Luis Maria Gotelli (h) v. Argentina, Case 11.709, Report 68/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 112 (1999).
On December 13, 1996, Mr. Luis María Gotelli, Jr. (hereinafter
“the petitioner”) submitted a petition to the Inter-American Commission
on Human Rights (hereinafter “the Commission” or “the Inter-American
Commission”) against the Argentine Republic (hereinafter “the
State,” “the Argentine State,” or “Argentina”), alleging that
it violated rights set forth in the American Convention on Human
Rights (hereinafter “the Convention” or “the American Convention”)
with respect to both himself and his family.
The petitioner alleges that during proceedings in the case
“Complaint by Tulio Franzosi regarding irregularities at Banco
de Italia y Río de La Plata,” brought against him and his
family before National First-Instance Federal Criminal and Correctional
Court Nº 2, their right to a fair trial (Article 8(1)) was violated
by the fact that the trial had lasted longer than 12 years and
was still going on. He
also claims that this delay negatively affected the rights of
presumption of innocence (Article 8(2)), defense (Article 8(2)(d)),
the nonextension of punishments to other persons (Article 5(3)),
the family (Article 17), the aim of imprisonment being reform
and social adaptation (Article 5(6), respect for honor and recognition
of dignity (Article 11(1), equality before the law (Article 24),
and simple and prompt recourse (Article 25(1) enshrined in the
Following the Commission’s offer to make itself available
to the parties in order to reach a friendly settlement in this
case, on the day of the hearing granted by the Commission during
its 97th regular session, October 6, 1997, the parties signed
an agreement which was filed with the Commission’s secretariat
that same day. In this agreement, the State recognized that in
the petitioner’s case and within the aforesaid context, “the right
to be tried within a reasonable period (Article 8(1) of the Convention)
was violated” and it promised to disassociate him from the criminal
proceedings. Subsequently, on September 15, 1998, in light of
the State’s noncompliance, the petitioner asked the Commission
to continue with the steps set forth in its Regulations and issue
a report under Article 50 of the Convention.
The Commission decided to first analyze the admissibility
of the case prior to issuing a report under Article 50 of the
Convention. It thus concluded that it was competent to examine the matter
and that the petitioner’s allegations regarding the violation
of the right to due process caused by the delay in the criminal
investigation (Article 8(1), of the right to the presumption of
innocence (Article 8(2), and of the right of defense (Article
8(2)(d) were admissible under the terms of Articles 46 and 47
of the Convention.
However, the Commission ruled that under Article 47(b)
of the Convention, the claims alleging violations of the right
to humane treatment (Article 5(3), of the right of imprisonment
being aimed at reform and social adaptation (Article 5(6)), and
of the rights of the family (Article 17) were inadmissible.
The Commission also ruled that the petitioner’s allegations
regarding violations of the right of honor (Article 11(1)), of
equality before the law (Article 24), and to effective recourse
(Article 25(1) were inadmissible under Article 47(c) of the Convention.
II. PROCESSING BY THE COMMISSION
On December 17, 1996, the Commission opened this case,
sent the relevant parts of the complaint to the State, and asked
it to supply information.
After the Commission had granted several extensions, the
State submitted its comments on June 17, 1997; these were sent
to the petitioner on June 26, who was given a period of 30 days
to formulate his reply.
On July 24, 1997, the petitioner submitted his comments
on the State’s reply.
On July 29, 1997, the Commission sent the petitioner’s
reply to the State and granted it a 30-day period for submitting
its comments. In
the same note, the Commission made itself available to the parties
with a view to reaching a friendly settlement under Article 48(1)(f)
of the Convention and Articles 45(1) and 45(2) of its Regulations
in light of the nature of this case and within a framework of
full respect toward the objective and purpose of the Convention.
On September 2, 1997, the State accepted the friendly settlement
procedure and reserved the right to “consider and improve the
legal arguments” already set forth in the initial document at
a later date, specifically during the friendly settlement procedure.
On September 15, 1997, this communication was transmitted
to the petitioner.
At a hearing held on October 6, 1997, during the Commission’s
97th regular session, the representatives of the petitioner and
the State reported that their talks had led to an agreement, which
was set down in writing that same day.
This agreement’s recitals show that the State’s reply of
June 17, 1997 recognized that “in
the petitioner’s case and within the aforesaid context, the right
to be tried within a reasonable period (Article 8(1) of the Convention)
was violated.” In
the agreement the parties stipulated that “the Government will
take every step toward definitively disassociating the petitioner
from the aforesaid proceedings within the briefest possible time,”
and that a report on compliance with this was to be given to the
Commission within a maximum of 75 days.
On December 26, 1997, the State told the Commission that
further to the parties’ agreement, Mr. Gotelli’s lawyers submitted
a document requesting that the statute of limitations be applied
to the proceedings against him.
The basis for that request was a ruling handed down by
the National Federal Criminal and Correctional Appeals Chamber
in the Federal Capital in a similar case, which was at that time
pending a decision from the office of the national attorney general.
However, on September 15, 1998, the petitioner told the
Commission that, “given the Argentine Government’s obvious noncompliance
with the commitment to reach a friendly settlement made before
this honorable Commission after recognizing the justice of the
claim, I am forced to request that this negotiating procedure
be terminated.” He also asked the Commission to continue “with
the relevant procedure under Article 50 of the Convention.”
This communication was transmitted to the State on September
28, 1998, with a 60-day period for it to submit its comments.
On December 2, 1998, the State requested an extension to
the period allotted for its reply; consequently, a 45-day extension
was granted on December 14, 1998.
On January 29, 1999, the State reported that it was taking
the appropriate steps, which had been delayed on account of the
summer recess. A
request by the State for an additional extension on March 5, 1999,
was granted on March 8, 1999, for a period of 30 days.
On April 13, 1999, the State again requested an extension
and was awarded a further 30 days.
POSITIONS OF THE PARTIES
The petitioner’s position
The petitioner stated that on May 24, 1985, Mr. Tulio Franzosi
filed a complaint with National First-Instance Investigating Criminal
Court Nº 20, accusing the petitioner’s family of several crimes
proscribed by Articles 173.7, 300, and 301 of the Criminal Code
(hereinafter referred to by its Spanish abbreviation “CP”), because
they held senior posts at the Banco de Italia y Río de la Plata (hereinafter “the BIRP”), and against
senior managers, shareholders, and guarantors of corporations
that received loans from that bank, including the petitioner.
The issue brought before the court was the alleged asset
stripping or bankruptcy suffered by the BIRP as a result of the
policy adopted by its senior management in granting those companies
enormous loans, in both pesos and dollars, which had never been
repaid to the bank. The
BIRP was liquidated by the Central Bank of the Argentine Republic
(hereinafter “the BCRA”).
The petitioner explained the different judicial rulings
and decisions handed down since the start of the proceedings.
With regard to the decision on admissibility, the most
salient of these were the following: on August 23, 1985, the court
ordered the start of investigatory proceedings, with the BCRA
acting as complainant; on September 29, 1985, National First-Instance
Federal Criminal and
Correctional Court Nº 2 was given exclusive
competence over the matter; on March 12, 1986, that court ordered
the petitioner and other persons to be brought to trial and, on
February 23, 1987, it ordered an expert accounting audit to be
On April 8, 1987, the office of the national attorney general
assigned an assistant prosecutor to the proceedings and, on June
16, 1987, the case prosecutors asked the accused to provide the
investigation with statements. On September 22, 1987, the court
ordered the expert accountants to begin the audit it had requested
and, on November 12, 1987, the petitioner gave his statement.
On March 31, 1989, the expert accountants told the court
that there had been delays and complications in conducting the
audit and, on March 17, 1989, the court instructed the BCRA liquidator
in charge of the BIRP to provide the expert accountants with the
documents needed to finish the audit.
On May 9, 1989, the court ordered the preventive arrest
of several individuals, including the petitioner, against which
their attorneys filed dismissal motions and appeals.
On June 30, 1989, the National Federal Criminal and Correctional
Appeals Chamber summoned the parties to state their case, which
took place at a hearing on September 12, 1989.
On September 28, 1989, the chamber ordered the court to
send it the main trial documents and, on October 12, 1989, it
sent the documents to the prosecutor for him to offer an opinion
on the remedies filed. On
November 6, 1989, before the appeals chamber, the petitioner accused
the first-instance and appeal prosecutors of obstructing the expert
audit in contravention of the Code of Criminal Procedure (hereinafter
On December 12, 1989, the petitioner filed an objection
with the chamber for having granted four consecutive extensions
to the (expired) deadline imposed on the prosecutor for ruling
on the preventive arrests. On December 14, 1989, the chamber granted a further extension
to the prosecutor, who submitted his report on December 15, 1989.
On March 26, 1991, in addition to upholding the preventive
custody ordered by the court and dismissing its cancellation,
the chamber modified the number of charges.
On May 23, 1991, the court received the case and, on June
11, 1991, requested the evidence ordered by the chamber, including
a fresh expert audit. On
July 23, 1991, the court declared the petitioner in contempt and
ordered his arrest; this was overturned on October 11, 1991, after
the chamber admitted the extraordinary remedy filed by the petitioner
against the decision to revoke the exemption from custody.
On February 17, 1992, the court recorded the conclusion
of the second expert audit. On October 23, 1992, it sought the
opinions of the complainants and the prosecutor regarding the
points on which a dismissal should be given and where charges
should be filed. On
November 12, 1992, the BCRA objected to the closure of the investigatory
proceedings and asked for elaboration of the statements given
by the accused, including the petitioner, in light of a new hypothesis.
On November 16, 1992, the court sent the prosecutor the
documents dealing with the extraordinary remedy filed by the petitioner
on October 11, 1991. On
April 20, 1993, the prosecutor gave an opinion in which he stated
that the phase of the investigatory proceedings into the allegations
against the petitioner should be closed and that the other allegations
made against other defendants should be dismissed.
This opinion was sent to the court on April 23, 1993.
On July 22, 1993, the chamber asked the case to be referred
to it to resolve a motion for the release from prison of one of
the accused and the self-disqualification request by the judge
in charge of Court Nº 2.
On September 28, 1993, the chamber accepted the judge’s
disqualification and gave instructions that proceedings with the
case would continue in Court Nº 1, which received the case on
October 18, 1993. The prosecutors reported to this court on November 22, 1993.
On March 16, 1994, the court summoned the complainants and the
prosecutor to give their opinions on a series of issues. On April
4, 1994, the BCRA expressed its opposition to the dismissals and
asked for an elaboration of the statements given by the accused,
including the petitioner. On April 21, 1994, the prosecutor repeated his opinion regarding
On April 28, 1994, the prosecutors asked for new evidence
and the complainants demanded that progress be made with the proceedings.
On May 3, 1994, the prosecutors presented and requested
evidence and, on May 18, the court dismissed the case against
several individuals. On
May 26, 1994, the prosecutor asked for a detailed, itemized list
of the illicit loans that were allegedly extended.
On May 30, 1994, the court sought the complainants’ opinion
regarding the legal situation of one of the accused; the prosecutor’s
reply was submitted on September 2, 1994.
On September 14, 1994, the complainants asked for greater
progress to be made with the case. On September 26, 1994, the court took a series of steps under
which, on September 28, the case was sent to the prosecutor.
On April 7, 1995, the prosecutor filed charges against
the petitioner and, on that same date, the chamber asked the court
to refer the proceedings to it in order for it to rule on the
appeals filed against the dismissals that had been handed down;
this took place on April 12.
On May 15, 1995, the court sent the BCRA all the case documents.
On May 26, 1995, the chamber resolved to uphold the dismissals
and to refer the case to the court on May 31.
Between June 7, 1995, and June 15, 1996, the court summoned
the complainants for them to formulate their accusations.
On June 28, the court notified the petitioner of the accusations
that had been made.
Regarding admissibility, the petitioner stated that he
had not submitted this case to any other international body and
that it was not pending any such settlement.
The delays in the proceedings free him from complying with
the requirement of exhausting domestic remedies, as set forth
in Article 46(2), and the absence of a decision renders the deadline
stipulated in Article 46(1)(b) of the Convention inapplicable. With regard to the alleged violations, the petitioner stated
Right to a hearing within a reasonable time
The petitioner noted that the central issue in his complaint
is the violation of the right to a hearing within a reasonable
period of time as set forth in Article 8(1) of the Convention.
He claims that the competent authorities have not been
diligent in this regard in light of the following:
The trial has been ongoing for eleven and a half years,
and there is no clear indication of when a final sentence could
be expected. Between
the start of the trial and the petitioner being summoned to give
a statement for the investigation, ten months went by.
Between the summons being issued and the actual rendering
of the statement, one year, seven months, and twenty-nine days
passed, which led the prosecutors to file a formal protest.
Substantiating the expert audit took three years, ten months,
and five days, due to the lack of cooperation from the official
expert accountants, whose efforts were hindered by the prosecutors
of the first-instance court and the appeals chamber.
As a result of this, the petitioner filed a formal protest,
which did not prosper.
Three years, eleven months, and fifteen days went by between
the start of proceedings and the preventive arrest order.
While the appeal against the preventive arrests was being
processed, the chamber’s prosecutor was granted five consecutive
extensions, in violation of the terms of the law. From the filing
of the appeal against the arrests to the ruling upholding the
cautionary measure, one year, three months, and eleven days went
by. In addition,
the case was held without any progress being made, at the decision
of the chamber itself, for a period of one year, nine months,
and thirteen days. On
June 24, 1987--one
year and eleven months after the legal deadline--a motion was
filed as provided for by Article 206 of the CPMP, which governs
compliance with the timeframes allotted for investigatory
that motion, the prosecutors referred to the total lack of diligence
on the part of the investigating judge.
With regard to the delay in receiving the investigatory
statements, the prosecutors’ document presented on July 1, 1987,
states that the “failure to carry out this measure affronts [. . .]
both the administration of justice and the legitimate right of
defense,” and again, on February 16, 1989, the prosecutors once
more expressed their concern with how the case was advancing.
Finally, on September 21, 1989, in light of the extensive
expert work and the number of new defendants, the prosecutors
suggested restricting the proceedings to identifying the responsibilities
of the 14 individuals who had been placed in preventive custody,
whether a final sentence was to be sought, and what the existing
jurisprudence covered. On
September 16, 1987, and March 15, 1989, the chamber had made reference
to the delay in the proceedings, which had already taken almost
four years, during which the “reception of the defendants’ statements
for the investigation suffered an unwarranted delay,” while not
ignoring “the obvious complexity of the proceedings” in which
“the large number of parties involved posed an obstacle to prompt
The petitioner claims that the prosecutors were guilty
of delays as serious as or more serious than those with which
they charge the judges.
Substantiation of the Article 206 motion concluded on August
1, 1991. The petitioner
claims that neither the complexity of the case nor his behavior
at trial can be used as arguments to mitigate this pattern of
negligence. First of all, no juridically complex issues were put forward
or debated. Moreover,
the petitioner alleged that the competent bodies in this trial
never established a guiding principle for separating important
matters from lesser issues and, through their lack of expertise
and diligence, they kept adding accusations and individuals indiscriminately.
The petitioner adds that, over the years the trial has
lasted, there has been no exceptional circumstance that would
indicate that the courts are facing an emergency situation or
an abnormal workload. Secondly,
as regards the behavior of Mr. Gotelli Jr., he believes his involvement
has been minimal in light of Article 180 of the CPMP.
The petitioner maintained that no end to the uncertainty
regarding his situation was in sight since, with an accusation
that carries a punishment of 20 years in prison, the date on which
the statute of limitations for criminal prosecution comes into
effect is set back by new proceedings that constitute a “continuation
of the trial” (CP, Article 67(4). Hypothetically, the trial could legally continue, from the
present date, for an additional 24 or 36 years, depending on whether
the starting point is taken as being the date of the prosecutors’
accusations or those of the BCRA.
Other alleged violations
The petitioner alleged that other rights protected by the
Convention were violated as a direct consequence of the right
to a hearing within a reasonable time being breached.
Those rights are the following:
Right of defense (Article 8(2)(f))
The petitioner told the Commission that the undue prolongation
of the trial undermined his right of defense by increasing the
problems he faced in organizing his defense.
As time goes by, the acceptable risks calculated in the
accused’s ability to present evidence and counter-arguments increase;
similarly, the possibility of calling witnesses decreases and
counter-arguments are weakened.
The petitioner states that the events under investigation
date back to 1979–that is, more than 17 years ago, when Law 21.526
was passed, establishing a new regime for financial institutions. Since then, that law has been amended by three later statutes;
four de facto presidents
and two democratic ones have come and gone; the name of the currency
has changed on four occasions; and, in terms of the cost of living,
price inflation reached a level of 252,729,924.0316 percent.
The witness and informational statements used to incriminate
the petitioner were originally received more than nine years ago;
it would therefore be difficult for him to assess those statements
during the evidentiary phase of the proceedings, it now not even
being certain whether the witnesses are still alive or not.
Similarly, new witnesses would find it difficult to recall
events that occurred over a decade ago with any degree of certainty.
As regards the documentary evidence, in performing the
expert audit, which finished more than six years ago, the accountants
gave a detailed report on the level of confusion and disorder
in the documents used to prepare their opinion, and it is now
impossible to know in what state they are. The petitioner states
that these documents–which he would use in his defense and as
evidence at trial–are, under orders from the court (page 13.610),
being held by the BCRA, which is in turn the petitioner’s accuser
in this case. Given
this situation, he believes that the chances of his conducting
a real defense are nonexistent.
Right to be presumed innocent and to due legal process
The petitioner alleged that on account of the burden it
has placed on the accused, this endless trial genuinely constitutes
punishment in advance, thus violating the principles of presumption
of innocence and due legal process enshrined in Article 8(2) of
the Convention. The
conditions imposed in the order exempting him from imprisonment
themselves constitute a restriction of his freedom of movement,
since the accused must notify the court of all changes of address
and refrain from leaving the vicinity of the court for longer
than 24 hours without prior permission.
Furthermore, a large sum of money belonging to a third
party is being held to guarantee his appearance.
The petitioner therefore believes that his freedom and
feeling of personal security are affected by a probable judicial
ruling that would annul the exemption from imprisonment and order
his arrest, since this already happened when the chamber revoked
bail and, two years later, the court upheld the extraordinary
remedy filed against that decision.
Right to humane treatment (Article 5(3)) and rights of
the family (Article 17)
The petitioner claimed that the trial described above has
been causing Mr. Gotelli Jr. psychological and moral harm.
That harm also has a social dimension in that his family
is enduring the uncertainty and anguish of this situation, in
addition to the serious economic losses it entails.
This implies a violation of Articles 5(3) and 17 of the
Convention, which state that punishment cannot be extended to
any person other than the criminal. In this regard, the petitioner explained that the criminal
case has been surrounded by an intense publicity campaign, and
so he has been unable to make any personal or social plans for
either the medium or long term.
This has also had an impact on his family, who must periodically
brave the turmoil caused by this grave state of affairs.
Finally, the petitioner also alleged violations of Article
5(6) of the Convention, which states that the essential aim of
punishments shall be the reform and social readaptation of the
prisoners, of Article 11(1), regarding respect for honor and the
recognition of personal dignity, and of Article 25(1), which deals
with judicial protection.
In this regard, he noted that the punishment imposed on
him by this trial is in no way aimed at social readaptation; instead,
it marginalizes him from his social surroundings and undermines
his good name and reputation. It also makes him unequal before
the law by making him, for life, a defendant or a partial convict
and denying him all rights of judicial protection.
With regard to the State’s claim that the petitioner would
not submit proof of the alleged violations of Articles 5, 17,
11, and 24, since that would be evidence of a negative fact, the
petitioner maintains that evidence of a negative fact is not the
issue; rather, it would be a matter of discussing or recognizing
the repercussions of being involved in a trial of this nature,
in which there is no certainty whatsoever regarding when it might
The State’s position
As regards admissibility, the State noted that the requirement
of exhausting domestic remedies set forth in Article 46(1).a of
the American Convention is implicit in the alleged violation of
Article 8(2), in that the undue delay in the trial undermines
the principles of presumed innocence and guaranteed defense. It
therefore held that a ruling on the matter must be analyzed in
conjunction with the merits of the case at hand.
The State reported that the allegations occurred between
1984 and 1985 in the context of what was considered an “asset
stripping” of the Banco Italia y Río de La Plata. Judicial proceedings
began before National First-Instance Investigating Criminal Court
of the Capital Nº 20 on May 24, 1985, on account of the complaint,
and before National First-Instance Federal Criminal and Correctional
Court of the Federal Capital Nº 2 on August 19, 1985, in the suit
filed by the BCRA.
With regard to Mr. Gotelli Jr., it notes that he was indicted
on March 12, 1986; on November 12, 1987, he gave his statement
for the investigation; on May 9, 1989, his preventive arrest was
ordered; on March 26, 1991, the federal appeals chamber upheld
his preventive arrest; on July 23, 1991, the exemption from arrest
was dismissed and an international arrest warrant was issued;
on April 7, 1995, the prosecutors filed charges for administrative
misconduct, with a request for a prison term of 20 years; and
on June 25, 1996, charges from the complainant BCRA were filed.
With regard to the violations of Articles 8 and 25 of the
Convention that the petitioner alleges, the State claimed that
the CPMP applicable in this case contains provisions covering
procedural delays, such as Articles 206 and 695.
In the criminal case brought against Mr. Gotelli Jr., a
motion as provided for in Article 206 of CPMP was filed, by means
of which the First Circuit of the National Federal Criminal and
Correctional Appeals Chamber of the Federal Capital summoned the
judge to appear on four occasions: September 16, 1987; December
23, 1987; March 15, 1989; and June 29, 1989.
The State commented that, “irrespective of considering
admissible, prima facie, the judge’s claim that the case was complex, and of the
need to analyze the actions of the parties in this case and the
way it has been presented, [and that] with his own actions he
could have contributed to the alleged delay, there can be no doubt
regarding the rulings of the appeal court.”
With regard to the rights enshrined in Articles 8(2) and
25(1) of the Convention, the State claimed that the Commission’s
normal practice indicates that “Article 8(2) obliges states to
gather together the evidence against the accused in a criminal
case” in order to “establish his guilt.” Establishing guilt implies
formulating an opinion of condemnation [juicio
de reproche] in the final judgment.
If the State fails to reach an opinion of condemnation
within a reasonable period and justifies prolonging the accused’s
imprisonment on the grounds of the suspicions against him, it
is using preventive custody as a substitute for punishment.
On September 2, 1997, in accepting the friendly settlement
procedure, the State reserved the right to “consider and improve
the legal arguments” it had set forth in its initial response.
Later, on October 6, 1997, in the recitals of the agreement entered
into by the parties, the State noted that the reply given on June
17, 1997, acknowledged that, “in
the petitioner’s case and within the aforesaid context, the right
to be tried within a reasonable period (Article 8(1) of the Convention)
Finally, in its initial reply the State claimed that the
petition contained no indication of violations of the right to
humane treatment (Article 5 of the Convention), the rights of
the family (Article 17), the aim of imprisonment being reform
and social adaptation (Article 5(6)), the right of respect for
honor and recognition of dignity (Article 11(1)), and the right
of equality before the law (Article 24).
In this regard, the State holds that the accused has not
been subjected to cruel, inhuman, or degrading treatment; he has
not been convicted; his honor and dignity have not been affected;
and it has certainly not been shown that in his situation, legal
protection has been used in such a way as to violate the principle
of equality. The
State did not therefore concur with the allegations made in this
respect, regarding which no evidence is required since it would
be evidence of the non-existence of a fact.
ANALYSIS OF ADMISSIBILITY
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
materiae, ratione personae, and ratione
Under its mandate, the Commission has ratione
materiae competence in the matter before it (i.e., it is competent
vis-à-vis the substantive issues of the case), in that the petitioner
alleged violations of human rights protected by Articles 8, 5,
11, 17, 24, and 25 of the American Convention.
Similarly, as regards its ratione
temporis competence (i.e., its competence in terms of when
the incidents occurred), Argentina has been a party to the Convention
since depositing its ratification instrument on September 5, 1984;
the criminal proceedings in which the petitioner alleges the violations
of the Convention took place began after that date.
Regarding its passive ratione
personae competence (i.e., competence vis-à-vis the person),
the Commission notes, first, that the complaints were leveled
at Argentina, a state party to the Convention.
Regarding its active ratione personae competence, the Commission notes that in order to
redress the violation of Article 8(1) of the Convention arising
from the procedural delays, the State expressly acknowledged that
there was a delay in the proceedings and agreed to interrupt the
criminal trial. To
this end, on December 26, 1997, the State informed the Commission
that Mr. Gotelli Jr.’s lawyers had submitted a document requesting
that the statute of limitations be applied to the case. However,
on September 15, 1998, the petitioner told the Commission that
the agreement had not been upheld and asked it to issue a report
under the terms of Article 50 of the Convention. In turn, the
State has not expressed its intent to interrupt the friendly settlement;
instead, it has reported that it is taking the steps necessary
to implement its terms.
Since the situation reported by the petitioner has not
yet been resolved or remedied on account of the State’s failure
to observe the agreement, the Commission concluded that, in accordance
with the terms of the Convention, the petitioner’s alleged victim
status has not changed.
The Commission would like to note that pursuant to Article
48(1)(f) of the Convention, the friendly settlement procedure
aims at “reaching a friendly settlement of the matter on the basis
of respect for the human rights recognized in [the] Convention.”
Acceptance of the procedure demonstrates the State’s willingness
to comply with the goals and objectives of the Convention according
to the principle of pacta sunt servanda, by which
states must comply with their treaty obligations in good faith.
However, under Article 45(7) of the Commission’s Regulations,
at any stage in the friendly settlement procedure the Commission
can terminate its involvement as the “organ of conciliation for
a friendly settlement” and continue processing the case, should
either of the parties “not consent to the application of this
procedure” or “not evidence good will in reaching a friendly settlement.”
In the case at hand, the petitioner stated his desire to
abandon the friendly settlement procedure. In accordance with
the above article, the Commission is competent to terminate motu
propio its function as the organ of conciliation and continue
processing the case; however, there is nothing to stop the parties
reaching an agreement regarding the matter at hand at a later
stage in the proceedings before the Commission.
Additional requirements for the admissibility of the petition
Exhaustion of domestic remedies
Under Article 46(1)(a) of the Convention, for a petition
to be admitted, the Commission requires that “remedies under domestic
law have been pursued and exhausted in accordance with generally
recognized principles of international law.”
The purpose of this requirement is to allow states to first
resolve matters within their own legal frameworks before having
to face international proceedings under the inter-American human
rights system, which “reinforces or complements” domestic jurisdiction.
However, when adequate and effective domestic remedies
do not exist, the exception to the prior exhaustion rule set forth
in Article 46(2) of the Convention comes into play; this happens
if: (a) the legislation
of the state concerned does not afford due process of law for
the protection of the right that has allegedly been violated,
(b) the party alleging violation of his rights has been denied
access to the remedies under domestic law, or (c) there has been
unwarranted delay in rendering a final judgment under the aforementioned
remedies. The Commission
will now analyze the parties’ allegations regarding the rule that
requires the exhaustion of domestic remedies and the exceptions
In the case at hand, the petitioner alleged that the procedural
delays release him from the requirement of exhausting domestic
remedies, as stipulated by Article 46(2)(c) of the Convention.
The State claimed that the requirement of exhausting domestic
remedies set forth in Article 46(1)(a) of the Convention is implicit
in the alleged violation of Article 8(2) and must be analyzed
in conjunction with the merits of the case. The Commission believes it should analyze compliance with this
requirement together with the substance of the case, in light
of the close relationship between the exception invoked by the
petitioner and the analysis of the merits.
Article 46(1)(b) of the American Convention states that
for a petition to be admitted it must be “lodged within a period
of six months from the date on which the party alleging violation
of his rights was notified of the final judgment.” This provision, the aim of which is to guarantee the parties
certainty and security, does not apply when a final judgment has
been impossible to obtain because of one of the exceptions to
the rule requiring the exhaustion of domestic remedies set forth
in Article 46(2) of the Convention, namely:
(a) if the legislation of the state concerned does not
afford due process of law for the protection of the right that
has allegedly been violated, (b) if the party alleging violation
of his rights has been denied access to the remedies under domestic
law, or (c) if there has been unwarranted delay in rendering a
final judgment under the aforementioned remedies.
In the case at hand, the petitioner claimed that the absence
of a judgment caused by the unjustifiable delays makes the limit
stipulated in Article 46(1)(b) of the Convention inapplicable.
The State did not question the petitioner’s allegations.
The Commission concluded in the previous section that the
exception to the domestic remedy exhaustion rule set forth in
Article 46(2(c) does apply.
In light of the circumstances analyzed, the Commission
holds that the six-month filing period established in the Convention
is not applicable in the case at hand.
Duplication of proceedings and res
The requirement for admissibility contained in Article
46(1)(c)) stipulates that the subject matter of the petition or
communication must not be pending in another international proceeding
for settlement. In addition, Article 47(d) of the Convention states that all
petitions that are substantially the same as one previously studied
by the Commission or by another international organization shall
be inadmissible. In
the case at hand, neither of these circumstances has been proven.
The parties have neither alleged nor shown that the issue
placed before the Commission’s consideration is pending another
international settlement proceeding or has already been decided
by another international body. Neither is it the same as a previously
examined petition. The Commission therefore concludes that these requirements
have been satisfied.
Nature of the allegations
Article 47(b) of the Convention stipulates that the Commission
will dismiss all petitions or communications that do “not state
facts that tend to establish a violation of the rights guaranteed
by this Convention.” The
Commission will now analyze whether incidents described in the
petitioner’s allegations meet this rule.
Alleged violation of the right to a hearing within a reasonable
time (Article 8(1))
Article 8(1) of the American Convention establishes the
right of all individuals to be heard “within a reasonable time”
in the substantiation of any accusation made against them.
In connection with this, the Commission notes that in the
agreement signed by the parties, the State recognized that “the
right to be tried within a reasonable period (Article 8(1)) of
the Convention) was violated.”
The Commission declares that the petitioner’s allegations
about the procedural delays are admissible and, if they are true,
they could constitute a violation of the Convention.
According to Article 8(2) of the Convention, “every person
accused of a criminal offense has the right to be presumed innocent
so long as his guilt has not been proven according to law.”
In addition, Article 8(2)(f) states that during the proceedings,
all persons must have the right “to examine witnesses present
in the court and to obtain the appearance, as witnesses, of experts
or other persons who may throw light on the facts.” The Inter-American
Court has stated that the principle of the presumption of innocence
contains the goals of judicial guarantees by holding that all
persons are innocent until their guilt is proven.
The petitioner grounds this part of the petition on subsidiary
arguments related to the alleged violation of Article 8(1) of
the Convention and poses complex legal and factual issues.
The Commission therefore concludes that the petitioner’s
allegations are admissible in that they do tend to establish violations
in accordance with the provisions of Article 47(b) of the Convention.
Alleged violations of the right to humane treatment (Articles
5(3) and 5(6) and the rights of the family (Article 17)
Article 5(3) of the American Convention states that punishment
cannot be extended to any person other than the criminal, and
Article 5(6) states that the essential aim of punishments consisting
of deprivation of liberty shall be the reform and social readaptation
of the prisoners.
In a strictly formal sense, the word “punishment” (pena
in the Spanish text of the Convention and peine
in the French) refers to a penal sanction imposed by the competent
authorities on a person who has been declared “responsible” or
“guilty.” In the
present case, no punishment has been imposed on Mr. Gotelli Jr.,
since the parties’ claims do not indicate that any sanction has
been imposed on him under a ruling issued by the competent authorities
in the criminal proceedings.
Although the Inter-American Court and the Commission have
stated that excessively prolonged preventive custody or arrest
can in certain circumstance constitute a punishment,
the parties’ allegations do not indicate that Mr. Gotelli’s preventive
custody was enforced. Thus,
given the characteristics of this case, the petitioner’s allegations
do not tend to establish
a violation of Article 5(6)
of the Convention. In
addition, considering that Articles 5(3) and 11(1) must be interpreted
as set forth in Article 29 of the Convention, the evidence presented
during these proceedings do not indicate the violations alleged
by the petitioner.
The petitioner also alleges that together with Article
5(6), Article 17 of the Convention was violated, because his family
is undergoing the uncertainty and anguish caused by this situation,
in conjunction with the publicity campaign and severe financial
losses. The Commission believes that after rejecting the petitioner’s
arguments regarding Article 5(6) of the Convention and in light
of the specific circumstances of this case, the protection set
forth in Article 17 cannot be applied to this situation.
The Commission concludes that in the case at hand, the
petitioner’s allegations do not tend to establish a violation
of the right to humane treatment or the rights of the family as
set forth in Articles 5(3), 5(6), and 17, and that those claims
are therefore inadmissible under Article 47(b) of the Convention.
Alleged violations of the right to honor (Article 11(1)),
the right to equality before the law (Article 24), and the right
to effective recourse (Article 25(1))
The petitioner claimed Articles 11(1), 24, and 25(1) were
violated by the trial and the delays it entailed; however, the
Commission notes that the petitioner did not provide sufficient
evidence to substantiate these claims.
The Commission therefore concludes that they are inadmissible
by reason of being manifestly groundless, in accordance with Article
47(c) of the Convention.
The Commission concludes that it is competent to hear this
case and that the petition is admissible as regards the alleged
violations of Article 8 of the Convention. However, it believes
that under Articles 46 and 47 of the Convention, the petitioner’s
allegations regarding violations of Articles 5(3), 5(6), 11(1),
17, 24, and 25(1) are inadmissible.
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 as regards the alleged
violations of Article 8 of the Convention, and to declare inadmissible
the allegations regarding violations of Articles 5(3), 5(6), 11(1),
17, 24, and 25(1).
To notify the parties of this decision.
To proceed with the analysis of the merits of the case.
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.
and signed at the headquarters of the Inter-American Commission
on Human Rights in the city of Washington, D.C., on the Fourteenth
day of May, 1999. (Signed): Robert K. Goldman, Chairman; Hélio
Bicudo, First Vice-Chairman; Claudio Grossman, Second Vice-Chairman;
Commissioners Alvaro Tirado Mejía, Jean Joseph Exumé, Carlos Ayala,
and Henry Forde.
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.
Inter-American Court of Human Rights, Velásquez Rodríguez
Case, Judgment of July 29, 1988, Series C, Nº 4, paragraph
 Inter-American Court of Human Rights, Suárez Rosero Case, Judgment of November 12, 1997, Series C, Nº 35, paragraph 77; Inter-American Commission on Human Rights, Jorge A. Giménez, Argentina, Case 11.245, Report Nº 12/96, paragraph 114.paragraph 114.