Report No. 46 (2015) IACHR. Petition No. 315-01 (Argentina)

• Petition Number: 315-01
• Report Number: 46
• Respondent State: Argentina
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Cristina Britez Arce

REPORT No. 46/15

PETITION 315-01

REPORT ON ADMISSIBILITY

CRISTINA B.A.

ARGENTINA

OEA/Ser.L/V/II.155

Doc. 26

28 J. 2015

Original: Spanish

Approved by the Commission at its Session No. 2044 held on J. 28, 2015 at its 155^th Period of Session.

Cite as: IACHR, Report No. 46/15, Petition 315-01. A.. Cristina Britez Arce. Argentina. J. 28, 2015.

www.cidh.org

REPORT No. 46/15

PETITION 315-01

REPORT ON ADMISSIBILITY

CRISTINA B.A.

ARGENTINA

JULY 28, 2015

1. SUMMARY

1. On A. 20, 2001, E.M.A. and Vanina Verónica Avaro (hereinafter, “the petitioners”) lodged a petition at the Office of the Secretary General of the Organization of American S.s (hereinafter “OAS”) in Buenos Aires, Argentina, which was received by the Inter-American Commission on Human Rights (hereinafter also the “Commission” or “IACHR”) on May 10, 2001. The petitioners claimed that the Republic of Argentina (hereinafter “the S.”) bore responsibility for alleged violations of the rights enshrined in articles 8 and 25 of the American Convention on Human Rights (hereinafter also the “Convention” or “American Convention”) said to have occurred in the context of judicial proceedings conducted in the domestic courts as a result of the death of their mother, C.B.A. (hereinafter also “the alleged victim”), who was then pregnant at the “Ramón Sarda” Public Maternity Hospital in the city of Buenos Aires.

2. The S. argues that the petition should be declared inadmissible as it did not present a colorable claim of violation under the American Convention. It also argued that domestic remedies had not been exhausted and that the petitioners sought to use the IACHR as a “court of appeal”. The basis for the foregoing was that the judgments in the domestic proceedings were issued by tribunals that acted within their authority and in observance of fair-trial guarantees.

3. H. examined the positions of the parties and the petition’s compliance with the requirements set forth in articles 46 and 47 of the American Convention, the Commission has decided to declare this petition admissible for the purposes of an examination of alleged violations of articles 4, 8, and 25 of the American Convention in connection with article 1.1 of said treaty. It has further decided to notify the parties of this decision, and to publish it and include it in its Annual Report to the OAS General Assembly.

2. PROCESSING BY THE IACHR

4. On A. 20, 2001, the petitioners lodged a petition at the Office of the Secretary General of the OAS in Buenos Aires, Argentina, which was received by the IACHR on May 10, 2001, and registered as number 315-01. On August 11, 2003, the petitioners submitted additional information to the IACHR. On January 3, 2005, the pertinent portions of the petition were relayed to the S. for its comments.

5. The S. presented its reply on J. 19, 2005, and it was transmitted to the petitioners for comment. T. comments were, in turn, sent to the IACHR on M. 30, 2009. On September 22, 2009, the S. presented additional observations and requested that processing of the petition be taken as concluded and that it be set aside. That communication was forwarded to the petitioners for their information on December 3, 2009.

3. POSITIONS OF THE PARTIES

1. The petitioners

6. The petitioners state that on J. 1, 1992, medical malpractice on the part of medical staff at Ramón Sarda Public Maternity Hospital in Buenos Aires caused the death of C.B.A., who was pregnant at the time. The alleged victim reportedly died from preeclampsia-eclampsia which also led to the loss of the fetus due to intrauterine hypoxia. The petitioners explained that as a result of that incident a series of interrelated criminal proceedings were instituted in which they claim not to have had access to an independent and impartial tribunal or to a duly reasoned decision, as detailed below.

1. Criminal proceeding for manslaughter (C. No. 2.391)¹

7. The petitioners say that as a result of the alleged victim’s death, a charge of manslaughter was filed against the physicians who attended C.B.A. at the “Ramón Sarda” Public Maternity Hospital, namely P.C.A. and Eduardo Mario Negri. The petitioners reportedly appeared as plaintiffs in the criminal proceeding.

8. An expert medical opinion was ordered on J. 13, 1992, and introduced into the file a year later, on J. 24, 1993, by forensic experts F.C. and C.F.L.P.. According to the petitioners, the experts had prepared a “false” opinion with the precise intention of covering up the homicide under investigation. The presiding judge allegedly declared the opinion void and, acting ex officio, filed a complaint charging falsification of public documents. That complaint gave rise to the proceeding registered as C. No. 21.375/96, outlined hereinbelow.

9. S., a new expert opinion was requested and presented by the experts H.P. and H.S. on A. 25, 1995, one day before the statute of limitations on criminal action ran. That expert opinion apparently refuted the findings of the first expert opinion and corroborated that the alleged victim had been a “high-risk patient” who had received the wrong treatment, had had to be admitted as a result, and had later died. It was decided, based on the new expert opinion, to charge the physicians with homicide. The petitioners also provided copies of a presentation in which they claimed that the clinical history of the alleged victim had been tampered with during the investigation and that various parts of it had disappeared, including the original of an electrocardiography that reputedly proved that the alleged victim had a heart defect.

10. On December 16, 1998, the prosecutor reportedly indicted the accused physicians and sought penalties of three years’ imprisonment and nine years’ disqualification from the practice of medicine. H., on J. 18, 2003, the court issued a judgment acquitting P.C.A. and E.M.N. of all blame and charges. That decision was upheld on appeal. N., the petitioners say that on December 23, 2003, the date on which they presented an extraordinary federal appeal (locally referred to as “recurso extraordinario federal”), a “maneuver” by the court personnel upon taking receipt of the brief resulted in their being denied timely access to the appeal, which was eventually rejected as “time-barred” on M. 15, 2004.

2. Criminal proceeding for falsification of a public instrument (C. No. 21.375/96)²

11. The ex officio complaint lodged by the judge presiding over the investigation for manslaughter resulted in this case being brought on October 4, 1993. The petitioners reportedly appeared as plaintiffs in this case too.

12. According to the petitioners, the preliminary inquiry stage of this proceeding lasted more than four years, during which time the presiding judge apparently acquitted the accused experts on five different occasions, with the Fourth Chamber of the Criminal Court of Appeals overturning those acquittals each time. After the fourth acquittal was overturned, the judge hearing the case decided, on February 26, 1997, to request an expert opinion from the plenary of the Forensic Medical Corps of the Supreme Court of Justice of the Nation (hereinafter also the “Forensic Medical Corps”). On May 21, 1997, the plenary, comprising 31 professionals, issued its opinion, which found, by a majority of 22 votes in favor and 9 against that the expert opinion prepared by experts F. Casavilla and C.F.L.P. “had been correct;” it also ruled out that medical malpractice had been committed. The dissenting votes determined that the expert opinion under study was false. That plenary opinion led to the fifth acquittal of the accused, which, likewise, was subsequently overturned.

13. According to the petitioners, in the preparation of that plenary opinion a serious act of institutional corruption had occurred that called the Forensic Medical Corps into question—they termed it a “most serious act with unimagined institutional ramifications”; they alleged that a false plenary opinion had been prepared with the aim of concealing the responsibilities of the professionals implicated in the homicide and in the preparation of the previous...