I/A Court H.R., Case of De La Cruz Flores v. Peru. Merits, Reparations and Coast. Judgment of November 18, 2004. Series C No. 115.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2005-2-e.pdf




The elaboration of criminal categories involves a clear definition of the criminalised conduct, establishing its elements, and the factors that distinguish it from behaviors that are either not punishable or punishable but not with imprisonment.


The principles of legality and non-retroactivity govern the actions of all the State's bodies in their respective fields, particularly when the exercise of its punitive power is at issue.


For the sake of legal certainty, it is necessary that the punitive norm exist and be known, or could be known before the occurrence of the act or omission that violates it, and which it is intended to penalise. The definition of an act as an unlawful act and the determination of its legal effects must precede the conduct of the individual who is alleged to have violated it; before a behavior is defined as a crime, it is not unlawful for penal effects. If this were not so, individuals would not be able to adjust their behavior according to the laws in force, which express social reproach and its consequences. These are the grounds for the principle of the non-retroactivity of an unfavorable punitive norm.


According to the principle of freedom from ex post facto laws, the State may not exercise its punitive power by applying penal laws retroactively that increase sanctions, establish aggravating circumstances or create aggravated types of offenses. The principle is also designed to prevent a person being penalised for an act that, when committed, was not an offense or could not be punished or prosecuted.


Doctors have a right and an obligation to protect the confidentiality of the information to which, as doctors, they have access.


All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. Moreover, the State, which is responsible for detention establishments, must ensure that prisoners are confined in conditions that respect their rights.


The prohibition of torture and cruel, inhuman or degrading treatment is absolute and non-derogable, even in the most difficult circumstances, such as war, threat of war, the fight against terrorism and any other crime, martial law or state of emergency, civil war or commotion, suspension of constitutional guarantees, internal political instability or any other public disaster or emergency.


Prolonged isolation and compulsory incommunication represent, in themselves, forms of cruel and inhuman treatment, harmful to the psychological and moral integrity of the individual and of the right of all those detained to respect for their inherent dignity as human beings. Indeed, isolation from the exterior world produces moral and psychological suffering in the person detained, placing him in a particularly vulnerable situation and increasing the risk of aggression and abuse of power in prisons.


The State has the obligation to provide regular medical examinations and care to prisoners, and also adequate treatment when this is required. The State must also allow and facilitate prisoners being treated by the doctor chosen by themselves or by those who exercise their legal representation or guardianship.


Any violation of an international obligation that has caused harm, gives rise to an obligation to provide adequate reparation for this harm.




On 11 June 2003, the Inter-American Commission on Human Rights brought the case before the Inter-American Court of Human Rights. In its Judgment of 18 November 2004, the Court held that the State violated the principle of legality by convicting Mrs De La Cruz Flores applying a law that did not define the behavior which she had allegedly committed; by not specifying which of the behaviors established in Article 4 of Decree Law no. 25 475 had been committed by the alleged victim in order to be found guilty of the crime; for penalising a medical activity, which is not only an essential lawful act, but which is also the doctor's obligation to provide; and for imposing on doctors the obligation to report the possible criminal behavior of their patients, based on information obtained in the exercise of their profession. Accordingly, the Court held that the rights established in Articles 9 and 5 ACHR, in relation to Article 1.1 ACHR were violated to the detriment of Mrs De La Cruz Flores.


Additionally, the Court held that the detention of Mrs De La Cruz Flores, arising from a trial that culminated in a conviction that violated the principle of legality was unlawful and arbitrary, and the respective proceedings were contrary to the right to a fair trial. Accordingly, the Court considered that Articles 7 and 8 ACHR, in relation to Articles 9 and 1.1 ACHR, were violated to the detriment of Mrs De La Cruz Flores.


Finally, the Court found that Mrs De La Cruz Flores was subjected to cruel, inhuman and degrading treatment due to her being held incomunicado, in unhealthy conditions, and without receiving proper medical care or regular family visits. Thus, the Court found that Article 5 ACHR, in relation to Article 1.1 ACHR, was violated to the detriment of Mrs De La Cruz Flores, Danilo and Ana Teresa Blanco De La Cruz, the victim's children; Alcira Domitila Flores Rosas widow of De La Cruz, the victim's mother; and Alcira Isabel, Celso Fernando and Jorge Alfonso De La Cruz Flores, the victim's siblings.


With regard to reparations, the Court ordered, inter alia, that the State shall observe the right to freedom from ex post facto laws embodied in Article 9 ACHR and the requirements of due process in the new trial of María Teresa De La Cruz Flores; pay damages to the victims; provide medical and psychological treatment to the victim through the State's health services, including the provision of free medication; reincorporate Mrs De La Cruz Flores into the activities that she had been performing as a medical professional in public institutions at the time of her detention; provide Mrs De La Cruz Flores with a grant that allows her to receive professional training and updating; re-enter María Teresa De La Cruz Flores on the respective retirement register; publish in the official gazette and in another daily newspaper with national circulation the section entitled "Proven Facts" and operative paragraphs 1-3 of the declaratory part of this judgment, and pay for costs and expenses.