II.
ABORTION
6.
This separate opinion is issued because I dissent from the fifth operative paragraph
of the judgment21 because, in addition to my previous considerations,22 when sentencing
the State, it also does so in relation to abortion by referring to the practice of handcuffing
women, to the rules adopted by the United Nations in this regard, and to the reporting of
possible offenses.23
7.
This partially dissenting opinion is also issued in relation to the twelfth operative
paragraph of the judgment,24 because, on the one hand, it is based on the fact that, in
practice, as a result of the ambiguity of the laws on professional secrecy, “to avoid being
sanctioned, medical personnel report women suspected of having committed the offense
of abortion”25 and, on the other, that the regulation that it orders the State to adopt,
should establish that there is no obligation to report women who have received medical
attention due to an abortion and, lastly, that the State should refrain “from applying the
current laws concerning the obligation of health personnel to report possible cases of
abortion.”26
8.
Lastly, this opinion also records my discrepancy with the provisions of the fifteenth
operative paragraph of the judgment,27 because the paragraph to which it refers back
establishes that the training courses should be for judicial officials who intervene in
judicial proceedings concerning abortion.28
9.
To the foregoing, it should be added that the judgment contains an unresolvable
contradiction when it declares, on the one hand, that, in this case, “[w]hat is in dispute
is the State’s alleged responsibility for the detention, prosecution and conviction of the
presumed victim for aggravated homicide following the obstetric emergency that she
suffered”29 and, on the other, “that the Commission’s Merits Report includes the
criminalization of abortion in El Salvador and the alleged effect of this in cases of obstetric
emergencies and infanticide as part of the context of this case. To the extent that the
facts included by the representatives are pertinent to explain and clarify the said context
and its relationship to this case, the Court will take them into account.”30
10.
The latter viewpoint is reiterated in the judgment, when indicating that “the
Commission’s Merits Report includes the criminalization of abortion in El Salvador and the
21
Supra, footnote 5.
22
Supra, Part I.
Paras. 202, 219, 259. 260. Hereinafter, it will be understood that “paras.” refers to paragraphs of the
judgment.
23
“The State shall regulate the obligation of medical professional secrecy and the confidentiality of medical
records, pursuant to paragraph 287 of this judgment.”
24
25
Para. 286.
26
Para. 286.
“The State shall design and implement an awareness-raising and training course for judicial officials, as
well as the health personnel of the Rosales National Hospital, as established in paragraphs 294 and 295 of this
judgment.”
27
28
Para. 293.
29
Para. 92.
30
Para. 30 of the judgment.
4