55
100. The Human Rights Committee has already recommended that domestic
legislation be modified to protect the confidentiality of medical information.100
101. The Court considers that physicians have a right and an obligation to protect
the confidentiality of the information to which, as physicians, they have access.
102. Consequently, in light of the above considerations, the Court believes that,
when delivering the judgment of November 21, 1996, the State violated the principle
of legality: by taking into account as elements that gave rise to criminal liability,
membership in a terrorist organization and failure to comply with the reporting
obligation, but only applying an article that did not define these behaviors; by not
specifying which of the behaviors established in article 4 of Decree Law No. 25,475
had been committed by the alleged victim in order to be found guilty of the crime;
for penalizing a medical activity, which is not only an essential lawful act, but which
it is also the physician’s obligation to provide; and for imposing on physicians the
obligation to report the possible criminal behavior of their patients, based on
information obtained in the exercise of their profession.
103. In view of the above, the Court considers that the State violated the principle
of legality established in Article 9 of the American Convention, to the detriment of
Mrs. De La Cruz Flores.
*
*
*
104. Likewise, for the sake of legal certainty, the punitive norm must exist and be
known, or could be known before the occurrence of the act or omission that violates
it, and which it is intended to penalize. The definition of an act as an unlawful act
and the determination of its legal effects must precede the conduct of the individual
who is alleged to have violated it; because, before a behavior is defined as a crime,
it is not unlawful for penal effects. If this were not so, individuals would not be able
to adjust their behavior according to the laws in force, which express social reproach
and its consequences. These are the grounds for the principle of the non-retroactivity
of an unfavorable punitive norm.101
105. According to the principle of freedom from ex post facto laws, the State may
not exercise its punitive power by applying penal laws retroactively that increase
sanctions, establish aggravating circumstances or create aggravated types of
offenses. The principle is also designed to prevent a person being penalized for an
act that, when committed, was not an offense or could not be punished or
prosecuted.102
106. In relation to the principle of freedom from ex post facto laws, the Court
observes that, in her statement of September 7, 1995, before DINCOTE, Elisa Mabel
100
Cf. Final observations of the Human Rights Committee, Chile, U.N.Doc.CCPR/C/79/Add.104
(1999).
101
Cf. Case of Baena Ricardo et al., supra note 97, para. 106; and, inter alia, Eur. Court H.R. Ezelin
judgment of 26 April 1991, Series A no. 202, para. 45; and Eur. Court H.R. Müller and Others, judgment
of 24 May 1988, Series A no. 133, para. 29.
102
Cf. Case of Ricardo Canese, supra note 1, para. 175; and Case of Baena Ricardo et al., supra
note 97, para. 106.
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