María Merciadri de Morini v. Argentina, Case 11.307, Report Nº 102/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 69 (1999).
On June 15, 1994, Mrs. María Merciadri de Morini (hereinafter
“the petitioner”) submitted a petition to the Inter-American Commission
on Human Rights (hereinafter “the Commission,” “the Inter-American Commission,”
or “the IACHR”) alleging that her rights to due process (Article 8),
to participation in government (Article 23), to equality before the
law (Article 24), and to effective recourse (Article 25), as set forth
in the American Convention on Human Rights (hereinafter “the Convention”
or “the American Convention”), had been violated by the Argentine Republic
(hereinafter “the State,” “the Argentine State,” or “Argentina”).
The petitioner claimed that on the six-candidate electoral list
drawn up by the Radical Civic Union (UCR) political party for the election
of national deputies in Córdoba province, one woman was placed in the
fourth position and another in the sixth.
This constituted a breach of Law 24.012 and its regulatory decree,
Nº 379/93, according to which two women had to be placed in the first
five positions. The petitioner
filed the available domestic remedies with the judicial authorities,
which not only rejected her petition but also denied her locus standi in the matter. Finally, the Supreme Court of Justice
of the Nation dismissed an appeal filed after the election had taken
place and after the political party in question had won four of the
six positions it contended. In
its dismissal it stated that, “in the elections of October 3, 1993,
the Radical Civic Union obtained enough votes for it to return four
national deputies, whereas the suit was disputing who should have run
as the fifth candidate.” The State reported that domestic remedies had
been exhausted in the case and asked the Commission to declare the petition
inadmissible because the allegations did not constitute a violation
of any of the rights protected by the Convention.
3. In examining the petition’s
admissibility, the Commission concluded that it is competent to hear
this case and that the case is admissible, in accordance with Articles
46 and 47 of the American Convention.
PROCESSING BY THE COMMISSION
The petitioner submitted her petition to the Commission on June
15, 1994, and it was sent to the State on June 16, 1994.
The Commission received a reply from the State on January 9,
1995, which was transmitted to the petitioner on January 18, 1995. The
petitioner submitted her comments on February 27, 1995, and these were
forwarded to the State on March 1, 1995.
The State requested an extension and replied on May 4, 1995.
The petitioner presented her comments on June 5, 1995.
The State replied on August 10, 1995.
On October 11, 1995, the petitioner sent a new communication,
repeating the position she had stated earlier.
On November 17, 1997, the petitioner sent a letter repeating
her complaint and asked the Commission to resolve the matter promptly;
she also attached judgments in other cases on which it could base its
decision. The Commission
incorporated this additional information into the case at hand because
their allegations were similar. On December 3, 1997, the letter was
forwarded to the State. The
State’s reply was received on February 18, 1998, and sent to the petitioner
on February 24, 1998. The
petitioner’s comments were received on March 31, 1998, and transmitted
to the State on May 26, 1998.
POSITIONS OF THE PARTIES
The petitioner alleged that the Radical Civic Union political
party in Córdoba province had finalized, by the common accord of its
leaders, a list of six candidates for the lower house of Congress, to
be used in the October 3, 1993, election, and that it had placed women
in the third and sixth positions, without considering that the party
would return only five national deputies.
This constituted a violation of Law 24.012 (known as “the Quota
Law”), which guarantees that a minimum of thirty percent of the elected
offices filled through party lists must be covered by women, “in proportions
allowing them the possibility of being elected.” In turn, Article 2
of Decree Nº 379/93, the regulations to the law, states that “the thirty
percent of positions to be covered by women, stipulated in Law 24.012,
must be understood as a minimum amount.
In cases where the mathematical application of this percentage
would yield a fractions smaller than one, the concept of the minimum
number shall be governed by the table attached to this decree as Annex
A.” This annex reads as follows: “positions to be replaced, five; minimum
6. These rules stipulate
that political parties must draw up their candidate lists in accordance
with the law, and that failure to do so will cause them to be invalid.
They also establish, as a correlation, the right of constitutionally
to vote for lists of candidates that include women in the proportions
stipulated in the law.
7. The petitioner claimed
that if the Radical Civic Union’s list did not comply with the law,
it was restricting and undermining the consequent right of voters to
ensure men and women true equality of opportunities for holding elected
office. The harm was that
citizens were prevented from voting for a legally composed list representing
the party of their choice forced to vote for a list that did not obey
the law, thus violating the full enjoyment of voters’ political rights.
The petitioner believes that for this reason, the voting citizen
cannot be refused authority to demand that the aforesaid right be respected.
The petitioner reported that, in her capacity as a member of
the political party in question, she challenged the list before the
Electoral Committee; this challenge was dismissed on May 20, 1993, with
the ruling that “the list of candidates arose from the consensus of
all the party groups, which agreed upon a single list.” She appealed
against that decision, after which, on June 22, 1993, the federal judicial
system rejected her application, upholding the defendant’s objection
that she lacked locus standi
in the matter. The petitioner then filed an appeal against this second
decision, which was dismissed by the Federal Electoral Court on August
13, 1993. On August 26,
1993, she filed an extraordinary remedy, which was rejected on October
7, 1993, on the grounds that the election had taken place on October
3, 1993, and that the matter was academic.
On October 18, 1993, the petitioner filed a complaint with the
Supreme Court of Justice of the Nation; this was dismissed on December
2, 1993, because “in the elections of October 3, 1993, the Radical Civic
Union obtained enough votes for it to return four national deputies
and the suit was disputing who should have run as its fifth candidate.”
9. The petitioner held
that Argentina’s justice system should have ruled in accordance with
the law and that the matter “was not academic.”
In this regard, she stated that attention should be paid to the
very “concrete” “right of expectation” of being appointed to serve as
a national deputy in the event of a vacancy among those elected.
If a vacancy arose, a man would take office–the one who was in
fifth place–and not, as should be the case, a woman.
Consequently, she maintained, a woman should have been placed
fifth, with a man in the sixth position.
Moreover, she held, even when four deputies were returned, two
women should be elected, because a single woman would represent 25 percent,
less than the legal quota. Consequently,
women cannot be placed in any position on the list without taking into
consideration the number of offices that are to be filled.
The petitioner also alleged that in rejecting her locus standi in the matter, the Federal Electoral Court demanded that
she have an unspecified particular interest–whether economic, social,
political, etc.–without considering the importance of the matter, which
is of common interest to all. With this her rights were violated, and
she claimed that all persons have the right to file a challenge without
necessarily being the person affected by the position he or she occupies
on an electoral list.
11. Similarly, the petitioner maintained
that the classic demand for a violated subjective right or for an unknown
concrete interest was incomprehensible, particularly in light of the
decision of Argentina’s highest court of law in the case of Ekmekdjian
vs. Sofovich. She also said that attention had to be paid
to Article 57 of the Organic Law of Political Parties, Nº 23.298, which
specifically recognizes the locus
standi of members of recognized parties “when they have been denied
rights granted by the Constitution and the party’s remedies have been
The petitioner alleged that the State violated Articles 8 and
25 of the American Convention because the first-instance court ruled
that she had no locus standi
in the matter. She also
held that by dismissing her suit, the Supreme Court violated the principle
of equality enshrined in Article 24, which in turn implied a breach
of the political rights protected by Article 23 of the American Convention.
13. In later submissions, the petitioner
included another similar case that occurred after the one described
in her original petition. Specifically,
for illustrative purposes, she included a comparable case in which the
National Electoral Court, on May 30, 1995, ruled in accordance with
her claims and ordered that the woman be raised to the fifth position
and the man moved down to the sixth.
The petitioner reported that this case was upheld in her favor
when the Supreme Court rejected the appeals filed by the respondent.
In addition, the petitioner also sent the Commission the proceedings
initiated by María Florentina Gómez Miranda,
in order to “show that the reasons which motivated the petition
are still in place.”
She also cited another case in which the Electoral Court authorized
the same political party in Córdoba province a list on which the women
likely to be elected accounted for 25 percent, for use during the elections
that took place on October 26, 1997.
The petitioner reported that domestic remedies had not been exhausted
in this case.
The State noted that domestic remedies had been exhausted in
this case but that the petition was inadmissible in that it did not
describe actions that violated the Convention.
As regards its substance, the State maintained first of all that
the lists of candidates used in elections, in addition to being validated
by the electoral judiciary prior to the vote, have their composition
validated by the electorate. It
could therefore offer no alternative that did not in some way undermine
the people’s will as expressed at the polls.
In order to show that women’s rights on electoral lists were
indeed respected, the State attached other decisions in cases brought
by the petitioner, in which the court ruled that the Radical Civic Union
had to modify its lists to include two women among the first five places
before submitting them to the electoral judiciary.
Specifically, it attached the National Electoral Court’s ruling
of March 30, 1995, overturning the December 21, 1994, decision by the
federal judge responsible for electoral matters in the city of Córdoba
in the case of Merciadri de Morini,
María Teresa re. Representation. The court’s decision in this case stated that, “the 30%
quota should be in proportions that are likely to be elected, which
is to be understood as meaning a real or actual possibility thereof.”
In addition, the petitioner’s locus
standi was acknowledged and the electoral courts were informed that
pursuant to Article 60, first paragraph, of the National Electoral Code,
two women must appear among the first five places.
Secondly, the State claimed that it did not fall to the Commission
to examine the composition of electoral lists.
It also stated that their composition could not be seen as violating
any of the rights enshrined in the Convention.
The State also cited the fourth instance doctrine, according
to which the Commission cannot serve as an appeals court for examining
alleged factual or legal errors committed by domestic courts acting
within the confines of their competence.
In later submissions, the State included cases showing that women’s
rights were respected by the electoral justice system.
The State also reported that during the Commission’s processing
of the original petition, the petitioner had introduced issues unrelated
to it, such as the action brought by María Florentina Gómez Miranda;
the comparable incident during the 1997 elections, in which domestic
remedies had not been exhausted; and the third case she submitted, in
which the judiciary had ruled in the petitioner’s favor, thus satisfying
her claim before the domestic courts.
The State reported that amendments to the Constitution were introduced
on August 24, 1994, under which the new Article 37, final part, orders
true equality of opportunities among men and women aspiring to party
and elected office, to be guaranteed through positive actions in the
regulation of political parties and in the electoral system.
ANALYSIS OF ADMISSIBILITY
The Commission’s competence ratione
temporis, ratione materiae, and
The Commission is competent ratione
temporis [by reason of time] to hear this case since, firstly, the
petitioner maintains that the Argentine State incurred in international
responsibility through the decision handed down by its Supreme Court
of Justice on December 2, 1993, and that this took place after the State
had presented its instrument of ratification of the American Convention
to the General Secretariat of the Organization of American States on
September 5, 1984.
Secondly, as regards its ratione
materiae competence [by reason of subject], the original petition
alleges violations of rights enshrined in Articles 8, 23, 24, and 25
of the American Convention.
Regarding its passive ratione
personae competence [by reason of the person], the petitioner claims
that the violations were committed by Argentina, a member state. Regarding
its active ratione personae competence
[by reason of the person], the petitioner claims that said violations
were committed to her own detriment and she described herself as the
direct victim thereof.
Other requirements for the admissibility of the petition
Exhaustion of domestic remedies
The rule contained in Article 46(1)(a) of the Convention, requiring
that the remedies offered by domestic law first be pursued and exhausted,
stipulates that the substance of all petitions brought before the Commission
must have first been heard by the domestic courts.
This rule allows states to resolve disputes under their own legal
systems before facing international proceedings.
In the case at hand, the Commission notes that the petitioner
invoked domestic remedies by presenting a complaint regarding the omission
of a position for women on the list of candidates put forward by the
Radical Civic Union for the October 3, 1993, elections.
After the petitioner had filed ordinary and extraordinary appeals
before the national judicial authorities, the suit was dismissed by
the Argentine Supreme Court. The State holds that in this case the remedies
offered by domestic law have been pursued and exhausted in accordance
with Article 46(1)(a) of the American Convention. For the reasons given above, the Commission concludes that
this requirement has been met.
46 (1) (b) of the Convention stipulates that for a petition to be admissible,
it must be submitted to the Commission within six months of the date
on which the petitioner was notified of the final ruling.
The Commission notes that the final ruling was handed down by
the Supreme Court on December 2, 1993.
The petition was placed before the Commission on June 15, 1994,
within the six-month period. The
Commission concludes that this requirement has been met.
Duplication of proceedings and res
With regard to the requirement in Article 46(1)(c) of the Convention,
stating that the petition must not be pending settlement in any other
international proceeding, the Commission has received no information
indicating that any such situation exists.
The Commission therefore holds that this requirement has been
met. In addition, the Commission
also concludes that the requirement set forth in Article 47(d) has been
met, in that this petition is not substantially the same as any petition
already studied by the Commission or ruled on by another international
Nature of the violations
47(b) of the Convention rules 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.” The petitioner claimed that as a result of decisions
handed down by the Argentine courts, the State violated the rights of
due process (Article 8), of participation in government (Article
23), of equality before the law (Article 24), and of effective recourse
(Article 25), as set forth in the Convention.
The Commission believes that the facts alleged by the petitioner,
if proven true, could constitute violations of rights protected by the
American Convention. The
Commission therefore concludes that this requirement has been met.
28. The Commission concludes that it
is competent to hear this case and that the petition is admissible,
pursuant to Articles 46 and 47 of the American Convention.
29. Based on the factual and legal
arguments given above, and without prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible as regards the alleged violations
of Articles 8, 23, 24, and 25 of the American Convention;
To notify the parties of this decision;
To continue with its analysis of the merits of the case;
To make itself available to the parties with a view toward reaching
a friendly settlement based on respect for the rights enshrined in the
American Convention, and to invite the parties to make a statement regarding
the possibility thereof; and,
To publish this decision and to 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 September 27, 1999.
K. Goldman, Chairman; Hélio Bicudo, First Vice-Chairman; Claudio Grossman,
Second Vice-Chairman; and Commissioners Carlos Ayala Corao, Alvaro Tirado
Mejía, and Jean Joseph Exumé.
The petitioner cites Article 60 (end of second paragraph) of Law
The petitioner cites Article 37 of the Constitution of the Nation,
which guarantees “full enjoyment of political rights.”
This decision ruled on matters including the hierarchical position
of international human rights treaties in Argentina.
File Nº 1836/95.
File Nº 2779/96.
Communication received on April 2, 1998.