judicial remedies available to them, without a determination of responsibility of the Red Cross of Azuay’s officials. 25. For its part, the State alleges that the claim is inadmissible because it does not satisfy the requirement provided in Article 46(1) of the American Convention. It considers that, during the criminal proceeding, the petitioners did not seek to file actions such as recusal, damages and injury actions against magistrates who delay the proceedings, and cassation. It also alleges that the petitioners should have exhausted the monetary compensation action for moral damages provided for in the Civil Code. 26. Regarding the remedies of recusal15 and cassation16 to which the State refers in its allegations, the Commission notes that based on their characteristics they are not adequate for remedying the situation complained of by the petitioners in terms of determining criminal liability for the actions surrounding the infection of the female child TGGL with the HIV/AIDS virus. These remedies also do not serve the purpose to determine compensation intended to repair the damage sustained and ensure access to medical treatment by the alleged victim. This is also applicable to a possible action for damages and injury against the magistrates 17 involved in the proceeding that was terminated based upon statute of limitations rules. 27. The compensatory action for moral damage provided for in the Civil Code 18 is aimed at obtaining compensation for moral damage caused by an individual and not by an action attributable to the State. If filed against an institution providing a public service, such as the Ecuadorian Red Cross, to obtain reparations for the damage caused by infection with the HIV/AIDS virus, this remedy would be futile. Therefore, it cannot be required for purposes of determining the admissibility of the complaint. 28. The Commission notes that the conduct connected with the object of the claim was typified by the Criminal Code then in force as a crime and therefore to be investigated ex officio by the 15 The recusal proceeding is provided in the Code of Civil Procedure. “A judge, whether in a tribunal or court, may be recused by either of the parties and must refrain from hearing the case for any of the following reasons: 10. Not handling the proceeding within three times the time period indicated.” In addition, the State indicates that recusal is provided under Article 265 of the Criminal Procedure Code. Official letter 05193 of the Office of the Attorney General dated December 4, 2008, submitted by means of Note No. 4-2-347/2008 of December 9, 2008. 16 The State indicates that Article 349 of the Criminal Procedure Code establishes that the cassation appeal “[] shall be admissible before the Supreme Court of Justice when the decision has violated the law, either by expressly contradicting the language of the law, or by applying the law falsely, or finally by interpreting it incorrectly.” In addition, the State indicates that Article 350 provides the deadline for submitting the cassation appeal. Official letter 05193 from the Office of the Attorney General dated December 4, 2008, submitted by means of Note No. 4-2347/2008 of December 9, 2008. 17 The State indicates that said remedy is provided in the Code of Civil Procedure: “Action for damages and injury is admissible against the Judge or Magistrate who in the performance of his duties causes economic damage to the parties or interested third parties, due to delay or denial of justice for breaking express laws, for usurpation of functions, for granting denied appeals, or for rejecting remedies granted by the law, expressly or by altering the decision when finalizing it. This action is also admissible against clerks and other employees of the Court, who through their action or omission have caused economic damage, through bad faith or negligence [].” Official letter 05193 from the Office of the Attorney General dated December 4, 2008, submitted by means of Note No. 4-2-347/2008 of December 9, 2008. 18 The State indicates that the Civil Code states that “[i]n any case not provided for in the preceding provisions, a person who has suffered merely moral damages may also sue for monetary compensation, by way of reparations, when such compensation is justified by the particular gravity of the harm suffered and the offense. Setting aside the penalty imposed in cases of intentional or unintentional tort, this reparation is especially incumbent upon those who in cases other than those indicated in the preceding article damage another’s reputation through any type of defamation; or those who cause injuries, commit rape, statutory rape, or assaults against modesty, provoke illegal or arbitrary detentions or arrests, or unjustified prosecutions, and generally, physical or psychic suffering such as anguish, anxiety, humiliation and similar offenses. Reparations for moral damages may be demanded if such damages are the proximate result of the unlawful action or omission of the respondent, leaving to the judge’s discretion the determination as to the value of the compensation in view of the circumstances, as provided in the first paragraph of this article.” The Code states that “action for moral damage is the exclusive prerogative of the victim or the victim’s legal representative. But in the case where the victim is physically unable to exercise this prerogative, this may be done by the victim’s legal representative, spouse, or relatives up to the second degree by blood. If the unlawful act caused the death of the victim, the action may be filed by the victim’s heirs, in accordance with the provisions of this Code [].” Official letter 05193 from the Office of the Attorney General dated December 4, 2008, submitted by means of Note No. 4-2-347/2008 of December 9, 2008. 6