SEPARATE OPINION OF JUDGE SERGIO GARCIA RAMIREZ IN THE
JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE
CASE OF DE LA CRUZ FLORES OF NOVEMBER 18, 2004.
1.
In this separate opinion I refer to only one issue examined in the judgment
delivered by the Inter-American Court of Human Rights on November 18, 2004, in
the Case of De La Cruz Flores: the medical act and criminal legislation, from the
perspective of human rights and in the circumstances ratified in this case. I refer to
the expression ‘medical act’ as it is used in the judgment, which borrows the
definition from article 12 of the Code of Ethics and Deontology of the Doctors’
Professional Association of Peru (the State referred to in the matter sub judice),
which includes generally accepted concepts: “a medical act is any activity or
procedure carried out by a doctor in the exercise of the medical profession. It
includes the following: acts of diagnosis, therapeutics and prognosis performed by a
doctor when providing comprehensive care to patients, and also acts deriving directly
therefrom. Such medical acts may only be exercised by the members of the medical
profession.”
2.
A clear distinction should be established between this activity (which falls
within the framework of the exercise of a profession and responds the corresponding
purposes and methods), from any other activity that is penally typical or atypical,
and that is subject to its own type of regulation and to the legal consequences
established by law, including those of a penal nature. It should not be forgotten that,
at times, it may be difficult to make a distinction and that some situations may
suggest the existence of a criminal violation behind an alleged medical procedure.
However, these practical problems do not invalidate the significance of the
affirmation contained in this opinion, which supports the judgment delivered by the
Court. On the one hand, there are the characteristics of each fact, act or conduct,
which must be assessed in their own terms, and on the other hand, the problems
involved in the investigation and identification of the facts. The former is a matter for
the legislator and the judge, and the latter for the investigator. The Court must avoid
a flawed investigation, with uncertain or erroneous results, contaminating its
assessment of the nature of the conduct and the appropriate legal response.
3.
It is obviously possible that someone exercising the medical profession may,
independent of this, perform acts that might be established in criminal legislation
and therefore merit different types of penalties. This leads us to insist on the need
to trace a borderline, as precisely as possible – at the threefold level of legal
classification, investigation and prosecution – between such punishable conducts and
others that are performed exclusively within the framework of the medical act; that
is, within the framework of the activities of a professional in the field of medicine,
using his knowledge and expertise in this discipline to safeguard the lives and health
of others. In brief, this is the purpose of the medical act, which contributes to its
legal classification.
4.
For the purpose of establishing penalties, criminal legislation must include
certain behaviors that gravely affect the most relevant juridical rights. The idea of a
minimum criminal law, associated with guaranteeism which today faces attacks from
different sources, supposes the incrimination of such unlawful behaviors, in view of
their gravity and the harm they produce, when there are no alternate social or legal
means to avoid them or punish them. According to this concept, criminal legislation
should be used as a last resort for social control, and focus on those behaviors of