Inter-American Court: State Inaction on HIV Violated Progressive Realization Obligation
The Inter-American Court of Human Rights (IACtHR) for the first time held a State responsible for violating the progressive realization principle, determining that Guatemala’s inaction to extend healthcare services to people with HIV/AIDS contravened its duty to progressively achieve the full realization of the right to health, among other violations. [IACtHR Press Release] In Cuscul Piraval et al v. Guatemala, published on October 25th, the IACtHR concluded that Guatemala violated the rights to health, integrity, and life of dozens of people with HIV and their family members. [IACtHR Press Release] The Court found that while charitable and humanitarian organizations had provided some care for HIV-positive patients, Guatemala’s public health system had failed to ensure access to essential healthcare for those with HIV, in spite of national legislation and programs intended to address the known gap in services. See IACHR, Merits Report No. 2/16, Case 12.484, Luis Rolando Cuscul Piraval et al. (Guatemala), 13 April 2016. This case marks a major development in the economic, social, cultural, and environmental rights jurisprudence in the Inter-American System.
Facts of the Case & Procedural History
This case concerns 49 individuals who were diagnosed with the HIV virus between 1992 and 2003, and their family members. Of the victims in this case, 34 are currently living with HIV in Guatemala while 15 have passed away. See I/A Court H.R., Cuscul Piraval et al v. Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment of 23 August 2018. Series C No. 395, para. 34 (Spanish only). The victims in this case did not receive any public medical care from the time that they were diagnosed with HIV/AIDS (between the years of 1992 and 2004) until 2006 and 2007, when the State began providing minimal assistance to some people living with HIV. See id. at para. 34. Some of the victims had received temporary medical care from a nongovernmental organization, but both before and after their care was transferred to public clinics, the victims experienced gaps in care and barriers to accessing necessary medications, including because of the long distances to clinics and because of legislation that limited the availability of domestically-manufactured generic drugs. See id. at paras. 70, 119-27. The Court found that many of the victims also faced other conditions related to their socioeconomic status that exacerbated the impact of their medical condition. See id. at para. 63. For example, the Court found that some of the victims had limited financial resources, faced additional pressures as the primary providers for their families, were limited by low education levels, or were pregnant women. See id.
With regard to domestic remedies, the victims sent a letter regarding the situation to the Ministry of Health in 2002, which was later sent to former President Alfonso Portillo, and subsequently filed an amparo claim (legal claim for constitutional protection) with the Constitutional Court. See id. at paras. 56-57. However, they did not receive a response to the letter and their amparo claim was denied in view of President Portillo’s special budget allocation of funds, in 2002, for HIV treatment for 80 people (none of whom are named victims in this case). See id.
In 2003, the Center for Justice and International Law (CEJIL) and other organizations submitted a petition on behalf of the victims to the Inter-American Commission on Human Rights (IACHR), which the IACHR declared admissible in 2005. The IACHR referred the case to the Court on December 2, 2016, after Guatemala failed to comply with the recommendations contained in its April 2016 merits report, in which the IACHR found Guatemala responsible violating the victims’ rights to life, humane treatment, and judicial protection established in the American Convention on Human Rights (American Convention) and recommended measures to compensate and ensure treatment for the victims and to institute free treatment, monitoring, and training programs in public hospitals to ensure appropriate care for all people with HIV/AIDS. [IACHR Press Release]
The Inter-American Court’s Holding
The Court determined that the State did not comply with its positive duty to guarantee the rights to health, integrity, and life, protected under Articles 26 (progressive development), 5 (right to humane treatment), and 4 (right to life) of the American Convention. See Case of Cuscul Piraval et al v. Guatemala. Judgment of 23 August 2018, para. 72. It also found that the State violated the right of non-discrimination by failing to guarantee the victims medical care that accounted for their various vulnerabilities, particularly for the specialized medical attention that the two victims who were pregnant needed. See id. The Court noted that the lack of adequate medical assistance, which had a different type of impact on pregnant women and their unborn children who were at greater risk of vertical transmission of the virus, constituted gender-based discrimination. See id.
In the case of 13 of the victims who appealed to the Guatemalan Constitutional Court for judicial protection (the amparo claim), the Inter-American Court found that Guatemala had violated their rights to a fair trial under Article 8 and their right to judicial protection under Article 25 of the Convention. See id. at para.187. These violations resulted from the Guatemalan Constitutional Court’s failure to address the constitutional questions raised in the case, its failure to issue the judgment within a reasonable time, and its issuance of a decision without stating the reasons or justification for why it considered that President Portillo’s decision to allocate half a million quetzales for the medical care of people living with HIV was an adequate response to the victims’ situation. See id. at paras. 178-187. Additionally, the Court concluded that some of the victims’ relatives had suffered serious damage to their personal integrity, which violated Article 5.1 (the right to have physical, mental, and moral integrity respected) of the Convention. See id. at para. 197.
The Right to Health & Justiciability of Economic, Social, and Cultural Rights
The IACtHR paid significant attention to the scope of its jurisdiction; the justiciability of economic, social, and cultural rights, and of the right to health, in particular; and the interaction between the American Convention and its Additional Protocol on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”). See id. at para. 75 et seq.
Article 10 of the Protocol of San Salvador expressly protects the right to health, but the Protocol only authorizes individual petitions to the IACHR with regard to alleged violations of Article 8(a) (trade union rights) and Article 13 (access to education), and only when the alleged violations are directly attributable to the State. Rather, States parties are required to submit periodic reports on their implementation of the Protocol of San Salvador, which are examined by the Organization of American States’ (OAS) Working Group on the Protocol of San Salvador. Guatemala has been a State party to the Protocol of San Salvador since 2000.
In contrast, the American Convention only refers, in its Article 26, to States parties’ obligation to “undertake to adopt measures…with a view to achieving progressively…the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States….” For its part, the OAS Charter inter alia commits States, in article 34(i), to dedicating their “utmost efforts” to the “[p]rotection of man’s potential through the extension and application of modern medical science.”
Based on its review of the relevant treaties, the interdependence and indivisibility of human rights, and its view that human rights treaties are “living instruments,” the IACtHR concluded in this case that economic, social, and cultural rights are justiciable and – as it determined for the first time earlier this year – that the right to health is a stand-alone right protected by the American Convention. See I/A Court H.R., Poblete Vilches et al. v. Chile. Merits, Reparations and Costs. Judgment of March 8, 2018. Series C No. 349. (Only in Spanish); I/A Court H.R., Cuscul Piraval et al v. Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment of 23 August 2018. Series C No. 395, paras. 97-102.
With regard to States’ obligations related to the right to health, the Court confirmed that some are owed immediately and others may be realized progressively. See id. at para. 98. Within the first category, States must immediately ensure access without discrimination to healthcare services. See id. In the second category, States must take concrete, continuous steps to increase the full enjoyment of the right to health. See id.
The Court reiterated that the right to health includes the right of every person to enjoy the highest level of physical, mental, and social health, including through timely and appropriate healthcare that is available, accessible, appropriate, and of good quality. See Cuscul Piraval et al. v. Guatemala. Judgment of 23 August 2018, at para. 107. It then determined that the right to health of persons living with HIV/AIDS includes access to quality goods, services, and information for the prevention and treatment of this disease, including antiretroviral medications, diagnostic tests, and other safe and effective treatments for HIV and related illnesses, as well as social and psychological support. See id. at para. 114.
With regard to the victims’ access to healthcare, the Court determined that prior to 2004, the State failed to provide them with any treatment and that, subsequently, the victims’ access to healthcare, medication, and social services was inconsistent, inadequate, and limited, in violation of their right to health. See id. at paras. 119, 126-27.
The Progressive Realization Principle
With regard to the progressive realization of the right to health, the Court emphasized that the progressive realization principle prohibits State inactivity, particularly in situations in which individuals face an imminent risk of serious harm to life or personal integrity. See id. at para. 146. The Court found that this is a risk that individuals living with HIV face when they do not receive adequate medical care, and concluded that Guatemala’s inaction with respect to providing medical care to this group of individuals violated the principle of progressive realization as envisioned by Article 26 and in relation to Article 1.1 of the American Convention. See id. Prior to 2004, the Court found the State had failed to provide healthcare to people with HIV/AIDS and instead relied on nongovernmental organizations. See id. at para. 147. However, because the IACHR had not raised the allegations of corruption, intellectual property barriers to generic drugs, and similar claims made by the victims’ representatives, the Court declined to determine whether those allegations also violated the progressive realization principle in relation to the right to health. See id. at para. 153.
A parallel principle is outlined in Article 2.1 of the International Covenant on Economic, Social and Cultural Rights. The IACtHR noted that it endorses the view of the Committee on Economic, Social and Cultural Rights, which acknowledges that the progressive realization principle accounts for a State’s limited technical capacities or resources, but nonetheless imposes obligations that may require immediate action. See id. at paras. 80-81.
Recommendations of the Court
The IACtHR ordered Guatemala to take a number of actions to provide a remedy to the victims and their relatives, and prevent the repetition of these violations. [IACtHR Press Release] It directed Guatemala to guarantee free medical treatment, both physical and psychological, to the victims and their relatives; take steps to improve the healthcare benefits of people living with HIV; create a national HIV awareness and sensitization campaign; and provide compensation for material and moral damage to the victims and their relatives, including free education, and coverage of legal fees. See Cuscul Piraval et al v. Guatemala. Judgment of 23 August 2018, at paras. 198-251. It also ordered the State to implement mechanisms to regulate and supervise healthcare services; improve their accessibility, availability, and quality for people living with HIV; guarantee the provision of antiretroviral drugs and other appropriate medication for every person living with HIV, offer HIV tests to the public, and implement a training program for healthcare professionals. See id. at Puntos Resolutivos, para. 13.
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