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REPORT
Nº 03/01*
I. SUMMARY 1.
Between 27 December 1995 and 30 September 1999, the Inter-American
Commission on Human Rights (hereinafter the “Commission” or the “IACHR”)
received petitions from various individuals–on their own behalf or on
behalf of a third person, lodged by themselves or by legal counsel–and
non-governmental organizations (individually and collectively hereinafter
the “petitioners”) on behalf of 47 alleged victims. The petitions
claim violation of the rights to judicial guarantees (Article 8), property
(Article 21) equal protection of the law (Article 24) and effective remedy
(Article 25(2)(c)), and of the obligation of States to respect rights
(Article 1(1)) and to give effect to those rights (Article 2), all rights
and obligations enshrined in the American Convention on Human Rights
(hereinafter the “Convention” or the “American Convention”). They
also claim that the Republic of Argentina (hereinafter the “State,”
“Argentine State,” or “Argentina”) has violated the rights to the
preservation of health and well-being (Article XI) and to social security,
in relation to the obligation to work and contribute to social security
(Articles XVI, XXXV and XXXVII) as enshrined in the American Declaration
on the Rights and Duties of Man (hereinafter the “Declaration”). 2. As the facts are similar and the subject substantially the same, the IACHR combined and processed the petitions in question as a single file, in accordance with Article 40(2) of its Rules of Procedure. The names of the petitioners[1] and of the alleged victims[2], along with the dates on which petitions were lodged, are presented in the following table. Table
1
Acronyms:
CEJIL –
Centro por la Justicia y el Derecho Internacional
CELS
– Centro
de Estudios Legales y Sociales, Argentina 3.
All petitioners have filed claims before the Argentine National
Social Security Administration (hereinafter ANSES) with the aim of getting
an adjustment to their retirement or pension payment or in its calculation
(social security income). The petitioners claim that the fundamental
rights protected by Articles 8 and 25 of the Convention have been violated
by delays in securing final judgments determining the rights of the
alleged victims and any adjustment to or calculation of their social
security income. They also cite postponement of enforcement of judgments,
as well as inappropriate enforcement of the same that resulted in
confiscation of property and forced them to exhaust other resources in
their attempts to secure what is owed to them. They also cite violation of
their rights to judicial guarantees and effective judicial protection. In
this regard they say that Articles 5, 7, 16, 22 and 23 of Law 24.463 on
Social Security Solidarity allowed for postponement of the enforcement of
court judgments favorable to them on the basis of insufficient budgetary
resources, and that the obligation to make the above-mentioned rights
effective was violated. They also maintain that the facts as outlined have
led to the violation of other rights, including the rights to property,
equality, health and well being, social security and life. 4.
That State maintains that the case is inadmissible because nothing
the petitioners argue constitutes a violation of the Convention. The State
does not deny that there have been delays in judicial proceedings and
enforcement of judgments. They
claim, however, that said delays were justified, citing the collapse of
the social security system due to excess litigation and a lack of
resources, among other reasons. The State is only responsible for
injecting as much as is available into the common pension system and is
not a guarantor of the system. It contributes just enough to cover the
normal and ongoing payments stipulated by law. The State adds that
acquired rights cannot be placed above the laws on public order, and that
the integrity of pensions has not been affected, as current benefits are
comparable to past benefits and that adjustments made according to law do
not have their origin in the constitution. In regard to whether the
provisions of Law 24.463 are compatible with the Convention, the State
holds that the temporary limitation was born of necessity and was in the
public interest. 5.
The State does not debate the tight situation faced by retirees in
the minimum bracket, but does say that they receive additional welfare
benefits. The State adds that, within limits established objectively by
economic growth, it has promoted measures to make effective all the rights
recognized in Article 26 of the Convention and that the complaints under
consideration reflect isolated cases and not the general situation in the
country. In regard to the requirements for admissibility, the State has
responded to each petition individually, variously citing failure to
exhaust domestic remedies, pointing out the date on which remedies were
exhausted or that it had cancelled pension payments, or not saying
anything at all. 6.
In processing this case, the IACHR has noted that the petitions of:
Abiuso, Martha Beatriz; Alfaro, Mario Jorge; Alvarez, Ernesto;
Amada, Alfredo Raúl; Angotti, Oscar; Bernardez, Carmen; Calvo, Wilson
Jorge; Carballo, Héctor; Castañeda, Hector Alfredo; Daruich, Ramadam;
Dabrowski, Ladislao; De Carli, de Onoratelli; Falvo, Juan Carlos; Gagni,
Valeria; Grabowski, Rosa Helena; Linero, Ana María; Ludueña, Ramona
Angelita; Moreno Bosque, María; Nieto, Roberto; Olivero, Omar Bautista;
Pandis, Juan; Poggi, Fulvio Enzo; Ramovecchi, Manuel José; Rodríguez,
Galileo Eduardo; Rodríguez, Juan Manuel; Scarpa, Beatriz Alicia;
Villarino, Abel; Villares, Carlos Cecilio; Volant, Marina; and Vouillat,
María Beatriz did not contain sufficient information, either in regard to
exhaustion of domestic remedies or to the relationship with the facts put
forward in the arguments. Some did not contain enough information to
establish the legitimacy of the petition. As a result, on 21 December
2000, the IACHR decided to separate these petitions from this case and
combine them in Case 11.670A with the purpose of requesting more
information from the parties and making a decision on them at a later
date. 7. In regard to the remaining petitions, namely those of: Acevedo, Daniel; Agro, Eduardo; Agrofolio, José Heribe; Ambrossetti, Pedro S.; Amodeo, Enrique Domingo; Balciunas, Roberto; Caride Juan Manuel; Carmona, Antonio; Chañaha, Angel Amadeo; Menéndez, Amilcar; Orsi Vittorio; Otero, Angela; Pafundi, Amancio Modesto; Piscitelli, Pascual; Rodríguez Arias, Eduardo A.; Solari, María Elena; and Tudor, Enrique José, the Commission has examined them as reflected in this report and has deemed them admissible as they comply with the requirements set forth in Articles 46 and 47 of the Convention. II.
PROCEEDINGS BEFORE THE COMMISSION 8.
After receiving the original petitions of Amilcar Menéndez and
Juan Manuel Caride in 1995 (hereinafter the “original petitioners”),
the IACHR sent the State a request for information on 13 February 1996 and
later granted it an extension of 45 days for response. The State’s
response was received on 29 August 1996 and forwarded to the petitioners
on 3 September 1996. The case was numbered 11.670. Over time the other
petitions listed in Table 1 were received. They were joined to case 11.670
and each petitioner was informed of that fact. In the IACHR’s view, the
related subject matter provides grounds for combining them in a single
case. The Commission would like to once again point out that article 40 of
the Rules of Procedure[10]
does not require that the facts, alleged victims and violations mentioned
in petitions strictly coincide in time and place for the petitions to be
combined and processed in a single file. To the contrary, the IACHR
believes that petitions can be combined and processed together when the
subject matter and legal questions involved are adequately connected.[11] 9.
On 9 October 1996, during its 93rd Regular Session, the
Commission held a hearing with the original petitioners and the State.
On 4 November 1996 an extension of 30 days was granted to the
petitioners, who then submitted their comments on 16 January 1997.
On 27 January 1997, a submission was received from the State and
sent on to the original petitioners on 3 February 1997.
On 2 February and 14 April 1997 respectively 30-day extensions were
given to the State. On 9 July
1997 the petitioners were granted an extension. The response of the
original petitioners was sent to the State in 19 August 1997.
On 23 September and 15 December respectively, 30-day extensions
were granted to the State. 10.
The State’s response was received on 23 January 1998 and sent to
the petitioners on 9 February 1998. The
petitioners requested an extension on 14 April 1998 and were granted one
of 30 days. On 26 August
1998, the original petitioners submitted additional information.
On 12 November 1998, the IACHR sent to the State the full list of
petitioners combined in the case so that it could submit comments on any
and all of the alleged victims listed in Table 1.
On 4 November 1998, the Commission received another submission from
the original petitioners. 11.
On 26 April 1999, the IACHR received a response from the State.
On 21 May 1999, the original petitioners’ comments were sent to
the State. The original
petitioners submitted further comments on 6 July 1999 and the State sent
in comments on 16 September of the same year.
The Commission then had a hearing with the parties on 30 September
1999. On 28 October, the
original petitioners were granted a 30-day extension.
On 29 October the State submitted further comments. On 30 November
the original petitioners submitted their comments. 12.
Entering 2000, the original petitioners submitted further
information on 14 January. On
2 February, 9 March, 11 April and 22 May, the State requested consecutive
extensions, which were granted for 30, 15 and 60 days respectively.
On 3 August 2000 the original petitioners submitted additional
information. On 12 October
the Commission held a hearing with the original petitioners and the State
during its 108th Regular Session. At that time the Commission
gave the parties 30 days in which to try to reach a friendly settlement
and inform the Commission. Upon completion of said period, the Commission
had received no information on a friendly settlement. 13.
In processing this case, the IACHR has noted that the petitions of:
Abiuso, Martha Beatriz;
Alfaro, Mario Jorge; Alvarez, Ernesto; Amada, Alfredo Raúl; Angotti,
Oscar; Bernardez, Carmen; Calvo, Wilson Jorge; Carballo, Héctor; Castañeda,
Hector Alfredo; Daruich, Ramadam; Dabrowski, Ladislao; De Carli, de
Onoratelli; Falvo, Juan Carlos; Gagni, Valeria; Grabowski, Rosa Helena;
Linero, Ana María; Ludueña, Ramona Angelita; Moreno Bosque, María;
Nieto, Roberto; Olivero, Omar Bautista; Pandis, Juan; Poggi, Fulvio Enzo;
Ramovecchi, Manuel José; Rodríguez, Galileo Eduardo; Rodríguez, Juan
Manuel; Scarpa, Beatriz Alicia; Villarino, Abel; Villiares, Carlos Cecilio;
Volant, Marina; and Vouillat, María Beatriz did not contain sufficient
information, either in regard to exhaustion of domestic remedies or to the
relationship with the facts put forward in the arguments. Some did not
contain enough information to establish the legitimacy of the petition. As
a result, on 21 December 2000, the IACHR decided to separate these
petitions from this case and combine them in Case No. 11.670A with the
purpose of requesting more information from the parties and making a
decision on them at a later date. III.
POSITIONS OF THE PARTIES
A.
Facts 14.
The petitioners are retirees who have demanded an adjustment to
their pensions by ANSES, which is a decentralized body of the Ministry of
Labor and Social Security under the executive branch of the national
government {previously known as the National Social Security Fund (Caja
Nacional de Previsión Social)}. Starting in 1992, ANSES began to
express disagreement with judgments regarding the percentage to be applied
in readjusting pensions that were the result of special appeals to the
Supreme Court (Corte Suprema de Justicia de la Nación, hereinafter
the “CSJN”). When Law 24.463 entered into effect on 30 March 1995, a
new system was instituted. However, a grace period was granted
exceptionally to the administrative body to help it make the transition.
Once the grace period was over, it would be subject to the time limits for
summary proceedings. The Federal Courts of First Instance of the Social
Security System established by Law 24.463 did not begin to function until
February 1997. 15.
During the proceedings of this case, the parties have given the
Commission information on the dates when cases were initiated and
judgments rendered, on whether or not judgments have been enforced and if
not, if any appeal has been filed and judged. In this section, the
Commission will explain the position of the petitioners and that of the
State insofar as it is the same as that of the petitioners. 16.
The alleged victims listed in Table 2 claim to have filed an
administrative complaint with ANSES. In the face of silence or of a
decision with which they did not agree, they filed an appeal before the
corresponding court demanding readjustment to or calculation of their
pension payment. These appeals have still not run their course. In some
cases, a judgment favorable to them was rendered by the Chamber for Social
Security (hereinafter the “CSS”), but then ANSES filed a special
appeal to the CSJN, which has not yet pronounced final judgment. Table
2:
Cases awaiting judgment
17.
The alleged victims listed in Table 3 maintain unwarranted delays
occurred from the time the administrative complaint was made up to the
time that they received a favorable decision. They also maintain that
enforcement of the judgment was postponed indefinitely, through a priority
order, until such time as the State would have sufficient funds to pay
their pensions. The State pointed out that in determining any order for
payment of benefits conferred or that may be conferred for a calendar
year, it established priorities when various claims to the same funds
exist.[14]
In some cases the petitioners have exhausted domestic remedies for enforce
execution of the judgment. Table 3: Cases
with a final judgment that has not yet been enforced due to the
18.
The alleged victims listed in Table 4 claim to have a
final court judgment and to have finished all court procedures.
Nonetheless, they claim that there were procedural delays from the
beginning of their cases until final judgment was rendered. Table 4: Cases
in which final court judgment was rendered
but with delays
19.
The alleged victims listed in Table 5 claim that the
courts have rendered a final judgment and that they have finished all
court procedures (this list thus includes the names listed in Table 4
above). However, they claim that the judgments have been inappropriately
enforced by ANSES. In some cases, the petitioners have exhausted the other
domestic remedies available to them in an effort to see the sentence
enforced according to the stipulations contained in it. Table
5:
Cases in which the judgment has been enforced with delay
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Nº |
Alleged
Victim |
Date of final judgment & enforcement by ANSES |
Other remedies tried due to inappropriate enforcement |
Complaints
regarding enforcement |
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1.
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Balciunas, Roberto
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1993
& Aug/Sept1999 |
Administrative appeal, still pending decision |
More than 6 years awaiting
enforcement They did not make any adjustment
beyond 2 years |
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2.
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Caride,
Juan Manuel |
28/06/94 & April 1998 |
Judicial appeal, still pending decision |
More than
6 years awaiting enforcement Asking for pertinent adjustments for the period
01/04/91 al 30/03/95. |
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3.
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Carmona,
Antonio y Cuevas de Carmona,
Angélica. |
21/03/94 & December 1994 |
Initiated amparo
proceedings for incomplete payment on 10/02/97. Ruling in their
favor on 06/05/98 |
More than 10 years awaiting
enforcement Enforcement suspended because
the file is now before a criminal court for possible action
against ANSES authorities |
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4.
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Rodríguez,
Juan Manuel |
22/08/86 & 1990 |
Administrative appeal – rejected |
More than 4 years awaiting
enforcement He was not paid what the
judgment stipulated |
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5.
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Tudor,
Enrique José |
1997 & March 1999 |
Administrative
appeal rejected – filed judicial appeal[19] |
More than 3 years awaiting
enforcement He was not paid what the judgment stipulated and is
still awaiting a decision on his appeal |