5
on June 14 and 26, 2007, respectively. Accordingly, the Court will not allow them on
the grounds of their late filing.
IV
PARTIAL ACKNOWLEDGMENT OF INTERNATIONAL RESPONSIBILITY
10.
During the public hearing (supra para. 8), the State presented a partial
acknowledgment regarding the violation of the right to a fair trial and of the right to
judicial protection, enshrined in Articles 8 and 25 of the American Convention. It
stated it acknowledged its international responsibility “derived from not having gone
ahead with the procedures for extraditing the resident physician, [Dr. Fabián]
Espinoza[-Cuesta]” (hereinafter, “Dr. Fabián Espinoza-Cuesta” or “Dr. EspinozaCuesta”), one of the accused in the criminal proceedings carried on in its domestic
jurisdiction. Such acquiescence was limited to acknowledging “the facts derived from
the extradition procedures, the negligence [and] the omission in which the Supreme
Court of Justice (Corte Suprema de Justicia) and the Fifth Criminal Judge from
Pichincha (Juez Quinto de lo Penal de Pichincha) incurred by not having acted
towards extraditing the aforementioned doctor in a duly manner on their own
motion, as an obligation of their own.”
11.
The State reaffirmed such statements in its final written arguments, indicating
that such acquiescence did not include either the civil proceedings aimed at having
the medical file exhibited or the criminal proceedings carried out in its domestic
jurisdiction. Furthermore, it expressed it acknowledged as “not having done its duty
to adopt domestic provisions, pursuant Article 2 of the Convention, by not having
enacted a more adequate criminal description to punish physicians who incur in
malpractice.” It also expressed it had the intention to “prepare and back the
enactment of a medical malpractice bill and bills to amend related provisions.”
12.
The Inter-American Commission considered that “the partial acquiescence of
the State must have full effects regarding the facts and the violations accepted by
Ecuador and request[ed] the Tribunal to determine so.” In its closing arguments, it
noted the intention of the State to acquiesce and commended in a positive manner
the commitment it had made to start off “procedures aimed at enacting and
amending criminal descriptions and at training judges” in order to further compliance
with the Convention, as well as the statements the State had made during the public
hearing, wherein it acquiesced to having violated Articles 8 and 25 of the Convention
regarding the negligence of the authorities in carrying on with the extradition of Dr.
Fabián Ernesto Espinoza-Cuesta. Lastly, the Commission pointed out that the State
had not denied the facts of the case in the procedures undertaken before the
Commission or before the Court, and considered that the abovementioned violations
acknowledged by the State were no longer in dispute.
13.
The representatives accepted the partial acknowledgment effected by the
State, but considered it “absolutely insufficient and not made in an attitude of good
faith”, for during seven years State authorities did nothing to find out the
whereabouts of Dr. Espinoza-Cuesta and to have him brought before the pertinent
authorities, and in January 2007 the statute of limitations ran out and the charges
against him lapsed. Such circumstances fostered impunity, both for Dr. EspinozaCuesta himself and for the other treating physician, Ramiro Montenegro-López, who