RIGHTS-VENEZUELA: Big Victory for AIDS Victims

By Estrella Gutiérrez Reprint | | Print |

Estrella Gutierrez

CARACAS, Jan 27 1998 (IPS) - The Supreme Court of Venezuela has handed down a precedent-setting ruling, in a case involving four military personnel and discrimination within the armed forces, that upholds the civil rights of AIDS victims.

The Court ruled in favor of the right to work, to privacy and against discrimination, for dignity and health care, psychological counselling and economic assistance for those infected by the acquired immune deficiency syndrome (AIDS).

Edgar Carrasco, a lawyer actively involved in bring the case to court, told IPS that the ruling was of “collective interest,” to all those those persons afflicted with with HIV – the human immunodeficiency virus.

Carrasco is the director general of the non-government Citizens Action against AIDS, which offers legal assistance to AIDS victims and their families. In 1997 along, the group assisted some 267 cases, 90 percent of them concerned with discriminatory treatment.

In Venezuela, with 22.8 million residents, the government has registered the names of 7,024 persons suffering from AIDS – of which 4,081 have died.

There are no statistics on asymptomatic AIDS carriers, but the World Health Organization said in 1994 that 0.3 percent of all adults are infected with AIDS, and this figure jumps to 25 percent among homosexuals.

The different volunteer organizations created to assist AIDS carriers agree that both society and government authorities maintain a dangerous indifference to a problem seen as affecting only marginal groups, when it is increasingly affecting women and children, for example.

In the report of Alfredo Ducharne, one of the country’s 15 high court judges, he wrote that the State is responsible for the economic, social, psychological and health needs of AIDS carriers, as well as to guarantee of their human dignity.

Carrasco stressed that this finding opens the door to radical changes in the level of attention given by the government to the disease and that there are few precedents among Southern based developing countries in which legal responsibility for AIDS victims is placed squarely on the State, regardless of the level of infection in their population.

The judge’s report adds a new element: it found that there must be a co-existence between individual and collective rights, thereby dismissing the old argument that allowed discrimination against AIDS victims for the common good.

The ruling bases its finding of the dramatic and alarming character of AIDS, described as an epidemic affecting all humankind, in reports by the World Health Organization (WHO).

The agency has warned that in two years, more than 40 million people will be infected worldwide; in Latin America there is already 1.3 million infected and that the symptom has already killed six million, but the Court noted that in its opinion, the disease is moving toward a cure.

Those infected by AIDS “are human beings with dignity, who have a right to a private life, to health, to respect, and to equality before the law, and protection from discrimination,” according to the judges’ ruling.

This did not happen in the case involved as the high command of the armed forces, after detecting that four soldiers were infected with the HIV virus, exposed their condition publicly thus leaving them open to ridicule within their regiment.

“We feared an adverse ruling because we were suing an ‘untouchable’ institution, like the military,” says another lawyer Victor Croquer, who also was involved in the case.

Four years ago, the military command established that joining the armed forces was incompatible for anyone suffering from HIV. As with the majority of Latin American armies, although health care and a pension was granted officers who did became infected after joining the service, enlisted men received no benefits.

All those involved in the case against the army said they had been in good health when they joined up and no HIV was detected by Ministry of Defence doctors.

The Court accepted the argument that “the suffering from this pathology is incompatible with a military career due to the personal risks to the infected person and due to the risk of contagion,” given the “active duties of the military.”

This position closes the entry doors for carriers of AIDS and HIV to the military but it establishes that, once inside the military, there will be a medical ruling in each case to determine if the sick person is able or not to continue in his or her duties.

The four plaintiffs were submitted to forced medical leave when the virus was detected, but continied to be paid, which meant that in this particular case their right to work was not violated, although there was a violation as to the right to health care, privacy, equality of treatment and other rights.

“We knew that in some aspects the Court had to reconcile the arguments of the plaintiffs with those of the defendants,” said Carrasco, for whom the ruling will enable the four appellants not only to receive medical care but a pension and compensation for damages.

Doctor Regina Lopez, of the Unit of Immunodeficiencies of the Office of Military Medical Care, argued for the defense that those infected, just as those who are asymptomatic, have neurological disorders and behavioral disorders which make it impossible for them to continue their normal routines.

“It would be very dangerous for this diagnosis to have been accepted because it would be assuming, simplistically, that an AIDS carrier suffers, in addition, from symptoms of insanity,” argued Carrasco.

The four plaintiffs who have set a precedent for AIDS carriers in Venezuela were the last to learn that the Court had ruled in their favor, as only last Friday were they informed by their lawyers, after being tracked down in various parts of the country.

“All were stunned, but for them the most important outcome was the guarantee of health care and a pension to survive.” The case was decided in just four months, record time for the high court. (FIN-IPS-eg-dg-hd-he-lv-98)