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Mendoza & Ors v Minister of Public Health and the Director of the National AIDS-HIV-STI Program

Mendoza & Ors v Minister of Public Health and the Director of the National AIDS-HIV-STI Program

Tribunal Constitucional, 3ra. Sala, Ecuador, Resolucion No. 0749-2003-RA, 28 Jan. 2004

Keywords: Positive obligations, constitutional law, Ecuador, availability, Progressive v immediate realisation, deeds not words, national level 

The public hospital where the applicants (persons living with HIV/AIDS) were receiving treatment stopped providing them with all three drugs of the required triple antiretroviral therapy.  They demanded the immediate restitution of such provision and the conduction of medical tests necessary to update their medical prescriptions.  They alleged violations of their constitutional right to health and the constitutional guarantee that public services for medical attention shall be free of charge for those persons that need it. 

The Court ruled that the State must take precautions to safeguard the right to health and that the right to health also forms part of the right to life. The right to health requires the State not only to adopt policies, plans and programmes with regard to general health, but also obliges them to draw up regulations, carry out research and establish public policies by setting up appropriate bodies and making them available to the population.  

By not providing an immediate, diligent and effective solution, the Ministry caused serious damage to the quality of life of those suffering from HIV/AIDS. This violated rights guaranteed by the Constitution and by international treaties ratified by Ecuador and incorporated into its domestic legislation. These rights include ‘positive’ social rights — immediately enforceable legal rights that are binding upon the authorities, which have corresponding legal obligations

Right to education relevance – where the right to education exists, it is arguable that the government should similarly not only adopt policies, plans and programs with regard to education provision but also draw up regulations, carry out research and establish public policies by setting up appropriate bodies and making them available to the population. See also the Argentinian case above – Viceconti v Ministry of Health and Social Welfare relating to the right to health.