1.3
Analysis of the Case
117.
The Commission notes that the petitioners have claimed and the State has not refuted that
the alleged victims were diagnosed with HIV/AIDS from 1992 to 2003. The dispute is centered on the alleged
international responsibility of the State for partially or totally failing to provide health care to said persons in
light of their health status. In light of the timeline of events described in the proven facts section, which
indicate at least two different periods of time for HIV/AIDs treatment availability in Guatemala, the
Commission will begin its examination of the case with the period prior to 2006-2007. Next, it will cover the
deaths of the eight alleged victims and whether their deaths can be attributed to the State. And lastly, the
Commission will address the situation after 2006-2007.
1.3.1
Situation of the alleged victims up until 2006-2007
118.
The petitioners contended that, after being diagnosed with HIV/AIDS and up until 20062007, the alleged victims only received health care, in particular provision of medicine, from non-profit
international organizations. They further argued that at this time, the State did not provide any medical care,
nor did it conduct the required examinations or provide antiretroviral medicines to the alleged victims.
119.
The State recognized that during that time, “a small number of persons with HIV/AIDS in
Guatemala received public medical care” and that “many low income persons with HIV/AIDS were precluded
from having access to health treatments.” This was confirmed by the Minister of Health at the time, who
recognized that this situation was a consequence of the lack of State resources. The Commission notes that
the State did not submit any information to prove that the alleged victims received public health care services
during this time. The State also recognized that “most of the treatment in the country was assumed by
Doctors Without Borders.”
120.
The Commission established above in the instant report that the State was obligated to take
the necessary steps to provide comprehensive health care to persons living with HIV/AIDS under its
jurisdiction, including conducting diagnostic examinations and follow-up, providing antiretroviral medicine
and the necessary physical and psychological follow-up. Based on the foregoing, there is no dispute as to the
absolute lack of care provided by the State to the alleged victims in the instant case, despite the fact that a
constitutional and legislative framework was in place establishing the mandatory nature of providing said
care.
121.
The Commission emphasizes the importance of international cooperation in order to
contribute to the protection of human rights. Nonetheless, it does not relieve the State of its obligation to
provide the comprehensive treatment described above, with assurances of the permanence thereof and in
keeping with the principles of availability, in health care service to the alleged victims with HIV/AIDS.112
Even though this case does not deal with persons deprived of liberty, it does deal with persons in a situation
as successfully as possible. People living with HIV should also have access to clinical trials and should be free to choose amongst all
available drugs and therapies, including alternative therapies.” OUNHCHR and UNAIDS, International Guidelines on HIV/AIDS and Human
Rights.
2006
Consolidated
Version.
par.
145.
Available
at:
http://data.unaids.org/pub/Report/2006/jc1252internationalguidelines_es.pdf Additionally, on the topic of the right to protection of the right to health of persons with HIV/AIDS, the
Constitutional Court of Colombia has held that “in order for there to be effective equality and human dignity for those persons, the
protection that must be provided by the State in the area of health, must be comprehensive given the high costs that that disease
demands and in order to not generate discriminatory treatment.” This Court has also established that “this constitutional duty [of
protection] ensures that a person inflicted with AIDs receives comprehensive care, free of charge from the State, in order to keep the
absence of economic means from impeding treatment of the disease and alleviating the suffering, and exposing him or her to
discrimination.” See: Judgment T-843 of the Constitutional Court of Colombia of September 2, 2004. Also see, Expert witness report of
Paul Hunt March 6, 2015 (Case file of evidentiary exhibits, pages 3706 to 3734).
112 IA Court of HR. Case of Vera Vera et al v. Ecuador. Preliminary Objection, Merits, Reparations and Costs. Judgment of May 19,
2011. Series C no. 226, par. 42; Case of Montero Aranguren et al (Detention Center of Catia) v. Venezuela. Merits, Reparations and Costs.
Judgment of July 5, 2006. Series C No. 150, pars. 85 and 87; and Case of Boyce et al v. Barbados. Preliminary Objection, Merits, Reparations
and Costs. Judgment of November 20, 2007. Series C No. 169, par. 88.
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