10
her establish the cause of her daughter's death and a lawyer who would take
the case. She considers that impunity had the upper hand in the case of her
daughter’s death.
b)
Ernesto Albán-Gómez: a lawyer, proposed by the Commission and the
representatives, rendered his report on Ecuadorian legislation relating to the
scope of the criminal statutes covering medical malpractice and the
concomitant duties of the judges and the state authorities, in compliance with
the criminal legislation. He stated that in Ecuador there is no legislation on
medical malpractice, except to pinpoint a very specific aspect contained in the
Law on the Rights and Protection of the Patient (Law No. 77, of February 3,
1995). He advised the Court of the existence of several laws and rules
regulating medical conduct, which, in his opinion, are not updated; he noted
that these are of an administrative or disciplinary, rather than criminal,
nature. He made reference to the substantive criminal and criminal procedure
provisions to explain how they operate as far as medical malpractice is
concerned. Furthermore, he explained how the statute of limitations on
criminal prosecution is regulated in Ecuador. Regarding the role of the Medical
Federation and the obligation of physicians to stick to professional solidarity,
as stipulated in the Medical Ethics Code, it could cause the physicians not to
testify against their colleagues. Neither are there specific statutes or
regulations setting forth the duties of the judges and the authorities regarding
medical malpractice. He stated that, in fifteen years, the Supreme Court of
Justice of Ecuador (Corte Suprema de Justicia del Ecuador) has decided only
two medical malpractice judgments. He compared the former and the current
Criminal Procedure Code as to the procedures for processing cases of such
nature. He pointed out that, in case the accused parties have fled from
justice, the State must undertake all necessary procedures in order to locate
them and bring them to stand trial, regardless of whether they be inside the
country or abroad.
B) EVIDENCE ASSESSMENT
Documentary Evidence Assessment
29.
As in previous cases, in the instant case the Court recognizes the evidentiary
value of those documents submitted by the parties at the appropriate procedural
stage which have been neither disputed nor challenged and the authenticity of which
has not been brought into question.14
30.
As regards the documents submitted by the representatives and the State as
evidence outside of the indicated procedural opportunities in accordance with Article
44(1) of the Rules of Procedure, the Court has incorporated them to the body of
evidence, as some of said documents are evidence to facilitate adjudication of the
case,15 based on Article 45(1) of the Rules of Procedure, and others refer to
14
Cf. Case of Velásquez-Rodríguez v. Honduras. Merits. Judgment of July 29, 1988. Series C No. 4,
para. 140; Case of Cantoral-Huamaní and García-Santa Cruz, supra note 13, para. 41; Case of ZambranoVélez et al., supra note 9, para. 37; and Case of Escué-Zapata, supra note 12, para. 25.
15
The representatives submitted the following documents: the documents remitted as appendixes
to the written closing arguments of the representatives, which contain a part of the domestic judicial file