REPORT Nº 57/03
MARCELA ANDREA VALDÉS DÍAZ
October 10, 2003
1. On October 4, 2000, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a petition filed by the Fundación Instituto de la Mujer (hereinafter “the petitioner”) and sponsored by attorneys Juan Pablo Olmedo Bustos and Ciro Colombara López. The petition alleges that the State of Chile (hereinafter “the State” or “the Chilean State”) violated Articles 1(1), 2, 5, 8, 11, 24 and 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and Article 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter the “Convention of Belém do Pará”), to the detriment of Marcela Andrea Valdés Díaz (hereinafter “the alleged victim”).
2. The petitioner states that Marcela Valdés Díaz was a member of the Chilean National Police Force (Carabineros de Chile). Following a legal proceeding that investigated her marital relationship, she was sentenced to 15 days’ arrest, while two other police officers were given lesser penalties. Before the final decision was delivered, she filed for relief from the courts, whereupon she was sentenced to additional time for having sought judicial remedies before exhausting the administrative avenue. As a result of these sanctions, she was ultimately discharged from the service. The petitioner adds that Mrs. Valdés went to court to file an appeal challenging her discharge, but her appeals were denied. The courts never examined the merits of her claims. The petitioner believes that the State is responsible for violating the rights to equality before the law, the right to humane treatment, the right to protection of one’s honor and dignity, the right to a fair trial and the right to judicial guarantees, thereby also violating its obligation to respect the rights protected under the Convention and ensure their free and full exercise. The petitioner adds that the State also failed to honor its obligation to adopt the necessary measures to prevent, punish and eradicate violence against women. As to the petition’s admissibility, the petitioner contends that the domestic legal remedies have been exhausted and that the petition meets the formal and substantive requirements for admissibility. The State, for its part, contends that the petition is inadmissible because the domestic legal remedies have not been exhausted.
3. After examining the parties’ positions, the Commission concludes that it has competence to take cognizance of the case lodged by the petitioners and that the case is admissible under Articles 46 and 47 of the American Convention and the pertinent provisions of the Commission’s Rules of Procedure.
II. PROCEEDINGS WITH THE COMMISSION
4. The Commission received the petition on October 4, 2000. On November 1, 2000, the latter was forwarded to the Government, which was then given a period of 90 days to provide the Commission with the information it deemed pertinent with regard to the facts denounced and the exhaustion of the remedies under domestic law. On January 17, 2001, the State requested an extension of the deadline to present the information. By Commission note of February 2, 2001, the State was granted a 30-day extension, effective that date. On April 26, 2001, the Commission reiterated the requested of information to the State with a deadline until May 1, 2001 to respond, which was the maximum allowable time period under Article 34(6) of the Rules of Procedure.
5. The Government sent its response on July 13, 2001, which was then forwarded to the petitioner, with a one-month time period to respond. By communication dated March 5, 2002, the petitioner filed its observations regarding the State’s response.
6. Acting upon the petitioner’s request, on March 6, 2002, a hearing was held during the Commission’s 114th regular session, where the parties discussed the admissibility of the present case.
7. On March 19, 2002, the Commission sent the State the pertinent parts of the observations that the petitioner submitted in its communication of March 5, 2002. The Commission gave the State one month in which to send any additional observations.
8. On August 21, 2002, the petitioner asked the Commission to decide on the admissibility of the case, given that the time period given to the State to send in its observations had expired. To date, the State has not yet presented its additional observations.
III. POSITION OF THE PARTIES
A. The petitioner
9. The petitioner states that the alleged victim had been a member of Carabineros de Chile since 1991. It notes that in 1999, she was a Carabinero lieutenant serving in the First Precinct of Valdivia Prefecture No. 23. In 1994, she married Claudio Vázquez Cardinalli, a captain in Carabineros. The petition notes that since the beginning of her marriage the alleged victim suffered physical and psychological abuse by her husband.
10. As reported in Resolution No. 15 of Valdivia Prefecture No. 23 (see below), the Chief of Valdivia’s First Precinct reported a complaint filed by Marcela Valdés Días concerning the couple’s marital problems. The matter was referred to Social Services. The same resolution states that, on April 23, 1999, the division in which Mrs. Valdés served was informed that on April 11, 1999, the Precinct Chief himself had gone to the couple’s residence because of a marital dispute caused by a telephone conversation between Mrs. Valdés and a fellow Carabinero and friend.
11. It further states that the abusive treatment is on the record in Carabinero report No. 801, dated May 19, 1999, and led to a case alleging abuse filed with the Valdivia First Court of First Instance on May 19, 1999. This proceeding ended on May 25, 1999, with a court compromise reached in the conciliation hearing required under Chilean law on domestic violence. The result was that the alleged victim obtained a court order of permanent protection whereby she was authorized to leave the city with her children in order to avoid “future troubles or physical and psychological aggression.”
12. Subsequent to the arrangement worked out through the courts, in 1999 the alleged victim and her husband requested their superiors’ authorization to live separately, which was granted on June 4, 1999, via Resolution No. 14 of Valdivia Prefecture No. 23. At the same time, however, and due to that request, the Valdivia Prefecture ordered a summary inquiry. The proceeding concluded with issuance of Resolution No. 15, on June 7, 1999.
13. This latest resolution ordered the alleged victim’s arrest for ten days on the grounds of “unbecoming private conduct” for having maintained a deep friendship with Lieutenant (I) Manuel Andrés Suazo Erba. The resolution stated that the alleged victim had “started a friendship” with the lieutenant. It went on to say that “although the inquiry was unable to establish whether the friendship had developed into a romance, there were grounds to conclude that the relationship had provoked gossip to that effect and led to the breakup of the marriage” with Captain Claudio Aurelio Vásquez Cardinalli. The resolution stated that the situation had grown to include officers and certain civilians, thus disrupting the professional work of the Unit and sullying the institution’s good name. Her husband was sentenced to four days’ arrest for having “provoked domestic violence in the home by beating his wife.” Lieutenant Manuel Andrés Suazo Erba was sentenced to ten days’ arrest for having “displayed a series of improper behaviors … prejudicial to the institution’s reputation and to the work of the professionals in the First Valdivia Precinct; by his attitude, he was responsible for the irreversible breakup of the marriage.”
14. The petition states that the alleged victim appealed Resolution No. 15, mentioned above, by way of an administrative action filed with the IX Carabineros Zone. On July 7, 1999, the latter issued the Resolution No. 26, confirming the disciplinary measure imposed. The alleged victim appealed this resolution as well, this time with the Office of the Director of Order and Security of the Chilean Carabineros. On October 28, 1999, the latter issued Resolution No. 161, denying the appeal filed and increasing her penalty to “15 days’ arrest, with duty”. It also denied any further administrative appeal.
15. The petition explains that while her administrative appeal was pending, the alleged victim filed an appeal with the Valdivia Appellate Court seeking relief from Resolution No. 15. Her appeal was subsequently withdrawn.
16. The petition further states that because the alleged victim filed an appeal with the regular court system, Valdivia’s First Precinct issued Resolution No. 12, dated July 14, 1999, punishing Marcela Valdés Díaz with another “three days’ arrest with duty.” That resolution states that the disciplinary action is due to the fact that the alleged victim, “foolishly and without exercising judgment, took a purely administrative matter to the regular courts, thus venturing beyond the framework of the institution. She did so when the proper regulatory authorities, to whom she was exercising her right to appeal, had not yet delivered their ruling.”
17. The petition explains that the alleged victim had appealed this measure with Valdivia Carabineros Prefecture No. 23, but her appeals were denied and the disciplinary measure was increased to five days’ arrest. The alleged victim also appealed this decision with the IX Araucania Carabineros Zone, which on September 16, 1999, issued Resolution No. 28, wherein it denied the appeal and upheld the disciplinary measure imposed.
18. The petition further reports that because of the disciplinary measures ordered against her, the Low-ranking Officers Classifications Board proceeded to review the alleged victim’s record for 1999. On August 11, 1999, the Board held that the alleged victim’s “personal and moral character and professional credentials were seriously flawed;” it therefore changed her classification, removing her from the “List 2, Satisfactory” and placing her instead on the “List 4 of dismissal.” An appeal of this decision was filed with the Merits and Appeals Board, which on September 1, 1999, decided not to hear the appeal. An oral appeal of this decision was filed with the Superior Appellate Board, which on September 21, 1999, denied the appeal.
19. With that, by Supreme Decree No. 764 the Ministry of Defense ordered her “unconditional discharge” effective January 2, 2000.
20. In response to the decisions of the Classifications Boards, the alleged victim filed an appeal seeking the Santiago Appellate Court’s protection of her constitutional rights, against the Department of Personnel, Dept. P.1 and the Office of the Director of Order and Security, both units of Carabineros. In her appeal, the alleged victim argued that the decisions that led to her discharge and the inquiry that served as the basis for her discharge “are arbitrary and unlawful inasmuch as they violate constitutional guarantees… namely, equality before the law, due process, and the right to humane treatment, privacy and the right to have one’s honor respected, the inviolability of the... home and of any type of personal communication.”
21. On March 14, 2000, the Court denied the appeal on the grounds that Carabineros had done nothing unlawful or abusive; that there were no procedural errors in the classification procedure, and that the conduct of the police authorities was based on “substantive assessments that, on the one hand, are the exclusive purview of that authority and, on the other hand, do not appear to be unreasonable or beyond the realm in which the institution in question operates on moves.” The Supreme Court upheld this decision in a ruling on April 5, 2000.
22. The petitioner contends that the conduct of the Chilean State did not conform to international law, which requires it to prevent, punish and eliminate violence against women. The petitioner adds that the State also failed in its duty to adopt the appropriate measures to guarantee the alleged victim’s physical and mental integrity. The petitioner contends that the contrary happened: when the alleged victim complained of spousal abuse, the Carabineros blamed the violence on the alleged victim’s “permissive and improper conduct” and decided to punish her for this behavior.
23. The petition further alleges that the summary inquiry was an abusive intrusion into the alleged victim’s private life. It explains that the interference was entirely irrelevant to determining her disciplinary responsibilities within the institution and infringed her right to have her dignity and honor protected.
24. The petitioner is of the view that the disciplinary action taken against the alleged victim, her classification and listing for “unconditional discharge” were abusive and discriminatory. The petitioner contends that the facts prompting the disciplinary action did not warrant a measure as extreme as listing her for discharge. Further, they conclude that she was treated more harshly “because she is a women and a member of a particular institution in which discrimination and stereotyping are tolerated.” The petitioner further argues that “this is the clear inference to be drawn from the fact that the Carabineros find more to reproach in a friendship than they do in physical and mental abuse … [and that] repeated instances of domestic violence were disregarded; the alleged victim was even blamed for the separation.”
25. The petitioner contends that the ruling of the Santiago Appellate Court, which denied the appeal for constitutional protection and was subsequently upheld by Chile’s Supreme Court, is a violation of the right to access the courts. The petitioner further contends that the courts confined themselves to examining the legality of the procedures, with the result that the alleged victim never had an opportunity to have her case concerning the abusiveness of the punishment and dismissal heard by an impartial and independent tribunal.
26. The petitioner argues that the alleged victim exhausted the remedies available under domestic law. Specifically, the petitioner explains that contrary to what the State contends, no appeal had to be filed with the Office of the Comptroller General of the Republic. He states that such an appeal is optional under Chile’s legal system, and that the alleged victim opted not to use it, but to take her case directly to the courts instead.
27. The petitioner further contends that Article 46(1) of the American Convention requires exhaustion of judicial remedies under domestic law. Inasmuch as the appeal to the Office of the Comptroller General of the Republic is an administrative remedy, the petitioner concludes, it does not need to be exhausted before turning to an international body.
28. Further, the petitioner alleges that the appeal to the Office of the Comptroller General of the Republic was not an adequate and effective remedy. He notes that time and time again, the Office of the Comptroller General of the Republic has consistently held that the “Merit classification boards are sovereign in their technical assessments of the suitability, professional competency, personal and moral character of the officials it grades, so that this Comptroller’s Office... can only determine the lawfulness of the procedures by which Carabinero personnel are ranked, when and if procedure has not been followed to the fullest or the evaluation rules have been violated.”
B. The State
29. The State contends that international norms regarding its obligation to prevent, punish and eradicate violence against women were not violated. It argues that the alleged victim did not report the abuse to the police and opted instead to bring a legal case to court under the terms of Law 19.325 on Domestic Violence. It points out that the court case concluded with a court-ordered arrangement that, inter alia, left in place a protective measure for the alleged victim and her children. The State further argues that the alleged victim “opted for the solution that was in her best interests ... [and that] the Chilean Carabineros played no part in, and did not interfere in the problem because that was how the petitioner wanted it.”
30. The State contends that the summary inquiry cannot be regarded as an abusive intrusion into the alleged victim’s privacy. It goes on to explain that “the police involvement was not a result of the abuse that the petitioner’s spouse practiced against her (because the police were unaware of that abuse) or of Mrs. Valdés’ supposed infidelity (which the police were also unaware of); rather, the police became involved because the situation between the petitioner and her spouse was disruptive to the Prefecture and to the precinct in question.” It adds that "it was simply an investigation of the conduct of three officers of the Chilean Carabineros who had acted improperly in the place in which they performed their official police functions.”
31. The State’s contention is that there was no discrimination against the alleged victim because she was a woman. It argues that the petitioner’s allegations of gender discrimination are pure conjecture, unsupported by the records of the administrative proceeding. The State points out that Lieutenant Suazo received the same disciplinary measure as the alleged victim. The State’s conclusion is that the alleged victim was punished and classified on the basis of the internal rules and regulations and her record as a police officer.
32. The State further argues that it was not the function of the courts to conduct a far-ranging review of the decisions being challenged, and the fact that the courts did not conduct such a review does not mean that justice was denied or that the guarantees of due process were violated. The State goes on to explain that the imposition of sanctions and the classification of personnel are discretionary authorities. When those authorities are exercised, the State argues, questions of suitability and professional ethics are evaluated. The State considers that in a militarized police force, these assessments cannot be done by “a third party other than the Carabineros, lacking the expertise to make a technical assessment of professional suitability and efficacy and in no position to observe personal performance as the party making the classification can.”
33. It points out that the internal rules and regulations establish various administrative appellate bodies which the alleged victim could have availed herself of, with all the guarantees of due process. It argues that in the final analysis, the decisions were upheld by a court ruling both as to the procedures and as to the substantive assessments “as the court held that the Institution had exercised its exclusive authorities and that its decisions could not be characterized as either unreasonable or as an abuse of legal authority.”
34. On the matter of exhaustion of domestic remedies, the State’s contention is simply that the alleged victim did not exhaust the remedies under domestic law. Specifically, the State argues that “under the Personnel Statute, she could have turned to the Office of the Comptroller General of the Republic, but decided not to.” The State did not indicate how this particular remedy was pertinent.
IV. ANALYSIS ON COMPETENCE AND ADMISSIBILITY
A. The Commission’s competence ratione personae, ratione loci, ratione temporis and ratione materiae.
35. Under Article 44 of the American Convention, the petitioner has competence to lodge petitions with the Commission. The alleged victim named in the petition is an individual whose rights under the American Convention and under Article 7 of the Convention of Belém do Pará Chile pledged to respect and guarantee. As for the State, the Commission notes that Chile has been a State Party to the American Convention since August 21, 1990, and to the Convention of Belém do Pará since November 15, 1996, the dates on which the respective instruments of ratification were deposited. The Commission therefore has competence ratione personae to examine the present petition.
36. The Commission has competence ratione loci to take up the petition inasmuch as it alleges violations of rights protected under the American Convention and the Convention of Belém do Pará that are alleged to have been violated within the territory of a State party to both treaties.
37. The Commission has competence ratione temporis, insofar as the obligation to respect and guarantee the rights protected in the American Convention and the Convention of Belém do Pará were already in force for the State on the date on which the acts referred to in the petition are alleged to have occurred
38. Finally, the Commission is competent ratione materiae because the petition denounces violations of human rights that are protected by the American Convention and the Convention of Belém do Pará.
B. Admissibility requirements
1. Exhaustion of remedies under domestic law
39. Article 46(1)(a) of the American Convention provides that a petition’s admissibility depends directly on whether the available remedies under a State’s domestic laws have been pursued and exhausted. The case in question involves a dispute over the remedy that the alleged victim could have filed with the Comptroller General of the Republic. It is up to the Inter-American Commission to determine whether that remedy had to be exhausted in order for the alleged victim to have access to an international body.
40. It should be noted that the rule requiring exhaustion of internal remedies does not mean that alleged victims have to exhaust all remedies available. Both the Inter-American Court of Human Rights (hereinafter “the Court”) and the Commission have repeatedly held that “(…) the rule which requires the prior exhaustion of domestic remedies is designed for the benefit of the State, for that rule seeks to excuse the State from having to respond to charges before an international body for acts imputed to it before it has had the opportunity to remedy them by internal means.” Therefore, if the alleged victim raised the issue by any lawful and appropriate alternative under the domestic juridical system and the State had the opportunity to remedy the matter within its jurisdiction, then the purpose of the international rule has thus been served.
41. Furthermore, “[A]s the Inter-American Court has stated time and time again, if in a given case an appeal is inappropriate for providing protection in order to remedy a legal situation and is not capable of producing the intended result, then clearly, it does not have to be exhausted.” Here the petitioner alleges that under the jurisprudence of the Office of the Comptroller General of the Republic, an appeal to the Comptroller’s Office was not the appropriate remedy to challenge decisions such as those that adversely affected the alleged victim in the present case.
42. It is worth noting that because the petitioner contends that the remedies were exhausted and the State claims they were not, it is the State that bears the burden of showing that remedies are available and that they are effective. In the instant case, the State has not explained whether recourse to the Office of the Comptroller General of the Republic was an effective remedy, and has failed to respond to the petitioner’s observations in this regard. Further, the IACHR does not find in the case file any other information that would enable it to conclude that recourse to the Office of the Comptroller General would be an appropriate and effective remedy. Therefore, the Commission considers that the State has failed to show that the recourse to the Office of the Comptroller General would be appropriate to remedy the violations alleged by the petitioner.
43. Therefore, the Commission is persuaded that the provisions of Article 46 of the Convention regarding the pursuit and exhaustion of the remedies under domestic law have been satisfied.
2. Time period for lodging the petition
44. Under the provisions of Article 46(1)(b) of the Convention, in order to be admitted, a petition must be lodged within the prescribed time period; in other words, it must be lodged within six months from the date on which the applicant alleging violation of his or her rights was notified of the final judgment at the domestic level.
45. As noted previously, the communication that brought this petition was received on October 4, 2000, and the final judgment by the domestic courts came from Chile’s Supreme Court on April 5, 2000. Consequently, the petition was presented within the time period that the Convention requires.
3. Duplication of proceedings and res judicata
46. There is nothing in the case file indicating that the subject of the proceeding is pending in another international proceeding for settlement or is substantially the same as one already examined by this or any other international body. Therefore, the requirements established in Articles 46(1)(c) and 47(d) of the Convention have been met.
4. Characterization of the facts alleged
47. The State requested that the Commission declare the petition inadmissible on the grounds that the facts alleged therein are not violations of either the American Convention or the Convention of Belém do Pará.
48. The Commission’s position is that the question of whether or not the American Convention has been violated is not being decided at this stage of the proceeding. For purposes of admissibility, the IACHR must decide whether the petition states facts that tend to establish a violation, as Article 47(b) of the American Convention provides, or whether the petition is, in the language of Article 47(c) of the American Convention, “manifestly groundless” or “obviously out of order.”
49. The criteria for determining whether these requirements have been met are different from those used to decide on the merits of a complaint. The IACHR must undertake a prima facie evaluation to determine whether the complaint establishes an apparent or potential violation of a right guaranteed by the Convention and not to establish whether a violation has occurred. Such an evaluation is a summary review that does not prejudice or advance an opinion on the substance. By establishing two distinct phases of admissibility and substance, the Regulations of the Commission reflect this separation between the evaluation to be carried out by the Commission for the purpose of declaring a petition admissible and that required to establish whether a violation has taken place.
50. In the instant case, according Article 47(b) of the Convention, the Commission considers that the petitioner’s arguments are reasoned and relevant for determining, once the merits of the case are examined, whether the facts constitute violations of the American Convention and the Convention of Belém do Pará.
51. When analyzing the merits of the present case, the Commission will examine the petitioner’s claims regarding the administrative inquiry proceedings in relation to the scope of the right to have one’s honor respected and dignity recognized, and the right to have one’s mental integrity respected. Concerning that inquiry and the resulting disciplinary measure and compulsory discharge, the Commission will examine the arguments pertaining to the right to equal treatment and nondiscrimination for reasons of gender.
52. As to the husband’s abuse of the alleged victim, the petitioner did not allege a violation of the duty to prevent and/or investigate these acts of violence. The petitioner’s main allegation is that once the authorities had knowledge of these incidents of abuse, the proper punishment was not enforced. The Commission considers that the information supplied by the petitioner is sufficient to examine that argument in light of Article 5 of the American Convention and Article 7 of the Convention of Belem do Pará.
53. The Commission must also determine whether the alleged victim had access to the judicial protection and guarantees required under Articles 8 and 25 of the American Convention, in terms of a judicial review of the decision to discharge her. In relation to Article 25 of the Convention, the Commission will also have to examine the issue of the penalty imposed for having filed an appeal with the court seeking protection.
54. Consequently, the IACHR does not find the petition to be “manifestly groundless,” or “obviously out of order.” The Commission therefore considers that in the present case, the petitioner’s allegations concerning violations of rights protected by Articles 1(1), 2, 5, 8, 11, 24 and 25 of the Convention and Article 7 of the Convention of Belém do Pará, state facts that could tend to establish violations of the alleged victim’s rights.
55. Concerning the alleged violations of the rights protected under Articles 1(1), 2, 5, 8, 11, 24 and 25 of the American Convention and Article 7 of the Convention of Belém do Pará, the Commission concludes that it has competence to examine the present case and that the petition is admissible under Articles 46 and 47 of the American Convention.
56. Based on the preceding arguments of fact and of law and without prejudging the merits of the case,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare the petition under study admissible with respect to Articles 1(1), 2, 5, 8, 11, 24 and 25 of the American Convention on Human Rights and Article 7 of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women.
2. To notify the State and the petitioner of this decision.
3. To begin proceedings on the merits of the complaint.
4. To publish this decision and include it in the Annual Report to be submitted to the OAS General Assembly.
 Pursuant to the terms of Article 17(2) of the Rules of Procedure of the Commission, its President, José Zalaquett Daher, a national of Chile, did not participate in the discussion or decision on the present petition.
 Cf. Resolution No.15 of the Office of Valdivia Prefecture No. 23, IX Araucania Carabineros Zone, paragraph 2.
 See petitioner’s brief of October 4, 2000, p. 5.
 See petitioner’s brief of October 4, 2000, p. 6.
 See petitioner’s brief of October 4, 2000, p. 8.
 See appeal seeking the protection of the Santiago Appellate Court, 11/18/99, p. 3.
 See petitioner’s brief of October 4, 2000, p. 10.
 See petitioner’s brief of October 4, 2000, p. 27.
 See State’s brief of July 13, 2001, p. 13.
 See IACtHR, Decision in the matter of Viviana Gallardo et al., of November 13, 1981, Ser. A No. G 101/81, paragraph 26. See also IACHR, Report No. 5/02 (Admissibility), Case 12,080, Sergio Schiavini and María Teresa Schnack de Schiavini, Argentina, February 27, 2002; and Report No. 74/99, Case 11,810, Sebastián Sánchez López, Sebastián López López and Mateo López Pérez, Mexico, May 4, 1999.
 See, for example, Inter-American Court of Human Rights, Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(1) AND 46(2)(b) American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, par. 36, and IACtHR, Velásquez Rodríguez Case, Judgment del July 29, 1988, Ser. C No. 4, paragraph 63; see also, IACHR, Report No. 68/01 (Admissibility), Case 12,117, Santos Soto Ramírez et al., Mexico, June 14, 2001, par. 14; and Report No. 83/01 (Admissibility), Case 11,581, Zulema Tarazona Arriate et al., Peru, October 10, 2001, par. 24.
 ‘The Inter-American Court has held the following in this regard: "The State claiming non-exhaustion has an obligation to prove that domestic remedies remain to be exhausted and that they are effective.” Velásques Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987, par. 88.