Wilma Rosa Posadas v. Argentina, Petition 15/00, Report No. 122/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 375 (2001).
REPORT No. 122/01
WILMA ROSA POSADAS
October 10, 2001
PROCEEDINGS BEFORE THE COMMISSION
On September 26, 1995, the Inter-American Commission on Human Rights
(hereinafter the Commission or IACHR) received a complaint
against the State of Argentina in connection with the situation of Wilma Rosa
Posadas. On October 10, 1995, the Commission acknowledged receipt of the complaint
and informed the petitioner that it would not be able to process her communication
because the requirements stipulated in the Commissions Regulations had
not been fulfilled. Specifically,
the Commission indicated that, according to its review, the facts of her case
did not tend to characterize a violation of the rights guaranteed under the
Convention, as required under Article 47(b).
On October 30 of that year, the petitioner requested clarification
from the Commission as to the meaning of the note wherein it had advised her
that it could not process the complaint, specifically as to whether the Commissions
Executive Secretariat had the authority to adopt a decision of that type.
On November 17, 1995, the petitioner sent a communication via fax,
wherein she asked that the Executive Secretariats decision be reviewed,
and if upheld, that it be set forth in a duly substantiated decision on inadmissibility.
The petitioner reiterated her request in an undated communication contained
in the case file. Finally, on
January 14, 2000, with the representation of an attorney, the petitioner submitted
a new petition to the Commission recounting the same facts.
The petition was registered as number 0015/00. Copies of the same documents she had enclosed with her original
petition were attached.
The petitioner alleged violations of the rights protected in Articles
4 (right to life), 5 (right to humane treatment), 8 (right to a fair trial),
21 (right to property) and 25 (right to judicial protection) of the American
Convention on Human Rights.
DESCRIPTION OF THE FACTS AND ARGUMENTS
From March 26, 1979 to May 27, 1991, Wilma Posadas worked as a secretary
in the legal department of the firm of Astilleros
Alianza S.A. de Construcciones Navales, Industrial, Comercial y Financiera
(hereinafter Alianza). On
May 27, 1991, she received a telegram advising her that she was being discharged
from the company. The reason
cited for her dismissal was a lack of work not attributable to the company.
According to the petition, Alianza refused to pay the petitioner her
final months salary and the overtime and wage differentials she was
owed. It also refused to give
her any certification of her last years of service, which she needed to claim
the benefits of early retirement.
Having rejected the cause invoked by Alianza and received no response,
on September 2, 1991, the petitioner filed suit against the firm in National
Labor Court No. 11, demanding payment of US$19,440.12 for her last months
pay, salary differentials, unpaid overtime and compensation for dismissal
without just cause. In his decision of May 5, 1993, the Labor Court Judge concluded
that the grounds the firm had claimed for her dismissal did not appear to
be justified. He thus upheld
part of the petitioners suit and ordered Alianza to pay $10,900 pesos
for severance and wages; that is, compensation for failure to give advance
notice, severance compensation, compensation for wages, payment of the last
month of work, compensation for unpaid vacation time and a portion of the
annual bonus. However, the judge
did not uphold her demand for payment of overtime and salary differentials,
because the upper-level administrative personnel in the legal office, including
legal secretaries, were not covered under any collective labor agreement and
therefore were not so entitled. On May 27, 1993, the petitioner appealed the lower court ruling
before the Appellate Labor Court, which in a ruling of April 29, 1994, agreed
to hear the overtime complaint and decided to increase the sum of the award
to $13,601 pesos. Dissatisfied with the appellate court ruling, on June 28,
1994 the petitioner filed a special appeal, which that same court denied.
Finally, the petitioner filed an extraordinary appeal before the Supreme
Court which, in a ruling of March 28, 1995, dismissed it on the grounds that
the appeal sought was inadmissible.
The petitioner argues, inter
alia, that the rulings at the three levels of the judiciary that intervened
in the case were inconsistent with the most elementary notions of justice,
as they arbitrarily stripped her of what belonged to her; that when the case
was still before the lower court, a systematic-arbitrary mutilation
of important evidence occurred and that in a flagrant
affront to the objective truth, more than 50% of the pension
she would have been entitled to receive with the higher salary that was her
real salary was frozen for life and she was assigned an amount
that was less than what she was legally entitled to receive in overtime.
The information in the case file indicates that the petitioner had
access to the various remedies under domestic law and that the courts upheld
the better part of her legal claims. The lower court found that her dismissal
was without just cause and ordered the firm of Alianza to pay the petitioner
not just the last salary owed but also all social benefits to which she was
entitled, as well as compensation for the damages that the dismissal caused.
Then the appellate court not only upheld the lower court ruling but
ordered payment of the overtime she was due.
Because the exact amount could not be calculated, the appellate court
estimated the amount in accordance with the law.
Therefore, the only claim that the petitioner did not win in the local
courts was the claim concerning salary differentials.
However, both the lower court and the appellate court ruled that the
petitioner was not entitled to the increases ordered by the Argentine Naval
Workers Union, since as the petitioner herself acknowledged, she was
not covered under the agreement and documents signed by that union,
as her post was classified as upper level administrative personnel.
From the evidence supplied by the petitioner, the Commission concludes
that the refusal to examine evidence that the petitioner is claiming was due
to the fact that the evidence in question was requested extemporaneously.
The appellate court ruling on this particular point was that there
is a legal deadline by which a litigant must ask the court to order evidence;
because that request for evidence was not made within the legal time frame,
the evidence was inadmissible.
Therefore, in the instant case, while the Commission observes the petitioners
deep sense of dissatisfaction with the outcome of the case, it does not find
anything arbitrary in its handling.
The States obligation to administer justice is a guarantee of
the means but not of the outcome, hence, its duty is not breached just because
the outcome does not satisfy all the petitioners claims.
Thus, mere dissatisfaction with the outcome obtained from the administration
of justice is not sufficient to disqualify it as arbitrary.
Under the preamble of the American Convention on Human Rights, the
protection that the organs of the inter-American system for the protection
of human rights offers is intended to complement the protection afforded by
the local courts.
The Commission cannot take upon itself the functions of an appeals
court in order to examine alleged
errors of fact or law that local courts may have committed while acting within
the scope of their jurisdiction, unless there is unequivocal evidence that
the guarantees of due process recognized in the American Convention have been
violated. In the instant case, the Commission finds nothing imputable to the
administration of justice in Argentina that would tend to characterize a violation
of the rights protected in that instrument.
11. For these reasons, the Commission considers
that the material facts of the petition under study do not tend to establish
a violation of the American Convention and therefore declares it inadmissible,
pursuant to Article 47(b) of the American Convention.
Based on the analysis and conclusions set forth in this report,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
To declare the present petition inadmissible.
2. To notify the petitioner of this
3. To publish this decision and include
it in the Commissions 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 October 10, 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 discussions or vote on this petition, in keeping
with Article 17(2)(a) of the Commissions Rules of Procedure.
Appellate Labor Court, ruling of April 29, 1994.
National Labor Court Nº 11, ruling of May 5, 1993.
This was the finding of the Inter-American Court of Human Rights in the
Godinez Cruz Case concerning
the obligation to prevent and investigate crimes.
Judgment of January 20, 1989, par. 188.
The preamble to the American Convention on Human Rights justifies international
protection in the form of a convention to reinforce or complement the
protection afforded by the domestic law of the American States.