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REPORT Nº 22/02 INADMISSIBILITY PETITION
12.114 JESÚS
CHUCRY ZABLAH AND CLAUDIA ESTHER RODRÍGUEZ DE ZABLAH HONDURAS February
27, 2002
I.
SUMMARY
1.
On June 10, 1997, Mr. Jesús Chucry Zablah and his wife, Claudia
Esther Rodríguez de Zablah (hereinafter “the petitioners”) filed a
complaint with the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) against the
Republic of Honduras (hereinafter “Honduras,” “the State,” or
“the Honduran State”). The
petition alleged the violation of the right to a fair trial (Article 8),
the right to private property (Article 21), and the right to equality
before the law (Article 24) of the American Convention on Human Rights
(hereinafter "the Convention" to the detriment of the
petitioners.
2.
The petitioners, shareholders in the company Sociedad
Inmobiliaria “La Soledad S. de R.L.” (hereinafter “Sociedad
Inmobiliaria”), signed, along with two natural persons, a contract
with the State for the sale of three lots for a value of three million
lempiras. That contract was later annulled by judgment of November 13,
1981. The judgment ordered that the parties be restored to their status ex
ante the contract, and ordered the attachment of two bank accounts
that the petitioners had in the Bank of America and the Banco El
Ahorro Hondureño, for the purpose of returning to the State the
amount of three million lempiras. Later, it ordered the attachment of
other real properties belonging to them, which were subjected to expert
appraisal and then auctioned.
3. The petitioners
allege that due process was violated in the course of the proceeding, as
the judge of first instance handed down a judgment before the evidence
was produced, and declared the nullity of the contract on its own
initiative, after issuing an executive decree disapproving the sale
contract. In addition, they argue that the freezing of their accounts
was illegal, and that their assets were undervalued, as they paid the
State ten times more than what they were under an obligation to return
to it. They argue that the
judgment and the expert opinion assessing the real property were plagued
by several procedural irregularities that rendered them defenseless, and
which resulted in the confiscation and flagrant dispossession of their
properties.
4.
The parties debated extensively the exhaustion of domestic
remedies and the time period for submission of the petition. The
petitioners alleged that they exhausted domestic remedies and that the
petition was submitted within the six-month time period.
The State alleged that domestic remedies had not been exhausted,
and that, even if they had been, the petition was time-barred, as it was
not submitted within the six-month time period.
5.
After analyzing the facts alleged and the documentary evidence in
the record, the Inter-American Commission, during its 114th session,
held February 25 to March 15, 2002, decided to declare the instant case
inadmissible for failure to exhaust domestic remedies, as required by
Article 46(1)(a) of the American Convention.
II.
PROCESSING BEFORE THE COMMISSION
6.
On June 10, 1997, the Commission received the complaint from the
petitioners, the original date of which was May 29, 1997. On November 4,
1997, the petitioners were sent acknowledgment that the complaint had
been received, informing them that it was not possible to process the
complaint, under Article 38(1) of the Regulations, and requesting that
they submit information that would make it possible to verify whether
the complaint had been filed within a reasonable time.
7.
On December 19, 1997, the Commission received a communication
dated December 10, that indicated that the complaint did meet the
requirements of Article 38(1) of the Commission’s Regulations. On June
5, 1998, the Executive Secretariat of the Commission acknowledged
receipt of that note and reiterated to the petitioners that the
information contained in the complaint did not meet the requirements
established in Article 38(1) of the Regulations, and they were invited
to send the pertinent information to allow the processing of the
complaint to go forward. On
February 11, 1999, the petitioners sent a copy of a resolution issued by
the Secretariat of the Supreme Court of Justice dated January 6, 1999,
in which the motion for reinstatement (recurso
de reposición) filed by the petitioners was declared inadmissible.
8.
On April 12, 1999, the complaint was forwarded to the Honduran
State. On September 21, 1999, the Commission received the State’s
response, dated July 9, 1999. On October 26, 1999, the pertinent parts
of that brief were sent to the petitioners.
On December 17, 1999, the IACHR received the petitioners’
observations, which were transmitted to the government on January 24,
2000. On February 17, 2000, the IACHR received an addendum from the
petitioners to their observations, which were transmitted to the State
on March 1, 2000; it was given 30 days to submit its final comments.
On June 23, 2000, the IACHR reiterated its request to the State
for comments on the petitioners’ observations, and gave it an
additional 30 days.
9.
On September 5, 2000, the IACHR received the State’s final
comments on the petitioners’ observations and the addendum they filed,
dated August 30, 2000. On
September 13, 2000, acknowledgment was sent of that communication, and
the pertinent parts were forwarded to the petitioners. On October 4,
2000, the IACHR received the petitioners’ observations to the
State’s final comments, the pertinent parts of which were forwarded to
the State on October 16, 2000; it was given 20 days to submit its
comments, in the event that a new fact or argument was included.
10.
On September 11, 2001, the Honduras State submitted its comments
to the IACHR; the IACHR acknowledged receiving them, and forwarded them
to the petitioners on September 20, 2001. On December 20, 2001, the
petitioners sent their answer to those comments, which was received at
the Commission on January 2, 2002. On January 8, 2002, the IACHR
acknowledged receiving it from the petitioners, and forwarded the
pertinent parts to the State.
III.
THE PARTIES’ POSITIONS
A.
Petitioners’ position
11.
The petitioners alleged that the Honduran State violated their
rights to a fair trial, to private property, and to equality before the
law, on declaring the absolute nullity of a notarized document for
purchase (Escritura Pública de Compra-venta) by means of which
the Honduran State acquired several real properties consisting of lots
owned by the Sociedad Inmobiliaria (legally represented by Mr.
Jesús Zablah) and Mrs. Rodríguez de Zablah, among others.
They allege that there were fraudulent machinations and direct
intervention by other branches of government in that judicial decision,
by which, they argue, their property was confiscated,[1]
flagrantly dispossessing them, as the value of the amounts they were
obligated to return to the Honduran State was more than 1000% their
value.[2]
12.
The petitioners alleged that they exhausted all domestic remedies
afforded by Honduran legislation: appeal, cassation, review, and
reinstatement, successively, and that all were rejected by the State.[3]
13.
The petitioners indicated that on October 22, 1981, the Office of
the Attorney General of the Republic filed a Regular Action for Absolute
Nullity of a Sales Contract against the Sociedad Inmobiliaria,
requesting cancellation of their entry in the Property Registry and
rescission of the contract. Later,
the trial was opened for evidence, and interrupted on November 13, 1981
by the same court that heard the matter, which, on its own initiative,
issued the judgment annulling the notarized documents that were the
subject matter of the litigation, and canceling their registration,
which, they alleged, is not allowed by Honduran legislation.[4]
The petitioners indicated that as a precautionary measure, real
properties and personal bank accounts at the Bank of America and Banco
El Ahorro Hondureño were attached; and that later, in the execution
of the judgment, the amounts of 2,037.378.67 lempiras and 4,999.50
lempiras, deposited, respectively, in those accounts, were transferred
to the State.
14.
The petitioners argued that the Sociedad Inmobiliaria was
a limited liability company, thus the State could proceed only against
the company’s assets, and not against the individual assets of the
shareholders, and they allege that with the issuance of that judgment,
they were rendered defenseless, since they were hindered from offering
evidence on their own behalf.[5]
They argue that Mr. Jesús Zablah was never heard in the trial,
even though their bank accounts and assets were attached.[6]
15.
In relation to the attachment of their assets, the petitioners
alleged a series of procedural violations, inter
alia, that the State, on requesting the precautionary measure of
attaching movables and real properties, did not determine their amount,
nor did it establish any bond or security interest sufficient to answer
for the damages caused, and that the procedure for appointing the expert
appraisers was completely illegal. They argued that during the trial, no
legal time period was established for the experts to give their opinion
as to the value of the assets attached, and that later they were given
late notice of the time period, thus they filed their opinion 23 days
after the time period has lapsed. They adduce that this rendered them defenseless, as they were
hindered from showing the real value of the real properties attached,
and that the expert report should have been prepared during the trial,
and not in the stage of executing the judgment.[7]
16.
In addition, the petitioners alleged that, whereas the sum owed
was three million lempiras, real properties of theirs worth 10 million
lempiras were auctioned, and that in the process of valuing the
properties auctioned, there were several irregularities that violated
the petitioners’ right to property.[8]
17.
They argued that the excessive amount was unjustifiable, for in
the worst of cases, the liability of the company, in addition to the
amount of three million lempiras, would consist solely of the economic
profit obtained on serving as an intermediary in the sale, and that said
obligation did not even exist, as the contractual relationship was
between the Honduran State and the sellers of the real properties, such
that if, for reasons beyond their control, the contractual relationship
between the State and the sellers was annulled, the Sociedad
Inmobiliaria would not be obligated to return a single cent.
They added that in the event that someone had to answer for those
economic benefits, that obligation corresponded solely to the persons
who signed the contract in their personal capacity.[9]
18.
With respect to the dispute between the petitioners and the State
as to whether domestic remedies were exhausted with the motion for
review or the motion for reinstatement, the petitioners argued that
domestic remedies were exhausted with the motion for reinstatement, and
they showed that it was filed on November 5, 1996, and resolved by the
judiciary three years later, on January 6, 1999.
19.
In terms of the motion for review, they indicated that it was
resolved on November 28, 1996, that notification thereof was made on
November 27, 1996, and that the judgment was firm as of November 29,
1996; accordingly, in their view, even in the event that this remedy
were considered the remedy by which domestic remedies were exhausted,
the petition, sent to the IACHR on May 29, 1997, would meet the
six-month requirement provided for at Article 46(1)(b) of the American
Convention.[10]
In response to what the State said about rejection of the motion for
review for failure to annex a judgment showing the existence of
fraudulent machinations by the Judiciary, the petitioners alleged that
at that moment it was impossible to bring the corresponding criminal
action, because as of that date the person who was the principal judge
at the court that heard the matter during the processing of the case had
died.[11]
20.
The petitioners argue that they filed both remedies because, in
addition to the motion for review, the motion for reinstatement is
provided for in the Code of Procedures as an ordinary remedy that must
be exhausted prior to having access to the following domestic appeals or
recourse to international mechanisms.[12]
21.
In addition, the petitioners indicated that they did not continue
to pursue a regular cause of action for damages, as it was totally
inadmissible,[13]
since the illegality of the judgment of first instance was never
declared, thus this action would have had no possibility at all of
success. In addition, they
alleged that there was a final judgment annulling the contract, and so
in an action for damages the trial in question would not be re-opened,
that the processing of such an action usually takes five to ten years,
and that the Honduran judicial system at that time lacked even a bare
minimum of independence in issuing its decision, thus it would be
useless to exhaust this remedy.[14]
B.
The State’s position
22.
The State argued that the purchase contract omitted approval of
the contract by the Executive branch, which is a formal requirement for
validity,[15]
which is why the nullity of the sales contract was declared.
It noted that during the trial, the President of the Republic
issued decree Nº 0779, by which it disapproved the sales contract that
gave rise to the dispute, and indicated that the Civil Code of the
Republic of Honduras establishes that when there is absolute nullity of
acts and contracts, the courts must, when it so appears in the record,
so declare on its own initiative. He argued that in the present case,
the judge so ruled considering that it did not make sense to pursue the
other phases of the trial with the consequent squandered time and
effort, considering that the agreement issued by the Executive declared
the absolute nullity of the contract itself.[16]
In addition, it indicated that the petitioners attacked only the formal
or procedural aspect, decreeing the nullity of the sales contract
challenged, without controverting its material nullity.[17]
23.
The State alleged that the fact that the courts had ruled against
the petitioners’ claims does not entail a violation of the right to
defense or of any other human right.[18]
24.
The State indicated that it had paid three million lempiras to
the Sociedad Inmobiliaria for the sale of three lots, and that
upon declaration of the nullity of the contract, it was ordered that
full restitution be made to the parties to their status ex
ante the contract, such that the Honduran State had to collect the
three million lempiras paid to the counterpart, which is why it attached
its bank accounts. It
indicated that, of that sum, it could recover only 2,042,378.17 lempiras
that Mr. and Mrs. Zablah had in the Bank of America and the Banco El
Ahorro Hondureño; as a result, it had to attach other property of
Mr. and Mrs. Zablah, which was valuated and put up for auction in
keeping with the pertinent provisions of Honduran law, and so there was
no flagrant dispossession of the petitioners’ assets.[19]
25.
The State argued that the action was filed against said Sociedad
Inmobiliaria and against three natural persons, one of them being
Claudia Rodríguez de Zablah, and that these three persons acted in
their personal capacity in the sales contract entered into with the
State. It argued that the petitioners were “sellers” in this
contract, and the role of the company was as an intermediary, or as
their representative,[20]
and that the execution of the judgment was with respect to the assets of
the petitioners and all the other respondents, as they were the owners
of the real property that was the subject of the sale.[21]
26.
With respect to the petitioners’ arguments that the
notifications for the experts who valuated the properties of Mr. and
Mrs. Zablah were not made correctly, the State argued that even though
they had been incorrect (which it did not accept), they are validated
under Honduran legislation due to the fact that the parties had notice,
which happened in this case when the experts issued their report.[22]
27.
In addition, the Honduran State asked that the complaint be
declared inadmissible for failure to exhaust domestic remedies, for
motives imputable to the petitioners; they could have pursued a judicial
claim against the government of Honduras, seeking damages for what
happened. The State argued
that it was possible to file such an action, as the petitioners in fact
did, as they could have filed an ordinary action for damages (Demanda
Ordinaria de Daños y Perjuicios) in the First Court of Letters for
Civil Matters of the department of Francisco Morazán, which was
admitted. It argued that they themselves abandoned the action, allowing
the time period for bringing such an action to lapse.[23]
28.
With respect to the motion for reinstatement, the State indicated
that the reinstatement remedy, in Honduran legislation, can only be
pursued in response to decisions on procedural matters and interlocutory
judgments handed down in the first instance, and those handed down in
ruling on the appeal and cassation remedies; in other words, the
petitioners did not have to request reinstatement of the ruling handed
down in the motion for review, accordingly the Supreme Court of Justice
declared it inadmissible. It argued that the petitioners pursued this
remedy knowing that it was inadmissible, for the purpose of setting in
motion the time period for presenting the petition to the IACHR, and
expressed that an inadmissible or illegal action cannot be taken into
account for authorizing or updating a time period requirement for the
admissibility of the petition.[24]
In addition, it indicated that the motion was ruled on in 1999, the
petition having been presented in May 1997; thus the petitioners
continued to exhaust domestic remedies even after having presented their
petition to the IACHR.[25]
29.
The State further alleged that the last valid domestic remedy
pursued by the petitioners was the motion for review before the Supreme
Court of Justice, against which no further remedy is afforded under
Honduran legislation, and that it can only be filed, among other
grounds, when the judgment is won unjustly by virtue of subornation or
fraudulent machination. It indicated that in the motion the petitioners
did not present a judgment declaring the existence of such fraudulent
machination, accordingly the motion was denied.
It argued that even in the event that this remedy were considered
the one that exhausted the domestic jurisdiction, the petition had been
submitted in untimely fashion, as the ruling was handed down on November
5, 1996, and notice of it was given on November 27, 1996, thus the
petition had to have been submitted from December 1996 to May 1997.[26]
IV.
ANALYSIS OF ADMISSIBILITY
30.
The Commission now analyzes the admissibility requirements for a
petition established in the American Convention, beginning with the
exhaustion of domestic remedies, the main point in controversy in the
instant petition.
Exhaustion of domestic
remedies
31.
First, the Commission observes that the parties presented
different arguments for the purposes of counting the six-month period
established in Article 46(1)(b), in case the Commission determines that
domestic remedies have been exhausted. Nonetheless, the Commission
observes that the debate on that point is moot, for the State, beginning
with the brief in answer to the complaint, alleged failure to exhaust
domestic remedies, and indicated that the petitioners “can still
exercise judicial action against the Government of Honduras,”[27]
claiming damages for the violations alleged.
32.
The Inter-American Court has established previously that “the
State claiming non-exhaustion has an obligation to prove that domestic
remedies remain to be exhausted and that they are effective,”[28] and that “if a State which alleges
non-exhaustion proves the existence of specific domestic remedies that
should have been utilized, the opposing party has the burden of showing
that those remedies were exhausted or that the case comes within the
exceptions of Article 46(2).”[29]
33.
In the present case, the State indicated that the action for
damages was still available to the petitioners. The State added that
they had brought an ordinary action for damages before the First Court
of Letters for Civil Matters (department of Francisco Morazán) for the
purpose of making reparation for the damages caused by the attachment
and sale of their property for a sum less than their real value, yet
ceased to pursue the trial, abandoning said judicial opportunity. The
State indicated that on failing to give impetus to the procedure, the
petitioners allowed the statute of limitations to run, as provided for
by Article 147 of the Code of Civil Procedure, which provides that the
opportunity to bring such an action shall be considered abandoned, and
it shall lapse as a matter of law, if no initiative is taken to
institute a proceeding within three years, when the dispute is before
the courts of first instance.
34.
The petitioners argued that the remedy was ineffective and that
said action had no chance whatsoever of success due to the existence of
a final judgment favorable to the State. In addition, they argued that
such actions generally take five to ten years to run their course, and
that at that time, the Honduran judicial system lacked even a bare
minimum of independence in its decisions.
35.
The Commission considers that while the petitioners argue that
the remedy would be inadmissible due to the existence of a final
judgment in the case, this contradicts the fact that they actually
pursued an action, and it was admitted. In addition, their fear of
obtaining an unfavorable judgment by the judiciary is not sufficient
reason to constitute an exception to the prior exhaustion requirement in
this case.
36.
As for the lack of independence of the Judiciary and the
partiality of the judges alleged by petitioners, the Commission recalls
that it cannot be presumed prima
facie, for what is decisive is not the petitioners’ subjective
fear with respect to the impartiality that should be the characteristic
of the court that takes up the trial, but the fact that in the
circumstances it can be argued that their fears are objectively
justified. In this sense,
the European Court has said: “In principle, the personal impartiality
of the members of a ‘tribunal’ must be presumed until there is proof
to the contrary.”[30]
The petitioners have not provided sufficient proof in this
regard.
37.
Therefore, the Commission considers that said remedy was not
exhausted by the petitioners, for motives not imputable to the State,
and that they did not present evidence or information that would enable
the Commission to apply the exceptions to the exhaustion of domestic
remedies established at Article 46(2)(a) and (b).
38.
For the reasons set forth above, and considering that the
petition under study did not meet the requirement of exhaustion of
domestic remedies established in Article 46(1)(a) of the American
Convention, the Commission concludes that the petition is inadmissible.
In view of the foregoing, the IACHR refrains from examining the other
admissibility requirements set forth in the Convention, as the matter
has been found not to be ripe for consideration by the Commission.
V.
CONCLUSIONS
39.
The Commission has established that the present petition does not
meet the requirement set forth in Article 46(1)(a) and (b) of the
American Convention. Accordingly, the Commission concludes that the
petition is inadmissible, in keeping with Article 47(a) of the American
Convention.
40.
Based on the arguments of fact and law set forth above, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES:
1.
To declare the present petition inadmissible.
2.
To notify the parties of this decision.
3.
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., the 27th day of February 2002.
(Signed): Juan Méndez,
President; Marta Altolaguirre, First Vice-President; José Zalaquett,
Second Vice-President; Commission members: Robert K. Goldman, Julio
Prado Vallejo, and Clare K. Roberts,
[1]
See Note from attorney Milton Jiménez Puerto to the Executive
Secretariat, dated December 19, 2001. [2]
See Complaint in case 12.114, received at the IACHR June 10, 1997. [3]
See Complaint in case 12.114, received at the IACHR June 10, 1997. [4]
See Complaint in case 12.114, received at the IACHR June 10, 1997. [5]
See Complaint in case 12.114, received at the IACHR June 10, 1997. [6]
See Note from attorney Milton Jiménez Puerto to Executive Secretary
Jorge Taiana, dated December 17, 1999. [7]
See Complaint in case 12.114, received at the IACHR June 10, 1997. [8]
See Note from attorney Milton Jiménez Puerto to Executive Secretary
Jorge Taiana, dated December 17, 1999. [9]
See Petitioners’ observations to the Government’s answer of
August 30, 2000, of October 4, 2000. [10]
See Note from attorney Milton Jiménez Puerto to Executive Secretary
Jorge Taiana, dated December 17, 1999. [11]
Petitioners’ observations to the Government’s answer of August
30, 2000, of October 4, 2000. [12]
See Addendum a las
Observaciones a la Contestación Gubernamental, provided by Mr.
Jesús Zablah to the Executive Secretariat of the IACHR, February
24, 2000. [13]
See Addendum a las
Observaciones a la Contestación Gubernamental, provided by Mr.
Jesús Zablah to the Executive Secretariat of the IACHR, February
24, 2000. [14]
See Note from attorney Milton Jiménez Puerto to Executive Secretary
Jorge Taiana, dated December 17, 1999. [15]
See Official Note Nº 215-DDHN, Note from the Ministry of Foreign
Affairs of the Republic of Honduras to Executive Secretary Jorge
Taiana, dated August 30, 2000, p. 11. [16]
See Official Note Nº 081-DDHN from the Ministry of Foreign Affairs
of the Republic of Honduras to Executive Secretary Jorge Taiana,
dated July 9, 1999. [17]
See Official Note Nº 191-DGAE from the Ministry of Foreign Affairs
of the Republic of Honduras to Executive Secretary Jorge Taiana,
dated September 11, 2001. [18]
See Official Note Nº 191-DGAE from the Ministry of Foreign Affairs
of the Republic of Honduras to Executive Secretary Jorge Taiana,
dated September 11, 2001. [19]
See Official Note Nº 081-DDHN from the Ministry of Foreign Affairs
of the Republic of Honduras to Executive Secretary Jorge Taiana,
dated July 9, 1999, and Official Note Nº 215-DDHN, Note from the
Ministry of Foreign Affairs of the Republic of Honduras to Executive
Secretary Jorge Taiana, dated August 30, 2000, pp. 10 and 11. [20]
See Official Note Nº 081-DDHN from the Ministry of Foreign Affairs
of the Republic of Honduras to Executive Secretary Jorge Taiana,
dated July 9, 1999. [21]
See Official Note Nº 215-DDHN, Note from the Ministry of
Foreign Affairs of the Republic of Honduras to Executive Secretary
Jorge Taiana, dated August 30, 2000, p. 10. [22]
See Official Note Nº 215-DDHN, Note from the Ministry of
Foreign Affairs of the Republic of Honduras to Executive Secretary
Jorge Taiana, dated August 30, 2000, p. 11. [23]
Under Honduran legislation, a procedural opportunity lapses when no
initiative is taken to make use of it. In the case of the first
instance, the statute of limitations on the litigation runs three
years after the final notice to the parties, if no party has sought
to avail itself of it. [24]
See Official Note Nº 081-DDHN from the Ministry of Foreign Affairs
of the Republic of Honduras to Executive Secretary Jorge Taiana,
dated July 9, 1999. [25]
See Official Note Nº 215-DDHN, Note from the Ministry of Foreign
Affairs of the Republic of Honduras to Executive Secretary Jorge
Taiana, dated August 30, 2000, p. 7. [26]
This date corresponds to the opening of the case, and not to the
filing of the complaint with the IACHR, as the State indicated. [27]
Official Note Nº 081-DDHN from the Ministry of Foreign Affairs of
the Republic of Honduras to Executive Secretary Jorge Taiana, dated
July 9, 1999. In this respect, the State indicated that, in keeping
with Article 2292 of the Civil Code of the Republic of Honduras,
which stipulates that “personal actions for which no special term
is given shall prescribe after 10 years”; the action has yet to
prescribe, for the ten years have yet to elapse, thus the
petitioners could still bring a new action. [28]
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Preliminary Objections, Judgment of June 26, 1987, para. 88. [29]
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Judgment of July 29, 1988, para. 60. [30]
European Court of Human Rights, Albert
and Le Compte v. Belgium, February 10, 1983, Series A Nº 58,
Applications Nº 7299/75 and 7496/76 (1983) 5 EHRR 533, and 32.
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