cf. Office of
Nations Program on
Consolidated version,
Preliminary objection,
84
the United Nations High Commissioner for Human Rights (OHCHR) and the Joint United
HIV and AIDS (UNAIDS), International Guidelines on HIV/AIDS and Human Rights.
2006, eighth guideline, pp. 52 to 54, cited in Case of Cuscul Pivaral et al. v. Guatemala.
merits, reparations and costs. Judgment of August 23, 2018. Series C No. 359, para. 134.
Cf. Case of Cuscul Pivaral et al. v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of August 23, 2018. Series C No. 359, para. 210.
85
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