María Merciadri de Morini v. Argentina, Case 11.307, Report No. 103/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 408 (2001).
REPORT No. 103/01*
MERCIADRI DE MORINI
On June 15, 1994, María Merciadri de Morini (hereinafter the
petitioner) filed a petition before the Inter-American Commission on
Human Rights (hereinafter the Commission, the Inter-American
Commission, or the IACHR) in which she alleged that the
Argentine Republic (hereinafter the State, the Argentine
State, or Argentina) had violated her rights to due process
(Article 8), the right to participate in government (Article 23), the right
to equal protection (Article 24) and the right to judicial protection (Article
25), set forth in the American Convention on Human Rights (hereinafter the
Convention or the American Convention).
The petitioner alleged that on the list of six candidates running on
the Unión Cívica Radical party ticket for election as national
deputies from the Province of Córdoba, one woman was fourth on the list and
another sixth. This was a violation of Law 24.012 and its governing decree
Nº 379/93, which required that two women be listed among the first five positions.
The petitioner invoked the available domestic remedies before the courts;
however, the latter not only dismissed her complaint but also denied her procedural
standing to bring an action. Finally,
the Supreme Court denied her appeal on the grounds that it was moot, ruling
that the votes that the Unión Cívica Radical carried in the October
3, 1993 election entitled it to four seats in the Chamber of Deputies; this
case was about who ended up in fifth place.
The Commission declared the case admissible in Report 102/99 of September
21, 1999, approved during its 104th regular session.
The Commission also placed itself at the disposal of the parties for
the purposes of reaching a friendly settlement based on respect for the rights
upheld in the Convention, and requested the parties to submit their views
on that possibility. A friendly
settlement agreement was reached on March 8, 2001, when the parties signed
an agreement in Buenos Aires wherein the petitioner states that Presidential
Decree Nº 1246, issued by the President of the Argentine Republic, Fernando
de la Rúa, adequately covers the fundamental issues that prompted the
complaint filed before the IACHR.
The present friendly settlement report, prepared in accordance with
Article 49 of the Convention and Article 41(5) of the Commissions Rules
of Procedure, sets forth the facts alleged by the petitioner and the friendly
settlement reached, as well as the Commissions decision to publish the
PROCEEDINGS BEFORE THE COMMISSION
The petitioner filed her petition with the IACHR on June 15, 1994.
A copy of that petition was then forwarded to the State on June 16,
1994. The State responded on
January 9, 1995, and the petitioner sent her comments on the States
response on February 27, 1995. The
State requested and received an extension and sent its response on May 4,
1995. The petitioner presented her comments on June 5, 1995 and the
State answered on August 10, 1995. On
October 11, 1995, the petitioner sent to the Commission a new communication
wherein she reiterated her previous arguments, and on November 17, 1997, forwarded
rulings in other court cases that would support her complaint.
The States response was received on February 18, 1998, and on
March 31, 1998, observations were received from the petitioner.
The Commission approved Report Nº 102/99 on September 21, 1999, during
its 104th regular session. In
that report, the Commission declared that it was competent to hear this case
and that the petition was admissible under Articles 46 and 47 of the Convention.
In accordance with Article 48(1)(f) of the Convention, the Commission,
on its own motion, also made itself available to the parties with a view to
arriving at a friendly settlement of the matter based on respect for the human
rights established in the Convention.
On October 12, 1999, the Commission sent the Admissibility Report to
On October 18, 1999, the petitioner supplied additional information.
On January 4, 2000, the State requested an extension and on March 14,
2000 informed the Commission that it was engaged in talks with the petitioner
with a view to arriving at a friendly settlement of the case.
On June 7, 2000, the petitioner informed the Commission that she was
still in talks with the State. On
August 17, 2000, the State reported that a draft decree governing Law 24.012
had been prepared that would adjust this provision to conform to the petitioners
position. It further reported that the competent State authorities had
the draft under study. The State
and the petitioner signed the friendly settlement on March 8, 2001.
The State forwarded the text of the agreement to the Commission by
a note of that same date.
The petitioner alleged that by mutual agreement among its leaders,
the Unión Cívica Radical political
party of the Province of Córdoba had put together the list of six names that
it was running for the national deputy seats up for election on October 3,
1993. It put the names of two
women in third and sixth place on the list, without taking into account that
the party had five national deputy seats up for election.
This was a violation of Law 24.012, called the Quota Act, enacted on
November 6, 1991, which guarantees that at least thirty percent (30%) of the
candidates on the political parties slates for elective office are to
be women, in numbers proportional to the chances of being elected.
Article 2 of Decree 378/93, which is the laws governing decree,
stipulates that the thirty percent quota that Law 24.012 sets for women,
shall be regarded as a minimum. If
application of the 30% formula results in fractions that are less than whole
numbers, the minimum number shall be the number shown in the table attached
as Appendix A, which is an integral part of this decree.
The appendix in question states:
seats to be filled, five; minimum number: two.
This provision is binding upon political parties when putting together
their lists of candidates, and the consequence of failure to comply shall
be denial of certification.
The law also establishes the corollary right of citizens entitled to
vote under the constitutional right of suffrage,
to be able to vote for slates of candidates on which women are represented
in accordance with the formula that the law stipulates.
The petitioner alleged that, as a registered voter affiliated with
that political party, she filed a complaint with the Board of Elections challenging
the slate. The complaint was
rejected on the grounds that the list of candidates was the product
of a consensus built among all factions of the party, which agreed upon a
single list. When she filed
an appeal, the federal court denied her request and declared that she did
not have legal standing to bring an action.
The petitioner appealed that decision, but the Federal Elections Court
also denied that she had legal standing to bring an action, on the grounds
that she had no personal stake in the matter. The petitioner contends that
the list drawn up by the Unión Cívica
Radical party violates the right of the voter to equal opportunity, for
men and women alike, to stand for elective office.
She further argues that any citizen has the right to challenge the
list, and need not be the party injured by his/her place on the list of candidates. The classic requisite that the plaintiff must have had a subjective
right violated or his/her concrete interests disregarded is not the applicable
paradigm, especially since the Argentine Supreme Courts ruling in Ekmekdjian
She also cites Article 57 of the Political Parties Statute Nº
23.298, which gives members of political parties standing before the court
when the rights they are given in the Statute are denied and when the
recourses within the party have been exhausted.
The petitioner filed an extraordinary appeal seeking reversal of the
decision on grounds that it was unconstitutional, but the court refused to
allow her appeal to go forward on the grounds that the election had been held
on October 3, 1993, and that the matter had therefore become moot.
Finally, she filed a complaint with the Supreme Court because of the
lower courts refusal to allow her appeal to go forward.
The Supreme Court, however, denied her appeal arguing that the
votes that the Unión Cívica Radical carried in the October 3, 1993
election entitled it to four seats in the Chamber of Deputies; this case was
about who ended up in fifth place.
The petitioner considers that the question was not moot
because there is a very concrete right of expectation that has
to be upheld were a vacancy to occur among those elected.
As matters stand, if such a vacancy were to occur, it would be filled
by a manthe one who is in fifth placeand not by a woman.
It is for that reason that a woman should have been listed in fifth
place and the man in sixth. Even
had there been only four seats to be filled, two women should have been elected
because one woman alone is equivalent to just 25% of the total, which is below
the legally mandated quota.
petitioner alleged that the State violated Articles 8 and 25 of the Convention
because the court of first instance had ruled that she did not have legal
standing to bring suit. The petitioner
further argued that, when the Supreme Court denied her complaint, it violated
the principle of equality before the law, upheld in Article 24 of the Convention,
thus violating her right to participate in government, provided for in Article
23 of the Convention.
The State and the petitioners signed a friendly settlement, the text
of which establishes the following:
Between the Argentine State, represented by the Minister of Foreign
Affairs, International Trade and Worship, Adalberto Rodríguez Giavarini, and
the petitioner in Case Nº 11.307, MARIA
TERESA MERCIADRI de MORINI, the following agreement is hereby concluded:
Concerning the petition filed by Dr. MORINI before the Inter-American
Commission on Human Rights on June 15, 1994, alleging violation of rights
recognized in the American Convention on Human Rights in Articles 8 (guarantees
of due process), 23 (right to participate in government), 24 (equal protection),
and 25 (judicial protection), which petition the Commission now has before
it and declared admissible on September 21, 1999 through Report Nº 102/99,
the parties wish to arrive at a friendly settlement, under the terms of Article
48(f) of the American Convention on Human Rights.
Accordingly, on December 28, 2000, the President of the Nation, Dr.
FERNANDO DE LA RUA, promulgated decree Nº 1246 a copy of which is attached-,
which contains the provisions
by which law Nº 24.012 shall be implemented and
strikes down regulatory decree Nº 379/93.
The Argentine State recognizes that this decree serves to ensure womens
concrete and effective participation in the lists of candidates for national
elective office, thus reinforcing the rights upheld in law 24.012, as well
as Article 37 of the Constitution, and in the counterpart provisions of the
international human rights treaties to which Argentina is party.
Petitioner Dr. MARIA TERESA MERCIADRI de MORINI hereby undertakes to
desist from the petition she filed with the Inter-American Commission on Human
Rights, registered as case Nº 11.307, as she recognizes that Decree Nº 1246/00
adequately provides for the fundamental issues she raised in the complaint
she filed with the Commission.
Both parties are grateful to the Inter-American Commission on Human
Rights for its important contribution and ask that it give its approval to
this friendly settlement and close case 11.307.
The above-cited friendly settlement was signed in Buenos Aires on March
8, 2001, by the Minister of Foreign Affairs, International Trade and Worship
and by the petitioner, Dr. María Teresa Merciadri de Morini, in the presence
of Dr. Santiago Canton, representing the Inter-American Commission on Human
Rights, and the President of the National Womens Council, Dr. Carmen
Decree Nº 1246, which President de la Rúa promulgated mindful of the
provisions of the Constitution and the friendly settlement process in this
case, contains the provisions by which Law Nº 24.012 shall be implemented
and repeals the previous implementing decree so as to ensure full compliance
with the provisions of that law:
AIRES, [DEC. 28, 2000]
SEEN law No. 24,012 which replaces Article 60 of the National Electoral Code
and its Implementing Decree No. 379 of March 8, 1993, and
on November 6, 1991, the HONORABLE CONGRESS OF THE NATION enacted a law requiring
that women be included on the political parties lists of candidates
for elective office; the consequences of a failure to comply with the obligatory
minimum percentage stipulated in Law Nº 24.012 extends to denial of certification
for the slate in question.
the provisions in question apply to slates of candidates presented for elective
office as national deputies, senators and members of a constituent assembly.
the reasoning at the time the law was enacted was that the purpose of Law
Nº 24.012 was to effectively integrate women into political life, thus avoiding
the delay that would ensue were women to be excluded from the ranks of candidates
having a reasonable expectation of being elected.
a consideration taken into account when Decree Nº 379/93 was promulgated was
that general rules had to be established to standardize implementation of
the law in question, so that all political parties and alliances would apply
the law in the same manner, thereby avoiding subsequent party or court challenges.
this intention notwithstanding, the differing interpretations that the various
political parties gave to the law and even the inconsistent rulings of the
courts on this matter necessitated a law that would take into account the
clearest and most protective interpretations by the courts.
important cases have not been able to be presented before the Supreme Court
because of the brevity of the period between a challenge to the list and election
this situation has not changed, despite the clear language of Article 37 of
the Constitution in effect since 1994 and Article 4(1) of the Convention on
the Elimination of All Forms of Discrimination against Womenwhich has
the status of constitutional law under Article 75(22) of the Constitution
as amended in 1994.
one aspect where the inconsistency is greatest is the position of women candidates
on the lists; in many cases, only men have ended up in listed positions that
have any expectation of being elected to office, in violation of Law Nº 24.012,
which clearly stipulates that women are to occupy, at a minimum, THIRTY PERCENT
(30%) of the places on a partys ticket that have a reasonable possibility
of being elected.
for all these reasons and bearing in mind the provisions of the Constitution,
and inasmuch as the Inter-American Commission on Human Rights has declared
Case Nº 11.307 María MERCIADRI de MORINIARGENTINA to be
admissible and has placed itself at the disposal of the parties for the purpose
of arriving at a friendly settlement based on respect for the rights recognized
in the American Convention on Human Rights,
it is imperative that Decree Nº 379/93 be repealed and that a new decree
be promulgated that effectively ensures compliance with the provisions of
Law Nº 24.012, the Constitution and international human rights treaties, which
have constitutional primacy.
this measure is issued in exercise of authorities based on Article 99(2) of
PRESIDENT OF THE ARGENTINE NATION
1 - Article 60 of the National Electoral Code, as replaced by Law Nº 24.012,
shall apply to all elective offices for deputy and senator to the National
Congress and members of a National Constituent Assembly.
2 - The THIRTY PERCENT (30%) of the offices that are to be filled by women,
as Law Nº 24.012 prescribes, is the minimum percentage. In cases where mathematical application of this formula leaves
less than a whole number, the minimum number shall be the next highest whole
number and shall be governed by the formulas in the table attached as Appendix
I, which is an integral part of this Decree.
3 - The minimum percentage required by Article 60 of the National Electoral
Code replaced by Law Nº 24.012 shall apply to all candidates on the list that
every political party, confederation or temporary alliance nominates.
To be in full compliance with the thirty percent requirement, however,
it must be applied to the number of seats that the political party, confederation
or temporary alliance has up for re-election.
4 - When a political party, confederation or alliance nominates a candidate
for the first time, seeks an incumbents re-election or is not seeking
re-election of any candidate, it shall, for purposes of Article 3 of this
Decree, bear in mind that the number of seats up for re-election is equal
to ONE(1). In that case, it shall
make no difference whether the candidate in first place is a man or a woman.
However, the candidate second on the ticket must be someone of the
opposite sex to the one whose name figures first on the ticket.
TWO (2) seats are up for re-election, one of the nominees shall always be
just ONE(1) or TWO(2) seats are up for re-election and the woman on the ticket
is in the third slot, this shall not constitute compliance with Law Nº 24.012.
more than TWO(2) seats are to be filled, a woman must figure in at least one
of the first THREE(3) slots on the ticket.
5 - When ONE(1), TWO(2) or more seats are up for re-election, the calculation
shall always be done starting with the first spot and the list shall have
at least ONE(1) woman for every TWO(2) men in order to meet the minimum percentage
required under Law Nº 24.012. Until
the THIRTY PERCENT (30%) quota required under Law Nº 24.012 has been met,
no three consecutive slots may be filled by persons of the same sex.
Whatever the case, affirmative action measures shall be the preferred
course, so that men and women truly have equal opportunity to seek elective
6 - Permanent or temporary confederations or alliances shall abide by the
provisions established in the preceding articles, and always ensure that names
of at least THIRTY PERCENT (30%) of the certified lists are those of women.
This rule obtains independently of their party affiliation, and with
the same requirements as those established for the political parties, without
7 - Political parties, confederations and alliances at the district and national
levels must amend their bylaws so that the system required under Law Nº 24.012
and the provisions of this Decree, can take full effect sufficiently in advance
of the 2001 election to fill seats in the legislature.
8 - If, using the procedure spelled out in Article 61 of the National Electoral
Code and the amendments thereto, a judge with electoral jurisdiction finds
that any of the women candidates among the minimum THIRTY PERCENT (30%) required
under Law 24.012, do not have the qualifications for the office or were listed
on the slate below where they should have been according to the system established
by this decree, said judge shall, in the same ruling on the candidates
qualifications, order the party, confederation or permanent or temporary alliance
to replace the unfit candidates or move up the candidates whose names are
too far down on the list. They
must do so within a period of FORTY-EIGHT (48) hours of being notified of
the decision. If the ruling is
not obeyed, the Court shall, on its own motion, move the women whose names
appear lower on the list. In
doing so, it must also be taken into account that the names on the list of
alternates must also meet the requirements set out in this Decree.
9 If, prior to the election, a women whose name appears on a certified
list dies, withdraws from the race, becomes incapacitated, or ceases to serve
in the position for whatever reason, her place on the list of candidates shall
be filled by the next woman whose name appears on the respective list.
This measure will only apply to the replacement of women.
10 In all districts nationwide, the lists or nominations consisting
of ONE (1) or several persons nominated to fill national elective offices
of any kind, shall abide by the minimum percentage established by Law Nº 24.012
and the provisions of this Decree.
11 All persons in a districts voter registration records have
the right to bring a case in the Electoral Court challenging any list of candidates
when they consider that the list was configured in violation of Law Nº 24.012.
12 - Decree 379 of March 8, 1993,
is hereby repealed.
13 - Let it be so notified, published, and recorded and filed with the National
Bureau of Government Records.
to be filled
Minimum number Seats to be filled
DETERMINATION AS TO COMPATIBILITY AND COMPLIANCE
The IACHR would again point out that under Articles 48(1)(f) and 49
of the Convention, the friendly settlement process is undertaken with a view
to reaching a friendly settlement of the matter on the basis of respect
for the human rights recognized in [the] Convention.
The acceptance of this process expresses the good faith of the State
to comply with the object and purpose of the Convention pursuant to the principle
of pacta sunt servanda, through
which states must comply with the obligations they undertake in treaties.
The Commission would also like to reiterate that the friendly settlement
procedure contemplated in the Convention permits the resolution of individual
cases in a non-contentious manner, and has been demonstrated in cases relative
to various countries to offer an important approach to resolving matters that
both parties may utilize.
The Inter-American Commission has closely followed the friendly settlement
process in the instant case. The
information recounted above demonstrates that the agreement has been fulfilled
in accordance with the provisions of the American Convention.
The Commission greatly values the efforts made by both parties to arrive
at a settlement based on the object and purpose of the Convention.
As the Commission has noted on other occasions, achieving the free
and full participation of women in political life is a priority for our hemisphere.
The purpose of Law Nº 24.012 is to effectively integrate women into
political life, and Decree Nº 1246, promulgated as an outcome of the settlement,
has the complementary objective of guaranteeing effective compliance with
Based on the foregoing considerations and given the procedure provided
for in Articles 48(1)(f) and 49 of the American Convention, the Commission
would like to once again convey its deep appreciation for the efforts made
by the parties and its satisfaction with the friendly settlement arrived at
in the instant case, based on the object and purpose of the American Convention.
On the basis of the considerations and conclusions set forth in this
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To approve the terms of the friendly settlement signed on March 8,
To make public this report and include it in the Commissions
Annual Report to the OAS General Assembly.
signed at the headquarters of the Inter-American Commission on Human Rights,
in the city of Washington D.C., on October 11, 2001.
(Signed): Claudio Grossman,
President; Marta Altolaguirre, Second Vice-President; Commission members Hélio
Bicudo, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.
The First Vice President of the IACHR, Juan E. Méndez, an Argentine national,
did not participate in the discussion or
decision on this report, in keeping with Article 19(2)(a) of the
Commissions Rules of Procedure.
The petitioner invokes Article 60, paragraph 2, in
fine of Law 24.012.
The petitioner invokes Article 37 of the Constitution, which guarantees
full exercise of the right to participate in government.
This decision ruled, inter alia,
on the hierarchy that international human rights treaties have within
Argentinas legal system.
The translations of this and other documents to English as used in the
present report were prepared by the Commission.
IACHR, Report No
68/99, Case 11.709, Luis María Gotelli
(h). Argentina. Decision of May 14, 1999.
IACHR, Friendly Settlement Report No 90/99, Case 11.713, Enxet-Lamenxay and Kayleyphapopyet ‑Riachito‑
Indigenous Communities. Paraguay. Decision of September 29, 1999.
IACHR, Considerations Regarding the Compatibility of the Affirmative
Action Measures Designed to Promote the Political Participation of Women
with the Principles of Equality and Non-Discrimination, Annual
Report of the IACHR 1999, OEA/Ser.L/V/II.106, Doc. 3 rev., 13 April
2000, Vol. II, Chapter VI, Section IV; see Report
of the Inter-American Commission on Human Rights on the Status of Women
in the Americas, OEA/Ser.L/V/II.100, Doc. 17, 13 Oct. 1998, V.C.