this specific type and to detail the limits of its understanding on the need for reform
in the States’ criminal legislation. The case concerned the death of Ms. Albán Cornejo
after being hospitalized due to a diagnosis of bacterial meningitis. On that occasion,
the victim received a dose of morphine, which was considered medical misconduct. 67
The representatives and the IACHR argued the inadequacy of the internal
regulations, especially the absence of specific regulation of medical malpractice
(including criminal classification), which would translate into an obstacle to accessing
justice. 68
27. When dealing with the duty of States to prevent and punish human rights violations,
the Court reinforced the specific duty to adapt the domestic criminal legal system to
the Convention (both in material and procedural terms) and specified that, in
material terms, “such purpose is realized through the enactment of adequate criminal
descriptions in accordance with criminal legal provisions, which meet the
requirements of punitive law in a democratic society and which are adequate for the
protection of goods and legal interests, from a criminal perspective.” 69 In this case,
however, the Court considered the separate classification of the crime of medical
malpractice unnecessary, it being subsumed under the already existing crimes of
injuries or homicide being sufficient. 70
28. The case of Albán Cornejo thus demonstrates that, although the Court understands
that any violation of the rights provided for in the Convention implies the State's duty
to investigate and, where appropriate, punish, 71 it is not always necessary to adopt
a new criminal offense in domestic law when a violation is identified. Thus, States
have a certain degree of autonomy to define their criminal policies, always limited
by obligations under the convention and the norms of International Human Rights
Law. The role of the Court, in this context, is not to define the States’ domestic
legislation, but to strictly verify its compatibility with the Convention and, in cases
where the incompatibility culminates in violation, determine the reparations
available.
b. On the tension between the international protection of Human
Rights and the possible need to influence Criminal Law
29. The standards discussed above highlight the multifaceted interaction between the
areas of Human Rights and Criminal Law in the international sphere. As Françoise
Tulkens, former judge of the European Court of Human Rights ("EHR Court"), warns,
"the obvious nature of this relationship (...) should not, however, obscure its complex
and paradoxical character...". 72 The paradox to which the judge refers was translated
by former judge Christine Van der Wyngaert of the International Criminal Court into
67
Cf. Case of Albán Cornejo et al. v. Ecuador. Merits, Reparations and Costs. Judgment of November 22,
2007. Series C No. 171, para. 2, 84.
68
Ibid., para. 113-4.
69
Ibid., para. 135.
70
Ibid., para. 136.
71
Cf. Case of Bulacio v. Argentina. Preliminary Objections, Merits, Reparations and Costs. Judgment of
September 18, 2003. Series C No. 100, para. 110.
72
Cf. TULKENS, Françoise. The Paradoxical Relationship between Criminal Law and Human Rights. Journal of
International Criminal Justice, vol. 9 (2011), p. 578 (our translation).
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