54
performing operations; [...] accuses her of participating in an operation on ‘Mario’ whose
hand had been burned, which corroborates the foregoing; namely, that she took part as
assistant surgeon in a skin-grafting operation; and it is evident that the defendant has
denied this during the proceeding so as to elude her criminal liability, which has been
adequately proved[.]
94.
The Court observes that the medical act is acknowledged in numerous
normative and declarative documents relating to the medical profession.99 For
example, article 12 of the Code of Ethics and Deontology of the Physician’s
Professional Association states that “[the] medical act is any activity or procedure
performed by a physician in the exercise of the medical profession. It includes the
following: acts of diagnosis, therapeutics and prognosis carried out by a physician
when providing comprehensive care to patients, and also acts deriving directly
therefrom. Such medical acts may only be exercised by members of the medical
profession.”
95.
For information only, the Court recalls that Article 18 of the First Geneva
Convention of 1949 states that: “[n]o one may ever be molested or convicted for
having nursed the wounded or sick.” Also, Article 16 of Protocol I and Article 10 of
Protocol II, both Protocols to the 1949 Geneva Conventions, establish that “Under no
circumstances shall any person be punished for carrying out medical activities
compatible with medical ethics, regardless of the person benefiting therefrom.” At
the time of the facts of this case, Peru was a party to those international
instruments.
d)
A physician’s reporting obligation concerning possible criminal acts
96.
The judgment of November 21, 1996 (supra para. 73(27)), also considered
“that when the physician merely presumes or knows the unlawful origin of the
injuries caused to an individual, he is obliged to report the fact or advise the
authorities so that they may conduct the respective investigation.”
97.
In this regard, the Court considers that the information a physician obtains in
the exercise of his profession is privileged by professional confidentiality. For
example, the International Code of Medical Ethics of the World Medical Association
establishes that “a physician must keep absolutely secret everything that has been
confided in him, even after the death of the patient.”
98.
In this regard, Article 2(18) of the 1993 Constitution of Peru, which has
precedence over any other domestic norm in Peruvian legislation, establishes that
everyone has the right:
Not to make known his political, philosophical, religious or any other kind of beliefs, and
also to respect professional confidentiality.
99.
Moreover, Article 141 of the Code of Criminal Procedure establishes that: “the
following shall not be obliged to testify: 1. members of religious orders, lawyers,
physicians, notaries and midwives, with regard to the secrets confided to them in the
exercise of their profession.
99
Cf. International Code of Medical Ethics, World Medical Association; Regulations in time of armed
conflict, World Medical Association; European Principles of Medical Ethics; Code of Ethics and Deontology
of the Peruvian Physicians’ Professional Association (file on merits, reparations, and costs, tome IV, folios
846 to 857); and Law, Statute and Rules of Procedure of the Peruvian Physicians’ Professional Association
(file on merits, reparations, and costs, tome IV, folios 858 to 941)
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