Jorge Odir Miranda Cortez et al v. El Salvador, Case 12.249, Report No. 29/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 284 (2000).
On January 24, 2000, the Inter-American Commission on Human Rights
(hereinafter "the Inter-American Commission" or "the IACHR")
received a petition filed by Carlos Rafael Urquilla Bonilla of the Foundation
for Studies for the Application of Law, FESPAD ("the petitioners"),
alleging international liability on the part of the Republic of El Salvador
("the State") with respect to Jorge Odir Miranda Cortez and 26
other persons who are carriers of the Human Immunodeficiency Virus/Acquired
Immunodeficiency Virus ("HIV/AIDS") and are members of the Atlacatl
The petitioners allege that the acts reported constitute a violation
of several provisions of the American Convention on Human Rights (hereinafter
"the American Convention"): the right to life (Article 4);
humane treatment (Article 5); equal protection before the law (Article
24); judicial protection (Article 25); and economic, social, and cultural
rights (Article 26), in accordance with the general obligation set forth
in Article 1(1) and the duty set forth in Article 2 of the aforementioned
international instrument. They
also allege violation of Article 10 of the Additional Protocol to the American
Convention on Human Rights in the area of Economic, Social, and Cultural
Rights ("Protocol of San Salvador"), as well as other provisions
consistent with the American Declaration on the Rights and Duties of Man
("the American Declaration") and other human rights instruments.
In light of the gravity and urgency of the situation, the petitioners
requested precautionary measures on behalf of the 27 persons mentioned above,
which were granted by the IACHR when it began processing of the case.
2. The petition
alleges that the State violated the right to life, health, and well being
of the alleged victims in this case, inasmuch as it has not provided them
with the triple therapy medication needed to prevent them from dying and
to improve their quality of life. The petitioners maintain that the situation of these persons,
which they also attribute to negligence on the part of the State, constitutes
cruel, inhumane, and degrading treatment.
They further allege that the Salvadoran Social Security Institute
(ISSS) has discriminated against Mr. Jorge Odir Miranda Cortez and the alleged
victims because they are carriers of HIV/AIDS.
In April 1999, the petitioners instituted amparo proceedings in the Constitutional Division of the Supreme Court
of El Salvador, claiming violation of the rights outlined in their petition
to the Inter-American Commission. The petitioners assert that the delay
on the part of this Salvadoran legal entity is unreasonable and constitutes
an additional violation of the right to a fair trial and judicial protection,
and provides grounds for invoking the exception to the exhaustion of domestic
remedies set forth in Article 46(2)(c) of the American Convention.
3. The State maintains
that the petitioners had access to domestic remedies and that these remedies
have been adequate in order to address the situation reported.
They add that the authorities availed themselves of conciliation
proceedings at meetings between the Director of the ISSS and Mr. Jorge Odir
Miranda Cortez regarding the provision of triple therapy for the persons
who are carriers of HIV/AIDS (seropositive).
In the view of the State, the attention provided to the persons identified
in this report within the framework of the precautionary measures demonstrates
compliance with its international commitments, and, for this reason, it
requests that the case be closed.
4. Without prejudice
to the merits of the case, the IACHR concludes in this report that the case
is admissible, inasmuch as it meets the requirements set forth in Articles
46 and 47 of the American Convention.
The Inter-American Commission therefore decides to inform the parties
of the decision and to continue analysis of the merits regarding the alleged
violation of Articles 2, 24, 25, and 26 of the American Convention.
PROCESSING BY THE COMMISSION
5. After filing
the January 24, 2000 petition, the petitioners submitted another communication
on February 28, 2000, reiterating their request for precautionary measures
and their petition. On February
29, 2000, the Inter-American Commission assigned the number 12.249 to the
case and requested information from the Salvadoran State regarding the pertinent
parts of the petition. On that
same date, the IACHR asked the State to adopt precautionary measures on
behalf of Jorge Odir Miranda Cortez and the other persons listed in the
petition, and to provide information on this matter within a period of 15
6. On March 2, 2000,
the petitioners included the Center for Justice and International Law (CEJIL)
as a co-petitioner. On March
15, 2000, the petitioners submitted a communication in which they provided
details on the actions taken with respect to the Salvadoran authorities
regarding the petition and the precautionary measures.
They requested, among other things, that the IACHR declare non-compliance
with the precautionary measures and seek provisional measures from the Inter-American
Court of Human Rights. On that
date, the State submitted its response to the request for information on
precautionary measures, which was forwarded to the petitioners.
On March 16, 2000, the State reported the appointment of Mr. José
Roberto Mejía Trabanino of the Office of the Director General for Foreign
Policy as the liaison official for the petitioners with respect to the issues
related to this case.
7. The comments
of the petitioners were received on March 21, 2000.
On March 24, 2000, the Inter-American Commission requested from the
petitioners the names of the alleged victims involved in this case who had
died since processing of the case began, and specific information regarding
precautionary measures. On
April 3, 2000, the petitioners submitted this information and reiterated
their request that the IACHR take the matter to the Inter-American Court
in order to request provisional measures.
On April 7, 2000, they sent another communication containing the
8. The Inter-American
Commission contacted the State on April 20, 2000 in order to transmit the
comments of the petitioners and to request additional information regarding
compliance with the precautionary measures granted in this case.
In its response of April 28, the State informed the IACHR of the
actions taken by the Salvadoran authorities to address the claims of the
alleged victims related to care. The
State submitted additional information in this regard on May 4, 2000.
9. The petitioners
submitted additional information on precautionary measures on May 16, 2000.
On May 23, 2000, the State submitted the medical summary reports
on the patients with HIV/AIDS included in this case, issued by the ISSS
Department of Preventive Medicine.
On May 26, 2000, the IACHR asked both parties to submit additional
information regarding medical care, treatment of the alleged victims, and
any other information relevant to the processing of this case.
On June 5, 2000, the petitioners submitted "a request for activity
to move the case forward [solicitud
de impulso procesal]." On
June 9, 2000, the Salvadoran State submitted the information requested by
the Inter-American Commission, which included "the list of persons
identified in the request for precautionary measures, together with updated
and detailed information on medical care, treatment, medical recommendations,
and other pertinent information."
On that same date, the Inter-American Commission once more requested
information from the State on the petition filed regarding this case, which
was first transmitted on February 29, 2000, with a 90-day period being granted
for a response.
The State responded on June 23, 2000 to the issues raised by the
petitioners in the petition. On
June 27, 2000, the petitioners submitted their comments on the information
from the State regarding precautionary measures, and repeated their position
with respect to non-compliance with these measures.
On July 12, 2000, the State submitted a communication in which it
reported that the Governing Board of the ISSS had decided to authorize the
purchase of the triple therapy medication.
On July 14, 2000, the IACHR forwarded this additional information
to the petitioners, and, at the same time, forwarded the pertinent parts
of their comments to the State.
The State submitted additional information on July 20, 2000, consisting
of a document pertaining to the treatment received by Mr. Jorge Odir Miranda
Cortez from the ISSS. The Inter-American
Court expressed its appreciation for this information and for the action
taken by the Salvadoran State within the context of the precautionary measures
granted in this case. On July
28, 2000, the State submitted supplementary information on the action taken
to implement the precautionary measures.
The petitioners submitted their comments regarding the exhaustion
of domestic remedies and the merits of the petition on August 3, 2000.
On August 8, 2000, the State submitted correspondence from the ISSS
regarding the treatment that was allegedly provided to the patients infected
On August 25, 2000, the petitioners submitted their comments regarding
the information provided by the Salvadoran State.
They reiterated, among other things, their position regarding non-compliance
with the precautionary measures by the Salvadoran State and their request
that provisional measures be sought from the Inter-American Court.
On August 28, 2000, the petitioners requested a hearing on the case
before the Inter-American Commission.
The precautionary measures expired on August 29, 2000, the date that
marked the end of the six-month period initially established by the Inter-American
Commission in the communication of February 29, 2000.
On September 8, 2000, the Salvadoran State submitted its comments
on correspondence from the
petitioners pertaining to the petition.
On September 28, 2000, the petitioners submitted the written arguments
that were to be developed at the hearing granted by the Inter-American Commission.
The pertinent parts of this correspondence were forwarded to the
The Inter-American Commission held a hearing on this case on October
10, 2000, at its 108th regular session.
October 17, 2000, the petitioners submitted their comments regarding the
correspondence submitted by the State on September 8, 2000.
The IACHR forwarded the pertinent parts of this correspondence to
the State on October 26, 2000.
On November 24, 2000, the petitioners submitted correspondence in
which they once again asked the Inter-American Commission to declare that
the Salvadoran State had failed to comply with the precautionary measures
and to seek provisional measures from the Inter-American Court.
On December 6, 2000, they submitted additional correspondence to
that effect. On that same date, the State submitted a communication providing
a summary of the activities conducted in order to comply with the precautionary
measures and containing comments on the merits of the petition.
At its 109th special session, the IACHR decided not to
grant the request for provisional measures.
In making this decision, the Inter-American Commission considered
the information received from both parties, and evaluated the different
actions taken by the Salvadoran State to provide medical treatment not only
to the members of the Atlacatl Association but also to other persons infected
with HIV/AIDS in that country. These
actions had continued even after expiration of the deadline for precautionary
measures on August 29, 2000.
On December 12, 2000, the Inter-American Commission forwarded the
pertinent parts of the most recent communications from the petitioners together
with a request for information from the Salvadoran State regarding the medical
care and treatment provided to the 24 surviving persons identified in this
case. On January 19, 2001, the Salvadoran State requested an extension
of the deadline for its response to several cases, including this one, because
of the national emergency in that country.
A 30-day extension was granted on January 24, 2001.
The petitioners submitted communications on February 16 and 19, 2001,
in which they reiterated their position, provided a summary listing of persons
receiving treatment from the Salvadoran State, and asked that the IACHR
declare the case admissible.
The Salvadoran State forwarded the information requested by the IACHR
on February 22, 2001. In its
correspondence, it indicated that "to date, anti-retroviral medication
has been provided to 11 of the 24 persons included in Case 12.249"
and explained that this medication is available to the other persons identified
in the case, subject to the appropriate medical evaluation.
In addition, the State reported that it had expanded provision of
the medication to other persons not included in this case.
POSITIONS OF THE PARTIES
The petitioners allege that the Salvadoran State is responsible for
violation of Article 4 of the American Convention, to the detriment of Jorge
Odir Miranda Cortez and the other members of the Atlacatl Association.
They maintain that the Salvadoran State is refusing to purchase "the
triple therapy and other medications that prevent death and improve the
quality of life of persons living with HIV/AIDS," and, for this reason, it
has failed to guarantee them the quality of life that allows them to achieve
well being. In that regard,
right to life encompasses much more than not dying as a result of action
or negligence attributable to the State, in accordance with the rules of
international law. The right
to life, in that broader sense, presupposes, inter alia, that a person
lives under conditions that are conducive to his well being.
With regard to the alleged violation of the right of the persons
listed in this report to humane treatment, the petitioners allege that "the
State, because of its negligent acts, can also place or allow a group of
persons to be placed in cruel, inhumane, or degrading conditions."
The petitioners' position is that persons who live with HIV/AIDS
are in "a vulnerable situation that exposes them to death" which
is "clearly a cruel, inhumane, or degrading situation."
The petitioners also allege that the Salvadoran State has violated
the right of the alleged victims to health set forth in Article XI of the
American Declaration and Article 10 of the Protocol of San Salvador, as
well as social rights under Article 26 of the American Convention.
They maintain that the following "immediate legal obligation"
can be inferred from these instruments:
State should conduct all acts and omissions [sic] that are necessary to
improve health, leading to the highest level of physical, mental, and social
well being through the use of modern advances and scientific medical discoveries.
The Salvadoran State cannot therefore fail to purchase and administer
anti-retroviral treatments to persons living with HIV/AIDS for budgetary
reasons if it did not seek and implement, some time earlier, reasonable
financial adjustments to permit their purchase and administration.
The petitioners maintain that the alleged victims were discriminated
against and stigmatized because they are infected with HIV/AIDS. They allege,
among other things, that the bed linen of seropositive patients was separated
from the bed linen of other patients and placed in a red bag, that they
were given drinking glasses with special markings, and the nursing staff
shunned them and treated them differently from the other patients.
According to the petitioners, this case also involves violation of
the right to judicial protection enshrined in the American Convention, taking
into account the time period that has elapsed since April 1999, when the
amparo proceedings were filed
in El Salvador. They allege
that amparo proceedings are set
up in Salvadoran legislation in such a way as to prevent fulfillment of
the requirements of simplicity, rapidity, and effectiveness mentioned in
Article 25 of the American Convention, and, for this reason, they are requesting
that the IACHR declare that this State has, in addition, failed to fulfill
its duty imposed under Article 2 of the aforementioned international instrument.
The Salvadoran State maintains that the information provided to the
IACHR during the processing of precautionary measures should be construed
as the response to the allegations of the petitioners regarding the exhaustion
of domestic remedies and the merits of the matter reported. In that regard, the State maintains:
petitioners have availed themselves of domestic remedies and have, at all
times, had access to the appropriate entities in the country. We
have evidence, which has also been provided to the Commission, pertaining
to specialized medical and hospital care, the measures adopted by State
institutions, the treatment provided to each patient living with HIV/AIDS,
and the budget approved to provide them with the medication requested.
The State explains the recommendations of medical specialists in
the field regarding the criteria to be followed to ensure that patients
benefit from triple therapy treatment and application.
The use of this therapy, according to the State, will permit a 70%
reduction in patient mortality and a 50% reduction in hospitalization, and,
furthermore, "will facilitate the reintegration of persons receiving
anti-retroviral therapy into productive and family life, thereby guaranteeing,
to a large extent, enjoyment of their economic, social, and cultural rights."
It adds that a Technical Advisory Committee has been established
in El Salvador for the drafting of treatment plans for persons living with
HIV/AIDS and, "internally, conciliation proceedings were used in an
attempt to meet the demands of the claimants."
In a subsequent communication, the Salvadoran State disputes the
merits of the case and asserts that no violation occurred in this case.
The State further disputes the allegations of discriminatory treatment
of seropositive patients in El Salvador.
It maintains, in that regard, that hospitals follow general rules
regarding disease prevention and control, as well as the guidelines adopted
by the World Health Organization on the classification of hospital solid
waste from infectious and contagious diseases such as AIDS and hepatitis
B and C.
With regard to measures adopted to fulfill their obligations, the
Salvadoran State informed the Inter-American Commission that:
Therapy will be provided based on the treatment plans for patients, depending on the stage of the disease, and whether treatment is followed and maintained. In that regard, it is important to point out to the Commission that the team of medical experts will be responsible for determining when a patient is ready for anti-retroviral treatment. This is because medication is potentially toxic and can have serious side effects and, instead of improving a patient's condition, can do more harm and lead to more suffering.
who have not begun the treatment plan will be notified by telegram to appear
at the Social Work Unit of the Oncology Hospital of the Salvadoran Social
Security Institute, ISSS. Following
this procedure, the liaison officer for Case 12.249, Mr. José Roberto Mejía
Trabanino, forwarded correspondence dated February 12, 2001 to Mr. Carlos
Rafael Urquilla, the legal representative of the petitioners.
Based on the arguments presented and the actions taken to provide
care to patients who are carriers of HIV/AIDS, the Salvadoran State requests
that the IACHR close this case.
Competence of the Inter-American Commission ratione
personae, ratione materiae, ratione temporis, and ratione
In this case, the petitioners describe the acts that purportedly
violate rights recognized and enshrined in the American Convention, which
allegedly occurred in El Salvador when the obligation to respect and guarantee
all the rights established in this instrument was in effect for that State.
Consequently, the IACHR is competent ratione
personae, ratione materiae, ratione temporis, and ratione
loci to examine the merits of the case.
With regard to the allegations of the petitioners regarding violation
of Article 10 of the Protocol of San Salvador, the Inter-American Commission
notes that Article 19(6) of this instrument states the following:
Any instance in which the rights established in paragraph a) of Article 8 and in Article 13 are violated by action directly attributable to a State Party to this Protocol may give rise, through participation of the Inter-American Commission on Human Rights and, when applicable, of the Inter-American Court of Human Rights, to application of the system of individual petitions governed by Article 44 through 51 and 61 through 69 of the American Convention on Human Rights.
The IACHR is not competent ratione
materiae to determine independently, violations of Article 10 of the
Protocol of San Salvador through the system of individual petitions.
However, the Inter-American Commission can consider this Protocol
in the interpretation of other applicable provisions, in light of the provisions
of Articles 26 and 29 of the American Convention.
Other admissibility requirements of the petition
Exhaustion of domestic remedies
The Inter-American Court of Human Rights has established the following
with respect to the rule of prior exhaustion of domestic remedies:
Parties have an obligation to provide effective judicial remedies to victims
of human rights violations (Art. 25), remedies that must be substantiated
in accordance with the rules of due process of law (Art. 8(1), all in keeping
with the general obligation of such States to guarantee the free and full
exercise of the rights recognized by the Convention to all persons subject
to their jurisdiction (Art. 1).
The information furnished by the two parties in this case confirms
that domestic remedies have not been exhausted in El Salvador.
In fact, the petitioners filed a petition for amparo
proceedings on April 28, 1999 with the Supreme Court of that country seeking
the provision of anti-retroviral medication for seropositive patients.
According to the information furnished by the petitioners (which
was not disputed by the Salvadoran State), on June 15, 1999, the Constitutional
Division of the Supreme Court decided to accept the petition.
However, as of the date of this report, it had not handed down a
final ruling on the merits of the claim.
The petitioners allege that as a result of the delay on the part
of this Salvadoran legal entity, the exception provided for in Article 46(2)(c)
of the American Convention is applicable.
The Salvadoran State confines itself to arguing that the petitioners
have had access to "adequate and effective domestic remedies,"
without addressing the claims of the petitioners regarding the reasonableness
of the time period for making a decision related to these remedies.
In the view of the IACHR, the petitioners had access to amparo
proceedings, the remedy offered by the domestic legal system in this case,
and they filed for these proceedings within the time period and in the manner
required. However, to date,
this remedy has not proven effective in responding to the claims of alleged
violation of human rights. Almost
two years have elapsed since the petition was filed and no final decision
has been handed down by the Salvadoran Supreme Court.
These matters will be analyzed during the procedural phase, together
with the other allegations pertaining to the right to a fair trial and to
effective judicial protection.
The Inter-American Commission decides to apply the exception provided
for in the second part of Article 46(2)(b) of the American Convention to
this case. The reasons that
prevented the exhaustion of domestic remedies will be analyzed in the report
to be adopted by the IACHR on the merits of the case, in order to determine
whether the American Convention was violated.
Time period for submission
The IACHR has noted that in this case, after almost two years, a
final ruling has not been handed down regarding the claim of the petitioners
in El Salvador, and has determined that an unjustified delay has occurred
in terms of domestic remedies. The
application of Article 46(2)(c) of the American Convention obviates the
need for analysis of the requirement set forth in Article 46(1)(b) of the
aforementioned international instrument.
In the view of the Inter-American Commission, based on the circumstances
analyzed, the petition was submitted within a reasonable time period of
the date on which the acts were reported in El Salvador.
Duplication of proceedings and res
No objections were raised by the Salvadoran State to the exceptions
provided for in Article 46(1)(d) and Article 47(d) of the American Convention,
nor do they emerge from the information contained in the file related to
Characterization of the allegations
The petition outlines the events which, in the view of the petitioners,
violate several articles of the American Convention.
The petitioners maintain that in this case, the IACHR should establish
the international liability of the Salvadoran State for the delay in providing
the proper medication and treatment to the patients and for the discrimination
to which they were subjected. The
petition further alleges violation of the right to judicial protection due
to the failure on the part of the Supreme Court of El Salvador to reach
a decision on the petition for amparo
proceedings that they filed in that country to protect their rights.
In their allegations, the petitioners also mention the inappropriate
nature of amparo proceedings in
Salvadoran legislation for the protection of fundamental rights.
In the view of the Inter-American Commission, these allegations must
be examined during the phase related to the merits of the case, in order
to determine whether the facts reported violated Articles 2, 24, 25, and
26 of the American Convention. Consequently,
the IACHR concludes that the requirements set forth in Article 47(b) and
(c) of that international instrument have been met.
The Inter-American Commission considers the allegations made with
respect to Articles 4 and 5 of the American Convention to be secondary in
nature and to be contingent on the conclusion reached with respect to the
merits of the allegations mentioned in the foregoing paragraph.
Consideration of the admissibility of the allegations of the petitioners
regarding respect of the right to life and humane treatment will therefore
be deferred to the phase involving examination of the merits of this case.
The Inter-American Commission concludes that it is competent to examine
the merits of this case and that the petition is admissible pursuant to
Articles 46 and 47 of the American Convention.
However, although it is not competent to determine violations of
Article 10 of the Protocol of San Salvador, the IACHR will take into account
the provisions related to the right to health in its analysis of the merits
of the case, pursuant to the provisions of Articles 26 and 29 of the American
The IACHR is aware of the fact that the people of El Salvador are
in the midst of a very difficult period brought on by a series of natural
disasters, which has placed enormous demands on the health authorities and
officials. In that context,
the Inter-American Commission appreciates the efforts of the Salvadoran
authorities to address the needs of persons infected with HIV/AIDS in that
country. The supply of anti-retroviral
medications has been steadily increasing in recent months, and the State
has announced that it will continue to adopt the measures necessary in that
Based on the arguments of fact and law outlined above, and without
prejudice to the merits of the case,
THE INTER-AMERICAN COMMISSION ON
1. Declare this
case admissible with respect to alleged violation of the rights protected
under Articles 2, 24, 25, 26 of the American Convention.
2. Inform the parties
of this decision.
3. Continue analysis
of the merits of the case, and
4. Publish this
decision and include it in its Annual Report to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, Washington, D.C., March 7, 2001.
(Signed): Claudio Grossman, Chairman; Juan E. Méndez, First Vice-Chairman;
Marta Altolaguirre, Second Vice-Chair; Robert K. Goldman, Peter Laurie,
Julio Prado Vallejo, and Hélio Bicudo, Commission Members.
The petitioners have requested that the names of the other victims not
be disclosed; the Salvadoran State is informed of those names, which
are also in the IACHR file. As
of the date of adoption of this report, three of the alleged victims
The request for precautionary measures stated:
prejudice to other actions that your Government deems necessary, the
Commission holds the view that urgent measures should be adopted in
order to provide the medical care capable of safeguarding the life and
health of Jorge Odir Miranda Cortéz and the other persons listed above.
In particular, the IACHR asks that your Government provided the
anti-retroviral treatment and medication necessary to avoid the death
of the aforementioned persons, as well as the hospital, pharmacological,
and nutritional care needed to strengthen their immune systems and to
prevent the development of diseases and infections.
from the IACHR to the Salvadoran State on February 29, 2000.
Among other things, the petitioners asserted that the two victims who
died on May 5 and 11, 2000, respectively, did not receive the treatment
from the State that would have avoided their deaths.
They reiterated the gravity and urgency of the situation, as
well as the request for provisional measures from the Inter-American
The communication from the State includes a copy of Agreement Nº 2000-0558
to the Board of Directors of the ISSS "authorizing the purchase
of medications used to provide anti-retroviral triple therapy for persons
who are insured and are carriers of HIV/AIDS" and reported the
establishment of "a fund of 13,610,516.00 million colones during
the current fiscal year," in addition to "other measures to
provide care to persons who were ill."
The measures described in the correspondence from the ISSS refer, among
other things, to "strengthening and stepping up activities aimed
at preventing the transmission of AIDS through education and the promotion
of hygiene and preventive health
among the sectors most at risk
for this disease" and "creating a fund aimed at purchasing
anti-retroviral medications for the provision of triple therapy to HIV
On January 13, 2001, an earthquake measuring 7.5 on the Richter Scale
occurred in the Pacific Ocean, 55 kilometers from El Salvador's coasts.
As a result, hundreds were killed or missing and property damaged.
That day, the President of the Republic declared a state of emergency,
which was still in effect on the date of approval of this report.
This natural disaster was followed by a series of earthquakes
of varying levels of intensity, which exacerbated the situation in the
Communication from the petitioners of January 24, 2000, para. 58.
Idem, para. 57.
Idem, para. 75.
Idem, paras. 78 and 79.
Idem, para. 93.
Based on their petition, the petitioners asked the IACHR to recommend
the following to the Salvadoran State, "at a minimum:"
and provide medication to all persons in need of it based on their medical
treatment plan; approve an AIDS law that gives persons living with HIV/AIDS
the right to medication; provide fair compensation to the families of
persons who have died as a result of the negligence of the State; ensure
that hospital practices are overhauled in order to eliminate stigmatization
of and discrimination against persons living with HIV/AIDS; carry out
informational campaigns on HIV/AIDS and the prevention of infection
including the promotion and use of condoms and other barriers; amend
fully the Law on Constitutional Procedures in order to ensure that amparo
proceedings offer an effective judicial remedy; and acknowledgement
of the expenses arising from these proceedings.
from the petitioners of February 16, 2001, para.. 22.
Communication from the State of September 8, 2000, page 2.
In that regard, the State asserted:
term "victims" used by the representative of the claimants
is indeed insulting to these persons, and, in particular, is an affront
to their dignity, since the term used in these cases is "patients
or sick persons," which is consistent with the general guidelines
established for care to persons who are suffering from HIV/AIDS.
Once it is contracted, the infected person will develop severe
immunodeficiency, and, for this reason, will be subject to opportunistic
infections, which may shorten his life.
Therefore, in this case, it cannot be concluded that the State
is responsible for the arbitrary deprivation of life, nor can it be
held that the right to health was violated because of the extent of
its impact on patients or the manner in which care was provided.
from the State dated December 6, 2000, page 2.
Communication from the State dated February 22, 2001, page 4.
The Salvadoran State deposited its instrument of ratification on June
Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgement
on Preliminary Exceptions, June 26, 1989, para. 91.
In this regard, the Inter-American Court has stated:
certain exceptions to the rule of non-exhaustion of domestic remedies
are invoked, such as the ineffectiveness of such remedies or the lack
of due process of law, not only is it contended that the victim is under
no obligation to pursue such remedies, but, indirectly, the State in
question is also charged with a new violation of the obligations assumed
under the Convention. Thus, the question of domestic remedies is closely
tied to the merits of the case.
Court, Velásquez Rodríguez judgment supra,