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jurisdictions, and involving Articles 8 (Right to a Fair Trial) and 25 (Right to Judicial
Protection), and such facts as could establish the violation of the rights enshrined in
Articles 4 (Right to Life), 5 (Right to Humane Treatment), 13 (Freedom of Thought
and Expression) and 17 (Rights of the Family) of the American Convention, to the
detriment of the next of kin to Laura Albán, are still in dispute.
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19.
With regards to Article 2 of the Convention, the Commission requested,
among other things, that the State “adopt the legislative or other measures as may
be necessary […] to ensure the right to judicial protection and the right to a fair trial
[regarding the right to] press criminal charges in case of manslaughter”, as well as
to prevent repetition of events similar to those in the instant case. The Commission
underscored that in order to comply with the prevention and guarantee duties
regarding the rights recognized in the Convention, it is necessary to rectify the
shortcomings in national medical malpractice legislation and to remove obstructions
hindering the quest for truth in this kind of cases. The representatives pointed out
that the State must adopt the constitutional and statutory amendments necessary to
prevent repetition of events of such nature, and enact a law against medical
malpractice.
20.
When considering the arguments exposed by the Commission, the
representatives and the State10 on the alleged lack of compliance with the obligation
enshrined in Article 2 of the American Convention, the Court considers that such
arguments should be analyzed in chapter VIII of this Judgment.
21.
This Tribunal observes that the State partially acknowledged having violated
Articles 8 and 25 of the American Convention, as it was set forth in paragraphs 10,
11, 16 and 17, but expressly excluded violation of Articles 8 and 25 of the
Convention with regard of the events pointed out in paragraph 18, for which reason
it is necessary to continue considering the merits on such facts and arguments in
chapter VII of the instant Judgment. Likewise, the State excluded the alleged
violations of Articles 4 (Right to Life), 5 (Right to Humane Treatment), 13 (Freedom
of Thought and Expression) and 17 (Rights of the Family) of the Convention.
22.
On the basis of the foregoing, the Court holds that the matter of the
international responsibility of the State for having violated Articles 8(1) and 25 of the
Convention, to the detriment of Carmen Cornejo de Albán and Bismarck AlbánSánchez, the parents of Laura Albán, in the terms set forth in paragraphs 16 and 17,
to have ceased being in dispute, independently of the precisions to be made in
chapter VII. Violations of Articles 8 (Right to a Fair Trial) and 25 (Right to Judicial
Protection), as pointed out in paragraph 18, as well as of Articles 4 (Right to Life), 5
(Right to Humane Treatment), 13 (Freedom of Thought and Expression) and 17
(Rights of the Family) of the Convention and the alleged lack of compliance with
Articles 1(1) and 2 thereof are matters still in dispute.
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10
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In such regard, the State informed the Court that it that it “[has] held meetings […] for the
purpose of preparing and backing the enactment of a medical malpractice bill and bills to amend related
provisions”.