Carmen Aguiar de Lapaco v. Argentina, Case 12.059, Report No. 70/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 161 (1999).
CARMEN AGUIAR DE LAPACÓ
May 4, 1999
On October 7, 1998, a petition was filed before the Inter-American
Commission on Human Rights (hereinafter "the Commission" or "the
IACHR") by Carmen Aguiar de Lapacó, sponsored by the Grandmothers of
Plaza de Mayo, the Permanent Human Rights Assembly (APDH), the Center for
Legal and Social Studies (CELS), the Center for Justice and International
Law (CEJIL), Families of Detainees Missing for Political Reasons, the Argentine
League for the Rights of Man, the Mothers of Plaza de Mayo–Línea
Fundadora Group–, Ecumenical Human Rights Movement (MEDH), and the Peace
and Justice Service (Serpaj) (hereinafter "the petitioners"), against
the Argentine Republic (hereinafter "the State," "the Argentine
State," or "Argentina").
2. The petitioners claim
that Argentine judicial authorities denied Mrs. Carmen Aguiar de Lapacó's
request to determine the fate of her daughter, Alejandra Lapacó, who was detained
and disappeared on March 17, 1977, based on the right to the truth and the
right to mourn. The petitioners consider that the judicial authorities' rejection
of that request violates the right to a fair trial (Article 8(1)), the right
to judicial protection (Article 25), and the obligation to respect the rights
(Article 1(1)) enshrined in the American Convention on Human Rights (hereinafter
"the Convention" or "the American Convention"). The petitioners
further allege violation of the following rights protected in the American
Declaration of the Rights and Duties of Man (hereinafter "the Declaration"
or the "American Declaration"): the right to equality before the
law (Article II) and the right to a fair trial (Article XVIII). The State
claims that the appropriate domestic remedies were not exhausted and that
incidental proceedings “un incidente
judicial” are still pending. It further claims that the alleged events
do not tend to establish a violation of rights established in the Convention.
3. In examining the admissibility
of the petition, the Commission concluded that it is competent to hear this
case and that the petition is admissible, pursuant to Articles 46 and 47 of
the American Convention.
PROCESSING BY THE COMMISSION
On October 21, 1998, the Commission forwarded the petition to the State
and requested that it supply information thereon within 90 days.
On January 19, 1999, the Argentine State requested an extension for
presenting its observations. A
30-day extension was granted on January 27, 1999.
On February 25, 1999, the State requested another extension.
The Commission granted that request and pushed back the deadline until
March 3, 1999. On March 16, 1999,
the Commission received the State's reply, which was forwarded to the petitioners
that same day. The petitioners
were given 60 days to present their observations on the State's response.
POSITIONS OF THE PARTIES
5. As background information
to their complaint, the petitioners claim that on March 16, 1977 twelve armed
men broke into Mrs. Lapacó's home and took Alejandra Lapacó, Marcelo Butti
Arana, Alejandro Aguiar, and Mrs. Lapacó to a detention site called “Club
Atlético.” It was there that Mrs. Lapacó last heard and saw her daughter
Alejandra. On March 19, 1977, Mrs. Lapacó and her nephew Alejandro Aguiar
Arévalo were released. Over the years, Mrs. Lapacó has taken many steps to
find her daughter, to no avail.
The petitioners indicate that when democracy was restored in 1983 the
executive branch established the National Commission on Disappeared Persons
(hereinafter "Conadep"). Its report entitled NUNCA
MÁS [Never Again] revealed the existence of many secret detention centers,
including the so-called “Club Atlético”
where Alejandra Lapacó was held. They argue that “although Conadep conducted
a huge investigation, it did not reconstruct the individual stories of each
of the missing detainees” and consequently did not determine what happened
to Alejandra Lapacó.
The petitioners further allege that decree 158/83 called for criminal
proceedings against the persons responsible for the State terrorism. The duly-presented
claim regarding the kidnapping, unlawful imprisonment, and torture of Alejandra
Lapacó was one of many that made up lawsuit Nº 450, which looked into the
events that took place at the “Club Atlético.” When signed statements from
the defendants had been taken and strict temporary detention of the accused
had been ordered, testimony was taken in the case.
On June 4, 1987, law 23.521 known as the “Law on Due Obedience” was
passed, releasing most of the defendants from criminal liability. The Federal
Criminal and Correctional Court of Appeals of the Federal Capital ordered
that statements be taken from those still on trial. Finally, on October 7,
1989, the executive branch signed decree 1002/89 pardoning those being charged
in lawsuit Nº 450.
On May 12, 1995, Mrs. Lapacó requested that the Federal Court of Appeals
send an official communication to the Office of the Army Chief of Staff in
the Ministry of Defense requesting that it submit all existing information
within that force and within the intelligence and security forces that operated
under the First Army Corps between 1976 and 1983 on the ultimate fate of the
missing detainees. The petition was based on the right of family members to
know the ultimate fate of their loved ones, the right of society to gain detailed
knowledge of the methods used by the military dictatorship to exterminate
thousands of Argentines, and finally the right to the truth.
On May 18, 1995, the National Criminal and Correctional Court of Appeals
of the Federal Capital declared the request admissible, stating "it was
incumbent upon it to exercise its jurisdiction." Although laws 23.492
and 23.521 and decree 1002/89 benefiting members of the military precluded
prosecution, the Court found this did not mean the proceedings were over.
The Secretary General of the Army responded to the Court's request stating
that "the military has no background information on the specific matter
raised in the request.” As a result of that response, on July 14, 1995 Mrs.
Lapacó suggested that official communications be sent to different organizations
that might have information that could further the investigation. In response
to the new request, on August 16, 1995 the Court stated that this was outside
of its jurisdiction, because of the issuance of due obedience standards, the
Punto Final [“Full Stop”] law, and the pardons. Furthermore, it decided
to bear in mind the report from the Office of the Army Chief of Staff; it
also decided to continue the process as it was upheld and ordered that a copy
of the decision be transmitted to the Subsecretariat for Human Rights of the
Ministry of the Interior, insomuch as the request could be adequately fulfilled
in the executive branch.
10. In light of this decision, on September
8, 1995 the petitioners filed an extraordinary appeal with the Supreme Court.
On July 8, 1997, the Attorney General, the highest authority within the “Ministerio
Público”, issued an opinion upholding the importance of protecting the
right to the truth and confirming that continuing with the investigation in
no way violated the principle of non
bis in idem [double jeopardy].
On August 13, 1998, the Supreme Court found the extraordinary appeal
inadmissible, on the grounds that the purpose of investigative proceedings
is to prove that punishable acts were committed and determine the perpetrators
and that, given the current status of the lawsuit, in which that purpose had
been nullified, the appeal could not be admitted. The judgment stated that
"taking the requested steps would require reopening the case and the
consequent exercise of jurisdictional activity against persons definitively
acquitted of the acts giving rise to this suit. There is no point in accumulating
evidence without anyone to use it against.”
12. The petitioners allege that the
Argentine State, through the Supreme Court decision, has denied their right
to the truth and to a hearing. The petitioners maintain that the domestic
barriers--the two laws and the presidential pardon--cannot be invoked to block
the determination of what happened to Alejandra Lapacó and the final whereabouts
of her body, since the crime of forced disappearance continues in effect until
the victim appears. They therefore claim that the Supreme Court's decision
is unlawful in that it obstructs the appearance of the victim.
13. With regard to the petition's admissibility,
the petitioners indicated that the Supreme Court decision exhausted domestic
The State admits that the decision of the Federal Court of Appeals
of the Federal Capital was based on the fact that “the Court did not have
the authority to gather evidence and obtain information about events and the
circumstances thereof, as requested by the petitioner, because this complaint
does not constitute a ‘case’ to be decided by the Court given the barriers
established in Article 116 of the Constitution and Article 2 of Law 27.” With
regard to the evidence summoned by Mrs. Lapacó, the State argues that “the
evidence would emerge from simply reconstructing the fate of missing detainees"
and that "if made available would weaken the provisions of the ‘punto
final’ and due obedience laws and run the risk of committing undue double
jeopardy, thus affecting the principle of non
bis in idem.”
The State indicated that when Mrs. Lapacó lodged the extraordinary
appeal against the Court's judgment, the Attorney General of Argentina advised
that it be found admissible, because “the justice system must effectively
address the need to mourn, which starts with knowing the truth.” However,
the Supreme Court endorsed the Court of Appeal's argument and found the extraordinary
appeal inadmissible: “since the purpose of the investigation is to prove that
a punishable act was committed and find the perpetrators, such an investigation
is not admissible in this case because the purpose of the proceedings has
16. On September 10, 1998, the Public
Defender of Argentina filed a motion for clarification with the Supreme Court.
On September 29, 1998 the Court maintained that its decision “denying the
evidentiary measures requested by the appellant is restricted to the suit
in question, because the purpose of the proceedings was nullified. This certainly
neither opened nor closed the various potential judicial and administrative
avenues available to the complainant to obtain the information she has pursued
through an inadmissible avenue.”
17. The State rejected the petitioners'
allegations and maintained that the Supreme Court, in both decisions, did
not deny the victims' right to the truth, “since it merely ruled that the
issue should be raised through a judicial or administrative avenue other than
criminal proceedings that have been concluded,” since if new evidence emerged
in a criminal suit that is over, it would affect the constitutional guarantee
of res judicata. To support this position, the State highlighted the
18. Firstly, the State cites the October
15, 1998 judgment of the Supreme Court in the habeas
data summary proceedings in the “Urteaga, Facundo Raúl vs. The Argentine
State-Joint Chiefs of Staff of the Armed Forces - on Law 16.986” case. In
that case, the High Court refers to the Lapacó case and indicates that that
decision “obviously restricted the impact of the denial to the evidence in
that criminal suit, leaving other judicial and administrative avenues open.”
19. Secondly, the State mentioned the
statements made by Minister Adolfo Vásquez, published in the morning edition
of Clarín on November 3, 1998, in which he maintains that “there was
no change in the position on this issue (...) the Supreme Court upheld the
same principles in the two cases (Lapacó and Urteaga). The State also cites
the opinion of constitutional expert Miguel Padilla published in El Derecho
on October 5, 1998 that “in virtue of laws 23.492 and 23.521 the alleged perpetrators
of the offenses set forth in the cases cannot be investigated or punished
(…); without a doubt the criminal proceedings are over; it is therefore legally
impossible to order the measures proposed by Mrs. Lapacó.”
20. The State also argues that it is
impossible to interpret that the right to the truth was denied, when only
the procedural avenue selected was rejected. The State therefore claims this
does not constitute a violation of the rights enshrined in Articles 8 and
25 of the American Convention. The State indicates that the Federal Court
adopted certain measures in 1996, such as establishing incidental search of
evidence, identification proceedings and taking charge of investigations into
the fate of victims, so as to reach the decision to activate what could be
construed as jurisdiction to pursue the right to the truth. The State maintains
that this jurisdiction is in place in the country, and new developments cannot
be ruled out.
With regard to the admissibility of the petition, the State requests
that the petitioners' complaint be found inadmissible and alleges that the
judicial avenue used and exhausted by the petitioners was not the correct
one for the claim lodged. It
argues that the desired goal–determining the fate of Alejandra Lapacó–should
have been pursued through a different avenue–and defers to its observations
mentioned above. The State therefore
concludes that domestic remedies were not exhausted. It further claims that
there are still judicial proceedings pending, through which the measures to
determine her whereabouts can still be requested or ordered and defers to
the annexes to its letter, listing Mrs. Lapacó's incidental proceedings.
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
Competence ratione materiae,
ratione personae, and ratione temporis
of the Commission
its mandate, the Commission is competent ratione
temporis to examine this case, insomuch as the petitioners maintain that
the Argentine State is responsible internationally for the August 16, 1995
judgment of the Federal Criminal and Correctional Court of Appeals of the
Federal Capital and the August 13, 1998 judgment of the Supreme Court upholding
the decision of the lower court. The judicial decisions that are the basis
of the petitioners' complaint were handed down after the State had deposited
the instrument of ratification with the General Secretariat of the Organization
of American States on September 5, 1984.
24. The Commission is also competent
ratione materiae, since the petition alleges the violation of rights
enshrined in the Convention and the American Declaration. The petitioners
denounce the violation of the right to a fair trial (Article 8(1)), the right
to judicial protection (Article 25), and the obligation to respect the rights
protected by the American Convention on Human Rights (Article 1(1)). The petitioners
further allege the violation of the following rights enshrined in the American
Declaration of the Rights and Duties of Man: equality before the law (Article
II) and the right to a fair trial (Article XVIII).
25. The Commission finds that when
the American Convention entered into force in Argentina on September 5, 1984
it became the primary source of law applicable by the Commission,
provided the petition refers to an alleged violation of rights substantially
the same in both instruments,
and the violation is not on-going.
In this case, the rights allegedly violated by the Argentine State
that are enshrined in the Declaration are also protected under the Convention,
and the situation is not recurrent. Since the rights invoked by the petitioners
in this case are protected in a similar manner in both instruments, the Commission
will refer only to the standards in the Convention and not those in the Declaration.
26. Thirdly, regarding active and passive
competence ratione personae, the
Commission notes that the petitioners attribute the violations of Mrs. Lapacó's
rights to a State Party, in this case Argentina, and claim that her capacity
as victim stems from the fact that she is the mother of Alejandra Lapacó,
who disappeared in 1977.
Other admissibility requirements for the petition
Exhaustion of domestic remedies
27. Article 46(1)(a) of the Convention
establishes as an admissibility requirement for a petition "that the
remedies under domestic law have been pursued and exhausted in accordance
with generally recognized principles of international law."
The rule of prior exhaustion of domestic remedies allows the State
to resolve the problem under its internal law before being confronted with
an international proceeding, such as in the inter-American system for the
promotion and protection of human rights, because the latter "reinforces
or complements" the domestic jurisdiction.
During the Commission's processing of this case, the petitioners have
alleged that the Supreme Court ruling exhausted domestic remedies. The State, however, rejects the petitioners' arguments and
alleges that domestic remedies were not exhausted as provided for in Article
46(1)(a) of the Convention, insomuch as the correct avenue was not used for
29. Article 46(1)(a) cites generally
recognized principles of international law, which do not refer to the formal
existence of such remedies, but rather that they be adequate and effective. The Inter-American Court of Human Rights found that “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 finds that whenever the petitioner alleges the exhaustion of
domestic remedies, the State claiming non-exhaustion has an obligation to
prove that domestic remedies remain to be exhausted.
With regard to the remedy the petitioner should have used, the State
argues that the goal–determining the fate of Alejandra Lapacó–should have
been pursued through a different avenue than the one selected, which furthermore
is open. The State also defers
to the arguments made in its observations.
The Commission understands that the State is referring to the Supreme
Court's findings in the Lapacó case, when it mentioned “different potential
judicial and administrative avenues” and in the Urteaga case, which dealt
with habeas data summary proceedings.
31. However, the Commission finds that,
while the State asserts the above, it does not deny that the remedy used by
Mrs. Lapacó has been exhausted. In
fact, the State indicated that “incidental proceedings are pending”–and attached
a copy of Mrs. Lapacó's incidental proceedings–through which “the measures
aimed at determining the fate of Alejandra Lapacó could be requested or ordered."
The Commission finds that in this case the State had indicated the possibility
of Mrs. Lapacó using either judicial or administrative avenues.
The State even indicates that new developments are possible.
However, it does not clearly indicate which remedy Mrs. Lapacó should
take and its suitability. Given
the facts examined, the Commission finds that there is no reason to reject
the petitioners' claim to have exhausted domestic remedies, which is closely
related to the merits of this case.
Deadline for lodging the petition
32. Article 46(1)(b) of the American
Convention requires that a 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."
In this case, the Supreme Court issued its judgment on August 13, 1998,
and neither party reported the date on which Mrs. Lapacó was notified of that
decision. The petition was lodged
with the Commission on October 7, 1998, within the six-month deadline. The Commission therefore finds that the requirement to lodge
a petition within six months was met.
Duplication of proceedings and res
33. Article 461(c) on admissibility
stipulates that the subject of the petition or communication must not be pending
in another international proceeding for settlement. Article 47(d) of the Convention
establishes that a petition is inadmissible if it is substantially the same
as one previously studied by the Commission or by another international organization.
In this case, the parties have neither alleged nor proven that the
matter submitted to the Commission for its consideration is pending settlement
or has been decided on by another international organization.
Furthermore, it is not the same as a petition already examined by the
Commission. The Commission therefore concludes that these requirements have
Characterization of the allegations
34. Article 47(b) of the Convention
stipulates that the Commission shall consider inadmissible any petition or
communication that "does not state facts that tend to establish a violation
of the rights guaranteed by this Convention." The petitioners have alleged
that as a result of the decisions of the Argentine judicial authorities in
the Lapacó case, the State violated the right to due process (Article 8),
the right to judicial protection (25), and the duty to respect the provisions
of Article 1(1) of the Convention. The Commission finds that the events alleged
by the petitioner, if true, could constitute a violation of rights enshrined
in the American Convention and therefore finds this petition admissible.
35. 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.
36. Based on the foregoing de
facto and de jure arguments,
and without prejudging the merits of the case,
INTER-AMERICAN COMMISSION OF HUMAN RIGHTS,
1. Declare this case admissible.
2. Notify the parties
of this decision.
3. Continue to examine
the merits of the case.
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 on the possibility of initiating such a settlement, and
5. Publish this decision
and include it in the Commission's Annual Report to the General Assembly of
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 Members Carlos Ayala Corao, Alvaro Tirado Mejía, and Jean Joseph Exumé.
See, among others, Inter-American Commission on Human Rights, Annual Report
1998, Report Nº 49/97, Case 11.520, Tomás Porfirio Rondín and others,
“Aguas Blancas" (Mexico), OEA/Ser/L/V/II.98, February 18, 1998, para.
50, page 8.
The Inter-American Court of Human Rights found that “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) of July 14, 1989, para. 46.
The Inter-American Court stated that “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
Advisory Opinion OC-10/89 of July 14, 1989, para. 46.
The Commission has established that it is competent to examine violations
of the Declaration and the Convention when there is confirmed, on-going
violation of rights protected in these instruments, such as for example
when justice is denied in acts originating before the State in question
ratified the Convention that continue after the State has expressed its
adherence to the Treaty and that Treaty has entered into force. See, for
example, Res. 26/88, Case 10.190, Argentina, Annual Report of the IACHR
Inter-American Court of Human Rights has found that victims' family members
also have the right to a hearing. Blake case, judgment of January 24,
1988, para. 96 and 97.
Inter-American Court of Human Rights,
judgment in the Velásquez Rodríguez Case, July 29, 1988, Series C Nº 4,
Velásquez Rodríguez Case, para.
In this regard, the Inter-American Court of Human Rights found that "the
State claiming non-exhaustion has an obligation to prove that domestic
remedies remain to be exhausted and that they are effective.”
Velásquez Rodríguez Case, Preliminary Objections, Judgment of June
1987, para. 88.