REPORT
Nº 2/01*
I.
SUMMARY
1.
On April 5, 1994, the Inter-American Commission on Human Rights
(hereinafter the “Inter-American Commission,” the “Commission,” or
the “IACHR”) received a petition that Mr. Juan Carlos Bayarri
(hereinafter “the petitioner”) filed against the Republic of Argentina
(hereinafter “the State” or “Argentina”) alleging violation of his
rights to humane treatment (Article 5), to personal liberty (Article 7),
to a fair trial (Article 8) and to judicial protection (Article 25),
recognized in the American Convention on Human Rights (hereinafter the
“Convention” or the “American Convention”).
2.
The petitioner alleges that he was arbitrarily detained on November
18, 1991, without a court order. He
further alleges that he was tortured and, under torture, confessed to
police that he had participated in a number of kidnappings.
The following day, the competent judge issued arrest and search
warrants against him and criminal proceedings were instituted against him
for the commission of several crimes.
The charges were based on statements he made in the confession
given under torture. The
petitioner’s legal attorney and his father, Juan José Bayarri, filed
legal actions alleging these crimes: one case was instituted for unlawful
deprivation of liberty and another for unlawful treatment.
Those cases have been subject to unwarranted delays, and as yet no
final ruling has been delivered. The
petitioner further alleges that he has been incarcerated for more than 8
years. Although he has
applied for release several times, the courts have arbitrarily denied his
application every time. 3.
The State requests that the IACHR declare the case inadmissible on
the grounds that the remedies under domestic law in the criminal case
against Mr. Bayarri have not been exhausted.
The State alleges that the delay in that case is justified.
Rulings in the cases for unlawful deprivation of liberty and for
unlawful treatment are still pending.
The State also alleges that the petitioner’s preventive detention
is warranted on several counts and that the petitioner has failed to
exhaust the remedies under domestic law.
The State also requests that the petition be considered
inadmissible because the facts alleged do not constitute violations of
rights protected under the Convention. 4.
Having examined the instant case, the Commission concludes that it
is competent to consider it and that the petitioner’s allegations
regarding violations of Articles 5, 7, 8 and 25 of the Convention are
admissible under Articles 46 and 47 of the Convention. II. PROCESSING WITH
THE COMMISSION
5.
The Commission forwarded the petition to the State on April 13,
1994. The latter forwarded
its observations in a note dated September 27, 1994.
The petitioner sent his comments on November 4, 1998 and January
18, 1995, and the State submitted its response on March 2, 1995. The
petitioner filed his comments and additional documentary evidence on March
10, June 23 and November 25, 1995. By
note dated February 9, 1996, the State filed its reports with the
Commission. The petitioner
forwarded additional information on March 18, April 13, and July 13, 1996,
and on January 22, 1997. 6.
On July 21, 1998, the IACHR requested specific information from
both the State and the petitioner concerning the various proceedings
instituted in connection with this case.
The petitioner sent the requested information on September 15,
1998. The State requested two
consecutive extensions, the first on September 24 and the second on
October 27, 1998. Both
extensions were granted. The
petitioner supplied additional information on November 11, 1998.
The State sent its observations on December 9, 1998 and April 1,
1999.
On May 4, 1999, the petitioner supplied more information, to which
the State responded on July 2, 1999.
The petitioner provided additional information on July 14, August 9
and October 12, 1999. The
State presented its comments on January 10, 2000.
More information was forthcoming from the petitioner on February
18, May 30, June 1 and July 12, 2000.
On August 13, 2000, the State requested an extension to respond.
Its request was granted. On August 22, 2000, the IACHR forwarded to
the State more information it had received from the petitioner and gave
the State 30 days in which to submit its comments.
The State presented those comments on December 5, 2000, and the
petitioner responded on December 29. III.
POSITION OF THE PARTIES A.
Petitioner
7.
The petitioner recounts that on November 18, 1991, as they were
driving down Avenida Mitre, near the intersection with Calle
Centenario Uruguayo, in the city of Avellaneda, Province of Buenos
Aires, Juan Carlos Bayarri and his father Juan José Bayarri[1]
were stopped by seven federal police officers in civilian dress and taken
to a secret detention facility at the intersection of R.L. Falcón and
Lacarre streets in the Federal Capital.
At that facility, known as “El Olimpo”, Juan Carlos
Bayarri was tortured. He
alleges that he was beaten and subjected to sessions of the “plastic
hood or dry submarine” and bursts of electric shocks.
Under torture and threats against his life and the lives of his
family, Juan Carlos Bayarri confessed to involvement in the commission of
a number of criminal acts, to Precinct Chief Vincente Palo.
8.
The petitioner further alleges that the following day, November 19,
1991, La Plata Federal Court Nº 1 “legalized” the arbitrary
apprehension of Juan Carlos Bayarri and ordered his arrest, which was to
be carried out by officers of the Federal Police Fraud Division.
That decision was handed down by a letter rogatory from Federal
Criminal Examining Court of First Instance Nº 25, which was investigating
the unlawful deprivation of liberty of Mauricio Macri and others.
On November 20, 1991, the petitioner was transferred to the
facilities of the National Police Fraud Division at the Central Police
Department. The petitioner
alleges that the detention was arbitrary because he was in fact
apprehended on November 18, 1991 -not November 19- at the place and time
officially reported.[2] 9.
The petitioner contends that the very same day, November 19, 1991,
his father, after being abandoned on a street, immediately filed a
complaint with the Buenos Aires Provincial Police 4th Precinct,
Sarandí-Avellaneda, and later confirmed that complaint with Zamora
Criminal Court Nº 4, located in the same province, where the case for
unlawful deprivation of the petitioner’s liberty was opened. On December 23, 1991, the petitioner’s court attorney filed
a criminal complaint against members of the Federal Police Fraud Division
charging them with the crimes of unlawful detention and unlawful treatment
of Juan Carlos Bayarri. The
case was instituted in Examining Court Nº 13.
No final decision has as yet been handed down.
10.
The petitioner bases his allegations of torture on the testimony of
medical personnel who had immediate knowledge of his case, and on the
nature of the treatment prescribed for him.[3]
The medical record prepared on November 29 and indicating injury to
the eardrum caused by the torture, disappeared.
11.
The petitioner alleges a delay in performing “routine and
necessary court measures”, such as execution of court decisions
affecting the persons recognized to be and identified as co-authors of the
crimes of unlawful deprivation of liberty and mistreatment.
The inquiries into those crimes began in November and December
1991, respectively. The
petitioner points out that on September 11, 1996, the judge of first
instance decided “to
dismiss, without prejudice,” the case concerning the crimes of unlawful
detention and mistreatment. On
April 1, 1997, Chamber VII of the Federal Appellate Court vacated that
decision with regard to Juan Carlos Bayarri and observed that the
egregious nature of the allegations “is such that the investigation,
which is far from being exhausted, must probe further.”
The examining judge therefore ordered that certain pieces of
evidence be compiled. It was that court’s view that the petitioner’s
version jibed with the version given by his father and by the direct
witnesses to the arbitrary detention: Cándido Martínez, Guillermo
Balmaceda and Noemí Lata de Caamaño. The petitioner points out that
Federal Examining Court Nº 13 has dismissed this case twice because the
many pieces of evidence collected were improperly weighed.
He alleges that the courts’ failure to hand down a final judgment
against the federal police officers was a violation of the petitioner’s
right to judicial protection. 12.
The petitioner further points that the Federal Criminal and
Correctional Court Nº 6 has had him under indictment for more than nine
years, and has still not handed down a final ruling.
This, he argues, is a violation of his guarantee of due process
within a reasonable period of time. To
illustrate the numerous delays in rendering judgment in his case, the
petitioner notes that charges were brought on August 11, 1991, and still
no judgment has been handed down. In
December 1998, the petitioner filed a motion in this case to have his
confession thrown out, but thus far no decision has been made on that
motion. Under Article 8(3) of
the American Convention, a confession obtained under torture has no legal
validity. Despite this, the
State is using the torture-induced confession as evidence against the
petitioner. It is also using
information obtained from two anonymous sources: a document naming the
petitioner as the author of the kidnapping of entrepreneur Mauricio Macri,
and a so-called phone tip supposedly reporting that he was “physically
present in a bar when [by that time] more than 36 hours had passed since
his apprehension and torture.” 13.
The petitioner alleges that his right to be tried within a
reasonable period or be released is being violated by virtue of the fact
that his requests to be released have been repeatedly denied and the
criminal case against him has been dragged out.
He points out that he exhausted the remedies under domestic law
several times over. The first
time, on March 30, 1995, the Federal Appeals Court upheld the ruling of
the lower court that denied the release.
The petitioner filed an extraordinary appeal and that, too, was
denied by the Appellate Chamber on June 22, 1995.
The second time, on January 25, 1996, the Federal Appellate Chamber
upheld the December 18, 1995 decision of Federal Court of First Instance Nº
6, which denied the petitioner’s request for release on the grounds that
the deadline for filing the request had passed.
14.
By the time the petitioner file his third request for release, he
had been in preventive detention for 58 months.
The court of first instance denied that request on September 12,
1996. In that decision, the
court ruled that “the situation of the accused Bayarri has not
substantially changed and evidence is about to be taken.
Therefore, because the conclusion is in sight, the court cannot
justify early release.” The
court of second instance upheld this decision on October 31, 1996, based
on the nature of the crime, the personal circumstances of the accused and
the sentence that the charges carried.
Based on those considerations, the court reasoned, it “can
reasonably assume that were the accused to be released, he would evade
court action.” 15.
The petitioner alleges that he exercised his option for oral
proceedings, an option allowed under the new Code of Criminal Procedure,
Law 23.984, but that the judge denied his arguments in the aforementioned
decision. He alleges that the
judge has no legitimate reason to conclude that if released he would evade
court action and turn his back on eight years of court suits.
Nor is there any chance that he might intimidate some witness,
because he had gone through only one line-up.
In that line-up, only one of the victims identified him, but then
failed to show up to make his statement once the evidentiary phase of the
case was underway. The
petitioner therefore argues that it is senseless to infer that he might
intimidate someone else. The
fourth request for release was presented on January 9, 1997, and denied by
the court of first instance the next day.
On March 6, 1997, the corresponding Court of Appeals upheld the
lower court’s decision.
B.
The State
16.
The State alleges that the case is inadmissible for the following
reasons. First, where the
arrest is concerned the State notes that “according to the case records,
the petitioner was in fact detained on November 19, 1991, at Pedro de
Mendoza and Ministro Brin in the Federal Capital.”
It further points out that on December 20, 1991, the arrest of Juan
Carlos Bayarri, retired Argentine Federal Police Sergeant First Class, was
changed to temporary detention pending trial, on the grounds that “he is
considered, prima facie, to be
guilty of five counts of criminal conspiracy, kidnapping and extortion.” The commission of these crimes was allegedly admitted under
questioning, confirming a court deposition. 17.
The State reports that the case instituted charging that the
petitioner was unlawfully deprived of his liberty is now with Criminal and
Correctional Court Nº 4 of the Lomas de Zamora Judicial Department of the
Province of Buenos Aires. On May 7, 1997, the case was dismissed without prejudice.
The prosecutor appealed that ruling and requested that the
evidentiary measures requested by the aggrieved private party be taken.
The competent Appeals Court granted that petition. On orders from
the judge, the case is now in full progress, after having been delayed by
procedural defects whereby there was no aggrieved party in the case.[4] 18.
With regard to the allegation of torture, the State maintains that
the report on the medical examination done of Bayarri at the time of his
detention makes no reference to a perforated eardrum.
It also contends that these allegations were not reported to the
judge who presided over the inquiry.
The State also argues that the remedies under domestic law have not
been exhausted in the matter of the alleged torture, inasmuch as cases
brought by the petitioner are being heard by court authorities who have no
association to the proceedings prosecuting the crimes for which the
petitioner was deprived of his liberty. According to the State, it cannot be taken as proven fact
that the petitioner was tortured or that any torture is attributable to
the State. On December 9,
1998, the State presented information in connection with the case
involving unlawful treatment–mistreatment or torture-being heard by
Federal Criminal Court of First Instance Nº 13, which on July 6, 1998, at
the request of the Public Prosecutor’s Office, had ordered that the case
be dismissed. The pretrial
proceedings were moved to Chamber VII of the Federal Appeals Court by
virtue of the appeal that the petitioner filed as plaintiff in the case.[5]
19.
With regard to the delay in the proceedings on the criminal case
being heard by Criminal and Correctional Court Nº 6, where the petitioner
is charged with several crimes, the State argued that the proceedings are
now in full progress and that the ruling of first instance has not been
delivered. On December 19,
1994, the plenary phase began with the prosecutors’ formal writ of
indictment, which was amplified on December 27, 1995.
On September 16, 1996, the evidentiary phase of the proceedings got
underway. The State argues
that there were difficulties with the preliminary phase of the criminal
proceedings. One was the fact
that the inquiry was transferred from the Federal Capital’s Examining
Court Nº 25, where it began in August 1991, to Federal Court Nº 6. That
change was ordered by the Federal Appeals Court as a result of a motion
filed by one of the defendants alleging that the judge presiding over the
case was not competent. The
State also argued that given that the case involved ten defendants and
because of the nature of the crimes charged, prosecution of this case was
very complex. 20.
Concerning the right to be brought to trial within a reasonable
time period or to be released, in its initial responses the State argues
that for purposes of application of Article 7(5) of the Convention,
exhaustion of the remedies under domestic law refers to the remedies
available to appeal the reasonableness of the detention, not the
consideration of the merits of the case.
The State reports that on March 30, 1995, the Federal Appeals Court
upheld the lower court ruling denying the petitioner’s first request for
release; on June 22, 1995, the corresponding chamber dismissed the
extraordinary appeal filed by the petitioner.
The State alleges that the second time the petitioner requested
release, his petition was denied on the grounds that it was filed late.
The State reports that the corresponding court of first instance
denied the petitioner’s third petition for release on September 12,
1996, a ruling then upheld by the higher court on
October 31, 1996. That court
then held that if the petitioner’s situation had changed since the time
his request for release was denied on September 12, 1996, then he would
have to again exhaust the remedies under domestic law under Article 46 of
the Convention. Finally, the
State argues that the last request for release was presented on January 9,
1997, and denied by a ruling of the court of first instance the following
day. That ruling was upheld
by the court of second instance on March 6, 1997.
Since then, the State alleges, the petitioner has not availed
himself of any other mechanism available to him to exhaust the remedies
under domestic law. On
December 5, 2000, the State argued that the petitioner had not exhausted
all the legal mechanisms that the law provides to appeal the decisions
denying his first, third and fourth petitions for release, specifically
the federal remedy provided under Law 48, whereby the highest court in the
land could decide the matter. 21.
In regard to the case in which the petitioner was charged with a
number of crimes, the State argues that the following factors have to be
considered: a) the petitioner’s is a very complex case because there are
a number of defendants, all charged with various counts of kidnapping for
purposes of extortion, one of which ended in a death; b) significant
headway has been made in the investigation; there is an indictment, and
the respective volumes of evidence are being processed; c) the case is
being prosecuted in accordance with the Code of Criminal Procedure, Law
2372. According to the State,
the defendants had the option of choosing oral proceedings, an option
allowed under the new Code of Criminal Procedure, Law 23.984.
By agreement with the other defendants and to have the same defense
tactic, the first defendant to appear opted to be prosecuted under the
earlier Code and thus sealed the fate of the other defendants, one of whom
was the petitioner, thus making any allegations regarding a delay in the
proceedings relative; d) under Argentina’s system for written and oral
criminal proceedings,
there are effective remedies to challenge an unwarranted delay in
rendering judgment. One such remedy is the complaint, which is an extraordinary,
summary proceeding of which the petitioner has never availed himself.[6]
22.
In the instant case, the State argues that the “reasonableness of
the petitioner’s detention” has been established and that the
preventive detention pending trial that was ordered and maintained is not
a violation of Article 7(5) of the Convention.[7]
As for the duration of the detention, the State alleges that: a)
the decisions denying the petitioner’s requests for release, decisions
upheld on appeal, were based not on the length of time of incarceration
but on other considerations and the personal circumstances of the
petitioner, such as the number and gravity of the crimes with which he is
charged, the danger that the commission of those crimes posed and the fact
that as a senior noncommissioned officer of the Argentine Federal Police,
he used knowledge and means obtained as a police officer to commit the
crimes; b) under Article 10 of Law 24.390, persons accused of crimes that
carry penalties or are committed under aggravating circumstances
equivalent to those cited in paragraphs 7 to 11 of Law 23.737 may be
disqualified.[8]
According to the indictment, this exception would apply in the
petitioner’s case.[9]
Article 11 of Law 23.737 would also apply in his case, since one of
the persons kidnapped for purposes of extortion was a minor under the age
of 18; c) the crimes with which the petitioner was charged were such that
they had a profound impact upon the country.
The sense of defenselessness they created within the population was
reminiscent of the former military dictatorship and was mirrored in the
newspapers and magazines released during that period.
Hence, according to the State, preventive detention pending trial
was based on a reasonable suspicion that the petitioner could take flight
or obstruct justice by intimidating witnesses, whose personal safety also
had to be assured.
23. The State
points out that not all remedies under domestic law have been exhausted,
since judicial proceedings that concern the petitioner are still in
progress. For that reason,
the State argues, the petition should be considered inadmissible under
Article 46 of the Convention. IV.
ANALYSIS ON ADMISSIBILITY A.
Competence of the Commission ratione
materiae, ratione personae, ratione
temporis and ratione loci
24.
The Commission is competent to examine the petition filed by the
petitioner. The petitioner
contends that the State violated rights recognized in Articles 5, 7, 8 and
25 of the Convention. The
facts alleged in the petition would have affected persons subject to the
State’s jurisdiction at a time when the obligation to respect and
guarantee the rights recognized in the Convention was already binding upon
the State.[10]
B.
Other admissibility requirements a.
Exhaustion of the remedies under domestic law
25.
Under Article 46(1)(a) of the Convention, for a petition lodged
with the Commission to be admissible, “the remedies under domestic law
[must] have been pursued and exhausted in accordance with generally
recognized principles of international law.” Article 46(2) of the
Convention sets forth three specific hypotheticals wherein the rule of
prior exhaustion will not apply: a) the domestic legislation of the state
concerned does not afford due process of law for the protection of the
right or rights that have allegedly been violated; b) the party alleging
violation of his rights has been denied access to the remedies under
domestic law or has been prevented from exhausting them, or c) there has
been an unwarranted delay in rendering a final judgment under the
aforementioned remedies. 26.
While the three exceptions are closely related to the determination
of possible violations of rights and guarantees recognized in the
Convention--among them the right to due process of law within a reasonable
period of time and the right to judicial protection, recognized in
Convention Articles 8 and 25--,[11]
the Commission considers that Article 46(2), by its very nature and
purpose, is an autonomous norm vis-à-vis
the rights and guarantees recognized in the Convention. Consequently, the Commission’s practice has been to examine
the question of exhaustion of domestic remedies separately, before going
into the merits of the case. The
standards it uses to gauge whether those exceptions are present are
different from the standards used to determine whether violations of the
rights and guarantees have occurred.
For purposes of admissibility, the standard of analysis used for
the prima facie assessment of the adequacy and effectiveness of the
remedies under domestic law is not as high as the one required to
determine whether a violation of Convention-protected rights has been
committed. 27. To determine
whether a remedy is “adequate” and, by extension, whether there is a
probability that relief for the violations claimed by the alleged victim
will be granted, the Commission must examine whether that remedy is set
forth in the domestic laws in such a way that it can be used to remedy the
violations being alleged. Here, the IACHR need not determine a priori whether the allegations have any foundation or can be
characterized as or constitute violations of the Convention.
Instead, it has to assume that probability, albeit on a strictly
provisional basis, as a kind of working hypothesis.
Using this criterion, the Commission must determine whether one or
more of the remedies mentioned is or are relevant for purposes of Article
46(1)(a) of the Convention,[12]
and whether there is some special circumstance present that would exempt
the alleged victim from having to exhaust those remedies.[13]
When examining the exception provided for in Article 46(2)(b) of
the Convention, where the domestic laws make no provision for due process
to protect the right allegedly violated,[14]
the standard for the prima facie
assessment of whether such remedy exists is not as high as the standard
required to determine whether the right to effective remedy provided for
in Article 25 of the Convention has been violated. 28. When examining
the exception provided for in Article 46(2)(c) of the Convention, which
concerns an unwarranted delay in rendering a final judgment on the
adequate remedies invoked, the standard for the prima
facie assessment of that delay is not as high as the one required to
determine whether the right to due process within a reasonable period of
time, recognized in Article 8(1) of the Convention, has been violated.
There, the Inter-American Court has required that different
criteria be considered: the conduct of the defendant, the complexity of
the case, the conduct of the State. However,
those criteria are not factored in when the admissibility of a case or a
petition is examined.[15]
The same can be said of the exception provided for in Article
46(2)(b) of the Convention, for cases in which the party whose rights have
been violated is not given access to the remedies under domestic law or is
prevented from exhausting them.[16]
29. As the
Commission has repeatedly stated, the decision on the admissibility of a
case involving a Convention Article 46(2) exception to the rule requiring
exhaustion of domestic remedies, does not imply a prejudgment of the
merits. Quite the contrary,
such a determination is very much to the purpose of the system for the
international protection of rights since otherwise the rule of prior
exhaustion would invariably detain or delay any proceeding on the
victim’s behalf to the point that it became futile.
That is why Article 46(2) of the Convention establishes exceptions
to the rule of exhaustion of domestic remedies, precisely in situations
where, for various reasons, those remedies are ineffective or inadequate.
The practice of the Commission and of other international
organizations for the protection of human rights confirms that the timing
of the decision on the exceptions to the rule of exhaustion of domestic
remedies depends upon the circumstances of each specific case.
Where the decision on the admissibility of the present case is
concerned, the Commission sees no reason why its analysis of the rule
requiring exhaustion of remedies under domestic law and the exceptions to
it should be postponed until a later stage in the process, such as when
the merits of the case are examined.[17]
30. As for the
distribution of the burden of proof for establishing whether the rule
requiring exhaustion of local remedies has been met, the Commission
reiterates that a State alleging non-exhaustion has an obligation to prove
that domestic remedies remain to be exhausted and that they are effective.[18]
If the State alleging the failure to exhaust local remedies proves
that there are domestic remedies that should have been used, the
petitioners will have to show that those remedies were exhausted or that
one of the exceptions provided for in Article 46(2) of the Convention
obtains. The Inter-American
Court has ruled that “It must not be rashly presumed that a State Party
to the Convention has failed to comply with its obligation to provide
effective remedies.”[19] 31.
In the instant case, the petitioner alleges that under the exception
provided for in Article 46(2)(c) of the Convention, he is exempt from the
rule requiring exhaustion of local remedies because of procedural delays
in the following: a) the case prosecuting the petitioner’s unlawful
treatment; b) the case prosecuting the unlawful deprivation of liberty of
the petitioner;[20]
and c) the case in which the petitioner, Juan Carlos Bayarri, is charged
with various crimes. The
State notes that the remedies under domestic law have not been exhausted
in any of these cases. It
argues that the first two are still in progress, and that the delay in the
third case is justified on several counts. On December 5, 2000, the State alleged that the petitioner
had not filed the remedies that domestic law affords. Thus, even though this case was instituted in 1994, it was
not until December 2000 that the State alleged the petitioner’s a
failure to file the petition of complaint to challenge the courts’ delay
in rendering a final judgment. Also,
while the most recent petition for release was exhausted in 1997 with the
ruling of the Appellate Chamber, it was only then that the State brought
up the failure to exhaust the extraordinary appeals.
The State’s reference to those remedies is vague.
It neither cites the specific applicable norms nor defends the
adequacy and effectiveness of those remedies under domestic law. The IACHR
will now examine whether the petitioner met the requirement stipulated in
Article 46(1)(a) or if the exceptions provided for in Article 46(2) of the
Convention apply. 32.
The IACHR will examine the various court cases that the petitioner
in the instant case cites. First,
the petitioner alleges that there has been an unwarranted delay in the
criminal cases for unlawful treatment and unlawful deprivation of liberty,
in which the petitioner is seeking relief for alleged violations of
Articles 5 and 7 of the Convention, and in which no final decision has
been rendered thus far. The
State, for its part, argues that the remedies under domestic law have not
been exhausted precisely because those cases are still in progress.
The Commission considers that the more than nine years that have
elapsed since those cases were first instituted in 1991, constitutes prima
facie an unwarranted delay in those criminal proceedings. The hypothetical set forth in Article 46(1)(a)
of the Convention has thus materialized.
Hence, the rule set forth in Article 46(1)(a) of the Convention
requiring exhaustion of domestic remedies does not apply. 33.
Second, the petitioner alleges that the criminal case being
prosecuted before Federal Criminal and Correctional Court of First
Instance Nº 6, in which the petitioner is charged with several crimes,
violates Article 8(1) of the Convention because of the unwarranted delay
in rendering a final judgment. The
State, for its part, argues that the delay is justified for several
reasons and contends that the petitioner has not exhausted the remedy of
complaint to challenge the court’s delay in rendering a judgment.
While the State does not cite the specific norm or the law that it
is asserting, the IACHR assumes it is referring to the remedy of complaint
stipulated in Article 514 of the Code of Criminal Procedure (Law 2372 of
1888), which was in effect at the time the events transpired.[21]
Even if this is the norm that the State is trying to invoke, it
does not specify how this remedy is adequate or how it might have been
effective in redressing the violation alleged by the petitioner.
The IACHR reiterates that the State alleging failure to exhaust
remedies under domestic law bears the burden of proving that the remedies
that it believes should have been exhausted are both adequate and
effective (see paragraph 30 ut
supra). The failure to
discharge this burden of proof is sufficient to quash the State’s
argument of a failure to exhaust domestic remedies.
Hence, the question of whether, according to the principles cited
in paragraph 27 ut
supra, those remedies are
adequate and effective to remedy the violation alleged by the petitioner,
is academic and need not be examined.
Consequently, the Commission finds that the exception provided for
in Article 46(2)(a) of the Convention applies.[22] 34.
The petitioner also alleges that Article 8(3) was violated inasmuch
as the statement made to police under torture was taken into consideration
in the inquiry investigating his responsibility for various crimes.
The petitioner has stated that in the criminal case
being prosecuted in Federal Criminal and Correctional Court of First
Instance Nº 6, in which the petitioner is charged with various crimes,
the petition he filed in December 1998 to retract his confession has still
not been decided. The State has remained silent on this point, and has not
asserted a failure to exhaust domestic remedies in respect of this right. Hence, it can be assumed to have tacitly waived its objection
asserting failure to comply with this requirement. The Commission believes, moreover, that the fact that more
than two years have passed since that petition was filed constitutes prima
facie an unwarranted delay. Therefore,
because the hypothetical situation posited in Article 46(2)(c)
is present, the rule set forth in Article 46(1)(a) of the Convention,
which requires exhaustion of remedies under domestic law, does not apply.
35.
Third, with regard to the right to be brought to trial within a
reasonable period of time or to be released, in the petitioner’s
original submission to the IACHR he alleged that he had been incarcerated
since November 18, 1991, which he argued was an unreasonable period and
thus a violation of Article 7(5) of the Convention.
In its reply, the State alleged that the petitioner had not
petitioned for release in the domestic courts. It also pointed out that
for purposes of Article 7(5) of the Convention, exhaustion of domestic
remedies refers to remedies available to challenge the reasonableness of a
detention, not to examine the merits of a case.
It further asserted that “the denial of the benefit of release is
not final inasmuch as it does not preclude the possibility of review when
requested by the party.”
36.
Later, during the processing of the case with the Commission, on
several occasions the petitioner reported that he had applied for release
on “personal recognizance” based on Articles 379, subparagraph 6,
under Article 701 of the Code of Criminal Procedure because the time
period stipulated in Articles 1 and 7 of Law 24,390 had expired.[23]
The courts denied all his petitions seeking release.
In previous cases, the Commission has found that a request for
release based on lack of grounds to justify continued preventive detention
is an effective remedy against protracted preventive detention.[24]
The
following is a narrative of the various occasions when Mr. Bayarri availed
himself of that remedy and the State’s position thereon. i.
The first time, the parties informed the Commission that on March
30, 1995, the Federal Appeals Chamber upheld the lower court’s ruling
that denied the petition for release. The extraordinary appeal that the petitioner filed was also
denied by the Appellate Court on June 22, 1995.
On December 5, 2000, the State alleged that the petitioner had not
exhausted the federal remedy provided for in Law 48 whereby the highest
court in the land would decide the matter. ii.
The second time he applied for release, the parties informed the
Commission that on December 18, 1995, the magistrate on the bench of
Federal Criminal and Correctional Court of First Instance Nº 6 of the
Federal Capital denied the request for release. On January 25, 1996, the Federal Criminal and Correctional
Appellate Court dismissed the appeal filed by the defense on the grounds
that it was filed late. By
note of February 10, 1996, the State alleged that a reading of the
decision reveals that “while the judge does not accept the defense’
argument regarding release based on an interpretation of Law 24.390, it is
also true that he does not rule out the application of the law when
appropriate.” The State
points out that the legal norm stipulates that every day of preventive
detention will be double counted when said detention exceeds a period of
two to three and a half years, depending on the case concerned.
On December 5, 2000, the State alleged that the petitioner’s
appeal had been denied on the grounds that the deadline had passed. iii.
On September 23, 1998, the petitioner alleged that the Court of
First Instance had arbitrarily denied another request for release on
September 12, 1996.
On October 31, 1996, the corresponding Appellate Court upheld the
lower court’s ruling. On
December 9, 1998, the State alleged
that if the petitioner believed that his situation had changed since the
time his petition for release had been denied, then he should exhaust the
remedies under domestic law, in accordance with Article 46 of the
Convention. Concerning this
remedy, on December 5, 2000, the State alleged that the petitioner had
failed to exhaust the federal remedy provided for in Law 48, allowing the
highest court in the land to decide the matter. iv.
On August 9, 1999, the State informed the Commission that the
petitioner had filed his most recent application for release on January 9,
1997, which the court of first instance denied the following day.
The court of second instance upheld the lower court’s ruling on
March 5, 1997. The State has
also alleged that the petitioner did not exercise another remedy available
to him to exhaust remedies at the federal level.
On February 17, 2000, the State alleged that if the petitioner felt
that his situation had changed since his application for release was
denied on September 12, 1996, then he had to exhaust the remedies under
domestic law in accordance with Article 46 of the Convention.
Concerning this remedy, on December 5, 2000 the State alleged that
the petitioner had not exhausted the federal remedy provided for in Law
48, whereby the highest court in the land would decide the matter.[25] 37.
As this process has unfolded, the State has consistently maintained
that the remedies under domestic law have not been exhausted.
The second time the petitioner exhausted the remedy of release, the
parties both concluded that the appeal was denied for late filing; in
other words, it was denied because it did not fulfill the procedural
requirement that remedies be filed within the time periods stipulated in
the Argentine laws applicable in the case.
The IACHR believes that the remedies under domestic law have not
been exhausted in the sense understood in Article 46(1)(a) of the
Convention, when a remedy has been declared inadmissible because it did
not satisfy the procedural filing requirements that the domestic law
stipulates.[26] Moreover, the case does
not reveal any particular circumstances that would acquit the petitioner
of the obligation to file his petitions in timely fashion, in accordance
with generally recognized principles of international law. Therefore, the
petitioner did not exhaust this second petition for release in accordance
with the provisions of Article 46(1)(a) of the Convention. 38.
In the case of the first, third and fourth remedies the petitioner
filed, the State alleged that he did not file the federal remedy provided
in Law 48, whereby the highest court of the land would decide the matter.
The IACHR notes that the State does not indicate the specific
provision of Law 48 it is invoking; however, the IACHR believes that the
State is alluding to the federal remedy to which Articles 14 and 15 of
that law refer, which allows access to the Supreme Court in very precise,
exceptional circumstances.[27]
In earlier cases, the Commission has acknowledged that in certain
circumstances, extraordinary appeals can be adequate remedies that must be
exhausted.[28]
However, whether or not these are the provisions that the State
seeks to invoke, the Commission notes that the State has not explained how
they would be adequate and effective remedies to redress the violation
alleged by the petitioner.
In effect, the Commission is reiterating that the State invoking a
failure to exhaust domestic remedies bears the burden of proving the
adequacy and effectiveness of the remedies that it believes must be
exhausted (see paragraph 30 ut supra).
Consequently, the Commission believes it is unnecessary to examine
whether the remedies invoked by the State are adequate and effective to
remedy the violation alleged by the petitioner according to the principles
set forth in paragraph 27 ut supra.
The Commission concludes that with the judgments of the
corresponding appeals courts that reviewed the petitions that the
petitioners filed on June 22, 1995, October 31, 1996 and March 6, 1997
seeking his own release, the petitioner has complied with the rule
requiring exhaustion of local remedies, provided for in Article 46(1)(a)
of the Convention with respect to the right to be tried within a
reasonable period or to be released.
b.
Deadline for filing
39.
Article 46(1)(b) of the American Convention provides that for a
petition to be admitted, it must be “lodged within a period of six
months from the date on which the party alleging violation of his rights
was notified of the final judgment."
Under Article 46(2)(c), that requirement will not apply when
“there has been unwarranted delay in rendering a final judgment under
the aforementioned remedies.”
40.
In the preceding section, the Commission concludes that the Article
46(2)(c)
exception to the rule requiring exhaustion of the remedies under domestic
law applies in the following cases: a) the
criminal case instituted against the petitioner for commission of a number
of crimes; b) the inquiry being conducted to ascertain the responsibility
for the alleged torture; c) the inquiries concerning the petitioner’s
preventive detention pending trial, and d) the motion the petitioner filed
to retract his confession. In
view of the circumstances herein examined, the Commission considers that
the six-month time period established in the Convention for filing a
petition does not apply on this point.
Concerning the criminal case being prosecuted in Federal Criminal
and Correctional Court Nº 6, wherein Mr. Bayarri is charged with a number
of crimes, the Commission has concluded that the exception provided for in
Article 46(2)(a) applies, which means that the rule set forth in
Article 46(1)(b) of the Convention does not apply.[29]
41. Concerning the
petitioner’s allegation of his protracted preventive detention without a
final judgment, the Commission observes that the Court authorities handed
down final judgments on several occasions since the petitioner lodged his
petition with the Commission. The IACHR notes that the parties themselves mention the
decisions the Argentine courts handed down on June 22, 1995, October 31,
1996, and March 6, 1997, wherein requests for release were denied. The Commission further notes that by those dates, the case
was already in process with the Commission.
Therefore, the deadline requirement established in Article 46(1)(b)
of the Convention has been satisfied.
c.
Duplication of proceedings and res judicata
42.
Under Article 46(1)(c), one requirement
for the admissibility of a communication or petition is that the subject
is not pending in another international proceeding for settlement.
Further, under Article 47(d) of the Convention, any petition shall be
considered inadmissible when it is substantially the same as one
previously studied by the Commission or by another international
organization. Neither of the
hypotheticals posited in those articles is present in the instant case.
The parties have neither alleged nor proven that the subject matter
before the Commission is pending with another international arrangement
for settlement or has been decided by some other international
organization. Nor is the
petition substantially the same as one already studied by the Commission
or another international organization. Hence, the Commission concludes that the petition satisfies
those requirements. d.
Characterization
of the facts 43. Article
47(b) of the Convention provides that the Commission shall consider
inadmissible any petition or communication that “does not state facts
that tend to establish a violation of the rights guaranteed by this
Convention.” In the instant case, the petitioner alleged that the following
Convention provisions were violated: a) Article 5, by virtue of the fact
that the petitioner was tortured; Article 7(1) and (2), by virtue of the
fact that police authorities unlawfully deprived the petitioner of his
liberty on November 18, 1991. The petitioner alleges that his arrest was
arbitrary, as it was recorded as having occurred the following day,
November 19, 1991; b) Articles 8(1) and 25 of
the Convention, because the cases for his unlawful treatment and unlawful
deprivation of his liberty and the case in which he is charged with
several crimes began between November and December 1991 and approximately
nine years have passed with no definitive judgment being rendered in any
of the three; c) Article 7(5) because he has been subjected to protracted
and unreasonable preventive detention pending trial in the case against
him; d) Article 8(3) because the statement he made to police under torture
has been taken into consideration in the proceedings wherein his
responsibility for various crimes is being investigated.
After examining the parties’ positions, the IACHR considers that
the facts alleged could constitute violations of the Convention.
Consequently, the Commission concludes that the petition satisfies
the requirement set forth in Article 47(b) of the Convention.
V.
CONCLUSIONS
44.
The Commission concludes that it is competent to consider this case
and that, based on the preceding analysis, the petitioner’s allegations
relative to Articles 5, 7, 8 and 25 of the Convention are admissible under
Articles 46 and 47 of the Convention.
45. Based on the
foregoing arguments of fact and of law, and without prejudging the merits
of the case, THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,DECIDES:
1. To declare the
present case admissible, with regard to the petitioner’s allegations of
violations of Articles 5, 7, 8 and 25 of the American Convention. 2.
To notify the parties of this decision.
3. To continue
with the analysis of the merits of the case.
4. To publish this
decision and include it in its Annual Report to the OAS General Assembly. Done and signed at the headquarters of the Inter-American Commission on Human Rights in the city of Washington, D.C., on the 19th day of January in the year 2001. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; and Commission members Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo. [ Table of Contents | Previous | Next ] *
The second Vice Chairman, Juan E. Méndez, an Argentine national, did
not participate in the discussion and decision on this report, in
keeping with Article 19(2)(a) of the Commission’s Regulations. [1]
While the petitioner mentions actions committed against his father,
such as the fact that he was unlawfully detained at the same time as
the petitioner was and then released the next day, he does not make
any case for a violation of the Convention. [2]
The petitioner sent the Commission a copy of a statement made by
Guillermo Balmaceda, an immediate witness to the events, and a copy of
the memorandum where Federal Examining Magistrate Nº
25, Mario Norberto Bonifati, heading up the investigation into the
abduction of Mauricio Macri et al., informed the magistrate
overseeing the inquiry into the petitioner’s unlawful deprivation of
liberty that the petitioner “has been in custody since November 18,
1991, at Unit 16 of the Federal Penitentiary Service, by order of this
court, indicted on multiple counts of criminal conspiracy and
kidnapping for purposes of extortion.”
He also supplied a copy of the report dated November 21, 1991,
prepared by the Office of the Clerk of La Plata Federal Court Nº 1,
and intended for Judge Bonifatti.
That report states that no action could be taken on the letter
rogatory of November 19, 1991, ordering the apprehension of Juan
Carlos Bayarri, because the individual in question “was already in
custody.” [3]
The petitioner sent the Commission copies of the medical
prescriptions. [4]
The State is citing Article 87 of the Criminal Procedural Code of the
Province of Buenos Aires. [5]
Case file 6.306 was added to this case ad
efectum videndi et probandi.
Case file 6.306 contains the decision on the petition of habeas corpus filed by the petitioner’s father on November 19,
1991, which was denied on November 26, 1991, on the grounds that it
was inadmissible because the petitioner was in custody by order of a
court in another jurisdiction. [6]
"The petition of complaint may be filed: 1) when the judge denies
the petitions of appeal and nullification, or only the petition of
appeal, which must be done by court order; 2) when the legal time
limits are allowed to lapse without the pertinent decision being
issued, provided none of the cases in which the delay causes automatic
loss of jurisdiction obtains; or 3) when pending proceedings in the
circumstance provided for in Article 442 have not been ordered.”
Article 514 of Argentina’s Code of Criminal Procedure (1888
Law 2372). [7]
The State cites Report Nº 12/96, Argentina, case 11.245, March 1,
1996, IACHR, paragraphs 69 and 70. [8]
Article 10 of Law 24.390 (Official Gazette 22/11/94) states that:
“Those charged with the crime provided for in Article 7 of Law
23.737 and those to whom the aggravating circumstances provided for in
Article 11 of that law apply shall be expressly precluded from the
scope of the present law.” [9]
The State is citing the indictment: “That he is charged with four
counts of criminal conspiracy and kidnapping for purposes of
extortion, in combination with the crime of concealing a person for
the purpose of forcing the victim or a third party to do or tolerate
something against his will; in one case, the kidnapping resulted in
the death of the victim. The prosecutor is therefore seeking a sentence of life
imprisonment, absolute and life-long disqualification and the other
penalties that the law allows.” [10]
The instrument of ratification was deposited with the General
Secretariat of the Organization of American States on September 5,
1984. [11]
The Inter-American Court of Human Rights has held that: “Under [the rule of prior exhaustion of domestic remedies],
States Parties have an obligation to provide effective judicial
remedies to victims of human rights violations (Art. 25), remedies
that must be substantiated in accordance with the rules of due process
of law (Art. 8(1)), all in keeping with the general obligation of such
States to guarantee the free and full exercise of the rights
recognized by the Convention to all persons subject to their
jurisdiction (Art. 1). Thus,
when certain exceptions to the rule of non-exhaustion of domestic
remedies are invoked, such as the ineffectiveness of such remedies or
the lack of due process of law, not only is it contended that the
victim is under no obligation to pursue such remedies, but,
indirectly, the State in question is also charged with a new
violation. Thus, the
question of domestic remedies is closely tied to the merits of the
case.” See: Velásquez Rodíiguez Case, Preliminary
Objections, Judgment of June 26, 1987, Series C Nº 1, para. 91 and
Inter-American Court of Human Rights, Judicial Guarantees in States of
Emergency (Arts. 27.2, 25 and 8 of the American Convention on Human
Rights), Advisory Opinion OC-9/87 of October 6, 1987, Series A Nº 9,
par. 24. [12]
The Inter-American Court of Human Rights has ruled that adequate domestic remedies are those “which are suitable to
address an infringement of a legal right.
A number of remedies exist in the legal system of every
country, but not all are applicable in every circumstance.
If a remedy is not adequate in a specific case, it obviously
need not be exhausted. A
norm is meant to have an effect and should not be interpreted in such
a way as to negate its effect or lead to a result that is manifestly
absurd or unreasonable.” Inter-American
Court of Human Rights, Velásquez Rodríquez Case, Judgment of July 29, 1988, Series C Nº
4, paragraphs 63 and 64. Godínez
Cruz Case,
Judgment of January 20, 1989, Series C Nº 5, paragraphs 66 and 67; Fairén
Garbi and Solís Corrales
Case, Judgment of March 15, 1989, Series C Nº 6, paragraphs 87
and 88; Caballero
Delgado y Santana
Case, Preliminary Objections, Judgment of January 21, 1994, Series
C No.17, par. 63; Exceptions to the Exhaustion of Domestic Remedies
(Art. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human
Rights), Advisory Opinion OC-11/90 of August 10, 1990, Series A Nº
11, par. 36. As an example of an “inadequate” remedy, the
Inter-American Court of Human Rights has expressly stated that “a
civil proceeding specifically cited by the Government, such as a
presumptive finding of death based on disappearance, the purpose of
which is to allow heirs to dispose of the estate of the person
presumed deceased or to allow the spouse to remarry, is not an
adequate remedy for finding a person or for obtaining his liberty.”
See: Velásquez Rodríquez Case, Judgment of July 29, 1988, Series C Nº
4, paragraph 64. The
IACHR has stated that certain remedies are not “adequate” to
remedy the violations being alleged.
In Report Nº 71/00, case 11.676,”X”
and “Z”, Argentina, decision of October 3, 2000, par. 31, the
Commission stated that “with regard to the complaints that the
petitioner filed in criminal court, the IACHR notes that they referred
to the possibly criminal conduct on the part of public officials [and]
would not have constituted a remedy for the alleged violations having
to do with her daughter’s return to Spain.” In Report Nº 57/00, Case 12.050, La Granja, Ituango, Colombia, decision of October 2, 2000, par. 41,
the Commission stated that “disciplinary proceedings do not meet the
obligations established by the Convention in the area of judicial
protection, since they are not an effective and sufficient means for
prosecuting, punishing, and making reparation for the consequences of
the extrajudicial execution of persons protected by the Convention.
Therefore, in the context of this case, the disciplinary
measures cannot be considered remedies that must be exhausted under
Article 46(1). As regards
exhaustion of the contentious-administrative jurisdiction, the
Commission has already indicated that this type of proceeding is
exclusively a mechanism for supervising the administrative activity of
the State aimed at obtaining compensation for damages caused by the
abuse of authority.” (Report Nº 15/95, Annual Report of the IACHR
1995, par. 71; Report Nº 61/99, Annual Report of the IACHR 1999, par.
51). “In general, this
process is not an adequate mechanism, on its own, to make reparation
for human rights violations; consequently, it is not necessary for it
to be exhausted when, as in this case, there is another means for
securing both reparation for the harm done and the prosecution and
punishment demanded.” (Report Nº 5/98, case 11.019, Alvaro
Moreno Moreno, Annual Report of the IACHR 1997, par. 61). [13]
On the matter of the efficacy of the remedies, the Inter-American
Court of Human Rights has ruled as follows:
“A remedy must also be effective – that is, capable of
producing the result for which it was designed.”
On the other hand, the mere fact that a “remedy does not
produce a result favorable to the petitioner does not in and of itself
demonstrate the inexistence or exhaustion of all effective domestic
remedies. For example,
the petitioner may not have invoked the appropriate remedy in a timely
fashion. It is a
different matter, however, when it is shown that remedies are denied
for trivial reasons or without an examination of the merits (…)
In such cases, resort to those remedies becomes a senseless
formality. The exceptions
of Article 46(2) would be fully applicable in those situations and
would discharge the obligation to exhaust internal remedies since they
cannot fulfill their objective in that case.” See: Velásquez
Rodríguez Case, Judgment
of July 29, 1988, Series C Nº 4,
paragraphs
66-68; Godínez
Cruz Case, Judgment
of January 20, 1989, Series 1989, Series C Nº 5, paragraphs 69-71;
Fairén
Garbi and Solís Corrales Case, Judgment
of March 15, 1989, Series C No.6, paragraphs 91-93; Exceptions
to the Exhaustion of Domestic Remedies (Art. 46(1),
46(2)(a) and 46(2)(b) American Convention on Human Rights),
Advisory Opinion OC-11/90 of August 10, 1990, Series A Nº 11,
paragraphs 34-36. In
these rulings, the Court has cited the following as an example of the
“inefficacy” of remedies:
“Procedural requirements can make the remedy of habeas
corpus ineffective, if it is powerless to compel the
authorities.” [14]
The Inter-American Court of Human Rights has ruled as follows:
“Article 46(2)(a) applies to situations in which the domestic
law of a State Party does not provide appropriate remedies to protect
rights that have been violated (…) These provisions thus apply to
situations where domestic remedies cannot be exhausted because they
are not available either as a matter of law or as a matter of fact.”
See: Inter-American Court of Human Rights, Exceptions to the Exhaustion of Domestic Remedies
(Art. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human
Rights), Advisory Opinion OC-11/90 of August 10, 1990, Series A Nº
11, par. 17. [15]
In Report Nº 29/98, Walter
David Bulacio, Argentina, decision of May 5, 1998, par. 40, the
Inter-American Commission on Human Rights rendered a previous and
separate decision on the exception established in Article 46(2)(c).
There, the Commission stated the following: “The State has
not disputed that there has been a delay in pursuing the criminal
action to investigate the facts, but maintains that this has been justified
for different reasons, among these the exercise of the defendant’s
right to defense and the interest that justice should be done. In this respect, the Commission observes that over seven
years have elapsed since April 1991.
It is clear from the description of the steps taken in
Argentina to determine the circumstances of the arrest and death of
Walter Bulacio that the investigation has not resulted in those
responsible being punished. Consequently, prima facie,
there has been an unwarranted delay in rendering a final judgment in
the present case.” In
Report N° 74/99, Case 11.810, Sebastián
Sánchez López et al., Mexico, May 4, 1999, the Commission found
“prima facie that there
has been an unreasonable delay in the decision on the jurisdictional
remedies presented by the petitioners in Mexico.
Therefore, the IACHR applies the exception of Article 46(2)(c)
of the Convention.” See,
also, Report N° 87/99, Case
11.506, José Victor Dos Santos et al., Paraguay, September 27,
1999; Report N° 87/99, case 11.506, José
Victor Dos Santos and Waldemar Gerónimo Pinheiro, Paraguay,
decision of September 27, 1999; Report Nº 30/00, Case 12.095, Mariela
Barreto Riofano, Peru, March 23, 2000, par. 20. [16]
The Inter-American Court of Human Rights has held that: “A remedy must also be effective –that is, capable of
producing the result for which it was designed (…) [resort to those
remedies becomes a senseless formality] if there is proof of the
existence of a practice or policy ordered or tolerated by the
government, the effect of which is to impede certain persons from
invoking internal remedies that would normally be available to others.
(...) The exceptions of
Article 46(2) would be fully applicable in those situations and would
discharge the obligation to exhaust internal remedies since they
cannot fulfill their objective in that case.”
An example of the “ineffective” remedies cited by the Court
is that “Procedural requirements can make the remedy of habeas
corpus ineffective (…) if it presents a danger to those who invoke
it; or if it is not impartially applied.”
See: Inter-American Court of Human Rights,
Velásquez
Rodríguez Case, Judgment
of July 29, 1988, Series C Nº 4, paragraphs 66-68; Godínez
Cruz Case, Judgment of January 20, 1989, Series C Nº 5,
paragraphs 69-71;
Fairén Garbi and Solís Corrales Case, Judgment
of March 15, 1989, Series C No.6, paragraphs 91-93; Exceptions
to the Exhaustion of Domestic Remedies (Art. 46(1),
46(2)(a) and 46(2)(b) American Convention on Human Rights), Advisory
Opinion OC-11/90 of August 10, 1990, Series A Nº 11, paragraphs
34-36. The Court has also held that “if an indigent needs legal
counsel to effectively protect a right which the Convention guarantees
and his indigency prevents him from obtaining such counsel, he does
not have to exhaust the relevant domestic remedies.
That is the meaning of the language of Article 46(2) read in
conjunction with Articles 1(1), 24 and 8.” Inter-American
Court of Human Rights, Exceptions to the Exhaustion of Domestic
Remedies (Art. 46(1), 46(2)(a) and 46(2)(b) American Convention on
Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, Series A
Nº 11, par. 31. In Report 129/99, Case 11.565, Ana,
Beatriz and Celia González Pérez, Mexico, November 19, 1999, the
Commission concluded that “for different reasons, exhaustion of
domestic remedies in Mexico was not possible, even though five years
have elapsed since the facts allegedly occurred.
Consequently, the Commission applies to the instant case the
exception provided for in the second part of Article 46(2)(b) of the
American Convention. The
causes and effect of the lack of exhaustion of domestic remedies shall
be analyzed in the report that the Commission will adopt on the
merits, in order to determine whether they constitute violations of
the American Convention.” In Report 89/00, Case 11.495, Juan
Ramón Chamorro Quiroz, Costa Rica, decision of October 5, 2000,
paragraphs 35 and 36, the Commission pointed out that:
“Mr. Chamorro was not 'materially' able to invoke domestic
legal remedies before leaving the country because he was taken
directly from where he was captured to the place where he was
deported. (…) detaining undocumented immigrants for several hours
before deporting them is an administrative measure, taken within
highly summary, almost automatic, proceedings, that does not allow
them the opportunity of filing or attempting to seek any domestic
remedy, including habeas corpus.
In addition, since they had no papers and no means of economic
support, they were unable to reenter Costa Rica to formulate
complaints or invoke the applicable legal remedies, as claimed by the
State (…) the Commission believes that the victim is exempted from
the requirement of exhausting the internal legal remedies of Costa
Rica, given the existence of the exception set forth in Article
46(2)(b).” [17]
In the Velásquez Rodríguez
case (cited above, paragraph 95) the Inter-American Court of Human
Rights decided to postpone consideration of the arguments on the
exceptions to the rule of exhaustion of domestic remedies until it
examined the merits of the case in order, inter
alia, to receive the parties’ evidence and hear their arguments. [18]
The Court has repeatedly held that “the State claiming
non-exhaustion has an obligation to prove that domestic remedies
remain to be exhausted and that they are effective.” See:
Velásquez Rodríguez Case,
Preliminary Objections, Judgment of June 26, 1987, Series C Nº 1,
par. 88; Fairén
Garbi and Solís Corrales Case, Preliminary Objections, Judgment
of June 26, 1987, Series C Nº 2, par. 8;
Godínez
Cruz Case, Preliminary Objections, Judgment
of June 26, 1987, Series C Nº 3, par. 90;
Gangaram
Panday Case, Preliminary Objections, Judgment of
December 4, 1991, Series C No.12, par. 38;
Neira
Alegría et al. Case, Preliminary Objections, Judgment
of December 11, 1991, Series C No.13, par. 30;
Castillo
Páez Case, Preliminary Objections, Judgment of January
30, 1996, Series C Nº 24, par. 40;
Loayza
Tamayo Case, Preliminary Objections, Judgment of
January 31, 1996, Series C Nº 25, par. 40; Exceptions
to the Exhaustion of Domestic Remedies (Art. 46(1),
46(2)(a) and 46(2)(b) American Convention
on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, Series
A No.11, par. 41. [19]
Inter-American Court of Human Rights, Velásquez
Rodríguez Case,
Judgment of July 29, 1988, Series C No 4, paragraphs
59 and 60; Godínez
Cruz Case,
Judgment of January 20, 1989, Series C Nº 5, paragraphs 62 and 63;
Fairén Garbi and Solís Corrales Case, Judgment of March 15, 1989, Series C Nº 6, paragraphs 83 and
84; Exceptions to the Exhaustion of Domestic Remedies
(Art. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human
Rights), Advisory Opinion OC-11/90 of August 10, 1990, Series A Nº
11, par. 41. [20]
The State alleged that the case is continuing by order of the judge;
because of a number of procedural defects, there was no one in the
role of injured party. The
State is citing Article 87 of the Code of Criminal Procedure of the
Province of Buenos Aires. [21]
Article 514 of Argentina’s Code of Criminal Procedure (1888 Law
2372) reads as folllows: "The petition of complaint may be filed:
1) when the judge denies the petitions of appeal and nullification, or
only the petition of appeal, which must be done by court order; 2)
when the legal time limits are allowed to lapse without the pertinent
decision being issued, and provided none of the cases in which the
delay causes automatic loss of jurisdiction obtains; or 3) when
pending proceedings in the circumstance provided for in Article 442
have not been ordered.” [22]
In Report Nº 75/99, Case 11.800, César
Cabrejos Bernuy, Peru, decision of May 4, 1999, par. 20, the IACHR
pointed out the following: “Inasmuch as the State failed to fulfill
its procedural duty to indicate the specific domestic remedies that
remained available and effective for the victim to have the
aforementioned June 5, 1992 judgment of the Supreme Court of Justice
enforced, the Commission finds that this case falls under the
exception set forth in Article 46(2)(a) of the Convention.” [23]
Law 24.390, enacted in November 1994, was regarded as progress by the
Commission, which stated the following in Report Nº 2/97, par. 61,
point (i): “The Inter-American Commission on Human Rights
acknowledges the significant progress achieved by Argentina with
approval of the law establishing limits on the duration of preventive
detention.” [24]
See: Report Nº 12/96, Argentina, Cases 11.245, decision of March 1,
1996, and Report Nº 2/97, Argentina, Cases 11.205, 11.236, 11.238,
11.239, 11.242, 11.243, 11.244, 11.247, 11.248, 11.249, 11.251,
11.254, 11.255, 11.257, 11.258, 11.261, 11.263, 11.305, 11.320,
11.326, 11.330, 11.499, and 11.504, decision of March 11, 1997.
[25]
The State did not attach copies of the court rulings on this request
for release. [26]
Inter-American Commission on Human Rights, Report Nº 6/98, case
10.382, Ernesto Máximo Rodríguez,
Argentina, decision of February 21, 1998, par. 62. There, the
Commission stated that: “The
facts in the case indicate that the petitioner opted for a procedural
route that, as the Supreme Court ruled, made a review of his case
impossible. In this
particular case, the Commission cannot question this judgment: if the
highest court of the land has stated that an apparent lack of
procedural expertise on the part of the petitioner made it impossible
for him to secure a review of the penalty imposed on him, it is not
for the Commission to try to determine or assess whether the Court was
mistaken. The rules that govern procedural law reflect methological
criteria intended to ensure the orderly use of judicial actions and to
make the work of the courts more efficient and effective.” (underlining added by the Commission). [27]
Article 14 of Law 48 reads as follows: “Once a case is with the
provincial courts it shall remain there through sentencing and
conclusion; final rulings handed down by provincial superior courts
may only be appealed to the Supreme Court in the following cases: 1)
when in the course of litigation the validity of a treaty, a law
passed by Congress or an authority exercised at the federal level has
been questioned and the decision has been to rule the treaty, law or
authority in question invalid; 2) when the validity of a provincial
law, decree or authority has been challenged as contrary to the
National Constitution, treaties or laws of Congress, and the decision
has upheld the validity of the provincial law or authority; 3) when
the sense of some clause in the Constitution, treaty or act of
Congress, or a commission performed in the Nation’s name has been
challenged and the decision goes against the validity of the title,
right, privilege or exemption that is based on that clause and is the
subject of litigation.” Article
15 ejusdem states that: “When the remedy of appeal authorized
under the preceding article is filed, the complaint should be based on
the provisions of that article so that the arguments are based on the
court records and go, both directly and indirectly to the issues of
the validity of the articles of the Constitution, laws, treaties or
commissions being challenged. It
shall be understood that the interpretation or application of the
civil, penal, commercial and mining codes by the provincial courts
shall not be used as grounds for the complaint solely by virtue of the
fact that they are acts of Congress under the provisions of
subparagraph 11, Article 67 (now subparagraph 12, Article 75) of the
Constitution.” [28]
In Report Nº 104/99, Case 11.400, Eolo
Margaroli y Josefina Ghiringhelli de Margaroli, Argentina,
decision of September 27, 1999, paragraph 53, the Inter-American
Commission dismissed the State’s argument that local remedies
remained to be exhausted, because the State had failed to show that
those remedies were adequate and effective.
There, it held that: “regarding the exhaustion of the
extraordinary unconstitutionality remedy referred to by the State, the
Commission recognizes that in some cases unconstitutionality remedies,
which are in principle extraordinary, offer appropriate and effective
remedies for human rights violations.
In the case at hand, however, the State has neither claimed nor
shown that a decision on the unconstitutionality of Article 29 of Law
21.499 and Ordinance 43.529/89 would have in any event resolved the
alleged violations described by the petitioners.”
[29] Concerning the State’s waiver of any objection based on the rule stipulating the time period for filing a petition, the Inter-American Court has held that: “Since that period depends on the exhaustion of domestic remedies, it is for the Government to demonstrate to the Commission that the period has indeed expired. Here again, the Court’s earlier decision regarding the waiver of non-exhaustion of domestic remedies is relevant: Generally recognized principles of international law indicate, first, that there is a rule that may be waived, either expressly or by implication, by the State having the right to invoke it, as the Court has already recognized (see Viviana Gallardo et al., Judgment of November 13, 1981, Nº G 101/81. Series A, para. 26).” Inter-American Court of Human Rights, Caso Neira Alegría et al., Preliminary Objections, Judgment of December 11, 1991, Series C No.13, par. 30. The Inter-American Commission on Human Rights has followed the Court’s reasoning in, inter alia, Report Nº 22/00, Case 11.732, Horacio Anibal Schillizzi Moreno, Argentina, decision of March 7, 2000, par. 30: “At no time during the processing of this case before the Commission did the State allege there was a failure to meet the deadline requirements for the remedies exhausted by Mr. Schillizzi. Consequently, the State may be considered to have tacitly abandoned any objection based on failure to comply with this requirement. Consequently, the Commission concludes that the petition complies with the requirement established in Article 46(1)(b) of the Convention.” |