Juan José López v. Argentina, Case 11.395, Report No. 56/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 61 (2000).
JUAN JOSÉ LÓPEZ
October 2, 2000
On September 29, 1994, Juan José López and the Córdoba Press Trade
Union Group [Círculo Sindical
de la Prensa de Córdoba] (hereinafter "the petitioners")
submitted a petition to the Inter-American Commission on Human Rights (hereinafter
"the Commission") denouncing violation by the Republic of Argentina
(hereinafter "Argentina" or "the State") of the right
of Juan José López, mentioned above, (hereinafter "the alleged victim")
to freedom of thought and expression enshrined in Article 13 of the American
Convention on Human Rights (hereinafter "the Convention").
The alleged victim established a professional relationship with LRA
7- Radio Nacional de Córdoba (hereinafter
"Radio Nacional,") in January 1986, which continued without interruption
until July 1990. The parties
describe this relationship differently from a legal standpoint. The alleged
victim was elected to the position of alternate member of the Córdoba Press
Trade Union Group (hereinafter "CISPREN") and, while performing
duties in that capacity, was denied work by Radio
Nacional. No reason was
given for this action. Consequently,
the petitioners took legal action with a view to his reinstatement.
Federal Court No. 2 of Córdoba ruled that the request should be granted
and ordered the reinstatement of the alleged victim in his position.
In May 1993, Division "A" of the Federal Court of Appeals
of the Fourth Judicial District overturned the first instance decision,
which had been appealed. The
Supreme Court rejected the appeal for special remedy filed by the petitioners,
without reviewing the merits of the case.
Without prejudging the merits, the Commission concludes that this
case is admissible with respect to the alleged violation of the right to
freedom of thought and expression enshrined in Article 13 of the Convention.
Furthermore, the possibility is being left open to interpret and
apply the provisions of the Convention related to judicial guarantees and
protection (Articles 8(1) and 25), freedom of association (Article 16),
and equality before the law (Article 24), when the merits of the case are
PROCESSING BY THE COMMISSION
The Commission received the petition on September 29, 1994, and acknowledged
receipt thereof on October 24. It
was forwarded to the State with a 90-day period being provided for a response.
On November 28, 1994, the Commission received additional information
from the petitioners, and acknowledged receipt thereof on December 5, 1994.
On January 3, 1995, the State requested an extension of the deadline
for providing a response. On
January 12, 1995, the Commission acknowledged receipt of this request and
extended the deadline to February 28.
On March 2, 1995, the State requested another extension, and on March
13, the Commission granted it an additional 45 days.
The State responded to the petition on May 22, 1995, and the Commission
acknowledged receipt of this response and forwarded it to the petitioners
on May 31.
The Commission received additional information from the petitioners
on August 14, 1995, and acknowledged receipt thereof.
This information was forwarded to the State on August 17.
On November 29, 1995, the State provided the Commission with additional
information. Acknowledgment of receipt was provided the next day.
On March 25, 1998, the Commission received correspondence from the
petitioners expressing their interest in the continuation of processing
of the case. The Commission
acknowledged receipt of this correspondence on April 14, 1998.
POSITIONS OF THE PARTIES
Based on the correspondence from the parties to the Commission, there
is no dispute between them regarding the description of most of the facts
related to this case. Consequently,
the crux of the case lies in the conflicting accounts of the description
and substance of the professional relationship between the alleged victim
and Radio Nacional.
Position of the petitioners
The alleged victim established an ongoing relationship with LRA 7
- Radio Nacional de Córdoba (hereinafter
Radio Nacional) in January 1986,
which continued without interruption until July 1990. Within the context of that relationship, he participated in
a variety of journalism programs, which involved the preparation of notes,
reports, commentaries, and narrations, among others. The petitioners maintain that "[the legal relationship
between the alleged victim and Radio
Nacional] "faded" (sic) on September 1, 1986, with the "liquidation"
(sic) of his respective payments, based on an initial "contract"
for journalistic work, the first in a series, copies of which were never
provided to the party appearing [the alleged victim]."
The alleged victim was a member of the Córdoba Press Trade Union
Group and "[was elected]
alternate member of its governing board, to serve from December 16, 1988
to December 15, 1990. The defendant,
[Radio Nacional] was informed
of this appointment by secret ballot on December 15, 1988."
They claim that:
July 2, 1990 [that is, while the alleged victim was still serving as the
union representative for journalists in Córdoba, the claimant, Mr. López
[the alleged victim] was relieved of his duties.
No reason was given for this action.
Radio Nacional apparently
decided to reduce the number of journalism and musical programs produced
], and to rely directly on the federal capital for them.
From that time, most of the programs started to be transmitted from Buenos
Aires (18 of the 24 hours).
The alleged victim viewed the situation that had arisen with his
professional relationship as "injurious from an individual standpoint
and prejudicial to trade union freedom," and, for this reason, took
several steps aimed at reversing it, which included asking the radio station
"within a period of two days, to provide clarification with regard
to my employment status, to reinstate me in my position, and to cease such
conduct, failing which I will take legal action aimed at my reinstatement,
which did not rule out the possibility of adopting the position, later on,
that you bear sole responsibility for my dismissal."
CISPREN also sent a letter to Radio
Nacional reminding it that the alleged victim was, at that time, holding
a position within the trade union and repeating the information that he
had already transmitted to it. These
letters were rejected by the local Director of Radio
Nacional. The intervention of lawmakers, political and trade union leaders,
officials, and others was also sought, but failed to produce positive results.
In light of those unsuccessful efforts, the alleged victim sent another
letter to Radio Nacional, dated August 3, 1990, noting the "persistence
(sic) refusal of [Radio Nacional]
to reinstate me as a professional journalist [despite the fact that I hold
an executive position in the local association of journalists] [
[for this reason] I reserve the right to consider myself indirectly fired,
and as a result, entitled to compensation [
]" and that he
would avail himself of the federal court system with the aim of being
reinstated in his position. CISPREN
sent Radio Nacional another letter to the same effect.
Since this correspondence failed to produce results, the petitioners
instituted proceedings for infringement of trade union rights and freedoms
pursuant to Law 23,551 on Professional Associations, seeking application
of the guarantee of trade union stability, based on Article 14bis
of the Constitution of Argentina and Article 52 of the aforementioned law.
The objective of the proceedings instituted was the reinstatement
of the alleged victim, given his status as a trade union representative
of CISPREN and the restoration of trade union freedom.
On February 21, 1992, Federal Court No. 2 of Cordoba handed down
a decision regarding the proceedings for reinstatement instituted by the
petitioners, granting the request and ordering "the immediate cessation
of anti-trade union conduct and the reinstatement [of Mr. López] in his
position at least twenty days after this decision becomes enforceable."
A ruling with respect to the appeal filed by Radio
Nacional was handed down by Division "A" of the Federal Court
of Appeals of the Fourth Judicial District. This
court overturned the first instance decision, since it assessed the evidence
differently and held a different view regarding the legal nature of the
professional relationship between the alleged victim and Radio Nacional. The decision
of the first instance court held that an employment relationship existed
with a professional journalist, whereas, in its ruling on the appeal, the
Federal Court maintained that the relationship involved a contract to provide
work and did not meet the requirements for considering him a professional
The petitioners filed an appeal with the Supreme Court for special
remedy against the decision handed down by the Federal Court.
In their appeal, they maintained that "the second instance ruling
] was limited to disproving the labor relationship of the plaintiff,
without analyzing the main injury outlined in the complaint: the loss of
employment of a member of the governing board, whose position on the board
had been communicated to the defendant a year and a half prior to his separation,
and was never challenged." On February 22, 1994, the Supreme Court rejected the appeal
for special remedy filed by the petitioners without reviewing the merits
of the case or providing an exhaustive explanation of the basis for its
The points of law
The petitioners maintain that the link that existed between the alleged
victim and his employer was a dependent employment relationship and that
the alleged victim "worked as a professional journalist within a state
context, that is, LRA 7 Radio Nacional
Córdoba, for a long period."
They stress the fact that an employment relationship did exist, which
involved the regular performance of work related to professional journalism.
They add, with respect to the enforcement of Law 12,908:
requirements related to entry in the register and the granting of a journalism
membership card by the National Executive, as well as registration in the
retirement system in order to work as and be considered a journalist are
at odds with freedom of expression and of the press enshrined in the laws
and Constitution of Argentina and in Article 13 of the American Convention
on Human Rights, which cover freedom of thought and expression.
Position of the State
It supports the argument advanced by Radio
Nacional that the relationship with the alleged victim was one involving
a contract to provide work.
25. With regard to
the professional status resulting from this relationship, it maintains that
he "was not registered in the retirement and pension system for journalists,
nor was he considered to have such status."
26. It maintains
that the severing of ties between the alleged victim and Radio
Nacional, the failure to recognize his status as a professional journalist,
and the enforcement of Law 12,908 with regard to the alleged victim do not
in any way constitute a violation of Article 13 of the Convention on freedom
27. It argues that
the alleged victim failed to meet the requirements set forth in law 12,908
approving decree 7618/44, which in turn adopts the Statute applicable to
the Professional Journalist. The
contents of this provision that are relevant to this case will be discussed
in detail later on.
28. In support of
its position, it expresses its agreement with the arguments advanced in
the ruling of May 7, 1993 by Division "A" of the Federal Court
of Appeals of Córdoba, which overturned the decision of the court of first
instance in favor of the alleged victim.
29. It therefore
rejects the arguments of the petitioners and maintains that the nature of
the professional relationship with Radio
Nacional, which began in 1986 and continued without interruption until
July 2, 1990, was not an employment relationship involving the performance
of functions related to professional journalism by the alleged victim.
Competence of the Commission
ratione personae, ratione materiae,
ratione temporis and ratione loci
The Commission is competent to review the case.
The acts denounced by the petitioners allegedly affect rights of
natural persons as a result of actions taken by Argentina, which occurred
within its territory after the date of deposit of its instrument of ratification.
Other admissibility requirements of the petition
Exhaustion of domestic remedies
31. The petitioners
have exhausted domestic remedies, as evidenced by the decision handed down
by the Supreme Court with respect to the appeal for special remedy on February
22, 1994, as reported by the State in its correspondence of May 22, 1995.
Period for lodging the petition
of the aforementioned decision of the Supreme Court was provided on March
16, 1994, and this date was used to compute the time period set forth in
Article 46(1)(b) of the Convention and Article 38 of the Regulations of
the Commission. The Commission
received the petition on September 29, 1994, but it was sent from Córdoba,
Argentina, prior to that date. The
petitioners have expressly asked the Commission "to consider the petition
to have been filed within the time frame and in the manner required"
and the State has not raised any objection to this.
Consequently, taking into consideration the distance, the Commission
declares that the requirement set forth in Articles 46(b) of the Convention
and 38 of the Regulations of the Commission have been met.
Duplication of proceedings and res
33. There is no evidence
to suggest that other proceedings in the international sphere are pending
with regard to the matter covered in the petition or that it represents,
from a substantive standpoint, a reproduction of another appeal already
examined by the Commission or other pertinent supranational entity.
Consequently, the requirements set forth in Articles 46(1)(c) and
47(d) of the Convention have been met.
Characterization of the alleged facts
34. In the view of
the Commission, confirmation of the veracity of the facts alleged by the
petitioner could lead to a finding of violation of rights protected under
the Convention. Consequently,
without prejudice to points related to the merits of the case, the Commission
holds the view that the requirements set forth in Articles 47(b) and (c)
of the Convention have been met.
35. In its decision
on the merits, the Commission will also make a determination as to whether
it would be appropriate to interpret and apply the provisions of the Convention
pertaining to judicial guarantees
and protection (Articles 8(1) and 25), freedom of association (Article 16),
and equality before the law (Article 24).
36. The Commission
concludes that it is competent to hear this case and that it is admissible,
pursuant to Articles 46 and 47 of the Convention.
37. Based on the
arguments of fact and of law outlined above, and, without prejudice to the
merits of the case,
COMMISSION ON HUMAN RIGHTS
1. Declare this case admissible with regard to the alleged
violation of the right to freedom of thought and expression enshrined in Article
13 of the Convention and to allow for the possibility of interpretation and
application of the provisions of the Convention with respect to judicial guarantees
and protection (Articles 8(1) and 25), freedom of association (Article 16),
and equality before the law (Article 24), when the merits of the case are
2. Notify the parties of this decision.
3. Continue analysis of the merits of the case; and,
4. Publish this decision in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights in Washington D.C., on this the 2nd day of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.
Dr. Juan Méndez, an Argentine national, did not participate in the discussion
of this case in accordance with Article 19(2)(a) of the Commissions
Bold and capital letters that appear in the original have been omitted.
 Argentina deposited the instrument of ratification of the Convention at the General Secretariat of the Organization of American States on September 5, 1984.