41
136. Medical malpractice is usually related to the criminal descriptions related to
injuries or homicide.117 It would seem it is not strictly necessary to include specific
criminal descriptions for medical malpractice as long as general descriptions suffice
and adequate rules pertaining to the judicial examination of the seriousness of the
crime, the circumstances in which it was committed and the responsibility of the
perpetrator exist. Notwithstanding, it is the duty of the State to decide the best way
to respond, in this area, to the needs for punishment, since there is no binding
agreement on the formulation of the description as in other cases in which essential
elements of the criminal description, including the accuracy of autonomous
descriptions, have been provided for in international instruments, for example,
genocide, torture, forced disappearance, etc.
137. Regarding the foregoing, the Court takes into account the decision adopted by
the State to review the criminal legislation regarding medical malpractice and to
include the necessary precisions to adequate the system in such a way as to favor
the due realization of justice in this area.
IX
REPARATIONS
(APPLICATION OF ARTICLE 63(1) OF THE AMERICAN CONVENTION)
138. According to the principles of International Law, any violation of an
international obligation which results in damage entails the duty to make proper
reparation for said damage.118 The Court has based its decisions in this regard on
Article 63(1) of the American Convention.119
139. The Court shall analyze the claims related to this matter within the framework
of the acknowledgment of the State (supra paras. 17 and 23), taking into account
the aforementioned considerations on the merits and the violations of the Convention
117
Cf. articles 84 and 94 of the Criminal Code of Argentina; articles 109 y 111 of the Criminal Code
of Colombia; article 117 of the Criminal Code of Costa Rica; article 260 of the Criminal Code of Bolivia;
article 132 of the Criminal Code of El Salvador; article 12 of the Criminal Code of Guatemala; articles 228
and 229 of the Federal Criminal Code of the United Mexican States; article 133 of the Criminal Code of
Panama; article 142 of the Criminal Code of Spain; article 411 of the Criminal Code of Venezuela; and
article 111 of the Criminal Code of Peru.
118
Cf. Case of Velásquez-Rodríguez v. Honduras, Reparations and Costs. Judgment of July 21, 1989.
Series C No. 7, para. 25; Case of Zambrano-Vélez et al., supra note 9, para. 131; and Case of EscuéZapata, supra note 12, para. 126.
119
Article 63(1) of the Convention provides that:
[i]f the Court finds that there has been a violation of a right or freedom protected by
this Convention, the Court shall rule that the injured party be ensured the enjoyment
of his right or freedom that was violated. It shall also rule, if appropriate, that the
consequences of the measure or situation that constituted the breach of such right or
freedom be remedied and that fair compensation be paid to the injured party.