Elba Clotilde Perrone y Juan Jose Preckel v. Argentina, Case 11.738, Report Nº 67/98, OEA/Ser.L/V/II.106 Doc. 3 rev. at 140 (1999).
ELBA CLOTILDE PERRONE and JUAN JOSE PRECKEL
May 4, 1999
On December 23, 1996, and January 13, 1997, the Permanent Assembly
for Human Rights (Asamblea Permanente
por los Derechos Humanos; hereinafter “the petitioner”) submitted a petition
to the Inter-American Commission on Human Rights (hereinafter “the Commission”
or “the Inter-American Commission”) alleging that during the period of time
that Elba Clotilde Perrone and Juan José Preckel were illegally detained and
exiled under orders from the de facto
government that held power between 1976 and 1983, they failed to receive their
earnings from the General Tax Directorate. The claims and suits they presented
in order to obtain payment were arbitrarily rejected by the Argentine authorities.
The petitioner claimed that by doing so, the Argentine Republic violated
the right to a fair trial (Article 8), to property (Article 21), and to equality
before the law (Article 24), together with the obligation of respecting the
rights and of adopting domestic legal provisions (Articles 1 and 2) contained
in the American Convention on Human Rights (hereinafter “the Convention” or
“the American Convention”), together with the rights to work and fair remuneration
(Article XIV), to the recognition of juridical personality and civil rights
(Article XVII), to a fair trial (Article XVIII), and to property (Article
XXIII) enshrined in the American Declaration of the Rights and Duties of Man
(hereinafter “the Declaration” or “the American Declaration”), with respect
to Ms. Perrone and Mr. Preckel.
In examining this case, the Commission concluded that it has competence
in the matter and that in accordance with Articles 46 and 47 of the American
Convention, the petitioner’s allegations regarding Articles 8, 21, and 3 of
the Convention, which protect the same rights as Articles XVII, XVIII, and
XXIII of the Declaration, are admissible. With respect to the aforesaid violations,
the Commission will refer solely to the provisions of the Convention and not
to those of the Declaration; this is because once the American Convention
came into force for the Argentine State, it–and not the Declaration–became
the Commission’s main source of applicable law, provided that petitions refer
to alleged violations of rights that were substantially identical in both
instruments and do not describe a situation of continuous violation. In addition,
the Commission ruled that the petitioner’s allegations regarding Articles
24 and 25 of the Convention were also admissible.
The right to work and fair remuneration (Article XIV) is set forth
in the Declaration but not in the Convention; however, the Commission believes
that this circumstance does not preclude its competence in the matter since,
under Article 29(d) of the Convention, “no provision of this Convention shall
be interpreted as [. . .] excluding or limiting the effect that
the American Declaration of the Rights and Duties of Man and other international
acts of the same nature may have.” Hence,
the Commission ruled that the petitioner’s accusations regarding the alleged
violation of this provision enshrined in the Declaration were also admissible.
PROCESSING BY THE COMMISSION
On December 9 and 13, 1996, respectively, the Commission received complaints
alleging that the rights of Ms. Perrone and Mr. Preckel had been violated;
since they dealt with similar matters, the two files were accumulated, and
they were sent to the State on April 23, 1997.
On July 25 and September 4, 1997, the State requested two successive
extensions, which were granted on July 31 and September 15, 1997, respectively.
On October 31, 1997, the State submitted its comments; these were sent
to the petitioner on November 6, 1997.
The petitioner replied on January 6, 1998, and this response was transmitted
to the State on February 10, 1998.
On February 26, 1998, during its 98th regular session, the Commission
held a hearing for the parties to examine the admissibility of the case. The
petitioner’s note arising from that meeting was sent to the State on March
6, 1998. On March 10, 1998, the Commission wrote to the parties, making itself
available in order to reach a friendly settlement. On March 13, 1998, the
State submitted its comments and, on April 13, 1998, it requested additional
time before it could present its decision on the Commission’s proposal for
friendly settlement negotiations. This extension was granted on May 26. On
June 17, 1998, the petitioner submitted its comments, which were forwarded
to the State on July 14, 1998, together with an additional copy of the May
26 note. On July 22, 1998, the State submitted its comments and, on July 24,
1998, it repeated the position it had held in previous communications, maintaining
that this case was inadmissible and declining the friendly settlement procedure.
The State sent its comments on August 20, 1998; they were forwarded
to the petitioner on August 27, 1998, replied to by the petitioner on October
27, 1998, and resent to the State on November 19, 1998. The State submitted
its comments on January 19, 1999. On March 1, 1999, the Commission granted
the parties a hearing at its 102nd regular session.
POSITIONS OF THE PARTIES
The petitioner’s position
For the purposes of this report, the aim of which is to examine the
petition’s admissibility, the petitioner’s allegations can be summarized as
The Permanent Assembly for Human Rights (the petitioner) stated
that Elba Clotilde Perrone and Juan José Preckel worked at the General Tax
Directorate, at that time an agency of the Treasury Secretariat, attached
to the executive branch’s Ministry of the Economy, until they were illegally
arrested in the city of Mar del Plata, Buenos Aires province, on July 6, 1976.
In 1977 they were placed in the custody of the national executive without
having faced trial and after suffering torture and other degrading treatment.
During this period, which was characterized by a breakdown in the national
legal system brought on by the de
facto government that was in power,
Ms. Perrone and Mr. Preckel
were secretly kept under arrest at different military facilities.
10. In Ms. Perrone’s case, this situation
lasted until October 16, 1982–six years, three months, and ten days. She was
then released, albeit under surveillance, and on July 25, 1983, she was unconditionally
released from the national executive’s custody.
Through negotiations conducted by the German embassy and Amnesty International,
Mr. Preckel obtained a passport that enabled him to leave the country, which
he did on September 7, 1979. His
exile lasted until December 1984, when he returned to Argentina through the
efforts of the aforesaid institutions and the Intergovernmental Committee
for European Migrations. While
they were in the illegal situation that kept them from working, they were
absent from their jobs; consequently, the administrative proceedings described
in Article 36 of Decree 1798/80 were initiated.
These proceedings were ultimately closed on October 6, 1983, with the
restoration of the democratic regime, after it had been decided that they
were not guilty of the charges. The
distress the complainants suffered as a result of all these circumstances,
which is not covered by their claims, was redressed under the terms of Law
After they had returned to their jobs, Ms. Perrone filed an administrative
claim in April 1983, demanding her right to receive earnings for the aforesaid
period; Mr. Preckel joined the suit in July 1985.
The Technical and Legal Affairs Directorate of the General Tax Directorate
and the General Directorate of Legal Affairs of the Ministry of the Economy
declared these claims admissible. The Office of the National Treasury Attorney
ruled that they be thrown out: this was because, although they might have
been admissible under the text of Collective Labor Agreement Nº 46/75 and
the statute approved by Decree Law 6666/57 since there was no specific provision
indicating the contrary, Circular Nº 5 of 1977 from the General Secretary
of the President’s Office restricted payment to situations in which it was
authorized by such a specific provision.
This opinion formed the basis for the decision of the Minister of the
Economy, who dismissed the claims in Resolution Nº 75 of March 19, 1987 (Ms.
Perrone), and Resolution Nº 1217 of December 17, 1987 (Mr. Preckel); these
resolutions concluded the administrative proceedings. In the petitioner’s
opinion, under the above-mentioned circular, “payment of indemnification based
on the updated earnings that the agent should have received” could have been
considered admissible, in light of the peculiar nature of this situation and
because no negligence or blame could be attached to the agents.
The victims filed suit with the courts in June 1988. Ms. Perrone’s
suit sought payment of the earnings not received between July 6, 1976, and
October 19, 1982, of the days off that she accrued but which she neither enjoyed
nor had credited to her, and recognition of her seniority for reasons related
to social security and other purposes.
Mr. Preckel claimed payment of earnings not received between July 6,
1976, and February 4, 1985, his share in the Incentive Fund, the days off
that he accrued but which he neither enjoyed nor had credited to him, and
recognition of his seniority for reasons related to social security and other
purposes. The suits were based
on Article 14.c of Decree 3413 of 1979, which justified the payment of earnings
when agents of the General Tax Directorate were absent from work on account
of weather conditions and proven instances of force
The petitioner holds that the judge introduced a completely spurious
issue into the case and did not give a ruling on the factual and legal issues
put forward in the claim. The
petitioner claimed that in both cases, the first-instance judge stated that
a suit against the State for the damages arising from the illegal arrests,
prolonged detention, and forced exile suffered by the victims might have prospered;
however, the judge also noted that he could not resolve that action, since
that would have implied an undue application of the principle of jura
novit curia [the court knows the laws].
He went on to say that the events that led to their absence from work were
eminently political in nature, and so therefore the General Tax Directorate
could not be held responsible for them.
Appeals against this decision made by Preckel and Perrone had two different
outcomes. In Mr. Preckel’s case, the appeals chamber upheld the first-instance
judgment because “payment of wages for services not rendered is inadmissible”
and because the rules quoted by the claimants were applicable to leaves of
absences and reasons other than those involved in the case. It also concluded that it was not incumbent upon the General
Tax Directorate, an autonomous state body, to bear the burden of redressing
the harm caused by any possible illegal actions by the executive branch.
In the proceedings initiated by Ms. Perrone, the appeals chamber overturned
the first-instance judgement and admitted the substance of the claim.
Mr. Preckel filed an extraordinary appeal against these decisions and,
in Ms. Perrone’s case, so did her opponent.
The petitioner notes that the Supreme Court of Justice of the Nation,
in a ruling dated May 21, 1995, and without analyzing the claims, threw out
Mr. Preckel’s appeal and ruled that the remedy filed by the counterpart in
Ms. Perrone’s case was admissible.
The petitioner reports that Ms. Perrone and Mr. Preckel have been indemnified,
on an equal and general basis, in accordance with Law 24.043.
They maintain that this represents only partial indemnification, in
that it covers only the violations of the rights of personal freedom, life,
and humane treatment, without making any distinction regarding particular
circumstances (education, occupation, etc.), and excludes indemnification
for the employment relationship existing with the General Tax Directorate.
To obtain the indemnification payment, Ms. Perrone previously withdrew
the suit for damages she had begun against the state, which did not cover
the lost earnings from her employment. However, she never withdrew the administrative
actions, which are the substance of this petition before the Commission. As for Mr. Preckel, he never filed suit for damages but did
collect the indemnification in accordance with the law.
The petitioner alleges that by illegally arresting them and encouraging
their exile, the State prevented the victims from providing the services for
which they were contracted. It
also introduced “legislation” preventing them from receiving the earnings
they would have been entitled to during the time when the illegal situation
kept them from working. The petitioner
also claims that the right of equality before the law was breached in that
those agents of the public administration who continued to work, and those
who did not on account of force majeure,
continued to receive their salaries.
Being a “detainee” must be considered an instance of force majeure and, consequently, must be covered by the terms of Article
14.c of Decree 3413 of 1979.
The petitioner believes that the right to private property was violated,
which is closely related to the guarantee of equality before the law and the
right of fair remuneration for work.
In this regard, it holds that the right of property covers all the
credits, expectations, and assets in general that in any way make up a person’s
patrimony. In particular, wages and the corresponding right to receive them
are, on account of both their nature and their purpose, an expression of the
right of property and, that being so, the State is obliged to protect them.
The petitioner also claims that the right to a justice and fair trial
was violated in that, first, the judge did not rule on the legal and factual
allegations put forward in the suit and, second, he introduced a completely
spurious issue into the case, saying that the events that led to their absence
from work were eminently political in nature and the result of actions by
the executive branch and that therefore the General Tax Directorate could
not be held responsible for them. With this, the judge introduced a defense
that had not been used by the defendant at trial; this was therefore an arbitrary
action in that the affected party was unable to discuss its admissibility,
thus undermining the right of defense as guaranteed by the Constitution.
The State’s position
The State maintains that this claim is based on the payment obligations
of the General Tax Directorate as the employer and that the administrative
proceedings initiated, pursuant to Article 39 of Decree 1798/80, ruled that
earnings are not to be paid when the suspension arises from actions unrelated
to work, except for the time following release and prior to a return to work
being authorized. Consequently, judicial decisions under that jurisdiction,
in accordance with current law and jurisprudence, have maintained that “no
payment shall apply when no corresponding service has been rendered.” In addition,
the State maintains that Ms. Perrone and Mr. Preckel are entitled to request,
without application of any statute of limitations, recognition of their periods
of inactivity for the purposes of their retirement alone, even though they
shall not be paid their salaries because no corresponding services were rendered.
As regards the exhaustion of domestic remedies, the State notes that
Mr. Preckel and Ms. Perrone began and concluded a domestic claim, through
contentious-administrative channels, against the State as employer, but that
they have not exhausted domestic remedies in the sense of Article 46(1).a
of the Convention because those remedies were not appropriate. The suit they
filed in June 1988 should have addressed the State’s noncontractual liability
for damages arising from their arrest and subsequent removal from their jobs
and, in such a case, could have covered the claims set forth herein. If such
was the intent, the State holds, then the course chosen was not the correct
one. The State claims that the job-related legal action was initiated in June
1988, before Law 24.043 established the State’s compensation policy, under
which both of them received redress that excluded all other indemnification.
Moreover, when they went before the courts in 1988, they were uncertain about
the existence of an administrative channel for redress, since the corresponding
procedure began with Decree 70/91, which was published in the Official Bulletin
on January 16, 1991.
The State maintains that the suits they filed were clearly grounded
on their relationship of dependence with an autonomous body, and that those
suits could not be considered actions for damages by virtue of a generous
application of the principle of jura
novit curia [the court knows the laws]
because that would have implied ignoring the letter thereof. The State
concludes that the object of the suit and the identification of the responsible
area of government–the General Tax Directorate–do not allow the object of
the suit in question to be turned into a damages suit.
The State notes that the General Tax Directorate is completely unconnected
to the causes behind the arrests, which were ordered by the Interior Ministry;
consequently, there is no legal possibility of it assuming responsibility
for decisions adopted by another agency. As regards the processing of the
domestic legal action, there are rules that clearly indicate what bodies are
responsible for representing the State at trial in different situations. Hence,
remedies for reaching a judicial ruling on the question of their earnings
did exist, but they were neither invoked nor exhausted.
The State believes that the indemnification granted has satisfied the
claims of Ms. Perrone and Mr. Preckel, in obtaining the benefit set forth
in Law 24.043 for individuals who, during the state of siege, were placed
in the national executive’s custody, regardless of whether or not they began
proceedings for damages, and provided that they had received no indemnification
under a judicial ruling in connection with the actions covered by said law.
Article 9 of Law 24.043 stipulates that “payment of the benefit implies
relinquishment of all right to indemnification for damages arising from deprivation
of freedom, arrest, being kept under executive custody, death, or physical
injury and shall exclude all other benefits or indemnifications for the same
cause.” It cannot be argued that
this was a special situation, since all the individuals who have received
indemnification were prevented from working or practicing their trade, industry,
or profession and, consequently, from receiving payment by the same cause:
their arrest. The State’s reparations
policy for the causes addressed herein can be found in the friendly settlement
reached in case Nº 10.288 and other cases in the Commission’s archive and
is reflected in Decree Nº 70/91; Law 24.043 subsequently extended the scope
of the beneficiaries. In report Nº 1/93 the Commission expressed its recognition
of the Argentine State’s having made compensation payments that were accepted
by the petitioners and based on respect for human rights.
The State understands that the Commission considers that the benefits
granted by Law 24.043 constitute redress in the sense used in the inter-American
human rights system and are a substitute for damages. Consequently, all claims
related to the facts that make up the juridical substance of the provision
are subsumed by receipt of that benefit, which comprises in
totum [totally] the payment of all amounts that could arise therefrom.
Since Perrone and Preckel invoked the provisions of the State’s reparations
policy, the State has covered the responsibility due to it for the petitioners’
arrest, and therefore this petition does not deal with facts that represent
a violation of protected rights.
ANALYSIS OF ADMISSIBILITY
27. The Commission’s rulings on the
admissibility of the cases brought before it are intended not only to invest
its decisions with juridical certainty and clarity, but also to focus the
parties’ attention on the key issues those cases entail.
The Commission’s competence ratione
personae, ratione temporis, and ratione
The Commission has active and passive ratione
personae competence (i.e.,
competence vis-à-vis the persons involved) to
hear this case in that, first, the petitioner alleges that a state party thereto--specifically,
provisions of the Convention and the Declaration, affecting Ms. Perrone and
Mr. Preckel, the presumed victims of said violations.
Secondly, as regards ratione temporis competence (i.e.,
in terms of when the incidents occurred), the Commission notes that the petitioner
expressly excludes from the substance of the petition the deprivation of freedom
and the cruel and inhuman treatments that began during the 1970s, since they
were covered by the benefits that the
alleged victims received under Law 24.043.
Neither does the petition cover the General Tax Directorate’s 1983 decision
that ruled that Perrone and Preckel were not liable in the administrative
However, the petitioner’s complaint does cover the decisions by the
Ministry of the Economy that rejected the claims made by the two in 1987.
In addition, the petitioner notes that the complaint before the Commission
also covers the subsequent judicial rulings of the first-instance court and
the national contentious-administrative appeals chamber. The Commission notes
that the aforesaid decisions were handed down after the Convention had come
into force for Argentina and, consequently, they will be examined as alleged
violations of the Convention.
Thirdly, as regards ratione materiae competence (i.e.,
vis-à-vis the substantive issues of the case), the petition alleges violations
of the right to a fair trial (Article
8 of the Convention), to property (Article 21), and to equality before the
law (Article 24), as well as of the obligation of respecting those rights
and of adopting domestic legal provisions (Articles 1 and 2).
Similarly, the petitioner claims there were violations of the right
to work and fair remuneration (Article XIV), to the recognition of juridical
personality and civil rights (Article XVII), to a fair trial (Article XVIII),
and to property (Article XXIII) as set forth in the Declaration. In this regard,
the Commission holds that after the Convention had come into force for the
Argentine State, it–and not the Declaration–became the Commission’s primary
source of applicable law,
provided that petitions refer to alleged violations of rights that are substantially
identical in both instruments
and do not describe a situation of continuous violation.
32. In the case at hand, although there
is no situation of continuous violation, there is a similarity of substance
between the provisions of the Declaration and those of the Convention invoked
by the petitioner. Thus, the
rights to a fair trial (Article XVIII), to property (Article XXIII), and to
the recognition of juridical personality and civil rights (Article XVII) enshrined
in the Declaration are subsumed by the provisions that establish the rights
protected by Articles 8, 21, and 3 of the Convention.
Hence, in connection with those violations of the Declaration, the
Commission will refer solely to the provisions of the Convention.
33. However, the right to work and
fair remuneration (Article XIV) enshrined in the Declaration is not protected
by the Convention. The Commission
believes that this situation does not preclude its ratione
materiae competence since, under
Article (29)(d) of the Convention, “no provision of this Convention shall
be interpreted as [. . .] excluding or limiting the effect that
the American Declaration of the Rights and Duties of Man and other international
acts of the same nature may have.” Consequently, the Commission will examine
this violation of the Declaration.
B. Additional requirements for
the admissibility of the petition
Exhaustion of domestic remedies
The Commission repeats that the rule covering the filing and exhaustion
of domestic remedies set forth in Article 46(1).a of the Convention requires
that individuals who wish to lodge a complaint or petition with the Commission
against a State must previously make use of the remedies offered by that country’s
legal system. The principle of
subsidiarity in the protection offered by the Convention requires that the
substance of all petitions first be heard by domestic agencies. In the case
at hand, neither the State nor the petitioner question the fact that Ms. Perrone
and Mr. Preckel invoked and exhausted the administrative channels–both internally
to the administration and under contentious-administrative jurisdiction–which
culminated, after the available remedies had been exhausted, with the ruling
handed down by the Supreme Court of Justice of the Nation.
However, the State claims that this remedy was not appropriate; it
therefore holds that Ms. Perrone and Mr. Preckel neither filed nor exhausted
the available domestic remedies, in contravention of the terms of Article
46(1)(a) of the Convention. The Commission notes that Article
46(1)(a) mentions “generally recognized principles of international
law,” which do not only refer to the formal existence of such remedies, but
also to their being applicable and effective. As the Inter-American Court
has stated: “adequate domestic remedies are those which are suitable to address
an infringement of a legal right. A number of remedies exist in the legal
system of every country, but not all are applicable in every circumstance.”
The Commission believes that in this case it is incumbent upon the State to
prove what remedies are available. In this regard, the Inter-American Court
of Human Rights has ruled that “the State claiming non-exhaustion has an obligation
to prove that domestic remedies remain to be exhausted and that they are effective.”
36. With regard to the channels that
Ms. Perrone and Mr. Preckel should have used, the State noted that they could
have filed suit against the State for damages arising from their separation
from their jobs, including the claims contained herein.
If their intent was to obtain redress for damages, then the channel
they chose--that of contentious-administrative
proceedings--was incorrect. Moreover,
when they went before the courts in 1988, they were uncertain about the existence of an administrative channel for redress,
since the corresponding procedure began with Decree 70/91, which was published
in the Official Bulletin on January 16, 1991.
However, the State concludes that the object of the suit and the identification
of the responsible area of government--the General Tax Directorate--do not
allow the object of the suit in question to be turned into a damages suit.
The Commission notes that the petitioner’s allegations essentially
address the judicial authorities’ refusal to admit its claim based on the
payment obligations incumbent on the General Tax Directorate as the employer.
Contentious-administrative proceedings, as used by the alleged victims
in their attempt to secure payment of their job earnings, differ from civil
actions for damages. The petitioner stated in the case file that the issue is not
the responsibility of the State through its illegal actions of arrest and
torture, but rather that of the employer, an autonomous State agency that
ordered them to be suspended from work and did not pay their wages during
the period of their arrest Under
these circumstances, the Commission believes that Ms. Perrone and Mr. Preckel
have invoked and exhausted the appropriate remedies available in the Argentine
legal system for resolving their situation. Consequently, the Commission holds
that domestic remedies have been exhausted in accordance with Article 46(1)(b)
of the Convention.
In this case, the ruling of the Supreme Court of Justice rejecting
the appeal filed against the dismissal of the extraordinary remedy was handed
down on June 11, 1996, in the proceedings dealing with Ms. Perrone and Mr.
Preckel. The petitions were filed with the Commission on December 9, 1996,
(Ms. Perrone) and December 13, 1996 (Mr. Preckel).
The Commission holds that Ms. Perrone’s petition was submitted within
the prescribed six-month period. Mr. Preckel’s petition, however, was one
day late. The State made no claim regarding failure to comply with this requirement.
Since the petitions were combined and since the State made no objection the
Commission holds that the filing period requirement set forth in Article 46(1)(b)
of the Convention has been met.
Duplication of proceedings and res
Article 46(1)(c) stipulates that to be admissible, a petition must
not cover a question pending in any other international proceeding (nonduplication)
and Article 47(d) requires that the petition not be substantially the same
as one previously studied by the Commission or by another international organization
(res judicata). In the case at hand,
the parties have neither claimed nor proved the existence of either of these
circumstances. Consequently, the Commission holds that these requirements
have been met.
Nature of the allegations
Regarding the requirements of substance for a petition to be declared
admissible, Article 47(b) states that inadmissibility will be declared when
the allegations do not constitute a violation of rights guaranteed by the
Convention. The Commission holds that if they are true, the petitioner’s allegations
do tend to establish violations of the human rights protected by Articles
3, 8, 21, 24, and 25 of the American Convention, together with the right of
work and fair remuneration (Article XIV) enshrined in the American Declaration.
41. The Commission concludes that it is competent to hear this case and that the petition is admissible pursuant to Articles 46 and 47 of the American Convention.
42. Based on the factual and legal considerations outlined above, and without prejudice to the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible.
To notify the parties of this decision.
To proceed with the analysis of the merits of the case.
4. To make itself available
to the parties in order to reach a friendly settlement based on respect for
the rights enshrined in the American Convention, and to invite the parties
to make a statement regarding said possibility.
To publish this decision
and to include it in its 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., on the Fourth day of May, 1999. (Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First Vice Chairman; Claudio Grossman, Second Vice Chairman; and Commissioners Carlos Ayala Corao, Alvaro Tirado Mejía, and Jean Joseph Exumé.
See, inter alia, Inter-American Commission on Human Rights, Annual Report
1998, Report Nº 49/97, Case 11.520, Tomás Porfirio Rondín et
al., “Aguas Blancas” (Mexico), OEA/Ser/L/V/II.98, February 18, 1998,
paragraph 50, p. 8.
its instrument ratifying the Convention at the General Secretariat of
the Organization of American States on September 5, 1984.
As the Inter-American Court of Human Rights has stated: “For the States
Parties to the Convention, the specific source of their obligations with
respect to the protection of human rights is, in principle, the Convention
itself.” Advisory Opinion OC-10/89 (Interpretation of the American Declaration
of the Rights and Duties of Man Within the Framework of Article 64 of
the American Convention on Human Rights), July 14, 1989, paragraph 46.
As the Inter-American Court has stated: “These States cannot escape the
obligations they have as members of the OAS under the Declaration, notwithstanding
the fact that the Convention is the governing instrument for the States
Parties thereto.” Advisory Opinion OC-10/89, July 14, 1989, paragraph
The Commission has established that it is competent to examine violations
of the Declaration and of the Convention provided that they involve a
situation of continuous violation of the rights protected in those instruments;
for example, a denial of justice beginning before the State in question
ratified the Convention and persisting after said State has expressed
its consent and the Treaty has come into force for it. See, for example,
Res. 26/88, Case 10.109 Argentina, IACHR Annual Report 1987-1988.
Velásquez Rodríguez Case, Preliminary Objections, Judgment of July 29,
1988, paragraphs 64.
Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26,