Horacio Anibal Schillizzi Moreno v. Argentina, Case 11.732, Report Nº 22/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 127 (1999).
On February 20, 1997, the Bar Association of the Federal
Capital of Argentina (Colegio
Público de Abogados de la Capital Federal, hereinafter "Colegio
Público"), the Legal and Social Studies Center (Centro
de Estudios Legales y Sociales, CELS), and the Center for Justice
and International Law, CEJIL (hereinafter "the petitioners"),
submitted a petition to the Inter-American Commission on Human
Rights (hereinafter the "Commission" or the "Inter-American
Commission"), alleging that the Argentine Republic (hereinafter
"the State" or "Argentina") violated the rights
established in the American Convention on Human Rights (hereinafter
the "Convention" or the "American Convention"),
to the detriment of Mr. Horacio Anibal Schillizzi Moreno.
The petition indicates that upon a motion for recusation,
on August 17, 1995 the judges of Chamber "F" of the
National Court of Appeals in Civil Matters for the Federal Capital
(hereinafter the "Court") sanctioned Mr. Schillizzi,
an attorney for one of the parties in a trial, to three days of
detention for "maneuvers aimed at obstructing justice."
The petitioners allege that the detention order was carried
out without respecting judicial guarantees (Article 8), because
the court was not impartial, no grounds were given for the decision,
the court did not allow the right of defense, and there was no
judicial review of the sentence.
The petitioners also argue that the detention was arbitrary
and illegal, violating the right to personal liberty (Article
7), and that the judicial authorities' rejection of the request
that the sanction be served under house arrest violated the right
to humane treatment (Article 5) and the right to equality before
the law (Article 24). In
view of all the foregoing, it is argued, it also violated the
duty to respect the rights established in the Convention (Article
On examining the admissibility of this case, the Commission
decides that it has jurisdiction to take cognizance of the petition
and it declares the petitioners' claims regarding the alleged
violations of Articles 1, 7, 8, and 25 of the Convention to be
admissible, as they meet the requirements set forth in Articles
46 and 47 of the Convention.
Nonetheless, it decides to postpone a decision on compliance
with the requirement set forth in Article 46(1)(a) of the Convention
until there is a ruling on the alleged violations of Articles
8 and 25 of the Convention in the examination of the merits of
the case. The Commission
declares inadmissible the petitioners' claims regarding the alleged
violations of Articles 5 and 24, as they do not meet the requirement
established in Article 47(b) of the Convention.
PROCESSING BY THE COMMISSION
On February 20, 1997, the Commission received the petition,
which was forwarded to the State on March 25, 1987, with a request
that it present its observations within 90 days.
The State requested extensions on June 23, 1997, and August
12, 1997, which were granted; the State's answer was received
on September 24, 1997. The petitioners requested an extension of the time allowed
to respond to it, and submitted their answer on December 23, 1997.
On February 26, 1998, the Commission granted the parties
a hearing during its 98th regular session.
On February 14, 1998, the State requested an extension
on two consecutive occasions, and submitted its observations on
July 15, 1998. On
May 28, 1998, the petitioners sent complementary information,
which was answered by the State, and after being given an extension
requested on September 18, 1998, the petitioners submitted their
observations on December 29, 1998.
At the request of the petitioners, a hearing was scheduled
during the 102nd session, which was suspended.
On August 27, 1999, Mr. Schillizzi submitted a brief, which
was forwarded to the State.
On September 30, 1999, the parties were given a hearing
during the 104th session.
On December 29, 1999, Mr. Schillizzi sent additional information,
and on January 4, 2000, it was sent to the State, which was given
30 days to answer. On
February 15, 2000, the State requested an extension, which was
not granted. At the
date of this report, no reply has been received from the State.
POSITIONS OF THE PARTIES
Position of the petitioners
The petitioners allege that the decision by Chamber "F"
of the National Court of Appeals in Civil Matters for the Federal
Capital (hereinafter the "Court") in the proceedings
"Banco Credit Lyonnais Argentina S.A. v.
La Escisión S.A. re: Recusation with cause" of August
17, 1995, in which it refused to admit the recusation pursued
by Mr. Schillizzi--who, as attorney, defended one of the parties
to the trial--declared it to be malicious, and sentenced him to
three days of detention for maneuvers aimed at obstructing justice.
The petitioners allege that in the face of that sanction,
both the Colegio Público
and Mr. Schillizzi pursued and exhausted domestic remedies with
the judgment of the Supreme Court of Justice of Argentina (hereinafter
"Supreme Court") of August 20, 1996, which rejected
the appeal for a review of facts as well as law (recurso
de hecho) filed by the Colegio
petitioners alleged that the extraordinary writ was not effective
procedure for reviewing the administrative sanction, because courts
have full discretion to accept or reject it without having to
state the grounds for their decision. The fact that a special
motion (recurso extraordinario)
has to be filed shows that Argentine legislation does not have
a regular judicial mechanism to review the imposition of such
Therefore, it does not meet the requirements of the Convention
to ensure judicial review in this case.
While the right to be represented by the Colegio
Público does not derive from Article 8 of the Convention,
the seriousness of the sanction imposed on one of its members,
Mr. Schillizzi, was of import to the institution, triggering its
intercession on his behalf, in an effort to remedy the situation
alleged. The petitioners
allege that this is not an isolated case, and they cite the case
of another attorney who was sentenced to detention for similar
reasons. In his case
the appeal for reversal , the special motion, and the appeal for
review of facts as well as law were all denied.
The petitioners stated that the Colegio
Público may submit a petition to the Commission because it
is a non-governmental organization subject to public law whose
function is to defend and oversee the exercise of the legal profession;
because it was established by a law of the Nation, and the State
delegated to it the function of administering the registration
and overseeing the conduct of attorneys by imposing disciplinary
sanctions; and it is vested by law with the competency to sue
and be sued that is needed to bring public actions. Its status
as an entity governed by public law does not mean it acts on behalf
of and in representation of the State, for it does not depend
on nor is it controlled by any State agency--as is the case of
other entities at public law, such as securities exchanges, stock
markets, and some private universities; it elects its own authorities
by vote of the member attorneys, supports itself through their
contributions, and does not depend on nor it is subjected to State
The petitioners allege that the Court imposed the sanction
in the exercise of its powers to establish order that the Code
of Procedure confers on it, and under Article 18 of decree-law
Nº 1285/58, regarding the organization of the court, which gives
the judges the authority to sanction the employees and officers
of the judicial system.
This decree was derogated and later ratified by Law Nº
14.467, which extends the authority to sanction attorneys, and
was later amended by Law Nº 24.289 of 1993.
The petitioners argue that the judges imposed a sanction
on Mr. Schillizzi without respecting the due process guarantees
that any accused enjoys in a criminal case, citing decisions of the Commission in cases 8095
and 9269 to support the proposition that when a measure imposed
administratively is comparable in its gravity to a criminal sentence,
the presumption of innocence and all other guarantees provided
for criminal proceedings must be respected. If
there was criminal conduct meriting a prison sentence, it should
have been reported to the competent authorities to pursue a criminal
proceeding. In any case, the court should have presented the complaint
to the Bar Association, for it to initiate a disciplinary action,
with due process guarantees, in order to determine if there were
grounds for imposing a disciplinary sanction on Mr. Schillizi.
The petitioners argued that the Court did not substantiate
its decision to punish Mr. Schillizzi for exercising the right
of recusation and violated the right to defense when it took the
view that the exercise of this right obstructed the civil proceeding
in which he was defending one of the parties.
This sanction did not ensure the order or viability of
the proceedings, nor did it protect the rights of the other party.
They also consider, based on Article 30 of the Convention,
that this "open-ended" description of the conduct sanctioned,
"obstruction of justice," is insufficient to make it
possible to weigh the incriminatory evidence and that the gravity
of the sanction imposed requires, to some extent, the proper determination
of the actions sanctioned.
The petitioners add that the judges were not impartial,
as they were bothered, affected, or offended by the recusations
presented by Mr. Schillizzi, and, consequently, had a personal
interest in imposing the sanction.
As regards the right to personal liberty, the petitioners
consider that the detention order is arbitrary, since a law was
applied that is incompatible with respect for the right to liberty.
They believe that the disciplinary provisions under Act
23.187 regarding the Bar Association should have been applied.
The court should therefore have referred the corresponding complaint
to the Bar Association, as the sole authority for making ethical judgments regarding the
conduct of lawyers and applying the relevant sanctions.
if not carried out, the threat of its enforcement subsists.
In addition, the petitioners consider that the detention
imposed on Mr. Schillizzi poses a danger to his physical, psychic,
and moral integrity. Mr.
Schillizzi is ill, is an older man, and is being sanctioned by
deprivation of liberty in the same place and with the same treatment
accorded persons who are criminally accused, or convicted, and
subjected to degrading situations such as having his shoelaces
and belt removed, and being handcuffed.
The petitioners also allege violation of the right to equality
before the law, considering that the judges refused to apply Article
10 of the Criminal Code, which provides for house arrest for convicts
over 60 years of age. The
unequal treatment derives from depriving Mr. Schillizzi of the
rights granted to a person accused of an offense, and because
the requirement that the sentence effectively be carried out contrasts
with the possibility of suspending sentences to imprisonment provided
for under criminal law.
The petitioners allege that the detention of Mr. Schillizzi
was not carried out due to the many challenges to this decision,
even though the court issued the order to the Chief of the Federal
Police of Argentina. In addition, they state that Mr. Schillizzi may be subjected
to this sanction when he appears before the courts, and that he
is outside the country because he is not willing to submit to
enforcement of the detention, and that he requests compensation
on this account. With respect to the relief requested from the Commission by
Mr. Schillizzi, the petitioners do not join him in this part of
The state alleged that in the course of executing a mortgage
that normally would have taken six months, Mr. Schillizzi presented
several recusations against different Chambers of the Court, so
that execution took three years.
First, he recused the judge of first instance, and his
recusation was denied by Chamber "C"; second, he recused
Chamber "C," and the motion was removed to Chamber "A,"
where it was also denied; third, he recused Chamber "A"
and the case was removed to Chamber "F", which also
denied the recusation and ordered a three-day detention.
The State alleged that the sanction did not punish the
exercise of the right of recusation but the abuse of that right,
in the form of malicious recusations designed to postpone payment
of a debt.
In its first observations submitted to the Commission on
September 24, 1997, the State noted, with respect to the exhaustion
of domestic remedies, that Mr. Schillizzi "had access to
suitable remedies, and was able to pursue them and exhaust them
even though he did not succeed in having the punishment revoked."
He sought annulment of the sanction before the same Chamber,
which was rejected. On
October 20 and November 1, 1995, he asked that Chamber to be allowed
to serve the period of detention in his home.
Later, on November 13, 1995, he went before the Supreme
Court arguing delay in the administration of justice or the denial
of justice addressed in Article 167 of the National Code of Civil
and Commercial Procedure, because the Court had not answered,
and he argued the unconstitutionality of Article 18, Decree 1285/58. The Supreme Court rejected the motion alleging delay, given
that the Court had already addressed the matter on November 6,
1995, prior to the filing of this motion.
At the Commission hearing held on September 30, 1999, the
State added to its position the argument that Mr. Schillizzi did
not, himself, exhaust the special remedy, but that it had been
filed by the Colegio Público,
and, assuming that Mr. Schillizzi's rights had been violated,
this was the appropriate remedy for addressing those violations.
In addition, the State argued that Mr. Schillizzi, on filing
his motions, did not object to the sanction itself, but to its
enforcement in the judicial detention facility.
The precedent cited is Case 998/90 before the Civil Law
Court, concerning a superintendency investigation following irregularities
in a series of judicial auctions. In this precedent, the attorney
who has been sanctioned had sought reconsideration before the
Court en banc, made
up of more than 45 members; he later filed a special motion and
the Court switched detention in the judicial detention facility
to house arrest.
The State alleges that the Supreme Court has developed
case-law on the special motion and that its ability to accept
or reject it is not entirely discretional. Specifically, it cites
the Giroldi case, in
which the Supreme Court decided that the special motion was not
a remedy of appeal. However,
in that specific case it admitted the motion and revised the criminal
ruling. In other
words, under certain circumstances, a special motion may serve
as a remedy of appeal. While
it is true that the Colegio Público filed the special motion and the appeal for review
of facts as well as law, it is not a victim in this case.
Therefore, the State does not accept the notion that the
Supreme Court decision of August 20, 1996, which rejects the complaint
appeal against the denial of the special motion, is the decision
that exhausts domestic remedies in this case, in the terms of
Article 46(1)(a) of the Convention.
The State asserts that the Colegio
Público lacks standing to be a petitioner because it does
not act in the capacity of "any person or group of persons,
or any nongovernmental entity" as provided for in Article
44 of the Convention, which was evidently intended to qualify
persons other than those who represent the authorities to lodge
a petition. The Colegio Público meets the prerequisites and characteristics of a typical
public law body in terms of legal status, and, in the exercise
of the powers conferred on it by law, it performs functions delegated
to it by public authority to oversee the legality of law practice
in the capital of the Argentine Republic.
In other words, the Bar Association is a policing entity
that forms part of the political organization of the state, with
the nature, rights, and obligations of juristic persons subject
to public law, and which acts in the name of and in representation
of the State.
The State accepts the standing of CELS and CEJIL to come
forth as petitioners, and that of the representative of the Colegio
Público, acting on his own behalf, but not in his capacity
as representative of the Colegio Público.
With respect to the right to defense, the State points
out that Mr. Schillizzi was able to file the motion for reversal
or reconsideration, and exhaust it, even though he did not achieve
his objective, and never pursued the special motion.
The courts did not accept the standing or representation
of the Colegio Público
in these proceedings. The
sanction imposed was confirmed by the appeals court that served
as an impartial judicial review body, as required by the Convention.
With respect to the impartiality of the Court, the State
holds that it is a matter of opinion, and therefore proves nothing.
The State argues hypothetically that perhaps the court
would have been considered impartial if, instead of detention,
it had imposed a sanction not entailing deprivation of liberty.
This context explains the description, in the petition,
of "the partiality of the judges who are hearing a case,"
based on the mere fact that they impose a sanction on an attorney.
The State alleges that the sanction was imposed based on
a law in force, and that a procedure existed that made it possible
to review that sanction, even had there been a violation of the
right to due process. In
addition, it notes that there is no provision in Law 23.187 or
its regulations for the conduct for which Mr. Schillizzi was sanctioned.
Therefore, the law referred to by the petitioners was not applicable.
The State understands that even though one may take issue with
the type of sanction imposed, this does not mean it should be
considered a violation of human rights.
The Court never demanded enforcement of the sanction, and
it never issued any arrest warrant to the local or international
Mr. Schillizzi pointed out to the Court that he had not received
any notification, when it came to the time decided for serving
the period of detention in the judicial detention facility.
The only authority capable of preventing the exercise of
the legal profession is the Colegio
Público, and this organ has posed no obstacles to Mr. Schillizzi’s
practice of the law. In
view of the foregoing, Mr. Schillizzi was never kept from exercising
his profession following imposition of a disciplinary sanction,
and consequently, no compensation is called for.
The State points out that there is no violation of Mr.
Schillizzi's right to humane treatment or right to equality before
the law, because, under the terms of Article 10 of the Criminal
Code, house arrest is not a right of the interested party, but
rather a power of the court, when imposing a sanction.
These powers to apply sanctions cannot be limited by criteria
that are binding for all, because, if that were the case, the
courts would have to be forced to impose a given sanction. The
State is of the view that these arguments are inadmissible because
the sanction imposed has not been enforced, the case has been
shelved, and the sanction has prescribed.
The State considers that there have not been other cases
identical to that of Mr. Schillizzi, and that the petitioners
have failed to establish difference of treatment in any way.
ANALYSIS OF ADMISSIBILITY
The Commission's jurisdiction ratione
temporis, ratione loci, ratione personae, and ratione materiae
The Commission has jurisdiction
ratione personae pasiva,
ratione loci, and
ratione temporis to hear this case, as the alleged violations of Mr. Schillizzi's
rights under Articles 1, 5, 7, 8, and 25 of the Convention are
attributed to agents of Argentina, a State party to the Convention,
and were allegedly committed in its territory after Argentina
ratified the Convention.
With respect to jurisdiction ratione
personae and the petitioners’ right to bring a case, the Commission
observes that the non-governmental organizations CELS and CEJIL
enjoy such standing to lodge the petition in question, and that
the Colegio Público
submitted its arguments together with those NGOs.
Therefore, the pronouncement on the standing of the Colegio
Público is not a determining factor for establishing jurisdiction
ratione personae in this case, and does not preclude the possibility
of a subsequent decision thereon.
Other admissibility requirements
Exhaustion of domestic remedies
Article 46(1)(a) of the Convention establishes the requirement
to exhaust domestic remedies, pursuant to generally accepted principles
of international law. First,
the Commission notes that in this case both the State and the
petitioner agree that Mr. Schillizzi filed the motion for reversal
or reconsideration of the sanction before the Court on August
31, 1995. Nonetheless,
the State argues that Mr. Schillizzi did not object to the sanction
itself, but to its being served in the judicial detention facilities. From the analysis of the evidence submitted by the petitioners,
the Commission observes that the motion filed by Mr. Schillizzi
presents substantially the same arguments made before the Commission.
Mr. Schillizzi objected to the sanction itself, on the
grounds that it was arbitrary in that it punished the right to
recusation, it was imposed without due process of law, it constituted
a violation of the right to liberty, and it was based on a provision
that is null and void. The
request that Mr. Schillizzi made to the Court to be allowed to
comply with the sanction at his home was subsidiary to the request
that the sanction be revoked.
The Commission also notes that once the Court rejected
the motion for reconsideration on September 21, 1995, and rejected
the special motion presented by the Colegio
Público on October 12, 1995, Mr. Schillizzi reiterated his
petition to the Court to have the sanction imposed in the form
of house arrest, on October 20 and November 1, 1995. Both motions
were denied on November 6, 1995. On November 13, 1995, Mr. Schillizzi filed the action before
the Supreme Court on grounds of delay by the Court in rendering
a decision, pursuant to Article 167 of the National Code of Civil
and Commercial Procedure, and argued that the sanction was unconstitutional. This motion was rejected on May 7, 1996, as it was deemed that
the Court had issued a ruling at the appropriate time, prior to
this submission, on November 6, 1995.
Second, the State has alleged that Mr. Schillizzi failed
to pursue the remedy of the special motion provided for in Argentine
legislation. Consequently, the Commission believes that the State must indicate
the adequacy and effectiveness of the extraordinary writ.
The State cites as precedent Case 998/90 of the Civil Law Court,
and the Giroldi case,
as grounds for defining the special motion as an adequate and
effective remedy. The
petitioners reject the State's argument and argue that the administrative
sanction imposed by the Court cannot be reviewed via a special
motion because it is a discretional power of the courts to admit
it or reject it, and Argentine legislation has no regular judicial
mechanism to review the imposition of this type of administrative
The exhaustion of domestic remedies should not be understood
as the need to go through the mechanics of formal procedures;
rather, in each case, the reasonable opportunity of obtaining
redress should be examined.
The Commission has recognized on prior occasions that in
some cases special remedies, such as the motion alleging unconstitutionality,
may constitute adequate and effective remedies for human rights
Here, the parties discuss, inter
alia, the nature of the sanction imposed upon Mr. Schillizzi,
specifically, whether it is disciplinary and corrective or punitive
in nature. In Giroldi,
which the State adduced to show that the extraordinary writ would
be an effective remedy for the violations alleged by the petitioners,
there is reference to criminal matters.
Having examined the facts and arguments presented by the parties,
the Commission considers that the adequacy and effectiveness of
the special motion poses complex questions in respect of issues
arising under Articles 8 and 25 of the Convention that justify
looking at them together with the merits of the case.
Consequently, the Commission is of the view that the case
cannot be declared inadmissible for failure to exhaust domestic
Third, while domestic remedies must be exhausted by the
alleged victim in the particular circumstances of this case, the
Commission considers that the special motion filed by the Colegio
Público on October 5, 1995, against the decision of September
21, 1995, had the purpose of conferring standing on the Colegio
Público to defend attorneys, and specifically to act in the case
of Mr. Schillizzi. Nonetheless,
the October 12, 1995 decision of the Court was not limited to
reiterating the rejection of its standing; it also addressed enforcement
of the sanction that had been imposed on Mr. Schillizzi.
In this respect, the Court stated:
account of the status of the proceedings, and as the sanction
imposed at folios 59/61 has become final, and without prejudice
to the indications contained in the last paragraph of folio 76/dorso,
Dr. Horacio Aníbal Schillizzi Moreno shall be informed that within
10 days he must present himself at the Alcaldía of the Palace
of Justice for the purposes of the detention ordered in the proceedings.
Let notice be given.
prejudice to this, and said attorney having been notified, the
above-ordered measure shall be reported to the Chief of the Federal
Police so that, in the event of failure to comply, he may proceed
immediately to enforce the sanction imposed.
From the text quoted above, the Commission notes that,
in rejecting the special motion submitted by the Colegio
Público, the Court decides to consider the sanction imposed
final and orders its enforcement even though it did not review
the grounds for it. Given
this circumstance, the Commission considers that while this special
motion does not exhaust domestic remedies in this case, Mr. Schillizzi
had a legitimate and direct interest in this part of the Court’s
Period allowed for submitting a petition to the Commission
Article 46(1)(b) of the American Convention provides that
a petition, to be admitted, 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."
At no time during the processing of this case before the
Commission did the State allege there was a failure to meet the
deadline requirements for the remedies exhausted by Mr. Schillizzi. Consequently, the State may be considered
to have tacitly abandoned any objection based on failure to comply
with this requirement. Consequently, the Commission concludes
that the petition complies with the requirement established in
Article 46(1)(b) of the Convention.
Duplication of procedures and res
Articles 46(1)(c) and 47(d) of the Convention establish
as admissibility requirements, respectively, that the subject
matter of the petition must not be pending settlement in another
international procedure, and that it must not substantially reproduce
a prior petition already examined by the Commission or other international
organ. The Commission
considers that the subject matter does not reproduce a petition
already examined by this or any other international body, nor
is it the substantial reproduction of a prior petition.
Therefore, the Commission
concludes that the requirements established at Articles
46(1)(c) and 47(d) of the Convention have been met.
Characterization of alleged violations of the Convention
Article 47(b) of the Convention establishes that any petition
that "does not state facts that tend to establish a violation
of the rights guaranteed by this Convention" will be inadmissible.
In this case, the petitioners alleged that Article 8 of the Convention
was violated with respect to Mr. Schillizzi because: a) there
were no jurisdictional control regarding the decision imposing
the sanction upon him; b) the sanction was of a kind imposed for
a criminal offense and therefore the guarantees under Article
8(2) were applicable; c) in any case, a disciplinary procedure,
incorporating the due guarantees under Article 8(1), should have
been started; d) the sanction hampers the right to defense, since
it delays the proceeding and this favors of one of the parties;
e) the broad description of the conduct does not make it possible
to weight the charges and, d) the Court that imposed the sanction
was not impartial and provided no grounds for its decision.
On previous occasions, the Inter-American Commission considered
various factors to determine the applicability of the guarantees
established in Article 8(1) and 2 of the American Convention.
These factors include the nature of the behavior, act,
or omission described, the authorities that may impose sanctions,
and the nature and gravity of the sanction imposed and its consequences.
These factors are not exclusive, and it may be necessary to consider
other elements, depending on the unique nature of each case.
However, the Commission wishes to state that it does not
have the jurisdiction to determine which authority, the judges
or the bar association, is responsible for sanctioning lawyers
with respect to the exercise of their profession.
That is a function of the State organs.
The Commission has jurisdiction to determine if a state
party has violated the Convention.
Regarding the allegations of the petitioners concerning
the right to personal liberty under Article 7, the Commission
considers that they are related to Article 8, which justifies
their examination with the merits of the case. In addition, the
allegations of the petitioners concerning judicial protection
under Article 25 of the Convention call for an examination of
the merits. The Commission
concludes that the facts alleged by the petitioners are admissible
pursuant to Article 47(b), because, if proven, they may be violations
of Articles 7, 8, and 25 of the Convention.
As to the alleged violation of the right to humane treatment
under Article 5 of the Convention, the petitioners alleged that
this right was violated when the judicial authorities refused
Mr. Schillizzi’s request to serve the sentence under house arrest
on account of his health and age.
Moreover, serving the sentence in prison, along with other
inmates, would subject him to situations in which he would be
subject to indignities, such as the deprivation of his shoelaces,
his belt, and being handcuffed.
The State alleged that the sanction ordered had not been
carried out. The Commission considers it necessary to point out that Mr.
Schillizzi’s personal circumstances, such as his age or the state
of his health, do not per
se render a detention a violation of Article 5 of the Convention.
In examining the arguments put forward by the parties and
the minutes and documents in the file, the Commission notes that
Mr. Schillizzi has not undergone the detention that was served
on him. Therefore,
there is no way of proving in
abstracto whether or not he would have been deprived of the
medical care required to protect his health and bodily integrity.
Furthermore, the Commission considers that the petitioners
have not adduced any reasonable evidence that tends to prove that
Mr. Schillizi ran the risk of compromising his bodily integrity
if he were to serve the prison sentence in the court detention
center. What is more,
based on the analysis of the case file, it appears that on September
21, 1995, Chamber "F" of the National Court of Appeals
in Civil Matters for the Federal Capital, in rejecting the motion
for reconsideration by Mr. Schillizzi, also ordered that "the
authority should take steps to prevent the procedure from endangering
the dignity or personal decorum of the person on whom the sanction
is imposed." The
Cámara's decision of October 12, 1995, ruled on the enforcement
of the sanction that had been imposed on Mr. Schillizzi, without
prejudice to the above. In view of the circumstances indicated,
the Commission considers that since the sanction was not carried
out, it cannot be proved in
abstracto that it would have violated his bodily integrity.
Consequently, the Commission concludes that the facts alleged
by the petitioner do not characterize violations of Article 5,
and, therefore, this part of the petition is declared inadmissible,
under Article 47(b) of the Convention.
As regards the right to equal protection under Article
24 of the Convention, the petitioners argued that the Court did
not treat Mr. Schillizi fairly. On the one hand, the judges refused
to apply Article 10 of the Penal Code, 
which provides for house arrest for convicts over 60 years of
age and, on the other hand, a case was presented in which the
Court allowed a lawyer to serve his sentence at home.
The State noted that the Court may order house arrest,
but is not legally required to do so.
It also noted that the petitioners have not shown disparate
the right to equal protection before the law, the Inter-American
Court held that:
follows that there would be no discrimination in differences in
treatment of individuals by a state when the classifications selected
are based on substantial factual differences and there exists
a reasonable relationship of proportionality between these differences
and the aims of the legal rule under review.
The Commission has on prior occasions said that “in order
to determine that a ruling handed down by a court violates Article
24 of the Convention, it is necessary to find, at least, that
the court ruled in a manner radically different from a previous
ruling involving a legal situation with nearly identical factual
In Consorcio Arenales
1560/62 c. Picard, Jorge Alberto s/cobro de honorarios (fee recovery),
adduced by the petitioners, the Argentine courts converted a jail
sentence to one to be served under house arrest.
That case was similar in outcome to this one. In fact,
in Mr. Picard’s case, the judicial authorities considered the
petition in the context of the legal remedies sought, and refused
the request to serve the sentence under house arrest.
But the Court made a special concession, on its own initiative,
subsequent to the decision of the Supreme Court turning down the
appeal for review of facts as well as law.
The Commission believes that the fact that Mr. Schillizzi
was not granted the same gratuitous privilege as other attorneys
is not per se discrimination.
Furthermore, the Commission wishes to note that the rule
that was applied to Mr. Schillizzi also provides for the possibility
of the person concerned to serve the sentence at his/her home,
similar to Article 10 of the Penal Code which makes the same provision
for convicted persons. In
fact, Article 18 of the Act 1285/58 (the text of which is taken
from Law 24.289, Article 2) states that the prison sentence will
be served in a facility attached to the tribunal or court or in
the home of the person sanctioned. The Commission considers it
necessary to reiterate that the right to equality before the law
cannot be considered tantamount to the right to an equal outcome
in decisions referring to the same subject matter. The
Commission concludes that the facts alleged by the petitioners
do not characterize violations of Article 24, and, therefore,
this part of the petition is declared inadmissible, pursuant to
Article 47(b) of the Convention.
The Commission concludes that it has jurisdiction to hear
this case and that the petition is admissible with respect to
the alleged violations of Articles 1, 7, 8, and 25 of the Convention,
pursuant to Articles 46 and 47 of the Convention. However, it
decides to defer the decision on fulfillment of the requirement
under Article 46(1)(a) of the Convention until a ruling is made
on the alleged violations of Articles 8 and 25 of the Convention
and on the merits of the case.
The petitioners' arguments regarding the alleged violations
of the right to humane treatment and the right to equality before
the law established in Articles 5 and 24 of the Convention are
declared inadmissible, as they do not make out violations of the
Convention, pursuant to the provisions of Article 47(b) of the
Based on the arguments of fact and law set forth above,
and without prejudice to the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to the alleged
violations of Articles 1, 7, 8, and 25 of the Convention.
To declare this case inadmissible with respect to the alleged
violations of Articles 5 and 24 of the Convention.
To notify the parties of this decision.
To continue to analyze the merits.
To make itself available to the parties for the purpose
of reaching a friendly settlement based on respect for the rights
set forth in the Convention, and to invite the parties to state
their position with respect to such a possibility;
To publish this decision and include it in its Annual Report
for the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission
on Human Rights in the city of Washington, D.C., on the 7 day
of March 2000. (Signed):
Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman;
Commissioners Marta Altolaguirre, Robert K. Goldman, Peter Laurie
and Julio Prado Vallejo.
The Second Vice-Chairman of the Commission, Juan Méndez, an
Argentine national, did not participate in the debate or in
the vote on this case, in accordance with Article 19(2)(a)
of the Regulations of the Commission.
Case of "Consorcio
Arenales 1560/62 v. Picard, Jorge Alberto, re: the collection
The petitioners cite the cases of Albert
Le Compte v. Belgium and Obermeier
v. Austria from the European Court of Human Rights.
Inter-American Commission on Human Rights, Annual Report 1984-1985,
Resolution Nos. 10/85 and 11/85 of March 5, 1985, pp. 34 and
Taken from Inter-American Commission on Human Rights, Annual
Report 1987-1988, Case Nos. 9777 and 9718, Argentina, March
30, 1988, pp. 75-85.
The Supreme Court stated:
"considering that moving party invokes the delay
in rendering the judgment with respect to the matter filed
with Division 'F' of the National
Court of Appeals in Civil Matters for the Federal Capital,
and that as inferred from what was reported by that organ,
it has issued the pronouncement required prior to the submission
Inter-American Court of Human Rights, Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987, para.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Judgment of July 29, 1988, para. 72; Case of Fairén Garbi
and Solís Corrales, Preliminary Objections, Judgment of March
15, 1989, para. 97; Case of Godínez Cruz, Judgment of January
20, 1989, para. 75.
Inter-American Commission on Human Rights, Report Nº 104/99,
Case 11,400, Eolo Margaroli and Josefina Ghiringhelli de Margaroli,
Argentina, Decision of September 27, 1999. Para. 54.
the report 55/97, case 11,137, Abella and others, par. 270,
the Inter American Commission stated in relation with the
sentence issued in the case Giroldi by the Supreme Court:
April 7, 1995 judgment of the Supreme Court of Argentina in
the case of Horacio
David Giroldi (No. 32/93) --decided after it had rejected
the special appeal in the Abella
case-- is particularly relevant to issue under examination.
At that trial, Mr. Giroldi had been convicted by a
Criminal Court ("Tribunal Oral en lo Criminal") and given a one-month prison
sentence, which was suspended, for the crime of attempted
The defense brought a writ of cassation ("recurso
de casación"), arguing that the decision violated
the right of defense at trial, and that the procedural limitation
on the exercise of the remedy, in view of the amount of the
penalty, was unconstitutional.
The National Chamber of Criminal Cassation ("Cámara
Nacional de Casación Penal") rejected the argument
of unconstitutionality and denied the motion for cassation.
The defense brought a special appeal against that decision,
the denial of which led to a complaint appeal before the Supreme
Court of Justice of Argentina.
The Supreme Court ruled favorably on the complaint
appeal, and rendered without effect the judgment appealed,
citing as the basis for its decision the guarantee at Article
8(2)(h) of the American Convention
See: Inter-American Court of Human Rights, Case of Neira Alegría,
Preliminary Objections, December 11, 1991, paras. 25-31;
Inter-American Commission of Human Rights, Report Nº
124/99, case 11.765, Grenada. September 27, 1999. Para. 28;
Inter-American Commission of Human Rights, Report Nº 104/99,
Case 11.400, Eolo Margaroli and Josefina Ghiringhelli de Margarolli,
Argentina, September 27, 1999. Para. 56; Inter-American Commission
of Human Rights, Report Nº 67/98, Case 11.738, Elba Clotilde
Perrone and Juan José
Preckel, Argentina. May 4, Para. 38.
The Inter-American Commission on Human Rights on Report Nº
6/98, Case 10.832, Maximo Rodríguez, Argentina, February 21,
1998, considered inter alia the
nature of the behavior, act, or omission described (paragraphs
45, 47 and 48), the authorities that may impose sanctions
(paragraph 45), and the nature and gravity of the sanction
imposed and its consequences (paragraph 46).
In this respect, the European Commission on Human Rights and
the Council of Ministers of the European system agree that
there is no violation of Article 3 of the European Convention
on Human Rights in the case of a 74-year-old who is diabetic
and has a cardiovascular condition. This person was detained
for 35 months.
Jabobs, Francis G. and White, Robin C.A., in The European
Convention of Human Rights, 2nd edition, Clarendon Paperbacks,
Case of Bonnechaux v. Switzerland, application Nº 8224/78,
decision of December 5, 1978, (1979) 15DR 211, and December
5, 1979, (1980) 18DR 100; 1981 3 EHRR 259.
Article 10 states: When the time in prison not exceed 10 months,
the honest women and persons older than 69 years old, or valetudinarias may be detained in theirs onw homes.
Inter-American Court of Human Rights, Advisory Opinion OC-4/84,
January 19, 1984, para. 57. Quoted in the Report No 39/96,
Inter-American Commission on Human Rights, Report 8/98, case
11.671, Carlos Gracía Saccone, Argentina, of March 2, 1998,
Nº 39/96, Case 11.673, Santiago
Marzioni, Argentina, para. 43, the IACHR affirmed that
the right to equal protection of the law cannot be assimilated
to the right to equal outcome in judicial proceedings involving
the same subject matter.
If such were the case, the Argentine Supreme Court
would have to grant extraordinary writs to every plaintiff
who invokes the same rules, or who presents similar arguments
by the same attorney, without regard to the particular
circumstances of each case.
Such a situation would be juridically absurd and unreasonable.