growing coverage of economic, social and cultural rights in
general, and of the right to social security and to a pension
in particular, of the entire population, bearing in mind the
imperatives of social equity, and not in function of the
circumstances of a very limited group of pensioners, who do
not necessarily represent the prevailing situation.” 17
43.
These thoughts also apply to the right to health.
Independently of what was said earlier with respect to the progressive
character of the right to health, there exist at least two situations that
demand immediate attention. The first is that of non-discrimination, in
the sense that the State cannot guarantee the right to health in a
discriminatory manner. In the present case, the petitioners did not claim
a discriminatory practice in this sense. In effect, the petitioners did not
prove that the presumed victims had been denied medical attention or
medication that had been given to other persons in the same
situation. Nor did they present arguments or proof to show that the
HIV/AIDS patients receive different treatment, without a rational
justification, before persons that suffer from other illnesses. Therefore,
the Commission must declare the inadmissibility with respect to Article
24 of the American Convention.
44.
The second situation that must be addressed is the one
concerning the cases where there is a serious or imminent risk of
death. Regarding this last situation, the Commission observes that the
facts described can characterize a violation of the right to life enshrined
in Article 4 of the American Convention. In light of this, the Commission
considers that, in the circumstances of the present case, with respect to
admissibility, the allegations of the petitioners concerning the right to
health are contained within the guidelines established in Articles 1(1)
and 4 of the American Convention concerning the right to life, and not
under Article 26.
45.
Therefore, without prejudging the merits of the case, the
Commission is satisfied that the requirements of Article 47(b) and (c) of
the above-mentioned international instrument have been met.
V.
CONCLUSIONS
46. The Commission concludes that in accordance with Articles
46 and 47 of the American Convention, it is competent to examine the
17 IA Court, Five Pensioners Case, Judgement of February 28, 2003, para. 147.
14
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