Senedores Nacionales de la Provincia del Chaco v. Argentina, Case 12.135, Report N° 132/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 170 (1999).
ELECTION OF NATIONAL SENATORS FOR THE PROVINCE OF EL CHACO
November 19, 1999
On January 25, 1999, Angel Rozas, Eduardo Aníbal Moro, Carlos Angel
Pavicich, Leandro Despouy, Olinda Montenegro, and María Teresa Flores (hereinafter
"the petitioners"), lodged a petition with the Inter-American Commission
on Human Rights (hereinafter "the Commission", the "Inter-American
Commission" or the "IACHR") alleging violation by the Argentine
Republic (hereinafter the "State", the "Argentine State"
or "Argentina") of the rights to a fair trial (Article 8), to participate
in government (Article 23), to equal protection (Article 24), and to judicial
protection (Article 25), and of the obligation of the states parties to respect
rights without any discrimination (Article 1(1)), provided for in the American
Convention on Human Rights (hereinafter "the Convention", or the
The petition alleges that the Argentine State violated the rights of
Angel Pavicich and Olinda Montenegro inasmuch as the Senate, despite the fact
that they fulfilled the requirements for occupying the positions of Senators
for the Province of El Chaco, issued Resolution 1083/98 whereby it dismissed
their claims and instated in those positions Mr. Hugo Abel Sager and Mrs.
Lidia Beatriz Ayala. The petition
further asserts that the State violated the rights to a fair trial and to
effective recourse as a result of the decisions rendered by the Supreme Court
and the National Electoral Chamber.
The State affirms that the requirements set forth in Article 46 of
the American Convention had been met.
However, the State alleged that the complaint does not satisfy the
requirement established in Article 47(b) of the Convention and requested that
the Commission declare the case inadmissible.
4. The Commission decided
to declare the instant case admissible as it fulfills the requirements provided
for in Articles 46 and 47 of the Convention.
PROCESSING BY THE COMMISSION
The Commission received the petition on January 25, 1999. The petitioners
also requested a hearing before the Commission.
On March 4, 1999, during the 102nd regular session of the IACHR, the
Commission held a hearing that was attended by the representatives both of
the petitioners and of the State in order to set out their positions with
respect to the admissibility of the case.
The Commission opened the instant case on April 19, 1999, and sent
the pertinent portions to the State, granting it a period of 90 days in which
to reply counted from the date said communication was received: April 26,
1999. On July 23, 1999, the State was granted an extension of 45 days in which
to submit its observations on the instant case. On September 20 the State
was accorded an additional extension until October 18, 1999. The Commission
received the State’s observations on October 15 and forwarded them to the
petitioners on October 26, 1999, giving them a period of fifteen days in which
to respond. The petitioners submitted their observations on November 12,
1999, attaching, among other elements, a decision of the Inter-Parliamentary
Union referring to the instant case, dated October 16, 1999.
POSITIONS OF THE PARTIES
6. For the purposes of
the instant report, which addresses the admissibility of the case, the positions
of the parties may be summed as follows:
7. By virtue of Article
54 of the Argentine Constitution of 1994, each province is represented by
three senators who sit in the Senate.
According to the transitory regime that governs the elections of 1995
and 1998, provinces have the exclusive power, via their Legislatures, to elect
their representatives in the Senate under an indirect system until 2001, from
which point senators shall be elected by direct vote of the citizens of each
province. The instant case deals
with the procedure applied for the election and appointment of senators for
the Province of El Chaco in 1998 and the decisions of the judicial organs
upon taking cognizance of the various remedies sought by the petitioners under
The petitioners allege that Carlos
Angel Pavicich and Olinda Montenegro met
all the requirements set out in the Constitution in order to be elected senators.
First, the political parties, Unión
Cívica Radical, Socialista, Intransigente, Autonomía de Bases, and Principios,
all from El Chaco District and members of the political alliance, Alianza
Frente de Todos, which won the provincial elections in 1997, agreed to
put forward Mr. Carlos Angel Pavicich and Mrs. Olinda Montenegro as candidates
for senator and alternate, respectively, in order to fill the seat of the
second senator for the majority. By
the same token, on September 21, 1998, the other parties making up the above
alliance, namely the partido Demócrata Cristiano, Movimiento de Izquierda
and Nuevo Espacio (in process of formation), formally endorsed the aforementioned
Second, the candidates satisfy the legal and statutory conditions,
since on that same date the representatives of Alianza
Frente de Todos requested the Federal Judge with competence over electoral
matters to issue a certification of fulfillment of legal and statutory requirements
by the aforementioned candidates. This
certification was issued by the National Electoral Chamber on September 23,
1998. Third, they were appointed
on September 25, 1998 by the Chamber of Deputies, and the Senate was notified
on October 2, 1998.
The petitioners say that the majority party membership of Alianza
Frente de Todos in the Provincial Legislature is composed of 16 deputies
and that the party membership of the Justicialista party of El Chaco is made
up of 13 deputies. The latter
objected to the appointment of Mr. Pavicich
and Mrs. Montenegro in the Senate, alleging
that the Justicialista party was the political party with the largest number
of members in the Legislature at the time of the election.
The parties attended a public hearing in the Senate on October 13,
1998 to present their positions. On
October 21, 1998 the Senate decided to approve the objection presented by
the Justicialista party and to dismiss the claims of Mr. Pavicich and Mrs.
Montenegro because the electoral alliance that had put them forward as candidates did not
hold a majority of seats in the Provincial Legislature.
Furthermore, the Senate appointed Mr. Sager and Mrs. Ayala of the Justicialista
party as Senator and alternate for the Province of El Chaco.
11. In accordance with Article 64 of
the Constitution, Provinces elect senators and the only power that the Senate
has is to declare that the person elected does not satisfy the conditions
for holding the post; it cannot, however, act as an elector.
The petitioners allege that the Senate exceeded its authority because
in the instant case no “titles” were granted by the competent authority to
Mr. Sager and Mrs. Ayala of the Justicialista party.
12. The petitioners also state that
Article 4 of the Rules of Procedure of the Senate provides that “when any
of the senators-elect is rejected, the Speaker of the Senate shall communicate
that fact to the Executive Branch and to the provincial governments in order
to hold a new election”. In such
cases, then, the only admissible course of action would be nullification and
to inform the provincial legislatures of those facts in order that they proceed
to hold a new election.
As to fulfillment of the requirements of admissibility, the petitioners
allege that the domestic remedies available to them have been exhausted.
On November 12, 1998, the Governor of the Province of El Chaco requested
the Supreme Court of Justice to declare the decision of the Senate unconstitutional
and to pass a motion not to innovate in order to prevent the senators allegedly
appointed in an irregular manner from being sworn in.
14. On November 24, 1998, the Supreme
Court of Justice rejected the petition not to innovate and the complaint because
it considered that they involved a political matter not subject to jurisdiction.
The following day the senators appointed by the Senate proceeded to
be sworn in and instated in their posts.
Carlos Angel Pavicich and Olinda Montenegro filed an amparo
proceeding with a federal judge with competency over electoral matters
against Senate Resolution DR-1083/98 for violation of the rights to participate
in government of the senators elected in accordance with the rules. In addition to that amparo
proceeding they sought precautionary measures designed to prevent the
swearing in of the senators appointed in an irregular manner.
On November 23, 1998, the National Electoral Chamber approved the precautionary
measure "informing the H[onorable] Senate, personified by its speaker,
that it must forbear from carrying out Resolution DR-1083/98 of that H[onorable]
Body, which provides the incorporation of Mr. Hugo Abel Sager as titular Senator
for the Province of El Chaco and Mrs. Lidia Beatriz Ayala as alternate Senator
for that same province for the period 1998-2001, until such time as a final
judgement is rendered on the principal cause". The final judgement of
December 18, 1998 found that the decision of the Supreme Court of Justice
must be obeyed.
The Supreme Court of Justice decided not to pronounce judgement
on the case, invoking the doctrine on political matters not subject to jurisdiction.
The petitioners allege that this is an arbitrary judgement and that
the State has violated Articles 8 and 25 of the Convention by infringing upon
the rights to due process and to effective judicial protection.
18. The State recognizes that domestic
remedies have effectively been exhausted by the judgement of the Supreme Court
of Justice of November 24, 1998, and that the deadline provided for in Article
46(1)(b) of the Convention had been met, and that the matter is not pending
in another international proceeding for settlement.
However, it requests, on the basis of Article 47(b) that the petitioners’
complaint be declared inadmissible because it does not state
facts that tend to establish a violation of the rights guaranteed by the Convention
and advised that, should the Commission pronounce a decision on the matter,
it would be acting as a fourth instance.
19. The State says that in the instant
case, both the Alianza Frente de Todos
party and the Justicialista Party
claimed to have the majority in the Legislature.
The Senate decided that the senator‘s seat for the period 1998-2001
in representation of the Province of El Chaco corresponded to the Justicialista
party on grounds of it being the party that had the most number of seats in
the Provincial Legislature at the time of the senatorial election and that
Alianza Frente de Todos did not
have the right to have its candidate appointed.
The State alleges that, at the time of the election, the Provincial
Legislature had 13 deputies from the Justicialista party, 10 from Alianza
Frente de Todos, five from the Unión
Cívica Radical (U.C.R.) party, and four from the Acción
Chaqueña party. The electoral alliance Frente
de Todos is one thing, and the parliamentary faction Alianza Frente de Todos another.
The electoral alliance gave its mandate to 10 deputies, while the parliamentary
faction incorporated other forces and, in addition, included five legislators
who represent Unión Cívica Radical,
together with one from the Acción Chaqueña
21. The State affirms that the Senate,
in making its decision, abided by what is stated in the text of the Constitution,
which refers to "electoral alliances" and not to "parliamentary
alliances". It also based
its decision on Law 24.444, which imposed the criterion of the "origin
of the mandate or of the seat" for the purposes of determining how many
seats corresponded to each party or electoral alliance.
The State alleges that Law 24.444 refers also to the electoral alliances
or parties “that took part in the last provincial election to renew provincial
legislative posts.” Therefore, only the three parties that took part in the
1997 provincial election may be considered: the Acción
Chaqueña party, Alianza Frente de
Todos, and the Justicialista
party. Unión Cívica Radical, as
an individual party, and for as long as the electoral alliance formed for
the election of 1997 remained in full effect, could not, on its own, have
nominated any candidate to occupy a senator’s seat.
The inability to obtain the necessary number of legislators, either
elected for Unión Cívica Radical
in 1995, or incorporated in Alianza
Frente de Todos in 1997, has to do with respect for the will of the voters
in 1995, who backed the identities and profiles of different parties.
23. The State alleges that the Constitution
of the Province of El Chaco was reformed and the power of the Chamber of Deputies
to “elect senators and consider their resignations”
was abolished, it remaining implicit that the Fourth Transitory Clause of
the Argentine Constitution would apply directly.
Furthermore, Article 4 of the Rules of Procedure of the Senate requires
that a new member be elected whenever the position of a senator becomes vacant;
however, the State advises that the case sub-examine
does not involve a situation in which such a rule would apply.
The Senate considered as sufficient "title" for the candidacy
of Mr. Hugo Sager and Mrs. Lidia Ayala the communication of the Provincial
Legislature, which mentioned who voted for each candidate and specified the
composition of the parliamentary factions, the choice of party to which the
seat pertained, and the respective electoral certification.
As for the rights to a fair trial and to effective recourse, the State
alleges that the Supreme Court of Justice exercised its judicial authority
to determine if the proceedings of the Senate were in keeping with the Constitution
and legal procedures and regulations, and it concluded that the Senate had
acted without overstepping the bounds of the law.
Furthermore, the judgement of the Supreme Court of Justice is based
on grounds that warrant the operative part of the ruling and which, even though
unfavorable to the petitioners’ claim, cannot for that reason be called arbitrary
as there is an “apparent basis” for it.
The State says that the petitioners, represented by the Government
of the Province of El Chaco, had access to a simple and prompt recourse in
the form of the declaratory action they filed alleging the unconstitutionality
of Senate Resolution DR-1083/98 before the Supreme Court of Justice, and that
they had a chance, if they proved violation of the Constitution, of obtaining
a judicial decision quashing the actions performed by the Senate.
The State also alleges that the petitioners’ right to defense was also
Competence of the Commission ratione
loci, ratione personae, ratione temporis and ratione materiae
The Commission is competent to take up the petition lodged by the petitioners.
The facts alleged in the petition purportedly harmed individuals subject
to the jurisdiction of the State when the duty to respect and ensure the rights
recognized in the American Convention was in force for the State.
Accordingly the Commission now proceeds to analyze whether the instant
case satisfies other requirements provided for in Articles 46 and 47 of the
Other admissibility requirements for the petition
a. Exhaustion of domestic
Article 46(1)(a) of the Convention establishes as a requirement for
a petition to be admitted, “that the remedies
under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law”.
In the instant case the petitioners alleged that domestic remedies
in relation to the alleged violations were exhausted with the lodging of two
petitions. The State declared
that the remedies under domestic law had been exhausted in accordance with
the provisions of Article 46(1)(a) of the Convention. Therefore, the Commission concludes that the petition meets
the requirement set out in Article 46(1)(a) of the Convention.
Period of presentation
Article 46(1)(b) of the American
Convention provides as a requirement in order for a petition to be admitted
that it must be "lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the final judgment".
The State declares that the petitioners presented themselves to the
Commission within the period fixed in the forenamed provision. Accordingly,
the Commission concludes that the petition was lodged within the six-month
period provided in Article 46(1)(b) of the American Convention.
Duplication of proceedings and res
Articles 46(1)(c) and 47(d), respectively, of the Convention provide as
admissibility requirements that the
subject of the petition or communication not be pending in another international
proceeding for settlement, nor be substantially
the same as one previously studied by the Commission or by another international
organization. The Argentine State expressly
said that the requirement set out in Article 46(1)(c) had been met. The
Commission considers the subject of the petition is not the
same as one previously studied by the Commission or by another international
the Commission concludes that the requirements set out in Articles 46(1)(c)
and 47(d) of the Convention have been met.
Characterization of the alleged facts
Article 47(b) of the Convention provides that the Commission shall
consider inadmissible any petition that “does not state facts that tend to establish a violation of the rights guaranteed”
by the Convention. The Commission considers that, in principle, the
allegations presented by the petitioners refer to facts that tend
to establish possible violations of the rights guaranteed in Articles
1, 8, 23, 24, and 25 of the Convention.
Consequently, the Commission concludes that the requirement contained
in Article 47 (b) of the American Convention has been met.
31. The Commission concludes that it
is competent to take cognizance of this case and that the petition is admissible
in accordance with Articles 46 and 47 of the Convention.
Based on the foregoing de facto
and de jure arguments and without prejudging the merits of the matter,
THE INTER-AMERICAN COMMISSION ON
To declare the instant case admissible in respect of the alleged violations
of Articles 1, 8, 23, 24, and 25 of the Convention.
To notify the parties of this decision.
To continue to examine the merits of the case;
To place itself at the disposal of the parties with
a view to reaching a friendly settlement on the basis of respect for the human
rights enshrined in the Convention and to invite the parties to give
their opinion on that possibility, and
5. To publish this decision and include it in the 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 San José, Costa Rica, on this the 19th day of November of 1999. (Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First Vice Chairman; Claudio Grossman, Second Vice Chairman; Commission Members: Alvaro Tirado Mejía, Jean Joseph Exumé and Carlos Ayala Corao.
The petitioners cite Articles 1, 5, and 121 of the Constitution.
The petitioners cite the experts on constitutional law, Daniel Sabsay
and Germán Bidart Campos.
The State cites the daily minutes of the sessions of the Chamber of Deputies
of December 22, 1994 and the daily minutes of the sessions of the Senate
of December 15 and 22, 1994.
Clause 26 of former Article 115 –
now Article 119.
The Supreme Court of Justice maintained, "that makes it possible
to rule out possible unfamiliarity with provincial autonomies” (legal
reason 12, vote of Justices Nazareno, Moliné O´Connor, and López).
The State cites as precedents the decisions of November 30, 1995 in the
Province of El Chaco itself and of February 14, 1996 in the Province of
Santiago del Estero.
The State cites legal
8, 10, 12, 13, 14, and 18 of the vote of Justices Nazareno, Moliné O´Connor
and López in the judgement of the Supreme Court of Justice.
The State cites legal reasons 18 of the majority vote, and 17 of the vote
of Justices Nazareno,
Moliné O´Connor and López.