Report No. 27 (2009) IACHR. Case No. 12.249 (El Salvador)

• Case Number: 12.249
• Year: 2009
• Report Number: 27
• Case Type: Merits
• Respondent State: El Salvador
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Jorge Odir Miranda Cortez y otros

REPORT N° 27/09 CASE 12.249 MERITS (PUBLICATION) JORGE ODIR MIRANDA CORTEZ ET AL. EL SALVADOR March 20, 2009 I. SUMMARY 1. 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 ("the petitioner"), alleging the international responsibility of the Republic of El Salvador ("the State") to the detriment of Jorge Odir Miranda Cortez and 26 other persons who are carriers of the Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome ("HIV/AIDS") and are members of the Atlacatl Association. The petitioners allege that the acts reported constitute a violation of several provisions contained in the American Convention on Human Rights (hereinafter "the American Convention"): the right to life (Article 4); humane treatment (Article 5); equal protection of 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 related provisions in 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 aforementioned 27 persons, which were granted by the IACHR when it began to process the case. 2. The petitioners allege 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. A decision on the amparo case was issued on April 4, 2001. The petitioners hold that the delay on the part of this Salvadoran jurisdictional organ is unreasonable and constitutes a further violation of the right to a fair trial and judicial protection. 3. For its part, the State maintains that the care provided to the persons identified in this report in the framework of the precautionary measures demonstrates compliance with its international commitments, and it draws attention to the efforts of the authorities to reach a friendly settlement of the instant case. In its additional observations on merits the State says that it has not engaged in discriminatory practices against the persons mentioned in the record in Case 12.249. It further asserts that amparo petition 348-99 lodged by Jorge Odir Miranda Cortez was delayed owing to the procedural structure of that country, the complexity of the case, and the judicial activity of the petitioners, for which reason it refutes the arguments of the petitioners regarding violation of the right to effective judicial protection. It considers that the measures adopted in respect of persons infected with HIV/AIDS in El Salvador constitute compliance with its international obligations as regards to the right to health. In light of the foregoing, the Salvadoran State requests the IACHR to close the instant case and undertakes to continue to provide information on its initiatives with the respect to the right to health of the inhabitants of that country. 4. The IACHR concludes in this report that the processing of amparo case 348-99 did not meet the necessary conditions of simplicity and effectiveness in the circumstances of the instant case, which constitutes a denial of effective judicial protection to the detriment of Jorge Odir Miranda Cortez and the other 26 persons identified in record 12.249. At the date of adoption of the instant report the State has not amended its amparo law in order to provide it with the simplicity and effectiveness necessary to protect the fundamental rights of the persons subject, to its jurisdiction, for which reason the Inter-American Commission further concludes that it has failed its duty to make its domestic laws consistent with its international obligations in the area of human rights. Such acts constitute a violation of article 25 of the American Convention, as well as a breach of article 2 of said international instrument. The State is also responsible for the violation of article 24 (right to equal protection of the law) to the detriment of Jorge Odir Miranda Cortez; however, the violation of that provision was not demonstrated in respect of the other 26 persons. The Inter-American Commission further concludes that the Salvadoran State has not violated in this case article 26 (economic, social, and cultural rights). The IACHR decided not to render a decision with respect to the arguments on Article 4 (right to life) or Article 5 (right to humane treatment) of the American Convention because of the subsidiary nature of the corresponding arguments in this case. II. PROCESSING SUBSEQUENT TO THE REPORT ON ADMISSIBILITY 5. On March 7, 2001 the IACHR adopted Report No. 29/01 in which it declared Case 12.249 admissible “with respect to alleged violations of the rights protected under Articles 2, 24, 25, 26 of the American Convention”. The decision was communicated to the parties by a note of March 9, 2001, in which the Inter-American Commission also placed itself at the disposal of the parties with a view to initiating a friendly settlement procedure, and set a deadline of 30 days for both to present their opinion in that respect. A. Friendly settlement procedure 6. On March 15, 2001 the petitioners transmitted a communication in which they proposed a system of identification of the alleged victims in the case, in order to protect their identity. The following day they sent a note in which they expressed the “wholehearted interest” of the latter to reach a friendly settlement and at the same time that they were of the “firm decision” that the case be submitted to the Inter-American Court of Human Rights should no such agreement be reached. 7. On March 19, 2001, the IACHR informed the petitioners and the Salvadoran State that the footnote at the beginning of report on admissibility No. 29/01 had been amended, in order only to use the name of Jorge Odir Miranda Cortez and to protect the identities of the other 26 persons included in the record. The Salvadoran State conveyed information on April 9, 2001 concerning the initiatives adopted with a view to the friendly settlement of the case. The IACHR confirmed its receipt of that letter and, at the same time, expressed to both parties that it valued the efforts made to that end and reiterated its disposal to lend impetus to the mechanism contained in article 48(1)(f) of the American Convention. 8. The petitioners supplied additional information on May 3, 2001, which consisted of the documents agreed on by the parties at the friendly settlement meetings held, respectively, on April 5 and 24, 2001 in San Salvador. On June 27, 2001 the State sent a communication informing the Inter-American Commission of the official publication in El Salvador of guides on “Standards and procedures of care for sexually transmitted infections” y “Protocols of care for persons infected with HIV/AIDS”, and drawing attention to the importance of those documents for dealing with the problems in question. 9. On July 13, 2001 the Commission received a communication from the petitioners in which they stated their intention to withdraw from the friendly settlement procedure because, having taken into consideration “a wide range of circumstances”, they considered that it had “failed as a possibility for reaching a settlement of the case.” In the communication, the petitioners request the IACHR to “proceed with the appraisal of the facts and preparation of a report under Article 50 of the American Convention” and, as appropriate, to refer the case to the Inter-American Court in the event of noncompliance with the relevant recommendations. 10. On July 26, 2001, the IACHR informed the Salvadoran State of the pertinent portions of the aforementioned communication from the petitioners. The State submitted a note on August 28, 2001 in which it expressed its discrepancy with the decision of the petitioners to terminate the friendly settlement, and, at the same time, provided an account of the activities carried out in the framework of that procedure. Attached to the note, the State submitted a short report from the Salvadoran Social Security Institute on the situation of Mr. Jorge Odir Miranda Cortez, as well as a list of “Relevant activities of the Program on STI/HIV/AIDS in El Salvador for 2001”. B. Procedure on merits 11. The Inter-American Commission forwarded the above-mentioned letter of the State to the petitioners on September 5, 2001. At the same time it requested the petitioners to submit additional observations on the merits of the matter, setting them the period of two months provided in the Rules of Procedure of the IACHR. 12. The petitioners sent a communication on November 5, 2001 asking for an extension of one week to...