persons alleged to be victims are carriers of the HIV/AIDS virus and, as
such, require comprehensive medical care to guarantee their survival
and physical integrity—meaning medical attention and antiretroviral
medication, as well as the appropriate medical tests to determine the
state of progress of the disease—none of which the State has made
available to them thus far.
30.
As to the State, the Commission observed that Guatemala has
been a State Party to the American Convention since 25 May, 1978, the
date of deposit of its instrument of ratification. The Commission
therefore has competence ratione personae to consider the petition.
B. Admissibility Requirements
1. Exhaustion of Domestic Remedies
31.
According to the petition, on July 26, 2002 the
organizations which joined in the petition together with a group of
persons who live with HIV/AIDS, including Luis Ronaldo Cuscul Piraval,
Facundo Gómez Reyes, and Marta Alicia Maldonado Pac, who were listed
in the original petition, together with Alberto Quiché Cuxeva, Dora
Marina Martínez Sofoija, Ingrid Janeth Barillas Martínez, Jorge Armando
Tavares Barreno, Luis Armando Linares Ruano, Mardo Luis Hernández,
Melvin Yovani Ajtun Escobar, Miguel Lucas Vail, Rita Mariana Dubon
Orozco and Teresa Magdalena Ramírez Castro (alleged victims who were
added to the petition at the request of the petitioners in their
communication of October 4, 2004) filed an appeal for legal protection
(amparo). Among other objectives, the appeal aimed to induce the
Constitutional Court to order the Executive Branch to transfer the
necessary funds to purchase and ensure the daily distribution of
antiretroviral pharmaceuticals essential to the survival and health of the
persons living with HIV/AIDS in Guatemala, as well as quality generic
antiretroviral drugs to facilitate a massive rather than selective approach
to the treatment of persons who live with HIV/AIDS.14
32.
On January 29, 2003, the Constitutional Court rejected the
appeal for legal protection (amparo) lodged by both the petitioners and
the aforementioned alleged victims to safeguard their lives and health.
That judgment was notified to the parties on February 25, 2003.
33.
In its response, the State urges the petitioners to continue
availing themselves of existing domestic remedies but it fails to specify
14 A copy of the appeal for legal protection (amparo) brought before the Constitutional
Court on July 26, 2002 is included in the file.
11
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