208. In the instant case, the information that Manuela shared with the health personnel was
private. Manuela did not authorize its disclosure; despite this, it was disclosed on at least
three occasions: (1) when the treating physician filed the complaint against Manuela; (2)
when the physician gave her statement on February 28, 2008, and (3) when the director of
the San Francisco Gotera National Hospital sent a report on Manuela’s medical record to the
prosecution service.
209. The disclosure of this information to the judicial authorities constituted interference in
her rights to privacy and to health. Therefore, the Court must examine each of these occasions
to determine whether they were arbitrary or abusive or if they were compatible with the
Convention.
B.3.a The complaint filed by the treating physician
210. On February 27, 2008, the physician who treated the presumed victim filed a complaint
against Manuela for possible abortion. In her complaint, the physician included the following
considerations:
In order to comply with art. 312 Pn., I am hereby advising that on the 27th at 5:25 p.m.
this hospital provided medical care to [Manuela], female, 25 years of age […] who revealed
the following: preterm delivery, with placental retention. She does not have the newborn;
apparently as a result of committing an offense. The foregoing is reported so that the
pertinent legal measures may be taken.354
Legality of the restriction
211. In order to evaluate whether the harm to a right established in the American Convention
is permitted in light of this instrument, the first step is to examine whether the measure in
question complied with the requirement of legality. This means that the general conditions
and circumstances under which a restriction of the exercise of a specific human right is
authorized must be clearly established by law. 355 Moreover, the law establishing this
restriction must be a law in both the formal and the material sense. 356
212. In addition, the law must be precise and include clear and detailed rules in this regard.357
The rules must be unambiguous, so that they do not raise doubt in those responsible for
applying the restriction, and do not enable them to act in an arbitrary or discretionary manner,
making extensive interpretations of the rules.358 In this regard, the European Court had
indicated that the “law must be adequately accessible and foreseeable, that is, formulated
354
Note addressed to the prosecution service dated February 27, 2008 (evidence file, folio 22).
Article 30 of the American Convention establishes that “The restrictions that, pursuant to this Convention, may
be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in
accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such
restrictions have been established.”
355
Cf. The Word "Laws " in Article 30 of the American Convention on Human Rights, Advisory Opinion OC-6/86,
May 9, 1986. Series A No. 6, paras. 27 and 32, and Indefinite Presidential Re-election in Presidential Systems in the
context of the Inter-American System of Human Rights (Interpretation and scope of Articles 1, 23, 24 and 32 of the
American Convention on Human Rights, XX of the American Declaration of the Rights and Duties of Man, 3(d) of the
Charter of the Organization of American States and of the Inter-American Democratic Charter). Advisory Opinion
OC-28/21 of June 7, 2021. Series A No 28, para. 115.
356
357
Case of Escher et al. v. Brazil, supra, para. 131.
Case of Baena Ricardo et al. v. Panama. Merits, reparations and costs. Judgment of February 2, 2001. Series
C No. 72, para. 108, and Case of Ricardo Canese v. Paraguay, supra, para. 125.
358
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