123. The Commission did not rule on the presumed violation of Article 5(1) of the Convention in its Merits Report. 156 124. In the pleadings and motions brief, the representative asked the Court to declare the violation of Article 5(1) of the Convention, 157 to the detriment of Melba del Carmen Suárez Peralta, Melba Peralta Mendoza and their next of kin, given that “the deficient medical operation that was performed resulted in the extraction of part of her intestine,” and because “the State was ineffective in controlling the exercise of the medical profession by Emilio Gutiérrez, since it allowed him to perform the operation without the proper work permit.” The representative emphasized that “the operations performed in the Minchala Clinic were part of an agreement made by a State entity called the Guayas Traffic Commission, where the victim’s husband worked, offering low-cost operations to the family members of its employees and officials.” Therefore, he considered that the State was an “accomplice in the execution of the unlawful act, because the illegal action of the said health care professional […] was promoted and encouraged by a State entity.” Furthermore, in his final oral arguments, the representative added that “the origin of the medical malpractice in the operation was […] general order No. 19177 dated Thursday, June 1, 2000, in which the State traffic entity in Ecuador […] advise[d] […] that the doctors of the fellow country of Cuba were providing their services in the institution’s Polyclinic, [and] mentioned Dr. Emilio Guerrero[.] [T]he State entity itself promoted the consultation [and] even the surgical operation by a professional who was not authorized in the State, […] which concluded evidently and subsequently, with the operation on […] Melba del Carmen Suárez Peralta[. Thus,] the State assumed a negative, instead of positive, inverse burden, by having knowingly promoted rather than impeded [or] prevented an [unqualified] professional from exercising medicine, and had even sponsored this. 125. For its part, the State argued that the representative had “trie[d] to show that offenses similar to torture or cruel and degrading treatment exist by simple derivation from an eventual attribution of responsibility under Articles 1(1), 8 and 25 [of the Convention] and not because the facts constitute any trace of violation of the right to personal integrity.” In addition, it indicated that “the presentation of the facts […] reveals that [in] the circumstances in which the operation on Mrs. Suárez Peralta took place, not only […] the State did not intervene, but, furthermore, it is erroneous to affirm that the State was in a position of virtual guarantor.” Thus, it indicated that “a State cannot be held responsible for a human rights violation committed between private individuals under its jurisdiction.” In its final oral arguments, the State concluded that “the acts that may have caused the supposed medical malpractice, and even the supposed delay in the processing of justice, do not fall within the definition of physical and mental torture, so that it would not be in order for the Court to rule on the merits of this article.” 156 Nevertheless, when issuing Admissibility Report No. 85/08 of October 30, 2008, in a note of its Secretariat dated January 7, 2009, the Commission notified the Admissibility Report in which it included the possible responsibility for “the presumed violation of its obligation to prevent the violation of personal integrity arising from its obligation to regulate and supervise medical health care as special duties derived from its obligation to ensure the rights established in Article 5(1) of the American Convention in relation to Article 1(1) of this instrument.” Subsequently, in a note of its Secretariat dated February 26, 2009, the Commission advised that it was necessary “to refer to an involuntary material error in Admissibility Report No. 85/09 forwarded on January 8, 2009. The errata were in paragraphs 3, 48, 49 and decision 1 of the report sent out, and ha[d] been duly corrected in Report No. 85/08 attached to this note.” Consequently, the said report excluded any reference to a possible violation of Article 5 of the Convention. 157 The violation of the right to humane treatment (Article 5 of the Convention) was not alleged in the proceedings before the Commission. 35