comprehensive and adequate, because there were periods when there were no medicines,
no CD4 counts and viral load testing, problems of accessibility because very few public
health centers provided the service, lack of the implements required to perform tests,
absence of genotyping studies, failure to make timely diagnoses, and absence of
psychological support, thus continuing the violation of the rights to life (Article 4(1) in
relation to Article 1(1)) and to personal integrity (Article 5(1) in relation to Article 1(1)) of
the surviving presumed victims. Furthermore, the Commission took into account that the
State had not provided differentiated treatment for women of child-bearing age, or adopted
the necessary measures to eliminate the barriers erected by the situation of poverty and
extreme poverty of the presumed victims, or in relation to the indigenous population or
those with diverse sexual orientations.
67.
In relation to Article 26, the Commission considered that the human rights violations
alleged in this case should be analyzed in the context of the evolution reflected in the
judgments in the cases of Acevedo Buendía et al., Lagos del Campo and the Dismissed
Employees of PetroPeru et al., which entailed analyzing the right to health under Article 26.
68.
The representatives considered that the analysis of the alleged violations in this
case should be made as a whole, given the interdependence and indivisibility of the rights in
question, as well as considering the particular situation of vulnerability of the presumed
victims. Thus, they contended that the Court should consider the right to health as an
autonomous right, which would allow it to define the measures that the State should take to
guarantee the progressive development of this right. The representatives indicated that the
recognition of the State’s obligations in relation to the right to health was based on what
had already been acknowledged in light of the obligations in relation to the rights to life and
to personal integrity. In addition, they reiterated that, when analyzing the violations in this
case, the Court should consider the existence of enhanced obligations to respect and to
guarantee rights based on the presumed victims’ situation of structural and intersectional
discrimination owing to their condition as people living with HIV, in poverty or extreme
poverty, and based on gender and other factors.
69.
In this regard, the representatives argued that the State had violated the rights to
life, a decent life, integrity and health (Articles 4, 5 and 26 in relation to Articles 1(1) and 2
of the American Convention), because it had failed to adopt positive and concrete measures
to provide good quality, acceptable, accessible and comprehensive medical care to the
victims, bearing in mind that it was aware of their condition as people living with HIV. In
relation to the right to life, they argued that the State was responsible for the death of 13
people owing to the lack of adequate medical care, including the lack of access to
antiretroviral drugs and the necessary tests to monitor the evolution of the infection, in
addition to other components of comprehensive care. Regarding the right to personal
integrity and to a decent life, the representatives argued that the State was responsible for
the detrimental effects on the physical and psychological health of the presumed victims
over the time during which they did not receive any medical treatment or during which the
medical treatment was inadequate. In addition, they indicated that the State discriminated
against the presumed victims by not guaranteeing them comprehensive medical care taking
into account their different factors of vulnerability added to their HIV-positive status.
Moreover, they argued that the State was responsible for failing to put in place measures to
avoid vertical transmission in the case of pregnant women.
70.
In relation to Article 26, the representatives argued that the State was responsible
for violating the right to health of the victims because, even though it was aware of the
existence of an HIV epidemic in its territory, it adopted retrogressive measures and did not
make as many resources as possible available to prevent the propagation of the virus and to
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