Norma Dominga Carpi Viuda de Szukalo v. Argentina, Case 11.707, Report Nº 69/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 99 (1999).
On April 26, 1996, Mrs. Norma Dominga Carpi de Szukalo, widowed,
(hereinafter "the petitioner") approached the Inter-American
Commission on Human Rights (hereinafter "the Commission")
on her own behalf and that of her children to file a complaint against
the Argentine Republic (hereinafter "the State,” "the
Argentine State," or “Argentina”).
In the civil and criminal proceedings brought before the
Argentine judicial authorities regarding the falsification of certified
documents used to sell several real estate properties, thereby depriving
the petitioner of her property, the petitioner considers that the
following rights were violated
to the detriment of Mr. Sergio Szukalo's heirs:
right to a fair trial (Article 8), the right to property (Article
21), and the right to judicial protection (Article 25).
The petitioner further claims that the State failed to fulfill
the obligation to respect (Article 1) and adopt (Article 2) the
standards in the American Convention on Human Rights (hereinafter
"the American Convention").
In its analysis of the admissibility of this case, the Commission
concluded that the petitioner's allegation that there was an eleven-year
delay by Argentine judicial authorities in delivering a final judgment
in the civil proceedings, if true, could constitute a violation
of the right to due process (Article 8(1)) and must be examined
together with the allegation that the criminal proceedings to establish
criminal liability in this case must be resolved before another
court may hear the case (prejudicialidad).
Furthermore, the Commission found inadmissible the petitioner's
allegation that the State is obligated to adopt the time periods
set forth in the Code of Civil Procedure, pursuant to the provisions
of Article 2 of the American Convention, because those time frames
are neither irrational nor arbitrary.
Finally, the Commission found inadmissible the points
related to the right to property (Article 21), because the petitioner
stated that the Court's decision in the civil suit was satisfactory,
since she recovered her property.
PROCESSING BY THE COMMISSION
On April 26, 1996, the Commission received the complaint,
which was amplified on May 26, 1996.
On June 10, 1996, the Commission requested information from
the State, which replied on December 3, 1996.
The petitioner submitted additional information on July 19,
1996 and then again on October 3, 1996.
The petitioner's observations were received on January 24,
1997 and the State's reply on February 11, 1997.
The State was given a 30-day extension on April 14, 1997.
On October 22, 1997, the petitioner submitted additional
information, the relevant parts of which were forwarded to the State
on November 4, 1997.
In another communication received on November 25, 1997, the
petitioner presented additional information.
The State sent its observations on December 22, 1997. Subsequently,
both the petitioner and the State continued to send communications
clarifying their positions in this case.
POSITIONS OF THE PARTIES
The petitioner claims that certified documents were falsified
in 1981, with the participation of two pseudo-attorneys and two
notaries, and were used to sell several real estate properties belonging
to Sergio Szukalo's heirs,
which were then resold to third parties. This sale deprived Sergio Szukalo's heirs of the right to the
use and enjoyment of the property.
On June 9, 1986, Mr. Sergio Szukalo's heirs and children,
Pablo Sergio Humberto Szukalo, Patricia Virginia Szukalo, and Mariana
Elizabeth Szukalo, filed a complaint with the Argentine judicial
authorities, which Mrs. Norma Dominga Carpi, Szukalo's
widow, later joined, to nullify the sale of the real estate, to
recover the property, and to
receive damages for the loss of their use and of the furniture therein
on the day of the death of the devisor, profits from the saleable
value, and emotional distress.
The full proceedings to declare the sale void were executed
as "Szukalo Pablo et
al. vs. Perricone Miguel et
al. on the nullity of the sales" by the Court of the First
Instance on Civil and Commercial Matters Nº 14 of San Isidro in
the Province of Buenos Aires.
That suit was brought as incidental proceedings in the probate
hearing ab intestato against
nine joint defendants. The
grounds of the complaint was the falsification of documents -- the
preliminary sales contract and the irrevocable power of attorney
-- the signatures on which were not the devisor's, as was proven
in the proceedings through the testimony of a handwriting expert.
Those documents were used to sell the property to three buyers
who in turn resold it.
The sale in question was of three large properties located
in northern greater Buenos Aires that belonged to the devisor, the
petitioner's husband, Mr. Sergio Szukalo. At the time of the sale,
the claimants were minors, and judicial authorization was required
to make the sale binding. That authorization was not granted. Although Mrs. Dominga Carpi, Szukalo's widow, signed the sales
contracts, “the legal nullity being pursued through the complaint
does not refer to the supposed incompetence of the co-claimant,
Mrs. Carpi de Szukalo, when she entered into the legal acts being
Furthermore, the petitioner lodged written proof with the
Court that the notary who signed the power of attorney document
had been permanently removed from the roster as punishment for illicit
acts. The petitioner
also presented written proof that the former attorney who ran the
probate hearings was punished and removed from the professional
roster by the Bar Association in 1988.
With regard to procedural developments within the proceedings,
the respondents requested that the August 24, 1987 decision of the
Court of the First Instance be nullified.
On June 10, 1988, the Court denied that request and authorized
Mrs. Szukalo to participate as a complainant along with her children
in the proceedings, in order to enforce her own right vis-à-vis
the initiating parties.
On December 7, 1989, the Court ruled on the pleas raised
by six of the co-respondents, three of whom later appealed.
On August 3, 1990, the Court ruled on the pleas, including
the complainants' lack of legal standing to claim emotional distress
they personally did not experience; it recognized that the legal
requirements for lodging a complaint were not fulfilled and ordered
the Judge a quo to set
a deadline to rectify this. In 1993, following the death of one
of the co-respondents, the case was forwarded to Court Nº 7 in San
Isidro. The parties
gave their arguments in that Court in February 1995. On March 14,
1995, the petitioner requested that the Court waive the right of
one of the co-respondents to present his arguments and that they
continue with the proceedings.
On February 29, 1996, the Court of the First Instance issued
a judgment denying the request.
The appeal lodged in March 1996 was forwarded to the Second
Chamber of the First Civil and Commercial Court of Appeals of San
Isidro in the Province of Buenos Aires, which returned the decision,
twice in a row, to the Court of the First Instance.
The first time was because a motion to "refute the falsification"
had not been remitted with the main court records.
The second time was because the lower court judge did not
notify one of the co-respondents that he had been declared in contempt
of court and as a result had to be notified of the decision at his
principal place of residence. These procedural steps lasted 7 months,
from February to September 1996.
The petitioner, before the court of appeals, objected to
the lower court judge continuing to hear the case on the grounds
he had executed his functions in a deficient manner, due to his
partiality and aggravated prejudice, as shown by the fact that his
decision did not consider the decisions of the court of appeals,
which specified the correct procedures to follow. The petitioner
further requested a "jury
de enjuiciamiento" on improper execution of functions,
equivalent to an impeachment trial that could lead to his dismissal
as a judge. On October
22, 1996, the Chamber upheld the denial of the motion for incidental
proceedings on "new events" denounced in the Court of
the First Instance and requested that the Supreme Court of the Province
of Buenos Aires allow additional time for delivering a judgment.
A 90-day extension was granted on May 27, 1997.
After more than eleven years, on October 9, 1997, the
Second Chamber of the First Civil and Commercial Court of Appeals
of the Judicial District of San Isidro
totally repealed the judgment issued by the lower court judge in
February 1996. That
decision granted in part the request made by the complainants, in
that it declared null and void the sale of the three properties
due to the falsification of the signature on the irrevocable power
used to represent Mr. Sergio Szukalo.
It also ordered that the properties be repossessed and handed
over to his heirs, and that their registration in the real estate
registry be cancelled, "thereby showing the justice
of the rights petitioned in 1986."
The judgment also resolves other issues raised by the parties as
secondary or subsidiary to the non-existence of the legal acts questioned
in the complaint.
The petitioner indicated that the civil proceedings were
delayed excessively, thus failing to comply with the procedural
deadlines set in the Code of Civil Procedure of Argentina, in force
in the jurisdiction where the proceedings were conducted, which
are binding for both the parties and the judge.
The procedural deadlines set forth in that Code are as follows:
days to answer the complaint (Article 337);
days to hear or forward any petition (Article 150);
days to furnish evidence (Article 365);
40 days to produce the evidence offered in each file of proof
for each party (Article 365);
days for each party to give its arguments (Article 480);
40 working days to issue a judgment (Article 34, subparagraph
Due to the procedural delays, the petitioner also alleges
the violation of Article 2 of the American Convention, because the
State did not fulfill its obligation to adapt its procedural standards
to the requirements set forth in the Convention.
The non-existence of such laws deprived the judges of the
pertinent legal and procedural tools to speed up and adapt the proceedings
to the "reasonable time" called for in international law.
It also makes the State liable for the failure to adopt domestic
legislation in keeping with international law.
Furthermore, on May 15, 1986, the petitioner filed criminal
charges for the falsification of the certified documents.
That case was processed in the Second Criminal Court of San
Isidro as “Szukalo Pablo and Malzof Fernando, for the falsification
of documents, repeated fraud, and extortion.” On May 18, 1993, the
petitioner filed a document with the Supreme Court of Justice of
Argentina denouncing the denial of justice caused by the procedural
delays and requested that provincial judicial authorities be issued
a warning setting a procedural term that expires automatically to
activate the criminal case, since the civil trial to nullify the
sale cannot be heard until the criminal case for repeated fraud
by the same respondents for the same events is resolved.
The suit for repeated fraud --committed in 1981, the year
of the death of the devisor-- was dismissed temporarily by Criminal
Court Nº 2 of San Isidro.
The Criminal and Correctional Court of Appeals of San Isidro
upheld that decision, due to a lack of evidence, making its continuity
doubtful. The case
therefore remains open, awaiting new evidence, without detriment
to the complaint regarding extortion and conspiracy, which was not
considered in that decision.
The petitioner was notified of the ruling on April 20, 1994.
According to the petitioner, the case is straightforward
as regards the evidence that the signature was falsified, since
this was proven during the trial through handwriting tests on the
signature of Mr. Sergio Szukalo's on the documents used.
The complainants (the heirs) have been diligent throughout
the suit; they have kept to the procedural deadlines and during
the suit have had to put up with all sorts of dilatory defenses
and obstructions unrelated to them, including:
The pleas or defenses raised by the co-respondents for purely
dilatory purposes, which were rejected by the judge involved.
The competent Chamber took one year to decide on the motions
to dismiss the case for lack of jurisdiction–between the original
court and the one that later heard the case–because of the death
of one co-respondent.
The delay in appointing a new judge to the Criminal Court
hearing the criminal case on falsification and repeated fraud, which
lasted approximately one year.
This criminal case was being processed at the same time as
the civil case, and due to the principle of "prejudicialidad,"
had to be resolved before a judgment could be delivered in the civil
suit to declare the sale null, further delaying the process by a
year. Nonetheless, in a later communication the petitioner indicated
that the criminal case "was handled at almost the same time
as the civil suit and therefore in no way necessarily influenced
the procedural delay in the civil suit, although it had to be decided
The obstructions or delays of the civil court in certifying
the existence of evidence pending presentation in the case and the
fact that the parties could present arguments on the evidence contributed
before the judgment.
The unjustified one-year delay in issuing a judgment, once
the parties requested a clear decision on the "shared"
status of the evidence produced in the suit to declare the sale
null and that produced in an incidental proceeding.
Only one handwriting expert was appointed, and there was
no testimonial evidence outside of the court's jurisdiction or any
other proof outside of the country.
Furthermore, the petitioner considers that the judges have
not fulfilled the obligation to ensure the probity and good faith
of the litigants. The petitioners have not been informed of the obstructions
imposed by the co-respondents, which the judges, as directors of
the process, have allowed.
When the petitioner presented her petition to the Commission,
she considered that the negligence in the proceedings affected the
court's impartiality, which was clear in the decision of the lower
court, thus violating the principle of congruence and making it
clearly arbitrary. She
further alleged the violation of Article 21 of the American Convention
on the right to property as a result of the denial of justice stemming
from the delay by judicial authorities. Nonetheless, she subsequently informed the Commission that
the Court of Appeals issued a judgment on October 9, 1997 that was
“satisfactory,” since she recovered her property.
Regarding admissibility, in the initial petition to the Commission,
the petitioner claimed that the exceptions to the rule of prior
exhaustion of the domestic remedies set forth in Article 46(2)(a)
and (c) of the American Convention were applicable due to the delay
in resolving the case, which was a denial of justice.
Subsequently, as a result of the Court of Appeal's judgment,
the petitioner indicated that the decision was final, thus making
the State's allegations regarding the non-exhaustion of domestic
remedies “without cause.”
The State, in its reply to the petitioner's initial complaint,
claimed that domestic remedies had not been exhausted and therefore
it was still possible to appeal to a higher court. However, with
the final judgment of the Court of Appeals, it stated that domestic
remedies had been exhausted.
Responsibility only falls to the State “because
of [a] lack of due diligence to prevent the violation or to respond
to it as required by the Convention.”
The State argues that the petitioner only indicated that
“the judicial delay was caused by the unwarranted delays requested
by the other party. However,
these claims are not accompanied by any indication proving that
her own conduct sought to overcome the stumbling blocks placed by
the other party. There
is no way the State can adopt a position other than the one it did."
In any event, it is clear that the case in question was not
exempt from disputes among the parties and that the petitioner had
had to question her own conduct in the case.
Nor did she make full use of the legal remedies to disqualify
the dilatory moves made by the other party.
Therefore, the State cites the doctrine of "one's own
acts," since the petitioner contributed to the delay.
As a result, one cannot claim the violation of the rights
enshrined in Articles 8 and 25 of the American Convention on Human
The State indicated that the characteristics of the civil
suit do not exempt it from the obligation to exercise jurisdiction
in a "reasonable period of time." However, the State cannot
be reproached for this unless the delay is due entirely to the court,
which is not the case here.
At the same time, the State provided the following explanations
for the delay in this case:
of respondents participated in the civil trial (nine in all), each
of whom provided his/her own legal representation.
Incidental proceedings were opened in the trial, such as
the refutation of the falsification by some of the co-respondents.
There was a criminal complaint, which had to be resolved
first, thus delaying the civil proceedings.
The State indicates that estimating a set number of days,
months, or years for proceedings does not tend to indicate the violation
of protected rights, and that a reasonable length of time cannot
be established in the abstract.
The State maintains that this was an action taken by individuals
against individuals, regarding events and situations outside the
purview of State intervention.
It was also a question of ownership between individuals in
which the possession and ownership of the property was not contingent
upon an action or decision by public authorities.
With regard to the violation of the right to property, the
State maintains that the petitioner's allegation is groundless.
It also recalls that the Argentine State formulated the following
exception to Article 21 of the American Convention:
The Argentine Government establishes that questions relating
to the Government's economic policy shall not be subject to review
by an international tribunal.
Neither shall it consider reviewable anything the national
courts may determine to be matters of “public utility” and “social
interest”, nor anything they may understand to be “fair compensation”.
The State further indicated that the consequences of actions
between individuals, outside of the purview of State intervention,
are not included under the terms of Article 21 of the American Convention.
In this case, this is a private situation, outside of the
purview of direct State action.
Finally, the State requested that the Commission declare
this case inadmissible on the grounds that the events presented
by the petitioner do not show the violation of rights enshrined
in the American Convention.
ANALYSIS OF ADMISSIBILITY
The purpose of the Commission's decision on the admissibility
of the cases brought before it is not only to produce more clarity
and legal security in its procedures, but also to focus the parties
on the central issues in the case.
A. Competence ratione
materiae, ratione personae, and
ratione temporis of the Commission
In light of its mandate, the Commission is competent ratione
temporis to examine this case, since the suit brought by the
petitioner began on June 9, 1986 after Argentina, the State Party
denounced, had deposited the instrument of ratification of the American
Convention with the General Secretariat of the Organization of American
States (September 5, 1984).
The Commission finds that it is competent ratione
materiae, because the petition denounces alleged violations
of rights enshrined in the American Convention.
With regard to active and passive competence ratione
personae, the Commission concluded that it is competent, because
the petitioner presents herself as the victim of the supposed violations
of the Convention by a State Party, Argentina.
Other admissibility requirements for the petition
Exhaustion of domestic remedies
For a petition
to be admissible, Article 46(1)(a)
of the Convention requires "that the remedies under domestic
law have been pursued and exhausted in accordance with generally
recognized principles of international law." The Commission
observes that the petitioner, in her initial complaint lodged with
the Commission on April 26, 1996, invoked the exceptions established in Article 46(2)(a) and (c) of
the American Convention with regard to the incidental proceedings
brought before the Argentine judicial authorities to nullify the
sale. Article 46(2)
of the Convention stipulates that the rule of prior exhaustion
of domestic remedies does not apply in the following circumstances:
(a) if the domestic legislation of the State concerned does not
afford due process of law for the protection of the right or rights
that have 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.
However, during the Commission's processing of this case,
a final decision was handed down by the Second Chamber of the First
Civil and Commercial Court of Appeals of San Isidro in the Province
of Buenos Aires on October 9, 1997.
The parties in this case considered that this judgment exhausted
domestic remedies, and the petitioner did not persist in invoking
the exceptions to that rule. The Commission concludes that the requirement
of prior exhaustion of domestic remedies set forth in Article 46(1)(a)
of the Convention was met.
b. Deadline for lodging
of the American Convention requires that the petition 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."
The Commission notes that the petitioner presented her petition
before a final decision was
issued. As a result
it concludes that the six-month requirement set forth in Article
46(1)(b) of the American Convention was met.
Duplication of proceedings and res
41. Article 46(1)(c) requires that
the subject of the petition or communication not be pending in another
international proceeding for settlement.
Furthermore, Article 47 (d) of the Convention establishes
that the Commission shall consider inadmissible any petition that
is substantially the same as one previously studied by the Commission
or by another international organization. In this case, the parties have not indicated any of the circumstances
mentioned above. The Commission therefore finds that this requirement
Characterization of the allegations
examined whether or not the events alleged by the petitioner tend
to characterize possible violations of the American Convention,
as provided for in Article 47(b).
Right to due process (Article 8(1))
On other occasions, the
Commission has stated in this regard that "the right to a hearing
within a reasonable time, as established by the American Convention,
is based, inter alia,
on the necessity of avoiding unwarranted delays which result in
an abridgement or denial of justice injurious to persons alleging
the violation of rights protected by said Convention."
Article 8(1) of the American Convention reads:
person has the right to a hearing, with due guarantees and within
a reasonable time, by a competent, independent, and impartial tribunal,
previously established by law, in the substantiation of any accusation
of a criminal nature made against him or for the determination of
his rights and obligations of a civil, labor, fiscal, or any other
The guarantees in Article 8.1 of the Convention apply not
only to proceedings invoking the violation of rights by the State,
but also to rights and obligations of a civil or other nature between
individuals. In this
case, where the petitioner requested nullification of the sale of
property, the Commission finds that these proceedings are aimed
at determining the civil rights and obligations of persons, regardless
of the origin or reason for the petition.
Regarding the delay cited by the petitioner, the Commission
finds that the State did not dispute that there was a delay in the
but rather claims that it was justified
based on the behavior of the claimants, the large number of respondents
and the incidental proceedings they brought, and the fact that the
criminal complaint had to be decided on first.
In this regard, the Commission observes that the proceedings
before the Courts of the First Instance on Civil and Commercial
Matters Nos. 14 and 7 took roughly
ten years to reach a decision in this case. The Commission also notes that the parties in this case argued
that the criminal case had to be resolved before the civil suit,
which must be examined along with the merits of the case. The Commission
therefore concludes prima
facie that the events alleged by the petitioner regarding the
procedural delays, if true, tend to characterize a violation of
Article 8.1 of the American Convention.
Right to property (Article 21)
The Commission observes that in the original petition, the
petitioner alleges the violation of Article 21 of the American Convention
on the right to property as a result of the denial of justice stemming
from the delay by judicial authorities.
Subsequently, however, she informed the Commission that the
Court of Appeals had issued a judgment on October 9, 1997 that was
"satisfactory," since she recovered her property.
The petitioner did not allege other events that could serve
as grounds for her allegation regarding violation of the right to
property. The Commission
therefore concludes that, at the time this report was issued, the
events alleged by the petitioner regarding the right to property
(Article 21) are no longer applicable and declares that part of
the petition inadmissible.
Duty to adopt measures (Article 2)
The petitioner presented two arguments to support her allegation
that the procedural delays violated Article 2 of the Convention.
Firstly, she alleged that the procedural time frames called
for in Articles 34 (c), 150, 337, 365, and 480 of the Code of Civil
Procedure --applicable in the jurisdiction in which the case was
heard-- violate Article 2 of the American Convention. Secondly, she argued that the State failed to adapt those standards
or to issue domestic procedural and legal instruments to speed up
the proceedings or adapt them to the reasonable time period called
for in Article 8(1) of the Convention.
Article 2 reads:
As the Inter-American Court has upheld, this Article reflects
a basic rule of international law that a State Party to a treaty
has a legal duty to take whatever legislative or other steps as
may be necessary to enable it to comply with its treaty obligations.
Thus States must issue the standards they committed to in Article
2 of the Convention (positive duty) and cannot issue provisions
or measures that violate the rights and freedoms recognized therein
The Commission examined the procedural deadlines set forth
in the Code of Civil Procedure for the jurisdiction applicable in
the petitioner's case. In
this regard, it considers that 15 days to answer a complaint (Article
337); five days to hear or forward any petition (Article 150); ten
days to furnish evidence (Article 365); 40 days to produce evidence
offered in the file of proof of each party (Article 365); six days
for each party to present its arguments (Article 480); and 40 working
days to issue a judgment [Article 34 (c)] are not prima
facie unreasonable or arbitrary and do not impede the exercise
of the right to a hearing within a reasonable time frame.
The petitioner alleged that the State failed to adopt domestic
legal and procedural tools to speed up and adapt the procedures
to a reasonable time period. However, the Commission considers that
the petitioner did not indicate what these shortcomings or loopholes
in the domestic legal system are with regard to regulating the conditions
for the exercise of the right to a hearing in a reasonable time.
The petitioner also
did not indicate to what extent these supposed loopholes or shortcomings
affected that right. The
Commission believes that, in this case, the petitioner had access
to the courts and that the procedural standards governing the process,
prima facie in and of themselves, fulfill the requirements in Article
8(1) of the Convention.
The Commission feels it is necessary to specify that the
failure of judicial authorities to meet the procedural deadlines
established in the Code of Civil Procedure indicated by the petitioner
is different from those deadlines in and of themselves violating
the guarantee established in Article 8 of the Convention.
The Commission understands that the petitioner is protesting
the behavior of the judicial authorities who enforced the deadlines
and who have the duty to guarantee the exercise of the right to
a hearing in a reasonable time.
This point was already examined when the Commission addressed
the characterization of the violations of Article 8 of the Convention
(paragraphs 41 to 45).
56. Thus any argument regarding actions or omissions by judicial authorities that affect the right to due process within a reasonable time alludes to the general obligation established in Article 1.1 and not Article 2 of the Convention. The content and scope of Article 2 refers to different assumptions and complements the provisions of Article 1(1) of the Convention, which stipulates the essential obligations to guarantee and respect rights. Otherwise there would be no reason for these Articles to be separate provisions. Therefore, the obligation of the states under Article 1(1) of the Convention is much more immediate than that stemming from Article 2. As the Inter-American Court has indicated, the obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation --it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights.
Therefore, the duty to issue the necessary measures to fully
guarantee the effectiveness of rights in the states' domestic systems,
referred to in Article 2, cannot be understood, in the American
Convention system, as a mere repetition of the provisions of Article
1(1), as this would strip the latter of all meaning.
Furthermore, it cannot be considered equivalent to the simple
generic duty to make the duty effective in the domestic system,
which is inherent to all international obligations.
In consideration of the de
facto and de jure
arguments outlined above, the Commission concludes that the procedural
deadlines contained in the standards cited by the petitioner do
not characterize a violation of the right to a hearing within a
reasonable time, as established in Article 8(1) of the American
in examining the facts forwarded in these proceedings, the Commission
does not find that the petitioner's allegations regarding the legislative
or other measures needed to enforce that right correspond to the
characterization made by the petitioner.
As a result, the Commission concludes that the petitioner's
allegations do not tend to characterize a violation of Article 2
and are inadmissible in keeping with the provisions of Article 47(b)
of the Convention.
The Commission concludes that the petition meets the formal
admissibility requirements established in Article 46 of the American
Based on the examination conducted, if the petitioner's allegations
regarding the procedural delays in the civil suit are true, they
would tend to constitute a violation of the right to a fair trial
Nonetheless, the Commission concludes that the petitioner's
initial allegations regarding the violation of the right to property
(Article 21) were satisfied by the State during the Commission's
processing of the case. Therefore, at the time this report was issued, those allegations
are inadmissible, in keeping with Article 47(c) of the American
Convention. The Commission
also concluded that the allegations regarding the State's duty to
adapt its standards and issue measures in agreement with the rights
(Article 2) do not constitute violations, in keeping with Article
47(b) of the American Convention.
Based on the de facto
and de jure arguments listed above, and without prejudging the merits
of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
Declare the petition admissible with regard to Articles 8
and 25 of the Convention and to declare the allegations on the violation
of Articles 2 and 21 inadmissible;
Notify the parties of this decision.
Continue to examine the merits of the case.
4. Place itself at the
disposal of the parties, with a view to reaching a friendly settlement
of the matter on the basis of respect for the human rights recognized
in the American Convention. The Commission invites both parties to reply regarding the
possibility of initiating such a settlement, and
Publish this decision and include it in the Commission's
Annual Report to the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission
on Human Rights in Washington, D.C. on May 4, 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.
October 9, 1997 judgment of the Second Chamber of the First
Civil and Commercial Court of Appeals of the Judicial District
of San Isidro.
The State cited the Inter-American Court of Human Rights, the
Velásquez Rodríguez Case, paragraph 172.
The State quoted the Inter-American Commission on Human Rights,
Report 2/97, Argentina, Annual Report 1997, paragraph 18.
among others, 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, para. 50, page
Inter-American Commission on Human Rights.
Annual Report 1996, Report Nº 9/97, Case 11.509, Report
on Admissibility of March 12, 1997, pages 635-636 in the Spanish
edition, para. 35.
Inter-American Court of Human Rights, Enforceability of the
Right to Reply or Correction (Articles 14(1), 1(1), and 2 of
the American Convention on Human Rights), Advisory Opinion OC-7/86
of August 29, 1986, Series A, Nº 7, para. 30).
Inter-American Court of Human Rights, Certain Attributes of
the Inter-American Commission on Human Rights (Articles 41,
42, 44, 46, 47, 50, and 51 of the American Convention on Human
Rights) Advisory Opinion OC-13/93 of July 16, 1993, Series A,
Nº 13, paras. 26-31; and International Responsibility for the
Promulgation and Enforcement of Laws in Violation of the Convention
(Arts. 1 and 2 of the American Convention on Human Rights) Advisory
Opinion OC-14/94 of December 16, 1994. Series A, Nº 14, para.
The source of Article 2 of the American Convention is Article
2(2) of the United Nations International Covenant on Civil and
Political Rights, which both because of its placement and content
clearly complements the essential obligation to respect and
guarantee rights stipulated in Article 2, subparagraph 1, which
is equivalent to Article 1(1) of the American Convention. In
contrast, the European Convention for the Protection of Human
Rights and Fundamental Freedoms does not contain a provision
similar to Article 2 of the American Convention or Article 2(2)
of the International Covenant.
Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Judgment of July 29, 1988, Series C, Nº 4, paras. 167-168; and
Godínez Cruz Case, Judgment of January 20, 1989, Series C, Nº
5, paras. 176-177.