Carlos A. Lopez de Belva and Arturo J. Podesta v. Argentina, Case 11.755, Report Nº 27/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 151 (1999).
REPORT Nº 27/00*
On June 2, 1997, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) declared the admissibility of the petition
lodged by Carlos A. López De Belva and Arturo J. Podestá (hereinafter
“the petitioners”) in which they allege violations of their human
rights by the Argentine Republic (hereinafter “the State” or “Argentina”).
The petitioners allege being victims of human rights violations
resulting from a corporative reaction of the judges of Buenos Aires
Province due to the disciplinary action they brought against several
of them for malfeasance. The
case refers to a variety of legal proceedings promoted before different
tribunals on three separate suits--a civil action, a disciplinary
one against several judges, and a criminal trial,
all of which were a result of the intervention of the petitioners
as attorneys for Amílcar Cascales. Mr. Cascales filed a cross-complaint
in the civil action against him in La Matanza Municipality, Buenos
Aires Province, and obtained a favorable judgment against the plaintiff,
who was ordered to pay damages.
However, during the execution stage, a challenge on the installments
already paid arose, and, thus, its continuation was indefinitely suspended--a
situation that has continued until now, thirteen years later.
The same challenge gave ground to bringing criminal charges
against the petitioners, which concluded in a conviction, and induced
the petitioners to seek disciplinary action against the judges.
In summary, the petitioners allege that Argentina, in the course
of the three different sets of proceedings, has violated various of
their rights protected by the Convention.
They maintain that in the civil proceeding, the judge acted
in excess of her powers by ordering the auditing of the payments already
made and by prohibiting the resumption of the execution.
These decisions gave grounds for the subsequent criminal action
brought against the petitioners and others.
Moreover, the petitioners argue that in the criminal proceedings
they were convicted for a nonexistent crime, they were prevented from
fully exercising their right of defense because of their being barred
from examining “various witnesses,” they were given a double penalty
despite it was termed as merely an accessory one, and they were unable
to appeal the conviction because of the restrictions imposed on them
by the procedural law applicable to the case.
On the basis of these facts, they specifically allege to be
victims of violations of their right to a fair trial, of the principle
of legality, and of their right to judicial protection, enshrined
in Articles 8, 9, and 25, of the American Convention on Human Rights
(hereinafter “the Convention”).
Without prejudging on the merits of the matter, the Commission
finds that the case meets the admissibility requirements set forth
in Articles 46 and 47 of the Convention, solely with regard to the
civil and criminal proceedings. Consequently, the petition is admissible
with respect to the allegations regarding a possible violation of
the rights established in Articles 8, 9 and 25 of the Convention;
and it is inadmissible insofar as the disciplinary proceeding promoted
against the judges, since the admissibility requirement stipulated
in Article 46(1)(b) of the Convention is not met.
PROCESSING BY THE COMMISSION
5. The Commission omits
making a detailed account on the copious exchange of communications
produced in the instant case. The record also contains several amicus
curiae and communications conveyed by different non-governmental
organizations, Argentineans and otherwise, in support of the petitioners.
The petitioners lodged their petition before the Commission
on September 29, 1992. By
communications dated September 27, 1995 and December 19, 1996, the
Executive Secretary of the Commission informed the petitioners that
the petition could not be processed, based on the provisions of Article
47(b) of the Convention. Between September 26, 1996 and June 2, 1997,
the petitioners reported to the Commission a series of new facts relevant
to the petition. Accordingly,
on June 2, 1997, the Executive Secretariat of the Commission notified
the petitioners that it had initiated the processing of the petition
based on these new facts.
The State has sent communications about the case on six occasions,
all of which have been transmitted to the petitioners. Also, the State
was assured its procedural right to rejoinder. Furthermore, on October
6, 1997, during the Commission’s 97th Session, a hearing was held
with the participation of the parties’ representatives.
POSITIONS OF THE PARTIES
The civil action
On August 12, 1974, the Municipality of La Matanza, Buenos
Aires Province, sued Amílcar Cascales for damages resulting from an
alleged breach of contract in the lease of a cold storage plant located
in San Justo, Buenos Aires Province. Amílcar Cascales was represented
by the petitioners and filed a cross-complaint. Twelve years later,
on June 12, 1987, he obtained a favorable adjudication by Ricardo
Angel Kaul, Judge of the Fourth Court for Civil and Commercial Matters
of the Judicial Department of General San Martín, Buenos Aires Province.
The verdict found the plaintiff, the Municipality of La Matanza,
liable to pay compensatory damages resulting from “reckless and malicious”
That sentence became res
judicata and a proceeding for enforcement of staggered payment
of the compensation was initiated, under the “silence or inaction
of the debtor”.
This proceeding continued in a systematic manner for around two years
(approximately 200 payments
were approved and made). Upon the death of Judge Ricardo Angel Kaul,
his vacancy was filled by three successive pro
tempore judges until Judge María Inés Oderay Longhi was appointed
as the new permanent judge. During that whole period, settlements,
orders, and payments continued to be issued. Judge María Inés Oderay
Longhi herself issued eleven checks between September 3, 1990 and
the following October 30. One of the pro tempore judges who took cognizance of the case was Judge Carmen
Cabrera de Carranza. In May 1990, she “determined that, as of that
date, the settlements contained no mathematical errors”.
However, the situation was apparently complicated by the hyperinflation
that was then sweeping Argentina.
On November 5, 1990, Judge María Inés Oderay Longhi ordered
the auditing of all the settlements made, pursuant to Article 36 of
the Code of Civil and Commercial Procedure. The expert’s report found
a loss to the detriment of the Municipality of La Matanza in the amount
of 14,926,700,603.62 australes, at October 1990 values. This was due
to an incorrect calculation in the settlements, and to the fact that
“the mechanism used [in the context of the extremely high inflation
and interest rates existing in Argentina at the time] produced a cumulative
effect on the interests, which was causing the debt to grow disproportionately”.
At the same time, the judge suspended de
facto the payment procedure.
On August 31, 1992, the judge issued a ruling prohibiting renewal
of the enforcement of the adjudicatory sentence and all incidental
proceedings connected therewith. The effects of such ruling have continued to this date, with
the sole exception that at the end of 1999, judicial approval of the
accounting expert’s report in the civil proceeding was revoked by
the Civil Court of Appeals, and another audit report was requested.
The criminal trial
Based on the findings of the audit, criminal charges were filed
against the petitioners and other persons under the charge of defrauding
the public administration, and against the later deceased Judge Ricardo
Angel Kaul for breach of public duty. Three legal counselors and an
accountant of the Municipality of La Matanza were also charged.
The Fifth Criminal Court of San Martín delivered a judgment
on March 1, 1993, in which it found the petitioners guilty of being
accessories to the crime of attempted fraud of the public administration
and sentenced them to two years and nine months imprisonment as a
principal punishment, and ordered special disqualification barring
them from practicing law for eight years as a cumulative penalty.
The Court also notified the judge of the Fourth Departmental Court
for Civil and Commercial Matters in charge of approving the execution
payments, of the conviction of the petitioners.
The petitioners unsuccessfully lodged recurso
extraordinario, de inaplicabilidad de la ley, de
nulidad and de inconstitucionalidad,
before the Supreme Court of Buenos Aires, to contest the conviction
issued by the First Tribunal of the Chamber of Appeals for Criminal
and Correctional Matters of San Martín, dated December 26, 1995, which
upheld the judgment of the lower court. Having exhausted remedies
under the provincial jurisdiction, the petitioners took their case
to the Supreme Court of Justice of Argentine where they filed a recurso extraordinario and a recurso
de queja, which were denied. The case against the other codefendants
continues before the Supreme Court of Justice of Buenos Aires, but
the petitioners have been deprived of their right of standi to continue participating in legal proceedings, due to the
application of the restriction imposed by article 350 of the Code
of Criminal Procedure of the Province of Buenos Aires in force at
Furthermore, that same court decided on December 29, 1999, that the
judgment and the conviction issued against the petitioners was definitive,
and it has ordered its enforcement.
The disciplinary action against the judges
Towards the end of 1990, the petitioners filed for a disciplinary
action against Judge María Inés Oderay Longhi and the judges of the
First Court of the Chamber of Appeals in and for the Judicial Department
of San Martín. On April 16, 1991, the Jurado de Enjuiciamiento de Magistrados of the Province of Buenos
Aires issued a decision acquitting all the judges. The petitioners
lodged a recurso de queja
before the Supreme Court of Buenos Aires, which was denied on June
11, 1991. A similar appeal was submitted before the Supreme Court
of Argentine, but was turned down on April 21, 1992.
Position of the Petitioners
15. They submit that the decision of Judge María Inés Oderay Longhi to order the auditing of the compensatory installments already paid, and to suspend de facto the execution of the award granted by her predecessor on June 12, 1987, “exceeded her competence since a final judgment had already been issued and there were no facts in dispute.” They also maintain were neither heard in their capacity as party, nor permitted to exercise the rights of defense, nor allowed either to participate actively in, or to monitor, the audit.
They report that they lodged motions “for clarification, for
appeal, recusations, and motions to challenge jurisdiction and to
request dismissal for lack of jurisdiction,” as well as the recurso
extraordinario and de queja
before the Supreme Court of Justice of Argentine, all of which were
They claim that there was interference by the Provincial Executive
Branch in the judicial processing of the judges disciplinary. They
also contend that the process was contrary to the relevant law (provincial
law 8085); that the charge was rejected in limine, declaring their attitude “as reckless and malicious”; and
“they were ordered to pay exorbitant professional fees for the justices
of the case”. Also, they contend that their appeals were rejected
at every competent level. They
further argue that in the decision handed down by the Jury
de Enjuiciamiento de Magistrados, the amount established as the
professional fees for each of its members was high (equivalent to
US$ 1,800.00), exceeding the usual judicial practice and the standards
of reasonableness. Moreover,
as a result of the adverse sentence, they were sued for damages by
two of the judges against whom they brought charges (Olcese and Uhart),
who alleged psychological harm and injury to their reputation, thus
“obtaining attachments of the petitioners’ properties for more than
US$500,000. This is an amount without precedent in Argentine case law,
and is interpreted by the petitioners as a deterrent measure and a
They question the grounds for the criminal charges brought
against them. They claim
that the compensatory payments were requested by them,
latter ultimately --by its approval--made those settlements legally valid. They
further allege as follows: that
they were convicted for a nonexistent crime; that in the criminal
trial they were not allowed to cross-examine the “various witnesses”
called by the court; that the experts who performed the audit “acknowledged
in court that they had made a mistake, but that the judge failed to
take that admission into account”; that a cumulative penalty was imposed
which actually was tantamount to a parallel principal one, with the
aggravating circumstance that said penalty was not sought by the prosecution,
was not the subject of debate, and was not supported by evidence submitted
in the proceeding, that the petitioners were not given an opportunity
to defend themselves against its imposition, and it expressly violates
the guarantees of due process; that they could not appeal their conviction,
since Article 350 of the Code of Criminal Procedure of the Province
of Buenos Aires, in effect at that time, was applied, by virtue of
which the criminal proceedings against the other codefendants currently
continues before the Supreme Court of Buenos Aires, “[while] we are
no longer considered a party to them [and so we do not have the legal
capacity and right of defense in these proceedings]”, and the same
court ruled on December 29, 1999 that the conviction ruling has become
res judicata; and, that
judicial approval of the audit report in the civil proceeding was
revoked by the Chamber of Appeals for Civil Matters, situation which
might imply the removal of the basis for their conviction.
Position of the State
It has centered its position on arguing that the case is inadmissible,
both on the basis of failure to exhaust domestic remedies in accordance
with the requirements laid down in Article 46(1)(a) of the Convention,
and in conformity with the provisions contained in Article 47(d) of
the Convention. In light of the fact that the substance of the case
is being examined and decided by the judicial authorities of Argentina,
and that certain of its aspects do no longer fall within the competence
of the Commission, the State has not established its position on the
substance of the case, or contested in detail the petitioners’ allegations.
In its letter of September 17, 1997, it “reserved its right
to consider in future the issues of fact and of law involved in the
case, if it becomes necessary.”
It believes that there is a direct link between the merit of
the allegations on the supposed violations of the right to a fair
trial and the requirement of exhaustion of domestic remedies.
“It is clear that the exercise of this right [to a fair trial]
is improved through the ample possibility of reviewing all decisions
issued throughout court proceedings, by means of the review organs
[within the domestic jurisdiction].”
submits the following:
to the nature of the domestic remedies to be pursued [which in the
opinion of the State were not exhausted by the petitioners up to the
date of the communication in question, i.e., January 4, 1999], a juris
tantum presumption, according to which remedies exist and are
adequate and effective, is recognized, except in the case of specifically
established exceptions. […]
Thus, in this petition, […] it is a fact that none of them
has been omitted by the complainants [petitioners].
Competence of the Commission ratione
materiae, ratione personae,
ratione temporis and ratione
The Commission is competent on the case. The facts alleged
by the petitioners refer to the purported violation of the rights
of individuals resulting from actions imputable to Argentina that
supposedly occurred within its territorial jurisdiction after the
Convention entered into force for the State.
As far as the civil proceeding is concerned, the Commission
takes note of the fact that the plaintiff is Amílcar Cascales and
that the petitioners acted as his attorneys. However, the audit performed
within that proceeding was used as the basis for the criminal action
carried against the petitioners. As a result, the Commission considers
that the scope of its competence to consider the civil proceeding
is limited exclusively to the aforesaid audit report, its revocation,
and its replacement by another one, since it considers that the effects
of those incidents should be consistent with the decision made in
the criminal proceeding.
Other admissibility requirements
Exhaustion of domestic remedies
The instant case concerns three different judicial proceedings
which have taken place within Argentina’s jurisdiction. The following
analysis examines fulfillment of the admissibility requirements in
respect of each of those judicial proceedings.
With reference to the civil proceeding, the State holds that
“the judgment of June 12, 1987 is final and is favorable to the complainants
With regard to the enforcement proceeding, the Commission finds that
it is merely a procedural stage derived from the main sentence that
has acquired the force and effect of res
judicata. Moreover, the criterion that a final judgment and its
enforcement be procedurally joined forms part of the right to an effective
recourse provided by Article 25 of the Convention.
Accordingly, the recognition by the State applies as an extension
to the enforcement proceeding, particularly since the State has made
no distinction between the two. Consequently, domestic remedies are
exhausted in respect of the principal and accessory sentences.
As regards the criminal trial, the Supreme Court of Justice
of Argentine has dismissed, by its decision of March 31, 1999, the
recurso de hecho filed by the petitioners, and they are legally impeded
by article 350 of the Code of Criminal Procedure of the Province of
Buenos Aires (then in force) from participating in the continuation
of the proceeding against the other codefendants. The Supreme Court
of Buenos Aires has decided on December 29, 1999, that the conviction
of the petitioners has become res
judicata. Consequently, domestic remedies in this respect have
27. As to the disciplinary action before the Jury de Enjuiciamiento de Magistrados, the State, in its communication of July 6, 1994, has admitted the fulfillment of the requirement in question. It refers to the decision of the Supreme Court of Justice of Argentine dated April 21, 1992, which rejects the recurso de queja filed by the petitioners against the decision of the Supreme Court of Buenos Aires.
Deadline for lodging the petition
The petition was admitted by the Commission on June 2, 1997.
The declaratory stage of the civil proceedings was exhausted
with the judgment of June 12, 1987, and its execution was halted by
the judicial order issued on August 31, 1992, a situation which has
continued up to the date of this report.
According to any standards of analysis, the mere fact that
this civil proceeding was instituted in 1973, and that twenty-seven
years later it has not yet been fully executed, and that the enforcement
process has been impeded by an act imputable to the State for about
seven and a half years, justifies the application of the exception
to this admissibility requiremen established in Article 46(2)(c) of
As for the criminal trial, domestic remedies were exhausted
on March 31, 1999, subsequent to the date on which the Commission
admitted the petition for processing. Consequently, the requirement established in Article 46(1)(b)
of the Convention has been met in this regard.
30. Concerning the disciplinary action against the judges, the remedies under domestic law were exhausted with the ruling of the Supreme Court of Justice of Argentine dated April 21, 1992. Hence, the admissibility requirement set forth by Article 46(1)(b) has lapsed, and consequently the case in inadmissible on this point.
The State has repeatedly held that the fundamental aspects
of the petition are inadmissible “since the petition is substantially
the same as the one [lodged
on September 29, 1992] previously
examined and decided on by the Commission”. To support this
submission, the State invokes Article 39 of the Rules of Procedure
of the Commission, which defines the scope of Article 47(d) of the
The supposed decision by the Commission invoked by the State,
is proven--in its opinion--by the two communications sent by the Commission’s
Executive Secretariat to the petitioners, dated September 27, 1995
and December 19, 1996. In these communications, the petitioners are
advised that the Commission cannot continue to process the petition
“[because] the facts related in your communications do not characterize
a violation of any right protected by the Convention […].”
The Commission notes that after the dates of the above-mentioned
communications of its Executive Secretariat, various new facts relevant
to the case have come to light, both within and as direct actions
of Argentine’s jurisdiction.
On such basis, the Commission opened the case on June 2nd
The exception based on “new facts” is frequently employed in
the procedural practice of the Commission; however, there is a lack
of precedents to define its scope. In the procedural practice of the
European system of human rights, “declarations of inadmissibility
on the ground of the identical character of two or more cases submitted
to the Commission do not occur frequently”.
Furthermore, “[if] an application has been declared non-admissible
because of non-exhaustion of local remedies [the] fact that the remedy
concerned has finally been exhausted constitutes ‘relevant new information’
which precludes the Commission from declaring the application inadmissible
as being substantially the same [as another examined previously …]”.
When excessive delay of domestic remedies is alleged, the time elapsed
between the first and second petition “in itself, constitutes a new
In the case under review there is no evidence that it is substantially the same than a previous petition lodged before another
competent supranational organization.
The Commission concludes that the case under review contains
references to new facts that make it different from the previous petition
lodged on September 29, 1992.
The admissibility requirement stipulated in Article 47(d) of
the Convention is therefore fulfilled.
The Commission further concludes that there is no evidence
that the case is pending in another international proceeding for settlement,
as stipulated in Article 46(1)(c) of the Convention.
Characterization of the alleged facts
37. The facts alleged by the petitioners
are described in considerable detail and supported with documents.
By contrast, the State has still neither disputed the facts submitted
by the petitioners, nor presented to the Commission information that
makes it possible to question their veracity. Furthermore, the Commission
notes that the State has not expressly sustained that the facts alleged
by the petitioners do not either tend to establish, nor actually establish, violations of the rights guaranteed
by the Convention.
The Commission finds that, should the facts alleged by the
petitioners be confirmed, the case, insofar as its civil and criminal
proceedings are concerned,
could meet the standard of admissibility provided in Article 47(b)
of the Convention, on the grounds of tending to establish violations
of Articles 8, 9 and 25 of the Convention.
The Commission concludes that it is competent to seize this
case, in matters related to the civil proceeding (exclusively with
regard to the audit report, its revocation, and replacement) and to
the criminal proceeding, and that it is admissible on these counts,
pursuant to Articles 46 and 47 of the Convention.
Also, the Commission concludes that it is not competent to
take cognizance of the allegations related to the disciplinary action
against the judges in the Jury
de Enjuiciamiento de Magistrados, since the admissibility requirement
set forth in Article 46 (1)(b) of the Convention has not been met.
on the foregoing factual and legal arguments and without prejudging
the merits of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare admissible
the instant case in regards to the alleged violations of Articles
8, 9, and 25 of the Convention related to the criminal proceeding,
and to the part of its civil proceeding concerning exclusively the
audit report, its revocation, and replacement; and to declare it inadmissible
in relation to the disciplinary proceedings against the judges.
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 to facilitate
the reaching a friendly settlement
based on respect for the human rights enshrined in the Convention,
and to invite the parties to express their opinions on this regard;
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 Washington, D.C., March 7, 2000.
(Signed): Hélio Bicudo, Chairman; Claudio Grossman,
First Vice-Chairman; Commissioners, Robert
K. Goldman, 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.
This description only alludes to the most relevant procedural
Communication of the State dated July 6, 1994, not challenged
in this respect by the petitioners.
Communication of the petitioners dated September 29, 1992, not
challenged in this respect by the State.
Communication of the State dated July 6, 1994, op. cit.
Article 350º: “This appeal [for reversal of decision based on
contradictory doctrine] is admissible in all cases where the final
judgment revokes an acquittal or imposes a punishment greater
than three years imprisonment.”
Communication of the State dated July 6, 1994, reaffirmed in this
respect by the petitioners.
The jurisprudence of the European Court also reaffirms the criterion
that a final judgment and its enforcement are procedurally joined
for the purposes of determining fulfillment of the requirement
with respect to the deadline for lodging petitions with the international
organ. See, inter alia, Silva Pontes v.
Portugal, Judgment of 23 March 1994, Series A, Nº 286-A, para.
33; and the Guincho Case,
Judgment of 10 July 1984, Series A, Nº 81, para. 29.
above, para. 10.
Van DIJK, p. and von
HOOF, G.J.H. (1998) Theory and Practice of the European Convention
on Human Rights. The Hague, Kluwer and SIM,
3rd. edition; p. 112.
ZWART, Tom (1994) The Admissibility of Human Rights Petitions.
The Case Law of the European Commission of Human Rights and the
Human Rights Committee. Boston, Martinus Nijhoff; p. 165.
 Supra, paras. 8 to 10, and 11 to 13, respectively. In the matter of the civil proceeding, consideration should be given to the scope of the Commission’s competence as defined by it in paragraph 23 above.